A Commonwealth Act

Recommendation 14–1 The Commonwealth Government should enact surveillance legislation to replace existing state and territory surveillance device laws.

14.15 There are significant inconsistencies between existing state and territory surveillance device laws. There are differences between the laws with respect to the types of surveillance devices covered, the types of activities which amount to an offence, and the defences and exceptions that apply.

14.16 Existing surveillance device laws apply, variously, to listening devices, optical surveillance devices, data surveillance devices and tracking devices. However:

  • optical surveillance devices are not regulated by the surveillance device laws of the ACT, Queensland, SA or Tasmania;

  • data surveillance devices are not regulated by the surveillance device laws of the ACT, Queensland, SA, Tasmania, or WA, and are only regulated by the Victorian and NT surveillance device laws when used, installed or maintained by law enforcement officers; and

  • tracking devices are not regulated by the surveillance device laws of the ACT, Queensland, SA, or Tasmania.

14.17 The offences for carrying out surveillance are also inconsistent. For example:

  • the offence for optical surveillance of a private activity in Victoria does not apply to activities carried on outside a building. This means that optical surveillance of activities in a person’s backyard, for example, is not an offence under the Victorian Act;[7]

  • the offences for optical and data surveillance in NSW do not depend on the nature of the activity or information placed under surveillance, but only on whether the installation, use or maintenance of the surveillance device required entry onto premises or interference with a car, computer or other object;[8] and

  • the offences for data surveillance in Victoria and the NT provide a more general offence for using a data surveillance device to monitor information input to, or output from, a computer system, but these offences only apply to law enforcement officers.[9]

14.18 There are also some significant differences between the defences and exceptions under existing surveillance device laws:

  • some jurisdictions provide a ‘participant monitoring’ exception, allowing the surveillance of a private conversation or activity by a party to the conversation or activity, even if the other participants have not provided consent;[10]

  • some jurisdictions provide an exception if the surveillance has the consent of all ‘principal parties’ to a conversation, being those parties that speak or are spoken to in a private conversation or who take part in a private activity;[11]

  • some jurisdictions provide an exception if the surveillance has the consent of one principal party to a conversation and is reasonably necessary for the protection of a lawful interest of that principal party;[12]

  • some jurisdictions provide an exception if the surveillance has the consent of one principal party and is not carried out for the purpose of communicating the recording, or a report of the recording, to anyone who was not a party to the conversation or activity;[13] and

  • some jurisdictions provide an exception where the use of a surveillance device is in the public interest.[14]

14.19 Due to these inconsistencies, the legal rights and interests of an individual who is under surveillance, and the legal liabilities of an individual or organisation that uses a surveillance device, are highly contingent upon their location.

14.20 Other inconsistencies exist with respect to issues such as the use of surveillance devices by law enforcement, the issuing of warrants, and cross-border investigations. These inconsistencies have been considered by the Standing Committee of Attorneys-General and the Australasian Police Ministers Council Working Group on National Investigation Powers.[15] This process resulted in the passage of the Surveillance Device Act 2004 (Cth), which regulates the use of surveillance devices by federal law enforcement officers, but does not regulate the use of surveillance devices by individuals more generally.

14.21 There was widespread agreement from stakeholders about the desirability of surveillance device laws applying in the same way across Australia. Several stakeholders noted the benefits in protecting the privacy of individuals.[16]

14.22 Many stakeholders also noted the benefits to businesses, particularly where a business operates in multiple states or territories. The Australian Bankers’ Association, for instance, submitted that:

Banks and many other businesses operate on a national basis and are able to conduct their businesses more efficiently, with better convenience for their customers and in order to comply with consumer protection type laws if those laws are nationally uniform or consistent. National consistency contributes to national productivity and better outcomes for consumers.[17]

14.23 The Media and Communications Committee of the Law Council of Australia similarly submitted that:

The Federal, State and territory laws governing surveillance devices, tracking devices, listening devices laws and unlawful surveillance are an inconsistent patchwork with no unifying principles of operation.

This is an existing ‘red tape’ cost to business. National laws should operate in this area and those laws should be based upon a coherent rationale for regulation.[18]

14.24 Free TV also noted the benefits for media organisations of having the same law throughout Australia,[19] while the Australian Institute of Professional Photography submitted that ‘uniform Commonwealth laws are essential so that individual small photography businesses have some level of certainty about how they can operate anywhere in Australia’.[20]

14.25 While there was wide agreement on the need for removing inconsistencies, a number of stakeholders were concerned about the basis on which this might be achieved. The Australian Privacy Foundation, for example, submitted that

uniformity should not be achieved at the expense of watering down Australians’ rights to be free from unauthorised surveillance and any standardisation should be based on ‘best practice’ protection of privacy and not on ‘lowest common denominator’ protection.[21]

14.26 SBS supported uniformity, ‘provided that the legislation allows for broad public interest concerns to permit both the creation of a recording, and the subsequent communication of that recording by the media’.[22]

14.27 The ALRC recommends that Commonwealth legislation should be introduced to cover the field with respect to surveillance devices. This legislation would effectively replace the existing state and territory surveillance device laws, and ensure that the law of surveillance devices was the same throughout Australia. Stakeholders were generally supportive of the introduction of federal legislation to cover the field of surveillance device law.[23]

14.28 Commonwealth surveillance devices legislation would likely be supported by the external affairs power of the Australian Constitution, as a means of giving effect to Australia’s obligation under art 17 of the International Covenant on Civil and Political Rights to protect privacy.[24] The external affairs power allows the federal government to enact legislation that may be reasonably considered appropriate and adapted to fulfilling an obligation under an international treaty.[25] Since the primary purpose of surveillance legislation is the protection of privacy, it is likely that this requirement would be met.

14.29 Commonwealth legislation would likely be subject to some constitutional limitations with respect to state law enforcement agencies. The Melbourne Corporation doctrine prevents the Commonwealth from enacting laws interfering with the capacity of the states to function as governments.[26] Due to this doctrine, it may be necessary for federal surveillance devices legislation to include provisions either exempting state law enforcement agencies from the federal surveillance devices legislation or providing a defence for surveillance carried out in accordance with a state law.

14.30 As an alternative to the Commonwealth enacting surveillance legislation to cover the field, states and territories could develop uniform or mirror surveillance legislation. However, some stakeholders expressed reservations about this approach. The Australian Privacy Foundation submitted that ‘requiring agreement among the States and Territories is likely to lead to a protracted law reform process’.[27] Professor Des Butler noted that

Near uniformity was achieved in defamation laws through the actions of [the Standing Committee of Attorneys-General], but only after over 20 years of debate. While the experience with defamation laws serves as an example where uniformity is possible, the position regarding surveillance devices would appear to reflect such disparate agendas among the jurisdictions that it may be preferable for the Commonwealth to legislate to cover the field in this instance.[28]

14.31 Given such concerns, the ALRC considers that it would be preferable for the Commonwealth Government to enact surveillance legislation which would apply in the same way throughout Australia.