People are extensively using the technology including but not limited to data surveillance, a listening device, optical surveillance device or a tracking device. Such technologies provide their users an ability to gather information which may otherwise be not possible to obtain. The surveillance has the potential to impinge upon the individual’s privacy and the risks include lack of transparency, function creep, intrusiveness and over collection. It can also threaten the locational and territorial privacy.

The law relating to use of such devices in Victoria is regulated by the Surveillance Devices Act 1999(Vic) and the regulations of 2016. Surveillance is a ‘deliberate or purposive observation, recording or monitoring of a person, object or place. Such activities can be conducted could be on an ongoing basis or a temporary feature in response to an identified need.

The law defines the listening device means any device which is capable of being used to overhear, record, monitor or listen to a conversation or the words spoken to or by any person in conversation. However, this does not include the hearing aid or similar device used by a person with impaired hearing to overcome the impairment and allow that person to hear only the sounds ordinarily audible to the human ear. The private conversation is defined to be a conversation carried on its circumstances where the parties to the conversation ought to reasonably expect to be confidential and private to the exclusion of other parties (third parties ).

A person who knowingly install, use or maintain a listening device to overhear, record monitor or listen to a private conversation to which a person is not a party without the permission of each party to the conversation is committing an offence under the act and such an offence is punishable with imprisonment of two years. The statute is designed to protect the private conversations and the related private activities. A private conversation as defined under the act is any conversation that is carried out in circumstances where it is reasonable to assume that the parties to the conversation only want the words heard by the other present in the conversation. This does not include the conversation which potentially may be overheard by someone else. At the same time conversations taking place in the public places and overheard are not private in nature.

The question now arises to the recording of a conversation without consent by a person who is a party to the conversation. A person is not committing an offence if the said person is a party to the conversation so recorded; have the permission of the other person or there was an authority of a warrant or by an order of the competent authority/court. Although the recording is permitted within the limited scope, the communication and publication of such a conversation in private domain when such an information was gained as a result of surveillance device attracts the criminal jurisprudence and is punishable. Such person however, is allowed to take the defence that the such a communicated or published material was reasonably necessary to protect the lawful interests of the person publishing or communicating the information.

As often seen in the family law proceedings, the admissibility of such an information would depend on the discretion of the court if the desirability of admitting such evidence will outweigh the undesirability of admitting the evidence known to have obtained in an illegal manner. The courts have from case to case determined the issue of admissibility of illegally recorded information if such a recording was reasonably necessary. However there had been instances where the court found that the recording of the discussion was intended to be used for a ‘set up’ rather than a reasonable cause. Such a theoretical and manipulative behaviour intended to push the buttons to upset or aggravate the other party. Curiously, such a recording may have criminal implications. In another South Australian decision, the court ruled that the family law matters are not the one which fall within the scope of proper purpose for a recording. Certainly, one need to trade with caution while handling such a situation.