Surveillance Devices Law
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.
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. Secondly by outlawing persons permitting the use of a listening device, an onus is placed upon anyone who knows of a use or intended use and who has the power to put a stop to it, or to draw the attention of relevant authorities to it.
Sub-section 2 lists exceptions. Paragraph d allows for unintentional hearing, which would be relevant when talking by telephone and a private conversation occurs in the background at one party’s end. Sub-section 3 lists further exceptions including paragraph b where a principal party to the conversation consents to the use of the device and the use is reasonably necessary for the protection of the lawful interests of that party.
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:
a) Made in the course of legal proceedings, or
b) Reasonably necessary for the protection of the lawful interests of the person making the communication or publication, or
c) Made to a person who has (or is reasonably believed to have) such an interest in the private conversation as to make the communication or publication reasonable.
The third point listed here is well suited to the business of a private investigator. Such interests may include emotional interests, perhaps related to family matters, financial issues or occupational interests, or they may relate to an intended legal action as plaintiff where an interest is to be established to be lawful or otherwise.
As in other states, protection of lawful interests and the course of legal proceedings are other bases on which a publication or communication can be made. The course of legal proceedings is likely to be when a matter has either been lodged with a court or is going through some other legal process, rather than merely when such processes are only under consideration. See the discussion on lawful interests under Confluent Issues, above, in particular the discussion of the definition shared with the Northern Territory.
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. Journalists therefore need to be especially aware of this rule. 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.
The 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. Therefore if recording or record is lawfully made or communicated than it may be kept.
There is no regulation concerning Optical Devices in Tasmania.
There is no regulation concerning the use of tracking devices in Tasmania.