Surveillance Devices Regulations 1999

Western Australia

Surveillance Devices Act 1998

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, or such other form as the Commissioner of Police approves.

(3)An emergency authorization issued under section 21 of the Act is to be in the form of Form 3 in Schedule 1, or such other form as the authorised person issuing the authorisation approves.

(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, or such other form as the Commissioner of Police approves.

[Regulation 3 amended in Gazette 8 Feb 2000 p. 458; 5 May 2006 p. 1735.]

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;

“hospital” has 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 Corruption and Crime 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 Corruption and Crime 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 Corruption and Crime Commission or the Australian Crime Commission in accordance with an order under section 31(3)(b) of the Act.

[Regulation 7 amended by No. 74 of 2004 s. 73(2); amended in Gazette 5 May 2006 p. 1736.]

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 oOfficer of the Corruption and Crime Commission 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
Period of warrant	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 oOfficer of the Corruption and Crime Commission 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.	Offence
Grounds cont.	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) oOffence punishable by 2 or more years imprisonment 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 oOfficer of the Corruption and Crime Commission oPerson authorized by Chair of Board of Australian Crime Commission

Person to whom authorization is issued		Name
		oMember of the police force oOfficer of the Corruption and Crime Commission 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 oOfficer of the Corruption and Crime Commission 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
Nature of warrant	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 oOfficer of the Corruption and Crime Commission 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 Feb 2000 p. 458-60; 5 May 2006 p. 1736; 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
Surveillance Devices Amendment Regulations 2006	5 May 2006 p. 1735‑6	5 May 2006