LEGALISING RECORDINGS WHEN ASSAULT OR ABUSE IS SUSPECTED

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Background

According to the Surveillance Devices Act 1999 (Vic) which replaced the Listening Devices Act 1969 (Vic), 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 without the express knowledge and permission of all parties to that conversation.

A ‘listening device’, other than a hearing aid or similar device, is defined as any device capable of overhearing, recording, monitoring or listening to a what is said by a person.

A ‘private conversation’ is defined as a conversation that may reasonably be expected by the participating parties to be heard only by themselves. It does not include conversations made in circumstances where the parties can reasonably be expected to be overheard by others.

The problem

All abuse occurs when a perpetrator believes that his/her actions are ‘private’, unseen and unheard by others leading to a ‘s/he says, s/he says’ testimony in court. This is further exacerbated given that some victims, like the disabled, young children or the elderly, are often unable to speak for themselves in a coherent and cogent manner.

We are all aware of stories on shows like Current Affair etc where elder and disabled abuse in their own private rooms has been caught on CTV. Similarly, abuse against children by family members and others almost always happens in the secrecy of private settings.

Current legislation has not caught up with reality of technological advances which can now enable early intervention and even prevention of such heinous crimes.

What needs to happen

Legislation needs to change to allow a person who has reasonable cause to fear for his/her safety, or that of a family member, to be able to legally use readily available recording and surveillance devices including smartphones etc even in private settings and without the express knowledge or consent of all parties involved. Such recordings could then be used as evidence in court.

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