Privacy, surveillance, and recording rules

Visual photography in Australia is regulated through a patchwork: surveillance device legislation at the state and territory level, defamation and breach of confidence at common law, the criminal offences targeting children and intimate imagery, and the Privacy Act 1988 (Cth) for organisations above the small-business threshold.

Surveillance device statutes

Surveillance device legislation in each State and Territory regulates the use of listening, optical, tracking and data surveillance devices. The detail varies, but optical (camera) coverage is typically narrower than audio coverage. Examples (always check the current consolidated form):

• Surveillance Devices Act 2007 (NSW)
• Surveillance Devices Act 1999 (Vic)
• Surveillance Devices Act 1998 (WA)
• Listening Devices Act 1991 (Tas)
• Listening Devices Act 1992 (ACT)

Privacy Act 1988 (Cth)

The Privacy Act 1988 (Cth) and the Australian Privacy Principles regulate how 'APP entities' collect, use and disclose 'personal information'. Section 6 defines APP entities to include Commonwealth agencies and organisations with annual turnover above A$3 million, with specific inclusions for health service providers, credit providers, and others. Most independent photographers and small studios fall below the threshold and are not 'APP entities' for the purposes of the Act.

Recording a private conversation incidentally

Most state listening device statutes prohibit recording a private conversation without the consent of all parties (in some States, at least one party). Even if a photograph is the primary purpose, video with audio can engage these rules.