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The Surveillance Devices Commissioner (the SD Commissioner) exercises legislative functions under the Surveillance Devices Act 2007 (the SDA).
These functions are, in the first instance, bestowed on the Attorney General and are delegated to the SD Commissioner.
The SD Commissioner’s primary functions under the SDA involve the receipt of notice of pending warrant applications and the entitlement to be heard by the responsible eligible Judge in relation to whether the warrant sought should be issued.
The SD Commissioner exercises these functions in relation to the warrant application process with a view to promoting the integrity and efficacy of this process.
The SD Commissioner also receives reports prepared and submitted by applicants (law enforcement agencies) in relation to the use made of issued warrants and other authority under the SDA. The SD Commissioner reviews these reports, ensures they meet the requirements of the SDA, and takes appropriate action if required.
Section 51B of the SDA provides that the Attorney General may delegate any function of the Attorney General under Part 3 or Part 5 of the SDA to the Surveillance Devices Commissioner, or the Solicitor General, or the Crown Advocate, or a person, or class of persons, authorised for this purpose by the regulations.
A delegation has been made to the SD Commissioner, under the section, of the powers, authorities, duties and functions which may from time to time be exercised by the Attorney General in relation to matters arising under, or incidental to, or involving Part 3 and Part 5 of the SDA.
A similar delegation has been made to the Solicitor General, and the Crown Advocate, “limited to periods when no Surveillance Devices Commissioner is appointed or when the Surveillance Devices Commissioner is on leave or is otherwise unavailable”. The same qualified delegation has been made to two senior legal officers within the Department of Communities and Justice.
The delegated functions under Part 3 of the SDA, relating to warrant applications, include:
· Under s 17(5A) of the SDA an applicant for a surveillance devices warrant must serve a notice containing information relevant to the application on the Attorney General. In accordance with the delegation, this is routinely served on the SD Commissioner. Under s 17(3) of the SDA an application for a warrant is made in the form of an affidavit. By agreement, applicant agencies serve the s 17(5A) notice in the form of the application affidavit.
· Under s 19(1)(f) an eligible Judge may issue a surveillance device warrant if specified requirements are met, including that the Attorney General (or his delegate) has had an opportunity to be heard in relation to the granting of the warrant.
Similar arrangements are in place in relation to applications for retrieval warrants (see sections 25(5A) and 27(1)(f)).
The second reading speech is generally seen as an aid to statutory interpretation providing insight into the underlying purpose or object of the statute.
The Listening Devices Act 1984 (Repealed) was the precursor to the Surveillance Devices Act 2007. It initially introduced the concept of the Attorney General being provided with notice of pending warrant applications and having a right to be heard by the issuing authority. In his second reading speech introducing the legislation in 1984 the Attorney General, David Landa, said:
“Clause 17 will provide that the Attorney General is to be notified of the particulars of an application of a warrant under clause 16 and is to be given an opportunity to be heard in relation to the application. This provision is included to ensure effective representation of the public interest in requiring responsibility in the use of listening devices”.
In 2018 the Surveillance Devices Amendment (Statutory Review) Act 2018 introduced the position of Surveillance Devices Commissioner. As the bill was being introduced, Attorney General, Mark Speakman SC, in his second reading speech said:
“The Surveillance Devices Commissioner will under delegation from the Attorney General: first, receive advance notice of applications for warrants and all information provided to the eligible judge or magistrate responsible for deciding the application; second, assess all Surveillance Device Act 2007 warrant applications against factors the eligible judge or magistrate must take into account to ensure that the application is procedurally compliant; third, work with law enforcement agencies to remedy any deficiencies in applications before they are lodged with the eligible judge or magistrate; fourth, have the right to be heard by the eligible judge or magistrate in relation to the granting of an application for a warrant; and fifth, receive the report about the use of a surveillance device warrant from the applicant under section 44 of the Surveillance Devices Act 2007”.
The Surveillance Devices Amendment (Statutory Review) Act 2018 introduced ‘objects’ to the SDA. These are now located at s 2A of the SDA and are as follows:
“The objects of this Act are—
(a) to provide law enforcement agencies with a comprehensive framework for the use of surveillance devices in criminal investigations, and
(b) to enable law enforcement agencies to covertly gather evidence for the purposes of criminal prosecutions, and
(c) to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices”.
The SD Commissioner exercises his delegated functions with a view to promoting the objects of the SDA.
The SD Commissioner operates as a delegate of the Attorney General. Accordingly, his focus is not on promoting outcomes, although this may be necessary from time to time to “ensure effective representation of the public interest”. Rather, consistent with the traditional approach of the Attorney General, the SD Commissioner’s primary focus is on promoting the process operating under the SDA. This involves ensuring that the administration of the warrant application process proceeds, consistently with the objects of the SDA, to place the eligible Judge or eligible Magistrate in a primary position to make appropriate determinations in the interests of the of the community.
The operations of the SD Commissioner, with respect to the warrant application process, routinely take place in three stages:
The SD Commmissioner works with agencies to promote improved processes and practices to ensure that the initial application product is of a high standard.
The SD Commissioner is not able to direct applicant agencies in relation to their processes or practices for preparing application materials, however he is in a position to promote enhanced processes and practices.
The SD Commissioner reviews each applicationand works with agencies to address deficiencies prior to applications passing to the presiding eligible Judge or eligible Magistrate.
The SD Commissioner’s review prior to the application passing to the judicial officer allows him to identify problems and to address these through negotiation with applicant agencies or through furnishing submissions to the authorising officer. In particular, the SD Commissioner may address:
The SD Commissioner provides direct guidance to the presiding eligible Judge or eligible Magistrate to assist them in the effective performance of their functions under the SDA.
The SD Commissioner may provide guidance to the judicial officer through furnishing submissions that:
[1] A key achievement early on as SD Commissioner was to work with the NSW Police Force to substantially develop and improve their template for an affidavit in support of a warrant application. Once this had been settled the SD Commissioner negotiated with other applicant agencies to adapt their templates so that they matched the NSW Police Force template. This has culminated in applications being submitted in a consistent, enhanced form providing eligible Judges with easier access to the information they need.
In consultation with the NSW Police Force the SD Commissioner prepared two guideline documents:
1 – “Guideline for Applicant Agencies – the Surveillance Devices Commissioner’s involvement in the
warrant application process”: These forewarned applicants how the SD Commissioner might be
expected to act so they could effectively and efficiently manage his input.
2 – “Guideline for Applicant Agencies – Features of a quality Affidavit in Support of an Application under
the Surveillance Devices Act 2007”
The SD Commissioner has produced six “Legal Issue” publications. Each has been produced in consultation with the NSW Police Force. Sometimes these outline positions the Commissioner will take in particular factual circumstances, so that applicants can adjust their operational plans and application materials with a view to avoiding confrontation with him. On other occasions the publications canvass best practice in application preparation.
The SD Commissioner has sent six memorandums to the Manager, NSW Police Force, Covert Applications Unit dealing in best practice in preparing applications. Each memorandum was sent in draft form initially, to facilitate input, prior to being sent in its final form.
All documents are made available to NSW Police Force, Covert Applications Unit, Consultants on an external SharePoint page administered by the Office of the Surveillance Devices Commissioner.
[2] In the three complete reporting years since the commencement of the office in 2019, 2996 application notices were submitted. The SD Commissioner consulted with applicant agencies in relation to 1031 applications (34%). These consultations culminated in amendment of the application on 807 occasions (27%). The SD Commissioner furnished submissions to the presiding eligible Judge on 227 occasions (8%).
Since the beginning of 2025 the SD Commissioner has commenced attaching guidance notes in circumstances where consultation is not warranted, but the Commissioner has noticed opportunities for improving application practice.
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