13.13 Uniform surveillance device laws should adopt a technology-neutral definition of ‘surveillance device’ to ensure that the definition can be applied to a wide range of surveillance devices, including surveillance devices that emerge in the future. The definition should also extend to forms of surveillance that are not ‘devices’, such as data surveillance by software installed on a person’s computer.
13.14 This element of the ALRC’s proposal would address the inconsistencies in the types of devices regulated under the existing surveillance device laws. Four types of devices are recognised in at least one surveillance device law: 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.
13.15 Even where two jurisdictions regulate similar devices, there are some inconsistencies in the definition of those devices.
13.16 In NSW, for instance, a tracking device is defined as ‘any electronic device capable of being used to determine or monitor the geographical location of a person or an object’, while in Victoria, the definition is ‘an electronic device the primary purpose of which is to determine the geographical location of a person or an object’. Many general-purpose devices—in particular, mobile phones—can also be used to determine location, despite this not being the primary purpose of the device. This difference in definition may therefore have a significant impact on the types of surveillance that are regulated in each state.
13.17 In a 2001 interim report, the NSWLRC proposed defining ‘surveillance device’ as ‘any instrument, apparatus or equipment used either alone, or in conjunction with other equipment, which is being used to conduct surveillance’. The NSWLRC also proposed defining ‘surveillance’ as ‘the use of a surveillance device in circumstances where there is a deliberate intention to monitor a person, a group of people, a place or an object for the purpose of obtaining information about a person who is the subject of the surveillance’.
13.18 The regulation of several types of surveillance devices are discussed below. The ALRC welcomes comments from stakeholders on the appropriateness of regulating these or other types of surveillance devices.
Drones and mobile surveillance devices
13.19 The use of unmanned aerial vehicles (drones) to carry surveillance devices has generated some concern within Australia and internationally. Although a drone by itself may not be a surveillance device, other devices attached to a drone (such as microphones or video cameras) may be.
13.20 The OAIC noted community concerns about drones in its 2012–13 annual report. At the time of writing, the House of Representatives Standing Committee on Social Policy and Legal Affairs is conducting an inquiry into the use of drones.
13.21 The ALRC has also received a number of submissions relating to drones. Some stakeholders noted, in general terms, the privacy issues relating to the use of drones. Others commented on the use of drones to monitor activity taking place on farms.
13.22 Wearable devices, such as head-mounted cameras, have also generated public discussion. A notable example is Google’s ‘Glass’ technology, a wearable device that includes video and audio recording capabilities. Several stakeholders noted the privacy challenges presented by such devices.
13.23 Wearable devices with audio recording capabilities would typically fall within the definition of ‘listening device’ in each of the surveillance device laws. Similarly, wearable devices with optical recording capabilities would typically fall within the definition of ‘optical surveillance device’ in those laws that contain such a definition. However, several jurisdictions do not regulate optical surveillance devices.
13.24 It is important to note that uniform surveillance device laws would not, and should not, prohibit the use of such devices generally. A wearable device may have many legitimate uses that do not amount to surveillance. Whether or not the use of a device constituted an offence would depend on the circumstances of its use, such as the activity being captured, the extent of the monitoring or recording, and whether or not parties to the activity were aware that the device was being used.
Data surveillance devices
13.25 Surveillance device laws generally do not regulate phone tapping and other types of data or communications surveillance. Communications surveillance is regulated under the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act). Although the distinction between the two types of surveillance may become less clear as communication technologies continue to develop, the High Court has established that the TIA Act ‘covers the field’ of communications surveillance.
13.26 Some surveillance device laws regulate some types of data surveillance—for example, devices that capture data by recording a person’s keystrokes on a computer. Other types of data surveillance may not be regulated under either surveillance device laws or the TIA Act. For example, information being transmitted over a radiocommunication system such as a wireless local network (wi-fi) appears to be excluded from the protections of the TIA Act and may also fall outside existing definitions of ‘data surveillance device’. Also, as noted in a submission from Associate Professor Moira Paterson, radio frequency identification (RFID) devices such as electronic door key cards or passports are capable of transmitting information, and should also be protected from surveillance.
13.27 These types of data surveillance would need to be considered in drafting new uniform surveillance device laws.
13.28 At present, tracking devices are regulated in only a few Australian jurisdictions. The definition of ‘tracking device’ is not consistent among these jurisdictions. Uniform surveillance device laws should address this inconsistency and ensure that tracking devices are regulated across Australia.
13.29 Consideration should also be given to regulating methods of tracking that do not rely on a tracking device being carried by the individual, but instead make use of a network of devices to determine the individual’s location. This could include, for example, a communications network being used to determine the location of an individual’s mobile phone, even where the mobile phone does not provide location information directly.
R v Gittany (No 5)  NSWSC 49 (11 February 2014) .
Surveillance Devices Act 2007 (NSW) s 4(1) (definition of ‘tracking device’).
Surveillance Devices Act 1999 (Vic) s 3(1) (definition of ‘tracking device’).
NSW Law Reform Commission, Surveillance: An Interim Report, Report 98 (2001) Rec 1.
Ibid Rec 2.
See, for example, ‘Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft’ (American Civil Liberties Union, December 2011).
Office of the Australian Information Commissioner, Annual Report (2012), xv.
House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into a matter arising from the 2012-13 Annual Report of the Office of the Australian Information Commissioner, namely the regulation of Unmanned Aerial Vehicles (2013).
Electronic Frontiers Australia, Submission 44; Arts Law Centre of Australia, Submission 43; Australian Privacy Foundation, Submission 39; Office of the Information Commissioner, Queensland, Submission 20.
Barristers Animal Welfare Panel and Voiceless, Submission 64; National Farmers’ Federation, Submission 62; RSPCA, Submission 49; Australian Lot Feeders’ Association, Submission 14.
Electronic Frontiers Australia, Submission 44; Australian Privacy Foundation, Submission 39; D Butler, Submission 10; P Wragg, Submission 4.
Miller v Miller (1978) 141 CLR 269.
See, eg, Surveillance Devices Act (NT) s 4 (definition of ‘data surveillance device’).
Telecommunications (Interception and Access) Act 1979 (Cth) s 5 (definitions of ‘telecommunications network’ and ‘telecommunications service’).
M Paterson, Submission 60.
Ibid; Electronic Frontiers Australia, Submission 44.
‘Here, There and Everywhere: Consumer Behaviour and Location Services’ (Australian Communications and Media Authority, December 2012).