Page 706 - Week 02 - Thursday, 25 February 2010
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corresponding laws. The legislation also contains mutual recognition provisions to ensure that in jurisdictions that adopt the model these warrants will be recognised and have effect.
There are four types of surveillance devices that the bill covers: data surveillance devices, listening devices, optical surveillance devices and tracking devices.
The bill broadly defines a data surveillance device as a device, equipment or program that is capable of being used to record or monitor the information sent or received by a computer, as well as a device that can record or monitor data entered into or received by computer. A listening device is defined as a device that monitors and records conversations and other audio emissions in the open air. An optical surveillance device is defined as a device that includes cameras, video recorders and other devices that permit an image to be seen and/or recorded. A tracking device is defined in the bill as a device that emits a signal that allows the movement of a vehicle or object to which it is attached to be monitored.
Before law enforcement agencies can place a surveillance device, they must first secure a warrant to do so. The bill establishes a procedure for law enforcement officers to obtain warrants for installing and using surveillance devices in cross-border criminal investigations, and for the removal of such devices.
There are two types of warrants that may be used: a surveillance device warrant and a retrieval warrant. In addition, a warrant may be issued in relation to one or more kinds of surveillance devices. For simplicity, one warrant can be sought to authorise a number of devices or composite devices, rather than requiring a separate warrant for each device.
Applications for warrants are made to a Supreme Court judge for any type of surveillance device warrant, and to a magistrate for a warrant for the use of a tracking device or a retrieval warrant for a tracking device.
The bill treats tracking devices differently because they involve less intrusion upon privacy in comparison with other forms of surveillance devices. In addition, the option of either a judge or magistrate provides law enforcement agencies with greater access to judicial officers in the case of obtaining tracking devices warrants, which may assist in circumstances where a warrant is needed urgently at short notice.
In adopting the model laws on surveillance devices, the ACT will be taking responsibility for legislating to govern the issue and use of electronic surveillance device warrants in the ACT. Currently, the ACT relies on the issue of these warrants under division 2 of part II of the commonwealth’s Australian Federal Police Act 1979 that has been repealed as far as the commonwealth is concerned but still applies to the ACT for the use of listening devices in respect of offences against the law of the territory.
In order for police to investigate crime, they must be given effective powers. Setting out cross-border investigative powers in legislation provides law enforcement agencies with clear parameters and promotes transparency and certainty about the extent of those powers.
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