Radiocommunications (Public Mobile Telecommunications Services Surveillance Device) Exemption Determination 2011
Radiocommunications Act 1992
The AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY makes this Determination under subsection 27 (2) of the Radiocommunications Act 1992.
Dated 15 December 2011
Chris Chapman
[signed]
Member
Richard Bean
[signed]
Member/General Manager
Australian Communications and Media Authority
1 Name of Determination
This Determination is the Radiocommunications (Public Mobile Telecommunications Services Surveillance Device) Exemption Determination 2011.
2 Commencement
This Determination commences on the day after it is registered.
Note: All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.
3 Definitions
In this Determination:
Act means the Radiocommunications Act 1992.
Assistant Commissioner has the same meaning as in the NSWCC Act.
Australian Crime Commission means the Australian Crime Commission established by the Australian Crime Commission Act 2002.
Commissioner has the same meaning as in the NSWCC Act.
data surveillance device has the same meaning as in the Surveillance Devices Act 2007 of New South Wales.
New South Wales Crime Commission or NSWCC means the New South Wales Crime Commission established by the NSWCC Act.
NSWCC Act means the New South Wales Crime Commission Act 1985 of New South Wales.
NSWCC investigation has the same meaning as “investigation” in the NSWCC Act.
NSWCC staff means the staff of the NSWCC as provided for in subsection 32(1) of the NSWCC Act.
NSW Controlled Operations Act means the Law Enforcement (Controlled Operations) Act 1997 of New South Wales.
PMTS surveillance device means a data surveillance device designed to search for, identify, locate and track items used in the delivery of public mobile telecommunications services.
public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.
surveillance device warrant has the same meaning as in the Surveillance Devices Act 2007 of New South Wales.
4 Exemption in relation to certain investigative activities by NSWCC staff
(1) Any act or omission by a NSWCC investigator in relation to the use, operation, possession or supply of a PMTS surveillance device is exempt from Parts 3.1, 4.1 and 4.2 of the Act in the circumstances specified in subsection (3).
(2) For the purposes of this section, NSWCC investigator means a person who satisfies all of the following:
(a) they are a member of the NSWCC staff;
(b) they are performing a function or duty in relation to the NSWCC; and
(c) they have been trained in the use of the PMTS surveillance device.
(3) For the purposes of subsection (1), all of the following circumstances must exist:
(a) the act is done, or the omission occurs, in the course of a NSWCC investigation;
(b) the act is done, or the omission occurs, for the purposes of that NSWCC investigation; and
(c) in the case of the use or operation of a PMTS surveillance device – either:
(i) the use or operation of the PMTS surveillance device is authorised by a surveillance device warrant; or
(ii) the use or operation of the PMTS surveillance device is, by reason of section 16 of the NSW Controlled Operations Act, not unlawful nor an offence nor corrupt conduct.
5 Exemption in relation to the provision of technological expertise by NSWCC staff
(1) Any act or omission by a NSWCC technician in relation to the use, operation, possession or supply of a PMTS surveillance device is exempt from Parts 3.1, 4.1 and 4.2 of the Act in the circumstances specified in subsection (3).
(2) For the purposes of this section, NSWCC technician means a person who satisfies all of the following:
(a) they are a member of the NSWCC staff;
(b) they are performing a function or duty in relation to the NSWCC; and
(c) they have been trained in the use of the PMTS surveillance device.
(3) For the purposes of subsection (1), all of the following circumstances must exist:
(a) the act is done, or the omission occurs, in the course of the NSWCC technician providing the Australian Crime Commission, the Australian Federal Police or the police force of a State or Territory, with technological expertise in relation to the PMTS surveillance device;
(b) the provision of that technological expertise has been approved by the Commissioner or an Assistant Commissioner; and
(c) the provision of that technological expertise is in accordance with the function conferred upon the NSWCC by paragraph 6(1)(d) of the NSWCC Act to disseminate technological expertise.
Note: The use or operation of a PMTS surveillance device will also be governed by, and must comply with, the laws of the jurisdiction in which the PMTS surveillance device is used or operated. For example, depending upon the circumstances the use or operation may also need to comply with laws dealing with the use of surveillance devices, of which the following are some examples: Surveillance Devices Act 1999 of Victoria, Surveillance Devices Act 1998 of Western Australia and the Police Powers and Responsibilities Act 2000 of Queensland.
6 Exemption in relation to certain training activities involving NSWCC staff
(1) Any act or omission by a NSWCC trainee or a NSWCC instructor in relation to the use, operation, possession or supply of a PMTS surveillance device is exempt from Parts 3.1, 4.1 and 4.2 of the Act in the circumstances specified in subsection (4).
(2) For the purposes of this section, NSWCC trainee means a person who satisfies all of the following:
(a) they are a member of the NSWCC staff; and
(b) they are performing a function or duty in relation to the NSWCC.
(3) For the purposes of this section, NSWCC instructor means a person who satisfies all of the following:
(a) they provide training to a NSWCC trainee; and
(b) they are performing a function or duty in relation to the NSWCC.
(4) For the purposes of subsection (1), the circumstances specified are that the act is done, or the omission occurs, in the course of a NSWCC instructor providing training to a NSWCC trainee in the use or operation of the PMTS surveillance device.
7 Exemption in relation to certain maintenance activities by NSWCC staff
(1) Any act or omission by a NSWCC maintenance officer in relation to the use, operation, possession or supply of a PMTS surveillance device is exempt from Parts 3.1, 4.1 and 4.2 of the Act in the circumstances specified in subsection (3).
(2) For the purposes of this section, NSWCC maintenance officer means a person who satisfies all of the following:
(a) they are a member of the NSWCC staff;
(b) they are performing a function or duty in relation to the NSWCC; and
(c) they have been trained in the use of the PMTS surveillance device.
(3) For the purposes of subsection (1), the circumstances are that the act is done, or the omission occurs, in the course of the NSWCC maintenance officer undertaking maintenance or testing of the PMTS surveillance device.
8 Exemption in relation to certain ancillary activities by suppliers
(1) Any act or omission by a supplier in relation to the:
(a) supply of a PMTS surveillance device; or
(b) possession of a PMTS surveillance device for the purpose of its supply
to the NSWCC is exempt from Parts 3.1, 4.1 and 4.2 of the Act in the circumstances specified in subsection (3).
(2) For the purposes of this section, supplier means a person who satisfies all of the following:
(a) the person has a written agreement with the NSWCC for the supply of the PMTS surveillance device by that person to the NSWCC; and
(b) the person is performing a function or duty in relation to the NSWCC.
(3) For the purposes of subsection (1), both of the following circumstances must exist:
(a) the act is done, or the omission occurs, in accordance with the agreement referred to in subsection (2); and
(b) the act or omission does not involve the use or operation of the PMTS surveillance device by the supplier.
