Chapter 1. Introduction
Updates and background for this project (Digest)
BACKGROUND TO THE REFERENCE
Terms of Reference
1.1 In October 1996, the then Attorney General, the Hon JW Shaw, QC MLC, asked the Commission to inquire into and report on:
1.2 In undertaking the reference, the Commission was to have regard to:
• the protection of individual privacy;
• 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; and
• the use of surveillance technology in public places.
Background to previous publications
1.3 In May 1997, the Commission released a short Issues Paper (IP 12) outlining what it considered to be the major issues at that time, and inviting responses from key surveillance users, privacy advocates and interested individuals. From the submissions received in response to IP 12, it became clear that the issues were far broader than first thought. Surveillance technology was developing rapidly, with the boundaries between the types of technology converging and becoming more difficult to distinguish. It was no longer feasible to look at specific devices in isolation, or particular users, since the technology was open to everyone. For example, video and sound recording were more frequently than not conducted by a single device; digital video and photography has resulted in images being easily stored on computers and transmitted through email systems and the internet; mobile phones have increasingly been used as tracking devices and cameras, and can also have internet capacity. Indeed, the boom in the use of the internet and email alone since 1996, while hugely advantageous to business and communications, has also presented significant threats to the privacy of those communications, particularly in the workplace. The global and amorphous nature of the internet has also created enormous challenges for those seeking to regulate its potential abuse.
1.4 Research and consultation following IP 12 also challenged the traditionally held view that surveillance of “public” activity was acceptable, but monitoring of activity conducted in private needed more stringent controls. The sophistication of the technology has increased the capacity to penetrate what once would have been considered to be the “private” sphere, without the need to trespass or to alert those under observation in any way. This has made many of the common law remedies for such activity inapplicable, or at least toothless. The proliferation of surveillance devices in places such as shopping centres, railway stations, and in and on public transport, has heightened public expectation that activities will be electronically recorded, whereas ten or fifteen years ago this would not have occurred to most people. The increased availability and affordability of surveillance devices has also meant that anyone may conduct surveillance of the most intrusive nature, once regarded the domain of law enforcers or private investigators. While all of these developments have brought undisputed benefits, privacy advocates worry that the line between public and private worlds has become so blurred and easily crossed, that the concept of a private life is ceasing to have any significance. In the Commission’s view, the regulation of surveillance could not continue to be viewed in terms of public or private places or uses.1
1.5 The Commission’s attention was also focussed on the type of activity that constituted surveillance. A watershed moment occurred in 1997 with the death of Diana, Princess of Wales, while being pursued by paparazzi, which challenged the traditional views of what constituted surveillance. This sparked a storm of controversy over the role of the media in conducting surveillance, the adequacy or otherwise of the regulation of media surveillance, and their responsibility for its end product.
1.6 It was against this background that the Commission developed the recommendations in Interim Report 98. What was most starkly apparent to the Commission when undertaking research for its Interim Report was the complete inadequacy of the current piecemeal, device-specific legislative models to meet the issues presented by modern and developing technology. At the time of writing Report 98, legislation in NSW regulated only the use of listening devices,2 of video surveillance in the workplace, and the use of surveillance by some government agencies (excluding the police) to collect personal information.3 The Commission considered that expanding the existing model to add devices would be equally inadequate. What was needed was an approach as broad and flexible as the technology it purported to regulate.
INTERIM REPORT 98
1.7 In February 2001, the Commission delivered Interim Report 98 to the Attorney General, the Hon Bob Debus, MP. The decision to release an Interim Report rather than a Discussion Paper was made because the Commission had developed fairly firm recommendations. However, since the scope of material covered was so much broader than that in the Issues Paper, the Commission was of the view that an Interim rather than a Final Report was more appropriate, considering that it may be desirable to conduct further consultation.
Major recommendations
1.8 In Report 98, the Commission recommended a broad legislative approach to regulating surveillance conducted both overtly and covertly, through the use of any type of surveillance device, and by any surveillance user. A comprehensive overview of the Commission’s recommended framework can be found in Report 98 at Chapters 1 and 2. The Commission recommended that “surveillance device” be defined to mean “any instrument, apparatus or equipment used either alone, or in conjunction with other equipment, which is being used to conduct surveillance”.4 Surveillance should be defined as “the use of a surveillance device in circumstances where there is a deliberate intention to monitor a person, a group of people, a place or an object for the purpose of obtaining information about a person who is the subject of the surveillance”.5 Those definitions are deliberately circular so as to exclude the use of a surveillance device for purposes other than conducting surveillance (for example, recreational photography or filming a wedding or child’s birthday party).6 The definitions also exclude surveillance conducted only by the human senses, without the use of a surveillance device.
1.9 Since overt and covert surveillance both raise privacy issues, the Commission recommended that they should both be regulated under the proposed legislation. However, because different policy questions arise depending on whether surveillance is conducted overtly or covertly, the Commission recommended two different regulatory schemes. As such, distinguishing between overt and covert surveillance is crucial, since that will determine which system of regulation would apply. According to the Commission’s recommendations, surveillance would be considered to be overt in circumstances where the subject of the surveillance had notice that the surveillance was occurring. Surveillance conducted in all other circumstances would be considered covert. Adequate notice would be proven to be given through any of the following or similar means:
- signs which are clearly visible and widely understood (for example, by people from non-English speaking backgrounds and people with a disability); or
- other warnings of the type of surveillance occurring, such as audio announcements or written notification (where practicable); and
- surveillance equipment which is clearly visible and recognisable.7
1.10 Examples of overt surveillance are CCTV cameras in shopping centres or railway stations, etc. The Commission recommended that overt surveillance should be regulated by a series of principles set out in the legislation (similar to the Information Protection Principles in the Privacy and Personal Information Act 1998 (NSW)), to be supplemented by Codes of Practice. The eight principles developed by the Commission were:
1. Overt surveillance should not be used in such a way that it breaches an individual’s reasonable expectation of privacy.
2. Overt surveillance must only be undertaken for an acceptable purpose.
3. Overt surveillance must be conducted in a manner which is appropriate for purpose.
4. Notice provisions shall identify the surveillance user.
5. Surveillance users are accountable for their surveillance device and the consequences of their use.
6. Surveillance users must ensure all aspects of their surveillance system are secure.
7. Material obtained through surveillance to be used in a fair manner and only for the purpose obtained.
8. Material obtained through surveillance to be destroyed within a specified period.8
1.11 Under the Commission’s recommendations, failure to comply with the principles would be an offence. The recommendations concerning the regulation of overt surveillance are discussed in detail in Chapters 3-4 of Report 98.
1.12 Since covert surveillance represents a more significant invasion of individual privacy than surveillance conducted overtly, the Commission recommended a more stringent system of prior authorisation by an independent arbiter before it may be conducted, based on the models currently in the Listening Devices Act 1984 (NSW) and the Workplace Video Surveillance Act 1998 (NSW). Accordingly, the Commission recommended that anyone wanting to use a surveillance device without the knowledge of the subject of the surveillance needs to obtain prior authorisation, based on affidavit evidence demonstrating the need for the surveillance. The type of authorisation required, and the body from which it should be obtained, would depend on whether the surveillance was being conducted by a law enforcement officer, in an employment context or in the public interest.9 In an emergency situation, where prior authorisation is not possible or practicable, the Commission recommended that authorisation should be available retrospectively.
1.13 The Commission also recommended a series of measures designed to promote accountability for the conduct of covert surveillance and the use of the material obtained as a result. Breach of the provisions regarding covert surveillance would amount to a criminal offence. This is consistent with the current LDA and WVSA.
1.14 In addition, the Commission recommended that a civil action for damages should be available in certain circumstances where a breach of the proposed legislation has occurred. It is envisaged that this would operate in a similar way to the complaints and review mechanisms under the Anti-Discrimination Act 1977 (NSW).10
Reasons for the Commission’s approach
1.15 The rationale for the nature and scope of the recommendations made by the Commission are detailed in Chapter 2 of Report 98. In that Chapter, the Commission explains:
- the reasons for adopting a broad, inclusive, non-device specific approach;11
- what activity is and is not included within the scope of the recommendations;12
- why the regulatory scheme is based on the distinction between overt and covert surveillance and not on the public/private distinction favoured in other surveillance legislation;13
- why the media have not been exempted from the scope of the Commission’s recommendations;14 and
- why the recommended legislation should have privacy as its paramount concern.15
Some of these issues are revisited and clarified in Chapter 3 of this Report.
Difficult or controversial aspects
1.16 Some of the recommendations in Report 98 contain difficult or controversial aspects that are either inherent in the subject matter of surveillance and the Commission’s approach to its regulation, or have emerged through events occurring since the publication of the Report. In particular, the more difficult areas include:
- vehement objection by the media to its inclusion within the scope of the proposed legislation;16
- the need to regulate email and internet surveillance, yet the difficulty of doing so, both constitutionally and practically, at a State level;
- the increased prominence and acceptance of surveillance as an anti-terrorism measure post-September 11, and the corresponding decrease in sympathy for privacy arguments;
- resentment of the fact that, since surveillance technology has dramatically outpaced the law, the proposed legislation would be regulating activity that is currently unregulated; and
- apparent confusion over the practical implications of the recommendations, eg, what is or is not covered.
This Report
Developments since Report 98
1.17 The Attorney General tabled Report 98 in Parliament in December 2001. At the same time, he wrote to the Commission asking for further consultation to be conducted concerning the impact of the Commission’s recommendations on media organisations, and asking the Commission to consider the effect of a High Court Decision involving media surveillance handed down in November 2001. The Commission has received submissions from a number of media organisations regarding their views on Report 98, and a meeting was held with those organisations in July 2002.
1.18 Due to other work commitments, only a watching brief was kept over the surveillance reference until December 2003 when research was recommenced. The current post-September 11 environment is vastly different from the one in which Report 98 was written. As a result, issues have emerged that need to be examined in addition to the ones directed to the Commission by the Attorney General. For example, the impact wrought by the changing attitudes and legislative responses to surveillance as a result of the focus on anti-terrorism, and the increasing pressure to regulate electronic communications in the workplace.
The Commission’s approach in this Report
1.19 In the course of writing this Report, the Commission has conducted extensive research into technological, social and legal developments in the field of surveillance, and analysed the relevant policy issues. The Commission has also undertaken targeted consultation with, and received submissions from, various media organisations. In addition, submissions have been received from insurers, Commonwealth and NSW government organisations, including Privacy NSW, individual private investigators, and others involved in the manufacturing, installation and maintenance of surveillance equipment.
1.20 The regulation of surveillance activity is a huge issue, and was comprehensively dealt with in Report 98. The legislative framework developed by the Commission in that Report was made deliberately flexible to avoid having to be revised every few years. Consequently, many of the issues that have emerged since Report 98 could all be accommodated under the Commission’s recommended legislative model, without the need to amend the legislation each time a new device, or use for a device, emerged. For example, issues such as the proliferation of cameras in mobile phones, the desire of police to make more use of video surveillance, and the regulation of email surveillance in the workplace, could all be regulated under the recommendations in Report 98.
1.21 Hence, the Commission is of the view that it is unnecessary in this Report to revise every aspect of Report 98 since the overall framework and the great majority of recommendations made in the Interim Report remain sound. This Report discusses only those issues that need clarification or amendment as a result of legal or other developments that have occurred since 2001, or have been incorporated as a result of suggestions made in submissions. Hence, this Report cannot be read as a stand-alone document, and needs to be read in conjunction with Report 98.
1.22 In this Report, the Commission provides an update of the way in which surveillance activity is currently regulated at a State and Commonwealth level, and outlines some of the major legal developments that have occurred since the release of Report 98 that either result from, or impact upon, the Commission’s recommendations.17 The Commission has also carefully considered all views raised in submissions and consultations, and discusses any changes to our recommendations provoked as a result in Chapters 4 and 5.
1.23 The major focus of this Report is to consider the impact of the recommendations made in Report 98 on the activities of the media, as requested by the Attorney General. Submissions from media organisations were highly critical of the Commission’s approach, both overall and with regard to specific recommendations. The Commission has examined all of the issues raised, and separated them into two categories: those which represent philosophical differences of opinion on broad issues such as the nature of privacy and surveillance;18 and those relating to particular recommendations that may cause some practical difficulty.19
FOOTNOTES
1. The Commission discusses the erosion of the distinction between public and private spaces in New South Wales Law Reform Commission, Surveillance: An Interim Report (Report 98, 2001) Chapter 2.
2. Including listening devices with video or tracking capacity: see Listening Devices Act 1984 (NSW) s 3(1A).
3. That situation is largely unchanged. See ch 2 for a discussion of legislative changes or proposals since 2001.
4. See Report 98, Recommendation 1 at para 2.36.
5. See Report 98, Recommendation 2 at para 2.39. The Report recommends that “monitor” be defined as listening to, watching, recording, or collecting (or enhancing the ability to listen to, watch, record or collect) words, images, signals, data, movement, behaviour or activity: Recommendation 3 at para 2.39.
6. Since this activity is not conducted for the purpose of monitoring, but as an electronic keepsake: see Report 98 para 2.65-2.67, and para 3.4-3.8 of this Report for further explanation.
7. See Report 98, Recommendation 10 at para 2.79. Due to the more specific rights and responsibilities owed to employers and employees, additional notice requirements are recommended for surveillance conducted in the workplace: see Report 98, Recommendations 11 and 12 at para 2.80-2.82. Also, the Commission recognised the difficulty that the notice requirements may pose for the media, and consequently recommended that, in certain cases, surveillance will be deemed to be overt even if the notice requirements are not met: see Recommendation 18.
8. See Report 98, para 4.38-4.66.
9. See Report 98, Chapters 5-7 for detailed recommendations concerning the regulation of covert surveillance by law enforcement officers, in the public interest and in employment, respectively.
10. See Report 98, Chapter 10 for a discussion of the recommended methods of dealing with breaches of the proposed new legislation.
11. See Report 98, para 2.8-2.32 for a discussion of the scope of the Commission’s recommendations.
12. See Report 98, para 2.40-2.76.
13. See Report 98, para 2.20-2.27.
14. See Report 98, para 2.56-2.61.
15. See Report 98, para 2.4-2.7.
16. See Chapter 3-5 for a discussion of the issues raised in submissions from media organisations.
17. See ch 2.
18. These issues are discussed in ch 3.
19. Recommendations relating to overt surveillance are discussed in ch 4, while recommendations concerning covert surveillance are discussed in ch 5.
