Uniform defences and exceptions

13.35 As well as uniform offences, the surveillance device laws of each state and territory should, as far as possible, provide for uniform defences and exceptions.[36]

13.36 Many state and territory surveillance device laws contain a number of broadly similar exceptions to the offence of using, installing or maintaining a surveillance device. All jurisdictions permit surveillance in accordance with a warrant or other authorisation,[37] and all jurisdictions permit surveillance of a private conversation or activity if all the parties to the conversation or activity provide consent. Exceptions also exist for surveillance carried out in accordance with other legal requirements.[38]

13.37 One significant difference between the surveillance device laws relates to surveillance of a private conversation or activity by a party to that conversation or activity. Typically, an exception to a surveillance offence exists where all parties to the private conversation or activity provide consent.[39] However, in several jurisdictions, consent is not required if the person using, installing or maintaining the surveillance device is a party to the private activity or private conversation.[40]

13.38 The inconsistency with regard to this exception for participants means, for instance, that a journalist who records a conversation to which they are a party may have committed an offence in one jurisdiction, while the same recording would be permitted in another jurisdiction. The VLRC has referred to this exception for participants as a ‘participant monitoring exception’.[41]

13.39 Other defences and exceptions also differ between jurisdictions:

  • 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;[42]

  • 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;[43]

  • 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;[44] and

  • some jurisdictions provide an exception where the use of a surveillance device is in the public interest.[45]

13.40 The ALRC proposes that the defences and exceptions in the surveillance device laws be made consistent. In removing inconsistencies, it is necessary to decide which defences and exceptions should remain. The ABC expressed a concern that uniformity might be achieved by removing important defences and exceptions that allow for the use of surveillance devices in the public interest.[46] The ALRC has specifically proposed a defence for responsible journalism (discussed further below).

13.41 The ALRC also proposes that unified surveillance device laws do not include a participant monitoring exception. Removing this exception would provide greater privacy protections to individuals. Removing the exception would also provide greater freedom of expression to individuals, who would be able to take part in conversations and activities confident that no other participant was recording the event.

13.42 The VLRC similarly proposed removing the participant monitoring exception from the Surveillance Device Law 1999 (Vic),[47] noting that:

[i]t is strongly arguable that it is offensive in most circumstances to record a private conversation or activity to which a person is a party without informing the other participants.[48]

13.43 In the absence of the participant monitoring exceptions, certain other exceptions or defences may be appropriate. An exception may be appropriate where a person using surveillance is a party to a conversation or activity and the use of the surveillance is necessary for the protection of a lawful interest of that person. As noted earlier, this exception exists in other surveillance device laws,[49] but is redundant where a participant monitoring exception applies.

13.44 An exception should continue to apply where the consent of all parties had been obtained. Legitimate uses of surveillance devices (for example, to record a consumer’s agreement to the terms of a contract over the phone) would therefore not be affected, provided consent was obtained.

13.45 Some legitimate uses of surveillance devices by journalists may place journalists at risk of committing an offence under existing surveillance device laws. Responsible journalism is an important public interest and should be protected. Journalists and media organisations should not be placed at risk of committing a criminal offence in carrying out legitimate journalistic activities. The ALRC has therefore proposed a ‘responsible journalism’ defence to surveillance device laws. This defence should be confined to responsible journalism involving the investigation of matters of public concern and importance, such as the exposure of corruption.

13.46 A number of other exceptions, as noted above, are already present in a number of the surveillance device laws. These exceptions should be considered in any process to make the surveillance device laws uniform.