Surveillance laws and laws affecting photography

3.20 Legislation exists in each of the states and territories that variously restricts the use of listening, optical, data and tracking surveillance devices. These surveillance device laws provide criminal offences for using a surveillance device to record or monitor private conversations or activities, for tracking a person or for monitoring information on a computer system.[33] The surveillance device laws also place restrictions on communicating information obtained through the use of a surveillance device.

3.21 The surveillance device laws of each state and territory differ greatly, both in terms of the types of surveillance devices they regulate, and the circumstances in which those surveillance devices may or may not be used. For example, the laws of Victoria, Queensland and the Northern Territory permit a participant to record a private activity in the absence of the consent of other parties, while the remaining surveillance device laws do not.[34]

3.22 Different state and territory workplace surveillance legislation prohibits employers monitoring their employees at work through covert surveillance methods such as the use of CCTV cameras or computer, internet and email surveillance.[35] Once again there are inconsistencies between these laws, and such laws only exist in three jurisdictions (the ACT, NSW and Victoria).

3.23 Criminal laws in some—but not all—jurisdictions provide for offences relating to photography being used for indecent purposes[36] or indecent filming without consent.[37] Criminal laws also provide protection against indecent photography of children in private and public places.[38] In each case, the laws are restricted to specific subject matter, for example, matter of a sexual nature; filming for specific purposes, for example, for sexual gratification; or filming of a particular type of person, for example, a child. These laws therefore provide limited general privacy protection.

3.24 The operation of the Privacy Act 1988 (Cth) is restricted to the actions of government agencies and big business, not the activities of individuals acting in a personal capacity such as freelance or amateur photographers. However the Act does regulate the activities of individuals, agencies and companies which ‘disclose personal information about another individual to anyone else for a benefit, service or advantage’.[39] This may provide scope to regulate the actions of photographers who take unauthorised photographs of individuals.[40]

[33] Listening Devices Act 1992 (ACT); Surveillance Devices Act 2007 (NSW); Surveillance Devices Act (NT); 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).

[34] See Ch 13.

[35] Workplace Surveillance Act 2005 (NSW); Listening and Surveillance Devices Act 1972 (SA); Listening Devices Act 1991 (Tas); Surveillance Devices (Workplace Privacy) Act 2006 (Vic); Surveillance Devices Act 1998 (WA); Workplace Privacy Act 2011 (ACT).

[36] Summary Offences Act 1988 (NSW) s 4; Criminal Code Act 1899 (Qld) s 227(1); Police Offences Act 1935 (Tas) s 13.

[37] Crimes Act 1900 (NSW) ss 91K–91M; Criminal Code Act 1899 (Qld) s 227A(1); Summary Offences Act 1953 (SA) s 26D; Police Offences Act 1935 (Tas) s 13A; Summary Offences (Upskirting) Act 2007 (Vic) s 41A.

[38] See, for example, Criminal Law Consolidation Act 1935 (SA) s 63B.

[39] Privacy Act 1988 (Cth) s 6D(4)(c),(d).

[40] Ibid s 6: The definition of ‘record’ includes ‘a photograph or other pictorial representation of a person’.