NATIONAL FAMILY LAW CONFERENCE
MELBOURNE 21 OCTOBER 2016
I’LL BE WATCHING YOU!
THE LATEST IN TRACKING AND LISTENING DEVICES
HIS HONOUR JUDGE JOSH WILSON
QC, LLM, PhD, PROFESSOR OF LAW DEAKIN UNIVERSITY, 
JUDGE OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA

Introduction
1.	With seamless ease, every day we use information derived from technology and social media. We send text messages and photographs from our mobile telephones, we send and receive voice messages, we use Skype, Whatsapp and other information from the internet. The faster new technology evolves, the more enthusiastically we seem to embrace it.
2.	Philosophically at least, the law should be in lockstep with societal change, ever able to keep pace with it, thereby ensuring the law’s relevance and ongoing respect. But how can that be achieved when the pace of technological and therefore societal change is so very rapid? Conversely, when such a huge portion of the population uses all forms of technology in all facets of their lives (business and domestic especially) why should the law reject the public’s chosen methods of communication and interaction. Put slightly differently, just as we interact by speaking to one another (and routinely give evidence about such conversations), why shouldn’t we be permitted to give evidence about our other interactions when those interactions are electronic?
My purpose in this paper
3.	In this paper I have endeavoured to do two things – 
a)	first, to trace the way the law has grappled with the admission of evidence derived from listening devices and from other forms of technology; and 
b)	second, to distil the law as it presently stands on this issue.
From humble beginnings
4.	In order to understand the technological environment of the year 2016, it is necessary to understand the environment in which early regulation of technological communications was set. In 1960 the parliament of the Commonwealth of Australia enacted legislation that prohibited, subject to certain exceptions, the interception of communications by telephone. At that time, the prevailing method of electronic communication was the landline telephone. Most aspects of the telephonic communications market across the Commonwealth of Australia were dominated by a government owned entity called the Australian Telecommunications Commission (abbreviated to Telecom). Overseas telecommunications were regulated by the Overseas Telecommunications Commission (abbreviated to OTC). They were publicly owned bodies with a statutory monopoly on the provision of domestic and overseas telecommunications services. For an excellent treatment of the historical genesis of this field I invite you to read the paper by Dr Roger Magnusson, Privacy, Surveillance and Interceptions in Australia’s Changing Telecommunications Environment.
5.	The Telephonic Communications (Interception) Act 1960 (Cth) prohibited the interception of communications passing over the telephone system, defined to mean the telephone system controlled by Telecom. Every single day, across millions of homes throughout the Commonwealth of Australia, Telecom installed a landline telephone to a person’s home along with one or more extension handsets. A person calling the home of another person could talk to one person on the main telephone and that conversation could be overheard by howsoever many others who used one or more extension handsets connected to the same main landline telephone. 
6.	Section 4(1) of the Telephonic Communications (Interception) Act contained the general prohibition against the interception of a communication over the telephone system. The act of interception consisted of listening to or recording by any means a conversation without the knowledge of the person making the communication.
7.	An exemption to that general prohibition was contained in s.4(2) of the Telephonic Communications (Interception) Act. It provided that in the circumstances covered in subparagraphs (a) and (b), no “interception” was engaged in. Section 4(2)(a) of the Telephonic Communications (Interception) Act addressed the situation of a person, being lawfully on premises to which the telephone service was provided, listening to or recording a communication passing over a telephone line that was part of that service.
8.	One of the first states in Australia to criminalise the use of listening devices was New South Wales. In 1969 the parliament of New South Wales enacted the Listening Devices Act 1969 (NSW). Similar legislation was passed by several Australian states and territories, as is recorded in the table attached to this paper. Under the Listening Devices Act 1969 (NSW), s.4 provided that a person was guilty of an offence if that person used a listening device to hear, record or listen to a private conversation. Under s.7, where a private conversation came to the knowledge of a person as a result of the use of a listening device used in contravention of s.4, evidence of that conversation was not to be given by that person in any civil or criminal proceeding.
9.	One of the first cases in the High Court on the subject of telephonic communications was an appeal from the Family Court of Australia in Miller v Miller (“Miller”). The case concerned (what was then called “custody”) parental responsibility for and time with a six-year-old boy. In the Family Court, an attempt to adduce evidence had been made, but the tender rejected, of conversations between the child and his mother by means of a telephone connected to the child’s father’s house where the child was then residing. The telephone service installed by the Commonwealth instrumentality had an extension handset within the house. Each of the father and the mother listened to the child’s conversation with the other parent using the extension handset. At first blush, evidence of the conversation was illegal for being in contravention of the Listening Devices Act.
10.	In the High Court, the father contended that inconsistency emerged within the meaning and operation of s.109 of the Commonwealth of Australia Constitution Act 1900 between the Commonwealth Telephonic Communications (Interception) Act and the State Listening Devices Act. That was said to have been for two reasons – 
a)	first, because the listening on an extension was lawful under the federal enactment yet unlawful under state legislation; and 
b)	second, it was said the federal legislation “covered the field” of telephonic interceptions. 
11.	In separate reasons, each member of the High Court agreed with Barwick CJ who held that the federal legislation was intended to express completely the law governing the interception of communications passing over the telephone system. In the result, the case was remitted to the Family Court to further hear the appeal.
12.	That was 1978. In that epoch there were no mobile telephones, there was no Skype nor was there internet. People telephoned one another by landline or they used a telegram. There were no faxes or even telexes then.
Bugs ‘n’ grasses
13.	For many years following the enactment of the Telephonic Communications (Interception) Act, the two main forms of electronic surveillance involved the use of listening devices (called “bugging”) and the use of telecommunications interceptions (called “tapping”). A helpful review of modern technology in electronic surveillance was given in 1996 by Simon Bronitt of the Australian National University in his paper Contemporary Comment – Electronic Surveillance and Informers: Infringing the Rights to Silence and Privacy.
14.	In 1975, under the auspices of the Telephonic Communications (Interception) Act, Telecom was established. Its primary function was to plan, establish, maintain and operate telecommunications services within Australia. The phrase “telecommunications service” was defined to mean a service for transmitting by means of electric or electromagnetic energy sounds, visual images, signals that communicate in forms other than sound or visual images or signals for the actuation or control of machinery or apparatus. Under s.86 of the Telephonic Communications (Interception) Act, the prohibited “interception” did not include a telephone system. 
15.	Plainly enough, the broader definition of telecommunications service and its relationship with interception indicated an intention of Parliament to forbid interception of communications beyond merely telephonic communications. Any communication transmitted by electric or electromagnetic energy, of sound, of visual images or of signals, was not to be intercepted.
16.	Therefore, by 1975 the interception of telephonic communications as well as the interception of sounds, visual images or signals was forbidden.
17.	In 1979, the Telephonic Communications (Interception) Act was repealed and it was replaced by the Telecommunications (Interception) Act 1979 (Cth). In s.6 of the new Telecommunications (Interception) Act, the definition of “interception” was significantly enlarged. The general prohibition was preserved in s.7 of the Telecommunications (Interception) Act. However, a person did not engage in conduct that constituted “interception” by being lawfully on premises or in a vessel, vehicle or aircraft in which a telecommunications service was provided by (relevantly) Telecom if that person listened to or recorded a communication passing over the telecommunication system of which that service formed part of a communication made to or from that service (s.6(2)(a) of the Telecommunications (Interception) Act) or one that was received by that service (s.6(2)(c) of the Telecommunications Act) or one received as a result of a technical defect or operator error (s.6(2)(c) of the Telecommunications (Interception) Act).
18.	The High Court was again called upon to determine constitutional aspects of the Telecommunications (Interception) Act in Hilton v Wells. The High Court held that the legislation was constitutionally valid.
The early decisions
19.	But a lasting degree of uncertainty pervaded the application of the 1979 legislation. On 30 June 1993, judgment on a complex question under the Telecommunications (Interception) Act was handed down by Justice Butler of the Family Court of Australia in In the Marriage of Parker & Williams (“Parker & Williams”). On the hearing of the mother’s application for custody, she attempted to adduce evidence of four telephone conversations between the father and the children. In the first conversation the mother listened through a handpiece without the knowledge of the participants in the conversation. In the second conversation, the mother listened through a handpiece and then recorded the conversation. In the third and fourth conversations, the father knew the mother was listening. At issue was the question whether the evidence of the four conversations should be rejected under Tasmania’s Listening Devices Act 1991 (almost identical in terms to its New South Wales counterpart) or whether the evidence of the conversations should be admitted under the federal Telecommunications (Interception) Act. 
20.	Butler J refused to admit the evidence of the recorded conversations but the evidence of the other conversations was admitted.
21.	Butler J held that there was no illegality where a party listened to a conversation that was on a “telecommunications system” as defined. On the facts of the case, the receiver and the extension phone used had been supplied by Telecom and were therefore part of a “telecommunications system”. Applying the observations of the High Court in Miller, the Telecommunications (Interception) Act covered the field of interception of telecommunications.
22.	Butler J held that the real question was whether the tape recording was an “interception”, especially whether or not, once the words of the speaker left the system (that is to say, the extension phone) they were capable of “interception”. Butler J held that once the communication left the system, it was no longer protected by the Telecommunications (Interception) Act because it was no longer capable of being intercepted within the system.
23.	Butler J held that the Listening Devices Act 1991 regulated the use of certain devices capable of being used for listening to private conversations, something different to the interception of communications within a telecommunications system. Butler J held that while the Telecommunications (Interception) Act covered the field, that enactment said nothing about interception before the sound reached or after it had left the telecommunications system.
24.	Butler J held that the recorded conversation was a 
“private conversation” to which the father and each child was a “party” and that the Panasonic tape recorder was a “listening device” within the meaning of Listening Devices Act 1991 so the recorded conversation was made in breach of the Listening Devices Act 1991 and was therefore inadmissible.
25.	As was apparent from Butler J’s decision, the emphasis for the purpose of admissibility under the Telecommunications (Interception) Act was on the “telecommunications system”. The handset and the extension phones were part of that system. If the communication left the telecommunications system, by being recorded, the protection conferred by the federal legislation evaporated.
26.	Pausing there, it may seem anomalous that a person was permitted to give viva voce evidence about a conversation overheard on a phone extension with all the flaws inherent in witness recollection of what was said, yet tape-recorded evidence of the same conversation, being indisputably more accurate, was inadmissible. It is difficult to find an acceptable rationale for the admission of evidence in viva voce form yet the rejection of evidence in tape-recorded form merely on the ground of the “telecommunications system”. After all, one would rightly think the recorded version of the same conversation was likely to be more accurate than was the usual more traditional who-said-what-to-whom style evidence a witness might offer, at times years after the event.
The mobile telephone
27.	And now, throw into the mix the modern method of recording events – the mobile telephone. Whether a recorded mobile telephone conversation was admissible was decided by Halligan JR in 
Byrne & Byrne (“Byrne”). There, the relevant telephone conversation was between the father and mother recorded on the father’s mobile telephone. The judicial registrar held that evidence of the conversation was in fact admissible. The following was the judicial registrar’s path of reasoning. 
28.	Halligan JR held that s.6(2) of the Telecommunications (Interception) Act applied to the use of a mobile telephone, notwithstanding that the language of the section was in terms of a fixed service provided to premises. Halligan JR held that there was no scope to apply the prohibition against the use of a recording as was set out in the Listening Devices Act 1984 (NSW). Halligan JR held that s.138 of the Commonwealth Evidence Act did not apply. Halligan JR held that the father’s use of his mobile telephone to record the conversation between him and the mother was permitted under s.6(2) of the Telecommunications (Interception) Act and was therefore lawful in the same way as the use of an extension handset by non-parties to the communication in Miller was permitted by the predecessor to s.6(2) of the Telecommunications (Interception) Act and was therefore lawful. 
29.	In the evolution of this jurisprudence, the decision in Byrne was important in that it made telecommunication interceptions relevant to mobile telephones, a device used every day by millions upon millions of Australians. Of primary importance was the finding that a mobile telephone, by definition unconnected to a landline, was a device to which s.6(2) of the Telecommunications (Interception) Act applied. Historically, that section had been expressed to apply to landlines and to extension phones of those landlines, and to a carrier such as Telecom that had enjoyed a statutory monopoly over the provision of telecommunications services. The decision in Byrne meant that s.6(2) of the Telecommunications (Interception) Act applied to any mobile telephone irrespective of the carrier, possibly even to an overseas telecommunications carrier. 
30.	It must be acknowledged that the decision of Halligan JR in Byrne attracts little in the way of precedent value.
31.	The conclusion that s.138 of the Evidence Act had no application must be understood against the finding that the Listening Devices Act did not apply. When compared to other decisions that have wrestled with the competition between the federal Telecommunications (Interception) Act and a state Listing Devices Act, one might be surprised by the finding that the Listening Devices Act did not apply.
32.	For whatever criticism may be made of that decision, the decision must be recognised for its undoubted endeavour to apply a peculiar set of legal principles to modern technology in the form of the mobile telephone.
Tape recordings and CDs
33.	Other later decisions continued to grapple with aspects of the admissibility of evidence gained from telephone conversations over landlines. The 2006 decision of Justice Dawe in Walter & Walter (“Walter”) is an illustration. There, the issue was whether tape recordings of conversations between the father and the mother and between the mother and the children when the telephone had not been hung up and which conversations were made without the knowledge of the mother were admissible.
34.	Dawe J held that the recordings were not interceptions and were within the exception of s.6(2) of the Telecommunications (Interception) Act. By that date the 2006 amendments to the Telecommunications (Interception) Act had been made, the effects of which altered the name of the legislation to the Telecommunications (Interception and Access) Act and made other more substantive alterations to that legislation. Dawe J further held that the decision in Miller was to be understood in the context of an “interception” and that the act of listening on an extension line fell within the exception of “an interception”. Dawe J held that s.6(2) of the Telecommunications (Interception and Access) Act permitted the recording of communications by the lawful recipient of communications, using equipment attached to that service.
35.	Importantly, Dawe J held that the husband’s recordings were not “interceptions” and therefore the federal legislation did not apply. Dawe J held that where the recording was not an interception, 
it was necessary to determine whether the Listening and Surveillance Devices Act 1972 (SA) applied. Dawe J held that the father’s mobile telephone was a “listening device” as defined in the South Australian legislation and that s.4 of the State Act prohibited the intentional use of a listening device to (among other things) record any private conversation without the consent (express or implied) of the parties to that conversation.
36.	Dawe J further held that s.7(1) provided that the prohibition in s.4 did not apply to the use of a listening device by a person to record a private conversation where that person was a party to the private conversation and the recording was made for the protection of the lawful interests of that person. Dawe J held that the conversations recorded by the father were not for the protection of the father’s lawful interests. Consequently, Dawe J held that the evidence in those conversations “was obtained in contravention of Australian law” for the purposes of s.138 of the Commonwealth Evidence Act.
37.	Dawe J held that the question under s.138 of the Evidence Act was whether the desirability of admitting the unlawful evidence outweighed the undesirability of rejecting it. In the end, Dawe J admitted part of the conversations.
38.	So, what do we take from that decision?
39.	There are several points, to my way of thinking. Dawe J (correctly, in my view) pointed out that interception, for the purposes of the federal legislation, had a specific meaning and that the lawful recipient of communications did not engage in “interception”. It all boiled down to lawfulness of the recipient’s receipt of the phone communications. Next, if a person recorded a conversation, the issue was the “lawful interest” of the person making the recording. Precisely what was a “lawful interest” was not stated.
40.	The decision in Walter was given ex tempore, without the benefit of careful consideration. Commendably, Dawe J gave consideration to complex issues without reserving judgment on the points.
41.	Two years elapsed before the situation presented itself again, on the latter occasion in 2008 in the Sydney context of the decision of Trench J in Latham & Latham (“Latham”), judgment in which was handed down on 23 October 2008.
42.	It is fair to say that the decision in Latham pioneered the modern jurisprudence on the topic. In itself, that may seem hard to believe because, on that calculation, the jurisprudence on the subject is currently only eight years of age in veneration. Let me explain how the decision in that case addressed whether a CD containing recordings of conversations between the children and the mother, made without the knowledge or consent of the mother, was admissible. 
43.	The trial judge found that the recordings were made in breach of the Listening Devices Act (NSW). They were, prima facie, illegal. However, the exception in s.5(3)(b)(i) applied because the father, as maker of the recordings, was a principal party to the conversation and the recording of the conversation was reasonably necessary for the protection of his lawful interests. It was held that the “lawful interests” were the father’s parental responsibilities for the children and his obligation to protect his children’s and his own interests. As an alternative conclusion, the trial judge held that s.138 of the Evidence Act rendered the CD recordings admissible.
44.	Whatever may be said of the logic of the conclusion that the father’s “lawful interests” equated to his parental responsibilities, this decision demonstrated the court’s preparedness to deviate from the strictures of the provisions of the Listening Devices Act. Moreover, the provisions of the Telecommunications (Interception and Access) Act were not even mentioned in debate nor in the court’s reasons for judgment. The main focus was on the apparent illegality of the recordings under the Listening Devices Act and also upon s.138 of the Evidence Act. That reasoning was subsequently applied in several cases, the most relevant issue being the application of s.138.
45.	A brazen litigant’s attempt to adduce in evidence a tape-recorded conversation with a family consultant was quickly dispatched by Watts J in Hazan & Elias. There, no issue of telephonic interception arose. The issue was whether the recording, made by the father without the consent of the family consultant, could be admitted into evidence. Watts J held that the recording could not be admitted into evidence. His Honour held that s.11C of the Family Law Act 1975 (Cth) did not allow the recording to be admitted and in any event, the section was expressed to be subject to any other provision of the Family Law Act or any other Act, most notably ss.69ZU, 69ZT and 62G. His Honour also held that the father’s secret recording contravened r.1.19 of the Family Law Rules 2004. His Honour further held that s.138 of the Evidence Act did not permit the evidence to be received as that section required a balance to be struck between the right of a person to bring material before the court as against the dangers of allowing people to engage in improper or illegal activities in obtaining evidentiary material.
46.	It may well be that underpinning such a harsh reaction to the receipt of the proposed evidence in that case was his Honour’s disdain for the secret recording of a session with a family consultant. One wonders whether such a harsh approach would have been exhibited towards the secret recording of a conversation between husband and wife on issues unconnected to children. It seems to me that his Honour was keen to express the court’s denunciation of the husband’s conduct in secretly recording the session with the family consultant.
47.	Since the enactment of the Telephonic Communications (Interception) Act of the 1960s, technology has evolved in leaps and bounds and continues to do so. When technology is so deeply enmeshed in our day-to-day existence, unsurprisingly its use in circumstances leading people to court will continue to come under scrutiny by judges.
Skype
48.	In 2011, Skype was examined by O’Reilly J in Kawada v Kawada. In that case, the issue was whether recorded Skype conversations between the husband and another was illegal under the Telecommunications (Interception and Access) Act. O’Reilly J held that the recordings and transcripts of them were not admissible. That was because s.7 of the Telecommunications (Interception and Access) Act imposed a prohibition on and subsequent use of certain information. The way s.63 of the Telecommunications (Interception and Access) Act excluded information was inconsistent with s.138 of the Evidence Act, especially the mandatory exclusion of what O’Reilly J called “ill gotten” evidence. O’Reilly J held that s.8 of the Evidence Act made it clear that s.63 prevailed over s.138 of the Evidence Act.
49.	So, while Skype may have been the technological instrument by which the recording was made, Kawada seemed to state that the discretionary considerations of s.138 were to be subordinated to the provisions of s.63 of the Telecommunications (Interception and Access) Act. To state the obvious, that was a backflip on the permissive approach exhibited by earlier decisions such as the one contained in Latham.
50.	Beyond the hand-held Panasonic device mentioned earlier in Parker & Williams, in 2014 the question for the Family Court of Australia was whether numerous incidents of violence recorded on a portable dictaphone without the mother’s consent were admissible. In Huffman v Gorman (“Huffman”) the Family Court was not concerned with interceptions over a telecommunications system so the provisions of the Telecommunications (Interception and Access) Act did not apply. But the provisions of the Listening Devices Act (NSW) did apply. That Act was in force until 1 August 2008 after which it was replaced by the Surveillance Devices Act 2007 (NSW). It was held that the recordings were private conversations under the Surveillance Devices Act and the recording of those private conversations was illegal.
Section 138 of the Evidence Act
51.	But the point came up for consideration a second time in the same litigation. On the second occasion the emphasis was on the risk to the children if the secretly recorded evidence was shut out. The Court held that it was required to balance the seriousness of the father’s conduct in secretly recording conversations against the potential for harm to the children if the recorded conversations were not admitted into evidence. The Court held that the desirability of admitting evidence of family violence in a hearing with the best interests of the children were paramount outweighed the undesirability of admitting evidence that was illegally obtained.
52.	Thus, s.138 considerations were paramount. One wonders whether the same considerations would apply if the litigation was not parenting and involved purely property matters, for example. In my view they would not. In that scenario, the evidence was illegally obtained and there was no valid s.138 consideration. 
53.	Another illustration of considerations relevant to s.138 of the Evidence Act being applied was Farmer & Killen (No 2). There, the Family Court rejected evidence that was recorded without the knowledge of one participant.
54.	The Listening Devices Act introduced the concept of the “lawful interests” of the party seeking to rely on the evidence. Specifically, under s.7, the relevant phrase was whether the recording was “reasonably necessary for the protection of the lawful interests” of the party that made the recording. At once it will be apparent that three considerations were enlivened – reasonable necessity, protection and lawful interests. No definition of any of those phrases was given.
55.	That led to some judicial creativity. The decision of a judge of my Court in Corby & Corby (“Corby”) illustrated the point. There, the mother made four audio recordings of conversations between her and the father without the father’s knowledge or approval. Those conversations were made in breach of the Surveillance Devices Act (Cth). It was held that the conversations were admissible, despite the fact that they contravened the legislation. It was held that the prohibition in s.7 against admissibility did not apply where in a private conversation a principal party used a listening device in circumstances where its use was “reasonably necessary for the protection of the lawful interests of that principle party”. The “lawful interests” were the mother’s right to protect her interest not to be intimidated or harassed by the father. In addition, it was held that s.138 permitted the receipt of the recorded evidence. 
56.	Some eyebrows may be legitimately raised by the notion of equating a “lawful interest” to a so-called “right” not to be intimidated or harassed. In most legal parlance, acts by a person in the nature of intimidation or harassment give rise to separate torts enforceable by injunction or damages. 
57.	Yet the line of reasoning in Corby met with approval by the Family Court in the recent decision in Janssen & Janssen (“Janssen”). There, McClelland J held that the four taped conversations ought to be admitted into evidence in view of the allegations that had been made. In fairness to his Honour, the reasons given were ex tempore, without detailed consideration and only the decision in Huffman was cited in his Honour’s ex tempore reasoning. Emphasis was placed on s.138 of the Evidence Act.
Quo Vadis?
58.	A fair interpretation of the foregoing reveals that most judges in the year 2016 regard three things as being important when considering how to approach the admissibility of transcripts of or CD versions of recorded conversations. The first is to ascertain precisely how the recorded conversation came into existence. If the recording came into existence in contravention of a state listening device enactment, the second consideration is to ascertain whether any of the exclusions apply. If they do not, the third issue is the application of s.138 of the Evidence Act. 
59.	One of the first tasks is ascertaining what device was used. If the recording was made on a handset from voices, the provisions of the Telecommunications (Interception and Access) Act are relevant and must be considered. If the recording was made from Skype, the provisions of the Telecommunications (Interception and Access) Act will not be relevant whereas s.138 of the Evidence Act will be very relevant depending on the circumstances in which the recording was made, especially whether all participants in the conversation knew of and approved of the recording of the conversation. On the other hand, if the relevant conversation was face-to-face yet taped, it will be relevant to know whether the recording was made secretly. If so, s.138 considerations apply assuming the recording was made in contravention of applicable state listening devices legislation.
60.	As appears above, a conversation may at first blush infringe the provisions of a state’s Listening Devices Act yet the recording may not be illegal by reason of the application of other provisions of that legislation. The decisions in Corby and Janssen point that out. Personally, in my view the reasoning in those decisions is fragile and is unlikely to survive detailed examination. That said, at the present time no appellate decision has overturned those decisions nor cast aside the logic in them and so they remain part of the jurisprudence in this arena.
61.	But even if evidence has been obtained illegally by the use of a listening device, a court nevertheless retains a global discretion to admit the evidence under s.138 of the Evidence Act. Unsurprisingly, that discretion has been exercised in favour of admitting illegally obtained evidence where evidence is relevant to parenting matters. It is difficult to imagine how similar considerations would exercise a court in property related matters, although fraudulent transfers of property might be one area in which s.138 of the Evidence Act is applied.
62.	The law is as stated at September 2016.
63.	May I acknowledge my gratitude for the enormous contribution given to the creation of this paper by Michael Coats, Manager, Library and Information Services (Victoria & Tasmania) Corporate Services, Federal Court of Australia. 

Listening devices legislation throughout the Commonwealth of Australia
Commonwealth
Surveillance Devices Act 2004
Australian Capital Territory
Listening Devices Act 1992
New South Wales
Surveillance Devices Act 2007
Northern Territory
Surveillance Devices Act
Queensland
There is no comparable legislation
South Australia
Surveillance Devices Act 2016
Tasmania
Listening Devices Act 1991
Victoria
Surveillance Devices Act 1999
Western Australia
Surveillance Devices Act 1998