• Introduction
• Reporting measures for covert surveillance
• Reporting to the Attorney General
• Reporting to the issuing authority
• Record-keeping and inspection
• Annual reporting by the Attorney General
• Notifying the subject of surveillance

INTRODUCTION

8.1 This chapter, and the two following chapters, examine the mechanisms for ensuring that those who conduct covert surveillance activities are accountable for their actions. While the system for warrants or authorisations requires the issuing authority¹ to be satisfied that the proposed use of surveillance devices is justified before granting approval, the mechanisms discussed in this chapter are designed to ensure that accountability is an ongoing process that does not cease once the surveillance is authorised. The accountability mechanisms include requirements for reporting the results of covert surveillance and the need for relevant organisations to keep records of their uses of surveillance and make them available for inspection. The chapter also discusses the Attorney General’s obligation to report annually to Parliament, and canvasses the extent to which people are to be notified that they have been the subject of surveillance activity. Chapter 9 discusses the uses that can be made of material gathered by means of surveillance and, in particular, examines the extent to which such information may be used as evidence. Finally, Chapter 10 outlines the offences the new legislation will create, and the civil remedies that will be available to those whose interests have been affected by surveillance activities (whether covert or overt).

REPORTING MEASURES FOR COVERT SURVEILLANCE

8.2 Most surveillance legislation, including the Listening Devices Act 1984 (NSW) (“LDA”), require people who apply for a warrant to conduct surveillance to report the results of that surveillance. Reporting helps to assess the level of compliance with surveillance legislation. Reporting on the results of surveillance can also indicate the effectiveness of the legislation itself by revealing the strengths and defects of the provisions, and can assist in determining whether the appropriate balance is being struck between authorised surveillance and privacy. The LDA currently requires reporting from a number of different sources to a variety of audiences. Agencies conducting surveillance pursuant to a warrant must notify the Attorney General of the intention to apply for a warrant,² and also report back to the Attorney General and to an eligible judge on the results of the surveillance.³ The Attorney General must also be notified when agencies use a listening device without a warrant in an emergency situation (in connection with an imminent threat of serious violence to people, damage to property or a serious narcotics offence).⁴ Information concerning the number of warrants sought and granted and any other matter relating to the use of listening devices must be reported by the Attorney General annually to Parliament.⁵ The LDA also provides that an eligible judge may require the holder of a warrant to notify the subject of the warrant of details concerning the surveillance.⁶

REPORTING TO THE ATTORNEY GENERAL

Reporting before a warrant has been issued

8.3 The LDA currently requires applicants for a listening device warrant to notify the Attorney General or a prescribed officer of:

• the offence in respect of which the warrant is sought;
• where practicable, the type of listening device to be used;
• where practicable, the name of any person whose private conversation will be listened to or recorded;
• where practicable, the premises where the device is to be installed or the place it is to be used;
• whether an attempt has been made to obtain the information sought by other means;
• what other means there may be of obtaining the information sought;
• the period during which the device is meant to be used;
• the name of the person who is to use the device; and
• details of any previous warrant sought or granted in respect of the same offence.⁷

8.5 The advance notice requirement has been criticised by agencies who regularly seek warrants on the ground that it is time-consuming and achieves little benefit. The Report of the Royal Commission into the New South Wales Police Service (“Wood Report”) recommended that the provision be abolished.⁸ The Wood Report noted that delays can occur in the acceptance of the notices by the Attorney General, which can be critical in cases where there is only a limited time in which to obtain evidence. The Report also questioned the policy behind the requirement that the Attorney be notified before a warrant is granted, particularly in relation to law enforcement agencies, stating that while it is appropriate for warrants to be carefully scrutinised, it is doubtful whether there is a need for both the Attorney General and the eligible judge to approve the issuing of warrants.⁹ The NSW Police Special Services Group and the joint law enforcement agencies agreed with this view.¹⁰ The joint law enforcement agencies suggested that, rather than formally notifying the Attorney General in advance of each application, it may be more appropriate to require the applicant to notify the Attorney only when it appears to the applicant that an issue of legal professional privilege may arise.¹¹ On the other hand, the Law Society of New South Wales supported the retention of the requirement to give the Attorney advance notice of a warrant.¹² The Law Society noted that the requirement, in practice, gives the Solicitor General or the Crown Advocate the power to review warrant applications.

8.6 The current requirement in the LDA that the Attorney General be notified and given the opportunity to be heard prior to the issuing of a warrant was included in order to ensure “effective representation of the public interest in requiring responsibility in the use of listening devices.”¹³ However, it appears that this provision has had little practical effect as an accountability measure. The degree to which the issuing authority is expected to scrutinise an application for a warrant, or other form of authorisation, is, in the Commission’s view, sufficient to ensure that the public interest is considered, and that warrants or authorisations are issued only when necessary. Notifying the Attorney General of an application only serves to slow down the process and add an unnecessary layer of bureaucracy. Accordingly, the Commission recommends that the requirement of prior notice to the Attorney General should not be included in the proposed surveillance legislation, both in relation to applications for warrants and public interest and employment authorisations.

8.7 There may, however, be instances when the views of the Attorney General on the application may be useful to the issuing authority. For example, as noted above, the joint submission of the law enforcement agencies suggested that it may be appropriate to notify the Attorney General when it appears that an issue of legal professional privilege may arise from the use of the surveillance device.¹⁴ In applications for public interest authorisations, the proposed use of surveillance devices may involve police matters and, in that case, it would be appropriate for the issuing authority to seek the Police Commissioner’s views on the application. Accordingly, the issuing authority should be given a discretion to notify the Attorney General or any other appropriate person, such as the Police Commissioner, and to give them the opportunity to be heard on the application.

Recommendation 67

The proposed Surveillance Act should not require an applicant for a warrant or authorisation to notify the Attorney General of the application, subject to the following:

• the issuing authority must notify the Attorney General when an application raises an issue of legal professional privilege; and
• the issuing authority may notify the Attorney General or any other person of an application, if the issuing authority deems it appropriate to do so in the circumstances.

8.8 In addition to the requirement to notify the Attorney General prior to the issuing of a warrant, the LDA also contains provisions requiring warrant holders to report the results of surveillance undertaken. A warrant holder must report in writing to the Attorney General and to an eligible judge, within a specified period,¹⁵ as to whether or not the listening device was used pursuant to the warrant.¹⁶ If the device was used, the report must specify:

• the name, if known, of any person whose private conversation was recorded or listened to by the use of the device;
• the period during which the device was used;
• particulars of any premises in which the device was installed or the place where any device was used;
• particulars of the general use made or to be made of any evidence or information obtained from the use of the device; and
• particulars of any previous use of the device with respect to the same offence.¹⁷

8.10 These provisions are designed to promote “efficient monitoring of the use that is made of listening devices.”²¹ Other listening devices legislation contains similar provisions.²² The statutes in other Australian states contain various time frames for reporting, ranging from as soon as possible following the surveillance²³ to within three months after the cessation of the warrant.²⁴ At the Commonwealth level, the Telecommunications (Interception) Act 1979 (Cth) (“Interception Act”) has comprehensive reporting requirements. Heads of Commonwealth agencies are required to provide the Minister with a copy of each warrant as soon as possible,²⁵ and must report to the Minister within three months of the cessation of an interception warrant, details of the interception, including:

• the use made by the agency of the information obtained from the interception;²⁶
• people to whom that information was communicated outside the agency;
• the number of arrests that have been made on the basis of the information; and
• an assessment of the usefulness of the information obtained under interception warrants.²⁷

8.12 The Commission considers that reporting to the Attorney General on the results of surveillance conducted under a warrant is a crucial element in ensuring accountability. It can also provide information on how the legislation is working in practice, drawing attention to areas where the law is not being complied with, or where privacy rights are most vulnerable. The information provided to the Attorney General also assists him or her prepare the annual report to Parliament. The Commission recommends that the new surveillance legislation contain a range of reporting requirements broader than those in the LDA. In addition to the current reporting requirements detailed at paragraph 8.8, warrant applicants should have to report to the Attorney General in relation to each warrant on:

• the type of surveillance device used;
• details of any conditions placed by the court on the exercise of the warrant and whether or not those conditions were complied with;
• the number of, and reasons for, any warrant renewals;
• whether the device was retrieved and, if not, the reasons why it was not retrieved; and
• any other information requested by the Attorney General which the warrant holder can reasonably provide.

8.14 The reporting provisions are not intended to prejudice ongoing investigations or impending trials. The information is intended to promote accountability and compliance with the law, as well as indicating the nature of surveillance being undertaken and its relative usefulness. For example, details of the general use of information obtained from surveillance, such as the number and type of cases in which it has been used as evidence and/or resulted in prosecutions, is an important way to assess the balance between the public benefit of surveillance as a law enforcement tool and the interests of privacy. This assessment is also assisted through information on the amount of money (in most cases, public money) that is spent on conducting surveillance. Information on the nature of the premises where surveillance devices are used, and the people to whom the information obtained from the use of such devices is communicated, can serve to alert parliament to any improvements in flexibility or increased privacy protections that may need to be introduced into the legislation.

8.15 The requirement to report to the Attorney General on the results of the execution of the warrant should also apply to holders of public interest authorisations and employment authorisations. The same information which is required of warrant holders should also be included, to the extent applicable, in the reports of holders of authorisations.

Recommendation 68

The proposed Surveillance Act should require every holder of a warrant or public interest authorisation or employment authorisation to make a report in writing to the Attorney General stating whether or not the surveillance device was used pursuant to the warrant or authorisation. The report should be made within the period specified in the warrant or authorisation, with provision for the Attorney General to approve an extension. If the surveillance device was used, the report should include the following information:

(a) the name, if known, of any person whose private conversation or activity was recorded by the use of the surveillance device;

(b) the period during which the surveillance device was used;

(c) particulars of the types of premises in which the surveillance device was installed or the place where any device was used;

(d) particulars of the general use made or to be made of any evidence or information obtained from the use of the device;

(e) particulars of any previous use of a surveillance device with respect to the same offence or activity subject of the warrant or authorisation;

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

(g) details of any conditions placed by the issuing authority on the exercise of the warrant or authorisation and whether or not those conditions were complied with;

(h) the number of, and reasons for, any warrant or authorisation renewals;

(i) whether the device was retrieved and, if not, the reasons why it was not retrieved; and

(j) any other information requested by the Attorney General.

In the case of surveillance conducted pursuant to a retrospective warrant or authorisation, the report should include, in addition to all the information specified above, information containing the particulars of the circumstances on which a retrospective warrant or authorisation application was based.

Failure to comply with these requirements should constitute an offence.

8.16 In addition to the information that must be provided to the Attorney General, the LDA requires warrant holders to provide to the eligible judge information concerning the people and places subjected to surveillance under a warrant, the general uses to which the information obtained has been or is intended to be put, the duration of the surveillance and details of past warrants issued in relation to the same offence.³⁴ The Commission sees this provision as being an important check on surveillance conducted under a warrant. The information available to the eligible judge will include a record of the number of warrant applications and renewal requests received, granted or refused, reasons for any refusals, and the information contained in the affidavit supporting each warrant application.³⁵ This information could be checked against the reports from warrant holders of the results of the surveillance to see if any discrepancies occur. The issuing authority should record and forward such information, including details of any discrepancies between what was asked for and granted in a warrant and what actually occurred, to the Attorney General on an annual basis. As a further accountability measure, the Attorney General could verify that the information supplied by the eligible judge corresponds with that supplied directly by the warrant holders. Accordingly, the Commission is of the view that the proposed surveillance legislation should continue to require warrant holders to report the results of surveillance conducted pursuant to the warrant to the eligible judge who issued the warrant. Similarly, a holder of a public interest or employment authorisation should be required to report to the issuing authority.

Recommendation 69

The proposed Surveillance Act should require holders of warrants or public interest authorisations or employment authorisations to report to the issuing authority within the period specified in the warrant or authorisation, with provision for the issuing authority to approve an extension. The report should contain the same information required in the report to the Attorney General. Failure to comply with this requirement should constitute an offence.

Recommendation 70

The proposed Surveillance Act should provide that the registry of the issuing authority should forward annually to the Attorney General such information about applications for warrants or authorisations as it deems appropriate, including:

(a) the number of applications received, granted or refused, and the reasons for refusal;

(b) the number of renewal applications received, granted or refused, and the reasons for refusal;

(c) the number of retrospective warrants granted or refused, and the reasons for refusal; and

(d) any discrepancies the court may have noticed between the affidavit supporting a warrant application and the information provided by the warrant holder concerning the results of the surveillance.

Recommendation 71

The proposed Surveillance Act should provide that the issuing authority:

• may direct that any record of evidence or information obtained by the use of the surveillance device to which the report relates be brought before it;
• may keep such record in its custody; and
• may make an order that the evidence or information may be made available to such persons or organisations as the issuing authority directs.

8.17 The reporting requirements discussed above focus mainly on the proper execution of warrants or authorisations for particular surveillance operations. However, the execution of warrants and authorisations is only a part of the accountability measures the Commission considers necessary. This chapter and Chapter 9 deal with the regulation of the communication or publication of surveillance information, its use as evidence in court proceedings, its storage, security and destruction, and notification given to surveillance subjects in certain circumstances. The Commission also recommends that compliance with these requirements be monitored. The Commission accepts the Ombudsman’s submission that there is a need for external monitoring of compliance by the relevant agencies with the proposed surveillance legislation.³⁶

8.18 The Interception Act contains an effective system of monitoring compliance with its provisions. The Act requires the relevant Commonwealth agencies, namely the Australian Federal Police and the National Crime Authority, to maintain records of the telecommunications warrants issued to them and details about dealings with them, such as particulars of each use of the telecommunications information, communications of the information made to persons other than an officer or staff members of the agency and particulars of the use of information in legal proceedings.³⁷ Complementing the record-keeping requirements is the grant of powers to the Commonwealth Ombudsman to inspect the relevant agencies’ records and to report to the responsible Minister the results of the inspections, including any breach of the Interception Act by an officer of an agency.³⁸ The record keeping and inspection provisions in the Interception Act are mirrored in the Telecommunications (Interception) (New South Wales) Act 1987 (NSW). Under the New South Wales Act, an eligible authority, which is defined as the Police Force of the State, the State Drug Crime Commission, the Independent Commission Against Corruption, the Police Integrity Commission or the Police Royal Commission, must keep records pertaining to telecommunications interceptions and the State Ombudsman has a comparable power to inspect these records to determine compliance with the requirements of the Interception Act.

8.19 The Commission has formed the view that the record-keeping and inspection requirements contained in the Telecommunications (Interception) (New South Wales) Act 1987 (NSW) should be adopted in the proposed surveillance legislation. It is a system which has proved to be effective. Inspections have indicated a high level of compliance with statutory requirements.³⁹ The law enforcement agencies in New South Wales have, for some time now, maintained records of documents and information pertaining to the telecommunications surveillance they conduct and have also complied with the independent audit of these records. These agencies should not have any major practical or policy difficulties with the extension of this system to surveillance activities where surveillance devices other than telephone interception devices are used.

8.20 The Barrett Review recommended that the Australian Privacy Commissioner should exercise the inspection and reporting functions currently conferred on the Ombudsman under the Interception Act. The Review observed that the accent should be on the protection of privacy rather than simply being an audit of administrative processes.⁴⁰ It may be argued that inspection of covert surveillance operations from the perspective of privacy concerns is required to balance the weight of law enforcement interests that drive those operations. Furthermore, since the Commission proposes a pivotal role for the Privacy Commissioner in the regulation of the overt use of surveillance devices,⁴¹ it seems consistent that he or she should have a similar monitoring role in the counterpart regime for the covert use of these devices.

8.21 On the other hand, there are good reasons for the inspection/monitoring function to be conferred on the Ombudsman. First, the Ombudsman already has the auditing experience in relation to telecommunications interception. Secondly, the familiarity of law enforcement agencies with existing auditing procedures involving the Ombudsman may mean a smoother transition to the new regulatory regime applying to surveillance devices. Thirdly, granting the Ombudsman this function would enable him or her to make useful comparisons between the use of surveillance devices and telecommunications interceptions.⁴² While the Barrett Review recommended the transfer of the monitoring role from the Ombudsman to the Privacy Commissioner, the Ford Review recommended maintaining the status quo.⁴³ However, the Ford Review was also of the opinion that it is for the individual State to decide which agency should inspect the records of State law enforcement agencies.

8.22 The Commission does not have a strong view as to whether the role of inspecting records of the relevant organisations and reporting breaches of the proposed surveillance legislation should be that of the Ombudsman or the Privacy Commissioner, seeing the merit in each approach.

Recommendation 72

The proposed Surveillance Act should provide that all law enforcement agencies, private individuals and organisations authorised to apply for either warrants or authorisations, should keep records pertaining to the use of surveillance devices. The records should include:

(a) each application for warrants or authorisations;

(b) a statement as to the result of the application;

(c) the warrant or authorisation issued to the person or organisation;

(d) copies of the reports on the warrant to the Attorney General and to the issuing authority;

(e) particulars of each use by the person or organisation of the information obtained by the use of a surveillance device(s);

(f) particulars of each occasion when the information was communicated to a person or organisation, not being a warrant-holder or authorisation-holder;

(g) particulars of each occasion when, to the knowledge of the person or an officer of the agency or organisation, the information was given in evidence in legal proceedings;

(h) details of instances when the activities of persons other than those named in warrants or authorisations were recorded;

(i) particulars of all cases when surveillance devices were used without a warrant or authorisation, including details of the subjects, dates, times and places of the surveillance, the persons who used the devices and the reasons for their use;

(j) particulars of persons whose private activities were monitored or recorded by the use of surveillance devices, but against whom no criminal proceedings had been instituted or were likely to be instituted; and

(k) particulars of the destruction of the information in compliance with the provisions concerning destruction.

Recommendation 73

The proposed Surveillance Act should provide that the inspecting authority (the Privacy Commissioner or Ombudsman) should be required to:

(a) inspect the records of the relevant law enforcement agencies and private individuals or organisations for the purpose of ascertaining:

• the accuracy of the entries in the records;
• the extent of compliance with the requirements of the proposed surveillance legislation including, but not limited to, those concerning the use, communication or publication of surveillance information, storage and security of information, destruction of information; and
• whether notice should be given to a subject of the surveillance;
(b) report to the Attorney General about the result of inspections; and

(c) do anything incidental or instrumental to the performance of any of the preceding functions.

Recommendation 74

The proposed Surveillance Act should provide that the inspecting authority may, at any time, inspect the records of the relevant agencies, organisations or individuals to ascertain compliance with the proposed Surveillance Act. The inspecting authority should inspect records of law enforcement agencies at least once during each financial year.

Recommendation 75

The proposed Surveillance Act should provide that the inspecting authority may, at any time, report the results of the inspection to the Attorney General and shall do so at least once a year and whenever requested to do so by the Attorney General.

Recommendation 76

The proposed Surveillance Act should give the inspecting authority the power to:

(a) enter, at any reasonable time, premises occupied by any relevant agency, organisation or individual, provided reasonable notice is given;

(b) have full and free access, at reasonable times, to their records;

(c) make copies of, and take extracts from, their records; and

(d) require any person to give such information as the inspecting authority considers relevant to the inspection.

Recommendation 77

The proposed Surveillance Act should provide that the communication of surveillance information:

• to the inspecting authority for purposes of inspection of records; and
• by the inspecting authority to the Attorney General for purposes of complying with the reporting requirements
should be exempted from the general prohibition on the communication or publication of surveillance information. The inspecting authority should ensure that the privacy of individuals to whom the surveillance information relates be respected at all times.

Recommendation 78

The office of the inspecting authority should be given sufficient resources to enable it to discharge effectively its duties under the proposed Surveillance Act.

Reporting requirements in the LDA

8.23 The LDA requires the Attorney General to annually report to Parliament on the number of warrants sought, the number of warrants granted and on other relevant matters.⁴⁴ Once tabled in Parliament, the report becomes a public document and serves an important accountability function, as it facilitates public access to information concerning the occurrence and effectiveness of surveillance. The most recent report tabled by the Attorney is the 1998 Annual Report.⁴⁵ This report contained information on:

• the overall number of applications received by the Supreme Court;⁴⁶
• the organisations that requested the warrants;⁴⁷
• the number of warrant applications withdrawn;⁴⁸
• the number of warrants refused;⁴⁹
• the instances when there was use of a listening device, without a warrant, pursuant to section 5(2)(c)(i) of the LDA to obtain evidence in connection with imminent threats of serious violence to persons or of substantial damage to property,⁵⁰ or pursuant to section 5(2)(c)(ii) of the LDA to obtain evidence in connection with serious drug offences;⁵¹
• the number of warrants in respect of which the device was not used or was ineffective;⁵²
• instances when a warrant was applied for to retrieve a device;⁵³
• the number of warrants in respect of which information was obtained that led to the arrest and prosecution of offenders;⁵⁴ and
• the number of times when members of the public used listening devices.⁵⁵

Reporting provisions in comparable legislation

8.25 South Australia, Tasmania, Victoria, Western Australia and the Northern Territory all require annual reports in respect of their listening or surveillance devices legislation. At a Federal level, the Interception Act contains annual reporting provisions.⁵⁸ Certain overseas jurisdictions have legislation containing fairly comprehensive reporting requirements with respect to electronic surveillance and wiretapping. For example, in the United States, the Administrative Office of the US Courts must report annually to Congress on Federal and State applications for orders authorising or approving the interception of wire, oral, or electronic communications.⁵⁹ In Canada, the Solicitor General must report to Parliament,⁶⁰ as must the Attorneys General of each province regarding offences within provincial jurisdiction.⁶¹

8.26 In addition to similar requirements as those contained in the LDA, some jurisdictions require information about:

• the number of warrant applications seeking entry to premises;⁶²
• a description of the locations where the surveillance was authorised to take place;⁶³
• the number of warrants issued which specify conditions;⁶⁴ the average duration of warrants;⁶⁵
• the approximate number of people whose communications were intercepted;⁶⁶
• the breakdown of the number of intercepts by the type of surveillance device used;⁶⁷
• the categories of offences for which warrants were issued;⁶⁸ the number of people not identified in the warrant but whose alleged commission of an offence became known as a result of an authorised intercept;⁶⁹
• a general assessment of the importance of interceptions with respect to the investigation, detection, prosecution and prevention of crime;⁷⁰
• the cost of executing the warrants;⁷¹ and
• where notification of the subject of the warrant is required by law, the number of notifications that were made.⁷²

8.27 In Issues Paper 12 (“IP 12”), the Commission suggested that the law should require comprehensive reporting and that more information be included in an annual report.⁷³

8.28 A number of submissions favoured strengthening the annual reporting requirements. The New South Wales Ombudsman was of the view that the existing situation “frequently seems to result in the tabling of data that imports little”.⁷⁴ The Senior Public Defender considered that the report should contain more extensive and useful information.⁷⁵ Other submissions supported the Commission’s suggestions as being important to assist in the public monitoring of the extent and effectiveness of surveillance, but were of the view that details of warrant applicants and subjects should be restricted to organisations and should not reveal the identity of individuals.⁷⁶

8.29 A number of submissions considered that the Commission’s suggestions did not go far enough, and advocated introducing provisions similar to those in the Interception Act and in the Canadian and United States legislation.⁷⁷ The Ombudsman noted that it was anomalous that the Interception Act contained more stringent reporting requirements than the LDA, since most people would regard a telephone “tap” as being less intrusive than a listening device.⁷⁸ Other submissions commented that there should be information given on the type of agencies who apply for warrants,⁷⁹ the offences in relation to which warrants are sought,⁸⁰ the number of warrant requests refused and the reasons for the refusal⁸¹ and the cost of surveillance.⁸² Other suggested inclusions in the annual report were a general description of the surveillance undertaken,⁸³ the number of devices not removed,⁸⁴ and the number of subjects of surveillance who had been notified as required under the LDA.⁸⁵ Additionally, some submissions argued that the number of prosecutions and convictions in which surveillance evidence was used should be publicly reported, including any challenges to such evidence, changes in the offence for which a person was convicted and the offence in relation to which the warrant was sought, and the number of prosecutions for breaches of the surveillance legislation, should be publicly reported.⁸⁶ The Privacy Committee also suggested that the report should include comparative statistics for at least the previous three years, and should be required to be tabled within a specific period following the completion of the reporting period.⁸⁷ The Commission’s recommendation below reflects some of the suggestions in the submissions.

8.30 While agreeing with most of the Commission’s suggestions for additional reporting requirements, the New South Wales Police Special Services Group and the Joint Law Enforcement Agencies objected to three matters.⁸⁸ First, they argued that revealing the number and type of places where devices are located is damaging to operational methodology. Secondly, they objected to the inclusion of information about the cost of the use of surveillance devices. Thirdly, they submitted that information concerning arrests and prosecutions resulting from surveillance evidence may be inaccurate if reported annually due to time delays in matters going before the courts.

8.31 In relation to the issue of reporting locations of surveillance operations, it may be argued that an awareness by the public that surveillance devices may be used in certain types of premises may in fact deter the commission of offences in such places. Information about the types of places where these devices are used covertly may be useful in assessing the impact of these sorts of operations in specific locations. In relation to the issue of cost of the execution warrants, the Commission recognises that it may not be practical to include this information in the report that the holder of a warrant or authorisation is required to make to the Attorney General and to the issuing authority. It may be difficult to quantify such costs each time a covert operation is made, given the usually short period of time in which the report is required to be made. Hence, in the recommendations concerning the reporting to the Attorney General and to the issuing authority, the Commission has not recommended that the warrant holder be required to include the cost of the use of the device. However, the Commission considers it important that the various law enforcement agencies give information, through the annual report of the Attorney General, about the annual cost of the use of surveillance devices. This will be useful in weighing, among other things, the costs and benefits of using such methods of investigation and policing. Finally, the concern regarding the accuracy of statistics can be addressed simply by explaining in the annual report that some of the arrests and prosecutions in a particular year relate to warrants issued in another year.

Conclusion

8.32 Public reporting of the results of the use of covert surveillance is a vital element in achieving accountability. It will only be truly effective as an accountability measure, however, if the legislation requires comprehensive reporting to Parliament. The same issues about the content of annual reports have been raised in several reviews of the Interception Act.⁸⁹ During the course of those reviews, suggestions similar to those discussed above were made with a view to strengthening the reporting requirements in the Interception Act. Many of those suggestions have been adopted in amendments to the Interception Act.⁹⁰ The Barrett Review rejected calls from the Privacy Committee and the New South Wales Council for Civil Liberties to include information such as the nature and frequency of incriminating and other intercepts and the approximate number of people whose communications were intercepted.⁹¹ The Privacy Committee argued that similar material is contained in United States Wiretap reports and that, without such information being publicly available here, Australians are in a poor position to assess the effectiveness of surveillance. The Barrett Review noted that while such information would be of interest, it would require resource-intensive monitoring and would have little impact on balancing the right to privacy with the community interest in effective law enforcement or cost effectiveness.⁹²

8.33 The aim of an accountability regime should be to provide a method to check that such a balance between effective surveillance and privacy is being achieved. In determining what sort of information should be reported, the difficulty in obtaining and providing the information must be weighed against the usefulness and benefit of having the information publicly available. The Commission is of the view that the proposed surveillance legislation should require more information to be reported than is currently required under the LDA. In the recommendation below, the Commission lists the matters that the proposed surveillance legislation should require be addressed in the annual report. Some of those matters are already contained in the LDA annual report. Others are drawn from the surveillance legislation of other jurisdictions and from suggestions in the submissions. While the recommended reporting requirements may seem onerous, all of the information will be available to the Attorney General from the reports provided to him or her by each holder of a warrant or authorisation, by the issuing authority and by the inspecting authority. The Commission considers that the information required in the recommendation below should facilitate an assessment of the level of compliance with the surveillance legislation and give an indication of whether the legislation is operating efficiently and effectively. The information should be reported in a way which does not identify any individuals who conducted, were the subject of, or may be named in information obtained as a result of, surveillance.

Recommendation 79

The proposed Surveillance Act should require the Attorney General to include, whenever possible, the following information in the annual report to Parliament:

with respect to warrants for the use of surveillance devices:


(a) the total number of applications for warrants, including the number of radio, telephone, facsimile or other electronic applications, which organisations made the requests and the number of applications that were granted, refused or withdrawn;

(b) the number of applications for retrospective warrants, by whom they were made and the number of those that were granted, refused or withdrawn;

(c) the number and type of offences for which warrants were issued, and the number of warrants issued for each type of offence;

(d) the number of each type of surveillance device used;

(e) the average period of time each warrant was in force;

(f) the number of renewal applications received, granted, refused or withdrawn;

(g) the number of warrants authorising the installation of devices in premises, an indication of the type of premises where devices were installed and the number of warrants authorising surveillance of a particular individual;

(h) the number of warrant applications requesting entry to premises and the number of warrants granted, refused or withdrawn;

(i) the number of warrants issued specifying conditions or restrictions and the type of conditions or restrictions applied;

(j) the number of devices not removed following the completion of surveillance and the reasons why the devices were not removed;

(k) the general use to which information obtained pursuant to surveillance devices has been put, including the number of arrests, prosecutions and convictions in which the information was used; and

(l) the annual cost of the covert use of surveillance devices by the different law enforcement agencies;


with respect to public interest authorisations for the use of surveillance devices:

(a) the total number of applications for public interest authorisations, including the number of radio, telephone, facsimile and other electronic applications, the types of organisations that made the requests and the number of applications that were granted, refused or withdrawn;

(b) the number of applications for retrospective authorisations and the number of those that were granted, refused or withdrawn;

(c) the number of each type of surveillance device used;

(d) the average period of time each authorisation was in force;

(e) the number of renewal applications received, granted, refused or withdrawn;

(f) the number of authorisations issued specifying conditions or restrictions, and the type of conditions or restrictions applied;

(g) the number of devices not removed following the completion of surveillance and the reasons why the devices were not removed; and

(h) the general use to which information obtained pursuant to the surveillance has been put;


with respect to employment authorisations for the use of surveillance devices:

(a) the total number of applications for employment authorisations, including the number of radio, telephone, facsimile and other electronic applications and the number of applications that were granted, refused or withdrawn;

(b) the number of applications for retrospective authorisations and the number of those that were granted, refused or withdrawn;

(c) the number of each type of surveillance device used;

(d) the average period of time each authorisation was in force;

(e) the number of renewal applications received, granted, refused or withdrawn;

(f) the number of authorisations issued specifying conditions or restrictions, and the type of conditions or restrictions applied;

(g) the number of devices not removed following the completion of surveillance and the reasons why the devices were not removed; and

(h) the general use to which information obtained pursuant to the surveillance has been put; and


generally:

(i) the extent of compliance with the requirements of the proposed Surveillance Act including, but not limited to, those concerning the keeping and inspection of records, the use, communication or publication of surveillance information, storage and security of information and destruction of information;

(j) the number of notifications to the subject of the surveillance;

(k) a general account of the extent to which “incidental” information is obtained and used, including, for example, information relating to the commission of an offence by a person not identified in the warrant or authorisation was obtained as a result of the authorised use of a surveillance device;

(l) details of breaches of the proposed Surveillance Act, including actions taken, such as criminal, civil or disciplinary proceedings;

(m) any changes to the proposed Surveillance Act during the year in review;

(n) comparative statistics from previous years; and

(o) any general comments on the operation of the proposed Surveillance Act.

The current law

8.34 The LDA currently provides that an eligible judge may direct a person who has used a listening device pursuant to a warrant to supply information to the subject of the surveillance, within a period specified by the judge, concerning the warrant and the use of the device,⁹³ where the judge is satisfied that, having regard to the information obtained from the use of the device and to any other matter, the use of the device was not justified and was an unnecessary interference with the privacy of the person concerned.⁹⁴ The warrant-holder must comply with the direction, or face a penalty, but has an opportunity to be heard before a direction to notify the subject is made.⁹⁵ This provision was included in the legislation as an important safeguard against the unjustified invasion of privacy that may be occasioned by the use of listening devices. It was intended to make persons who may be the victims of improper activity aware of what has been done to them.⁹⁶ The Commission is unaware of any case where this discretion has been exercised.

8.35 The provision is based on the assumption that the eligible judge monitors the conduct of covert surveillance to ensure that it occurs in accordance with the warrant, and that he or she initiates action where a breach occurs. However, it may be argued that it is not the role of eligible judges to conduct systematic monitoring of compliance with warrants. This perhaps explains why no notification directions have been made under section 20 of the LDA.

Alternative approaches

Mandatory notice requirement

8.36 In Canada and the USA, it is mandatory to give notice to the subject of the surveillance. The legislation in Canada requires notice to the subject within 90 days after the warrant was authorised or renewed. After the notice is given, the person who gave the notice must certify to the court which approved the authorisation that the notice has been given. The time frame for giving notice may be suspended where the Attorney General or the Solicitor General applies to the court for an extension on the grounds that an investigation is continuing and notification of the subject would prejudice the interests of justice. The judge may grant an extension of a period up to three years.⁹⁷ It has been ruled that the notice requirement is complied with merely by notifying the person that he or she was the object of an interception. The person has no right to any wider notification such as receipt of a copy of the authorisation.⁹⁸ The Law Reform Commission of Canada recommended that the notice should include the dates of the interceptions and a copy of the authorisation,⁹⁹ but this has not been implemented in legislation.

8.37 The United States legislation has a mandatory notice requirement in cases where an interception was made in an emergency situation.¹⁰⁰ The law requires the subject of the surveillance to be notified within 90 days of the cessation of a warrant, or, if the warrant application was unsuccessful, 90 days from the date of the application, unless the court sanctions a delay. The content of the notification is broader than that found in the Canadian provision; it must include the fact that the person was the subject of an application for a warrant, the date and period of authorised, approved or disapproved interception, or the denial of the application, and that during that period, communications were or were not intercepted.¹⁰¹

8.38 The fundamental argument for mandatory notice is that individuals have the right to know that their privacy has been invaded. Intrusions into privacy should only be in accordance with that permitted by law. The person whose privacy has been invaded should be made aware of the surveillance to allow him or her to challenge its legality and to obtain redress if a breach of the legislation has occurred. It may also be argued that a mandatory notice requirement has the potential to operate as an important accountability measure since agencies conducting surveillance may be less likely to act illegally if they are required to tell the subject of the surveillance. It should also be noted that the Barrett Review concluded that the mandatory notification provisions in the United States and Canada operate without major difficulties.¹⁰²

8.39 The Barrett Review of the Interception Act considered the issue of notice to the subject of a telecommunications interception. It favoured the approach in Canada and the US, although it would have limited the notice requirement it proposed to “innocent persons”. It recommended that surveillance agencies should be required to notify any “innocent person” whose telephone had been intercepted of the fact of interception within 90 days of the cessation of the intercept.¹⁰³ Although it did not give a clear definition of who should be considered an “innocent person”, the Barrett Review argued that, if the information from telecommunication interception did not result in an arrest or progress in the criminal investigation, the person concerned should be notified of the interception. The Barrett Review summarised the following criticisms that law enforcement agencies made:

– cause unnecessary distress and confusion because no explanation would be able to be divulged;

– raise the profile of telecommunications interception among criminal elements;

– cause embarrassment to government through public disclosure of sensitive operations;

– be likely to compromise an investigation if, unknown to the investigator at the time of notification, the person was in fact associated either directly or indirectly with the true suspects;

– be impractical because most investigation involve a number of TI targets, some involve several criminal operations, and some overlap with others and the interrelationships are often not fully understood; investigations may be stopped for a time and later revived when new evidence becomes available. ¹⁰⁴

8.41 One of the arguments against mandatory notice is that it has the potential to compromise surveillance operations and criminal investigations in general. For example, if a suspect is notified of the surveillance, he or she may alert others involved in the crime being investigated. Some investigations may continue over an extended period of time and to require notification of the subject within a specified time may prejudice such investigations. It may also be argued that such a requirement is too cumbersome to impose on law enforcement agencies. A provision requiring notice to every person whose activity may be recorded (including those not named in the warrant) may be impractical, or impossible to comply with in some cases because some of the people caught by the recordings may be unknown to the police and difficult to identify. It has also been observed that the differences between North American and Australian legal environments are such that a different approach should be considered.¹⁰⁸ Further, it may be argued that the proposed surveillance legislation should focus on preventative accountability: the protection of privacy of individuals is better achieved by preventing illegal surveillance in the first place rather than providing for a notice requirement.

Register of interceptions

8.42 As an alternative to its recommendation to require mandatory notice to innocent persons, the Barrett Review proposed that each surveillance agency be required to maintain a register for the purpose of recording details of incidents where the telephone service of an innocent person was the subject of an interception warrant. The register would be supervised by the inspecting agency which would be able to undertake an inquiry and report to the relevant Minister on whether there is a need to give notice to the subject of the surveillance.¹⁰⁹ This recommendation was adopted in part in the Interception Act, which now provides for the keeping of a register showing details of warrants which have not led to a charge being laid.¹¹⁰ This register is provided to the Attorney General but not, contrary to the Barrett Review’s recommendation, subject to inspection and inquiry by the Privacy Commissioner.

Submissions and response

8.43 In IP 12, the Commission asked whether the new legislation should require people who have been placed under surveillance to be notified where the person is not found to be connected with any criminal activity, and is not prosecuted as a result of the surveillance. The majority of submissions on this point agreed that disclosure should take place.¹¹¹ Those who disagreed with disclosure to the subjects of surveillance argued that it would be of very little value,¹¹² and would not be in the public interest in almost all cases.¹¹³ The Joint Law Enforcement Agencies noted that the fact that a person is not prosecuted may depend on many factors and does not necessarily mean that the surveillance was not justified.¹¹⁴ The New South Wales Police Special Services Group considered that compliance with a disclosure provision broader than the existing section in the LDA would be impossible, as numerous people may be caught intentionally and unintentionally on surveillance tapes, and were often unknown to the police. The police also argued that disclosure may prejudice ongoing investigations as people would take steps to ensure that no further devices could be installed.¹¹⁵

8.44 If it were accepted that the new legislation should contain disclosure provisions, the Commission also asked whether the existing LDA provision was an appropriate model. Two submissions considered that section 20 of the LDA was adequate.¹¹⁶ Others argued that section 20 was ineffective as there is no evidence that it has ever been used.¹¹⁷ The Privacy Committee argued that there should be a strong presumption of disclosure unless the warrant applicant can show why the surveillance should remain confidential.¹¹⁸ The New South Wales Council for Civil Liberties considered that section 20 should be replaced with a clear right to notification on the part of the subject of the surveillance.¹¹⁹ The NSW Young Lawyers Criminal Law Committee argued that section 20 operated too narrowly, as it seemed to apply only where the subject was aware that surveillance had occurred.¹²⁰ Two submissions suggested that the disclosure provisions should be broadened along the lines of the United States and Canadian laws, to enable the judge who authorises the warrant to order disclosure to the subject, perhaps as a condition of granting the warrant.¹²¹ It was also suggested that the issue of who should receive the information should be clarified, though it should always include the subject of the surveillance, and that all of the information obtained from the surveillance and contained in the warrant application should be available for disclosure.¹²² Price Waterhouse suggested that the legislation should contain guidelines for when disclosure was appropriate.¹²³

Conclusion

8.45 The Commission is not convinced that a mandatory notice requirement is justified. To require notice in every case may impose an unnecessary cost on those who use surveillance devices. However, there may be cases when the subject should be made aware of the surveillance, in particular, when surveillance has been illegally conducted. The subject of the surveillance will not be able to obtain the relief provided by the proposed surveillance legislation unless he or she is made aware of the illegality. The Commission considers that the current procedure under the LDA which requires a determination by the eligible judge, on a case-by-case basis, of the need for notice to the subject should largely be adopted in the proposed Surveillance Act. This provision should, however, be extended to include cases involving surveillance pursuant to public interest or employment authorisations. Just as the LDA currently provides, the person or organisation that may be required to give notice should have an opportunity to address the issuing authority on the matter.

8.46 The Commission also recommends that the inspecting authority (being either the Privacy Commissioner or the Ombudsman) should have the power to recommend to the issuing authority that individuals be notified of the improper use of the device and be given such information about the surveillance as may be appropriate. Because of its access to the records of the relevant agencies, the inspecting authority will, in some instances, be in a better position than the issuing authority to assess whether or not privacy interests have been breached. In the case of surveillance without a warrant or authorisation, for example, the issuing authority will not have been aware of such occurrence and won’t be in a position to determine the need for notice to the subject unless the situation is brought to its attention. The inspecting agency’s function of actively and systematically monitoring compliance with the proposed legislation, mainly through the inspection of records of the relevant agencies, makes it ideally placed to recommend the giving of notice to the subject of the surveillance.

8.47 The power to give notice should not be confined, as it is under the Interception Act to so called “innocent persons” or to those against whom no criminal proceedings have been instituted.¹²⁴ Notice to those who have been charged with an offence may be appropriate for a number of reasons. The surveillance could be illegal for non-compliance with the conditions of the warrant or authorisation. It could be unlawful because no warrant or authorisation was issued to authorise it. The Commission is of the view that a notice may be given to any person whose private activity has been the subject of surveillance, including: persons named in warrants or authorisations, whether or not subsequently charged with an offence; persons not specified in warrants or authorisations but whose activities have been incidentally monitored; and persons whose activities were monitored where no warrant or authorisation was issued. To determine the need for notice, the issuing authority must play an active role in examining the proper execution of warrants or authorisations while the inspecting authority should ensure that compliance with the various requirements of the legislation is monitored and should be mindful of any possible infringement of the privacy interests of the persons concerned. The various agencies that carry out surveillance should be required to record as much information about their surveillance operations as possible, such as details of instances when the activities of persons other than those named in warrants or authorisations were recorded, cases when surveillance was carried out without a warrant or authorisation and particulars of persons whose private activities were monitored or recorded but against whom no criminal proceedings had been instituted or were likely to be instituted.¹²⁵

8.48 There is also a need to clarify the scope of the notice. The Commission considers merely being told of the fact the person has been the subject of surveillance is inadequate. This would not give the person concerned enough information to allow him or her to determine the legality or propriety of the surveillance. To tell a person that his or her private activities have been covertly monitored, without allowing him or her access to further information, would merely engender anxiety and not assist him or her to pursue any remedies to which he or she might be entitled. The issuing authority should have the discretion to order that the subject of the surveillance be given details of the surveillance, including the date, time and place of the surveillance and the types of devices used. The issuing authority should also be able to make available for inspection by the person under surveillance such portions of the recorded private conversation or activity, applications for the warrant or authorisation and/or the warrant or authorisation as the issuing authority determines to be in the interests of justice.

Recommendation 80

The proposed Surveillance Act should provide that where a surveillance device has been used to record the private conversation or activity of a person, the issuing authority may:

• direct the person or organisation which used the device to supply to the subject of the surveillance, within a period specified by the issuing authority, such information regarding the use of the device as the issuing authority may specify, including details about the surveillance such as the date, time, place and type of devices used;
• upon motion, make available to the subject for inspection such portions of the recorded private conversation or activity, applications for the warrant or authorisation and the warrant or authorisation as the issuing authority determines to be in the interest of justice; and
• either upon the recommendation of the inspection authority or on its own motion, direct that notice is required to be given, if satisfied that notice is necessary under the circumstances. The issuing authority must give the person or organisation who will be required to give notice an opportunity to be heard on the matter. Failure to comply with a direction to give notice should constitute an offence.

2. LDA s 17.

3. LDA s 19.

4. LDA s 5(4).

5. LDA s 23.

6. LDA s 20.

7. LDA s 17.

8. New South Wales, Royal Commission into the New South Wales Police Service, Final Report (May 1997) Vol 2 at para 7.99 (“Wood Report”).

9. Wood Report at para 7.99.

10. NSW Police Service, Special Services Group, Submission at 10.

11. NSW Crime Commission (NSWCC), Independent Commission Against Corruption (ICAC), Police Integrity Commission (PIC) and the National Crime Authority (NCA) (“Joint Law Enforcement Agencies”), Submission at 9.

12. Law Society of NSW, Submission at 9.

13. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 17 May 1984 at 1095.

14. Joint Law Enforcement Agencies, Submission at 9.

15. Usually within 21 days of the expiry of the warrant: Joint Law Enforcement Agencies, Submission at 9.

16. LDA s 19(1).

17. LDA s 19(1)(b).

18. LDA s 19(2). Failure to comply with such a direction incurs a maximum penalty of 20 penalty units, imprisonment for 12 months, or both.

19. LDA s 19(3).

20. LDA s 19(4). Inserted by the Listening Devices Amendment (Warrants) Act 1998 (NSW).

21. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 17 May 1984 at 1095.

22. Listening Devices Act 1972 (SA) s 6b; Drugs Misuse Act 1986 (Qld) s 29A.

23. Drugs Misuse Act 1986 (Qld) s 29A.

24. Listening Devices Act 1991 (Tas) s 19. Other time frames include monthly: Listening Devices Act 1972 (SA) s 6b; within the time specified in the warrant: Surveillance Devices Act 1999 (Vic) s 20(1).

25. Telecommunications (Interception) Act 1979 (Cth) s 94(1).

26. The Director General of the Australian Security Intelligence Organisation (ASIO) must also report to the Attorney General on the extent to which the interception assisted ASIO to carry out its functions: Telecommunications (Interception) Act 1979 (Cth) s 17.

27. Telecommunications (Interception) Act 1979 (Cth) s 94(2).

28. Telecommunications (Interception) Act 1979 (Cth) s 94(3).

29. Telecommunications (Interception) Act 1979 (Cth) s 94(3A).

30. Telecommunications (Interception) Act 1979 (Cth) s 95(1).

31. NSW Police Service, Special Services Group, Submission at 10; Joint Law Enforcement Agencies, Submission at 9.

32. NSW Police Service, Special Services Group, Submission at 10.

33. NSW Police Service, Special Services Group, Submission at 10; Joint Law Enforcement Agencies, Submission at 9.

34. LDA s 19(1).

35. If the Commission’s recommendation to remove the requirement that the Attorney General be notified of warrant applications prior to the warrant being granted is implemented (see Recommendation 67), there is no reason why the Attorney General would have access to information contained in an affidavit supporting a warrant application.

36. The Commission discusses the views of the Ombudsman in this respect and makes recommendations concerning review procedures under the new legislation at para 8.19-8.22.

37. Telecommunications (Interception) Act 1979 (Cth) s 80-81C.

38. Telecommunications (Interception) Act 1979 (Cth) s 82(b), 84 and 85.

39. P J Barrett, Telecommunications interception review: review of the longer term cost-effectiveness of telecommunications interception arrangements under section 332R of the Telecommunications Act 1997 (Australian Telecommunications Authority, Canberra, 1999) at para 4.2.11; P Ford, Telecommunication Interceptions Policy Review (Australia, Attorney General’s Department, Information and Security Law Division, 1999) at para 4.1.10.

40. Barrett at para 4.2.14.

41. See ch 4 and 10.

42. NSW Ombudsman, Submission at 3.

43. Ford at para 26, 4.1.

44. LDA s 23.

45. New South Wales, Attorney General, Report Pursuant to Section 23 of the Listening Devices Act 1984 for the year ended 31st December 1998 (Government Printer, Sydney, 1999).

46. There were 911 applications seeking a total of 1,555 warrants for the use of listening devices in 1998.

47. The following agencies applied for warrants in 1998: NSW Police Service (758); NSW Crime Commission (476); Police Integrity Commission (239); ICAC (58); National Crime Commission (24).

48. 53 applications were withdrawn.

49. Only 1 was refused.

50. None was recorded. However, it is significant to note that the NSW Police Service lodged 5 applications for warrants in connection with investigations into imminent threats to violence to persons or substantial damage to property. This suggests that there is no need for the legislation to authorise warrantless use of surveillance devices in those circumstances.

51. None was recorded.

52. In respect of 649 warrants, the listening device was either not used or ineffective.

53. The NSW Police Service sought 1 retrieval order while the NSW Crime Commission obtained 23 retrieval orders relating to 6 original warrants.

54. In respect of 288 warrants, evidence was obtained which led to the arrest and prosecution of offenders. 40% of the total number of warrants were used in respect of serious drug offences.

55. Three instances were reported, all without the benefit of a warrant. These were reported pursuant to the LDA s 5(4) which requires any person who uses a listening device without a warrant to notify the Attorney General immediately and to subsequently submit a report to the Attorney of the details of such use.

56. See, for example, Australia, Attorney General’s Department, Telecommunication Interception Act 1979 Report for year ending 30 June 1998 «http://law.gov.au/publications/interact/welcome.html»; Canada, Solicitor General, Annual Report on the Use of Electronic Surveillance as Required Under Subsection 195 of the Criminal Code 1985 (1996-1997) «http://www.sgc.gc.ca/epub/pol/eESurveillance AR96/eESurveillanceAR96.htm»; Administrative Office of the United States Courts, 1998 Wiretap Report «http://www.uscourts. gov/wiretap98/contents.html».

57. LDA s 23.

58. Telecommunications (Interception) Act 1979 (Cth) Pt IX.

59. Title 18, United States Code (1948) (“18 USC”) s 2519(3). This report is also known as the Wiretap Report.

60. See for example Canada, Department of Justice, 1994 Annual Report on the Use of Electronic Surveillance as Required Under Subsection 195(1) of the Criminal Code 1985.

61. Criminal Code 1985 (Can) s 195(4).

62. Listening Devices Act 1972 (SA) s 6b; Telecommunications (Interception) Act 1979 (Cth) s 100(1)(d).

63. Criminal Code 1985 (Can) s 195; 18 USC s 2519.

64. Telecommunications (Interception) Act 1979 (Cth) s 100(1)(e); Criminal Code 1985 (Can) s 195.

65. Listening Devices Act 1972 (SA) s 6b; Surveillance Devices Act 2000 (NT) s 49; Telecommunications (Interception) Act 1979 (Cth) s 101; Criminal Code 1985 (Can) s 195; 18 USC s 2519.

66. 18 USC s 2519.

67. Criminal Code 1985 (Can) s 195; 18 USC s 2519.

68. Telecommunications (Interception) Act 1979 (Cth) s 100(1)(f); Criminal Code 1985 (Can) s 195; 18 USC s 2519.

69. Criminal Code 1985 (Can) s 195.

70. Criminal Code 1985 (Can) s 195; 18 USC s 2519.

71. Telecommunications (Interception) Act 1979 (Cth) s 103; 18 USC s 2519.

72. Criminal Code 1985 (Can) s 195.

73. The Commission suggested the following information be included in the report:

• the number of applications for warrants that were made and by whom they were made;
• the number of applications for warrants that were refused;
• the number of applications for warrants that were granted, and the result of the use of the information obtained pursuant to those warrants, for example the number of arrests and number of prosecutions;
• the type of offence involved in each application;
• the period of time the warrant was in force (or the average period);
• the number of warrants that had to be renewed;
• the number and type of place for which the warrant authorises a listening device to be planted, that is, residential premises, commercial premises, vehicles;
• the number of directions made by the court to inform the subject of the surveillance;
• any changes to the legislation during the year in review;
• any general comments on the operation of the legislation;
• comparative statistics from previous years; and
• cost of the execution of warrants.

75. M L Sides, Submission at 15.

76. Price Waterhouse, Submission at 11; NSW Council for Civil Liberties, Submission at 5.

77. NSW Ombudsman, Submission at 2; Law Society of NSW, Submission at 5.

78. NSW Ombudsman, Submission at 2.

79. NSW Young Lawyers Criminal Law Committee, Submission at 6; Law Society of NSW, Submission at 5.

80. NSW Young Lawyers Criminal Law Committee, Submission at 6.

81. NSW Young Lawyers Criminal Law Committee, Submission at 6.

82. NSW Young Lawyers Criminal Law Committee, Submission at 6; Law Society of NSW, Submission at 5.

83. Law Society of NSW, Submission at 5.

84. Privacy Committee of NSW, Submission at 26.

85. NSW Young Lawyers Criminal Law Committee, Submission at 6; Privacy Committee of NSW, Submission at 26; Law Society of NSW, Submission at 5.

86. Privacy Committee of NSW, Submission at 27; Law Society of NSW, Submission at 5.

87. Privacy Committee of NSW, Submission at 27.

88. NSW Police Service, Special Services Group, Submission at 10; Joint Law Enforcement Agencies, Submission at 9.

89. See Australian Law Reform Commission, Privacy (Report 22, 1983); Australia, Attorney General’s Department, 1991 Annual Review of Telecommunications (Interception) Act 1979; P J Barrett, Telecommunications interception review: review of the longer term cost-effectiveness of telecommunications interception arrangements under section 332R of the Telecommunications Act 1997 (Australian Telecommunications Authority, Canberra, 1999).

90. For example, the Telecommunications (Interception) Act 1979 (Cth) was amended following the Barrett Review to introduce provisions requiring information concerning the cost of interceptions per warrant, and the proportion of warrants issued which yield information used in the prosecution of an offence.

91. Barrett at 66-67.

92. Barrett at 66-67.

93. LDA s 20(1).

94. LDA s 20(2).

95. LDA s 20(3) and 20(4).

96. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 17 May 1984 at 1096.

97. Criminal Code 1985 (Can) s 196.

98. Re Zaduk (1978) 38 CCC (2d) 349.

99. Canada, Law Reform Commission, Electronic Surveillance (Working Paper 47, 1986) at 90-93.

100. 18 USC s 2518(7) allows emergency interceptions under certain circumstances but requires that an application for an order approving the interception be made within forty-eight hours after the interception has occurred or begins to occur.

101. 18 USC s 2518(8)(d).

102. Barrett at para 4.3.3.

103. Barrett at para 4.3.1-4.3.3.

104. Barrett at para 4.3.4.

105. Barrett at para 4.3.5.

106. See Australia, Attorney General’s Department, 1995 Annual Review of Telecommunications (Interception) Act 1979 at 11.

107. Ford at para 4.4.

108. Barrett at para 4.3.5.

109. Barrett at para 4.3.5.

110. Telecommunications (Interception) Act 1979 (Cth) s 81C(1).

111. M L Sides, Submission at 15; NSW Council for Civil Liberties, Submission at 5; NSW Young Lawyers Criminal Law Committee, Submission at 6-7; Privacy Committee of NSW, Submission at 27; Law Society of NSW, Submission at 5-6.

112. Registered Clubs Association of NSW, Submission at 6.

113. Joint Law Enforcement Agencies, Submission at 10.

114. Joint Law Enforcement Agencies, Submission at 10.

115. NSW Police Service, Special Services Group, Submission at 11. This concern was also echoed by Price Waterhouse, Submission at 11.

116. M L Sides, Submission at 15; Director of Public Prosecutions, Submission at 8.

117. Privacy Committee of NSW, Submission at 27.

118. Privacy Committee of NSW, Submission at 27.

119. NSW Council for Civil Liberties, Submission at 5.

120. NSW Young Lawyers Criminal Law Committee, Submission at 6.

121. NSW Young Lawyers Criminal Law Committee, Submission at 6; Law Society of NSW, Submission at 5-6.

122. NSW Young Lawyers Criminal Law Committee, Submission at 6.

123. Price Waterhouse, Submission at 11.

124. Telecommunications (Interception) Act 1979 (Cth) s 81C.