Surveillance Devices Law

Western Australia - 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.

 

Exceptions exist in sub-section 2 of both sections including for the inadvertent hearing or recording of a conversation or activity. Further exceptions exist in sub-section 3 of both sections allowing a party to the conversation to use, install or maintain a listening device where one principal party consents, and the use, installation or maintenance is reasonably necessary for protection of that principal party’s lawful interests.

 

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. The requirement that only one party and not a plurality of parties need expect privacy is interesting and would be of particular importance in remote conversations such as by telephone where the parties are separated. It would be effective also in dealing with a rouse where the expectation of privacy is only a result of some form of deception by the other parties.

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Parties and Principal Parties

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. The requirement that only one party and not a plurality of parties need expect privacy is interesting and would be of particular importance in remote conversations such as by telephone where the parties are separated. It would be effective also in dealing with a rouse where the expectation of privacy is only a result of some form of deception by the other parties.

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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. It was found that necessity includes not essential or unavoidable actions, but also those reasonably appropriate and adapted to the situation. In other words the law has been given a highly permissive reading, so that where a lawful interest is at stake and covert recording or monitoring by one principal party is a reasonable and effective step to take, then it is allowed.

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Lawful interests are distinguished from legal interests. This provision is an allowance for a person to act in defence of an interest that may be threatened, rather than to attain something new that the law may entitle them to. The court in Georgiou allowed that what is a lawful interest should be judged on the circumstances of the case.[2] See the discussion on lawful interests under Confluent Issues, above.

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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.

 

However a very different picture emerges in s 26(3) (within Part 5). This sub-section allows the use of listening devices to assist in the protection of the interests of a child or a person unable to consent due to mental impairment, as long as such is also in the public interest. This application of the concept of public interest is clearly focused on the wellbeing of individuals unable to help themselves, as the direct point of conducting surveillance. There is no extrapolation in the legislation from the effect on the individual case to the effect on the nation. Rather it seems that the manner in which to judge where a case stands with respect to the public interest is to consider whether it is a social good or detriment that surveillance be carried out in all instances of the relevant context. To illustrate, because the insurance industry is important to economic stability and it needs suspect claims investigated and fraudsters made examples, investigations into claims actually are in support of ‘the economic wellbeing of Australia.’ Two court rulings have been passed on the interpretation of public interest in the Western Australian legislation. These are discussed under Confluent Issues heading, above. This latitude, however, does not in any way diminish the requirements of section 31.

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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.

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