Surveillance Devices Law
Victoria - Listening and Optical Devices
The Surveillance Devices Act 1999 (Vic) covers the largest range of surveillance devices of any of the surveillance devices Acts. It covers listening devices, optical surveillance devices, tracking devices and data surveillance (both devices 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.
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.
 WK v The Queen  VSCA 345.
 R v Storey, Ivan Leonard [Ruling]  VicSC 776. Followed in R v East  NTSC 42.