PART ONE: PRELIMINARY AND DEFINITIONAL ISSUES

1. INTRODUCTION
BACKGROUND TO THIS REFERENCE
PRIVACY
What we think of as privacy
A “right” of privacy?
An expectation of privacy
SURVEILLANCE
Origins
USES OF SURVEILLANCE DEVICES
Law enforcement
Public safety and crowd control
Protection of personal safety and private property
Media interests
Employer interests
EXISTING REGULATION OF SURVEILLANCE
New South Wales
Commonwealth
Other Australian states and territories
The common law
The LDA is outdated
THE STRUCTURE OF THIS PAPER

2. FRAMEWORK FOR A NEW SURVEILLANCE LAW
THE COMMISSION’S APPROACH
Privacy and surveillance
SCOPE OF THE PROPOSED LEGISLATION
Background
Restricting the type of device
Restricting the type of activity covered
Restricting who may conduct surveillance
Definitions
What activity is covered by the definitions?
What is not covered?
Data surveillance
REGULATION OF OVERT AND COVERT SURVEILLANCE
Overt surveillance
Covert surveillance
The “employment context”
Conclusion

PART TWO: OVERT SURVEILLANCE

3. OVERT SURVEILLANCE: ISSUES
INTRODUCTION
WAYS OF “SEEING”
PURPOSES OF OVERT SURVEILLANCE
Protection of people and property
Protection of the public interest
Collection of material for news and entertainment
Workplace surveillance
PROBLEMS WITH USING OVERT SURVEILLANCE
Privacy
Social justice
Performance monitoring
THE EFFICACY OF OVERT SURVEILLANCE
THE FUTURE OF OVERT SURVEILLANCE
VIEWS CONTAINED IN SUBMISSIONS
REGULATION
How overt surveillance is regulated
Self-regulation
Advantages of self-regulation
Shortcomings of self-regulation
Recent examples in other privacy-sensitive areas

4. OVERT SURVEILLANCE: RECOMMENDATIONS
FINDING A BALANCE
Protecting the rights of all parties
Weighing up the interests
A legislative response
A SCHEME OF REGULATION
Self-regulation or legislation?
ELEMENTS OF PROPOSED LEGISLATION
The requirement to give notice
The surveillance user
Codes of practice
Overt surveillance principles
PRINCIPLE 1
PRINCIPLE 2
PRINCIPLE 3
PRINCIPLE 4
PRINCIPLE 5
Public sector
PRINCIPLE 6
Staff
Surveillance material
PRINCIPLE 7
PRINCIPLE 8
THE PRIVACY COMMISSIONER’S ROLE
Powers
THE EMPLOYMENT CONTEXT
Codes of practice
Performance monitoring

PART THREE: COVERT SURVEILLANCE

5. COVERT SURVEILLANCE BY LAW ENFORCEMENT OFFICERS
INTRODUCTION
LISTENING DEVICES ACT 1984 (NSW)
THE PROPOSED SURVEILLANCE ACT
Who may apply for a warrant
Offences for which a warrant may be sought
Who should issue a warrant
Grounds for determining whether a warrant may be granted
What a warrant should authorise
Naming the persons who may use the device
Term of the warrant
Contents of the warrant and the application for a warrant
Single warrant to authorise the use of more than one device
Retrieval of a surveillance device after the expiry of the warrant
Emergency warrants
Warrants issued retrospectively

6. COVERT SURVEILLANCE IN THE PUBLIC INTEREST
WHAT IS THE “PUBLIC INTEREST”?
The media and the public interest
Private investigators and the public interest
Private rights and the public interest
THE AUTHORISATION PROCESS
The Western Australian Act
The issuing authority
Factors to consider in issuing a public interest authorisation
What an authorisation should specify
Retrospective authorisation
Public Interest Monitor

7. COVERT SURVEILLANCE IN EMPLOYMENT
THE USE OF SURVEILLANCE BY EMPLOYERS
Purpose of surveillance
Types of surveillance
Objections to covert surveillance
THE CURRENT REGULATORY FRAMEWORK
The Workplace Video Surveillance Act 1998 (NSW)
Industrial relations legislation
Employment contracts
ADEQUACY OF CURRENT FRAMEWORK
OPTIONS FOR REFORM
A similar expectation of privacy?
Third parties
REGULATION OF COVERT SURVEILLANCE
Permitted purpose
Covert performance monitoring
Covert surveillance in toilets, change rooms and meal rooms
The issuing authority
The application
Granting a covert surveillance authorisation in the employment context
Contents of the authorisation
Retrospective authorisation

PART FOUR: MECHANISMS FOR ENSURING ACCOUNTABILITY

8. ACCOUNTABILITY FOR COVERT SURVEILLANCE
INTRODUCTION
REPORTING MEASURES FOR COVERT SURVEILLANCE
REPORTING TO THE ATTORNEY GENERAL
Reporting before a warrant has been issued
Reporting the results of surveillance pursuant to a warrant
REPORTING TO THE ISSUING AUTHORITY
RECORD-KEEPING AND INSPECTION
ANNUAL REPORT BY THE ATTORNEY GENERAL
Reporting requirements in the LDA
Reporting provisions in comparable legislation
Submissions and response
Conclusion
NOTIFYING THE SUBJECT OF SURVEILLANCE
The current law
Alternative approaches
Submissions and response
Conclusion

9. DEALINGS WITH COVERT SURVEILLANCE INFORMATION
PUBLICATION AND COMMUNICATION OF INFORMATION OBTAINED BY THE CONDUCT OF SURVEILLANCE
The law in other Australian jurisdictions
Conclusion
THE USE OF ILLEGALLY OBTAINED SURVEILLANCE MATERIAL AS EVIDENCE IN LEGAL PROCEEDINGS
General admission of illegally obtained evidence
Discretion to exclude evidence
Exclusionary rule
Conclusion
INCIDENTALLY OBTAINED EVIDENCE
Conclusion
PRE-TRIAL DISCLOSURE OF SURVEILLANCE EVIDENCE
SUPPRESSING THE PUBLICATION OF SURVEILLANCE EVIDENCE
A test for the use of the power to issue suppression orders
The power to suppress names as well as evidence
The extent of the application of the power
SECURITY AND STORAGE OF COVERT SURVEILLANCE MATERIAL
DESTRUCTION OF SURVEILLANCE INFORMATION
The law in other Australian jurisdictions
The law in foreign jurisdictions
Submissions and Response
Conclusion