Listening Devices Act 1991

Listening Devices Act 1991

This Act may be cited as the Listening Devices Act 1991.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears – listen to includes hear; listening device means any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place; party, in relation to a private conversation, means – a person by or to whom words are spoken in the course of the conversation; or a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of the conversation, records or listens to those words; personal camera has the same meaning as in the Police Powers (Surveillance Devices) Act 2006; principal party, in relation to a private conversation, means a person by or to whom words are spoken in the course of the conversation; private conversation means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only – by themselves; or by themselves and by some other person who has the consent, express or implied, of all those persons to do so; regulations means the regulations made and in force under this Act; serious narcotics offence means an offence under Part 2 of the Misuse of Drugs Act 2001, but does not include an offence which is declared by the regulations not to be a serious narcotics offence within the meaning of this Act.

A reference in this Act to a listening device does not include a reference to a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and to permit the person to hear only sounds ordinarily audible to the human ear.

A reference in this Act to – a report of a private conversation includes a reference to a report of the substance, meaning or purport of the conversation; or a record of a private conversation includes a reference to a statement prepared from such a record.

This Act binds the Crown, not only in right of Tasmania but also, so far as the legislative power of Parliament permits, binds the Crown in all its other capacities.

A person shall not use, or cause or permit to be used, a listening device – to record or listen to a private conversation to which the person is not a party; or to record a private conversation to which the person is a party.

Subsection (1) does not apply to – the use of a listening device pursuant to a warrant granted under Part 4; or the use of a listening device pursuant to an authority granted by or under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth; or the use of a surveillance device pursuant to an authority granted by or under the Police Powers (Surveillance Devices) Act 2006 or by or under a corresponding law as defined in section 3 of that Act; or the use, in accordance with section 44A of the Police Powers (Surveillance Devices) Act 2006, of a listening device consisting of a personal camera; or the use of a listening device to obtain evidence or information in connection with – an imminent threat of serious violence to persons or of substantial damage to property; or a serious narcotics offence – if the person using the listening device believes on reasonable grounds that it was necessary to use the device immediately to obtain that evidence or information; or the unintentional hearing of a private conversation by means of a listening device; or the use of a listening device for the recording of an interview between a police officer and a person suspected by a police officer of having committed an offence against any Act.

For the purposes of subsection (2)(e), police officer includes a person appointed by or under an Australian law whose functions include the prevention or investigation of offences.

Subsection 1 (b) does not apply to the use of a listening device by a party to a private conversation if – all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used; or a principal party to the conversation consents to the listening device being so used and – the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party; or the recording of the conversation is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

Where a listening device is used in the circumstances referred to in subsection (2)(c) and its use would, but for subsection (2)(c), be contrary to this section, the person who used the device shall, within 3 days after first using the device, furnish a report to the Chief Magistrate containing particulars of the circumstances in which the device is being, or was, used.

If, on receipt of a report referred to in subsection (4), the Chief Magistrate is not satisfied that the use of the listening device was justified under subsection (2)(c), the Chief Magistrate shall order that the use of the device immediately cease.

Where the Chief Magistrate has ordered that the use of a listening device cease, a person shall not use the listening device after such an order is made unless it is used pursuant to a warrant granted under Part 4.

If, on receipt of a report referred to in subsection (4), the Chief Magistrate is satisfied that the use of the listening device was justified under subsection (2)(c), the Chief Magistrate shall so notify the person using the device and that person shall, within one month after the device ceases to be used, furnish a report in writing to the Chief Magistrate – specifying the name, if known, of any person whose private conversation was recorded or listened to by the use of the device; and specifying the period during which the device was used; and containing particulars of any premises on which the device was installed or any place at which the device was used; and containing particulars of the general use made or to be made of any evidence or information obtained by the use of the device.

Where the Chief Magistrate, on receipt of a report referred to in section 5(4), orders that the use of a listening device cease and a warrant under Part 4 in respect of the use of the listening device has not been granted, the Chief Magistrate may direct the person who used the listening device to supply to a person whose private conversation has been recorded or listened to, within a period specified by the Chief Magistrate, such information regarding the use of the device as the Chief Magistrate may specify.

The Chief Magistrate shall not give a direction under subsection (1) unless satisfied that, having regard to the evidence or information obtained by the use of the listening device and to any other relevant matter, the use of the listening device was an unnecessary interference with the privacy of the person concerned.

Before giving a direction under subsection (1), the Chief Magistrate shall give the person who used the listening device an opportunity to be heard in relation to the matter.

A person to whom a direction is given under subsection (1) shall comply with the direction. Fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both.

On receipt of a report under section 5(7), the Chief Magistrate may exercise the same powers as the Chief Magistrate may exercise under section 6(1) and subsections (2), (3) and (4) of that section apply accordingly.

Where a listening device is used in circumstances referred to in section 5(2)(c) and its use would, but for section 5(2)(c), be contrary to that section, the person using the device shall, within one month, after the device ceases to be used, furnish a report in writing to the Attorney-General –

containing particulars of the circumstances in which the device was used; and without affecting the generality of paragraph (a), containing the same particulars and specifying the same matters as are required by section 5(7).

Where a private conversation has come to the knowledge of a person – as a result, direct or indirect, of the use of a listening device in contravention of section 5; or as a result of the unintentional hearing of such a conversation by means of a listening device – that person shall not knowingly communicate or publish that conversation, or a report of that conversation, to any other person.

Subsection (1) does not apply – where the communication or publication is made – to a party to the private conversation; or with the consent, express or implied, of all of the principal parties to the private conversation; or in the course of proceedings for an offence against this Act; or where the person making the communication or publication believes on reasonable grounds that it was necessary to make that communication or publication in connection with – an imminent threat of serious violence to persons or of substantial damage to property; or a serious narcotics offence; or to prevent a person who has obtained knowledge of the private conversation otherwise than in a manner referred to in that subsection from communicating or publishing to another person the knowledge so obtained by the person, notwithstanding that the person also obtained knowledge of the conversation in such a manner.

Subsection (1)(b) does not apply in relation to a communication, or publication, of information, obtained by the use by a police officer of a personal camera, that is a communication or publication to which section 33(3) or (4) of the Police Powers (Surveillance Devices) Act 2006 applies.

A person who has been a party to a private conversation and has used, or caused to be used, a listening device to record the conversation (whether in contravention of section 5 or not), shall not subsequently communicate or publish to any other person any record of the conversation made, directly or indirectly, by the use of the device.

Subsection (1) does not apply where the communication or publication – is made to another party to the private conversation or with the consent, express or implied, of all of the principal parties to the conversation; or is made in the course of legal proceedings; or is not more than is reasonably necessary for the protection of the lawful interests of the person making the communication or publication; or is made to a person who has, or is, on reasonable grounds, by the person making the communication or publication, believed to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made; or is made by a person who used the listening device to record the private conversation pursuant to a warrant granted under Part 4 or pursuant to an authority granted by or under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth.

Subsection (1) does not apply in relation to a communication, or publication, of a record obtained by the use by a police officer of a personal camera, that is a communication or publication to which section 33(3) or (4) of the Police Powers (Surveillance Devices) Act 2006 applies.

A person shall not possess a record of a private conversation knowing that it has been obtained – directly or indirectly, by the use of a listening device in contravention of section 5; or as the result of the unintentional hearing of a private conversation.

Subsection (1) does not apply where the record is in the possession of the person – in connection with proceedings for an offence against this Act; or with the consent, express or implied, of all of the principal parties to the private conversation; or as a consequence of a communication or publication of that record to that person in circumstances that do not constitute an offence against this Part.

Subsection (1)(b) does not apply where the record is of information obtained by the use of a personal camera in accordance with section 44A of the Police Powers (Surveillance Devices) Act 2006.