The 18 March
Parkes Champion Post reports - under the title 'Man, 20, charged over Facebook posting' - that
A 20 year old Parkes man has been charged with breaching the Surveillance Devices Act after allegedly illegally recording a conversation in a local fast food outlet and posting the video on Facebook.
The man allegedly entered the outlet after 2pm last Friday and recorded a conversation he had with a staff member before posting it on the social media site.
The staff member was unaware they were being recorded and as such did not give their permission.
The man has been issued with a Court Attendance Notice to appear in Parkes Local Court on May 5.
A police spokesperson said the charge can carry a maximum five year gaol sentence or a $5,500 fine.
The relevant provision appears to be section 8 of the
Surveillance Devices Act 2007 (NSW) -
Installation, use and maintenance of optical surveillance devices without consent
(1) A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves:
(a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or
(b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.
Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:
(a) the installation, use or maintenance of an optical surveillance device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,
(b) the installation, use or maintenance of an optical surveillance device in accordance with a law of the Commonwealth,
(c) the use of an optical surveillance device and any enhancement equipment in relation to the device solely for the purpose of the location and retrieval of the device or equipment,
(d) the installation, use or maintenance of an optical surveillance device by a law enforcement officer in the execution of a search warrant or crime scene warrant (including the use of an optical surveillance device to record any activity in connection with the execution of the warrant),
(e) the use of an optical surveillance device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation.
Section 7 of the Act reads -
Prohibition on installation, use and maintenance of listening devices
(1) A person must not knowingly install, use or cause to be used or maintain a listening device:
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:
(a) the installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,
(b) the installation, use or maintenance of a listening device in accordance with the Telecommunications (Interception and Access) Act 1979, or any other law, of the Commonwealth,
(c) the unintentional hearing of a private conversation by means of a listening device,
(d) the use of a listening device to record a refusal to consent to the recording of an interview by a member of the NSW Police Force in connection with the commission of an offence by a person suspected of having committed the offence,
(e) the use of a listening device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment,
(f) the use of a listening device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation.
(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:
(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:
(i) is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii) 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.
(4) Subsection (1) does not apply to the use of a listening device to record, monitor or listen to a private conversation if:
(a) a party to the private conversation is a participant in an authorised operation and, in the case of a participant who is a law enforcement officer, is using an assumed name or assumed identity, and
(b) the person using the listening device is that participant or another participant in that authorised operation.
Section 11 deals with dissemination of recordings, reading -
Prohibition on communication or publication of private conversations or recordings of activities
(1) A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person's knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.
Maximum penalty: 500 penalty units (in the case of a corporation) or
100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:
(a) if the communication or publication is made:
(i) to a party to the private conversation or activity, or
(ii) with the consent, express or implied, of all the principal parties to the private conversation or activity, or
(iii) for the purpose of investigating or prosecuting an offence against this section, or
(iv) in the course of proceedings for an offence against this Act or the regulations,
(b) if the communication or publication is no more than is reasonably necessary in connection with an imminent threat of:
(i) serious violence to persons or of substantial damage to property, or
(ii) commission of a serious narcotics offence.
(3) A person who obtains knowledge of a private conversation or activity in a manner that does not involve a contravention of a provision of this Part is not prevented from communicating or publishing the knowledge so obtained even if the same knowledge was also obtained in a manner that contravened this Part.
