In 1997, the Royal Commission into the New South Wales Police Service found that the use of electronic surveillance was the single most important factor in achieving a breakthrough in its investigations.
[5] The Second Reading Speech states that for serious crimes like murder, terrorism, drug manufacture and importation it is essential that law enforcement agencies have every possible tool at their disposal to make their investigations and prosecutions as successful as possible.
[7] Sections 7-14 create a series of offences carrying penalties ranging from the imposition of a fine to imprisonment of up to five years.
The offence creating provisions of the Act provide a comprehensive code designed to protect the privacy of the general population.
[11] The Tasers issued to New South Wales Police are designed to record both the sound and vision of the deployment of the stun gun.
In DW v R [2014] NSWCCA 28,[12] the New South Wales Court of Criminal Appeal held that the victim of a sexual assault who recorded a conversation she had with the perpetrator did not commit an offence when her purpose was to convince others of the truth of her allegations.
The same Court reached a similar conclusion in Sepulveda v R [2006] NSWCCA 379,[13] a decision under the earlier Listening Devices Act.
Giles JA found that protection of lawful interests do not encompass credibility generally or in the event of giving evidence.
On the contrary, Hulme and Adams JJ found that the avoidance of "being labeled a liar" (within a criminal investigation) is an important lawful interest and the recording of the conversation was the only practicable mode of preventing or refuting such an allegation.
Section 11 creates an offence of communicating the contents of a private conversation that has come to the person’s knowledge as a result of the prohibited use of a surveillance device.
[18] Section 13 makes it an offence to manufacture, supply or possess a surveillance device with the intention that it be used contrary to the Act.
[19] Section 14 creates an offence of communicating or publishing information derived or obtained by the unlawful use of a data tracking device.
For a Supreme Court judge to be eligible to issue a warrant he or she must sign a written consent and be the subject of a declaration by the Attorney-General of New South Wales.
[23] Applications for warrants can be made by state or federal police as well as a number of agencies including the New South Wales Crime Commission and the Independent Commission Against Corruption (New South Wales)[24] A law enforcement officer may apply to an eligible judge for a surveillance device warrant to be issued if they believe on reasonable grounds that: Section 17 provides the formalities of the application.
[25] The eligible judge may issue the warrant if satisfied that there are reasonable grounds for the belief stated by the law enforcement officer: s 19(1).
While the application must be made to a judge, the act of granting the warrant is considered to be an administrative, not judicial, function: Ousley v R [1997] HCA 49.
There is a list of factors in sub-section (3) to be taken into account: In R v Simmons (No 2) [2015] NSWCCA 143 members of the NSW police were undertaking a complex undercover sting operation.
Justice Hamill disagreed saying at [138]: As it turned out the conversations were recorded by another (lawful) surveillance device and so the question of admissibility did not arise.
Section 63(3) states "A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years."
[44](subscription required) The NSW Council for Civil Liberties have asked for amendments to the Act, with more stringent checking of police requests to use devices after it was found that only 43% of warrants resulted in relevant information being obtained.
[45] The Age reported that in 2014, NSW Courts refused less than 2 per cent of police applications for surveillance device warrants.
[43] Shadow NSW Attorney-General Paul Lynch states; A 2015 report from the Ombudsman found that police were "systematically failing to destroy recordings that weren't needed for criminal investigations, in breach of the Act.
[46] It was argued that this inconsistency results in uncertainty and complexity, reducing privacy protection for individuals and increasing compliance burdens for organisations.
[47] When the Act was introduced in parliament, former Attorney General and Minister for Justice, John Hatzistergos emphasised that a major function of the Act was to allow law enforcement agencies “every possible tool at their disposal” to “confront the very real threat of terrorism occurring on Australian soil.”[6] The NSW Council for Civil Liberties noted that although considerable time was dedicated by the New South Wales Government in linking the use of surveillance device warrants to terrorism-related offences.
He spoke of the ease at which police officers were able to extend their warrants if necessary under the old act and stated that the 21-day provision put forward by the Opposition will enable “a degree of checks and balances and ensure the maintenance of probity”.
The Government was offered no convincing case for such a lengthy extension.”[6] Hatzistergos replied that “a bunch of bleeding hearts, the Council for Civil Liberties actually supported it [move to a 90-day warrant period]”.
In 2003, Strike Force Emblems was established in response to allegations that warrants were improperly obtained during Operation Mascot, an investigation into police corruption in the late 1990s.
Nearly a decade later in October 2012, the New South Wales Government announced that the Ombudsman would investigate allegations concerning the conduct of officers in the NSW Police Force, the Crime Commission and the Police Integrity Commission in relation to the matters investigated in Strike Force Emblems which occurred between 1998 and 2002.