Proposal 13–1 Surveillance device laws and workplace surveillance laws should be made uniform throughout Australia.
Proposal 13–2 Surveillance device laws should include a technology neutral definition of ‘surveillance device’.
Proposal 13–3 Offences in surveillance device laws should include an offence proscribing the surveillance or recording of private conversations or activities without the consent of the participants. This offence should apply regardless of whether the person carrying out the surveillance is a participant to the conversation or activity, and regardless of whether the monitoring or recording takes place on private property.
Proposal 13–4 Defences in surveillance device laws should include a defence of responsible journalism, for surveillance in some limited circumstances by journalists investigating matters of public concern and importance, such as corruption.
Question 13–1 Should the states and territories enact uniform surveillance laws or should the Commonwealth legislate to cover the field?
13.5 Surveillance device laws provide an important protection of privacy. Notably, the legislation offers some protection against intrusion into seclusion. 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.
13.6 Protection from surveillance is a fundamental form of protection of privacy, particularly in the digital era. One US judge has described the impact of surveillance on privacy:
What the ancients knew as ‘eavesdropping’ we now call ‘electronic surveillance’; but to equate the two is to treat man’s first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveller of human privacy ever known.
13.7 Surveillance laws protect other freedoms as well. Unauthorised surveillance may interfere with freedom of speech, freedom of movement and freedom of association.
13.8 Laws exist in each state and territory to regulate the use of surveillance devices. These laws provide criminal offences for the unauthorised installation, use or maintenance of surveillance devices to record private conversations and private activities. Other laws in the ACT, NSW and Victoria regulate the use of surveillance in the workplace.
13.9 These surveillance device and workplace surveillance laws contain a number of significant inconsistencies across jurisdictions. These inconsistencies fall broadly into three categories. There are inconsistencies with respect to:
the type of the devices regulated;
the nature of the offences; and
the nature of the defences and exceptions.
13.10 Consistency and uniformity in the surveillance device laws and workplace surveillance laws is desirable. Inconsistency means that privacy protections vary depending on which state or territory a person is located in. It also makes it more difficult for a person who finds themselves under surveillance to determine their legal position. Inconsistency also means that organisations with legitimate uses for surveillance devices face increased uncertainty and regulatory burden. Many stakeholders agreed that uniformity was desirable. The ALRC discussed the benefits of uniformity in its 2008 report, ‘For your information: Australian privacy law and practice’.
13.11 The ALRC has proposed that definitions, offences, prohibitions, defences and exceptions be made uniform across Australian states and territories. This proposal applies both to surveillance device laws and to workplace surveillance laws.
13.12 The ALRC has not proposed a particular process for achieving uniformity. It may be appropriate for the Commonwealth to introduce new legislation, possibly through the introduction of a Commonwealth Act that covers the field, replacing state and territory surveillance device laws. Any such Commonwealth legislation would likely engage 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. Alternatively, a new Act may be supported by s 51(v) if it is characterised as regulating ‘postal, telegraphic, telephonic, and other like services’. A Commonwealth Act that covered the field would exist alongside other Commonwealth privacy protections under the Privacy Act 1988 (Cth), the Telecommunications Act 1997 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth). The ALRC has asked whether it would be preferable to enact a Commonwealth law to replace state and territory surveillance device laws, rather than attempting to achieve uniformity in state and territory laws.
Douglas J of the Supreme Court (United States of America) as cited in Miller v TCN Channel Nine (1988) 36 Crim R 92, 94 (Finlay J).
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 provisions 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 in, eg, s 21A(f) of the Crimes Act 1958 (Vic).
M Paterson, Submission 60; Free TV, Submission 55; Electronic Frontiers Australia, Submission 44; Australian Privacy Foundation, Submission 39; Australian Industry Group, Submission 38; Law Institute of Victoria, Submission 22; D Butler, Submission 10.
ALRC, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) ch 3.
The external affairs power and the ICCPR are discussed further in Ch 4.