Surveillance Devices Law

Confluent Issues - Statutory Definitions 2

Lawful Interests

An exemption exists in some jurisdictions, so that recordings can be made or communicated if it is in the lawful interests of the person doing it. The distinction between ‘lawful’ and ‘legal’ deserves attention: there need not be any direct potential for litigation to qualify for this exception. In DW v R,[1] the court looked into a number of preceding authorities to determine what constitutes a lawful interest and, in spite of a little variation, a theme appears of an expansive meaning, with the only explicit disqualification being where a recording is made merely to have the record.[2] The court in DW v R did not make a conclusive ruling on this, but it emerges from the common law that a lawful interest is anything of genuine concern.


In the earlier case of Violi v Berryvale Orchards, a Federal decision on the old New South Wales legislation, pre-existing authority was found to be of no value, so an original decision was arrived at. It was ruled that:


"lawful interests" are to be distinguished from "legal interests". I do not consider that [the legislation]... calls for a legal interest in the sense of a legal right, title, duty or liability. Rather I consider that "lawful interests" within the meaning of the [legislation]... are interests which are not unlawful. The expressions "legitimate interests" or "interests conforming to law", in my view, convey similar meanings to the intended meaning of "lawful interests" in the [legislation].[3]


The recordings in question were telephone conversations between the plaintiff and his doctor. (In spite of this determination favourable to the plaintiff’s case, the recordings were found not to be a reasonable necessity in support of the relevant interests....





Public Interest

Some jurisdictions have statutes which make reference to the public interest as a test of whether to permit the communication of information or recordings and sometimes the use of a surveillance device. The only definitions of it, however, appear in the legislation of Western Australia and the northern Territory, where it applies not to usage of devices and publication of results generally, but to specific kinds of investigation. As it happens also, the only cases on this topic relate to the Western Australian Act. While it is invalid to extrapolate decisions on such a peculiarly applicable definition to form a nationally consistent principle, there are points that deserve recognition and which are not so rooted in the wording of the statute as to make them unavailable for consideration here. In the case of Re Surveillance Devices Act 1998; Ex Parte Tcn Channel Nine Pty Ltd[5] it was noted that:


 ‘There is no requirement of "seriousness" in ss 26 and s 27 [of the Western Australian legislation,] although it is not difficult to see that the relative gravity of the matter might influence the decision whether it is in the public interest.’


The second part of that sentence is applicable more widely than the subject legislation. It is likely from this that a conversation consisting of a series of innocuous comedic remarks has no bearing on public interest, while a political policy discussion does....





Reasonable Necessity

In some jurisdictions where lawful interest is a factor, and where restrictions exist on communication of surveillance findings, the concept of reasonable necessity is raised. Whatever steps are taken in communicating findings or in surveillance for the sake of lawful interest must be reasonably necessary. That means it must be proportional, and apparently, be no more than what is effective. Where a report to a client is required, there is no justification in distributing findings more widely. According to Georgiou Building Pty Ltd v Perrinepod Pty Ltd[8] necessity of communication is to be judged at the time of communication, as a dispute may occur, giving rise to lawful interests, regardless whether they were anticipated at the time of recording.


Reasonable necessity with respect to making a recording was addressed in DW v R[9] which relied on the preceding judgment in Sepulveda v R[10] in which it was said by Johnson J,...












[1] DW v R [2014] NSWCCA 28.

[2] Thomas & Anor v Nash [2010] SASC 153.

[3] Violi v Berrivale Orchards Limited (includes corrigendum dated 14 June 2000) [2000] FCA 797, [28].

[4] Thomas & Anor v Nash [2010] SASC 153, [47]-[48].

[5] Re Surveillance Devices Act 1998; Ex Parte Tcn Channel Nine Pty Ltd [1999] WASC 246.

[6] Channel Seven Perth Pty Ltd v "S" (A Company) [2007] WASCA 122, [14]-[15].

[7] Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S).

[8] DW v R [2014] NSWCCA 28, [38]-[43].

[9] Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108.