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,

• where it is reasonably necessary for a principal party to a conversation to record or monitor for the protection of their lawful interests.

The definitions of ‘lawful interest’ and ‘reasonable necessity’ are discussed above under Confluent Issues.

 

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.

 

Privacy 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. As noted above consent can be implied by what is done in the situation, so there is no need for the parties to verbally state their consent to be overheard or recorded. It remains a private conversation even with a stranger present with them.

 

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. Entry or interference without consent amounts to unwelcome physical contact. That in turn constitutes trespass to property or trespass to goods. Breaches of this section are offences and punishable by a fine or up to five years’ imprisonment.

 

Privacy – 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 of 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.

 

A further implication is that the mere fact that an activity is conducted in any area accessible to the general public, such as persons walking along a street, does not make any difference to the legality of the surveillance. As long as there is no trespass committed, it is lawful to proceed. Neither is there anything expressly to prevent a bystander invisible to the parties (thereby obviously not a party) from using a hand-held or body-worn camera to film them covertly, even in a private setting.

 

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.

 

In Prosha v AXL Trading[2] the definition of premises was considered along with the non-existence of consent to use an optical device. A video recording was made of activity in a shop within a shopping complex, using a camera being operated outside the shop, in a public thoroughfare of the complex. While there may be a distinction between the property being leased by the tenant and the rest of the shopping complex, the public area in front of the shop was considered by the court to be necessary for the leaseholder to use, and therefore part of the total proprietary interest. Therefore it was effectively the same premises. With that in mind, any use of video equipment in such an area amounts to use in the premises under surveillance.[3] On the other hand, if the surveillance was conducted from a premises which had no relationship to the use or function of that which was under surveillance, then there would be a breach of section 8.

 

Consent, Refusal and Property Law

The requirement of consent should raise some significant issues to consider. As discussed above, in Prosha[3] 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. Prosha[4] then is authority for consent by a landlord to conduct surveillance overriding the occupant’s non-consent. (Regard must be had toward other laws explicitly restricting landlords’ interference with lessees’ privacy and control over the premises. It is also relevant to consider whether the occupant is truly a lessee or just a holder of a contractual occupancy licence).

 

In all areas of law, implied consent and the revocation of it are usually deduced by common law from the conduct of persons and the context of the events. A person may be free to enter certain private premises, but their intention to do something alien to the occupier’s reasons for allowing access can result in automatic revocation of consent, and thereby trespass. However, this is not reflected in the above judicial treatment of consent for purposes of surveillance law.

 

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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.

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