Surveillance Devices Regulation 2022

The regulation introduces and refines several key concepts drawn from the Surveillance Devices Act 2007. Corresponding law (clause 4) is a designation used to recognise interstate surveillance legislation so that warrants or authorisations issued under those laws have effect in NSW. The regulation lists five: the Northern Territory’s Surveillance Devices Act 2007, Queensland’s Police Powers and Responsibilities Act 2000 Chapter 13, Tasmania’s Police Powers (Surveillance Devices) Act 2006, Victoria’s Surveillance Devices Act 1999, and the Australian Capital Territory’s Crimes (Surveillance Devices) Act 2010. This allows cross-border law enforcement operations without requiring separate NSW warrants. Body-worn video (clause 5) refers to recording devices worn by police officers, and the regulation expands the statutory list of purposes for which recorded information may be used. The concept of “use of information” is defined to include publication and communication, which has implications for privacy and evidentiary control. Delegation (clause 6) restricts who may exercise the Attorney General’s powers under Parts 3 and 5 (dealing with warrants and other authorisations) to a narrow pool of senior legal officers within the administering department. This limits the potential for outsourcing or delegating to non-government lawyers. Exemption from Part 2 is a central concept for clauses 6A, 6B, and 6C. Part 2 of the Act prohibits the installation, use, and maintenance of surveillance devices without consent or a warrant, with criminal penalties. The regulation carves out exceptions for ICAC, sheriff’s officers, and SafeWork inspectors under specific conditions. For ICAC, the exemption is particularly broad: it covers “relevant material” obtained by a person other than ICAC in contravention of Part 2, meaning ICAC can use unlawfully obtained surveillance recordings without itself committing an offence. This is subject to a sunset date and a reporting requirement. For sheriff’s officers and SafeWork inspectors, the exemption applies only to body-worn recording devices worn on the person, prominently attached, and used with either prior reasonable notice of recording capability, a belief in significant risk of harm, or inadvertent recording. The concept of sunset is critical: clauses 6A, 6B, and 6C all contain repeal dates, making the exemptions temporary unless further amending regulations are made. The regulation also preserves savings and transitional concepts: acts, matters, or things under the repealed 2014 regulation continue to have effect, and a specific transitional provision keeps the old ambulance officer body-worn device exemption alive until the new regulation’s clause 6 commences. The regulation does not create any new offences or private rights; it operates purely by modifying the scope of existing prohibitions and permissions in the principal Act.

The regulation directly affects several categories of persons and entities, almost all within government or law enforcement. Police officers in NSW are affected by the expanded purposes for using body-worn video (clause 5). They may now use recordings in coronial proceedings, administrative decisions, court proceedings involving the NSW Police Force or the State, internal complaints investigations, workplace injury investigations, and media productions with police approval. This broadens the circumstances in which an officer’s recording can be shared beyond the original statutory limits, with potential consequences for individuals captured on video who may now find their images used in media or administrative decisions without their consent. The NSW Police Force itself must issue and comply with guidelines for media productions and approve all content, giving it editorial control. The Attorney General’s department is affected by the delegation clause (clause 6), which limits who can exercise the Attorney General’s functions under Parts 3 and 5 to a small group of senior legal officers. This prevents delegation to external private lawyers or lower-ranked staff, centralising authority. ICAC and its officers receive a broad exemption from Part 2 of the Act for using unlawfully obtained surveillance material (clause 6A). This allows ICAC to access evidence that would otherwise be inadmissible or unlawful to possess, potentially affecting targets of ICAC investigations whose privacy has already been breached by a third party. The exemption is temporary but has been extended once, suggesting possible further extensions. Sheriff’s officers (clause 6B) gain a conditional exemption to wear body-worn recording devices while executing duties, affecting members of the public who interact with sheriff’s officers during evictions, seizures, or service of process. Those individuals may be recorded without their consent if the officer gives reasonable notice or if there is a perceived risk of harm. SafeWork inspectors (clause 6C) obtain a similar exemption for work health and safety and explosives inspections, affecting employers, workers, and site visitors who may be recorded during inspections without prior consent, subject to similar conditions. Media production companies are affected indirectly: they may receive police body-worn video for use in television, radio, or internet broadcasts, but only if they obtain the video specifically for that purpose, have all content approved by the NSW Police Force, and comply with any issued guidelines. This gives police control over the narrative and may limit independent journalism. Courts and tribunals are affected because additional types of proceedings may now receive police body-worn video evidence under clause 5(c). The general public is affected by the erosion of the default prohibition on non-consensual surveillance: where exemptions apply, individuals lose the protection of sections 7 and 8 of the Act, though the conditions (prominent device, reasonable notice, risk of harm) provide some safeguards. The regulation does not directly affect private businesses or independent contractors, except insofar as they interact with sheriff’s officers or SafeWork inspectors who may record them. The overall effect is to expand the surveillance capacity of state actors while keeping private surveillance restrictions unchanged.

The regulation does not impose new substantive duties on private individuals or businesses; its primary effect is to create exemptions from existing duties under the Surveillance Devices Act 2007 for certain public officials. Under that Act, sections 7 and 8 impose a duty on all persons not to install, use, or maintain a listening device or optical surveillance device without the express or implied consent of the parties or without a warrant or emergency authorisation. The regulation carves out exceptions for sheriff’s officers and SafeWork inspectors, relieving them of that duty when they comply with the stated conditions (prominent attachment, prior notice or risk of harm or inadvertence). For ICAC, the exemption is even broader: ICAC is exempt from Part 2 entirely for obtaining, possessing, publishing, or communicating material that was obtained by another person’s unlawful surveillance. This means ICAC has no duty to avoid handling or disseminating unlawfully obtained surveillance records, and cannot be prosecuted under the Act for doing so, provided it acts in accordance with the Independent Commission Against Corruption Act 1988. The regulation also imposes a specific reporting duty on ICAC: if it relies on the exemption in the course of an investigation, any report under section 74 of the ICAC Act must state that fact. This is a transparency obligation, but it only applies to final reports, not to internal decision-making or interim steps. The regulation gives police officers a right (or permission) to use body-worn video information for additional purposes, but it does not create a duty to do so. The conditions for media productions impose duties on the NSW Police Force: it must issue guidelines and approve all content before a media production can use the video. This means the Police Force has a duty to vet content and ensure its use is otherwise lawful. The regulation also gives the Attorney General the right to delegate functions, but only to specific categories of senior legal officers. That is a power, not a duty. For individuals recorded by sheriff’s officers or SafeWork inspectors, the regulation creates a right to be notified before recording if the officer has made a reasonable attempt to ensure awareness, unless there is a risk of harm or the recording is inadvertent. However, “reasonable attempt” is not defined and may be satisfied by a visible device or a brief announcement. There is no private right to sue for breach of these conditions; enforcement would be through complaint or disciplinary processes. The regulation does not create any new rights for individuals to access or delete recordings. Overall, the balance shifts towards expanding state officials’ permissions to record and use surveillance material, with only limited procedural duties on those officials and no private enforcement mechanism.

The regulation itself does not create any new penalties. Penalties for unlawful surveillance remain in the Surveillance Devices Act 2007: section 7(1) makes it an offence to install, use, or maintain a listening device without consent or authority, with a maximum penalty of 100 penalty units or 5 years imprisonment (or both) for individuals, and 500 penalty units for corporations. Section 8 similarly penalises optical surveillance device offences. The regulation’s exemptions remove criminal liability for the classes of persons covered (sheriff’s officers, SafeWork inspectors, ICAC) provided they comply with the conditions. This means that a sheriff’s officer who wears a body-worn camera without giving notice and without a risk of harm or inadvertent recording may still be liable under sections 7 and 8. The enforcement of that liability would fall to the NSW Police Force or the Director of Public Prosecutions, creating an awkward dynamic where police would prosecute fellow public officials. In practice, enforcement may be rare. For ICAC, the exemption is nearly absolute: even if ICAC uses material obtained by a third party’s blatant unlawful surveillance, it commits no offence, and its officers are immune from prosecution under the Act for that use. The only enforcement lever is the reporting requirement: if ICAC fails to include a statement in its report about relying on the exemption, that may be a breach of the regulation, but the regulation does not prescribe a penalty for such a breach. The Independent Commission Against Corruption Act 1988 has its own accountability mechanisms, but they may not address non-compliance with a regulation. The sunset provisions create a built-in enforcement mechanism: if the exemptions are not renewed by the specified dates, they automatically expire, and the default prohibitions of the Act revive. This gives the legislature a periodic opportunity to review whether the exemptions should continue. The regulation does not provide for civil remedies, compensation, or judicial review for individuals who are unlawfully recorded by a person who fails to meet the exemption conditions. Those individuals would need to rely on the general law of trespass, privacy (to the extent recognised in NSW), or perhaps seek an injunction or damages under the Surveillance Devices Act itself, though the Act’s remedies are primarily criminal. The regulation’s effect on enforcement is therefore to create zones of immunity that reduce the deterrent effect of the Act’s penalties for certain state actors, while leaving the penal framework intact for everyone else. For private citizens, the compliance burden is unchanged: they must continue to obtain consent or a warrant before recording private conversations or activities. But the expansion of state recording capacity increases the probability that private citizens will be recorded without their knowledge or consent in interactions with sheriff’s officers, SafeWork inspectors, or via police body-worn video used in media productions, without any corresponding right of redress under this regulation.

The regulation is subordinate to the Surveillance Devices Act 2007 (NSW) and operates within its framework. Section 3 of the regulation defines “the Act” as the Surveillance Devices Act 2007, and all clauses are explicitly tied to specific provisions of that Act. The regulation interacts directly with the Independent Commission Against Corruption Act 1988 by exempting ICAC from Part 2 of the Surveillance Devices Act when it acts in accordance with the ICAC Act. This means ICAC investigators can handle and publish material that was obtained in breach of the Surveillance Devices Act by a third party, effectively overriding the prohibition that would otherwise apply to ICAC as a recipient. The interaction creates a potential conflict: the Surveillance Devices Act deems the original recording unlawful, yet the regulation allows ICAC to use the fruits of that unlawfulness. The Coroners Act 2009 is referenced in clause 5(a) as a purpose for using police body-worn video, expanding the evidentiary base for coronial inquests. The Government Sector Employment Act 2013 is incorporated by reference for the definition of “Public Service senior executive” in the delegation clause (clause 6). The Sheriff Act 2005 defines “sheriff’s officer” for clause 6B. The Work Health and Safety Act 2011 and the Explosives Act 2003 define the context for SafeWork inspectors’ body-worn device use in clause 6C. The regulation also recognises corresponding laws from other Australian jurisdictions under clause 4, which interacts with the mutual recognition framework for surveillance warrants. This means a warrant issued under Queensland’s Police Powers and Responsibilities Act 2000, for example, is treated as a corresponding law, allowing NSW officers to rely on it in limited circumstances as provided by the principal Act. The regulation does not affect the operation of the Privacy and Personal Information Protection Act 1998 (NSW) or the Health Records and Information Privacy Act 2002 (NSW), though body-worn video recordings may contain personal information and health information, so those Acts will apply independently. The regulation does not interact with the common law tort of trespass or breach of confidence, but the exemptions may make it harder to establish a breach where state actors are involved. The Subordinate Legislation Act 1989 governs the making and repeal of the regulation itself. The Interpretation Act 1987 provides the default rules for interpretation, and the regulation’s notes reference it for disallowance periods and commencement. For media productions, the interaction with broadcasting laws (e.g., the Broadcasting Services Act 1992 (Cth)) is not addressed but may impose additional constraints. The regulation’s sunset clauses interact with the Subordinate Legislation Act’s provisions on automatic repeal of statutory rules, but the regulation sets its own specific repeal dates. Overall, the regulation interfaces with at least ten other pieces of primary and subordinate legislation, creating a web of permissions and obligations that primarily benefit government agencies. For private actors, the key interaction is the absence of any override of the Act’s general prohibitions , the regulation only creates narrow, temporary carve-outs, not a general relaxation of surveillance laws.

The regulation as published reflects numerous amendments since its original commencement on 1 September 2022. The original regulation (2022 No 526) replaced the Surveillance Devices Regulation 2014, which was repealed on the same date under the Subordinate Legislation Act 1989, section 10(2). The original regulation contained clauses 1-7 (preliminary, corresponding laws, police body-worn video purposes, delegation, and savings). Clause 6 (delegation) was repealed and inserted by a later regulation: 2024 No 546, Schedule 1, as noted in the editorial note under section 6. The current version of clause 6 is the substituted version from 2024, which restricts delegation to senior legal officers (Public Service senior executive, legal officer grade 6, or clerk grade 11/12 in the legal branch). Clause 6A (ICAC’s use of unlawful surveillance device recordings) was inserted by 2023 No 462, Schedule 1, with an original sunset date. It was amended by 2025 No 487, Schedule 1[1][2] and then by 2026 No 85, Schedule 1[1][2], which extended the sunset from 30 June 2026 to 31 December 2026. The note to clause 6A explains that the amendment takes effect after the expiration of the disallowance period under the Interpretation Act 1987, section 41. Clause 6B (sheriff’s officer’s use of body-worn recording devices) was inserted by 2023 No 511, Schedule 2, and subsequently amended by 2024 No 575, Schedule 2, and 2025 No 632, Schedule 2. Its sunset is currently 30 November 2026. Clause 6C (SafeWork inspector’s use of body-worn recording devices) was inserted by 2024 No 640, Schedule 1, and commenced on 27 May 2025 as per the editorial note. Its sunset is 31 August 2027. Part 3 (savings and transitional) has not been amended. The pattern of amendments shows a trend: the regulation is being used as a vehicle to introduce temporary exemptions for various state officers, and those exemptions are being extended and expanded over time. The ICAC exemption in particular has been extended twice (2025 and 2026), moving the sunset from an original earlier date to 31 December 2026. The sheriff’s officer exemption was inserted in 2023 and amended in 2024 and 2025, suggesting ongoing adjustments to conditions or scope. The SafeWork inspector exemption was added later, in 2024, with a sunset three years out. The amendment history indicates that the government is testing these exemptions and may seek to make them permanent or continue extending them. For practitioners, tracking the sunset dates is critical: failure to note a repeal could result in reliance on an exemption that no longer exists, exposing officers to criminal liability. The regulation does not include any sunset for the corresponding laws list or the police body-worn video expanded purposes, which appear to be permanent.

The regulation itself has not been the subject of any reported litigation in the source material. The text provides no cases, judicial decisions, or tribunal rulings that interpret or challenge any provision. This is unsurprising given the regulation’s relatively recent commencement (September 2022) and the fact that it is a subordinate instrument that primarily details exemptions and procedural matters rather than creating new causes of action. However, the absence of litigation history does not mean the regulation is uncontroversial or immune from future challenge. The ICAC exemption (clause 6A) is a potential source of litigation. A party investigated by ICAC could challenge the use of unlawfully obtained surveillance material on grounds that the exemption exceeds the regulation-making power under section 59(2) of the Surveillance Devices Act, or that it breaches implied constitutional guarantees (such as the right to a fair trial or the Kable principle regarding institutional integrity of state courts). The High Court of Australia has not yet considered such a challenge. The sheriff’s officer and SafeWork inspector exemptions could also be litigated if an individual claims they were recorded without proper notice or in the absence of a risk of harm, and the officer asserts the exemption. A court would then need to interpret the conditions: what constitutes a “reasonable attempt” to ensure awareness, what amounts to a “significant risk of harm”, and what counts as “inadvertent or unexpected” recording. These terms are not defined further in the regulation, leaving scope for judicial interpretation. The police body-worn video expanded purposes could be challenged in the context of a media production: a person recorded might seek an injunction to prevent broadcast on the grounds that the police approval was given improperly or that the use is not “otherwise lawful” (clause 5(1)(f)(iii)). The reference to “otherwise lawful” imports other legal constraints, such as privacy torts or confidentiality obligations. The delegation clause (clause 6) could be litigated if a decision under Parts 3 or 5 of the Act is made by a delegate who does not meet the specified criteria (e.g., a senior executive who is not an Australian legal practitioner). A warrant or authorisation could be challenged as invalidly issued. The transitional provision (clause 8) could give rise to disputes about whether an act, matter, or thing had effect under the repealed regulation, requiring a court to interpret the savings clause. The corresponding laws list (clause 4) could be relevant in cross-border investigation litigation: a defendant might argue that a warrant issued under a corresponding law was not properly recognised in NSW, but the regulation simply declares those laws as corresponding, leaving the principal Act to govern recognition. The regulation does not create any private right of action, so litigation would likely occur in the context of criminal proceedings (e.g., challenging the admissibility of evidence) or judicial review of administrative decisions (e.g., seeking to quash an ICAC report that relied on the exemption). The litigation history remains to be written, but the regulation’s provisions contain several potential pressure points that could be tested in court.

Several provisions in the regulation contain traps for the unwary. Sunset dates are not consistent and may be extended or not. Clause 6A (ICAC) expires 31 December 2026, clause 6B (sheriff’s officers) expires 30 November 2026, and clause 6C (SafeWork inspectors) expires 31 August 2027. Anyone relying on these exemptions must check the current version of the regulation on the day of the intended use. An officer who assumes an exemption remains in force after its repeal could face criminal prosecution under sections 7 and 8 of the Act. Practitioners should calendar these dates and monitor the NSW legislation register for amending regulations. The ICAC exemption does not require ICAC to notify the original unlawful recorder or the individuals recorded. A person whose private conversation was unlawfully recorded by a third party may find that ICAC possesses and publishes that recording without any right to object under the Act. The only protection is a statement in ICAC’s report, which may come months or years later. The conditions for sheriff’s officers and SafeWork inspectors are cumulative and ambiguous. The officer must: (a) use the device in execution of duty, (b) have it prominently attached to the uniform or clothing, and (c) satisfy at least one of three sub-conditions (reasonable attempt to notify, significant risk of harm, or inadvertent/unexpected recording). The phrase “reasonable attempt” is subjective and may be difficult to prove after the fact. A failure to give notice that a court later deems unreasonable could void the exemption, making the recording unlawful. The “significant risk of harm” condition is also subjective; an officer’s opinion may be challenged. Inadvertent or unexpected recording is the easiest to satisfy but only covers situations where the officer did not intend to record. Officers planning to record must rely on the other two limbs. The media production purpose for police body-worn video is tightly controlled. Clause 5(1)(f) requires that the body-worn video is provided “particularly for the purposes of the media production”, that NSW Police Force approves all content, that the use is otherwise lawful, and that it does not breach guidelines issued by the Commissioner of Police. This gives the police complete editorial control, meaning a media outlet cannot independently select or edit footage obtained from police. The approval requirement could be used to suppress unfavourable material. The delegation clause is narrow but the exclusion of other officers may cause administrative delays. Only an Australian legal practitioner who is a Public Service senior executive or a legal officer grade 6 or clerk grade 11/12 in the legal branch can receive delegations. This excludes Deputy Secretaries, policy officers, and non-lawyer executives. If the eligible pool is small, warrants or other decisions may be delayed. The savings and transitional clause (clause 8) preserves the old ambulance officer exemption only until the new regulation’s clause 6 commenced. Clause 6 (delegation) commenced after the disallowance period, meaning there was a gap during which the old ambulance exemption continued. Practitioners should confirm that the new provisions are in force. The regulation does not require any notification to the NSW Ombudsman or Privacy Commissioner of the use of the exemptions, unlike other surveillance frameworks. This reduces external oversight. The exemption for ICAC extends to “an officer of the Commission”, which may include seconded staff, contractors, or consultants. Such persons could lawfully possess and use unlawfully obtained surveillance material without personal criminal liability, even if they are not public servants. The term “private conversation” is defined in the Act but the regulation does not affect that definition. A conversation that is not private (e.g., in a public place) may not be protected, but the exemption still applies to “relevant material” which includes any record of private conversation or activity. The breadth could sweep in material that is only marginally private.

Compliance with the Surveillance Devices Regulation 2022 depends on which category of person you are. For private individuals and businesses, the regulation changes nothing. You must continue to comply with the Surveillance Devices Act 2007: do not install, use, or maintain a listening device or optical surveillance device to record a private conversation or activity without the express or implied consent of all parties, unless you have a warrant or emergency authorisation. The regulation’s exemptions do not apply to you. If you are recorded by a sheriff’s officer, SafeWork inspector, or police body-worn video, you have limited recourse under this regulation; you may need to pursue remedies under privacy legislation or through complaint mechanisms. For sheriff’s officers seeking to rely on clause 6B, you must ensure that the body-worn recording device is prominently attached to your uniform, that you are acting in the execution of your duty, and that before recording you make a reasonable attempt to ensure the person likely to be recorded is aware the device is capable of recording images or sound, or you hold an opinion that there is a significant risk of harm to yourself or another person, or the recording is inadvertent or unexpected. You should document the steps taken to notify (e.g., making an announcement, displaying the device prominently) and the basis for any risk of harm opinion. Keep a log or incident report. Do not rely on the exemption if you have not met all three threshold conditions (duty, prominent attachment, and at least one sub-condition). Remember that the exemption expires on 30 November 2026. For SafeWork inspectors under clause 6C, similar compliance steps apply: ensure the device is prominently attached to your clothing, you are acting under your WHS or explosives powers, and you meet the notification, risk, or inadvertence condition. The device must be worn “on a person” , handheld devices are not covered. The exemption expires 31 August 2027. For ICAC and its officers relying on clause 6A, you must ensure that any use of unlawfully obtained surveillance material is in accordance with the Independent Commission Against Corruption Act 1988. If you rely on the exemption during an investigation, you must include a statement to that effect in any report under section 74 of the ICAC Act. Keep records of which material was obtained unlawfully by another person and how it came into ICAC’s possession. The exemption expires 31 December 2026. For police officers using body-worn video for the additional purposes in clause 5, you may use the information for coronial proceedings, administrative decisions, court proceedings involving the State or police, complaints investigations, workplace injury investigations, and media productions. For media productions, you must provide the video “particularly for” that production, obtain NSW Police Force approval for all content, ensure the use is otherwise lawful, and comply with any Commissioner’s guidelines. Do not use the video for purposes outside the list without separate authorisation under the principal Act. For legal practitioners and administrators handling delegations under clause 6, ensure that any delegate exercising the Attorney General’s functions under Parts 3 or 5 of the Act is an Australian legal practitioner and either a Public Service senior executive or a legal officer grade 6 or clerk grade 11/12 in the legal branch of the administering department. Verify the delegate’s classification and legal practitioner status before relying on their decision. For all parties, monitor the NSW legislation website for amendments to sunset dates or conditions. Document reliance on any exemption and be prepared to justify compliance if challenged. The regulation does not require reporting to any oversight body, but internal audits are prudent.