“These changes will [also] mean someone who comes into the possession of an audio or visual recording that has been obtained unlawfully will not face prosecution if they provide it promptly to authorities in the public interest.”
Opposition Leader Mark Speakman described the temporary changes in 2023 as a “reckless and outlandish power-grab”.
NSW Liberal leader Mark Speakman voiced concern about the laws in 2023.Credit: Janie Barrett
Under the NSW Surveillance Devices Act, it is an offence to use a listening device such as a phone app to record a private conversation. The maximum penalty is an $11,000 fine or five years imprisonment, or both.
There are exceptions, including if the parties to the conversation consent to being recorded or it “is reasonably necessary for the protection of the lawful interests of” a party to the conversation.
The ICAC needed special powers to use recordings it believed may have been unlawfully made because it is also an offence for a person to possess a recording of a private conversation, or to publish or communicate it, if it came to their knowledge as a result of a breach of the law.
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After NSW Labor won the state election in 2023, the ICAC asked for the expanded powers and the Minns government made the change in regulations with an expiry date.
It is now set to introduce laws that would make that exemption permanent for the ICAC and other investigative agencies.
The changes would also allow a person who came into the possession of an unlawful recording to pass it on to authorities without facing prosecution themselves for possessing it.
The government said the proposed reforms would “introduce a public interest exception so individuals or organisations who come into possession of unlawfully made surveillance recordings, but were not involved in making them, can share them with investigative agencies without fear of prosecution, provided they act promptly”.
It would also allow bodies such as the ICAC “to receive and rely on evidence that it would otherwise be impossible for them to use”.
The changes followed “extensive consultation with investigative agencies, legal experts and privacy bodies, and will bring NSW into line with other states”, the government said.
“Recording someone without consent or committing offences such as trespass will remain illegal under these changes.”
While the ICAC would not reveal in 2023 why it required the additional powers relating to potentially unlawful recordings, sources with knowledge of the matter have since told The Sydney Morning Herald that its investigation focuses on suspicions that Nassif used surveillance devices to illegally record conversations.
Investigators suspect the failed businessman attempted to use these recordings to obtain favourable development outcomes from councils and other officials.
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NSW Liberal MP Ray Williams in parliament in 2022 said he had heard allegations that senior members of his party had been “paid significant funds in order to arrange to put new councillors on The Hills Shire Council” who would support development applications for Nassif’s company.
Those claims led to a NSW upper house inquiry chaired by Greens MP Sue Higginson.
“This has been an extraordinary inquiry – not so much for the information that has come to light – but for the gaping hole in evidence left by key witnesses who have gone to great lengths to avoid scrutiny,” Higginson said in the foreword to the March 2023 report.
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