Surveillance Devices Law

Confluent Issues - Statutory Definitions 1

Who is a Party?

The difference between a party to a conversation or activity and a nearby non-party is viewed differently in different jurisdictions. In some legislation any person using a surveillance device to listen to, watch or record is also a party and those actually taking part are known as principal parties. In other jurisdictions, a party is anyone who takes part, while those who only overhear, watch or record are not parties at all.

 

The practice of a third person (such as the police, but more widely applicable) using a participant in a conversation to do a recording for them was challenged in WK v The Queen.[1] A conversation was recorded by police through the assistance of a party to the conversation – a victim of a sexual crime talking with her attacker. It was contended by the appellant/defendant that the transcript of the covert recording should have been ruled inadmissible as the police were doing the recording remotely (not the victim doing it in person). The court recognised that while the victim’s use of the listening device was at the request of the police, it was her decision alone.[2]...

 

ORDER FOR FULL TEXT.

 

Definition of Conversation

Another issue to be considered is the definition of the word, ‘conversation’, a point addressed in Alliance Craton Explorer v Quasar Resources.[6] In this case recordings were made of discussions leading to a joint mining venture. The definition of a private conversation in the South Australian legislation was considered: the wording in that legislation is for all intents and purposes the same as that in all other jurisdictions.  The court applied a prior High Court ruling[7] that terminology in legislation cannot always be interpreted literally, but needs to be viewed in terms of the consequences of proposed interpretations and the overall purpose of the statute. The court in Alliance then took the Macquarie Dictionary definition which states that a conversation is ‘informal interchange of thoughts by spoken words; a talk or colloquy.’ Thus a formal meeting cannot be a conversation and is not protected by the legislation which protects private conversations.

 

The court did not establish why this definition was more in line with the intention of Parliament than other alternatives, nor was guidance given as to what is ‘formal’ and what is not. Problematically, some other dictionaries lack any requirement of informality in the definition of ‘conversation.’ Furthermore, the Macquarie Dictionary defines a ‘chat’ as ‘a short informal conversation,’[8] which amounts to doubling up on, or denying, an aspect of the former definition, making it unreliable.

 

In addition, it may be very difficult to judge whether any exchange of words truly is informal, particularly given that a casual conversation can attain a somewhat formal character when a serious topic is raised. Lastly and most importantly, there is nothing in the South Australian legislation or any other equivalent Act to specify a focus on protecting casual interactions and to exclude formal ones. For those reasons, while it is for now good law in South Australia, this decision may not be relied upon in other jurisdictions.

 

Definition of Private

The definition of a private conversation is further elucidated by the Federal Court in Ponzio v Multiplex[9] in which a conversation between two men was recorded by a third with the consent of only one party to the conversation. The court found that the reference in the relevant Act to ‘the parties’ requires that all parties intend it to be private, not just some. This rule is applicable to most jurisdictions, but some will deem a conversation or activity private if the circumstances indicate that only one party intends it to be private.

 

In respect not only of common law, but of statutory definitions themselves, a question remains as to how private an activity must be before the law considers it to be private. This matter remains without direct guidance. As such it is open to argument on commonsense principles.

 

Privity Not Broken by Freedom of Parties to Divulge

A question may arise as to whether the freedom of the parties to report on a conversation to others eliminates privacy. This question was dealt with in Thomas v Nash[10] in which ‘private conversation’ is given an expansive meaning:

 

A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, “private” is used not in the sense of “secret” or “confidential”, but in the sense of “not public”. A telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it.[11]

 

Note that while in all jurisdictions it is the circumstances in which a conversation or activity occurs that are the touchstone of privacy, but an intention to report to others may be evidenced objectively by the circumstances.

 

 

 

 

[1] WK v The Queen [2011] VSCA 345.

[2] WK v The Queen [2011] VSCA 345, [20] – [28].

[3] Surveillance Devices Act 1999 (Vic) s 6.

[4] WK v The Queen [2011] VSCA 345, [28],

[5] WK v The Queen [2011] VSCA 345, [29].

[6] Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 [28] – [32].

[7] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 384 [78].

[8] Macquarie Dictionary, Macquarie Dictionary Publishers, Sydney, 2015.

[1] Ponzio v Multiplex Limited [2005] FCA 1410 [91]. A case concerning the Surveillance Devices Act 1999 (Vic). (Another closely related rule implied in Ponzio  and other cases is discarded here as an incorrect and radical reinterpretation of the statute that would render a related law inoperative).

[10] Thomas & Anor v Nash [2010] SASC 153, [36]-[38]

[11] Thomas & Anor v Nash [2010] SASC 153, [37]-[38].