The Surveillance Devices Act 1998 (WA) is a law in Western Australia that makes it a criminal offence to make an audio recording of a private conversation or a visual recording of a private activity without the consent of the parties involved. It also prohibits the publication of information obtained from such recordings without consent.
Can you record someone without permission?
In recent weeks, a Melbourne man found himself in a video that went viral on TikTok. Friends and family from overseas alerted him to the post – they had recognised him in a video being filmed at a supermarket checkout. Someone else had paid for his groceries, and then, that benefactor filmed his reaction.
While ‘paying it forward’ is always a nice gesture, some would argue that the benefactor’s desire to film the kind act and then post it online, is not necessarily the right thing to do, even if it was in a post that encouraged acts of kindness.
The man who was filmed has since told the media that the video “creeped him out” and made him upset because he strongly values and defends his personal privacy – his right to choose where, when and with whom, he shares his information.
The post has collected more than 6 million views and 330,000 likes and reactions from viewers have stirred up both sides of the privacy debate.
In 2022, it's Easy to Record Video and Audio
In our technologically advanced world smartphones and other readily available devices make it easy for people to make videos and audio recordings of others, regardless of whether they have the recorded person’s consent.
It’s not uncommon for large companies to record phone conversations for the purpose of training employees. As a criminal lawyer in WA, I often encounter scenarios where people have gone to the extent of recording conversations in an effort to obtain evidence.
So what does the law say when it comes to audio and visual recordings.
The Surveillance Devices Act – Western Australia
The law differs slightly from state and territory around Australia, but in Western Australia it is a criminal offence under section 5 (1) and 6 (1) of the Surveillance Devices Act 1998 (WA). to make a audio recording of a private conversation or a visual recording of a private activity.
The law also prohibits the the publication of information obtained from recordings of private activities or private conversations without the consent of parties to the activity or conversation (Section 9 of the Act).
“Private activity” means any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed;
“Private conversation” means any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard
There are some exceptions to the prohibitions contained in sections 5 and 6 of the Surveillance Devices Act which include the following:
- Where all parties involved give implied or express consent to the recording;
- Where a warrant or other legal authorisation has been made for the use of a listening device in circumstances such as in the course of an investigation into a suspected criminal offence;
- Where a video recording is done in public where there is no expectation of privacy;
- Where the recording is necessary for the protection of the lawful interests of the party who makes the recording;
- Where the recording is in the public interest, such as where, for example, it is to protect the best interests of a child.
Upon an application by the police, the court may issue an optical surveillance device warrant, or listening device warrant in order for the police to lawfully record a person.
For the court to issue the warrant the court must be satisfied that there are reasonable grounds for believing an offence has been, is being, is about to be, or is likely to be committed, and the use of the device would assist a formal police investigation of the offence.
Whether or not a warrant will be issued will be at the court’s discretion.
When considering an application for a listening device warrant, an optical surveillance device warrant or a tracking device warrant, the court is required to consider:
- the nature and severity of the offence;
- the extent of intrusion on the person’s privacy;
- whether there are alternative means by which the evidence can be obtained;
- the probative value of the evidence to be obtained;
- whether there are any other warrants issued for the same matter;
- whether it is in the public interest.
If issued by the court a surveillance or listening device warrant, will contain specific rules regarding, for example, the type of device which is approved, and in what circumstances the device can be used.
The warrant may also limit the locations of where the surveillance device is authorised to be used, as well as who can use the device, and for how long.
If the police do not act within the perimeters of the warrant, the evidence obtained may be ruled inadmissible in court.
Frequently Asked Questions
According to the Surveillance Devices Act, a private activity refers to any activity carried out in circumstances where the parties involved reasonably expect it to be observed only by themselves. However, it does not include activities carried out in circumstances where the parties ought reasonably to expect that the activity may be observed.
A private conversation, as defined by the Surveillance Devices Act, is any conversation carried out in circumstances where the parties involved reasonably desire it to be listened to only by themselves. However, it does not include conversations carried out in circumstances where the parties ought reasonably to expect that the conversation may be overheard.
The exceptions to the prohibitions under the Surveillance Devices Act include situations where all parties involved give implied or express consent to the recording when a warrant or legal authorization has been issued for the use of a listening device in the course of a criminal investigation, when the recording is done in a public place with no expectation of privacy, when the recording is necessary for the protection of the lawful interests of the party making the recording, and when the recording is in the public interest, such as for the best interests of a child.
The court may issue a surveillance or listening device warrant if there are reasonable grounds to believe that an offense has been, is being, is about to be, or is likely to be committed, and if the use of the device would assist a formal police investigation of the offence.
The court will consider factors such as the nature and severity of the offence, the extent of the intrusion on privacy, alternative means of obtaining evidence, the probative value of the evidence, other warrants issued for the same matter, and the public interest when deciding whether to issue a warrant.
Yes, it is generally illegal to video record someone without their consent in Australia.
In general, recording someone's private activity without their consent is considered a violation of privacy laws. The specific laws regarding video recording without consent may vary slightly between states and territories.
It is important to obtain the consent of the individuals involved before recording them, especially in situations where there is a reasonable expectation of privacy.
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PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.