Listening Devices Act 1992

This Act is the Listening Devices Act 1992.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘engage in conduct—see the Criminal Code, section 13.’ means that the term ‘engage in conduct’ is defined in that section and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

This section applies in relation to an electronic communication, other than a protected electronic communication, between a detainee in a correctional centre and someone else.

This Act does not apply to any of the following under the Corrections Management Act 2007:

the listening to or recording of the communication;

the communication or publication of the communication.

In this section:

detainee—see the Corrections Management Act 2007, section 6.

electronic communication—see the Corrections Management Act 2007, section 103 (Monitoring telephone calls etc).

protected electronic communication—see the Corrections Management Act 2007, section 103 (Monitoring telephone calls etc).

This section applies in relation to an electronic communication, other than a protected electronic communication, between a young detainee in a detention place and someone else.

This Act does not apply to any of the following under the Children and Young People Act 2008:

the listening to or recording of the communication;

the communication or publication of the communication.

In this section:

electronic communication—see the Children and Young People Act 2008, section 200 (Monitoring telephone calls etc).

protected electronic communication—see the Children and Young People Act 2008, section 200 (Monitoring telephone calls etc).

young detainee—see the Children and Young People Act 2008, section 95.

A person must not use a listening device with the intention of—

listening to or recording a private conversation to which the person is not a party; or

recording a private conversation to which the person is a party.

Maximum penalty: 50 penalty units.

Subsection (1) does not apply to—

the use of a listening device under an authority granted by or under a law in force in the ACT; or

the unintentional hearing of a private conversation by means of a listening device.

Subsection (1) (b) does not apply to the use of a listening device by, or on behalf of, a party to a private conversation if—

each principal party to the conversation consents to that use of the listening device; or

a principal party to the conversation consents to the listening device being so used, and—

the recording of the conversation is considered by that principal party, on reasonable grounds, to be necessary for the protection of that principal party’s lawful interests; or

the recording is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to any person who is not a party to the conversation.

Subsection (3) (b) (i) does not apply so as to exempt a person from the application of subsection (1) if the relevant listening device is used by or on behalf of the Territory.

A person who is party to a private conversation commits an offence if—

the person divulges or communicates a record of the conversation; and

the person knows that the record was made, directly or indirectly, using a listening device (whether or not in contravention of section 4).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

Subsection (1) does not apply if the communication or publication—

is made to another party to the conversation; or

is made with the consent of each principal party to the conversation; or

is made in the course of civil or criminal proceedings; or

is considered by the party making it, on reasonable grounds, to be necessary for the protection of that party’s lawful interests; or

is made to a person who is believed by the party on reasonable grounds to have such an interest in the conversation as to make the communication or publication reasonable in the circumstances; or

is made under an authority granted by or under a law in force in the ACT.

Subsection (2) (d) does not apply so as to exempt a person from the application of subsection (1) if the relevant record of conversation is made, directly or indirectly, by the use of a listening device by or on behalf of the Territory.

A person commits an offence if—

the person divulges or communicates a private conversation, or a report of a private conversation; and

the person knows of the conversation, directly or indirectly, because of the use of a listening device—

in contravention of section 4; or

in circumstances mentioned in section 4 (2) (b) or (3).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

Subsection (1) does not apply—

if the communication or publication is made—

to a party to the private conversation; or

with the consent of each principal party to the conversation; or

in the course of proceedings for an offence against this Act; or

in the case of the use of a listening device in the circumstances referred to in section 4 (3) (b) (i)—in the course of reasonable action taken to protect the lawful interests of the principal party to the conversation who consented to the use of the device; or

if the person referred to in subsection (1) also obtains knowledge of the private conversation or report in circumstances other than those referred to in that subsection.

Subsection (2) (a) (iv) does not apply so as to exempt a person from the application of subsection (1) if the relevant listening device is used by or on behalf of the Territory.

A person commits an offence if—

the person possesses a record of a private conversation; and

the person knows the record was obtained, directly or indirectly, using a listening device in contravention of section 4.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

Subsection (1) does not apply if the record is in the possession of the person—

in connection with proceedings for an offence against this Act; or

with the consent of each principal party to the conversation; or

as a consequence of a communication or publication of the record to that person in circumstances that do not constitute an offence against this Act.

A person commits an offence if—

the person—

manufactures a listening device; or

supplies, sells or distributes a listening device; or

offers to supply, sell or distribute a listening device; or

possesses a listening device; and

the person knows the device is intended or mainly designed for use in contravention of section 4.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

In this part, a reference to the giving of evidence of a private conversation includes a reference to the production of a record of the conversation.