4. Overt surveillance
Updates and background for this project (Digest)
INTRODUCTION
4.1 If an activity constitutes overt surveillance under the proposed legislation, the media or any other surveillance user may engage in it, so long as it is carried out in accordance with the regulatory scheme. Comments on the proposed framework for overt surveillance came mostly from media organisations, despite the fact that operators of CCTV and other security systems are the surveillance users most affected. The impact on the media would be limited, because the preponderance of newsgathering activity would be outside the scope of the proposed Surveillance Act. Media organisations generally opposed suggestions that tended to limit their discretion to gather material by means of overt surveillance. In general they also opposed measures that would impose on the media a greater degree of accountability than the current self-regulatory regime.
NOTICE
4.2 Notice, as we said earlier,1 is the element distinguishing overt from covert in the Commission’s proposed scheme for the regulation of surveillance devices.2 However, the Interim Report contained suggested exceptions to the requirement for giving notice.3 One such exception applied to the media in their everyday news gathering capacity, in recognition of the impracticality such an obligation would impose.4 It is not clear if all media organisations fully appreciated the Commission’s position. For example, Fairfax submits that the Interim Report proposes “what we believe to be an unworkable system of notification and authorisation, in the absence of which almost any act of news gathering risks being deemed covert surveillance.”5 This is incorrect. A lack of notification by the media has been stated explicitly not to result in this consequence,6 while authorisation plays no part in the regulation of overt surveillance. The ABC states:7
The existence of a remote camera situated on top of a building, for example, to film an event on Sydney Harbour, would not be apparent to anyone participating in that event. Similarly, it would not be readily apparent that an ABC helicopter flying overhead was filming. Providing more direct notification is impractical. … [T]he possibility that day-to-day news gathering could constitute overt surveillance makes it possible for a person to complain that they were not aware they were being watched and that the media’s recording constitutes covert surveillance.
SBS comments8 that in a case where:
a cameraperson is openly filming a political rally … it may not be clear whether the individuals who are a certain distance away are aware they are being filmed, creating immense practical problems in the distinction [between overt and covert surveillance] as drafted.
4.3 Given the proposed media exemption from being required to provide notification, it is difficult to understand either the nature of the “immense practical problems” foreshadowed in, or even the relevance of, the foregoing comments from the ABC and SBS. In any event, for the reasons already stated above,9 the types of scenario described here are ones to which the proposed legislation is unlikely to apply.
4.4 SBS10 further referred to:
the Commission’s mistaken assumption that a subject invariably knows they are being photographed. This is simply not the case when filming streetscapes, crowds, or public events such as rallies.
The Interim Report11 stated:
[M]edia coverage of newsworthy events could easily include footage of members of the public unaware they are being recorded. Much of the everyday activity of media organisations would be impossible or unduly cumbersome if notice to surveillance subjects were compulsory. So long as recording is carried out openly, and no attempt is made to actually conceal surveillance devices, it appears reasonable in such cases to dispense with notice requirements. (emphasis added)
SCHEME OF REGULATION
4.5 The mechanism proposed in the Interim Report for the regulation of overt surveillance comprises two main elements, namely codes of practice and overt surveillance principles.
Codes of practice
4.6 It was proposed that some surveillance users be required to adopt a code of practice, consistent with the overt surveillance principles, in relation to their use of surveillance. Although the code would be mandatory, in practice it would operate as an internal working document. Advantages of requiring surveillance users to adopt codes of practice were discussed in the Interim Report at para 4.32 and following.
4.7 Privacy NSW, the Office of the New South Wales Privacy Commissioner, suggested12 that the development of a written code not be mandatory, due to confusion and the unnecessary expenditure of time and resources in determining such issues as to which surveillance users would be required to have a code. It suggested that the “default position” for all surveillance users should be, simply, compliance with the overt surveillance principles. The Commission agrees that this eliminates a potentially confusing and cumbersome administrative layer. As the Commission has maintained throughout that it wishes to avoid imposing unnecessary burdens on lawful surveillance users, the adoption of codes of practice will not be mandatory.
4.8 Many organisations already have codes of practice in place and will choose to continue doing so. Privacy NSW also suggests that a public sector agency, already required to implement a privacy management plan,13 could include within that plan overt surveillance principle compliance measures, “[reinforcing] the message that surveillance is inherently an interference with individuals’ privacy”.14
Overt surveillance principles
4.9 Eight mandatory principles, designed to facilitate the responsible and accountable use of overt surveillance, were discussed in the Interim Report at para 4.38 and following.15 If engaging in overt surveillance, the surveillance user must comply with all the principles applicable to that user. The principles do not apply to non-surveillance activities such as recreational photography and would also have minimal application to the media. In light of comments contained in submissions, further discussion of specific principles follows.
Principle 1 Overt surveillance should not be used in such a way that it breaches an individual’s reasonable expectation of privacy
4.10 In the Interim Report we described the “reasonable expectation of privacy” as an intuitive measure of the acceptability of surveillance conduct.16 The concept of a reasonable expectation of privacy is an acknowledgement of the flexibility required to accommodate different circumstances, including the nature of the surveillance device, the surveillance subject, the location, the occasion and so on. The activity in which the surveillance subject is engaged is also relevant, so that wrongdoing is not shielded by a claim for privacy.
4.11 According to some media submissions, the concept gives rise to “definitional problems”17 and is “an ambiguous concept”.18 In particular, these organisations expressed concern at how the concept would apply to those actively courting publicity. For example, whereas the Commission stated19 that people who court publicity may be entitled to a lower expectation of privacy in some contexts, SBS proposed20 that “a lesser entitlement to privacy for people actively seeking publicity is justifiable in all contexts”.21 Either view fits easily within the notion of a “reasonable expectation of privacy”, the rationale of which lies in recognising that different circumstances generate different responses in terms of privacy protection from overt surveillance.
4.12 Celebrities, politicians and others who figure often in the public eye, and often have a mutually beneficial relationship with the media, would generally have a lesser expectation of privacy than others. Judicial discussion of this subject appeared recently in Campbell v MGN Limited.22 The House of Lords found in favour of the appellant, the celebrated model Naomi Campbell. Having previously declared publicly that she neither took drugs nor had a drug problem, she sued the publisher of an English newspaper after it published information relating to her treatment for drug addiction, as well as photographs of her taken covertly in the street as she attended meetings of Narcotics Anonymous (“NA”). There was general agreement that the appellant could not complain about the revelation of her drug usage and the fact that she was receiving treatment, given that she had publicly lied about it previously in order to present a false image. However, the majority held that publishing details of the treatment, as well as photographs taken covertly in the street of the appellant emerging from an NA meeting, amounted to an unjustifiable infringement of her right to privacy. On the subject of celebrity, Lord Hoffmann, dissenting, commented:23
She and they have for many years both fed upon each other. She has given them stories to sell their papers and they have given her publicity to promote her career. This does not deprive Ms Campbell of the right to privacy in respect of areas of her life which she has not chosen to make public. But I think it means that when a newspaper publishes what is in substance a legitimate story, she cannot insist upon too great a nicety of judgment in the circumstantial detail with which the story is presented.
His Lordship was also of the opinion24 that:
the fact that she is a public figure who has had a long and symbiotic relationship with the media …[does] not in itself justify publication. A person may attract or even seek publicity about some aspects of his or her life without creating any public interest in the publication of personal information about other matters.
4.13 Lord Hope, similarly, observed “it is not enough to deprive Miss Campbell of her right to privacy that she is a celebrity and that her private life is newsworthy.”25 Princess Caroline of Monaco brought a complaint under Article 8 of the European Convention on Human Rights, that decisions of German courts had infringed her right to respect for private life by failing to prevent the publication by German newspapers of photographs taken without her knowledge. In June 2004 the European Court of Human Rights found there had been a violation of her rights. The Court stated that “anyone, even if they are known to the general public, must be able to enjoy a ‘legitimate expectation’ of protection of and respect for their private life.”26
4.14 By contrast, ordinary members of the public may, through circumstances not of their own choosing, find themselves in the media spotlight. In mid-2004 the public witnessed the media circus surrounding the attendance at a Darwin court of Joanne Lees, key witness in the Peter Falconio murder case. The authorities assisted her in her desire to shy away from the media. It was reported, however, that due to concern at someone being injured in the melee, Ms Lees offered media organisations the opportunity to film her at a location of her choosing, and for a fee payable to charity. Following the failure to reach an agreement, several media organisations said they would continue to pursue her.27
4.15 Free TV, the peak industry body representing the free-to-air commercial broadcasters, asks “what if the person is the subject of unsolicited but warranted public scrutiny?”28 In response one might ask who decides whether the scrutiny is “warranted”, and to what extent? The answer implicit in Free TV’s query is the media. The Commission questions why such a determination should be left entirely to them, especially when there is so little recourse by the surveillance target to a remedy in cases where the surveillance by the media has overstepped the mark. The media should not be hamstrung in pursuing their legitimate activities; they should also be meaningfully accountable when they get it wrong.
4.16 The Commission believes the flexibility of the “reasonable expectation” concept is of greater relevance and utility in the range of circumstances discussed above, than the existing assortment of privacy-related self-regulatory provisions. The following are examples of the latter:
Respect private grief and personal privacy. Journalists have the right to resist compulsion to intrude.29 (AJA)
The rights of individuals to privacy should be respected in all SBS programs. However, in order to provide information to the public relating to a person’s performance of public duties or about other matters of public interest, intrusions upon privacy may, in some circumstances, be justified.30 (SBS)
The rights of individuals to privacy should be respected in all ABC programs. However, in order to provide information which relates to a person’s performance of public duties or about other matters of public interest, intrusions upon privacy may, in some circumstances, be justified.31 (ABC)
In broadcasting news and current affairs programs, licensees … must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast.32 (Free TV)
Readers of publications are entitled to have news and comment presented to them honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy should not prevent publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports, if published at all, should be identified as such.33 (APC)
4.17 Most of the provisions are fairly broad, not drafted with specific regard to the gathering of material by means of surveillance devices, and leave the issue of privacy intrusion to the discretion of the journalist or broadcaster/publisher. It is not clear, for example, whether the SBS code supports SBS’s proposition above (see para 4.11) regarding those seeking publicity. Free TV’s provision refers specifically to the “broadcasting” and “use”, rather than “collection”, of material. Contrast these with the privacy provisions contained in the code of practice of the United Kingdom’s Press Complaints Commission (“PCC”),34 also a self-regulatory system:
The public interest exception applicable to the above clause is explained in the code as follows:
1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.
2. There is a public interest in freedom of expression itself.
3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served.
4. The PCC will consider the extent to which material is already in the public domain, or will become so.
5. In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.
4.18 In contrast with the views contained in media submissions, the concern expressed by Privacy NSW35 is that by using the “reasonable expectation” formulation, the onus will fall on the individuals who are targeted by overt surveillance to prove that their expectation of privacy was reasonable, a task made more difficult in an environment in which an expectation of privacy is diminishing through the proliferation of CCTV, strengthened airport and other security measures and so on. Privacy NSW recommends that the principle should therefore be amended, such that overt surveillance “not intrude unnecessarily or unreasonably into a person’s private affairs or personal space,” and that the obligation should rest on the surveillance user to justify why an interference with privacy is warranted. By analogy, Privacy NSW cites Information Protection Principle 4 (“IPP 4”) of the Privacy and Personal Information Protection Act 1998 (NSW),36 which requires an agency collecting personal information to ensure that, amongst other things, collection of the information “does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates”.37
4.19 Privacy NSW’s observation, that “reasonable expectation of privacy” is a reflective rather than proscriptive standard,38 may well be accurate. Nevertheless, the Commission does not regard it as a workable scheme of regulation to require every overt surveillance user to justify surveillance in the individual circumstances pertaining to each surveillance target. It is difficult to see how this could be feasible in regard to the use of, for example, street cameras. In contrast with IPP 4, which deals specifically with “personal information”, not all the information gleaned by street cameras is personal; nor can every individual within range of a CCTV camera be said to be under surveillance within the terms of the proposed Act, as there may be no deliberate intention to monitor each person so “captured” in order to obtain information about that person. Because CCTV and other such devices are installed with the intention, or at least the potential, to carry out surveillance on some individuals, they need to be operated in accordance with the proposed Act. However, to require CCTV operators to justify the filming of each individual within range would be unduly onerous.
4.20 The Commission does acknowledge that as the public becomes increasingly accustomed to being watched, the bar may be raised for anyone attempting to establish he or she had a reasonable expectation of privacy in given cases. However, legislation such as that being here proposed is designed to maintain an expectation of privacy by restraining unwarranted intrusions by surveillance devices into personal privacy, and thus helping to prevent daily life becoming a surveillance free-for-all.
Principle 2 Overt surveillance must only be undertaken for an acceptable purpose
4.21 This was discussed in the Interim Report at paragraphs 4.44 to 4.46. The Commission stated39 that overt surveillance should be permissible only for one or more of the following purposes:
1. protection of the person
2. protection of property
3. protection of the public interest
4. protection of a legitimate interest
4.22 Submissions contained no suggestions for other purposes to be added to this list. Fairfax40 comments:
We note that the investigation of, or activities connected with, the reporting of news and current affairs, comment, opinion or discussion of matters of public concern does not rate a mention as an “acceptable purpose”…
This is not correct. First, the commentary on Principle 2 in the Interim Report begins with a reference to an earlier discussion of “legitimate uses of overt surveillance”, that contained a paragraph41 headed “collection of material for news and entertainment”. Secondly, and more significantly, the third stated purpose, namely “protection of the public interest”, is a broad category that explicitly includes the media in the discussion at para 4.46 of the Interim Report. Thirdly, it is unclear what activities such as “comment, opinion or discussion of matters of public concern” have to do with surveillance.
4.23 The Interim Report stated that, to avoid breaching the proposed Act, surveillance users must ensure their operations can be justified according to one or more of the criteria enumerated above.42 Fairfax interprets this statement as requiring “an affirmative case to be made out first, that the use is for protection of the public interest or protection of a “legitimate” interest, and thereafter that any infringement of a private right to privacy is outweighed by those factors.”43 To what “case” does this refer, and to whom is it presented? Under the regulatory regime being proposed, overt surveillance users require no prior approval in conducting their activities. Subsequently, they may be called to account if a complaint is made. Even under existing self-regulatory codes44 the invasion of personal privacy is not sanctioned unless in the public interest. It must be assumed, therefore, that the media already engages in the exercise of considering whether any surveillance it undertakes is in the protection of the public interest. The concept referred to by Fairfax, of “a private right to privacy”, is not alluded to in the Interim Report, nor is it applicable to the proposed legislation.
4.24 The Interim Report stated45 that “in cases of doubt, recourse may be had to the Privacy Commissioner for a ruling as to whether the purpose is acceptable.” SBS responded46 that it:
does not believe it is appropriate for an external body to be given responsibility for ruling on definitions of public interest for the purposes of news gathering and media reporting. There would also be practical problems in obtaining consent in the case of breaking news.
Fairfax47 rejected:
any suggestion that it should be in a position to have its publications “vetted” in this or any other way by a non-elected non-judicial appointee of the executive government, according to subjective and as yet undefined notions of taste or propriety.
4.25 In complying with Principle 2 – as with Principle 1 – media organisations and other overt surveillance users are expected to make their own decisions and use their own judgment. With regard to overt surveillance, no suggestion of “vetting” or need to obtain consent from any kind of official was mentioned. As was clear from the words used, no compulsion is involved in the suggestion that “recourse may be had”48 to the Privacy Commissioner for guidance. This suggestion was put on a purely discretionary basis and entirely at the instigation of the surveillance user.
4.26 Privacy NSW expressed the view that the four categories of acceptable purpose should be restricted. For example, with respect to private individuals or organisations, protection of the public interest should only be claimable by the news/current affairs media.49 Furthermore, Privacy NSW suggested that overt surveillance by “domestic” users to protect the person or property should only be permissible on the user’s own property, including entrances and exits, while surveillance of neighbouring properties should not be permitted at all. In the context of commercial users of overt surveillance Privacy NSW commented:50
The Act should allow regulations to be prescribed to define the limits of what may be considered “reasonably necessary” for [the protection of their property, commercial interests, or the personal safety of their staff or clients], allowing for some differences across industry sectors, taking account for instances of the type and frequency of surveillance and the relative risks to the organisation.
Given the countless instances of legitimate surveillance usage in society, and the varying circumstances in which they occur, the adoption of these suggestions would lead to a scheme of regulation that is overly prescriptive, lacking flexibility, and difficult to administer. Other Overt Surveillance Principles, such as those that protect a reasonable expectation of privacy, and require that surveillance be conducted in a manner appropriate for purpose,51 are designed to allow for adjustments to the facts of a particular case.
4.27 Privacy NSW suggests52 that, as Principle 2 “reflects the sense of the fundamental threshold nature of the ‘purpose’ test”, it should be Principle 1. The Commission agrees that any proposed legislation should reverse the orders of Principles 1 and 2 as they appear here and in the Interim Report.
Principle 4 Notice provisions shall identify the surveillance user
4.28 It was proposed in the Interim Report53 that notices advising the public that surveillance is being conducted in an area should also be required to display the identity of the surveillance user and provide contact details to which enquiries and complaints can be directed. Privacy NSW suggests54 this be taken further, and public sector surveillance users required:
at a minimum … [to] be obliged to erect signs which show the agency’s name, the purpose of collection, and the circumstances in which footage will be used and disclosed to other authorities. A phone contact number should be included to identify who should be contacted to obtain additional information.
The Commission does not regard this measure as contributing a practical benefit, and may rather contribute to visual clutter through excessive signage. The salient feature of Principle 4 is that a member of the public wishing to gain more information pertaining to the surveillance should be able to do so without undue difficulty.
Principle 5 Surveillance users are accountable for their surveillance devices and the consequences of their use
4.29 Paragraphs 4.50 and 4.51 of the Interim Report, together with Recommendation 20, suggest measures for keeping account of surveillance devices, in particular a requirement that a register be kept of such details as the number and location of surveillance devices. SBS queried55 whether this was intended to apply to the media. It was not intended to apply to the media’s news gathering equipment (as opposed to station security cameras and the like), and an exemption to this effect should be included in the proposed legislation. Recommendation 20 required both public sector surveillance users and “relevant surveillance users” to maintain a register. 56 With the abandoning of the proposal that codes of practice be mandatory, reference to a “relevant surveillance user” is redundant. The Principle should therefore apply to public sector users, as well as private non-domestic users. Regulations could stipulate which surveillance users falling into the latter category need to keep a register. Proprietors of a corner store, for example, who operate a single security camera, could be exempted from this requirement.
Principle 6 Surveillance users must ensure all aspects of their surveillance system are secure
4.30 This principle is concerned with establishing a secure system of CCTV and similar surveillance devices, so as to ensure that the integrity of the system and the confidentiality of material collected, are maintained. The surveillance material referred to in para 4.59 of the Interim Report was the type obtained from security devices. SBS addressed this Principle57 in terms of the restrictions it places on copying or transcription of material. This issue will be referred to in the discussion below of Principle 7. It is proposed to exempt the media from compliance with Principle 6 in the context of news gathering.
4.31 In furtherance of this principle, the Interim Report recommended58 that staff operating equipment in control rooms with which to conduct overt surveillance should be licensed in accordance with the Security Industry Act 1997 (NSW). Under that Act a person must hold a licence in order to carry out a security activity.59 A person carries on a “security activity” if, in the course of conducting a business or in the course of employment, the person patrols, protects, watches or guards any property,60 or installs, maintains, repairs or services security equipment.61 The Interim Report stated the Commission’s understanding that staff hired to monitor security cameras are required to hold a licence under the Security Industry Act 1997. Recommendation 21 went further, recommending that the definition of “security activity” be widened to include the monitoring or operating of surveillance (as opposed to security) equipment. The Commission has received confirmation62 that the watching of security camera monitors is considered to fall within the definition of a security activity. Section 4(b) is intended to apply to those persons employed specifically for this function, but not to those who may, in the course of other duties, undertake such activity eg, a receptionist providing access to visitors or staff members after first ascertaining their identities from a monitor.
4.32 In relation to other types of surveillance devices, such as tracking devices, which are not necessarily used for security but rather as “an asset and/or employee management tool”, the Security Industry Act 1997 has been interpreted to exclude their monitoring from a licensing requirement.63 The Commission received a submission from Minorplanet Asia Pacific Pty Limited (“Minorplanet”), a company that installs and maintains Vehicle Management Information (“VMI”) systems. These rely on tracking devices for clients to manage risks and costs arising from operating a fleet of vehicles.64 According to Minorplanet, the VMI systems are used by their clients to provide information relating to the location of vehicles in their fleet, distances and speeds travelled by their vehicles, and the lengths of time for which vehicles are driven and stationary. The information is used for developing more efficient route plans, minimising unauthorised use of vehicles, proof of site visits and times, and other benefits to Minorplanet’s clients.65 Minorplanet maintains that the primary purpose for which its clients use its product is to track vehicles.66 It submits that on the present definition its clients are not engaged in security activities;67 however, were our recommendation to be adopted, their clients would require licences to carry out what are essentially fleet management, and not security, activities.
4.33 If the VMI systems are being used to track vehicles, then they are not surveillance devices within the meaning of the proposed Act. For a device to be regarded as conducting surveillance, it must be obtaining information about a person.68 One of the Commission’s concerns is that equipment such as tracking devices installed in vehicles can be used to keep the drivers of the vehicles under surveillance. In that circumstance, and where drivers have been notified of their use, the Commission is of the view that such devices should be operated only in accordance with the Overt Surveillance Principles. However, monitoring employees by means of such devices is the subject of a draft bill released in June 2004. The Workplace Surveillance Bill 2004, which has yet to be introduced into Parliament, would extend the regulatory scheme in the Workplace Video Surveillance Act 1998 (NSW) to tracking surveillance and computer surveillance.69 To avoid potential duplication of regulatory measures, the Commission does not plan to proceed with Recommendation 21 at this time.
Principle 7 Material obtained through surveillance to be used in a fair manner and only for the purpose obtained
4.34 The Interim Report stated70 that, where it is sought to use material obtained for one acceptable purpose for another acceptable purpose, an order could be made to this effect. The Commission has decided to dispense with the requirement for an order, as this may prove an unduly cumbersome process for making surveillance material available for what is an acceptable purpose. This should meet the objections of SBS71 and ABC72 , that limitations would be imposed on the provision of material to members of the public (for example, through copying and transcription) and on the sharing of information with other broadcasters and publishers.
Principle 8 Material to be obtained through surveillance to be destroyed within specified period
4.35 In paragraphs 4.64 to 4.66 of the Interim Report we discussed the optimum period for which surveillance material should be retained, setting the limit at 21 days, with extensions of time available in certain circumstances. The Report also made clear that this did not apply to the media where the material was obtained overtly and genuinely for media purposes, so that it could be retained for file footage. This is a wide exemption. SBS stated73 that this Principle was in contravention of its obligations to retain records under the Archives Act 1983 (Cth). To clarify the situation, the Commission proposes exempting from this Principle material obtained overtly and genuinely for media purposes.
Recommendation 1
The use of overt surveillance should be in accordance with the proposed Surveillance Act. For the purposes of the proposed Act the following are the Overt Surveillance Principles:
Overt Surveillance Principle 1:
Overt surveillance must only be undertaken for an acceptable purpose.
Overt Surveillance Principle 2:
Overt surveillance should not be used in such a way that it breaches an individual’s reasonable expectation of privacy.
Overt Surveillance Principle 3:
Overt surveillance must be conducted in a manner that is appropriate for purpose.
Overt Surveillance Principle 4:
Notice provisions shall identify the surveillance user.
Overt Surveillance Principle 5:
Surveillance users are accountable for their surveillance devices and the consequences of their use.
• Public sector surveillance users and private non-domestic surveillance users, as part of their compliance with this Principle, must maintain a register containing such details as the number, types and locations of all their overt surveillance devices. Regulations should specify the details required, together with criteria identifying private surveillance users to whom this requirement applies.
• News gathering equipment operated by media organisations is exempt from any requirement to be listed in a register of surveillance devices.
Overt Surveillance Principle 6:
Surveillance users must ensure all aspects of their surveillance system are secure.
• This does not apply to media organisations in the context of their news gathering activities.
Overt Surveillance Principle 7:
Material obtained through surveillance to be used in a fair manner and only for the purpose obtained.
Overt Surveillance Principle 8:
Material to be obtained through surveillance to be destroyed within specified period.
• Material obtained overtly and genuinely for media purposes is exempt from this Principle.
Role of the Privacy Commissioner
4.36 The Interim Report suggested various responsibilities and tasks that could be undertaken by the Office of the Privacy Commissioner.74 However, Privacy NSW rejected75 some of these, due to potential conflicts arising in cases which the Office might be called on to investigate and in which it had previously furnished advice. It also cited a lack of resources. It agreed with proposals regarding general powers76 and inspection powers.77 With regard to the latter, Privacy NSW suggested78 that the proposed Act clarify that inspection might occur either as part of dealing with a complaint lodged with the Office or on a routine or random basis. The Commission agrees with this suggestion.
4.37 The Interim Report also suggested that a role in educating the public would be beneficial.79 An example is publishing information relating to the use of CCTV and other surveillance devices, emphasising the need to protect personal privacy, and outlining the acceptable use of such devices. As well, Privacy NSW, acting in an advisory capacity only, could assist surveillance users to draft codes of conduct.
Recommendation 2
With respect to the regulation of overt surveillance, the Privacy Commissioner should have the following powers and functions:
• promoting, and providing assistance (eg, educational) for, compliance with the Overt Surveillance Principles;
• assisting surveillance users in drafting codes of practice;
• appointing inspectors to investigate complaints, and to conduct both routine and random inspections of surveillance systems or devices to ascertain compliance with the proposed Act;
• right of entry to non-residential premises to inspect surveillance systems or devices to ascertain compliance with the proposed Act;
• educating the public on the acceptable use of surveillance devices.
FOOTNOTES
1. Para 1.9.
2. Report 98, Rec 9, 13.
3. Report 98 at para 4.26-4.28.
4. Report 98 at para 4.26.
5. Fairfax, Submission at 6.
6. Report 98 at para 4.26.
7. ABC, Submission at 6.
8. SBS, Submission at 9.
9. Eg para 3.4-3.5.
10. SBS, Submission at 9-10.
11. Report 98 at para 4.26.
12. Privacy NSW, Submission at 4.
13. Privacy and Personal Information Protection Act 1998 (NSW) s 33.
14. Privacy NSW, Submission at 4.
15. See also Rec 17.
16. Report 98 at para 4.41-4.43.
17. SBS, Submission at 10.
18. Free TV, Submission at 14.
19. Report 98 at para 4.42.
20. SBS, Submission at 11.
21. Cf Australian Press Council Privacy Standards November 2001 “Public figures necessarily sacrifice their right to privacy, where public scrutiny is in the public interest. However, public figures do not forfeit their right to privacy altogether. Intrusion into their right to privacy must be related to their public duties or activities.”
22. [2004] 2 All ER 995.
23. [2004] 2 All ER 995 at 1012.
24. [2004] 2 All ER 995 at 1011.
25. [2004] 2 All ER 995 at 1026.
26. Von Hannover v Germany (application no 59320/00) at para 69.
27. “Lees Media Deal Reaches Stalemate” ABC Online (21 May 2004) «www.abc.net.au/news/newsitems/s1113058.htm».
28. Free TV, Submission at 14.
29. Media Entertainment and Arts Alliance, “Australian Journalists’ Association Code of Ethics” (as at 7 September 2004) «www.alliance.org.au/hot/ethicscode.htm» , Principle 11.
30. Special Broadcasting Service, “Codes of Practice” (as at 25 October 2004) «sbs.com.au/media/1706Codes.pdf», cl 2.7.
31. Australian Broadcasting Corporation, Code of Practice 2004 (as at 12 October 2004) «www.abc.net.au/corp/codeprac04.htm» cl 2.5. See also ABC Editorial Policies cl 10.9 «abc.net.au/corp/edpol02.pdf».
32. Free TV Australia, “Commercial Television Industry Code of Practice July 2004” (as at 6 September 2004) «203.147.163.200/documents/Code_of_Practice_July_2004.pdf», cl 4.3.5.
33. Australian Press Council, “Statement of Principles” (as at 12 October 2004) «www.presscouncil.org.au/pcsite/complaints/sop.html» principle 3.
34. United Kingdom Press Complaints Commission, “Code of Practice” (as at 26 October 2004) «www.pcc.org.uk/cop/cop.asp» cl 3.
35. Privacy NSW, Submission at 6.
36. Section 11.
37. Section 11(b).
38. Privacy NSW, Submission at 7.
39. Report 98 at para 4.44.
40. Fairfax, Submission at 7.
41. Report 98 at para 3.19. See also para 1.34 regarding the important social contribution of the media.
42. Report 98 at para 4.45.
43. Fairfax, Submission at 7.
44. See para 4.16.
45. Report 98 at para 4.46.
46. SBS, Submission at 11.
47. Fairfax, Submission at 8.
48. Report 98 at para 4.46.
49. Privacy NSW, Submission at 10.
50. Privacy NSW, Submission at 10-11.
51. Principle 3: see Report 98 at para 4.47.
52. Privacy NSW, Submission at 8.
53. Report 98 at para 4.48-4.49.
54. Privacy NSW, Submission at 12.
55. SBS, Submission at 12.
56. Report 98 at para 4.57.
57. SBS, Submission at 12.
58. Report 98, Rec 21.
59. Security Industry Act 1997 (NSW) s 7.
60. Security Industry Act 1997 (NSW) s 4(b).
61. Security Industry Act 1997 (NSW) s 4(c).
62. Information supplied by P Houlton, Registrar, Security Industry Registry, NSW Police (by letter dated 15 December 2004).
63. Letter, Security Industry Registry.
64. Minorplanet, Submission at 1.
65. Minorplanet, Submission at 2.
66. Minorplanet, Submission at 3.
67. Minorplanet, Submission at 5.
68. Report 98, Rec 1, 2.
69. L Roth, Workplace Surveillance (Briefing Paper 13/04, NSW Parliamentary Library Research Service, 2004) at 1.
70. Report 98 at para 4.61.
71. SBS, Submission at 12-13.
72. ABC, Submission at 6.
73. SBS, Submission at 13.
74. Report 98 at para 4.68-4.70.
75. Privacy NSW, Submission at 5.
76. Report 98 at para 4.68.
77. Report 98 at para 4.70.
78. Privacy NSW, Submission at 6.
79. Report 98 at para 4.69.
