Surveillance Devices Law

Confluent Issues - Statutory Definitions 3

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. The lawful interest exception then is to be taken as a dichotomous rule where the phrase ‘reasonably necessary’ appears with it in the statutes).

 

Considering Violi among other cases, Doyle CJ ruling on the South Australian legislation stated:

 

In none of those decisions is there an attempt to identify comprehensively the scope of the expression “lawful interests”. That is not surprising. It is an expression which is best left to be applied case by case, subject to some general guidelines.

Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.[4]

 

Therefore, a relevant lawful interest should be something of seriousness, but is unlikely to be recognised where a new interest is sought to be established.

 

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. It is likely that it is in the public interest to allow recording and/or publication of a conversation relevant to a criminal conspiracy or an act of negligence, whereas filming and/or publicising a mere freak accident is not.

 

In Channel Seven Perth v S, McLure JA stated in relation to the West Australian Act:

 

...the primary Judge accepted that there is a public interest in broadcasting the recorded interview and a public interest in maintaining the privacy of the general manager by not broadcasting the interview. He found there was a strong case that the respondent had contravened the Equal Opportunity Act 1984 (WA) but that the general manager made the decision to terminate M because he considered her continued employment on the respondent's premises to be a risk to her health and safety. Weighing the competing public interests he concluded he was not satisfied that the publication should be made to protect or further the public interest.

In reaching this conclusion the primary Judge rejected the appellant's submission that the general manager's right to privacy is not a right or freedom the protection of which falls within the public interest.[6]

 

It also appears from this that what amounts to public interest is wide-ranging, and it is not the direct implications of an individual case that are to be considered, but rather whether it is socially beneficial or harmful that surveillance or publication be carried out in the relevant context. For example, because the insurance industry is important to economic stability and it needs suspect claims investigated and fraudsters made examples, investigations into claims actually are in support of the economic and sociological wellbeing of the nation. Again, it is good for sociological wellbeing that estranged family members be located, unless they have escaped from abuse.

The Victorian legislation (as with other Acts) includes an exception for publishing a record in the public interest. A subtle difference in the wording, however, alters the application of the concept so that the standard of assessment is whether the case itself impinges on the public interest. Rezaiee v Australian Broadcasting Corporation dealt with a covert recording which related to organised people smuggling, and the exception was recognised.[7]

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,

 

...reasonable necessity is to be judged objectively upon bases or grounds that exist at the time of the recording. The ability of [the complainant] to approach police with his complaints, rather than move directly to himself record the conversation, stands in the way of a finding of reasonable necessity in the case....

 

Applying this in DW v R, O’Connor DCJ found that each case needs to be judged on its own merit as facts in the latter case made recourse to the police too much to expect. Therefore where recourse to a public authority such as the police is available and feasible, and yet untried, then reasonable necessity cannot be established with respect to obtaining evidence.

[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.