Optical Surveillance Laws in Australia

The use of optical surveillance devices is regulated in most states of Australia, but very differently in some as compared to others.

Optical surveillance devices are generally defined as things which allow you to observe or record an activity. You should note that the “observe” part of that definition is common, and means that binoculars, telescopes, rifle scopes and night vision devices are all optical surveillance devices, even if they cannot record what they see. 

I’ll examine each state in turn, and the differences should become apparent. 

Victoria

You can’t use an optical surveillance device to view or record a Private Activity. Whether the place is a ‘public place’ or a ‘private place’, or whether public or private property, is not relevant in Victoria.

A Private Activity is any activity which is carried on inside a building in circumstances where you may reasonably assume the parties to it don’t want to be seen by others, unless the parties should reasonably expect that they may be seen.

  • If you are a party to the activity, surveillance by you is not restricted. No consent by the other parties is required.
  • If the activity is happening outside, surveillance is not restricted.
  • If the parties should reasonably expect they may be seen by people other than themselves, surveillance is not restricted.
  • If the circumstances indicate the parties don’t care if they are seen, surveillance is not restricted. 

Workplaces

Surveillance is not permitted in a toilet, wash room, change room, lactation room.

Surveillance Devices Act 1999 (Vic)

Nudity

You cannot, without consent, intentionally use a device (which is essentially anything other than your eyes) to observe another person's genital or anal region unless it is reasonable for that person to expect that his or her genital or anal region could be observed. The public place / private place distinction does not apply to genital regions. You also cannot intentionally film or photograph another person's genital or anal region in those circumstances either.

When it is, or is not reasonable to assume you might be observed depends on the circumstances. For example, a on a nude beach, you should assume you may be observed, making pictures lawful. Walking down the street - photographs would be lawful. If someone is naked in their own back yard, remember this is an objective test, asking whether a reasonable would expect that they "could not be observed" - not that they "would not be observed". If a reasonable person would thing they might be observed, even if it's just a possibility... then the activity is not protected and surveillance including photographs are lawful. To reasonably expect that you could not be observed, with radio controlled 'drones' costing $100, aircraft above them, and Google Earth satellites above them, is a circumstance which is now so limited in the modern world that I cannot immediately think of an example where it might reasonably apply.

If you accidentally capture images or video of another person's genital or anal region when they should reasonably have expected that this could not be done, you cannot distribute them.

You cannot, without consent, distribute images or video of people involved in sexual acts where it is "contrary to community standards of acceptable conduct". See S.40 of the Act for more information on this

Summary Offences Act 1966 (Vic)

New South Wales

You can only install an optical surveillance device within a premises with the express or implied consent of the owner or occupier of the premises.

You can only install optical surveillance in or on a vehicle or other object with the express or implied consent of the owner or occupier of the vehicle or other object.

  • An optical surveillance device in your possession, on your premises, in your vehicle, or on your object is not restricted.
  • Where the occupier of the premises or car changes after the device is installed, the device may no longer be used or maintained unless you have the consent of the new occupier.

Workplaces 

Surveillance by an employer while the employee is at work (including by the employer hiring an investigator) is first classified as either overt or covert. 

  • Overt surveillance requires 14 days notice in writing by the employer to the employee, unless it’s not at the usual place of employment. Cameras must be visible and signs must notify people that they may be under surveillance. 
  • Covert surveillance while at work requires the approval of a Magistrate. 

Devices used for surveillance at the workplace cannot be also used for surveillance outside the workplace (you will need separate cameras).

 

Surveillance Devices Act 2005 (NSW)

Workplace Surveillance Act 2005

Queensland

You cannot use an optical surveillance device to view or record a person, without their consent, who would reasonably expect their actions to be private, if they are in a private place OR if they are engaging in a private act.

Private Act is showering, bathing, using a toilet, being undressed, or sexual activity not usually done in public. (No other act is considered a private act.)

A Private Place is somewhere you’d expect someone to engage in private acts. (Eg. A bedroom, bathroom, toilet, change room. Not a car, park, lounge room, kitchen, office, meeting room.)

  • If a person is in a private place (eg. a bathroom), surveillance is restricted.
  • If a person is engaged in in a private act (eg. undressing), even if they’re not in a private place, surveillance is restricted.
  • If a reasonable person wouldn’t expect their actions to be private (eg. they’re in a public park), surveillance is not restricted. 

Criminal Code Act 1899 (Qld)

 

Western Australia

You can’t use an optical surveillance device to view or record a Private Activity. Whether the place is a ‘public place’ or a ‘private place’, or whether public or private property, is not relevant in WA.

Private Activity is any activity which is carried on in circumstances where you may reasonably assume the parties to it don’t want to be seen by others, unless the parties should reasonably expect that they may be seen.

  • If you are a party to the activity, express or implied consent of all the other principle parties is required.
  • If the parties should reasonably expect they may be seen by people other than themselves, surveillance is not restricted.
  • If the circumstances indicate the parties don’t care if they are seen, surveillance is not restricted. 

Surveillance Devices Act 1998 (WA)

South Australia

 

Optical surveillance is not regulated in South Australia. Beware that if it transmits or records sound in addition to video, your device may be considered a listening device under the relevant legislation. 

Listening and Surveillance Devices Act 1972 (SA)

Tasmania

Optical surveillance is not regulated in Tasmania. Beware that if it transmits or records sound in addition to video, your device may be considered a listening device under the relevant legislation. 

 

Listening Devices Act 1991 (Tas)

Northern Territory

You can’t use an optical surveillance device to view or record a Private Activity. Whether the place is a ‘public place’ or a ‘private place’, or whether public or private property, is not relevant in NT.

Private Activity is any activity which is carried on in circumstances where you may reasonably assume the parties to it don’t want to be seen by others, unless the parties should reasonably expect that they may be seen.

  • If you are a party to the activity, surveillance is not restricted.
  • If the parties should reasonably expect they may be seen by people other than themselves, surveillance is not restricted.
  • If the circumstances indicate the parties don’t care if they are seen, surveillance is not restricted

Surveillance Devices Act 2007 (NT)

 

ACT

Optical surveillance (other than for law enforcement) is not regulated in the ACT. Beware that if it transmits or records sound in addition to video, your device may be considered a listening device under the relevant legislation. 

Listening Devices Act 1992 (ACT)

 

If you believe I’ve made an error in the above, or it’s since become out of date, please let me know.  =)

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