5.22 In IP 12, the Commission asked whether the existing categories of offences for which warrants can be obtained under the LDA needed revision or expansion and whether any specific offences (including non-indictable offences) should be prescribed.²⁷

Submissions and response

5.23 Most submissions expressed the view that the existing offences for which LDA warrants could be sought were adequate and needed no amendment. Price Waterhouse considered the existing categories to be appropriate, suggesting that, in order to justify the invasion of privacy, any amendment would have to be in relation to serious offences only.²⁸ Other submissions expressed the view that while there was no compelling argument for extending the categories of offences, some changes would nevertheless be useful. For example, the Director of Public Prosecutions (“DPP”) suggested that there should be a presumptive weighting in favour of granting a warrant where child abuse is alleged.²⁹ The Privacy Committee considered that warrants should be limited to serious offences, such as those with a maximum penalty of 7 years or greater.³⁰ The Public Defender submitted that he did not see any compelling argument to expand the existing categories of offences for which a listening device warrant can be obtained. Additionally, he expressed the view that “if the information obtained as a result of a warrant does not amount to proof of an offence falling within the categories which permit the warrant to be given, this should not prevent a prosecution”. Likewise, in his view, the LDA should not prevent the use of information obtained about an offence not prescribed under the Act, if that information was obtained incidentally during the lawful use of the warrant in relation to a separate prescribed offence.³¹

5.24 Some submissions supported a revision of the category of offences, but in divergent respects. The NSW Council for Civil Liberties was of the view that the categories of offences for which warrants may be sought should be narrowed and made more specific.³² On the other hand, the Australian Federation of Business and Professional Women considered that the categories should be expanded. The Federation submitted that women often live in fear of offences that might not fall within the scope of “imminent threat of serious violence”, and a relaxation of some of the categories would better allow women to protect themselves and prosecute offenders by employing listening devices.³³

5.25 Law enforcement agencies. Several law enforcement agencies suggested to the Commission that they should be able to apply for a warrant to investigate any offence in the course of their duty. The NSW Police Service, Special Services Group argued that “it is impossible to specifically define now, or into the future, what offences may best be investigated by the employment of surveillance methodologies”.³⁴ The police were of the view that “qualified agencies” should be able to apply for a warrant whenever necessary for the purposes of an authorised investigation, regardless of the offence which is being investigated. The NSW Crime Commission, the Independent Commission Against Corruption, the National Crime Authority and the Police Integrity Commission, in a joint submission, agreed.³⁵ The police submission also noted the special position of undercover operatives who may be investigating offences not covered under the LDA, or may be in the initial stages of an investigation where sufficient evidence to support a warrant application has not yet been gained. The police argued that it is often necessary to use a listening device to protect the safety of undercover officers in these situations, especially where they are in vehicles and cannot be observed by support personnel.

Other jurisdictions

5.26 Most Acts in jurisdictions outside New South Wales authorising the use of a listening device allow an application for a warrant for a listening device to be made in respect of an “offence” without specifying particular offences to which the Acts will apply.³⁶ The most detailed provision specifying categories of offences for which a warrant may be sought is contained in the Telecommunications (Interception) Act 1979 (Cth) (“Interception Act”).³⁷

Conclusion

5.27 The Commission has concluded that the proposed Surveillance Act should neither limit the category of offences, nor attempt to prescribe specific offences, for which a warrant may be obtained. It is often not possible at the time an application is made to know whether the criminal activity under investigation will result in a prosecution for a summary offence or an indictable offence. The distinction between these categories has become increasingly blurred in some legislation.³⁸ In addition, there are offences which are serious but not indictable. For example, common assault can be a serious offence, but is not an indictable one. The Commission sees merit in the arguments presented in the submission of the NSW Police Service, Special Services Group, referred to above.

Recommendation 24

The proposed Surveillance Act should allow an application for a warrant to be made with respect to any offence.

5.28 In IP 12, the Commission asked whether the power to grant surveillance warrants should be limited to judges of the Supreme Court.³⁹

Submissions and response

5.29 Most submissions addressing this issue considered that the power should be limited to judges of the Supreme Court on the basis that the importance of the decision to issue a warrant justifies restricting the power to judges of the highest authority.⁴⁰ In advocating that the power to grant warrants be limited to Supreme Court judges, the Privacy Committee argued that, since the person who is the subject of the warrant application has no opportunity to defend him or herself against arbitrary privacy infringements, it is appropriate that the matter be considered by a superior court judge.⁴¹

5.30 Two submissions expressed the view that the power to grant warrants should not be so limited. The NSW Council for Civil Liberties considered that the power could be extended to District Court judges provided they follow guidelines and report either to a Privacy Commissioner or a Privacy Ombudsman.⁴² The Insurance Council of Australia also indicated that it would not oppose an extension of the power to grant surveillance warrants.⁴³

5.31 A submission from a private investigation and security organisation was of the view that courts should not be involved in issuing warrants at all as this would preclude all but police from using the legislation.⁴⁴ The submission argued that there should be a system of licences authorising the covert use of video equipment. According to this submission, to apply for a licence, an organisation should submit a resume of experience to a committee comprising various representatives, including the Privacy Committee. A licence to conduct surveillance should be issued subject to certain strict conditions and the applicant should have to submit to a probity check.

Other jurisdictions

5.32 There is precedent in other jurisdictions for vesting the power to issue warrants in office-holders other than judicial officers. In the United Kingdom, the Interception of Communications Act 1985 (UK) vests the power to issue interception warrants in the Secretary of State. At the Commonwealth level, the Interception Act was amended in 1997 to permit members of the Administrative Appeals Tribunal (AAT) nominated by the Attorney General to issue warrants authorising telephone interceptions.⁴⁵

5.33 However, the relevant laws of the Australian States and Territories all provide for warrants to be issued by judicial officers. In the United States, each application for an order authorising or approving the interception of a wire, oral, or electronic communication has to be made in writing to a judge.⁴⁶ In Canada, an application for an authorisation to intercept a private communication must be made to a judge.⁴⁷ In New Zealand, an application may be made to a judge of the High Court for a warrant for any member of the Police to intercept a private communication by means of a listening device.⁴⁸

Conclusion

5.34 The European Human Rights Commission observed that it is desirable that the power to authorise secret surveillance of suspects in criminal cases be limited to judges because “in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust control to a judge”.⁴⁹ The Commission agrees that the power to issue warrants should be limited to judicial officers. It is important that a decision to authorise such intrusive conduct as the carrying out of covert surveillance be made by an impartial authority, skilled in the appraisal of evidence and the likelihood of obtaining information or evidence by other means, and experienced in the weighing of the community interest to investigate and prosecute offences against the privacy interests of individuals. Judicial officers have the requisite forensic skills and experience, independence and integrity to determine when invasions of privacy are necessary and justified. As well, the respect which judicial officers command in the community would ensure public confidence in a system that vests control over the issuing of warrants for covert surveillance in them. The Commission is, therefore, of the view that the proposed Surveillance Act should limit the power to issue warrants to Supreme and District Court judges and magistrates who have consented to be nominated as “eligible”. It is envisaged that the source of “eligible judges” should primarily be judges of superior courts, with District Court judges and magistrates being nominated as “eligible” where the need to do so arises.

5.35 There are two reasons why the Commission is of the view that the power to issue warrants should not be confined to Supreme Court judges. First, it is theoretically possible that the number of Supreme Court judges who have consented to become “eligible” for the purposes of the Act may be insufficient at a particular point in time to decide all applications for warrants. Secondly, requiring an application before the Supreme Court by police officers in a country town may not always be practicable and could jeopardise a planned operation where time is of the essence. Therefore, while as a general rule the authority to issue warrants should be conferred on Supreme Court judges, the proposed Surveillance Act should contain provisions similar to section 3B and 16(7) of the LDA. These sections allow the Attorney General to nominate District Court judges and magistrates to exercise the functions of an “eligible judge”. The Commission’s recommendation below therefore preserves the existing power to draw not only on Supreme Court judges to be nominated as “eligible” to issue warrants, but on District Court judges and magistrates, should the need arise in particular circumstances.

Recommendation 25

The proposed Surveillance Act should empower the Attorney General to declare Supreme Court judges as “eligible judges” for the purpose of deciding applications for surveillance warrants. The proposed Surveillance Act should also authorise the Attorney General to nominate District Court judges and Magistrates as “eligible judicial officers” who may exercise the functions of an “eligible judge”.

5.36 As set out in paragraph 5.8 above, section 16(2) of the LDA prescribes the matters to which the judge must have regard in determining whether a warrant should be granted. In connection with these matters, the High Court has held that in determining the admissibility of evidence obtained by the use of a listening device under the authority of a warrant, a court must determine merely whether the warrant was regularly granted by the eligible judge. It does not inquire into the sufficiency of the material which satisfied the eligible judge of the matters to which he or she must have regard.⁵⁰

5.37 The parameters set out in section 16(2) afford important protection against the issuing of warrants in cases where it was not absolutely essential or appropriate. As well, they provide the judge with a useful check list and guidance in what will often be a difficult exercise of balancing competing claims of apparently equal merit. By the same token, the matters to which the judge must have regard do not impose unreasonable restrictions on the exercise of the judge’s discretion. Subject to some reservations the Commission has with section 16(2)(c), the Commission recommends that these guidelines should be used in the proposed Surveillance Act.

5.38 Section 16(2)(c) of the LDA requires the judge to have regard to “alternative means of obtaining the evidence or information sought to be obtained”. This suggests that the availability of investigative techniques other than the covert use of surveillance devices may be a ground for refusing an application for a warrant. It is important, however, that the wording be unambiguous in emphasising that law enforcement officers should only resort to covert use of surveillance devices if other investigative techniques are ineffective, inappropriate or unavailable. Covert surveillance should by no means be routinely employed as the initial step in a criminal investigation. The Commission recommends that the purpose of section 16(2)(c) be made unambiguous by more direct and explicit direction as to the matters to which the judge should have regard.

Recommendation 26

In determining whether a warrant should be granted, the eligible judge should have regard to:

• the nature of the offence in respect of which the warrant is sought;
• the extent to which the privacy of any person is likely to be affected;
• whether other investigative procedures have been tried but have failed; or other investigative procedures are unlikely to succeed or likely to be too dangerous to adopt in the particular case; or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative techniques;
• the evidentiary value of any evidence sought to be obtained; and
• any previous warrant sought or granted in connection with the same offence.

5.39 It is imperative that a warrant permitting covert surveillance also authorise entry onto premises for the purposes of executing the warrant and installing and retrieving surveillance devices. The proposed legislation should therefore include a section similar to section 16(3) of the LDA. However, a number of issues arise in relation to the parameters of the authority given by a warrant, including:

• whether there is a need to broaden the meaning of “premises”;⁵¹
• whether the proposed legislation should enable an eligible judge to authorise the use of a surveillance device in any location in relation to a particular person or activity;
• whether a warrant authorising the installation and retrieval of a surveillance device should state that such entry is not unlawful;⁵²
• whether the proposed legislation should provide for authority to repair, test, maintain and move the surveillance device after it was installed; and
• whether a warrant should authorise the use of electricity to power a surveillance device.

5.40 The current definition of premises in the LDA includes “vessels, vehicles and aircraft”.⁵³ It makes no provision for containers, which are often used in transporting stolen goods, importing illicit drugs and so forth. The Commission asked in IP 12, whether the definition should be amended to include containers as a type of “premises” which may be authorised by warrant for the installation of a listening device, so that any evidence obtained is not later deemed inadmissible.⁵⁴

5.41 All but one of the submissions which addressed this issue agreed with the Commission’s suggestion that the definition of “premises” in the LDA in which surveillance devices can be located should include containers.⁵⁵ Some submissions favoured a broader definition than the one proposed by the Commission. The NSW Police Special Services Group suggested that the definition of “premises” should also include objects such as suitcases, drums, packages, bags, and other similar equipment. The Police submission also argued that because surveillance devices can be used in so many different environments, it would be extremely difficult to attempt to define each one. The submission suggested that, in addition to the current definition, the LDA should provide that “premises” includes “other things where a surveillance device may be attached”.⁵⁶

5.42 On the other hand, the Law Society of New South Wales expressed the view that the term “containers” is very broad and unclear, and that the need to expand the definition has not been demonstrated.⁵⁷

5.43 The Commission considers that the proposed surveillance legislation should not attempt to define exhaustively the places where it may be possible and necessary to install a surveillance device. The definition of “premises” should be both broad and flexible. There appears to be no public policy reason why the current definition of “vessels, vehicles and aircraft” should not be extended to include any place, thing or object which the eligible judge determines to be appropriates.

Recommendation 27

“Premises” should be defined in the proposed Surveillance Act to include any object, thing or place where the eligible judge, in the exercise of his or her discretion, authorises a device to be installed.

5.44 The DPP and the Joint Law Enforcement Agencies’ submission supported the recommendation in the Wood Report that the focus not be on the premises where the surveillance will take place, but on the target of the surveillance or the activity under investigation. They recommended that the warrant should authorise entry to any premises where the relevant person or thing is, or is likely to be.⁵⁸ The Joint Law Enforcement Agencies’ submission noted that it is sometimes necessary to enter another premises for the purpose of gaining access to the premises where the device is to be installed, for example, installing a device in a car may necessitate obtaining access to the garage where the car is kept. The submission also stated that sometimes, where data monitoring or tracking devices are concerned, it may be difficult to nominate the location where the device will be used, since the reason it is being used is to determine the location of the suspect person, activity or object.

5.45 The Commission is of the view, however, that while the definition of premises in the legislation should be broadened, the warrant authorising covert surveillance should remain specific as to the location of the surveillance device. Covert surveillance is an intrusive investigative tool which should be tightly controlled. Enabling a warrant to authorise the use of a device anywhere in relation to a particular person or activity has the potential to affect the privacy of a number of people not connected with the offence under investigation. The Commission accepts that there may be occasions, such as those noted in the submission from the Joint Law Enforcement Agencies, where nominating the exact location of the device is not possible or entry to other premises may need to be gained. In these situations, the onus should be on the applicant to persuade the court that a warrant is still justified in the circumstances. The court would then have the discretion to grant, refuse, or impose conditions on, the warrant.

Recommendation 28

The eligible judge should have the discretion to issue a warrant permitting surveillance of a particular person or thing without reference to specific premises if the applicant satisfies the eligible judge that such a warrant is justified in the particular circumstances, subject to any conditions which the eligible judge deems fit to impose.

Authority to enter premises where the device is to be installed and retrieved

5.46 In IP 12, the Commission raised the issue of whether a warrant authorising entry onto premises should state that such entry is not unlawful.⁵⁹ The issue was raised because of the judgment in Coco v The Queen.⁶⁰ That case examined section 43(2)(c) of the Invasion of Privacy Act 1971 (Qld) which authorises the use of listening devices by police officers.⁶¹ The High Court held that there was no clear expression in the legislation of an unmistakable and unambiguous intention to confer a power to authorise conduct that would otherwise amount to a trespass. The High Court concluded that if the statute did not explicitly or implicitly legalise a trespass for the purpose of installing a listening device, then there could be no power in a judge to authorise such an illegality.

5.47 However, the Commission is of the view that the way in which section 16(3) of the LDA is formulated expressly authorises the warrant-holder to enter onto premises, in order to install or retrieve a surveillance device, in such a way as would otherwise amount to a trespass. This provision constitutes clear expression of an unmistakable and unambiguous intention to abrogate the fundamental right of a person to exclude others from his or her property to enable another person to install or retrieve a listening device in or on such property. There appears to be no need to clarify such express authorisation further.

Recommendation 29

The proposed Surveillance Act should contain a provision similar to section 16(3) of the LDA, expressly authorising entry by the warrant-holder onto authorised premises for the purpose of installation and retrieval of the surveillance device, notwithstanding that such entry might otherwise be unlawful.

Entry to other premises

5.48 Related to the issue of authority for lawful entry to the premises where the device is to be installed and retrieved are the issues of access to other premises and the use of force to effect entry. If the definition of “premises” is broadened as recommended, “premises” for the purpose of a surveillance warrant may include personal property. Authority to enter such property, for example a motor vehicle, does not include authority to enter the place where, for example, the motor vehicle is located. The Commission is of the view that access to the place where moveable property is located must also be given by the legislation to allow the warrant-holder to install and retrieve the surveillance device.

Recommendation 30

An eligible judge should have the power to authorise the warrant-holder to enter upon any other premises as may be necessary for the purpose of gaining access to the premises where the surveillance device is to be installed and retrieved, notwithstanding that such entry might otherwise be unlawful.

Authority to enter premises to repair, test, move, maintain and replace the device

5.49 The LDA only authorises entry onto premises for the purpose of installing and retrieving the device.⁶² There is no specific provision authorising entry for the purpose of testing, repairing, maintaining, moving or replacing the device, even though this may on occasion be necessary. The Commission suggested in IP 12, that such powers should become automatic on issuing the warrant, as they may be an integral part of the success or otherwise of an operation.⁶³ The Commission sought submissions on whether the legislation should specifically provide for entry to premises for these ancillary purposes.⁶⁴

5.50 Submissions and response. The NSW Police Special Services Group noted that the devices often break down, necessitating entry onto the premises to carry out repairs.⁶⁵ This was also noted in the Wood Report.⁶⁶ Most of the submissions which commented on this issue agreed.⁶⁷ However, the NSW Council for Civil Liberties argued that any entry onto premises for any purpose should be conditional on specific and separate prior judicial authorisation. The Privacy Committee also stated that should entry for such purposes be necessary, it should be the subject of a separate warrant. It submitted that if the power to enter premises to test and maintain the device was ancillary to the warrant permitting installation and retrieval, the applicant “could freely enter the premises any number of times during the period of the warrant”. This, in the Privacy Committee’s view, is a significant invasion of privacy and one that needs to be considered specifically by a court on a case-by-case basis.⁶⁸ On the other hand, the Law Society of New South Wales suggested that if the legislation provides for such powers, it should also provide for record keeping of the number and detail of entries to premises, and subsequent disclosure to the householder.⁶⁹

5.51 Conclusion. It is reasonable to expect that surveillance devices will, from time to time, need to be tested and maintained and it is even likely that they will, from time to time, break down. If the devices cannot be maintained, tested, moved or repaired, the entire surveillance operation could be undermined. There is some inconsistency in the legislation allowing entry to premises in order to install a surveillance device, notwithstanding the invasion of privacy that may occur, but not allowing subsequent entry for the purposes of maintaining or repairing a device. Powers of entry to move, repair, maintain or replace a surveillance device sensibly follow from the power to enter to install and retrieve the device. Such authorisation can be granted in other jurisdictions.⁷⁰

5.52 The Commission has concluded that it is essential that entry onto premises for these ancillary purposes be authorised. The proposed Surveillance Act should provide that warrants may authorise powers of entry for such purposes. If the applicant for a warrant envisages that powers of entry to move, maintain, test or repair the device may be necessary, and the eligible judge is satisfied to that extent, the warrant should specifically authorise such powers. This is important given the court’s inability to imply powers into a warrant that are not clear on the face of the document.

Recommendation 31

An eligible judge should have the power to authorise entry to the relevant premises to enable the warrant-holder to repair, test, maintain, move and replace the surveillance device after it was installed, nothwithstanding that such entry might otherwise be unlawful.

Recommendation 32

If the warrant-holder exercises an authority given under the warrant to move a device to premises not specified in the warrant, the warrant-holder must report the move to the eligible judge as soon as reasonably practicable.

The use of reasonable force in the entry to premises

5.53 Circumstances may arise when the use of force may be necessary to gain entry to premises to install the surveillance device, or carry out other authorised functions. An express authority to use reasonable force in the execution of the warrant would protect the warrant-holder from criminal or civil liability for any damage done. A provision giving such authority is contained in a number of Commonwealth and State statutes.⁷¹

5.54 The Commission recommends that the warrant-holder be authorised to use an amount of force that is reasonable under the circumstances to effect entry onto the premises, or into a vehicle, container or other thing or place where a device is to be installed. This authority should be available not only during the initial entry to install but also in subsequent entries to the premises to repair, test, move, maintain or retrieve the surveillance device.

5.55 Some legislation authorising the use of force in the execution of a search warrant impliedly or expressly authorise the use of force against persons, not just against things.⁷² The use of force against persons in the execution of a search warrant may be necessary in certain circumstances when the occupant of the premises to be searched offers resistance to the search. However, covert surveillance operations are, by definition, conducted without the subject’s knowledge. Therefore, it is both unnecessary and illogical to authorise the use of force against the person who is to be the subject of the surveillance.

Recommendation 33

The eligible judge should have the power to authorise the warrant-holder to employ all reasonable means, not including force against a person, necessary in order to gain entry to premises where the surveillance devices are to be installed, retrieved, repaired, tested, moved, maintained or replaced, as well as other premises where the warrant-holder has been authorised to enter for those purposes, whether or not the means employed would otherwise amount to damage or trespass to property.

Use of electricity to power the device

5.56 In IP 12, the Commission suggested that the authorised use of a surveillance device should also include the use of electricity connected to the premises to power the device.⁷³ This was recommended by the Wood Report.⁷⁴ All submissions on this point agreed with the Commission’s suggestion.⁷⁵ The Privacy Committee submitted that the court should have the authority to approve the use of electricity to power the device, after considering the amount of power involved and any potential damage to property that may occur, and should be able to order the applicant to refund any costs if necessary.⁷⁶

5.57 Authorising the use of electricity connected to the premises would remove any argument at a later date that the device had been used unlawfully and avoid any suggestion of theft of electricity.⁷⁷ Other forms of power, for example batteries, present the real possibility of not being able effectively to conceal the device or of losing power prior to the expiration of the warrant. The Commission is therefore of the view that, because of the desirability of removing doubt about the lawfulness of the surveillance, and to protect the warrant-holder from civil or criminal liability for the use of electricity, a warrant-holder should be authorised to use electricity connected to the premises to power the surveillance device.

Recommendation 34

The proposed Surveillance Act should empower the eligible judge to authorise the use of electricity connected to the premises to power the surveillance device.

5.58 Section 16(4)(d) of the LDA requires a warrant to specify the name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person.⁷⁸ This requirement fails to address situations where:

• it is necessary to substitute or use extra personnel (currently a new warrant has to be obtained); or
• an interpreter is needed to use the device to listen to the conversation and translate, unless this need was foreseen when the warrant was originally obtained.

Submissions and response

5.60 The views expressed in submissions were divided on this question. Some submissions considered that all people involved in covert surveillance operations should be named in the warrant to guard against abuse and to promote accountability.⁸⁰ The NSW Young Lawyers Criminal Law Committee noted that section 20A of the LDA protects undercover police officers by allowing warrants to be issued to a person in an assumed or code-name if the court considers that to be necessary to protect the safety of that person.⁸¹ The Registered Clubs Association considered that specific people should be authorised to carry out surveillance. Those people should be appropriately trained and licensed, undergo security checks and meet high professional and ethical standards.⁸²

5.61 Other submissions were of the view that the requirement should be removed from the legislation. The DPP considered the requirement to be unnecessary and inflexible.⁸³ The NSW Police Special Services Group stated that the requirement meant that a warrant may have up to thirty names so as to cover all possible contingencies.⁸⁴ A number of submissions stated that the preferable option was to follow the Search Warrants Act 1985 (NSW) and nominate a particular person to execute the warrant “with such assistance as he/she considers necessary”.⁸⁵ The Joint Law Enforcement Agencies’ submission noted that this approach would allow for officers of the relevant agency, as well as locksmiths, telephone technicians and others to assist in installing and monitoring a device. The Privacy Committee was of the view that delegation should be allowed, provided the names of the other people who exercised the warrant are provided to the court within a reasonable time (10 days is suggested) after the date of the surveillance.⁸⁶ The Public Defender also thought that delegation should be allowed, but that the names of the people to whom the power is delegated should be included in the warrant at a later date.⁸⁷ The Law Society of New South Wales was of the view that the current legislation is unnecessarily cumbersome and does little to advance privacy interests. It suggested that the officer in charge should be named in the warrant, along with other relevant officers, and should be made responsible for any illegal conduct that occurs during the execution of the warrant.⁸⁸

Other legislation

5.62 Other Acts regulating similar areas are not as stringent as section 16(4)(d) of the LDA. For example, the Search Warrants Act 1985 (NSW) allows a person to execute a search warrant with the aid of such assistance as that person considers necessary.⁸⁹ A warrant issued pursuant to the Australian Security Intelligence Organisation Act 1979 (Cth) authorises “the Organisation”, including its officers, employees or agents, to use a listening device.⁹⁰ Under the Customs Act 1901 (Cth), the warrant confers authority on the chief officer of the Commonwealth law enforcement agency concerned or other officials of the agency appointed by the chief officer.⁹¹ As well, the Wood Report recommended that the LDA be amended to provide that only the principal investigator need be named in the warrant and to empower the warrant-holder to seek whatever assistance is necessary.⁹²

Conclusion

5.63 It is not always possible at the time the warrant is sought to positively identify the persons who will be available to install and monitor a listening device at the relevant time. The Commission is aware that operational requirements of warrant applicants, especially law enforcement agencies, may, and frequently do, change at short notice requiring available officers to undertake other duties. Other factors, such as court commitments of law enforcement officers and sick and recreational leave, also affect the deployment of personnel.

5.64 The Commission recommends that the person primarily responsible for the execution of the surveillance warrant should be named on the warrant before it is issued. Where the identity of people conducting surveillance needs to be protected for safety reasons, assumed or code-names should be able to be used. In situations where it is not possible to foresee the type of assistance that may be needed to execute the warrant effectively, the Commission considers that the surveillance legislation should empower an eligible judge to authorise the warrant-holder to delegate to others the authority conferred by the warrant. As an accountability measure, the Commission agrees with the suggestion of the Privacy Committee that the names of all people involved in the surveillance operation should be provided to the eligible judge as soon as reasonably practicable after the completion of the surveillance.

Recommendation 35

The person primarily responsible for the execution of the warrant should be named in the warrant. The eligible judge should have the power to authorise that person to seek whatever assistance is necessary to execute the warrant.

Recommendation 36

The proposed Surveillance Act should contain a provision similar to section 20A(1) of the LDA permitting the use of assumed names or code names in a warrant.

Recommendation 37

The names of all persons who were involved in executing the warrant should be provided to the eligible judge as soon as reasonably practicable after the completion of the surveillance.

5.65 In IP 12, the Commission sought submissions on whether the period for which the warrant can be in force should be extended beyond the 21-day period currently permitted by the LDA.⁹³

Submissions and response

5.66 Most submissions on this point were of the view that the warrant period should be extended beyond 21 days.⁹⁴ The Registered Clubs Association noted that the Working Party on Video Surveillance in the Workplace suggested that a warrant for covert video surveillance in the workplace operate for a maximum of 30 days. The Association considered that video surveillance would rarely extend beyond 30 days due to the prohibitive costs.⁹⁵ In line with this submission, the Public Defender considered that the maximum life of a warrant should be about one month, with the power to apply for an extension of up to 60 days with a supporting affidavit.⁹⁶ Other submissions endorsed the recommendation in the Wood Report of a 90 day maximum⁹⁷ to address the problems that occur due to operational delays which exist or arise and which are beyond the control of the law enforcement agency.⁹⁸ The majority of submissions were of the view that an extension of the warrant period should be judicially approved.⁹⁹

5.67 Contrary views were expressed by the Privacy Committee¹⁰⁰ and the Law Society of New South Wales¹⁰¹ who considered that 21 days was sufficient time. The Privacy Committee argued that longer time periods may involve “fishing expeditions”, and that requiring a fresh warrant means that serious intrusions into privacy must be continuously justified and scrutinised by the court.

Other legislation

5.68 The Northern Territory legislation allows a warrant to be in force for 21 days.¹⁰² Tasmanian legislation allows 60 days;¹⁰³ Western Australian, Victorian and South Australian legislation allow 90 days;¹⁰⁴ while Queensland legislation has no statutory maximum. At a Commonwealth level, the Australian Security Intelligence Organisation Act 1979 (Cth)¹⁰⁵ and the Customs Act 1901 (Cth)¹⁰⁶ permit a warrant for a listening device to remain in force for 6 months. The Interception Act has a 90 day limit.¹⁰⁷

Conclusion

5.69 Applying a time limit on the period during which a warrant is in force ensures that the surveillance is carried out within the shortest time possible to prevent any more intrusion on an individual’s privacy than is necessary under the circumstances. However, this safeguard has to allow a realistic time frame for the installation and removal of the surveillance device, and for the actual surveillance to take place effectively.

5.70 In many cases, 21 days will be insufficient to effect covert entry, installation of devices, the carrying out of the surveillance to achieve the purpose for which the warrant was issued, and removal of equipment. This is particularly so if there are unforeseen circumstances. The NSW Police Service pointed out in their submission that entry and installation may be delayed if the premises are occupied and the officers involved in the operation have to wait until an appropriate time to covertly install the device.

5.71 To make allowance for such possible procedural delays in complying with the provisions contained in the warrant as soon as it is issued, the Commission recommends that the maximum term of the warrant be extended to 30 days. This extension strikes a reasonable balance between an unrealistically short time-frame on the one hand and unnecessary invasions of privacy on the other. A term longer than this, for example 90 days as recommended by the Wood Report,¹⁰⁸ weakens the high degree of accountability which covert surveillance requires and which a shorter time frame secures. It also encroaches on justifiable levels of intrusion into the privacy of individuals. A provision allowing the eligible judge to issue further warrants in respect of the same operation would address any need for further time to achieve the object of the surveillance activity. As in the LDA, the proposed Surveillance Act should provide that further warrants, each not exceeding a period of 30 days, would require a fresh application. This will enable the eligible judge to scrutinise whether the extension of the surveillance is appropriate in the circumstances.

Recommendation 38

The period for which a warrant can be in force should be 30 days. Further warrants, each for a maximum period of 30 days, should be able to be applied for in respect of the same offence upon lodgement of a new application.

The warrant

5.72 As noted at paragraph 5.10 above, section 16(4) of the LDA prescribes that a warrant must specify a number of matters, in default of which the warrant will not be valid.¹⁰⁹ Warrants cannot be amended by the Court. Any error in a warrant cannot be amended by the “slip rule”,¹¹⁰ nor by the Court’s inherent powers, because the warrant is not granted in “proceedings” and is not an order or judgement.¹¹¹

5.73 The Commission is of the view that the proposed legislation should specify what the warrant should contain and that these requirements should, like those in the LDA, be mandatory. It is essential that in granting a power of a highly intrusive nature, the scope and limits of that power are specified and that the requirements operate not merely as guidelines. The warrant should specify the nature of the authority to use the surveillance devices, who may use them, for what purpose they are to be used and the circumstances and conditions under which they may be used. The following two recommendations as to what should be specified in the warrant reflect recommendations made elsewhere in this chapter.

Recommendation 39

The warrant should specify:

(a) the offence in respect of which the warrant is granted;

(b) where practicable, the name of any person who is to be the subject of surveillance;

(c) the period (being a period not exceeding 30 days) during which the warrant is in force;

(d) the name of the person primarily responsible for the execution of the warrant;

(e) the premises on which the surveillance device(s) are to be installed or used, except in cases where the eligible judge has determined that it is justified not to specify the premises;

(f) the type(s) of surveillance device(s) to be used;

(g) any conditions subject to which the premises may be entered, or the surveillance device(s) may be used pursuant to the warrant;

(h) any conditions subject to which any information obtained as a result of the surveillance may be used, released or published; and

(i) the time within which the person authorised to use the surveillance device(s) pursuant to the warrant is required to report to the eligible judge and the Attorney General.

Recommendation 40

Where a warrant authorises the installation of one or more surveillance devices, the eligible judge should have the power to authorise:

(a) the retrieval of the surveillance device;

(b) the repair, testing, movement, maintenance and/or replacement of the surveillance device;

(c) entry onto the premises where the surveillance device is installed, and onto other premises, for the purpose of installation, retrieval, repair, testing, movement and/or replacement of the surveillance device;

(d) the person executing the warrant to employ such means as is necessary and reasonable for the purpose of executing the warrant, not including force against a person;

(e) the warrant-holder to seek whatever assistance is necessary to execute the warrant; and

(f) the use of electricity to power the surveillance device(s).

The eligible judge should also have the power to order retrieval of a surveillance device.

The application for a warrant

5.74 At present, warrant applications are generally in writing, accompanied by an affidavit, although no affidavit is specifically required by the LDA. In IP 12, the Commission suggested that it may be prudent for the form of the affidavit supporting a warrant application to be contained in legislation to ensure a minimum uniformity of application and to provide an understanding of what is required.¹¹² The Commission sought submissions on this issue.¹¹³

5.75 Submissions and response. Opinion on this issue was divided. Some submissions stated that the form of an affidavit should not be included in surveillance legislation, as it would be too difficult.¹¹⁴ The NSW Police Special Services Group stated that Supreme Court judges have never requested any further information in support of a warrant application, and so specifying the form of an application in legislation would be unnecessary.¹¹⁵ The DPP argued that, just as the Interception Act does not specify the exact form of the affidavit required in support of an application for a warrant, neither should the proposed Surveillance Act.¹¹⁶ The Joint Law Enforcement Agencies were of the view that the form of an affidavit should remain a matter for which individual judges must be satisfied in the circumstances of each case, but a form of warrant should be prescribed in the legislation to reduce the risk of technical defects.¹¹⁷

5.76 Other submissions considered that legislation should set out the minimum information required in a warrant application.¹¹⁸ Price Waterhouse suggested that legislation should contain the same requirements as the Interception Act to promote consistency in warrant applications. The New South Wales Young Lawyers Criminal Law Committee and the Law Society of New South Wales were also of the view that the LDA should mirror the Interception Act, and that applicants should have to detail reasonable grounds for seeking a warrant.¹¹⁹

5.77 Conclusion. Given the court’s inability to amend a faulty or insufficient warrant, applicants for a warrant must ensure that sufficient information is provided to fulfil the legislative requirements and that the powers they wish to be authorised by the warrant are expressed in accurate and unequivocal terms.¹²⁰ The application must contain sufficient information to enable a judge to decide whether or not the granting of the warrant is justified in the circumstances. Given the importance of this decision, and the intrusive powers authorised by a surveillance warrant, the Commission is of the view that the legislation should specify essential information which the applicant for a warrant must furnish to the court. This will also ensure consistency in the standards applied to the determination of applications.

5.78 The Commission considers that the application for a warrant should generally be in writing and accompanied by an affidavit containing information prescribed by the legislation. In urgent situations, an application may be made by telephone or radio, in which case, the applicant should also furnish the judge, either orally or in writing as the judge may direct, all the information which a written application is required to contain. Finally, in all applications for a warrant, the court should have the discretion to require information in addition to that which is prescribed by the legislation.

Recommendation 41

Except where the proposed Surveillance Act allows an application to be made by telephone or radio, applications for a covert surveillance warrant should be in writing supported by an affidavit attesting to the following:

• the name of the person or organisation requesting the warrant and the name of any person acting, or making an application, on behalf of an organisation;
• the names of all persons who will be involved in the execution of the warrant, or their codenames and the reasons for the use of codenames, and whether the assistance of other persons in the execution of the warrant is likely to be required;
• if known, the identity of the person who will be the subject of the surveillance;
• a general description of all surveillance devices intended to be used;
• where the surveillance device will be installed and used, or, if it is not possible to nominate an exact location, why this is so;
• the length of time (not exceeding 30 days) for which the applicant seeks that the warrant be in force;
• details of any previous warrants sought or granted in connection with the same offence; and
• evidence in support of the matters to which the legislation requires that the eligible judge, in determining the application, shall have regard.
 

Recommendation 42

In the case of applications made by telephone or radio, the applicant should furnish the eligible judge, either orally or in writing as the eligible judge may direct, all the information which a written application is required to contain.

Recommendation 43

The eligible judge should have the discretion to require information in addition to that which is prescribed by the legislation, if it is deemed necessary to determining the application.

5.79 The provisions of the LDA regulating warrants refer to “a listening device”¹²¹ or “the listening device”.¹²² These references to a single device may be interpreted to mean that a warrant may authorise the use of only one device. The Wood Report recommended that the LDA be amended to clarify that more than one listening device may used under the authority of a single warrant, provided that the warrant specifies all the devices intended to be used.¹²³ While use of the singular form of the term “listening device” in the LDA includes the plural,¹²⁴ it nevertheless raises the is-sue of whether a surveillance warrant under the proposed Surveillance Act should authorise the use of more than one surveillance device.

5.80 With the range of surveillance devices now available, it is conceivable that law enforcement officers may want to employ different devices during the one operation. Although the privacy considerations for the use of one device may be different from those of another, and factors relating to the way in which a device is used differ from each other, these issues are best dealt with in one application, rather than making each device the subject of separate applications, for a number of reasons.

5.81 First, requiring a separate warrant application for each device to be used in the same operation creates unnecessary administrative costs for the person who has to lodge the application, the eligible judge who must decide the application and the Attorney General who must monitor the implementation of the legislation. Secondly, because a device can be a combination of several devices, a technical argument could arise as to whether an integrated device containing a number of components is a single device or whether separate applications should be made for each component. For example, should the use of a video camera with recording capability be authorised by a single warrant but the use of a video camera with a separate recording device be authorised by two warrants? Attempting to draw such distinctions could give rise to absurd, or at least inconsistent, results. Thirdly, a single application enables the eligible judge to assess the proposed surveillance operation in its entirety, including the different devices proposed to be used and the conditions under which each is to be used.

5.82 Aside from these practical considerations, focusing on the device in the warrant application, rather than on the surveillance operation as a whole, is contrary to the focus of the proposed Surveillance Act. The proposed legislation is not device-specific in its coverage and definitions. Its focus is emphatically on the activity of surveillance itself.

5.83 The Commission therefore recommends that the use of more than one surveillance device to investigate a particular offence, or in one particular law enforcement operation, should be authorised under a single warrant, provided that the warrant specify all devices to be used.

Recommendation 44

The proposed Surveillance Act should permit one warrant to be issued authorising the use of more than one surveillance device, or a surveillance device which has more that one kind of function, provided that the warrant specify all devices which will be used in the law enforcement operation.

5.84 While the LDA section 16(3) provides that a warrant shall authorise and require the retrieval of a listening device, it did not, prior to 1998, contain any provision on retrieval after the expiry of the warrant. The effect of section 16(3) before amendment was that a listening device had to be retrieved before the expiration of a warrant. If this was not done, the validity of the warrant would have been in doubt and the admissibility of evidence obtained through the device would likewise have been in question.

5.85 Even if a further warrant were granted pursuant to section 16(6), the listening device had to be retrieved by the terms of the original warrant and then reinstalled and retrieved by virtue of the further warrant. Where a listening device which was installed under the terms of a warrant was not retrieved before the expiration of the warrant, and was subsequently used to obtain evidence under the further warrant, evidence obtained by virtue of the subsequent warrant would have been inadmissible.

5.86 In IP 12, the Commission asked whether the proposed surveillance legislation should provide for a restricted warrant authorising and requiring the retrieval of the device, following the expiration of the main warrant.¹²⁵

5.87 In 1998, Parliament passed the Listening Devices Amendment (Warrants) Act 1998 (NSW) amending the LDA by inserting section 16A which provided that if a listening device remained on premises after the warrant expired, it was implied that the warrant required the device’s removal as soon as practicable, and was deemed to continue in force for a further 10 days for that purpose. This amendment accorded with the Wood Report recommendation that the LDA should permit retrieval of a device after the expiration of the warrant period¹²⁶ and acknowledged that retrieval may not always be possible or practicable during the life of a single warrant or even consecutive warrants. While the 1998 amendment addressed the practical difficulties in relation to retrieval of a device, it gave rise to problems because it still required retrieval of the device.

5.88 It may not always be necessary or practicable, or even possible, to retrieve a surveillance device. The Commission is of the view that the eligible judge should have the power to authorise the retrieval of a device but that retrieval of a device should not be automatically required by the legislation nor be implicit in the warrant. However, the Commission is also of the view that if a device is capable of continuing to transmit information after the expiry of the warrant, then the warrant-holder should obtain permission from the eligible judge not to retrieve it.

Recommendation 45

The eligible judge should have the power to authorise or order retrieval of a device.

Recommendation 46

If a device is capable of continuing to transmit information after the expiry of the warrant, then the warrant-holder must obtain permission from the eligible judge not to retrieve it.

5.89 Circumstances will always arise where a warrant must be obtained as a matter of urgency, and where it is neither practical nor feasible to follow normal procedures in applying for a warrant without risking the failure of a law enforcement operation or the loss of evidence. In particular, a police officer may be stationed in a remote area without ready access to a court where an eligible judge is sitting. In such cases, the opportunity of making an application under section 18 of the LDA has been indispensable. As well, the inclusion of section 18(4), which allows a police officer to cause the telephone or radio complaint to be transmitted to the eligible judge by another member of the police force has been needed. In IP 12, the Commission made no suggestions for change to the provisions of section 18.

Submissions and Response

5.90 Although no issue was raised by the Commission, submissions were received which argued for changes to be made to section 18. The NSW Police Special Services Group suggested that the term of an emergency warrant be extended from 24 hours to 7 days, with a requirement that a written warrant be signed by the judge on the next working day.¹²⁷ The Public Defender suggested that a complaint by facsimile to apply for an emergency warrant should be allowed.¹²⁸

Conclusion

5.91 The Commission does not agree that the term of the warrant should be extended to 7 days. A section 18 warrant is designed to meet an emergency and allow the police to make a written application through the normal procedure within the 24 hour period if there is further need to use the device beyond that period. The 24 hour period gives the warrant-holder sufficient time to make such application.

5.92 The Commission agrees with the Public Defender that application by facsimile should be possible. Additionally, application by e-mail or other electronic means should be allowed. The Search Warrants Act 1985 (NSW)¹²⁹ defines a telephone, for purposes of telephone warrants, to include radio, facsimile and any other communication device. The Crimes Act 1914 (Cth) allows application by telephone, facsimile, telex and other electronic means.

Recommendation 47

The proposed Surveillance Act should contain a provision similar to section 18 of the LDA, but should include complaint by facsimile or other electronic means as methods by which an application for a warrant can be made under the proposed section.

5.93 In some situations, there may not even be time to obtain an emergency warrant for covert surveillance. These situations include:

• where, during covert surveillance of an offence conducted legally pursuant to a warrant, evidence was obtained of a separate offence of which officers had no prior suspicion or knowledge and so could not obtain a prior warrant; or
• where it was not possible or practicable to obtain a warrant before conducting or continuing covert surveillance without prejudicing the investigation or endangering the officers or other parties involved.

Recommendation 48

The proposed Surveillance Act should enable warrants to be applied for within 24 hours of the surveillance taking place and issued retrospectively to law enforcement officers where:

• evidence of an offence is obtained by covert surveillance incidentally during the investigation, pursuant to a warrant, of another offence; or
• it was not possible or practicable to obtain a warrant before conducting or continuing covert surveillance of an offence without prejudicing the investigation or endangering the officers or other parties involved.

2. See ch 6 for the way in which “public interest” is defined.

3. See Listening Devices Act 1984 (NSW) s 5-10, Part 4; Listening Devices Act 1992 (ACT) s 14; Listening Devices Act 1972 (SA) s 7; Listening Devices Act 1991 (Tas) s 5; Invasion of Privacy Act 1971 (Qld) s 43; Surveillance Devices Act 1999 (Vic) s 11; Surveillance Devices Act 1998 (WA); Surveillance Devices Act 2000 (NT) s 20; Telecommunications (Interception) Act 1979 (Cth) Parts II and V; Australian Federal Police Act 1979 (Cth) s 12F, s 12G; Customs Act 1901 (Cth) s 219B; Australian Security Intelligence Organisation Act 1979 (Cth) s 26.

4. In some cases, it will only be possible to obtain retrospective authorisation. This is discussed at para 5.93-5.94.

5. Surveillance in the public interest is considered in ch 6; surveillance in employment is considered in ch 7.

6. This system is outlined in ch 6.

7. LDA s 16(1).

8. LDA s 3A. The regulations may provide that, in certain prescribed circumstances, the functions of an eligible judge may be exercised by an eligible judicial officer: s 16(7).

9. LDA s 15.

10. Haynes v Attorney General (NSW) (NSW, Supreme Court, No 012075/95, 9 February 1996, unreported).

11. LDA s 17(1).

12. LDA s 17(2).

13. LDA s 16(4)(c).

14. LDA s 16(5).

15. LDA s 16(6).

16. LDA s 18; application can also be by radio or any other communication device: s 18(1).

17. LDA s 18(2)(b), 18(3).

18. LDA s 18(8).

19. LDA s 18(8).

20. LDA s 19(1).

21. LDA s 20.

22. New South Wales Law Reform Commission, Surveillance (Issues Paper 12, 1997), Issue 9.

23. NSWLRC IP 12, at para 5.7. In most jurisdictions outside New South Wales, including overseas, legislation regulating covert surveillance requires that an applicant for a warrant has to be a member of the police force, often above a certain rank. For instance, the Listening Devices Act 1972 (SA) s 6(2) provides for a member of the police force to obtain a warrant, but in Queensland, only a police officer ranked Inspector or above can apply for a warrant: Drugs Misuse Act 1986 (Qld) s 25. In some jurisdictions, the category of applicant is further restricted. For example, in Canada, only the Attorney General, the Solicitor General or a person designated by the Solicitor General may apply: Criminal Code 1985 (Can) s 185. Only the Attorney General or the principal prosecuting attorney of a State or an area may apply in the United States: 18 United States Code (US) s 2516. In Germany, applications are limited to officials of the Department of Public Prosecutions: Strafprozessordnung (Criminal Procedure Code) (Germany).

24. NSWLRC IP 12, at para 5.12.

25. See ch 6 and 7 respectively.

26. NSW Police Service, Special Services Group, Submission. See NSW, Royal Commission into the New South Wales Police Service, Final Report (May 1997) Volume 2 at 455.

27. NSWLRC IP 12, Issue 12.

28. Price Waterhouse, Submission at 8. See also Law Society of NSW, Submission at 3.

29. Director of Public Prosecutions, Submission at 5.

30. Privacy Committee of NSW, Submission at 24.

31. M L Sides, Submission at 10-11. The use of information obtained as a result of surveillance is discussed in ch 9.

32. NSW Council for Civil Liberties Inc, Submission at 4.

33. The Australian Federation of Business and Professional Women Inc, Submission; NSW Council for Civil Liberties Inc, Submission at 5.

34. NSW Police Service, Special Services Group, Submission at 4.

35. NSW Crime Commission (NSWCC), Independent Commission Against Corruption (ICAC), Police Integrity Commission (PIC) and National Crime Authority (NCA) (“Joint Law Enforcement Agencies”), Submission.

36. See eg, Invasion of Privacy Act 1971 (Qld); Listening Devices Act 1972 (SA); Surveillance Devices Act 1998 (WA); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act 2000 (NT).

37. That Act categorises offences into two classes and identifies a variety of offences under each class: Telecommunications (Interception) Act 1979 (Cth) s 5 and 5D.

38. The Criminal Procedure Act 1986 (NSW) sets out a number of indictable offences which are to be dealt with summarily unless, in relation to some offences, the prosecuting authority or person charged elects otherwise or, in relation to other offences, the prosecuting authority alone elects otherwise: Schedule 1.

39. NSWLRC IP 12, Issue 13.

40. Director of Public Prosecutions, Submission at 5; Price Waterhouse, Submission at 8; M L Sides, Submission at 11; NSW Police Service, Special Services Group, Submission at 13; NSW Young Lawyers Criminal Law Committee, Submission; Law Society of NSW, Submission at 3; Joint Law Enforcement Agencies, Submission.

41. Privacy Committee of NSW, Submission at 24.

42. NSW Council for Civil Liberties Inc, Submission.

43. Insurance Council of Australia, Submission at 4.

44. Barrington Group, Submission at 2.

45. Telecommunications (Interception) Act 1979 (Cth) s 6DA inserted by Telecommunications (Interception) and Listening Device Amendment Act 1997 (Cth) s 19. This Act also makes consequent amendments to the Australian Federal Police Act 1979 (Cth) and the Customs Act 1901 (Cth) permitting nominated AAT members to issue listening device warrants in respect of those agencies. These amendments do not affect the provisions already in the Telecommunications (Interception) Act 1979 (Cth) allowing “eligible judges” to issue warrants. The 1997 amendments were partly in response to complaints to the Commonwealth Government by Federal Court judges that issuing warrants was time-consuming: see P Clark, “Judges say no to more phone taps” The Sunday Canberra Times (24 August 1997) at 3; B Lagan, “Judges back phone-tap changes” The Sydney Morning Herald (25 August 1997) at 5; K Hannon, “Phone-tap powers for non-judges” Herald Sun (22 October 1997) at 24.

During the debate of the 1997 amending Bill in the Commonwealth Parliament, the Opposition criticised the move to empower AAT members to issue warrants on the basis that it would jeopardise the integrity of the Telecommunications (Interception) Act 1979 (Cth): Australia, Parliamentary Debates (Hansard) Legislative Assembly, Wednesday 18 June 1997 at 5638-5643 and 5661-5662. The Government argued that it was not constitutionally possible to force Federal Court judges to exercise administrative power and continue to issue warrants, so alternatives had to be found: Australia, Parliamentary Debates (Hansard) Legislative Assembly, Wednesday 18 June 1997 at 5658-5659.

46. 18 United States Code s 2518.

47. Criminal Code 1985 (Can) s 185.

48. Crimes Act 1961 (NZ) s 312B.

49. Klass v Federal Republic of Germany (1978) 2 EHRR 214 at 235.

50. Murphy v The Queen (1989) 167 CLR 94.

51. NSWLRC IP 12, Issue 18.

52. NSWLRC IP 12, Issue 17.

53. Section 15.

54. NSWLRC IP 12, Issue 18.

55. M L Sides, Submission at 13; Director of Public Prosecutions, Submission at 6; NSW Police Service, Special Services Group, Submission at 7; Price Waterhouse, Submission at 10; NSW Young Lawyers Criminal Law Committee, Submission; Joint Law Enforcement Agencies, Submission; Privacy Committee of NSW, Submission at 26.

56. NSW Police Service, Special Services Group, Submission (29 July 1997) at 7.

57. Law Society of NSW, Submission at 4.

58. Such a provision is used in the Customs Act 1901 (Cth) s 219B(5).

59. NSWLRC IP 12, Issue 17.

60. Coco v The Queen (1994) 179 CLR 435.

61. Section 43(1) of that Act makes it an offence to use “a listening device to overhear, record, monitor or listen to a private conversation”. Section 43(2)(c) provides that s 43(1) shall not apply: to or in relation to the use of any listening device by – (1) a member of the police force acting in the performance of his duty if he has been authorised in writing to use a listening device by – (a) the Commissioner of Police; (b) an assistant Commissioner of Police; or an officer of Police of or above the rank of Inspector who has been appointed in writing by the Commissioner to authorise the use of listening devices, under and in accordance with an approval in writing given by a judge of the Supreme Court in relation to any particular matter specified in the approval.

62. LDA s 16(3).

63. NSWLRC IP12, para 5.50.

64. NSWLRC IP12 Issue 24.

65. NSW Police Service, Special Services Group Submission at 12.

66. Wood Report, Vol II at 455.

67. M L Sides, Submission at 17; Director of Public Prosecutions, Submission at 8; NSW Police Service, Special Services Group, Submission at 12; Price Waterhouse, Submission at 13; NSW Council for Civil Liberties Inc, Submission at 5; NSW Young Lawyers Criminal Law Committee, Submission; Joint Law Enforcement Agencies, Submission.

68. Privacy Committee of NSW, Submission at 27-28.

69. Law Society of NSW, Submission at 6.

70. For example, see Surveillance Devices Act 2000 (NT) s 12(2); Drugs Misuse Act 1986 (Qld) s 18 and 27; and Customs Act 1901 (Cth) s 219B(7).

71. Surveillance Devices Act 1998 (WA) s 20(e)-(g) and 22(2): “[T]he court may by the warrant authorise the entry, by force if necessary, into or onto specified premises …”; Search Warrants Act 1985 (NSW) s 17; Independent Commission Against Corruption Act 1988 (NSW) s 43; Crimes Act 1914 (Cth) s 3G; Customs Act 1901 (Cth) s 203J; Family Law Act 1975 (Cth) s 122A; Road Transport Reform (Dangerous Goods) Act 1995 (Cth) s 26; Proceeds of Crime Act 1987 (Cth) s 36 and 71; Mutual Assistance in Criminal Matters Act 1987 (Cth) s 38J; International War Crimes Tribunals Act 1995 (Cth) s 54; Health Insurance Commission Act 1973 (Cth) s 8ZC; Extradition Act 1988 (Cth) s 31; Defence Force Discipline Act 1982 (Cth) s 101X; Chemical Weapons Act 1994 (Cth) s 76; Air Navigation Act 1920 (Cth) s 19CN; Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 21S; Bounty (Fuel Ethanol) Act 1994 (Cth) s 42; Migration Act 1958 (Cth) s 252.

72. For example, the Crimes Act 1914 (Cth) s 3G provides that in executing a warrant, “the executing officer, or a person who is a constable and who is assisting in executing the warrant may use force against persons and things [while] a person who is not a constable and who has been authorised to assist in executing the warrant may use such force [only] against things, as is necessary and reasonable in the circumstances”.

73. NSWLRC IP 12, para 5.52, Issue 26.

74. Wood Report, Vol II at 456.

75. M L Sides, Submission at 17; Director of Public Prosecutions, Submission at 8; NSW Police Service, Special Services Group,<