Surveillance Devices Law

NSW - Listening and Optical Devices

New South Wales takes somewhat sophisticated and restrictive approach. The Surveillance Devices Act 2007 (NSW) was enacted following a review by the NSW Law Reform Commission, although it preserves some pre-existing provisions.

 

Listening Devices

Section 7 deals with the recording of private conversations. It starts by addressing installation, use, maintenance and causing to be used. It is an offence therefore not only to use a device certain ways, but also to have someone else use the device. This creates an accessorial offence. It applies both to the recording and monitoring of a conversation by a non-party and by a party to the conversation. A breach of this provision is an offence punishable by a fine or imprisonment of up to five years.

 

Exceptions are listed in sub-sections 2 and 3, including where:

  • a conversation is overheard unintentionally,...

     

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Parties

A party to a conversation is defined in section 4 as a person by or to whom words are spoken in the due course of the conversation, or a person who, with the consent, of any persons speaking or being spoke to, records, monitors or listens to those words. Consent can be implied by conduct under the circumstances.

 

Privity and Consent

A private conversation is defined in section 4 as any words spoken by one person to another in circumstances which indicate that any of the parties wish them to remain between themselves only. The definition also includes conversations held where some other person – apparently any stranger – has the consent of all the parties to listen....

 

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Optical Devices

Section 8 deals with Optical Devices. It is very different to section 7 or any other anti-surveillance provision in other jurisdictions. It forbids a person from installing, using or maintaining an optical device, on or within premises or on any object, to record or observe an activity. This law only becomes active, however, where entry to the premises or interference with the object is without express or implied consent....

 

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Privity – No Concern

Curiously there is no express prohibition hinging on the circumstances of the activity or any ostensible intention to maintain privacy. The court in Waverley Council v Tovir Investments[1] stated that that there was no question of illegality in a private investigator having made a video recording covertly inside a private residence. The investigator entered with consent or the immediate occupants and acted on behalf of the building owner. Therefore an activity could be conducted in a locked underground vault festooned with warnings against disturbance, or filming, and still be unprotected, and remain unprotected as long as the person in lawful control of the premises consents to the installation of a camera....

 

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Premises

In section 4 the definition of ‘premises’ is described as including land, a building, part of a building, or any place whether built or not. There is no suggestion of any distinction between private and public property, or private premises that are readily viewable from a public area. However, as reference is made elsewhere to the owner of premises and as s 8 requires the police obtain warrants to conduct surveillance on premises, while they do not need a warrant on public property, it can be argued that a premises is private property only. To have it otherwise would be to criminalise the commonly accepted practices of surveillance investigators dealing with all manner of issues, some of which, such as the activities of WorkCover or welfare recipients, it is in the wider public interest to permit surveillance of....

 

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Consent, Refusal and Property Law

The requirement of consent should raise some significant issues to consider. As discussed above, in Prosha[4] the non-existence of consent was considered along with the definition of premises. In this case the non-consent of the lessees was overridden by the consent of the lessors – the owners or managers of the shopping centre. It is significant that the consent of the lessors was not overridden by the non-consent of the lessees: an upshot of the wording of the Act....

 

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[1] Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 2) [2013] NSWLEC 21.

[2] Prosha Pty Ltd v AXL Trading Pty Ltd (RLD) [2011] NSWADTAP 36.

[3] Prosha Pty Ltd v AXL Trading Pty Ltd (RLD) [2011] NSWADTAP 36, [142].

[4] Prosha Pty Ltd v AXL Trading Pty Ltd (RLD) [2011] NSWADTAP 36.