Surveillance Devices Law

NSW - Tracking, Data, and Reporting

Tracking Devices

Section 9 provides that no person can knowingly install, use or maintain a tracking device on a person or object without the consent of the person or the person who is in lawful possession. A breach of this provision is an offence attracting a fine or imprisonment of up to five years. Sub-section 2 lists exceptions, none of which are applicable to civilian law enforcement. The third exception, for a lawful purpose, is peculiar, and there is no suggestion as to what it means. It is likely to apply where other legislation explicitly authorises the use of a tracking device....

 

Tracking devices are defined in section 4 as any device capable of being used to determine the geographic location of a person or object. This then includes even a mobile telephone. A breach of this provision is an offence and punishable by a fine or up to two years’ imprisonment. Further discussion on the law of tracking devices and the implications for mobile telephones is presented above under Tracking Devices within the Confluent Issues section, above.

 

 

Data Surveillance

Section 10 prohibits any person from knowingly installing, using or maintaining a data surveillance device on or in premises in relation to a computer on the premises. The rule is activated if this involves either:

  • entry to premises without express or implied consent of the owner or occupant, or

  • interference with a computer or a network on the premises without express or implied consent of the person in lawful control of such.

 

It is hard to imagine a situation where a breach of paragraph (a) will not be associated with a breach of paragraph (b). However the latter can occur without any access to premises. Due to the definition of data surveillance devices including programs, not just physical devices, the prohibition on data surveillance also covers remote surveillance through hacking or installing malware. It does not include optical devices. ‘Computer’ is broadly defined to include any electronic device for storing, processing or transferring information.

 

Prohibition on Reporting

Section 11 prohibits the communication and reporting of information as to a private conversation or an activity obtained by the use of listening, optical or tracking devices. Section 14 prohibits the same with respect to computer data obtained directly or indirectly from a data surveillance device. A further, and sensible, condition on both sections is that such information be obtained in contravention of the laws discussed above. For a definition of a private conversation, see above. Again, a breach of this section an offence and punishable with a fine or imprisonment of up to five years.

 

There are no exceptions of relevance to civilian law enforcement. Thus, the communication of any unlawfully obtained evidence is automatically unlawful, which presents a barrier to its use in court proceedings. However, as long as the information in question was obtained in a lawful manner, there is no illegality in communicating it or reporting on it in any manner.

 

Possession of Unlawful Recordings

If a person possesses a record of an activity or private conversation, which they know was made in breach of the laws discussed above, then section 12 makes it an offence. A breach of this section is punishable with a fine or imprisonment of up to five years. A record, according to definitions in section 4, includes not only a media recording, but also any documentary information about the conversation or activity, such as a transcript.