Listening and Surveillance Devices Act 1972 (SA)

South Australia

Listening and Surveillance Devices Act 1972

An Act to make provision relating to the use of listening and surveillance devices; and for other purposes.

The Parliament of South Australia enacts as follows:

1Short title

This Act may be cited as the Listening and Surveillance Devices Act 1972.

3Interpretation

In this Act, unless the contrary intention appears—

ACC means the Australian Crime Commission;

associated equipment, in relation to a listening device or surveillance device, means equipment or things used for, or in connection with, the operation of the device;

chief officer of an investigating agency means—

1. (a)

   in the case of South Australia Police—the Commissioner of Police; or

2. (b)

   in the case of the Independent Commissioner Against Corruption—the Independent Commissioner Against Corruption; or

3. (c)

   in the case of the ACC—the Chief Executive Officer of the ACC;

declared listening device means a listening device or a listening device of a class or kind to which for the time being section 8 applies;

investigating agency means—

1. (a)

   South Australia Police; or

2. (b)

   the Independent Commissioner Against Corruption; or

3. (c)

   the ACC;

listening device means—

1. (a)

   an electronic or mechanical device capable of being used to listen to or record a private conversation or words spoken to or by any person in private conversation (whether or not the device is also capable of operating as a surveillance device); and

2. (b)

   associated equipment (if any),

but does not include a device being used to assist a person with impaired hearing to hear sounds ordinarily audible to the human ear;

member of the staff of the ACC has the same meaning as in the Australian Crime Commission Act 2002 of the Commonwealth;

officer of an investigating agency means—

1. (a)

   in the case of South Australia Police—a police officer or a police officer (however described) of another jurisdiction seconded to South Australia Police; or

2. (b)

   in the case of the Independent Commissioner Against Corruption—an investigator under the Independent Commissioner Against Corruption Act 2012; or

3. (c)

   in the case of the ACC—a member of the Board of the ACC or a member of the staff of the ACC who is a member of the Australian Federal Police or the police force of a State or Territory of the Commonwealth;

premises includes any land or structure;

private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation;

publish information or material includes display or deliver the information or material to another;

relevant investigation means—

1. (a)

   investigation of an offence (whether under the law of this State or the law of the Commonwealth or another State or a Territory of the Commonwealth); or

2. (b)

   investigation of alleged misbehaviour or improper conduct of a member of a police force or an officer or employee of the State, the Commonwealth or another State or a Territory of the Commonwealth;

relevant proceeding means any of the following proceedings (whether under the law of this State or the law of the Commonwealth or another State or a Territory of the Commonwealth):

1. (a)

   a proceeding by way of a prosecution of an offence;

2. (b)

   a proceeding by way of an application for bail;

3. (c)

   a proceeding by way of an application for a warrant;

4. (d)

   a proceeding for the confiscation or forfeiture of property or for the imposition of a pecuniary penalty;

5. (e)

   a proceeding for the taking of evidence on commission for use in criminal proceedings originating in Australia;

6. (f)

   a proceeding for the extradition of a person to or from Australia or a State or Territory of the Commonwealth;

7. (g)

   a police disciplinary proceeding;

8. (h)

   any other proceeding relating to alleged misbehaviour, or alleged improper conduct, of a police officer (however described), or an officer or employee, of the State, the Commonwealth or another State or a Territory of the Commonwealth;

review agency for an investigating agency means—

1. (a)

   for South Australia Police—the reviewer under Schedule 4 of the Independent Commissioner Against Corruption Act 2012; or

2. (b)

   for the Independent Commissioner Against Corruption—a person who is independent of the Commissioner and is appointed by the Governor as the review agency;

serious offence means any of the following offences (whether under the law of this State or the law of the Commonwealth or another State or a Territory of the Commonwealth):

1. (a)

   murder (or an offence equivalent to murder);

2. (b)

   kidnapping (or an offence equivalent to kidnapping);

3. (c)

   an offence involving a drug or substance of a kind regulated under Part 5 of the Controlled Substances Act 1984 punishable by imprisonment for a period, or maximum period, of at least 7 years;

4. (d)

   an offence—

   1. (i)

      of attempting or conspiring to commit any of the offences set out in paragraph (a), (b) or (c); or

   2. (ii)

      of aiding, abetting, counselling or procuring any of the offences set out in paragraph (a), (b) or (c); or

   3. (iii)

      of being an accessory after the fact to any of the offences set out in paragraph (a), (b) or (c);

surveillance device means a visual surveillance device or a tracking device;

telephone includes any telecommunication device;

tracking device means—

1. (a)

   an electronic device capable of being used to determine the geographical location of a person or thing; and

2. (b)

   associated equipment (if any);

vehicle includes any vessel or aircraft;

visual surveillance device means—

1. (a)

   an electronic or mechanical device capable of being used to observe or record visually (whether for still or moving pictures) a person, place or activity; and

2. (b)

   associated equipment (if any).

4Regulation of use of listening devices

Except as provided by this Act, a person must not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not the person is a party to the conversation, without the consent, express or implied, of the parties to that conversation.

Maximum penalty: $10 000 or imprisonment for 2 years.

5Prohibition on communication or publication

1. (1)

   A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device in contravention of section 4.

Maximum penalty: $10 000 or imprisonment for 2 years.

1. (2)

   This section does not prevent the communication or publication of information or material derived from the use of a listening device in contravention of section 4—

   1. (a)

      to a person who was a party to the conversation to which the information or material relates; or

   2. (b)

      with the consent of each party to the conversation to which the information or material relates; or

   3. (c)

      for the purposes of a relevant investigation or a relevant proceeding relating to that contravention of section 4 or a contravention of this section involving the communication or publication of that information or material.

6Warrants – General provisions

1. (1)

   A judge of the Supreme Court may issue a warrant authorising one or more of the following:

   1. (a)

      the use of one or more listening devices;

   2. (b)

      entry to or interference with any premises, vehicle or thing for the purposes of installing, using, maintaining or retrieving one or more listening or surveillance devices.

2. (2)

   An application for a warrant may be made by an officer of an investigating agency with the written approval of the chief officer of the investigating agency certifying that the chief officer is satisfied that the warrant is reasonably required for an investigation.

3. (3)

   An application for a warrant must be made by personal appearance before a judge following the lodging of a written application except in urgent circumstances when it may be made in accordance with section 6A.

4. (4)

   The grounds of an application for a warrant must be verified by affidavit.

5. (5)

   A judge to whom an application for a warrant is made may require further information to be given in relation to the application.

6. (6)

   A judge may issue a warrant if satisfied that there are, in the circumstances of the case, reasonable grounds for issuing the warrant, taking into account—

   1. (a)

      the extent to which the privacy of a person would be likely to be interfered with by use of the type of device to which the warrant relates; and

   2. (b)

      the gravity of the criminal conduct to which the investigation relates; and

   3. (c)

      the significance to the investigation of the information sought to be obtained; and

   4. (d)

      the likely effectiveness of the use of the listening or surveillance device in obtaining the information sought; and

   5. (e)

      the availability of alternative means of obtaining the information; and

   6. (f)

      any other warrants under this Act applied for or issued in relation to the same matter; and

   7. (g)

      any other matter that the judge considers relevant.

7. (7)

   A warrant under this Act—

   1. (a)

      must specify—

      1. (i)

         the person authorised to exercise the powers conferred by the warrant; and

      2. (ii)

         whether the type of device to which the warrant relates is a listening device, a visual surveillance device or a tracking device; and

      3. (iii)

         the period for which the warrant will be in force (being a period not longer than 90 days); and

   2. (b)

      may contain conditions and limitations; and

   3. (c)

      may, on application by the person named in the warrant, be varied or renewed (and the provisions of this Act will apply in relation to such an application in the same way as if it were an application for the issue of a warrant).

8. (7a)

   A judge by whom a warrant is issued, varied or renewed on application under this Act must cause the warrant, or a copy of the warrant, as issued, varied or renewed and the affidavit verifying the grounds on which the application was made to be dealt with in accordance with the rules of the Supreme Court.

9. (7b)

   Subject to any conditions or limitations specified in the warrant—

   1. (a)

      a warrant authorising the use of a listening device to listen to or record words spoken by, to or in the presence of a specified person who, according to the terms of the warrant, is suspected on reasonable grounds of having committed, or being likely to commit, a serious offence will be taken to authorise entry to or interference with any premises, vehicle or thing as reasonably required to install, use, maintain or retrieve the device for that purpose;

   2. (b)

      a warrant authorising (whether under the terms of the warrant or by force of paragraph (a)) entry to or interference with any premises, vehicle or thing will be taken to authorise—

      1. (i)

         the use of reasonable force or subterfuge for that purpose; and

      2. (ii)

         the extraction and use of electricity for that purpose or for the use of the listening or surveillance device to which the warrant relates;

   3. (c)

      a warrant authorising entry to specified premises will be taken to authorise non-forcible passage through adjoining or nearby premises (but not through the interior of any building or structure) as reasonably required for the purpose of gaining entry to those specified premises;

   4. (d)

      the powers conferred by any warrant may be exercised by the person named in the warrant at any time and with such assistance as is necessary.

10. (8)

    If the chief officer of the investigating agency is satisfied that the grounds on which a warrant was issued have ceased to exist, the chief officer must, if the warrant is still in force, cancel the warrant by instrument in writing.

11. (9)

    A warrant may, at any time, be cancelled by the chief officer of the investigating agency.

6AWarrant procedures in urgent circumstances

1. (1)

   An application for a warrant under section 6 may be made by facsimile or, if no facsimile facilities are readily available, by telephone, if, in the opinion of the applicant, the warrant is urgently required and there is not enough time to lodge a written application and appear before a judge.

2. (2)

   If an application for the issue of a warrant is made by facsimile, the following provisions apply:

   1. (a)

      the application must state the applicant's name, the police force or body to which the applicant belongs and the applicant's rank or position in that force or body, the purpose for which the warrant is required, the grounds on which it is sought and the circumstances giving rise to the urgency of the application;

   2. (b)

      the application must be accompanied (through facsimile transmission) by an affidavit made by the applicant verifying the facts referred to in the application;

   3. (c)

      the applicant must be available to speak to the judge by telephone;

   4. (d)

      the judge is entitled to assume, without further inquiry, that a person who identifies himself or herself as the applicant during a telephone conversation with the judge is indeed the applicant;

   5. (e)

      the judge may, on being satisfied as to the circumstances of urgency and the grounds for the issue of a warrant, make out and sign a warrant;

   6. (f)

      the warrant is to be taken to have been issued, and comes into force, when signed by the judge;

   7. (g)

      the judge must forward the warrant to the applicant by facsimile transmission.

3. (3)

   If an application for a warrant is made by telephone, the following provisions apply:

   1. (a)

      the applicant must inform the judge of the applicant's name, the police force or body to which the applicant belongs and the applicant's rank or position in that force or body and the judge, on receiving that information, is entitled to assume its accuracy without further inquiry;

   2. (b)

      the applicant must inform the judge of the purpose for which the warrant is required, the grounds on which it is sought and the circumstances giving rise to the urgency of the application;

   3. (c)

      the judge may, on being satisfied as to the circumstances of urgency and the grounds for the issue of the warrant, inform the applicant of the facts on which the judge relies as grounds for the issue of the warrant, and must not proceed to issue the warrant unless the applicant undertakes to make an affidavit verifying those facts;

   4. (d)

      if the applicant gives such an undertaking, the judge may then make out and sign a warrant;

   5. (e)

      the warrant is to be taken to have been issued, and comes into force, when signed by the judge;

   6. (f)

      the judge must inform the applicant of the terms of the warrant;

   7. (g)

      the applicant must fill out and sign a warrant form (the duplicate warrant) that—

      1. (i)

         sets out the name of the judge who issued the original and the terms of the warrant; and

      2. (ii)

         complies with any other requirements prescribed by regulation;

   8. (h)

      the applicant must, as soon as practicable after the issue of the warrant, forward to the judge an affidavit verifying the facts referred to in paragraph (c) and a copy of the duplicate warrant.

6ABUse of information or material derived from use of listening or surveillance devices under warrants

A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device under a warrant, or a surveillance device installed through the exercise of powers under a warrant, except—

1. (a)

   to a person who was a party to the conversation or activity to which the information or material relates; or

2. (b)

   with the consent of each party to the conversation or activity to which the information or material relates; or

3. (c)

   for the purposes of a relevant investigation; or

4. (d)

   for the purposes of a relevant proceeding; or

5. (e)

   otherwise in the course of duty or as required by law; or

6. (f)

   if the information or material has been taken or received in public as evidence in a relevant proceeding.

Maximum penalty: $10 000 or imprisonment for 2 years.

6ACRegister of warrants

1. (1)

   The chief officer of an investigating agency (other than the ACC) must keep a register of warrants issued to the agency.

2. (2)

   The register must contain the following information in relation to each such warrant:

   1. (a)

      the date of issue of the warrant and the period for which the warrant is to be in force;

   2. (b)

      the name of the judge who issued the warrant;

   3. (c)

      the name and rank of the member of the police force to whom the warrant was issued;

   4. (d)

      the name or, if the name is not known, a description of the person subject to the investigation in relation to which the warrant was issued;

   5. (e)

      if the application for the warrant was by telephone under section 6A, the date on which the applicant forwarded an affidavit and copy of the duplicate warrant to the judge as required under that section;

   6. (f)

      if an application for variation of the warrant was made, the date of the application and details of the variation (if any) granted;

   7. (g)

      the date of any renewal of the warrant and the period for which the renewed warrant is to be in force;

   8. (h)

      the period for which the warrant was actually in force (including any periods for which it was in force following renewal) and the date on which the warrant ceased to be in force;

   9. (i)

      the dates of any arrests made on the basis or partly on the basis of information obtained by use of the listening or surveillance device to which the warrant relates;

   10. (j)

       the dates on which any prosecutions were instituted in which information obtained by use of the listening or surveillance device formed part of the basis of the decision to prosecute;

   11. (k)

       the dates on which any persons were found guilty of offences in consequence of those prosecutions;

   12. (l)

       the dates on which any persons pleaded guilty to the charge of an offence in consequence of those prosecutions;

   13. (m)

       such other matters as may be prescribed by regulation.

6BReports and records relating to warrants etc

1. (1)

   The chief officer of an investigating agency (other than the ACC) must, in relation to warrants issued to the agency, give to the Minister—

   1. (a)

      as soon as practicable after the issue, variation or cancellation of a warrant, a copy of the warrant, the warrant as varied or the instrument of cancellation (as the case may be); and

   2. (b)

      within three months after a warrant ceases to be in force, a written report of—

      1. (i)

         the use made of information obtained by use of a listening or surveillance device to which the warrant related; and

      2. (ii)

         the communication of that information to persons other than police officers; and

   3. (c)

      as soon as practicable (but not later than two months) after each 30 June, the following information relating to the year ending on that 30 June—

      1. (i)

         in relation to—

         1. (A)

            applications for warrants; and

         2. (B)

            applications for warrants by telephone under section 6A; and

         3. (BA)

            applications for variation of warrants; and

         4. (C)

            renewal applications for warrants; and

         5. (D)

            applications for warrants that included authorisation to enter or interfere with any premises, vehicle or thing,

      how many such applications were made, how many were withdrawn or refused and how many were successful; and

      1. (ii)

         the average of the respective periods specified in original warrants issued on applications made during that year as the periods for which the warrants were to be in force; and

      2. (iii)

         the average of the respective periods for which those warrants were actually in force; and

      3. (iv)

         the average of the respective periods specified in renewal warrants issued on applications made during that year as the periods for which the renewals were to be in force; and

      4. (v)

         a general description of—

         1. (A)

            the uses made during that year of information obtained by use of listening or surveillance devices to which a warrant related; and

         2. (B)

            the communication of that information to persons other than police officers; and

      5. (vi)

         —

         1. (A)

            the number of arrests made during that year in connection with the performance by the agency of its functions; and

         2. (B)

            the number of arrests made during that year on the basis or partly on the basis of information obtained by use of a listening or surveillance device to which a warrant related; and

      6. (vii)

         —

         1. (A)

            the number of prosecutions instituted during that period in which information obtained by such use of a listening or surveillance device formed part of the basis of the decision to prosecute; and

         2. (B)

            the number of occasions during that period on which information obtained by such use of a listening or surveillance device was given in evidence in the course of a prosecution; and

         3. (C)

            the number of persons found guilty of an offence in consequence of those prosecutions during that period; and

         4. (D)

            the number of persons who pleaded guilty to the charge of an offence in consequence of those prosecutions during that period; and

1. 1. (d)

      a report on any other matter specified by the Minister at a time specified by the Minister.

2. (1a)

   The reports and information required to be given to the Minister under subsection (1) must distinguish between warrants authorising the use of listening devices and other warrants.

3. (1b)

   Subject to the regulations and any determinations of the Minister, the chief officer of an investigating agency must include in each report to the Minister under subsection (1)(c) the following information:

   1. (a)

      the number of occasions on which, in prescribed circumstances, a police officer—

      1. (i)

         used a listening device otherwise than under a warrant; or

      2. (ii)

         used a surveillance device that was not installed through the exercise of powers under a warrant,

   during the period to which the report relates;

   1. (b)

      a general description of—

      1. (i)

         the uses made during that period of information obtained by such use of a listening or surveillance device; and

      2. (ii)

         the communication of that information to persons other than police officers;

   2. (c)

      the number of arrests made during that period on the basis or partly on the basis of information obtained by such use of a listening or surveillance device;

   3. (d)

      the number of prosecutions instituted during that period in which information obtained by such use of a listening or surveillance device formed part of the basis of the decision to prosecute;

   4. (e)

      the number of occasions during that period on which information obtained by such use of a listening or surveillance device was given in evidence in the course of a prosecution;

   5. (f)

      the number of persons found guilty of an offence in consequence of those prosecutions during that period;

   6. (g)

      the number of persons who pleaded guilty to the charge of an offence in consequence of those prosecutions during that period;

   7. (h)

      any other information prescribed by regulation or specified by the Minister.

4. (2)

   The chief officer of an investigating agency must keep such records as are necessary to enable compliance with this section, including records of the persons (other than police officers) to whom that information has been communicated.

5. (3)

   The Minister must cause a report to be prepared on or before 31 October in each year containing—

   1. (a)

      the information furnished to the Minister under subsection (1)(c) in relation to the year ending on the previous 30 June; and

   2. (b)

      any similar information relating to warrants issued to members of the Board of the ACC or members of the staff of the ACC furnished to the Minister by the ACC in relation to the year ending on the previous 30 June; and

   3. (c)

      from reports made to the Minister by the ACC, a general description of—

      1. (i)

         the uses made during that year of information obtained by use of listening or surveillance devices; and

      2. (ii)

         the communication of that information to persons other than members of the Board of the ACC or members of the staff of the ACC.

6. (4)

   The Minister must, within 12 sitting days of receiving a report prepared under subsection (3), have copies of the report laid before both Houses of Parliament.

6CControl by police etc of certain records, information and material

The chief officer of an investigating agency must, in accordance with the regulations—

1. (a)

   keep as records a copy of—

   1. (i)

      each application for a warrant under this Act; and

   2. (ii)

      each warrant issued under this Act; and

2. (b)

   keep any information or material derived from the use of a listening device under a warrant, or the use of a surveillance device installed through the exercise of powers under a warrant; and

3. (c)

   control, manage access to, and destroy, any such records, information and material.

6DInspection of records by review agency

1. (1)

   The review agency for an investigating agency—

   1. (a)

      must, at least once in each period of six months, inspect the records of the the investigating agency for the purpose of ascertaining the extent of compliance with sections 6AC, 6B and 6C; and

   2. (b)

      must, not later than two months after completion of such an inspection, report in writing to the Minister on the results of the inspection.

2. (2)

   If, as a result of an inspection under subsection (1), the review agency is of the opinion that the investigating agency has contravened section 6B(1)(a) or (b), the review agency must include a report on the contravention in the report under subsection (1).

3. (3)

   Before making a report on a contravention under subsection (2), the review agency must give the investigating agency an opportunity to make comments in writing on the report and must include in or attach to the report any comments made.

6EPowers of review agency

1. (1)

   For the purposes of an inspection under section 6D, the review agency, or a person authorised by the review agency for the purpose—

   1. (a)

      may, after notifying the chief officer of an investigating agency, enter at any reasonable time premises occupied by the investigating agency; and

   2. (b)

      is entitled to have full and free access at all reasonable times to all records of the investigating agency; and

   3. (c)

      is, despite any other law, entitled to make copies of, and to take extracts from, records of the investigating agency; and

   4. (d)

      may require an officer of an investigating agency to give the review agency or authorised person such information as the review agency considers necessary, being information that is in the officer's possession, or to which the officer has access, and that is relevant to the inspection.

2. (2)

   If the review agency has reason to believe that an officer of an investigating agency is able to give information relevant to an inspection under section 6D, the review agency may, by written notice to the officer, require the officer to do 1 or both of the following:

   1. (a)

      give the information, in writing, signed by the officer, at a specified place and within a specified period;

   2. (b)

      attend before a specified person at a specified place and within a specified period or at a specified time on a specified day, in order to answer questions relevant to the inspection.

3. (3)

   If the review agency has reason to believe that an officer of an investigating agency is able to give information relevant to an inspection under section 6D but does not know the officer's identity, the review agency may, by written notice to the chief officer of an investigating agency, require the chief officer or a person nominated by the chief officer to attend before a specified person at a specified place and within a specified period or at a specified time on a specified day, in order to answer questions relevant to the inspection.

4. (4)

   Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required by or under this section, on the ground that it would contravene a law, would be contrary to the public interest or might tend to incriminate the person or make the person liable to a penalty.

5. (5)

   The following are not admissible in evidence against a person except in prosecution proceedings for an offence against this section:

   1. (a)

      information or an answer given by the person under this section;

   2. (b)

      the fact that the person has given access to a document under this section;

   3. (c)

      any information or thing (including a document) obtained in consequence of the person having given information or an answer, or access to a document, under this section.

6. (6)

   The chief officer of an investigating agency must ensure that officers of the investigating agency provide the review agency with such assistance in relation to an inspection under section 6D as the review agency reasonably requires.

7. (7)

   A person who is required under this section—

   1. (a)

      to attend before a person; or

   2. (b)

      to furnish information; or

   3. (c)

      to answer a question,

and who, without reasonable excuse, refuses or fails to comply with that requirement is guilty of an offence.

Maximum penalty: $10 000 or imprisonment for 2 years.

1. (8)

   A person who—

   1. (a)

      without reasonable excuse, hinders a person exercising powers under this section; or

   2. (b)

      gives to a person exercising powers under this section information knowing it to be false or misleading in a material particular,

is guilty of an offence.

Maximum penalty: $10 000 or imprisonment 2 years.

7Lawful use of listening device by party to private conversation

1. (1)

   Section 4 does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under this Act) if that listening device is used—

   1. (a)

      to overhear, record, monitor or listen to any private conversation to which that person is a party; and

   2. (b)

      in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person.

2. (2)

   An exemption from section 4 that applies to an officer of an investigating agency in relation to the use of a listening device for the purposes of the investigation of a matter by the agency extends to any other such officer who overhears, records, monitors or listens to the private conversation by means of the device for the purposes of the investigation.

3. (3)

   A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device under this section except—

   1. (a)

      to a person who was a party to the conversation to which the information or material relates; or

   2. (b)

      with the consent of each party to the conversation to which the information or material relates; or

   3. (c)

      in the course of duty or in the public interest, including, in the case of information or material derived from the use of a listening device in the course of an investigation by an investigating agency, for the purposes of a relevant investigation or a relevant proceeding; or

   4. (d)

      being a party to the conversation to which the information or material relates, as reasonably required for the protection of the person's lawful interests; or

   5. (e)

      if the information or material has been taken or received in public as evidence in a relevant proceeding.

Maximum penalty: $10 000 or imprisonment for 2 years.

8Possession etc of declared listening device

1. (1)

   The Minister may by notice in the Gazette declare that this section applies to a listening device or a listening device of a class or kind specified in that notice and the Minister may, by subsequent notice in the Gazette, revoke or amend any such declaration.

2. (2)

   A person must not without the consent of the Minister have in his or her possession, custody or control a declared listening device.

Maximum penalty: $10 000 or imprisonment for 2 years.

1. (3)

   The consent of the Minister under subsection (2)—

   1. (a)

      may be expressed to relate to the possession, custody or control of a listening device or to any listening device of a class or kind; and

   2. (ab)

      may be expressed to apply to persons of a specified class; and

   3. (b)

      may be expressed to be subject to such conditions, limitations or restrictions as the Minister considers necessary or expedient.

2. (4)

   The Minister may at any time revoke a consent given under this section and, on revocation, the consent ceases to have effect.

3. (5)

   For the purposes of this section, having the possession, custody or control of a listening device in contravention of a condition, limitation or restriction imposed by the Minister will be taken to be having the possession, custody or control of that device without the consent of the Minister.

4. (6)

   The Minister may delegate any of his or her powers under this section to a Chief Executive of an administrative unit of the Public Service.

5. (7)

   A delegation under this section—

   1. (a)

      must be in writing; and

   2. (b)

      may be conditional or unconditional; and

   3. (c)

      is revocable at will; and

   4. (d)

      does not prevent the delegator from acting in any manner.

9Power to seize listening devices etc

1. (1)

   If an officer of an investigating agency suspects on reasonable grounds that—

   1. (d)

      a person has possession, custody or control of a declared listening device without the consent of the Minister; or

   2. (e)

      any other offence against this Act has been, is being or is about to be committed with respect to a listening device or information derived from the use of a listening device,

the officer may seize the device or a record of the information.

1. (2)

   An officer of an investigating agency may—

   1. (a)

      break into, enter and search any premises in which the officer suspects on reasonable grounds there is a device or record liable to seizure under this section; and

   2. (b)

      stop, detain and search, or detain and search, any vehicle that the officer suspects on reasonable grounds contains a device or record liable to seizure under this section; and

   3. (c)

      detain and search any person who the officer suspects on reasonable grounds has possession of a device or record liable to seizure under this section.

2. (3)

   If a device or record has been seized under this section, the device or record must, subject to any order of a court, be returned to its owner—

   1. (a)

      if no proceedings are instituted for an offence against this Act involving the device or record of information—at the expiration of two months from the date of seizure;

   2. (b)

      if such proceedings are instituted—when those proceedings are finally determined.

10Evidence

In proceedings for an offence, an apparently genuine document purporting to be signed by the chief officer of an investigating agency certifying that specified action was taken in connection with executing a specified warrant issued under this Act will, in the absence of evidence to the contrary, be accepted as proof of the matters so certified.

11Forfeiture of listening devices

1. (1)

   If a person is convicted of an offence against this Act, the court before which that person was so convicted may in addition to imposing any other penalty order that a listening device or record of information or material in connection with which the offence was committed is forfeited to the Crown.

2. (2)

   A listening device or record of information or material forfeited to the Crown pursuant to an order under subsection (1) must be destroyed or disposed of in a manner directed by the Minister.

12Regulations

1. (1)

   The Governor may make such regulations as are contemplated by this Act or as are necessary or expedient for the purposes of this Act.

2. (2)

   Without limiting the effect of subsection (1), those regulations may make provision—

   1. (a)

      relating to warrants, their form and proceedings in connection with warrants; and

   2. (b)

      relating to the control and management of information or material in the possession of an investigating agency derived from the use of listening or surveillance devices, including access to and the destruction of such information or material; and

   3. (c)

      for the imposition of fines, not exceeding $5 000, for offences against the regulations.

Legislative history

Notes

• •

  Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.

• •

  Earlier versions of this Act (historical versions) are listed at the end of the legislative history.

• •

  For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or Devices Act 1972

  Repeal of Act

  The Listening and Surveillance Devices Act 1972 was repealed by Sch 1 cl 4(1) of the Surveillance Devices Act 2016 on 18.12.2017.

  Principal Act and amendments

  Year	No	Title	Assent	Commencement
  1972	112	Listening Devices Act 1972	23.11.1972	2.4.1973 (Gazette 8.3.1973 p856)
  1975	40	Listening Devices Act Amendment Act 1974	10.4.1975	10.4.1975
  1989	29	Listening Devices Act Amendment Act 1989	4.5.1989	8.5.1989 (Gazette 4.5.1989 p1198)
  2001	15	Listening Devices (Miscellaneous) Amendment Act 2001	17.5.2001	1.1.2003 (Gazette 12.12.2002 p4554)
  2004	7	Australian Crime Commission (South Australia) Act 2004	8.4.2004	Sch 1 (cll 3—9)—6.5.2004 (Gazette 6.5.2004 p1227)
  2005	80	Controlled Substances (Serious Drug Offences) Amendment Act 2005	8.12.2005	Sch 1 (cll 5 & 6)—3.12.2007 (Gazette 22.11.2007 p4294)
  2009	84	Statutes Amendment (Public Sector Consequential Amendments) Act 2009	10.12.2009	Pt 85 (s 201)—1.2.2010 (Gazette 28.1.2010 p320)
  2012	52	Independent Commissioner Against Corruption Act 2012	6.12.2012	Sch 3 (cll 22—35)—20.12.2012 (Gazette 20.12.2012 p5742)
  2016	60	Police Complaints and Discipline Act 2016	8.12.2016	Sch 1 (cl 18)—4.9.2017 (Gazette 29.8.2017 p3794)

  Provisions amended since 3 February 1976

  • •

    Legislative history prior to 3 February 1976 appears in marginal notes and footnotes included in the consolidation of this Act contained in Volume 6 of The Public General Acts of South Australia 1837-1975 at page 38.

  Entries that relate to provisions that have been deleted appear in italics.

  Provision	How varied	Commencement
  Long title	amended by 15/2001 s 3	1.1.2003
  s 1	amended by 15/2001 s 4	1.1.2003
  s 2	deleted by 15/2001 s 16 (Sch)	1.1.2003
  s 3
  ACC	inserted by 7/2004 Sch 1 (cl 3(1))	6.5.2004
  associated equipment	inserted by 15/2001 s 5(a)	1.1.2003
  chief officer	inserted by 52/2012 Sch 3 cl 22(1)	20.12.2012
  declared listening device	amended by 15/2001 s 16 (Sch)	1.1.2003
  investigating agency	inserted by 52/2012 Sch 3 cl 22(2)	20.12.2012
  listening device	substituted by 15/2001 s 5(b)	1.1.2003
  member of the staff of the ACC	inserted by 7/2004 Sch 1 (cl 3(2))	6.5.2004
  officer	inserted by 52/2012 Sch 3 cl 22(3)	20.12.2012
  premises	inserted by 15/2001 s 5(b)	1.1.2003
  publish	inserted by 15/2001 s 5(c)	1.1.2003
  relevant investigation	inserted by 15/2001 s 5(c)	1.1.2003
  relevant proceeding	inserted by 15/2001 s 5(c)	1.1.2003
  amended by 52/2012 Sch 3 cl 22(4)	20.12.2012
  review agency	inserted by 52/2012 Sch 3 cl 22(5)	20.12.2012
  amended by 60/2016 Sch 1 cl 18	4.9.2017
  serious offence	inserted by 15/2001 s 5(c)	1.1.2003
  amended by 80/2005 Sch 1 cl 5	3.12.2007
  surveillance device	inserted by 15/2001 s 5(c)	1.1.2003
  telephone	inserted by 15/2001 s 5(c)	1.1.2003
  tracking device	inserted by 15/2001 s 5(c)	1.1.2003
  vehicle	inserted by 15/2001 s 5(c)	1.1.2003
  visual surveillance device	inserted by 15/2001 s 5(c)	1.1.2003
  s 4	amended by 29/1989 s 3	8.5.1989
  amended by 15/2001 ss 6, 16 (Sch)	1.1.2003
  s 5	amended by 29/1989 s 4	8.5.1989
  substituted by 15/2001 s 7	1.1.2003
  s 6	substituted by 29/1989 s 5	8.5.1989
  s 6(1)	substituted by 15/2001 s 8(a)	1.1.2003
  s 6(2)	substituted by 15/2001 s 8(a)	1.1.2003
  amended by 7/2004 Sch 1 (cl 4(1)—(3))	6.5.2004
  substituted by 52/2012 Sch 3 cl 23(1)	20.12.2012
  s 6(3) and (4)	substituted by 15/2001 s 8(a)	1.1.2003
  s 6(6) and (7)	substituted by 15/2001 s 8(b)	1.1.2003
  s 6(7a) and (7b)	inserted by 15/2001 s 8(b)	1.1.2003
  s 6(8)	amended by 7/2004 Sch 1 (cl 4(4))	6.5.2004
  substituted by 52/2012 Sch 3 cl 23(2)	20.12.2012
  s 6(9)	substituted by 15/2001 s 8(a)	1.1.2003
  amended by 7/2004 Sch 1 (cl 4(5))	6.5.2004
  substituted by 52/2012 Sch 3 cl 23(2)	20.12.2012
  s 6A	inserted by 29/1989 s 5	8.5.1989
  substituted by 15/2001 s 9	1.1.2003
  s 6AB	inserted by 15/2001 s 9	1.1.2003
  amended by 52/2012 Sch 3 cl 24	20.12.2012
  ss 6AC	inserted by 15/2001 s 9	1.1.2003
  s 6AC(1)	substituted by 52/2012 Sch 3 cl 25	20.12.2012
  s 6B	inserted by 29/1989 s 5	8.5.1989
  s 6B(1)	amended by 15/2001 s 10(a)—(e)	1.1.2003
  amended by 52/2012 Sch 3 cl 26(1)—(3)	20.12.2012
  s 6B(1a)	inserted by 15/2001 s 10(f)	1.1.2003
  s 6B(1b)	inserted by 15/2001 s 10(f)	1.1.2003
  amended by 52/2012 Sch 3 cl 26(1), (4), (5)	20.12.2012
  s 6B(2)	amended by 15/2001 s 10(g)	1.1.2003
  amended by 52/2012 Sch 3 cl 26(1), (6)	20.12.2012
  s 6B(3)	amended by 15/2001 s 10(h)	1.1.2003
  amended by 7/2004 Sch 1 (cl 5)	6.5.2004
  s 6C	inserted by 29/1989 s 5	8.5.1989
  substituted by 15/2001 s 11	1.1.2003
  amended by 7/2004 Sch 1 (cl 6)	6.5.2004
  amended by 52/2012 Sch 3 cl 27	20.12.2012
  s 6D	inserted by 15/2001 s 11	1.1.2003
  s 6D(1)	amended by 52/2012 Sch 3 cl 28(1), (2)	20.12.2012
  s 6D(2)	amended by 52/2012 Sch 3 cl 28(3), (4)	20.12.2012
  s 6D(3)	amended by 52/2012 Sch 3 cl 28(5)	20.12.2012
  s 6E	inserted by 15/2001 s 11	1.1.2003
  s 7
  s 6E(1)—(3)	substituted by 52/2012 Sch 3 cl 29(1)

20.12.2012
s 6E(6)	substituted by 52/2012 Sch 3 cl 29(2)	20.12.2012
s 7(1)	amended by 29/1989 s 6(a)	8.5.1989
amended by 15/2001 ss 12(a), 16 (Sch)	1.1.2003
amended by 52/2012 Sch 3 cl 30(1)	20.12.2012
s 7(2)	amended by 29/1989 s 6(b)	8.5.1989
substituted by 15/2001 s 12(b)	1.1.2003
amended by 7/2004 Sch 1 (cl 7(1), (2))	6.5.2004
substituted by 52/2012 Sch 3 cl 30(2)	20.12.2012
s 7(3)	inserted by 15/2001 s 12(b)	1.1.2003
amended by 7/2004 Sch 1 (cl 7(3))	6.5.2004
amended by 52/2012 Sch 3 cl 30(3), (4)	20.12.2012
s 8
s 8(1)	amended by 15/2001 s 16 (Sch)	1.1.2003
amended by 52/2012 Sch 3 cl 31(1), (2)	20.12.2012
s 8(2)	amended by 29/1989 s 7(a)	8.5.1989
amended by 15/2001 ss 13, 16 (Sch)	1.1.2003
amended by 52/2012 Sch 3 cl 31(3)	20.12.2012
s 8(3)	amended by 29/1989 s 7(b)	8.5.1989
amended by 15/2001 s 16 (Sch)	1.1.2003
s 8(4)	substituted by 15/2001 s 16 (Sch)	1.1.2003
s 8(5)	amended by 15/2001 s 16 (Sch)	1.1.2003
amended by 52/2012 Sch 3 cl 31(4)	20.12.2012
s 8(6)	substituted by 29/1989 s 7(c)	8.5.1989
amended by 15/2001 s 16 (Sch)	1.1.2003
amended by 84/2009 s 201	1.2.2010
s 8(7)	inserted by 29/1989 s 7(c)	8.5.1989
substituted by 15/2001 s 16 (Sch)	1.1.2003
s 9	deleted by 29/1989 s 8	8.5.1989
inserted by 15/2001 s 14	1.1.2003
s 9(1)	amended by 7/2004 Sch 1 (cl 8)	6.5.2004
(a)—(c) deleted by 52/2012 Sch 3 cl 32(1)	20.12.2012
amended by 52/2012 Sch 3 cl 32(2)	20.12.2012
s 9(2)	amended by 52/2012 Sch 3 cl 32(3), (4)	20.12.2012
s 10	substituted by 15/2001 s 14	1.1.2003
amended by 7/2004 Sch 1 (cl 9)	6.5.2004
amended by 52/2012 Sch 3 cl 33(1), (2)	20.12.2012
s 11
s 11(1)	amended by 15/2001 s 16 (Sch)	1.1.2003
amended by 52/2012 Sch 3 cl 34(1), (2)	20.12.2012
s 11(2)	amended by 15/2001 s 16 (Sch)	1.1.2003
s 12	inserted by 15/2001 s 15	1.1.2003
s 12(2)	amended by 52/2012 Sch 3 cl 35	20.12.2012

Transitional etc provisions associated with Act or amendments

Controlled Substances (Serious Drug Offences) Amendment Act 2005, Sch 1

6Transitional provision

An amendment to the principal Act effected by a provision of this Act only applies in relation to an offence if the offence is committed on or after the commencement of the provision.

Historical versions

Reprint No 1—8.5.1989

Reprint No 2—1.1.2003

6.5.2004

3.12.2007

1.2.2010

20.12.2012