• What is the “public interest”?
• The authorisation process

6.1 As stated in Chapter 2, the Commission’s approach in this Report is to view individual privacy as the paramount concern in the proposed surveillance legislation. Any intrusions into privacy by way of surveillance must be justified as being of a greater public benefit. One area which may, in certain circumstances, justify intrusions into personal privacy through the use of covert surveillance is the detection and prevention of crime by law enforcement officers. Another is the need to expose illegal or improper practices in the workplace. While both of these areas represent public interests, they raise specific issues requiring the separate consideration given to them in Chapters 5 and 7.

6.2 The Commission’s concern in this chapter is specifically with those circumstances which lie outside the use of covert surveillance by law enforcement officers or employers, but which may nevertheless justify invasions into privacy through covert surveillance. It is impossible to predict with any certainty the exact circumstances in which covert surveillance should be permitted to be conducted by people other than law enforcement officers or employers. The only certainty is that, in order to justify the level of privacy intrusion occasioned by covert surveillance, the surveillance must be carried out to uphold or protect a valuable public interest.¹ Consequently, the Commission refers collectively to those circumstances as covert surveillance in the “public interest”.

6.3 This chapter examines the type of situations which would justify covert surveillance in the public interest, and the people or organisations most likely to be conducting this type of surveillance. It recommends that covert surveillance in the public interest be authorised prior to being conducted, or retrospectively if prior authorisation is not possible or practicable. This chapter also recommends procedures for issuing such authorisations.

WHAT IS THE “PUBLIC INTEREST”?

6.4 Various attempts have been made to isolate factors amounting to public interest and clarify what is meant by the term.² It is generally accepted that “public interest” is a fluid and amorphous concept, being most meaningful in the subjective rather than the objective sense.³ What constitutes the public interest at any time will depend on particular contexts and perspectives.

6.5 The difficulty in precisely defining the concept of public interest is compounded by the fact that few circumstances give rise to just one interest: usually several public interests either blend into one another, or compete and need to be reconciled. Public interest considerations may also become blurred with matters which are merely “of interest to the public”.⁴ For example, the identity of a public official’s partner may be of interest to some people, but it is not a matter of public interest. Expenditure of public funds by that official on his or her partner is, however, an issue in which the public has an interest.

6.6 Some public interests involve broader human rights issues, such as freedom of expression and the protection of personal privacy. Other interests may be more specific. For example, in considering the question of who may have standing to sue in public interest litigation, the Australian Law Reform Commission noted that the public has an interest in “ensuring that government decision-makers are accountable and that their decisions are made in accordance with the law”, as well as an interest in “ensuring compliance with legislation that creates public rights and duties”.⁵

6.7 In some cases, the public interest may overlap with the rights and interests of private individuals.⁶ A person’s interest in preventing unjustified intrusions into his or her personal privacy, or protecting the right to a fair trial, are classic examples of private interests which it is in the public interest to uphold.

6.8 Public interest is referred to but not defined in legislation across a broad spectrum. Courts and tribunals are required to consider the public interest in assessing whether to allow or prevent particular action, or review a decision to allow or prevent action.⁷ Legislation that gives examples as to the meaning of public interest does so in necessarily broad, non-exhaustive terms. For example, the Whistleblowers Protection Act 1993 (SA) states that public interest information means information that tends to show:

• illegal activity;
• irregular or unauthorised use, or substantial mismanagement, of public funds or resources;
• conduct that causes a substantial risk to public health or safety, or to the environment; or
• that a public officer is guilty of maladministration in, or in relation to, the performance of official functions.⁸

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.⁹

6.11 While it may not be necessary to define public interest in broad, abstract terms, it would be useful if guidelines supplementing the proposed surveillance legislation were issued to the body responsible for authorising covert surveillance in the public interest. The guidelines could set out the types of circumstances which may give rise to public interest concerns of such significance that they justify intrusions into privacy by way of covert surveillance. Those circumstances may 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.

The media and the public interest

6.12 The Commission noted in Chapter 2 that the recommendations in this Report for new surveillance legislation should apply to surveillance conducted by media organisations. Those organisations have long argued that any law which may have the slightest impact on their functions presents a threat to freedom of speech. The Australian Broadcasting Corporation (“ABC”) and Publishing and Broadcasting Limited (“PBL”) were of the view that, if there is to be any legislative regulation of electronic surveillance, there should be a specific exemption created for the media, or at least a public interest exception to cover surveillance by media organisations.¹¹

The views of the media

6.13 The ABC considered that any regulation of covert surveillance should not curtail the “media’s legitimate activities in exposing corrupt, inhumane and other unacceptable practices”. The ABC noted that hidden cameras were used only as a last resort after all other avenues had been explored, “appropriate editorial decision making” had occurred, and when it perceived that there was a “legitimate public interest in doing so”. The ABC gave examples of when it had used hidden cameras to expose matters of public interest such as conditions in refugee camps, drug sales, consumer fraud and animal abuse. The ABC also noted that privacy concerns were reflected in its Code of Practice, which provides that:

[t]he rights of individuals to privacy should be respected in all ABC programs. However, in order to provide information which relates to a person’s performance of public duties or about other matters of public interest, intrusions upon privacy may, in some circumstances, be justified.¹²

6.15 The Australian Press Council (“APC”) agreed with the ABC that there appears to be no public interest in laws that regulate public news gathering activities. The APC was of the view that the freedom of the press is a paramount concern in a democratic society, and that the role of the press is to further that freedom by gathering information to inform the community on matters of public interest.¹⁶ Given that Australia has no constitutional guarantee of freedom of speech, the APC argued that there is a need to be careful when introducing laws that may impinge on free speech. The APC agreed with PBL that personal privacy is sufficiently protected under the current law and is included in the APC’s Statement of Principles.¹⁷ One of the APC’s functions is to investigate and deal with complaints made concerning the press. In exercising this function, the APC has examined and “ruled on the ethical legitimacy of alleged intrusions by invasive means into private property”, and believes, based on the small number of complaints it has received in this area, that “such intrusions by the press are not a serious concern in Australia”.

The Commission’s views

6.16 Freedom of speech is a public interest of fundamental importance, and a free press plays a crucial role in preserving and upholding that public interest. What needs to be recognised, however, 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.¹⁸ The Commission does not consider that recommending the media be included within the scope of the proposed surveillance legislation is an incursion on freedom of speech. 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.

6.17 Freedom of speech, even if it were an issue in this context, is not absolute and must sit with other public interests. Sometimes, circumstances will require that those other interests should take precedence. The law already recognises this by including media activity within the scope of defamation, contempt and trespass laws. The media are also subject to existing surveillance laws, with courts recognising that presenting the public with information should not automatically displace other public interests:

The invasion of privacy contrary to the provisions of the Act [the South Australian LDA] is not excused because it was done in the course of “Investigative Journalism” ...¹⁹

6.19 It should also be kept in mind that the authorisation process recommended by the Commission applies only to covert surveillance, due to its highly intrusive nature. As the ABC noted, the use of hidden cameras and other forms of covert surveillance is carried out rarely, and only as a last resort.²⁰ Consequently, the recommendations in this chapter would, if implemented, affect only a small part of the media’s operations.

6.20 Finally, the fact that only a small number of complaints has been received by the APC and FACTS concerning breaches of privacy by the media does not necessarily indicate that no problem exists or that the area is sufficiently regulated. While it is praiseworthy that privacy is included in the codes and statements of ethics as an issue to be considered by journalists when investigating stories, the lack of complaints concerning privacy could easily be attributable to the absence of a single, unified and effective complaints system which could provide real redress for people with a grievance. The fact that the codes are not compulsory or binding, and the rulings of the APC are not enforceable in any meaningful way, also works against their effectiveness as privacy control measures.

Private investigators and the public interest

6.21 The private investigation industry is one of the major users of covert surveillance. Using mainly video technology, private investigators conduct covert surveillance in areas ranging from workers’ compensation and motor vehicle injury claims, to arson, intellectual property matters, family law, defamation, criminal matters, debt collection, repossession and process serving.²¹ Some representatives of the private investigation industry have asserted that covert surveillance is the most effective tool used by the industry to detect internal fraud and major, organised, systematic crime.²² Consequently, while private investigators are hired by individuals or organisations to protect personal or business interests, their role in the detection of offences and other improper behaviour is in the overall public interest.

6.22 Due to the resource and time pressures experienced by police, private investigators are increasingly undertaking surveillance into matters traditionally investigated by police, particularly regarding fraud.²³ This highlights the need for greater parity between the procedures for authorising covert surveillance by law enforcement officers and private investigators. Such parity is not being achieved under the present regime. Despite the fact that law enforcement officers receive specialist training in covert surveillance and, unlike private investigators, are publicly accountable,²⁴ the authorisation regime for the type of covert surveillance conducted by law enforcement officers is currently more stringent than that for private investigators. For example, there is no record of an application by a private investigator for a warrant under the LDA, largely because, as noted earlier, private investigators usually use video rather than audio surveillance. While private investigators are required to obtain an authorisation to undertake covert video surveillance under the Workplace Video Surveillance Act 1998 (NSW), this still leaves much of the non-workplace surveillance conducted by private investigators unregulated. The Commission is of the view that the system for authorising covert surveillance in the public interest under the proposed surveillance legislation should be as similar as possible to that applicable to law enforcement officers.

Private rights and the public interest

6.23 There may be occasions where an individual is justified in conducting covert surveillance to uphold a private legal right or protect a personal interest. As noted earlier, the protection of those private rights and interests may, in some circumstances, be a matter of public interest. For example, a person may have a genuine reason to fear that he or she is being stalked, but may not have sufficient evidence to approach the police. Covert monitoring of the suspect’s conversation or activities may be the safest and most effective way to obtain proof of such a threat to pass on to the police. To take another example, a person may have grounds to believe that he or she will be misrepresented in a way that may lead to a wrongful prosecution or severe damage to his or her reputation. An accurate record of conversations with the person suspected may be the best evidence to refute any future allegations. In these examples, there is clearly a private interest in protecting one’s personal safety, reputation, livelihood or liberty. There is also a discernible public interest in ensuring that such illegal, dangerous or malicious behaviour is prevented or detected. Accordingly, a person should be able to apply to an issuing authority for authorisation to conduct covert surveillance in the public interest even where the matter essentially involves a private right or interest.²⁵

Recommendation 49

The proposed Surveillance Act should permit covert surveillance to be conducted in the public interest only when it is judged to be justified by an appropriate issuing authority. The proposed Surveillance Act should provide that anyone, apart from:

• an employer in the course of an employment relationship;
• a law enforcement officer in the course of his or her duty; or
• anyone acting on behalf of an employer or a law enforcement officer in the above circumstances,
may apply for authorisation to conduct covert surveillance in the public interest. This should include journalists, media organisations, private investigators and any other person.

Recommendation 50

The term “public interest” should be interpreted broadly by the issuing authority, and may include private rights and interests where appropriate.

Recommendation 51

The Privacy Commissioner should develop guidelines to assist the issuing authority to determine the types of circumstances which may give rise to significant public interest concerns (see paragraph 6.11).

6.24 Given that there are circumstances in which covert surveillance may be justified in the broader public interest, outside the areas of law enforcement and employment, the question remains as to how such surveillance should be authorised. As noted earlier, some media organisations suggested to the Commission that there should be a broad public interest exception. The Commission’s concern with an open-ended exception requiring no authorisation is that it would be too broad, would be open to abuse and would offer insufficient privacy safeguards.²⁶

6.25 Where definitions of public interest have been attempted, they have necessarily been vague and wide-ranging,²⁷ and would potentially encompass any type of situation. The Commission is of the view that, because public interest is such a nebulous concept, surveillance legislation which contained a broad exception without requiring approval by an issuing authority would operate so broadly that it would not operate as a proper curb on unwarranted intrusions into personal privacy. The public interest in preventing illegality, protecting legitimate rights and interests or providing the public with information does not and should not automatically take precedence over privacy concerns in every situation. Covert surveillance may sometimes be justified in circumstances which involve the public interest. Covert surveillance will, however, always be a breach of privacy. Introducing a broad public interest exception with no approval process into surveillance legislation would have the effect of condoning covert surveillance in all cases where the person or organisation conducting the surveillance believes there to be a public interest involved, regardless of the privacy ramifications.

6.26 A public interest exception without any form of authorisation would also place covert surveillance in the public interest at odds with that conducted by law enforcement officers and in an employment context. It would be difficult to justify from a policy perspective why law enforcement officers or employers must obtain prior or retrospective authorisation to conduct covert surveillance to detect serious crime or workplace fraud, yet the same surveillance could be conducted by the media or a private investigator without any type of approval or accountability being required.

6.27 The Commission considers that covert surveillance conducted in the public interest should be required to be authorised under a process similar to that for authorising covert surveillance by law enforcement officers and in the context of employment. Chapter 5 describes the process recommended by the Commission for permitting covert surveillance by law enforcement officers, based largely on the LDA. Chapter 7 sets out the Commission’s reasons and recommendations for a separate system of approval for covert surveillance in employment situations. While the procedural requirements for obtaining authorisation for covert surveillance in the public interest should be largely the same as those for the other types of surveillance,²⁸ a separate type of authorisation would be required due to the different nature and purpose of public interest surveillance.

The Western Australian Act

6.28 The Western Australian Act contains an exception to the general prohibition on covert surveillance, permitting listening or optical surveillance devices to be used in the public interest.²⁹ The Western Australian Act provides that a party to a conversation or activity may use a listening or optical surveillance device if there are reasonable grounds for believing it to be in the public interest.³⁰ Any person, whether or not a party to a conversation or activity, may use a listening or optical surveillance device in an emergency situation where there are reasonable grounds for believing that the matter is so serious and urgent that the use of the device is in the public interest.³¹ Where a device is used in an emergency situation, a written report must be made to a judge “without delay”, giving details of the type of device used, the duration of use, the name of the person monitored, the circumstances which gave rise to the emergency and the intended use of the information obtained as a result.³² Before any information obtained from the use of a surveillance device under the public interest provisions may be published or communicated, an order must be obtained from a judge allowing such publication or communication. A judge may make an order allowing publication or communication, including any conditions or restrictions considered necessary, if he or she is satisfied that it will further or protect the public interest.³³

6.29 Originally, the Western Australian Surveillance Devices Bill did not include the part permitting public interest surveillance. During parliamentary debate on the Bill, however, the Opposition noted the heavy bias towards law enforcement, and claimed that the Bill offered insufficient scope for legitimate surveillance in other circumstances, particularly involving the media and private investigators.³⁴ As a result, the public interest section was included in the legislation.

6.30 The first application for a publication order under the Western Australian Act’s public interest provisions was made by a media organisation. The Nine Network’s “A Current Affair” program used a hidden camera fitted to a volunteer who offered to buy drugs from an alleged dealer. The police were aware of the surveillance, and the drugs purchased and the film of the exchange were handed to the police following the surveillance. Justice Owen in the Western Australian Supreme Court approved the publication order, considering the screening of the footage to be in the public interest.³⁵ The executive producer of “A Current Affair” claimed that the provisions made the media’s job difficult, since they had to prove to the court that the information was in the public interest rather than deciding for themselves. However, the executive producer also noted that he did not view the Western Australian Act with “trepidation”, and that the media would always work within it.³⁶

6.31 While the Commission considers that the proposed surveillance legislation should permit covert surveillance in the public interest in certain circumstances, the recommendations in this Report concerning public interest surveillance differ from the Western Australian model in three major respects. First, the Western Australian Act is device-specific in that it only regulates covert surveillance in the public interest through the use of listening or optical surveillance devices. In Chapter 2, the Commission explains why it recommends against a device-specific approach for the proposed surveillance legislation.

6.32 Secondly, the Western Australian Act contains a participant monitoring distinction which allows parties to a conversation or activity to record or monitor it without requiring any authorisation if they consider it to be in the public interest, while non-parties are permitted to record or monitor conversations or activities in the public interest only in an emergency. The Commission recommends, again in Chapter 2, that participant monitoring provisions should not be included in the proposed surveillance legislation.³⁷ Participant monitoring is based on the flawed assumption that inviting someone to engage in a conversation or activity impliedly justifies the use of a surveillance device to monitor or record that conversation or activity. The key determinant of whether there is a public interest significant enough to justify setting privacy aside should be the circumstances that give rise to that public interest in each individual case, and not whether the person conducting the covert monitoring was a party to the conversation or activity being monitored.

6.33 The third area in which the Commission’s recommendations differ from the Western Australian Act is the point at which authorisation must be obtained. Under the Western Australian Act, authorisation must be obtained from a judge after the covert surveillance has been conducted but before the results may be published or communicated. This effectively leaves the actual monitoring of the conversation or activity unregulated.³⁸ The Commission is of the view that a stronger privacy safeguard is needed, particularly given the breadth of the concept of public interest and the intrusive nature of covert surveillance. The Commission consequently recommends that a person or organisation wanting to conduct covert surveillance in the public interest must obtain approval from an issuing authority before conducting the surveillance,³⁹ rather than before publication and release of the information.⁴⁰ This would ensure that covert surveillance in the public interest may occur, but only in circumstances where the consequential intrusion into privacy can be justified.

The issuing authority

6.34 Throughout this chapter, reference is made to an appropriate “issuing authority” that may authorise covert surveillance in the public interest. The Commission recommends that authorisations for covert surveillance conducted by, or on behalf of, employers, should be issued by members of the Industrial Relations Commission.⁴¹ For law enforcement officers, the Commission recommends that warrants authorising covert surveillance should be issued by “eligible judges” through the courts system.⁴² At the federal level, members of the Administrative Appeals Tribunal have been issuing warrants permitting telephone interceptions since 1997, the warrants having previously been issued by “eligible judges” in the Federal Court.⁴³

6.35 Consequently, an issuing authority could be members of a court or a tribunal. Both courts and tribunals are frequently required to determine questions of public interest in matters coming before them. It is the Commission’s view that the ultimate decision as to which forum should issue public interest authorisations is likely to be more influenced by resources than the issue of whether a court or a tribunal is the most appropriate forum. Since the introduction of a system for authorising covert public interest surveillance is a new concept, there is no way of predicting how many applications would be made under the proposed legislation. If the number of applications happened to be quite low, it may be expedient for public interest authorisations to be issued by the courts, since “eligible judges” are already accustomed to issuing warrants and their workload would not be greatly increased. If, however, the number of applications made presented a strain on the time and resources of the courts, public interest authorisations could be issued by members of a tribunal such as the Administrative Decisions Tribunal (“ADT”).⁴⁴

6.36 Since the choice of issuing authority is likely to be a matter of an administrative rather than a legislative policy nature, the Commission refrains from recommending either the court system or the ADT. The Commission does recommend, however, that whichever body is judged to be the appropriate issuing authority, it should be accessible, affordable, expeditious and impartial. The Commission also recommends that the procedures for applying for a public interest authorisation, the factors which must be considered in deciding to issue the authorisation and the contents of the authorisation, should be as similar as possible to those recommended for covert surveillance by law enforcement officers.

Recommendation 52

The appropriate authority for issuing authorisations to conduct covert surveillance in the public interest should be either “eligible judges” or members of a tribunal such as the Administrative Decisions Tribunal. Regardless of which forum is considered to be most appropriate, the authorisation process should be accessible, affordable, expeditious and impartial.

6.37 Applications for conducting covert surveillance in the public interest should be made in writing, and may be delivered to the issuing authority in person, or transmitted by mail, facsimile or e-mail. Applications should contain as much information as possible concerning the circumstances of the proposed surveillance to enable the issuing authority to determine if the situation gives rise to a public interest which justifies the use of covert surveillance.⁴⁵ The issuing authority should be empowered to request further information, or to refuse an application where insufficient details have been provided.

6.38 The Commission recommends that, 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 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; and
• whether the public interest (or interests) involved justifies the displacement of individual privacy in the circumstances.

Recommendation 53

The proposed Surveillance Act should require an application for an authorisation to conduct covert surveillance in the public interest to contain information similar to an application for a warrant made by a law enforcement officer (see Recommendation 41).

Recommendation 54

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

6.39 The LDA currently prescribes a number of matters that must be contained in a warrant.⁴⁶ Warrants which do not comply with the LDA in this respect are invalid, and cannot be amended by the “slip rule”⁴⁷ nor by the Court’s inherent powers, because the warrant is not granted in “proceedings” and is not an order or judgment.⁴⁸ So far as warrants for covert surveillance by law enforcement officers is concerned, the Commission recommended that the proposed surveillance legislation should specify what the warrant should contain and that these requirements should, like those in the LDA, be mandatory.⁴⁹

6.40 The Commission makes the same recommendation in relation to authorisations for public interest surveillance. It is essential that in granting a power of a highly intrusive nature, the scope and limits of that power are specified and that the requirements operate not merely as guidelines.

6.41 The proposed surveillance legislation should enable an authorisation permitting covert surveillance in the public interest to cover the use of more than one device. The legislation should provide for an authorisation to specify:

• the circumstances in respect of which the authorisation is granted;
• where practicable, the name of any person who is to be the subject of surveillance;
• the various public interests considered;
• the period (being a period not exceeding 30 days) during which the authorisation may be in force;⁵⁰
• that the surveillance device(s) may be repaired, tested, moved, maintained, replaced and/or retrieved during the duration of the authorisation;⁵¹
• the name(s) of the person(s) who may use the surveillance device(s), or who may repair, test, move, maintain, replace or retrieve the surveillance device(s), pursuant to the authorisation;
• if practicable, the premises on which the surveillance device(s) are to be installed or used;
• entry onto premises for the purpose of installing, repairing, testing, moving, replacing or retrieving the surveillance device(s), providing that no trespass is committed;
• the type(s) and number of surveillance device(s) to be used;
• any conditions subject to which the surveillance device(s) may be used pursuant to the authorisation;
• any conditions subject to which any information obtained as a result of the use of the surveillance device(s) may be used, released or published;⁵² and
• the time within which the person authorised to use the surveillance device(s) pursuant to the authorisation is required to report to the issuing authority and the Attorney General.⁵³

Recommendation 55

The proposed Surveillance Act should provide that an authorisation permitting covert surveillance in the public interest may specify:

• the circumstances in respect of which the authorisation is granted;
• where practicable, the name of any person who is to be the subject of surveillance;
• the various public interests considered;
• the period (being a period not exceeding 30 days) during which the authorisation may be in force;
• that the surveillance device(s) may be repaired, tested, moved, maintained, replaced and/or retrieved during the duration of the authorisation;
• the name(s) of the person(s) who may use the surveillance device(s), or who may repair, test, move, maintain, replace or retrieve the surveillance device(s), pursuant to the authorisation;
• if practicable, the premises on which the surveillance device(s) are to be installed or used;
• that entry onto premises for the purpose of installing, repairing, testing, moving, replacing or retrieving the surveillance device(s) is permitted, provided no trespass is committed;
• the type(s) and number of surveillance device(s) to be used;
• any conditions subject to which the surveillance device(s) may be used pursuant to the authorisation;
• any conditions subject to which any information obtained as a result of the use of the surveillance device(s) may be used, released or published; and
• the time within which the person authorised to use the surveillance device(s) pursuant to the authorisation is required to report to the issuing authority and the Attorney General (see recommendation 68).
An authorisation permitting covert surveillance in the public interest may enable the use of more than one device.

6.43 Generally, authorisation for covert surveillance in the public interest should be obtained prior to the surveillance occurring. There may be situations, however, where prior authorisation is not possible or practicable. For example, a situation so urgent and serious may arise which justifies the use of covert surveillance in the public interest, but affords no time to obtain prior authorisation from the issuing authority. Another circumstance may be where a person reasonably believes that covert surveillance is necessary to further or protect the public interest, but needs more evidence to convince the issuing authority that the surveillance is justified. This situation may arise in the example given earlier,⁵⁶ where a person wished to keep a record of a conversation because of a reasonable suspicion that he or she may be misrepresented in a way that may result in a wrongful prosecution or serious damage to his or her reputation.

6.44 In these types of situations, there should be a provision in the proposed surveillance legislation permitting authorisation following the surveillance. The Commission recommends that an application should be made to the issuing authority as soon as possible, preferably within 24 hours after the surveillance is completed.⁵⁷ In applying for a retrospective authorisation, an applicant must demonstrate why prior approval was not or could not be sought. Due to the intrusive nature of covert surveillance, particularly when conducted without prior approval, retrospective authorisations should be regarded as exceptional.

Recommendation 56

Covert surveillance in the public interest must be authorised by the appropriate body prior to the surveillance being conducted. Where such prior authorisation is not possible or practicable, it may be obtained retrospectively (preferably within 24 hours) following the conclusion of the surveillance.

6.45 In an attempt to ensure that broad issues of public interest and accountability are adequately canvassed during applications for, and the execution of, covert search and surveillance warrants, the position of Public Interest Monitor (“PIM”) was established in Queensland in 1998. The PIM operates under three different pieces of legislation: the Police Powers and Responsibilities Act 1997 (Qld),⁵⁸ the Crime Commission Act 1977 (Qld)⁵⁹ and the Criminal Justice Act 1989 (Qld).⁶⁰ The office of the PIM is funded from the budget of the Queensland Police Service, but may not be occupied by a person who is, or who is employed by the Police Service, the Director of Public Prosecutions, the Queensland Crime Commission, or the Criminal Justice Commission.⁶¹ The role of the PIM is to:

• appear at any application made by a law enforcement agency for covert search or surveillance warrants under the above legislation;⁶²
• test the validity of a warrant application by issuing written questions to the applicant prior to the hearing, cross-examining the applicant during the hearing, and/or making submissions to the court on the appropriateness of granting the warrant;
• gather statistical information about the use and effectiveness of warrants;
• monitor the retention or destruction of information obtained under a warrant;
• provide to the Commissioner of Police, or other authority as appropriate, a report on non-compliance with the legislation; and
• report to Queensland Parliament at the end of each financial year on the use of surveillance and search warrants.⁶³

6.47 The question of whether to include the office of the PIM in surveillance legislation is being looked at and debated in other jurisdictions.⁶⁵ The Commission is of the view that the regime recommended in this Report embodies sufficient accountability measures⁶⁶ to ensure that public interest concerns are addressed, without the need for a PIM. Courts and tribunals (regardless of which forum is selected to authorise covert public interest surveillance) have been accustomed to identifying and assessing notions of public interest for some time. The Commission considers that the inclusion of a PIM model in the proposed surveillance legislation would not improve the level of scrutiny which the appropriate issuing authority would ordinarily give to each application for a public interest authorisation.⁶⁷ Accordingly, the Commission makes no recommendation on this issue, but raises it for further consideration.

2. For a discussion of various theories as to what amounts to a public interest, see A McHarg, “Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights” (1999) 62 Modern Law Review 671 at 674-678.

3. See R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Ltd (1971) 123 CLR 361. See also Australian Law Reform Commission, Open Government (Report 77, 1995) at para 8.13; and a speech by J Mullally, “Privacy: Are the Media a Special Case?” The New Privacy Laws: a symposium on preparing privacy laws for the 21st century (Communications Law Centre Conference, 19 February 1997, Sydney).

4. See Johansen v City Mutual Life Assurance Society Ltd (1905) 2 CLR 186; also K Koomen, “Under Surveillance: Fergie, Photographers and Infringements on Freedom” (1993) 17(2) University of Queensland Law Journal at 234.

5. Australian Law Reform Commission, Beyond the door-keeper – standing to sue for public remedies (Report 78, 1996) at 5.

6. Some cases have held that the public interest must amount to more than a private right or individual interest: see Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60. While it may be necessary to make such a distinction in some cases, the Commission contends that undertaking covert surveillance to protect a private right or interest can also involve the public interest: see para 6.11 and 6.23.

7. See eg, Defamation Act 1974 (NSW) s 16; Legal Profession Act 1987 (NSW) s 155A; Independent Commission Against Corruption Act 1988 (NSW) s 12 and s 57G; Freedom of Information Act 1989 (NSW) s 59A; Police Service Act 1990 (NSW) s 156; Protected Disclosures Act 1994 (NSW) s 3; Evidence Act 1995 (NSW) s 130; Privacy and Personal Information Protection Act 1998 (NSW) s 41; Telecommunications (Interception) Act 1979 (Cth) s 6DA.

8. Whistleblowers Protection Act 1993 (SA) s 4.

9. Surveillance Devices Act 1998 (WA) s 24.

10. See para 6.33. Provision should also be made for retrospective authorisation in appropriate circumstances: see para 6.43-6.44. The Commission discusses what is meant by the term “appropriate issuing authority” at para 6.35-6.36.

11. Australian Broadcasting Corporation, Submission at 2; Publishing and Broadcasting Limited, Submission at 4.

12. Australian Broadcasting Corporation, Submission at 1-2.

13. Publishing and Broadcasting Limited, Submission at 2.

14. Publishing and Broadcasting Limited, Submission at 4.

15. Publishing and Broadcasting Limited, Submission at 3.

16. Australian Press Council, Submission at 2-3. See also Australian Press Council, “Submission to the Department of Justice, Victoria, on its Discussion Paper, ‘Surveillance Devices Bill, July 1998’” «www.presscouncil.org/au/pcsite/fop/surveill.html».

17. Two of the principles are of particular relevance. Principle 3 provides that people are “entitled to have news and comment presented to them honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy should not prevent publication of matters of interest. Rumour and unconfirmed reports, if published at all, should be identified as such”. Principle 4 states that news “obtained by dishonest or unfair means, or the publication of which would involve a breach of confidence, should not be published unless there is an over-riding public interest”: Australian Press Council, Submission at 2-3.

18. One commentator has noted that the law has so far failed satisfactorily to reconcile the concepts of privacy and press freedom: see R Wacks, “Reconciling privacy and free speech” (1999) 4(4) Media and Arts Law Review 261 at 262.

19. Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 111 (Finlay J).

20. See para 6.13.

21. Australian Institute of Private Detectives, Submission at 2.

22. Barrington Group, Submission at 2; Australian Institute of Private Detectives, Submission at 3.

23. See Barrington Group, Submission at 2; D Turner, “Out in the Cold” The Weekend Australian (Saturday, 4 October 1997) at 33; B Kucera, “Outsourcing the Nation’s Policing – Business Opportunities for the Private Sector” 35(5) The Agent (Institute of Mercantile Agents Ltd, May 2000) at 6.

24. The accountability of the private investigation industry has been the subject of discussion and debate for many years. In a submission to the Commission, the Australian Centre for Security Research at the University of Western Sydney expressed concern over the current licensing arrangements under the Commercial Agents and Private Inquiry Agents Act 1963 (NSW), and recommended that minimum standards of training, including surveillance training, should be introduced: Australian Centre for Security Research, University of Western Sydney Macarthur, Submission at 3-4.

25. Generally, prior authorisation should be required. In the circumstances described above, however, it may not be possible or practicable to obtain prior authorisation for reasons such as lack of evidence. In such a situation, authorisation may be obtained following the surveillance: see para 6.43-6.44.

26. This view was supported by the Director of Public Prosecutions, Submission at 4; Price Waterhouse, Submission at 8; NSW Council for Civil Liberties Inc, Submission at 4; Privacy Committee of NSW, Submission at 24; Law Society of NSW, Submission at 3.

27. See para 6.8-6.9.

28. See para 6.37-6.42 for the Commission’s recommendations concerning the procedural requirements for public interest authorisations.

29. Surveillance Devices Act 1998 (WA) Pt 5.

30. Surveillance Devices Act 1998 (WA) s 26 and 27.

31. Surveillance Devices Act 1998 (WA) s 28 and 29.

32. Surveillance Devices Act 1998 (WA) s 30.

33. Surveillance Devices Act 1998 (WA) s 31.

34. Western Australia, Parliamentary Debates (Hansard) Legislative Assembly, 21 October 1997 at 8345.

35. Re Surveillance Devices Act 1998; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246 (Owen J).

36. M Videnieks, “How Nine-cam saw and conquered the law” The Australian (30 November 1999) at 6; M Videnieks, “Tripping on the hidden traps” The Australian (16 December 1999) at 3.

37. See para 2.99-2.107. The Commission’s Chairperson, Justice Michael Adams, dissents on this point with regard to the use of listening devices by a party to a conversation.

38. Simon Davies commented that the privacy safeguards offered by the Western Australian legislation were undercut by the public interest provisions: S Davies, “Privacy and Surveillance: The Surveillance Devices Act 1998” 27(1) Brief (February 2000) at 7.

39. Unless prior authorisation is not possible or practicable, in which case retrospective authorisation should be sought: see para 6.43-6.44.

40. The authorisation to conduct covert surveillance in the public interest may specify, restrict or place conditions on the use of the information obtained as a result: see para 6.41.

41. See para 7.61-7.62.

42. Since issuing warrants is an administrative rather than a judicial function, judges are not automatically eligible to issue warrants based on their judicial status alone, but must be nominated as eligible by the Attorney General – hence the term “eligible judge”: see para 5.32-5.35.

43. See Telecommunications (Interception) and Listening Devices Amendment Act 1997 (Cth).

44. The ADT is comprised of a President (who must be a District Court Judge), Deputy Presidents and non-presidential judicial members (who must be either judicial officers or legal practitioners of at least 7 years standing), and non-judicial members (who are appointed for their expertise in various areas falling within the ADT’s jurisdiction): Administrative Decisions Tribunal Act 1997 (NSW) s 17. The ADT may make original decisions, as well as review decisions capable of being reviewed: Administrative Decisions Tribunal Act 1997 (NSW) s 36. The power to make decisions may be conferred on the ADT by any other Act of Parliament: Administrative Decisions Tribunal Act 1997 (NSW) s 37.

45. The information should be similar to that required for law enforcement warrants: see para 5.74-5.77.

46. LDA s 16(4).

47. See Supreme Court Rules 1970 (NSW) Pt 20 r1 and 10.

48. Haynes v Attorney General (NSW, Supreme Court, No 012075/95, 9 February 1996, James J, unreported). See also Bayeh v Taylor (NSW, Supreme Court, No 13497/97, 4 February 1998, Grove J, unreported).

49. See para 5.72-5.73.

50. This is consistent with the Commission’s recommendation concerning warrants for law enforcement officers: see para 5.65-5.71.

51. Where retrieval cannot occur, the applicant must seek the further permission of the issuing authority to leave the device in place. This is consistent with the recommendations for law enforcement warrants at para 5.84-5.88.

52. See ch 9 regarding the Commission’s recommendations on the use of information obtained as a result of covert surveillance.

53. See ch 8 regarding the Commission’s recommendations on the reporting requirements for covert surveillance.

54. See para 5.46-5.47.

55. Police officers, for example, are subject to internal disciplinary procedures and are answerable to the Commissioner for Police, the Police Integrity Commission, Royal Commissions, etc.

56. See para 6.23.

57. This is consistent with the recommendation concerning retrospective warrants for law enforcement officers: see para 5.93-5.94.

58. Police Powers and Responsibilities Act 1997 (Qld) Pt 10.

59. Crime Commission Act 1977 (Qld) Pt 6.

60. Criminal Justice Act 1989 (Qld) Pt 3 Division 1A.

61. See Police Powers and Responsibilities Act 1997 (Qld) s 79; and Crime Commission Act 1997 (Qld) s 69. The current PIM is Mr Richard Perry, a barrister in private practice.

62. It should be noted that the legislation under which the PIM operates in Queensland permits only law enforcement agencies to apply for warrants with respect to serious criminal offences. The PIM does not, therefore, deal with issues of broader public interest as discussed in this chapter.

63. See Queensland, Annual Report of the Public Interest Monitor delivered pursuant to the Police Powers and Responsibilities Act and the Crime Commission Act (RA Perry and KW Dillon, 1998) (“PIM 1998 Report”) at 1-2. The approach taken by the courts has been to require warrant applicants to provide an affidavit to the PIM, within seven days following the removal of the surveillance device, setting out the information necessary for the PIM to make his report: Queensland, Second Annual Report of the Public Interest Monitor delivered pursuant to the Police Powers and Responsibilities Act and the Crime Commission Act (RA Perry and B Springer, 1999) (“PIM 1999 Report”) at 1-2.

64. PIM 1998 Report at 6. See also Heery v Criminal Justice Commission (2000) 110 A Crim R 465 (White J).

65. For example, the Listening Devices (Miscellaneous) Amendment Bill 1998 (SA) has been referred to a Parliamentary Legislation Committee to investigate the proposal to include the role of PIM in the legislation. Further, the appropriateness of the PIM model in relation to authorising controlled operations, in particular those conducted by the National Crime Authority, has been considered (and rejected as inappropriate) by a Federal Senate Committee: see Australia, Senate Committee, Street Legal: Senate Committee Report on the involvement of the NCA in controlled operations (December 1999) «www.aph.gov.au/senate/committees/nca_ctte/ street_legal/chapter4.htm».

66. See ch 8 and 9 for a detailed discussion of the accountability measures recommended by the Commission.