Criminal Procedure Legislation

The Telecommunications (Interception) Tasmania Act 1999, the Police Powers (Controlled Operations) Act2006, and the Police Powers (Surveillance Devices) Act 2006 are statutes that concern criminal procedure: the activities of police in investigating criminal matters.

Police powers under these Acts tend to be concerned with listening to, observing, or recording the interactions of people, some of who will be under a criminal investigation, and others who are incidental to that criminal investigation by association. The Telecommunications (Interception) Tasmania Act 1999 enables the Tasmania Police Service to be classified as an agency for the purposes of the Commonwealth Act of the same name. The Commonwealth Act creates powers to intercept telecommunications, i.e. listen to conversations. The Tasmanian Act creates obligations to do with storage of records, inspection of records, and the keeping and destruction of restricted records. A restricted record is a record in the possession of the Tasmania Police, created pursuant to the Act.

Section 8 of the Telecommunications Act stipulates that restricted records are required to be kept in secure place to prevent access by people not entitled to deal with it, and these records must be destroyed once the Commissioner of Police is satisfied that there is no likely permitted use for the records.

The Police Powers (Controlled Operations) Act 2006 concerns operations conducted or intended to be conducted for the purpose of obtaining evidence that may lead to a prosecution of a person for a relevant offence, that also involves or may involve controlled conduct. Controlled conduct is conduct that would otherwise constitute a criminal offence. This Act involves authorisation of, for example, undercover officers to engage in criminal conduct in an investigation, or even something as simple as trespass. Obviously, this can impinge on the privacy of people investigated.

There are strict requirements for authorisation of controlled operations (s9). Enough information must be provided to allow the decision maker to decide whether or not to grant the application. This would be information that illustrated the likelihood of obtaining evidence, the type of offences suspected, and the public interest in preventing the continuation of the offences.

Importantly, the Act contains provisions to do with record keeping (Part 4, Division 2), and unauthorised disclosure of information (s26). A person investigated and a person investigating have protection in that a person who discloses any information to do with a controlled operation is guilty of an offence punishable by up to 2 years imprisonment. Document keeping requires record keepers to maintain all the documentation relating to authorisation of controlled operations under the Act. However, there are no requirements for destruction of documents.

The Police Powers (Surveillance Devices) Act 2006 contains controls on the use, communication and publication of information obtained through use of a surveillance device warrant issued under the Act. Section 33(1) is directed toward where information, whether protected or not, is published, whether or not it jeopardises an investigation. The penalty is up to 2 years imprisonment. Section 33(2) where publication of information prejudices or will prejudice the effective conduct an investigation or the health and safety of any person attracts a maximum penalty of 10 years imprisonment. Both provisions require intentionality of the act or recklessness. These provisions do not apply to information that has been disclosed in court or have entered the public domain (s33(3)). Section 34(1)(b) provides for the destruction of records or reports obtained by use of a surveillance device if it is not likely to be used for an investigation, making a decision to prosecute or other deliberations, investigation of a complaint, or any criminal proceeding (see: s33(4)).