Bills Digest No. 38, 2004-05
Surveillance Devices Bill 2004
This is a new edition of a Bills Digest
previously prepared for the 40th
Parliament
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Surveillance Devices Bill
2004
Date
Introduced: 17 November
2004
House:
Senate
Portfolio:
Attorney-General
Commencement:
Royal
Assent
To establish a statutory regime
governing the use of surveillance devices by law enforcement
officers investigating certain Commonwealth offences and State
offences with a federal aspect . The Bill also regulates the use of
information obtained from surveillance devices and contains
requirements for reporting, record-keeping and oversight by the
Ombudsman.
This Bill is reintroduced from the 40th Parliament
with some minor changes.
A Surveillance Devices Bill 2004 (the
March Bill ) was introduced into the House of Representatives
on 24 March 2004.
The March Bill was passed by the House of Representatives on 1
April 2004 and introduced into the Senate on 11 May 2004. It was
referred to the Senate Legal and Constitutional Legislation
Committee for inquiry and report. The Committee reported on 27 May
2004.
On 24 June 2004, the Surveillance Devices Bill (No. 2) 2004 (the
June Bill ) in part, the Government s response to the Senate
Committee report was introduced into the House of Representatives.
It replaced the March Bill and passed the lower house on the same
day. It was introduced into the Senate on 3 August 2004. However,
Parliament was prorogued for the 2004 General Election before the
Senate dealt with the June Bill and so it lapsed.
The Surveillance Devices Bill 2004 (the November Bill ) was
re-introduced into the House of Representatives on 17 November
2004. Apart from some minor changes, it replicates the June Bill.
It establishes a statutory regime governing the use of surveillance
devices by law enforcement agencies. These devices include data
surveillance devices, listening devices, optical surveillance
devices, tracking devices(1) and devices prescribed by
regulation.
In general, law enforcement agencies will be able to use such
devices only under the authority of warrants issued by eligible
federal judges(2) or nominated Administrative Appeals
Tribunal members.(3) There are exceptions to this rule.
For instance, authorisation from a senior law enforcement officer
can be sought in urgent and serious circumstances, certain uses of
surveillance devices will not need a warrant, and tracking devices
will, in certain circumstances, be able to be used with the
authorisation of a senior law enforcement officer.
The Bill also provides for recording keeping requirements,
contains rules for the use of information obtained from
surveillance devices and provides for monitoring by the
Ombudsman.
There are two areas of difference between the June Bill and the
November Bill:
-
changes that relate to the commencement of the Legislative
Instruments Act on 1 January 2005, and
-
the insertion of a provision relating to defective warrants,
emergency authorisations and tracking device authorisations.
Readers of this Digest are referred to:
-
Bills Digest No. 147, 2003-04(4)
for an account of the background and main provisions of the March
Bill. The June Bill contained a number of changes to the March Bill
(see below). Nevertheless, in general, the legislative scheme
remains the same
-
the
report of the Senate Legal and Constitutional Legislation
Committee into the March Bill,(5) and
-
Bills
Digest No.24, 2004-05,(6) which includes
details of the amendments proposed by the June Bill. Among the
amendments proposed by the June Bill were a reduction in the time
in which an emergency authorisation must be brought before a judge
or nominated AAT member for approval (from two business days to 48
hours); a requirement that information obtained from the use of a
surveillance device should, in general, be destroyed within 5 years
(the March Bill contained no time limits); the addition of civil
remedies for anyone harmed by the unlawful use of surveillance
devices (the March Bill contained criminal penalties only); a
provision enabling anyone assisting a law enforcement officer to
use a surveillance device without a warrant if they are a party to
the conversation (this amendment would cover informants); and a
provision ensuring that tracking device authorisations cannot
remain in force for more than 90 days (in line with the
surveillance device warrant period). These provisions are also
included in the November Bill.
The Legislative Instruments Act will commence on 1 January 2005.
It defines a legislative instrument as a written instrument:
(a) that is of a legislative character; and
(b) that is or was made in the exercise of a power
delegated by the Parliament.(7)
If an instrument is a legislative instrument then, in general,
it must be registered in the Federal Register of Legislative
Instruments, tabled in Parliament, is subject to parliamentary
scrutiny and disallowance and is subject to sunsetting (ie
automatic repeal 10 years after it commences or is required to be
registered.)
Not all instruments are legislative instruments for example,
they may not be legislative in character, the Legislative
Instruments Act may identify them specifically as not being
legislative instruments, their primary legislation may declare them
not to be legislative instruments or the Attorney-General may
certify that they are not legislative instruments.
The November Bill provides that a number of instruments made
under it are not legislative instruments. These are:
-
instruments declaring federal judges to be eligible judges
[subclause 12(6)]. (Eligible judges and nominated
AAT members will be responsible for issuing surveillance device
warrants)
-
records of emergency authorisations granted under the
legislation [subclause 31(2)]. In some serious and
urgent circumstances an application can be made to a senior law
enforcement officer for an emergency authorisation to use a
surveillance device (rather than an application for a warrant being
made to an eligible judge or nominated AAT member). The emergency
authorisation must subsequently be submitted to an eligible judge
or nominated AAT member for approval
-
applications to eligible judges or nominated AAT members for
approval of emergency authorisations [subclause
33(4)]. An application for approval must be made within 48
hours after an emergency authorisation is issued
-
records of tracking device authorisations that are issued under
the legislation [subclause 40(2)]. Tracking
devices can be used by law enforcement officers without a warrant
in certain circumstances. Records of tracking device authorisations
need to be kept
-
records that must be kept by law enforcement agencies about
their applications for warrants, emergency authorisations and
tracking device authorisations and the use of the information they
obtain [subclause 52(2)], and
-
the register of warrants, emergency authorisations and tracking
device authorisations that must be kept by each law enforcement
agency [subclause 53(5)].
Clause 65 provides that the fact that a warrant
or authorisation is defective in a non-substantial way does not
invalidate the use of the device or affect the admissibility of
evidence obtained from that use. So long as the defect is
non-substantial then the use of the device is to be treated as
being valid and information obtained from its use can be dealt with
in any proceeding.
Concluding Comments
The Legislative Instruments Handbook issued by the
Attorney-General s Department states:
The determinative factor of legislative character
is the effect of the instrument. If the instrument establishes a
new rule of law or legal regime, or alters the content of the law,
it is a legislative instrument.(8)
The amendments relating to the Legislative Instruments Act
therefore seem unexceptional it appears unlikely that any of the
instruments listed are legislative in character.
As stated earlier in this Digest, the Bill provides that if a
warrant or authorisation contains a non-substantial defect, the
warrant is to be treated as being valid and information obtained
from it is admissible in proceedings (clause
65).
The Explanatory Memorandum gives examples of minor and more
serious defects that could occur in surveillance device
warrants.
An example of a minor defect would include, but is
not limited to, where a signature appears in the wrong location on
the warrant or where it is incorrectly dated by the issuer. An
example of a more serious defect that would not be of a minor
nature would include, but is not limited to, where the warrant has
been issued for an offence which is not a relevant offence as
defined by the Bill. Another example might be where the Judge or
AAT member who issued the warrant was not in fact an eligible Judge
or nominated AAT member for the purposes of the Bill at the time
the warrant was issued.(9)
Clause 65 of the Bill differs from another
piece of Commonwealth legislation dealing with defective warrants.
Section
75 of the Telecommunications (Interception) Act 1979
(Cwlth) enables information obtained under a defective TI warrant
to be admitted into evidence in what are called exempt proceedings
(10) if a court or tribunal is satisfied
that:
(a) but for an irregularity, the interception
would not have constituted a contravention of the warrant
requirements, and
(b) in all the circumstances the irregularity should
be disregarded.(11)
An irregularity is defined in section 75 of the
Telecommunications (Interception) Act as a defect or irregularity
other than an substantial defect or irregularity connected with the
issue of the purported warrant or connected with the execution of
the warrant or purported warrant.
In contrast to section 75, clause 65 of the
Bill assigns no role to a court in deciding whether the
irregularity should be disregarded in all the circumstances. It
simply directs that use of the device is to be treated as being
valid and provides that information obtained from its use is
admissible. Parliament may wish to consider given the intrusive
nature of surveillance devices and the use that can be made of
information obtained from them in legal proceedings whether section
75 of the Telecommunications (Interception) Act provides a better
model.
-
A tracking device is an electronic device capable of detecting
or monitoring a person or object. It emits a radio signal that
allows the movement of vehicles or objects to be monitored.
-
For constitutional reasons, a federal judge must first consent
to be declared an eligible judge and the power to issue warrants is
conferred on the judge in his or her personal capacity.
-
AAT members who can issue warrants are Deputy Presidents,
full-time senior members, part-time senior members and ordinary
members. The last two classes of AAT member must be lawyers of at
least 5 years standing.
-
http://www.aph.gov.au/library/pubs/bd/2003-04/04bd147.pdf
-
Senate Legal and Constitutional Committee, Provisions of the
Surveillance Devices Bill 2004, May 2004
http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002-04/surveillance/report.pdf
-
http://www.aph.gov.au/library/pubs/bd/2004-05/05bd024.pdf
-
Subsection 5(1), Legislative Instruments Act 2003.
-
Attorney-General s Department, Legislative Instruments
Handbook, October 2004, p. 10.
-
Explanatory Memorandum p. 48.
-
`Exempt proceedings' are proceedings by way of a prosecution for
a prescribed offence and proceedings such as police disciplinary
proceedings, proceeds of crime applications, extradition
proceedings and proceedings under the Mutual Assistance in
Criminal Matters Act 1987 (Cth), s 13. A prescribed offence is
a class 1 or class 2 offence under the Telecommunications
(Interception) Act 1979 (Cth), an offence against
Telecommunications (Interception) Act 1979 (Cth), ss 7(1)
or 63, other phone tap related offences in Crimes Act 1914
(Cth), Pt VIIB, and any other offence punishable by imprisonment
for a maximum period of at least three years. See Law Book Company,
The Laws of Australia 11.1.413[413].
-
The provision covers warrants for obtaining foreign
intelligence.
Jennifer Norberry
25 November 2004
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2004
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Parliamentary Library, 2004.
Back to top