Surveillance Devices and Other Legislation Amendment Bill 2025

Mr MICHAEL DALEY ( Maroubra—Attorney General) (14:31:07): I move:

That this bill be now read a second time.

The New South Wales Government is pleased to introduce the Surveillance Devices and Other Legislation Amendment Bill 2025. The Minns Labor Government is continuing its efforts to strengthen integrity and to crack down on corruption across New South Wales. The bill removes obstacles for investigative agencies when operating within their statutory functions, to better protect the people of New South Wales. It will provide clarity in relation to the lawful use of body-worn video cameras by agencies when investigating potential unlawful conduct and create a public interest exception to permit investigators to receive evidence that may otherwise be in contravention of the Surveillance Devices Act 2007.

The Surveillance Devices Act primarily regulates the use of surveillance devices by New South Wales law enforcement agencies in their investigations. The Act places restrictions on activities such as recording private conversations with listening devices, entering premises without the occupier's consent to visually record or observe someone's activities with an optical surveillance device, and determining someone's location through the use of a tracking device. Such activities are generally prohibited by part 2 of the Act, with contraventions punishable by up to five years imprisonment. Law enforcement agencies may undertake these activities in accordance with a warrant or similar authorisation issued under part 3 of the Surveillance Devices Act. In addition, the Surveillance Devices Act prohibits the possession and sharing of surveillance device records obtained in breach of part 2 of the Act. Law enforcement agencies may share such records where they are lawfully obtained by warrant or authorisation under the Act in the circumstances prescribed by the Act.

While the primary purpose of the Surveillance Devices Act is to regulate law enforcement agencies' use of relevant devices and information obtained from their use, prohibitions under the Act apply broadly and may capture conduct by private citizens or officers of New South Wales government agencies who perform investigative functions under other Acts. The use of devices in contravention of the Surveillance Devices Act may involve serious invasions of privacy, and it is appropriate that offences under the Act apply to all people, not only law enforcement officers. However, there may be circumstances where such a general application of the prohibitions under the Act would produce unintended consequences or where the public interest would be better served if exceptions were made for certain breaches.

Consultation with government and external agencies has shown that the current prohibitions in the Act have prevented the use of surveillance devices such as body-worn video by New South Wales government agencies. The current prohibitions have also prevented the sharing of surveillance device records with investigative bodies, potentially hampering investigations into crime, corruption or other unlawful conduct. Sharing surveillance device records in those circumstances would clearly serve the public interest. The bill will ensure that records made by surveillance devices can be used by investigative bodies in their investigations into crimes and corruption when it is in the public interest, and will also enable New South Wales agencies to make appropriate use of surveillance devices in the exercise of their functions.

Sections 11, 12 and 14 of the Surveillance Devices Act restrict the possession, communication and publication of material that has been obtained through the unlawful use of a surveillance device. Currently, section 11 makes it an offence for a person to publish or communicate a private conversation, a record of an activity or a report of a private conversation or an activity if it has come to the person's knowledge as a direct or indirect result of a use of a listening device, optical surveillance device or tracking device in breach of the Act. This prohibition applies even if the person is reporting clear evidence of a serious crime. Currently, section 12 makes it an offence for a person to possess a record of a private conversation or an activity if the person knows the record has been obtained, directly or indirectly, by use of a listening device, optical surveillance device or tracking device in breach of the Act. Again, this prohibition applies even if the person was not involved in obtaining the record and in good faith gives it to police or another investigative agency.

Currently, section 14 makes it an offence for a person to publish or communicate information about the input of information into or the output of information from a computer obtained as a direct or indirect result of the use of a data surveillance device in breach of the Act. While there are limited exceptions to these offences, there are no exceptions to permit the possession, communication or publication of information obtained through the unlawful use of a surveillance device on public interest grounds. Where an investigative agency is in possession of information that has been obtained by a third party through the unlawful use of a surveillance device and it would be in the public interest for the agency to be able to use that information to investigate crime, corruption or other wrongdoing, the only recourse under the Act currently is to rely on the regulation-making power contained in section 59 to exempt the agency in question from specified offences. This is clearly insufficient, as any number of investigative agencies may need to use such information to address all manner of criminal, corrupt or otherwise unlawful conduct—and to keep their officers safe.

Corresponding legislation in some other Australian jurisdictions includes a public interest exception, and the question has periodically been asked in the New South Wales Parliament as to whether the Surveillance Devices Act should follow suit. In particular, the Legislative Council's Select Committee on Landowner Protection from Unauthorised Filming or Surveillance recommended in 2018 that the then New South Wales Government consider inserting a public interest exception into the Act in New South Wales. In 2024 the Department of Communities and Justice undertook public consultation on behalf of the Attorney General on whether a public interest exception should be developed in New South Wales and inserted into the Surveillance Devices Act 2007. This bill will implement the department's recommendations by inserting an exception from certain offences where a person communicates or publishes information to an investigative body in the public interest, including where the communication or publication is relevant to the investigative body's functions.

The bill does not make trespass lawful in any instance, and it does not introduce a public interest exception permitting the communication or publication of unlawfully obtained surveillance device records to the world at large, including to media outlets. The Government considers that such a measure would have significant implications for the privacy and rights of owners and occupiers of property, such as condoning or encouraging some individuals to enter property and make surveillance device records without permission, for reasons they consider to be in the public interest. The bill does, however, prescribe that a statutory review is to be undertaken after five years from commencement. This will enable the Government to closely review the treatment of this material and consider the operation of the new public interest exception.

The other major reform in the bill clarifies the legal framework for use of listening devices and optical surveillance devices by New South Wales government agencies. In recent years, the Department of Communities and Justice has been approached by a number of New South Wales government agencies that perform investigation and enforcement functions regarding the use of body-worn video to deter and record acts of intimidation and violence against their officers and as an evidence-recording tool for compliance and enforcement functions. Agencies have expressed concern that the prohibitions on the use of surveillance devices in the Surveillance Devices Act prevent their officers from using body-worn video in the exercise of their functions.

From 2023 to 2024, the Department of Communities and Justice consulted with government and targeted external stakeholders to explore amendments to the Surveillance Devices Act to establish a clear legal framework for the use of body-worn video by officers of New South Wales agencies. The department's review established that there are at least 76 Acts in New South Wales of a regulatory nature that authorise officers to enter non‑residential premises without a warrant. Those Acts authorise officers to make video or audio recordings when exercising their inspection, investigation or other compliance and enforcement functions on non-residential premises.

Any enforcement officer who exercises their statutory authority to record audio or video while on non‑residential premises in the course of their duties will do so with a listening device or an optical surveillance device. Under these powers, they may participate in and record private conversations and may be present on the premises without the consent of the owner or occupier. The Surveillance Devices Act prohibits the use of an optical surveillance device where it involves entry to premises without the consent of the owner or occupier. The Act also prohibits the use of a listening device to record a private conversation without the consent of all the parties to the conversation. The use of an optical surveillance device in public places and the use of a listening device to record non-private conversations is not prohibited.

The Surveillance Devices Act provides an exemption for the use of listening devices and optical surveillance devices in accordance with Commonwealth law. For law enforcement officers, section 8 (2) (d1) of the Surveillance Devices Act includes an exception for the use of optical surveillance devices for the conduct of searches and inspections without a warrant, as authorised by legislation, including the Firearms Act 1996 and the Child Protection (Offenders Registration) Act 2000. However, there is no such exception for similar use as authorised under other Acts by officers of New South Wales government agencies who perform investigation and compliance functions.

There are limited New South Wales legislative provisions that expressly override the prohibitions in the Surveillance Devices Act, and exemptions may be granted by regulation to enable use of surveillance devices in certain circumstances, but this is a cumbersome approach that requires exemptions to be granted on a case‑by‑case basis. The patchwork of provisions across the statute book creates a lack of clarity and uncertainty in relation to the use of body-worn video by agencies when exercising their statutory functions that the Government considers should be clarified. The current legislative settings may inhibit agency officers from exercising powers conferred on them by Parliament for the purposes of their investigative and enforcement functions due to this lack of clarity.

It cannot have been intended for agency officers to be given statutory authority to make audio and video recordings in the exercise of their functions while simultaneously creating an inconsistency with the operation of the provisions of the Surveillance Devices Act for using body-worn video or other devices to make such recordings. The bill will implement exceptions for the offences relating to the use of listening and optical surveillance devices where, firstly, a person uses such a device as authorised by another Act; and, secondly, the person is using the device in the exercise of their statutory functions under that Act, and the use of the device is overt. This will not give all agencies a blanket exemption to use body-worn video or other surveillance devices and will not provide any additional agencies with the power to use body-worn video.

It simply clarifies that where an officer of an agency has an existing statutory authority to use a surveillance device in the course of their duties and they use the device overtly, no offence will be committed under the Surveillance Devices Act. Where an agency does not have such authority, Parliament will have to pass legislation to authorise the use of surveillance devices by the agency's officers, or a regulation authorising a trial period will be required. The bill will also make miscellaneous amendments to the Surveillance Devices Act and amend the Law Enforcement (Powers and Responsibilities) Act 2002 to support the recording of police conversations with drivers of vehicles and their passengers as required by section 108C (1) (b) of that Act.

I now turn to the detail of the bill. Schedule 1 [7] supports the amendments to introduce a public interest exception by replacing the offence of possessing records of private conversations or activities under section 12. In its current form, section 12 prohibits a person or agency from possessing relevant records if it is known that they were obtained by the use of a surveillance device in contravention of the Act. Where an investigative agency has been provided unsolicited surveillance device records from a third party on public interest grounds, it may be unaware as to whether or not the material was obtained in breach of the Act, and this uncertainty may act as a barrier to the agency reviewing and making use of the relevant material to investigate allegations of crime, corruption or other unlawful activity.

The bill will replace section 12 with a new offence under which the possession of relevant records will only be an offence where, firstly, the person recorded or caused the recording of private conversations or activities to be made or, secondly, knows that the record was made in contravention of the Act and fails to promptly give the record to an investigative body. Further, the offence will not apply if the person is an officer of an investigative body and the record is in the officer's possession in connection with the investigative body's functions. An "investigative body" is defined in schedule 1 [1] to be a law enforcement agency or another body whose statutory functions include investigating and taking formal action or proceedings against a person.

This would include the NSW Police Force, the Australian Federal Police, the Independent Commission Against Corruption, the New South Wales Crime Commission, or other investigative agencies such as the Royal Society for the Prevention of Cruelty to Animals. As amended, the new offence will focus on persons who were in some way responsible for or complicit in the unlawful use of a surveillance device. It will exclude those that come into the possession of relevant records without being involved in the illegality that led to their creation, provided they promptly give them to an investigative body for investigation.

Schedule 1 [8] inserts new sections 14A and 14B into the Act to provide for exceptions to the offences of communicating or publishing surveillance device records under sections 11 and 14. New section 14A will state that a person who communicates or publishes a surveillance device record does not commit an offence against sections 11 or 14 where, firstly, they do so for the purpose of providing the record to an investigative body in the public interest or, secondly, the record has previously been communicated or published to the public, unless the person knows that a previous publication or communication contravened section 11 or 14. New section 14B will provide the same protection for when an officer of an investigative body communicates or publishes the record in the exercise of their functions.

The exception for the communication of records by officers of the investigative bodies will not apply where they know that the record was obtained through the unlawful use of a surveillance device by a current or former officer of the body, unless the purpose of the communication is to bring that fact to the attention of an appropriate authority. The bill non-exhaustively defines "public interest" to include the communication or publication of surveillance device records to an investigative body where the records are relevant to the investigative body's functions under a law of New South Wales or the Commonwealth.

While the Surveillance Devices Act plays an important role in protecting the privacy of the people of New South Wales, the public interest will not be best served by a person who is in possession of information relating to serious criminal or corrupt conduct being discouraged from providing that information to an appropriate authority, or such an authority being prohibited from making use of the information due to its potentially unlawful provenance. These amendments will ensure that the Surveillance Devices Act strikes an appropriate balance between protecting the privacy of individuals and not hampering the ability of investigative bodies to make use of important information obtained unlawfully by a third party without the body's knowledge or dissuading people from providing such information to appropriate authorities for fear of prosecution.

I now turn to the amendments relating to the use of body-worn video and other surveillance devices by officers of New South Wales agencies. Schedule 1 [5] to the bill inserts new section 8A to support officers of agencies with existing statutory authority to use surveillance devices in the course of their duties to exercise those powers. It provides that a person who uses a listening or optical surveillance device does not commit an offence in the following circumstances: firstly, if the use of the device is authorised by another Act; secondly, if the person is using the device in the exercise of their functions under that other Act; thirdly, if the use of the device is overt; and, finally, if the device is used to record a private conversation and the person provides the other person with evidence that identifies them as someone who holds a position that exercises statutory functions, such as an identity card issued by the agency on which the statutory functions are conferred.

Without limiting the meaning of "overt", the bill states that use of a listening or optical surveillance device will be overt where the person being overheard, recorded, monitored or observed is informed that the device is being used for that purpose. These amendments will put beyond doubt that officers of New South Wales agencies who, in the course of their duties and as authorised by legislation, make audio and video recordings or make use of body-worn video are not captured by the prohibitions in the Surveillance Devices Act. The bill also includes miscellaneous amendments to the Act. Schedule 1 [2] and [3] modernise references to disability aids in the definitions of listening and optical surveillance devices.

Schedule 1 [6] inserts a power to make regulations to exempt the installation, use and maintenance of a tracking device from the prohibition on that conduct in new section 9 of the Act. Schedule 2 prescribes mobile automatic number plate recognition [MANPR] cameras for the purposes of that provision. MANPR cameras play an important law enforcement role by detecting and photographing vehicles that are unregistered, reported stolen or that have police alerts recorded against them. They record GPS coordinates when operated to detect and photograph a vehicle, meaning they are technically capable of determining the vehicle's geographical location. These amendments are being included in the bill out of an abundance of caution, to ensure that the statutory basis for using these cameras is clear and they are not inadvertently captured by new section 9 of the Surveillance Devices Act.

Schedule 1 [4] addresses inconsistencies in the use of surveillance device records in administrative proceedings under the Firearms Act 1996. Surveillance device records can only be used in "relevant proceedings" before a court or tribunal as defined in section 4. New section 4 provides that administrative reviews by the NSW Civil and Administrative Tribunal [NCAT] of decisions of the Commissioner of Police to refuse to issue a licence or permit and to make a firearms prohibition order under section 75 (1) (a) and (f) of the Firearms Act 1996 are prescribed as relevant proceedings. However, reviews of other decisions under section 75 (1), such as a decision to revoke a licence or permit or to cancel the registration of a firearm, are not relevant proceedings. There is no reason why the use of surveillance device records should be permitted in a review of a decision not to issue a firearms licence but not in a review of a decision to revoke a licence. The bill will address this inconsistency by classifying all decisions under section 75 (1) of the Firearms Act 1996 as relevant proceedings.

Schedule 1 [9] transfers authority under new section 56 to consent to the commencement of proceedings for an offence against the Act to the Director of Public Prosecutions. This function has historically been delegated by the Attorney General to the Director of Public Prosecutions, and the amendment merely reflects current practice and enlivens the director's power under the Director of Public Prosecutions Act 1986 to delegate this function where appropriate. Schedule 1 [10] amends the regulation-making power under section 59 to state that, where a regulation is made for an exemption applying to the use of a surveillance device, it may only exempt overt use of the device, the exemption must expire at the end of not more than three years, and it may include restrictions on the use and disclosure of information obtained under the exemption.

One limitation of using the regulations to facilitate temporary trials of body-worn video and other surveillance devices by New South Wales agencies has been the lack of a statutory authority in the Act that allows the regulations to impose restrictions on the subsequent use and disclosure of information obtained by such devices where appropriate. The amendments in new section 59 will ensure that temporary trials of surveillance devices such as body-worn video can still be facilitated by the regulations but with the inclusion of additional safeguards around the use and disclosure of information and a requirement for any use to be overt. It will also put a time limit on such regulations to ensure that any trials are undertaken promptly and ensure that exemptions under the regulations do not become permanent features of the legislative framework.

The amendments in this bill strengthen the regulation-making power so that the existing section 59 (3) and (4), which delay when regulations made for the purposes of section 59 (2) come into effect, are no longer necessary and will be repealed. The effect of this will be to cause such regulations to commence on publication, as is the case for most regulations. Schedule 1 [11] inserts a statutory review provision. This provision requires government to undertake a statutory review on all the provisions of the bill in five years time. This will enable enough time to evaluate the impact of the public interest exception to determine whether it is operating as intended and consider whether further reform is required.

It will also facilitate ongoing conversations with agencies who use body-worn video and other surveillance devices and assist government to understand whether regulation provisions are still required. Finally, schedule 3 to the bill will amend the Law Enforcement (Powers and Responsibilities) Act to enable police body-worn video to be used to record conversations with drivers of vehicles and their passengers as required by section 108C (1) (b) of that Act, by inserting appropriate references to body-worn video into the relevant provisions of part 8A of LEPRA.

This bill has been informed by public consultation on public interest exceptions and consultation across government and with external stakeholders on body-worn video and other surveillance devices. It strikes an appropriate balance between maintaining order and lawfulness while permitting material that will aid investigations being submitted to relevant investigative agencies. It recognises that surveillance devices like body‑worn video are a legitimate feature of many investigative and enforcement agency functions, and it aims to support best practice and certainty. I thank all stakeholders who contributed to this process. I commend the bill to the House.

Debate adjourned.