The Listening Devices Act 1992 (ACT) covers the use of listening devices only. It is constructed in a rather complex manner and appears to have suffered slightly from that: a contradiction is identified below and dealt with. To date there have been no common law decisions on the interpretation of any section of the Act, and the explanatory memorandum is of no benefit.

 

Listening Devices

Section 4 states that a person must not use a listening device with the intention of listening to or recording a private conversation, to which the person is not a party, or recording to a private conversation to which the person is a party. A contravention of this provision is an offence punishable by a fine only.

 

Sub-section 2 excuses the unintentional hearing of a private conversation by means of a listening device. ...

 

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Private Conversation

A private conversation is defined as a conversation in circumstances that may be taken to mean that any of the principal parties desire the conversation to be listened to only by themselves and some other person with the consent of each principal party. The specific wording of the definition referring to any of the principal parties is of interest to conversations held over a telecommunication system....

 

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Parties and Principal Parties

A principal party is a person who speaks or is spoken to in the course of the conversation. A party includes a principal party, as well as a person who, with the consent of any of the principal parties, listens to or records the conversation....

 

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Communication and Publication

It is an offence under section 5 for a party to a private conversation to communicate a record of the conversation, where they know that the record was made directly or indirectly by the use of a listening device. A breach of this provision is punishable by imprisonment for six months or a fine.

 

Sub-section 2 raises exceptions which permit the communication or publication of a record in circumstances including the following:

  • In the course of civil or criminal proceedings

  • Where on reasonable grounds it appears necessary for the protection of that party‚Äôs lawful interests

  • Where the communication is made to a person who has such an interest in the matter as to make communication or publication reasonable....

 

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Prohibitions in Special Circumstances

Section 6 states that where a conversation has been recorded under specific circumstances, it is unlawful to communicate or publish a record of the conversation. A breach of s 6 is an offence attracting a fine or imprisonment of up to six months.

Taken not only from section 6 but also parts of section 4, those circumstances include where:

  • The record is made in contravention of section 4.

  • The record is a result of unintentional overhearing by means of a listening device.

  • Where each principal party consents to the use of the device

  • Where a principal party consents to the use and they reasonably consider the use to be necessary for the protection of their own lawful interests.

  • Where a principal party consents to the use and the recording is NOT made for the purpose of communicating or publishing the conversation to non-parties....

 

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Possession of Records

If a person has possession of a recording or other record that was obtained in breach of section 4, then they are committing an offence against section 7. It is irrelevant whether the unlawful use was made by the person in possession.  The offence attracts a fine or imprisonment for up to six months. An exception is admitted where the record was communicated to the person in possession in circumstances that do not constitute an offence. If an unlawfully created record is publicised in the print media then every reader who obtains a copy will have to destroy it.

 

Optical Devices

There is no regulation concerning the use of optical surveillance devices in the Australian Capital Territory.

 

Tracking Devices

There is no regulation concerning the use of tracking devices in the Australian Capital Territory.

 

Surveillance Devices Law

Australian Capital Territory

Written by Andrew Pingree. All copyright, 2014-2016 vests in Civilaco Pty Ltd.

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