14.1 In this chapter, the ALRC sets out recommendations regarding the surveillance device laws and workplace surveillance laws of the Australian states and territories. These surveillance device laws provide important privacy protection by creating offences for the unauthorised use of listening devices, optical surveillance devices, tracking devices, and data surveillance devices.
14.2 However, there is significant inconsistency in the laws with respect to the types of devices regulated and with respect to the offences, defences and exceptions. This inconsistency results in uncertainty and complexity, reducing privacy protection for individuals and increasing the compliance burdens for organisations.
14.3 A key recommendation in this chapter is that the surveillance device laws should be the same throughout Australia. The ALRC recommends that this be achieved through Commonwealth legislation. The ALRC also recommends that workplace surveillance laws be made uniform throughout Australia.
14.4 Surveillance legislation should also be technology neutral, so that it can apply to new devices, such as unmanned aerial vehicles (drones), as well as to surveillance technologies which are not ‘devices’ in the traditional sense, such as software or networks of devices.
14.5 The ALRC recommends the repeal of ‘participant monitoring’ exceptions. These exceptions allow the use of a surveillance device without the consent of the individuals under surveillance, so long as the person conducting the surveillance is also a party to the activity or conversation under surveillance.
14.6 Recognising that the participant monitoring exceptions provide protection for several important activities, the ALRC recommends a ‘responsible journalism’ defence that would protect journalists and media groups making appropriate use of a surveillance device for certain matters in the public interest.
14.7 Further recommendations include that compensation be available to victims of surveillance offences, and that avenues should be made available for residential neighbours to have disputes about the use of surveillance devices heard by appropriate lower courts and tribunals. The latter recommendation recognises that criminal offences may be inappropriate for some uses of surveillance devices, and that a quicker, cheaper and less onerous process may achieve the desired result of preventing invasions of privacy.