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Police Powers Act 2017

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REPUBLIC OF VANUATU

POLICE POWERS
ACT NO. 37 OF 2017

Arrangement of Sections



REPUBLIC OF VANUATU

Assent: 04/01/2018
Commencement: 11/01/2018

POLICE POWERS
ACT NO. 37 OF 2017

An Act to provide police with certain investigative powers

Be it enacted by the President and Parliament as follows-

PART 1 PRELIMINARY

  1. Interpretation

In this Act, unless the contrary intention appears:

Commissioner has the same meaning as in the Police Act [CAP 105];

computer warrant means a warrant issued under section 14;

Court means the Supreme Court of Vanuatu;

customs officer has the same meaning as in the Customs Act No. 7 of 2013;

interception device means any electronic, mechanical or electromagnetic instrument, apparatus, equipment or other device that is used or is capable of being used to intercept a private communication;

Minister means the Minister responsible for police;

optical surveillance device means any device capable of being used to record visually or observe an activity but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment;

police officer means any member of the Vanuatu Police Force established by the Police Act [CAP 105];

premises includes a place, aircraft, vehicle, boat and ship;

private communication means a communication (whether in oral or written form or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication;

special investigative power means:

(a) an undercover operation; or

(b) a surveillance warrant or urgent surveillance warrant; or

(c) a computer warrant or urgent computer warrant; or

(d) a controlled delivery of property;

specified offence means an offence against a law of Vanuatu for which the maximum penalty is imprisonment for at least 12 months;

surveillance device means an interception device or an optical surveillance device;

surveillance warrant means a warrant issued under section 5;

undercover operation means an operation referred to in section 2;

urgent computer warrant means a warrant issued under section 16;

urgent surveillance warrant means a warrant issued under section 8.

PART 2 SPECIAL INVESTIGATIVE POWERS

Division 1 Undercover operations

  1. Commissioner to authorise undercover operations

(1) The Commissioner may authorise the use of an undercover operation.

(2) The Commissioner must not authorise the use of an undercover operation unless the Commissioner:

(a) suspects, on reasonable grounds, that a person or persons (whose identity may, but need not be known to the Commissioner) has engaged, is engaging or about to engage, in conduct involving the commission of a specified offence, being conduct of the kind to which the proposed undercover operation relates; and

(b) is satisfied on reasonable grounds that the ambit of the proposed undercover operation is not more extensive than could reasonably be justified in view of the nature and extent of the suspected conduct; and

(c) is satisfied on reasonable grounds that the means are proportionate to the end, that is, that the proposed undercover operation is justified by the social harm of the conduct against which it is directed; and

(d) is satisfied on reasonable grounds that:

(i) the undercover operation is properly designed to provide persons who have engaged, or are engaging or about to engage, in the conduct with an opportunity to manifest or provide other evidence of that conduct; and

(ii) there is not an undue risk that persons who do not have a predisposition to serious criminal conduct will be encouraged into serious criminal conduct that they would otherwise have avoided.

(3) Prior to authorising the use of an undercover operation, the Commissioner must consider whether authorisation for a similar undercover operation has previously been sought, and, if sought and refused, the reasons for that refusal.

(4) An authorisation must:

(a) be in writing and signed by the Commissioner; and

(b) specify the persons who are authorised to participate in the undercover operation; and

(c) state the nature of the conduct in which the participants are authorised to engage; and

(d) specify the date and time the Commissioner signs the authorisation and the time from which the authorisation takes effect; and

(e) state the period, not exceeding 3 months, for which the authorisation is given.

(5) An authorisation may be renewed for a further period not exceeding 3 months.

Division 2 Surveillance warrants

3 Commissioner to authorise applications

(1) The Commissioner may authorise an application for:

(a) a surveillance warrant or renewal of a surveillance warrant; or

(b) an urgent surveillance warrant.

(2) The Commissioner must not authorise an application referred to in subsection (1) unless the Commissioner is satisfied that there are reasonable grounds to suspect that a person:

is planning, participating in or committing a specified offence; or

has planned, participated in or committed a specified offence.

4 Application for surveillance warrant

(1) If the Commissioner has authorised an application for a surveillance warrant under section 3, a police officer may apply to the Court to issue the surveillance warrant to:

intercept a private communication by means of an interception device; or

record visually or observe an activity of a person by means of an optical surveillance device; or

use both an interception device and an optical surveillance device.

(2) The application must be in writing and made on oath by a police officer, and must set out:

(a) the facts relied upon to demonstrate that there are reasonable grounds for suspecting that a person is planning, participating in or committing, or has planned, participated in or committed, a specified offence; and

(b) a description of the manner in which it is proposed to intercept private communications or record or observe activities; and

(c) either:

(i) the name and address, if known, of the person whose private communications or a record or observations of whose activities there are reasonable grounds for suspecting will assist the police investigation of the case; or

(ii) if the name and address of the suspect are not known, a general description of the premises, place, thing or type of facility in respect of which it is proposed to intercept private communications or record or observe activities; and

(d) the period for which a warrant is requested.

5 Issuing a surveillance warrant

The Court may issue a surveillance warrant if the Court:

(a) is satisfied that there are reasonable grounds:

(i) to suspect that a person is planning, participating in or committing, or has planned, participated in or committed, a specified offence; or

(ii) to believe that evidence relevant to the investigation of the case will be obtained through the use of a surveillance warrant to intercept private communications or record or observe activities; and

(b) is satisfied on reasonable grounds that the means are proportionate to the end, that is, that the proposed surveillance is justified by the social harm of the suspected offence against which it is directed.

  1. Content and terms of a surveillance warrant

(1) A surveillance warrant must state the following information:

(a) the offence or offences in respect of which the warrant is granted; and

(b) if the warrant relates to the use of a surveillance device on premises:

(i) the name and address of the suspect whose private communications may be intercepted or whose activities may be recorded or observed; or

(ii) if the suspect’s name and address are not known, a general description of the premises, place, thing or type of facility in respect of which the private communications will be intercepted or activities recorded or observed; and

(c) if the warrant authorises the use of a surveillance device in respect of the conversations, activities or location of a person, state the name of the person (if known) or the fact that the person’s identity is unknown; and

(d) any other terms and conditions that the Court considers to be in the public interest.

(2) A surveillance warrant has the effect, according to its terms, of authorising:

(a) the interception of private communications by means of an interception device; or

(b) the recording visually or observing of an activity of a person by means of an optical surveillance device; or


(c) activities referred to in paragraphs (a) and (b).

(3) A surveillance warrant also authorises:

(a) the retrieval of the surveillance device; and

(b) the entry, with such reasonable force as necessary, to any premises for the purpose of placing, servicing or retrieving a surveillance device; and

(c) the connection of the surveillance device to any source of electricity and the use of electricity from that source to operate the device; and

(d) the provision of assistance or technical expertise to the police officer primarily responsible for the execution of the warrant in the installation, use, maintenance or retrieval of the surveillance device.

(4) If it is proposed to place a surveillance device in the residential or business premises of:

(a) a lawyer, clergyman or a medical practitioner; or

(b) a person specified by the Court,

the Court may attach conditions that it considers desirable to avoid so far as practicable the interception of communications or recording or observing of activities of a professional character to which the lawyer, clergyman, medical practitioner or such other person specified by the Court is a party.

(5) A surveillance warrant need not be limited to particular premises and can apply in relation to an interception device or optical surveillance device designed to intercept communications or observe or record activities involving a person wherever that person may be.

  1. Period and renewal of surveillance warrant

(1) A surveillance warrant is valid for the period specified in the warrant, being a period not exceeding 90 days.

(2) The Court may grant a renewal of a surveillance warrant upon an application made before the warrant (or any current renewal of the warrant) has expired.

(3) An application for a renewal of a surveillance warrant must:

(a) provide the reason and period for which the renewal is required; and

(b) be accompanied by full particulars, together with times and dates, of any interceptions made or attempted under the warrant and an indication of the nature of the information that has been obtained by such interception; and

(c) be supported by such other information as the Court may require.

(4) The Court may renew a surveillance warrant if satisfied that the circumstances described in section 5 still apply.

(5) A renewal of a surveillance warrant is valid for the period, not exceeding 90 days, specified in the renewal.

(6) A renewal of a surveillance warrant may be granted upon an application made within the time prescribed by subsection (2) even if the warrant (or any renewal of the warrant) has expired before the application is determined.

(7) To avoid doubt, the Court may grant a second or subsequent renewal of a surveillance warrant.

  1. Urgent surveillance warrant

(1) This section applies if the Court is satisfied that circumstances exist that would justify the grant of a surveillance warrant, but the urgency of the situation requires that the interception or recording or observing should begin before a warrant could with all practicable diligence be obtained.

(2) The Court may, orally or in writing, grant an urgent surveillance warrant for the interception of private communications or the recording or observing of activities in respect of particular premises or a particular person or a particular place or a particular thing or particular type of facility, and in a particular manner.

(3) An application for an urgent surveillance warrant may be made orally, by telephone, email, facsimile or other electronic means.

(4) So far as it is capable of applying, section 6 applies to urgent surveillance warrants in the same manner as it applies to surveillance warrants.


(5) An urgent surveillance warrant is valid for 48 hours commencing from the time on which it is issued, and then expires.

  1. Admissibility of evidence obtained

(1) Subject to subsection (2), any information or recording obtained pursuant to a surveillance warrant or an urgent surveillance warrant is admissible as evidence in any proceedings for the prosecution of a specified offence.

(2) Any information or recording obtained in breach of subsection 6(4) is not admissible.

  1. Minor defect in connection with surveillance warrant or urgent surveillance warrant

(1) This section applies if:

(a) information or a recording is purportedly obtained through the use of a surveillance device authorised under a surveillance warrant or an urgent surveillance warrant; and
(b) there is a minor defect or irregularity in relation to the surveillance warrant or urgent surveillance warrant and, but for that defect or irregularity, the surveillance warrant or urgent surveillance warrant would have been sufficient authority for the action taken.

(2) If this section applies:

(a) the use of the surveillance device is to be taken as being valid; and

(b) any information or recording obtained pursuant to the surveillance warrant or urgent surveillance warrant is admissible as evidence as if the surveillance warrant or urgent surveillance warrant did not have that defect or irregularity.

(3) A reference in subsection (1) to a defect or irregularity in relation to a surveillance warrant or urgent surveillance warrant is a reference to a defect or irregularity (other than a substantial defect or irregularity):

(a) in, or in connection with, the issue of, a document purporting to be that surveillance warrant or urgent surveillance warrant; or

(b) in connection with the execution of that surveillance warrant or urgent surveillance warrant or the execution of a document purporting to be that surveillance warrant or urgent surveillance warrant.

  1. Prohibition on disclosure of communications intercepted and recordings

(1) A person who:

(a) intercepts or assists in the interception of a private communication in accordance with a surveillance warrant or urgent surveillance warrant; or

(b) acquires knowledge of a private communication as a direct or indirect result of that interception; or

(c) makes a record of the activities of a person,

must not knowingly disclose the substance, meaning or purport of that communication or recording or any part of it otherwise than in the performance of the person’s duties.

(2) A person who contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding VT1,000,000 or a term of imprisonment not exceeding 3 years, or both.

  1. Assistance by telecommunication operators

It is a condition of a licence granted under section 16 of the Telecommunications Act [CAP 206] that the licensee provides such assistance to a police officer executing a surveillance warrant or an urgent surveillance warrant in respect of an interception device as is required by the police officer.

Division 3 Access to computers and computer networks

13 Commissioner to authorise applications

(1) The Commissioner may authorise an application for:

(a) a computer warrant or renewal of a computer warrant; or

(b) an urgent computer warrant.

(2) The Commissioner must not authorise an application referred to in subsection (1) unless the Commissioner is satisfied that there are reasonable grounds to suspect that a computer or computer network contains information, records or data relating to a specified offence.

  1. Warrant to access computers and computer networks

(1) If the Commissioner has authorised an application for a computer warrant under section 13, a police officer may apply to the Court to issue the computer warrant to access:

(a) a computer; or

(b) a computer network; or

(c) both a computer and computer network.

(2) An application must be in writing and made on oath by a police officer, and must set out:

(a) the facts relied upon to demonstrate that there are reasonable grounds for suspecting that a computer or computer network contains any information, records or data relating to a specified offence; and

(b) a general description of the computer or computer network concerned, including the premises (if known) at which it is or is likely to be located; and

(c) the period for which a computer warrant is requested.

(3) The Court may issue a computer warrant if the Court is satisfied that there are reasonable grounds to suspect that a computer or computer network contains information, records or data relating to a specified offence.

  1. Content and terms of computer warrant

(1) A computer warrant must state the following information:

(a) the offence or offences in respect of which the warrant is granted; and

(b) a general description of the computer or computer network, including the premises (if known) at which it is or is likely to be located; and

(c) any other terms and conditions that the Court considers to be in the public interest.

(2) A computer warrant has the effect, according to its terms, of authorising the police officer named in the warrant to:

(a) detain a computer or computer network, or both; and

(b) access a computer or computer network, or both, for the purposes of obtaining information and records, and extracting data; and

(c) access or detain any equipment, device or other thing by which information, records or data may be stored; and

(d) require a person with a knowledge of a computer or computer network to assist the police officer in accessing the computer or computer network; and

(e) access emails.

(3) If a police officer detains a computer, computer network, equipment, device or other thing under subsection (2), the police officer:

(a) may take possession of it; and

(b) may retain it for such time as he or she thinks necessary for the purposes of this Act.

(4) A police officer must return whatever is detained under subsection (2) to its owner if the reason for its seizure no longer exists or it is decided that it is not to be used in evidence.

  1. Urgent computer warrant

(1) If the Court is satisfied that circumstances exist that would justify the grant of a computer warrant, but the urgency of the situation requires that a computer or computer network be detained or accessed before a warrant could be obtained, the Court may, orally or in writing, issue an urgent computer warrant.

(2) An application by a police officer for an urgent computer warrant may be made orally, by telephone, facsimile or other electronic means.

(3) An urgent computer warrant is valid for 48 hours commencing from the time when it is issued, and then expires.

  1. Prohibition on disclosure of information, records and data

(1) A person who obtains or extracts information, records or data pursuant to a computer warrant or urgent computer warrant must not knowingly disclose the information, record or data or any part of it otherwise than in the performance of the person’s duties.

(2) A person who contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding VT1,000,000 or a term of imprisonment not exceeding 3 years, or both.

Division 4 Controlled delivery of property

  1. Definitions

In this Division:

authorised officer means:


(a) a police officer authorised by the Commissioner of Police for this Division; or

(b) a customs officer assisting with a controlled delivery of property pursuant to section 159A of the Customs Act No. 7 of 2013;

property means assets of every kind, however acquired, including:

(a) currency; and

(b) goods; and

(c) legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including but not limited to bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts and letters of credit; and

(d) any other assets which potentially may be used to obtain funds, goods, or services,

whether such assets are situated in Vanuatu or outside of Vanuatu, and includes a legal or equitable interest, whether full or partial, in any such assets.

  1. Commissioner to authorise controlled delivery of property

(1) The Commissioner may authorise a controlled delivery of property and must not give the authorisation unless the Commissioner is satisfied that there are reasonable grounds to suspect that a person has committed, is committing or is about to commit a specified offence.

(2) If:

(a) property is reasonably suspected to have been, or of being, used to commit a specified offence; or

(b) it is reasonably suspected that property may be used to commit a specified offence,

the property may be allowed to enter, leave or move through Vanuatu for the purpose of gathering evidence to identify a person or to facilitate a prosecution for the offence.

(3) An authorised officer does not commit an offence under a law of Vanuatu if:

(a) the authorised officer is engaged in investigation of a suspected specified offence; and

(b) the offence involves property referred to in paragraph (2)(a) or (b); and

(c) the authorised officer does not take action, that the authorised officer would otherwise be required to take under a law of Vanuatu, for the purpose of the investigation.

(4) An authorisation must be in writing and signed by the Commissioner.

Division 5 Other matters

  1. State not required to give undertaking for costs

Despite any other Act or law, the State is not required to give an undertaking for costs for applying for a warrant under this Part.

PART 3 MISCELLANEOUS

  1. Report on special investigative powers

(1) The Commissioner must, on or before the end of March of each year, submit an annual report to the Council of Ministers setting out general information and statistics relating to the use of special investigative powers in Part 2 for the previous year.

(2) The report must include as a minimum:

(a) the number of undercover operations authorised; and

(b) the number of applications for surveillance warrants and computer warrants; and

(c) the number of applications for renewals of surveillance warrants and computer warrants; and

(d) the number of applications for urgent surveillance warrants and urgent computer warrants; and

(e) the number of controlled deliveries of property authorised; and

(f) the number of applications referred to in each of paragraphs (b), (c) and (d) that were granted, and the number that were refused; and

(g) the number of prosecutions that have been instituted in which evidence obtained directly or indirectly from:

(i) an interception or optical surveillance carried out pursuant to a surveillance warrant or urgent surveillance warrant; or

(ii) a computer or computer network pursuant to a computer warrant or urgent computer warrant; or

(iii) an undercover operation; or

(iv) a controlled delivery of property,

(v) has been adduced, and the result of those prosecutions; and

(h) the number of surveillance warrants and computer warrants that did not result in any charges being laid within 90 days after the date on which the warrant expired; and

(i) the number of undercover operations and controlled deliveries of property that did not result in any charges being laid within 90 days after the date on which the undercover operation or controlled delivery ended.

(3) Nothing in this section requires the Commissioner to publically disclose the operational details of a particular case.

  1. Domestic co-operation

(1) For the purposes of this Act, the Commissioner may enter into an agreement with any other government department or agency in Vanuatu for the purposes of:

(a) sharing of information; or

(b) facilitating, taking part or otherwise assisting in any operations or investigations by the police.

(2) Subsection (1) does not limit the sharing of information without an agreement, and activities referred to in paragraph (1)(a) or (b) can occur without an agreement if lawfully permissible or carried out in accordance with the law.

  1. Protection from liability

A police officer is not subject to any civil or criminal liability, action, claim or demand for anything done or omitted to be done by the police officer in good faith in the execution or purported execution of his or her powers and functions under this Act.

  1. Act does not limit or exclude police powers in other legislation

(1) This Act does not limit or exclude the powers of the police in the Police Act [CAP 105], the Proceeds of Crime Act [CAP 284], the Counter Terrorism and Transnational Organised Crime Act [CAP 313], the Criminal Procedure Code [CAP 136] or any other Act.

(2) To avoid any doubt, a special investigative power in Part 2 may be used despite the existence of a similar power in another law.

  1. Regulations

The Minister may make Regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

  1. Commencement

This Act commences on the date on which it is published in the Gazette.



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