Recommendations

Updates and background for this project (Digest)

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.

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.

Recommendation 3

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. The revised recommendation would read as follows:

In determining whether to grant an authorisation to conduct covert surveillance in the public interest, the issuing authority should have regard to:

• the nature of the issue in respect of which the authorisation is sought;

• the public interest (or interests) arising from the circumstances;

• the extent to which the privacy of any person is likely to be affected;

• whether measures other than covert surveillance have been used or may be more effective;

• the intended use of any information obtained as a result;

• the role played by the media in upholding the public interest; and

• whether the public interest (or interests) involved justifies the displacement of individual privacy in the circumstances.

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.

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.