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In 2020 the Queensland Law Reform Commission released its review regarding the creation of a Surveillance Devices Bill. The review was conducted to determine if legislation was required to protect a persons privacy from current and emerging changes to technology around devices that can monitor, track and/or record a persons activities or conversations. A draft Surveillance Devices Bill was the result of the QLRC review which can be found HERE. The draft Bill commences at page 419. This post will give some general understanding of the Bill and take a look at what will constitute an offence and some exceptions to those offences.
The Bill appears to be trying to bring Queensland into line with other jurisdictions in Australia. The Bill will cause the repeal of the Invasion Of Privacy Act 1971 (Qld). The time to make a public submission for any amendment to the Bill has now passed. This blog looks at the Bill as it was presented to the public before submissions closed.
The Surveillance Devices Bill will affect everyone in Queensland. There will be exemptions for certain people such as police officers, fisheries inspectors etc. Those people will gain their exemptions through the legislation that authorises their powers. The Bill will repeal the Invasion of Privacy Act. Areas covered by the Invasion of Privacy Act will be included in the Surveillance Devices Bill but it will bring about changes. The Invasion of Privacy Act currently allows a person to record a conversation they are a party to. They do not have to inform the other person that they are recording it. If the Bill is enacted then this will become an offence unless an exemption applies.
Section 6 of the Bill defines a Surveillance Device. Sections 7 - 10 give a more in depth definition for each of those particular devices.
A Surveillance Device has been defined as any device that can do one or a combination of the following functions.
Two further definitions which are important are for the terms "private conversation" (s 11) and "private activity" (s 12).
Meaning of private conversation
This definition basically says that people can have a private conversation on their own or with others.
One person can have a private conversation if they speak in circumstances that may reasonably indicate they do not want anyone to hear what they say. This could be a person speaking out loud to themselves while alone at home or in the office.
Two or more people can also have a private conversation. This occurs where they reasonably indicate that they do not want what is said to be listened to by anyone who is not a part of the conversation, or by someone who does not have the consent of all of the people who are involved.
A conversation will not be considered a private conversation where it may reasonably be expected to be overheard, monitored or recorded
Meaning of private activity
(1) An activity is a private activity if it is carried out in
circumstances that may reasonably be taken to indicate that—
(2) However, a private activity does not include an activity carried out by 1 or more individuals in circumstances in which all of the individuals carrying out the activity ought reasonably to expect that someone else may observe, monitor or visually record the activity.
The definition states that a person does a private act where they do not want anyone else to see them do it.
Where there are two or more people, the activity will be a private activity if at least one person does not want the activity to be observed by any one not involved or anyone who does not have the consent of everyone involved in the activity. If a recording device was used to film a private activity then only those people involved would be able to watch it or any person who has the consent of everyone involved.
An activity will not be a private activity if those involved should reasonably expect that the activity would be able to be observed by someone not involved. It will not be a private activity if the activity is performed in public.
The prohibitions (offences) are listed at sections 18 - 21 of the draft Bill.
Section 18 - A person will not be able to use, install or maintain a listening device to listen to, record or monitor a private conversation without the consent of everyone in the conversation.
Section 19 - A person will not be able to use, install or maintain an optical surveillance device to observe, monitor or visually record a private activity without the consent of everyone involved in the activity.
Section 20 (1) - It will be illegal to use, install or maintain a device to track or find the location of a person without their consent.
(2) - It will be illegal to use, install or maintain a device to track or find the location of a vehicle or other thing without the consent of each person who owns or is in lawful control, of the vehicle or other thing.
Section 21 - It will be illegal to use, install or maintain a data surveillance device to access, monitor or record information that is input into, output from or stored in a computer without the consent of the person/people who own or use the computer.
Each of these offences will carry a penalty of 60 penalty units or 3 years imprisonment.
The Surveillance Devices Bill has a number of exceptions to the above listed offences.
It will not be an offence to use, install or maintain a surveillance device to protect your lawful interests or the interests of someone who has authorised you to protect theirs.
Lawful interests is not defined in the Bill so that definition will come from common (case) law.
It will not be an offence to install, use or maintain a surveillance device if it is reasonably necessary in the public interest. If a person was to use this exception, the court will be required to look at certain aspects of the matter to determine if the information obtained is reasonably necessary in the public interest. Things the court must consider are:
There will be an exception for using, installing or maintaining a device where a person believes it is necessary to obtain evidence in relation to a serious threat to the life or well-being of a person, or substantial damage to property.
This exception allows for a tracking device to be used to help locate a lost or stolen vehicle or other item. The person using the device would need to be the owner or someone authorised by the owner and they must reasonably suspect the vehicle/item to have been lost or stolen.
As has been previously noted, some people/occupations will have an exception through legislation which authorises their powers. They will also be authorised if regulations provide one.
The Surveillance Devices Bill also has offences related to what you do with the information that is obtained.
Offences have also been drawn up to prevent to the communication or publication of any information found through the surveillance devices. It will be an offence if you do not have the consent of those involved and you know the information was obtained by a surveillance device. The offences are take effect if you ought to reasonably know it was obtained by a surveillance device. These offences will be in relation to private conversations; private activities; locations of vehicles, people or items; and data input into, stored on or output from a computer.
The maximum penalty will be 60 penalty units or 3 years imprisonment.
See sections 28, 29 and 30.
Exceptions
Section 31 gives exceptions to these offences which appear to mirror the exceptions listed earlier.
The Surveillance Devices Bill appears to try and bring Queensland into line with the other Jurisdictions in Australia. Home security cameras will be able to be used. A camera will not be allowed to film a private activity inside a house without the consent of the person/people being filmed. That film will then not be allowed to be shown or distributed to others unless everyone who was involved in the activity allows it.
The legislation will have an impact on our current ability to record a conversation we are a party to without informing those other people involved. As long as an exception applies or it is not classed as a private conversation, you will not be able to record the conversation.
A section of law that this appears to mirror is Section 223 of the Criminal Code 1899 (QLD). Section 223 does define consent slightly different to the Surveillance Devices Bill. The Bill defines consent as being express or implied consent. The Criminal Code defines it as being something "freely and voluntarily given by a person with the cognitive capacity to give the consent." While not expressly identified, a persons cognitive capacity to give consent will no doubt be implied into the definition.
This post will be updated if the Bill is enacted. If you need legal advice regarding anything discussed then contact your lawyer.
