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:

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

c) In the course of legal or disciplinary proceedings, or

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.[1]

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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[2] 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[3] furnishes us with an example of paragraph (d) in action.

 

The exception ‘in the public interest’ was addressed in Rezaiee v Australian Broadcasting Corporation[4] 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.

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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.

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

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

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

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

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