8Installation, use and maintenance of optical surveillance devices without consent

#### 8 Installation, use and maintenance of optical surveillance devices without consent 8 Installation, use and maintenance of optical surveillance devices without consent > > (1) A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves— > > > > > (a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or > > > > > (b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object. > > > > Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). > > > (2) Subsection (1) does not apply to the following— > > > > > (a) the installation, use or maintenance of an optical surveillance device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation, > > > > > (b) the installation, use or maintenance of an optical surveillance device in accordance with a law of the Commonwealth, > > > > > (c) the use of an optical surveillance device and any enhancement equipment in relation to the device solely for the purpose of the location and retrieval of the device or equipment, > > > > > (d) the installation, use or maintenance of an optical surveillance device by a law enforcement officer in the execution of a search warrant or crime scene warrant (including the use of an optical surveillance device to record any activity in connection with the execution of the warrant), > > > > > > Note. > > > > > > See also section 255 of the [Children and Young Persons (Care and Protection) Act 1998](/view/html/inforce/current/act-1998-157). > > > > > (d1) the use of an optical surveillance device by a law enforcement officer in the conduct of a search or inspection (including the use of an optical surveillance device to record any activity in connection with the search or inspection) that is permitted without a warrant under the following— > > > > > > > (i) the [Child Protection (Offenders Registration) Act 2000](/view/html/inforce/current/act-2000-042), > > > > > > > (ia) the [Drug Supply Prohibition Order Pilot Scheme Act 2020](/view/html/repealed/current/act-2020-039), > > > > > > > (ii) the [Firearms Act 1996](/view/html/inforce/current/act-1996-046), > > > > > > > (iii) the [Restricted Premises Act 1943](/view/html/inforce/current/act-1943-006), > > > > > > > (iv) the [Terrorism (Police Powers) Act 2002](/view/html/inforce/current/act-2002-115), > > > > > (e) the use of an optical surveillance device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation, > > > > > (f) the use, in accordance with section 50A, of body-worn video by a police officer. > > > (2A) Subsection (1) does not apply to the use of an optical surveillance device to record visually or observe the carrying on of an activity if— > > > > > (a) a party to the activity is a participant in an authorised operation and, if the participant is a law enforcement officer, the participant is using an assumed name or assumed identity, and > > > > > (b) the person using the optical surveillance device is that participant or another participant in that authorised operation. > > > (3) In this section— > > > > authorised operation and participant in an authorised operation have the same meanings as in the [Law Enforcement (Controlled Operations) Act 1997](/view/html/inforce/current/act-1997-136). > > > > Note. > > > > The definition of participant in an authorised operation includes a civilian participant within the meaning of the [Law Enforcement (Controlled Operations) Act 1997](/view/html/inforce/current/act-1997-136). > > > > crime scene warrant has the same meaning as it has in the [Law Enforcement (Powers and Responsibilities) Act 2002](/view/html/inforce/current/act-2002-103). > > > > search warrant means a search warrant issued under— > > > > > (a) any of the following provisions of the [Law Enforcement (Powers and Responsibilities) Act 2002](/view/html/inforce/current/act-2002-103)— > > > > > > > (i) Division 2 (Police powers relating to warrants) of Part 5, > > > > > > > (ii) Part 6 (Search, entry and seizure powers relating to domestic violence offences), > > > > > > > (iii) Division 1 (Drug premises) of Part 11, or > > > > > (a1) a provision specified in Schedule 2 to the [Law Enforcement (Powers and Responsibilities) Act 2002](/view/html/inforce/current/act-2002-103), or > > > > > (a2) Part 3 (Covert search warrants) of the [Terrorism (Police Powers) Act 2002](/view/html/inforce/current/act-2002-115), or > > > > > (b) section 40 of the [Independent Commission Against Corruption Act 1988](/view/html/inforce/current/act-1988-035), or > > > > > (c) section 17 of the [Crime Commission Act 2012](/view/html/inforce/current/act-2012-066), or > > > > > (d) Division 2 or 3 of Part 4 of the [Criminal Assets Recovery Act 1990](/view/html/inforce/current/act-1990-023), > > > > > (e) section 79 of the [Law Enforcement Conduct Commission Act 2016](/view/html/inforce/current/act-2016-061). > > **s 8:** Am 2008 No 53, Sch 20 \[1\] \[2\]; 2008 No 107, Sch 27 \[2\]; 2012 No 66, Sch 5.14 \[2\]; 2014 No 81, Sch 1 \[3\]; 2016 No 54, Sch 1.17 \[1\] \[2\]; 2016 No 61, Sch 6.42 \[7\]; 2018 No 90, Sch 1\[3\] \[4\]; 2020 No 39, Sch 2.