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On Privacy, Surveillance and Private Investigators

Folks, please put out of your mind any images of Poirot or Humphrey Bogart, or of nasty bully boys making innocent people’s lives miserable. Nothing can be further from the mostly pretty mundane truth. Here we look at honest people making inquiries in service of the lawful and morally reasonable interests of their employers, their clients and of their own selves or kin. Anyone who tries to undermine the interests of an innocent person ought to feel the full force of the law. In fact, some of this article is supportive of some legal restrictions and aims to close loopholes.


This article started its life as two sections of a larger piece that included also a large amount of material on the Equitable Duty of Confidentiality. After a crazy, ridiculous response from the Monash University Law Review sent after a mere two days' consideration, I edited the entire article and thought it would be good to narrow the focus and remove some material simply re-stating the existing law.


The dominant focus is the private investigation industry in Australia, however, it is equally applicable to the civilian employees of government bodies and to people acting in a self-help capacity. The purpose of such enquiries may be to enable civil litigation or to defend a charge or claim where evidence is lacking, to protect a lawful interest, to locate witnesses or debtors, to hold accountable or exonerate persons against whom a complaint has been made, to enable correctly informed decisions about alleged liabilities (such as insurance claims) or to enable the protection of a significant other who is especially vulnerable (such as a teenager). This article is all about how certain legislation impedes the work of civilians in gathering evidence for such purposes. The legislation in question is the Privacy Act 1988 (Cth) and the Surveillance Devices Act 1999 (Vic). Only issues of concern are addressed. In this article the word investigator encompasses all of the afore-mentioned categories of civilians making inquiries. The original research project included a comparative study of all the surveillance legislation across all Australian jurisdictions.

The Relevance and Character of the Private Investigation Industry

Private investigators are licensed to offer investigative services commercially,[1] but have no statutory powers. It is sometimes misunderstood that private investigators are in the habit of, or even permitted to, break certain laws. This is a misperception driven by the entertainment industry. On the contrary, the Australian Law Reform Commission published findings in 2008 on the question of privacy law reform.[2] Recommendation 44 presented proposed legal exceptions and exemptions for the private investigation industry. It gives a pithy description of the industry and its relevance to the civil law system.


This author has over 10 years’ full time equivalent experience in this field and has never been asked to break the law or harass anyone by any client who should know better. Private investigators are professionals who trade in obtaining information about persons and organisations, their activities, their whereabouts and their assets or interests. The industry is largely bifurcated between circumstance investigators (also known as factual investigators) and surveillance investigators. Circumstance investigators specialise in interviewing witnesses, discovery and analysis of documents and gathering various evidence at, and around, accident scenes. This role requires understanding of a wide range of laws as well as effective self-management, efficiency and professional conduct. Surveillance investigators typically perform covert video surveillance, both stationary and following subjects. There are also undercover and pretext-based operations, which may involve hidden audio or video devices. Surveillance skills are underestimated easily: the skill level required with subjects who are already watchful cannot be reached without prior experience on subjects who are not. The latter include spouses under marital suspicion and miscreant teenagers.


Questions are raised as to ethics with investigators accused of intimidating insurance claimants. To retain a licence, and a continued sub-contracting work flow, most investigators take great care to avoid breaching the law or raising complaints. Misbehaviour also can make a client liable for the same, and illegality may render evidence inadmissible at court. Clients therefore expect high standards and there is uncertainty and stress for investigators when the work flow declines. While some investigations occur for inadequate reasons and some operatives lack skill, once the subject’s candour is lost, no further evidence is available and the investigation is over. The ethics of investigating an alleged serious fraud or finding a missing person are much clearer.


Privacy Legislation

The Privacy Act 1988 (Cth) presents surprisingly few difficulties to the provision of, reporting on, and acting upon, evidence for investigations into matters of legitimate personal concern. The following analysis features few references due to the fact that there is little material available that is of assistance to this study. Although many entities offering investigative services are small businesses in terms of revenue, they are not exempt from the provisions of the Act as they are not small businesses within the meaning of the Act. This is because, as described by Section 6D(4)(c), they disclose ‘...personal information about another individual to anyone else for a benefit...’.

APP 5 – Notification of the Collection of Personal Information

Organisations are required under APP 5 to notify the individual concerned that collection of personal information is taking place and to give the organisation’s contact details, and the purpose of collection, among other things. An exemption arises in APP 5.1 where giving notice is impracticable. The Office of the Australian information Commissioner (OAIC)’s guidelines fortunately specify that this may include situations where the purpose of collection would be jeopardised by such notice, or where there would be a serious threat to the life, health or safety of an individual.[3] An organisation is nevertheless required to make notification as soon as it becomes practicable. An investigator, however, being external to the matters under enquiry, would seldom have a basis on which to make the judgment as to when it does become practicable. This is firstly because the client has no obligation to keep the investigator informed, and the investigator as a commercial service provider has reasons to not sow doubt or fear in the mind of a client as to the service they will get. Much more importantly the potential for a further investigation or for reprisals to be exacted against some interested party may never be eliminated fully.


As long as there is a plausible basis of doubt as to the practicability or safety of giving notice, the law of negligence places a duty of care on the investigator not to take that step. Conversely a court may see compliance with APP 5 as a legal duty which affords a defence at negligence. The exemption in APP 5.1 presents not merely an option to take no step, but an avenue by which notice may create liability at negligence if notice is given. Therefore it would assist if persons undertaking inquiries into any matter of serious and lawful concern are expressly exempt.

APP 6 – Use or Disclosure of Personal Information

To use or disclose information for purposes unrelated to the purpose for which they are provided is outlawed by APP 6, except where the individual concerned has given consent or another specific exception applies. As an initial observation, because it is the purpose of the provision of information that determines use and disclosure of information, where information is generated independently of the person it concerns, such as through any means of surveillance, then there is no purpose of provision by which to bind the holder or acquirer of the information. The nearest thing to what is envisaged by the legislation is the purpose of making the enquiry. APP 6 therefore does not affect the provision of surveillance investigation services and is only relevant to circumstance investigations. This is not true, however, of other Australian Privacy Principals as they are not dependent on the purpose of provision. Surveillance findings then could be used for any purpose in some jurisdictions, while they are restricted by surveillance devices legislation in other jurisdictions. (One example of the latter case is the unduly strict Surveillance Devices Act 1999 (Vic) section 11, as discussed below).


This issue also exists where private individuals are questioned as to what they have witnessed, or organisations not caught by the Privacy Act are questioned about what they know. In these circumstances the Privacy Act does not impose restrictions. To close this loophole without undue restriction, the reference to the purpose of provision should be accompanied by a restraint of the use of surveillance findings and other information to whatever purposes existed at the initiation of enquiries which were lawful, reasonable and proportional to the interests at stake.


In ‘JO’ and Comcare [2016],[4] the complainant, then an employee of the Department of Defence, had lodged a workers’ compensation claim in 2009 which was accepted in April 2014 and then closed in September 2014. Then, in February 2016, Comcare (a body overseeing workers’ compensation for federal government employees) divulged a range of information about the complainant to insurance company, Allianz, and the Department of Human Services, in a pilot program aimed at changing the way they managed workers’ compensation claims. There was no medical information or other sensitive information included in what was divulged. It was found that the disclosure was not done for the primary purpose of managing workers’ compensation claims. It was found that in making his claim the complainant did not consent to this implicitly, and that a secondary purpose was not available to Comcare.[5] This speaks to a conservative approach to the implication of consent and to limitations on the imputation of secondary purposes. It means that the provision of, or reporting on, evidence relating to any person who is not directly involved in a matter to the extent that they should expect to be mentioned in an investigation, is likely to be a breach of APP 6. Therefore a simple and long established practice engaged in by investigators, who see it as an unavoidable necessity when operating overtly and in good faith, places them and many witnesses who speak on behalf of organisations, in an untenable situation.


Secondary Purposes

APP 6.2 permits use or disclosure for purposes for which the individual would reasonably expect the holder of information to have. A secondary purpose for use or disclosure is permitted when a purpose arises that is related to the primary purpose (or the purpose for which the information was provided). As to what is an acceptably close relationship, in ‘IR’ and NRMA it was stated that:


The APP guidelines provide that ‘there must be more than a tenuous link.... [T]he act or practice of disclosure must not only be for a related secondary purpose, but must also be within the reasonable expectations of the individual whose information is being disclosed. The APP guidelines provide that: The ‘reasonably expects’ test is an objective one that has regard to what a reasonable person, who is properly informed, would expect in the circumstances.[6]


This can be seen as the principle of implied consent in disguise, but the statute appears to prevent elastic interpretation. It is possible that the statute permits greater latitude in the use and disclosure of information than a simple principle of implied consent might, however this would depend heavily on how a court views a given circumstance and the foresight of the reasonable person in that circumstance. It may be that assessing a plausible connection between purposes would liberate a court from considering what is fair to expect of a human actor.


Evidence from work colleagues about each other is needed frequently in investigations. APP 6.2 allows an employer to disclose information pertaining to a person who has made a claim against the employer. However, whether it allows discussion of a miscreant employee and other people involved in a matter would revolve around the question of whether employees called upon as witnesses are speaking in their personal capacity, or as agents of the employer. Independent investigations do not occur frequently in any one workplace, so it may be unreasonable to draw a relationship between the provision of personal information for day-to-day work purposes and its use for investigating an insurance matter or a breach of law or workplace rules. Therefore it would be rare that an investigator could use a secondary purpose defence. Consequently investigators who are engaged regularly to assist the ascertainment of insurance claims and workplace matters may, in the day to day conduct of inquiries with independent, disinterested parties, be procuring breaches of APP 6 without any direct reason to believe so.


Evidence for Court and Other Concerns

This problem does not extend to investigations of matters going to court or proposed for court. APP 6.2 allows an exception for a general permitted situation. One such situation is described in the OAIC guidelines as when information is required: relation to existing or anticipated legal proceedings in a court or tribunal. Where legal proceedings have not yet commenced, [the exception applies when there is]... a real possibility of legal proceedings, for example where professional legal advice is sought about commencing legal proceedings.[7]



However this advisory note does not extend to the inclusion of insurance claims, business related matters or personal matters, however important they are to the client. The fact that an investigation concerns something of a serious nature that might lead one to obtain legal advice pending the outcome is a very different situation from that anticipated in the legislation. Investigations into such matters, are greatly impeded by the Privacy Act. While persons making decisions on insurance claims and suchlike will tend to bear in mind the outcome of a legal challenge to their decisions, not all matters end up in court. However it is a matter of principle that the law should not be lax and deem a person who has acted reasonably as an offender merely because they are unlikely to feel the force of a legal penalty.


Surveillance Devices Legislation

The State and Territory legislation governing the use of surveillance technologies is varied from one jurisdiction to the next, but there are underlying concepts which are in common in all jurisdictions. Each State and Territory has an Act addressing the use of listening devices at least, with most also addressing the use of optical devices. Although here we focus on the law in the State of Victoria, governed by the Surveillance Devices Act 1999 (Vic), due to a few striking similarities between the various Acts cases dealing with some underlying concepts are applicable across all of the nation. The Victorian legislation deals with listening, optical and tracking devices and their use by civilians. The following analysis does not feature many references due to the fact that there is little available that is of assistance to this study.


Listening and Optical Devices

By way of introduction, section 6 provides that a person cannot install, use or maintain a listening device to listen to or record a private conversation unless they are a party to it. Section 7 is worded in a near-identical manner to section 6 but deals with optical surveillance devices and private activities and provides an express exception for the monitoring or recording of activities held outdoors. It is an offence to breach either provision, attracting a sentence of up to two years or a fine.


Definition of Private Conversation

The definition of a private conversation is given in section 3 as follows:


private conversation means a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else;


The following discussion applies equally to private activities and the use of optical devices as the definition is very closely worded. The only distinction is that an additional exception exists for activities carried on outdoors.


The definition of a private conversation in the Victorian Act was dealt with by the Federal Court in Ponzio v Multiplex[8] in which a conversation between two men was recorded by a third with the consent of only one party to the conversation. The court found that the reference to ‘the parties’ in Section 5 requires that all parties intend it to be private, not just some. Due to similarity in the wording of legislation, this rule is applicable to most jurisdictions, but the legislation of some jurisdictions deems a conversation or activity private if even just one party is found to have intended it to be private. A difficulty with this judgment is that it hinges on a subjective standard based on the actual intentions of the parties, rather than on the objective standard of what the circumstances imply about their intentions. It is the latter that is required by the legislative definition.


It may be argued in support of the court’s decision that the fact of making a recording is part of the circumstances, but this is not a circumstance knowable to anyone besides the party performing it or any other parties arranging it. Those who have not conspired or consented have no means of knowing and therefore it is not fair on them to incorporate the fact of recording into the circumstances and imply that their conversation does not deserve protection.


By implication this criticism of Ponzio finds support in Thomas v Nash.[9] In that matter a question was addressed as to whether the freedom of the parties to report on a conversation verbally to others eliminates privacy. It was ruled that:


A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, “private” is used not in the sense of “secret” or “confidential”, but in the sense of “not public”. A telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it. On the other hand, a telephone conversation on talkback radio is not a private conversation.[10]


Thus ‘private conversation’ is given a broad meaning. However, in criticism of both Ponzio and Thomas, there is judicial attention given to the intentions of parties to maintain privacy, as opposed to the objective implications of circumstances. This is at odds with all other authorities but as these are recent cases they may represent a nascent trend in giving weight to the parties’ intentions over the circumstances, contrary to the objective standard imposed by all the legislation. This is not only an incorrect apprehension of statutory semantics, but allows a conversation or activity to be rendered non-private in most jurisdictions whenever just one party unilaterally makes a recording or authorises monitoring. This then allows publication or communication at will, contrary to the manifest intentions underlying the legislation of all jurisdictions. This perspective renders inoperative further statutory prohibitions on publicising or communicating[11] information obtained by means of a surveillance device, as noted below. Both cases, but Ponzio in a much more direct fashion, represent a transfiguration in the statute, which is ultra vires.


In Victoria, another judgment on this point is the earlier, Victorian Supreme Court case of R v Storey,[12] which was followed in the Northern Territory in R v East.[13] Storey concerned predecessor legislation which was nevertheless identically worded on this point, which may mitigate the error in Ponzio of not citing it. In Storey a recording was made of a private conversation between three people, two of whom were conspiring to commit murder and one of whom, the wife of one conspirator, made the recording and intended to pass it to the police. The admission of the recording in evidence was on the basis that the person making the recording was a party to the conversation, not on the basis of whether or not it was private. It was found further that the context, rather than the inner intentions of each party was the key factor in determining whether a conversation is private. Therefore it is not the parties’ actual inward intentions that are of interest, but whether their choice of circumstances in which to hold the conversation or activity implies an intention to maintain privacy. On this perspective the conversation recorded in Ponzio would have been a private conversation; but until this conflict is addressed at court, a litigant wanting a secret recording admitted in evidence under the Victorian legislation is well advised to go to the Federal Courts and a litigant wanting it excluded should go to the Victorian Courts instead.


Prohibition on Communicating Surveillance Results

Section 11 provides that it is unlawful to communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening, video or tracking device. This applies whether or not the person making communication was a party. A breach of this provision is an offence punishable by up to two years’ imprisonment or a fine.


This law operates in a manner similar to the equitable duty of confidentiality as critiqued above. It is suggested that parts of that discussion related to surreptitiously obtained information should be read together with this discussion. In particular, the effect of the rule for surreptitiously obtained information that appears to circumvent any need for a quality of confidence should be considered as it is very much corollary to the effect of Section 11.


Exceptions are listed in Sub-Section 2 of Section 11, including:

  • Where communication or publication is no more than reasonably necessary i) for protection of the public interest or ii) the lawful interests of the person making it,

  • In the course of legal or disciplinary proceedings, or

  • Communication to police.


The Parliamentary intention in prohibiting publication and communication is explained in the parliamentary speech of the then Victorian Attorney General in 1999 as follows:


...for example, if I make a video of the birthday party of a family member it would be an offence under the act if I then put it on national television without the consent of the family member. This is an important step as many celebrities have been deeply hurt and humiliated by persons involved in producing videos and then passing them on or publishing them.[14]


The Minister provided an example of a video that is trivial and innocuous, which may not be thought of by its subjects as especially private, and involving people who apparently have no untoward intentions with each other, then followed by publication of the most extreme nature. He justified this rule by reference to a very small class of persons whose reasonable expectations of privacy are often flagrantly violated for profit. While these intrusions are reprehensible and present a need for some form of security, the degree of security afforded A-list celebrities by this legislation is not needed by others, recordings of whom, or knowledge of whose movements, attracts neither remuneration nor kudos. A person may take a video of friends at a gathering and post it on their Facebook timeline and may restrict its visibility to friends only. Even more innocuously, the video at the birthday party may be handed to someone’s ailing grandparents who could not get there it. It is truly absurd that this legislation criminalises acts which most regard as legitimate and innocuous social activities only if every person in the video gives their consent to be publicised can such actions be defended. It is more normal for those offended to voice their concerns privately rather than to involve civil authorities. It is also an absurdity that the same information quite lawfully can be publicised without any surveillance device recording. The number of attempts it took to blow out the birthday cake candles cannot be divulged by a person possessing the video recording, while those who recount from memory are free to speak.


Exception – Legal and Disciplinary Proceedings

The exception for evidence obtained in the course of legal or disciplinary proceedings is of interest to those with concerns of an especially serious nature. It relates to asserting a right at law or defending either a legal charge or some other ‘disciplinary’ allegation. The Minister’s Parliamentary speech references this very briefly, ‘...the bill provides protection for persons who publish as part of legal or disciplinary proceedings...’[15] This is of no real assistance. The words, ‘as part of’ allude to an intrinsic relationship to concurrent proceedings, rather than merely where proceedings might be issued in the future. A disciplinary proceeding is defined in Section 3 as those occurring under an Act of any Parliament in Australia, which evokes a notion of a process leading potentially to the imposition of punishment by a source of government authority. This could describe action taken by a government body against an agent (whether contractor or not). Butterworth’s defines legal proceedings as ‘An action commenced in a court, whether between parties or not, including an appeal...’[16] Therefore to avail this limb of the exception, a matter must be before a court already in order for a surveillance device recording to be communicated in any way.


Importantly, the exception does not admit the seeking of legal advice prior to commencing court or disciplinary action. Neither do they cover the managerial or administrative processes that are necessary in determining whether the content of media from a surveillance device warrants that one proceed upon a path toward court or disciplinary action. For those contemplating legal action and whether to bear the expense of legal consultations this is an awkward law that creates an artificial restraint. An investigator may be engaged to conduct surveillance on a person suspected of a fraud of some kind – such as an employee breaching their employer’s confidentiality to a competitor. The investigator may find ways of completing the surveillance lawfully, but is disbarred from telling his/her client whether or not evidence was found to support their suspicion, let alone passing on the media recordings. The client therefore cannot lawfully determine whether a basis exists to proceed with bringing the matter to court. This conflicts heavily with the long established common practice of conducting surveillance on insurance claimants who allege to be suffering a debilitating injury. Another artificial situation created by this legislation is that surveillance results cannot be communicated in the context of Alternative Dispute Resolution (ADR) unless the ADR proceeding was ordered by a court.


Other Exceptions – Lawful Interests, Communication to Police and Public Interest

Further exceptions that a civilian may rely on are paragraph (b)(i) where it is in the public interest to communicate, paragraph (b)(ii) where an individual’s own lawful interests are concerned, and paragraph (e) where a matter is reported to the police.


The inclusion of an exception for ‘the lawful interests of the person making it’ should not be read similarly to references to ‘lawful interests’ in other jurisdictions. This is because it is only the person who has the interest who is permitted by the Victorian legislation to communicate or publish, and not a person acting on their behalf, informing them of what has been observed or recorded. This then is only available to allow a person to act on their own behalf, and is unhelpful to investigators in Victoria. There is, however, no restriction on reporting a crime to the police when observed with a surveillance device. While this assists all members of the public in the fulfilment of a legal duty to report crimes, it is unhelpful to investigators who need payment for work done on behalf of their clients and whose work is mostly relevant to civil law and private matters.


The exception ‘in the public interest’ was addressed in Rezaiee v Australian Broadcasting Corporation[17] where investigative journalism included a covert recording related to organised people smuggling. In this instance it was seen as in the interests of the public at large to be informed of the specific events that were reported on in the media. In short the public was seen as deserving to know. The court expressly declined to look into whether the publication was no more than reasonably necessary. In spite of a resemblance, the court in Rezaiee did not venture into assessing section 11 in the manner of the equitable duty and no likeness was drawn between the two, so we have no basis on which to propose that the public interest defence could work the same way in both areas of law. Furthermore, the court in Rezaiee also dealt with the concept of public interest in regard to a statutory rule of civil procedure very differently, obviously seeing no connection between the two usages of the same terminology.[18] It can be noted, however, that had this been an action at equity then the public interest defence would have had the same result.


It should be noted that the matter in question was an issue of international crime, which in importance goes well beyond the type of matters which civilians normally investigate. If the standard is whether the matter in question is of sufficient importance to the public at large to warrant communication, then most topics of investigation for civilian investigators will fail the test. Whether an individual is defrauding their insurer, a person is cheating their spouse, a plaintiff at tort is exaggerating their pain and suffering, or a teenager is keeping nefarious company, a relative refusing contact, or a bankrupt has real estate assets squirreled away, is irrelevant to the public at large.


The only other cases on this topic relate to the Western Australian Act which has a very different approach to the notion of public interest, delineating what it calls ‘public interest investigations’ as an entirely separate concept at law from investigations with any other purpose. While it is invalid to extrapolate decisions on such a peculiarly applicable definition to form a nationally consistent principle, there are points that deserve recognition and which are not so rooted in the wording of the statute as to make them unavailable for consideration here. In the case of Re Surveillance Devices Act 1998; Ex Parte Tcn Channel Nine Pty Ltd[19] it was noted that:


There is no requirement of "seriousness" in ss 26 and s 27 [of the Western Australian legislation,][20] although it is not difficult to see that the relative gravity of the matter might influence the decision whether it is in the public interest.[21]


This observation is true also of the Victorian statute. Therefore while a genuinely trivial matter may not pass the test, it need not be portentous in the sense that Rezaiee was for a recording to be communicated. It is likely then that a conversation consisting of a series of innocuous comedic remarks has no bearing on the public interest, while a political policy discussion does.


The approach taken in Channel Seven Perth v S[22] by McLure JA was to weigh competing public interests against each other. Again this reasoning reflects one limb of the public interest defence to the equitable duty of confidentiality in terms of balancing interests, but not in terms of the facts having any bearing on the public’s affairs. The issue in question was that the employee had been terminated due to the manager’s perception that her pregnancy created an occupational health and safety risk for her when walking up and down stairs at work, thereby creating a liability for the company. The appellant’s current affairs program had the employee later conduct a meeting with the manager using a hidden camera. The employee and manager in this case were not important people whose affairs may affect public life. It was stated by the Court of Appeal:


...the primary Judge accepted that there is a public interest in broadcasting the recorded interview and a public interest in maintaining the privacy of the general manager by not broadcasting the interview [which concerned legal issues in the termination of an employee].... Weighing the competing public interests he concluded he was not satisfied that the publication should be made to protect or further the public interest.[23]


The idea of the public having an interest therefore does not require facts of the grand scale observed in Rezaiee. The relevance to the public in Channel Seven Perth was fairly oblique and rooted in the interpretation of, or compliance with two bodies of law. The outcome is likely to have been the same if the material in question concerned the usual fodder of current affairs stories such as crimes, serious torts, insurance, banking or utility contracts, work related injuries or dishonest tradesmen. This decision then finds support in its alignment with well established practice.


It appears then that ‘public interest’ can be read broadly, such that it is not the direct implications of an individual case that are to be considered, but rather whether it is socially beneficial or harmful that publication or communication can be carried out in all cases of the same kind. The foregoing cases all concern publication in the media, and so, as with the equitable duty of confidentiality, we are faced with uncertainty as to whether judicial authority concerning such will translate into cases that do not concern publication to the world at large, regardless how we interpret the defence.


Assuming that the scale of publication is not an issue we may consider that it is in the public interest to allow communication of a recording of a conversation relevant to an egregious act of negligence, whereas communicating a film of a mere freak accident is not. Furthermore it can be argued that because the insurance industry is important to economic stability and it needs suspect claims investigated, and fraudsters made examples, investigations into claims actually are in support of the economic and sociological wellbeing of the nation. Again, it is good for the wellbeing of society that estranged family members be located (unless they have escaped from abuse), and bankrupts’ secret assets be identified, (unless they are themselves victims of fraud).


There is, however, no authority directly confirming this interpretation, which is why legislative reform is warranted. It is recommended to amend the Victorian Act stating that it is an offence to communicate a record or recording made in breach of sections 6, 7, or 8, or to make it available to the world at large, where anyone depicted or named plausibly is subject to risk of harm, or such as would cause severe embarrassment to a reasonable person, or such as merely to add to trivia known about a public figure, unless such publication is by means of a document necessary to the administration of justice such as a court report.





1. In Victoria, private investigators are licensed by Victoria Police, Licensing and Regulation Division, subject to the Private Security Act 2004 (Vic). Go to


2. Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (ALRC Report 108), (ALRC, 12 August 2008), sourced online at on 6 June 2016.


3. Office of the Australian Information Commissioner, Australian Privacy Principles Guidelines: Privacy Act 1988, (Australian Government, Canberra, 2015), [5.7].


4. 'JO’ and Comcare [2016] AIComr 64.


5. ‘JO,’ above n97, [34].


6. ‘IR’ and NRMA Insurance, Insurance Australia Limited [2016] AICmnr 34, [53], [57]-[58], citing OAIC, above n97, [6.24]-[6.25].


7. OAIC, above n96, [C.26].


8. Ponzio v Multiplex Limited [2005] FCA 1410 [91].


9. Thomas & Anor v Nash [2010] SASC 153.


10. Thomas, above n102, [37]-[38].


11. See discussion on Section 11, below.


12. R v Storey, Ivan Leonard [Ruling] [1994] VicSC 776.


13. R v East [2003] NTSC 42.


14. VicHansard, Surveillance Devices Bill, Assembly, Hulls, 22 April 1999, p 547.


15. VicHansard, above n107, p550.


16. Butterworth’s Concise Australian Legal Dictionary, (3rd ed, Lexis Nexis Butterworth’s, Australia, 2004), 345.


17. Rezaiee v Australian Broadcasting Corporation (No2) [2014] NSWSC 1656.


18. The Uniform Civil Procedure Rules 2005, rule 21.7(1) brings the public interest into consideration as a justification for breaching the privacy of a litigant by using discovered documents for a purpose other than litigation. Here it is treated as a question as to whether the public can benefit from documents of the same type being used in the same manner in future instances.


19. Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246.


20. As also in the Victorian Act.


21. TCN Channel Nine, above n 112, [10].


22. Channel Seven Perth Pty Ltd v "S" (A Company) [2007] WASCA 122.


23. Channel Seven Perth, above n115, [14]-[15].

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