5. Covert surveillance recommendations
Updates and background for this project (Digest)
5.1 This chapter examines specific recommendations concerning the conduct of, and accountability for, covert surveillance. The three-pronged structure follows that of Report 98, which provides for separate but complementary authorisation procedures for covert surveillance depending on whether it is conducted in the course of law enforcement, the public interest or employment. Some discussion in this Chapter is motivated by developments that have occurred following the release of the Interim Report, but in most cases the issues discussed are those raised in submissions and consultations.
5.2 Having taken all things into account, the Commission sees no need to recommend changes to the authorisation or accountability procedures set out in Report 98 for covert surveillance in law enforcement or employment. So far as covert surveillance in the public interest is concerned, while the Commission considers that the overall authorisation and accountability mechanisms remain valid, some changes are recommended, largely in response to the submissions received from media organisations and representatives of the insurance and private investigation industries.
COVERT SURVEILLANCE BY LAW ENFORCEMENT OFFICERS
Recommendations in Report 98
5.3 Chapter 5 of Report 98 outlines in detail the Commission’s 47 recommendations concerning the regulation of covert surveillance conducted by law enforcement agencies.1 Those recommendations are based for the most part on the existing warrant regime set out in the Listening Devices Act 1984 (NSW) (“the LDA”). In summary, the Commission recommends that all covert surveillance conducted by law enforcement officers2 must be authorised under a warrant issued by an “eligible judge” as declared by the Attorney General.3 Warrants may be issued to authorise the use of any surveillance device4 and in respect of any offence.5 The Commission also made a series of recommendations concerning the grounds for determining whether the granting of a warrant can be justified,6 the powers that may be authorised under a warrant,7 as well as the specific information that must be provided to an eligible judge in a warrant application and contained in the warrant itself.8 The Commission also recommended that a warrant should be in force for a maximum of 30 days.9 The need to obtain a warrant in emergency situations was also acknowledged by the Commission, with provision being made for warrant applications to be transmitted by telephone, facsimile, email or other electronic means, and sought retrospectively in certain circumstances.10
Views in submissions
5.4 The Commission received only one submission on the issue of covert surveillance by law enforcement officers, that being from Privacy NSW. Although agreeing with the majority of the Commission’s recommendations, Privacy NSW disagreed specifically with two of the Commission’s recommendations concerning covert law enforcement. First, Privacy NSW considered that Recommendation 24, which provides that an application for a warrant should be able to be made with respect to any offence, should instead provide that a covert surveillance authority should only be available regarding serious indictable offences carrying a maximum penalty of at least seven years imprisonment.11 Secondly, Privacy NSW was of the view that Recommendation 25 should be amended to provide that only Supreme Court judges should be allowed to issue warrants.12
The Commission’s view
5.5 The Commission considered both of these issues in developing the recommendations for the Interim Report. In relation to Recommendation 24, the Commission noted that it is often not possible, when applying for a warrant, to know in advance whether the criminal activity under investigation would result in a prosecution for a summary or an indictable offence,13 or whether it would fall within the category of offences carrying a maximum penalty of seven years imprisonment or longer.14 Further, some offences, although not indictable, may be very serious in nature and warrant the use of covert surveillance in particular circumstances. The Commission continues to hold the view that not limiting the category of offences for which warrants may be sought is in the best interests of effective law enforcement, and considers that the fact that a warrant application must pass judicial scrutiny before any covert surveillance can occur is a sufficient safeguard against abuse. Given that the Commission also recommends that covert surveillance should be able to be authorised when justified in the public interest and in employment situations, it would seem anomalous to restrict law enforcement agencies access to covert surveillance in respect of particular offences.
5.6 So far as Recommendation 25 is concerned, the Commission noted in Report 98 that, while it was envisaged that “eligible judges” should wherever possible be drawn from the Supreme Court, there are two main reasons for not recommending that the legislation should restrict the category solely to Supreme Court judges. First, as the use of surveillance devices to combat criminal activity increases due to developing technological sophistication, the number of Supreme Court judges who have consented to become “eligible judges” may be insufficient to meet demand. Secondly, it may be impractical in rural areas to bring an application before a Supreme Court judge, which could jeopardise a covert operation.15 While in this situation it may be possible to send an electronic emergency application,16 or apply for retrospective authorisation,17 the Commission is of the view that these provisions should be limited only to situations of genuine emergency and not resorted to because of administrative deficiencies in the warrant regime. Consequently, the Commission does not see any reason to deviate from Recommendation 25, which preserves the current position in the LDA.18
5.7 With regard to the remaining recommendations in Chapter 5 concerning the authorisation process for covert surveillance in law enforcement, the Commission has not been presented with any reason to recommend changes. The same applies for the accountability requirements in Chapters 8 and 9 insofar as covert law enforcement is concerned. The Commission is of the view that these recommendations provide the appropriate balance between efficient and effective law enforcement and the need to safeguard the privacy interests of those subject to intrusive surveillance. The recommendations were framed to be broad and flexible enough to avoid the need for constant change.
Mutual recognition
5.8 As noted in Chapter 2, in late 2003, the Standing Committee of Attorneys-General and the Australasian Police Ministers’ Council Joint Working Group on National Investigation Powers produced a report (“the Joint Working Group Report”) recommending model legislation dealing with cross-border investigative powers for law enforcement agencies.19 The model laws relating to covert surveillance recommend procedures for authorising warrants, exceptions to the warrant provisions, and accountability measures, including reporting requirements and restrictions on the use of “protected information”. The model laws are based on what the Joint Working Group considered to be the best practice provisions in existing Commonwealth, State and Territory surveillance legislation.20
5.9 The intention in developing the model laws was that the Commonwealth and the States and Territories would legislate to adopt the model laws to facilitate a more streamlined warrant application process in circumstances where investigations extend beyond the border of a single State. In order to qualify for a warrant under the model laws, a law enforcement agency must satisfy the issuing authority in State A that the investigation will, or is likely to, cross the border into State B.21 Should the warrant be issued, it would be recognised not only in State A, but also in State B (providing State B has adopted the model laws) without needing to obtain a separate warrant under the laws of State B, or involve the law enforcement agencies of State B. The Joint Working Group made it clear that the model laws are not intended to replace existing intra-state laws, but create an additional regime for cross-border investigations, thereby creating a dual system of surveillance regulation for law enforcement agencies.22 The Joint Working Group Report notes that this reflects, to some extent, the “reality that each State and Territory has very different privacy and surveillance devices laws, making consistency in areas other than cross-border investigations difficult to achieve”.23
The model laws
5.10 The model laws differ from the Commission’s recommendations concerning covert surveillance in the following material respects. First, they are device-specific, covering only listening devices, optical surveillance devices, data surveillance and tracking devices. In addition, the laws distinguish between tracking and other devices, enabling tracking devices to be authorised by a magistrate (rather than a Supreme Court judge as per the other devices), as they were considered by the Joint Working Group to be less privacy invasive. In Report 98, the Commission discusses at length the drawbacks of device-specific legislation, and how increasingly convergent technology makes a distinct authorisation procedure for specific types of devices somewhat near-sighted and quickly outdated.24 Secondly, warrants to conduct covert surveillance under the model laws may only be sought in relation to offences carrying a maximum penalty of three years imprisonment or more. The Commission notes at paragraph 5.5 above its reasons for not adopting this approach.
5.11 Other procedural differences include the recommendation in the model laws that a law enforcement officer of the rank of Inspector or above be empowered to issue emergency authorisations, which must be brought before a Supreme Court judge for approval within two business days.25 The Commission is of the view that, given the serious privacy incursions involved in covert surveillance, judicial scrutiny of all warrant applications is desirable, and that remote applications by electronic means and the availability of retrospective authorisation should be sufficient to deal with emergency situations.26 The model laws also recommend that the maximum duration of a warrant should be 90 days,27 whereas the Commission recommends a 30 day maximum (in the interests of greater privacy protection and accountability), with the opportunity for further applications to be made should the time prove insufficient.28
The Commission’s view
5.12 The Commission notes that the adoption of both the model laws and the Commission’s recommendations would result in two distinct covert surveillance regimes for intra-state and cross-border investigations. This could result in NSW police being required to observe one standard of accountability when undertaking investigations within NSW, and different standards when an investigation becomes cross-border. Similarly, interstate police would be able to conduct covert surveillance in NSW in relation to cross-border investigations subject to different accountability measures from those applicable to NSW police investigating NSW offences.
5.13 The Commission does not make any recommendation concerning whether or not NSW should participate in the model laws scheme, since its operation would extend beyond the borders of NSW. However, the Commission is of the view that its recommendations in Report 98 concerning surveillance by law enforcement officers remain the most effective way of upholding the dual public interests of efficient crime prevention and detection as well as the protection of individual privacy.
COVERT SURVEILLANCE IN THE PUBLIC INTEREST
Recommendations in Report 98
5.14 In Chapter 6 of Report 98, the Commission made a series of recommendations concerning covert surveillance in the public interest, recognising that there may be situations where a particular public interest may be so significant as to justify the displacement of individual privacy in certain circumstances. Due to the serious and intrusive nature of covert surveillance, the Commission recommended an authorisation process, as well as reporting and accountability measures,29 roughly equivalent to those recommended for law enforcement officers.
5.15 The Commission examined the meaning of the term “public interest”, and looked at comparable legislation in Western Australia, noting that the term could include media reportage, as well as surveillance conducted by private investigators and individuals, and could encompass the protection of private rights and interests in appropriate circumstances. The Commission concluded that the nebulous nature of the “public interest” defied precise definition, and recommended instead that the term should be interpreted broadly on a case by case basis by the authority issuing the authorisation to conduct covert surveillance in the public interest, and supplemented by guidelines supplied by the Privacy Commissioner.30
5.16 The Commission discussed the issue of whether a court or a specialist tribunal would be the most appropriate authority to issue public interest authorisations, deciding to leave the question open on the basis that the answer would be likely to be determined by practical matters such as the availability of resources.31 The Commission also made recommendations concerning the information that should be provided to the issuing authority, the factors to be considered in determining whether or not a public interest authorisation should be issued,32 and the type of information that should be contained in such an authorisation.33 The Commission also recommended that retrospective authorisation should be available in circumstances where prior authorisation is not possible or practicable.34
Views in submissions
Definition of public interest
5.17 The Australian Broadcasting Corporation (“the ABC”) was of the view that there should be some broad inclusive legislative guidelines on what constitutes “public interest” which, to ensure consistency with the Australian Constitution, should refer to the discussion of government and political matter.35 The Special Broadcasting Service Corporation (“SBS”) also considered that there should be a legislative definition of public interest to make it clear what conduct is covered, and to prevent the authorising body from developing its own “objectionable criteria unfettered by any legislative restraints”.36 However, SBS was also of the view that the categories of public interest should not be foreclosed. SBS further considered that the examples of public interest given by the Commission do not adequately cover all aspects of the public interest and that it, as a media organisation, is “already positioned to determine that which serves a legitimate public need to enable the media to perform the public interest role”.37
5.18 Privacy NSW was also concerned that the term “public interest” is commonly misunderstood, manipulated or inconsistently applied, and should therefore be specifically defined in the new Act in a way that “weighs appropriately the public interest in the protection of privacy as a human right against other interests”. Privacy NSW agreed with the examples provided by the Commission at paragraph 6.11 of Report 98,38 but considered that the emphasis should be on “ethical” rather than “immoral” behaviour. They also suggested that the definition could be supplemented by guidelines in regulations made by the Attorney General on the advice of the Privacy Commissioner.39
The Commission’s view
5.19 In Report 98, the Commission did not consider it necessary to define the term “public interest”, since its amorphous nature would mean that only a very broad, abstract (and virtually meaningless) definition would be appropriate. It is not possible to determine in advance every instance in which surveillance in the public interest would be justified.40 Indeed, the difficulties inherent in the concept of public interest are evident in the SBS submission, which advocates a clear definition, but not one which proscribes the categories of public interest.
5.20 The Commission noted that the Surveillance Devices Act 1998 (WA) defines public interest as including:
the interests of national security, public safety, the economic well-being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens.41
However, the Commission also noted that a definition is more relevant and helpful in the Western Australian context since their Surveillance Devices Act does not require authorisation prior to conducting covert surveillance in the public interest.42 Under the Commission’s recommended model, covert surveillance in the public interest would not be able to be conducted without prior authorisation by the issuing authority, which would weigh that particular interest or interests against considerations of privacy and other public interests, and so a broad definition would be of little value.
5.21 Nevertheless, while considering it unnecessary, the Commission is not completely opposed to an open-ended, inclusive definition of public interest, should that be considered desirable. That definition could be based on the Western Australian model, and should provide examples of the type of circumstances that may justify covert surveillance in the public interest, along the lines of those listed at paragraph 6.11 of Report 98. Those circumstances include, but are not limited to, allegations of:
• bribery or corruption scandals;
• paedophilia or child abuse;
• breaches of hygiene standards;
• medical negligence;
• insurance fraud;
• practices by retailers or manufacturers which may contravene consumer protection laws;
• threats to an individual’s personal safety or legal or human rights;
• extortion or blackmail;
• the threat of misrepresentation or wrongful prosecution; or
• other illegal or unethical practices.
5.22 Whether or not the new surveillance legislation specifically defines public interest, the Commission continues to endorse Recommendations 50 and 51, namely, that the term should be interpreted as broadly as possible by the issuing authority, and that the Privacy Commissioner should be empowered to develop guidelines as to what may constitute the public interest from time to time.
5.23 The Commission also acknowledges the views of media organisations and Privacy NSW, to the effect that the specific role of the media in promoting the public interest, and the importance of privacy interests, should be specifically mentioned in any definition of public interest. However, the Commission considers that these issues should more appropriately be dealt with under the factors to be considered when deciding whether or not to grant a public interest authorisation, rather than in any definition of public interest.43
Impact on the media
Current media surveillance practices
5.24 The ABC noted that it does not engage in covert surveillance “as a matter of course”, but where “all other appropriate avenues have been explored, appropriate editorial decision making has occurred and it believes that there is a legitimate public interest in doing so”, and distanced itself from the “unsavoury practices” that characterise “some tabloid sections of the media”.44 Before using hidden cameras, the ABC’s Editorial Policies require ABC Legal Services to be consulted, and the material obtained may not be broadcast without the approval of the Managing Director “having regard to the editorial principles and on the advice of the relevant divisional Director”.45
5.25 SBS also stated that it uses covert surveillance “rarely and only in exceptional circumstances”, following a “rigorous editorial process”.46 Despite this lack of frequency, SBS maintained that the impact of the Commission’s recommendations would be severely restrictive, would “outlaw some of the most important journalistic investigation, and significantly inhibit investigative journalism justified in the public interest by requiring media organisations to convince judges that the investigation is genuine”.47
Media’s view of the Western Australian experience
5.26 At the consultation meeting held with media organisations, the Commission asked the media to detail their experience in dealing with the public interest provisions of the Surveillance Devices Act 1998 (WA), which have been in operation for a number of years now.48 The ABC considered the Western Australian Act to be unworkable, contending that retrospective authorisations from a judge to publish surveillance material under Part 5 of the Act have generally cost “up to $5,000”. “The time involved and the uncertainties of obtaining authorisation for such surveillance is often no longer a practical option for the media”.49
5.27 Free TV Australia (“Free TV”)50 considered that the WA Act has “severely curtailed the ability of the media to communicate freely with members of the public on matters that are in the public interest”.51 Free TV stated that the WA provisions are rarely used in practice due to the cost involved in preparing affidavits and attending hearings (estimated at $3000-$5000), the risk of the application being refused and the money being wasted, and the delays involved.52 Therefore, the WA media “work around” the legislation by filming only in public places, not investigating stories where footage is thought to be unobtainable, or leaving out critical aspects of a story.53
5.28 The Australian Press Council noted the differences between the WA Act and the Commission’s recommended scheme, with the WA applying only to “private” conversations and activity. The Council reported that local WA newspapers have considered the effect of the WA law on newspapers and journalists to be “intangible”, in that it has not prevented publication of material. “The West Australian has made only one application for publication under the provisions of the Act … The court granted an order enabling publication of the transcript but also ordered that the transcripts and tapes be sent to the police”.54 Nevertheless, the Press Council is concerned about the capacity of the authorisation process to cause cost and time problems.55
Application and authorisation process
5.29 All the media organisations with whom the Commission consulted were opposed to the application and authorisation process recommended by the Commission in Chapter 6 of Report 98. The ABC maintained that the Commission’s recommendations concerning covert authorisations are likely to be unworkable, and would “rarely, if ever, result in the media obtaining an authorisation”.56 The ABC was concerned that this would “severely curtail the media’s capacity” to report on matters in a way that serves the public interest,57 and would operate as a prior restraint on free speech and media freedom.58 The ABC was of the view that the courts generally “have been reluctant to recognise the bona fide role of media in society in informing the public about matters of public interest”.59 The ABC suggested that the legislation should expressly provide that, when considering an application to conduct covert surveillance, a judge must take into account “the legitimate and important role played by the media in society in informing the public about matters of public interest”.60
5.30 The ABC also considered that, in making an application to conduct covert surveillance, it may prejudice aspects of its investigation, force the revelation of confidential sources, or encroach upon its editorial independence and prevent or delay the publication of material which the ABC considers to be important and in the public interest.61 The ABC was also concerned about the time and cost of making applications to conduct surveillance.62 SBS also considered that the authorisation process would be too time consuming, and would impinge on its ability to report in a timely manner, and in some instances prior authorisation would not be feasible. SBS contends that the media would be unlikely to risk applying for authorisation retrospectively, due to the possibility of incurring criminal sanctions.63 Free TV was also concerned about the administrative burden that the authorisation process would have on the media, and that it would prejudice getting a “scoop” on stories.64 Free TV stated that it is not always possible to get prior authorisation as it may not be initially clear what the surveillance footage will show up, and agreed with SBS that the risk of criminal prosecution would deter many media organisations from applying for retrospective authorisation.65
5.31 SBS raised some practical questions concerning the operation of the recommendations. For example, it was suggested that, in an exceptional circumstance, a story may be filmed in South Australia, the recording of which would be illegal in NSW, and SBS would need to seek the means to broadcast the story in all states except NSW.66 SBS also queried how the “purpose” of a covert surveillance authorisation would be defined (for example, if an authorisation is sought in relation to an investigation for one particular program, could the material be used for another SBS program, or given to a member of the public).67
5.32 Fairfax agreed with the ABC that the recommendations concerning public interest authorisations were couched in terms “so narrow that the media will never be capable, as a matter of practical reality, of satisfying it”.68 Fairfax also expressed the view that the issuing authority should not be in a position to “take the part of publisher” in deciding the uses to which surveillance material should be put.69 Fairfax also agreed with Privacy NSW in considering that only judicial officers should be able to make decisions concerning authorisations.70
5.33 Privacy NSW agreed with the Commission about the need for prior public interest authorisations, and did not consider that this would prevent legitimate public interest stories from being published.71 Privacy NSW further considered that authorisations should only be able to be sought by news or current affairs media, licensed security operators and private investigators. Privacy NSW did not believe that the media themselves are in a position to define the balance between the “public interest” in a story, and the public interest in the protection of privacy, as evidenced by examples of covert surveillance conducted inappropriately by the media in the past.72
Accountability measures
5.34 Fairfax considered that the administrative requirements contained in Recommendations 67-80 are too onerous for the media, and objected strenuously to those recommendations on the basis of the inherent threat to free speech, and the increased financial burden the authorisation and reporting mechanisms would place on the public purse.73 Fairfax also considered Recommendations 81-87 (re publication of surveillance material) to be “unacceptable” and flawed with regard to the media, and would prevent them from using material obtained in ways which could “in no way be said to amount to surveillance in any normal sense of that term”.74 Fairfax was particularly concerned that material must be reported to the AG.75
5.35 The ABC also held the view that the requirement of maintaining records on the use of surveillance equipment, and the restriction on use of material for purposes other than authorised ones, was unduly onerous and unworkable. Further, the ABC asserts that the requirement to destroy material is inconsistent with its statutory obligations under the Archives Act 1983 (Cth).76 The Australian Press Council and News Limited agreed.77
Complaints process and sanctions
5.36 Fairfax opposed any application of criminal sanctions to the media, as well as the recommended civil action for damages,78 saying it “can confidently be predicted to give rise to a wave of litigation, which does not focus on anything like surveillance, properly so called, but in truth will amount to speculative actions for breach of privacy”.79 Also, Fairfax indicated that it would “vigorously oppose” the introduction of orders for apology or retraction, claiming that such a thing is “unprecedented”.80 The Australian Press Council also objected to the role of the Privacy Commissioner in hearing and determining complaints, as recommended by the Commission.81
The Commission’s view
5.37 In the Commission’s view, the media organisations consulted object to the recommendations on the basis of the following broad categories:
1. The belief that free speech will be impeded.
2. The concern that the cost and administrative burden may be too onerous.
3. Strenuous opposition to any system of regulation that is not self-regulatory.
Arguments concerning free speech
5.38 The Commission discussed the issues concerning privacy, free speech and surveillance in Chapter 3, noting that the privacy-focused approach favoured in Report 98 is not all-encompassing, but must be seen in its proper context.82 Regarding surveillance conducted by the media, the Commission continues to endorse the following comments made in Report 98:
Freedom of speech is a matter of fundamental importance, and the media have a significant role in upholding that freedom and presenting the public with information. This Report makes recommendations which, if implemented, will regulate the use of surveillance devices and the information obtained as a result. Restrictions placed on information gathering by covert means do not automatically amount to limitations on the freedom of the press or of free speech. The proposed legislation recommended by the Commission is not aimed at restricting freedom of speech in terms of what the media prints or broadcasts. It will merely ensure that, in upholding that freedom, the media respect other equally important public interests. In this way, the proposed legislation would be no more restrictive of freedom of speech than the current LDA, the criminal law, or the laws of trespass, defamation and contempt. Even if freedom of speech were an issue in this context, it is not an absolute freedom, and must sit with other fundamental interests.83
5.39 The Commission rejects the media’s claim that the recommendations would “rarely, if ever” result in an authorisation being granted to a media organisation. Where a legitimate public interest is at stake, it is difficult to see why an authorisation would not be granted. What also needs to be recognised is that the concept of public interest goes beyond freedom of speech, as does the media’s responsibilities. In addition to presenting the public with information, the media also play an important role in helping to ensure the public interest in the protection of personal privacy is upheld by not making unwarranted intrusions into privacy in the name of freedom of speech. It should also be kept in mind that, while covert surveillance may sometimes be justified to further the public interest, it will undoubtedly always represent a significant invasion of privacy.
Cost and administrative burdens
5.40 As noted in Chapter 3, not all activity conducted by the media will amount to surveillance. Only that activity that falls within the definition of surveillance recommended by the Commission would be caught by the provisions of the proposed legislation. As also noted in Chapter 3, for surveillance by the media to be classified as covert, there must be a deliberate intention to hide the fact from the person under surveillance that he or she is being filmed. Media organisations themselves have acknowledged that covert surveillance is conducted rarely and as a matter of last resort, so the cost and administrative burden on the media should not be that acute.
5.41 The reporting and accountability requirements set out in Report 98, applicable to all those, including the media, conducting covert surveillance, consist of:
• providing information based on affidavit to the issuing authority, specifying things such as the circumstances in which the device is to be used, the name of any person who is to be the subject of surveillance and who is to conduct the surveillance, the public interest(s) at stake, and the intended uses of the material obtained as a result;84
• reporting back the particulars of the surveillance to the issuing authority and to the Attorney General after the surveillance has been conducted;85
• keeping records concerning the covert surveillance conducted and allowing a designated inspecting authority (either the Privacy Commissioner or the Ombudsman) to inspect those records if required;86 and
• restrictions on the publication or communication of the material obtained as a result of the covert surveillance, subject to the purposes allowed under the terms of the public interest authorisation.87
5.42 While these requirements may seem onerous at first, in reality they amount only to organising and keeping information (and providing copies to two agencies) concerning the type of surveillance conducted, who is conducting it and who is the subject of it, the public interests at stake, and the duration of the filming and the ultimate use of the material. This information should not be difficult to gather or collate, and it would indeed be surprising if media organisations did not already keep such information in relation to the footage they film. Further, these requirements apply only to covert surveillance, to reflect the need for higher standards of accountability, and so would only need to be followed rarely by media organisations.
5.43 The Commission rejects the contention by media organisations that the Commission’s recommendations would result in preventing legally filmed material from being broadcast. Recommendation 82 provides that a public interest or employment authorisation must specify the purposes for which the information obtained as a result of covert surveillance may be used and the circumstances in which it may be published or communicated. So far as the media are concerned, the Commission envisages that the authorisation would simply state that any material legally obtained as a result of the covert surveillance being authorised may be published or broadcast at the discretion of the media organisation. The intention of Recommendation 82 was not to empower the issuing authority to specify the particular programs on which the material may be broadcast.
5.44 However, the Commission does consider that Recommendation 81 needs to be amended to clarify that the general prohibition on publication or communication of covert surveillance material may be overridden by the terms of a public interest authorisation. The Commission also agrees with the views expressed in submissions that the recommendation concerning destruction of material should be brought into line with the Archives Act 1983 (Cth).88
An independent arbiter of public interest
5.45 The Commission is of the view that much of the criticism of its recommendations from media organisations is based on the fact that the proposed regulatory scheme involves an independent arbiter of the public interest: that is, unlike the current system under which the media operate, it is not self-regulatory. In submissions, the media argued that they are in the best position to determine what constitutes the public interest, and consider it inappropriate for any other body to exercise this authority. As the Commission discussed in Report 98 and in Chapter 3 of this Report,89 the concept of public interest is multifarious and extends beyond the realm of the media. Further, while the media are uniquely charged with the responsibility of upholding and furthering the public interest through the material they publish and broadcast, there are many significant reasons why the media are not best placed to determine where the public interest lies in all cases, particularly where individual privacy concerns are at odds with ratings and circulation figures.
Conclusion
5.46 On the whole, the Commission is of the view that the system of prior and retrospective authorisation for covert surveillance in the public interest should remain, and should continue to apply to the media. As the discussion in Chapter 3 shows, covert surveillance by media organisations will only occur where there is a deliberate attempt to hide the fact of the filming from the subject. The comments from media organisations themselves indicate that this type of surveillance is not done regularly.
5.47 However, in light of the views raised in submissions, the Commission agrees that some amendments to the recommendations concerning covert surveillance in the public interest do need to be made. First, in recognition of the fact that all relevant factors need to be considered when determining whether or not to grant an authorisation, Recommendation 54 should be amended to require the issuing authority to have due regard to the role of the media in upholding the public interest. Clearly this dot point would only be relevant where a media organisation is seeking an authorisation.
5.48 Secondly, Recommendation 82 (public interest or employment authorisations to specify the purpose for which information may be used or published) should be amended to clarify that, where the applicant for such an authorisation is a media organisation, the authorisation should specify that the material may be broadcast or published at the discretion of the media organisation provided that it has been lawfully obtained within the terms of that authorisation. Following from this, Recommendation 81, which deals with the circumstances in which covert surveillance material may be published or communicated, should also be amended to clarify that material obtained as a result of a public interest authorisation may be released in accordance with the terms of that authorisation.
5.49 Finally, the Commission accepts that the media should be specifically exempted from the requirement to destroy surveillance material in Recommendation 87, so as to accord with the provisions of the Archives Act 1983 (Cth).
Recommendation 3
Recommendation 4
The Commission recommends that an additional dot point should be added to Recommendation 81, clarifying that material obtained lawfully in accordance with the terms of a covert surveillance authorisation may be communicated, published or broadcast in accordance with that authorisation (See Recommendation 5 below).
Recommendation 5
The Commission recommends that Recommendation 82 should be amended to clarify that, where the applicant for a public interest authorisation is a media organisation, the authorisation should specify that the material may be broadcast or published at the discretion of the media organisation provided that it has been lawfully obtained within the terms of that authorisation.
Recommendation 6
The Commission recommends that the media should be exempted from the requirements to destroy material obtained as a result of covert surveillance set out in Recommendation 87.
Impact on the insurance and private investigation industry
Industry representative bodies
5.50 The detection of insurance fraud arguably represents the most significant use of covert surveillance by private investigators. Submissions were received from two organisations representing the insurance industry: the Insurance Council of Australia (“ICA”) and the Investment and Financial Services Association Limited (“IFSA”).
5.51 Overall, both the ICA and IFSA recognised the need for surveillance to be regulated, and acknowledged the validity of privacy concerns while conducting surveillance in the public interest.90 However, both organisations were concerned that the recommended system of authorisation for covert surveillance may impact adversely on insurers, consumers and the government.91 In particular, IFSA was of the view that some of the Commission’s recommendations, if implemented, could “severely impact on the ability of life insurance companies to properly assess and manage insurance claims”.92 IFSA considered the proposed system of prior authorisation before covert surveillance could be carried out to investigate insurance fraud unduly onerous and inefficient, and that it could lead to delays in collecting vital evidence.93 The ICA argued that the recommendations could result in increased premiums and delays, even to the point of causing insurers to forgo investigations, resulting in a reduction in the detection of exaggerated or fraudulent claims.94 Accordingly, ICA sought an exemption for the general insurance industry.95
5.52 In terms of specific recommendations, the ICA noted that the recommended 30 day period for which an authorisation may be in force may be insufficient, given that investigations of personal injury claims may involve several separate surveillance exercises over a period of time.96 Also, the ICA queried whether the investigator, lawyer or insurer should apply for the authorisation, and that “public interest” should be more clearly explained.97
5.53 So far as the authorisation process is concerned, the ICA envisaged a number of problems associated with feasibility, accessibility and practicality. It suggested that agencies other than a court or a tribunal could be empowered to issue authorisations, such as Justices of the Peace, the Motor Accidents Authority or WorkCover, or perhaps a compliance officer within an insurance company, so that authorisations could be done quickly, particularly in country areas.98 The ICA also considered there to be a distinction between surveillance conducted by law enforcement officers who should get a warrant to enter premises and surveillance conducted by investigators in “public” places.99 IFSA agreed that surveillance in “public” areas should not be regulated.100
5.54 The ICA considered the requirement contained in Recommendation 55 (naming all those using surveillance devices on the authorisation) to be impractical as insurers generally brief firms of investigators not individual agents.101 The ICA also queried whether there is a right to appeal if an authorisation is refused,102 and in relation to the liability of employers acting in good faith if their employees breach an authorisation.103
5.55 While the ICA agreed with the general concept of having accountability mechanisms, it expressed concern about the administrative and reporting requirements being too onerous on insurers.104 Regarding Recommendation 87 and the destruction of information, the ICA noted that an insurance company may want to retain information in certain situations, for example, in relation to a re-occurring injury, prior claims or the aggravation of a pre existing injury.105 The ICA and IFSA also sought clarification regarding the possible conflict between the Commission’s recommendations and the obligations on insurers deriving from the Privacy Amendment (Private Sector) Act 2000 (Cth), since conducting surveillance also necessarily involves collecting personal information.106 Further information was also sought by the ICA on the type of penalties that would apply to the various offences recommended by the Commission.107
Submissions from investigation agents
5.56 The Commission received a number of submissions from individuals and agencies involved in the investigations industry.108 They were eager to reinforce the importance of surveillance in the investigative process as a useful community tool, particularly in relation to the detection of fraud.109 It was estimated that two or three out of every one hundred insurance claims may come under suspicion.110 Most questioned the need for legislative regulation, being of the view that surveillance activity was already sufficiently regulated by insurers’ Codes of Conduct.111 It was also suggested that existing legislation such as the Commonwealth Privacy Act has focused the attention of insurers and investigators on the need to be mindful of the privacy rights of claimants.112
5.57 Nearly all of the private investigators who made submissions to the Commission were of the view that there should be no legislation to govern the taking of video footage in a public place.113 In disagreeing with the recommendation to obtain an authorisation, one firm of investigators claimed that there was a difference between police operations and the investigation of an insurance claim.114 It was acknowledged that, while there are unscrupulous and unlicensed operatives, the way to deal with this problem should be to tighten the Commercial Agents and Private Inquiry Agents Act 1963 (NSW), and not introduce surveillance legislation.115
5.58 Reference was made in submissions to some practical difficulties with the Commission’s recommendations. For example, since covert surveillance is an everyday activity for private investigators, they would be required to make a large number of warrant applications under the proposed recommendations.116 It was also pointed out that difficulties with the authorisation process may arise regarding investigations that last for a number of years since instructions may be given to conduct surveillance on the same claimant on a number of occasions.117 There was also concern that the requirement to report back to the issuing authority is unworkable and unnecessarily bureaucratic.118 Some were also of the view that the current investigative arrangements were only successful because of open communication between insurers and investigators, which could be jeopardised under the Commission’s recommendations.119
5.59 It was also suggested that an appropriate “issuing authority” would be a senior claims officer or manager within an insurer, assisted by guidelines from the Privacy Commissioner, since judges or tribunal members may not “fully appreciate the intricacies of an insurance policy”.120 Also, the requirement to destroy surveillance material after a certain period of time was considered to be unworkable in relation to insurance, since a claimant may make further claims in relation to the same alleged injury.121 However, there was some agreement that records should be kept by insurers, and be able to be accessed by either the Privacy Commissioner or the Ombudsman.122 One investigator strongly disagreed with the requirement to inform the subject that surveillance has occurred.123 The role of the Attorney General in the reporting mechanism was also questioned.124
5.60 Concern was expressed that the Commission’s recommendations would have the effect of increasing the difficulty and cost of investigating fraudulent claims, which could prompt many insurers not to pursue allegations of fraud, resulting in increased premiums.125 Accordingly, a number of investigators sought an exemption from the covert surveillance requirements when acting for the insurance industry.126 It is claimed that fully licensed private investigators should be able to run their business, including conducting covert surveillance,127 “unimpeded by over-regulation”.128
5.61 It was suggested to the Commission that the ICA and the Insurance Enquiries and Complaints body (a watchdog body to whom members of the public may report any complaint concerning insurance claims or procedures), could arrange a regulatory framework to ensure appropriate accountability within the insurance industry, and to allow independent access to records by the Privacy Commissioner and the Ombudsman.129
The Commission’s views
5.62 The Commission acknowledges the arguments put forward by investigators and insurers concerning the potential impact of its recommendations, especially in relation to the insurance industry. Covert surveillance, particularly video surveillance, is a crucial element of the everyday work of a private investigator. This differentiates them from the media, because, while media organisations do conduct video surveillance, they do not conduct activity that would be classified as covert surveillance on a regular basis. While law enforcement agencies would also be affected by the Commission’s recommendations, it is fair to say that the majority of surveillance work undertaken by police and other like agencies involves the use of covert listening devices, either alone or in conjunction with video and/or tracking devices. As a result, those agencies are already bound by the accountability requirements prescribed under the LDA.130 Although the LDA applies generally and not just in relation to law enforcement agencies, there has never been a record of its use by a private investigator, presumably because they operate outside the realm of the Act by using video surveillance without activating the listening device component.
5.63 Consequently, while the policy issues regarding covert surveillance in the public interest are basically the same for all applicants, the impact on private investigators in practical terms will be more significant than on other groups or individuals. The impact on the insurance industry, and the consequent effect on policy-holders, is a matter of concern. At the same time, however, the need remains to ensure that covert surveillance is conducted responsibly and accountably. Material obtained through covert surveillance by private investigators has the potential to affect people adversely and severely, and could result not only in loss of financial benefits, but termination of employment or the laying of criminal charges.
5.64 The Commission has considered a number of options designed to overcome the difficulties raised in submissions, yet still promote accountability for covert surveillance. It was suggested in submissions that it would be preferable to tie accountability for covert surveillance conducted by private investigators together with their licensing arrangements. This idea was considered by the Commission in the Interim Report, but rejected due to the inadequacy of the licensing arrangements at that time. However, new arrangements are about to come into operation. At the end of September 2004, a new Commercial Agents and Private Inquiry Agents Act 2004 (NSW) was passed, replacing the old 1963 Act.131 One of the objects of that Act is to protect the public in relation to commercial agent and private inquiry agent activities (that is, process serving, debt collection, repossession of goods, surveillance of persons and investigation of persons).132
5.65 One possibility considered by the Commission is that, as licensed private investigators would be required to satisfy surveillance competency criteria annually under the new arrangements when applying for the granting or renewal of a licence, the requirement to obtain an authorisation every time a private investigator needs to conduct covert surveillance could be waived. This would be subject to the licensing system being appropriately supervised and accountable, and provision for an investigator’s licence to be suspended or revoked in the event of evidence of the misuse of covert surveillance powers. Under this option, private investigators would still be required to meet the general accountability provisions recommended by the Commission, such as the keeping of records and submitting annual documents to the Attorney General, as well as the authority responsible for issuing authorisations to conduct covert surveillance in the public interest.
5.66 However, there a number of problems associated with this option. First, it is unclear how the details of the new system will operate, and the Commission is concerned that the training and accreditation procedures regarding covert surveillance may not be satisfactory to assure the appropriate level of privacy protection. Further, the area of insurance fraud investigation was overwhelmingly referred to by private investigators as the only practice area in which the Commission’s recommendations would be likely to have a major impact, due to the cost of obtaining a large number of applications and the subsequent effect on insurance premiums. However, it would be administratively cumbersome to waive the requirement for a private investigator to obtain an authorisation only in relation to insurance-related covert surveillance, and require an authorisation for all other types of covert surveillance conducted by investigators. Accordingly, such a scheme would need to operate broadly in relation to every private investigator conducting any covert surveillance in the public interest. The Commission is of the view that exempting private investigators from obtaining an authorisation in relation to all of their covert surveillance work would run counter to the public interest in ascertaining adequate protection of individual privacy, and would also be inconsistent with the tenor of the Commission’s recommendations as a whole.
5.67 It would also sit uneasily with the existing and proposed requirements in relation to workplace surveillance. The Workplace Video Surveillance Act 1998 (NSW) requires employers to obtain a prior authorisation before every instance of covert surveillance in the workplace may be conducted. The Commission made similar recommendations in Report 98 concerning prior authorisations for workplace surveillance. Even if the Commission were persuaded that satisfactorily licensed private investigators should be exempted from the requirement to obtain prior authorisation before every instance of covert surveillance, the Commission would continue to endorse its recommendations in Report 98 concerning the need to obtain authorisations for covert surveillance in the workplace, due to the particular rights and responsibilities of employers and employees. Since many private investigators carry out workplace surveillance, they would, therefore, be subject to two separate regimes depending on whether the covert surveillance was conducted in an employment context or in the public interest.
5.68 The Commission is of the view that the preferable option is to grant insurers, rather than the investigators themselves, a 12 month authorisation to conduct covert surveillance. Insurers could then contract surveillance work out to private investigators, in the same way as they do currently. This would be dependent on the insurers having a demonstrated policy or Code of Practice concerning the conduct of covert surveillance, including provisions relating to privacy protection and a restriction on contracting work out only to reputable, suitably licensed investigators. The Commission recommends that both insurers and private investigators should be required to conform with the accountability requirements set out in Report 98, such as record keeping and reporting, document inspection and restrictions on the use of the material obtained as a result of covert surveillance. Renewal of the authorisation at the completion of the 12 month period would be contingent upon the accountability requirements having been met.
5.69 This option has the advantage of applying only to insurance-related covert investigations, and provides greater certainty for individual investigators as to when they need to obtain an authorisation: when they are contracted by an insurer, there is no need to obtain an authorisation, but in all other circumstances a prior authorisation will be necessary.
Recommendation 7
The Commission recommends that insurers be granted a 12 month authorisation to conduct covert surveillance. That authorisation should be contingent on insurers having a demonstrated policy or Code of Practice concerning the conduct of covert surveillance, including provisions relating to privacy protection, and a restriction on contracting work out only to reputable, suitably licensed investigators.
The Commission further recommends that insurers and private investigators should be required to comply with the recommendations in Report 98 concerning record keeping, inspection and reporting, and restrictions on the use of material obtained as a result of the use of covert surveillance. The renewal of the 12 month authorisation should be dependent on compliance with those accountability procedures.
COVERT SURVEILLANCE IN EMPLOYMENT
Recommendations in Report 98
5.70 The Commission’s approach in Report 98 was that the general recommendations made in relation to overt and covert surveillance should also apply to surveillance in the workplace, except where the particular rights and responsibilities of employers and employees justified the application of special provisions. Recommendations 57 to 66 in Report 98 deal specifically with covert surveillance in an employment context. Those recommendations accord for the most part with the two other arms of covert surveillance discussed above, and with the authorisation and accountability procedures in the Workplace Video Surveillance Act 1998 (NSW).
5.71 In particular, the Commission recommended that an employer is only entitled to obtain a covert surveillance authorisation if:
(a) unlawful activity on work premises is reasonably suspected;
(b) employment-related unlawful activity is reasonably suspected; or
(c) serious misconduct justifying summary dismissal is reasonably suspected.133
5.72 Further, the Commission recommended that there should continue to be an express prohibition on the use of covert surveillance by employers for the purpose of monitoring employee performance,134 and that covert surveillance of employees by employers in toilets, showers and change rooms should be prohibited.135
5.73 In the course of writing Report 98, the Commission consulted with, and received submissions from, employers and their representative organisations, as well as union groups. In making its recommendations in the Interim Report, the Commission was cognisant of the need to provide effective privacy protection for employees, yet also devise a regime flexible enough to allow employers to pursue legitimate business interests.136 The only negative comment received in submissions concerning covert surveillance in employment was from News Limited. They were of the view that the recommendations should not apply to the workplace, as the requirements would impinge on “normal business practice and performance management activities”.137
The Workplace Surveillance Amendment Bill
5.74 The Workplace Surveillance Amendment Bill 2004 (NSW) (“the Workplace Surveillance Bill”) was released for public comment in June 2004. The Workplace Surveillance Bill extends the coverage of the Workplace Video Surveillance Act 1998 (NSW) to include additional forms of surveillance such as email and internet monitoring and the use of tracking devices.
5.75 The Workplace Surveillance Bill follows the form of the existing Act, prohibiting covert surveillance in the workplace unless employees have been previously notified,138 or an authorisation from a magistrate is obtained for the purpose of establishing whether or not an employee is engaged in unlawful activity at work.139 Work is defined to mean at a workplace, or any other place where an employee is working (and so covers employees working from home).140 The Bill also contains a new provision prohibiting employers from blocking an employee’s Internet access, or emails sent to or from an employee, unless the employer is acting in accordance with a publicised policy relating to Internet or email use, and the employee is immediately notified that the email has been has blocked. The Bill further prohibits an employer’s Internet or email policy from blocking emails or Internet access merely because the content relates to industrial matters.141 Like the Workplace Video Surveillance Act 1998 (NSW), the Workplace Surveillance Bill contains measures aimed at promoting the accountability of employers conducting covert surveillance, including restrictions on the use and disclosure of material obtained as a result of covert surveillance.142
The Commission’s views
5.76 While the Workplace Surveillance Bill differs in a number of respects from the Commission’s recommendations, the overall framework of the legislation largely follows the same pattern as that recommended in Report 98. The Bill is based on an overt/covert distinction, and relies on a system of prior judicial authorisation before covert surveillance may occur. The Bill also contains reporting and record keeping provisions designed to promote accountability, backed up by offences and penalties. Also in keeping with the Commission’s recommendations, the Workplace Surveillance Bill prohibits covert surveillance of employees’ change rooms or shower or toilet facilities.143
5.77 There are also several differences between the Workplace Surveillance Bill and the approach taken by the Commission in Report 98. For example:
• The Bill regulates only workplace surveillance, while the Commission advocated that surveillance in the context of employment should be addressed as part of its general recommended framework, with the creation of employment specific provisions where necessary.144
• The Bill regulates only covert surveillance,145 whereas the Commission recommends that overt surveillance should also be regulated.
• The Bill is device specific, in contrast with the Commission’s broader approach.
• The Bill permits covert surveillance only for the purpose of establishing whether or not an employee has engaged in unlawful activity, whereas the Commission recommends that covert surveillance may also be permitted under an authorisation where serious misconduct justifying summary dismissal is reasonably suspected.146
• The Bill proposes to regulate the blocking of email and internet websites, which is an area not directly referred to by the Commission.147
• The Bill provides for an authorisation to be issued by a Magistrate, whereas the Commission recommends that Industrial Magistrates or Judicial Members of the Industrial Relations Commission be responsible for issuing authorisations.148
• The Commission recommends that retrospective authorisations should be available to permit covert surveillance in exceptional circumstances (for example, where the health or welfare of other employees is at risk and there is not time to obtain prior authorisation),149 while the Bill does not make provision for this.
• The accountability and offence provisions recommended by the Commission are more stringent than those in the draft Bill.
• The Commission recommends that breaches of the overt and covert surveillance provisions should give rise to liability for a civil action to be brought.150
5.78 Since most of the provisions of the Workplace Surveillance Bill are similar to those in the Workplace Video Surveillance Act 1998 (NSW), the Commission’s recommendations differ from the Bill in largely the same respect in which they differ from the original Act. As such, the Commission’s rationale for its approach to the regulation of workplace surveillance is discussed in Report 98 at Chapter 7. Most of the other provisions of the Bill are either not inconsistent with the Commission’s recommendations, or operate outside the scope of the Commission’s recommended regulatory structure. Consequently, the Commission is of the view that there are no compelling reasons offered by the Workplace Surveillance Bill, or by the submissions or other feedback received in relation to the Interim Report, to warrant making any amendments to the recommendations regarding workplace surveillance in Report 98.
FOOTNOTES
1. Comprising Recommendations 22-48.
2. The Commission recommends that “law enforcement officer” should be defined broadly to include agencies such as the Australian Federal Police, State and Territory Police, the Australian Security Intelligence Organisation, the Independent Commission Against Corruption, the National Crime Authority, the NSW Crime Commission, Royal Commissions, the Police Integrity Commission, and any office holder specifically empowered to enforce a particular law: see Recommendation 23 at para 5.21.
3. See Recommendation 25 at para 5.35.
4. The Commission also recommends that one warrant may be issued to authorise the use of more than one device, or a device with more than one function: see Recommendation 44 at para 5.83.
5. See Recommendation 24 at para 5.27.
6. See Recommendation 26 at para 5.36-5.38.
7. See Recommendations 27-34 at para 5.39-5.57.
8. See Recommendations 35-37 at para 5.58-5.64, and Recommendations 39-43 at para 5.72-5.78.
9. Recommendation 38 at para 5.71.
10. Recommendations 47-48 at para 5.89-5.94.
11. This would accord with the Telecommunications (Interception) Act 1979 (Cth).
12. Privacy NSW Submission at 19.
13. Report 98 at para 5.27.
14. The LDA currently provides that a warrant may be obtained in relation to a “prescribed offence”, being an indictable offence or one prescribed by regulation for the purposes of Part 4, whether indictable or not: s 15.
15. See Report 98 at para 5.35.
16. Under Recommendation 47.
17. Under Recommendation 48.
18. See s 3B and s 16(7) of the LDA which allow the Attorney General to nominate District Court judges and Local Court magistrates to exercise the functions of an “eligible judge”.
19. The model laws cover four areas of law enforcement: controlled operations, assumed identities, electronic surveillance and witness identity protection.
20. The Joint Working Group notes at several points throughout the Report that there is merit in other ways of approaching the regulation of surveillance, including the Commission’s recommendations, but also notes that its brief was to examine existing laws and to facilitate the mutual recognition of warrants, rather than overhaul surveillance legislation in each jurisdiction: see, eg, Joint Working Group Report at 346-347 and 351.
21. See Model Laws cl 7(1)(b) and cl 9(1)(a).
22. Joint Working Group Report at 357 and 359.
23. Joint Working Group Report at 359.
24. See Report 98 para 2.15-2.19.
25. See model laws cl 21.
26. See Report 98 para 5.34 and Recommendations 47 and 48.
27. See model laws cl 10.
28. See Report 98 para 5.65-5.71 and Recommendation 38.
29. Report 98, Chapters 8 and 9.
30. See Report 98 at para 6.1-6.23, Recommendations 49-51.
31. However, the Commission specified that whichever forum was considered to be the most appropriate, the authorisation process should be accessible, affordable, expeditious and impartial: see Report 98 at para 6.34-6.36, Recommendation 52.
32. Those factors include the nature of the interest or interests at stake, the extent to which individual privacy would be affected, the intended use of the information obtained as a result of the surveillance, whether or not other measures of obtaining the information had been used or may be more effective, and whether the public interest in each particular case justifies the displacement of individual privacy: see Report 98 para 6.37-6.38, and Recommendation 54.
33. Report 98, Recommendation 55.
34. Report 98 at para 6.43-6.44, Recommendation 56.
35. ABC Submission at 7.
36. SBS Submission at 14.
37. SBS Submission at 14.
38. See para 5.21.
39. Privacy NSW Submission at 21.
40. Report 98 at para 6.10-6.11.
41. Surveillance Devices Act 1998 (WA) s 24.
42. Report 98 at para 6.10. Judicial authorisation must be obtained under the Surveillance Devices Act 1998 (WA) before the information gathered as a result of conducting covert surveillance in the public interest can be published or communicated: s 31.
43. See para 5.47 and Recommendation 3 of this report.
44. ABC Submission at 4.
45. ABC Submission at 4.
46. SBS Submission at 15.
47. SBS Submission at 15.
48. The Commission discusses the provisions of the Western Australian legislation in Report 98 at para 6.28-6.33.
49. ABC Submission at 7.
50. Formerly known as Commercial Television Australia.
51. Free TV Australia Submission at 17.
52. Free TV Australia Submission at 17.
53. Free TV Australia Submission at 17-18.
54. Australian Press Council Supplementary Submission at 3.
55. Australian Press Council Supplementary Submission at 3.
56. ABC Submission at 2; SBS Submission at 18.
57. ABC Submission at 4.
58. ABC Submission at 6. Free TV Australia agrees: see Submission at 15.
59. ABC Submission at 6.
60. ABC Submission at 7.
61. ABC Submission at 6. SBS expresses similar views: SBS Submission at 18-19. See also John Fairfax Holdings Submission at 13.
62. The ABC states that because, in its opinion, the distinction between overt and covert surveillance is unclear, it would need to seek authorisation whenever it was in doubt, which would not be the case in reality: ABC Submission at 7. The Commission discusses such misunderstandings and clarifies the difference between overt and covert surveillance so far as the media are concerned in Chapter 3.
63. SBS Submission at 18.
64. Free TV Australia Submission at 15.
65. Free TV Australia Submission at 16.
66. SBS Submission at 13. The Commission notes that this would not be the case under its recommendations, since the scope of the proposed legislation would only extend to surveillance conducted in NSW.
67. See discussion at para 5.43-5.44 and 5.48.
68. John Fairfax Holdings Submission at 12.
69. John Fairfax Holdings Submission at 12.
70. John Fairfax Holdings Submission at 12; Privacy NSW Submission at 21.
71. The submission notes that 10% of complaints received by Privacy NSW in 2000-2001 related to media organisations: Privacy NSW Submission at 20.
72. Privacy NSW Submission at 21.
73. John Fairfax Holdings Submission at 13-14.
74. John Fairfax Holdings Submission at 14.
75. John Fairfax Holdings Submission at 13.
76. ABC Submission at 2 and 7.
77. Australian Press Council Preliminary Submission at 4, News Limited Submission at 2.
78. Report 98, Recommendation 112.
79. John Fairfax Holdings Submission at 16-17.
80. John Fairfax Holdings Submission at 17.
81. Australian Press Council Preliminary Submission at 4-5.
82. See para 3.22-3.30.
83. Report 98 at para 2.58.
84. Recommendation 53.
85. Recommendations 68-71.
86. Recommendations 72-78.
87. Recommendations 81-82.
88. See para 5.49.
89. See, eg, Report 98 para 2.56-2.61, and para 6.12-6.15, and para 3.22-3.26 of this Report.
90. Insurance Council of Australia Submission at 2; Investment and Financial Services Association Limited Submission at 1-2.
91. Insurance Council of Australia Submission at 3; Investment and Financial Services Association Limited Submission at 3.
92. Investment and Financial Services Association Limited Submission at 1-2.
93. Investment and Financial Services Association Limited Submission at 3.
94. Insurance Council of Australia Submission at 3. The ICA had the expense of obtaining a warrant costed by two major insurers at $3865 and $7490: Insurance Council of Australia Submission at Appendix 1.
95. Insurance Council of Australia Submission at 16.
96. Insurance Council of Australia Submission at 6.
97. Insurance Council of Australia Submission at 6-7. See para 5.17-5.23 for a discussion of the definition of public interest.
98. Insurance Council of Australia Submission at 7.
99. Insurance Council of Australia Submission at 7.
100. Investment and Financial Services Association Limited Submission at 4. See Report 98 at para 2.20-2.27, and para 3.11 of this Report, for a discussion of the Commission’s views on the public/private distinction.
101. Insurance Council of Australia Submission at 9.
102. Insurance Council of Australia Submission at 9.
103. Insurance Council of Australia Submission at 10.
104. Insurance Council of Australia Submission at 11-13.
105. Insurance Council of Australia Submission at 15.
106. Insurance Council of Australia Submission at 10; Investment and Financial Services Association Limited Submission at 3.
107. Insurance Council of Australia Submission at 14-15.
108. Gary Cox Investigations Pty Ltd Submission; Rumore and Associates Submission;
109. Rumore and Associates Submission. That submission also referred to the efficacy of surveillance in intellectual property, family law, employee misconduct and criminal law: see 3-4. See also Chris Jones Submission; and Peter A Cox and Associates Submission; Gary Cox Investigations Pty Ltd Submission at 3.
110. Peter A Cox and Associates Pty Limited Submission at 4.
111. See, eg, Gary Cox Investigations Pty Ltd Submission; and Chris Jones Submission; Rumore and Associates Submission at 5.
112. Peter A Cox and Associates Pty Limited Submission at 14.
113. Peter A Cox and Associates Pty Limited Submission at 4.
114. Peter A Cox and Associates Pty Limited Submission at 13.
115. Peter A Cox and Associates Pty Limited Submission at 7. The Commission notes the passage of the Commercial Agents and Private Inquiry Agents Act 2004 (NSW): see para 5.64 below.
116. Rumore and Associates Submission at 2.
117. Rumore and Associates Submission at 2. See also Peter A Cox and Associates Pty Limited Submission at 11.
118. Rumore and Associates Submission at 2; Peter A Cox and Associates Pty Limited Submission at 17.
119. Rumore and Associates Submission at 2.
120. Peter A Cox and Associates Pty Limited Submission at 12.
121. Peter A Cox and Associates Pty Limited Submission at 18.
122. Peter A Cox and Associates Pty Limited Submission at 19.
123. Peter A Cox and Associates Pty Limited Submission at 19.
124. Peter A Cox and Associates Pty Limited Submission at 20.
125. Gary Cox Investigations Pty Ltd Submission at 4; Peter A Cox and Associates Pty Limited Submission at 3.
126. Gary Cox Investigations Pty Ltd Submission at 6; Peter A Cox and Associates Pty Limited Submission at 8.
127. Chris Jones Submission.
128. Rumore and Associates Submission at 5.
129. Peter A Cox and Associates Pty Limited Submission at 26.
130. Consequently, the authorisation and accountability procedures recommended by the Commission would only create an additional impact on law enforcement agencies where surveillance was being conducted without a listening device component, eg, email surveillance or the use of video or tracking devices in isolation.
131. Note that this Act had not yet commenced operation at the time this Report was finalised.
132. Under the Act, licenses for the 3,000 agents and sub-agents in NSW are to be issued by the Commissioner for Police, and are to be subject to the provisions of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW): New South Wales, Parliamentary Debates (Hansard) Legislative Assembly (3 June 2004) at 9636.
133. Recommendation 58.
134. Recommendation 59.
135. Recommendation 60.
136. The uses of surveillance in the workplace, and the competing interests and objections arising from that use, are discussed at para 7.1-7.14 of Report 98. For a further discussion, see Victorian Law Reform Commission, Workplace Privacy: Options Paper (2004).
137. News Limited Submission at 1.
138. The notice requirements are set out in cl 5 of the Workplace Surveillance Bill 2004 (NSW). In addition to the requirements in the Workplace Video Surveillance Act 1998 (NSW), the Bill provides that tracking surveillance will be deemed to be notified if a notice is placed in a clearly visible manner on the vehicle or other thing in which the device is located. Further, computer surveillance will be considered to be notified if the employee is given prior notice of the nature of the surveillance, either by means of a written notice on or near the computer, or an audible announcement or written notice that appears when the employee logs onto the computer or starts a program that is the subject of the surveillance.
139. Workplace Surveillance Bill 2004 (NSW) cl 13.
140. Workplace Surveillance Bill 2004 (NSW) cl 4.
141. Workplace Surveillance Bill 2004 (NSW) cl 11.
142. For a detailed discussion of the provisions of the Workplace Surveillance Bill, see L Roth, Workplace Surveillance, NSW Parliamentary Library Research Service (Briefing Paper No 13/04, October 2004).
143. Workplace Surveillance Bill 2004 (NSW) cl 9; and Report 98 Recommendation 60.
144. Report 98 Recommendation 57.
145. Except insofar as cl 9 (prohibiting surveillance of an employee in a change room, toilet, shower or other bathing facility) purports to apply to notified, as well as covert, surveillance.
146. Report 98 Recommendation 58.
147. In most cases, generic blocking of access to websites, for example, due to illegal or offensive content, would not amount to surveillance within the Commission’s definition since it is a blanket, gateway control placed on the technology, rather than an attempt to monitor specific employees. An analogy would be blocking employees from having STD or international dialling access on their telephones. The blocking of emails relates more directly to individual employees and is therefore more likely to constitute surveillance according to the Commission’s definition. In circumstances where email and web blocking do amount to surveillance, the Commission’s recommendations regarding overt and covert surveillance would apply.
148. Report 98 Recommendation 62.
149. Report 98 Recommendation 66.
150. The bringing of a civil action for both overt and covert surveillance would involve a complaints and review mechanism as set out in Recommendations 91-102. In relation to covert surveillance generally, and in the workplace, the Commission recommends that a civil action should be able to lie concurrently with a criminal prosecution: Recommendations 105 and 106.
