Surveillance Devices Act 2004 (Cth)

Surveillance Devices Act 2004

No. 152, 2004

Compilation No. 57

Compilation date: 7 January 2025

Includes amendments: Act No. 110, 2024

About this compilation

This compilation

This is a compilation of the Surveillance Devices Act 2004 that shows the text of the law as amended and in force on 7 January 2025 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Purposes 4 Relationship to other laws and matters 5 Schedule(s) 6 Definitions 6A Law enforcement agencies 6B Authorisation of law enforcement officer 6C When a Part 5.3 supervisory order is taken to be in force 6D Succeeding Part 5.3 supervisory orders 6E When a community safety supervision order is taken to be in force 6F Succeeding community safety supervision order 7 State offence that has a federal aspect 7A Criminal network of individuals 8 External Territories 9 Binding the Crown Part 2—Warrants Division 1—Introduction 10 Types of warrant 11 Who may issue etc. warrants? 12 Eligible Judges 13 Nominated ART members Division 2—Surveillance device warrants 14 Application for surveillance device warrant 15 Remote application 16 Determining the application 17 What must a surveillance device warrant contain? 18 What a surveillance device warrant authorises 19 Extension and variation of surveillance device warrant 20 Revocation of surveillance device warrant 21 Discontinuance of use of surveillance device under warrant Division 3—Retrieval warrants 22 Application for retrieval warrant 23 Remote application 24 Determining the application 25 What must a retrieval warrant contain? 26 What a retrieval warrant authorises 27 Revocation of retrieval warrant Division 4—Computer access warrants 27A Application for computer access warrant 27B Remote application 27C Determining the application 27D What must a computer access warrant contain? 27E What a computer access warrant authorises 27F Extension and variation of computer access warrant 27G Revocation of computer access warrant 27H Discontinuance of access under warrant 27J Relationship of this Division to parliamentary privileges and immunities Division 5—Data disruption warrants 27KAA Sunsetting 27KA Application for data disruption warrant 27KB Remote application 27KBA Endorsement of application—Australian Federal Police 27KBB Endorsement of application—Australian Crime Commission 27KC Determining the application 27KD What must a data disruption warrant contain? 27KE What a data disruption warrant authorises 27KF Extension and variation of data disruption warrant 27KG Revocation of data disruption warrant 27KH Discontinuance of access and disruption under warrant 27KJ Relationship of this Division to parliamentary privileges and immunities Division 6—Network activity warrants 27KKA Sunsetting 27KK Application for network activity warrant 27KL Remote application 27KM Determining the application 27KN What must a network activity warrant contain? 27KP What a network activity warrant authorises 27KQ Extension and variation of network activity warrant 27KR Revocation of network activity warrant 27KS Discontinuance of access under warrant 27KT Relationship of this Division to parliamentary privileges and immunities Part 3—Emergency authorisations 27KU Sunsetting—emergency authorisation for disruption of data held in a computer 28 Emergency authorisation—serious risks to person or property 29 Emergency authorisation—urgent circumstances relating to recovery order 30 Emergency authorisation—risk of loss of evidence 31 Record of emergency authorisations to be made 32 Attributes of emergency authorisations 33 Application for approval of emergency authorisation 34 Consideration of application 35 Judge or nominated ART member may approve giving of an emergency authorisation for the use of a surveillance device 35A Judge or nominated ART member may approve giving of an emergency authorisation for access to data held in a computer 35B Judge or nominated ART member may approve giving of an emergency authorisation for disruption of data held in a computer 36 Admissibility of evidence 36A Relationship of this Part to parliamentary privileges and immunities Part 4—Use of certain surveillance devices without warrant 37 Use of optical surveillance devices without warrant 38 Use of surveillance devices without warrant for listening to or recording words in limited circumstances 39 Use and retrieval of tracking devices without warrant in certain circumstances 40 Record of tracking device authorisations to be kept Part 5—Extraterritorial operation of warrants 41 Definitions 42 Extraterritorial operation of surveillance device warrants 43 Evidence obtained from extraterritorial surveillance not to be tendered in evidence unless court satisfied properly obtained 43A Extraterritorial operation of computer access warrants 43B Evidence obtained from extraterritorial computer access not to be tendered in evidence unless court satisfied properly obtained 43C Extraterritorial operation of data disruption warrants 43D Evidence obtained from extraterritorial computer access not to be tendered in evidence unless court is satisfied that the evidence was properly obtained 43E Extraterritorial operation of network activity warrants Part 6—Compliance and monitoring Division 1—Restrictions on use, communication and publication of information 44 What is protected information? 44A What is protected network activity warrant information? 45 Prohibition on use, recording, communication or publication of protected information or its admission in evidence 45A Protected information related to integrity operations 45B Prohibition on use, recording, communication or publication of protected network activity warrant information or its admission in evidence 46 Dealing with records obtained by using a surveillance device or accessing data held in a computer 46AA Dealing with records obtained by accessing data under a network activity warrant 46A Destruction of records—information obtained before a Part 5.3 supervisory order came into force 46B Destruction of records—information obtained before a community safety supervision order came into force 47 Protection of surveillance device technologies and methods 47A Protection of computer access technologies and methods 47B Protection of data disruption technologies and methods 48 Protected information in the custody of a court, tribunal or Royal Commission Division 2—Reporting and record‑keeping 49 Report on each warrant or authorisation 49A Notification to Ombudsman in relation to Part 5.3 warrants or Part 9.10 warrants 49B Notification to Ombudsman in relation to concealment of access under a computer access warrant 49C Notification to Ombudsman of things done under a data disruption warrant 49D Notification to Inspector‑General of Intelligence and Security of things done under a network activity warrant 50 Annual reports 50A Deferral of inclusion of information in annual report 51 Keeping documents connected with warrants, emergency authorisations and tracking device authorisations 52 Other records to be kept 53 Register of warrants, emergency authorisations and tracking device authorisations Division 3—Inspections 54 Appointment of inspecting officers 55 Inspection of records 56 Power to obtain relevant information 57 Ombudsman to be given information and access despite other laws 58 Exchange of information between Ombudsman and State inspecting authorities 59 Delegation by Ombudsman 60 Ombudsman not to be sued 61 Report on inspection 61A Report may cover notified breaches in relation to Part 5.3 warrants or Part 9.10 warrants Division 4—General 62 Evidentiary certificates Part 7—Miscellaneous 63 Delegation by chief officer of law enforcement agency 64 Compensation for loss or injury 64A Person with knowledge of a computer or a computer system to assist access etc. 64B Person with knowledge of a computer or a computer system to assist disruption of data etc. 65 Minor defects in connection with warrant or other authority 65A Protection of persons—control order declared to be void 65B Dealing with information obtained under a warrant or authorisation etc.—control order declared to be void 65C Evidence obtained from access to, or disruption of, data under a data disruption warrant etc. 66 Regulations Schedule 1—Amendment of other legislation and transitional and saving provisions Australian Federal Police Act 1979 Customs Act 1901 Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history