NSW Expands Surveillance Powers and Introduces Public Interest Protections

By Cameron Abbott, Damien Timms and Maryam Ahmed (Graduate, Melbourne)

The NSW Government has announced legislative reforms that will enhance the surveillance powers of investigative agencies including NSW’s Independent Commission Against Corruption (ICAC).

Currently, under the Surveillance Devices Act 2007 (NSW) (the Act), it is an offence to use a listening device (such as a phone) to record a private conversation. It is also an offence for a person to publish or communicate a private conversation that has come to their knowledge unlawfully, such as through the unlawful use of a listening device.

In 2023, the ICAC sought a temporary exemption allowing it to use such unlawful recordings in investigations. This exemption, originally due to expire in 2026, will now be permanently embedded in legislation and extended to other statutory investigative bodies.

Additionally, the Act will introduce a public interest exception, where individuals or organisations who come into possession of unlawfully made recordings (without having been involved in their creation), can share such material with authorities without fear of prosecution, provided they do so promptly. There is currently no protection in place for individuals acting in the public interest to report criminal activity or corruption.

NSW Attorney-General Michael Daley stated that these reforms are designed to “aid investigations into suspected criminal or corrupt conduct while maintaining important privacy considerations.” While the reforms clearly do widen the scope of surveillance powers by government bodies, it is important to remember that the default position is that it remains an offence to use a listening device (such as a phone) to record a private conversation.