Private Communication
a) means communication (whether written or oral or telecommunication or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication
But
b) does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having express or implies consent of any party to do so
Interception Device
a) Means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication)
but
b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing
Visual Surveillance Device
a) means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity
but
b) does not include spectacles, contact lenses, or similar device used to correct subnormal vision of the user to no better than normal vision.
Visual Trespass Surveillance
Not defined in act but taken as:
trespass surveillance involving the use of a visual surveillance device
Surveillance device
Means a device that is any 1 or more if the following kinds of devices:
a) an interception Device
b) a tracking device
c) a visual surveillance device
Tracking Device
a) means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
i- the location of a thing or person
ii- wether a thing has been opened, tampered with or in some other way dealt with
But
b) does not include a vehicle or other means of transport, such as a boat or helicopter
Surveillance (broad meaning)
- Observing and any recording of that observation, of people, vehicles, places and things
- Ascertaining (tracking) the location of a thing or person and/or ascertaining whether a thing has been tampered with
- intercepting a private communication through the use of a ‘surveillance device’
Surveillance device (broad)
Such a device assists and enhances your normal capabilities to carry out the surveillance.
- A visual surveillance device assists you to observe and/or record
- An interception device assists you to hear and/or record
- A tracking device assists you to locate a person or thing or ascertain whether anything has been handled
Serious offence in relation to trespass surveillance and interception device
7 years imprisonment or more or certain sections of Arms Act
Search & Surveillance 2012
Section 46
Activities for which surveillance device warrant required
(1) Except as provided in sections 47 & 48, an enforcement officer who wishes to undertake any 1 or more of the following activities must obtain a surveillance device warrant:
a) use of an interception device to intercept a private communication
b) use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with or in some way dealt with, and installation of the device does not involve trespass to land or goods
c) Observation of private activity in private premises and any recording of that observation by means of a visual surveillance device
d) use of a surveillance device that involves trespass to land or to goods
e) observation of private activity in the curtilage of private premises and any recording of that observation, if any of the observation or recording is by means of visual surveillance device and duration of the observation, for the purpose of a single investigation , or a connected series of investigations exceeds
i) 3hours in any 24hour period
or
ii) 8 hours in total
Search & Surveillance Act 2012
Section 47
Activities that do not require a warrant
a) the enforcement officer -
i) being lawfully in private premises
and
ii) recording what he or she observes or hears there (provided the officer records only those matters that they could see or hear without the use of a surveillance device)
b) covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them
d`) activities carried out by the enforcement officer’s use of a surveillance device, if that use is authorised under any enactment other than this Act
Restrictions on use of interception device
section 45
to obtain evidential material for serious offences only.
- offences punishable by 7 years imprisonment or more
- certain Arms Act 1983 offences
Search & Surveillance Act 2012
Section 48
Situations of emergency
Authorises Police to use a Surveillance device without warrant in situations of emergency or urgency where the offence is:
- Punishable by 14 years imprisonment or more
- an Arms Act 1983 offence
- a drug offence
- likely to cause injury or serious property damage or loss and surveillance is necessary to prevent offending from being committed or continuing
- presenting risk to life and safety and surveillance is necessary as an emergency response
Specific provisions relating to drug offences in situations of emergency Section 48(2)(e)
The enforcement officer has reasonable grounds-
i) to SUSPECT that an offence has been or is being committed or is about to be committed in relation to a controlled drug specified or described in schedule 1, part 1 of schedule 2 or part 1 of schedule 3 of the misuse of drugs act 1975, or precursor as specified in part 3 and 4 of the act
and
ii) to BELIEVE that use of the surveillance device would obtain evidential material in relation to the offence
Search & Surveillance Act 2012
Section 48
Timeframe
The surveillance device cannot be used for more than 48 hours without warrant in these situations
R v McGinty
The evidence in the present case of continued heroin dealing, in respect of which the orthodox techniques such as searching premises and following vehicles had been tried without success, was sufficient. A judge was not required to refuse a warrant because the Police had not exhausted every conceivable alternative technique of investigation
Search & Surveillance Act 2012
Section 57
Admissibility of evidential material relevant to other offences
A person obtains any evidential material in relation to an offence
a) that is not the offence in respect of which the warrant was issued or in respect of which the surveillance device was lawfully put into use, as the case requires
but
b) in respect of which a surveillance device warrant could have been issued or a surveillance device could have been lawfully used
Search & Surveillance Act 2012
Section 51
Conditions for issuing Surveillance Device warrant
a) There are reasonable grounds -
i) TO SUSPECT that an offence has, is or will be committed in
and
ii) TO BELIEVE that the proposed use of the surveillance device will obtain information that is evidential material in respect of the offence
and
b) the restrictions in section 45 do not prevent the issuing of a surveillance device warrant in the circumstances
R v McGinty
Informants
Disclosure of the identity of alleged informants was not required under the Act and the trial Judge was correct in deleting from the application certain parts which would have been likely to lead to the identification of informants. However, the trial Judge was entitled to insit on disclosure if he saw fit.
Evidence Act 2006
Section 64
-Informants
- has privilege in respect of information that would disclose their identity
- supplied information with reasonable expectation that their identity will not be disclosed
- is not called as as witness by prosecution
Search & Surveillance Act 2012
Section 49
Application must contain certain particulars
- name of applicant
- provision authorising application
- grounds for application
- suspected offence
- type of surveillance device
- name address or description of person, thing, place etc that is object of surveillance
- description of evidential material believed to be able to be obtained
- period for warrant sought
- any previous applications made within last 3 months and results
Search & Surveillance Act 2012
Section 59
Provide report
Must provide a report within 1 month of warrant expiring to the Judge who issued the warrant or a Judge of the same Court.
- whether evidence obtained
- circumstances in which device was used
- any criminal proceedings have been brought or are under consideration
Search & Surveillance Act 2012
Section 60
Reporting on use of surveillance device in situation of urgency or emergency
- within 1 month
- any evidential material
- preventing offending or averting emergency
- facilitating the seizure of arms
- circumstances in which device used
Search & Surveillance Act 2012
Sections 61 and 62
actions Judge may take on receipt of report (59 to 61) (60 to 62)
