Surveillance Victoria | Working With the Law

Surveillance Devices Law

Victoria

The Surveillance Devices Act 1999 (Vic) covers the largest range of surveillance devices of any of the surveillance devices Acts. It includes listening devices, optical surveillance devices, tracking devices and data surveillance, both hardware and software. Nevertheless it is perhaps the loosest of all the Acts with respect to its proscriptions.

Listening and Optical Devices

Section 6 provides that a person cannot install, use or maintain a listening device to listen to or record a private conversation unless they are a party to it. It is an offence to breach this provision, attracting a sentence of up to two years’ imprisonment or a fine. Sub-section 2 contains exceptions, none of which are relevant to civilian law enforcement.

Section 7 is worded in a near-identical manner to section 6 but deals with the installation, use or maintenance of an optical surveillance device to observe or make video footage, of a private activity. Again, where the person using the device is a party to the activity, they are free to proceed. It is an offence to breach this provision, attracting a sentence of up to two years or a fine.

Sub-section 2 lists exceptions, none of which are relevant to civilian law enforcement.

Parties

The word, ‘party’ is defined as a person who takes part in the activity in question or a person by or to whom words are spoken in the course of the conversation. The implication is that 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 involved in what is being monitored or recorded. 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 nearby and/or listening or watching.

As discussed in Confluent Issues above, the court in WK v The Queen determined that it was best not to criminalise the accepted police practice of using participants in conversations to make covert recordings. As a result, s 6 may continue to be interpreted with the latitude that appears on the face of it. Also, as a result of almost identical wording, s 7 is affected the same way. Conversations and activities can be monitored and recorded in Victoria by just one participant without the knowledge of any of the others.

Private Activities and Conversations

The restrictions in ss 6 and 7 expressly apply to private activities and private conversations. Both terms are defined in s 3. A private activity is characterised by being conducted ‘...in circumstances that may reasonably be taken to indicate that the parties desire it to be observed only by themselves...’ but excludes activities conducted outdoors. A private conversation is one conducted ‘...in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves...’ in both instances there is an express exclusion of conversations and activities in circumstances where privacy is not to be expected. Therefore while a group of people may freely be videoed outdoors, where there is no-one else around and audio privacy is reasonable to expect, the sound of their conversation cannot be listened to or recorded.

A face value interpretation of private conversation was confirmed in R v Storey. As ‘private’ is the operative word, then the same principle applies to activities. See the heading, Privacy, under Confluent Issues, above.

A loophole arises under the Victorian legislation allowing a private conversation or activity to be rendered non-private. Situating oneself within hearing range and/or eyesight of the parties, and doing so with the ostensible knowledge of the parties, while not actually becoming a party, could mean the activity or conversation is no longer private. It could 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 arising in the individual case itself. 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 then 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 evidence is available by more standard means.

It may be more feasible in cases where a serious matter is under enquiry that justifies in intrusion upon privacy, to arrange for a few associates to situate themselves near the parties being recorded, or to come and go frequently, while the investigator operates a recording or monitoring device. Once privacy is lost the activity or conversation ceases to be protected by the law and can now be monitored or recorded freely.

Tracking Devices

Section 8 provides that no person can knowingly install, use or maintain a tracking device on a person or object without the consent of the person or the person who is in lawful possession of the object. Tracking devices are defined to include any electronic devices the primary purpose of which is to determine the geographic location of a person or object. A breach of this provision is an offence and punishable by a fine or up to two years’ imprisonment. Further discussion of the law of tracking devices is to be found above under the heading, Tracking Devices, under Confluent Issues, above.

The Victorian legislation differs from others in that it only prohibits devices if the giving of a geographic location is a primary function. As discussed above, mobile telephones need to give this information in support of their primary function. Therefore the tracking function may be seen as an essential component of a primary function, thereby bringing mobile telephones within the ambit of the rule. It is possibly a matter of conjecture whether mobile telephones are classified as tracking devices in Victoria.

Data Surveillance

Data surveillance devices are covered by section 9. Section 9 only regulates that activities of law enforcement officers and leaves civilian activity alone. Cyberspace offences of various kinds are dealt with by other legislation.

Prohibition on Reporting Surveillance Results

Section 11 provides that it is unlawful to communicate, or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening, optical or tracking device, whether they are a party or not. A breach of this provision is an offence punishable by up to two years’ imprisonment or a fine.

Exceptions are listed in sub-section 2, including:

(b) Where communication or publication is reasonably necessary in the public interest or for the protection of the lawful interests of the person making the communication,

(d) Communication to police.

The Parliamentary intention in prohibiting publication and communication is explained in the parliamentary speech of the then Victorian Attorney General in 1999 as follows:

...for example, if I make a video of the birthday party of a family member it would be an offence under the act if I then put it on national television without the consent of the family member. This is an important step as many celebrities have been deeply hurt and humiliated by persons involved in producing videos and then passing them on or publishing them.

The exception for evidence obtained in the course of legal or disciplinary proceedings may appear to be of interest to those taking or defending legal action of the like. Both the Act and the Minister’s speech seem to be referring to an intrinsic relationship to proceedings, rather than merely the gathering of evidence in a situation where proceedings might be issued in the future. There must be a matter on foot that has been escalated at least to the stage where litigation or discipline is being prepared for. This is particularly important to permit covertly obtained evidence to be relied upon in such proceedings.

The inclusion of an exception for ‘the lawful interests of the person making it’ should not be read similarly to references to ‘lawful interests’ in other jurisdictions. Crucially it is only the person who has the interest who can communicate or publish, and not a person acting on their behalf, informing them. WK v The Queen furnishes us with an example of paragraph (d) in action.

The exception ‘in the public interest’ was addressed in Rezaiee v Australian Broadcasting Corporation where investigative journalism related to organised people smuggling and publication was found to be indisputably in the public interest. Other interpretations were not ruled out, and it remains fair to expect a court to accept the reasons discussed above under Confluent Issues.

Any information obtained by use of a listening device, optical device or tracking device is not to be published unless it falls within the above exceptions. Of course a private activity or conversation that is observed or heard without a device can be published or communicated based on one’s recollections; the drawback being that this comes without indisputable proof. An electronic recording from a device can be saved for when it is needed by the police or in legal proceedings.

R v Storey, Ivan Leonard [Ruling] [1994] VicSC 776. Followed in R v East [2003] NTSC 42.

VicHansard, Surveillance Devices Bill, Assembly, Hulls, 22 April 1999, p547.

VicHansard, Surveillance Devices Bill, Assembly, Hulls, 22 April 1999, p550.

WK v The Queen [2011] VSCA 345, [40]-[41].

Rezaiee v Australian Broadcasting Corporation (No2) [2014] NSWSC 1656.