Australia-4

17/

communication which has been overheard by means of a listening device. A listening device is defined in the Victorian statute as "any electronic or mechanical instrument, apparatus equipment or other device capable of being used to overhear record monitor or listen to a private conversation or word spoken to or by any persons in private conversation." The other acts have similar provisions.

18/

19/

Under the Victorian act the police are allowed to use listening devices in the performance of their duties but only with the written consent of the Chief or Deputy Commissioner of Police or an Inspector nominated by the Chief Commissioner. The consent must, 20/ in addition, be approved by a stipendiary magistrate.

When considering whether or not to approve an application, the stipendiary magistrate has to consider the gravity of the matters which are being investigated, the degree to which the privacy of an individual will be interfered with, and the efficacy of the interception 21/ for preventing or detecting the crime.

17/ Listening Devices Act, 1969, 1969 Vict. Acts, No. 7804, § 4(1)(b)), Listening Devices Act, 1969, 1969 N.S.W. Stats. No. 70, § 6(1); Invasion of Privacy Act, 1971, 1971 Queensl. Stats., No. 50, § 44(1).

18/ Listening Devices Act, 1969, 1969 Vict. Acts, No. 7804, § 3. 19/ Listening Devices Act, 1969, 1969 N.S.W. Stats., No. 70, § 3(1); Invasion of Privacy Act, 1971, 1971 Queensl. Stats., No. 50 § 4.

20/ Listening Devices Act, 1969, 1969 Vict. Acts, No. 7804, § 4(3)(4). 21/ Id. §4(4).

Australia-5

The New South Wales act is similar to the Victorian

22/

statute, but in that State it is not necessary for the consent of a
stipendiary magistrate to be obtained. However, the circumstances
under which the permission is given are more precisely defined.
The Queensland act requires the approval of a judge of the Supreme
23/
Court. All the acts require that records be kept of the grants
24/

of approval.

The acts also provide that all the records of

conversations which are unlikely to be of any assistance should be

25/

destroyed.

Prepared by

(Mrs.) Audrey F.L. Glover

Legal Specialist

American-British Law Division

Law Library, Library of Congress

February 1975

22/ Listening Devices Act, 1969, 1969 N.S.W. Stats., No. 70, § 8.

23/ Invasion of Privacy Act, 1971, 1971 Queensl. Stats., No. 50, $ 42(3).

24/ Listening Devices Act, 1969, 1969 Vict. Acts, No. 7804, § 5(b); Listening Devices Act, 1969, 1969 N.S.W. Stats., No. 70, § 10(c); Invasion of Privacy Act, 1971, 1971 Queensl. Stats., No. 50, § 43(4)(b).

25/ Listening Devices Act, 1969, 1969 Vict. Acts., No. 7804, § 7; Listening Devices Act, 1969, 1969 N.S.W. Stats. No. 70, § 11; Invasion of Privacy Act, 1971, 1971 Queensl. Stats., No. 50, § 47.

AUSTRIA

Although wiretapping or the unlawful intrusion into the

1/

2/

secrecy of telecommunications is not specifically covered by the Austrian Constitution of 1929, as amended, certain matters such as postal, telegraph, and telephone affairs are reserved to the competence of or regulation by federal law. In accordance therewith,

3/

the Law Concerning Telecommunications of July 13, 1949, was enacted, which in its Section 17 imposed upon officials and employees the duty of secrecy in regard to messages transmitted by such facilities. However, the new Criminal Code of January 23, 1974, which went into effect on January 1, 1975, specifically provides for the prosecution of wiretapping (Art. 119) and the unlawful monitoring of 4/ the statements of others (Art. 120).

Since the outlawing of such activities is a new development in the Austrian legal system, no references are available yet in the Library's collection on whether this provision was judicially con

strued and the scope of coverage determined.

1/ A.J. Peaslee, 3 Constitutions of Nations 24 (3d ed. The Hague, 1968). Although amended several times, the Constitution is still being referred to as the Constitution in its version of 1929.

2/ Art. 10, par. (1), clause 9 of the Constitution.

3/ Schaginger-Vavra, Das österreichische Fernmelderecht 44

(Manz ed. Wien, 1965).

4/ Foregger-Serini, Strafgesetzbuch 84 (Manz ed. Wien, 1974).

Austria-2

Articles 119 and 120 of the Criminal Code read as follows:

Art. 119. (1) Whoever, with the intent of obtaining knowledge for himself or other unauthorized person of a message transmitted by any telecommunications installation and not intended for him, places any device on any telecommunications installation, or otherwise prepares it for reception, shall be punished with deprivation of liberty not to exceed 6 months or a day fine not to exceed 360 daily rates.

(2) Whoever, with the intention specified in paragraph 1, utilizes a device attached to a telecommunications installation, or which otherwise has been prepared for reception, shall be punished in like manner.

(3) The offender shall be prosecuted only at the request of the injured party. However, if the act is committed by an official in the exercise of his official duties or in exploitation of an opportunity made available to him in the pursuit of his official functions, he shall be prosecuted by the public prosecutor when empowered to do so by the injured party.

Art. 120. (1) Whoever utilizes a sound recording device or a listening device in order to obtain knowledge, for himself or other unauthorized person, of a statement of another, which is not public and not intended for his knowledge, shall be punished by deprivation of liberty not to exceed 1 year or by a day fine not to exceed 360 daily rates.

(2) Whoever, without the consent of the speaker, makes a sound recording of a statement of another, which is not public, accessible to a third party for whom [such statement) was not intended, or makes such recording public, shall be punished in like manner.

(3) The offender shall be prosecuted only upon request of the injured party.

Prepared by George Jovanovich

Senior Legal Specialist

European Law Division

Law Library, Library of Congress

February 1975

CANADA

The Canadian Parliament has attempted to pass a bill

against wiretapping and electronic surveillance since the advent

of the Seventies and finally passed the Protection of Privacy Act in the First Session of the 29th Parliament, effective June 30, 1974.

1/

The many references to the Watergate affair in the House of Commons

Debates indicate the extent it influenced the thinking of the

members of Parliament and affected the speed of the bill's passage.

Prior to this only two Canadian provinces, namely British Columbia and Manitoba, had statutes giving protection against invasions of

privacy.

The Privacy Act of British Columbia, statute on the subject, provided in § 2 that:

2/

the first Canadian

(1) It is a tort, actionable without proof of damage, for a person, willfully and without claim of right, to violate the privacy of another.

(2) The nature and degree of privacy to which a person is entitled in any situation or in relation to any matter is that which is reasonable in the circumstances, due regard being given to the lawful interests of others; and in determining whether the act or conduct of a person constitutes a violation of the privacy of another, regard shall be given to the nature, incidence, and occasion of the act or conduct and to the relationship, whether domestic or other, between the parties.

1/ 1973-74 Can. Rev. Stat. c. 50; Protection of Privacy Act, Registration S1/74-68, 108 Can. Gaz. Pt. II, 1774 (June 12, 1974).

2/ 1968 Β.C. Stat. c. 39.