INTRODUCTION

3.1 Electronic surveillance is regulated in New South Wales by both Commonwealth and New South Wales legislation. It is also important to understand the international background in this area, particularly as it affects the regulation of privacy at the Commonwealth level. Though relevant Commonwealth and New South Wales legislation is discussed briefly in this chapter, a more comprehensive list of legislation and guidelines in this area is set out in Appendix A. International practice may provide some guidance as to what is appropriate in New South Wales, and in some cases may establish principles that are integrated into Commonwealth law applicable in this State.

INTERNATIONAL BACKGROUND

3.2 The Privacy Act 1988 (Cth) refers, in its Preamble, to the fact that Australia is a party to the International Covenant on Civil and Political Rights (“ICCPR”) and a Member of the Organisation for Economic Co-operation and Development (“OECD”) which has prepared privacy guidelines. Accordingly, both these international developments must be taken into account in the Australian development of legislation in the area of privacy. Also significant in this area is the recent European Community Directive on Information Privacy.

International Covenant on Civil and Political Rights

3.3 The key international instrument in this area is the ICCPR. Article 17 provides that:

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy ...

(2) Everyone has the right to the protection of the law against such interference ...

3.4 Australia has ratified the International Covenant on Civil and Political Rights and the Covenant is also found in Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). While neither ratification nor the attachment of such documents to the Commonwealth Act automatically incorporates these instruments into Australian law,¹ the Commission considers that its recommendations should, as far as possible, be consistent with those international standards recognised by the Australian government. Additionally, in the early 1990s Australia recognised the operation of the First Optional Protocol to the ICCPR, which allows Australian complainants who have exhausted all domestic avenues to take their complaints to the Human Rights Committee of the United Nations. This occurred in the Toonen case,² where the complainant argued that Tasmania’s laws relating to homosexual acts breached the ICCPR. The Committee determined that Tasmania’s prohibition of consensual homosexual acts in private breached Article 17 and was “arbitrary” in that it could not be justified as a reasonable or proportionate response to public health and moral concerns.³ Surveillance laws do violate the privacy of individuals, therefore it is important that any such interference is not arbitrary but governed by adequate safeguards and guidelines for use.

OECD Guidelines

3.5 As a member of the OECD, in 1984 Australia adopted the 1981 OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. These Guidelines, which include basic privacy principles, were taken into account in the Australian Law Reform Commission’s Report on Privacy⁴ and in the consequent Commonwealth Privacy Act 1988.⁵

European Community Directive 1995

3.6 The European Community Directive⁶ provides an incentive for jurisdictions, including New South Wales, which trade with members of the European community to introduce appropriate privacy legislation, by threatening to ban the export of personal data to places without adequate data protection legislation in 1998. Such a ban would have potentially serious economic effects for Australia if business information from Europe could not be transferred to Australia. Australian businesses wishing to trade with European countries would need to set up their own contractual privacy protection systems with their trading partners.⁷

NEW SOUTH WALES

3.7 The key legislation in New South Wales is the Listening Devices Act 1984 (“LDA”), which regulates, as its name suggests, the use of listening devices in New South Wales. There is a general prohibition upon the use of listening devices to record private conversations, except in the circumstances outlined by the Act, in particular through the granting of a warrant by a Supreme Court judge. The other important piece of legislation in New South Wales is the Privacy Committee Act 1975, which sets out the powers and functions of the Privacy Committee of New South Wales.

3.8 There is currently no legislation dealing with visual surveillance, whether covert or overt, but some guidelines have been prepared, such as the New South Wales Police Service Guidelines for Investigation of Potential for, and Implementation of, CCTV by Local Councils. Other users of visual surveillance, such as service stations, have developed their own codes of practice.⁸ However, a number of new developments are expected in New South Wales, including the proposed introduction of a privacy and information protection Bill. Privacy and data protection Bills were introduced in 1994, 1995 and 1996, but all lapsed. While the proposed Bill will deal largely with information protection, which is beyond the scope of this reference, its provisions may affect surveillance, through the proposed establishment of a Privacy Commissioner in New South Wales.⁹

Commonwealth/New South Wales areas of overlap

3.9 Like many areas of law, surveillance issues are complicated by Australia’s federal system and the fact that offences against both Commonwealth and State laws will be the subject of investigation, often involving the same set of circumstances. Though generally a matter of State control, privacy law has been the subject of international instruments, and Australia’s ratification of these has allowed the Commonwealth government to legislate in the area of privacy under the external affairs power.¹⁰ Additionally, the Commonwealth government has control over surveillance conducted by the telecommunications system, through its constitutional telephonic power.¹¹

3.10 The current Commonwealth/New South Wales division of responsibility has been usefully summarised¹² as follows:

• The use of aural surveillance devices connected to the telephone system is governed by Commonwealth legislation: Telecommunications (Interception) Act 1979 (Cth).

• The use of aural surveillance devices by Commonwealth agencies in the investigation of Commonwealth drug importation offences is regulated by Commonwealth law: Customs Act 1900 (Cth) s 219A-219K.

• The use of aural surveillance devices by the Australian Federal Police in the investigation of certain non-narcotics Commonwealth offences is regulated by Commonwealth law: Australian Federal Police Act 1979 (Cth) s 12B-12L.

• Aural surveillance devices used in New South Wales by State agencies and not connected to the telephone system are regulated by New South Wales law: LDA.

• Aural surveillance devices used in New South Wales by Commonwealth agencies (not including the Australian Federal Police) for offences which are not Commonwealth narcotic offences are regulated by New South Wales law: LDA.

• There is no regulation of visual surveillance, photography or the use of video cameras.

Areas without regulation

3.11 It is anomalous that visual surveillance is not regulated in the same way as aural surveillance. In 1983, the Australian Law Reform Commission recommended that there be similar rules for both.¹³ The former federal Privacy Commissioner, Kevin O’Connor, said:

The failure of the substantive law to deal with covert optical surveillance is, of course, an illogicality. Use of devices which record conversations is substantially regulated by the law, but the use of devices which record behaviour and activity is not.¹⁴

Apart from visual surveillance, other areas not specifically covered by legislation in New South Wales are data or signal surveillance (including tracking devices) and audio-visual surveillance.

3.12 The lack of regulation leads to concerns on the part of both those who wish to use surveillance and those who are its potential targets. For the users, lack of regulation leads to:

• uncertainty about the allowable level of usage;
• concern, within law enforcement agencies, that courts later will find that the evidence was obtained illegally; and
• concern, for private enterprises, that the use of the technology will lead to employee and customer complaints and action.

For the targets, lack of regulation allows unacceptable levels of intrusion to occur without sanction or control.

3.13 It has been suggested that the fact that only some areas are the subject of legal regulation further undercuts the effectiveness of even those areas of regulation:

Once one form is subject to legal regulation, failure to control other forms not only becomes morally indefensible, but also in practice undermines the protection granted. This arises from the simple behavioural prediction that, assuming equal effectiveness, measures that can be undertaken free of oversight will be much more attractive to people doing the work than those which are subject to restriction or review.¹⁵

The remainder of this Paper discusses the Commission’s proposed reforms of overt visual surveillance (Chapter 4) and of the other types of surveillance (Chapter 5), and whether different issues arise in relation to visual surveillance in the workplace (Chapter 6).

FOOTNOTES

1. Except to the extent that there may be a legitimate expectation that officers of the executive government will act in conformity with them pending implementation: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

2. The Communication of Nicholas Toonen concerning Australia: Communication No 488/1992.

3. See I A Shearer “The Communication of Nicholas Toonen concerning Australia: Communication No 488/1992 - Explanatory Note” (1995) 69 Australian Law Journal 600-609 for a copy and discussion of this decision.

4. Australian Law Reform Commission Privacy (Report 22, 1983).

5. Privacy Act 1988 (Cth) s 14 (“Information Privacy Principles”).

6. Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Directive 95/46/EC of 24 October 1995).

7. For discussion of the effects of the European Directive see: J Brough “Another key election promise bites the dust” The Sydney Morning Herald (31 March 1997) at 11; C Merritt “Australia now offside with Europe on privacy laws” The Australian Financial Review (27 March 1997) at 5 and “Warning to EU over Howard line on privacy” The Australian Financial Review (7 April 1997) at 9; and N Pullen “Why privacy laws are becoming public enemy number one” The Australian (31 March 1997) at 32.

8. Service Station Association Ltd Submission (20 July 1996).

9. Speech by the New South Wales Attorney General, the Hon Jeff Shaw QC MLC to the conference, The New Privacy Laws: a symposium on preparing privacy laws for the 21st century (19 February 1997, Sydney).

10. Constitution (Cth) s 51(xxix).

11. Constitution (Cth) s 51(v). For example, see Grollo v Palmer (1995) 184 CLR 348.

12. B Schurr Criminal Procedure (NSW) (Loose-leaf Service, LBC Information Services, 1996) at para 8.70.

13. Australian Law Reform Commission Privacy (Report 22, 1983) Vol 2 at para 1183.

14. Comments made at Australian Institute of Criminology Conference Administrative Law and Public Administration (Sydney, 16 November 1993), from transcript provided by the Privacy Branch of the Human Rights and Equal Opportunity Commission by letter dated 6 February 1997.

15. L Lustgarten and I Leigh In from the Cold: National Security and Parliamentary Democracy (Clarendon Press, Oxford, 1994) at 44.