IEEE Technology and Society Magazine - Summer 2014 - 43
Territory (2000), and NSW (2007).
Because of the differences and the
complexities, general statements
need to be expressed and interpreted
cautiously; but, broadly, visual and/
or aural surveillance of a "private
activity" is likely to be illegal. A "private activity" is any activity inside a
building performed in circumstances
where it is reasonable to assume the
parties to it did not want it to be seen
by others, and reasonably expected
that it would not be seen by others.
In NSW at least, it includes activity
inside a vehicle. However, the prohibition may not apply:
■
■
■
to someone who is a party to
the activity
if the activity is happening
outside the building; and/or
if the circumstances indicate
the parties do not care if they
are seen.
Hence it would seem likely, for
example, that it is illegal for a third
party to visually record a sex act in
a toilet cubicle (e.g., [11], involving
two prominent sportspeople, Falzon and Williams), or for a third
party to visually transmit a sex act
between other parties (one interpretation of a 2010 incident at the
Australian Defence Force Academy - ADFA). However it is not
illegal under such laws for a party
to the act to transmit or record
it (the other interpretation of the
ADFA incident). Further, it would
be less likely to be illegal if the act
was conducted in private, but brazenly (e.g., with the door open).
Queensland has taken a similar
but highly restrictive approach, with
the Criminal Code s. 227A-227C
relating to "observations or [visual]
recordings in breach of privacy,"
supported by guidance provided
in the Queensland Courts Bench
Handbook. Visual surveillance
without consent is only precluded
if the person would reasonably
expect their actions to be private.
However, the terms "private act"
and "private place" are defined to
restrict the terms' applicability to a
very few, specific instances.
The other three jurisdictions
have yet to regulate visual surveillance, but have remnant Listening
Devices legislation - South Australia (1972), Tasmania (1991), and
The Surveillances Devices Acts of
Victoria, WA and NT, for example, prohibit the use of visual and
aural surveillance devices, but
only if the person(s) whose behavior is observed or recorded had a
strong case for expecting that the
A person who fights back against
media intrusions runs the risk
of themselves infringing a wide
array of provisions of both civil
and criminal law.
ACT (1992). There is no general
prohibition against taking photographs or videos of people without
their consent, not even in private.
There may be, however, laws applying in particular contexts. There is,
on the other hand, a general prohibition on listening to or recording
sounds generated by other people,
again subject to various provisos.
There are Workplace Surveillance laws in NSW (2005) - which
replaced an earlier statute of 1998,
and ACT (2011). However, these
merely require that the surveillance
be declared; or, if the surveillance
is to be covert, it requires a good
reason and a magistrate's approval.
Some other States and Territories
may preclude surveillance in toilets, bathrooms, and change-rooms,
at least in workplace contexts.
PoVS in Public Places
The Surveillance Devices Act
(Cth) s.37 authorizes multiple law
enforcement agencies to use optical surveillance devices, in public
places, without a warrant, provided
that "there is no entry to premises
without permission and no interference with any vehicle or thing."
Across the States and Territories, visual surveillance in public
places appears not to be subject to
general prohibitions except under
a small number of circumstances.
IEEE TECHNOLOGY AND SOCIETY MAGAZINE
|
SuMMEr 2014
behavior would not be observed,
transmitted, or recorded. In NSW,
visual and aural surveillance in
a public place is only precluded
if the person would reasonably
expect their actions to be private,
and if they are engaging in a private act. The term "private act" is
defined to include a very few, specific instances. In South Australia,
Tasmania, and the ACT, Listening Devices legislation contains
no provisions in relation to video
surveillance. There is, however, a
general prohibition on listening to
or recording other people, again
subject to various provisos.
Censorship laws at Commonwealth, State and Territory levels
place some limitations on acts that
are permitted to be the subject of
PoVS. In addition, various laws
have been rammed through Parliaments during periods of moral
panic relating to "peeping-tom,"
"upskirting," and "downblousing"
activities. Many have had to be
withdrawn or amended when cases
reached the courts and anomalies and unintended consequences
emerged. A lead has been provided
in this area by the Queensland
Criminal Code in 2005, which
criminalizes observation or visual
recording made for the purpose
of observing or visually recording another person's genital or
|
43
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