What it does
The Surveillance Devices Regulation 2022 is a statutory instrument made under the Surveillance Devices Act 2007 (NSW) that prescribes a range of operational details, exemptions, and transitional arrangements that the principal Act leaves to subordinate legislation. Mechanically, the regulation does seven things. First, it declares five interstate surveillance laws as “corresponding laws” for the purpose of the Act’s definition in section 4(1), allowing warrants and authorisations issued under those laws to be recognised in NSW. Second, it expands the purposes for which information obtained from police body-worn video may be used beyond those stated in section 40 of the Act. The additional purposes include coronial proceedings, administrative decisions under Acts administered by the Minister for Police and Emergency Services, court or tribunal proceedings where the NSW Police Force or the State is a party or a police officer is a witness, investigations of complaints against police officers, investigations of alleged workplace injuries to police officers, and media productions subject to strict conditions (police approval, content control, and compliance with Commissioner’s guidelines). Third, it permits the Attorney General to delegate certain functions under Parts 3 and 5 of the Act only to an Australian legal practitioner employed in the administering department as a Public Service senior executive or a legal officer grade 6 or clerk grade 11 or 12 in the legal branch. Fourth, it creates a temporary exemption (until 31 December 2026) for the Independent Commission Against Corruption (ICAC) from Part 2 of the Act, allowing ICAC to obtain, possess, publish, or communicate material obtained by another person’s unlawful use of a surveillance device, provided ICAC acts in accordance with the Independent Commission Against Corruption Act 1988. This exemption requires ICAC to state in any related investigation report that it relied on the exemption. Fifth, it grants a temporary exemption (until 30 November 2026) for sheriff’s officers from sections 7 and 8 of the Act (prohibitions on installing, using, and maintaining listening devices and optical surveillance devices) when using a body-worn recording device in the execution of duty, subject to conditions about prominent attachment to the uniform and either reasonable prior notification of the person recorded, a perceived significant risk of harm, or inadvertent/unexpected recording. Sixth, it creates a similar temporary exemption (until 31 August 2027) for SafeWork inspectors using body-worn recording devices while exercising powers under the Work Health and Safety Act 2011 or the Explosives Act 2003, with comparable conditions. Seventh, it contains savings and transitional provisions that preserve acts done under the repealed 2014 regulation and ensure continuity for ambulance officers’ body-worn devices until the new exemptions commence. The regulation thus operates primarily to expand state discretion for certain law enforcement and regulatory officers while narrowing private protections against surveillance, albeit with sunset dates that make these expansions temporary unless renewed. No private rights of action are created; the regulation only modifies the application of the Act’s prohibitions and permitted uses.