Commonwealth Numbered Acts

CUSTOMS AMENDMENT ACT 1979 No. 92 of 1979 - SECT 8

8. After Division 1 of Part XII of the Principal Act the following Division is
inserted:

''Division 1A-The Use of Listening Devices in relation to Narcotics Offences
Interpretation
''219A. (1) In this Division-

'Judge' means-

   (a)  a Judge of the Federal Court of Australia or of the Supreme Court of
        the Australian Capital Territory;

   (b)  a Judge of the Supreme Court of a State in respect of whom an
        appropriate arrangement in force under section 11 is applicable; or

   (c)  a Judge of the Supreme Court of the Northern Territory who is not a
        Judge referred to in paragraph (a) and in respect of whom an
        appropriate arrangement in force under section 11 is applicable;

'listening device' means any instrument, device or equipment capable of being
used, whether alone or in conjunction with any other instrument, device or
equipment, to record or listen to spoken words;

'narcotics offence' means an offence punishable as provided by section 235.

''(2) In this Division, unless the contrary intention appears-

   (a)  a reference to narcotics inquiries that are being made by officers of
        Customs shall be read as a reference to-

        (i)    inquiries that are being made by officers of Customs in
               relation to a narcotics offence that has been committed or is
               reasonably suspected of having been committed; or

        (ii)   if there are circumstances reasonably giving rise to the
               suspicion that a narcotics offence is likely to be
               committed-inquiries that are being made by officers of Customs
               in relation to the likely commission of that offence; and

   (b)  a reference to narcotics inquiries that have been made by officers of
        Customs shall be read as a reference to-

        (i)    inquiries that have been made by officers of Customs in
               relation to a narcotics offence that has been committed or was
               reasonably suspected of having been committed; or

        (ii)   if there have been circumstances that reasonably gave rise to
               the suspicion that a narcotics offence was likely to be
               committed-inquiries that have been made by officers of Customs
               in relation to the likely commission of that offence. Use of
               listening devices
''219B. (1) It is unlawful for an officer of Customs to use, for the purposes
of narcotics inquiries that are being made by officers of Customs, a listening
device for the purpose of listening to or recording words while they are being
spoken by a person unless-

   (a)  he is the speaker of the words or is a person, or is included in a
        class or group of persons, by whom the speaker of the words intends,
        or should reasonably expect, the words to be heard;

   (b)  not being a person permitted to listen to or record the words under
        paragraph (a), he does so with the consent, express or implied, of
        such a person; or

   (c)  he does so in accordance with a warrant issued under this Division.

''(2) It is unlawful for a person acting by arrangement with an officer of
Customs to use, for the purpose of inquiries that are being made by officers
of Customs, a listening device for the purpose of listening to or recording
words while they are being spoken by a person unless he is the speaker of the
words or is a person, or is included in a class or group of persons, by whom
the speaker of the words intends, or should reasonably expect, the words to be
heard.

''(3) It is the duty of the Comptroller to take reasonable steps to ensure
that sub-sections (1) and (2) are not contravened.

''(4) Notwithstanding any law of a State or Territory-

   (a)  an officer of Customs does not act unlawfully by reason only of using
        a listening device as referred to in sub-section (1) in circumstances
        to which paragraph (a), (b) or (c) of that sub-section is applicable;
        and

   (b)  a person acting by arrangement with an officer of Customs does not act
        unlawfully by reason only of using a listening device as referred to
        in sub-section (2) in circumstances in which the use of that device is
        not declared to be unlawful by that sub-section.

''(5) Where, upon application being made to a Judge by an officer of Customs
for the issue of a warrant under this section authorizing the use of a
listening device in relation to a particular person, the Judge is satisfied,
by information on oath, that-

   (a)  the person has committed, or is suspected on reasonable grounds of
        having committed, or of being likely to commit, a narcotics offence;
        and

   (b)  the use by officers of Customs of a listening device to listen to or
        record words spoken by or to that person will, or is likely to, assist
        officers of Customs in or in connection with-

        (i)    inquiries that are being made in relation to a narcotics
               offence that the person has committed or is reasonably
               suspected of having committed; or

        (ii)   if there are circumstances reasonably giving rise to the
               suspicion that the person is likely to commit a narcotics
               offence-inquiries that are being made in relation to the likely
               commission, by that person, of that offence, the Judge may, by
               warrant under his hand in accordance with the prescribed form,
               authorize officers of Customs, subject to any conditions or
               restrictions that he sees fit to specify in the warrant, to use
               a listening device for the purpose of listening to or recording
               words spoken by, to or in the presence of that person, and such
               a warrant may authorize officers of Customs to enter any
               premises in which the person is, or is likely to be, for the
               purpose of installing, maintaining, using or recovering a
               listening device or a part of a listening device.

''(6) A Judge may grant a warrant under sub-section (5) authorizing the use of
a listening device for the purpose of listening to or recording words spoken
by, to or in the presence of a person anywhere in Australia.

''(7) Where, upon application being made to a Judge by an officer of Customs
for the issue of a warrant under this section authorizing the use of a
listening device in relation to particular premises, the Judge is satisfied,
by information on oath, that-

   (a)  there are reasonable grounds for suspecting that the premises have
        been, or are likely to be, used in connection with the commission of a
        narcotics offence; and

   (b)  the use by officers of Customs of a listening device to listen to or
        record words spoken by or to persons in those premises will, or is
        likely to, assist officers of Customs in, or in connection with,
        inquiries that are being made in relation to the use, or likely use,
        of the premises in connection with the commission of a narcotics
        offence, the Judge may, by warrant under his hand in accordance with
        the prescribed form, authorize officers of Customs, subject to any
        conditions or restrictions that he sees fit to specify in the warrant,
        to use a listening device for the purpose of listening to or recording
        words spoken by or to any person while the person is in those
        premises, and such a warrant may authorize officers of Customs to
        enter those premises for the purpose of installing, maintaining, using
        or recovering a listening device or a part of a listening device.

''(8) A Judge may grant a warrant under sub-section (7) authorizing the use of
a listening device in respect of premises situated anywhere in Australia.

''(9) Where a warrant under this section authorizes entry on premises, the
warrant shall state whether entry is authorized to be made at any time of the
day or night or only during specified hours and may, if the Judge issuing the
warrant thinks fit, provide that entry may be made without permission first
being sought or demand first being made, and authorize measures that he is
satisfied are necessary for that purpose.

''(10) A warrant under this section shall specify the period for which it is
to remain in force, being a period not exceeding 6 months.

''(11) Sub-section (10) shall not be construed as preventing the issue of any
further warrant.

''(12) Nothing in this section, or in a warrant under this section, applies to
or in relation to the use of a listening device for a purpose that would, for
the purposes of the Telephonic Communications (Interception) Act 1960,
constitute the interception of a communication passing over the telephone
system controlled by the Australian Telecommunications Commission. Information
to be given in support of application for warrant
''219C. Information furnished to a Judge for the purposes of sub-section (5)
or (7) of section 219B-

   (a)  may be given orally or otherwise; and

   (b)  shall include the facts and other grounds on which the applicant
        considers it necessary that the warrant should be issued. Exercise of
        powers under warrant
''219D. (1) The authority conferred by a warrant issued under section 219B on
officers of Customs shall be exercised only by the Comptroller and officers of
Customs approved, for the purposes of that warrant or of warrants issued under
that section, by him or by an authorized officer of Customs.

''(2) In sub-section (1), 'authorized officer of Customs' means an officer of
Customs appointed by the Comptroller, by writing, to be an authorized officer
of Customs for the purposes of this section. Discontinuance of action before
expiration of warrant
''219E. Where, before a warrant under this Division ceases to be in force, the
Comptroller is satisfied that the grounds on which the warrant was issued have
ceased to exist, he shall-

   (a)  forthwith take such steps as are necessary to ensure that action in
        pursuance of the warrant (other than the recovery of a listening
        device or a part of a listening device) is discontinued; and

   (b)  by instrument under his hand, revoke the warrant. Certain information
        not to be disclosed
''219F. (1) A person shall not divulge or communicate to another person, or
make use of or record, any information obtained by using a listening device
for the purposes of narcotics inquiries that are being, or have been, made by
officers of Customs, being information that has come to his knowledge or into
his possession by reason of his being, or having been, an officer of Customs
or by reason of his having entered into an arrangement with an officer of
Customs to use a listening device for the purpose of those inquiries, except
for the purposes of those inquiries.

Penalty: $1,000 or imprisonment for 2 years.

''(2) Notwithstanding sub-section (1), the Comptroller may, in accordance with
the following paragraphs, by himself or by an officer of Customs authorized by
him, communicate information obtained by using a listening device for the
purpose of narcotics inquiries that are being, or have been, made by officers
of Customs-

   (a)  where the information relates, or appears to relate, to the commission
        or intended commission of an offence against the law of the
        Commonwealth or of a State or Territory, being an offence punishable
        by imprisonment for life or for a period, or maximum period, of not
        less than 3 years-the information may be communicated to an officer of
        the Commonwealth Police Force or of the Police Force of a State or
        Territory;

   (b)  where the information relates, or appears to relate, to matters
        relevant to security-the information may be communicated to the person
        holding the office of Director-General of Security under the
        Australian Security Intelligence Organization Act 1956.

''(3) Without limiting the purposes for which a person may, in accordance with
sub-section (1), divulge information, a person may divulge or communicate
information obtained by using a listening device for the purpose of narcotics
inquiries that are being, or have been, made by officers of Customs in
evidence in a proceeding-

   (a)  by way of a prosecution for a narcotics offence or for any other
        offence against the law of the Commonwealth or of a State or Territory
        punishable by imprisonment for life or for a period or maximum period
        of not less than 3 years;

   (b)  by way of an application for an order under sub-section 243B (1); or

   (c)  for the condemnation or recovery of a ship or aircraft, or of goods,
        seized under section 203 in connection with the commission of a
        narcotics offence.

''(4) Where a person is prosecuted before a Court for an offence of a kind
referred to in paragraph (a) of sub-section (3), the Court may, in its
discretion, refuse to permit information referred to in that sub-section to be
given in evidence in the proceedings if it is satisfied that it would be
unfair to the accused to admit the information in evidence. Certain records to
be destroyed
''219G. Where, by virtue of a warrant under this Division, any record or copy
has been made and the Comptroller is satisfied-

   (a)  that the record or copy will not assist, and is not likely to assist,
        officers of Customs in, or in connection with narcotics inquiries that
        are being, or have been, made by them; and

   (b)  that the record or copy is not required, and is not likely to be
        required-

        (i)    in, or in connection with, proceedings with respect to any
               narcotics offence or of a kind referred to in paragraph (b) or
               (c) of sub-section (3) of section 219F; or

        (ii)   in, or in connection with, the exercise by officers of Customs
               of the powers conferred on the Comptroller by sub-section (2)
               of section 219F, the Comptroller shall cause the record or copy
               to be destroyed. Warrants, &c., to be retained
''219H. The Comptroller shall cause to be retained in the records of his
Department all warrants issued under section 219B, all documents furnished to
a Judge in connection with the issue of those warrants, and all instruments
issued under section 219E revoking warrants so issued. Obstruction
''219J. A person shall not, without reasonable excuse, obstruct or hinder a
person acting in pursuance of a warrant under this Division.

Penalty: $1,000. Reports to be made to Minister concerning use of listening
devices
''219K. (1) The Comptroller shall furnish to the Minister a copy of each
warrant issued under section 219B, a copy of all documents furnished to a
Judge in connection with the issue of the warrant and each instrument issued
under section 219E revoking the warrant as soon as practicable after the issue
or revocation of a warrant.

''(2) The Comptroller shall furnish to the Minister, in respect of each
warrant issued under section 219B, a report in writing on the extent to which
action taken under the warrant has assisted officers of Customs in narcotics
inquiries that have been made by them.''.