South Australia

Surveillance Devices Law

South Australia’s Parliament debated a bill in 2012 which was to replace the existing legislation with tougher laws. The bill was defeated, so that older legislation remains in force. The Listening and Surveillance Devices Act 1972 (SA) is, for all intents and purposes of civilian law enforcement relevant only to listening devices.

Listening Devices

Section 4 states that it is an offence for any person, whether or not they are a party, to use a listening device to monitor or record a private conversation, without the consent of the parties. A breach of this law is an offence punishable with a fine or up to two years’ imprisonment.

Exceptions exist to this are listed in an entirely separate section. Section 7 provides that s 4 does not apply:

a) where the person using the device is a party to the conversation, and

b) it is done either for the public interest or for the protection of the person’s lawful interests.

Noting the definitions of lawful interests and public interest under the heading, Confluent Issues, above, this provision permits the use of a listening device largely for any purpose that is of substance and genuine.

Private Conversations and Parties

A private conversation is defined in section 2 as any undertaken in circumstances showing that any party desires it to be confined to the parties. A conversation held in a private room, then would be private, while one held in a public place would not.

The circumstances need only indicate an intention of privacy on the part of one party. It is immaterial whether the circumstances fail to evince such an intention of the part of any or all of the other parties. This allows a conversation to be rendered private if just one party appears, given the surrounding circumstances, to want privacy. This is of particular relevance to telephone conversations and effectively prevents any recording of such by any means without then knowledge of any party when the person doing the recording is situated in South Australia. Because the surveillance law is based on state jurisdiction and applies to the act of recording or monitoring, it applies this way when the person doing the recording is situated in South Australia. It also is effective in dealing with situations where the apprehension of privacy by one party is only a result of deception by the other parties.

As to who is a party, this is not defined. Commonsense dictates that a definition of ‘party’ should have something to do with participation. This would involve talking and/or being addressed directly or as part of a definite group of listeners. If a person only listens they should nevertheless be sufficiently well included to be able to speak without it being regarded as an intrusion. A definition should include anyone listening on speaker phone or similar device. Some jurisdictions include bystanders listening with implied consent and even those using surveillance devices covertly. It appears that those inclusions are more a matter of policy than a natural definition as they have no direct opportunity to speak.

Communication and Publication

Section 5 prohibits the communication or publication of any information or material derived to the use of a listening device in breach of section 4. It is irrelevant whether the unlawful use was made by the person intending to communicate or publish it. A contravention of this rule is an offence punishable by a fine or imprisonment of up to two years.

Sub-section 2 lists exceptions, but none are relevant to civilian law enforcement. Further exceptions, are listed in section 7, sub-section 3. These exceptions include where publication or communication is:

c) in the public interest,

d) as reasonably required for the protection of the person’s lawful interests, if that person was a party.

e) related to giving evidence in any of a range of proceedings including criminal trials, but not including civil trials.

See sub-headings under Confluent Issues, above, which address lawful interests, the public interest and reasonable necessity.