Surveillance Devices Law

WA - Listening and Optical Devices

The Surveillance Devices Act 1998 (WA) encompasses the use of listening, optical and tracking devices and the publication of information arising from such use. It is a rather complex Act warranting careful examination. There are also separate provisions in the Act which allow exceptions to the law where use of such devices is in the public interest.

 

Listening and Optical Devices

It is unlawful, subject to section 5, to install, use or maintain a listening device, or to cause the same to occur, to record, monitor or listen to a private conversation. Section 6 is worded very similarly with respect to video monitoring and recording of private activities. It does not matter whether or not the person doing such is a party to the conversation or activity in question. A breach of this provision is an offence punishable by a fine or imprisonment of up to one year....

 

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Private Conversation and Private Activity

Private conversations and private activities are defined in section 3 in a similar manner to other jurisdictions, but with one important distinction. The definition is one carried out in circumstances that indicated that any one party (singular) desires it to be listened to or observed only by themselves. Excluded from the definition is a conversation or activity in circumstances where the parties (plural) ought reasonably expect it may be overheard....

 

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Parties and Principal Parties

The terms, party and principal party are both defined in section 3. A principal party is ‘...a person by or to whom words are spoken in the course of the conversation...’ or ‘who takes part in the activity.’ The definition of a party  includes this, but also includes a person who, with the express or implied consent of any of the principal parties, records, monitors or listens to those words....

 

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Surveillance for the Protection of Lawful Interests

The phrase, ‘reasonably necessary for the protection of the lawful interests...’ occurs in the Western Australian legislation with respect to the act of surveillance, not just communication of results. This means that if surveillance of private conversations or activities is to be carried out for a genuine interest of a person, two matters must be considered, those being whether the interest is lawful, and whether the use of a surveillance device is appropriate.

 

In Georgiou Building v Perrinepod[1] reasonable necessity was analysed in depth with reference to prior cases....

 

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Public Interest Investigations under Part 5

A special rule applies for investigations undertaken in the public interest in the Western Australian legislation. Use of surveillance devices receives special permission under Part 5 where the general public interest is relied upon to justify the use, rather than the other exceptions addressed in section 5 and 6. However, publication or communication of the results of surveillance that is justified by Part 5 is only permitted upon order of a judge under section 31.

 

In Part 5, public interest receives a special definition in section 24 and includes ‘...the interests of national security, public safety, the economic well-being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens.’ These are exclusively big picture issues, which seldom would arise in the course of private sector or self-help investigations, due to the usually very narrow scope of enquiry, and often the non-punitive outcome of matters of private interest and civil law. To argue that an investigation into an insurance claim is itself directly in support of ‘the economic wellbeing of Australia’ is quite a stretch....

 

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[1] Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72.

[2] Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72, [16]. Inline case references deleted. Heavy editing was undertaken here to clarify written expression.

[3] Re Surveillance Devices Act 1998; Ex Parte Tcn Channel Nine Pty Ltd [1999] WASC 246 and Channel Seven Perth Pty Ltd v "S" (A Company) [2007] WASCA 122.