Generally speaking, no. Police can’t intercept phone calls unless they have sufficient reason to do so. There are essentially three times when police can do this:
- When the parties being recorded consent;
- When police have a warrant; or
- In an emergency situation
According to the Surveillance Devices Act, police may be granted surveillance warrants which allow them to listen to your phone calls.
The Surveillance Act was brought in to combat terrorism, murder and drug manufacture but it is clear that this power is no longer limited to pursuing these serious charges.
Under this act, all state police forces can listen into phone calls with warrants, as well as federal bodies such as the Australian Federal Police, the Australian Crime Commission and ICAC.
In order to get a warrant, the law enforcement officer must apply to a magistrate or judge.
The magistrate or judge may grant a warrant if there are reasonable grounds for the suspicion or belief founding the application.
In considering this, they must have regard to the following factors:
- The nature and gravity of the offence
- The extent to which privacy will be affected
- The existence of other alternate means of obtaining the evidence
- How useful the information that could be obtained is likely to be
- Any previous warrant sought in connection with the same offence
In exceptional circumstances, police may act without a warrant. This includes situations where there is a serious risk to a person or to property or it is necessary to recover a child subject to a recovery order.
In addition, there is an exception for some offences which risk a loss of evidence such as drug offences, terrorism, espionage, sexual servitude and aggravated people smuggling.
These are all classed as emergency situations and so don’t need a warrant, although the law enforcement officer must send an affidavit to the court within 72 hours.
In order to use this power, the law enforcement officer must have reasonable grounds for suspecting that:
- The imminent threat of serious violent to a person, substantial damage to property or a serious narcotics offence exists
- A surveillance device is necessarily immediately to deal with the threat
- The circumstances are so serious and urgent that the use of such a device is justified; and
- It is not practical in the circumstances to apply for a warrant
Last year, only two emergency uses surveillance devices took place so these are fairly uncommon, but the use of warrants is expanding.
However police must follow certain rules and procedures when using surveillance devices.
Accountability is a large part of the scheme which gives police this unprecedented power. Police are supposed to keep records and reports when using surveillance devices.
Even emergency use of surveillance devices must be documented and reported to the court. It is not permissible to use a warrant after it expires
When police use surveillance devices improperly or illegally, the evidence may be inadmissible in court.
If you have been charged with an offence and the police obtained evidence of this through improper use of surveillance devices you may be able to prevent the evidence from being allowed at your hearing.
According to NSW law, improper evidence is excluded from the courtroom unless the value of the evidence outweighs the undesirability of condoning the improper obtaining of evidence.
Surveillance devices have enjoyed popularity amongst the NSW police force since the 1990s, but between 2010 and 2013, the number of surveillance devices being used has doubled. The total number of devices used last year was 8,824.
According to the most recent Ombudsman report on the surveillance act, 73% of the warrants obtained yielded relevant information during an investigation. This makes it easy to understand why police love using them so much!