38Use of surveillance devices without warrant for listening to or recording words in limited circumstances

#### 38 Use of surveillance devices without warrant for listening to or recording words in limited circumstances (1) A federal law enforcement officer acting in the course of his or her duties may, without warrant, use a surveillance device for any purpose involving listening to, or recording, words spoken by a person: (a) if the officer belongs or is seconded to the Australian Federal Police—that is within the functions of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979; or (aa) if the officer belongs or is seconded to the National Anti‑Corruption Commission—that is within the functions of the National Anti‑Corruption Commissioner set out in section 17 of the National Anti‑Corruption Commission Act 2022; or (b) if the officer belongs or is seconded to the Australian Crime Commission—that is within the functions of the Commission set out in section 7A of the Australian Crime Commission Act 2002; if the use of that device for that listening or recording purpose is confined to circumstances where: (c) the law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or (d) the law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words by paragraph (c) or by subsection (4). (2) A State or Territory law enforcement officer acting in the course of his or her duties and in the investigation of a relevant offence (other than a State offence that has a federal aspect) may, without warrant, use a surveillance device for any purpose involving listening to, or recording, words spoken by a person if the use of that device for that listening or recording purpose is confined to circumstances where: (a) the State or Territory law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or (b) the State or Territory law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words: (i) by paragraph (a); or (ii) so far as subsection (5) applies in relation to that investigation—by that subsection. (3) A State or Territory law enforcement officer acting in the course of his or her duties and in relation to the location and safe recovery of a child to whom a recovery order relates may, without warrant, use a surveillance device for any purpose involving listening to, or recording, words spoken by a person if the use of that device for that listening or recording purpose is confined to circumstances where: (a) the State or Territory law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or (b) the State or Territory law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words: (i) by paragraph (a); or (ii) so far as subsection (5) applies in relation to the location and safe recovery of the child—by that subsection. (3A) If a Part 5.3 supervisory order is in force in relation to a person, a State or Territory law enforcement officer acting in the course of his or her duties may, without warrant, use a surveillance device to obtain information relating to the person for either of the following purposes: (a) achieving a Part 5.3 object; (b) determining whether the Part 5.3 supervisory order has been, or is being, complied with; if the use involves listening to, or recording, words spoken by a person, and the use is confined to circumstances where: (e) the State or Territory law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or (f) the State or Territory law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words: (i) by paragraph (e); or (ii) so far as subsection (6) applies in relation to the Part 5.3 supervisory order—by that subsection. (3B) If a community safety supervision order is in force in relation to a person, a State or Territory law enforcement officer acting in the course of the officer’s duties may, without warrant, use a surveillance device to obtain information relating to the person for either of the following purposes: (a) achieving a Part 9.10 object; (b) determining whether the community safety supervision order has been, or is being, complied with; if the use involves listening to, or recording, words spoken by a person, and the use is confined to circumstances where: (c) the State or Territory law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or (d) the State or Territory law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words: (i) by paragraph (c); or (ii) so far as subsection (7) applies in relation to the community safety supervision order—by that subsection. (4) A person (other than a federal law enforcement officer) who is assisting a federal law enforcement officer acting in the course of his or her duties may, without warrant, use a surveillance device for any purpose: (a) that involves listening to, or recording, words spoken by a person; and (b) that is referred to in subsection (1); if the first‑mentioned person is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard. (5) A person (other than a State or Territory law enforcement officer) who is assisting a State or Territory law enforcement officer who is acting in the course of his or her duties in relation to: (a) the investigation of a relevant offence (other than a State offence that has a federal aspect); or (b) the location and safe recovery of a child to whom a recovery order relates; may, without warrant, use a surveillance device for any purpose that involves listening to, or recording, words spoken by a person if the first‑mentioned person is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard. (6) If: (a) a Part 5.3 supervisory order is in force in relation to a person; and (b) a person (other than a State or Territory law enforcement officer) is assisting a State or Territory law enforcement officer who is acting in the course of his or her duties in relation to either of the following purposes: (i) achieving a Part 5.3 object; (ii) determining whether the Part 5.3 supervisory order has been, or is being, complied with; the person assisting may, without warrant, use a surveillance device to obtain information relating to the person mentioned in paragraph (a) if: (c) the use involves listening to, or recording, words spoken by a person; and (d) the person assisting is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard. (7) If: (a) a community safety supervision order is in force in relation to a person; and (b) a person (other than a State or Territory law enforcement officer) is assisting a State or Territory law enforcement officer who is acting in the course of the officer’s duties in relation to either of the following purposes: (i) achieving a Part 9.10 object; (ii) determining whether the community safety supervision order has been, or is being, complied with; the person assisting may, without warrant, use a surveillance device to obtain information relating to the person mentioned in paragraph (a) if: (c) the use involves listening to, or recording, words spoken by a person; and (d) the person assisting is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard.