Listening Devices Amendment Act 1996 (NSW)
New South Wales
Listening Devices Amendment Act
1996 No 118
Contents
Page
1 Name of Act 2 2 Commencement 2 3 Amendment of Listening Devices Act 1984 No 69 2
Schedule 1 Amendments 3
New South Wales
Listening Devices Amendment Act
1996 No 118
Act No 118, 1996
An Act to amend the Listening Devices Act 1984 in connection with the grant of warrants authorising the use of listening devices; and for other purposes. [Assented to 3 December 1996]
| Section 1 | Listening Devices Amendment Act 1996 No 118 |
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Listening Devices Amendment Act 1996.
2 Commencement
This Act commences on a day to be appointed by proclamation.
3 Amendment of Listening Devices Act 1984 No 69
The Listening Devices Act 1984 is amended as set out in
Schedule 1.
Listening Devices Amendment Act 1996 No 118
Amendments Schedule 1 Schedule 1 Amendments
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
exercise a function includes perform a duty. function includes a power, authority or duty.
[2] Sections 3A and 3B
Insert after section 3:
3A Judges
In this Act:
eligible Judge means a Judge in relation to whom a
consent under subsection (2) and a declaration under
subsection (3) are in force.
Judge means a person who is a Judge of the Supreme
court.
A Judge may, by instrument in writing, consent to be nominated by the Attorney General under subsection (3).
The Attorney General may, by instrument in writing, declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.
An eligible Judge has, in relation to the exercise of a function conferred on an eligible Judge by this Act, the
same protection and immunity as a Judge of the Supreme Court has in relation to proceedings in the Supreme court. A Judge who has given consent under this section may, by instrument in writing, revoke the consent. The Attorney General may, by instrument in writing, amend or revoke a declaration under this section.
Listening Devices Amendment Act 1996 No 118
| Schedule 1 | Amendments |
3B Other judicial officers
In this Act:
eligible judicial officer means a judicial officer in
relation to whom a consent under subsection (2) and a
declaration under subsection (3) are in force.
judicial officer means a person who is a Judge of the
District Court or a Magistrate.
A judicial officer may, by instrument in writing, consent to be nominated by the Attorney General under subsection (3).
The Attorney General may, by instrument in writing, declare judicial officers in relation to whom consents are in force under subsection (2) to be eligible judicial officers for the purposes of this Act.
An eligible judicial officer has, in relation to the exercise of a function conferred on an eligible judicial officer by this Act, the same protection and immunity as:
(a)
in the case of a person who is a Judge of the District Court-a Judge of the District Court has in relation to proceedings in the District Court, or
(b)
in the case of a person who is a Magistrate -a Magistrate has in relation to proceedings in a Local Court.
A judicial officer who has given consent under this section may, by instrument in writing, revoke the consent. The Attorney General may, by instrument in writing, amend or revoke a declaration under this section.
Section 16 Warrants authorising use of listening devices
Omit “the Court” from section 16 (1).
Insert instead “an eligible Judge”.Listening Devices Amendment Act 1996 No 118
Amendments Schedule 1
[4] Section 16 (2) Omit “the Court”. Insert instead “the eligible Judge”.
[5] Section 16 (3)
Omit “the Court” where firstly occurring.
Insert instead “an eligible Judge”.[6] Section 16 (3)
Omit “the Court” where secondly occurring.
Insert instead “the eligible Judge”.[7] Section 16 (4) and (5)
Omit “the Court” wherever occurring.
Insert instead “an eligible Judge”.[8] Section 16 (6A)
Insert after section 16 (6):
(6A) A warrant under this section may be in or to the effect of
the form set out in Schedule 2.
[9] Section 16 (7)
Omit the subsection. Insert instead:
(7)
The regulations may provide that, in such circumstances as are prescribed, the functions of an eligible Judge under this section may be exercised by an eligible judicial officer. For that purpose a reference in sections 16, 17, 19 and 20A to an eligible Judge is to be read and construed as a reference to an eligible judicial officer.
Listening Devices Amendment Act 1996 No 118
| Schedule 1 | Amendments |
Section 17 Particulars of warrants sought under section 16 to be notified to Attorney General
Omit “the Court” from section 17 (2).
Insert instead “the eligible Judge”.
Section 18 Radio/telephone warrants
Omit “the Court” from section 18 (2).
Insert instead “an eligible Judge”.
Section 18 (3)
Omit “The Court”. Insert instead “An eligible Judge”.
Section 18 (3)
Omit “the Court”. Insert instead “the eligible Judge”.
Section 18 (4)
Omit “the Court”. Insert instead “an eligible Judge”.
Section 18 (5)
Omit “the Court” where firstly occurring.
Insert instead “an eligible Judge”.
Section 18 (5)
Omit “the Court” where secondly and thirdly occurring.
Insert instead “the eligible Judge”.
Section 18 (6) Omit “The Court”. Insert instead “An eligible Judge”.
Section 18 (7)
Omit “the Court” where firstly occurring.
Insert instead “an eligible Judge”.
Section 18 (7)
Omit “the Court” where secondly occurring.
Insert instead “the eligible Judge”.Listening Devices Amendment Act 1996 No 118
Amendments Schedule 1 Section 18 (9)
Omit the subsection. Insert instead:
(9)
The regulations may provide that, in such circumstances as are prescribed, the functions of an eligible Judge under this section may be exercised by an eligible judicial officer. For that purpose a reference in sections 18, 19 and 20A to an eligible Judge is to be read and construed as a reference to an eligible judicial officer.
Section 19 Reports
Omit “the Court” from section 19 (1).
Insert instead “an eligible Judge”.
Section 19 (2)
Omit “the Court” where firstly and secondly occurring.
Insert instead “an eligible Judge”.
Section 20 Requirement to inform subject of surveillance
Omit “the Court” where firstly occurring in section 20 (1).
Insert instead “an eligible Judge”.
Section 20 (1)
Omit “the Court” where secondly and thirdly occurring. Insert instead “the eligible Judge”.
Section 20 (2)
Omit “The Court”. Insert instead “An eligible Judge”.
Section 20 (2)
Omit “the Court”. Insert instead “the eligible Judge”.
Listening Devices Amendment Act 1996 No 118
| Schedule 1 | Amendments |
[27] Section 20 (3)
Omit “the Court”. Insert instead “the eligible Judge”.
Section 20A Use of assumed names or code-names in warrants
Omit “The Court” from section 20A (1).
Insert instead “An eligible Judge”.[29] Section 20A (1)
Omit “the Court”. Insert instead “the eligible Judge”.
Section 21
Omit the section. Insert instead:
21 Procedure under this Part
Applications under this Part and any other matters arising under this Part are to be dealt with in the absence of the public.
[31] Section 31 Regulations
Omit section 31 (1) (b). Insert instead:
(b)
warrants under Part 4 and the procedure under that Part in connection with any such warrants, including:
(i)
the manner of making applications under that Part, and
(ii)
the manner in which warrants are granted or directions are given under that Part, and
(iii)
the prohibition of the publication or disclosure of any matter connected with any such procedure.
Listening Devices Amendment Act 1996 No 118
Amendments Schedule 1 [32] Schedule 1 Savings and transitional provisions
Insert after clause 5:
6 Warrants granted before commencement of Listening
Devices Amendment Act 1996
In this clause:
previous warrant means a warrant or purported warrant:
(a) that was granted or that purported to be granted by the Supreme Court of New South Wales under Part 4 before the relevant date, and (b) that was signed or authorised by a Judge of the Supreme Court, and (c) that would have been a valid warrant disregarding any invalidity arising from the fact that it was:
(i) granted by the Supreme Court, or (ii) signed or authorised by a Judge of the Supreme Court, or both.
relevant date means the date of commencement of the
Listening Devices Amendment Act 1996. after the relevant date) of a listening device pursuant to a
This Act applies on and after the relevant date to and in
respect of previous warrants as if they had been grantedby eligible Judges.
previous warrant. This subclause does not affect the
generality of section 5 (2).
Accordingly, for the purposes of
(a) this Act (including section 13), and (b) the Evidence Act 1995 (including section 138), and (c) any other Act or law, a listening device used (before, on or after the relevant date) in accordance with a previous warrant is taken not to have been used, or not to be used, in contravention of this Act (including section 5).
Listening Devices Amendment Act 1996 No 118
| Schedule 1 | Amendments |
[33] Schedule 2
Insert after Schedule 1:
Schedule 2 Form of warrant
(Section 16)
I, being an eligible Judge within the meaning of the Listening Devices Act 1984, having been satisfied that there are reasonable grounds for the suspicion or belief of (name) that the prescribed offence(s) set out in paragraph (1) has been or is about to be or is likely to be committed:
specify as the prescribed offence(s) in respect of
which the warrant is granted the following:
(set out the prescribed offence(s)).
authorise the use by (names) and on his or her
behalf (names or descriptions of persons) of a
listening device by which to record or listen to the
private conversation of (name) at (description of
premises) subject to the condition(s) that:
(a)(b)
(set out condition(s)).
authorise the installation of a listening device by
(name) on (description of premises).
authorise and require the retrieval of the listening
device.
authorise entry on to (description of premises)
between (times of day) (or at any time of day) forthe purpose of that installation and retrieval,
subject to the condition(s)). that: (a) (b) (set out condition(s)).
fix the period am on 19 until pm on 19 (or as the case may be) as the period during which this warrant is to be in force.
Listening Devices Amendment Act 1996 No 118
Amendments Schedule 1
(7)
fix (period after event) as the period within which the person authorised to use the listening device pursuant to this warrant is required to report pursuant to section 19 of the Listening Devices Act 1984 to an eligible Judge and to the Attorney General.
Dated 19 .
(signature)
(name)
Judge
[Minister’s second reading speech made in— Legislative Council on 20 November 1996 Legislative Assembly on 27 November 1996]
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