14.8 Laws exist in each state and territory to regulate the use of surveillance devices. These laws provide criminal offences for conducting surveillance and for related activities, in particular for communicating information obtained under surveillance. The laws also provide for the application for, and issue of, warrants to conduct surveillance by law enforcement officers; monitoring and oversight mechanisms; public interest exceptions; conditions for the admissibility of information obtained under surveillance as evidence; and restrictions on the manufacture and supply of surveillance devices. Other laws in the ACT, NSW and Victoria regulate the use of surveillance in the workplace.
14.9 Surveillance device laws provide important privacy protection. The legislation offers some protection against intrusion into seclusion and against the collection of some information, such as recordings of private conversations. Consistency in these laws is important both for protecting individuals’ privacy and for reducing the compliance burden on organisations that use surveillance devices in multiple jurisdictions.
14.10 Protection from surveillance is a fundamental form of protection of privacy, particularly in the digital era. General Comment 16 of the UN Human Rights Committee specifically refers to surveillance, stating that:
Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited.
The gathering and holding of personal information on computers, databanks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law. Effective measures have to be taken by States to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the [International Covenant on Civil and Political Rights].
14.11 Sir Garfield Barwick, in the second reading speech for the Telephonic Communications (Interception) Bill 1960 (Cth), expressed a similar view:
eavesdropping is abhorrent to us as a people. Not one of us, I am sure, would fail to recoil from the thought that a citizen’s privacy could lightly be invaded. Indeed, many citizens no doubt feel that far too many intrusions into our privacy are permitted to be made in these times with complete impunity. Many things which might fairly be regarded as personal and of no public consequence appear in print without the citizen’s permission and without his encouragement; but in particular all of us, I think, dislike the feeling that we may be overheard and that what we wish to say may reach ears for which we did not intend the expression of our thoughts. Much of our normal life depends on the confidence we can repose in those to whom we lay bare our sentiments and opinions, with and through whom we wish to communicate.
14.12 As well as presenting a threat to privacy, surveillance threatens other important freedoms and liberties. Unauthorised surveillance may interfere with freedom of speech, freedom of movement and freedom of association. Professor Neil Richards identifies a chilling effect that surveillance may have on civil liberties:
surveillance is harmful because it can chill the exercise of our civil liberties. With respect to civil liberties, consider surveillance of people when they are thinking, reading, and communicating with others in order to make up their minds about political and social issues. Such intellectual surveillance is especially dangerous because it can cause people not to experiment with new, controversial, or deviant ideas.
14.13 Associate Professor Moira Paterson has described this chilling effect as occurring ‘where people self adjust their behaviour even if they are not doing anything wrong’:
The knowledge that their actions may be recorded and judged by unknown others may make individuals more self conscious about how they interact and what they say to other people, and even less willing to enter specific public places (for example, if they feel that they are not suitably dressed to be photographed or uncomfortable about others knowing that they frequent such places).
14.14 Surveillance device laws protect individuals against invasions of privacy carried out through the use of various types of surveillance devices. The laws are therefore narrower in scope than the statutory tort set out in Part 2 of this Report. However, the possible consequences of a contravention of the surveillance device laws—conviction for a criminal offence—are potentially more significant than liability to pay damages for a serious invasion of privacy under the statutory tort.
Surveillance Devices Act 2007 (NSW); Invasion of Privacy Act 1971 (Qld); Listening and Surveillance Devices Act 1972 (SA); Listening Devices Act 1991 (Tas); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act 1998 (WA); Listening Devices Act 1992 (ACT); Surveillance Devices Act (NT). At the Commonwealth level, the Surveillance Devices Act 2004 (Cth) makes provision for the use of surveillance devices by federal law enforcement officers. However, it does not provide for offences applicable to general members of the public. Other laws provide related protections, without necessarily being designed to control the use of surveillance devices per se. For example, s 227A of the Queensland Criminal Code provides for a misdemeanour where a person observes or visually records another person ‘in circumstances where a reasonable adult would expect to be afforded privacy’, if the second person is in a private place or engaged in a private act and has not provided consent. A similar offence exists in s 91K of the Crimes Act 1900 (NSW), where the recording is obtained for the purpose of obtaining ‘sexual arousal or sexual gratification’. While a surveillance device could be used in a way that contravened one of these laws, surveillance may occur in other situations. Surveillance is also included as a form of stalking: eg, s 21A(f) of the Crimes Act 1958 (Vic).
Workplace Surveillance Act 2005 (NSW); Surveillance Devices Act 1999 (Vic) pt 2A; Workplace Privacy Act 2011 (ACT).
Human Rights Committee, General Comment No 16: Article 17 (The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation), 35th sess, UN Doc A/43/40 (28 September 1988) 16.
Commonwealth, Parliamentary Debates, House of Representatives, 5 May 1960 1 (Sir Garfield Barwick, Attorney-General).
Neil M Richards, ‘The Dangers of Surveillance’  Harvard Law Review 1934, 1935.
Moira Paterson, ‘Surveillance in Public Places and the Role of the Media: Achieving an Optimal Balance’ (2009) 14 Media and Arts Law Review 241, 249.