Surveillance Devices Law

Tasmania

The Listening Devices Act 1991 (Tas) covers, as its name suggests, only listening devices. At the time of writing there is no case law which deals with the interpretation and application of this Act, and no other materials to provide any further insight into the intention of Parliament.

 

Listening Devices

The key provision is section 5 which is worded so as to forbid the use of a listening device to record or listen to a private conversation by anyone who is not a party to a private conversation, or to record a private conversation to which the person is a party. It also catches instances where a person causes another to do the same, or permits such use. A breach of this section is an offence punishable by a fine or imprisonment for up to two years.

 

There are two curious features to the wording of this provision. Firstly and most importantly, the prohibition on causing another to use a listening device creates an accessorial offence, so it is not just the investigation operative, but also the client or other interested person who arranged for the surveillance who is in breach of the act....

 

ORDER FOR FULL TEXT.

 

Party and Principal Party

A principal party is any person by whom, or to whom, words are spoken in the course of the conversation. A party includes a principal party, as well as any person who with consent (express or implied) of any of the principal parties, records of listens to the conversation.

 

Publication and Communication

Sections 9 and 10 prohibit the publication and communication of recordings, or of information about a conversation, that was obtained by use of a listening device. These are highly restrictive provisions, but in fact accommodate an investigator acting for a party, or a party themselves acting with respect to their own legal matters. Under Section 12, the penalty for a breach of these sections is a fine and/or imprisonment for a period of up to two years.

 

Section 9 provides that it is unlawful to publish or communicate a private conversation or a report on such, where it comes to knowledge as a result of the use of a listening device in contravention of section 5, or as the result of unintentional hearing by means of a listening device. Sub-section 2 lists exceptions but none are relevant to civilian law enforcement.

 

Section 10 provides that a party to a conversation who used or caused to be used, a listening device, cannot communicate or publish any record of the conversation made by use of the device. In sub-section 2 exceptions are raised which include where the communication or publication is:

  • Made in the course of legal proceedings, or

  • Reasonably necessary for the protection of the lawful interests of the person making the communication or publication, or...

     

    ORDER FOR FULL TEXT.

 

 

Possession of Records

Section 11 stated that one cannot maintain possession of a record of a private conversation. This includes not only sound recordings, but transcripts, and any other information. It covers instances where a listening device has been used in breach of section 5, and where a conversation was overheard inadvertently with a surveillance device. The only exception relevant to civilian law enforcement is where a person is provided with a communication or publication in circumstances that do not contravene this part of the Act. Every recipient – and presumably the person who made the record – must destroy it, regardless of whether they know the law was breached or not....

 

ORDER FOR FULL TEXT.

 

Optical Devices

There is no regulation concerning Optical Devices in Tasmania.

 

Tracking Devices

There is no regulation concerning the use of tracking devices in Tasmania.

 

Written by Andrew Pingree. All copyright, 2014-2016 vests in Civilaco Pty Ltd.

Commercial Intelligence - investigative solutions for Geleong, Melbourne and western Victoria
Australian Legal Education - training in law basics for small business