Appendix B: Surveillance

Surveillance Devices Act 1999 (Vic)

In Victoria under the Surveillance Devices Act 1999 (Vic) (the Act) it is generally lawful for a party to a private conversation to record the conversation without the consent of the other person(s) to the conversation. A private conversation is defined as being carried on in circumstances that may reasonably be taken to indicate that the persons to it desire to be heard only by themselves but does not include a conversation where persons ought reasonably to expect it may be overheard. It is, however, unlawful under the Act for a person to share or publish a recording of a private conversation unless:

• they had the consent (express or implied) of all persons to the conversation;
• it is in the public interest;
• it is for the protection of the lawful interests of the person making it; or
• for use in legal proceedings or disciplinary proceedings.

Therefore, provided the student is not sharing or publishing recordings, it is likely lawful for the student to be recording conversations to which they are a party.

It is an offence for a person to install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which they are not a party, without the permission of each party to the conversation. We consider it unlikely the student’s mother could be considered a party to conversations occurring in the classroom when the mother was not present. However, if the recording was occurring within the classroom setting, we don’t consider this likely to be a ‘private conversation’ such that it may not be an offence under the Act. Our advice would differ if the recordings were being made in 1:1 conversations held in a closed setting between the student and staff.

That said, if the student does not have sufficient maturity to understand the nature and effect of his decision to record private conversations, or if the student was unaware he was wearing a listening device, the mother may be committing an offence under the Act.If the mother was found guilty, there can be serious consequences including imprisonment and/or a fine.