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Legal Guide to Surveillance Legislation in NSW

Legal Guide to Surveillance Legislation in NSW

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 their use.

Surveillance Legislation in New South Wales

 

1.1. Legislation

The Surveillance Devices Act 2007 (NSW) (‘the Act’) regulates the installation, use, maintenance and retrieval of surveillance devices in NSW.

A ‘surveillance device’ means a data surveillance device, a listening device, an optical surveillance device, or a tracking device.

A ‘device’ includes instruments, apparatus and equipment.

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 any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear. Common examples: Handheld devices such as mobile phones and tablets, which have inbuilt audio recording capabilities; voice recorders/dictation equipment, audio bug surveillance devices.

Note that a device is considered a listening device even if it is also capable of recording or transmitting a visual image (example: a video camera), or recording or transmitting its own position.

When is it an offence to use a listening device

Generally, it is an offence to knowingly install, use or cause to be used, or maintain a listening device to record a private conversation, whether or not the person is a party to that private conversation.

If a person is not a party to a private conversation it is also an offence for them to knowingly install, use or cause to be used, or maintain a listening device to overhear, monitor, or listen to the private conversation.

Common scenarios:

  • It is an offence for a person to install an audio bug surveillance device in his home in order to overhear, 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 be a federal offence under the Telecommunications (Interception and Access) Act 1979 (Cth) – see below for further information.

When can a listening device be used

It is legal to record a conversation to which the person is a party to if all parties consent, expressly or impliedly, to the listening device being used.

It is also legal to record a conversation to which a person is a party to if one principal party (e.g. the person recording) consents to the recording of the conversation and it is either:

  • reasonably necessary for the protection of the lawful interest of that principal party (see note below), or
  • the recording is not made for the purpose of communicating or publishing the conversation or a report of it to persons who are not parties to the conversation

The onus of proof for establishing the above exception lies on the party seeking to establish the exception, and that onus is on the balance of probabilities.

Reasonably necessary for the protection of the lawful interest of that principal party:
There is a distinction between lawful interest and legal interest. Lawful interests are interests which are not unlawful; its meaning is similar to the expressions ‘legitimate interests’ or ‘interests conforming to law’ – see Violi v Berrivale Orchards Ltd (2000) 173 ALR 518, 523 [28].

Whether a recording is reasonably necessary for the protection of the lawful interests of a party is objectively determined, having regard to the lawful interest existing at the time of making the recording.

Common scenarios:

  • A person in need of protection covertly records the abuse/assaults directed at her.
  • A person in need of protection records child contact changeovers.
  • It is not an offence for one party to record a changeover at McDonalds with the other party because it is in a public space, with no reasonable expectation that conversation will not be heard by others
  • It is not an offence for a woman being assaulted by her partner to record the assault secretly (e.g. mobile phone set to record and placed in her pocket).
Where can I find this information in the Act?

See sections 4 and 7 of the Act. 

1.3. Use of Optical Surveillance Devices

An ‘optical surveillance device’ means any device capable of being used to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment. Common examples: handheld devices such as mobile phones and tablets with a camera, cameras, binoculars, ‘spy cameras’.

When is it an offence to use an optical surveillance device

Generally, if the installation, use or maintenance of an optical surveillance device involves:

  • entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle; or
  • interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object,

it would be an offence to knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity.

Common scenarios:

  • It would be an offence for a person to break into his ex-partner’s house or enter her property without her consent to install a surveillance camera.
  • It would be an offence for a person to break into his ex-partner’s vehicle to install a surveillance camera.

When can an optical surveillance device be used

As long as the installation, use or maintenance of an optical surveillance device does not involve the unauthorised entry onto/into a premise or vehicle or unauthorised interference with a vehicle or other object, it is not an offence under section 8 of this Act.

Common scenario:

  • A person may generally install surveillance cameras on their property. 

However, the use of the surveillance cameras might be in contravention of other laws – for example, it would be a criminal offence for a person to install a surveillance camera in the bathroom of his own home to film a person getting in and out of the shower, knowing that the person has not consented to being filmed in such a way. For relevant criminal offences, please see the Legal Guide to Relevant Criminal Offences.

Where can I find this information in the Act?

See sections 4 and 8 of the Act.

1.4. Use of Tracking Devices

A ‘tracking device’ means any electronic device capable of being used to determine or monitor the geographical location of a person or an object. 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

Generally, it is an offence to knowingly install, use or maintain a tracking device to determine the geographical location of a person without their permission, or to determine the geographical location of an object without the permission of the person in lawful possession or having lawful control of that object.

It is an offence to track someone’s geographical location without their consent by using:

  • an standalone GPS tracking device
  • an application on a person’s mobile phone that tracks GPS location
  • a program such a ‘find my iPhone’

When can a tracking device be used

The only exceptions that apply relate to using a tracking device ‘for a lawful purpose’. There is no case law or commentary about what the court considers a ‘lawful purpose’ to be. In the absence of any direct guidance, the meaning of a ‘lawful purpose’ could be taken to be similar to the meaning of a ‘lawful interests’ (as used in relation to an exception where a listening device may be used) – i.e. a purpose that is not unlawful, similar to a legitimate purpose or a purpose conforming to law. 

Where can I find this information in the Act?

See sections 4 and 9 of the Act.

1.5. Use of Data Surveillance Devices

A ‘data surveillance device’ means any device or program capable of being used to record or monitor the input of information into or output of information from a computer, but does not include an optical surveillance device. Common examples: Computer and mobile phone spyware such as mSpy and SniperSpy. 

Note: Smartphones are considered computers under this legislation.

When is it an offence to use a data surveillance device

Generally, a person must not knowingly install, use or maintain a data surveillance device on or in premises to record or monitor the input of information into, or the output of information from, a computer on the premises if the installation, use or maintenance of the device involves:

  • entry onto or into the premises without the express or implied consent of the owner or occupier of the premises, or
  • interference with the computer or a computer network on the premises without the express or implied consent of the person having lawful possession or lawful control of the computer or computer network.

Common scenarios:

  • A person cannot enter a premise (home/office) with the permission of the owner or occupier of that premise to install a data surveillance device on a computer within.
  • A person, even if permitted to be on/in a premise, cannot interfere with a computer to install a data surveillance device without the permission of the person having lawful possession or lawful control of the computer.
  • A person cannot install a data surveillance device on a computer remotely (using malware as a carrier) as it would involve interference with the computer or its network without the permission of the person having lawful possession or lawful control of the computer.

When can a person use a data surveillance device

No relevant exceptions in a domestic violence context.

Where can I find this information in the Act?

See sections 4 and 10 of the Act.

1.6. Sharing of Private Conversations or Recordings of Activities

A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.

Surveillance Devices Act 2007 (NSW), section 11
Prohibition on communication or publication of private conversations or recordings of activities

‘Record’ includes the following: 

  1. an audio, visual, or audio visual record
  2. a record in digital form
  3. a documentary record prepared from a record referred to in (a) or (b)

‘Report’ of a conversation or activity includes a report of the substance, meaning or purport of the conversation or activity.

When is it an offence to share a private conversation or recordings of activities

If a person has knowledge of a private conversation or the carrying on of an activity that was obtained directly on indirectly through the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of Part 2 of the Act (Regulation of installation, use and maintenance of surveillance devices), that person is prohibited from publishing or communicating to any person:

  • knowledge of the private conversation; or 
  • a record of the carrying on of the activity, or
  • a report of a private conversation or carrying on of an activity.

When can a private conversation or recordings of activities be shared

There are several exceptions that apply. Most relevantly in this context, communication or publication is allowed if it is no more than is reasonably necessary in connection with an imminent threat of serious violence to persons or of substantial damage to property.

A private conversation or recordings of activities can be shared if it was obtained in such a manner that does not constitute a contravention against this Act. 

Where can I find this information in the Act?

See sections 4 and 11 of the Act.

1.7. Possession of a Record of a Private Conversation or Activity

When is it an offence to possess a record of a private conversation or activity

Generally, it is an offence for a person to possess a record of a private conversation or the carrying on of an activity if they know that it has been obtained directly or indirectly by the use of a listening device, optical surveillance device, or tracking device in contravention of sections 7, 8, or 9 of this Act.

When can a person legally possess a record of a private conversation or activity

One exception is if the principal parties to the private conversation or the persons who took party in the activity consent to the person possessing a record of the private conversation or activity.

Another exception is if the person possesses the record as a consequence the record being shared with that person in a manner that is not in contravention of section 11.

Where can I find this information in the Act?

See section 12 of the Act.

1.8. Sharing of Information from the Use of a Data Surveillance Device

A person must not publish, or communicate to any person, any information regarding the input of information into, or the output of information from, a computer obtained as a direct or indirect result of the use of a data surveillance device in contravention of this Part.
Surveillance Devices Act 2007 (NSW), section 14
Communication and publication of information form the use of a data surveillance device

Note: This is similar to section 11 of the Act in relation to the sharing of private conversations of recordings of activities.

When is it an offence to share information obtained from the use of a data surveillance device

If a person has obtained information from the use of a data surveillance device in contravention of section 10 of this Act, it is an offence to share that information.

When can information obtained from the use of a data surveillance device be shared

There are several exceptions that apply, however. Most relevantly in this context, communication or publication is allowed if it is no more than is reasonably necessary in connection with an imminent threat of serious violence to persons or of substantial damage to property.

Note: This is identical to the exception that applies to the sharing of private conversations or recordings of activities.

Where can I find this information in the Act?

See section 14 of the Act.

1.9. 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. For example, some offences have a maximum penalty of a fine of 100 penalty units, others have a maximum penalty of a fine of 50 penalty units.

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.

Section 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW) states the dollar amount for one penalty unit. As of July 2015: one penalty unit = $110. Therefore, an offence with a maximum penalty of a fine of 50 penalty units will have a maximum fine of $5,550.

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.