The Surveillance Devices Act 2007 (NT) bears a resemblance, although not exactly, to the earlier Victorian legislation. It is only one of two surveillance devices acts which authorises regulations to be made, although the regulations in force are irrelevant to any form of law enforcement. There is no case law relevant to the current legislation; the only case on surveillance devices in the Northern Territory relates to a previous Act which bears only limited resemblance to the current Act.

 

Listening and Optical Devices

Section 11 makes it an offence to install, use or maintain a listening device to monitor or record a private conversation to which one is not a party, while knowing that each party to the conversation has not given consent for such. Section 12 is worded in very much the same way, and addresses Optical Devices with the same proscriptions and permissions.

 

A breach of either section is punishable by a fine or imprisonment for up to two years. Sub-section 2 in both lists exceptions, none of which are relevant to civilian law enforcement.

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The definitions of listening devices and optical surveillance devices appear to be intended to be very broad. This is apparent in the express exceptions of hearing aids, spectacles and contact lenses. Therefore quite reasonably, any other listening or optical device one may imagine is likely to fall within the definitions. Other than this, however, the provisions are fairly loose and susceptible to a loophole which is discussed below.

 

Participation and Consent

There is no offence in gathering evidence by listening or optical means as long as the investigator, or a person acting knowingly on their behalf, is a party to what is being monitored or recorded. The definitions in section 3, stipulate that for a person to be a party to an activity they must participate in it, and to be a party to a conversation they must either speak or be spoken to. There is no requirement of a high level of involvement, but unlike in some other jurisdictions one does not become a party merely by being within hearing range or eyesight.

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As discussed in Confluent Issues above, in WK v The Queen the court decided not to criminalise an accepted police practice of using parties to conversations to make covert recordings. As a result, s 11 should continue to be interpreted with the latitude that appears at face value. Consequent upon almost identical wording, s 12 is affected analogously. Conversations and activities can be monitored and recorded in the northern Territory freely by just one party without the knowledge of any of the others, and without further justification.

 

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Privacy

The restrictions in ss 11 and 12 apply to private activities and private conversations. As defined in s 3, a private activity or conversation is one carried on in circumstances that suggest the parties desire it to be observed or heard only by themselves. It excludes any carried on where the parties ought reasonably to expect that someone else can observe or overhear it. This interpretation was confirmed in R v East,[1] which although concerning an earlier equivalent Act from Victoria, addresses a practically identical definition.

 

A loophole arises under the Northern Territory legislation allowing a private conversation or activity to be rendered non-private and therefore to be deprived of any legislative protection. Situating oneself within hearing range and/or eyesight of the parties, and doing so with the ostensible knowledge of the parties, could mean the activity or conversation is no longer private. It would then be lawful to monitor and record without anyone’s consent, and without becoming a party to the activity or conversation oneself.

 

Whether this is the case in an individual matter will depend upon a variety of factors. It is likely that a court would be loath to permit a situation where any person can by their individual volition render ineffective a statute important to human rights, any time they want, regardless of arguments that may exist in favour of allowing it. Essentially the underlying intention of Parliament is that privacy is to be protected. A court may well require more than the intrusion of one individual upon a private gathering to allow privacy to be annulled. Such a strategy would be inadvisable where less cunning means of obtaining evidence are available.

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[1] R v East [2003] NTSC 42.

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