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.