5—Optical surveillance devices
(1) Subject to this
section and section 6, a person must not knowingly install, use or
maintain an optical surveillance device on or in premises, a vehicle or any
other thing, (whether or not the person has lawful possession or lawful
control of the premises, vehicle or thing) to record visually or observe the
carrying on of a private activity without the express or implied consent of
each party to the activity.
Maximum penalty:
(a) in
the case of a body corporate—$75 000;
(b) in
the case of a natural person—$15 000 or imprisonment for
3 years.
(2) Subject to this
section and section 6, a person must not knowingly install, use or
maintain an optical surveillance device on or in premises, a vehicle or any
other thing, to record visually or observe the carrying on of a
private activity without the express or implied consent of each party to the
activity and, if the installation, use or maintenance of the device involves
entry onto or into the premises or vehicle, without the express or implied
consent of the owner or occupier of the premises or vehicle.
Maximum penalty:
(a) in
the case of a body corporate—$75 000;
(b) in
the case of a natural person—$15 000 or imprisonment for
3 years.
(3) Subject to this
section and section 6, a person must not knowingly install, use or
maintain an optical surveillance device on or in premises, a vehicle or any
other thing, to record visually or observe the carrying on of a
private activity without the express or implied consent of each party to the
activity and, if the installation, use or maintenance of the device involves
interference with the premises, vehicle or thing, without the express or
implied consent of the person having lawful possession or lawful control of
the premises, vehicle or thing.
Maximum penalty:
(a) in
the case of a body corporate—$75 000;
(b) in
the case of a natural person—$15 000 or imprisonment for
3 years.
(4) Subsections (1) to
(3) (inclusive) do not apply—
(a) to
the installation, use or maintenance of an optical surveillance device
if—
(i)
the installation, use or maintenance of the device is
authorised under this Act or any other Act or a corresponding law; or
(ii)
the installation, use or maintenance of the device is
authorised under a law of the Commonwealth; or
(iii)
the device is installed, used or maintained for the
purposes of an approved undercover operation under Part 2 of the
Criminal Investigation (Covert Operations) Act 2009 by, or on behalf of,
a person who is an authorised participant in the approved undercover
operation; or
(iv)
the device is installed, used or maintained by a person
who holds an investigation agent's licence under the
Security and Investigation Industry Act 1995 that authorises the holder
of the licence to perform the functions of inquiry work and—
(A) the device is used by the licensee in
the course of his or her functions as an investigation agent; and
(B) the use is reasonably necessary for the
protection of the lawful interests of a person; or
(v)
the device is installed, used or maintained by a loss
adjuster to whom the Security and Investigation Industry Act 1995 does
not apply and—
(A) the device is used by the loss adjuster
in the course of his or her functions as a loss adjuster; and
(B) the use is reasonably necessary for the
protection of the lawful interests of a person; or
(b) to
the installation, use or maintenance of an optical surveillance device on
premises by a person if the use of the device is reasonably necessary for the
protection of the lawful interests of that person; or
(c) to
the use of an optical surveillance device to record any activity in connection
with the execution of a surveillance device warrant or surveillance device
(emergency) authority under this Act, or a warrant or other authority under
any other Act or law; or
(d) to
the installation, use or maintenance of an optical surveillance device by an
officer to record any activity carried out in a public place in the course of
the officer's duties; or
(e) to
the use of an optical surveillance device solely for the purpose of the
location and retrieval of the device; or
(f) to
the installation, use or maintenance of an optical surveillance device in
prescribed circumstances.
(5) An exemption from
subsection (1) that applies under subsection (4) or section 6
to a person in relation to the installation, use or maintenance of an
optical surveillance device for the purposes of the investigation of a matter
by an investigating agency extends to any other person who, for the purposes
of the investigation—
(a)
installs, uses or maintains that device; or
(b)
records or monitors an activity by means of that device.