MATTER : An application for publication pursuant to s 31 of the Surveillance Devices Act 1998

Procedure - Supreme Court procedure - Publication of information obtained by use of surveillance device

Interpretation - Whether use of surveillance device in public interest - Whether "private activity" or "private conversation"

Surveillance Devices Act 1998 s 3, s 25, s 26, s 27, s 31, s 32, s 33

1 OWEN J: On 26 November 1999 I heard an urgent application for an order under s 31 of the Surveillance Devices Act 1998 ("the Act") that the applicant be at liberty to publish information obtained by use of a surveillance device. I made the order. Because it was the first such application under the Act and because it involved the construction of sections in the Act I said I would publish short written reasons. These are those reasons.

2 To the extent that it is necessary and to the extent that these reasons contain any material mentioned in s 33(2) I have made an order the effect of which will be a direction given in accordance with that section authorising a person reading these reasons to have access to the materials. To limit intrusions into the confidentiality the Act seeks to maintain I have, so far as is possible, made as few references to the facts as are necessary to understand the issues of construction.

3 The applicant operates a commercial television station. A journalist employed by the applicant was preparing a story for presentation on a current affairs programme regularly broadcast by the station. The journalist engaged a person ("the operative") to go to a private residence of a person the subject of the story ("the target") and engage in a transaction. The arrangement reached between the journalist and the operative was that the latter would be equipped with a concealed device that would make both an audio and visual recording of the transaction.

4 The operative went to the target's premises and had contact with the target. The contact between them was recorded by the surveillance device.

5 The police were informed of the journalist's proposed activity before the visit to the residence and were apprised of the results immediately on completion of the assignment.

The Structure of the Act

6 Part 4 of the Act deals with applications by law enforcement agencies for warrants for the use, maintenance and retrieval of surveillance devices. Part 5 deals with the use of surveillance devices in the public interest. While Pt 5 can apply to law enforcement agencies it is more relevant to the activities of members of the public, including commercial operations such as media outlets and private investigators. In this application I am concerned only with Pt 5.

7 There are four relevant definitions that appear in s 3(1) of the Act:

(i) a person by or to whom words are spoken in the course of the conversation; or

(ii) a person who, with the express or implied consent of any of the persons by or to whom the words are spoken in the course of the conversation, records, monitors or listens to those words;

(ii) a person who, with the express or implied consent of any of the persons taking part in the activity, observes or records the activity;

(a) in relation to a private conversation, a person by or to whom words are spoken in the course of the conversation; and

(b) in relation to a private activity, a person who takes part in the activity;

'private activity' means any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed;

'private conversation' means any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation wishes it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard ... "

8 Division 2 of Pt 5 applies where there is a use of a surveillance device in the public interest and where a party to the recording has consented. Section 26 and s 27 are in these terms:

"26. (1) A person who is a party to a private conversation may use a listening device to record or monitor the private conversation if a principal party to the private conversation consents expressly or impliedly to that use and that there are reasonable grounds for believing that the use of the listening device is in the public interest.

(2) A person who is acting on behalf of a party to a private conversation may use a listening device to record, monitor or listen to the private conversation if a principal party to the private conversation consents expressly or impliedly to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest ... "

27. (1) A person who is a party to a private activity may use an optical surveillance device to record visually the private activity if a principal party to the private activity consents expressly or impliedly to that use and there are reasonable grounds for believing that the use of the optical surveillance device is in the public interest.

(2) A person who is acting on behalf of a party to a private activity may use an optical surveillance device to record visually or observe the private activity if a principal party to the private activity consents expressly or impliedly to that use and there are reasonable grounds for believing that the use of the optical surveillance device is in the public interest ... "

9 Material obtained as a result of the use of a surveillance device in the circumstances contemplated in s 26 or 27 can be published or communicated only if an order of the court is first obtained. Section 31 provides:

"31 (1) A Judge may make an order that a person may publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device under Division 2 or 3, if the Judge is satisfied, upon application being made in accordance with section 32, that the publication or communication should be made to protect or further the public interest ... "

10 It can be seen that there are two critical aspects of a procedure under Div 2. First, that a principal party has consented to the use of the device. Secondly, there are reasonable grounds for believing that the use of the device is in the public interest. A distinct set of circumstances is dealt with in Div 3 of Pt 5. This applies where "there are reasonable grounds for believing that the circumstances are so serious and the matter is of such urgency that the use of the ...device is in the public interest": s 28 and s 29. While it is not entirely clear, I take this to be intended to cover a situation which is both and where for reasons of urgency, it is not possible to obtain the consent of a principal party. There is no requirement of "seriousness" in s 26 and s 27, although it is not difficult to see that the relative gravity of the matter might influence the decision whether it is in the public interest. Another difference between Div 2 and Div 3 is that if a device is used in the the circumstances envisaged by Div 3 the fact of its use and certain other information must be made the subject of a report to a Judge "without delay": s 30. However, it is clear from the wording of s 30 that the report is required only in the case of use under Div 3. Accordingly, if the device is used with the consent of a principal party, no report is required under s 30. Whether the device has been used under Div 2 or Div 3, there can be no communication or publication of the material without the sanction of the Court.

11 In this case, the applicant had obtained the consent of a principal party. Accordingly, I am concerned with Div 2, not Div 3.

12 In my view Div 2 of Pt 5 of the Act applies where one or more (but not necessarily all) of the parties to a private conversation or private activity have expressly or impliedly consented to the use of the device. The term "party", as defined in s 3(1) includes a person who actually participates in the conversation or activity [(a)(i) and (b)(i) of the definition] and a person who, with the consent of a person who actually participates in the conversation or activity, records it [(a)(ii) or (b)(ii)]. The term "principal party", as defined in s 3(1) seems to me to be the person contemplated by (a)(i) or (b)(i) of the definition of "party". In this case the operative was the "party" referred to in the first line of s 26(1) and the "principal party" referred to in the third line of that subsection.

13 The definitions of "private activity" and "private conversation" are extremely broad. There were two points raised in argument on this application which necessitate special consideration. First, whether the fact that this incident did not take place in a building meant that it was not a private conversation or private activity to which the protection of the Act extended. Secondly, the extent of the exclusion in the last three lines of the definitions of "private activity" and "private conversation" respectively.

14 I think the definitions of "private activity" and "private conversation" in s 3(1) are a little loose. The terms "parties" (when first used) and "themselves", if they are taken to refer to the word "parties" as defined in s 3(1), could include someone who came within (a)(ii) or (b)(ii). Obviously, it is unlikely that such a person could be said to intend that the activity or conversation be observed or heard only by the parties. I do not think this can be what Parliament intended. I think the terms "parties" and "themselves" refers essentially to the "principal part[ies]", as defined, or one or more of them.

15 This incident did not occur within the four walls of a building. It took place in the yard of the target's residence but in a position where the target and the operative were shielded from sight and out of earshot of other people in the vicinity.

16 Looking at the factual situation as a whole I think the circumstances "may reasonably be taken to indicate that [the target, being one of the parties] to the activity [or conversation] desire[d] it be observed [or listened to] only by [the target and the operative]".

17 Counsel for the applicant referred me to the second reading speech of the Minister on introduction of the Bill. The Minister said:

"The Bill makes it clear that activities and conversations carried on in circumstances in which the parties should reasonably expect that they may be observed or overheard are not considered private. It is envisaged, generally, that activities carried on outside a building would not be considered private. For this reason, journalists and private investigators will be able to continue to undertake their lawful duties without fear of breaching the Act."

18 It is the reference to activities or conversations conducted "outside a building" that was raised during the hearing. I think the use of the word "generally" in the statement is important. I think the Minister must have been referring to a building simply as an example, albeit an important one. Otherwise, and with respect, I do not see how that construction could arise from the words that Parliament has used. In all cases it will be necessary to look at the circumstances as a whole. Obviously, the location and physical environment in which the incident takes place will be of great significance in deciding what the parties expected and, with the degree of objectivity that the word "reasonably" imports, should have expected. In my view, persons contemplating the use of a surveillance device in these circumstances should exercise caution before concluding that because the incident takes place outside a "building" (assuming that word is meant in the colloquial sense of four walls and a roof) it is not covered by the Act.

19 The second of the issues of construction relates to the extent of the exclusion in the last three lines of the definitions of "private activity" and "private conversation" respectively. Something is not a private conversation or private activity if the parties to it ought reasonably to expect that the conversation or activity may be overheard or observed. It is to be noted that the test here is largely objective. The problem arises because of the word "parties" (plural) in the exclusionary provision. The first part of the definition refers to "any of the parties". The test under the first part is primarily subjective, that is, the person must actually hold that desire, although the circumstances must also be such as to make the indication of desire "reasonable". Thus, if the circumstances reasonably indicate that any one or more, but not necessarily all, of the parties desired that the incident be observed or heard only by the principal parties, that is enough to satisfy the first part of the definition. But I do not think that the use of the word "parties" (plural) in the exclusionary provision means the definition cannot be satisfied unless all of the parties ought reasonably to have intended the incident to be restricted to themselves. It may well be the case that one of the parties (being the one who is wearing the device) knows full well that the incident is being observed or listened to by third parties. I think the term "parties" in the exclusionary provision refers primarily to the person who comes within the phrase "any party" in the earlier part of the definition but may extend to other parties as well. The words of the exclusionary provision reinforce the need for objective, as well as subjective, considerations in drawing the appropriate inferences.

20 This is an important consideration. If the circumstances are such that the exclusionary provision applies the incident would not be covered by Pt 5. Accordingly, but subject to all of the other provisions of the Act and the law generally, the material could be recorded and published without the need for an order of the Court. However, once again I think the exclusionary provision is of somewhat limited operation and careful consideration needs to be given to it.

21 In my view, and for much the same reasons as caused me to come to the view that the first part of the definition of private activity and private conversation was satisfied, the exclusionary provision does not apply in this case.

22 Counsel for the applicant also submitted that this incident (assuming for the purposes of argument that the transaction that was recorded was an unlawful one) would not come within the confines of a "private activity" or a "private conversation" because, as a matter of public policy, an unlawful activity should not be regarded as private. Counsel referred again to the second reading speech in which the Minister said the Act was not intended to prevent law enforcement officers from, for example, using binoculars to detect marron poachers on Wellington Dam. This was because even though poachers would attempt to conceal their activities they "should reasonably suspect that their activities may be observed". I make no ruling on the matter. It is something that must be left for another day.

23 It is not necessary for me to expand on the other issues that arose during the hearing on 26 November 1999 and on the basis of which I granted the order. They turn on the facts of the case and do not raise issues of principle or of statutory construction. There are, however, two other matters that I need to mention.

The Degree of Publicity Given to s 31 Orders

24 There is another troubling aspect of applications under s 31 of the Act. It seems clear to me that an order under s 31 is directed to the applicant. The authority to publish is given to the applicant. The order of the Court is not given in general terms and thus would not protect anyone other than the applicant who published the material.

25 This has a peculiar result. Once the applicant has published the material in accordance with the authority given to it by the Court, the information is in the public domain. Yet, I doubt very much whether, for example, another media organisation could publish the material under the protection of the order. And, given the spirit, if not the letter) of the confidentiality provisions in s 33 of the Act the scope of the protection given to a bona fide report of proceedings in a court is extremely limited.

26 Generally speaking, if there is to be any mention made of the proceedings it should be limited to the fact that an application was made and an order obtained. In keeping with the spirit of the confidentiality provisions in s 33 there should be no mention of what occurred during the hearing under s 31 or of the material placed before the Court. This may need to be considered on a case-by-case basis.

Section 25 of the Act

27 Section 25 of the Act is in these terms:

"[Part 5] does not apply if in the course of ... using a ... surveillance device an act is done that is unlawful under any law or any Act other than this Act."

28 This application was made on an urgent basis. Counsel did not bring s 25 to my attention and no argument was addressed to it during the hearing. I understand that on the evening of 29 November 1999 the applicant published the material in accordance with the order. However, in the course of preparing reasons for decision (which occurred after publication of the material) I came to consider the import of the section.

29 Assuming that the incident which was recorded involved an illegal act it seems to me there is a respectable argument that "in the course of ... using [the] ... surveillance device an act [was] done that [was] unlawful under [another] law". If that is so, Pt 5 does not apply and the Court has no jurisdiction to make an order under s 31. I would call this the broader interpretation. On the other hand, there is an argument for a narrower construction. On one view of it the words "in the course of" connote that the unlawful use must be attached to and directly involve the use of the surveillance device. For example, if the surveillance device was used to photograph restricted material contrary to a law it would be an unlawful act directly involving the use of the device. Similarly, if the operator had broken into premises to install or use the device.

30 If the broader interpretation is adopted it could have some peculiar consequences. For example, suppose that a device was being used in a motor vehicle which exceeded the speed limit (an unlawful act) to keep within range of the target. Would that mean the matter was not covered by Pt 5?

31 This raises some difficult issues of construction of the Act and of public policy. A contravention of the law done in the process of recording material would, of course, be relevant to the question whether the publication would "protect or further the public interest" within the meaning of s 31. But does it go further than that and, of itself, render Pt 5 inapplicable?

32 I should add that when I made the order on 26 November 1999 I directed that the applicant give notice of the fact to the police inviting them to move on 29 November 1999, if they so wished, to set aside the order. I simply note for the record that I am satisfied that the solicitors for the applicant complied with the direction and that no person gave notice of intention to move to set the order aside.

33 I do not think this is an appropriate vehicle to decide the question arising under s 25 because no argument was addressed to it at the hearing. I think it is best left to another day and, hopefully, one when a proper contradictor is before the Court.