Counter-Terrorism Legislation Amendment Act (No. 1) 2016 (82 of 2016)

Schedule 10   Surveillance devices

Surveillance Devices Act 2004

45   After section 65

Insert:

65A Protection of persons - control order declared to be void

Control order warrant

(1) If:

(a) a control order warrant was issued on the basis that an interim control order was in force; and

(b) a court subsequently declares the interim control order to be void;

a criminal proceeding does not lie against a person in respect of anything done, or omitted to be done, in good faith by the person:

(c) in the purported execution of the warrant; or

(d) in the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.

(2) Subsection (1) does not apply to a thing done, or omitted to be done, at a particular time if, at that time, the person knew, or ought reasonably to have known, of the declaration.

Tracking device authorisation

(3) If:

(a) a tracking device authorisation was given on the basis that an interim control order was in force; and

(b) a court subsequently declares the interim control order to be void;

a criminal proceeding does not lie against a person in respect of anything done, or omitted to be done, in good faith by the person:

(c) in the purported execution of the authorisation; or

(d) in the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the authorisation.

(4) Subsection (3) does not apply to a thing done, or omitted to be done, at a particular time if, at that time, the person knew, or ought reasonably to have known, of the declaration.

Use of device without warrant

(5) If:

(a) an optical surveillance device was used under subsection 37(4) on the basis that an interim control order was in force; and

(b) a court subsequently declares the interim control order to be void;

a criminal proceeding does not lie against a person in respect of anything done, or omitted to be done, in good faith by the person:

(c) in the purported exercise of the power conferred by subsection 37(4); or

(d) in the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the purported exercise of the power conferred by subsection 37(4).

(6) Subsection (5) does not apply to a thing done, or omitted to be done, at a particular time if, at that time, the person knew, or ought reasonably to have known, of the declaration.

(7) If:

(a) a surveillance device was used under subsection 38(3A) or (6) on the basis that an interim control order was in force; and

(b) a court subsequently declares the interim control order to be void;

a criminal proceeding does not lie against a person in respect of anything done, or omitted to be done, in good faith by the person:

(c) in the purported exercise of the power conferred by subsection 38(3A) or (6), as the case requires; or

(d) in the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the purported exercise of the power conferred by subsection 38(3A) or (6), as the case requires.

(8) Subsection (7) does not apply to a thing done, or omitted to be done, at a particular time if, at that time, the person knew, or ought reasonably to have known, of the declaration.

65B Dealing with information obtained under a control order warrant, tracking device authorisation etc. - control order declared to be void

Scope

(1) This section applies if:

(a) any of the following conditions is satisfied:

(i) a control order warrant was issued on the basis that an interim control order was in force;

(ii) a tracking device authorisation was given on the basis that an interim control order was in force;

(iii) an optical surveillance device was used under subsection 37(4) on the basis that an interim control order was in force;

(iv) a surveillance device was used under subsection 38(3A) or (6) on the basis that an interim control order was in force; and

(b) a court subsequently declares the interim control order to be void; and

(c) if subparagraph (a)(i) applies - before the declaration was made, information was obtained as a result of:

(i) the purported execution of the warrant; or

(ii) the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant; and

(d) if subparagraph (a)(ii) applies - before the declaration was made, information was obtained as a result of:

(i) the purported execution of the authorisation; or

(ii) the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the authorisation; and

(e) if subparagraph (a)(iii) applies - before the declaration was made, information was obtained as a result of:

(i) the purported exercise of the power conferred by subsection 37(4); or

(ii) the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the purported exercise of the power conferred by subsection 37(4); and

(f) if subparagraph (a)(iv) applies - before the declaration was made, information was obtained as a result of:

(i) the purported exercise of the power conferred by subsection 38(3A) or (6), as the case requires; or

(ii) the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the purported exercise of the power conferred by subsection 38(3A) or (6), as the case requires.

Dealing

(2) A person may use, communicate or publish the information if:

(a) the person reasonably believes that doing so is necessary to assist in preventing, or reducing the risk, of:

(i) the commission of a terrorist act; or

(ii) serious harm to a person; or

(iii) serious damage to property; or

(b) the person does so for one or more purposes set out in subsection (4).

Evidence

(3) The information may be admitted in evidence in any proceedings if:

(a) doing so is necessary to assist in preventing, or reducing the risk, of:

(i) the commission of a terrorist act; or

(ii) serious harm to a person; or

(iii) serious damage to property; or

(b) it is admitted for one or more purposes set out in subsection (4).

Purposes

(4) The purposes are purposes connected with the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, a preventative detention order law, so far as the function, duty or power relates to a preventative detention order (within the meaning of that preventative detention order law).

Definition

(5) In this section:

serious harm has the same meaning as in the Criminal Code.