Senate

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)

General outline

The Surveillance Devices Bill 2004 will add to and strengthen a legislative regime which has, to date, consisted of a piecemeal combination of State and Commonwealth legislation and common law principles. Legislation at a federal level, namely the Customs Act 1901 and the Australian Federal Police Act 1979, is outdated and inadequate in the face of progressively complex and covert criminal activity.

The Bill is broadly based on the model surveillance device laws developed by the Joint Working Group on National Investigation Powers.

The Bill does not prohibit the use of surveillance devices, but merely establishes a structured process for their use, where such use would ordinarily be prohibited under a State or Territory law.

Surveillances devices are data surveillance devices, listening devices, optical surveillance devices and tracking devices. Surveillance devices may be used by officers from the AFP, the ACC, State and Territory police forces and non-police agencies such as the New South Wales Crime Commission for the investigation of Commonwealth offences which carry a maximum penalty of at least three years imprisonment. These devices may also be used to assist in the safe recovery of a child who is the subject of a recovery order or an order for a warrant of apprehension or detention of a child, for example when a child has been unlawfully removed from Australia to another country. The AFP and the ACC may also use them to investigate a State offence which has a federal aspect which meets the three year penalty threshold.

Surveillance devices may also be used for certain offences against the Fisheries Management Act 1991, such as the illegal fishing of Patagonian tooth fish, although these offences do not carry terms of imprisonment. Surveillance devices may also be used for offences under sections 15 and 18 of the Financial Transaction Reports Act 1988 (FTR Act), which relate to the failure to declare the import or export of money in excess of A$10,000 and operating an account with a cash dealer in a false name. The FTR offences carry a two year term of imprisonment but are included in the Bill as often, they are indicative of more serious underlying conduct.

Data surveillance devices and listening devices may only be used with a warrant issued by a judge or an AAT member unless special circumstances of urgency exist involving a serious risk to a person or property, urgent circumstances relating to the recovery of a child or where there is a risk of loss of evidence for certain listed offences such as drug offences, terrorism, espionage, sexual servitude and aggravated people smuggling offences. In such cases, a member of the agency of at least SES level may issue an emergency authorisation. The use of a surveillance device under such an authorisation must be retrospectively approved by a judge or AAT member within 48 hours of the issue of the authorisation.

Tracking devices generally also require a warrant to be issued unless the device can be installed and retrieved without entering premises, or interfering with a vehicle, without permission. In such cases a member of the law enforcement agency of at least SES level can give permission for the use of the device.

Optical surveillance devices can be used for the performance of the functions of the AFP and the ACC without a warrant in similar circumstances.

The Bill allows the use of surveillance devices for the investigation of Commonwealth offences occurring outside Australia. With the exception of the investigation of certain offences in the contiguous and fishing zones, the consent of an appropriate official of the foreign country or the country of registration of the vessel or aircraft is required before use of the surveillance device can be lawful.

The Bill establishes a strict regime, similar to that in the Telecommunications (Interception) Act 1979, to regulate the uses to which surveillance device product is put, its communication, publication, storage, and destruction. The Bill establishes a vigorous reporting and inspection regime which allows for scrutiny of the exercise of powers under the Bill by the Ombudsman, the Attorney-General and the Parliament.

Financial Impact Statement

The Surveillance Devices Bill 2004 has expenditure implications for the Commonwealth as it enables law enforcement agencies to use a wider range of technology for the investigation of a broader range of offences. The Bill also imposes new inspection obligations on the Ombudsman.

In the 2004-2005 Budget cycle, the Government allocated $14.5 million over four years to the Australian Federal Police and the Australian Crime Commission to enable them to use the new surveillance device powers provided in the Bill more effectively. In addition, $2.8 million over four years will be provided to the Commonwealth Ombudsman and the Administrative Appeals Tribunal in support of these new powers. These Budget measures are contingent upon the passage of the Surveillance Devices Bill 2004.

Abbreviations used in the Explanatory Memorandum