Surveillance Devices Law

Queensland

The Act which addresses civilian surveillance activities is the Invasion of Privacy Act 1971 (Qld) which only covers Listening Devices. There is no legislation covering optical, tracking or data surveillance. There are a number of cases dealing with relevant sections of the Act, but none provide any assistance of importance to this study.

 

Listening Devices

Section 43 of the Invasion of Privacy Act 1971 (Qld) prohibits the use of a listening device to monitor or record a private conversation. The relevant exception listed in sub-section 2 is where the user is a party to the conversation. A breach of this provision is an offence punishable by a fine or imprisonment for up to two years.

 

Sub-section 2 provides exceptions including:

  • where the person is a party to the conversation

  • unintentional overhearing by means of a telephone

 

It is notable that where a person is a party to the conversation, they do not need the other parties’ consent.

 

Party

The definition of the word party is given in Section 42. A party is defined as any person who speaks or is spoken to in the conversation, or a person who with the consent of the people who are speaking or being spoken to, listens to or records the conversation. Consent can be implied by conduct under the circumstances.

 

Private Conversation

The meaning of ‘private conversation’ is defined in s 4 as any words spoken by one person to another in circumstances indicating that they intend it to be private. The definition includes situations where a third party is implicitly brought into confidence. This would include where others are present whose knowledge of the conversation is acceptable to the parties. It excludes, however, situations where the parties ought reasonably expect the conversation to be overheard by some other person.

Privacy therefore is maintained where there are persons who are not involved in the conversation, and who therefore are not parties to the conversation. Privacy is lost, however, when an unknown bystander is situated nearby without consent to listen or record. The key distinction between the involvement of a third person maintaining privacy and the same eliminating privacy is whether the parties to the conversation have given consent – express or implied – to be overheard, monitored or recorded. As noted under preliminary considerations above, consent can be implied by circumstances quite liberally.

 

 

Publication and Communication

Section 44 provides that it is unlawful for a party to a private conversation to publicise or communicate a record of that conversation. A breach of this provision is an offence punishable by a fine or up to two years’ imprisonment. A breach of this section is an offence punishable by a fine or imprisonment of up to two years.

 

Subsection 2 lists exceptions including where the publication or communication is made:

b) in the course of legal proceedings, or

c) is not more than reasonably necessary:

    i) in the public interest

    iii) for the protection of the lawful interests of that person

 

The meanings of lawful interest, public interest and reasonable necessity are dealt with under their own headings under Confluent Issues above. It is likely that ‘in the course of legal proceedings’ is relevant where a legal process that has already been lodged, leading to a court hearing or similar procedure, and not where such is only under contemplation.

 

Section 45 provides that it is unlawful for a party to a private conversation to communicate, or publish a record or report of a private conversation that has been made as a direct or indirect result of the use of a listening device. A breach of this provision is an offence punishable by up to two years’ imprisonment or a fine.

As considered above, an investigator may use an associate to involve themselves in a private conversation and record it covertly. Subject to WK v The Queen, the recording will be considered to have been made by the person wearing the microphone and not by the investigator managing the enquiry.  Any report or communication of the conversation by the investigator then will be by a non-party and is not subject to s 45.

 

Exceptions are listed in sub-section 2, including:

b) Where the recording is made in the course of legal proceedings;

c) Where it is not more than necessary:

    i) In the public interest

    iii) for the protection of the lawful interests of that person

d) Where the communication is made to a person apparently who has such an interest in the conversation as to make it reasonable to make the communication.

 

For discussions on lawful interests and public interest see relevant sub-headings under Confluent Issues, above. These exceptions should be sufficient to permit investigative work to be reported on.

Optical Devices

There is no regulation of Optical Devices in Queensland.

 

Tracking Devices

There is no regulation of tracking devices in Queensland.

[1] WK v The Queen [2011] VSCA 345.