This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Listening Devices (Vic)
A surveillance device can be a listening device, optical surveillance device, data surveillance device or tracking device, or devices that are a combination of these things. In Victoria, the installation, use, maintenance and retrieval of all surveillance devices is regulated by the Surveillance Devices Act 1999. This article deals with listening devices in Victoria.
What is a listening device?
A listening device is any device that can be used to overhear, monitor, record, or listen to a private conversation, or to words spoken during a private conversation. Hearing aids and other similar devices are not listening devices.
A device does not have to be able to record or transmit the sound to somewhere else to be a listening device. Things like Dictaphones and mobile phones and tablets with recording capabilities are listening devices as are video recorders.
Even if a person’s intention is to listen to something other than a private conversation, the device used may still be a listening device if it is capable of being used to listen to a private conversation.
What is a Private Conversation?
The Surveillance Devices Act 1999 is designed to protect what is said and done in private conversations and activities.
A private conversation is any conversation that takes place in circumstances where it may reasonably be assumed that the participants only want their words heard by the other people in the conversation. It does not include conversations where the participants ought reasonably to expect that they may be overheard by other people.
Conversations held in public places where it can be reasonably expected the conversation would be overheard are not considered to be private.
Listening Device Offences
It is a criminal offence to knowingly install, use, or to maintain or repair a listening device used to:
- Record;
- Listen to;
- Overhear; or
- Monitor
a private conversation.
However, a person does not commit an offence if:
- They are a participant in the conversation that is recorded;
- They have permission from everyone else who is participating in that conversation; or
- They are authorised to use the device by a warrant or under a law.
It is an offence to communicate or publish any information about a private conversation or activity that was gained as a result of the use of a surveillance device, such as a listening device.
However, no offence is committed if what was communicated or published is no more than what is reasonably necessary to protect the lawful interests of the person publishing or communicating the information.
Warrants
A law enforcement officer may apply for a surveillance device warrant to record private conversations or activities. A warrant can only be obtained if the police have reason to suspect or believe that:
- An offence has been, is being, is about to be, or is likely to be committed; and
- A surveillance device needs to be used in the investigation and collection of evidence of that crime.
Warrants can be issued by a Magistrate or Judge and the issue of warrants is overseen by the Public Interest Monitor. If granted, a warrant will authorise the use of a specific type of device on specified premises. A warrant may allow entry by force, if necessary, to install and later to retrieve the device.
Penalties
The maximum penalty for most offences under the Surveillance Devices Act is a fine of $37,310, two years in prison or both. The maximum penalty for a company is a fine of $186,552.
Listening Devices in the workplace
In workplaces, listening devices and other surveillance devices are not allowed to be installed in any washrooms, toilets, change rooms or lactation rooms, unless they are used in accordance with a warrant or is otherwise authorised by law.
The maximum penalty that applies to individuals is two years in prison, a fine of $37,310 or both. The maximum penalty that applied to a company is a fine of $186,552.
Protected Information
Protected information is information that is:
- Obtained with a surveillance device under a warrant or an emergency authorisation;
- That relates to an issue, application, existence, or the expiry of such a warrant or emergency authorisation; or
- That relates to an application for the approval of powers under an emergency authorisation.
In some circumstances, it is an offence for a person to use, communicate, or publish information that is protected information. This is an offence if:
- If the accused knows the information is protected information; or
- If they are reckless as to whether they should know the information is protected information.
A person is guilty of an offence if they recklessly use, communicate or publish information they ought to know is protected information. This offence attracts a maximum penalty of a fine of $186,552, 10 years in prison, or both for an individual or a fine of $932,760 for a company.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.