I was recently pulled over by the police. When they went to question me, they noticed my dash cam and told me to turn it off. When I asked them on what basis they could require me to do so, they would not answer. In the end, I thought I had better not rock the boat and turned it off. My question is whether or not the police have the power to force me to turn it off? Dale Griffith, Victoria.
As you would be aware, a dash cam is a recording device that records both sound and images and is usually placed on the dashboard of a car. Its main use seems to be to provide evidence of the circumstances of collisions and what has come to be known as road rage incidents.
Before answering the question about the power of the police and their right to demand a dash cam be switched off, the first question that needs to be addressed is whether or not a person can legally record events such as interactions between occupants of the car and a police officer. Hence, the even broader question would be whether a person can record events occurring on the road, regardless of whether they involve police officers or not.
Public Versus Private
There is a clear distinction drawn in legislation (Parliament made law) between what can be recorded, depending upon whether those events occur within the public realm or the private realm. That is, private activities versus public activities. The legislation in each state and territory of Australia provides some guidance as to what amounts to a private activity as opposed to a public one. Some readers will be surprised by some of the differences between those laws. However, for the purpose of this article, I will focus on Victoria.
In Victoria, section 3 of the Surveillance Devices Act 1999 (the Act) states that private activity means an activity carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be observed only by themselves, but does not include:
- An activity carried on outside a building; or
- An activity carried on in any circumstances in which the parties to it ought reasonably to expect that it may be observed by someone else.
Therefore, surprisingly, if what would otherwise seem to be a private activity is carried on outside of a building, then it would appear that, in Victoria at least, it would not be a private activity.
Further, section 3 of the Act describes a private conversation as one carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else.
So, for example, if people are conducting what appears to be a private conversation on a train, where they ought to expect that their conversation may be overheard, then their engagement in that conversation would not been treated as a private activity.
Restrictions On Recording Private Activities
What are the restrictions imposed by the law on the recording of private activities? Once again, readers may be somewhat surprised by some of the differences between the laws in the different states and territories in Australia. In general:
- If a person is not a party to a private activity, that person is prohibited from secretly recording it; however,
- If a person is a party to a private activity, then:
- In Victoria, Queensland and the Northern Territory, that person can secretly record it;
- In Western Australia, South Australia, Australian Capital Territory, New South Wales and Tasmania, that person is prohibited from recording the activity.
The following table sets out, in summary form, the position in each state and territory, on whether it is lawful to secretly record a private conversation to which the person conducting the recording is a party:
State/Territory Act Yes/No
VIC Surveillance Devices Act 1999 (Vic) Yes
QLD Invasion of Privacy Act 1971 (QLD) Yes
NT Surveillance Devices Act 2007 (NT) Yes
WA Surveillance Devices Act (1998) (WA) No
SA Listening & Surveillance Devices Act 1972 (SA) No
ACT Listening Devices Act 2007 (NSW) No
NSW Surveillance Devices Act 2007 (NSW) No
TAS Listening Devices Act 1991 (TAS) No
The following is a more detailed examination of the law in Victoria.
Section 6(1) of the Surveillance Devices Act 1999 (Victoria) (the Act) states:
“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.”
The penalty for breaching this section of the Act is:
- In the case of a person – a maximum of 2 years’ imprisonment or a fine of 240 penalty units (which currently equates to up to $37,310.40), or both.
- In the case of a body corporate – 1200 penalty units (which currently equates to $186,552).
So, it is clear there are very severe penalties for breaching this legislation.
Section 7(1) of the Act provides that:
“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.”
Therefore, the position in Victoria is that a person who is a party to a private activity with another party or parties is permitted to audio and video record it, even without the permission of the other parties to the activity. This is because of the person conducting the recording being a party to the activity.
However, if the activity was a private one and the person carrying out the recording was not a party to that interaction, then he or she would not be permitted to record it and would be liable for severe penalties if found to have been doing so.
Recording Public Activities
So, what is the upshot of recording public activities? Generally speaking, it can be assumed that most footage recorded by a dash cam is likely to be of events taking place in the public realm. That is because virtually all roadways (aside from private driveways on private property) are regarded as being within the public realm.
Accordingly, providing there is no issue as to the nature of the activity – that is, that it is clearly a public activity, then the activity could be legally recorded, without needing to obtain the consent of any persons in the footage. For that reason, it is legal to record the interactions of a police officer with you when intercepted, even if it is without his or her consent. Further, the police officer does not have lawful authority to require that you turn off the camera.
What About Publishing Footage?
A very important and very different question which also arises from the original question posed is – what about publishing? One might think, “Given that I am legally entitled to record a private activity of which I was a part, surely I am then permitted to publish that footage?”
Publication or communication of any recording of a private conversation is prohibited in all states and territories, except in NSW where there is an exception for publication or communication made in the course of legal proceedings.
Let me pose an example to provide a clearer understanding of the legal distinction between these scenarios of recording and publishing an activity and why that distinction exists.
Consider an employee in a large organisation based in Victoria, Australia, who has been called in for a meeting regarding his performance. Assume that the meeting is attended by the employee, the manager above the employee and a human resources manager. Clearly, the meeting is private in nature. Hence, in Victoria, the employee is entitled to record the meeting, even without informing the others present in it. Similarly, a representative of the employer is entitled to record it.
However, imagine the repercussions of that information (the conduct in the meeting) being made public. The meeting may have involved a discussion of confidential information (such as client lists and details) about the employer’s business and potentially even trade secrets. Further, it may have contained discussions about private issues being faced by the employee. Obviously, if the footage was to be published, then there could be enormous damage done to the employer, including in the form of:
- potential loss of contracts (for instance, from clients of the employer objecting to their confidential information being publicly released)
- potential law suits from clients of the employer for damage to their businesses
- potential loss of income resulting from competing companies becoming aware of the trade secrets and confidential information
Similarly, if the employer was to publish the footage from the meeting, there could be many deleterious consequences for the employee, such as:
- other employees becoming aware of the employee having laid some blame on them
- potential bullying from other employees following the above
- the employee being embarrassed about the public awareness of his personal issues and alleged conduct (giving rise to the meeting) discussed in the meeting
- potential changes in the employee’s attitude to defending himself against the allegations about his performance arising from the embarrassment and anxiety arising from the disclosure and him potentially resigning from his position of employment
In some strictly controlled circumstances, the recordings have been assessed by third parties (meaning parties who were not parties to the private activity); for instance, in court cases where the court made an order that the footage could be presented as evidence. This is becoming more common in, for instance, the Fair Work Commission (which deals with employment disputes), claims for property damage arising from car accidents and criminal matters such as assaults.
So, in summary, the law (legislation) in the different states and territories is divergent. Further, the penalties for breaching the legislation appear to be quite severe. So, be sure to carefully assess the position before you proceed to record an activity and, particularly, before deciding to publish any footage arising from such a recording.
Anna Richards is the legal director and a lawyer from Victorian Legal Solutions Pty Ltd. She practices in commercial law, including commercial litigation, and other areas. Anna and Victorian Legal Solutions can be contacted by telephone on (03) 9872 4381 or 0419 229 142 or by email at firstname.lastname@example.org
Whilst every effort has been taken to ensure its accuracy, the information contained in this article is intended to be used as a general guide only and should not be interpreted as being specific advice, legal or otherwise. The reader should seek professional advice from a suitably qualified practitioner before relying upon any of the information contained herein. This article and the opinions contained in it represent the opinions of the author and do not necessarily represent the views or opinions of Interactive Media Solutions Pty Ltd or any advertiser or other contributor to Security Solutions Magazine.