Surveillance Devices Law
Public Interest
Some jurisdictions have statutes which make reference to the public interest as a test of whether to permit the communication of information or recordings and sometimes the use of a surveillance device. The only definitions of it, however, appear in the legislation of Western Australia and the Northern Territory, where it applies not to usage of devices and publication of results generally, but to specific kinds of investigation. As it happens also, the only cases on this topic relate to the Western Australian Act. While it is invalid to extrapolate decisions on such a peculiarly applicable definition to form a nationally consistent principle, there are points that deserve recognition and which are not so rooted in the wording of the statute as to make them unavailable for consideration here.
In the case of Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd it was noted that:
‘There is no requirement of "seriousness" in ss 26 and s 27 [of the Western Australian legislation,] although it is not difficult to see that the relative gravity of the matter might influence the decision whether it is in the public interest.’
The second part of that sentence is applicable more widely than the subject legislation. It is likely from this that a conversation consisting of a series of innocuous comedic remarks has no bearing on public interest, while a political policy discussion does. It is likely that it is in the public interest to allow recording and/or publication of a conversation relevant to a criminal conspiracy or an act of negligence, whereas filming and/or publicising a mere freak accident is not.
In Channel Seven Perth v S, McLure JA stated in relation to the West Australian Act:
...the primary Judge accepted that there is a public interest in broadcasting the recorded interview and a public interest in maintaining the privacy of the general manager by not broadcasting the interview. He found there was a strong case that the respondent had contravened the Equal Opportunity Act 1984 (WA) but that the general manager made the decision to terminate M because he considered her continued employment on the respondent's premises to be a risk to her health and safety. Weighing the competing public interests he concluded he was not satisfied that the publication should be made to protect or further the public interest.
In reaching this conclusion the primary Judge rejected the appellant's submission that the general manager's right to privacy is not a right or freedom the protection of which falls within the public interest.
It also appears from this that what amounts to public interest is wide-ranging, and it is not the direct implications of an individual case that are to be considered, but rather whether it is socially beneficial or harmful that surveillance or publication be carried out in the relevant context. For example, because the insurance industry is important to economic stability and it needs suspect claims investigated and fraudsters made examples, investigations into claims actually are in support of the economic and sociological wellbeing of the nation. Again, it is good for sociological wellbeing that estranged family members be located, unless they have escaped from abuse.
The Victorian legislation (as with other Acts) includes an exception for publishing a record in the public interest. A subtle difference in the wording, however, alters the application of the concept so that the standard of assessment is whether the case itself impinges on the public interest. Rezaiee v Australian Broadcasting Corporation dealt with a covert recording which related to organised people smuggling, and the exception was recognised.
Reasonable Necessity
In some jurisdictions where lawful interest is a factor, and where restrictions exist on communication of surveillance findings, the concept of reasonable necessity is raised. Whatever steps are taken in communicating findings or in surveillance for the sake of lawful interest must be reasonably necessary. That means it must be proportional, and apparently, be no more than what is effective. Where a report to a client is required, there is no justification in distributing findings more widely. According to Georgiou Building Pty Ltd v Perrinepod Pty Ltd necessity of communication is to be judged at the time of communication, as a dispute may occur, giving rise to lawful interests, regardless whether they were anticipated at the time of recording.
Reasonable necessity with respect to making a recording was addressed in DW v R which relied on the preceding judgment in Sepulveda v R in which it was said by Johnson J,
...reasonable necessity is to be judged objectively upon bases or grounds that exist at the time of the recording. The ability of [the complainant] to approach police with his complaints, rather than move directly to himself record the conversation, stands in the way of a finding of reasonable necessity in the case....
Applying this in DW v R, O’Connor DCJ found that each case needs to be judged on its own merit as facts in the latter case made recourse to the police too much to expect. Therefore where recourse to a public authority such as the police is available and feasible, and yet untried, then reasonable necessity cannot be established with respect to obtaining evidence.
Re Surveillance Devices Act 1998; Ex Parte Tcn Channel Nine Pty Ltd [1999] WASC 246, [10].
Channel Seven Perth Pty Ltd v "S" (A Company) [2007] WASCA 122, [14]-[15].
Rezaiee v Australian Broadcasting Corporation (No2) [2014] NSWSC 1656.
Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S).
DW v R [2014] NSWCCA 28, [38]-[43].
Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108.