Scheme of the Surveillance Devices Act 2007

Part 1 – Objects and definitions

The objects of the Surveillance Devices Act 2007 (the Act) are set out at s 2A of the Act as:

(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 prosecution; and

(c)   to ensure that the privacy of individuals is not necessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices.

Comment:

The objects set out at s2A(a) and s 2A(b) of the Act underscore the importance of electronic surveillance to effective law enforcement.

The Royal Commission into the NSW Police Service in its Final Report (Volume II) spoke about the importance of electronic surveillance:

“The Royal Commission found that its use of electronic surveillance was the single most important factor in achieving a breakthrough in its investigations. In this regard, it mirrors the experience of conventional law enforcement agencies faced with a proliferation of the drug trade, and an increase in the sophistication of the methods employed by those engaged in organised crime. Although the advantages of this form of surveillance are so obvious that they barely need statement, they include:

·         the obtaining of evidence that provides a compelling, incontrovertible and contemporaneous record of criminal activity;

·         the removal of the incentive to engage in process corruption;

·         the opportunity to effect an arrest while a crime is in the planning stage, thereby lessening the risk to lives and property;

·         the provision of greater security for money in the possession of undercover operatives;

·         the reduction of the possibility of harm to police, and undercover operatives and informants, arising out of the opportunity this form of surveillance provides to obtain a  forewarning of any planned reprisals, and to know in advance the planned movements and activities of the targets;

·         the reduction in the need for close personal contact with criminals;

·         overall efficiencies in the investigation of corruption offences and other forms of criminality that are covert, sophisticated, and difficult to detect by conventional methods, particularly where those involved are aware of policing methods, are conscious of visual surveillance and employ counter-surveillance techniques;

·         a higher plea rate in cases which, by reason of unequivocal surveillance product, are indefensible, and do not depend on disputed evidence or civilian eyewitnesses who are untrained as observers and historians of fact; and

·         the provision of a record to establish or rebut complaints  against police.” [1]

NSW law enforcement agencies appear to have responded to this encouragement.

In the reporting year 2022 – 2023:

·         NSW law enforcement agencies made 1021 applications for surveillance device warrants (including applications for extensions).

·         NSW law enforcement agencies made 2288 applications  for telecommunication interception warrants.

In the same reporting year:

·         Victorian law enforcement agencies made 264 “relevant applications”, as defined under the Public Interest Monitor Act 2011 (Vic) which includes all surveillance device warrant and telecommunication interception warrant applications.

·         Queensland law enforcement agencies made 57 applications for surveillance device warrants (including applications for extensions).  They made 302 applications for telecommunication interception warrants.

·         Commonwealth agencies (ACIC, ACLEI and AFP) made 784 surveillance device warrant applications, and 721 telecommunication interception warrants.

The object set out at s 2A(c) underscores the need to ensure that:

·         on each relevant occasion when law enforcement agencies seek to use electronic surveillance the privacy of relevant individuals is not necessarily impinged; and

·         a bulwark is established against the abuse of electronic surveillance by the State.

The power of electronic surveillance was recognised by the Supreme Court of the United States:

“What the ancients knew as ‘eavesdropping’ we now call ‘electronic surveillance’; but to equate the two is to treat man’s first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveller of human privacy ever known”.

United States v White (401 U.S. 745)
Justice William O Douglas, Supreme Court of the United States

[1] Royal Commission into NSW Police Service, Final Report, Volume 2 – page 413

Part 2 of the Act prohibits the use of surveillance devices.

There are exceptions to this prohibition. These exceptions vary according to the device type (for example; the use of listening devices is generally prohibited wherever it notionally takes place; whereas the use of optical surveillance devices is only prohibited if this involves entry onto, or interference with, premises or a vehicle, without the express or implied consent of the owner or occupier).

The Act stipulates exceptions to the prohibitions imposed.

This summary does not deal with all the technical exceptions to the Part 2 prohibitions except to say that each prohibition outlined in Part 2 of the Act does not apply to use in accordance with a relevant warrant, emergency authority, corresponding warrant or corresponding emergency authorisation [see s 7(2)(a), s 8(2)(a), s 9(2)(a) and s10(2)(a)].

Only a ‘law enforcement officer’ can apply for a surveillance device warrant or use emergency authority under the Act.

Part 3 of the Act, Divisions 1, 2 & 3 relate to the issuing of warrants under the Act.

There are two types of warrants issued under the Act:

·         surveillance device warrants that authorise activity in relation to the use of surveillance devices; and

·         retrieval warrants that authorise activity relating to the retrieval of lawfully installed surveillance devices.

To understand the process of issuing a surveillance device warrant under the Act, refer to: “The process for issuing a surveillance device warrant”.

For details on obtaining a retrieval warrant, see: “The process for issuing a retrieval warrant”.

For the powers that may be authorised by a SD warrant see: “Powers authorised under a surveillance device warrant”.

To learn about the powers that may be authorised by a retrieval warrant see: “Powers authorised under a retrieval warrant”.

Part 3 of the Act, Division 4 covers emergency authorisations:

For an outline of when and how law enforcement officers can use surveillance devices in emergency circumstances see: “Emergency authorisations of surveillance device use”.

Part 4 of the Act deals with the recognition in NSW of corresponding warrants and other authorities, that is SD warrants and emergency authorisation provided by corresponding laws in ‘participating jurisdictions (Northern Territory, Queensland, Tasmania, Victoria, ACT)

Restrictions on use, communication and publication of information.

‘Protected information’ is, in essence:

·         information obtained from the use of surveillance devices under a warrant or emergency authority

·         information relating to the application for, and administration of, warrant or emergency authority.

Part 5, Division 1 of the Act prohibits the use, communication or publication of protected information.

Exceptions to these prohibitions are outlined:

·         Section 40(3) exceptions include:

o   The use, communication or publication of information disclosed in proceedings in open court OR information that has already entered the public domain

o   The use, communication or publication by a person who believes on reasonable grounds that the use or communication is necessary –

o    to help prevent a threat of serious violence to a person or substantial damage to property

o    (and if obtained by surveillance device use in this jurisdiction) – the commission of a serious narcotics offence.

·         Section 40(4) exceptions:

o   The investigation of relevant offences

o   Making decisions whether or not to bring a prosecution for a relevant offence

o   The conduct of a relevant proceeding (as defined –  includes prosecution of relevant offences)

o   The investigation of a complaint against a public officer

o   Keeping records and preparing reports as required  by Part 5, Division 2, of the Act.

·         Protected information may be disclosed by a law enforcement officer with the consent of the chief officer of  the officer’s agency [see s40(6)].