Written by  Joseph Burke 2014-07-31

Some Tricky Aspects of the Surveillance Devices Act 1999

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Stories regarding the leaking of conversations with politicians that were apparently covertly recorded by a journalist for a prominent Melbourne newspaper have been doing the rounds. It's alleged that a recording device belong to this journalist was stolen from a lost property box, and that conversations this journalist had with certain polticians were then leaked to the media.

There are two major questions here. Is the journalist exposed to criminal liability as a result of making unauthorised recordings of conversations with politicians? Is the person who published the private conversations in any trouble?

The nature of the recordings as reported so far appear to involve private conversations the journalist had with the politicians. However, it may also be the case that conversations between politicians in which the journalist is not a party were also recorded.

Section 6(1) of the Survilleance Devices Act 1999  makes it an offence attracting a maximum of 2 years imprisonment to use a listening device to record a private conversation to which the person is not a party, unless there is express or implied consent for each party to the conversation.

So, if the journalist was speaking to the politicians that were recorded, there is no criminal liability. However, if a conversation was recorded that the journalist was not a party to, then this would be a completely different story.

As to the publisher of this information. S 11(1) of the Act makes it an offence punishable by 2 years jail to publish a record of a private conversation that has been made as a direct or indirect result of the use of a listening device.

However, s11(2)(b)(i) of the Act works to enssure s11(1) doesn't apply to communication or publication that is in the public interest.

And there is nothing more in the public interest then publishing politicians private conversations with journalists.

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