Posted on September 12, 2022 by
Restrictions on Using Surveillance Evidence in Legal Proceedings
The High Court case of Farm Transparency International Ltd v New South Wales  HCA 23 (Farm Transparency) recently made headlines for its decision to uphold the validity of surveillance device laws in New South Wales.
The decision is primarily about the freedom of political communication implied by the Australian Constitution. While it is insightful in that regard, it also serves as a useful reminder of the Surveillance Devices Act 2007 (NSW) (SD Act) and its legal implications for gathering and using surveillance evidence.
What is the SD Act?
The SD Act is an Act to regulate the installation, use, maintenance and retrieval of surveillance devices, to repeal the Listening Devices Act 1984, and for other purposes.
The objects of the SD Act are to provide law enforcement agencies with a comprehensive framework for the use of surveillance devices in criminal investigation, enable law enforcement agencies to covertly gather evidence for the purpose and criminal investigations, and ensure the privacy of individuals are not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices: s 2A.
The High Court in Farm Transparency placed emphasis on the legitimate purpose of the SD Act to ensure that a person’s privacy is not impinged upon by the use of surveillance devices. Chief Justice Kiefel and Justice Keane noted that the SD Act pursues that purpose largely by preventing and deterring conduct which amounts to a trespass on the property of others: at .
The way the SD Act does that is by creating a number of offences for activities that have been legislated in the Act as unlawful. The most relevant for the present purposes are those contained in sections 7 and 8.
Section 7(1) prohibits a person from knowingly installing, using, or causing to be used or maintained a listening device (which under section 4 includes devices like video cameras as well) 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 the person is a party. Section 7 provides for circumstances in which the offence does not apply, including where all of the parties to the conversation give express or implied consent to the recording. An example of implied consent is a telephone conversation between two parties in which one states that they are or may be recording the conversation, and the other person chooses to continue the conversation. We discuss more of these circumstances below.
Section 8(1) prohibits a person from knowingly installing, using or maintaining an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object. The key to this offence is trespass; if a person using an optical surveillance device does not trespass onto a property or into a vehicle in so using or installing a device, the person does not commit an offence under this section. That is it does not prohibit the use of an optical surveillance device to take photographs or video images from public land or from land where consent (express or implied) is given to the person using the device.
How does the SD Act affect evidence-gathering activities?
Except for one provision in the Biosecurity Act 2015, which is tightly constrained, there is no NSW legislation which expressly excludes the application of the SD Act.
Further, there is no public interest exception or defence to any of the offences under the SD Act. As Chief Justice Kiefel and Justice Keane held in Farm Transparency (at ):
‘… the New South Wales Parliament has largely decided where the public interest lies. It has chosen a scheme of regulation … where trespassory conduct is discouraged. It is to be inferred that it is the New South Wales Parliament’s view that such conduct lies at the heart of the problems associated with the use of surveillance devices and their intrusion into privacy. A public interest exception … would fundamentally alter that scheme.‘
This means that, in legal proceedings in which the rules of evidence apply, evidence which is gathered in contravention of the SD is unlikely to be admitted by the court: see Evidence Act 1995 s 138. As Justice Hamill in the NSW Supreme Court stated in this context: ‘Where safeguards such as the [SD Act] are enacted, law enforcement officers must be fastidious in ensuring that they are complied with‘: R v Simmons; R v Moore (No 2)  NSWSC 143 at .
Exceptions to the SD Act
There are several exceptions or defences to the offences under the SD Act in circumstances where the person surveilled does not give express or implied consent.
One is where a warrant issued under Part 3 of the SD Act applies. Only law enforcement officers may apply for warrants. Under section 4, law enforcement officers only include officers of the NSW Police, NSW Crime Commission, Independent Commission Against Corruption, and Law Enforcement Conduct Commission. This means that other enforcement officers, such as those in local councils, cannot apply for a warrant.
Another exception, specifically in relation to listening devices, is if a principal party to a private conversation consents to the device being used and it is reasonably necessary for the protection of the ‘lawful interests‘ of that party: s 7(3)(b)(i). The cases have not settled the meaning of ‘lawful interests‘, although it seems that lawful interests are distinct from a person’s merely ‘legal‘ interests: see DW v R  NSWCCA 28 at -.
There also are special provisions for police body-worn video (BWV) under the SD Act. It is not an offence under sections 7 and 8 of the SD Act for police to take and use BWV. This exception only applies if the officers are acting in the execution of duty, use the BWV overtly, and if recording a private conversation provide evidence to each party that they are a police officer: s 50A. Section 59(2) of the SD Act and clause 6 of the Surveillance Devices Regulation 2022 provide for a limited trial of BWV to be taken by ambulances officers without beaching sections 7 or 8. Importantly, these provisions do not apply to any other officer who might seek to use BWV.
Taking of audio and video by council enforcement officers pursuant to other Acts
Except where it expressly provides to the contrary, the SD Act is not intended to affect any other NSW law that prohibits or regulates the use of surveillance devices: s 3.
One other law which arguably regulates the use of surveillance devices is the Environmental Planning and Assessment Act 1979. Section 9.18 of that Act empowers an investigation officer to enter land lawfully and when that officer has entered premises lawfully to do anything that the officer thinks is necessary to be done for an investigation purpose, including taking film, audio, video, and other recordings as they think necessary. Sections 69B of the Companion Animals Act 1998 and 198 of the Protection of the Environment Operations Act 1997 are similar.
We are unaware of any court decision which have considered the interaction of these provisions. However, given the importance of surveillance evidence to councils in taking enforcement action, it seems inevitable that a case will come for decision before the courts at some point that will settle this question.
The full text of the SD Act can be accessed here. You can read the High Court’s decision in Farm Transparency here.
If you have any questions about this blog post or seek advice in relation to the SD Act, please contact Carlo Zoppo on (02) 8235 9705, Jennifer Chenhall on (02) 8235 9712, or Lachlan Penninkilampi on (02) 8235 9719.