Legal Guide to Surveillance Legislation in WA - TechSafety https://techsafety.org.au/blog/legal_articles/legal-guide-to-surveillance...

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#TechSummitAU
Legal Guide to
Surveillance Legislation
in WA

DISCLAIMER: The use of technology-facilitated abuse

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is a developing area of the law. The legal
information, examples and scenarios contained in more
the guide are intended to explain the law as it
stands at publication in general terms only and are
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not legal advice. They cannot be relied upon or
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Surveillance Legislation Follow

in Western Australia us!

Surveillance Devices Act   


1998 (WA)
The Surveillance Devices Act 1998 (WA) (the ‘Act’)
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regulates the use of surveillance devices in Western
Australia. It also restricts the communication and 

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publication
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of information
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obtained through
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the use
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of surveillance devices. our mailing
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A ‘surveillance device’ means a listening device, an receive the
optical surveillance device or a tracking device. latest
However, there is no mention of data surveillance technology
devices in the legislation. safety
resource and
Note: Time limits apply. Proceedings for an offence news
under this Act must be commenced within 2 years
after the offence was committed.

Where can I find this information in the Act?

Registered
See section 3 of the Act for definitions of terms used charity
in the Act and section 38 for the time limit.

Use of Listening Devices

A ‘listening device’ means any instrument,

apparatus, equipment, or other device capable of
being used to record, monitor or listen to a private
conversation or words spoken to or by any person in
private conversation. This does not include a hearing
aid or similar.

For example: Handheld devices such as mobile

phones and tablets, which have inbuilt audio
recording capabilities; voice recorders/dictation
equipment, audio bug surveillance devices.

When is it an offence to use a listening

device

It is an offence to install, use, or maintain a listening

device to record a private conversation whether or
not the person is a party to the conversation.

If a person is not a party to a private conversation it

is also an offence for them to install, use, or maintain
a listening device to monitor or listen to the private
conversation.

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ItHome
is also anAbout
offence to cause a listening device
Events & Training
to be Contact Us
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installed, used, or maintained for one of the above
purposes. E.g. paying someone to install Shopa device for
you.

Remember this prohibition is only for private

conversations. A listening device can be used where
the conversation is not private. Private conversations
do not include conversations where those involved
should have reasonably expected that the
conversation may be overheard.

For example:

• A conversation between two people in a

crowded food court that is loud enough for the
people seated next to them to hear would not
be private.
• A conversation between two people at low
volume in a busy park where there is no one
close to them would be a private conversation.
• A conversation between two people taking
place in a private home where they are alone
would be a private conversation.

Maximum penalty: $5,000 or imprisonment for 12

months or both.

For example: It is an offence for a person to install an

audio bug surveillance device in his home to record,
monitor, or listen to private conversations his wife has
with other people, for example to listen to what she
says in telephone conversations with other people. If
that person installed a bug on the telephone to
intercept and listen to/record both sides of the
telephone conversation then it would also be a
federal offence under the Telecommunications
(Interception and Access) Act 1979 (Cth) (see
below).

Where can I find this information in the Act?

See sections 5 and 34 of the Act.

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When
Home can a listening
About Events &device
Training be used
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It is legal if you unintentionally hear aShop

private
conversation through a listening device. E.g. if you
unintentionally heard a private conversation
between two people coming from a baby monitor
which was left on in a separate room of a house.

It is legal to record a private conversation to which

you are a party if all of the principal parties to that
conversation consent to the recording. A principal
party is a person in the conversation who is being
spoken to or who is speaking. Consent can be
express (“yes, you can record”) or implied (for
example, seeing the person you are having a private
conversation with get out a recording device and
pressing record and you not objecting). It could be
argued there is no consent if, for example, a person
threatens you if you do not comply with the
recording.

A listening device can be legally used to record,

monitor or listen to a private conversation where, for
example, there is a police warrant allowing it.

It is legal to use a listening device to record a private

conversation in certain circumstances if it is in the
public interest such as where, for example, it is to
protect the best interests of a child.

‘Public interest’ includes the interests of national

security, public safety, the economic well-being of
Australia, the protection of public health and morals
and the protection of the rights and freedoms of
citizens.

For example: if a mother sets up a listening device in

her child’s bedroom because she suspects the
child’s father is sexually abusing the child, this could
be argued as necessary to protect the best interests
of the child and in the public interest.

It is legal to record a private conversation where a

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person
Home
who is a principal
About
party in the private
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conversation consents to the use of the listening
device (expressly or impliedly) and itsShop
use is
reasonably necessary to protect that person’s lawful
interest. Only the person whose lawful interest is
being protected needs to consent to the use of the
listening device.

The onus of proof for establishing the above

exception lies on the party seeking to establish the
exception, and to prove it on the balance of
probabilities (i.e. more likely than not).

Reasonably necessary for the protection

of the lawful interest of that principal
party:

There is a distinction between lawful interest and

legal interest. Lawful interests are interests which are
not unlawful; its meaning is similar to the expressions
‘legitimate interests’ or ‘interests conforming to law’ –
see Farris v Boase [2013] WASC 227 and Violi v
Berrivale Orchards Ltd (2000) 173 ALR 518, 523 [28].
E.g. where a serious verbal dispute arises and one of
the parties begins to record the dispute, as they are
concerned there would otherwise be different
versions of the events.

For example: a woman has been getting constant

calls from a private number, she picks up and
recognises the voice to be her ex-partner who
threatens to harm her. The woman instals an app on
her smartphone that records telephone
conversations so the next time the private number
calls, she records the incoming call and his direct
threats to her safety. The woman was protecting her
lawful interest and can use this recording for police
assistance.

Where can I find this information in the Act?

See sections 3, 5, 24 and 26 of the Act.

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Use
Home of Optical
About Surveillance
Events & Training Devices
Resources Contact Us Subscribe

Shop
An ‘optical surveillance device’ means any
instrument, apparatus, equipment, or other device
capable of being used to record visually or observe
a private activity. It does not include spectacles,
contact lenses or similar.

For example: handheld devices such as mobile

phones and tablets with a camera, cameras, drones
with cameras, binoculars, ‘spy cameras’.

When is it an offence to use an optical

surveillance device

Generally, it is an offence to install, use, or maintain

an optical surveillance device to record visually a
private activity, whether or not the person is a party
to the private activity.

If a person is not a party to the private activity it is

also an offence for them to install, use, or maintain a
listening device to observe a private activity.

It is also an offence to cause an optical surveillance

device to be installed, used, or maintained for one
of the above purposes. E.g. paying someone to
install a device for you.

Remember this prohibition is only for on private

activities. An optical surveillance device can be
used where the activity is not private, for example,
using binoculars to watch a soccer match being
played in a public field. Private activities are where
the circumstances may reasonably be taken to
indicate any of the parties to the activity desire it to
only be observed by themselves. It does not include
activities where those involved should have
reasonably expected that activity might be
observed.

Maximum penalty: $5,000 or imprisonment for 12

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months
Home
or About
both. Events & Training Resources Contact Us Subscribe

For example: Shop

• If a woman is separated but living under the

same roof as her ex-partner, it would be an
offence for her ex-partner to install a
surveillance camera in her bedroom without
her consent
• A person puts a video-camera in the bathroom
of their own home to film a person getting in
and out of the shower, knowing the person has
not consented to being filmed in such a way
• A person deliberately leaves a laptop with its
web-cam on in a bedroom to live-stream
themselves having sex with a woman and the
woman is unaware of the live-streaming

Where can I find this information in the Act?

See sections 3 and 6 of the Act.

When can an optical surveillance

device be used?

It is legal to record visually a private activity to which

you are a party if all of the principal parties to that
activity consent to the recording. A principal party is
a person who takes part in the activity. Consent can
be express (“yes, you can record”) or implied (e.g.
seeing the person you are engaging in a private
activity with get out a camera and you not
objecting to them taking photos). It could be argued
there is no consent if, for example, a person
threatens you if you do not comply with the
recording.

An optical surveillance device can be legally used

to record or observe a private activity where it is
carried out by a police officer in their normal course
of duty.

It is legal to use an optical surveillance device to

record a private activity in certain circumstances if it 

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in the public
isHome About
interest such as where, forResources
Events & Training
example, it Contact Us Subscribe
is to protect the best interests of a child. ‘Public
interest’ includes the interests of national
Shopsecurity,
public safety, the economic well-being of Australia,
the protection of public health and morals and the
protection of the rights and freedoms of citizens.

For example: a mother sets up an optical

surveillance device in her child’s bedroom because
she suspects the child’s father is sexually assaulting
the child, this could be argued as necessary to
protect the best interests of the child and in the
public interest.

It is legal to record visually a private activity where a

person who is a principal party in the private activity
consents to the use of the optical surveillance
device (expressly or impliedly) and its use is
reasonably necessary to protect that person’s lawful
interest. Only the person whose lawful interest is
being protected needs to consent to the optical
surveillance devices use.

The onus of proof for establishing the above

exception lies on the party seeking to establish the
exception, and to prove it on the balance of
probabilities (i.e. more likely than not).

Reasonably necessary for the protection

of the lawful interest of that principal
party:

There is a distinction between lawful interest and

legal interest. Lawful interests are interests which are
not unlawful; its meaning is similar to the expressions
‘legitimate interests’ or ‘interests conforming to law’ –
see Farris v Boase [2013] WASC 227 and Violi v
Berrivale Orchards Ltd (2000) 173 ALR 518, 523 [28].

For example:

• A woman begins to visually record her ex-

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Home
partner at changeover
About
for the children
Events & Training Resources Contact Us Subscribe
because he is physically intimidating her and
begins throwing objects at her. Shop
• A person sets up surveillance cameras on their
property to protect themselves from theft or
trespass.

Where can I find this information in the Act?

See sections 6, 24 and 27 of the Act.

Use of Tracking Devices

A ‘tracking device’ means any instrument,

apparatus, equipment, or other device capable of
being used to determine the geographical location
of a person or object.

For example: GPS tracking device, mobile phones

with GPS tracking activated, a desktop
computer/laptop/mobile device linked to a GPS
tracker on the person being tracked.

When is it an offence to use a tracking

device

It is an offence to attach, install, use, or maintain a

tracking device to determine the geographical
location of a person without their permission, or to
determine the geographical location of an object
without the permission of the person in possession or
having control of that object.

It is also an offence to cause a tracking device to be

attached, installed, used, or maintained for one of
the above purposes. E.g. paying someone to install a
tracking device for you.

Maximum penalty: $5,000 or imprisonment for 12

months, or both.

For example:

• A person cannot give a person a smartphone 

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Home
that has software
About
loaded on to it that
Events & Training
they use
Resources Contact Us Subscribe
to monitor the person’s movements without
that person’s permission. Shop
• A person cannot put a GPS tracking device
onto another person’s car.

Where can I find this information in the Act?

See section 7 of the Act.

When can a tracking device be used?

A tracking device can only be legally used with the

express or implied consent of the person being
tracked by the tracking device. Or in the case of an
object, if the person who has lawful possession or
lawful control of that object has expressly or
impliedly consented.

A tracking device can also be legally used by a

police officer in their normal course of duty.

Where can I find this information in the Act?

See section 7 of the Act.

Sharing of Private Conversations or

Activities

When is it an offence to share private

conversations or activities

It is an offence for a person to knowingly publish or

communicate a private conversation, or a report or
record of a private conversation, or a record of a
private activity that has come to the person’s
knowledge as a direct or indirect result of the use of
a listening device or an optical surveillance device.

Maximum penalty: $5,000 or 12 months

imprisonment (or both).

For example:
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Home
• A person
About
uses aEvents
listening device to monitor
& Training Resources Contact Us Subscribe
another person’s private telephone
conversations without their consentShopthen
publishes the details of that conversation as a
public Facebook status update.
• A person has made a covert recording of
another person getting undressed in private
and then publishes that recording online on a
public website.

Where can I find this information in the Act?

See section 9 of the Act.

When can private conversations or

activities be shared

There are several exceptions that apply, including:

• Where the publication or communication is

made to a party to the private conversation or
the private activity. E.g. sending an electronic
version of the recording to the other person
who was a party to the conversation
• Where all of the other principal parties to the
private conversation or activity consent
(expressly or impliedly) to it being published or
communicated
• To protect the lawful interests of the person and
the publication or communication was not
more than was reasonably necessary to protect
their interest.
• Where the person making the publication or
communication believes on reasonable
grounds that it was necessary to make that
publication or communication in connection
with an imminent threat of serious violence to
persons or of substantial damage to property.
• Where a judge has made an order that it may
be communicated or published.

Where can I find this information in the Act?

See sections 9 and 31 of the Act.
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Possession
Home Aboutof a surveillance
Events & Training device
Resources Contact Us Subscribe

for an unlawful purpose Shop

It is an offence to possess a surveillance device in

the knowledge that it is intended or principally
designed for an unlawful use.

Maximum penalty: $5,000 or imprisonment for 12

months or both.

Where can I find this information in the Act?

See section 34 of the Act.

Telecommunications
(Interception and
Access) Act 1979 (Cth)
The primary purpose of the Telecommunications
(Interception and Access) Act 1979 (Cth) (‘TIA Act’)
is to protect the privacy of individuals who use the
Australian telecommunications system.

Intercepting telecommunications

When is it an offence to intercept

telecommunications

It is an offence to:
a. intercept;
b. authorise, suffer or permit another person to
intercept; or
c. do any act or thing that will enable him or her or
another person to intercept;
a communication passing over a
telecommunications system.

Exceptions to this offence exist but are related to law

enforcement or the installation or maintenance of 

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telecommunication
Home About
systems by carriers, and
Events & Training
are not
Resources Contact Us Subscribe
relevant in the context of domestic violence.
Shop
‘Communication’ includes conversation and a
message, and any part of a conversation or
message, whether in the form of speech, music or
other sounds, data, text, visual images, whether or
not animated, signals or in any other form or in any
combination of forms.

A communication starts ‘passing over’ a

telecommunications system when it is sent or
transmitted by the person sending the
communication, and continues until it becomes
accessible to the intended recipient of the
communication.

A ‘telecommunications system’ means a system, or

series of systems, for carrying communications by
means of guided or unguided electromagnetic
energy or both (but does not include a system, or
series of systems, for carrying communications solely
by means of radio communication) that is:
a. within Australia; or
b. partly within Australia, but only to the extent that
the network is within Australia;
and includes equipment, a line or other facility that is
connected to such a network and is within Australia.

Maximum penalty: Imprisonment for 2 years.

For example: It is an offence for a person to record

his partner’s phone calls using an app he instals on
her phone.

Where can I find this information in the TIA Act?

See sections 7 and 105. See sections 5 and 5F for
definitions.

Gathering evidence to prove

technology-facilitated stalking or
abuse 

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Sometimes
Home
it can be Events
About
difficult to prove technology-
& Training Resources Contact Us Subscribe
facilitated stalking or abuse. Some tips for gathering
evidence to show that technology-facilitated
Shop
stalking or abuse has occurred are:

• Do not delete text messages, voicemail

messages, photos
• Try and save any evidence to a computer/USB
flash drive
• Use screenshots and save the image as the
date & time it was taken. If taking screenshots
of websites, always include the URL in the
screenshot
• Keep a diary or voice notes of incidents
including dates and times
• Consider giving police written permission to
access your phone, computer, Facebook,
email account etc. if a matter is being
investigated

Note: certain other conduct in relation to

technology-facilitated stalking or abuse may
constitute a criminal offence. Please see the Legal
Guide to Image-based Abuse in WA and the Legal
Guide on Relevant Criminal Offences in WA for
further information.

Download this page in a handout

version (in PDF)

Legal Guide to Surveillance Legislation WA [PDF]

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