The Surveillance Devices Act 2007 (NSW) (“the Act”) is a piece of privacy legislation enacted by the Parliament of New South Wales the most populous state in Australia. It replaced the Listening Devices Act 1984 (NSW). The Act makes it an offence to record private conversations apart from in specific and defined circumstances. It makes provision for law enforcement officers to apply for warrants authorising the use of such devices and the circumstances in which judges of the Supreme Court of New South Wales might issue such warrants.
History
In 1997, the Royal Commission into the New South Wales Police Service found that the use of electronic surveillance was the single most important factor in achieving a breakthrough in its investigations. Justice Wood concluded that the law lagged well behind technical developments and patterns of crime and recommended a systematic and comprehensive review of legislation and procedures to assist the pursuit of law enforcement. The Surveillance Devices Bill 2007 (NSW) was introduced into the New South Wales Parliament on 6 November 2007. The bill replaced the Listening Devices Act 1984 (NSW) and expanded the application of the legislation so that it also applies to data surveillance devices, optical surveillance devices and tracking devices. The aim of the bill was to implement national model legislation developed by the Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers’ Council on National Investigation Powers. The Second Reading Speech states that for serious crimes like murder, terrorism, drug manufacture and importation it is essential that law enforcement agencies have every possible tool at their disposal to make their investigations and prosecutions as successful as possible. The Act was assented to on 23 November 2007. The date of commencement was 1 August 2008.
Offences
Sections 7-14 create a series of offences carrying penalties ranging from the imposition of a fine to imprisonment of up to five years. The offence creating provisions of the Act provide a comprehensive code designed to protect the privacy of the general population. Exceptions to criminal liability arise where a warrant or Commonwealth law authorises the use of a surveillance device or where a person is protecting their lawful interests.
Section 8 makes it an offence carrying a maximum penalty of five years imprisonment to use a listening device ‘to overhear, record, monitor or listen to’ a private conversation to which the person is not a party or to record a private conversation to which there person is a party. In general terms, there are two exceptions.
The first exception (under sub-s (2) and (4)) is where the use of the device is authorised by warrant, is part of an operation authorised under the Law Enforcement (Controlled Operations) Act 1997 (NSW) or is incidental to the use of a “Taser” (a kind of stun gun) issued to a member of the NSW Police Force. The Tasers issued to New South Wales Police are designed to record both the sound and vision of the deployment of the stun gun.
The second exception (sub-s (3)) arises where the person is a party to the conversation and the other parties consent or the recording “is reasonably necessary for the protection of the lawful interests” of the party who records the conversation. The breadth and meaning of the “lawful interests” exception has been considered in a number of cases. In DW v R [2014] NSWCCA 28, the New South Wales Court of Criminal Appeal held that the victim of a sexual assault who recorded a conversation she had with the perpetrator did not commit an offence when her purpose was to convince others of the truth of her allegations. It was held that the recording was made to protect her lawful interests. The same Court reached a similar conclusion in Sepulveda v R [2006] NSWCCA 379, a decision under the earlier Listening Devices Act. In R v Le [2004] NSWCCA 82, the Court was divided on whether a friend of a man charged with the murder of politician John Newman had a lawful interest in recording a conversation with Albert Ranse who had previously claimed responsibility for the murder. Giles JA found that protection of lawful interests do not encompass credibility generally or in the event of giving evidence. On the contrary, Hulme and Adams JJ found that the avoidance of "being labeled a liar" (within a criminal investigation) is an important lawful interest and the recording of the conversation was the only practicable mode of preventing or refuting such an allegation.