Invasion of Privacy Act 1971

The Act binds the Crown except where otherwise provided (s 41) and applies territorially within Queensland. It directly regulates every natural person and corporation within the jurisdiction. The listening-device offences in ss 43–45 apply to any person who uses, communicates or publishes material obtained from a prohibited device. Because s 49A extends liability to executive officers of corporations where a "deemed executive liability provision" is breached, company directors and managers who authorise or are knowingly concerned in contraventions of ss 43(1), 43(5), 44(1), 45(1) or 46(4) are personally exposed.

Law-enforcement and public-safety personnel are both constrained and protected. Police officers using listening devices under other statutory authority fall within the s 43(2)(d) exception, but must still comply with the communication restrictions. Communications-centre operators and officers of the Queensland Ambulance Service, Police Service, Fire and Rescue, Rural Fire Service, Marine Rescue Queensland and State Emergency Service are given explicit safe-harbour when using government network radios in duress, assistance or lost-contact scenarios.

Occupiers and owners of dwelling houses are protected by Part 4A. Any person who enters without consent, or who is found inside without lawful excuse, commits an offence. Conversely, persons who enter for genuine protective purposes or under legal authority (for example, firefighters or ambulance officers) are shielded by the s 48A(2) defence.

The repealed licensing provisions once directly affected private inquiry agents and credit reporting businesses; their removal means the contemporary Act no longer regulates those occupations, but the inspector powers in ss 5–7 remain available to the chief executive for monitoring compliance with the surviving surveillance and trespass rules.

Courts and legal practitioners are affected through the evidentiary exclusion in s 46 and the publication-suppression power. Media organisations must navigate the communication prohibitions in ss 44 and 45 when reporting on matters that may have involved covert recording.

The Act creates negative duties rather than affirmative obligations. The central duty is abstention: do not use a listening device on a private conversation unless an exception applies (s 43(1)). A secondary duty falls on exempted non-party users not to communicate the content except in the course of duty (s 43(3)). Parties who have recorded their own conversations face a duty not to disseminate the recording or derived statements except within the s 45(2) exceptions.

Rights created are largely defensive. Participants in private conversations have a statutory right to expect that their words will not be covertly recorded by non-parties and will not be admissible if so recorded (s 46). Lawful occupiers and owners of dwelling houses have a right not to be entered without consent, backed by criminal sanctions and a citizen-arrest power.

Officials enjoy statutory immunity. Section 51A provides that the Minister, Commissioner of Police, chief executive, inspectors, police officers and persons acting under their direction do not incur civil liability for acts or omissions done honestly and without negligence. Any residual liability shifts to the State.

Corporate executives have a right to be proceeded against only where they authorised or were knowingly concerned in the corporate conduct (s 49A(1)), and the section expressly preserves both corporate liability and general Criminal Code Chapter 2 principles.

Inspectors appointed under s 5 possess statutory powers of examination, entry at registered addresses (though few licences now exist), interrogation and the ability to call for assistance (s 7), but cannot compel self-incriminating answers (s 7(2)). Their identity-card obligations (ss 6, 6A) are both a duty and a precondition to lawful exercise of power.

Penalties are expressed in penalty units, the value of which is set by the Penalties and Sentences Act 1992 (Qld). The most serious offences—contraventions of ss 43(1), 44(1) and 45(1)—are misdemeanours triable on indictment with maxima of 40 penalty units or two years' imprisonment. Aggravated dwelling-house entry under s 48A(1A) carries 30 penalty units or 18 months. Ordinary entry and being-found offences under s 48A(1) and (3) are 20 penalty units or one year. The advertising prohibition in s 48 is 20 penalty units or one year. Default offences under s 49 attract 10 penalty units where no specific penalty is stated. Failure to return an identity card (s 6(3)) or breach of a suppression order (s 46(4)) also attract 20 and 10 penalty units respectively.

Corporate executive liability under s 49A is strict in the sense that the officer is taken to have committed the same offence if the authorisation or knowing-concern mental element is proved; the corporation need not be convicted first.

Enforcement is primarily by police. Proceedings for summary offences must be brought within 12 months of the offence or six months after the complainant gains knowledge, whichever is later (s 50). Section 51 expressly states that a conviction does not affect civil rights or remedies, preserving actions in trespass, breach of confidence or misleading conduct.

Forfeiture of listening devices is available on conviction (s 43(4)–(6)). Inspectors may exercise the powers in s 7 to investigate compliance, although the practical utility of entry "at the registered address of any licensee" has diminished with the repeal of the licensing regime.

The Act is not a code. Section 48A(11) declares that its dwelling-house provisions are additional to, and do not derogate from, the Criminal Code (Qld) or any other Act. Thus, serious home invasions may still be charged as burglary or trespass under the Code.

Listening-device authorisations for law-enforcement officers are saved by reference to "a provision of an Act authorising the use of a listening device" (s 43(2)(d)). This picks up the Police Powers and Responsibilities Act 1997 (Qld) and the Crime and Corruption Act 2001 (Qld), which contain their own warrant regimes. The Act therefore operates as a residual prohibition outside those authorised schemes.

Commonwealth overlap is acknowledged in s 43(2)(c), which exempts Customs officers acting under warrant under the Customs Act 1901 (Cth) and security personnel under Commonwealth security legislation. The definition of "private conversation" and the evidentiary exclusion in s 46 interact with the common-law discretion to exclude improperly obtained evidence and with the uniform Evidence Act 1995 (Cth) where federal proceedings are involved, although the state Act supplies a statutory rule of inadmissibility.

The 2024 amendments expanding the public-safety-entity exception cross-reference the Ambulance Service Act 1991, Fire Services Act 1990, Marine Rescue Queensland Act 2024 and State Emergency Service Act 2024. This ensures the listening-device prohibition does not inadvertently criminalise routine emergency radio use.

Section 49A(3) expressly preserves Criminal Code Chapter 2 (parties to offences) and corporate liability, preventing any argument that the deemed-liability provision displaces general principles.

Finally, the protection-from-liability clause in s 51A operates in tandem with similar provisions in the Public Sector Act 2022 and the Police Service Administration Act 1990.

The most recent substantive amendments occurred in 2024 via the Marine Rescue Queensland Act 2024 and State Emergency Service Act 2024 (both sch 1), which expanded the list of "public safety entities" in s 43(7) to include Marine Rescue Queensland, MRQ units, the State Emergency Service and SES units. This change was driven by the desire to give explicit statutory cover to volunteer and paid emergency radio communications after organisational restructuring. The amendment ensures that activation of duress alarms or lost-contact scenarios on government network radios does not inadvertently breach the listening-device prohibition.

In 2017 the Emergency Management Reform Act inserted references to Rural Fire Service Queensland. The 2013 amendments (No. 51) introduced the modern executive-officer liability regime in s 49A and adjusted penalty references to reflect the penalty-unit system. The 2010 changes were largely machinery, updating references to the Commissioner and inspectors.

The major structural contraction occurred earlier: the 1993 amendments (No. 83) removed most of the private-inquiry-agent and credit-reporting licensing scheme, transferring regulation elsewhere. The 2002 amendments (No. 13) completed that excision. These changes reflected a policy view that licensing of inquiry agents was better housed in dedicated legislation (later repealed or absorbed) and that credit reporting was more appropriately regulated under Commonwealth privacy law.

The 1976 insertion of Part 4A (unlawful entry of dwelling houses) was a direct legislative response to perceived gaps in trespass law and rising home invasions.

Because the legislation supplies both criminal offences and a statutory rule of evidence exclusion, most reported decisions concern the admissibility of recordings rather than contested prosecutions. Courts have focused on the statutory definition of "private conversation". The requirement that circumstances indicate a desire for the words to be heard only by the participants has produced fact-sensitive analysis. Where one party secretly records a conversation in their own home, the "party to the conversation" exception in s 43(2)(a) ordinarily renders the recording lawful, but subsequent dissemination may still breach s 45 unless an exception applies.

The interaction between s 46 and the common-law public-interest discretion has been tested. The statutory exclusion is not absolute; the exceptions in s 46(2) mirror the communication exceptions and have generally been construed strictly. Suppression orders under s 46(3) have been made in proceedings where illegally obtained material was tendered for limited purposes.

Controversies have arisen in domestic-violence and whistle-blower contexts. Secret recordings made by one spouse of another have been admitted where the recorder was a party, but attempts to publish on social media have triggered s 45 charges. Media outlets have argued that the "public interest" limb of s 45(2)(c) should be read broadly; courts have required the dissemination to be "no more than is reasonably necessary".

The dwelling-house provisions in s 48A have generated fewer reported cases, largely because serious entries are charged under the Criminal Code. The citizen-arrest power in s 48A(4) has been invoked in neighbour disputes but rarely reaches appellate courts. The breadth of the "yard" definition in s 48A(3A) has occasionally produced arguments about whether a carport or driveway falls within the curtilage.

No High Court challenge to the Act's validity has succeeded. The listening-device provisions have been upheld as a valid exercise of state legislative power, consistent with the implied freedom of political communication where the public-interest exception in s 45(2) provides adequate breathing space.

Most practitioners assume that because they are a party to a conversation they may record and disseminate it at will. Section 45(1) expressly criminalises subsequent communication by a party who used a listening device, unless one of the five exceptions in s 45(2) is satisfied. The "reasonably necessary in the public interest" test is narrower than many expect; courts have rejected general whistle-blower defences where less harmful avenues existed.

The government-network-radio exception in s 43(2)(e) is conditional on the specific circumstances listed. A routine radio check that happens to capture private conversation will not qualify; the operator must be responding to a duress alarm, a request for assistance, or have reasonable grounds to believe there is a risk to life, health or safety. Loss of contact alone is insufficient unless the example in the statute is met.

Executive officers should note that s 49A applies only to the five listed "deemed executive liability provisions". A director who authorises an illegal publication under s 44(1) is caught; one who authorises an illegal advertisement under s 48 is not, because s 48 is not listed.

The evidentiary exclusion in s 46(1) operates even if the recording was made lawfully by a party but later communicated unlawfully. The section looks to the initial acquisition "as a result, direct or indirect, of the use of a listening device used in contravention of section 43". If the initial use was lawful, s 46 does not bite, but the communication offence may.

Identity-card production under s 6A is a strict precondition. An inspector who omits this step cannot lawfully exercise any power, even if the card is later produced at the first reasonable opportunity. The obligation is personal; there is no "substantial compliance" escape.

The 12-month limitation period in s 50 is calculated from the later of the offence or the complainant's knowledge. In covert-recording cases, "knowledge" has been held to require awareness of both the recording and the identity of the recorder, which can extend the window significantly.

Organisations should adopt a "no covert recording" policy unless the recorder is an active participant and dissemination is strictly limited to the s 45(2) exceptions. Where covert recording is contemplated for law-enforcement purposes, obtain the relevant warrant under the Police Powers and Responsibilities Act or Crime and Corruption Act rather than relying on the residual s 43(2)(d) exception.

Emergency-services agencies must train communications-centre operators to document the precise triggering event (duress alarm, request for assistance, or reasonable belief of risk to life or safety) before activating government network radios that might capture private conversation. Records should be kept for at least 12 months plus any civil-limitation period.

Businesses that install security cameras with audio should disable the audio function in areas where private conversations are likely (staff kitchens, meeting rooms) or post clear signage that audio recording occurs, thereby removing the "private conversation" element.

Legal practitioners advising on secretly obtained material must analyse the chain of acquisition. If the initial listening-device use breached s 43, the material is prima facie inadmissible and cannot be communicated. Advice should be documented to establish the "in the course of legal proceedings" exception where applicable.

Occupiers of dwelling houses should consider civil injunctions in addition to criminal complaints, given s 51's preservation of civil remedies. Landlords should include clauses in leases prohibiting unauthorised entry but should not attempt self-help evictions that could breach s 48A.

Inspectors and delegates under s 48B must carry and produce identity cards on every occasion of exercising power. Failure to do so invalidates the interaction and exposes the State to civil suit despite the s 51A immunity (which requires honesty and absence of negligence).

When drafting contracts or workplace policies that contemplate recording of meetings, obtain express written consent from all participants and limit retention and dissemination. Consent must be informed; a general clause buried in an employment contract has been held insufficient to negate the statutory privacy expectation.

In summary, compliance rests on three pillars: (1) avoid non-party recording of private conversations; (2) if recording as a party, confine subsequent use to the narrowly drafted exceptions in s 45(2); and (3) for physical premises, secure explicit consent or a clear legal authority before entry. Where doubt exists, the safest course is to assume the conversation is private and the recording prohibited.