What it does
The Surveillance Devices Act 1998 establishes a comprehensive regulatory regime for the deployment of listening devices, optical surveillance devices and tracking devices in Western Australia. At its core the statute prohibits the installation, use or maintenance of these devices in circumstances involving private conversations or private activities unless an express exception or authorisation applies (ss 5, 6 and 7). A “private conversation” is defined in s 3(1) as one carried on in circumstances that may reasonably be taken to indicate that any of the parties desires it to be listened to only by themselves, while a “private activity” is similarly defined in respect of visual observation. The prohibitions are backed by criminal penalties of up to $5,000 or 12 months’ imprisonment for individuals and $50,000 for bodies corporate.
The Act creates three principal pathways for lawful use. First, Part 4 provides a judicial warrant system administered by judges (or magistrates in the case of tracking devices). Section 13 permits a court to issue a listening device warrant, optical surveillance device warrant or tracking device warrant where it is satisfied there are reasonable grounds to believe an offence has been, is being or is likely to be committed and that the device would assist the investigation. The court must weigh six mandatory considerations listed in s 13(2), including the nature of the offence, the extent of privacy intrusion, the availability of less intrusive methods, the intelligence and evidentiary value of the information, any prior warrants and the public interest. Warrants may authorise entry by force, connection to electricity supplies, temporary removal of vehicles and the use of multiple devices (s 13(11)). Strict formal requirements govern the content of every warrant (s 13(8)).
Second, emergency authorisations under Division 2 of Part 4 allow immediate deployment without prior judicial approval where an authorised person (Commissioner of Police, Deputy or Assistant Commissioner, or equivalent office holders in the Corruption and Crime Commission or Australian Crime Commission) is satisfied that an imminent threat of serious violence or substantial property damage exists, or that an indictable drug offence or offence punishable by two or more years’ imprisonment is involved and the matter is urgent (s 21(1)). Retrieval warrants under s 22 are available post-emergency. All emergency actions must be reported to a judge “without delay” with detailed particulars (s 21(4)–(5)).