COMPARISON OF ACCOUNTABILITY REQUIREMENTS SURVEILLANCE DEVICES LEGISLATION IN AUSTRALIA FOR NORMAL WARRANTS
– not remote or those acquired in an emergency and not a tracking device – as at September 2022
States and Territories agreed to introduce model laws for a national set of powers for cross border investigations. The model legislation was developed for COAG (Council Of Australian Governments, forerunner to the “national cabinet”). There was a package of 4 bills: Police Powers (Surveillance Devices) Bill, Police Powers (Assumed Identities) Bill, Police Powers (Controlled Operations) Bill and Witness (ID Protection) Bill. The legislation provided for the use of electronic devices to monitor, record, listen to, overhear or track persons reasonably suspected of being involved in criminal activity.
Tasmanian House of Assembly Second Reading Speech: 1 November 2006. Tasmanian Legislative Council Second Reading Speech: 21 November 2006. See the Tasmanian Police Powers (Surveillance Devices) Act 2006. The Act commenced on 1 January 2009.
See also the Tasmanian Listening Devices Act 1991. House of Assembly Second Reading Speech: 21 August 1990. Tasmanian Legislative Council Second Reading Speech: 2 May 1991. The Act commenced on 1 April 1992.
| JURISDICTION | ACT/LEGISLATION | APPLICATION BY | APPLICATION TO | MAX DAYS | OFFENCE PROVISIONS | EXTRA SAFEGUARDS | OTHER |
| Tasmania | Police Powers (SD) Act 2006
Listening Devices Act 1991 (contains offence provision at s.5) |
Law enforcement officer e.g. Constable (cf s17(1) LD Act 1991 where Sergeant required)[1] | Magistrate
S8(2)(a) (if in Tasmania) |
90 days s.12(1)(b) (ix) | s.5(1) LD Act 1991 A person shall not use, or cause, or permit to be used, a LD to record or listen to a private conversation to which the person is not a party etc.
But see s.23 – time for instituting proceedings – 2 years S.24 Consent of DPP |
Affidavit setting out the grounds and prescribed info (if any) | Annual report by Ombudsman office as Inspection Entity tabled in Parlt[2].
Under s.29 the police officer must make a report to the Magistrate who issued the warrant. See also s.16 re discontinuance. See Parts 5 & 6 of Act (inc.ss.41,42 & 44). |
| Commonwealth | SD Act 2004 | Law enforcement officer s.14(1) | Judge or a nominated AAT member | 90 days s.17(1A)(a) | s.7 State offence has a federal aspect | Affidavit | Report to Minister for Home Affairs as soon as practicable after a SD warrant ceases to be in force.[3] |
| NSW | SD Act 2007 | Law enforcement officer | Eligible Judge s.17(2) | 90 days | s.7 SD Act – a person must not knowingly install, use or cause to be used
Up to 5 years imprisonment |
Affidavit | s.44 report to Judge and A-G on warrant.
Surveillance Devices Commissioner s.51A |
| Victoria | SD Act 1999 | Law enforcement officer but app can only be made with approval of senior officer or an authorised police officer s.15(2) | Supreme Court Judge | 90 days | s.7 – up to 2 years imprisonment or a fine | Affidavit | Public Interest Monitor s.12.[4] |
| South Australia | SD Act 2016 | Officer | Judge s.17(1) | 90 days | ss.4 & 5
Fine or imprisonment for up to 3 yrs |
Affidavit | Report to Minister s.30 |
| NT | SD 2007 | Officer | Supreme Court Judge | 90 days | ss.11 & 12 Fine or imprisonment for up to 2 yrs | Affidavit | Report to Judge s.58 plus discontinuance s.26 |
| WA | SD 1998 | Member of police force but requires authorisation by CoP, Dep Commr or Assistant Commr s.15(3)(a) | Judge ss.12 & 13 | 90 days | ss. 5 & 6
imprisonment for up to 12 months or a fine |
Affidavit | Annual Report by CoP s.43 |
| Queensland | Police Powers & Responsibilities Act 2000. Ch 13 | Senior officer s.328 | Supreme Court Judge | 90 days | ? | Affidavit | Public Interest Monitor s.740 |
| ACT | Crimes (SD) Act 2010
LD Act 1992 |
Law enforcement officer | Judge s.10 | 90 days | s.4 LD Act | Affidavit | Part 5 SD Act |
Observations/comments:
Tasmania is the only jurisdiction in which a Magistrate can authorise a surveillance device (SD) warrant (other than a tracking device).
Tasmania, it appears, did not enact the model laws offence provision in surveillance devices legislation. Instead, it relies on s.5 of the Listening Devices Act 1991 which remains in force despite the presence of the Police Powers (Surveillance Devices) Act 2006. See also ACT legislation.
Several jurisdictions require approval of the application by a senior or authorised officer (see Victoria, Queensland and WA).
Victoria and Queensland have the extra and significant requirement of a Public Interest Monitor (PIM). NSW has a Surveillance Devices Commissioner. The Commonwealth/AFP are also subject to scrutiny by agencies such as the ANAO.
Some jurisdictions have stringent reporting requirements regarding warrants, including reports to Judges and Ministers in relation to individual warrants.
- Why is a Sergeant required to apply for a warrant under the Tasmanian Listening Devices Act 1991 but a Constable can apply under the Police Powers (Surveillance Devices) Act 2006? Why does the LD Act continue to exist for other than the provision of the prohibition/offence in s.5? ↑
- The annual Tasmanian Ombudsman report on inspection under the SD Act is very brief and is along the lines of that he was satisfied with the comprehensiveness of the relevant records and that TasPol offered assistance during the inspection and were cooperative at all times. On occasions, some issues are identified such as the failure to include a retrieval warrant on file for a particular warrant (reports for 2016, 2017, 2018 and 2019 sighted). ↑
- See additional scrutiny by the Australian National Audit Office (2021) Australian Federal Police’s Use of Statutory Powers. Australian Federal Police. Auditor-General Report No. 43 2020-21 Canberra pp.24-25. ↑
- See Annual Report for Victorian PIM 2020/21 at Public_Interest_Monitor_Annual_Report_2020-21_p0qvydGW.pdf (parliament.vic.gov.au). The PIM began in 2013. The role of the PIM is, inter alia, to represent the public interest in the consideration by courts and Federal Administrative Appeals Tribunal of applications for warrants and orders authorising the covert collection of evidence from Victorian citizens and the use of coercive examination powers. The main work of the PIM is the consideration of applications to the Supreme Court of Victoria, the Magistrates’ Court of Victoria and the Federal Administrative Appeals Tribunal (AAT) for warrants and orders authorising the covert collection of evidence. In undertaking that work, the PIM is guided by the following principles:
evidence to sustain a prosecution must be obtained in a manner that preserves the integrity of the criminal justice system and its actors;
statutory rights of the suspect should not be breached except when the following criteria are met in full: the rights are qualified, breach is necessary and there is statutory authority to do so;
the rights and privacy of those citizens not suspected of criminal conduct must be protected: collateral harm as a consequence of investigations should be minimised through effective investigation management and the application of less intrusive tools, where appropriate;
the professional integrity of investigators must be demonstrated, or, if necessary, its absence exposed.
The main work of the PIM is the consideration of ‘relevant applications’. Prior to the COVID 19 emergency the PIM attended, in person, all hearings of relevant applications (with rare exceptions). ENDS ↑