Uniform offences

13.30 The ALRC proposes establishing uniform offences for the use of surveillance devices to monitor ‘private activities’ (however defined). The protection of privacy of individuals within Australia should not depend on the state or territory where the individual is located. One important step towards achieving uniformity would be ensuring that a given activity receives the same protection from surveillance regardless of the jurisdiction in which it occurs. To that end, a uniform definition of ‘private activity’ could be adopted.^[24] This would be in keeping with the largely uniform definitions of ‘private conversation’ that apply in each jurisdiction for the purposes of the offence for surveillance using a listening device.

13.31 Each of the surveillance device laws provides a number of offences. These offences include, for example, offences for carrying out surveillance, offences for communicating information obtained by surveillance,^[25] and offences for providing surveillance devices for sale.^[26]

13.32 This chapter is concerned with the first of these types of offence—offences for carrying out surveillance.^[27] The nature of these surveillance offences under existing surveillance device laws differ across jurisdictions. Each jurisdiction has an offence of carrying out surveillance of a private conversation using a listening device.^[28] However, the offences with respect to other types of devices are inconsistent. For example:

• the offence for optical surveillance of a private activity in Victoria does not apply to activities carried on outside a building—optical surveillance of activities in a person back yard, for example, are permitted under the Victorian Act;^[29]

• the offences for optical and data surveillance in NSW do not depend on the nature of the activity or information placed under surveillance, but only on whether the installation, use or maintenance of the surveillance device required entry onto premises or interference with a car, computer or other object;^[30] and

• the offences for data surveillance in Victoria and the NT provide a more general offence for using a data surveillance device to monitor information input to, or output from, a computer system, but these offences only apply to law enforcement officers.^[31]

13.33 Differences also exist between the surveillance device laws with respect to the fault element in the offences for installing, using or maintaining a surveillance device. For example:

• the offence for the use of a listening device under the Listening and Surveillance Devices Act 1972 (SA) requires intentional use of the device;^[32]

• the offence for the use of a listening device under the Invasion of Privacy Act 1971 (Qld) does not require intent,^[33] although an exception applies for the ‘unintentional hearing of a private conversation by means of a telephone’;^[34] and

• the offence for the use of a listening device under the Listening Devices Act 1991 (Tas) includes an exception for ‘the unintentional hearing of a private conversation by means of a listening device’^[35]—not just for unintentional hearing by means of a telephone, as in the Queensland law.

13.34 There are other inconsistencies in the surveillance device laws with regard to other offences, such as the communication of information obtained through prohibited surveillance. In order to ensure uniformity between the surveillance device laws, such inconsistencies would need to be removed as well. However, these other offences are largely dependent on the general offences (for installing, using, or maintaining surveillance devices) considered above. Achieving uniformity in these more general offences is therefore a prerequisite for obtaining uniformity in the remaining offences.