There are exceptions to the use of listening or optical surveillance devices without a person’s consent if the use is to protect a person’s lawful interests [see Surveillance Devices Act 2016 (SA) 4(2)(ii) and 5(4)(b)] or is in the public interest [s 6].

What constitutes a lawful interest or what is in the public interest will be determined objectively by considering the context and circumstances of the surveillance device being used, and weighing this against competing interests such as the need to protect personal privacy.

Therefore, there may be scope, for example, for a land owner to install CCTV cameras on their property without the consent of their neighbour (whose private activities may be within range), as long as it can be demonstrated that the cameras are directed to protect their lawful interests in their property. The land owner could then bring any relevant recordings to the attention of police, see further below Publication of information in lawful interests.

However, the courts have previously determined that it is not ordinarily considered to be a lawful interest to use a device for the purpose of gaining an advantage in civil proceedings, for example [Thomas & Anor v Nash [2010] SASC 153]. See also Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor [2018] SASC 116 where it was held that some of the recordings were made for the protection of the lawful interests of the plaintiffs, whilst others were not, and were hence found to be unlawful.

The court has accepted, however, that the recording of a private conversation was in the person's lawful interest where the person had a genuine fear for their safety [Groom v Police [2015] SASC 101]. In Groom v Police, a protected person made audio recordings of her former partner who contacted her in a way that was a breach of an intervention order. In this case the Supreme Court held that the recording was allowed to be admitted into evidence as it was both protecting her lawful interest and in the public interest.

Use of a device to protect a lawful interest

Where certain surveillance devices are used to protect a person’s lawful interests, the information obtained can only be used, communicated or published in specific circumstances. This includes, amongst other things:

If none of the circumstances apply, then a maximum penalty of a fine of up to $50,000 for a body corporate or a fine of up to $10,000 for an individual applies [s 9(1)].

Publication of information in public interest

Where information derived from a listening or optical surveillance device is obtained in the public interest, it cannot be used, communicated or published except in three circumstances. Those three circumstances are:

Maximum penalty of a fine of up to $50,000 for body corporate or a fine of up to $10,000 for an individual applies for a breach of these provisions [s 10(1)].

Order from Supreme Court

It is possible to apply to the Supreme Court for an order to allow the use, communication or publication of information [s 11]. This is likely to be necessary where a person wishes to use the information obtained from a surveillance device for civil proceedings. Applications are governed by Chapter 4 Part 6 of the Uniform Special Statutory Rules 2022 (SA). Filing fees will apply.