Australian Capital Territory

Surveillance Devices Law

The Listening Devices Act 1992 (ACT) covers the use of listening devices only. It is constructed in a rather complex manner and appears to have suffered slightly from that: a contradiction is identified below and dealt with. To date there have been no common law decisions on the interpretation of any section of the Act, and the explanatory memorandum is of no benefit.

Listening Devices

Section 4 states that a person must not use a listening device with the intention of listening to or recording a private conversation, to which the person is not a party, or recording to a private conversation to which the person is a party. A contravention of this provision is an offence punishable by a fine only.

Sub-section 2 excuses the unintentional hearing of a private conversation by means of a listening device. Sub-section 3 raises exceptions where:

b) One principal party consents and doing so is reasonably necessary for the protection of that party’s lawful interests.

Discussions as to lawful interests and reasonable necessity are to be found under relevant sub-headings under Confluent Issues, above.

Private Conversation

A private conversation is defined as a conversation in circumstances that may be taken to mean that any of the principal parties desire the conversation to be listened to only by themselves and some other person with the consent of each principal party. The specific wording of the definition referring to any of the principal parties is of interest to conversations held over a telecommunication system. Because the parties to a telephone call can be in very different settings, if just one is alone in a private room, then the conversation is deemed to be private, even if the other is, unbeknownst to the first, broadcasting the conversation live on radio.

Parties and Principal Parties

A principal party is a person who speaks or is spoken to in the course of the conversation. A party includes a principal party, as well as a person who, with the consent of any of the principal parties, listens to or records the conversation. Effectively, then, if any bystander who situates themselves nearby with the knowledge of the principal parties, and the conversation continues, then they have the implied consent of the principal parties. The bystander therefore becomes a party and fails to eliminate the privacy of the conversation.

Communication and Publication

It is an offence under section 5 for a party to a private conversation to communicate a record of the conversation, where they know that the record was made directly or indirectly by the use of a listening device. A breach of this provision is punishable by imprisonment for six months or a fine.

Sub-section 2 raises exceptions which permit the communication or publication of a record in circumstances including the following:

c) In the course of civil or criminal proceedings

d) Where on reasonable grounds it appears necessary for the protection of that party’s lawful interests

e) Where the communication is made to a person who has such an interest in the matter as to make communication or publication reasonable....

Again, a discussion as to lawful interests can be found under Confluent Issues, above. As to the third listed condition for a party to have an interest making it reasonable to communicate with them, this is clearly intended to be distinct from lawful interests and operates as an additional allowance. Such interests may include emotional interests, perhaps related to family matters, financial issues or occupational interests, or they may relate to an intended legal action as plaintiff where an interest is to be established to be lawful.

Prohibitions in Special Circumstances

Section 6 states that where a conversation has been recorded under specific circumstances, it is unlawful to communicate or publish a record of the conversation. A breach of s 6 is an offence attracting a fine or imprisonment of up to six months.

Taken not only from section 6 but also parts of section 4, those circumstances include where:

The record is made in contravention of section 4.
The record is a result of unintentional overhearing by means of a listening device.
Where each principal party consents to the use of the device
Where a principal party consents to the use and they reasonably consider the use to be necessary for the protection of their own lawful interests.
Where a principal party consents to the use and the recording is NOT made for the purpose of communicating or publishing the conversation to non-parties.

The latter two conditions are situations where a person is permitted to use a listening device. The prohibition on communicating or publishing any record of or report on the conversation makes little sense, particularly when the defence of lawful interests requires the gathering of evidence to be presented to another person. The only value in the use of a listening device then is that the information obtained can be acted upon directly, or it is here suggested, communicated purely as facts and not as a party’s comments.

However, subject to sub-section 2, communication and publication prohibited under the fourth-listed rule is in fact permitted where it is reasonable for protection of the lawful interests of the principal party to the conversation who consented to the use of the listening device. There is conceptual conflict here in the form of a double negative, but due to permissions given in ss 4 and 5 for a person to protect their own lawful interests, it is probably the intention of Parliament that a principal party to a conversation should be able to publicise or communicate in defence of their own lawful interests.

Possession of Records

If a person has possession of a recording or other record that was obtained in breach of section 4, then they are committing an offence against section 7. It is irrelevant whether the unlawful use was made by the person in possession. The offence attracts a fine or imprisonment for up to six months. An exception is admitted where the record was communicated to the person in possession in circumstances that do not constitute an offence. If an unlawfully created record is publicised in the print media then every reader who obtains a copy will have to destroy it.