Crimes (Surveillance Devices) Regulation 2017

The regulation rests on a small set of defined and referenced legal concepts. Those concepts, and their statutory relationships in this instrument, are:

• Corresponding law. The regulation explicitly declares which interstate statutes are "corresponding to the Act" (s 3(1)). The regulation does not define "corresponding law" itself; instead it relies on the parent Act’s dictionary entry (the text states "see Act, dict, def corresponding law"). When the parent Act uses that expression, the laws listed in s 3(1) will be treated as meeting that definition for the purposes the Act specifies.

• Corresponding emergency authorisation. The instrument notes that a surveillance device (emergency) authority under the South Australian Act would, except for the specified exclusion, be a "corresponding emergency authorisation" under the Act (s 3(1) note). The note directs readers to the Act’s dictionary definition of "corresponding emergency authorisation", indicating that the regulation’s listing feeds into the Act’s emergency‑authorisation framework.

• Surveillance device (emergency) authority and serious drug offence. The regulation invokes these concepts by reference to the South Australian Surveillance Devices Act 2016 and directs users to that Act’s definitions (s 3(2)). The regulation does not define them itself. Where the regulation excludes the SA Act to the extent it provides for an emergency authority in relation to a serious drug offence (s 3(1)(f)), the excluded material is identified only by cross‑reference to the SA Act’s own s 3 definitions, so the legal meaning of the exclusion depends on the SA Act’s text.

• Commencement and republication machinery. The front matter sets out which parts of the regulation commenced on which dates (see the legislation history endnote). It also records that editorial amendments authorised under the Legislation Act 2001, part 11.3, may have been applied in preparing the republication, and that those editorial changes have legal effect as if made by an Act commencing on the republication date (see the republication notes citing Legislation Act 2001, ss 115 and 117).

• Penalty unit values. The republication header records the penalty unit values applying at the republication date for offences against this law: $160 per unit for an individual and $810 per unit for a corporation, citing the Legislation Act 2001, s 133. The regulation itself contains no penalty provisions beyond this published reference.

The regulation therefore functions as a mapping or recognition instrument: it maps specified interstate surveillance‑devices statutes into the territory Act’s vocabulary of "corresponding law" and "corresponding emergency authorisation", subject to a narrow exclusion. The document relies on the parent Act and on the listed interstate Acts for substantive definitions and operational rules. Users must therefore treat the regulation as an index entry: it nominates external statutes to be treated as corresponding, but supplies none of the operational rules, thresholds, or procedural protections that those statutes or the parent Act provide.

The instrument’s direct and immediate audience is narrowly defined by its subject matter. The primary affected actors are:

• Decision‑makers exercising or recognising surveillance device authorisations under the Crimes (Surveillance Devices) Act 2010. When the Act requires or permits recognition of a "corresponding law" or a "corresponding emergency authorisation", the list in s 3(1) directs those decision‑makers to treat particular interstate statutes as corresponding. The regulation thereby affects who can lawfully give or have recognised surveillance device authorisations for cross‑jurisdictional purposes. The regulation does not itself confer operational powers, it governs recognition (s 3(1)).

• Law enforcement agencies, police officers and other authorities that seek to rely on interstate authorisations. Where a surveillance device authorisation in the ACT framework hinges on correspondence with an interstate instrument, the s 3(1) list determines whether a particular interstate authorisation is treated as equivalent for ACT purposes. For example, the inclusion of the Police Powers and Responsibilities Act 2000 (Qld), chapter 13, means that chapter is a corresponding law for ACT purposes (s 3(1)(c)). The narrow exclusion for the South Australian Act (s 3(1)(f)) means an SA surveillance device (emergency) authority granted in relation to a serious drug offence will not be treated as a corresponding emergency authorisation in the ACT.

• Legal practitioners and courts handling questions of admissibility, validity or recognition of surveillance device authorisations. The regulation changes the pool of interstate instruments that may be recognised under the Act’s cross‑recognition rules. Lawyers advising on cross‑border surveillance or litigation involving surveillance devices will need to consult s 3(1) to determine whether a given interstate authorisation counts as corresponding.

• Persons subject to surveillance or whose communications or premises are the subject of an interstate authorisation that may be recognised in the ACT. Indirectly, the regulation affects such persons because it alters the legal provenance of authorisations that could be relied on in ACT proceedings or by ACT agencies. The text, however, contains no procedural safeguards itself; any rights arise from the parent Act or the corresponding interstate laws.

• Administrators and drafters of policy and statutory instruments who track cross‑jurisdictional consistency. The instrument signals which interstate surveillance regimes are formally aligned with the ACT regime for statutory purposes. That influences administrative arrangements and mutual assistance in surveillance matters to the extent the parent Act uses the concept of correspondence.

• Regulatory and compliance units checking expiry, amendment and commencement. The republication and endnote material record commencement and amendment dates (legislation history), and indicate editorial amendments and the possibility of uncommenced provisions or current modifications. Entities that rely on accurate current law must consult the legislation register for updates, given the instrument’s recorded amendments (re SL2022‑1).

The regulation is therefore not a general‑purpose instrument affecting the public at large. Its effects are concentrated on legal actors and agencies that operate in or across surveillance device regimes, and on persons whose cases involve cross‑jurisdictional recognition of surveillance device authorisations. The practical reach of the regulation depends on how often the parent Act invokes "corresponding law" or "corresponding emergency authorisation" in ways that alter decision‑making or evidentiary outcomes.

The regulation itself imposes no operational duties such as authorisation processes, notice requirements or retention obligations; those duties and rights are set out in the Crimes (Surveillance Devices) Act 2010 and in the interstate laws that the regulation nominates as corresponding. What the regulation does impose, mechanically, is a statutory rule for recognition: where the Act relies on the concept of a corresponding law or a corresponding emergency authorisation, the listed interstate statutes are to be treated as corresponding (s 3(1)). That creates two practical legal effects that translate into duties or rights under the parent Act:

• Duty to treat nominated interstate instruments as corresponding. Decision‑makers and agencies subject to the Act must, by operation of the regulation, treat the listed laws as corresponding when applying any provision of the Act that references that concept. For example, if the Act requires that an emergency authorisation be a corresponding emergency authorisation for a particular cross‑border recognition scenario, the nominative list in s 3(1) supplies the source instruments that meet that requirement.

• Right to rely on interstate authorisations where listed. Conversely, an officer or practitioner seeking recognition of an interstate surveillance device authorisation will have statutory support to assert that the relevant interstate Act is a "corresponding law", provided it is one of the listed instruments and not excluded by the qualification in s 3(1)(f).

The regulation also creates a negative rule in relation to South Australia: the SA Surveillance Devices Act 2016 is declared corresponding except where it provides for a surveillance device (emergency) authority in relation to a serious drug offence. The note attached to s 3(1)(f) makes explicit that, absent the exclusion, such an SA emergency authority "would otherwise be a corresponding emergency authorisation" under the Act. The practical effect is that a surveillance device (emergency) authority granted under the SA Act for a serious drug offence does not, for ACT purposes, fulfil the Act’s test of a corresponding emergency authorisation. That exclusion removes the right to treat such SA emergency authorities as corresponding in that narrow class of cases, and imposes the correlative duty on ACT decision‑makers not to treat them as corresponding.

Other implied duties and rights arise indirectly from the republication material. The front matter records that editorial amendments have been applied under the Legislation Act 2001, part 11.3 and that those amendments have legal effect as if made by an Act commencing on the republication date (see the republication notes referencing Legislation Act 2001, ss 115 and 117). This means users must treat the republication as authoritative and follow it for current legal text, rather than an earlier printed or unamended draft. The header also records penalty unit values applying at republication for offences against this law, which is relevant where the parent Act or the corresponding laws impose offences; the regulation itself contains no penal provisions other than this published value (see the penalty unit note referencing Legislation Act 2001, s 133).

In short, the regulation’s key duty is administrative recognition: it directs who is to be treated as a corresponding law. The rights flow from that recognition where the Act provides rights tied to the existence of a corresponding law or corresponding emergency authorisation. Those operational duties and rights, and any associated safeguards, remain in the parent Act and in the texts of the listed interstate statutes.

The regulation contains no stand‑alone enforcement regime and no bespoke penalties within its substantive clauses. Nonetheless the republication materials supply two enforcement‑relevant facts:

• Applicable penalty unit values. At the republication date (28 January 2022), the document records the value of a penalty unit for an offence against this law as $160 for an individual and $810 for a corporation (see the republication header citing Legislation Act 2001, s 133). That figure determines the monetary amount of any pecuniary penalties that the Act or subordinate instruments fix in terms of penalty units. The regulation does not specify any particular number of penalty units for an offence because it contains no offence provisions; the value note is a publishing convenience drawing users to the Legislation Act figures.

• No enforcement provisions in the regulation itself. The regulation’s operative provision is declaratory (s 3), naming corresponding laws. It does not create investigative powers, criminal offences, or evidentiary rules. Enforcement actions, including authorisation, oversight, and admissibility issues, are the domain of the Crimes (Surveillance Devices) Act 2010 and the corresponding interstate statutes listed in s 3(1). Any contravention of duties under the parent Act or those corresponding laws will be subject to the penalties and enforcement mechanisms set out in those statutes, not in the regulation.

Operationally, enforcement will therefore follow the parent Act’s architecture. The regulation affects enforcement only insofar as courts, oversight bodies or enforcement agencies rely on its list to determine whether an interstate instrument qualifies as a corresponding law or a corresponding emergency authorisation for recognition, admissibility, mutual assistance or other statutory consequences. For example, if a practitioner or agency seeks to rely on an interstate emergency authorisation in an ACT proceeding, the eligibility of that interstate instrument will be tested against the list in s 3(1); whether the interstate authorisation’s use produces an admissible piece of evidence, or whether its misuse gives rise to an offence, will be resolved by the relevant substantive statute.

The republication and endnote material also record amendments and commencement dates (see the legislation history and amendment history in the endnotes). That material is relevant to enforcement timing. Agencies and practitioners must consult the legislation register for the current, operative text and for any modifications, because the instrument notes that uncommenced provisions and current modifications may affect the republished law.

In short, the regulation itself does not impose penalties or enforcement regimes; it shapes enforcement questions indirectly by defining the universe of external statutes that count as "corresponding", and it publishes the penalty unit values to be used if any offence provision in the parent Act or associated instruments refers to penalty units.

The regulation is explicitly designed to interact with two classes of statute: first, the Crimes (Surveillance Devices) Act 2010 under which it is made; second, the interstate surveillance devices statutes declared to be corresponding in s 3(1). The statutory interactions can be analysed as follows:

• Delegated instrument to the parent Act. The regulation is made under the Crimes (Surveillance Devices) Act 2010. Its sole substantive effect is to declare which interstate statutes correspond to that Act. The parent Act contains the operative provisions that refer to a "corresponding law" or a "corresponding emergency authorisation"; the regulation supplies the list of statutes that the parent Act will regard as corresponding. Therefore, the regulation functions as a delegated recognition mechanism that feeds into the parent Act’s cross‑jurisdictional rules (s 3(1)).

• Cross‑jurisdictional recognition. The regulation expressly lists the following interstate Acts as corresponding: Surveillance Devices Act 2007 (NSW) (s 3(1)(a)); Surveillance Devices Act 1999 (Vic) (s 3(1)(b)); Police Powers and Responsibilities Act 2000 (Qld), chapter 13 (s 3(1)(c)); Police Powers (Surveillance Devices) Act 2006 (Tas) (s 3(1)(d)); Surveillance Devices Act 2007 (NT) (s 3(1)(e)); and Surveillance Devices Act 2016 (SA), with a defined exception (s 3(1)(f)). The mechanical effect is that where the parent Act requires a corresponding law or corresponding emergency authorisation, these listed instruments provide the source material to satisfy that test.

• Narrow exclusion for South Australia. The regulation modifies the general correspondence by qualifying the SA Act’s inclusion: the SA Surveillance Devices Act 2016 is a corresponding law "except to the extent that it provides for a surveillance device (emergency) authority to be granted in relation to a serious drug offence" (s 3(1)(f)). The regulation further points readers to the South Australian Act’s s 3 for the definitions of "serious drug offence" and "surveillance device (emergency) authority" (s 3(2)). This targeted carve‑out means that certain SA emergency authorisations will not be treated as corresponding emergency authorisations under the parent Act, so the parent Act’s cross‑recognition or emergency‑use provisions will not be satisfied by reliance on those SA orders.

• Interaction with the Legislation Act 2001. The republication notes record that the Parliamentary Counsel made editorial changes under the Legislation Act 2001, part 11.3, that do not change the effect of the law but have effect as if made by an Act commencing on the republication date (citing the Legislation Act 2001, ss 115 and 117). The legislation history and amendment history record the instrument’s making (SL2017‑8), commencement dates, and an amendment (SL2022‑1) that updated s 3. The amendment history records that s 2 was omitted under Legislation Act 2001 s 89(4) (endnote 4). Readers must therefore reconcile the regulation with the Legislation Act processes affecting republication, editorial amendment and commencement.

• Reliance on interstate substantive content. Because the regulation merely declares correspondence, its legal effect depends on the substantive content of the corresponding statutes. For example, whether an interstate surveillance device authorisation constitutes an emergency authorisation, the scope of offences described as "serious drug offences", or the procedural safeguards attached to an authorisation, are matters of the interstate statutes themselves. The regulation does not harmonise those provisions; it only determines whether they are to be treated as corresponding for the Act’s purposes.

• Limits on territorial application. The regulation operates within the ACT legislative framework. It does not amend, replace or override the substantive operation of the listed interstate statutes in their own jurisdictions. Instead, it governs how those interstate provisions are treated under the ACT Act’s cross‑recognition rules.

Users must therefore treat the regulation as an indexing instrument that links the ACT’s statutory apparatus to specified interstate instruments, subject to the South Australian exception. Practical cross‑border operation will require examining the parent Act, the listed interstate Acts, and any updates recorded on the ACT legislation register.

The republication records the instrument’s making and subsequent amendment(s). The salient dates and amendments are:

• Original instrument: Crimes (Surveillance Devices) Regulation 2017, SL2017‑8. It was notified on the legislation register (LR) on 24 April 2017. Sections 1 and 2 commenced on 24 April 2017 (pursuant to the Legislation Act 2001, s 75(1)), with the remainder of the regulation commencing on 25 April 2017 (see the legislation history endnote 3).

• Amendment: Crimes (Surveillance Devices) Amendment Regulation 2022 (No 1), SL2022‑1. This amendment instrument was notified on the legislation register on 27 January 2022. Sections 1 and 2 of the amendment commenced on 27 January 2022 (Legislation Act 2001, s 75(1)), with the remainder of the amendment commencing on 28 January 2022 (see the legislation history endnote 3). The amendment expressly amended s 3: the amendment history notes "Corresponding law,Act, dict, def corresponding law s 3 am SL2022‑1 s 4, s 5" (endnote 4).

• Editorial and commencement adjustments. The republication materials indicate editorial amendments under the Legislation Act 2001, part 11.3, were applied in preparing the republication and that such editorial changes have effect as if made by an Act commencing on the republication date (see the republication notes citing Legislation Act 2001, ss 115 and 117). The amendment history also records that s 2 was omitted under Legislation Act 2001 s 89(4) (endnote 4), indicating a technical adjustment to how commencement material is presented or operates.

• Earlier republication. The republication endnotes list an earlier republication (R1), effective 25 April 2017 and covering the period to 27 January 2022. The present document is Republication No 2 effective 28 January 2022 (endnote 5).

• No further amendments recorded in this republication. The endnotes show the legislative and amendment history up to the republication date. The text warns users to check the legislation register for any uncommenced amendments or modifications that may affect the republished law.

In practice, the amendment history recorded in the endnotes demonstrates that the regulator updated the corresponding law list in 2022. The precise textual changes to s 3 effected by SL2022‑1 are not set out within the body of the republished regulation beyond the fact of amendment, so users needing to know what changed must compare the versions or consult the amendment instrument SL2022‑1. The republication also documents the dates on which parts of the instrument and the amendment instrument commenced; these dates are relevant to determining which version of the corresponding law list applied at any given time.

The republished regulation does not include, reference or record any court decisions, judicial interpretations, or litigation history concerning the regulation itself. The instrument’s text and its endnotes contain no judicial citations or reported cases. The document’s endnotes list the legislation and amendment history, republication dates and editorial change notes, but they do not record any litigation or court determinations about the regulation’s content or application.

From the text provided, the following points about litigation history are verifiable:

• No cases are named. The regulation’s body and endnotes do not name any court proceedings, appeals, or judicial authorities concerning the contents or operation of this regulation.

• No recorded judicial interpretation. Because the instrument is short and declaratory, and the republished text contains no annotations or case law references, there is no settled repository of judicial interpretation embedded in this document.

• Practical implication for practitioners. Where issues arise in practice about whether a particular interstate surveillance device authorisation qualifies as a "corresponding law" or a "corresponding emergency authorisation" under the Crimes (Surveillance Devices) Act 2010 as interpreted in light of this regulation, those issues would be resolved by courts applying the parent Act and the regulation. Any litigation would therefore appear in the records of decisions under the parent Act or in cases addressing cross‑jurisdictional recognition of surveillance authorisations. The republication text contains no such decisions.

• Need to search external databases. Because the republished instrument contains no litigation history, practitioners seeking authoritative judicial guidance must search case law databases, court records or legislation commentary outside the republished regulation. The republished regulation itself provides no guidance as to how courts have interpreted the corresponding law list or the South Australian exclusion.

In short, the republished regulation contains no litigation history. Any legal disputes over the proper interpretation or application of the regulation will be found in external judicial records, not in this instrument’s text or endnotes.

The regulation is brief, but it contains several points that can catch users if not checked carefully. These "gotchas" arise from the regulation’s structure, its reliance on external texts, and republication technicalities:

• The instrument is declarative, not substantive. The regulation does not create surveillance powers or detailed procedures. Its sole substantive role is to declare which interstate statutes correspond to the Act (s 3(1)). Users who assume this regulation contains procedural rules, safeguards, or offence definitions will be mistaken. Those substantive matters are in the parent Act and the corresponding interstate statutes.

• The South Australian carve‑out is narrowly worded and relies on SA definitions. Section 3(1)(f) excludes from correspondence "to the extent that [the SA Act] provides for a surveillance device (emergency) authority to be granted in relation to a serious drug offence". The precise scope of the exclusion depends on how the South Australian Act defines "surveillance device (emergency) authority" and "serious drug offence" (s 3(2) cross‑reference). Practitioners must read the SA Act’s definitions before assuming whether a particular SA emergency authority is excluded.

• Correspondence does not equal harmonisation. Listing an interstate law as corresponding does not harmonise substantive thresholds, procedural protections, or oversight arrangements across jurisdictions. It only tells the ACT Act which external instruments meet its internal "corresponding" test. Users must therefore read the listed interstate statutes to understand the substantive rights and obligations that may be recognised.

• Editorial amendments have legal effect. The republication notes that editorial amendments made under the Legislation Act 2001, part 11.3 have effect as if made by an Act commencing on the republication date (relying on Legislation Act 2001, ss 115 and 117). That means the text you see in the republication is authoritative; do not rely on earlier drafts without checking whether editorial corrections were applied.

• Penalty unit values can change. The republication records penalty unit values as at the republication date ($160 individual; $810 corporation, citing Legislation Act 2001, s 133). Those figures can change over time. Any calculation of monetary penalties must use the penalty unit value current at the relevant time, not necessarily the republication date.

• Commencement sequencing matters. The legislation history records staggered commencements: s 1 and s 2 commenced on 24 April 2017, the remainder on 25 April 2017; the 2022 amendment had staggered commencements too (see endnote 3). Users seeking to determine which version applied at a particular historical moment must consult the precise commencement details.

• The regulation references but does not contain "corresponding law" or "corresponding emergency authorisation" definitions. The instrument relies on the parent Act’s dictionary. If a practitioner reads the regulation in isolation, they will miss the operative definitions that determine the legal effect of the correspondence. Always read the parent Act alongside this regulation.

• The instrument may be modified or have uncommenced amendments. The republication warns that current modifications or uncommenced provisions may affect the republished law and that symbols indicate uncommenced or modified provisions. Users must check the ACT legislation register for modifications, uncommenced amendments, or later changes.

• Scope limited to the listed instruments. The regulation lists a finite set of interstate statutes. If another jurisdiction later amends its surveillance devices law, or if federal or other state statutes become relevant, those statutes will not be treated as corresponding for ACT purposes unless the regulation is amended or the parent Act’s definition captures them.

• Reliance risk in cross‑border operations. A practitioner or agency relying on what they believe is a corresponding interstate emergency authorisation should verify the instrument appears on the s 3(1) list and, in the SA context, is not within the limited exclusion. Failure to do so could result in reliance on an authorisation that the Act will not treat as corresponding.

Being alert to these points will reduce the risk of misapplication. The repeated theme is that the regulation is an index; substantive effects depend on the parent Act and the listed interstate statutes, and the SA exception requires particular attention.

Compliance with the legal regime as affected by this regulation requires a short checklist approach because the regulation’s effect is limited to recognition of corresponding interstate laws. The practical compliance steps are:

1. Read the parent Act in tandem with this regulation. Because the regulation declares which interstate laws are "corresponding" and because the parent Act supplies the operative definitions and authorisation procedures, anyone dealing with surveillance device authorisations must consult the Crimes (Surveillance Devices) Act 2010 alongside this regulation to determine duties and processes. The regulation (s 3(1)) is not self‑sufficient.

2. Verify whether the interstate instrument you plan to rely on is listed. If you intend to rely on an interstate surveillance device authorisation in the ACT, check s 3(1) to confirm the relevant statute is specified. The listed statutes are: Surveillance Devices Act 2007 (NSW); Surveillance Devices Act 1999 (Vic); Police Powers and Responsibilities Act 2000 (Qld), chapter 13; Police Powers (Surveillance Devices) Act 2006 (Tas); Surveillance Devices Act 2007 (NT); and Surveillance Devices Act 2016 (SA) subject to the SA exclusion (s 3(1)). Do not proceed on the assumption of correspondence without checking s 3(1).

3. In any SA‑originated emergency authorisation case, determine whether the SA authority relates to a "serious drug offence" as defined in the SA Act. The regulation’s s 3(1)(f) exclusion specifically removes from correspondence any SA surveillance device (emergency) authority granted in relation to a serious drug offence. To comply, identify the SA instrument’s subject matter and consult the SA Act’s definitions (s 3(2) cross‑reference) before treating the SA emergency authority as a corresponding emergency authorisation.

4. Confirm commencement and amendment dates relevant to the transaction. The legislation history records when the instrument and its amendment commenced (see endnote 3). If you are assessing actions taken before or after the listed commencement dates, confirm which version of the corresponding law list applied at the relevant time.

5. Check for uncommenced amendments or modifications. The republication materials warn that uncommenced amending laws or current modifications may affect the republished law. Consult the ACT legislation register for current status, including any modifications indicated by an "M" symbol or uncommenced provisions marked "U".

6. Use current penalty unit values when calculating pecuniary penalties. If any offence or civil penalty calculation arising from the parent Act or corresponding laws refers to penalty units, apply the penalty unit value current at the relevant time. The republication records values as at the republication date but instructs users to consult the Legislation Act (s 133) for current figures.

7. Document reliance and legal basis. When an ACT agency or practitioner relies on an interstate authorisation as a corresponding law or corresponding emergency authorisation, record the statutory basis under s 3(1), the text of the interstate authorisation, and any steps taken to verify that the SA exclusion is not engaged. This evidentiary trail will be needed if admissibility, oversight, or judicial review issues arise.

8. Keep the parent Act and the listed interstate Acts under active review. The regulation links the ACT framework to interstate texts whose content and scope may change. To remain compliant, maintain a process for monitoring amendments to the listed interstate statutes and for updating reliance practices if the regulation is itself amended.

9. When in doubt, seek legal confirmation. Because the regulation’s effect depends on the interplay of the parent Act and external statutes, obtain formal legal advice when a cross‑jurisdictional recognition issue is novel or when the SA exclusion potentially applies.

10. Treat the republication as authoritative for the text. The republication notes explain that editorial changes under the Legislation Act 2001, part 11.3 may have been applied and that those edits have legal effect. Use the republication on the ACT legislation register as your definitive text for compliance purposes.

Following these steps will align practical behaviour with the narrow legal effect of the regulation, which is to determine which interstate statutes count as corresponding for the purposes of the Crimes (Surveillance Devices) Act 2010 (s 3(1)).