42Extraterritorial operation of surveillance device warrants

#### 42 Extraterritorial operation of surveillance device warrants (1) If, before the issue of a surveillance device warrant in relation to the investigation of a relevant offence on an application made by or on behalf of a federal law enforcement officer, it becomes apparent to the applicant that there will be a need for surveillance: (a) in a foreign country; or (b) on a vessel or aircraft that is registered under the law of a foreign country and is in or above waters beyond the outer limits of the territorial sea of Australia; to assist in that investigation, the eligible Judge or nominated ART member considering the application for the warrant must not permit the warrant to authorise that surveillance unless the Judge or member is satisfied that the surveillance has been agreed to by an appropriate consenting official of the foreign country. (2) If: (a) application is made under section 33 by an appropriate authorising officer who is a federal law enforcement officer for approval of the giving of an emergency authorisation relating to the investigation of a relevant offence; and (aa) the emergency authorisation was given in response to an application under subsection 28(1); and (b) before the completion of consideration of that section 33 application, it becomes apparent to the applicant that there will be a need for surveillance: (i) in a foreign country; or (ii) on a vessel or aircraft that is registered under the law of a foreign country and is in or above waters beyond the outer limits of the territorial sea of Australia; to assist in the investigation to which the emergency authorisation related; the eligible Judge or nominated ART member to whom the section 33 application was made must not permit any warrant issued on consideration of that section 33 application to authorise that surveillance unless the Judge or member is satisfied that the surveillance has been agreed to by an appropriate consenting official of the foreign country. (3) If: (a) a surveillance device warrant has been issued in relation to the investigation of a relevant offence on an application by or on behalf of a federal law enforcement officer; and (b) after the issue of the warrant it becomes apparent to the law enforcement officer primarily responsible for executing the warrant that there will be a need for surveillance: (i) in a foreign country; or (ii) on a vessel or aircraft that is registered under the law of a foreign country and is in or above waters beyond the outer limits of the territorial sea of Australia; to assist in that investigation; the warrant is taken to permit that surveillance if, and only if, the surveillance has been agreed to by an appropriate consenting official of the foreign country. (4) Despite subsections (1), (2) and (3), if: (a) a vessel that is registered under the law of a foreign country is in waters beyond the outer limits of the territorial sea of Australia but not beyond the outer limits of the contiguous zone of Australia; and (b) the relevant offence in respect of which it becomes apparent that surveillance on the vessel will be required is an offence relating to the customs, fiscal, immigration or sanitary laws of Australia; there is no requirement for the agreement of an appropriate consenting official of the foreign country concerned in relation to that surveillance while the vessel is in such waters. (5) Despite subsections (1), (2) and (3), if: (a) a vessel that is registered under the law of a foreign country is in waters beyond the outer limits of the territorial sea of Australia but not beyond the outer limits of the Australian fishing zone; and (b) the relevant offence in respect of which it becomes apparent that surveillance on the vessel will be required is an offence against section 100, 100A, 100B, 101, 101A or 101AA of the Fisheries Management Act 1991 or section 46A, 46B, 46C, 46D, 49A or 51A of the Torres Strait Fisheries Act 1984; there is no requirement for the agreement of an appropriate consenting official of the foreign country concerned in relation to that surveillance while the vessel is in those waters. (6) As soon as practicable after the commencement of surveillance under the authority of a surveillance device warrant: (a) in a foreign country; or (b) in circumstances where consent to that surveillance is required—on a vessel or aircraft that is registered under the law of a foreign country; the chief officer of the law enforcement agency to which the law enforcement officer who applied for the warrant belongs or is seconded must give the Minister evidence in writing that the surveillance has been agreed to by an appropriate consenting official of the foreign country. (7) An instrument providing evidence of the kind referred to in subsection (6) is not a legislative instrument. (8) If a vessel or aircraft that is registered under the laws of a foreign country is in or above the territorial sea of another foreign country, subsections (1), (2) and (3) have effect as if the reference to an appropriate consenting official of the foreign country were a reference to an appropriate consenting official of each foreign country concerned. (9) For the avoidance of doubt, there is no requirement for the agreement of an appropriate consenting official of the foreign country to the surveillance under the authority of a surveillance device warrant of a vessel or aircraft of a foreign country that is in Australia or in or above waters within the outer limits of the territorial sea of Australia.