Surveillance Devices Act 2007

The Act relies on several defined concepts that structure its operation.

Surveillance device (section 4) means a data surveillance device, listening device, optical surveillance device, tracking device, any combination of those, or a device prescribed by regulation. Each type has its own definition. A listening device is capable of monitoring or recording a conversation but excludes hearing aids. An optical surveillance device monitors or records visual activity but excludes spectacles. A tracking device is an electronic device that determines geographical location of a person or thing. A data surveillance device monitors or records input to or output from a computer but does not include an optical surveillance device.

Private conversation and private activity are defined by reference to the circumstances in which they occur. A private conversation is one carried on in circumstances that may reasonably be taken to indicate the parties desire it to be listened to only by themselves, but does not include a conversation in circumstances where the parties ought reasonably to expect it may be overheard. A private activity is defined analogously for observation. These definitions are critical to the offences in Part 2 and Part 3.

Warrant and emergency authorisation are distinct concepts. A warrant is issued by a Judge under Part 4. It must specify the applicant, the alleged offence or improper conduct, the kind of device authorised, the place or thing, the person (if known), the period (up to 90 days), the officer primarily responsible, any conditions, and the time for reporting (section 22). A retrieval warrant is for retrieving a lawfully installed device. An emergency authorisation is given orally or in writing by a senior officer under section 35 without prior judicial approval, but must be followed by an application for approval to a Supreme Court Judge within two business days (section 37).

Protected information is defined in section 51. Local protected information includes information obtained from a surveillance device under a warrant or emergency authorisation, information relating to applications or the existence of warrants or authorisations, and information from body-worn video used in accordance with section 14A. Corresponding protected information relates to warrants and authorisations under corresponding laws of other jurisdictions. The Act imposes strict controls on how protected information may be used, communicated or published (sections 52-54).

Law enforcement officer and ICAC officer are defined separately. Law enforcement officers are those from the Territory Police Force (including seconded officers) or the Australian Crime Commission. ICAC officers are the Independent Commissioner Against Corruption and members of ICAC staff. Senior officer has different meanings for each agency: for Police it includes the Commissioner, Deputy Commissioner or Assistant Commissioner; for the Australian Crime Commission it is the Chief Executive Officer or an examiner; for the ICAC it is the ICAC or a delegate.

Chief officer means the Commissioner of Police for the Territory Police Force or the Chief Executive Officer of the Australian Crime Commission. Corresponding law means a law of another jurisdiction declared by regulation to be a corresponding law. Corresponding warrant and corresponding emergency authorisation are warrants or authorisations in the nature of those under this Act but issued under a corresponding law for a relevant offence.

Relevant offence means an offence against a law of the Territory punishable by imprisonment for three years or more or life, or an offence prescribed by regulation. This threshold determines when a surveillance device warrant may be sought. Relevant proceeding is defined broadly in section 4 to include prosecutions, bail applications, committal proceedings, confiscation proceedings, child protection proceedings, disciplinary proceedings, coronial inquests, and certain mutual assistance and extradition proceedings.

Body-worn video is defined as equipment worn on the person of a police officer capable of recording visual images or sound or both. Its use is overt and may be inadvertent (section 14A).

The Act directly affects several categories of persons and entities.

Law enforcement agencies are principally affected. The Territory Police Force and the Australian Crime Commission are the two law enforcement agencies defined in section 4. Their officers may apply for warrants and emergency authorisations, execute those warrants (including by force), use body-worn video, communicate protected information for investigative and prosecutorial purposes, and are subject to strict record-keeping and reporting obligations. The chief officer of each agency must ensure compliance with the Act, maintain registers, and provide annual reports to the Minister.

ICAC officers were added by amendment in 2018. They may apply for surveillance device warrants in relation to investigations into improper conduct under the ICAC Act. They must comply with the same warrant application, execution, reporting and record-keeping obligations as law enforcement officers, but with modifications (e.g. the grounds for issuing a warrant for an ICAC officer focus on the nature and gravity of the alleged improper conduct rather than an offence). The Inspector (defined under the ICAC Act) conducts inspections of ICAC records to determine compliance.

Police officers using body-worn video are specifically regulated by section 14A. The use must be overt and the officer must be in uniform or have provided evidence of being a police officer to each party to the private activity or conversation. Inadvertent or unexpected use is deemed in accordance with the section. This provision was inserted by the Justice Legislation Amendment (Body-worn Video and Domestic Violence Evidence) Act 2017.

Authorised persons appointed under section 74 by the Commissioner of Police may exercise the authority conferred by a warrant to use a surveillance device, but only if they are eligible employees (Aboriginal Community Police officers, Police auxiliaries, or public sector employees assigned to the Police Civil Employment Unit) and have the necessary qualifications or experience.

Persons under surveillance are affected in that their privacy is intruded upon under warrant or emergency authorisation, but they are provided protections: the Act requires judicial oversight, limits the duration and scope of warrants, and restricts the use and disclosure of information obtained. Any person whose private conversation or activity is recorded without consent or lawful authority has standing to raise the matter in legal proceedings, and the court retains discretion to admit or exclude evidence (section 10).

General public are affected by the offences in Part 2 and Part 3. Any person (not just law enforcement) who installs, uses or maintains a listening device, optical surveillance device or tracking device without consent or lawful authority commits an offence. Similarly, communicating or publishing a record or report of a private conversation or activity obtained from such devices is an offence unless an exception applies. Possession of a surveillance device knowing it is intended for unlawful use is an offence (section 66). Damaging or interfering with a lawfully installed surveillance device is also an offence (section 67).

Executive officers of bodies corporate are affected by section 72, which imposes personal criminal liability if the body corporate contravenes a declared provision and the executive officer was in a position to influence the conduct and did not take reasonable steps to prevent the contravention. The declared provisions include sections 11(1), 12(1), 15(1), 45(1), 52(1) and (2), and any regulation prescribed. The defence for the executive officer includes showing they were not in a position to influence conduct, took reasonable steps, or did not know and could not reasonably have known.

The Ombudsman and the Inspector have inspection and reporting roles under Division 3 of Part 8. The Ombudsman inspects law enforcement agency records to determine compliance; the Inspector does the same for the ICAC. Both must report at six-monthly intervals to the Minister, who tables the reports in the Legislative Assembly.

The Minister receives annual reports from chief officers and the ICAC, as well as reports from the Ombudsman and Inspector. The Minister must table these reports within seven sitting days.

The Act imposes numerous duties and confers corresponding rights.

Duty to obtain judicial authorisation: A law enforcement officer or ICAC officer must not use a listening, optical, tracking or data surveillance device unless authorised by a warrant, emergency authorisation, corresponding warrant, corresponding emergency authorisation, or under a specific exception (e.g. body-worn video, consent of a party for safety purposes, or the public interest emergency provisions in Part 6). Sections 11(2), 12(2), 13(2), 14(2) and 14A list the exceptions.

Duty when applying for a warrant: The applicant must reasonably believe an offence (or improper conduct for ICAC) has been, is being, is about to be or is likely to be committed, and that the use of a surveillance device is necessary for the investigation (section 19(1) and (1A)). The application must be supported by an affidavit stating the grounds, but can be made before an affidavit is prepared if immediate use is necessary and it is impracticable to prepare one. If so, the applicant must give as much information as the Judge considers reasonably practicable and must send a duly made affidavit not later than the next day (section 19(5)). For remote applications, the applicant must fax or email a copy of any affidavit that has been prepared (section 20(3)).

Duty when executing a warrant: The officer primarily responsible for executing the warrant must comply with any conditions stated in the warrant. The warrant authorises entry by force if necessary, installation, maintenance, retrieval, use of enhancement equipment, connection to electricity and phone systems, and concealment of the warrant execution (section 23). However, nothing in the Act authorises doing anything for which a warrant would be required under the Telecommunications (Interception and Access) Act 1979 (Cth) (section 23(9)).

Duty to discontinue use: Once the chief officer or the ICAC is satisfied that use of a surveillance device under a warrant is no longer necessary, they must take steps to discontinue use as soon as practicable and ensure an application for revocation is made (sections 26 and 26A). The officer who believes use is no longer necessary must inform the chief officer or the ICAC as soon as practicable.

Duty to report to the Judge: Within the time stated in the warrant, the officer must make a report to the issuing Judge stating whether the warrant was executed, details of the device, period of use, names of persons whose conversations or activities were monitored, places, benefit to the investigation, compliance with conditions, and any extensions or variations (section 58). The Judge may then order how information obtained is to be dealt with.

Duty to keep documents and registers: The chief officer of a law enforcement agency must keep each warrant, revocation notice, emergency authorisation, applications, reports, and certificates (section 60). The ICAC has similar obligations for its warrants and related documents (section 60(2)). A register of warrants and emergency authorisations must be kept stating date of issue, name of the Judge, the officer primarily responsible, the offence or investigation, the period, and any extensions or variations (section 62).

Duty to secure and destroy records: The chief officer and the ICAC must ensure records or reports obtained from surveillance device use are kept in a secure place not accessible to unauthorised persons, and are destroyed if not likely to be required for a permitted purpose (section 55(1) and (1A)). This does not apply to records received in evidence.

Duty to report annually: The chief officer of each law enforcement agency must provide an annual report to the Minister within three months after the financial year end, containing statistics on applications, warrants, emergency authorisations, remote applications, refusals, extensions, arrests, prosecutions, and any other information the Minister considers appropriate (section 59). The ICAC must provide a similar report (section 59(1A)). The Minister must table the report within seven sitting days.

Rights of persons under surveillance: A person whose property is acquired under the Act is entitled to just terms compensation (section 75). A person may object to the disclosure of information in a proceeding on the ground it could reveal surveillance device technology or methods (section 56). The presiding officer may order non-disclosure if satisfied the ground is made out, taking into account fair trial and public interest. Publication of such information may be prohibited or restricted.

Right to use body-worn video: Police officers may use body-worn video if acting in the execution of duty, the use is overt, and they are in uniform or have provided evidence that they are police officers to each party (section 14A(1)). Inadvertent or unexpected use is also deemed in accordance with the section (section 14A(3)).

Right to use listening devices in public interest: Section 43 allows any person to use a listening device to listen to, monitor or record a private conversation if at the time there are reasonable grounds to believe circumstances are so serious and urgent that use is in the public interest. A similar right exists for optical surveillance devices under section 44. However, these provisions do not apply if any act done during installation or use is unlawful under any other law (section 42). A written report must be given to a Supreme Court Judge within two business days (section 45), failing which an offence is committed.

Protection from liability: A police officer, ICAC officer, authorised person, or person assisting them is not civilly or criminally liable for an act done or omitted in good faith in the exercise or purported exercise of a power under the Act (section 76). This protection does not affect the liability of the Territory, and is subject to Part VIIA of the Police Administration Act 1978 regarding civil liability of police officers.

Evidentiary certificates: A senior officer may issue a written certificate stating facts relevant to anything done in executing a warrant or under an emergency authorisation, or relating to communication, use, recording or custody of information (section 71). Such a certificate is admissible in evidence in any proceeding, but cannot relate to an emergency authorisation unless the use of powers has been approved under section 39 or a corresponding provision.

The Act creates a comprehensive penalty regime with escalating consequences.

Offences relating to installation and use (Part 2): Unauthorised installation, use or maintenance of a listening device (section 11), optical surveillance device (section 12), tracking device (section 13), or data surveillance device (section 14) each carry a maximum penalty of 250 penalty units or imprisonment for 2 years. For data surveillance devices, the offence is limited to law enforcement officers and ICAC officers.

Offences relating to communication and publication (Part 3): Communicating or publishing a record or report of a private conversation or activity obtained from a listening, optical or tracking device carries 250 penalty units or 2 years imprisonment (section 15(1)). A law enforcement officer or ICAC officer who communicates information obtained from a data surveillance device commits an offence carrying 100 penalty units or 1 year imprisonment (section 16(1)). Both offences have exceptions for consent, lawful interests, legal proceedings, protected information, duties, and Commonwealth security.

Offence of failing to report emergency public interest use: A person who uses a listening or optical surveillance device under sections 43 or 44 and does not give a written report to a Supreme Court Judge within 2 business days commits an offence carrying 100 penalty units or 1 year imprisonment (section 45(1)).

Offences relating to protected information (Part 8 Division 1): Unauthorised use, communication or publication of protected information carries 250 penalty units or 2 years imprisonment (section 52(1)). If the use, communication or publication endangers health or safety or prejudices an investigation, the maximum penalty rises to 2,000 penalty units or 10 years imprisonment (section 52(2)). There are exceptions for information disclosed in open court, information in the public domain, preventing serious violence or property damage, communication to ASIO, and mutual assistance.

Possession for unlawful use (section 66): Possessing a surveillance device knowing it is intended for use in contravention of this Act or a law of the Commonwealth or another jurisdiction carries 250 penalty units or 2 years imprisonment.

Damaging a surveillance device (section 67): Damaging, interfering with, removing or retrieving a surveillance device lawfully installed by a law enforcement or ICAC officer carries 250 penalty units or 2 years imprisonment, unless authorised under this Act or another law.

Executive officer liability (section 72): An executive officer of a body corporate commits an offence if the body corporate contravenes a declared provision (ss 11(1), 12(1), 15(1), 45(1), 52(1) or (2), or a prescribed regulation). The maximum penalty is the same as for the declared offence. The offence is one of absolute liability, but the executive officer has a defence if they were not in a position to influence the conduct, took reasonable steps to prevent the contravention, or did not know and could not reasonably have known the contravention would happen. In deciding whether reasonable steps were taken, the court must consider actions directed towards ensuring regular professional assessments, implementing recommendations, and ensuring employees had reasonable knowledge of compliance requirements.

Search and seizure powers (Part 9 Division 2): A police officer who reasonably believes a person possesses a surveillance device intended for unlawful use may stop and search the person, stop and search a vehicle, or enter and search a place (section 68(1)). If the officer reasonably believes a surveillance device has been, is being, is about to be or is likely to be used in connection with an offence, they may seize and remove the device and any connection device (section 68(2)). Force may be used. A seized device may be retained until final decision on a proceeding unless a Local Court Judge orders its return (section 69).

Forfeiture orders (section 73): If a person is found guilty of an offence against the Act, the court may order forfeiture to the Territory of any surveillance device or connection device used in the offence, and any record of information obtained from the device relating to the offence. Before making a forfeiture order for a device, the court may give notice and hear persons considered appropriate. The forfeiture order is in addition to the penalty imposed. On making the order, a law enforcement officer may seize the device using reasonable force.

Evidentiary certificates (section 71): A senior officer or a person assisting may issue a written certificate stating any facts considered relevant in relation to execution of a warrant or under an emergency authorisation, or relating to communication, use, recording or custody of information obtained. The certificate is admissible in evidence in any proceeding, but cannot relate to an emergency authorisation unless the use of powers has been approved under section 39 or a corresponding provision.

Admissibility of inadvertently obtained information (section 70): If a private conversation or activity has inadvertently come to the knowledge of a law enforcement officer, ICAC officer or authorised person as a direct or indirect result of using a surveillance device under a warrant or emergency authorisation, that person may give evidence of it in a criminal proceeding, even if the warrant or authorisation was not for that purpose. However, the evidence is inadmissible if the court is satisfied the application for the warrant or authorisation was not made in good faith.

Enforcement through inspections: The Ombudsman must inspect law enforcement agency records from time to time to determine compliance (section 63). The Inspector must inspect ICAC records for the same purpose (section 64A). Both have full and free access to all relevant records and may require information. Six-monthly written reports must be made to the Minister and tabled in the Legislative Assembly.

The Act contains several provisions that address its relationship with other legal regimes.

Relationship with the Commonwealth: Section 9 provides that the Act does not apply to anything done in the course of duty by certain Commonwealth agents: members of the Australian Competition and Consumer Commission, ASIO personnel, Australian Federal Police (except in their capacity as staff of the Australian Crime Commission), customs officers, and migration officials. This ensures that those bodies operate under their own legislative frameworks without interference from the NT Act.

Relation to the Telecommunications (Interception and Access) Act 1979 (Cth): Section 23(9) states that nothing in the Act authorises the doing of anything for which a warrant would be required under the Commonwealth interception regime. This preserves the primacy of federal telecommunications interception law.

Application of the Criminal Code: Section 7 applies Part IIAA of the Criminal Code (NT) to offences against the Act. That Part states general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines or elaborates on certain concepts commonly used in the creation of offences. This means that the standard fault elements and defences in the Criminal Code apply to all offences under the Act unless otherwise provided.

Act binds the Crown: Section 8 provides that the Act binds the Crown in right of the Territory and, to the extent of the Legislative Assembly's legislative power, the Crown in all its other capacities. This means the Act applies to government agencies and instrumentalities.

Interaction with the ICAC Act: The ICAC Act is referenced throughout. ICAC officers are defined by reference to that Act. The concept of improper conduct is taken from section 9 of the ICAC Act. Investigations under the ICAC Act trigger the ability to apply for warrants. The Inspector (defined under the ICAC Act) inspects ICAC records under sections 64A and 64B. Protected communications to the ICAC are a permitted use of local protected information under section 53(1)(i). The ICAC's annual report must include information on investigations concluded and findings of improper, corrupt or anti-democratic conduct.

Interaction with the Police Administration Act: Section 76(4) provides that the protection from liability under the Act is subject to Part VIIA of the Police Administration Act 1978 to the extent it relates to civil liability of police officers. This means the general protection from civil and criminal liability for acts done in good faith under this Act may be modified by provisions in the Police Administration Act dealing with police liability.

Relationship with privacy laws: Section 53(1)(h) and 54(1)(h) allow local protected information and corresponding protected information to be used, communicated or published for investigations of complaints under the Information Act 2002 or a corresponding law about privacy of personal information. This links the surveillance device framework to the Territory's privacy regime.

Corresponding laws: Part 7 recognises corresponding warrants and emergency authorisations from other jurisdictions that have been declared by regulation to be corresponding laws. This allows cross-border law enforcement cooperation. Corresponding warrants may be executed in the Territory as if they were warrants issued under this Act. Corresponding emergency authorisations have effect in the Territory unless a Supreme Court Judge orders cessation under a provision corresponding to section 39(4).

Limitation on court discretion: Section 10(1) provides that the Act is not intended to limit a court's discretion to admit or exclude evidence in any proceeding or to stay a criminal proceeding in the interests of justice. This preserves the inherent powers of courts to ensure fair trials.

Acquisition on just terms: Section 75 provides that if property would be acquired from a person other than on just terms because of the operation of this Act, the person is entitled to compensation from the Territory necessary to ensure the acquisition is on just terms. A court of competent jurisdiction may decide the amount or make orders to ensure just terms. This reflects the constitutional guarantee in section 50(1) of the Northern Territory (Self-Government) Act 1978 (Cth).

Mutual Assistance: Section 52(3)(e) permits the use or communication of protected information to a foreign country under the Mutual Assistance in Criminal Matters Act 1987 (Cth). The definition of relevant proceeding in section 4 includes proceedings under section 13 of that Act and extradition proceedings.

Interaction with other NT laws: The Act does not limit the operation of other NT laws except as expressly provided. For example, the public interest emergency provisions in Part 6 do not apply if an act done in installing or using a device is unlawful under any other law (section 42). This means compliance with all other NT laws is required even when using those provisions.

The original Act was the Surveillance Devices Act 2007 (Act No. 19 of 2007), which received assent on 18 September 2007 and commenced on 1 January 2008. It repealed and replaced the Surveillance Devices Act 2000. Key amendments since then include:

Oaths, Affidavits and Declarations (Consequential Amendments) Act 2010 (Act No. 40 of 2010): Made consequential amendments to sections 4, 19, 20, 21, 27, 28, 29 and 79. These amendments adjusted references and formal requirements relating to affidavits and declarations, effective from 1 March 2011.

Statute Law Revision Act 2014 (Act No. 38 of 2014): Amended sections 23 and 29 and made other formal corrections. Commenced on 13 November 2014.

Statute Law Amendment (Directors' Liability) Act 2015 (Act No. 26 of 2015): Substituted section 72 with a new provision creating criminal liability for executive officers of bodies corporate for declared offences. Also inserted Part 11 Division 2 heading and section 84 dealing with transitional matters for the new section. Commenced on 14 October 2015. Section 84 provides that the new section 72 applies only if all conduct constituting the declared offence and all conduct of the executive officer occurred after commencement; the old section 72 continues to apply to offences before commencement and to offences after commencement where the new section does not apply.

Local Court (Related Amendments) Act 2016 (Act No. 8 of 2016): Amended sections 3, 18, 19, 21, 22, 24, 25, 26, 29, 30, 32, 37-40, 45, 46, 47, 48, 50, 58, 60, 62, 69 and others. These amendments replaced references to "magistrate" with "Local Court Judge" and made associated changes following the establishment of the Local Court. Commenced on 1 May 2016.

Statute Law Revision Act 2017 (Act No. 4 of 2017): Amended section 4 and substituted section 7 to update references to the Criminal Code. Commenced on 12 April 2017.

Justice Legislation Amendment (Body-worn Video and Domestic Violence Evidence) Act 2017 (Act No. 6 of 2017): Inserted section 14A dealing with police use of body-worn video, and made consequential amendments to sections 11, 12, 15, 16, 51, 53 and 54. Section 14A and related amendments commenced on 2 August 2017 for the body-worn video parts, with the remainder commencing on 26 April 2017.

Independent Commissioner Against Corruption (Consequential and Related Amendments) Act 2018 (Act No. 3 of 2018): Made extensive amendments to virtually every Part of the Act to give ICAC officers the ability to apply for warrants and emergency authorisations, and to provide for inspection of ICAC records by the Inspector. Key changes included: amending the definitions in section 4 to include ICAC officer, ICAC Act, Inspector, improper conduct, and related terms; inserting section 26A (discontinuing use under warrant for ICAC); inserting sections 64A and 64B (Inspector inspection and reporting); and amending sections throughout to refer to ICAC officers alongside law enforcement officers. Commenced on 30 November 2018.

General amendments of a formal nature were made by the Interpretation Legislation Amendment Act 2018 (Act No. 22 of 2018) to sections 1, 4, 53, 54, 74, 76, 78 and 79.

The transitional provisions in Part 11 ensure that applications, warrants and urgent authorisations under the repealed 2000 Act continue under the new Act. Section 84 (inserted by the 2015 amendment) expired but was saved for ongoing effect.

The Act does not name any cases. The source text contains no references to litigation, case law, or judicial decisions interpreting the Act. It is therefore not possible to provide any specific litigation history based solely on the source. However, several provisions create potential grounds for litigation that courts may have considered.

The admissibility of inadvertently obtained information under section 70 depends on whether the application for the warrant or authorisation was made in good faith. This has been a contested issue in surveillance cases in other jurisdictions and could arise in the Northern Territory. The evidentiary certificate provisions in section 71 allow for the admission of certificates in proceedings, potentially displacing the need for oral evidence from officers, which may be challenged on the basis of the certificate's scope or the circumstances of its issue.

The protection from liability under section 76 requires the act or omission to be done in good faith. The meaning of good faith in the context of surveillance operations could be litigated. Section 10 preserves a court's discretion to exclude evidence or stay proceedings, and that discretion may be exercised if a warrant was improperly obtained, even if the technical requirements of the Act were met.

The executive officer liability provision in section 72, with its absolute liability element and defences, could generate litigation over whether an executive officer took reasonable steps to prevent a contravention and what knowledge they had or should have had. The transitional provisions in section 84 could be relevant in determining which version of section 72 applies.

The definition of private conversation and private activity in section 4, relying on "circumstances that may reasonably be taken to indicate the parties desire it to be listened to only by themselves" and the exclusion for circumstances where the parties ought reasonably to expect the conversation may be overheard, could be the subject of judicial interpretation in prosecutions under Part 2 and Part 3.

The cross-border investigation provision in section 6 provides that an investigation is taken to be conducted in the Territory if a law enforcement officer participates in it, even if it is also conducted elsewhere. This might be relevant if the validity of a warrant under this Act is challenged on the basis that the investigation is primarily occurring in another jurisdiction.

Similarly, the provisions relating to corresponding warrants and emergency authorisations (Part 7) may be litigated in relation to whether a particular foreign warrant or authorisation qualifies as a corresponding warrant under the regulations, and whether its execution in the Territory complied with the terms of the warrant and the Act.

The reporting obligations under sections 58 and 59, and the inspection powers under sections 63 and 64A, may lead to judicial review if an agency or officer fails to comply.

Without specific case law cited in the source, it is impossible to describe the actual litigation history. The above identifies areas where litigation could have occurred based on the statutory text.

Several provisions contain traps for the unwary that practitioners should consider carefully.

Definition of private conversation includes expectations: A conversation is only private if the circumstances reasonably indicate the parties desire it to be listened to only by themselves. If the parties ought reasonably to expect they may be overheard, it is not a private conversation. This objective test means that recording in public places or where conversations are audible to others may not attract the offence. However, the burden of proving the conversation was private rests on the prosecution, and the exceptions in section 11(2) (consent, warrant, etc.) are defences.

Emergency authorisation for serious drugs offence cannot extend outside the Territory: Section 36(2) prohibits an emergency authorisation (serious drugs offence) from authorising the installation or use of a surveillance device outside the Northern Territory. This is a limitation not present for serious violence emergency authorisations. Officers handling drug investigations with cross-border elements must apply for a warrant instead.

Body-worn video must be overt but inadvertent use is still compliant: Section 14A requires the use to be overt, and the officer must be in uniform or have provided evidence of being a police officer to each party. However, subsection (3) provides that inadvertent or unexpected use is also taken to be in accordance with the section. This creates a safe harbour for accidental recording, but the officer must still have been acting in the execution of duty. The overtness requirement is satisfied once the officer informs the person who is to be recorded. This could be problematic if multiple parties are present and not all are informed.

Public interest emergency use under Part 6 cannot involve any unlawful act: Section 42 prohibits the use of sections 43 and 44 if, in the course of installing or using a listening or optical surveillance device, an act is done that is unlawful under any law other than this Act. This means even if the use is in the public interest, if the installation involves trespass, damage to property, or breach of another statute, the protection of Part 6 does not apply. The person using the device would then be liable under Part 2 offences.

Report to Judge required within 2 business days for public interest use: Section 45 makes it an offence to use a listening or optical surveillance device under sections 43 or 44 without giving a written report to a Supreme Court Judge within 2 business days after starting to use the device. The report must include particulars of the device, the period of use, names of persons, circumstances, and general use of evidence. The Judge may direct the record be brought before the court and may order its return, making available to any person, or destruction. Failure to report promptly risks criminal liability and the loss of any evidence obtained.

Protected information includes body-worn video: Section 51(2)(c) expressly includes information obtained from the use of body-worn video in accordance with section 14A within the definition of local protected information. This means that body-worn video footage is subject to the same restrictions on use, communication and publication as other surveillance device information, unless it is permitted under section 53(4) (law enforcement functions, education and training, or prescribed purposes). Officers should not assume that body-worn video can be shared freely.

Evidentiary certificates for emergency authorisations require post-hoc approval: Section 71(4) provides that a certificate relating to anything done under an emergency authorisation is not admissible in evidence unless the use of powers under the authorisation has been approved under section 39 or a corresponding provision. This means that if a senior officer issues an evidentiary certificate for actions taken under an emergency authorisation before the Supreme Court Judge has approved the use, the certificate cannot be used in proceedings. This could create evidentiary gaps if approval is not obtained or is delayed.

Executive officer liability is absolute liability: Section 72(2) provides that an executive officer's offence for a body corporate contravention is one of absolute liability. This means there is no requirement to prove fault (mens rea) on the part of the executive officer. The defences in section 72(3) (not in a position to influence, took reasonable steps, did not know and could not reasonably have known) place an evidential burden on the defendant. Corporate officers must ensure they have proactive compliance systems in place, as the court will consider whether they arranged regular professional assessments and implemented recommendations.

Remote application requires fax or email of affidavit if available: Section 20(3) and 28(3) require that if an affidavit has been prepared and the applicant has access to a fax or email facility when making a remote application, the applicant must fax or email a copy of the affidavit with the application. Failure to do so may affect the validity of the application. The provisions are mandatory ("must") and not directory.

Discontinuing use is mandatory: Sections 26 and 26A impose a mandatory duty on the chief officer or the ICAC to take steps to discontinue use of a surveillance device under a warrant as soon as practicable once satisfied the use is no longer necessary. This is not discretionary. The officer who believes use is no longer necessary must inform the chief officer or ICAC as soon as practicable. There is no provision for continuing use simply because the warrant has not yet expired.

Register must include kind of improper conduct for ICAC warrants: Section 62(5)(f) requires the ICAC's register of warrants to include the kind of improper conduct for which the warrant was issued, including the specific provisions of Part 1 Division 2 of the ICAC Act relied on. This is a more exacting requirement than for law enforcement warrants, which only need to state the offence. The register is likely subject to inspection by the Inspector.

No application for warrant may be heard in open court: Sections 19(7), 27(6) and 25(3) (for revocation) all require that applications for warrants and their revocation not be heard in open court. This confidentiality extends to materials under Part 6 (section 48). Practitioners must ensure that any hearing or filing respects this prohibition.

Time for sending affidavit after oral application: If an application is made before an affidavit is prepared (sections 19(4) and 27(4)), the applicant must send a duly made affidavit not later than the following day, regardless of whether a warrant is issued. Missing this deadline could affect the validity of the warrant and the admissibility of evidence obtained.

Acquisition on just terms only triggered if not otherwise just: Section 75 provides a right to compensation only if property would be acquired from a person other than on just terms because of the operation of the Act. If the acquisition is already on just terms (e.g. under another law), no additional compensation is payable. The party claiming compensation must establish that the acquisition is not on just terms.

Compliance with the Act requires different steps depending on the role of the person or organisation.

For law enforcement officers and ICAC officers seeking to use surveillance devices:

1. Determine whether the investigation relates to a relevant offence (punishable by 3 years imprisonment or more, or prescribed) or, for ICAC, improper conduct. If not, a warrant cannot be obtained.
2. Prepare a written affidavit stating the grounds for the application, including the nature and gravity of the offence or improper conduct, the necessity for the surveillance device, the extent of privacy likely to be affected, alternative methods considered, and any previous warrants sought for the same matter.
3. Apply to a Supreme Court Judge (or Local Court Judge for tracking devices only) in person, unless it is impracticable, in which case a remote application may be made by phone, fax, email or other communication. If a remote application is made and an affidavit has been prepared, fax or email a copy with the application.
4. If immediate use is necessary and it is impracticable to prepare an affidavit, give as much information as the Judge considers reasonably practicable, and send a duly made affidavit not later than the next day.
5. The Judge will issue a warrant if satisfied there are reasonable grounds for the belief, and (for remote or urgent applications) that it was impracticable to apply in person or with an affidavit. The warrant will specify the kind of device, place, thing or person, the period (up to 90 days), the officer primarily responsible, and any conditions.
6. Execute the warrant in accordance with its terms, including any conditions on entry or use. Use force only if authorised and necessary. Retain access as required. If the device needs to be installed on a thing or place, ensure the warrant authorises that. Do not do anything requiring a warrant under the Telecommunications (Interception and Access) Act 1979 (Cth).
7. If the device is to be used outside the Territory, ensure the offence is a relevant offence (section 23(8)).
8. Keep records of the use, including the period, any persons monitored, places, benefit to the investigation, and compliance with conditions.
9. Report to the issuing Judge within the time stated in the warrant (section 58). The report must include details of execution, device used, period, names, places, benefit, and compliance with conditions.
10. If the chief officer or the ICAC is satisfied the use is no longer necessary, discontinue use immediately and apply for revocation of the warrant (sections 26, 26A).
11. Extend or vary the warrant before expiry if needed, by applying to the same Judge who issued it (section 24). Each extension is up to 90 days.
12. Retain all documents: the warrant, applications, revocation notices, reports, certificates (section 60). Keep a register (section 62).
13. Destroy records when satisfied they are not likely to be required for a permitted purpose (section 55). Documents received in evidence are exempt.

For police officers using body-worn video:

1. Ensure you are acting in the execution of your duty.
2. The use must be overt. This means informing the person who is to be recorded, or otherwise making it obvious the device is recording.
3. You must be in uniform, or if not in uniform, provide evidence that you are a police officer to each party to the private activity or conversation.
4. Inadvertent or unexpected recording is permitted without meeting the overtness and identification requirements (section 14A(3)), provided the officer is acting in the execution of duty.
5. Body-worn video footage is protected information. It may be used, communicated or published in connection with law enforcement functions, education and training of police officers, or for a prescribed purpose (section 53(4)). Do not share or publish footage outside these permitted uses without consent or other authorisation.

For persons using listening or optical surveillance devices in the public interest (Part 6):

1. Ensure that the use is in the public interest (defined in section 41 to include national security, public safety, economic well-being, protection of public health and morals, and protection of rights and freedoms of citizens).
2. There must be reasonable grounds for believing the circumstances are so serious and the matter is of such urgency that use is in the public interest.
3. Ensure no act done in installing or using the device is unlawful under any other law (section 42). This includes trespass, damage, or breach of any statute.
4. Within 2 business days after starting to use the device, give a written report to a Supreme Court Judge stating particulars of the device, the period of use, names of persons (if known), the circumstances, and the general use of evidence (section 45). Failure to report is an offence.
5. Comply with any order the Judge makes regarding the record or information (section 45(5)).
6. If you wish to publish or communicate any private conversation, report or record obtained from the device, you must first obtain an order from a Supreme Court Judge under section 46. The order may be made only if the publication or communication would protect or further the public interest.

For persons generally (offences to avoid):

1. Do not install, use or maintain a listening device, optical surveillance device or tracking device to monitor or record a private conversation or activity to which you are not a party, without the express or implied consent of each party, unless you have a warrant, emergency authorisation, or other lawful authority.
2. Do not install, use or maintain a data surveillance device without the consent of the person on whose behalf information is being input or output, unless under a warrant, emergency authorisation, or Commonwealth law.
3. Do not communicate or publish a record or report of a private conversation or activity obtained from a surveillance device unless you have consent, it is reasonably necessary in the public interest or for protecting lawful interests, it is in the course of legal or disciplinary proceedings, it is protected information, or you are a law enforcement officer or ICAC officer acting in duty.
4. Do not possess a surveillance device knowing it is intended for unlawful use.
5. Do not damage or interfere with a surveillance device lawfully installed by a law enforcement or ICAC officer.
6. Do not use, communicate or publish protected information unless permitted by Division 1 of Part 8 or if it is disclosed in open court or has entered the public domain.

For executive officers of bodies corporate:

1. Identify whether your body corporate engages in activities that could contravene sections 11(1), 12(1), 15(1), 45(1), 52(1) or (2), or any prescribed regulation.
2. Implement a compliance program that includes regular professional assessments of compliance with those provisions.
3. Ensure any recommendations from those assessments are implemented.
4. Ensure employees, agents and contractors have a reasonable knowledge and understanding of the requirement to comply with the declared provisions.
5. If you become aware that a contravention is about to happen, take action to prevent it.
6. If a contravention occurs, you may have a defence if you can show you were not in a position to influence the conduct, took reasonable steps, or did not know and could not reasonably have known the contravention would happen. The burden of proof for these defences lies on you.

For chief officers and the ICAC:

1. Ensure that all necessary documents are kept securely: warrants, revocation notices, emergency authorisations, applications, reports, certificates (section 60).
2. Keep a register of warrants and emergency authorisations with the required details (section 62).
3. Keep records of applications granted, refused or withdrawn; details of each use of information; each communication of information to third parties; each occasion information was given in evidence; and details of destruction of records (section 61).
4. Ensure records obtained from surveillance device use are kept in a secure place and destroyed when not likely to be required for a permitted purpose (section 55).
5. Provide annual reports to the Minister within 3 months after the end of each financial year (section 59). Reports must include statistics on applications, warrants, emergency authorisations, refusals, extensions, arrests, prosecutions, and any other information the Minister considers appropriate.
6. Cooperate with inspections by the Ombudsman (for law enforcement agencies) or the Inspector (for the ICAC) (sections 63, 64A). Ensure staff provide reasonable assistance.