BACKGROUND TO THE LISTENING DEVICES ACT
5.1 When the Listening Devices Act (LDA) was introduced its primary functions were stated to be the protection and preservation of the right of individual privacy, while at the same time recognising that listening devices can have legitimate and beneficial uses.1 It was recognised then, and continues to be recognised, that electronic surveillance is a legitimate crime fighting tool that can obtain compelling evidence to assist in securing convictions, but that it is intrusive. Accordingly, the principles of restraint and privacy must continue to be balanced against the public policy behind the goal of convicting a criminal and increasing levels of community protection. The legislation does so by prohibiting the use of listening devices, except in limited circumstances. The Commission’s approach to this review is to suggest reform in this area to accommodate technological changes, but so that such reform maintains the balance between privacy and the need to use surveillance.
5.2 The Commission has already made proposals in relation to overt visual surveillance in Chapter 4. This chapter examines the existing provisions of the LDA (which already govern both covert and overt surveillance) and how successful those provisions are in meeting the competing needs of regulating different types of surveillance and addressing privacy concerns. The Commission also raises issues that are not covered by the legislation, and makes suggestion for their inclusion.
5.3 As a final introductory point, the Commission highlights the fact that the legislation regulates only the use, not the supply or sale of surveillance equipment. The Commission does not suggest that the focus of the legislation change.
OPERATION OF THE LISTENING DEVICES ACT
Definition of surveillance
5.4 The Commission suggests that it may be appropriate for a definition of “surveillance” to be included in any amendment to the existing legislation. This would be necessary should the LDA be renamed to reflect its wider application. One suggestion is to rename it the “Surveillance Act”. At this stage the Commission favours a wide definition of surveillance, similar to that discussed in Chapter 2,2 that surveillance is monitoring peoples’ movements or affairs.
Definition of listening device
5.5 To be able to be authorised under the legislation, the actual piece of equipment used to conduct surveillance will have to fall within a category contained in the legislation. The equipment that is available now is considerably more sophisticated than it was when the LDA came into force in 1984. The legislation currently provides that:
“listening device” means any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place.
5.6 The Commission’s tentative view (and that of major users of the legislation)3 is that the definition in the Act excludes many devices that can now be used as surveillance devices, in particular, visual, signal and tracking devices.4 In practice this means that the often irrefutable evidence that this equipment can capture is inadmissible because it is not authorised by the warrant as a listening device. Although the Commission is aware of occasions where warrants have been issued authorising the use of an integrated device, that is a video camera and an audio device combined, these occasions are the exception rather than the rule. This situation highlights the need for legislation which is designed to regulate this area to be capable of incorporating the technological advances that have occurred since 1984, and also future developments. The Commission’s suggestions for reform are discussed in greater detail later in this chapter.
Use of the legislation
5.7 The legislation prohibits the use of listening devices, subject to certain exceptions. Those exceptions are generally justified on the basis that either the person recording is party to the private conversation, or the public interest in the investigation and prosecution of criminal activity overrides privacy considerations. To the Commission’s knowledge, the main use of the LDA arises through judicial authorisation of listening devices. The only recorded applicants for warrants for a listening device under the New South Wales legislation are law enforcement agencies. This is despite the New South Wales legislation having the widest definition of applicant, in comparison to other States and Commonwealth legislation.5 In New South Wales, “a person” may apply for a warrant to install and use a listening device.
5.8 The 1994 Listening Devices Act Annual Report6 revealed the following breakdown of the number of warrants requested:
| New South Wales Police Service | 624 warrants |
| New South Wales Crime Commission | 273 warrants |
| Independent Commission Against Corruption | 2 warrants |
| National Crime Authority | 37 warrants |
| Royal Commission into the Operations of the NSW Police Service | 67 warrants |
[Link to text only version of table]
5.9 Anecdotal evidence suggests, that despite the prohibition against the use of surveillance equipment, it is used in the community by persons without a warrant, or who are not subject to any other exception arising under the LDA. In that context it is used illegally, and the information obtained might be inadmissible as evidence for legal purposes.
5.10 Apart from judicial authorisation, the LDA does not permit the use of a listening device by a person who is not a party to the private conversation. An exception may arise permitting use of a listening device where the person seeking to use the device is a party to the conversation. However that person has to establish:7
- the consent of all principal parties to the conversation;
- the consent of a principal party and the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party; or
- the recording of the conversation is not made for the purpose of communicating or publishing the conversation, or a report of the conversation to persons who are not parties to the conversation.8
5.11 Although there are no reported decisions explaining the operation of this exception, the phrase “protecting the lawful interests of a principal party” is undoubtedly capable of wide interpretation. For instance, such a provision may be useful where an investigator is working under cover and wishes to record a conversation without the knowledge of the other parties. A similar exception exists in South Australia, where the legislation permits a party to a conversation to use a listening device if that person is acting in the course of his or her duty, in the public interest or for the protection of that person’s lawful interests.9
5.12 The Commission does not currently propose amendments to the definition of applicant, particularly if the Commission’s proposal to regulate the use of covert surveillance (to include visual, computer and tracking devices) is accepted. This proposal would require persons other than law enforcement agencies to have to make an application for a warrant when seeking to use a particular form of covert surveillance. Retaining a wide definition of applicant removes the need to try and incorporate any number of persons/organisations who may seek to obtain such a warrant, and the problems that can arise if individuals/groups are excluded.
ISSUE 9
Should the definition of “applicant” be amended?
ISSUE 10
Should the operation of the exceptions to the general prohibition against the use of listening devices be clarified in the legislation?
ISSUE 11
Should a party to a conversation be permitted to use a listening device if acting in the course of their duty or public interest?
SCOPE OF THE LISTENING DEVICES ACT
Offences for which a warrant may be sought
5.13 In New South Wales the LDA specifically identifies the types of offences for which listening device warrants can be sought. The offences include:
- an imminent threat of serious violence to persons, or of substantial damage to property;10
- a serious narcotics offence;11
- a “prescribed offence”, which is an offence (including an offence under a law of the Commonwealth or of another State or Territory) that is punishable on indictment, or is of a class or description prescribed for the purposes of the Act (whether or not it is punishable on indictment);12 and
- an offence prescribed for the purposes of the LDA-currently these include offences under section 200(1) or (2) of the Police Service Act 1900 (bribery and corruption of or by a police officer) and offences under section 5, Part 2A or section 44(1) of the Gaming and Betting Act 1912 (gambling offences of street betting, offences related to unlawful games and gaming-hours, and keeping a betting house).13
5.14 Other Australian jurisdictions are not as specific,14 and will allow an application for a warrant for a listening device to be made in respect of an “offence”. The most detailed provision specifying categories of offences for which a listening device may be sought is contained in the Telecommunications (Interception) Act 1979 (Cth) (hereafter the Interception Act). The Act categorises offences into two classes, and identifies a variety of offences under each class.15 First class offences include offences such as murder, kidnapping and major narcotics. Second class offences include those punishable by imprisonment for life or a maximum period of at least seven years. Second class offences also include loss of a person’s life or serious risk of a person’s life, serious fraud, offences involving planning and organisation, money laundering.
5.15 A recent review16 conducted by the Queensland Criminal Justice Commission (“CJC”) into police powers in Queensland included a review of surveillance devices. In respect of defining offences for which listening device warrants should be available, the CJC recommended a similar classification to that which exists in the Interception Act. The CJC suggested that a further two offences be added, that of organised crime and official corruption. No action has been taken in respect of that report to date.
5.16 The Commission’s view at this stage is that there is no need to re-classify the existing categories of offences in the LDA. They sufficiently reflect the fact that a listening device is a particularly intrusive investigative tool, and in reality are only used in respect of serious offences. Further, in the Commission’s opinion the categories cover the additions suggested by the CJC. There is always provision in the New South Wales legislation to prescribe certain offences under the Act. In an initial submission to us,17 the New South Wales Police Service have suggested a review of the non-indictable offences prescribed in the LDA Regulations for which warrants may be obtained under Part 4.
Who may grant an application for a warrant
5.17 Until recently the LDA provided for the Supreme Court of New South Wales to be able to grant a warrant for a listening device.18 However, certain High Court decisions19 signalled that it was not permissible for a State Parliament to confer upon a State court powers or functions (that is, administrative or non-judicial powers) which are incompatible with the exercise of judicial power. This concern resulted in changes to the New South Wales legislation so that the power to grant a warrant to use listening devices is now conferred upon judges individually as personae designatae.20 The State legislation is now in line with the Federal communications legislation.21 The practical result is that there is now an “eligible judge” list created by the New South Wales Attorney General for the specific purpose of authorising the use of listening devices. There is also provision for District Court Judges and Magistrates to be nominated as an “eligible judicial officer”, who may be required by the regulations to exercise the functions of an “eligible judge”.22
5.18 The Commission is concerned with the issue of which judicial officers should hear applications for listening device warrants. Warrants in general are intrusive, and a warrant authorising use of a listening device is a significant investigative procedure. For this reason it is important that the issue of warrants should be given serious consideration. The Commission believes that in view of the need to maintain public confidence in the listening device warrant system, the seriousness of such an application is such that it should be decided by a superior court judge.
Grounds for determining whether a warrant may be granted
5.19 The LDA requires the court to take several matters into consideration before determining whether a warrant for a listening device should be granted.23 The extent to which the privacy of any person is likely to be affected is of particular importance. The court must also consider the nature of the prescribed offence in respect of which the warrant is sought, the evidentiary value of any evidence sought to be obtained and any previous warrant sought or granted in connection with the same offence. The court must also consider any alternative means of obtaining the evidence or information sought.
5.20 In the Commission’s view these criteria provide appropriate checks on whether a warrant should be granted in the circumstances. They also emphasise the seriousness of the application.
Contents of an application for a warrant
5.21 The requirements set out in s 16 of the LDA in respect of the form of a warrant are mandatory, and failure to comply with those requirements will render the warrant null and void.24 Those seeking a warrant are therefore well advised to ensure the powers they wish to be authorised by the warrant are expressed in clear and unmistakable terms.25 Although the warrant is capable of authorising entry onto private property to install and retrieve a listening device, it does not provide the holder with power to conduct a search and seize property or to install a video camera.26
5.22 Warrants cannot be amended by the court. Any error in a warrant cannot be amended by the “slip rule”,27 or by the court’s inherent powers, because the warrant is not granted in “proceedings” and is not an order or judgment.28 The form of the warrant is generally in writing,29 accompanied by an affidavit, although no affidavit is specifically required by the existing legislation. In practice an affidavit is supplied in support of the warrant, and is extremely detailed. The Commission understands that it provides information of the type required under the Interception Act. This Act specifies that the affidavit include:
- facts and grounds on which the application is based;
- the period the warrant is to be in force and why;
- in relation to the service and in relation to each person to whom the application relates, the number of previous applications for warrants the agency has made and that related to the service or that person;
- the number of warrants previously issued on such applications; and
- particulars of use made by the agency of the information obtained under such warrants.30
5.23 The Commission suggests that it may be prudent for the form of the affidavit to be contained in the legislation to ensure a minimum uniformity of application and to provide an understanding of what is required.
5.24 There is no provision in the LDA for the review of a warrant where it subsequently found that the affidavit in support of the warrant is based on false information. In particular, what should happen to the information obtained on such an illegal and careless basis? Provision exists under the Evidence Act 1995 (NSW) for the court to exclude improperly or illegally obtained evidence.31 Given that the information obtained by listening device may be extremely sensitive, the Commission seeks comment on whether the information obtained should be destroyed, if it is excluded on that basis, and whether those who have obtained it illegally should be subject to sanction.
ISSUE 14
Should the form of the affidavit required in support of the application for a warrant be contained in the legislation, and if so, what form should it take?
ISSUE 15
Should information obtained illegally pursuant to a listening device warrant be destroyed if it is excluded from trial on that basis?
ISSUE 16
Should those who take part in illegally obtaining evidence pursuant to a listening device warrant be subject to sanctions?
What a warrant authorises
Entry to premises
5.25 The New South Wales legislation states that a warrant authorising the installation of a listening device on any premises may authorise entry onto those premises.32 It is imperative that such authorisation is specifically provided for in the warrant. In other jurisdictions where there is no clear power in the legislation authorising police to trespass onto private property to install electronic surveillance instruments, it has been held that the court will not imply such a power.33 The Commission suggests that to remove any doubt about the scope of the warrant, a warrant authorising entry onto premises should also state that the entry is not unlawful.
5.26 The current definition of premises in the LDA includes vessels, vehicles and aircraft. It makes no provision for containers, which are often used in the transporting of stolen goods, drug importation and so forth. The Commission suggests that 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.
Who is authorised to use the device
5.27 The LDA requires34 that a warrant 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. Aside from the inconvenience of having to list in the affidavit any number of names, this requirement fails to address the following situations:
- where substitute or extra personnel can be used (currently a new warrant has to be obtained);
- where an interpreter is required to use the device to listen to the conversation and translate, unless the need for an interpreter was foreseen when the warrant was originally obtained; and
- where naming all those who may use the device may jeopardise informers and undercover officers who will use the device. This concern has now been addressed by the new s 20A of the LDA,35 which allows the court to grant a warrant that refers to a person by an assumed name or code-name, if the court is satisfied that it is necessary to do so to protect the safety of the person.
5.28 It is not always possible at the time the warrant is sought to positively identify the officers who will be available to install and monitor a listening device at any particular time. Operational requirements may, and frequently do, change at short notice requiring available officers to undertake other duties. Other factors such as court commitments, sick and recreational leave also affect the deployment of personnel.
5.29 Other legislation is not as narrow. The Search Warrants Act 1985 (NSW) authorises a member of the police force and any such assistants as that person considers necessary to execute the warrant.36 A warrant issued pursuant to the Australian Security Intelligence Organization Act 1979 (Cth) (hereafter ASIO Act) authorises “the Organization” - including its officers, employees or agents - to use a listening device.37 The Customs Act 1901 (Cth) provides that the authority conferred by a warrant authorising use of a listening device in respect of a narcotics offence38 shall be exercised by the chief officer of the agency or by other approved officials of the agency.39 The Interception Act permits warrants to be issued to authorised agencies,40 and the executive of that agency can authorise members of that agency to use the warrant.41
Emergency warrants
5.30 Application for a listening device warrant can be made by telephone or radio where it is not possible or practicable for a warrant to be obtained in the normal course.42 An application in such circumstances can only be made by a member of the police force,43 where that member has a suspicion or belief that a prescribed offence has been or is about to be committed, and for the purpose of investigation into that offence, the immediate use of a listening device is necessary.44 The warrant is only permitted to be in force for 24 hours.45
5.31 There is also provision for a listening device to be used immediately (presumably only by police) where there is an imminent threat of serious violence to persons, substantial damage to property, or a serious narcotics offence.46 This would appear to cover hostage and kidnap situations. There will always be some situations that require different rules to apply for an application for a warrant for a listening device. The Commission makes no suggestions for change to this procedure at this stage.
Period of time the warrant can be in force
5.32 The Commission believes that the intrusive nature of a listening device requires a high degree of accountability for its use, and one way this can be done is to place a time limit on the period during which a warrant may be in force. However, this safeguard has to allow a realistic time frame for the installation, monitoring and removal of the listening device. Currently under the LDA a warrant has a life of 21 days. In many cases this period of time is insufficient to effect covert entry, installation and removal of the equipment. The 21 day period in New South Wales is mirrored in Victoria and the Northern Territory.47 Other States, for example Tasmania,48 have longer periods, and Western Australia has no statutory maximum. At a federal level, the ASIO Act49 and the Customs Act 1901 (Cth)50 permit a warrant for a listening device to remain in force for 6 months. The Interception Act has a 90 day limit.51
5.33 In suggesting any increase to the time limit, the Commission is mindful of the type of intrusion that the warrant authorises. One option may be to increase the initial time authorised by the warrant to say, 30 days, with the option of renewing the warrant for up to 60 days.52
Reporting procedures
5.34 The LDA53 requires that if a person has been granted a warrant authorising use of a listening device, a report has to be furnished to the court and the Attorney General. The report has to contain information stating whether or not a listening device was used pursuant to the warrant, and if so: the name of the person whose conversation was recorded; the period during which the device was used; the premises where the device was used; the general use made or to be made of any information/evidence obtained by the device; and particulars of any previous use of a listening device in connection with the prescribed offence in respect of which the warrant was granted.
5.35 The time for the report to be furnished is specified in the warrant. There is also provision for a record of any evidence or information obtained by the use of the listening device to be given to the court, and the court may order that it be made available to any person.54
5.36 Reports on the use of the warrant are intended to provide an important check on the use of listening devices, by making the applicant accountable and by establishing a store of knowledge available to the court in future applications. There is a question whether they provide the intended check, where it is perceived the information they contain is insufficient. In particular this is discussed below in the context of the annual report.
Annual report requirements
5.37 The LDA requires that the Attorney General shall cause a report to be prepared annually, containing information on the number of warrants sought, the number of warrants granted, and on such other matters related to the use of listening devices and to the administration of the legislation as considered appropriate by the Attorney General.55
5.38 In practice the report is a compilation of statistics prepared by the Attorney General’s Department Community Relations Division, which is then forwarded to the Attorney General who tables this information in Parliament. The most recent report tabled by the Attorney to the New South Wales Parliament is the 1994 Annual Report. This report contained the following information:
- the provisions of the LDA pursuant to which applications had been sought and granted;
- the overall number of applications and what organisations made them; and
- an analysis of reports made in respect of the use of each listening device.
5.39 In comparison with the annual reports of the use of surveillance devices prepared in other jurisdictions, the New South Wales report is fairly scant in the information that it provides. This is not necessarily because of the requirements in the LDA itself. The report by the Attorney General can include “appropriate information” relating to the use of listening devices and the administration of the Act. As an overall comment, the statistics provided in the annual report are given in isolation, there being no comparison made to previous years; the types of offence for which warrants were obtained were only identified in respect of those obtained under s 5 (2)(c)(ii)-although there is a statement that more than half the total numbers of warrants were used in respect of serious drug offences; there is no general comment on the success or otherwise of the legislation, and no legislative update.
5.40 Tasmania, the Northern Territory and South Australia are the only other State jurisdictions that require annual reports in respect of their Listening Devices legislation. The information provided in the Tasmanian and Northern Territory reports is fairly minimal. The South Australian report provides greater detail. At a federal level, the annual reporting provisions of the Interception Act56 require details of how many applications were made and warrants issued; the categories of the serious offences, the duration of the warrants, and information about the effectiveness of the warrants. Recent amendments to that legislation seek to provide more detailed information about the usefulness of the information obtained by interception under the warrant.57 Apart from the statutory requirements, the report complies with the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs on appropriate criteria for assessing reports on the operation of Acts.
5.41 The reporting requirements on orders authorising or approving the interception of wire, oral, or electronic communications in the United States are also fairly comprehensive. Information such as the offence under investigation, the location of the intercept, the cost of the surveillance, the number of arrests, trials, and convictions as a direct result of the surveillance, is required to be reported.58 Canada also produces a detailed annual report on the use of electronic surveillance.59
What should an annual report on listening devices include?
5.42 There may well be a public interest immunity argument when considering what to include in an annual report. There will always be cases where it is not appropriate for some information to be made public because of fear of jeopardising ongoing police operations or revealing police methodology.60 However, the Commission suggests that more information should be available than is currently included in the New South Wales annual report.
Suggested changes
5.43 The Commission suggests that the following is information that should be recorded, where relevant, in respect of the specific section of the LDA61 that can authorise a listening device:
- The number of applications for warrant that were made, and by whom.
- 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 number of arrests, 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.
- Cost of execution of warrants.
Notification and disclosure of surveillance to individuals who have been under surveillance
5.44 Section 20 of the LDA provides the court with the discretion to direct that the person who was the subject of surveillance by a listening device be notified of that fact, or of “such information regarding the warrant as the court may specify”.62 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.63 The Commission is unaware of any case where disclosure has occurred.
5.45 Tasmania is the only other State to have disclosure provisions.64 The Commission is not aware of any application for disclosure having been made pursuant to those provisions. At a federal level the Interception Act does not contain any provision to notify an innocent person whose telephone service has been intercepted of the fact of that interception. However, this Act provides for a special register with details of warrants which do not lead directly or indirectly to a prosecution, to be kept.65 The United States legislation permits the disclosure of portions of the intercepted communication “in the interests of justice”.66 Canada has a similar provision.67
5.46 Disclosure of surveillance under a warrant can provide an important check on the proper use of a warrant. The difficulty is exactly what information should be revealed, and to whom. The Barratt Review68 of the Interception Act proposed an “innocent persons” register be established which would notify any innocent person whose telephone had been intercepted, that the interception had taken place. Such a register presupposes that those persons who were not prosecuted were innocent, and in some cases this may not be so. It may be the case that the particular intercept reveals some evidence of a person’s illegal activities, which warrants further investigation. In those cases disclosure of the surveillance may jeopardise an ongoing investigation and therefore be inappropriate. This recommendation was not accepted by the Federal Government.69
5.47 Of course there will be cases where those who have been placed under surveillance are not prosecuted, and never will be prosecuted. Should the surveillance be disclosed to them? Despite the intrusion of the surveillance on their privacy, there may well be a public interest argument against revealing to people that they have been under surveillance. Further, given that there is no tort of invasion of privacy in New South Wales, what further action could be taken by a person where it had been revealed they had been placed under surveillance? Although there have been calls for apologies to be issued in such cases,70 the Commission suspects that such acknowledgement would be unlikely to be forthcoming.
ISSUE 22
Should there be a provision in the New South Wales legislation for disclosure to be made to persons who have been placed under surveillance, where that person is not found to be connected with any criminal activity, and is not prosecuted as a result of the surveillance? If so, does the existing section 20 accommodate the need for disclosure? Should such disclosures be recorded in the Annual Report?
Destruction of records created following use of a listening device
5.48 The LDA makes some provision for the destruction of records of evidence or information obtained by a person using a listening device pursuant to a warrant granted under Part 4 of the Act, or in the circumstances referred to in s 5(2)(c). They are required “as soon as practicable” after the record has been made, to destroy that record. There is no further definition of “as soon as practicable”, although a penalty of $2,000 or imprisonment for 12 months can be imposed for non compliance with the section.
5.49 The Commission raised in Chapter 4 the need for regulation of the destruction of information obtained through overt visual surveillance, and the same need arises here. The Commission seeks comment on whether the phrase “as soon as practicable” is sufficient, or whether a finite period of time should be included.
WHAT THE LISTENING DEVICES ACT DOES NOT COVER
Installation/repair/maintenance of device
5.50 The New South Wales legislation only authorises entry onto the premises for installation and retrieval of the device.71 There is, however, no specific provision for authorisation for the purpose of testing, repairing or maintaining the device. It is fairly essential that such ancillary powers are authorised in the warrant. The Commission suggests that such powers should become automatic on issue of the warrant, as they may be an integral part of the success or otherwise of an operation. Such authorisation can be granted in other jurisdictions.72
Retrieval
5.51 Under NSW legislation retrieval of the listening device has to take place within the life of the warrant, 21 days.73 There is no provision in the legislation for an extension of time for retrieval. Allowing time for retrieval obviously cuts into surveillance time, and in many cases the device cannot be recovered within that time frame, for instance where persons remain on the premises, or if the device is in a car, when the vehicle is moved and cannot be located. If this is the case the device is disabled and left at the location. If the life of a warrant is extended beyond 21 days, the need for extra retrieval time may no longer be required. However, there may still be occasions where a greater length of time may still not be sufficient to accommodate the retrieval of the device. It may therefore be preferable to be able to obtain a restricted warrant to retrieve the device.
Use of electricity to power the device
5.52 The authorised use of a listening device should also include the use of electricity connected to the premises to power the device. This would remove any argument at a later date that the device had been used unlawfully, and avoid any suggestion of theft of electricity.74 Other forms of power, for example batteries, present the real possibility of not being able to effectively conceal the device or losing power prior to the expiration of the warrant.
No definition of visual, signal or tracking surveillance devices
5.53 As discussed earlier in this chapter, the LDA only regulates the use of aural surveillance devices, which are defined as any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place.75 The Commission suggests that this is not satisfactory, given the technology that currently exists, and that may be developed and used for surveillance in the future. In particular, the Commission suggests that the definition of listening device (or possibly renamed to be called “surveillance device”) should include the existing definition of aural listening device and incorporate the following:
- visual surveillance device: equipment that can record images, either with or without sound.
- signal devices: this type of device relates to the use of technology which allows the implanting within a computer of either a recording or transmitting device to pass raw data to an outside receiving point. This use of technology overcomes any encryption that the target may employ which could defeat the use of telephone interception techniques, and enables the collection of pass codes and passwords for (potentially) later access under the username of the target to sources of illegal material. This particular technique would be most often used in the collection of evidence in paedophile and fraud related crimes perpetrated through computers. Making it permissible pursuant to warrant would also overcome any possible offences in respect of unlawful access to data in a computer.76
- tracking devices: certain investigations may require the position and the movements of a suspect’s motor vehicle/property to be determined. Equipment is available that allows this to be done with considerable accuracy, but the equipment must be installed into the motor vehicle or property and to do so there must be an entry into the vehicle or property concerned. Currently the LDA cannot authorise entry for this purpose.
5.54 It has been suggested77 that the definition of listening device that is contained in the ASIO Act is broad enough to cover devices excluded by the current New South Wales definition, as well as future technological developments. That definition defines listening device to include:
any instrument, device or equipment capable of being used, whether alone or in conjunction with any other instrument, device or equipment, to record or listen to words, images, sounds or signals.
5.55 Not only does this definition include visual (including audio-visual) surveillance and tracking devices, it also covers the use of enhancement equipment used during the recording process. On a strict interpretation of the LDA, enhancement equipment is not technically capable of being used to record or listen to a private conversation as it takes place. If it is used it may result in an admissibility problem with the ultimate recording.
Protection of legal professional privilege
5.56 There is no specific requirement in the LDA for the court that issues a warrant authorising use of a listening device to consider a possible breach of legal professional privilege. Any claim of legal professional privilege in New South Wales is regulated by the Evidence Act 1995.78 The issue of legal professional privilege may well arise where the warrant seeks to install the listening device on premises belonging to a solicitor or barrister, or for example, the interview room at a prison. The current practice in New South Wales is that the Solicitor General requires that a condition be inserted in the warrant that information obtained pursuant to the warrant that may be covered by legal professional privilege be passed to him. He determines whether privilege attaches to it. The Solicitor General also requires that there be a condition in the warrant that any information obtained by an agency that is so covered by privilege will be destroyed. If necessary the Solicitor General will appear before the judge considering the warrant application seeking the insertion of these conditions.
5.57 The CJC in its review of police powers in Queensland recommended specific legislative recognition of legal professional privilege.79 The proposal included no recording of or listening to private conversations at the office or residence of a legal representative, unless the court was satisfied that there were reasonable grounds to believe that the legal representative was about to become party to the offence in respect of which the warrant was sought. The CJC went further to recommend that the judge have a discretion to “live monitor” confidential conversations to prevent privileged conversations from being recorded. No action has been taken on these recommendations. Canada would appear to be the only jurisdiction where provision is made for the recognition of legal professional privilege when intercepting communications. The Canadian telephone interception legislation80 requires the judge to be satisfied on reasonable grounds that the lawyer, another lawyer practising with him, or a member of the lawyer’s household, has been, or is about to become, a party to an offence.
5.58 Is it necessary to formalise the arrangement that occurs in New South Wales in legislation? Would it be preferable to establish a more formal framework between the Solicitor General and those agencies seeking to execute warrants which may give rise to claims of legal professional privilege?81
FOOTNOTES
1. New South Wales - Parliamentary Debates (Hansard) Legislative Council, 23 May 1984 at 1440.
2. See para 2.3.
3. Law enforcement agencies.
4. These devices are defined at para 5.53.
5. In all other States and Territories an applicant 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.
6. New South Wales Attorney General- Listening Devices Act Annual Report 1994. This is the most recent annual report on this legislation.
7. The onus of establishing these conditions rests with the party seeking to establish them: Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 97.
8. See LDA s 5(3).
9. Listening Devices Act 1971 (SA) s 7(1). See also Invasion of Privacy Act 1971-1976 (Qld) s 43(2)(a) which permits a party to a conversation to use a listening device; Listening Devices Act 1969 (Vic) s 4(2).
10. LDA s 5(2)(c)(i).
11. LDA s 5(2)(c)(ii).
12. LDA s 15.
13. LDA s 15 and LDA Regulation 5.
14. Victoria, South Australia, Western Australia and Queensland (Invasion of Privacy Act).
15. See Telecommunications (Interception) Act 1979 (Cth) s 5.
16. Criminal Justice Commission, Report on a Review of Police Powers in Queensland, Volume V: Electronic Surveillance and Other Investigative Procedures (October 1994) at 760.
17. New South Wales Police Service Submission (13 December 1996). They suggest offences relating to the possession and supply of anabolic steroids pursuant to the Poisons and Therapeutic Goods Act 1966 (NSW) should become prescribed offences, together with the offences of the possession of child pornography and publishing indecent articles under s 578B and 578C of the Crimes Act 1900 (NSW).
18. Section 15. The LDA also provided for the regulations to allow the District and Local Courts to exercise similar powers.
19. See Grollo v Palmer (1995) 184 CLR 348; and Kable v Director of Public Prosecutions for New South Wales (1996) 70 ALJR 814.
20. Section 3A and 3B, LDA. (as amended by Listening Devices Amendment Act 1996 (NSW) Schedule [2]. For more discussion see New South Wales - Parliamentary Debates (Hansard) Legislative Council, 27 November 1996 at 6650-1; and New South Wales - Parliamentary Debates (Hansard) Legislative Assembly, 27 November 1996 at 6754.
21. See Interception Act s 6D.
22. See Listening Devices Act 1984 (NSW) s 3B and s 16(7).
23. Section 16(2).
24. See Haynes v Attorney-General (NSW) (Supreme Court, NSW, James J, 9 February 1996, 012075/95, unreported).
25. Coco v The Queen (1994) 179 CLR 47.
26. R v McNamara [1995] 1 VR 263 at 268-69.
27. See Supreme Court Rules Pt 20 rr1 and 10.
28. Haynes v Attorney-General (NSW) (Supreme Court, NSW, James J, 9 February 1996, 012075/95, unreported).
29. See LDA Schedule 2, Form of Warrant. The exception is where an emergency warrant is applied for, over the phone or radio.
30. Interception Act s 42.
31. Evidence Act 1995 (NSW) s 138.
32. LDA s 16(3) and s 16(4)(f).
33. Coco v The Queen (1994) 179 CLR 427 at 437.
34. LDA s 16(4)(d).
35. Amended by Criminal Legislation Amendment Act 1996 (NSW) Schedule 1 s [1]-[13].
36. Search Warrants Act 1985 (NSW) s 6 and 18.
37. ASIO Act s 26.
38. Customs Act 1901 (Cth) s 219B.
39. Customs Act 1901 (Cth) s 219D.
40. Interception Act s 39.
41. Interception Act s 55.
42. LDA s 18.
43. LDA s 18(4).
44. LDA s 18(2).
45. LDA s 18(8).
46. LDA s 5(2)(c).
47. Listening Devices Act 1969 (Vic) s 4A(4)(c); Listening Devices Act 1990(NT) s4(7)(c).
48. Listening Devices Act 1991 (Tas) s 17(4)(c) allows a maximum of 60 days.
49. ASIO Act s 26(6).
50. Customs Act 1901 (Cth) s 219B(10).
51. Interception Act s 49(3).
52. There is no specific provision in the LDA relating to extension renewal of warrants. In practice a person seeking to renew a warrant has to provide fresh evidence by way of affidavit, and a new application for warrant.
53. LDA s 19.
54. LDA s 19(2) and (3).
55. LDA s 23.
56. Interception Act Part IX. The latest Annual Report is: Commonwealth of Australia Telecommunications (Interception) Act 1979: Report for the year ending 30 June 1995 (AGPS, Canberra, 1996).
57. Interception Act s 94(2)(b).
58. The Omnibus Crime Control and Safe Streets Act of 1968 requires the Administrative Office of the US Courts (AO) to report to Congress the umber of Federal and state applications for orders authorising or approving the interception of wire, oral, or electronic communications. This report is also known as the Wiretap Report.
59. See for example the 1994 Annual Report On The Use Of Electronic Surveillance As Required Under Subsection 195(1) Of The Criminal Code.
60. The immunity may also arise because the documents may also expose those who co-operate with the police to reprisals and discourage others in the future.
61. LDA s 5(2)(c)(ii), 16(1) and 18(2).
62. LDA s 20.
63. New South Wales - Parliamentary Debates (Hansard) Legislative Assembly, 17 May 1984 at 1096.
64. Listening Devices Act 1991 (Tas) s 6 and 20.
65. Section 81C(1).
66. See 18 USC 2518(10)(a). This section also contains the procedure an aggrieved person should follow to obtain such an order.
67. Protection of Privacy Act, SC 1973-74, c 50 s 178.23.
68. Australia - Department of Finance, Review of the Long Term Cost Effectiveness of Telecommunications Interception (1994) (the “Barratt Review”).
69. See Australia - Telecommunications (Interception) Act 1979, Annual Report for the year ending 30 June 1995, at 11.
70. See “Rapid increase in bugging devices sparks inquiry” The Sydney Morning Herald (31 October 1996) at 5.
71. LDA s 16(3).
72. For example see the Listening Devices Act 1990 (NT), s 4(6); the Drugs Misuse Act 1986 (Qld) s 18 and 27; and the Customs Act 1901 (Cth) s 219B(7).
73. LDA s 16(3) and (4).
74. Electricity Act 1945 (1946 No.13) (NSW) s 30.
75. LDA s 3.
76. See Crimes Act 1900 (NSW) Part 6, s 308-310.
77. New South Wales Police Service, Submission (13 December 1996) at 3.
78. See s 117-126.
79. Criminal Justice Commission, Report on a Review of Police Powers in Queensland, Volume V: Electronic Surveillance and Other Investigative Procedures (October 1994) at 788-791.
80. Criminal Code (Canada) s 186.
81. For example, agreements as to the procedure for the execution of search warrants on the offices of legal practitioners were reached between the Law Society of New South Wales and the New South Wales Commissioner of Police in May 1995.
