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The Surveillance Devices Act 2007 (NSW) (‘the Act’) regulates the installation, use, maintenance and retrieval of surveillance devices in NSW.

A ‘surveillance device’ means a data surveillance device, a listening device, an optical surveillance device, or a tracking device.

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There is no case law or commentary about what the court considers a ‘lawful purpose’ to be.

In the absence of any direct guidance, the meaning of a ‘lawful purpose’ could be taken to be similar to the meaning of a ‘lawful interests’ (as used in relation to an exception where a listening device may be used) – i.e.

Common examples: handheld devices such as mobile phones and tablets with a camera, cameras, binoculars, ‘spy cameras’.

Generally, if the installation, use or maintenance of an optical surveillance device it would be an offence to knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity.

Note: This is similar to section 11 of the Act in relation to the sharing of private conversations of recordings of activities.

If a person has obtained information from the use of a data surveillance device in contravention of section 10 of this Act, it is an offence to share that information. Most relevantly in this context, communication or publication is allowed if it is no more than is reasonably necessary in connection with an imminent threat of serious violence to persons or of substantial damage to property.

Whilst acknowledging that each woman's experience is unique and individual to her circumstances, for consistency, these guides will refer to women who are experiencing, or who have experienced, domestic violence as 'victims' of domestic violence.

While domestic violence can happen in many circumstances (including in non-heterosexual relationships), in the vast majority of reported domestic violence cases men are the perpetrators and women the victims.

A ‘listening device’ means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.

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