Surveillance Devices Law

NT - Listening Devices

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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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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Privity

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....

 

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