Surveillance is part of our everyday lives. We are accustomed to seeing CCTV cameras in shops and at railway stations.

Surveillance devices assist with the collection of tolls on freeways, and with stock control and theft prevention when used in product tags in shops.

Surveillance technology is used to assist with immigration checks at airports. Many widely owned products now have surveillance capabilities.

Mobile phones that are able to take photos, record sound and images and assist us to find our destinations or locate people are now commonplace.

Surveillance serves many important purposes, including the promotion of public safety and the prevention of crime and it features in areas such as journalism and entertainment. Many groups within our community use surveillance technology, including police, transport operators, retailers, private investigators, sporting and entertainment venues and journalists.

The Victorian Law Reform Commission has released a consultation paper on Surveillance in Public Places and a key finding is that despite the widespread use of surveillance, there is no comprehensive regulation governing its use.

The Surveillance Devices Act 1999 (Vic) regulates some types of technologies and some types of surveillance activities. There are different legal requirements, including the need to obtain consent, for different types of devices depending on whether they are used indoors or outdoors and whether they monitor a private conversation or a private activity.

The Information Privacy Act 2000 (Vic) only applies to the use of personal information (that is, information that can identify a person) by government agencies. The Commonwealth Privacy Act (1988) does apply to the use of this information for private businesses with an annual turnover of more than $3 million, so small businesses are exempt.

From this body of regulation, there is no clear public policy that emerges concerning the circumstances in which public place surveillance is acceptable and the circumstances in which it is not permissible.

The role for the Victorian Law Reform Commission is to inform people about current practice and about the existing law and then to ask the community to consider whether they are satisfied with the existing regulation or would like to see change.

There is also a role for the commission to consider some of the negative consequences that may flow from the increased use of surveillance in public places.

These include a loss of privacy and anonymity which may cause us to alter the way we express ourselves and behave when in public.

While these adjustments may not be readily apparent in the short term, the long-term incremental effect may be permanent changes to the way in which we use and enjoy public places.

Because surveillance is often covert, those people with the means to do so may retreat to private places whenever possible in order to avoid unwanted observation.

As with much technological change there are also benefits. To single out one benefit of surveillance practices is that this activity allows the media to report on the news of the day and bring this into out lounge rooms and on to our laptops. The media relies on the freedom to film images and record sound to gather news for broadcast and publication. The freedom to gather news is highly prized by media organisations for both public interest and commercial reasons.

There are concerns however that because the line between genuine news and entertainment has become blurred, surveillance isn’t always carried out in the public interest.

Debate about how the public interest is defined and what falls within or outside this definition is a perennial topic for discussion. It was raised recently in relation to the publication of photographs of a woman who looked like, but was not, Queensland political figure Pauline Hanson.

The concept of the public interest also formed part of the discussion following the Australian Law Reform Commission’s major report on privacy released last August. The ALRC recommended a right of action to sue for particularly serious invasions of privacy.

Not surprisingly this provoked a strong response from the “Australia’s Right to Know” coalition of Australian news organisations. This discussion is ongoing as evidenced by the coalitions’ recent conference in Sydney where public interest and privacy issues were extensively discussed.

We understand this recommendation is controversial, but have included it as an option in our consultation paper as we believe it is a matter which the community should be invited to consider.

Other reform options to regulate surveillance in public places include:

  • A new role for an independent regulator to monitor, report and provide information about public place surveillance in Victoria. It is envisaged that the regulator may require statutory powers of investigation and could be responsible for regularly reporting to parliament.
  • New voluntary best-practice standards to promote responsible use of surveillance in public places. We ask whether compliance with best-practice standards could be encouraged by tying them to Victorian government procurement criteria.
  • Mandatory codes to govern the use of surveillance in public places with sanctions for non-compliance that include civil or criminal penalties.
  • A licensing system for some surveillance practices that are found to be particularly invasive of privacy.
  • Various changes to clarify and strengthen the Surveillance Devices Act 1999 (Vic).
  • A new statutory obligation to refrain from committing a serious invasion of privacy modelled on the statutory cause of action proposed by the ALRC in its recent report.

The report is available here. Submissions close on 30 June 2009.

Peter Fray

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