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Legal Guide to Surveillance Legislation in Northern Territory

Legal Guide to Surveillance Legislation in Northern Territory

This guide explains what the law says about surveillance devices – when it is an offence to use them and what the restrictions are on sharing information/videos/pictures obtained through the use of surveillance devices.

Surveillance Legislation in Northern Territory

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1.6
1.7

 

1.1. Legislation

The Surveillance Devices Act 2007 (NT) regulates the use of surveillance devices in the Northern Territory. It also restricts the use, communication and publication of information obtained through the use of surveillance devices.

A ‘surveillance device’ includes a data surveillance device, listening device, optical surveillance device or tracking device or a device that combines any of these purposes.

A ‘device’ can include, for example, an apparatus, equipment, instrument or machine.

Where can I find this information in the Act?

See section 4 of the Act for definitions of terms used in the Act

1.2. Use of Listening Devices

A ‘listening device’ means a device capable of being used to listen to, monitor or record a conversation or words spoken to or by a person in a conversation. This does not include, for example, a hearing aid.

Common examples: Handheld devices such as mobile phones and tablets, which have inbuilt audio recording capabilities; voice recorders/dictation equipment, audio bug surveillance devices.

When is it an offence to use a listening device

It is an offence for a person to install, use or maintain a listening device knowing they do not have the consent (express or implied) of each party to the conversation, to listen to, monitor or record a private conversation to which that person is not a party.

Remember this prohibition is only for private conversations. A listening device can be used where the conversation is not private. Private conversations do not include conversations where those involved should have reasonably expected that the conversation may be overheard. 

For example:

  • A conversation between two people in a crowded food court that is loud enough for the people seated next to them to hear would not be private
  • A conversation between two people at low volume in a busy park where there is no one close to them would be a private conversation
  • A conversation between two people taking place in a private home where they are alone would be a private conversation.

Remember this prohibition is only for conversations to which a person is not a party. A person is a ‘party’ to a private conversation if words are spoken by them or to them in the course of the conversation. If they are a party to the conversation, there is no prohibition on them using a listening device.

Maximum penalty:  250 penalty units or imprisonment for 2 years.

Common scenarios:

  • It is an offence for a person to install an audio bug surveillance device in his home to record, monitor, or listen to private conversations his wife has with other people, for example to listen to what she says in telephone conversations with other people. → If that person installed a bug on the telephone to intercept and listen/record both sides of the telephone conversation then it would also be a federal offence under the Telecommunications (Interception and Access) Act 1979 (Cth) 
  • A woman has been getting constant calls from a private number, she picks up and recognises the voice to be her ex-partner who threatens to harm her. The woman installs an App on her smartphone that records telephone conversations so the next time the private number calls, she records the incoming call and his direct threats to her safety. The woman has not committed an offence as she was a party to the private conversation she recorded.
Where can I find this information in the Act?

See section 11 of the Act.

When can a listening device be used

There are a number exceptions to this offence. They include:

  • Where there is a police warrant allowing it
  • Where a law enforcement officer is acting the performance of their duty and monitors or records the private conversation with the express or implied consent of at least one party to the conversation and the officer reasonably believes it is necessary to do so for the protection of someone’s safety

A listening device can also be used in the case of emergency. For this emergency exception to apply, the person seeking to rely on the exception must show at the time of use there were reasonable grounds for believing the circumstances were so serious and the matter was of such urgency that the use of the device was is in the public interest.

‘Public interest’ 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.

For example, if a mother sets up a listening device in her child’s bedroom because she suspects the child’s father is asking the child for sexual favours, this could be argued as necessary to protect the best interests of the child, in the public interest. 

If a person seeks to rely on this emergency use, they must, within two business days of starting use, provide a written report to a Judge of the Northern Territory Supreme Court. If they do not provide this report, they are guilty of an offence with a maximum penalty of 100 penalty units or imprisonment for 1 year.

The report should include:

  1. Particulars of the device used;
  2. Particulars of the use of the device and the period during which it was used;
  3. The name, if known, of any person whose private conversation was listened to, monitored or recorded or whose private activity was observed or visually recorded;
  4. The circumstances that caused the person to believe it was necessary to listen to, monitor or record the private conversation or observe or visually record the private activity;
  5. The general use made or to be made of any evidence or information obtained by use of the device.
Where can I find this information in the Act?

See sections 11, 41, 43 and 45 of the Act.

1.3. Use of Optical Surveillance Devices 

An ‘optical surveillance device’ means a device capable of being used to monitor, record visually or observe an activity. It does not include , for example, spectacles or contact lenses.

Common examples: handheld devices such as mobile phones and tablets with a camera, cameras, drones with cameras, binoculars, ‘spy cameras’.

When is it an offence to use an optical surveillance device

It is an offence for a person, knowing that they do not have the express or implied consent of each party to a private activity, to install, use or maintain an optical surveillance device to monitor, record visually or observe a private activity to which the person is not a party.

Remember this prohibition is only for private activities. An optical surveillance device can be used where the activity is not private. Private activities are where the circumstances may reasonably be taken to indicate any of the parties to the activity desire it to only be observed by themselves. It does not include activities where those involved should have reasonably expected that activity might be observed by someone else. 

Remember this prohibition is only for activities to which a person is not a party. A person is a ‘party’ to a private activity if they take part in the activity. If they are a party to the activity, there is no prohibition on them using an optical surveillance device.

Maximum penalty:  250 penalty units or imprisonment for 2 years.

Where can I find this information in the Act?

See sections 4 and 12 of the Act.

When can an optical surveillance device be used

There are a number exceptions to this offence. They include:

  • Where there is a police warrant allowing it
  • Where a law enforcement officer is acting the performance of their duty and installs, uses or maintains a device with authorisation of the occupier and it is reasonably necessary for the protection of someone’s lawful interest
  • Where a law enforcement officer is acting the performance of their duty and uses an optical surveillance device and it does not involve entry on a place or interference with a vehicle or other thing without permission

An optical surveillance device can also be used in the case of emergency. For this exception to apply, the person seeking to rely on the exception must show at the time of use there were reasonable grounds for believing the circumstances were so serious and the matter was of such urgency that the use of the device was is in the public interest.

‘Public interest’ 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.

If a person seeks to rely on this emergency use, they must, within two business days of starting use, provide a written report to a Judge of the Northern Territory Supreme Court. If they do not provide this report, they are guilty of an offence with a maximum penalty of 100 penalty units or imprisonment for 1 year.

The report should include:

  1. Particulars of the device used;
  2. Particulars of the use of the device and the period during which it was used;
  3. The name, if known, of any person whose private conversation was listened to, monitored or recorded or whose private activity was observed or visually recorded;
  4. The circumstances that caused the person to believe it was necessary to listen to, monitor or record the private conversation or observe or visually record the private activity;
  5. The general use made or to be made of any evidence or information obtained by use of the device.
Where can I find this information in the Act?

See sections 12, 41, 44 and 45 of the Act.

1.4. Use of Tracking Devices

A ‘tracking device’ means an electronic device that may be used to determine the geographical location of a person or thing.

Common examples: GPS tracking device, mobile phones with GPS tracking activated, a desktop computer/laptop/mobile device linked to a GPS tracker on the person being tracked.

When is it an offence to use a tracking device

It is an offence for a person to install, use or maintain a tracking device to determine the geographic location of another person, knowing that they have done so without the express or implied consent of that person.

It is also an offence for a person to install, use or maintain a tracking device to determine the geographic location of a thing, knowing that they have done so without the express or implied consent of the person in lawful possession or who has lawful control of that thing.

Maximum penalty: 250 penalty units or imprisonment for 2 years.

Where can I find this information in the Act?

See section 13 of the Act.

When can a tracking device be used

The exceptions to this offence are limited and include:

  • Where there is a police warrant allowing it
  • Where a law enforcement officer is acting the performance of their duty and installs the device on a thing in a public place. For example, the police officer investigating a matter attaches a tracking device to a suspect’s car on a street 

1.5. Use of Data Surveillance Devices

A ‘data surveillance device’ means a device capable of being used to monitor or record the information being put on to or retrieved from a computer.

The legislation only regulates the installation, use and maintenance of data surveillance devices by law enforcement officers; it is silent on the use of data surveillance devices by the general population.

However, the unauthorised installation, use, or maintenance of a data surveillance device could potentially be an offence under the Criminal Code 1983 (NT) sections 276B to 276D ‘computer offences’. For further information please see the Legal Guide to Relevant Criminal Offences.

1.6. Sharing of Private Conversations and Activities

When is it an offence to share private conversations or activities

It is an offence for a person to communicate or publish a record or report of a private conversation or private activity, knowing that the record or report has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device.

Maximum penalty:  250 penalty units or imprisonment for 2 years.

Common scenarios that are offences (unless an exception applied):

  • Two people consensually film a sexual act in private (not a contravention of the surveillance legislation) and one person later shares it without the consent of the other party
  • A person uses a listening device to monitor another person’s private telephone conversations without their consent then publishes the details of a conversation they were not involved in as a public Facebook status update
  • A person has made a covert recording of another person getting undressed in private publishes that recording online on a public website
Where can I find this information in the Act?

See section 15 of the Act.

When can a private conversation or recordings of activities be shared

There are a number exceptions to this offence. They include:

  • Where each party to the private conversation or private activity impliedly or expressly consented to the communication or publication
  • Where the communication or publication was no more than was reasonably necessary for the protection of the lawful interests of the person making it
    • For example, a woman could report to police if she used a listening device to record a private conversation between her ex-partner and an accomplice discussing their intentions to harm her
  • Where the information is being communicated or published in the course of legal or disciplinary proceedings
  • Where the communication or publication was made by a law enforcement officer while performing their duties 

If a person has used a listening device or an optical surveillance device in accordance with the emergency use in public interest exceptions (sections 43 or 44), they can apply for a court order to allow them to publish or communicate a private conversation, a report or record of a private conversation, or a record of a private activity.

A judge can only make such an order if satisfied the publication or communication should be made to protect or further the public interest.

Where can I find this information in the Act?

See sections 15 and 46 of the Act.

LEGAL ADVICE: At any stage, it is important for a person to obtain legal advice about their situation and the options available to them. Please see the legal services directory in the Support page for referrals to the nearest legal service. 

1.7. Terminology

Language of 'Victim' vs 'Survivor'

Some women who are experiencing, or who have experienced, domestic violence use the term 'victim' of domestic violence to describe themselves. Others believe the term 'survivor' of domestic violence more accurately reflects their experience.

Whilst acknowledging that each woman's experience is unique and individual to her circumstances, for consistency, these guides will refer to women who are experiencing, or who have experienced, domestic violence as 'victims' of domestic violence.

Gender and Language

While domestic violence can happen in many circumstances (including in non-heterosexual relationships), in the vast majority of reported domestic violence cases men are the perpetrators and women the victims.

For this reason these guides use 'he' to refer to perpetrators and 'she' to refer to victims. This is not intended to exclude other situations.

Definitions

Criminal Offence (or offence)
A criminal offence is an offence against the State. It is commonly referred to as 'breaking the law'.

Summary offence
Less serious offences (such as minor theft), are known as summary offences. Summary offences usually have a maximum penalty of no more than 2 years imprisonment or are not punishable by imprisonment at all.

Indictable (serious) offence
More serious offences (such as murder, manslaughter, sexual assault) are known as indictable offences. Indictable offences are punishable by imprisonment exceeding 2 years.

Charge
When a person is charged with an offence, it means that the police have formally accused that person of committing an offence.

Conviction
When a person is convicted of an offence, it means that person has either pleaded guilty to committing the offence, or a court has found that person guilty of committing the offence.

Penalty unit
A penalty unit describes the amount payable for a fine.

Penalty units are used instead of dollar amounts because the rate for penalty units is indexed for inflation and may therefore change from time to time.

The Department of Treasury and Finance set the dollar amount for one penalty unit; this value is updated on 1 July each year. As of 1 July 2015: one penalty unit = $153. Therefore, an offence with a maximum penalty of a fine of 50 penalty units will have a maximum fine of $7,650.

DISCLAIMER: The use of technology-facilitated violence is a developing area of the law. The legal information, examples and scenarios contained in the guide are intended to explain the law in general terms only and are not legal advice. They cannot be relied upon or applied by readers in their own cases. Each set of circumstances needs to be looked at individually. You should seek legal advice about your own particular circumstances.