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 those jurisdictions privacy is maintained where there are persons who are not involved in the conversation or activity, but who are permitted to listen or observe. (In some jurisdictions a person using a surveillance device is deemed to be a party also). Privacy is lost, however, when an unknown bystander is situated nearby without consent to listen or record. 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] That placed the police outside the privacy of the private conversation (as per the Victorian legislation). The appellant argued that therefore the police were acting in breach of the law.[3] The Court of Appeal decided that to read the relevant section as including indirect usage of a surveillance device (by the police and not the party/victim) would amount to a statutory amendment which is too far-reaching for the Court of Appeal to undertake.[4] It was instead held that the victim was doing the recording herself and the police merely facilitated it. (Another obstacle to the success of this appeal was sub-section (2)(c) which specifically permits this same activity).[8]

 

Of significance to this study, due to the party’s consent the police did not need a warrant to perform this surveillance, and in fact it could have been any civilian who had arranged the surveillance with the party. This means that it is not only the police who benefitted by this ruling. Any investigator or any other person is therefore able to make use of the same decision and engage in any similar type of investigation.

 

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.

 

 

[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.