FOR OFFICIAL USE ONLY
STANDARD OPERATING
PROCEDURE
SURVEILLANCE DEVICE WARRANTS
APPROVED: 23 March 2016
RESPONSIBILITY: Legal
CURRENT VERSION: 2
FOR OFFICIAL USE ONLY
SURVEILLANCE DEVICES WARRANTS AND AUTHORISATIONS
Relevant Legislation and Other Links
Surveillance Devices Act 2004 (Cth) (‘SD Act’)
Telecommunications (Interception and Access) Act 1979 (Cth) (‘TIA Act’)
Law Enforcement Integrity Commissioner Act 2006 (Cth) (‘LEIC Act’)
Crimes Act 1914 (Cth) , specifically integrity testing provisions in Part 1ABA.
Where relevant, this Standard Operating Procedure (SOP) refers to specific provisions of the
legislation. Unless otherwise indicated, such references are to sections of the SD Act.
Previous Versions
Version 1 – Effective date July 2010
Version 2 – Effective date November 2014
Approval
This Standard Operating Procedure is approved.
_________________________________
Michael Griffin AM
Integrity Commissioner
March 2016
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Templates
Warrants
Surveillance device warrant – application template
Surveillance device warrant – affidavit template
Revocation of warrant – minute to IC
Affidavit – extension – relevant offence
Affidavit – variation – relevant offence
14#10283DOC
16#2421DOC
14#7594DOC
15#9036DOC
15#9037DOC
Other
Evidentiary certificate
Record keeping log – section 45
Section 49 report
Section 49 report – Minute to IC
Section 49 report – Letter to AGD
Retention of protected material – section 46 - minute to IC
Destruction of SD material – section 46 – minute to IC
SURVEILLANCE DEVICE WARRANTS
14#6650DOC
14#4534DOC
14#3178DOC
14#3262DOC
14#3261DOC
14#1657DOC
15#3055DOC
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Contents
1.0
PURPOSE ..................................................................................................................6
2.0
BACKGROUND ..........................................................................................................6
3.0
RELEVANT LEGISLATION .........................................................................................6
3.1
What is a surveillance device .................................................................................6
3.2
Lawful use of a surveillance device without a warrant ............................................7
3.3
Who is eligible to apply? ........................................................................................7
3.4
Threshold for issue of a warrant.............................................................................8
3.5
Form of Application ................................................................................................9
3.6
What does a warrant authorise? ............................................................................9
4.0
TYPES OF WARRANTS .............................................................................................9
5.0
ROUTINE APPLICATIONS .......................................................................................10
5.1
Consultation.........................................................................................................10
5.2
Application process..............................................................................................10
5.3
Satisfying the threshold for issue of a warrant......................................................12
6.0
REMOTE AUTHORISATION ....................................................................................12
7.0
APPLICATIONS IN ANOTHER STATE .....................................................................12
8.0
EMERGENCY AUTHORISATIONS ..........................................................................13
8.1
Threshold for emergency authorisations ..............................................................13
8.2
Who may issue emergency authorisations ...........................................................13
8.3
Process ...............................................................................................................13
9.0
USE OF A SURVEILLANCE DEVICE WITHOUT A WARRANT ...............................14
9.1
General................................................................................................................14
9.2
Optical surveillance device ..................................................................................14
9.3
Listening device ...................................................................................................15
9.4
Tracking device ...................................................................................................15
10.0
DUAL APPLICATIONS .............................................................................................15
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10.1
General................................................................................................................15
10.2
Process ...............................................................................................................15
11.0
DURATION OF A WARRANT ...................................................................................16
11.1
General................................................................................................................16
11.2
Extension .............................................................................................................16
11.3
Variation of a warrant ...........................................................................................16
11.4
Revocation of a warrant by Issuing Officer ...........................................................17
11.5
Revocation of a warrant by the Integrity Commissioner .......................................17
12.0
RETRIEVAL WARRANTS .........................................................................................17
12.1
General................................................................................................................17
12.2
Process ...............................................................................................................18
13.0
PROTECTED INFORMATION ..................................................................................18
13.1
General................................................................................................................18
13.2
Offences ..............................................................................................................18
13.3
Permitted use and dealing under SD Act .............................................................19
13.4
Use and dealing under the LEIC Act ....................................................................19
13.5
Recording communication of material ..................................................................20
14.0
EVIDENTIARY CERTIFICATES................................................................................20
14.1
General................................................................................................................20
14.2
Notice to defendant and cross-examination .........................................................20
15.0
RECORD KEEPING..................................................................................................21
15.1
What must be kept ...............................................................................................21
15.2
Storage and destruction .......................................................................................21
16.0
REPORTING.............................................................................................................22
16.1
Report to Minister for each warrant ......................................................................22
16.2
Annual report by the Integrity Commissioner to the Minister for Justice ...............23
17.0
INSPECTIONS BY THE OMBUDSMAN ....................................................................23
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1.0
PURPOSE
The Parliament of Australia has provided the Integrity Commissioner (IC) and the
Australian Commission for Law Enforcement Integrity (ACLEI) with sensitive, covert
law enforcement powers. The use of these powers has the potential to affect privacy
and other liberties of individuals.
To protect the legal rights of all parties, including ACLEI, this Standard Operating
Procedure (SOP) aims to ensure that:



2.0
the use of surveillance devices is conducted in strict accordance with the law,
such operations are demonstrably fair, and
appropriate records are kept to meet transparency and accountability
requirements.
BACKGROUND
The use of surveillance devices can provide important evidence in an ACLEI
investigation, allowing investigators to collect information covertly on a subject’s
movements and activities. However, the use of surveillance devices has the potential
to interfere with an individual’s privacy to a high degree and must be justified in every
instance.
The Surveillance Devices Act 2004 (Cth) (SD Act) creates a regime for the lawful
collection of information by way of surveillance devices. It imposes a scheme of
warrants, record keeping and reporting which ensures that the use of a surveillance
device is measured and justified, and that material collected is managed securely to
mitigate any privacy intrusions.
It is critical that the procedures set out in the SD Act are adhered to in order to ensure
ACLEI staff members are acting within their legal authority, and that any material
collected may be admitted as evidence where appropriate.
3.0
3.1
RELEVANT LEGISLATION
What is a surveillance device
The SD Act creates a framework for the use of surveillance devices by Commonwealth
law enforcement agencies. A ‘surveillance device’ (SD) is defined as:
(a)
a data surveillance device (a device or program that records or
monitors computer inputs and outputs)
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(b)
(c)
(d)
(e)
(f)
3.2
a listening device (a device allowing a person to overhear, record,
monitor or listen to a conversation)
an optical surveillance device ( a device enabling a person to record
visually or observe an activity)
a tracking device (a device used to determine or monitor the location of
a person or object or the status of an object);
a device that combines any two or more of items (a) to (d) (for
example, a camera that records both vision and sound), or
a device prescribed by the regulations1.
Lawful use of a surveillance device without a warrant
Generally, a law enforcement agency will require a warrant to use a surveillance
device in the course of a corruption investigation. An SD warrant is issued by an
eligible judge or a nominated member of the Administrative Appeals Tribunal2.
However, a warrant will not be necessary in the following circumstances:
(a)
If the use of the surveillance device is lawful under Part 4 of the SD
Act, ie:
i.
ii.
iii.
(b)
3.3
use of an optical surveillance device without entering premises
or interfering with a vehicle or thing (s 37)
use of a listening device if present at or a party to a
conversation (s 38)
use and retrieval of a tracking device in relation to certain
offences and in child recovery when approved by an
“appropriate authorising officer3” (s 39), or
an emergency authorisation is given by an “appropriate authorising
officer” (ss 28-30), subject to later approval by an eligible judge or
nominated AAT member (ss 33-35).4
Who is eligible to apply?
A ‘Law Enforcement Officer’ may apply for an SD warrant. ‘Law Enforcement Officer’
is defined to mean the Integrity Commissioner, Assistant Integrity Commissioner or a
staff member authorised under section 6B. For a list of the current ACLEI staff
members who have s 6B authorisations refer to the Intranet.
1
No regulations have been made.
In this SOP, for convenience, the judge or AAT member is referred to as “the Issuing Officer”.
3 The Integrity Commissioner, an Assistant Integrity Commissioner or an ACLEI SES officer authorised by the
Integrity Commissioner (s 6A(2)).
4 See also chapter 9 of this SOP for a more complete discussion of this issue.
2
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3.4
Threshold for issue of a warrant
So far as may relate to ACLEI, an application for an SD warrant can be for:
(a)
(b)
the investigation of a ‘relevant offence’, or
an integrity testing operation or integrity testing controlled operation
under the Crimes Act 1914.
A ‘relevant offence’ is defined in section 6(1) of the SD Act to be a Commonwealth
offence, or a State offence with a federal aspect, that is punishable by imprisonment
for a minimum of three years, or an offence otherwise prescribed in section 6(1) or by
regulations.
For an SD warrant to be issued for the investigation of a relevant offence, an applicant
must satisfy an eligible judge or nominated AAT member, by material set out in an
affidavit supporting the application5, that the applicant has reasonable grounds to
suspect that:6
(a)
(b)
(c)
one or more relevant offences have been, are being, are about to be,
or are likely to be, committed,
an investigation into those offences is being, will be, or is likely to be,
conducted, and
the use of a surveillance device is necessary in the course of the
investigation for the purpose of enabling evidence to be obtained of the
commission of the relevant offences or the identity or location of the
offenders.
For an SD warrant to be issued for an integrity testing operation an applicant must
satisfy an eligible judge or AAT member, by material set out in an affidavit supporting
the application7, that:
(a)
(b)
an ‘integrity authority’— i.e. an integrity testing controlled operation
authority (under Part IAB of the Crimes Act 1914) or an integrity testing
authority (issued under Part IABA of the Crimes Act 1914)—is in effect
in relation to an offence that it is suspected has been, is being or is
likely to be committed by a staff member of a target agency, and
the applicant has reasonable grounds to suspect that the use of a
surveillance device will assist the conduct of the integrity operation by:
i. recording or monitoring the operation; and
5
Except where there is a need to act quickly, sections 14(4)-(7) of the SD Act.
Section 14(1) of the SD Act.
7 Except where there is a need to act quickly, see ‘emergency authorisations’ at paragraph 6 of this manual,
below. Sections 14(4)-(7) of the SD Act refer.
6
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ii.
enabling evidence to be obtained which relates to the commission
of the offence or the integrity, location or identity of any staff
member of the target agency.
Note: The criteria for applying for, and subsequently using, a surveillance device is
different if the surveillance device is used as part of an integrity operation. The details
of these differences are set out in the relevant sections of this SOP. A summary of all
of the differences is provided at Attachment A.
3.5
Form of Application
An application made to an eligible judge or nominated AAT member must specify the
name of the applicant and the nature and duration of the warrant sought, including the
kind of surveillance device/s sought to be authorised. supported by an affidavit.
3.6
What does a warrant authorise?
An SD warrant authorises the steps (including entry onto premises) required in the
installation, use and maintenance of a device, and its retrieval (s 18(2)-(4)).
An SD warrant may authorise one or more of the following (s 18(1)):
(a) the use of a surveillance device on specified premises8
(b) the use of a surveillance device in or on a specified object or class of
object, or
(c) the use of a surveillance device in respect of the conversations, activities
or location of a specified person or a person whose identity is unknown.
4.0
TYPES OF WARRANTS
Since there are four types of surveillance devices specified in the SD Act and three
types of authorised use, it follows that there are 12 possible combinations for an SD
warrant:
SD Type
Optical surveillance device
Listening device
Data surveillance device
Tracking device
May
be
used
for …
Authorised use
Specified premises
Specified object
Specified person
The definition of ‘premises’ in section 6(1) of the SD Act includes a vehicle, and section 17(2) of the SD Act
provides that a warrant may specify a vehicle by reference to a class of vehicle.
8
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A single warrant may cover one or more of the above categories if appropriate in the
circumstances, and it can authorise the use of multiple devices.9 Note that tracking
devices may be authorised by an ACLEI appropriate authorising officer. See paragraph
9.4 below.
Example
N is a target of an ACLEI operation. N is known to conduct
meetings in a number of locations, moving between them in
one of his cars. ACLEI could obtain a single warrant that
authorises ACLEI to place tracking devices on his vehicles, a
listening device at one location and a combined listening
device and optical surveillance device at another location.
The warrant application, affidavit and draft warrant would
need to set out the kinds of devices ACLEI proposes to use
and the affidavit would need to explain how the ACLEI officer
came to suspect that a relevant offence has been, is about to
be, or will be committed, and why the devices would be
necessary.
5.0
ROUTINE APPLICATIONS
5.1
Consultation
General Counsel, the Integrity Commissioner and the Assistant Director Operational
Support must be consulted before an ACLEI Law Enforcement Officer makes an
application for an SD warrant. The Integrity Commissioner will determine whether an
application is appropriate.
5.2
Application process
Other than where the emergency authorisation process applies, the following
procedures must be followed after the Integrity Commissioner approves an application
for an SD warrant:
9
Section 18(1) of the SD Act.
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(a) The application, affidavit and draft warrant are prepared. The affidavit
must address the points listed in paragraph 5.3 below.
(b) The case officer and/or the Law Enforcement Officer making the
application swear their affidavits before the Integrity Commissioner, an
ACLEI lawyer or a Justice of the Peace.
(c) The Law Enforcement Officer will arrange an appointment before the
Issuing Officer for a hearing in chambers. The documents must be
presented directly to the Issuing Officer and it is desirable that no-one
other than the Issuing Officer, the applicant and the case officer (if he or
she has provided an affidavit that is being submitted) be present when the
application is made. The presence of an ACLEI lawyer may also be
appropriate in some circumstances.
(d) Any documents needing to be transferred to advance the application must
be delivered by hand, in an approved container. They must not be posted
or sent by courier or by non-secure fax or email. Where this is not
possible, the case officer should consult the Director Operations for
guidance.
(e) If the Issuing Officer requires further information, the Law Enforcement
Officer and/or the case officer may provide it on oath or affirmation.
(f) If the Issuing Officer issues a warrant, he or she will sign and date the
draft provided and include a note of the time at which the warrant was
issued. If present, the ACLEI lawyer, or otherwise the Law Enforcement
Officer, should check that the warrant is accurate and complete and
request that the Issuing Officer make any changes needed.
(g) While the Issuing Officer would not normally keep a copy of the warrant or
the affidavit because of the security implications, he or she may make a
diary note of the fact that the warrant was issued. The Issuing Officer may
want to sign or initial the affidavit to avoid any doubt about the basis on
which the warrant was issued.
(h) Whether or not a warrant is issued, all documentation and the warrant (if
issued) must be provided to the Assistant Director Operational Support
upon return to ACLEI. The Assistant Director Operational Support will
ensure the warrant is given effect, stored securely and recorded in the
ACLEI surveillance devices database.
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5.3
Satisfying the threshold for issue of a warrant
The SD Act requires the Issuing Officer to be satisfied that there are reasonable
grounds for the suspicion founding the application for the warrant (see paragraph 3.4
above). The Issuing Officer must have regard to the:10
(a)
(b)
(c)
(d)
nature and gravity of the alleged offence
extent to which privacy of any person likely to be affected
alternative means of obtaining the evidence
likely evidentiary or intelligence value of information or evidence sought to
be obtained, and
(e) any warrant previously sought or issued about the same alleged offence.
These issues must be addressed in the material provided to the Issuing Officer.
The case officer has a continuing obligation to keep the Integrity Commissioner
informed about the application and warrant so that the Integrity Commissioner can
comply with the reporting provisions of the SD Act.
6.0
REMOTE AUTHORISATION
The SD Act contains provisions enabling an application for a warrant to be issued
following an application by telephone, fax, e-mail or other means of communication11.
The Issuing Officer must be satisfied, in addition to the other matters set out above,
that it was impracticable for the application to be made in person.12 The Issuing Officer
must inform the applicant if the warrant is issued, provide the warrant to the applicant
and, in this instance, the Issuing Officer must retain a copy13.
ACLEI would prefer not to use the remote application process unless absolutely
necessary.
7.0
APPLICATIONS IN ANOTHER STATE
In some cases it may not be possible to apply for a warrant in the State or Territory
where the investigation is being carried out. In particular, there may be no Issuing
Officer available in that jurisdiction.
In such cases the application must be made in another State or Territory, and the
following procedure applies:
10
Section 16(2) of the SD Act
Section 16, SD Act. Section 23 deals with remote applications for retrieval warrants.
12 Section 16(1)(d), SD Act.
13 Section 17(4), SD Act.
11
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(i)
The case officer should consult General Counsel, who will arrange contact
with the local office of the CDPP. The local CDPP office is responsible for
settling the draft documents. The local CDPP office will also advise ACLEI
on what jurisdiction in which the warrant should be sought.
(ii) When the documents have been settled, General Counsel is responsible for
liaising with the CDPP office in the other jurisdiction.
(iii) Once the CDPP office in the other jurisdiction has received the documents, it
will deal with the case in accordance with the general procedures set out
above.
8.0
EMERGENCY AUTHORISATIONS
8.1
Threshold for emergency authorisations
Emergency authorisations may be applied for when the use of a surveillance device is
immediately necessary because of an imminent risk of serious violence to a person or
substantial damage to property and it is not practicable in the circumstances to apply
for an SD warrant.14 An emergency authorisation can cover the same range of devices
and purposes as a warrant.
The SD Act also allows emergency authorisations in some cases where evidence
might be jeopardised in relation to a limited class of offences, some of which may be
relevant to corruption investigations or integrity operations – see section 30 of the SD
Act.
8.2
Who may issue emergency authorisations
Emergency authorisations may be granted by an ‘Appropriate Authorising Officer’.
ACLEI staff members may be appointed as ‘appropriate authorising officers’ pursuant
to section 6A of the SD Act. A list of currently appointed individuals is available on the
Intranet.
8.3
Process
The case officer may apply for an emergency authorisation and, if the Appropriate
Authorising Officer grants it, he or she must make a note of the name of the applicant
and the date, time and nature of the authorisation.15
Within 48 hours after the authorisation, the Appropriate Authorising Officer must apply
to an Issuing Officer for approval, providing all relevant information.16 This can be
14
Section 28 SD Act.
Section 31 SD Act.
16 Section 33 SD Act.
15
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done at the same time as an application for an SD warrant if it is considered necessary
to maintain the use of a surveillance device or devices.
In deciding whether to approve an emergency authorisation which was granted under
sections 28 or 30, an Issuing Officer must consider:
(a) the nature of the risk of violence or damage
(b) the extent to which an SD warrant would have reduced or avoided the risk
(c) the extent to which alternative methods of investigation could have been
used
(d) the extent to which alternative methods of investigation would have
reduced or avoided the risk
(e) how much the alternative methods would have prejudiced the safety of a
person or property because of delay or another reason, and
(f) whether it was practicable in the circumstances to apply for an SD
warrant.17
The case officer, the Appropriate Authorising Officer and General Counsel should
ensure that these matters are all addressed in the material submitted to the Issuing
Officer. The Issuing Officer must be satisfied that there was a risk, that it could have
been reduced or avoided by an SD warrant and that it was impracticable to apply for a
warrant. If the Issuing Officer does not approve the emergency authorisation, the use
of the SD must cease and the Issuing Officer may issue directions about the material
gained (noting that the material cannot be destroyed).
9.0
USE OF A SURVEILLANCE DEVICE WITHOUT A WARRANT
9.1
General
Wherever possible and practical, ACLEI officers should obtain SD warrants before
carrying out surveillance. Using warrants reduces the risk that a court will decide to
exclude evidence obtained through the use of a surveillance device.
However, there may be circumstances which fall into one of the exceptions below and
where it is appropriate to proceed without a warrant.
9.2
Optical surveillance device
Section 37 of the SD Act provides that an ACLEI Law Enforcement Officer may use an
optical surveillance device without a warrant where the device can be installed and
retrieved without either entering premises or interfering with a vehicle or thing without
permission.
17
Section 34, SD Act
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9.3
Listening device
Section 38 provides that an ACLEI Law Enforcement Officer may use a surveillance
device to listen to or record a conversation to which he or she is a party or with the
consent of a person who is a party to the conversation. In the latter case, ACLEI may
monitor the conversation from a remote location. Section 38 does not require that the
device should be in the possession of the Law Enforcement Officer or person giving
consent.
9.4
Tracking device
Section 39 permits a Law Enforcement Officer to use a tracking device without a
warrant if the Law Enforcement Officer has a tracking device authorisation from an
“appropriate authorising officer.” An “appropriate authorising officer” is the Integrity
Commissioner or an SES employee authorised for this purpose. A tracking device
authorisation may be granted for the investigation of a “relevant offence” or it may be
granted to a federal law enforcement officer for the purpose of an integrity operation.
The tracking device authorisation:
(a) requires the same information as an application for an SD warrant
(b) lasts for a maximum of 90 days. The appropriate authorising officer may
also authorise the retrieval of the tracking device, and
(c) the appropriate authorising officer may authorise the retrieval of the
tracking device, but cannot authorise entry onto premises or interference
with the interior of a vehicle without permission.
An appropriate authorising officer must make and retain records of tracking device
authorisations (s 40).
10.0 DUAL APPLICATIONS
10.1 General
ACLEI may submit dual applications, which are single applications for warrants under
both the Telecommunications (Interception and Access) Act 1979 (the TIA Act) for a
telephone interception warrant (TI warrant) and under the SD Act for an SD warrant, in
respect of a single investigation.
10.2 Process
An applicant, if authorised under both the TIA and SD Acts, can use a single
application and a single affidavit to apply for both TI and SD warrants, if the
applications are based on the same evidential material.
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The applications are, however, made in different capacities and, in the case where
made by the same applicant, he or she must satisfy both criteria, as follows:
(a)
(b)
an application for a TI warrant is made by an authorised staff member on
behalf of ACLEI as an agency,18 and
an application for an SD warrant is made by, or on behalf of, a Law
Enforcement Officer (i.e. the Integrity Commissioner, or an authorised
staff member of ACLEI), in an individual capacity. 19
In some cases it may be easier to draft a separate affidavit for each type of warrant to
avoid the complexity of presentation that can arise from trying to cover different criteria
and act in different capacities, in a single affidavit. There can be no single answer to
the question of whether to use one affidavit or two and a decision will depend on the
nature of the case.
If there is any doubt, the case officer should consult General Counsel.
11.0 DURATION OF A WARRANT
11.1 General
An SD warrant can stay in force for up to 90 days for the investigation of a relevant
offence, or for up to 21 days for an integrity operation. The time period must be
specified in the warrant.20
11.2 Extension
An Issuing Officer may extend an SD warrant prior to its expiry (s 19). The extension
can be for a period not exceeding 90 days, or for a period not exceeding 21 days if the
warrant was issued for the purposes of an integrity operation. There is no limitation on
the number of extension applications, provided the Issuing Officer continues to be
satisfied of the criteria in section 16 of the SD Act.
11.3 Variation of a warrant
An application can be made to an Issuing Officer to vary the terms of a warrant.21 For
example, if the target moves premises then it may be necessary to vary the warrant to
18
Section 39 TIA Act.
Section 14 SD Act
20 Section 17(1A) and subparagraph 17(1)(b)(ix) SD Act
21 Section 19(1) SD Act.
19
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permit the use of surveillance devices in the new premises. A variation cannot be used
to change the period for which the warrant is in force.
The application should be attached to the original warrant. The Issuing Officer needs to
be satisfied that the varied form of the warrant would still satisfy the requirements set
out in section 16 of the SD Act.22
11.4 Revocation of a warrant by Issuing Officer
Section 20(1) of the SD Act provides that the Issuing Officer who issued an SD warrant
may revoke it at any time on his or her own initiative.
If a warrant is revoked, it must be done in writing and signed by the Issuing Officer,
who must then give a copy of the revocation to the Integrity Commissioner. The
Integrity Commissioner must take the steps necessary to ensure that use of the
surveillance device is discontinued as soon as practicable.
11.5 Revocation of a warrant by the Integrity Commissioner
Section 20(2) of the SD Act imposes an obligation on the Integrity Commissioner to
revoke an SD warrant when its use is no longer necessary for the purpose for which it
was originally issued.23
Section 21(5) of the SD Act requires that the officer to whom an SD warrant has been
issued, or who is primarily responsible for executing a warrant, must inform the
Integrity Commissioner immediately if the officer believes that the grounds for issue of
the warrant no longer exist.
The warrant must be revoked in writing and signed by the Integrity Commissioner, who
must also take the steps necessary to ensure that use of the surveillance device is
discontinued.
12.0 RETRIEVAL WARRANTS
12.1 General
Subparagraph 18(3)(a) of the SD Act provides that an SD warrant creates the power to
retrieve a surveillance device, and subparagraph 18(2)(a)(ii) gives the power to enter
premises by force, if that is necessary to get access to the device.
22
23
Section 19(4) SD Act.
Sections 21(2) and 21(3) SD Act
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However, it is possible that ACLEI will want to retrieve a device after the initial SD
warrant has expired. If the warrant has expired it cannot give authority to enter
premises to recover a device.
In such cases, section 22 of the SD Act applies to allow an application for a warrant to
retrieve a surveillance device and any related enhancement equipment.
12.2 Process
The procedure for applying for a retrieval warrant is very similar to the procedure for
applying for an SD warrant. Specifically, the application is to be made to an Issuing
Officer and must be supported by an affidavit setting out the grounds on which the
retrieval warrant is sought (s 22(2),(3)).
Nothing in the SD Act says that a surveillance device must be retrieved if the
monitoring comes to an end or the warrant is revoked. An agency can choose to leave
a device in place, but switch it off, if that is the most appropriate course of action.
Surveillance devices need to be accounted for according to Accountable Authority
Instructions. The location of all SDs will need to be reported to the Chief Financial
Officer at time of stocktake.
13.0 PROTECTED INFORMATION
13.1 General
Section 44(1) of the SD Act defines “protected information” to be:
(a)
(b)
(c)
(d)
any information obtained from the use of a surveillance device under a
warrant, emergency authorisation or tracking device authorisation
information relating to the application for, or issue of, a warrant or
authorisation
any information that is likely to enable the identification of a person,
object or premises specified in a warrant or authorisation, and
information obtained without a warrant or authorisation in
contravention of the requirement for such a warrant or authorisation.
Note that the subsequent use, recording, communication, publication
or use in evidence of such information is prohibited under section
44(6) of the SD Act.
13.2 Offences
Section 45 of the SD Act makes it an offence for a person to use, record, communicate
or publish any protected information except in limited circumstances (set out in s 45(4)
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and (5) and s 45A in relation to integrity operations). These exceptions are set out in
paragraph 13.3 below.
Section 45(3) states that, subject to the exemptions in sections 45(4) and (5), protected
information is not admissible as evidence in any proceedings.
13.3 Permitted use and dealing under SD Act
Section 45(4) permits the use, recording, communication, publishing or evidential use
of protected information if it has already been lawfully disclosed in proceedings in open
court; where it is necessary to prevent serious violence to a person or substantial
property damage; where it is being communicated to prescribed intelligence agencies
for a prescribed purpose or where it is being communicated to a foreign country for the
purpose of providing mutual assistance.
Section 45(5) permits the use, recording, communication, publishing or evidential use
of protected information for the purpose of investigating or prosecuting a ‘relevant
offence’, including a decision whether or not to prosecute an offence; for investigating
the conduct and terminating the appointment of a public officer; for record keeping
purposes and for investigations under the Privacy Act 1988.
Under section 45(7), if protected information is communicated from one agency to
another, it can only be communicated within that second agency for the particular
purpose for which it was originally communicated.
Section 45A sets out the permitted uses of protected information related to integrity
operations. In this case, protected information may be used, recorded, communicated,
published or admitted in evidence in deciding whether to apply for an integrity
authority; applying for or granting an integrity authority; designing or carrying out an
integrity operation; applying for any Commonwealth warrant/authorisation/order for the
purposes of an integrity operation; and any disciplinary or legal action in relation to a
staff member of a target agency.
Unlike the TIA Act, officers do not need a special authorisation to deal with SD
material. The only restriction is that the material must only be communicated for the
purposes stipulated above.
13.4 Use and dealing under the LEIC Act
The above provisions are consistent with, and additional to, the Integrity
Commissioner’s obligations of referring evidence or information to other agencies
under sections 142, 143, 146 and 147 of the LEIC Act.
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13.5 Recording communication of material
If information is to be communicated in relation to a relevant offence, a section 45(5)
communication certificate should be prepared - refer to Assistant Director Operational
Support for assistance.
14.0 EVIDENTIARY CERTIFICATES
14.1 General
Section 62(2) of the SD Act provides that a certificate issued under section 62(1) is
admissible in evidence in any proceedings as prima facie evidence of the matters
stated in the certificate. Such a certificate must be issued and signed by the Integrity
Commissioner or an Appropriate Authorising Officer.
The certificate may set out facts relevant to the execution of a warrant/authorisation, or
the communication or use of information and records.
14.2 Notice to defendant and cross-examination
A certificate must not be admitted in evidence in a prosecution unless the defendant,
or a solicitor appearing for the defendant, has been given at least 14 days’ notice of
the intention to produce the certificate and a copy of the certificate.24 Therefore,
General Counsel should be consulted in the first instance, and the CDPP should be
consulted after the brief of evidence has been provided, as to whether an evidentiary
certificate is warranted in the circumstances.
The defence has a right to require the person who signed the certificate to be called as
a witness for the prosecution and be made available for cross-examination, provided
the court permits.25
Therefore, depending on the circumstances and the nature of the corruption
investigation, if it is appropriate to issue such a certificate, it may be preferable that it
be signed by an SES employee who has been authorised as an appropriate
authorising officer by the Integrity Commissioner,26 and is not connected to the
investigation. This will relieve the Integrity Commissioner from ongoing court
attendances.
24
Section 62(5) SD Act.
Section 62(6), (7) SD Act.
26 Subparagraph (aa)(iii) of the definition of ‘appropriate authorising officer’ in section6(1) SD Act.
25
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15.0 RECORD KEEPING
15.1 What must be kept
Sections 51 and 52 of the SD Act set out a list of documents which the Integrity
Commissioner must cause to be kept.
The Integrity Commissioner must also cause a register of warrants, emergency
authorisations and tracking device authorisations sought by ACLEI Law Enforcement
Officers to be kept.27
Two ACLEI forms are in use in relation to SD warrants. They are:
(a)
(b)
‘Internal SD Report’ - used for reporting requirements when each SD
warrant ceases to be in force, and
‘Section 45 Record Keeping Log pursuant to the Surveillance Devices
Act 2004’ - used as a running sheet for dissemination of the product.
15.2 Storage and destruction
Section 46(1) and (2) of the SD Act require that records or reports comprising
protected information must be kept in a secure place. The current location used by
ACLEI for storage of such documents is within the Operations area.
The Integrity Commissioner must destroy a record if he or she is satisfied that the
protected material which is contained in the record or report:
(a)
(b)
(c)
will not be relevant for a civil or criminal proceeding which has, or is
likely to commence
is not likely to be required for a permitted use or dealing, and
has been available for the Ombudsman to inspect in a previous
inspection.
Alternatively, the Integrity Commissioner must ensure protected records are destroyed
within five years of the protected record being made (s 46(b)(ii). The destruction of SD
material must be approved by the Integrity Commissioner in a destruction minute. An
exception to this is that the Integrity Commissioner does not need to destroy the
material if he or she is satisfied that the material will still satisfy (a)-(c) above after the 5
year period. In such a case, the case officer should prepare a retention minute to the
Integrity Commissioner seeking retention of the material before the 5 year period
expires.
27
Section 53 SD Act.
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These obligations do not apply to a record or report that has been received into
evidence in legal or disciplinary proceedings.28
16.0 REPORTING
16.1 Report to Minister for each warrant
The Integrity Commissioner must make a report to the Minister for Justice in relation to
each warrant, emergency authorisation or tracking device authorisation issued to
ACLEI (including those issued to staff seconded to ACLEI).29 Before making a report to
the Minister, a minute should be prepared seeking the Integrity Commissioner’s
approval to make the report to the Minister. The report can then be made, and should
be accompanied by a letter to the Attorney-General’s Department.
The report must be made as soon as practicable after the warrant or authorisation
ceases to be in force. It is ACLEI’s policy that the report should be forwarded no more
than three months after the cessation of the warrant or authorisation.
A copy of each warrant or authorisation, and any instrument revoking, extending or
varying them must be attached to the report.
Section 49(2) of the SD Act details the information that must be provided in the report
in the case of an SD warrant or authorisation and s 49(3) details the information that
must be provided in the report in the case of a retrieval warrant. The report must
include:








28
29
the name of the executing officer
the name of each person responsible for the installation, maintenance and
retrieval of each device used under the warrant or authorisation
the kind of surveillance device(s) used
the period during which the device(s) was used
the names of any person whose conversations or activities were listened to,
recorded, overheard, monitored or observed by the use of the device
the name of any person whose location was determined by the use of a
tracking device
details of any premises, place or object where the device(s) was installed or
used
the details of the benefit to the investigation or integrity operation of the use of
the device(s)
Section 46(3) SD Act.
Section 49 SD Act.
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

the general use made or communication of the information obtained by the
use of the device(s), and
if applicable, the number of times the warrant was extended or varied, and the
reasons for this.
It is the responsibility of the ACLEI staff member who is the holder of the warrant, or
alternatively the staff member in charge of the investigation, in consultation with the
Assistant Director Operational Support, to provide the report to the Integrity
Commissioner as soon as practicable after the warrant ceases to be in force.
It is also the ACLEI staff member’s responsibility to ensure that all information
concerning the SD warrant is entered into the Case Management Information Systems
prior to the report being submitted to the Integrity Commissioner.
16.2 Annual report by the Integrity Commissioner to the Minister for Justice
The Integrity Commissioner must submit a report on the use of SD warrants to the
Minister for Justice as soon as practicable after the end of the financial year. This
report must be submitted within three months after the end of the financial year.
Section 50 of the SD Act details what must be included in the annual report.
17.0 INSPECTIONS BY THE OMBUDSMAN
The Commonwealth Ombudsman is required to inspect ACLEI’s records to determine
the extent of ACLEI’s compliance with the SD Act. The Ombudsman has extensive
powers to enter premises and examine records.30
Commonwealth Ombudsman personnel will attend ACLEI periodically to inspect its
records and are to have free access to ACLEI’s records relating to surveillance
devices. ACLEI staff members must assist the Ombudsman’s officers to enable them
to perform their duties.
The Assistant Director Operational Support will facilitate any visit by the Ombudsman
for the purpose of record inspection
30
Sections 54-61 SD Act.
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Attachment A
Surveillance Devices in Integrity Operations: Comparison Table
Standard SD Warrant
Integrity Operation SD
Warrant
Threshold for grant
The use of a surveillance
device is necessary in the
course of an investigation for
the purpose of enabling
evidence to be obtained of the
commission of a relevant
offences or the identity or
location of the offenders.
(Section 14 of SD Act)
The use of a surveillance
device will assist an operation
by recording or monitoring it;
or enabling evidence to be
obtained of the commission of
the offence in respect of which
the integrity authorisation was
granted; or enabling evidence
to be obtained of the identity
or location of any staff
member of a target agency
(Section 14(3B), SD Act)
Offence Threshold
A Commonwealth offence, or
a State or Territory offence
with a federal aspect,
punishable by 3 years’
imprisonment. Some
prescribed lesser offences
(Definition of “relevant
offence” in section 6 of SD
Act).
A Commonwealth, State or
Territory offence punishable
by 12 months’ imprisonment
(Section 15JG(2), Crimes Act).
Issuing Officer
Nominated judges or AAT
members (section 11, SD
Act).
Nominated judges or AAT
members (s 11, SD Act)
Duration and extension
periods
90 days (s 17(1A), SD Act)
21 days (s 17(1A, SD Act)
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Permitted Use of
Protected Information
- investigating or prosecuting
a relevant offence
- investigating the conduct
and terminating the
appointment of a public officer
- record keeping and oversight
purposes
- investigations under the
Privacy Act 1988
- to prevent serious violence
or substantial damage to
property
- communication to
intelligence agencies for a
prescribed purpose
(Part 6, Div 1, SD Act)
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- deciding whether to apply for
an integrity authority
- applying for or granting an
integrity authority
- designing or carrying out an
integrity operation
- applying for any
Commonwealth warrant,
authorisation or warrant for the
purposes of an integrity
operation
- any disciplinary or legal
action in relation to a staff
member of a target agency.
(Section 45A, SD Act)
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