Surveillance Devices (Amendment) Act 2004

Victorian Legislation and Parliamentary Documents i Surveillance Devices (Amendment) Act 2004 Act No. 26/2004 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. Principal Act 2 4. Purposes of the Principal Act 2 5. Definitions 3 6. New section 5A inserted 13 5A. Application of Act 13 7. Regulation of installation, use and maintenance of surveillance devices 13 8. Restriction on communication and publication of private conversations and private activities 14 9. New Division 1 substituted in Part 4 15 Division 1—Warrants 15 Subdivision 1—Introduction 15 13. Types of warrant 15 14. Who may issue warrants? 16 Subdivision 2—Surveillance Device Warrants 16 15. Application for surveillance device warrant 16 16. Remote application 18 17. Determining the application 18 18. What must a surveillance device warrant contain? 19 19. What a surveillance device warrant authorises 21 20. Extension and variation of surveillance device warrant 25 20A. Revocation of surveillance device warrant 26 20B. Discontinuance of use of surveillance device under warrant 27 Subdivision 3—Retrieval Warrants 28 20C. Application for retrieval warrant 28 20D. Remote application 29 20E. Determining the application 30 20F. What must a retrieval warrant contain? 30 20G. What a retrieval warrant authorises 32 20H. Revocation of retrieval warrant 33 -- 1 of 70 -- Victorian Legislation and Parliamentary Documents Section Page ii 10. New Division 3 substituted in Part 4 34 Division 3—Emergency Authorisations 34 25. Application of Division 34 26. Emergency authorisation—risk of serious personal violence or substantial property damage 34 27. Emergency authorisation—serious drug offences 35 28. Application for approval after use of surveillance device under emergency authorisation 37 29. Consideration of application 37 30. Judge may approve emergency use of powers 39 30A. Admissibility of evidence 40 11. New Part 4A inserted 41 PART 4A—RECOGNITION OF CORRESPONDING WARRANTS AND AUTHORISATIONS 41 30B. Corresponding warrants 41 30C. Corresponding emergency authorisations 41 12. New heading to Part 5 41 13. New Divisions 1, 2 and 3 inserted in Part 5 42 Division 1—Restrictions on Use, Communication and Publication of Information 42 30D. What is protected information? 42 30E. Prohibition on use, communication or publication of protected information 43 30F. Permitted use of local protected information 45 30G. Permitted use of corresponding protected information 47 30H. Dealing with records obtained by use of surveillance devices 50 30I. Protection of surveillance device technologies and methods 50 30J. Protected information in the custody of a court 52 Division 2—Reporting and Record-keeping 52 30K. Report to judge or magistrate 52 30L. Annual reports 54 30M. Keeping documents connected with warrants and emergency authorisations 57 30N. Other records to be kept 58 30O. Register of warrants and emergency authorisations 59 Division 3—Inspections 60 30P. Inspection of records by relevant Ombudsman 60 30Q. Reports on inspections 61 14. New Division heading in Part 5 62 15. Further offences and enforcement 62 -- 2 of 70 -- Victorian Legislation and Parliamentary Documents Section Page iii 16. New Part 6 substituted 62 PART 6—GENERAL 62 36. Evidentiary certificates 62 37. Regulations 64 17. Repeal of spent provisions 64 18. New section 42 inserted 64 42. Transitional provisions—Surveillance Devices (Amendment) Act 2004 64 19. Consequential amendment of Ombudsman Act 1973 66 ═══════════════ ENDNOTES 67 -- 3 of 70 -- Victorian Legislation and Parliamentary Documents 1 Surveillance Devices (Amendment) Act 2004† [Assented to 25 May 2004] The Parliament of Victoria enacts as follows: 1. Purpose The main purpose of this Act is to amend the Surveillance Devices Act 1999— (a) with respect to warrants and emergency authorisations for the use of surveillance devices; and (b) to recognise warrants and emergency authorisations issued in other jurisdictions. Victoria No. 26 of 2004 -- 4 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 2 2. Commencement This Act comes into operation on a day or days to be proclaimed. 3. Principal Act In this Act, the Surveillance Devices Act 1999 is called the Principal Act. 4. Purposes of the Principal Act In section 1 of the Principal Act— (a) in paragraph (a), for "and maintenance" substitute ", maintenance and retrieval"; (b) for paragraph (b) substitute— "(b) to restrict the use, communication and publication of information obtained through the use of surveillance devices or otherwise connected with surveillance device operations;"; (c) in paragraph (c), for "and use" substitute ", use, maintenance and retrieval"; (d) for paragraph (e) substitute— "(e) to impose requirements for the secure storage and destruction of records, and the making of reports to judges, magistrates and Parliament, in connection with surveillance device operations;"; s. 2 See: Act No. 21/1999 and amending Act Nos 61/2001, 18/2002, 35/2002, 52/2003, 56/2003 and 104/2003. LawToday: www.dms. dpc.vic. gov.au -- 5 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 3 (e) after paragraph (f) insert— "(g) to recognise warrants and emergency authorisations issued in other jurisdictions for the installation and use of surveillance devices.". 5. Definitions (1) In section 3(1) of the Principal Act— (a) insert the following definitions— ' "applicant" for a warrant, means the law enforcement officer who applies, or on whose behalf an application is made, for the warrant; "business day" means a day other than a Saturday, a Sunday or a public holiday appointed under the Public Holidays Act 1993; "corresponding emergency authorisation" means an authorisation in the nature of an emergency authorisation given under the provisions of a corresponding law, being an authorisation in relation to a relevant offence within the meaning of that corresponding law; "corresponding law" means a law of another jurisdiction that— (a) provides for the authorisation of the use of surveillance devices; and (b) is declared by the regulations to be a corresponding law; s. 5 -- 6 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 4 "corresponding warrant" means a warrant in the nature of a surveillance device warrant or retrieval warrant issued under the provisions of a corresponding law, being a warrant in relation to a relevant offence within the meaning of that corresponding law; "jurisdiction" means a State or Territory of the Commonwealth; "law enforcement agency" means the following agencies— (a) Victoria Police; (b) the Australian Crime Commission; (c) the Department of Primary Industries; (d) the Department of Sustainability and Environment; "participating jurisdiction" means a jurisdiction in which a corresponding law is in force; "protected information" has the meaning given in section 30D; "public officer" means a person employed by, or holding an office established by or under a law of, this jurisdiction or a person employed by a public authority of this jurisdiction, and includes a law enforcement officer; "relevant offence" means— (a) an offence against the law of this jurisdiction punishable by a maximum term of imprisonment of 3 years or more; or s. 5 -- 7 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 5 (b) an offence against the law of this jurisdiction that is prescribed by the regulations for the purposes of this definition; "relevant Ombudsman" means— (a) the Victorian Ombudsman in relation to Victoria Police, the Department of Primary Industries or the Department of Sustainability and Environment; (b) the Commonwealth Ombudsman in relation to the Australian Crime Commission; "relevant proceeding" means— (a) the prosecution of a person for an offence; (b) a bail application or a review of a decision to grant or refuse a bail application; (c) a proceeding with a view to the committal of a person to stand for trial for an offence; (d) a proceeding for the confiscation, forfeiture or restraint of property or for the imposition of a pecuniary penalty in connection with the commission or alleged commission of an offence, or a proceeding related or ancillary to such a proceeding; (e) a proceeding for the protection of a child or intellectually impaired person; s. 5 -- 8 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 6 (f) a proceeding concerning the validity of a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; (g) a disciplinary proceeding against a public officer; (h) a coronial inquest or inquiry if, in the opinion of the coroner, the event that is the subject of the inquest or inquiry may have resulted from the commission of an offence; (i) a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth in relation to a criminal matter that concerns an offence against the laws of the foreign country that made the request resulting in the proceeding; (j) a proceeding for the taking of evidence under section 43 of the Extradition Act 1988 of the Commonwealth; (k) a proceeding for the extradition of a person from another jurisdiction to this jurisdiction; (l) a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995 of the Commonwealth; (m) a proceeding of the International Criminal Court; s. 5 -- 9 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 7 "remote application" for a warrant, means an application referred to in section 16 or 20D; "retrieval warrant" means a warrant issued under Subdivision 3 of Division 1 of Part 4; "surveillance device warrant" means a warrant issued under Subdivision 2 of Division 1 of Part 4 or under section 30(3); "this jurisdiction" means Victoria; "unsworn application" for a warrant, means an application referred to in section 15(5) or 20C(5); "use" of a surveillance device includes use of the device to record a conversation or other activity; "Victoria Police" means the force within the meaning of the Police Regulation Act 1958;'; (b) for the definition of "chief law enforcement officer" substitute— ' "chief officer" means— (a) in relation to Victoria Police—the Chief Commissioner of Police; (b) in relation to the Australian Crime Commission—the Chief Executive Officer of the Australian Crime Commission; (c) in relation to the Department of Primary Industries—the Secretary to that department; s. 5 -- 10 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 8 (d) in relation to the Department of Sustainability and Environment— the Secretary to that department;'; (c) for the definition of "law enforcement officer" substitute— ' "law enforcement officer" means— (a) in relation to Victoria Police—a member of Victoria Police; (b) in relation to the Australian Crime Commission—a member of staff of the Australian Crime Commission; (c) in relation to the Department of Primary Industries—an authorised officer within the meaning of the Conservation, Forests and Lands Act 1987 appointed by the Secretary to that department; (d) in relation to the Department of Sustainability and Environment— an authorised officer within the meaning of the Conservation, Forests and Lands Act 1987 appointed by the Secretary to that department— and includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service or a police officer (however described) of another jurisdiction;'; s. 5 -- 11 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 9 (d) for the definition of "listening device" substitute— ' "listening device" means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear;'; (e) for the definition of "member of the police force" substitute— ' "member" of Victoria Police, means a member of the force within the meaning of the Police Regulation Act 1958;'; (f) for the definition of "optical surveillance device" substitute— ' "optical surveillance device" means any device capable of being used to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment;'; (g) for the definition of "premises" substitute— ' "premises" includes— (a) land; and (b) a building or vehicle; and s. 5 -- 12 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 10 (c) a part of a building or vehicle; and (d) any place, whether built on or not— whether in or outside this jurisdiction;'; (h) in the definition of "record", for paragraph (b) substitute— "(b) a record in digital form; or (c) a documentary record prepared from a record referred to in paragraph (a) or (b);"; (i) in the definition of "report", omit "private"; (j) for the definition of "senior law enforcement officer" substitute— ' "senior officer" means— (a) in relation to Victoria Police— (i) the Chief Commissioner of Police; or (ii) a Deputy Commissioner of Police; or (iii) an Assistant Commissioner of Police; or (iv) a person appointed under sub-section (3); (b) in relation to the Australian Crime Commission— (i) the Chief Executive Officer; or (ii) the Director National Operations; or s. 5 -- 13 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 11 (iii) the General Manager National Operations; or (iv) a member of staff of the Australian Crime Commission who is an SES employee or acting SES employee (within the meaning of the Australian Crime Commission Act 2002 of the Commonwealth) and who holds a position that is prescribed by the regulations for the purposes of this definition; (c) in relation to the Department of Primary Industries—the Secretary to that department; (d) in relation to the Department of Sustainability and Environment— the Secretary to that department;'; (k) for the definition of "surveillance device" substitute— ' "surveillance device" means— (a) a data surveillance device, a listening device, an optical surveillance device or a tracking device; or (b) a device that is a combination of any 2 or more of the devices referred to in paragraph (a); or (c) a device of a kind prescribed by the regulations;'; s. 5 -- 14 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 12 (l) for the definition of "warrant" substitute— ' "warrant" (except in sections 33, 34 and 35) means surveillance device warrant or retrieval warrant.'. (2) In section 3 of the Principal Act— (a) in sub-section (2), for "the police force" substitute "Victoria Police"; (b) in sub-section (3), for "senior law enforcement officers in relation to members of the police force" substitute "senior officers in relation to Victoria Police"; (c) in sub-section (4), for "senior law enforcement officer" substitute "senior officer"; (d) in sub-section (5), for "section 37(1)(c)" substitute "this Act"; (e) in sub-section (6), for "section 37(1)(d)" substitute "this Act". (3) After section 3(6) of the Principal Act insert— "(7) For the purposes of this Act, an investigation into an offence against the law of this jurisdiction is taken to be conducted in this jurisdiction (whether or not it is also conducted in another jurisdiction) if a law enforcement officer participates in the investigation. Note: Sub-section (7) is intended to cover the situation where an officer of this jurisdiction is conducting or participating in an investigation wholly in another jurisdiction for the purposes of an offence of this jurisdiction (eg: a Victorian officer is investigating a conspiracy to import drugs into Victoria from NSW, and all the evidence of the offence is in NSW).". s. 5 -- 15 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 13 (4) After section 3(7) of the Principal Act insert— "(8) In this Act, a reference to the law enforcement officer primarily responsible for executing a warrant is a reference to the person named in the warrant as such a person, whether or not that person is physically present for any step in the execution of the warrant.". 6. New section 5A inserted After section 5 of the Principal Act insert— "5A. Application of Act (1) This Act is not intended to limit a discretion that a court has— (a) to admit or exclude evidence in any proceeding; or (b) to stay criminal proceedings in the interests of justice. (2) For the avoidance of doubt, it is intended that a warrant may be issued, or an emergency authorisation given, in this jurisdiction under this Act for the installation, use, maintenance or retrieval of a surveillance device in this jurisdiction or a participating jurisdiction or both. (3) Sub-section (2) is subject to sections 19(7) and 27(5).". 7. Regulation of installation, use and maintenance of surveillance devices In the Principal Act— (a) in the penalty provision at the foot of each of sections 6(1), 7(1) and 8(1), for "1000 penalty units for a first offence and 2000 penalty units for a subsequent offence" substitute "1200 penalty units"; s. 6 -- 16 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 14 (b) in sections 6(2)(a), 7(2)(a), 8(2)(a) and 9(2)(a), for "warrant or an emergency authorisation" substitute "warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation"; (c) in section 6(2)(b), for "Commonwealth." substitute "Commonwealth; or"; (d) after section 6(2)(b) insert— "(c) the use of a listening device by a law enforcement officer to monitor or record a private conversation to which he or she is not a party if— (i) at least one party to the conversation consents to the monitoring or recording; and (ii) the law enforcement officer is acting in the course of his or her duty; and (iii) the law enforcement officer reasonably believes that it is necessary to monitor or record the conversation for the protection of any person's safety.". (e) section 10 is repealed. 8. Restriction on communication and publication of private conversations and private activities In the Principal Act— (a) in the penalty provision at the foot of section 11(1), for "1000 penalty units for a first offence and 2000 penalty units for a subsequent offence" substitute "1200 penalty units"; s. 8 -- 17 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 15 (b) after section 11(2)(c) insert— "(ca) to a communication or publication of protected information; or"; (c) in section 11(2)— (i) in paragraph (d)(i), for "chief law enforcement officer in relation to that officer" substitute "chief officer of the law enforcement agency"; (ii) in paragraph (e), for "the police force" substitute "Victoria Police"; (d) after section 12(2)(b) insert— "(ba) to a communication or publication of protected information; or"; (e) in section 12(2)(c)(i), for "chief law enforcement officer in relation to that officer" substitute "chief officer of the law enforcement agency". 9. New Division 1 substituted in Part 4 For Division 1 of Part 4 of the Principal Act substitute— "Division 1—Warrants Subdivision 1—Introduction 13. Types of warrant (1) The following types of warrant may be issued under this Division— (a) a surveillance device warrant; (b) a retrieval warrant. (2) A warrant may be issued in respect of one or more kinds of surveillance device. s. 9 -- 18 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 16 14. Who may issue warrants? (1) A Supreme Court judge may issue any warrant under this Division. (2) A magistrate may issue— (a) a surveillance device warrant that authorises the use of a tracking device only; or (b) a retrieval warrant in respect of a tracking device authorised under a warrant referred to in paragraph (a), if a magistrate issued the original warrant. Subdivision 2—Surveillance Device Warrants 15. Application for surveillance device warrant (1) A law enforcement officer (or another person on his or her behalf) may apply for the issue of a surveillance device warrant if the law enforcement officer on reasonable grounds suspects or believes that— (a) an offence has been, is being, is about to be or is likely to be committed; and (b) the use of a surveillance device is or will be necessary for the purpose of an investigation into that offence or of enabling evidence or information to be obtained of the commission of that offence or the identity or location of the offender. (2) An application may be made only with the approval of— (a) a senior officer of the law enforcement agency concerned; or (b) an authorised police officer. s. 9 -- 19 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 17 (3) The application may be made to— (a) a Supreme Court judge in any case; or (b) a magistrate in the case of an application for a surveillance device warrant authorising the use of a tracking device only. (4) An application— (a) must specify— (i) the name of the applicant; and (ii) the nature and duration of the warrant sought, including the kind of surveillance device sought to be authorised; and (b) subject to this section, must be supported by an affidavit setting out the grounds on which the warrant is sought. (5) If a law enforcement officer believes that— (a) the immediate use of a surveillance device is necessary for a purpose referred to in sub-section (1)(b); and (b) it is impracticable for an affidavit to be prepared or sworn before an application for a warrant is made— an application for a warrant may be made before an affidavit is prepared or sworn. (6) If sub-section (5) applies, the applicant must— (a) provide as much information as the judge or magistrate considers is reasonably practicable in the circumstances; and s. 9 -- 20 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 18 (b) not later than the day following the making of the application, send a duly sworn affidavit to the judge or magistrate, whether or not a warrant has been issued. (7) An application for a warrant is not to be heard in open court. 16. Remote application (1) If a law enforcement officer believes that it is impracticable for an application for a surveillance device warrant to be made in person, the application may be made under section 15 by telephone, fax, e-mail or any other means of communication. (2) If transmission by fax is available and an affidavit has been prepared, the person applying must transmit a copy of the affidavit, whether sworn or unsworn, to the judge or magistrate who is to determine the application. 17. Determining the application (1) A Supreme Court judge or magistrate may issue a surveillance device warrant if satisfied— (a) that there are reasonable grounds for the suspicion or belief founding the application for the warrant; and (b) in the case of an unsworn application— that it would have been impracticable for an affidavit to have been prepared or sworn before the application was made; and s. 9 -- 21 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 19 (c) in the case of a remote application— that it would have been impracticable for the application to have been made in person. (2) In determining whether a surveillance device warrant should be issued, the judge or magistrate must have regard to— (a) the nature and gravity of the alleged offence in respect of which the warrant is sought; and (b) the extent to which the privacy of any person is likely to be affected; and (c) the existence of any alternative means of obtaining the evidence or information sought to be obtained and the extent to which those means may assist or prejudice the investigation; and (d) the evidentiary or intelligence value of any information sought to be obtained; and (e) any previous warrant sought or issued under this Division or a corresponding law (if known) in connection with the same offence. 18. What must a surveillance device warrant contain? (1) A surveillance device warrant must— (a) state that the judge or magistrate is satisfied of the matters referred to in section 17(1) and has had regard to the matters referred to in section 17(2); and s. 9 -- 22 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 20 (b) specify— (i) the name of the applicant; and (ii) the alleged offence in respect of which the warrant is issued; and (iii) the date the warrant is issued; and (iv) the kind of surveillance device authorised to be used; and (v) if the warrant authorises the use of a surveillance device on premises—the premises on which the use of the surveillance device is authorised; and (vi) if the warrant authorises the use of a surveillance device in or on an object or class of object—the object or class of object in or on which the use of the surveillance device is authorised; and (vii) if the warrant authorises the use of a surveillance device in respect of the conversations, activities or geographical location of a person—the name of the person (if known); and (viii) the period during which the warrant is in force, being a period not exceeding 90 days; and (ix) the name of the law enforcement officer primarily responsible for executing the warrant; and (x) any conditions subject to which premises may be entered, or a surveillance device may be used, under the warrant; and s. 9 -- 23 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 21 (xi) the time within which a report in respect of the warrant must be made to the judge or magistrate under section 30K. (2) In the case of a warrant referred to in sub- section (1)(b)(vii), if the identity of the person is unknown, the warrant must state that fact. (3) A warrant must be signed by the person issuing it and include their name. (4) If the judge or magistrate issues a warrant on a remote application— (a) the judge or magistrate must inform the applicant of— (i) the terms of the warrant; and (ii) the date on which and the time at which the warrant was issued— and cause those details to be entered in a register kept by the judge or magistrate for the purpose; and (b) the judge or magistrate must provide the applicant with a copy of the warrant as soon as practicable. 19. What a surveillance device warrant authorises (1) A surveillance device warrant may authorise, as specified in the warrant, any one or more of the following— (a) the use of a surveillance device on specified premises; (b) the use of a surveillance device in or on a specified object or class of object; s. 9 -- 24 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 22 (c) the use of a surveillance device in respect of the conversations, activities or geographical location of a specified person or a person whose identity is unknown. (2) A surveillance device warrant authorises— (a) for a warrant of a kind referred to in sub-section (1)(a)— (i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant on the specified premises; and (ii) the entry, by force if necessary, onto the premises, or other specified premises adjoining or providing access to the premises, for any of the purposes referred to in sub-paragraph (i) or sub- section (3); (b) for a warrant of a kind referred to in sub-section (1)(b)— (i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on the specified object or an object of the specified class; and (ii) the entry, by force if necessary, onto any premises where the object, or an object of the class, is reasonably believed to be or is likely to be, or other premises adjoining or providing access to those premises, for any of the s. 9 -- 25 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 23 purposes referred to in sub- paragraph (i) or sub-section (3); (c) for a warrant of a kind referred to in sub-section (1)(c)— (i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant, on premises where the person is reasonably believed to be or likely to be; and (ii) the entry, by force if necessary, onto the premises referred to in sub-paragraph (i), or other premises adjoining or providing access to those premises, for any of the purposes referred to in sub- paragraph (i) or sub-section (3). (3) Each surveillance device warrant also authorises— (a) the retrieval of the surveillance device; and (b) the installation, use, maintenance and retrieval of any enhancement equipment in relation to the surveillance device; and (c) the temporary removal of an object from premises for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment and the return of the object to the premises; and (d) the breaking open of anything for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment; and s. 9 -- 26 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 24 (e) the connection of the device or equipment to an electricity supply system and the use of electricity from that system to operate the surveillance device or enhancement equipment; and (f) the connection of the device or equipment to any object or system that may be used to transmit information in any form and the use of that object or system in connection with the operation of the surveillance device or enhancement equipment; and (g) the provision of assistance or technical expertise to the law enforcement officer primarily responsible for executing the warrant in the installation, use, maintenance or retrieval of the surveillance device or enhancement equipment. (4) A surveillance device warrant may authorise the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the installation, use, maintenance or retrieval of a surveillance device or enhancement equipment under the warrant. (5) A law enforcement officer may use a surveillance device under a warrant only if he or she is acting in the performance of his or her duty. (6) This section applies to a warrant subject to any conditions specified in the warrant. (7) A surveillance device warrant cannot authorise the installation or use of a surveillance device outside this jurisdiction if— s. 9 -- 27 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 25 (a) the application for the warrant is made by or on behalf of an authorised officer within the meaning of the Conservation, Forests and Lands Act 1987; or (b) the offence in relation to which the warrant is issued is not a relevant offence. (8) Nothing in this section authorises the doing of anything for which a warrant would be required under the Telecommunications (Interception) Act 1979 of the Commonwealth. 20. Extension and variation of surveillance device warrant (1) A law enforcement officer to whom a surveillance device warrant has been issued (or another person on his or her behalf) may apply, at any time before the expiry of the warrant— (a) for an extension of the warrant for a period not exceeding 90 days from the day on which it would otherwise expire; or (b) for a variation of any of the other terms of the warrant. (2) The application is to be made to— (a) a Supreme Court judge, if the warrant was issued by a Supreme Court judge; or (b) a magistrate, if the warrant was issued by a magistrate. (3) Sections 15 and 16 apply, with any necessary changes, to an application under this section as if it were an application for the warrant. s. 9 -- 28 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 26 (4) The judge or magistrate may grant an application, subject to any conditions he or she thinks fit, if satisfied that the matters referred to in section 17(1) still exist, having regard to the matters in section 17(2). (5) If the judge or magistrate grants the application, the judge or magistrate must endorse the new expiry date or the other varied term on the original warrant. (6) An application may be made under this section more than once. 20A. Revocation of surveillance device warrant (1) A surveillance device warrant may be revoked at any time before the expiration of the period of validity specified in it by— (a) a Supreme Court judge, if a Supreme Court judge issued the warrant; or (b) a magistrate, if a magistrate issued the warrant. (2) If the circumstances set out in section 20B(2) apply in relation to a surveillance device warrant, the chief officer of the law enforcement agency must, by instrument in writing, revoke the warrant. (3) A judge or magistrate who revokes a warrant must give notice of the revocation to the chief officer of the law enforcement agency of which the law enforcement officer to whom the warrant was issued is a member. s. 9 -- 29 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 27 20B. Discontinuance of use of surveillance device under warrant (1) This section applies if a surveillance device warrant is issued to a law enforcement officer of a law enforcement agency. (2) If the chief officer of the law enforcement agency is satisfied that the use of a surveillance device under the warrant is no longer necessary for the purpose of enabling evidence to be obtained of the commission of the offence or the identity or location of the offender, the chief officer must— (a) take the steps necessary to ensure that use of the surveillance device authorised by the warrant is discontinued as soon as practicable; and (b) revoke the warrant under section 20A(2). (3) If the chief officer is notified that the warrant has been revoked by a judge or magistrate under section 20A, he or she must take the steps necessary to ensure that use of the surveillance device authorised by the warrant is discontinued immediately. (4) If the law enforcement officer to whom the warrant is issued, or who is primarily responsible for executing the warrant, believes that use of a surveillance device under the warrant is no longer necessary for the purpose of enabling evidence to be obtained of the commission of the offence or the identity or location of the offender, he or she must inform the chief officer of the law enforcement agency immediately. s. 9 -- 30 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 28 Subdivision 3—Retrieval Warrants 20C. Application for retrieval warrant (1) A law enforcement officer (or another person on his or her behalf) may apply for the issue of a retrieval warrant in respect of a surveillance device that was lawfully installed on premises, or in or on an object, under a surveillance device warrant and which the law enforcement officer on reasonable grounds suspects or believes is still on those premises or in or on that object, or on other premises or in or on another object. (2) An application may be made only with the approval of— (a) a senior officer of the law enforcement agency concerned; or (b) an authorised police officer. (3) The application may be made to— (a) a Supreme Court judge in any case; or (b) a magistrate in the case of an application for a retrieval warrant authorising the retrieval of a tracking device only. (4) Subject to this section, an application must be supported by an affidavit setting out the grounds on which the warrant is sought. (5) If a law enforcement officer believes that— (a) the immediate retrieval of a surveillance device is necessary; and s. 9 -- 31 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 29 (b) it is impracticable for an affidavit to be prepared or sworn before an application for a warrant is made— an application for a warrant may be made before an affidavit is prepared or sworn. (6) If sub-section (5) applies, the applicant must— (a) provide as much information as the judge or magistrate considers is reasonably practicable in the circumstances; and (b) not later than the day following the making of the application, send a duly sworn affidavit to the judge or magistrate who determined the application, whether or not a warrant has been issued. (7) An application for a warrant is not to be heard in open court. 20D. Remote application (1) If a law enforcement officer believes that it is impracticable for an application for a retrieval warrant to be made in person, the application may be made under section 20C by telephone, fax, e-mail or any other means of communication. (2) If transmission by fax is available and an affidavit has been prepared, the person applying must transmit a copy of the affidavit, whether sworn or unsworn, to the judge or magistrate who is to determine the application. s. 9 -- 32 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 30 20E. Determining the application (1) A Supreme Court judge or magistrate may issue a retrieval warrant if the judge or magistrate is satisfied— (a) that there are reasonable grounds for the suspicion or belief founding the application for the warrant; and (b) in the case of an unsworn application— that it would have been impracticable for an affidavit to have been prepared or sworn before the application was made; and (c) in the case of a remote application— that it would have been impracticable for the application to have been made in person. (2) In determining whether a retrieval warrant should be issued, the judge or magistrate must have regard to— (a) the extent to which the privacy of any person is likely to be affected; and (b) the public interest in retrieving the device sought to be retrieved. 20F. What must a retrieval warrant contain? (1) A retrieval warrant must— (a) state that the judge or magistrate is satisfied of the matters referred to in section 20E(1) and has had regard to the matters referred to in section 20E(2); and s. 9 -- 33 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 31 (b) specify— (i) the name of the applicant; and (ii) the date the warrant is issued; and (iii) the kind of surveillance device authorised to be retrieved; and (iv) the premises or object from which the surveillance device is to be retrieved; and (v) the period (not exceeding 90 days) during which the warrant is in force; and (vi) the name of the law enforcement officer primarily responsible for executing the warrant; and (vii) any conditions subject to which premises may be entered under the warrant; and (viii) the time within which a report in respect of the warrant must be made to the judge or magistrate under section 30K. (2) A warrant must be signed by the person issuing it and include their name. (3) If the judge or magistrate issues a warrant on a remote application— (a) the judge or magistrate must inform the applicant of— (i) the terms of the warrant; and (ii) the date on which and the time at which the warrant was issued— and cause those details to be entered in a register kept by the judge or magistrate for the purpose; and s. 9 -- 34 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 32 (b) the judge or magistrate must provide the applicant with a copy of the warrant as soon as practicable. 20G. What a retrieval warrant authorises (1) A retrieval warrant (subject to any conditions specified in it) authorises— (a) the retrieval of the surveillance device specified in the warrant and any enhancement equipment in relation to the device; and (b) the entry, by force if necessary, onto the premises where the surveillance device is reasonably believed to be, or other premises adjoining or providing access to those premises, for the purpose of retrieving the device and equipment; and (c) the breaking open of any thing for the purpose of the retrieval of the device and equipment; and (d) if the device or equipment is installed on or in an object, the temporary removal of the object from any place where it is situated for the purpose of the retrieval of the device and equipment and the return of the object to that place; and (e) the provision of assistance or technical expertise to the law enforcement officer primarily responsible for executing the warrant in the retrieval of the device or equipment. (2) If the retrieval warrant authorises the retrieval of a tracking device, the warrant also authorises the use of the tracking device and any enhancement equipment in relation s. 9 -- 35 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 33 to the device solely for the purposes of the location and retrieval of the device or equipment. (3) A retrieval warrant may authorise the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the retrieval of a surveillance device or enhancement equipment under the warrant. 20H. Revocation of retrieval warrant (1) A retrieval warrant may be revoked at any time before the expiration of the period of validity specified in it by— (a) a Supreme Court judge, if a Supreme Court judge issued the warrant; or (b) a magistrate, if a magistrate issued the warrant. (2) A judge or magistrate who revokes a warrant must give notice of the revocation to the chief officer of the law enforcement agency of which the law enforcement officer to whom the warrant was issued is a member. (3) If the chief officer of a law enforcement agency is satisfied that the grounds for issue of a retrieval warrant to a law enforcement officer of the agency no longer exist, the chief officer must, by instrument in writing, revoke the warrant. (4) If the law enforcement officer to whom a retrieval warrant has been issued, or who is primarily responsible for executing a retrieval warrant, believes that the grounds for issue of the warrant no longer exist, he or she must inform the chief officer of the law enforcement agency immediately.". s. 9 -- 36 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 34 10. New Division 3 substituted in Part 4 For Division 3 of Part 4 of the Principal Act substitute— "Division 3—Emergency Authorisations 25. Application of Division This Division does not apply to— (a) the following law enforcement agencies— (i) the Department of Primary Industries; (ii) the Department of Sustainability and Environment; or (b) the following law enforcement officers—authorised officers within the meaning of the Conservation, Forests and Lands Act 1987. 26. Emergency authorisation—risk of serious personal violence or substantial property damage (1) A law enforcement officer of a law enforcement agency may apply to a senior officer of the agency for an emergency authorisation for the use of a surveillance device if the law enforcement officer on reasonable grounds suspects or believes that— (a) an imminent threat of serious violence to a person or substantial damage to property exists; and (b) the use of a surveillance device is immediately necessary for the purpose of dealing with that threat; and s. 10 -- 37 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 35 (c) the circumstances are so serious and the matter is of such urgency that the use of a surveillance device is warranted; and (d) it is not practicable in the circumstances to apply for a surveillance device warrant. (2) An application may be made orally, in writing or by telephone, fax, e-mail or any other means of communication. (3) A senior officer may give an emergency authorisation for the use of a surveillance device on an application under sub-section (1) if satisfied that there are reasonable grounds for the suspicion or belief founding the application. (4) An emergency authorisation given under this section may authorise the law enforcement officer to whom it is given to do anything that a surveillance device warrant may authorise them to do. 27. Emergency authorisation—serious drug offences (1) A law enforcement officer of a law enforcement agency may apply to a senior officer of the agency for an emergency authorisation for the use of a surveillance device if— (a) a serious drug offence or an offence against a law of another jurisdiction or the Commonwealth that corresponds to a serious drug offence has been, is being, is about to be or is likely to be committed; and s. 10 -- 38 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 36 (b) the use of a surveillance device is immediately necessary for the purpose of an investigation into that offence or of enabling evidence or information to be obtained of the commission of that offence or the identity or location of the offender; and (c) the circumstances are so serious and the matter is of such urgency that the use of a surveillance device is warranted; and (d) it is not practicable in the circumstances to apply for a surveillance device warrant. (2) An application may be made orally, in writing or by telephone, fax, e-mail or any other means of communication. (3) A senior officer may give an emergency authorisation for the use of a surveillance device on an application under sub-section (1) if satisfied that there are reasonable grounds for the suspicion or belief founding the application. (4) Subject to sub-section (5), an emergency authorisation given under this section may authorise the law enforcement officer to whom it is given to do anything that a surveillance device warrant may authorise them to do. (5) An emergency authorisation given under this section cannot authorise the installation or use of a surveillance device outside this jurisdiction. s. 10 -- 39 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 37 28. Application for approval after use of surveillance device under emergency authorisation (1) Within 2 business days after giving an emergency authorisation, a senior officer (or another person on his or her behalf) must apply to a Supreme Court judge for approval of the exercise of powers under the emergency authorisation. (2) An application— (a) must specify— (i) the name of the applicant; and (ii) the kind of surveillance device sought to be approved and, if a warrant is sought, the nature and duration of the warrant; and (b) must be supported by an affidavit setting out the grounds on which the approval (and warrant, if any) is sought. (3) The judge may refuse to consider the application until the applicant gives the judge all the information the judge requires about the application in the way the judge requires. (4) An application is not to be heard in open court. 29. Consideration of application (1) Before deciding an application for approval in respect of an emergency authorisation given under section 26, the judge must, in particular, and being mindful of the intrusive nature of using a surveillance device, consider the following— s. 10 -- 40 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 38 (a) the nature of the risk of serious violence to a person or substantial damage to property; and (b) the extent to which issuing a surveillance device warrant would have helped reduce or avoid the risk; and (c) the extent to which law enforcement officers could have used alternative methods of investigation to help reduce or avoid the risk; and (d) how much the use of alternative methods of investigation could have helped reduce or avoid the risk; and (e) how much the use of alternative methods of investigation would have prejudiced the safety of the person or property because of delay or for another reason; and (f) whether or not it was practicable in the circumstances to apply for a surveillance device warrant. (2) Before deciding an application for approval in respect of an emergency authorisation given under section 27, the judge must, in particular, and being mindful of the intrusive nature of using a surveillance device, consider the following— (a) the nature of the serious and urgent circumstances in respect of which the emergency authorisation was sought; and (b) the extent to which law enforcement officers could have used alternative methods of investigation; and s. 10 -- 41 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 39 (c) whether or not it was practicable in the circumstances to apply for a surveillance device warrant. 30. Judge may approve emergency use of powers (1) After considering an application for approval in respect of an emergency authorisation given under section 26, the judge may approve the application if satisfied that there were reasonable grounds to suspect or believe that— (a) there was a risk of serious violence to a person or substantial damage to property; and (b) using a surveillance device may have helped reduce the risk; and (c) it was not practicable in the circumstances to apply for a surveillance device warrant. (2) After considering an application for approval in respect of an emergency authorisation given under section 27, the judge may approve the application if satisfied that— (a) the circumstances of the case were serious and urgent; and (b) using a surveillance device may have helped to obtain evidence or information of the commission of the offence or the identity or location of the offender; and (c) it was not practicable in the circumstances to apply for a surveillance device warrant. s. 10 -- 42 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 40 (3) If the judge approves an application under this section, the judge may issue a surveillance device warrant for the continued use of the surveillance device as if the application were an application for a surveillance device warrant under Subdivision 2 of Division 1. (4) If the judge does not approve an application under this section, the judge may— (a) order that the use of the surveillance device cease; and (b) authorise, subject to any conditions the judge thinks fit, the retrieval of the surveillance device. (5) In any case, the judge may order that any information obtained from or relating to the exercise of powers under the emergency authorisation or any record of that information be dealt with in the way specified in the order. 30A. Admissibility of evidence If the exercise of powers under an emergency authorisation is approved under section 30, evidence obtained because of the exercise of those powers is not inadmissible in any proceeding only because the evidence was obtained before the approval.". s. 10 -- 43 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 41 11. New Part 4A inserted After Part 4 of the Principal Act insert— "PART 4A—RECOGNITION OF CORRESPONDING WARRANTS AND AUTHORISATIONS 30B. Corresponding warrants A corresponding warrant may be executed in this jurisdiction in accordance with its terms as if it were a surveillance device warrant or retrieval warrant (as the case requires) issued under Division 1 of Part 4. 30C. Corresponding emergency authorisations (1) A corresponding emergency authorisation authorises the use of a surveillance device in accordance with its terms in this jurisdiction, as if it were an emergency authorisation given under Division 3 of Part 4. (2) Sub-section (1) does not apply at any time after a judge orders, under a provision of a corresponding law that corresponds to section 30(4), that the use of a surveillance device under the corresponding emergency authorisation cease.". 12. New heading to Part 5 For the heading to Part 5 of the Principal Act substitute— "PART 5—COMPLIANCE AND MONITORING". s. 11 -- 44 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 42 13. New Divisions 1, 2 and 3 inserted in Part 5 After the heading to Part 5 of the Principal Act insert— 'Division 1—Restrictions on Use, Communication and Publication of Information 30D. What is protected information? In this Division— "protected information" means— (a) any information obtained from the use of a surveillance device under a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or (b) any information relating to— (i) an application for, issue of, existence of or expiry of a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or (ii) an application for approval of powers exercised under an emergency authorisation; or (iii) an application under a corresponding law for approval of powers exercised under a corresponding emergency authorisation. s. 13 -- 45 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 43 30E. Prohibition on use, communication or publication of protected information (1) A person is guilty of an offence if— (a) the person intentionally, knowingly or recklessly uses, communicates or publishes any information; and (b) the person knows that, or is reckless as to whether, the information is protected information; and (c) the person knows that, or is reckless as to whether, the use, communication or publication of the information is not permitted by this Division. Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both; In the case of a body corporate, 1200 penalty units. (2) A person is guilty of an offence against this sub-section if the person commits an offence against sub-section (1) in circumstances in which the person— (a) intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation into an offence; or (b) knows that, or is reckless as to whether, the disclosure of the information— (i) endangers or will endanger the health or safety of any person; or s. 13 -- 46 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 44 (ii) prejudices or will prejudice the effective conduct of an investigation into an offence. Penalty: In the case of a natural person, level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum) or both; In the case of a body corporate, 6000 penalty units. (3) An offence against sub-section (2) is an indictable offence. (4) Sub-sections (1) and (2) do not apply to— (a) the use, communication or publication of— (i) any information that has been disclosed in proceedings in open court; or (ii) any information that has entered the public domain; or (b) the use or communication of protected information by a person who believes on reasonable grounds that the use or communication is necessary to help prevent or reduce the risk of serious violence to a person or substantial damage to property; or (c) the communication to the Director- General (within the meaning of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth) of protected information that relates or appears to relate to activities prejudicial to s. 13 -- 47 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 45 security (within the meaning of that Act); or (d) the use or communication of information referred to in paragraph (c) by an officer of the Australian Security Intelligence Organisation in the performance of his or her official functions; or (e) the use or communication of information to a foreign country or an appropriate authority of a foreign country in accordance with the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth. (5) Sub-section (4)(c) and (d) do not authorise the use, communication or publication of protected information in respect of an emergency authorisation or corresponding emergency authorisation unless the use of powers under that authorisation has been approved under section 30 or the provisions of a corresponding law that correspond to section 30. 30F. Permitted use of local protected information (1) Local protected information may be used, communicated or published if it is necessary to do so for any of the following purposes— (a) the investigation of an offence; (b) the making of a decision whether or not to bring a relevant proceeding in respect of an offence; (c) a relevant proceeding in respect of an offence; s. 13 -- 48 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 46 (d) an investigation of a complaint against, or the conduct of, a public officer within the meaning of this Act or a public officer within the meaning of a corresponding law; (e) the making of a decision in relation to the appointment, re-appointment, term of appointment, termination or retirement of a person referred to in paragraph (d); (f) the keeping of records and the making of reports by a law enforcement agency in accordance with the obligations imposed by Division 2; (g) an inspection by a relevant Ombudsman under section 30P; (h) an investigation under the Information Privacy Act 2000 or the law of a participating jurisdiction or of the Commonwealth concerning the privacy of personal information. (2) Sub-section (1)(a), (b) and (c) do not authorise the use, communication or publication of protected information in respect of an emergency authorisation unless the use of powers under that authorisation has been approved under section 30. (3) A reference in sub-section (1) to an offence (whether of this jurisdiction or any other jurisdiction) is a reference to any offence, whether or not the offence in respect of which the relevant warrant or emergency authorisation was issued or given. s. 13 -- 49 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 47 (4) In this section— "local protected information" means— (a) any information obtained from the use of a surveillance device under a warrant or emergency authorisation; or (b) any information relating to— (i) an application for, issue of, existence of or expiry of a warrant or emergency authorisation; or (ii) an application for approval of powers exercised under an emergency authorisation. 30G. Permitted use of corresponding protected information (1) Corresponding protected information may be used, communicated or published if it is necessary to do so for any of the following purposes— (a) the investigation of a relevant offence within the meaning of this Act or a relevant offence within the meaning of a corresponding law; (b) the making of a decision whether or not to bring— (i) a relevant proceeding in respect of a relevant offence; or (ii) a relevant proceeding within the meaning of a corresponding law in respect of a relevant offence within the meaning of that law; s. 13 -- 50 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 48 (c) a relevant proceeding in respect of a relevant offence, or a relevant proceeding within the meaning of a corresponding law in respect of a relevant offence within the meaning of that law; (d) an investigation of a complaint against, or the conduct of, a public officer within the meaning of this Act or a public officer within the meaning of a corresponding law; (e) the making of a decision in relation to the appointment, re-appointment, term of appointment, termination or retirement of a person referred to in paragraph (d); (f) the keeping of records and the making of reports by a law enforcement agency (within the meaning of a corresponding law) in accordance with the obligations imposed by provisions of the corresponding law that correspond to Division 2; (g) an inspection under a provision of a corresponding law that corresponds to section 30P; (h) an investigation under the Information Privacy Act 2000 or the law of a participating jurisdiction or of the Commonwealth concerning the privacy of personal information. (2) Sub-section (1)(a), (b) and (c) do not authorise the use, communication or publication of protected information in respect of a corresponding emergency authorisation unless the use of powers under s. 13 -- 51 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 49 that authorisation has been approved under the provisions of a corresponding law that correspond to section 30. (3) A reference in sub-section (1) to a relevant offence (whether of this jurisdiction or any other jurisdiction) is a reference to a relevant offence, whether or not the offence in respect of which the relevant corresponding warrant or emergency authorisation was issued or given. (4) In this section— "corresponding protected information" means— (a) any information obtained from the use of a surveillance device under a corresponding warrant or corresponding emergency authorisation; or (b) any information relating to— (i) an application for, issue of, existence of or expiry of a corresponding warrant or corresponding emergency authorisation; or (ii) an application under a corresponding law for approval of powers exercised under a corresponding emergency authorisation. s. 13 -- 52 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 50 30H. Dealing with records obtained by use of surveillance devices (1) The chief officer of a law enforcement agency— (a) must ensure that every record or report obtained by use of a surveillance device by a law enforcement officer of the agency under a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation is kept in a secure place that is not accessible to people who are not entitled to deal with the record or report; and (b) must destroy or cause to be destroyed any record or report referred to in paragraph (a) if satisfied that it is not likely to be required in connection with a purpose referred to in section 30E(4), 30F(1) or 30G(1). (2) Sub-section (1) does not apply to a record or report that is received into evidence in legal proceedings or disciplinary proceedings. 30I. Protection of surveillance device technologies and methods (1) In any proceeding, a person may object to the disclosure of information on the ground that the information, if disclosed, could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices. (2) If the person conducting or presiding over the proceeding is satisfied that the ground of objection is made out, he or she may order s. 13 -- 53 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 51 that the person who has the information not be required to disclose it in the proceeding. (3) In determining whether or not to make an order under sub-section (2), the person conducting or presiding over the proceeding must take into account whether disclosure of the information— (a) is necessary for the fair trial of the defendant; or (b) is in the public interest. (4) Sub-section (2) does not affect a provision of another law under which a law enforcement officer cannot be compelled to disclose information or make statements in relation to the information. (5) If the person conducting or presiding over a proceeding is satisfied that publication of any information disclosed in the proceeding could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices, the person must make any orders prohibiting or restricting publication of the information that he or she considers necessary to ensure that those details are not revealed. (6) Sub-section (5) does not apply to the extent that the person conducting or presiding over the proceeding considers that the interests of justice require otherwise. (7) In this section— "proceeding" includes a proceeding before a court, tribunal, Royal Commission or a board to which Division 5 of Part I of the Evidence Act 1958 applies. s. 13 -- 54 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 52 30J. Protected information in the custody of a court A person is not entitled to search any protected information in the custody of a court unless the court otherwise orders in the interests of justice. Division 2—Reporting and Record-keeping 30K. Report to judge or magistrate (1) A law enforcement officer to whom a warrant is issued, or who is primarily responsible for executing a warrant issued, under this Act must, within the time specified in the warrant, make a report in accordance with this section to the judge or magistrate who issued the warrant. (2) In the case of a surveillance device warrant, the report must— (a) state whether the warrant was executed; and (b) if so— (i) state the name of each person involved in the execution of the warrant; and (ii) state the kind of surveillance device used; and (iii) state the period during which the device was used; and (iv) state the name, if known, of any person whose conversations or activities were overheard, recorded, monitored, listened to or observed by the use of the device; and s. 13 -- 55 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 53 (v) state the name, if known, of any person whose geographical location was determined by the use of a tracking device; and (vi) give details of any premises on which the device was installed or any place at which the device was used; and (vii) give details of any object in or on which the device was installed or any premises where the object was located when the device was installed; and (viii) give details of the benefit to the investigation of the use of the device and of the general use made or to be made of any evidence or information obtained by the use of the device; and (ix) give details of the compliance with the conditions (if any) to which the warrant was subject; and (c) if the warrant was extended or varied, state— (i) the number of extensions or variations; and (ii) the reasons for them; and (d) state whether the chief officer has revoked the warrant under section 20A(2). s. 13 -- 56 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 54 (3) In the case of a retrieval warrant, the report must— (a) give details of any premises entered, anything opened and any object removed and replaced under the warrant; and (b) state whether the surveillance device was retrieved under the warrant; and (c) if the device was not retrieved, state the reason why; and (d) give details of the compliance with the conditions (if any) to which the warrant was subject; and (e) state whether the chief officer has revoked the warrant under section 20H(3). (4) On receiving a report, the judge or magistrate may order that any information obtained from or relating to the execution of the warrant or any record of that information be dealt with in the way specified in the order. 30L. Annual reports (1) The chief officer of a law enforcement agency must submit a report to the Minister that includes the following information in respect of each financial year— (a) the number of applications for warrants by and the number of warrants issued to law enforcement officers of the agency during that year; and s. 13 -- 57 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 55 (b) the number of applications for emergency authorisations by and the number of emergency authorisations given to law enforcement officers of the agency during that year; and (c) the number of remote applications for warrants by law enforcement officers of the agency during that year; and (d) the number of applications for warrants or emergency authorisations by law enforcement officers of the agency that were refused during that year, and the reasons for refusal; and (e) the number of applications for extensions of warrants by law enforcement officers of the agency during that year, the number of extensions granted or refused and the reasons why they were granted or refused; and (f) the number of arrests made by law enforcement officers of the agency during that year on the basis (wholly or partly) of information obtained by the use of a surveillance device under a warrant or emergency authorisation; and (g) the number of prosecutions that were commenced in this jurisdiction during that year in which information obtained by the use of a surveillance device under a warrant or emergency authorisation was given in evidence and the number of those prosecutions in which a person was found guilty; and s. 13 -- 58 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 56 (h) in the case of Victoria Police— (i) the name and rank of each person appointed as a senior officer under section 3(3) (whether appointed during that year or previously); and (ii) if any person referred to in sub- paragraph (i) is below the rank of commander, the reason for the appointment of the person under section 3(3); and (i) any other information relating to the use of surveillance devices and the administration of this Act that the Minister considers appropriate. (2) The information referred to in sub-section (1)(a) and (b) must be presented in such a way as to identify the number of warrants issued and emergency authorisations given in respect of each different kind of surveillance device. (3) The report must be submitted to the Minister as soon as practicable after the end of each financial year, and at any event within 3 months after the end of the financial year. (4) The Minister must cause a copy of each report under this section to be laid before each House of Parliament within 15 sitting days after the day the Minister receives the report. s. 13 -- 59 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 57 30M. Keeping documents connected with warrants and emergency authorisations The chief officer of a law enforcement agency must cause the following to be kept— (a) each warrant issued to a law enforcement officer of the agency; and (b) each notice given to the chief officer under section 20A(3) of revocation of a warrant; and (c) each emergency authorisation given to a law enforcement officer of the agency; and (d) each application made by a law enforcement officer of the agency for an emergency authorisation; and (e) a copy of each application made by a law enforcement officer of the agency for— (i) a warrant; (ii) extension, variation or revocation of a warrant; (iii) approval of the exercise of powers under an emergency authorisation; and (f) a copy of each report made to a judge or magistrate under section 30K; and (g) a copy of each certificate issued by a senior officer of the agency under section 36. s. 13 -- 60 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 58 30N. Other records to be kept The chief officer of a law enforcement agency must cause the following to be kept— (a) a statement as to whether each application made by a law enforcement officer of the agency for a warrant, or extension, variation or revocation of a warrant, was granted, refused or withdrawn; and (b) a statement as to whether each application made by a law enforcement officer of the agency for an emergency authorisation, or for approval of powers exercised under an emergency authorisation, was granted, refused or withdrawn; and (c) details of each use by the agency, or by a law enforcement officer of the agency, of information obtained by the use of a surveillance device by a law enforcement officer of the agency; and (d) details of each communication by a law enforcement officer of the agency to a person other than a law enforcement officer of the agency of information obtained by the use of a surveillance device by a law enforcement officer of the agency; and (e) details of each occasion when, to the knowledge of a law enforcement officer of the agency, information obtained by the use of a surveillance device by a law enforcement officer of the agency was given in evidence in a relevant proceeding; and s. 13 -- 61 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 59 (f) details of the destruction of records or reports under section 30H(1)(b). 30O. Register of warrants and emergency authorisations (1) The chief officer of a law enforcement agency must cause a register of warrants and emergency authorisations to be kept. (2) The register is to specify, for each warrant issued to a law enforcement officer of the agency— (a) the date of issue of the warrant; and (b) the name of the judge or magistrate who issued the warrant; and (c) the name of the law enforcement officer named in the warrant as the person primarily responsible for executing it; and (d) the offence in relation to which the warrant was issued; and (e) the period during which the warrant is in force; and (f) details of any variation or extension of the warrant. (3) The register is to specify, for each emergency authorisation given to a law enforcement officer of the agency— (a) the date the emergency authorisation was given; and (b) the name of the senior officer who gave the emergency authorisation; and s. 13 -- 62 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 60 (c) the name of the law enforcement officer to whom the emergency authorisation was given; and (d) the offence in relation to which the emergency authorisation was given; and (e) the date on which the application for approval of powers exercised under the emergency authorisation was made. Division 3—Inspections 30P. Inspection of records by relevant Ombudsman (1) The relevant Ombudsman in relation to a law enforcement agency must, from time to time, inspect the records of the agency to determine the extent of compliance with this Act by the agency and law enforcement officers of the agency. (2) For the purpose of an inspection under this section, the relevant Ombudsman— (a) after notifying the chief officer of the agency, may enter at any reasonable time premises occupied by the agency; and (b) is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and s. 13 -- 63 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 61 (c) may require a member of staff of the agency to give the relevant Ombudsman any information that the relevant Ombudsman considers necessary, being information that is in the member's possession, or to which the member has access, and that is relevant to the inspection. (3) The chief officer must ensure that members of staff of the agency give the relevant Ombudsman any assistance the relevant Ombudsman reasonably requires to enable the relevant Ombudsman to perform functions under this section. 30Q. Reports on inspections (1) A relevant Ombudsman must make a report to Parliament at 6-monthly intervals on the results of each inspection under section 30P. (2) A relevant Ombudsman must— (a) cause the report to be transmitted to each House of Parliament as soon as practicable after 1 January and 1 July each year; and (b) give a copy of the report to the Attorney-General at the same time as it is transmitted to each House. (3) The clerk of each House of Parliament must cause the report to be laid before the House on the day on which it is received or on the next sitting day.'. s. 13 -- 64 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 62 14. New Division heading in Part 5 Before section 31 of the Principal Act insert— "Division 4—Further Offences and Enforcement". 15. Further offences and enforcement In the Principal Act— (a) for section 31(b) substitute— "(b) in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation."; (b) in the penalty provision at the foot of section 31, for "1000 penalty units for a first offence and 2000 penalty units for a subsequent offence" substitute "1200 penalty units"; (c) in sections 33, 34 and 35, for "the police force" (wherever occurring) substitute "Victoria Police". 16. New Part 6 substituted For Part 6 of the Principal Act substitute— "PART 6—GENERAL 36. Evidentiary certificates (1) A senior officer of a law enforcement agency, or a person assisting him or her, may issue a written certificate signed by the officer or person setting out any facts he or she considers relevant with respect to— s. 14 -- 65 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 63 (a) anything done by a law enforcement officer of the agency, or by a person assisting or providing technical expertise to him or her, in connection with the execution of a warrant or in accordance with an emergency authorisation; or (b) anything done by a law enforcement officer of the agency in connection with— (i) the communication by a person to another person; or (ii) the making use of; or (iii) the making of a record of; or (iv) the custody of a record of— information obtained by the use of a surveillance device under a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation. (2) A document purporting to be a certificate issued under sub-section (1) or under a provision of a corresponding law that corresponds to sub-section (1) is admissible in evidence in any proceeding. (3) Sub-section (2) does not apply to a certificate to the extent that the certificate sets out facts with respect to anything done in accordance with an emergency authorisation or corresponding emergency authorisation unless the use of powers under that authorisation has been approved under section 30 or under a provision of a corresponding law that corresponds to section 30. s. 16 -- 66 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 64 37. Regulations (1) The Governor in Council may make regulations for or with respect to prescribing any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) The regulations— (a) may be of general or limited application; (b) may differ according to differences in time, place or circumstances.". 17. Repeal of spent provisions Sections 38, 39 and 40 of the Principal Act are repealed. 18. New section 42 inserted After section 41 of the Principal Act insert— '42. Transitional provisions—Surveillance Devices (Amendment) Act 2004 (1) An existing surveillance device warrant that was in force immediately before the commencement day continues in force on and after that day in accordance with its terms as if it were a surveillance device warrant issued under section 17 as in force on and after the commencement day. (2) An existing retrieval warrant that was in force immediately before the commencement day continues in force on and after that day in accordance with its terms as if it were a retrieval warrant issued under section 20E as in force on and after the commencement day. (3) An existing emergency authorisation (violence or damage) that was in force immediately before the commencement day s. 17 -- 67 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 65 continues in force on and after that day in accordance with its terms as if it were an emergency authorisation given under section 26 as in force on and after the commencement day. (4) An existing emergency authorisation (drugs) that was in force immediately before the commencement day continues in force on and after that day in accordance with its terms as if it were an emergency authorisation given under section 27 as in force on and after the commencement day. (5) Sections 28 to 30A (as substituted by the Surveillance Devices (Amendment) Act 2004) apply to an existing emergency authorisation unless a report has been furnished to the court before the commencement day under section 28 (as in force immediately before that day) in respect of the authorisation. (6) A warrant or emergency authorisation may be issued or given under this Act as in force on and after the commencement day in relation to an offence that was committed before the commencement day. (7) In this section— "commencement day" means the day on which section 18 of the Surveillance Devices (Amendment) Act 2004 comes into operation; "existing emergency authorisation" means an existing emergency authorisation (drugs) or an existing emergency authorisation (violence or damage); s. 18 -- 68 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 66 "existing emergency authorisation (drugs)" means an emergency authorisation given under section 26 as in force immediately before the commencement day on a ground referred to in section 25(1)(a)(ii) as in force at that time; "existing emergency authorisation (violence or damage)" means an emergency authorisation given under section 26 as in force immediately before the commencement day on a ground referred to in section 25(1)(a)(i) as in force at that time; "existing retrieval warrant" means a retrieval warrant issued under section 17 as in force immediately before the commencement day; "existing surveillance device warrant" means a warrant (other than a retrieval warrant) issued under section 17 as in force immediately before the commencement day.'. 19. Consequential amendment of Ombudsman Act 1973 In section 13(3A) of the Ombudsman Act 1973— (a) in paragraph (c)(ii), for "1995." substitute "1995; or"; (b) after paragraph (c) insert— "(d) for the purpose of carrying out a function under Division 3 of Part 5 of the Surveillance Devices Act 1999.". ═══════════════ See: Act No. 8414. Reprint No. 6 as at 1 January 2002 and amending Act Nos 2/2001, 23/2003 and 103/2003. LawToday: www.dms. dpc.vic. gov.au s. 19 -- 69 of 70 -- Victorian Legislation and Parliamentary Documents Act No. 26/2004 Surveillance Devices (Amendment) Act 2004 67 ENDNOTES † Minister's second reading speech— Legislative Assembly: 1 April 2004 Legislative Council: 11 May 2004 The long title for the Bill for this Act was "to amend the Surveillance Devices Act 1999 with respect to warrants and emergency authorisations for the use of surveillance devices, to recognise warrants and emergency authorisations issued in other jurisdictions and for other purposes." Endnotes -- 70 of 70 --