Introduction

The law governing the use of surveillance technologies in Victoria mostly is contained in the Surveillance Devices Act 1999. The face value meaning of the legislation is quite well known, but there is more to be gained by using judicial authorities from other states and territories where the wording and semantics of the various parallel Acts is sufficiently similar. In addition the Federal Telecommunications (Interception  and access) Act 1979 also governs the practice of wire tapping. The latter is treated by some as a blanket rule preventing the recording of telephone conversations without consent, but in fact its application is much narrower than that. 

The opinions expressed here arise from a two year long study of surveillance devices law in all Australian jurisdictions as well as other overlapping areas of law.

​

Telephone Conversations and Network Interception

Section 7 is the main operational provision for our purposes in the Telecommunications (Interception and Access) Act 1979 (Cth). It states that a person shall not intercept a communication passing over a telecommunications system. Section 7 also creates an accessorial offence, and places an onus on persons to prevent unlawful interceptions. The wording is sufficiently broad to prohibit the interception of data calls, emails, faxes and SMS messages.

The definition of interception in section 6 shows that interception is something that occurs while the signal is in transit across the network. Therefore listening to and recording the acoustic signal does not qualify as interception and is not caught by the Act. This approach has been used in court judgments such as T v Medical Board of South Australia (1992) 58 SASR 382, 398-399 and Green v The Queen (1995) 124 FLR 423, 430-433; (1995-6) 85A Crim R 229.

Once the signal has left the network and has been converted to sound, the provisions of the State or Territory in which the recording and monitoring is done have jurisdiction.

​

Victorian Legislation - Surveillance Devices

Listening and Optical Devices

In the Surveillance Devices Act 1999 (Vic) 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. Section 7 is worded in a near-identical manner but deals with optical surveillance devices of private activities. It is an offence to breach either provision, attracting a sentence of up to two years or a fine.

​

Parties

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. Gathering evidence by listening or optical means is lawful as long as the investigator, or a person doing the recording on their behalf, is involved in what is being monitored or recorded. The court in WK v The Queen [2011] VSCA 345 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. Section 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

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 defined the same way, but there is no outdoors exception. Therefore while an activity may freely be videoed outdoors, where there is no-one else around and audio privacy is nevertheless 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, Ivan Leonard [Ruling] [1994] VicSC 776, followed in R v East [2003] NTSC 42. As ‘private’ is the operative word, then the same principle applies to activities.

 

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. There are no exceptions to allow tracking to be performed without consent under any circumstance. This is a good thing because tracking is so powerful a tool in surveillance operations and in criminal activities that it gives even an inexperienced user a degree of advantage that is entirely unfair.

 

The Victorian legislation differs from others in that it only prohibits the use of devices if the giving of a geographic location is a primary function. Parallel legislation in other states and territories which does not require that tracking be a primary function may be capable inadvertently of catching mobile telephones and the like, which could create complications if applied rigidly.

​

​​