QLD Legality of Recording Passengers in Uber with Dash Cams?

[Ahmed81]

What I do as a driver. I have placed a security warning notice in a way that it is visible in camera and to the customer (so they can't deny) saying like that "Security Notice: Digital surveillance may be in progress in and around this vehicle for security purpose only and the recording is handled as per law of NSW. Your privacy will be respected. Please ask the driver for any queries you may have."

So in this way, if the passenger not saying anything they are implying consent but still, it's not ok to use the recording otherwise like posting on the internet or giving to other people. These recording must be destroyed when they serve their purpose that is security only

 

[Scruff]

The thread title indicates QLD but you seem to be asking about NSW law, so I'll assume NSW for now.

First, the general rules:

The law differs for video and audio, so the real issue here is whether or not you want to record audio as well. Typically in a workplace, CCTV cameras are video only. Considering that your vehicle is also your workplace, you shouldn't have any problem regarding video. In fact, I don't think you would even need a notice. However, as you probably know, having the notice in itself is a deterrent against bad behaviour.

Where you can run into problems is with audio. For example, if you have passengers in the back seat whispering to each other, you may not be able to hear it, but the camera might pick it up. In such a case, they could claim that it was a private conversation. You now have a problem with consent, because you want to claim that consent was "implied" because of the notice - but the passengers can claim that they didn't see it. This is very different to the standard "This call may be recorded..." announcement that you hear when a phone call is first answered.

The chances of the above happening might be remote, but it's just one example of how you can run into issues if you record audio.

Another problem is if a passenger asks you not to record audio - you must comply because they have expressly denied consent. If your system can only record both video and audio, and not video alone, you are now in a position where you can't record at all.

This all brings us to the second point:

In your situation, you should also consider the "exceptions to the rule", specifically, s7(3)(a) of the NSW Surveillance Devices Act 2007. Under s7(3)(a), you can record a private conversation that you are a party to if it is reasonably necessary to do so to protect your legal interests - and you do not need anyone else's consent to do so. Obviously, your legal interests here are the legal interests of your business, which includes the safety of both your passengers and yourself.

You still have an issue with "blanket recording" though (ie; recording everything all the time). At the first sign of any trouble, you would obviously say something and at that point, you can legally record that conversation - including audio. That, however, may not necessarily give you a right to record audio all the time.

So given your circumstances and a valid reason for wanting to record, I would recommend that you get some legal advice up front. You should get clarification at least in relation to the following:
1. Does the general safety of yourself and your passengers provide sufficient cause to record under s7(3)(a). In other words, is "potential risk" a valid cause, not just an actual incident.

2. Is it reasonable to claim that a conversation in a vehicle should be expected to be overheard by other parties in the vehicle, in which case it would not be a private conversation to begin with (*** Interesting case about this below. ***)

3. What exactly are your obligations if someone asks you not to record them - given that the vehicle is your workplace;

4. Since this is your workplace, do you have rights under any laws other than the Surveillance Devices Act - you may or may not.

5. Obtain a good understanding of how the law applies in the situations that you are most likely to experience. If the need arises where you are asked to explain either your rights or your passenger's rights to your passengers, then it is very important that your information is accurate and that you don't mislead them in any way.

Considering the advantages of this kind of evidence should the need arise, I think that one consultation with a lawyer to ensure that you are acting fully within the law would be money well spent. Even if you don't want to record audio, at the very least you should obtain a good understanding of the law and each parties rights regarding video, so that you can be comfortable knowing that you won't mislead anyone if asked about it. Anyone in business should know the basics if they operate any kind of surveillance equipment.

*** There was a case in the Penrith Court years ago regarding a young guy on trial for being an accessory to a drug deal. He was driving his boss around and the deal went down in the back seat between his boss and an undercover detective. The driver was found guilty, despite claiming that he didn't see or hear what was happening in the back seat.

It should be noted that while the Police Officer's testimony was very solid and there were some small discrepancies between the testimony of the accused and his boss, those discrepancies didn't decide the matter. In the end, it was the testimony of the Police Officer along with a whole bunch of factors that most people wouldn't even consider, that determined the verdict.

Those other factors included things like the make of vehicle, where it was being driven, the speed it was being driven, how much traffic there was, windows being open or closed, etc. In the end, the jury found that since the accused had no known hearing problems, there was sufficient evidence that he at least heard what was going on, even if he didn't see it. On that basis, he was found guilty. ***

 

[Scruff]

Sorry, those references to s7(3)(a) should be s7(3)(b).

 

[Ahmed81]

The thread title indicates QLD but you seem to be asking about NSW law, so I'll assume NSW for now.

First, the general rules:

The law differs for video and audio, so the real issue here is whether or not you want to record audio as well. Typically in a workplace, CCTV cameras are video only. Considering that your vehicle is also your workplace, you shouldn't have any problem regarding video. In fact, I don't think you would even need a notice. However as you probably know, having the notice in itself is a deterrent against bad behaviour.

Where you can run into problems is with audio. For example, if you have passengers in the back seat whispering to each other, you may not be able to hear it, but the camera might pick it up. In such a case, they could claim that it was a private conversation. You now have a problem with consent, because you want to claim that consent was "implied" because of the notice - but the passengers can claim that they didn't see it. This is very different to the standard "This call may be recorded..." announcement that you hear when a phone call is first answered.

The chances of the above happening might be remote, but it's just one example of how you can run into issues if you record audio.

Another problem is if a passenger asks you not to record audio - you must comply because they have expressly denied consent. If your system can only record both video and audio, and not video alone, you are now in a position where you can't record at all.

This all brings us to the second point:

In your situation, you should also consider the "exceptions to the rule", specifically, s7(3)(a) of the NSW Surveillance Devices Act 2007. Under s7(3)(a), you can record a private conversation that you are a party to if it is reasonable necessary to do so to protect your legal interests - and you do not need anyone else's consent to do so. Obviously, your legal interests here are the legal interests of your business, which includes the safety of both your passengers and yourself.

You still have an issue with "blanket recording" though (ie; recording everything all the time). At the first sign of any trouble, you would obviously say something and at that point, you can legally record that conversation - including audio. That however, may not necessarily give you a right to record audio all the time.

So given your circumstances and a valid reason for wanting to record, I would recommend that you get some legal advice up front. You should get clarification at least in relation to the following:
1. Does the general safety of yourself and your passengers provide sufficient cause to record under s7(3)(a). In other words, is "potential risk" a valid cause, not just an actual incident.
2. Is it reasonable to claim that a conversation in a vehicle should be expected to be overheard by other parties in the vehicle, in which case it would not be a private conversation to begin with (*** Interesting case about this below. ***)
3. What exactly are your obligations if someone asks you not to record them - given that the vehicle is your workplace;
4. Since this is your workplace, do you have rights under any laws other than the Surveillance Devices Act - you may or may not.
5. Obtain a good understanding of how the law applies in the situations that you are most likely to experience. If the need arises where you are asked to explain either your rights or your passenger's rights to your passengers, then it is very important that your information is accurate and that you don't mislead them in any way.

Considering the advantages of this kind of evidence should the need arise, I think that one consultation with a lawyer to ensure that you are acting fully within the law would be money well spent. Even if you don't want to record audio, at the very least you should obtain a good understanding of the law and each parties rights regarding video, so that you can be comfortable knowing that you won't mislead anyone if asked about it. Anyone in business should know the basics if they operate any kind of surveillance equipment.

*** There was a case in the Penrith Court years ago regarding a young guy on trial for being an accessory to a drug deal. He was driving his boss around and the deal went down in the back seat between his boss and an undercover detective. The driver was found guilty, despite claiming that he didn't see or hear what was happening in the back seat. It should be noted that while the Police Officer's testimony was very solid and there were some small discrepancies between the testimony of the accused and his boss, those discrepancies didn't decide the matter. In the end, it was the testimony of the Police Officer along with a whole bunch of factors that most people wouldn't even consider, that determined the verdict. Those other factors included things like the make of vehicle, where it was being driven, the speed it was being driven, how much traffic there was, windows being open or closed, etc. In the end, the jury found that since the accused had no known hearing problems, there was sufficient evidence that he at least heard what was going on, even if he didn't see it. On that basis, he was found guilty. ***

Thank you

 

[Ahmed81]

The thread title indicates QLD but you seem to be asking about NSW law, so I'll assume NSW for now.

First, the general rules:

The law differs for video and audio, so the real issue here is whether or not you want to record audio as well. Typically in a workplace, CCTV cameras are video only. Considering that your vehicle is also your workplace, you shouldn't have any problem regarding video. In fact, I don't think you would even need a notice. However as you probably know, having the notice in itself is a deterrent against bad behaviour.

Where you can run into problems is with audio. For example, if you have passengers in the back seat whispering to each other, you may not be able to hear it, but the camera might pick it up. In such a case, they could claim that it was a private conversation. You now have a problem with consent, because you want to claim that consent was "implied" because of the notice - but the passengers can claim that they didn't see it. This is very different to the standard "This call may be recorded..." announcement that you hear when a phone call is first answered.

The chances of the above happening might be remote, but it's just one example of how you can run into issues if you record audio.

Another problem is if a passenger asks you not to record audio - you must comply because they have expressly denied consent. If your system can only record both video and audio, and not video alone, you are now in a position where you can't record at all.

This all brings us to the second point:

In your situation, you should also consider the "exceptions to the rule", specifically, s7(3)(a) of the NSW Surveillance Devices Act 2007. Under s7(3)(a), you can record a private conversation that you are a party to if it is reasonable necessary to do so to protect your legal interests - and you do not need anyone else's consent to do so. Obviously, your legal interests here are the legal interests of your business, which includes the safety of both your passengers and yourself.

You still have an issue with "blanket recording" though (ie; recording everything all the time). At the first sign of any trouble, you would obviously say something and at that point, you can legally record that conversation - including audio. That however, may not necessarily give you a right to record audio all the time.

So given your circumstances and a valid reason for wanting to record, I would recommend that you get some legal advice up front. You should get clarification at least in relation to the following:
1. Does the general safety of yourself and your passengers provide sufficient cause to record under s7(3)(a). In other words, is "potential risk" a valid cause, not just an actual incident.
2. Is it reasonable to claim that a conversation in a vehicle should be expected to be overheard by other parties in the vehicle, in which case it would not be a private conversation to begin with (*** Interesting case about this below. ***)
3. What exactly are your obligations if someone asks you not to record them - given that the vehicle is your workplace;
4. Since this is your workplace, do you have rights under any laws other than the Surveillance Devices Act - you may or may not.
5. Obtain a good understanding of how the law applies in the situations that you are most likely to experience. If the need arises where you are asked to explain either your rights or your passenger's rights to your passengers, then it is very important that your information is accurate and that you don't mislead them in any way.

Considering the advantages of this kind of evidence should the need arise, I think that one consultation with a lawyer to ensure that you are acting fully within the law would be money well spent. Even if you don't want to record audio, at the very least you should obtain a good understanding of the law and each parties rights regarding video, so that you can be comfortable knowing that you won't mislead anyone if asked about it. Anyone in business should know the basics if they operate any kind of surveillance equipment.

*** There was a case in the Penrith Court years ago regarding a young guy on trial for being an accessory to a drug deal. He was driving his boss around and the deal went down in the back seat between his boss and an undercover detective. The driver was found guilty, despite claiming that he didn't see or hear what was happening in the back seat. It should be noted that while the Police Officer's testimony was very solid and there were some small discrepancies between the testimony of the accused and his boss, those discrepancies didn't decide the matter. In the end, it was the testimony of the Police Officer along with a whole bunch of factors that most people wouldn't even consider, that determined the verdict. Those other factors included things like the make of vehicle, where it was being driven, the speed it was being driven, how much traffic there was, windows being open or closed, etc. In the end, the jury found that since the accused had no known hearing problems, there was sufficient evidence that he at least heard what was going on, even if he didn't see it. On that basis, he was found guilty. ***

Thanks mate this is a really good answer and addressees my concern. So in summary for my other friends reading this I summarise Surveillance Act 2007 7.3.b as:-

"In NSW you can record a conversation if you are involved in it and the recording is justifiable to protect your lawful interests that is you guarding yourself from false allegations or seeking justice for any property damage or assault on you) AND you are not willing to or do actually share this recording with third parties (friends/social media) for any reason" .

To add to above you must also take reasonable care to secure this recording or delete when it's not needed that is if there are no incidents or issues, generally speaking, you must lock the vehicle when you are not in it and secure recording.

So in general if you record someone saying a racist comment or saying something spicy and you share it on facebook or whatsapp you can get charged and penalties are severe to bring you to your knees.

However please note I am not a lawyer this is my personal interpretation of the law and I can be wrong or missing something important.

 

[Scruff]

Just to clarify how section 11 applies to recordings made under section 7(3):

First, section 11:

s11(1) "A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part."

In laymans' terms, this means that if the recording was made in compliance with the Act, you can communicate or publish it. If it was not, you can't.

However, s11(1) does not automatically apply to all recordings made under s7(3) - which reads as follows:

s7(3) "Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

(i) is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation"​

Note the wording of s7(3)(b)(ii) - which is the clause that allows you to record for your own purposes. There is a clear prohibition in the clause itself regarding communication and publication. You, therefore, can not communicate or publish the recording unless you get consent from all parties under s11(2)(a)(ii) as follows:

s11(2)(a)(ii): Subsection (1) does not apply if the communication or publication is made "with the consent, express or implied, of all the principal parties to the private conversation or activity".

So in short:
1. you can not communicate or publish any recording that is made in contravention of the Act unless you obtain consent from all other parties under s11(2)(a)(ii); and
2. you can not communicate or publish any recording made in compliance with s7(3)(b)(ii) unless you obtain consent from all other parties under s11(2)(a)(ii); and
3. you can communicate or publish most other recordings made in compliance with the Act without the consent of any of the other parties.

In the case of #1, you would still be liable for obtaining the recording in contravention of the Act in the first place. Consent to publish does not render the recording itself as being "legally obtained".
In the case of #3, we are only discussing a very small subset of the provisions here, so you would need to check if there are any other provisions (or even other legislation) applicable in the circumstances that would prohibit communication or publication. It's unlikely, but you should check.

Finally, as far as I know, the Act doesn't stipulate anything in regard to destroying recordings once they are no longer needed - you should be able to keep them as long as you want.

 

[Rod]

There is orbiter dicta in a FWC case in Victoria, delivered two days ago acknowledging private recordings in a workplace are permissible. Circumstances are different, but the commissioner acknowledges private recordings where you are a participant the discussion are not illegal in a workplace setting.

Note: just to be clear so my comment is not taken out of context, recordings against an employer can still be used to justify dismissal.

 

[Scruff]

There is orbiter dicta in a FWC case in Victoria ...

I don't know anything about the case you mention, but if FWC is involved, it could be an example of where other legislation comes into play as well. It is however worth noting that the NSW Surveillance Devices Act provides the exceptions discussed above where recordings can be made without the consent of other parties. The Victorian Act doesn't have those provisions from memory, therefore I'm not surprised that a case like that would come up in Victoria. The exceptions seem to be unique to NSW from what I've seen so far. I haven't checked every state though.

... the commissioner acknowledges private recordings where you are a participant [to] the discussion are not illegal in a workplace setting.

That would likely be covered by s7(3)(b)(i) in NSW (recording to protect your legal interests).

 

[Ahmed81]

There is orbiter dicta in a FWC case in Victoria, delivered two days ago acknowledging private recordings in a workplace are permissible. Circumstances are different, but the commissioner acknowledges private recordings where you are a participant the discussion are not illegal in a workplace setting.

Note: just to be clear so my comment is not taken out of context, recordings against an employer can still be used to justify dismissal.

---

I don't know anything about the case you mention, but if FWC is involved, it could be an example of where other legislation comes into play as well. It is however worth noting that the NSW Surveillance Devices Act provides the exceptions discussed above where recordings can be made without the consent of other parties. The Victorian Act doesn't have those provisions from memory, therefore I'm not surprised that a case like that would come up in Victoria. The exceptions seem to be unique to NSW from what I've seen so far. I haven't checked every state though.


That would likely be covered by s7(3)(b)(i) in NSW (recording to protect your legal interests).

The keyword is " Justifiable" and "Reasonable" & "Lawful interests" -- and largely depends on the context of conversation eg employer forcing you to do something illegal, your boss looking for sexual favours from you etc..... conversations like discussing payrise , or work amenities is not a good justification ..

There is always a room and leniency if you act in good faith and have reasonable excuse for what you did.

 

[Scruff]

The keyword is " Justifiable" and "Reasonable" & "Lawful interests" -- and largely depends on the context of conversation eg employer forcing you to do something illegal, your boss looking for sexual favours from you etc..... conversations like discussing payrise , or work amenities is not a good justification ..

Now you've opened a can of worms - but in a really good way, because this all comes down to how you interpret the law in general. Quite frankly, I don't believe that we see anywhere near enough discussion on that subject.

If you read your statement a few times (I was scratching my head after the first read), you can see what the can of worms is about. Some people will look at that and say "yep - I can see how you would have cause in those situations", while others will look at it and say "well hang on, you don't have cause until an incident happens." And that's the catch - in fact there's two of them, and that's without even getting into the "context of the conversation!"

1. When exactly do you have "cause" in a timeline that looks like "nothing happening, nothing happening, incident, nothing happening..."; and
2. Is it even possible to justify cause for periods of "nothing happening".

I hope you don't mind, because this will be pretty long winded, but I think it's well worth getting into - particularly given your circumstances. It's a really interesting issue.

Criminal offences are usually defined in legislation as provisions that are "prohibitive" with "permissive exclusions" or sometimes, "permissive" with "prohibitive exclusions".

In the first case, the offence is defined up front followed by exclusions that define a set of circumstances that do not constitute an offence.
In the second case, permitted conduct is defined up front followed by exclusions that define a set of circumstances that do constitute an offence.

What's the difference? Well it's MASSIVE if you get charged and the matter proceeds to trial - because the difference is all about "burden of proof".

So here we go - this is how I interpret the NSW Surveillance Devices Act ...

First up, what type of legislation is it and what is it's purpose? This answer will nearly alway be in the "Long Title" of the Act, which in this case is:
"An Act to regulate the installation, use, maintenance and retrieval of surveillance devices; to repeal the Listening Devices Act 1984; and for other purposes."

The Act is therefore a "regulatory" type of legislation which usually either applies to a specific group of people or industry, or sometimes to everyone - as it does in this case.

The next thing to detimine is if it is dominantly "prohibitive" or "permissive" in nature. In this case it is dominantly "prohibitive" (offences up front followed by exclusions). This tells us what to do if there is any ambiguity - which is to lean towards prohibition (and seek legal advice if we're unsure if an exclusion applies).

Example 1.
What I call "prohibitive legislation" looks something like this:
1. Use of listening devices

1. A person must not record a private conversation:

a) in circumstance one; or
b) in circumstance two.​

2. Subsection (1) does not apply if circumstance three.
3. A person may record a private conversation if:

a) circumstance four; or
b) circumstance five.​

So you have (1) = "prohibitive" (the offence); and (2) and (3) = "permissive exceptions".

Example 2.
If this was "permissive legislation", then it may look something like this:
1. Use of listening devices

1. A person may record a private conversation:

a) in circumstance one; or
b) in circumstance two.​

2. Subsection (1) does not apply if circumstance three.
3. A person must not record a private conversation if:

a) circumstance four; or
b) circumstance five.​

It's the exact opposite; (1) = "permissive"; and (2) and (3) = "prohibitive exceptions" - the offence(s). (With this type of legislation you would lean towards permission if there is any ambiguity.)

So how does this affect "burden of proof"?

Using example 1, let's say you are charged with an offence under 1(a) "circumstance one" and your defence is subsection 3(b) "circumstance five". Generally, what will occur is that the onus will fall to the prosecution to prove their case under 1(a) where the actual offence is. They therefore would need to prove that "circumstance one" existed, but they would not necessarily have to prove that "circumstance five" did not exist. In that case, the onus will fall to the accused to prove that "circumstance five" did exist in order to be acquitted.

With example 2, that all changes. This time we have a permissive clause at (1); with the offence(s) defined in exclusions at (2) and (3). So let's say that you are charged under 3(a) "circumstance four" and your defence is 1(b) "circumstance two". In this case, the prosecution has to prove that "circumstance four" existed - the "special circumstance" that constitutes an offence. As the accused, you would pretty much never have to prove "circumstance two" because it's a permissive provision.

So the way I see it, is that when it comes to "exclusions", whether the exclusion defines the offence or not, there will be a burden of proof on the party that relies on the exclusion to win their case - and while the prosecution has to prove the offence regardless, if the accused relies on an exclusion as a defence, then there will also be a burden of proof on the defence. So with prohibitive legislation, both sides have to put in the hard yards, but with permissive legislation, it's all pretty much on the prosecution. I guess that's why most legislation is carefully worded to be prohibitive in nature.

This all brings us full circle, back to to your particular circumstances, and my concerns about recording audio. Under the Surveillance Devices Act, if you are charged under s7(1) (a "prohibitive provision"), and you use s7(3)(b)(ii) as a defence (a "permissive exclusion"), then the onus will likely fall to you to show that the making of the recording was justified. What you will now have to prove, is that you had cause to make the recording at the time that you began recording, not at the time that any incident took place, which is after the fact.

That is where I see a potential problem and why I recommend that you seek professional legal advice. You have to be able to justify the recording up front, and I personally have no idea if the possibility of an incident is sufficent to satisfy s7(3)(b)(ii) in that regard.

So I guess the question that we really need an answer to is "From the perspective of a professional driver, does the possibility of a risk to the safety of the driver or his passengers, constitute a legal interest for the purpose of recording audio under s7(3)(b)(ii) of the NSW Surveillance Devices Act?"

Apologies for the really long post, but personally, I find this particular situation fascinating.

Comments, thoughts and particularly corrections are welcomed. (I wouldn't learn otherwise).