Do You Know How Surveillance Can Be Used Effectively and Legally Against Trespassers?

October 21, 2019

Following our recent bulletin “Do you know your rights if animal activists or trespassers enter your property”, this bulletin provides more detailed information about using surveillance equipment and recording devices on your property. There are several issues you need to consider before installing surveillance equipment or using an electronic device to record interactions with trespassers. The laws also vary considerably from state to state. It is important that you obtain advice about the use of recording devices and surveillance equipment in your own state and territory, otherwise, you may be committing a criminal offence.

Audio Recordings

In Queensland, it is an offence to audio record a private conversation which the person recording is not a part of (for example, by installing recording devices to record private conversations between others when you are not present). It is otherwise legal for a person to record a conversation which they are involved in.

In New South Wales, generally, it is an offence to record a private conversation even if you are a party to that conversation. There are only very limited circumstances in which recording a conversation will be These include circumstances where the recording was required to protect your interests however, it is unlikely to extend to your legal interest in your property.

Video Surveillance

You can video record people without informing them that you are doing so. This includes installing surveillance equipment on your property which may capture trespassers.

However, you should not install surveillance equipment or record people engaged in private acts (for example, in bedrooms and bathrooms). As highlighted above, in NSW if it is at a workplace extra precautions need to be taken.

The Queensland legislation does not regulate the use of surveillance cameras or video recording.

In New South Wales it is generally not an offence to install surveillance devices on your property. It is important to consider that if you are installing surveillance devices in a workplace, (eg on your farm ) and you have employees, the camera must be visible and signage in place notifying them they may be under surveillance.

Although the use of video surveillance or recording is not required to establish trespass, it may act as a strong deterrent to potential trespassers and provide evidence in proving trespass and any damage caused by those trespassing.

Provided it is practicable and safe to do so, you should video record all interactions with trespassers, especially when advising them that:

1. 1. they are unlawfully on the property;
   2. you revoke the trespassers’ right to be on the property; and
   3. you require them to immediately remove themselves and all of their personal property from the property.

Landowners should make a note of the time, date and description of the trespassers and any vehicles present. This may include descriptions of clothing, gender, appearance and vehicle registrations. Cameras can also be used to capture photographs and video recordings.  This information may assist Police in identifying and prosecuting offenders.

Publishing or Distributing audio or video recordings

Queensland and New South Wales businesses with a turnover of less than $3 million annually

You can publish and distribute photographs and video footage of trespassers, however:

1. 1. You must take the photograph or footage yourself, or have the express permission of the person who took the photograph or footage to publish it.
   2. Do not use defamatory language about the trespassers when recording them, as this recording (and your comments) may become public and you risk trespasser suing you for defamation.
   3. Do not use inflammatory or descriptive captions of the footage or photographs when publishing, particularly if you are posting on social media.
   4. You risk trespassers pursuing you for defamation if those captions or comments are found not to be true.
   5. Make sure captions, comments or responses to others commenting on the photograph or footage are kept non-descriptive, neutral and as factual as possible.

If in doubt, publish or post the footage or photographs without any commentary or captions at all.

Businesses with a turnover of more than $3 million annually (Australia wide)

In addition to Queensland or NSW legislation governing recording and publishing conversations and video footage, businesses with annual turnover in excess of $3 million are also subject to the requirements of the Privacy Act 1988 (Cth) which governs how information may be used. These businesses are subject to a more stringent regulatory regime and should obtain advice specific to their circumstances before utilising surveillance devices on their properties.

In particular, publishing high definition photographs or video footage which clearly capture a trespasser’s face or vehicle registration number (or other features which identify an individual) may be restricted by the Act.

What if the trespasser is filming you?

As the landholder of private property, you can set rules and impose restrictions which prohibit filming.

However, a person cannot be charged for noncompliance with these rules and your rights are generally limited to asking the person to leave your property. Landowners should bear in mind the overriding goal of farm trespassers, which is often to excite public interest rather than short-term disruption to agricultural enterprises. This should dictate how you act when confronted by trespassers recording their interactions with you.  Landowners should strive to maintain a reasonable and polite demeanour and avoid aggravating the situation so as not to play into the trespassers’ hands.

A landowner who confiscates or damages a trespassers’ video equipment may be liable to compensate them for the value of the loss caused.

Unfortunately, previous cases involving unauthorised recordings on agricultural properties indicate that a landowner is largely powerless to prevent the publication or distribution of any footage recorded on their property by others. Landowners confronted by recording devices are advised to ask the trespasser to leave and await police intervention while remaining as calm as possible.