Surveillance Devices Regulations 1999

 

Surveillance Devices Regulations 1999

CONTENTS

1.Citation1

2.Commencement1

3.Forms1

4.Law enforcement officers1

5.Commonwealth agencies, instrumentalities and bodies2

6.Use of tracking devices without a warrant2

7.Storage and destruction of Part 5 records5

8.Annual reports5

9.Unlawful possession of surveillance information6

Schedule 1 — Forms

Notes

Compilation table21

 

Surveillance Devices Act 1998

Surveillance Devices Regulations 1999

1.Citation

These regulations may be cited as the Surveillance Devices Regulations 1999.

2.Commencement

These regulations come into operation on the day on which the Surveillance Devices Act 1998 comes into operation.

3.Forms

(1)A warrant issued under section 13, 14, 17, 19 or 22 of the Act is to be in the form of Form 1 in Schedule 1, or such other form as the Judge or Magistrate approves.

(2)An application for emergency authorization under section 21 of the Act is to be in the form of Form 2 in Schedule 1.

(3)An emergency authorization issued under section 21 of the Act is to be in the form of Form 3 in Schedule 1.

(4)An application to a magistrate for a tracking device warrant or a tracking device (maintenance/ retrieval) warrant is to be in the form of Form 4 in Schedule 1.

[Regulation 3 amended in Gazette 8 February 2000 p.458.]

4.Law enforcement officers

Fisheries officers (as defined in the Fish Resources Management Act 1994) employed in the Serious Offences Unit of the Department (as defined in that Act) are a prescribed class of persons for the purposes of paragraph (d) of the definition of “law enforcement officer” in section 3(1) of the Act.

[Regulation 4 inserted in Gazette 23 Sep 2005 p. 4363.]

5.Commonwealth agencies, instrumentalities and bodies

The following Commonwealth agencies, instrumentalities and bodies are prescribed for the purposes of section 4(2) of the Act —

(a)Australian Security Intelligence Organization continued by section 6 of the Australian Security Intelligence Organization Act 1979 of the Commonwealth;

(b)Australian Federal Police established by section 6 of the Australian Federal Police Act 1979 of the Commonwealth;

(c)Australian Customs Service referred to in the Customs Act 1901 of the Commonwealth;

(d)Australian Competition and Consumer Commission established by section 6A of the Trade Practices Act 1974 of the Commonwealth;

(e)the department of the Commonwealth public service responsible for administering the Migration Act 1958 of the Commonwealth; and

(f)each of the armed forces of the Commonwealth.

6.Use of tracking devices without a warrant

(1)For the purposes of section 7(2)(d) of the Act the following circumstances are prescribed, that is, where a tracking device is attached, installed, used or maintained, or caused to be attached, installed, used or maintained —

(a)by an emergency service to locate the person who is, or object that is, the subject of a search operation;

(b)by the person in charge of a hospital or nursing home in relation to a vulnerable patient to enable the person in charge to locate the vulnerable patient if he or she gets lost or goes missing;

(c)by the superintendent of a prison in relation to a prisoner to enable the superintendent to locate the prisoner if he or she escapes from legal custody;

(d)by a researcher in relation to an object the geographical location of which is relevant to research being carried out by that person; or

(e)for the purposes of section 32(1)(b), 52(2)(a) or 62(2)(a) of the Sentence Administration Act 1995.

(2)For the purposes of section 7(2)(d) of the Act the following circumstance is prescribed — where a person uses, or causes to be used, a tracking device in relation to an object that —

(a)was in the person’s possession or under the person’s control when the device was attached or installed;

(b)is no longer in the person’s possession or under the person’s control; and

(c)the person reasonably believes to have been stolen.

(3)As soon as practicable after a tracking device is attached, installed or used in relation to a vulnerable patient in circumstances described in subregulation (1)(b) the person in charge of the hospital or nursing home must give written notice of the attachment, installation or use to —

(a)if a guardian has been appointed for the patient under the Guardianship and Administration Act 1990, the guardian; or

(b)otherwise —

(i)the patient’s next of kin; or

(ii)if the patient’s next of kin is not known, the Public Advocate under the Guardianship and Administration Act 1990.

(4)In this regulation —

emergency service means —

(a)the police force of the State or of another State or a Territory;

(b)the Fire and Emergency Services Authority of Western Australia established by the Fire and Emergency Services Authority of Western Australia Act 1998 or an equivalent authority of another State or a Territory; or

(c)a voluntary or community rescue organisation;

hospitalhas the same meaning as in the Hospitals and Health Services Act 1927;

nursing home means a facility at which an approved provider (as defined in the Aged Care Act 1997 of the Commonwealth) provides residential care (as defined in that Act);

prison has the same meaning as in the Prisons Act 1981;

researcher means —

(a)a member of the staff of, or a student at, a school, college, university or other educational or training institution; or

(b)a member of the staff of, or person working for, a government agency, instrumentality or body;

superintendent has the same meaning as in the Prisons Act 1981;

vulnerable patient means a hospital patient or nursing home resident who, in the opinion of the person in charge of the hospital or nursing home —

(a)is likely, due to illness, lack of awareness or other incapacity, to leave the hospital or nursing home without having due regard to his or her health and safety;

(b)being under a legal obligation to remain in the hospital or nursing home, is likely to attempt to leave; or

(c)is likely to be taken away from the hospital or nursing home without the consent of the patient or the person in charge.

7.Storage and destruction of Part 5 records

(1)The Commissioner of Police, the Anti-Corruption Commission and the Australian Crime Commission must —

(a)keep every Part 5 record in a secure place in accordance with section 41(1)(a) of the Act as if it were a record obtained under a warrant; and

(b)destroy a Part 5 record when it would be required to do so under section 41(1)(b) of the Act if the Part 5 record were a record obtained under a warrant.

(2)The Commissioner of Police, the Anti-Corruption Commission and the Australian Crime Commission must keep such records concerning Part 5 records as are necessary to enable documents and information to be identified and obligations under this Act to be complied with.

(3)In this regulation —

Part 5 record means a record or report delivered to the police force, the Anti-Corruption Commission or the Australian Crime Commission in accordance with an order under section 31(3)(b) of the Act.

[Section 7 amended by No. 74 of 2004 s. 73(2).]

8.Annual reports

(1)The information relating to applications for warrants and extensions of warrants required by section 43 of the Act to be contained in an annual report is to include the number of such applications that were —

(a)withdrawn;

(b)made by the applicant on behalf of another law enforcement officer; and

(c)made by means other than filing a written application at the court.

(2)The information relating to applications for emergency authorizations required by section 43 of the Act to be contained in an annual report is to include the number of such applications that were withdrawn.

9.Unlawful possession of surveillance information

(1)A person who is unlawfully in possession of surveillance information commits an offence.

Penalty: $5 000

(2)It is lawful for a person to be in possession of surveillance information only if —

(a)the person is a law enforcement officer and has possession of the surveillance information in the course of his or her duty;

(b)the person is assisting a law enforcement officer in the exercise of the officer’s duty and has possession of the surveillance information in the course of providing that assistance;

(c)the surveillance information was obtained in accordance with Part 5 of the Act; or

(d)the surveillance information was obtained by the person —

(i)from a person who was lawfully in possession of that information; and

(ii)in circumstances where the publication or communication of the surveillance information to the person was not an offence under section 9 of the Act.

(3)In this regulation —

surveillance information means a report or record of a private conversation or private activity of a person, or of the geographical location of a person or object, that was obtained, directly or indirectly, through the use of a surveillance device.

 

Schedule 1 Forms

[r. 3]

No.

Form

Section of Act

1

Warrant

13, 14, 17, 19 and 22

2

Application for emergency authorization

21

3

Emergency authorization

21

4

Application for —

·tracking device warrant

·tracking device (maintenance/retrieval) warrant

15 and 19

 

Surveillance Devices Act 1998, ss. 13, 14, 17, 19 and 22

Warrant

 

o Supreme Court Judge

o Magistrate

At.........................................

 

Strike out any parts of this form that are not applicable

Person to whom warrant is issued

Name

oMember of police force

oAnti-Corruption Commission officer

oMember of staff of Australian Crime Commission

oWarrant issued on behalf of another law enforcement officer
(Name)

 

 

Person, object or premises

under surveillance

oPerson____________________________________________________

oUnknown person

oObject____________________________________________________

oPremises__________________________________________________

 

 

Offence

Offence_______________________________________________________

Act or Regulations______________________________________________

Section or regulation no.


 

 

Authority to use surveillance device

This warrant authorizes you —

oto attach or install, use, maintain and retrieve a —

olistening device

ooptical surveillance device

otracking device

oin relation to a tracking device attached to, or installed in, a vehicle, to —

omaintain the device

oretrieve the device

omaintain and retrieve the device

oto retrieve a —

olistening device

ooptical surveillance device

otracking device

attached or installed under an emergency authorization

The surveillance device may be attached or installed, used or maintained —

oin, on or at the premises under surveillance

oin or on the object under surveillance

oin respect of the private conversations, private activities or geographical location of the person under surveillance, at premises where the person is reasonably believed to be or is likely to be

oWhere practicable the surveillance device should be retrieved or rendered inoperable during the period that the warrant is in force

 

 

Authority to enter premises

This warrant authorizes you to enter, by force if necessary —

o(specified premises) __________________________________

_____________________________________________________

oany premises where the object or person under surveillance is reasonably believed to be or is likely to be and any premises adjoining or providing access to those premises

oany premises where the vehicle on or in which the device is attached or installed may for the time being be

oany premises where the surveillance device to be retrieved may for the time being be

 

 

Authority to use electricity supply

oThis warrant authorizes you to connect the surveillance device to an electricity supply system and to use electricity from that system to operate the device

 

 

 

Authority to remove vehicle

oThis warrant authorizes you to temporarily remove this vehicle from this premises for the purpose of —

oattaching oinstalling

omaintainingoretrieving

a tracking device

Vehicle

Premises______________________________________________________

 

You must return the vehicle to the premises when the device has been attached, installed, maintained or retrieved

 

 

Period of warrant

___/___/______ to ___/___/______, being ___________________days

The warrant may be used at any time of the day or night

 

 

Conditions

This warrant is subject to these conditions

 

 

 

 

 

 

 

 

 

 

 

 

Issue of warrant

Signature


Judge / Magistrate

DateTime

 


Surveillance Devices Act 1998, s. 21

Application for emergency authorization

 

 

 

Strike out any parts of this form that are not applicable

Applicant

Name

Business address

Postcode

Phone no.

oMember of police force

oAnti-Corruption Commission officer

oMember of staff of Australian Crime Commission

 

 

Person, object or premises under surveillance

oPerson______________________________________________

oUnknown person

oObject______________________________________________

oPremises____________________________________________

 


 

Action for which authorization
is required

Authorization is required to —

oattach or installouseomaintain

oa listening device to record, monitor, or listen to a private conversation

oan optical surveillance device to record visually or observe a private activity

oa tracking device to determine the geographical location of a person or object

in relation to the —

opremises under surveillance

oobject under surveillance

operson under surveillance

oretrieve —

oa listening device

oan optical surveillance device

oa tracking device


 

 

Grounds

Imminent threat

oThreat of serious violence to a person

Name______________________________________________

oThreat of substantial damage to property

Description

 

Grounds cont.

Drug offence or ACC scheduled offence

oIndictable drug offence

Relevant section of Misuse of Drugs Act 1981 —

o 6(1)o 7(1)o 33(1)(a)o 33(2)(a)

oExternal indictable drug offence

External law ________________________________________

Corresponding section of Misuse of Drugs Act 1981 —

o 6(1)o 7(1)o 33(1)(a)o 33(2)(a)

oACC Scheduled offence

Offence_____________________________________________

Relevant Act_________________________________________

section

 

The offence —

ohas been committedomay have been committed
ois being committedois about to be committed
ois likely to be committed

Date offence committed or expected to be committed

The use of the surveillance device is immediately necessary for the purpose of —

odealing with the threat

oinvestigating the offence

oenabling evidence to be obtained of —

othe commission of the offence

othe identity of the offender

othe location of the offender

These factors make the circumstances serious___________________

_______________________________________________________

_______________________________________________________

_______________________________________________________

These factors make the matter urgent _________________________

_______________________________________________________

_______________________________________________________

 

Reasons an application under section 15 or 16 for a warrant is not practicable ______________________________________________

_______________________________________________________

 

 

Grounds cont.

Retrieval to avoid jeopardizing investigation of drug offence

oIndictable drug offence

Relevant section of Misuse of Drugs Act 1981 —

o 6(1)o 7(1)o 33(1)(a)o 33(2)(a)

oExternal indictable drug offence

External law: __________________________________________

Corresponding section of Misuse of Drugs Act 1981 —

o 6(1)o 7(1)o 33(1)(a)o 33(2)(a)

These factors make the circumstances serious______________________

__________________________________________________________

__________________________________________________________

These factors make the matter urgent ____________________________

__________________________________________________________

 

Reasons an application under section 22 for a warrant is not practicable_

__________________________________________________________

 

 

 

Entry to premises

Entry, by force if necessary, is required to —

o(specified premises) _________________________________

__________________________________________________

oany premises where the object or person under surveillance is reasonably believed to be or is likely to be and any premises adjoining or providing access to those premises

 

 

Use of electricity supply

oAuthorization is required to connect the surveillance device to an electricity supply system and use electricity from that system to operate the device

 

 

Removal of vehicle

oAuthorization is required to temporarily remove a vehicle from a premises for the purpose of —

oattaching oinstalling

omaintainingoretrieving

a tracking device

Vehicle

Premises___________________________________________________

 

 

 

Period of authorization

Period for which authorization is required ____________________days

Reason this period is required__________________________________

__________________________________________________________

 

 

 

Signature of applicant


Date




Surveillance Devices Act 1998, s. 21

Emergency authorization

 

 

 

Strike out any parts of this form that are not applicable

Authorized person

Name

oCommissioner of Police

oDeputy Commissioner of Police

oAssistant Commissioner of Police

oAnti-Corruption Commission officer authorized by —

oChairman of the Anti-Corruption Commission

o2 members of the Anti-Corruption Commission

oPerson authorized by Chair of Board of Australian Crime Commission

 

 

Person to whom authorization is issued

Name

oMember of the police force

oAnti-Corruption Commission officer

oMember of staff of Australian Crime Commission

 

 

Person, object or premises

under surveillance

oPerson_______________________________________________

oUnknown person

oObject_______________________________________________

oPremises_____________________________________________

 


 

Authorization to use surveillance device

This authorization authorizes you to —

oattach or installouseomaintain

oa listening device to record, monitor, or listen to a private conversation

oan optical surveillance device to record visually or observe a private activity

oa tracking device to determine the geographical location of a person or object

in relation to the —

opremises under surveillance

oobject under surveillance

operson under surveillance

oretrieve —

oa listening device

oan optical surveillance device

oa tracking device

 

 

Authority to enter premises

Entry, by force if necessary, is required to —

o(specified premises) __________________________________

________________________________________________

oany premises where the object or person under surveillance is reasonably believed to be or is likely to be and any premises adjoining or providing access to those premises

 

 

Authority to use electricity supply

oThis authorization authorizes you to connect the surveillance device to an electricity supply system and to use electricity from that system to operate the device.

 

 

Authority to remove vehicle

 

oThis authorization authorizes you to temporarily remove this vehicle from this premises for the purpose of —

oattaching oinstalling

omaintainingoretrieving

a tracking device

Vehicle

Premises_________________________________________________

 

You must return the vehicle to the premises when the device has been attached, installed, maintained or retrieved

 

 

Period of authorization

___/___/______ to ___/___/______, being ______________days

The authorization may be used at any time of the day or night

 

 

Conditions

This authorization is subject to these conditions

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Authorized person(s)

Signature


DateTime

Signature


DateTime

 


Surveillance Devices Act 1998, ss. 15 and 19

Application for —

·tracking device warrant

·tracking device (maintenance/retrieval) warrant

Strike out any parts of this form that are not applicable

Applicant

Name

Business address

Postcode

Phone no.

oMember of police force

oAnti-Corruption Commission officer

oMember of staff of Australian Crime Commission

oApplication is made on behalf of another law enforcement officer (Name)


 

Person, object or premises under surveillance

oPerson (see note 1)_______________________________________________

oUnknown person

oObject _____________________________________________

oPremises____________________________________________

 

 

 

Nature of warrant

oTracking device warrant (s. 13)

oTracking device (maintenance/retrieval) warrant (s. 14) to —

omaintain a tracking device

oretrieve a tracking device

omaintain and retrieve a tracking device

oNew warrantoExtension of current warrant

 

 

Period of warrant

Period for which warrant is required ______________________days

Reason this period is required_______________________________

_______________________________________________________

 


 

Grounds


Tracking device warrant (s. 13)

Offence

Act or Regulations

Section or regulation no.

The offence —

ohas been committedomay have been committed
ois being committedois about to be committed
ois likely to be committed

Date offence committed or expected to be committed

The use of a surveillance device would be likely to —

oassist an investigation into the offence

oenable evidence to be obtained of —

othe commission of the offence

othe identity of the offender

othe location of the offender

Tracking device (maintenance/retrieval) warrant (s. 14)

Vehicle

Location when device installed______________________________

Current location

Person who installed device ________________________________

oMember of police force

oAnti-Corruption Commission officer

oMember of staff of National Crime Authority

oMember of prescribed class of persons

Specify class ________________________________________

 

 

Entry to premises

Entry, by force if necessary, is required to —

o(specified premises) __________________________________

_______________________________________________

oany premises where the object or person under surveillance is reasonably believed to be or is likely to be and any premises adjoining or providing access to those premises

oany premises where the vehicle on or in which the device is attached or installed may for the time being be

oany premises where the surveillance device to be retrieved may for the time being be

 

 

Use of electricity supply

oAuthority is required to connect the surveillance device to an electricity supply system and use electricity from that system to operate the device

 

 

Removal of vehicle

 

oAuthority is required to temporarily remove a vehicle from a premises for the purpose of  —

oattaching oinstalling

omaintainingoretrieving

a tracking device

Vehicle

Premises________________________________________________

 

 

 

Signature of applicant


Date

 

 

 

 

 

 

Note 1 — Identification of person under surveillance

The person under surveillance may be identified by a numerical reference identifying the relevant law enforcement agency and the year in which the application is made.

For example —WAPS 1/1999 (for the first application in 1999 by a member of the WA police force)

 

 

Note 2 — Lodging of Application for warrant

The application is to be lodged with the Magistrate.

An application must be accompanied by —

·an “Authorization of surveillance”; and

·an affidavit containing a “Statement of facts in support of application for warrant”

in accordance with Surveillance Devices Act 1998, s. 15(3)(a), (b), (c) and (f).

An application should also be accompanied by a draft warrant in the form of the warrant being sought.

[Schedule 1 amended in Gazette 8 February 2000 pp.458-60; amended by No. 74 of 2004 s. 73(3) and (4).]

 

Notes

1This is a compilation of the Surveillance Devices Regulations 1999 and includes the amendments made by the other written laws referred to in the following table.

Compilation table

Citation

Gazettal

Commencement

Surveillance Devices Regulations 1999

18 Nov 1999 p. 5769-86

22 Nov 1999 (see r. 2 and Gazette 22 Nov 1999 p. 5843)

Surveillance Devices Amendment Regulations 1999

8 Feb 2000 p. 457-60

8 Feb 2000

Australian Crime Commission (Western Australia) Act 2004 s. 73 assented on 8 Dec 2004

1 Feb 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7130)

Surveillance Devices Amendment Regulations 2005

23 Sep 2005 p. 4363

23 Sep 2005