Internal Code: MAS1653
Basil and his wife Connie are the directors of a WA company, Electronic Installations Pty Ltd (“the Company”),which runs a business supplying and installing electronic equipment. Basil runs the business; Connie is a WA state politician. Basil believes that Connie is having an affair with the leader of the state opposition party. Connie has very recently, and surprisingly, ‘crossed the floor’ to vote with the opposition, thus scuttling the government’s plans to introduce new extended trading hours in Western Australia.
Basil is very upset and approaches his journalist friend, Amber, who works on a sensationalist ‘news’ show on a commercial TV channel, and tells her of his suspicions. They agree to try and get proof of the affair, so that they can ‘go public’ with it.
Connie has asked Basil to have the Company put an extra hidden camera in the staff courtyard at her electoral office (there are already cameras in the reception and some rooms), because she suspects her secretary is smoking marijuana there when she is not in the office, and she wants to catch him in the act. Basil doesn’t tell Connie, but while he is in her office, he also attaches a listening device to her mobile phone, which she had left there. There is a notice posted on a wall in the reception of the office saying ‘These premises are under video surveillance’; it has been
there since the original cameras were installed. Connie only intends turning on the courtyard video when she is out of the office.
The courtyard is accessed off the staff room by large sliding glass doors, which are often open. There are only 3 staff in all (including Connie and her secretary), and they go in and out of the staff room, and the courtyard, as they need to throughout the day. The courtyard is open air and there are 2nd storey windows overlooking it. There is also one ground floor window looking into the courtyard, but there is very dense shrubbery in front of that window, so that it would be hard to see anything clearly in the courtyard through the shrubbery.
Basil has arranged with Amber that she will ring Connie that day, pretending to be the wife of the leader of the opposition. Amber calls Connie on her mobile phone as planned, and Connie asks her to hold on, while she moves to a more private place. Connie goes out into the staff courtyard to take the call. Using a remote control, Basil has also turned on the video camera out there at this time. Amber tells Connie that ‘her husband’, the leader of the opposition, has admitted he is having an affair with Connie and that if Connie admits to it also, and apologises, Amber will not go to the media. Connie starts crying, admits the relationship and begs the forgiveness of Amber, saying she had been mesmerized by the leader of the opposition and was silly to have done ‘whatever he asked of her’.
The conversation is recorded by the listening device and later retrieved by Basil. Connie is also recorded speaking on the phone on the video tape; there is also video footage from later in the day showing Connie’s secretary in the courtyard smoking what appears to be marijuana. Basil retrieves this video footage and passes both the recording of the phone conversation and the video tape on to Amber. Basil also prepares a version of a video tape that shows only Connie’s secretary smoking and gives it to Connie, telling her that when he was doing some adjustments on the video, he switched it on for a while, and this is what he found on the tape when he finished working. Connie confronts the secretary about the matter the next day, saying she is going to fire him. The secretary says to Connie that she has breached the law in filming him and she ought to rethink firing him, as he has a lot of friends in the press. That night, Amber’s ‘news’ show broadcasts a piece about ‘drugs in the workplace’ and uses footage of the secretary taken from Basil’s video tape.
In the meantime, Connie’s parliamentary colleagues have found out about her affair, and after discussions with her (which were kept private), she resigned and she has now told Basil of the affair. Basil, who is very angry, contacts Amber about publishing the recorded conversation, and she tells him she has taken legal advice and apparently they would need a court order permitting publication under the Surveillance Devices Act 1998 (WA).
1) Has Basil breached s 5 of the Surveillance Devices Act 1998 (WA) (“the Act”) by recording his wife’s conversation with Amber?
2) Explain whether you think a TV station would be likely to succeed in obtaining an order under s 31 of the Act to permit them to broadcast the conversation between Connie and Amber. Would your answer be different if Connie had not resigned?
3) Has Connie breached s 6 of the Act in filming the secretary? Has the TV station breached s 9 of the Act in broadcasting the footage of the secretary?
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