OVERVIEW

1.1 This Issues Paper considers the legal regulation of surveillance in New South Wales, particularly aural and visual surveillance. It discusses whether the current law in relation to aural surveillance, the Listening Devices Act 1984 (NSW) (“LDA”), should be amended and whether new legislation, or some other form of regulation, is required to cover other types of surveillance which are not regulated in New South Wales. The Commission’s review is limited to New South Wales laws; however, the complex interaction of Commonwealth and State legislation in this area must also be considered.

THE COMMISSION’S REFERENCE

The terms of reference

1.2 On 2 July 1996 the Commission received the following reference from the Attorney General, the Hon Jeff Shaw QC MLC, pursuant to s 10 of the Law Reform Commission Act 1967 (NSW):

To inquire into and report on the following matters:
• the current scope and operation of the Listening Devices Act 1984 (NSW)
• the need to regulate the use of visual surveillance equipment, and
• any related matter.

  In undertaking this review the Commission should have regard to:

• the protection of the privacy of the individual;
• the views and interests of users of surveillance technology, including law enforcement agencies, private investigators, and owners of private premises, such as banks, service stations and shops;
• the use of surveillance technology in public places.

  In making this reference the Attorney draws the Commission’s attention to the Government’s proposals for the introduction of privacy and data protection legislation and to the current review of the issue of the regulation of workplace visual surveillance being conducted by the Department of Industrial Relations.

The scope of the reference

1.3 The Commission is required not only to review aural and visual surveillance, but also “any related matter”. Accordingly the Commission has analysed whether different issues arise for surveillance devices which combine both aural and visual recording, as well as the increasing amount of surveillance which is neither visual nor aural but which involves the use of computers and technological developments, such as tracking systems (see Chapter 2). As indicated in the terms of reference, there are a number of imminent developments in New South Wales in this area, in particular, the proposed introduction of privacy and information protection legislation. Such developments will be taken into consideration in the Commission’s final recommendations.

The conduct of the reference

1.4 After receipt of the reference, the Commission circulated its terms to relevant organisations both in Australia and overseas and invited initial submissions, but only commenced substantial work on the reference in October 1996. Apart from the receipt of submissions from organisations and individuals, the Commission has also met a number of New South Wales organisations actively involved in this area, including the Police Service, the Privacy Committee and the Crime Commission. These submissions and meetings have assisted the production of this Issues Paper.

Issues Paper and Report

1.5 This Paper is designed to encourage informed comment from those interested in the area of surveillance, including privacy groups, law enforcement agencies, private investigators, lawyers, employers and the subjects of surveillance, the general public. A number of issues for consideration are raised throughout the paper. You are invited to respond to those issues, or to make comments about other issues of concern. For details about how to make a submission and the closing date for submissions, see pages viii-ix. After a period of consultation, the Commission will release its report for the reference, which, it is currently proposed, will incorporate draft legislation.

THE STRUCTURE OF THIS ISSUES PAPER

1.6 The remainder of this Paper covers the following areas:

• a discussion of the different types of surveillance and their use (Chapter 2);
• an overview of New South Wales and Commonwealth legislation and international standards (Chapter 3 and Appendix A);
• overt visual surveillance (Chapter 4);
• surveillance and the Listening Devices Act 1984 (NSW) (Chapter 5); and
• visual surveillance in the workplace (Chapter 6).