SURVEILLANCE DEVICES BILL 2007 Explanatory Statement

Northern Territory Explanatory Statements

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SURVEILLANCE DEVICES BILL 2007

2007

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

SURVEILLANCE DEVICES BILL 2007
SERIAL NO. 100

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill repeals and replaces the Surveillance Devices Act 2000
(“the Act”). There are two main purposes for the amendments; one is to implement the national model provisions developed by the
Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers’ Council to facilitate cross border investigations, and the second is to address some of the operational difficulties raised by Police in using the Act. By implementing the
cross border investigation provisions and applying them wherever possible to local investigations, it is possible to contain the regulatory regime in one complete Act. A warrant obtained under the Act will apply locally and in other participating jurisdictions, where the offence concerned is one which carries a penalty of three or more years imprisonment.

NOTES ON CLAUSES

Clause 1 Short title.

This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Surveillance Devices Act 2007 (“the new Act”).

Clause 2 Commencement.

Clause 2 provides that the new Act commences on the date fixed by the Administrator by Gazette notice.

Clause 3 Purpose.

This clause states the purposes of the new Act which are to:

(a) regulate the installation, use, maintenance and retrieval of surveillance devices; and
(b) restrict the use, communication and publication of information obtained through the use of surveillance devices or otherwise connected with surveillance operations; and
(c) establish procedures for law enforcement officers to obtain warrants or emergency authorisations for the installation, use, maintenance and retrieval of surveillance devices in criminal investigations extending beyond this jurisdiction; and
(d) recognise warrants and emergency authorisations issued in other jurisdictions; and
(e) impose requirements for the secure storage and destruction of records, and the making of reports to Judges, magistrates and Parliament, in relation to surveillance device operations.

Clause 4 Definitions.

This clause defines the terms used in the Bill. Some of the definitions under the Act have been retained, others have been redrafted to conform with the model provisions. For example, the definition of “optical surveillance device” and “listening device” no longer refer to “private activity” or “private conversation”. This does not alter the law in relation to the use and maintenance of those devices or the restrictions on communication and publication of those activities and conversations. There is an extended version of the definition of “surveillance device” to include a combination of two or more of the devices defined as surveillance devices, and the ability to prescribe further devices to allow for advances in surveillance technology. New terms and definitions consistent with the model provisions include “relevant proceeding” which refers to the specific proceedings in which protected information may be used, communicated or published under the Act.
“Protected information” is defined in section 51(1) of the Bill. A set of definitions relating to corresponding laws, authorisations and warrants have been included. A corresponding warrant or emergency authorisation will only be recognised as valid in the Northern Territory if it was issued or given for a relevant offence under the corresponding law.

Clause 5 Law enforcement officer primarily responsible for warrant.

This clause explains that the law enforcement officer named on the warrant is primarily responsible for the warrant whether that officer is physically present at execution or not.

Clause 6 Cross-border investigations taken to be carried out in this jurisdiction.

This clause relates to cross-border investigations. An investigation into a relevant offence is included to cover the situation where an officer of the Northern Territory is conducting or participating in an investigation wholly in another jurisdiction for the purposes of an offence in the Northern Territory (eg a Victorian officer is investigating a conspiracy to import drugs into Victoria from the Northern Territory, and all the evidence of the offence is in the Northern Territory). If a
law enforcement officer of this jurisdiction participates in an investigation it is said to have been carried out in this jurisdiction.

Clause 7 Declared offences for Criminal Code.

This clause makes it clear that Part IIAA of the Criminal Code applies to offences under the new Act.

Clause 8 Act binds Crown.

This clause provides for the Act to bind the Crown.

Clause 9 Act does not apply to certain Commonwealth agents.

This clause excludes certain Commonwealth organisations from the application of the Act, where those organisations are acting in the course of duty.
Clause 10 Act does not limit court discretion.

This clause clarifies the application of the Act.

PART 2. - REGULATION OF INSTALLATION, USE AND MAINTENANCE OF SURVEILLANCE DEVICES

Clause 11 Installation, use and maintenance of listening devices.

This clause makes it an offence for a person who is not a party to a private conversation to install, use or maintain a listening device to listen to, monitor or record a private conversation, knowing that the device has been installed without the consent of each party to the conversation. The installation is legal under a warrant, emergency authorisation, corresponding warrant or emergency authorisation or under a law of the Commonwealth.

Subclause (2)(b) expands the existing law by allowing a
law enforcement officer to monitor or record a private conversation whether or not the officer is a party to the conversation where one party has consented to the monitoring or recording and the officer is acting in the performance of duty and the officer reasonably believes it is necessary to monitor or record the conversation for the protection of a person’s safety.

“Reasonably believes” means “believes on grounds that are reasonable in the circumstances”.

This clause also directs to section 43, where law enforcement officers may use listening devices without being a party to a private conversation.

Clause 12 Installation, use and maintenance of optical surveillance devices.

This clause makes it an offence for a person to install, use or maintain an optical surveillance device to monitor, record visually or observe a private activity to which the person is not a party, where the device is installed, used or maintained without the consent of each party to the activity.
Subclause (2) expands the existing law by allowing a law enforcement officer in the performance of the officer’s duty to install, use or maintain an optical surveillance device without a warrant in two circumstances:

· if the occupier of the place authorises the installation, use or maintenance and the installation, and the use or maintenance is reasonably necessary for the protection of a person’s lawful interests, or
· if the use of the device does not involve entry on a place or interference with a vehicle or other thing without permission.

The clause also directs to section 44 uses of optical surveillance devices without warrant.

Clause 13 Installation, use and maintenance of tracking devices.

This clause makes it an offence for a person to install, use or maintain a tracking device to determine the geographical location of a person or thing, knowing that the device is installed, used or maintained with the express or implied consent of the person to whom the device is attached, or the person in lawful possession or having lawful control of the thing being tracked.

Subclause (2) allows for the installation, use or maintenance of a tracking device by a law enforcement officer in the performance of the officer’s duty on a thing in a public place.

This clause amends the existing provision to make it clear that a person who has lawful possession, rather than “possession” of a vehicle or thing can lawfully attach a tracking device to that vehicle or thing.
For example, transport and taxi companies can use these devices to determine the location of the company vehicles at all times.

Clause 14 Installation, use and maintenance of data surveillance devices by law enforcement officers.

This clause makes it an offence for a law enforcement to install, use or maintain a data surveillance device with out authorisation, warrant or consent of the person on whose behalf the information is being input or output.
This clause amends the existing law regulating data surveillance devices by limiting the application to law enforcement officers.
The existin provision makes it unlawful for any person to install, use or maintain a data surveillance device. However, the large number of legitimate uses for data surveillance makes it unreasonable to criminalise all use.

PART 3 - RESTRICTION ON COMMUNICATION AND PUBLICATION OF PRIVATE CONVERSATIONS AND ACTIVITIES

Clause 15 Communication and publication of private conversations and activities.

This clause makes it an offence to communicate or publish a record or report of a private conversation or private activity, knowing that the record or report has been made as a result of the use of a listening device, optical surveillance device or tracking device without the consent of each party to the private conversation or private activity.

Subclause (2) provides exceptions, being communication or publication that is reasonably necessary in the public interest or for protecting the lawful interests of the person making it, or in the course of legal or disciplinary proceedings.

The current law is extended to include the exceptions under the model provisions, such as communication or publication of protected information, communication or publication authorised by a law of the Commonwealth relating to the security of the Commonwealth, communication or publication made by a law endorsement officer to a person authorised by the Chief Officer for investigating or prosecuting an offence, or to the occupier of a place of record.

Clause 16 Communication and publication of information from use of date a surveillance device.

This clause makes it an offence for a law enforcement officer to disclose information obtained from the use of a data surveillance device, unless there is consent, or the communication or publication is made in the course of a legal or disciplinary hearing, or the communication or publication is protected information or it is made to a person authorised to investigate or prosecute an offence, or otherwise in the performance of the officer’s duty, or it is authorised by a law of the Commonwealth relating to the security of the Commonwealth.

PART 4 - WARRANTS FOR USE OF SURVEILLANCE DEVICES

Division 1 – Introduction

Clause 17 Types of warrant.

This clause sets out the types of warrant that may be obtained: a surveillance device warrant and a retrieval warrant. A warrant may be issued in respect of a data surveillance device, a listening device, an optical surveillance device or a tracking device, or a combination of any two or more of those devices. This will simplify the current regime, where a different warrant must be obtained in relation to each kind of device or combination of devices.

Clause 18 Who may issue warrant.

Unlike the current legislation, a retrieval warrant may also be issued. Under the current law, a tracking device may be installed without warrant, if the installation takes place while the object is situated in a public place. A retrieval warrant was only available under the legislation if the device had been authorised by warrant. This provision will allow a retrieval warrant to be obtained where a tracking device was installed without warrant. In any other circumstances, an object may have been relocated from the original premises authorised under the warrant, so that retrieval authorised under that warrant is no longer possible, or the warrant may have expired before the device was able to be retrieved. A Supreme Court Judge can deal with any warrant, whereas a magistrate has power to issue warrants for tracking devices only.

Division 2 - Surveillance Device Warrants

Clause 19. Application for surveillance device warrant.

This clause sets out the application process for a surveillance device warrant. It is based on the existing procedure in the Act and the model provisions. A law enforcement officer (or a person on their behalf) may apply for a surveillance device warrant if he or she reasonably believes that an offence has been, is being, is about to be or is likely to be committed, and the use of the device is or will be necessary to investigate that offence, to gather evidence or information or determine the identity or location of the offender. The application must specify the applicant’s name and the nature and duration of the warrant sought (including the kind of surveillance device to be authorised) and be supported by an affidavit. As is currently the case, applications are not to be heard in open court. The clause makes it possible to make an application before an affidavit is prepared or sworn in certain circumstances.

Clause 20 Remote application.

This clause enables a warrant application to be made by telephone, facsimile, e-mail or other means of communication where it is impracticable for the law enforcement officer to apply in person.
In line with advanced technology, the clause also allows for an affidavit to be provided by email. The section mirrors the existing ability to make telephone applications under the Act.

Clause 21 Deciding application.

This clause sets out the matters the Judge or magistrate must take into account when determining warrant applications. They are essentially the same matters that the court currently considers under the Act.

Clause 22 What the surveillance warrant must contain.

This clause is based on existing requirements under the Act with the following changes:
· the warrant must contain the name of the applicant;
· the name of the officer primarily responsible for executing the warrant;
· the date of issue of the warrant;
· the signature of the Judge or magistrate issuing the warrant

These details are currently required under section 14 of the Act to be kept as a record by the Judge or magistrate who issues the warrant.

Clause 23 What a surveillance device warrant authorises.

This clause is based on the existing authority under the Act with a modification to allow the installation, use, maintenance and retrieval of a device in or on a class of object. This addresses one of the operational difficulties Police have encountered, when applying for object warrants. Currently the object must be specified in the warrant. At the time the installation occurs, the particular object may no longer be appropriate, but the device could be installed on a similar object
(e.g. a piece of clothing). This broader provision overcomes the need to return for a further warrant to describe another object.

The clause clarifies that it does not authorise the doing of anything for which a warrant is required under the Commonwealth Telecommunications (Interception) Act 1979.

Subclause (8) ensures consistency with the model laws by providing that a surveillance device warrant cannot authorise a device to be installed or used outside the Northern Territory if the offence in relation to which the warrant is issued is not a relevant offence.

Clause 24 Extension and variation of warrant.

This clause permits a law enforcement officer to apply for an extension of the warrant or a variation of the terms of the warrant. This clause is based on the existing sections 19 and 20 of the Act.

Clause 25 Revocation of warrant.

This is a new clause permitting a Judge or magistrate to revoke a surveillance device warrant at any time before it expires after receiving a report on the execution of the warrant or on application by a
law enforcement officer.

(These applications are not to be heard in open court).

Clause 26 Discontinuing use of surveillance device under warrant.

This is a new section which imposes obligations on the chief officer of a law enforcement agency to ensure that the use of a surveillance device is discontinued and application is made for the warrant to be revoked if the use of the device is no longer necessary. The law enforcement officer who is issued with the warrant or has primary responsibility for executing it has an obligation to inform the chief officer immediately that he or she believes the use of the device is no longer required.
This section makes certain that devices are used only for purposes for which the warrant was granted.

Division 3 - Retrieval Warrants

Clause 27 Application for retrieval warrant.

This clause provides for application to be made for a retrieval warrant. It is a similar process to the application for a surveillance device warrant.

Clause 28 Remote application.

This clause allows for an application for a retrieval warrant to be made by telephone, fax, email or other means of communication in the same way as remote applications can be made for surveillance device warrants.

Clause 29 Deciding application.

This clause sets out the matters that the Judge or magistrate must take into account when determining an application for a retrieval warrant.

Clause 30 What retrieval warrant must contain.

This clause sets out what the warrant must state, which are similar to those required in a surveillance device warrant.

Clause 31 What retrieval warrant authorises.

This clause sets out what the retrieval warrant authorises.

Clause 32 Revocation of retrieval warrant.

This clause provides for the revocation of a retrieval warrant prior to its expiry by the Judge or magistrate who issued the warrant. A Judge or magistrate who revokes a warrant is required to give notice of that fact to the chief officer of the law enforcement agency of which the law enforcement officer to whom the warrant was issued is a member.

PART 5 - EMERGENCY AUTHORISATIONS

Clause 33 When application may be made for emergency authorisation.

This clause is based on the existing “urgent authorisations” provisions in the Act. Subclause (1) provides for an emergency authorisation to be issued by a senior officer in circumstances where there is an imminent threat of serious personal violence or substantial property damage. Subclause (2) provides for emergency authorisations to be given in serious and urgent circumstances where a serious drug offence has been, is being, is about to be or is likely to be committed.

The model provisions do not extend to the use of emergency authorisations in respect of serious drug offences, but as the Act already provides for these, they are retained and clause 36, to retain consistency with the model provisions, makes it clear that an emergency authorisation with regard to serious drugs offences cannot authorise the installation or use of a surveillance device outside the jurisdiction.

Clause 34 How application is made.

This clause allows an application to be made orally, in writing, by phone, fax, email or other forms of communication.

Clause 35 When authorisation may be given.

This clause requires that a senior officer must be satisfied that there are reasonable grounds for the belief founding an application for an emergency authorisation.

Clause 36 Effect of authorisation.

This clause clarifies that an authorisation allows the applicant to do anything that a surveillance device warrant would authorise them to do.

Clause 37 Application for approval after use of surveillance device under emergency authorisation.

This clause requires a senior officer to apply to a Judge within
two business days for approval of the exercise of powers under the emergency authorisation and sets out what the application must contain. The application must not be heard in open court. This varies from the current provisions which require the officer to apply no later than 24 hours after the exercise of the powers under the authorisation.

Clause 38 Consideration of application.

This clause sets out the matters which the Judge must consider before approving the emergency use of powers.

Clause 39 Judge may approve emergency use of powers.

This clause sets out what the Judge must be satisfied of in approving an application.

If the use is approved, a surveillance device warrant may be issued for the continued use of the device. If the application is not approved, the Judge may order that the use of the device cease and authorise retrieval of the device. The Judge also has discretion to make orders about the information obtained from the use of the device.

Clause 40 Admissibility of evidence.

This clause clarifies that evidence obtained under an emergency authorisation is not inadmissible in any proceeding only because it was obtained before approval was given.

PART 6 - EMERGENCY USE OF LISTENING AND OPTICAL SURVEILLANCE DEVICES IN PUBLIC INTEREST

Division 1 - Preliminary matters

Clause 41 Definition.

This clause defines “public interest” to include the interests of national security, public safety, the economic wellbeing of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens.

Clause 42 Unlawful acts.

This clause clarifies that Part 6 does not apply if in the course of installing or using a listening device or optical surveillance device an unlawful act is carried out.

Division 2 - Emergency use of listening and optical surveillance devices in the public interest

Clause 43 Emergency use of a listening device in public interest.

This clause allows for a person to use a listening device if at the time the person believes there are reasonable grounds to believe the circumstances are so serious and of such urgency that the use of the device is in the public interest.

Clause 44 Emergency use of optical surveillance device in public interest.

This clause is identical to clause 43, but relates to the use of an optical surveillance device.

Clause 45 Report to Judge.

This clause is a requirement to provide a report to a Judge within two business days of starting to use a device in the public interest.
It sets out what the report must contain. A Judge may direct that any record of evidence or information obtained by the use of the device be provided to the Judge, and that report must be kept in the custody of the Court. The Judge may order the information be returned, made available to any person, or destroyed.

Division 3 - Publication and communication of information

Clause 46 Order allowing publication or communication in public interest.

This clause provides that a Judge, if satisfied that publication or communication of information obtained as a use of a device used in the public interest should be made to protect or further protect the public interest, may make an order for publication. This order may be subject to conditions. A report or record of a private conversation or activity obtained as a result of the use of a device in the public interest may be ordered to be made available to any person or destroyed, or given to the Police, the Australian Crime Commission, or kept in the custody of the Supreme Court.

Clause 47 Application for publication order.

This clause sets out how an application for a publication order must be made and what it must contain.

Clause 48 Confidentiality.

This clause clarifies that the application must not be heard in open court and that certain material must not be available by search through the Supreme Court, except upon the direction of a Judge.

PART 7 - RECOGNITION OF CORRESPONDING WARRANTS AND AUTHORISATIONS

Clause 49 Corresponding warrants.

This clause allows for the execution of a corresponding warrant as if it were a surveillance warrant issued in the Northern Territory.
See definition of “corresponding warrant”.

Once all States and Territories have adopted the model law, warrants and emergency authorisations that are issued in the Northern Territory will be recognised as valid in those jurisdictions by virtue of provisions that mirror Part 2 of the Act.

Clause 50 Corresponding authorisations.

This clause ensures that a corresponding emergency authorisation can authorise the issue of a surveillance device in the Northern Territory
as if it were given under the Act. See definition of
“corresponding emergency authorisation”. If an interstate Judge does not approve the emergency authorisation under a corresponding law and orders that the use of the device should cease, the recognition of the emergency authorisation in the Northern Territory will also cease.

PART 8 – COMPLIANCE AND MONITORING

Division 1 - Restrictions on use, communication and publication of information

Clause 51 Protection information.

In keeping with the sensitive nature of information obtained by surveillance devices, the model legislation contains a general prohibition against the use, communication or publication of what is labeled “protected information”.

This clause defines “protected information”. This includes information obtained from the use of devices and information relating to the application process.

Clause 52 Prohibition on use, communication or publication of protected information.

This clause creates offences. The penalty for using, communicating or publishing protected information is two years imprisonment or a fine of $25,000. If the sue, communication or publication of the information endangers the health or safety of any person, or prejudices the effective conduct of an investigation into an offence, the penalty is
10 years imprisonment or $150,000.

The clause also provides exemptions for disclosure if information in a proceeding in open court, or which has entered the public domain, or where it is reasonably believed the use of the information is necessary to prevent or reduce the risk of serious violence to a person or substantial damage to property, or the Director-General of
Australian Security Intelligence Organisation (ASIO) or by an ASIO officer in the performance of the officer’s official functions, or under the Mutual Assistance in Criminal Matters Act 1987 (Cth).

Clause 53 Permitted use of local protected information.

This clause sets out when local protected information may be used, communicated or published.

Clause 54 Permitted use of corresponding protected information.

This clause sets out when corresponding protected information may be used, communicated or published.

Protected information obtained from or relating to emergency authorisations that are not approved by a Judge cannot be used, communicated or published.

Clause 55 Dealing with records obtained by use of surveillance devices.

This clause requires the chief officer of a law enforcement agency to ensure the secure storage and then destruction of reports and records relating to the use of surveillance devices.

Clause 56 Protection of surveillance device technologies and methods.

This clause enables a person to object to the disclosure of surveillance device technology or the methods of installing, using or retrieving surveillance devices in any proceeding. The person conducting the proceedings may order the information not disclosed if satisfied that the grounds of the objection are made out. In deciding whether or not to make the order, the presiding officer must take into account whether the disclosure of the information is necessary for a fair trial, or is in the public interest.

Clause 57 Protected information in custody of court

This clause prevents a person from searching any protected information in the custody of a court unless the court otherwise orders in the interests of justice.

Division 2 - Reporting and record-keeping

Clause 58 Report to Judge or magistrate.

This clause requires a law enforcement officer to whom a warrant is issued, or who is primarily responsible for executing a warrant to report to the Judge or magistrate who issued the warrant on the use of the surveillance device. On receiving the report, the Judge or magistrate may make orders in relation to the information or any record obtained in relation to the warrant. The report must state:

· the name of each person involved in executing the warrant;
· the kind of surveillance device used;
· details of the benefit to the investigation of the use of the device;
· details of compliance with any conditions in the warrant;
· if the warrant was extended or varied, the number of extensions or variations and the reasons for them.

In the case of a retrieval warrant:

· details of anything opened and any object removed or replaced under the warrant;
· if the device was not retrieved, the reasons why;
· details of compliance with any conditions in the warrant.

Clause 59 Annual reports.

The chief officer of a law enforcement agency is required to report to the Minister each financial year.

Clause 60 Keeping documents for warrants and emergency authorisations.

This clause requires the chief officer of a law enforcement agency to keep documents connected with warrants and emergency authorisations. This provides a documentary trail for the Ombudsman to measure compliance with the Act. The chief officer must also destroy surveillance devices records and reports when records and reports are not likely to be required for purposes under the Act.

Clause 61 Other records to be kept.

The chief officer of a law enforcement agency must also keep records that form the basis of the annual report. These records will also assist the Ombudsman to measure the agency’s compliance with obligations under the Act.

Clause 62 Register of warrants and emergency authorisations.

This clause sets up a new requirement to keep a register of warrants and emergency authorisations. This requirement is based on the record keeping obligations in the Telecommunications (Interception) Act 1979 (Cth).

Division 3 - Inspections

Clause 63 Inspection of records by Ombudsman.

This clause requires the Ombudsman to inspect the records of a law enforcement agency to determine the extent of compliance with the Act.

Clause 64 Ombudsman’s reports on investigations.

The Ombudsman must make a written report to the Minister every six months on the results of each inspection under section 63.
The Minister is required to table a copy of the Ombudsman’s report in the Legislative Assembly.

Clause 65 Commonwealth Ombudsman’s reports on investigations.

This clause obliges the Minister, within seven sitting days after receiving a report by the Commonwealth Ombudsman under
section 61(3) of the Commonwealth Surveillance Devices Act 2004, to table a copy of it in the Legislative Assembly.
PART 9 - FURTHER OFFENCES, ENFORCEMENT AND LEGAL PROCEEDINGS

Division 1 - Offences

Clause 66 Possession of surveillance device for unlawful use.

This clause makes it an offence to possess a surveillance device knowing it is intended to be used in contravention of a law of the commonwealth, another jurisdiction or the Act. The penalty has been increased from 100 penalty units to 250 penalty units.
The imprisonment penalty of two years has not changed.

Clause 67 Damaging etc. surveillance device.

This Clause makes it an offence to cause damage to or interfere with the use of a surveillance device, or to remove a surveillance device which has been lawfully installed.

The penalty has been increased from 100 penalty units to 250 penalty units. The imprisonment penalty of two years has not changed.

Division 2 - Search and seizure of surveillance devices

Clause 68 Power to search and seize.

This clause empowers a police officer who reasonably believes a person possesses a surveillance device intended to be used in contravention of the Act to stope and search a person, stop, detain and search a vehicle, enter and search a place. The officer may seize and remove the device and any connection device.

Clause 69 Retention of seized device.

This clause relates to a seizure under clause 68(2). The device may be retained until the final decision on a proceeding in relation to the device unless it is ordered to be returned or dealt with by a magistrate by order in relation to an application from any person claiming to have an interest in the device for its return. The magistrate may order the release, or other dealing or the retention of the device by the Commissioner of Police.

Division 3 – Legal proceedings

Clause 70 Admissibility in criminal proceeding of information inadvertenty obtained.

This clause preserves the current provision allowing evidence of a private conversation or private activity which has been obtained inadvertently as a direct or indirect use of a surveillance device under a warrant to be given in evidence. The clause makes it clear that the information is not admissible where the court determines that the application for the warrant or authorisation concerned was not make in good faith.

Clause 71 Evidentiary certificates.

This clause enables a senior officer of a law enforcement agency or a person assisting to issue an evidentiary certificate. The purpose of the certificate is to streamline legal proceedings by avoiding the need to call technical expert witnesses to give evidence relating to the execution of warrants and emergency authorisations and the use of information obtained from them. It does not prevent witnesses from being called to give evidence or to be cross-examined. This section is based on the Telecommunications (Interception) Act 1979 (Cth) and the model provisions.

Clause 72 Liability of executive officers of body corporate.

This clause ensures that offences committed against the Act by a body corporate are covered. The clause provides that each of the executive officers commits the offence and is liable for the same penalty as is prescribed for the principal offence. Defences to a charge against an executive officer include that:
· the principal offence was committed without the defendant’s knowledge and the defendant’s ignorance of the offence was not due to lack of proper diligence on the defendant’s part; or
· the defendant was not in a position to influence the conduct of the body corporate resulting in the principal offence; or
· the defendant exercised all proper diligence to prevent the body corporate from committing the principal offence.

Clause 73 Forfeiture orders.

This clause allows the court to make forfeiture orders where a person is found guilty of an offence against the Act. The forfeiture order is in addition to any penalty imposed. A forfeiture order empowers a law enforcement officer to enter a place and seize the device.

PART 10 - MISCELLANEOUS MATTERS

Clause 74 Authorised persons.

This clause allows for the Commissioner of Police to appoint an eligible employee to assist in the use of a surveillance device.

Clause 75 Acquisition on just terms.

This clause allows for compensation to be provided to a person entitled to receive such compensation to ensure that acquisition is on just terms.

Clause 76 Protection from liability.

This clause provides police officers, authorised persons and persons assisting the exercise of a power or function under the Act with protection from civil or criminal liability.

Clause 77 Regulations.

This clause provides the regulation making power. The maximum fine which can be prescribed under the regulations is 200 penalty units.

PART II - REPEALS AND TRANSITIONAL MATTERS

Clause 78 Repeal.

This clause repeals the Surveillance Devices Act (Act No. 56 of 2000).

Clause 79 Definitions.

This clause defines the “commencement date as the date on which section 77 commences, and “repealed Act” as the
Surveillance Devices Act in force immediately before the commencement date.

Clause 80 Undecided applications relating to warrants.

This clause saves any applications which have not been decided immediately before the commencement date.
Clause 81 Warrants.

This clause continues the effect of any warrant in force under the repealed Act.

Clause 82 Urgent authorisations.

This clause provides that, where an application for a warrant made under section 29 of the repealed Act has not been made for an emergency authorisation at the beginning of the commencement date, the authorisation is taken to have been issued on the day before the commencement date, and where an application for a warrant has not been decided, at the beginning of the commencement date, the application may be decided as if it were an application under section 38 of the Act.

Clause 83 Information, records and reports obtained under repealed Act.

This clause provides for information obtained from the use of a surveillance device under a warrant or urgent authorisation under the repealed Act to be taken to be local protected information.

PART 12 CONSEQUENTIAL AMENDMENTS

Division 1 Amendment of Information Act

Clause 84.
Act Amended

This clause makes it clear that the Division amends the Information Act.

Clause 85 Amendment of Schedule 1 (Secrecy Provisions)

This clause inserts into Schedule 1 of the Information Act, sections 15(1), 16(1) and 52(1) and (2) of the Surveillance Devices Act.

Division 2 Amendment of Ombudsman (Northern Territory) Act.

Clause 86 This clause makes it clear that the Ombudsman (Northern Territory) Act is amended.

Clause 87 Amendment of section 12 (Delegation)

This clause amends section 12 to extend the Ombudsman’s powers of delegation. Currently the Ombudsman may only delegate powers under the Ombudsman’s Act. As the Ombudsman will have powers of investigation under the Surveillance Devices Act, it is necessary to extend this provision.

Clause 88 Amendment of section 31 (Protection of Ombudsman and Staff)

This clause amends section 31(1) of the Ombudsman (Northern Territory) Act to ensure that the Ombudsman and her staff are protected against criminal or civil proceedings for an act done under that Act or another Act. Section 31(4) has been amended to ensure that the Ombudsman cannot be called to give evidence with respect to any matter coming to her attention as a result of the exercise of powers, duties or functions under the Act or another Act.

Clause 89 Expiry

This clause provides for the expiry of the consequential amendments once they have commenced and amended the relevant principal Act.

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