Participant monitoring

14.48 Existing state and territory surveillance laws differ as to whether a party to a private conversation or activity may record that conversation or activity without the consent of the other participants. Such recording is referred to as ‘participant monitoring’. The surveillance device laws of Queensland, Victoria and the Northern Territory contain participant monitoring exceptions.^[43] The surveillance device laws in the remaining jurisdictions do not contain such exceptions. This is a significant divergence in the protection of individuals’ privacy across Australia.

14.49 The ALRC considers that surveillance legislation should not contain defences or exceptions for participant monitoring. The protections offered by surveillance device laws are significantly undermined if a party to a private activity (including a private conversation) may record the activity without the knowledge or consent of other parties. Where individuals take part in an activity under the reasonable belief that the activity is private, their privacy should not be undermined by covert surveillance by other parties to that activity. If individuals cannot enter such activities secure in the assumption that they will not be placed under surveillance by other parties, there may be a chilling effect that discourages individuals from taking part in some private activities and from speaking freely in private conversations. This is an increasing risk given the readily-available consumer technologies that allow for surreptitious recording.

14.50 A number of stakeholders supported the removal of participant monitoring exceptions.^[44]

14.51 This recommendation is consistent with recommendations made by other law reform inquiries. The Victorian Law Reform Commission in its 2009 report on surveillance also recommended the removal of the participant monitoring exception from the Surveillance Devices Act 1999 (Vic):

It is strongly arguable that it is offensive in most circumstances to record a private conversation or activity to which a person is a party without informing the other participants. Without this knowledge, those people cannot refuse to be recorded or alter their behaviour. These concerns apply even more strongly in the case of activities or conduct in private places.^[45]

14.52 The NSW Law Reform Commission (NSWLRC) considered, and ultimately rejected, a participant monitoring exception in its 1998 interim report on surveillance.^[46]

14.53 The ALRC’s recommendation is consistent with the approach under the TIA Act, which, along with the surveillance device laws, is the primary regulation of surveillance activities in Australia. Under s 7 of the TIA Act, the offence of intercepting telecommunications does not include a participant monitoring exception.

14.54 Several stakeholders suggested that surveillance legislation should contain a participant monitoring exception, and that the focus should instead be on restricting the disclosure of information obtained through surveillance. For example, the ABC submitted that:

it is arguable that the recording by a participant is not the problem and that it is the further communication of the recorded private activity which should be proscribed, subject to relevant defences.^[47]

14.55 It may be possible to develop a model of surveillance regulation based on restricting communication of information obtained through surveillance, rather than restricting the surveillance itself. On balance, however, the ALRC considers that it is preferable to regulate the act of surveillance itself. Surveillance, even without further communication of the information obtained, may in itself cause harm to the individuals under surveillance. The New Zealand Law Commission, for example, identified a range of harms that surveillance may cause an individual, regardless of whether the information obtained through the surveillance is communicated further. These harms include:

• a chilling effect on the exercise of civil liberties;

• loss of anonymity;

• stress and emotional harm;

• insecurity and loss of trust;

• use for voyeuristic or other questionable purposes;

• discrimination and misidentification; and

• desensitisation to surveillance, leading to a narrowing of people’s reasonable expectations of privacy.^[48]

14.56 There may be cases where participant monitoring of a private activity, without the knowledge or consent of other parties, is justifiable. In particular, surveillance without the consent of other parties may be justified where it is reasonably necessary for the protection of the lawful interests of the person conducting the surveillance or where it is for the purposes of recording a threat or abuse.^[49]

14.57 The ALRC considers that these cases are more appropriately addressed through specific defences or exceptions, rather than through a general participant monitoring exception. Many such defences and exceptions are provided under existing surveillance device laws. A participant monitoring exception would allow surveillance even in cases where surveillance was not being used for the protection of lawful interests or for recording a threat or abuse.