1Purposes

The purposes of this Act are—

S. 1(a) amended by No. 26/2004 s. 4(a).

(a)

to regulate the installation, use, maintenance and retrieval of surveillance devices;

S. 1(b) substituted by No. 26/2004 s. 4(b).

(b)

to restrict the use, communication and publication of information obtained through the use of surveillance devices or otherwise connected with surveillance device operations;

S. 1(c) amended by No. 26/2004 s. 4(c).

(c)

to establish procedures for law enforcement officers to obtain warrants or emergency authorisations for the installation, use, maintenance and retrieval of surveillance devices;

(d)

to create offences relating to the improper installation or use of surveillance devices;

S. 1(e) substituted by No. 26/2004 s. 4(d).

(e)

to impose requirements for the secure storage and destruction of records, and the making of reports to judges, magistrates and Parliament, in connection with surveillance device operations;

(f)

to repeal the Listening Devices Act 1969;

S. 1(g) inserted by No. 26/2004 s. 4(e).

(g)

to recognise warrants and emergency authorisations issued in other jurisdictions for the installation and use of surveillance devices.

2Commencement

(1)

This Part comes into operation on the day on which this Act receives the Royal Assent.

(2)

Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3)

If a provision referred to in subsection (2) does not come into operation before 1 January 2000, it comes into operation on that day.

4Act binds the Crown

This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

5Act not to apply to certain Commonwealth agents

Nothing in this Act applies to anything done in the course of duty by—

(a)

a member or member of staff of the Australian Competition and Consumer Commission;

(b)

the Director General or an officer or employee of the Australian Security Intelligence Organisation;

S. 5(c) amended by No. 52/2003 s. 52(Sch. 1 item 11(2)).

(c)

a member of the Australian Federal Police, other than in his or her capacity as a member of staff of the Australian Crime Commission;

(d)

an officer of customs within the meaning of the Customs Act 1901 of the Commonwealth;

(e)

the Minister administering the Migration Act 1958 of the Commonwealth or the Secretary or an officer or employee in the Department within the meaning of that Act.

S. 5A inserted by No. 26/2004 s. 6.

5AApplication of Act

(1)

This Act is not intended to limit a discretion that a court has—

(a)

to admit or exclude evidence in any proceeding; or

(b)

to stay criminal proceedings in the interests of justice.

(2)

For the avoidance of doubt, it is intended that a warrant may be issued, or an emergency authorisation given, in this jurisdiction under this Act for the installation, use, maintenance or retrieval of a surveillance device in this jurisdiction or a participating jurisdiction or both.

(3)

Subsection (2) is subject to sections 19(7) and 27(5).

6Regulation of installation, use and maintenance of listening devices

S. 6(1) amended by No. 26/2004 s. 7(a).

(1)

Subject to subsection (2), a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.

In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both;

In the case of a body corporate, 1200 penalty units.

Note to s. 6(1) inserted by No. 13/2013 s. 42(1).

Note

Section 32A applies to an offence against this subsection.

(2)

Subsection (1) does not apply to—

S. 6(2)(a) amended by No. 26/2004 s. 7(b).

(a)

the installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or

S. 6(2)(b) amended by No. 26/2004 s. 7(c).

(b)

the installation, use or maintenance of a listening device in accordance with a law of the Commonwealth; or

S. 6(2)(c) inserted by No. 26/2004 s. 7(d).

(c)

the use of a listening device by a law enforcement officer to monitor or record a private conversation to which he or she is not a party if—

(i)

at least one party to the conversation consents to the monitoring or recording; and

(ii)

the law enforcement officer is acting in the course of his or her duty; and

S. 6(2)(c)(iii) amended by No. 54/2017 s. 4(1)(a).

(iii)

the law enforcement officer reasonably believes that it is necessary to monitor or record the conversation for the protection of any person's safety; or

S. 6(2)(d) inserted by No. 54/2017 s. 4(1)(b).

(d)

the overt use of a body-worn camera or a tablet computer by a police officer or an ambulance officer acting in the course of the officer's duty and the recording of a private conversation to which the officer is not a party is inadvertent, unexpected or incidental to that use; or

S. 6(2)(e) inserted by No. 54/2017 s. 4(1)(b).

(e)

the overt use of a body-worn camera or a tablet computer by a prescribed person, or a person belonging to a prescribed class of persons, acting in the course of the person's duties in the prescribed circumstances and the recording of a private conversation to which the person is not a party is inadvertent, unexpected or incidental to that use.

S. 6(3) inserted by No. 54/2017 s. 4(2).

(3)

For the purposes of subsection (2)(d) and (e), a police officer, an ambulance officer, a prescribed person or a person belonging to a prescribed class of persons is not required to inform a person that the person is being recorded with a body-worn camera or a tablet computer.

7Regulation of installation, use and maintenance of optical surveillance devices

S. 7(1) amended by No. 26/2004 s. 7(a).

(1)

Subject to subsection (2), a person must not knowingly install, use or maintain an optical surveillance device to record visually or observe a private activity to which the person is not a party, without the express or implied consent of each party to the activity.

In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both;

In the case of a body corporate, 1200 penalty units.

Note to s. 7(1) inserted by No. 13/2013 s. 42(1).

Note

Section 32A applies to an offence against this subsection.

(2)

Subsection (1) does not apply to—

S. 7(2)(a) amended by No. 26/2004 s. 7(b).

(a)

the installation, use or maintenance of an optical surveillance device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or

(b)

the installation, use or maintenance of an optical surveillance device in accordance with a law of the Commonwealth; or

(c)

the installation, use or maintenance of an optical surveillance device by a law enforcement officer in the performance of his or her duty on premises if—

(i)

an occupier of the premises authorises that installation, use or maintenance; and

S. 7(2)(c)(ii) amended by No. 54/2017 s. 5(1)(a).

(ii)

the installation, use or maintenance is reasonably necessary for the protection of any person's lawful interests; or

S. 7(2)(d) inserted by No. 54/2017 s. 5(1)(b).

(d)

the overt use of a body-worn camera or a tablet computer by a police officer or an ambulance officer acting in the course of the officer's duty and the recording of a private activity to which the officer is not a party is inadvertent, unexpected or incidental to that use; or

S. 7(2)(e) inserted by No. 54/2017 s. 5(1)(b).

(e)

the overt use of a body-worn camera or a tablet computer by a prescribed person, or a person belonging to a prescribed class of persons, acting in the course of the person's duties in the prescribed circumstances and the recording of a private activity to which the person is not a party is inadvertent, unexpected or incidental to that use.

S. 7(3) inserted by No. 54/2017 s. 5(2).

(3)

8Regulation of installation, use and maintenance of tracking devices

S. 8(1) amended by No. 26/2004 s. 7(a).

(1)

Subject to subsection (2), a person must not knowingly install, use or maintain a tracking device to determine the geographical location of a person or an object—

(a)

in the case of a device to determine the location of a person, without the express or implied consent of that person; or

(b)

in the case of a device to determine the location of an object, without the express or implied consent of a person in lawful possession or having lawful control of that object.

In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both;

In the case of a body corporate, 1200 penalty units.

Note to s. 8(1) inserted by No. 13/2013 s. 42(1).

Note

Section 32A applies to an offence against this subsection.

(2)

Subsection (1) does not apply to—

S. 8(2)(a) amended by No. 26/2004 s. 7(b).

(a)

the installation, use or maintenance of a tracking device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or

S. 8(2)(aa) inserted by No. 91/2009 s. 219(Sch. 3 item 4), substituted by No. 27/2018 s. 366.

(aa)

the installation, use or maintenance of a tracking device in accordance with an order made under the Serious Offenders Act 2018; or

S. 8(2)(ab) inserted by No. 15/2013 s. 8.

(ab)

the installation, use or maintenance of a tracking device in accordance with a parole order under the Corrections Act 1986; or

S. 8(2)(ac) inserted by No. 32/2013 s. 65.

(ac)

the installation, use or maintenance of an electronic monitoring device in accordance with a community correction order under the Sentencing Act 1991; or

S. 8(2)(ad) inserted by No. 41/2015 s. 10.

(ad)

the installation, use or maintenance of a tracking device in accordance with an order of the Governor of a prison under section 30 of the Corrections Act 1986; or

S. 8(2)(ae) inserted by No. 32/2024 s. 907.

(ae)

the installation, use or maintenance of an electronic monitoring device for the purposes of electronic monitoring conditions imposed under Part 2A of the Bail Act 1977; or

(b)

the installation, use or maintenance of a tracking device in accordance with a law of the Commonwealth.

9Regulation of installation, use and maintenance of data surveillance devices by law enforcement officers

(1)

Subject to subsection (2), a law enforcement officer must not knowingly install, use or maintain a data surveillance device to record or monitor the input of information into, or the output of information from, a computer without the express or implied consent of the person on whose behalf that information is being input or output.

Level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum) or both.

(2)

Subsection (1) does not apply to—

S. 9(2)(a) amended by No. 26/2004 s. 7(b).

(a)

the installation, use or maintenance of a data surveillance device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or

(b)

the installation, use or maintenance of a data surveillance device in accordance with a law of the Commonwealth.

S. 10 repealed by No. 26/2004 s. 7(e).

* * * * *

Pt 2A (Heading and ss 9A–9D) inserted by No. 70/2006 s. 3.

9ADefinitions

In this Part—

employer means a person, unincorporated body or firm that—

(a)

employs a person under a contract of service or apprenticeship; or

(b)

employs a person under the Public Administration Act 2004 or any other Act; or

(c)

engages a person under a contract for services; or

(d)

engages a person to perform any work the remuneration for which is based wholly or partly on commission; or

(e)

engages a person to perform work on an unpaid or voluntary basis;

firm has the same meaning as in the Partnership Act 1958 but does not include an incorporated limited partnership within the meaning of Part 5 of that Act;

washroom includes a room fitted with bathing or showering facilities;

worker means a person employed or engaged by an employer, in a manner set out in the definition of employer, but does not include a person who is employed or engaged by another person to perform services in connection with that person's family or domestic affairs;

workplace means any place where workers perform work.

S. 9B inserted by No. 70/2006 s. 3.

9BProhibition on certain uses of optical surveillance devices or listening devices

(1)

Subject to subsection (2), an employer must not knowingly install, use or maintain an optical surveillance device or a listening device to observe, listen to, record or monitor the activities or conversations of a worker in a toilet, washroom, change room or lactation room in the workplace.

In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both;

In any other case, 1200 penalty units.

Note to s. 9B(1) inserted by No. 13/2013 s. 42(1).

Note

Section 32A applies to an offence against this subsection.

(2)

Subsection (1) does not apply to the installation, use or maintenance of an optical surveillance device or a listening device—

(a)

in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or

(b)

in accordance with a law of the Commonwealth; or

(c)

if required by a condition on a licence granted under the Liquor Control Reform Act 1998.

S. 9C inserted by No. 70/2006 s. 3.

Surveillance Devices Act 1999

About this Act

Bill & explanatory material

This Act’s bill