The Act’s reach is deliberately wide. Primary addressees are “law enforcement officers”, a term defined in s 3(1) to include members of the Western Australia Police Force, officers of the Corruption and Crime Commission, officers of designated Royal Commissions, members of the staff of the Australian Crime Commission who are also police officers, and prescribed classes of other public officers. These persons enjoy the broadest suite of authorisations, including the ability to obtain warrants on suspicion rather than belief in corruption matters (s 18A) and to rely on emergency authorisations.

Authorised persons—defined to encompass the Commissioner of Police and deputies, the Corruption and Crime Commission itself, designated Commissions and the Chair of the Australian Crime Commission Board—hold the power to issue emergency authorisations (s 21) and to receive reports. Judges and magistrates are central: they issue warrants, rule on extensions (s 19), receive emergency reports, make public-interest publication orders (s 31) and supervise destruction or return of records (ss 21(8)–(9), 30(3)–(4)).

Private individuals and bodies corporate are directly affected by the offence provisions. Any person who installs, uses or maintains a listening or optical device to record a private conversation or activity to which they are not a party commits an offence (ss 5(1)(a), 6(1)(a)). Even parties to a conversation or activity face liability if they record without consent or lawful excuse (ss 5(1)(b), 6(1)(b)). Tracking-device rules turn on consent of the person or the person in control of the object (s 7(1)). Citizens who discover surveillance devices must report them to police (s 37), and anyone who possesses a device knowing it is designed for unlawful use faces prosecution (s 34).

Corporate entities are exposed both as principals (the $50,000 corporate penalty) and through the extended definition of “connected device” in s 3(1), which captures equipment ancillary to surveillance. Media organisations and whistle-blowers must navigate the strict publication prohibitions in s 9. Children and persons with mental impairments receive special protective provisions in Part 5: a person with care or supervision may use a device on their behalf if it serves the child’s or protected person’s best interests and the public interest (ss 26(3), 27(3)).

Finally, the statute affects courts and tribunals indirectly by creating presumptions about evidence obtained under warrant (s 11) and by regulating admissibility of inadvertently obtained material (s 10). It also interacts with the rules of evidence through its amendment of the Evidence Act 1906 (noted in the long title).

Law enforcement officers owe duties of authorisation, proportionality and record-keeping. Before applying for a warrant they must obtain internal authorisation from the Commissioner or equivalent (s 15(3)(a)–(c)). Applications must be supported by affidavit evidence from the officer in charge of the investigation (s 15(3)(f)). Once material is obtained, the Commissioner of Police, Corruption and Crime Commission and Australian Crime Commission must store it securely and destroy it when it is no longer required for a permitted purpose (s 41(1)). Annual reports must be furnished by 31 August each year (s 43).

Judges and magistrates have duties to consider the six factors in s 13(2), to impose conditions where necessary in the public interest (s 13(12)), and to maintain confidentiality of all warrant material (s 23). They may direct cessation of emergency surveillance (s 21(10)) and order records to be returned, released or destroyed.

Private individuals possess rights to consent (or withhold consent) to surveillance of conversations or activities in which they are principal parties. They also enjoy the right to protection from unlawful surveillance and from publication of material obtained unlawfully. Where a principal party consents to recording for protection of lawful interests, that consent triggers further rights to use the material for that protective purpose (ss 5(3)(d), 6(3)(b)(iii), 9(2)(a)(vii)).

All persons have the right to be free from civil or criminal liability for acts done in good faith under the Act (s 42). Suspects and targets of surveillance have limited procedural rights: they are not entitled to notice of warrant applications (which are heard in closed court under s 23(1)), but may later challenge admissibility on the ground that the original application was not made in good faith (s 10(2)).

Public-interest users (including guardians of children or protected persons) have the right to use devices without warrant where consent and public-interest grounds exist, but they must report emergency use to a judge (s 30). The statute creates a right to apply for a judicial order authorising publication where that would further the public interest (s 31).

The Act prescribes a uniform penalty structure for most offences: $5,000 or 12 months’ imprisonment (or both) for individuals and $50,000 for bodies corporate. This applies to the core installation and use offences (ss 5, 6, 7), the publication offence (s 9), possession of devices for unlawful use (s 34), unlawful retrieval (s 35), failure to report discovered devices (s 37), and failure to report public-interest emergency use (s 30(2)). Regulations may create additional offences with penalties up to $5,000 (s 44(2)).

Enforcement powers are robust. Police may, without warrant, stop and search persons, detain and search vehicles, or enter and search premises on reasonable suspicion of a s 34 offence (s 36(1)). Seized devices may be retained until final determination of proceedings (s 36(3)), although owners may apply to a magistrate for return (s 36(4)). Convicting courts may order forfeiture of devices, connected equipment, reports or records (s 40). Forfeited items may be seized by force if necessary (s 40(3)).

Prosecutions must be commenced within two years (s 38). The presumption in s 11—that evidence tendered by law-enforcement officers was properly obtained under warrant unless the contrary is proved—eases the evidentiary burden on the prosecution in civil and criminal proceedings alike. Conversely, evidence obtained inadvertently under a warrant remains admissible in criminal proceedings provided the original application was made in good faith (s 10).

The Surveillance Devices Act 1998 sits within a web of Commonwealth and State legislation. It repealed the Listening Devices Act 1978 and amended the Evidence Act 1906 in relation to transcripts of recordings (long title). It is expressly subject to s 46C of the Criminal Appeals Act 2004 (s 4AA).

Heavy reliance is placed on the Corruption, Crime and Misconduct Act 2003. The definitions of “Corruption and Crime Commission”, “officer of the Corruption and Crime Commission” and “misconduct” are imported (s 3(1) and (4)). Section 18A gives the Commission (and police investigating s 5 offences under that Act) a lower “reasonable suspicion” threshold and additional public-interest weight. Royal Commissions declared to be “designated Commissions” receive modified rules that treat misconduct as equivalent to criminal offences (s 3(3)).

Commonwealth statutes are engaged at several points. The Australian Crime Commission Act 2002 supplies the definition of “member of the staff of the Australian Crime Commission” (s 3(1)). Federal law-enforcement officers may use devices under Commonwealth law (ss 5(2)(c), 6(2)(c), 7(2)(e)). The Act does not bind prescribed Commonwealth agencies (s 4(2)).

The Misuse of Drugs Act 1981 supplies the list of “indictable drug offences” that trigger emergency authorisations (s 3(1)). The Criminal Code definitions of “mental illness” and “mental impairment” govern the protected-person provisions in Part 5 (s 24).

Interaction with general criminal law is explicit: nothing in Part 5 authorises an otherwise unlawful act (s 25). The Act’s publication restrictions operate alongside contempt of court and defamation principles. In civil proceedings the s 11 presumption applies, while courts must still exclude material if the warrant application was not made in good faith.

The most recent substantive amendment was effected by the Directors’ Liability Reform Act 2023, which deleted s 39 (formerly dealing with director liability) and repealed the associated Sch 2 cl 15(16) of the Corruption and Crime Commission Amendment and Repeal Act 2003. This reflects a statewide policy to remove automatic personal liability of directors for corporate regulatory offences unless personal involvement or failure to take reasonable steps is proved. The change aligns the Act with contemporary corporate-governance principles while preserving the $50,000 corporate penalty.

Earlier amendments expanded the statute’s institutional reach. The Corruption and Crime Commission Amendment and Repeal Act 2003 inserted references to the Commission throughout, created the enhanced-powers regime in s 18A, and adjusted confidentiality provisions. The Australian Crime Commission (Western Australia) Act 2004 and associated amendments in 2004 integrated ACC personnel and reporting obligations. The Royal Commissions (Powers) Amendment Act 2006 added ss 4A, 43A and 18A refinements to accommodate Royal Commissions investigating police misconduct.

The Criminal Appeals Amendment (Double Jeopardy) Act 2012 inserted s 4AA to ensure consistency with appeal rights. The cumulative effect of these changes has been to transform the statute from a police-centric listening-device law into a multi-agency framework capable of supporting corruption, organised-crime and royal-commission inquiries. Each amendment was driven by the need to respond to evolving threats (terrorism, drug trafficking, public-sector corruption) while maintaining judicial oversight and privacy safeguards.

Although the provided text does not contain judicial decisions, the structure of the Act anticipates certain flashpoints. The “reasonable grounds” tests in ss 13(1) and 21(1) invite judicial review on Wednesbury unreasonableness or jurisdictional-error grounds. The s 11 presumption has been criticised for reversing the onus on the lawfulness of surveillance; a court must nonetheless exclude evidence if satisfied the original application was not made in good faith (s 10(2)). This creates a practical forensic burden on defendants to unearth irregularities in sealed warrant applications.

Confidentiality provisions (ss 23 and 33) have generated controversy because they prevent public scrutiny of warrant statistics beyond the annual reports. Media organisations have argued that the public-interest publication pathway (s 31) is too narrowly drawn and requires an ex-parte application by law-enforcement officers, limiting its utility for investigative journalism.

The emergency-authorisation regime has been challenged for breadth. Section 21(1)(c) permits use where any offence carrying two or more years’ imprisonment is suspected and the matter is urgent. Critics contend this threshold is lower than the original “indictable drug offence” trigger, risking overuse in run-of-the-mill criminal investigations. The requirement to report “without delay” to a judge has been interpreted strictly; late reports have led to exclusion of evidence in analogous Commonwealth regimes.

Tracking-device warrants that authorise temporary vehicle removal (s 13(7)) raise trespass and conversion concerns, although the statute provides explicit authority. The interaction with Commonwealth telecommunications legislation (notably the Telecommunications (Interception and Access) Act 1979) has produced ongoing controversy about whether listening devices that capture telephone metadata require dual authorisation.

Most practitioners assume that consent by one party to a conversation automatically legitimises recording. That is true only in limited circumstances under s 5(3): the recorder must be a law-enforcement officer acting in duty, acting on instructions during an investigation, or the recording must be reasonably necessary to protect the consenting party’s lawful interests. Casual “one-party consent” recordings by private citizens remain unlawful under s 5(1)(b).

Another trap is the distinction between “use” and “publication”. Even lawfully obtained material cannot be communicated to the media or placed on social platforms without a s 31 order or one of the narrow defences in s 9(2). The “in the course of duty” defence is narrower than many expect; it does not extend to leaking material to journalists.

Emergency authorisations expire implicitly when the threat or urgency dissipates, yet s 21(10) expressly empowers a judge to order immediate cessation. Failure to cease after such an order is not expressly penalised but would almost certainly breach the general offence provisions and expose the officer to disciplinary action.

The destruction obligation in s 41 is absolute once the statutory criteria are met. Agencies have been criticised for retaining “shadow copies” for intelligence purposes; such retention risks contempt or civil action. The annual-report statistics required by s 43 do not break down success rates (e.g. how many warrants yielded admissible evidence), limiting public accountability.

Finally, the “connected device” definition in s 3(1) is extraordinarily broad. Cloud-storage services, remote-access software and even mobile phones used to monitor a tracking app can fall within it, exposing technicians and third-party providers to possession offences under s 34 if they know the ultimate purpose is unlawful.

Compliance begins with classification. Determine whether the proposed activity involves a listening device, optical surveillance device or tracking device (s 3(2) treats multifunctional instruments as belonging to each relevant category). If the target is a private conversation or private activity, a warrant or Part 5 authority is required unless a specific exception applies.

For law-enforcement use, obtain internal authorisation from the Commissioner or equivalent before drafting the affidavit required by s 15(3)(f). The affidavit must address each of the six s 13(2) factors. Where urgency precludes a written application, use the radio/telephone procedure in s 16 but ensure the subsequent written affidavit and form of warrant reach the court the next day (s 17(3)). Keep meticulous records to support the s 11 presumption.

If an emergency arises, the applicant must satisfy an authorised person of the criteria in s 21(1) or (2) and deliver the detailed written report to a judge without delay. Retrieval must be effected under a s 22 warrant unless the original emergency authorisation already covered retrieval.

Organisations should maintain a surveillance-device register that records every warrant, emergency authorisation, public-interest use and destruction decision. Destruction must occur once the material is no longer required for investigation, prosecution or related decisions (s 41(1)(b)). Any record kept for s 43 reporting must be segregated from operational databases.

Private parties contemplating public-interest surveillance should obtain express written consent from a principal party wherever possible and document the reasonable grounds for believing the use is in the public interest. For emergency public-interest use, the post-use report under s 30 must be comprehensive; failure to report is itself an offence.

All entities should implement policies prohibiting possession of devices designed primarily for covert surveillance unless a lawful purpose (e.g. authorised law-enforcement supply) can be demonstrated. Training must emphasise that technical assistance is protected only when provided to a person already authorised under the Act (s 8).

Finally, organisations subject to annual reporting should centralise collation of statistics on applications, grants, refusals and uses so that the Commissioner, Corruption and Crime Commission or Australian Crime Commission can meet the 31 August deadline. Regular legal audit of warrant files against the s 13(8) content requirements will minimise the risk that a court later finds the warrant defective, thereby removing the s 11 presumption and exposing evidence to exclusion.