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Listening devices and other forms of surveillance: issues and proposals for reform

Listening devices and other forms of surveillance: issues and proposals for reform

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 20/1997 by Rachel Simpson
Surveillance involves monitoring the movements of another person. The most common types of electronic surveillance are aural surveillance ("bugging") and visual surveillance. Surveillance may be covert, where it is carried out without the notice of the subject, or overt, where the subjects are aware that the devices are in use, whether or not they are aware of the actual incidence of surveillance taking place.

Aural surveillance may be undertaken using either a) a telephone intercept or b) a listening device (pp 2-4). The use of listening devices is governed by the Listening Devices Act 1984 (NSW), which prohibits the use of a listening device to record or listen to a private conversation to which the person is not a party, or to record a conversation to which the person is one of the parties. Telephone intercepts are governed by the Commonwealth Telecommunications (Interception) Act 1979, which prohibits the interception of a communication passing over a telecommunications system, either by the person or by a third person authorised by the person. Both Acts provide an exception to the prohibition when the device is used under a warrant issued by a judge upon proper application. (pp 13-15).

Visual surveillance involves the use of still cameras, closed circuit television or video cameras to observe a person. There is presently no legislation covering the use of video surveillance devices in New South Wales, unless the device doubles as a listening device. Similarly, there is no legislative prohibition on the use of tracking devices. A tracking device is a device which is attached to, or installed in, a moveable object for the purpose of monitoring the position of the object (pp 4-5). Another form of surveillance which is becoming increasingly prevalent is computer surveillance. This involves accessing or reading the storage mechanism of a computer or monitoring a person's operation of a computer. Computer surveillance per se is not regulated, except to the extent that the surveillance constitutes an offence under Part 6 of the Crimes Act 1900 (NSW), which makes it an offence to engage in certain computer hacking activities (pp 5-6).

The regulation of surveillance is a achieved through a mixture of common law, specific surveillance and general privacy legislation and voluntary or involuntary codes of conduct. All forms of regulation are limited to some extent, the most important limitation being an inability to evolve at a pace consistent to that of technological development. The common law and general privacy legislation have further disadvantages because such general provisions may not be appropriate to the specific problems posed by surveillance. For example, the common law of trespass has been used to prosecute a person who trespasses while installing a surveillance device. However, an injunction preventing the publication of any material gained as a result of the trespass will only be granted where it can be proven that use of the material would be "unconscionable". The legal regulation of surveillance on all levels is examined at pages 11-20.

One of the most popular uses for surveillance is for law enforcement purposes (pp 7-8). The NSW Police Royal Commission, for example, stated in its Final Report that the use of electronic surveillance was the single most important factor in achieving a breakthrough in its investigations. Police interviews have also been recorded since 1991. Other uses of surveillance include: public safety (pp 8-10); protection of private property (p 10), and protection of employers' interests (pp 10-11). Private investigators and the media also employ surveillance techniques.

The argument surrounding surveillance can be broadly divided among those who believe the public interest advantages of surveillance as a law enforcement tool outweigh any privacy argument, and those who believe that the intrusion into privacy by surveillance devices is so great that only under the most exceptional circumstances should surveillance be allowed. Although most people agree that there are circumstances where the benefits offered by surveillance justify its use, the debate evolves around exactly what those circumstances are. This question is not made easier by public perception of surveillance: despite a general view that surveillance infringes an individual's right to privacy, there are situations where the community welcomes surveillance. A long, dark pedestrian subway is one example given. The arguments for surveillance are examined at pages 21-24, and those against surveillance at pages 24-26.

There is a consensus regarding reform of the regulation of surveillance. That is that regulation of some form must extend to all types of surveillance, most particularly video surveillance and tracking devices. There is debate over the extent of the regulation, with the Royal Commission and other arguing that there are some instances where regulation is unnecessary, such as the use of overt visual surveillance in public places. There is also debate over whether that regulation should take the form of legislation, or whether a voluntary code of conduct is preferable. Such a code of conduct may be with or without legislative backing, and may be developed by the industries which it most greatly effects. Some of these recommendations for reform are examined at pages 26-29.