• Background to this reference
• Privacy
• Surveillance
• Uses of surveillance devices
• Existing regulation of surveillance
• The structure of this paper

BACKGROUND TO THIS REFERENCE

1.1 In 1996 the Commission received a reference from the then Attorney General, the Hon Jeff Shaw QC MLC, to inquire into and report on matters pertaining to the Listening Devices Act 1984 (NSW), the use of visual surveillance equipment, and any related matter. In May 1997 the Commission released an Issues Paper (“IP 12”),² inviting submissions from the public. Over thirty-seven submissions were received.³

1.2 It was anticipated at that time that IP 12 would be followed by a final report. However, as submissions were received on IP 12, and additional research and consultation were undertaken, the Commission concluded that the scope of the surveillance project was much wider than was originally envisaged. The pace of technological change was such that any attempt to limit surveillance legislation to specific types of devices would be fruitless, and the proliferation of surveillance equipment in the retail sector and in public places meant that greater consideration needed to be given to the appropriate regulatory framework. The Commission considered publishing a discussion paper and engaging in further community consultation, but decided that it was preferable to publish an interim report. This reflected the fact that the Commission had reached final views on the regulatory scheme to be recommended, but had not proceeded to develop draft legislation which would set out all of the detail of the scheme. The Commission will consult with the Attorney General to decide what, if any, further work should be undertaken by the Commission on this project.

PRIVACY

1.3 The terms of reference direct the Commission to have regard to the protection of the privacy of the individual. However, while the issue of privacy is fundamental to any consideration of the surveillance spectrum, it is important to note that the Commission is not conducting an inquiry into privacy as such.

What we think of as privacy

1.4 Since the famous dictum of Judge Cooley, that privacy is the right “to be let alone”,⁴ many definitions and formulations have been proposed, yet it is a concept each of us readily understands in one way or another. Privacy is a collective term for a number of interests, which the Australian Law Reform Commission, in its Report on Privacy,⁵ identified as follows:

• the interest in controlling entry to personal territory;
• the interest in freedom from interference with one’s person, including “personal space”;⁶
• the interest in controlling one’s personal information; and
• the interest in freedom from surveillance and the interception of one’s communications.

Most people in no wise deformed or disfigured would nevertheless be deeply upset if nude photographs of themselves were published in a newspaper or book. They feel the same way about photographs of their sexual activities, however “normal,” or about a narrative of those activities, or about having their medical records publicised. Although it is well known that every human being defecates, no adult human being in our society wants a newspaper to show a picture of him defecating. The desire for privacy illustrated by these examples is a mysterious but deep fact about human personality. It deserves and in our society receives legal protection. … An individual, and more pertinently perhaps the community is most offended by the publication of intimate personal facts when the community has no interest in them beyond the voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger.⁷

Privacy protects us from being misdefined and judged out of context in a world of short attention spans, a world in which information can easily be confused with knowledge. True knowledge of another person is the culmination of a slow process of mutual revelation. ... When intimate personal information circulates among a small group of people who know us well, its significance can be weighed against other aspects of our personality and character. By contrast, when intimate information is removed from its original context and revealed to strangers, we are vulnerable to being misjudged on the basis of our most embarrassing, and therefore most memorable, tastes and preferences.⁸

A “right” of privacy?

1.8 Undoubtedly, all persons have an interest in preserving their privacy. Moreover, it is reasonable to regard privacy as a basic human right. This is not the same, however, as enjoying a right to privacy, which would afford an enforceable remedy for interference with one of the privacy interests.¹⁰ Indeed, in Australia there is no general legal right to privacy.¹¹ However, certain privacy interests do find protection. At common law, for example, the law of trespass protects, inter alia, an interest in territorial privacy. A range of privacy interests is protected in various Commonwealth¹² and State¹³ statutes. Information privacy, in particular, finds some protection in both Commonwealth¹⁴ and State¹⁵ legislation. We return to a more detailed discussion below at paragraph 1.36 and following.

1.9 Australia is also a party to a number of international conventions that provide some protection for privacy. Perhaps the most significant of these is the International Covenant on Civil and Political Rights (“ICCPR”). Article 17 of the Convention provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

1.11 In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh¹⁸ the High Court of Australia held that the ratification of the United Nations Convention on the Rights of the Child gave rise to a legitimate expectation that in making deportation decisions, the Minister would act in conformity with it. In their reasons for holding that the Court had denied Mr Teoh the opportunity to present his case against an adverse decision which had not taken into account the rights of his children, Mason CJ and Deane J stated:

Junior counsel for the appellant contended that a convention ratified by Australia but not incorporated into our law could never give rise to a legitimate expectation. No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law is a less than compelling reason – legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.¹⁹

An expectation of privacy

1.13 In most societies people have an expectation that they will enjoy some degree of privacy. In this Report we are concerned principally with the fourth of the privacy interests identified by the ALRC, appearing at paragraph 1.4, the interest in freedom from surveillance. The Irish Law Reform Commission (“ILRC”), in its Report on privacy and surveillance, uses the shorthand term “surveillance privacy”. The expression “reasonable expectation of privacy”²³ is used by the ILRC and in this Report (at paragraph 4.41) as a yardstick by which to measure the acceptable boundaries of surveillance use. The ILRC, for example, defines surveillance privacy, or freedom from privacy-invasive surveillance, as “that freedom which a reasonable person in the circumstances of the case is entitled to expect”.²⁴

SURVEILLANCE

1.14 Surveillance might conjure in some minds an image of a private eye shadowing his or her prey, a security camera silently recording the scene below, or even the long-range lens of a paparazzo protruding from the lush undergrowth of some exclusive hideaway. These more colourful examples are gleaned from films, action novels and daily tabloid offerings. Many people probably do not think of themselves as the targets of surveillance, yet this is increasingly the case.

1.15 Most people are familiar with day-to-day surveillance: they are subject to it in banks, at service stations, on railway platforms. These particular examples are of the unconcealed use of visual surveillance equipment, most commonly by means of a closed circuit television (CCTV) system. Surveillance today, however, can take forms which many would find surprising. The author of the following scenario²⁵ says that, while it is fictional, he believes it to be “much nearer to reality than fantasy”:

At approximately 2.15 am, in response to an anonymous tip about an indoor marijuana growing operation, two agents from the Drug Enforcement Agency (DEA) pull up to the curbside fronting the home of William “Billy” Oldman. For the past decade, marijuana growers have been forced to bring their operations indoors in an attempt to avoid detection by low-flying DEA airplanes and helicopters. … The agents know that indoor marijuana growers often attempt to insulate their houses to avoid law enforcement detection of the heat from the high-wattage “grow lamps” necessary for indoor growing operations. [One of the agents] removes the DEA’s most dependable portable thermal imager from its carrying case and raises the handheld device to eye level.

To obtain the necessary baseline reading and to fine-tune the unit, the agent aims the imager at the residence adjacent to Oldman’s. After turning down the sensitivity level on the unit to correct an over-exposed view … he observes in one room of a neighbouring house what appears to be two concentrated, abnormally high heat patterns, identifiable as humans, moving in tandem – apparently a couple captured in a moment of intimacy. Then, once trained on another nearby house, the imager reveals two focused heat patterns seemingly chasing one another from room to room – probably a domestic disturbance, the agent imagines, considering the area of town.

• binoculars and telescopes;
• listening devices or “bugs”;
• video cameras;
• audio-visual devices;
• computers²⁶ ;
• tracking devices²⁷ ;
• biometric identification systems, which use some personal characteristic to verify identity²⁸ ; and
• various technologies of the type developed to detect concealed weapons.²⁹

Origins

1.18 The tale of the Trojan horse and the biblical account of Moses sending spies into Canaan³⁰ show that surveillance is at least as old as recorded history. Espionage and military intelligence are still the source of much of the surveillance technology in use today.³¹ In the United States the earliest systematic collection of military intelligence took place during the Civil War,³² employing such surveillance techniques as signal intercepts. Further developments have continued apace, limited, it would seem, only by imagination. In the 1960s tiny waterproof bugs disguised as martini olives (the toothpick acting as the antenna) had made their appearance in spy fiction.³³ In the 1990s, in real life, “smart dust” commenced development, to be used for such military applications as battlefield surveillance and “scud hunting”.³⁴

1.19 As the use of surveillance technology for military purposes has grown, its greater affordability and accessibility has allowed it to be imported into civilian life. Video surveillance technology, introduced in 1956, was one of the first examples.³⁵ Burrows claims that by 1984 video surveillance systems in a number of districts in the United States were being dismantled because of their failure to lead to arrests and convictions.³⁶ In recent years, however, the use of closed-circuit television (CCTV) systems has mushroomed. In fact, nowadays such equipment can be purchased by anyone from specialty shops or through the internet. While it is difficult to quantify the extent of video surveillance usage in any part of the world, one commentator³⁷ estimated that in 1997, 300,000 cameras had been installed in public places throughout the United Kingdom. According to an industry spokesman,³⁸ Sydney alone may have more than 30,000 surveillance cameras.

1.20 The manner in which surveillance is being used in public places today has altered since the early years. It is more likely to be promoted as just one of several measures in an approach termed “situational crime prevention”. This focuses on the context in which crime occurs, and in reducing opportunities for crime, rather than in the detection and punishment of offenders.³⁹ Accompanying the burgeoning use of CCTV systems are other measures, such as defensible space architecture in public housing, improved stocktaking and record keeping procedures, electronic access for cars and telephone systems, and alcohol controls at public events.⁴⁰ The Byron Bay Safe Celebration Project, replicated at Sydney’s Bondi Beach, is an example, following New Year’s Eve disturbances in the past.⁴¹ The City of Sydney, too, has devised a 10-point plan it hopes will protect personal safety in the central business district, of which the installation of a CCTV network is but a part.⁴²

1.21 Other forms of sophisticated technology can be pressed into service for relatively prosaic purposes. For example, advertisements appear in non-specialist magazines for tracking and recovery systems for stolen vehicles, based on what is claimed to be latest military tracking technology. Combining technologies produces new opportunities and scenarios, for example:

You have been pulled over for speeding by police using a laser gun. A zoom video camera in the squad car is recording the whole incident, and miniature radio microphones on the police officer’s lapel are capturing your conversation. While you are talking, your blood alcohol level is measured on a “passive direct” breathalyser powered by a space-age fuel cell. With a hand-held, pen-operated computer, the officer checks your licence and registration number and knows within three seconds whether you are wanted for any outstanding offences. Meanwhile, details of the speeding offence are digitally beamed by satellite or radio wave from the video-laser/radar unit in the police car to a central processing office. Far-fetched science fiction? A glimpse into the future? Perhaps even technology that’s just around the corner?

It’s none of those. It’s technology that is being used by police right now, somewhere in Australia, today.⁴³

1.23 The etymological origin of surveillance – a “watch kept over a person or thing”⁴⁶ – is also instructive. Surveillance in a societal context had a target, such as a suspect or prisoner, the distinction between the two probably counting for little in terms of privacy. Today, the word has an additional, more passive sense, as in the monitoring of a scene without any particular target, by which means any untoward activity, such as a skirmish or vehicle collision, can be noted. The operation of surveillance is not, however, a neutral concept, as the decision to install a surveillance device is not taken randomly. The presence of a device implies some foreseeable risk of wrongdoing or accident in the area under surveillance. Individuals whose images are captured by surveillance may be considered potential suspects in yet-to-be committed crimes.

1.24 For a society that used surveillance to counter the threat posed by the enemy, without or within, privacy may not have been seen as an important issue. Today, however, the potential “threat” upon which surveillance focuses is much more diverse: the shoplifter, the international terrorist, the traffic snarl. The use and development of surveillance devices and systems have spread apace in pursuance of many legitimate interests. Left behind has been a serious and detailed appraisal of whether they can be used in a way that does not present an unacceptable threat to privacy, and a consideration of how the potential subject of that surveillance – the general public – is affected by it.

USES OF SURVEILLANCE DEVICES

1.25 Surveillance is used routinely for the following purposes:

• law enforcement, as carried out by police, the New South Wales Crime Commission, Australian Security Intelligence Organisation and other such agencies;
• private investigation, most commonly in relation to suspected insurance frauds related to motor vehicle accident and workers compensation claims, but also in family law cases and other matters;⁴⁷
• workplace monitoring by employers;
• media reportage;
• enhancing public safety through traffic and crowd control; and
• protection of private property.

Law enforcement

1.27 Surveillance is used for a number of law enforcement functions.

Deterrence

1.28 It is thought that the warning, or visible presence, of cameras can have a deterrent effect on the commission of crime. This is the principal rationale underlying the use of the majority of unconcealed surveillance devices. A would-be offender, mindful of such consequences as the revelation of his or her identity, and the possibility of arrest and punishment, may think again before committing an illegal act.

On the spot policing

1.29 Of greater facility is the use of surveillance in on-the-spot policing. A vivid example is given by Ben Brown⁴⁹ in his series of case studies on the use of CCTV in three town centres in the United Kingdom:

Just after 11.00 pm one Sunday evening the CCTV operator noticed a person lying in the street. He looked around the area and then noticed two people who appeared to be attacking members of the public indiscriminately. One of the assailants then walked up to another person at a bus stop and hit him. The victim fell over and, as he fell he knocked his head on the curb. At this moment a bus drew up.

The assailants then got on bus (sic), but by this time the CCTV operator had alerted police officers. The officers arrived on the scene just as the bus was leaving and they managed to stop the bus and arrest the assailants. The victim later died of his injuries.⁵⁰

Evidence

1.30 One of the most important uses for surveillance is in the area of evidence gathering for investigation and possible prosecution of a crime. Video recordings of offences are crucial in assisting police in their investigations, notably in identifying offenders, the time at which the offence was committed, the modus operandi, and so on. The use of the product of surveillance as evidence will be discussed in Chapter 9. The material can also be very useful in finalising investigations. Suspects given the opportunity to view themselves in incriminating video footage are more likely to plead guilty, thus dispensing with the need for a trial, with its attendant financial and time costs. Such evidence can also clear a suspect of a false accusation. Justice Wood gave this ringing endorsement:

The Royal Commission found that its use of electronic surveillance was the single most important factor in achieving a breakthrough in its investigations.⁵²

Public safety and crowd control

1.32 Surveillance cameras are used to monitor traffic routes, major sporting events and other public spectacles. They can play an effective part in identifying trouble spots so that an appropriate response can be made. The use of surveillance for this purpose is rarely controversial, especially to monitor a crowd at large, or to home in on familiar troublespots. For example, computerised cameras using face recognition software installed at Manchester’s Main Road football stadium scan the ground for known hooligans, identifiable even if disguised.⁵⁴

Protection of personal safety and private property

1.33 Many businesses and residents use surveillance for personal and property protection. While such use is generally unobjectionable, especially when targeted against trespassers, the situation is less clear in the case of invited guests or employees, such as babysitters, who may be unaware that they are under surveillance.

Media interests

1.34 An important contribution that a free media can make to society lies in its ability to investigate subjects of public importance. The public interest may be well served by exposing, for example, fraudulent or corrupt practices by government or business. While such “scoops” are often the result of sensitive documents being leaked, sometimes they are the product of genuine investigative journalism. In recent years the practices engaged in by some branches of the media, especially the tabloid press, have come under greater public scrutiny.

Employer interests

1.35 Employers may install surveillance devices in shops and factories, in an effort to uncover theft and fraud on the part of both customers and employees.

EXISTING REGULATION OF SURVEILLANCE

New South Wales

1.36 The Listening Devices Act 1984 (NSW) (“LDA”) prohibits the use of listening devices to record private conversations, except in the circumstances outlined by the Act, without the use of a warrant granted by a judge. To be authorised under the LDA, the piece of equipment used to conduct surveillance must fall within a category defined in the legislation. The legislation currently defines “listening device” to mean:

any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place.⁵⁵

1.38 The Workplace Video Surveillance Act 1998 (NSW) regulates the use of video surveillance in the workplace. It defines video surveillance as surveillance by a closed-circuit television system or other electronic system for visual monitoring of activities on the workplace.⁵⁷ It allows video surveillance in the workplace if the employee has been given prior written notice of the surveillance, the surveillance cameras are clearly visible and there are visible signs notifying people that they may be under surveillance.⁵⁸ Surveillance that does not satisfy these criteria is considered covert video surveillance under the Act and is unlawful, unless an authorisation has been issued be a magistrate.⁵⁹

1.39 There are some legislative restrictions with respect to use of personal data. The Crimes Act 1900 (NSW) makes it an offence for a person to gain access to information stored in a computer.⁶⁰ The provisions in the Act have could be used to prosecute people who use data stored in computers for the purpose of monitoring individuals. The Privacy and Personal Information Act 1998 (NSW) introduces a set of principles that regulate the way public sector agencies should deal with personal information. The principles apply only to personal information, that is, any information that relates to an identifiable person. This definition covers not only traditional ideas of data storage such as paper files but also such things as electronic records, video recordings, photographs, genetic material and biometric information, like fingerprints.

Commonwealth

1.40 The Telecommunications (Interception) Act 1979 (Cth) (“Interception Act”) regulates the interception (listening to or recording) of a communication passing over a telecommunication system.⁶¹ As well as applying to Commonwealth bodies, the Interception Act applies to New South Wales agencies using telephone interception devices to investigate offences under New South Wales law.⁶² It has been held that the Interception Act “covers the field” so far as telephone interceptions are concerned, thus displacing, by virtue of section 109 of the Commonwealth Constitution, any state legislation purporting to regulate the same.⁶³ Furthermore, certain Commonwealth laws regulate the use of listening devices by specific Commonwealth organisations, such as the Australian Federal Police, customs officials, and the Australian Security Intelligence Organisation (ASIO).⁶⁴

1.41 There are Commonwealth statutes that regulate the use of data that relates to individuals. The Commonwealth Privacy Act 1988 (Cth) lays down strict privacy principles which Commonwealth government agencies must observe when collecting, storing and using personal information.⁶⁵ This Act and others⁶⁶ would, for example, cover data-matching which involves bringing together data from different sources and comparing it to identify people for further action or investigation.⁶⁷ The Crimes Act 1914 (Cth) makes it an offence for a person to gain access or damage to information stored in a Commonwealth computer.⁶⁸ The provisions in the Act, like their counterpart in the Crimes Act 1900 (NSW) could be used to prosecute persons who use data stored in (Commonwealth) computers for the purpose of monitoring individuals.

Other Australian states and territories

1.42 Queensland, South Australia, Tasmania, and the Australian Capital Territory, like New South Wales, all have legislation that generally regulates only the use of listening devices.⁶⁹ However, in 1997, Queensland enacted the Police Power and Responsibilities Act which regulates the use of a wider array of devices – listening, tracking and visual surveillance devices – by the police. This law does not cover the use of those devices by private individuals.

1.43 Western Australia, Victoria and the Northern Territory have recently introduced legislation to regulate surveillance activity beyond the use of listening devices. The Surveillance Devices Act 1998 (WA) regulates listening devices, optical surveillance devices and tracking devices.⁷⁰ The Act defines optical surveillance device as one that is capable of being used to record visually or observe a private activity and a tracking device as one that is capable of being used to determine the geographical location of a person or object.⁷¹ The Surveillance Devices Act 1999 (Vic) regulates the same devices as its Western Australian counterpart, but also covers data surveillance devices (defined as those that are capable of being used to record or monitor the input of information into or the output of information from a computer), when used by law enforcement officers.⁷² The Surveillance Devices Act 2000 (NT) covers listening devices, optical surveillance devices, tracking devices and data surveillance devices.⁷³

1.44 The recent surveillance devices statutes in other Australian jurisdictions are all device-specific. By this we mean that they all specify the type of surveillance devices to which the legislation relates. They do not cover many types of device currently in use, such as laser, infra-red, satellite and thermal-imaging equipment, nor those that may be developed in the future. Moreover, these laws deal generally with the covert monitoring of private conversations and activities. They do not provide guidance for overt surveillance or surveillance conducted with the knowledge of the subject. The Commission discusses the drawbacks of this approach in Chapter 2.

The common law

1.45 There are laws generally applicable in New South Wales that may impact on surveillance. The laws of trespass, nuisance and defamation, while not specifically relating to electronic surveillance, may regulate activities associated with surveillance in certain circumstances and provide the subject of the surveillance with some redress. What follows is a brief survey of the relevant common law and an examination of its efficacy in regulating the use of surveillance devices.

Trespass

1.46 An action may lie for trespass to land, goods or to the person.⁷⁴ Trespass to land occurs where a person directly, unlawfully and either intentionally or negligently, enters and/or remains on, or causes any physical matter to come into contact with, another person’s land (in respect of which that person must be entitled to exclusive possession).⁷⁵ An action for trespass may be available in relation to surveillance if, for example, a photographer climbed over a person’s fence and hid in the garden, with the intention of capturing that person’s movements on video camera. In such a case, trespass to land could be made out on the ground that the actions of the photographer intentionally and directly interfered with the owner’s possession of his or her land.⁷⁶ The courts have shown an inclination to find trespass to land in cases where camera crews have entered premises illegally in order to obtain interviews and film footage.⁷⁷

Nuisance

1.47 The tort of private nuisance occurs where an occupier of land has his or her beneficial use and enjoyment of the land impeded by the actions of another person. Those actions must be substantial⁷⁸ and unreasonable,⁷⁹ may be tangible or intangible⁸⁰ and must cause actual harm, which may include a disturbance to the occupier’s comfort, health or convenience.⁸¹ In certain circumstances, surveillance activity may amount to nuisance. In Lord Bernstein v Skyviews and General Limited,⁸² it was held that the taking of a single aerial photograph of a house from a plane did not amount to nuisance, as the interference with the owner’s right to enjoy his land was not substantial. That case left open the potential, however, for constant aerial surveillance to be actionable as nuisance.⁸³ In Raciti v Hughes,⁸⁴ the complainant brought an action for nuisance in relation to a video surveillance security system that directly overlooked his yard, activating the camera and floodlights each time the complainant or one of his family entered the yard. This was held to constitute a private nuisance.

Defamation

1.48 A person who is the subject of surveillance activity may bring an action for defamation if material obtained from the surveillance is published and is considered to be damaging to that person’s reputation.⁸⁵ It has been held that a nude photograph taken without the subject’s knowledge or consent, which is subsequently published in a magazine and exposes that person to ridicule, is capable of being defamatory.⁸⁶

Breach of confidence

1.49 In Creation Records Ltd v News Group Newspapers Ltd⁸⁷ a photo shoot for the cover of pop group Oasis’s new album took place around a hotel swimming pool. A photographer from The Sun newspaper, while lawfully at the scene as a hotel guest, took photos, one of which was similar to that chosen by the group for its album cover. This unauthorised photograph was published in The Sun and was the subject of a poster which the paper invited readers to purchase. The record company successfully argued that the photograph had been taken in breach of confidence, and was granted an interlocutory injunction restraining the paper from further publication of unauthorised photographs, damages being regarded as an inadequate remedy in this case. It was found that the circumstances of the shoot, eg the security measures imposed, made it arguable that it was intended to be confidential. The photographer had acted surreptitiously in taking the photographs, knowing that he would be allowed to remain at the scene only if he refrained from so doing.

The general law is inadequate

1.50 The general laws described above may not offer adequate protection against the effects of unjustified surveillance, nor do they provide an effective regulatory structure for surveillance in circumstances where the use of surveillance might be justified.

1.51 Trespass to land is only actionable where there has been a direct interference with the plaintiff’s land. There would be no trespass where a person becomes the subject of surveillance on land or in premises which he or she does not own or is not entitled to occupy exclusively.⁸⁸ Similarly, it would not amount to trespass for a person to use a video camera with a telephoto lens to observe someone’s movements from across the street, as there would be no interference with that person’s land:

When a person takes a photograph of someone else’s yard, he does not have to go onto that yard, but by standing on a public street or on adjoining land, he permits light travelling from objects on the yard being photographed to pass onto the film on his camera. This does not amount to any trespass either to land or to airspace.⁸⁹

The advances in technology which now enable private behaviour to be recorded in the course of a trespass by way of photographs and film, combined with the evolution of a sophisticated and internationally linked media, have substantially changed the nature of privacy invasions and affronts to dignity involving trespass to land. The reluctance of the judiciary to prevent the publication of recorded material obtained in the course of a trespass indicates the failure of the tort to adapt to the realities of our technological age. As a result of this failure an individual’s right to a degree of privacy when on private property, which the tort of trespass has traditionally protected, seems to have been lost to a bygone era.⁹⁰

1.54 An action for defamation will not arise unless the material is considered to be damaging to a person’s reputation and it is published in some way. Consequently, a person would have no action in defamation against someone possessing a video tape or photograph that is embarrassing, but not defamatory, or which is defamatory but not published.⁹² Even if the circumstances surrounding an act of surveillance satisfy the elements of defamation, there may be defences to that action which would defeat the plaintiff’s claim. For example, the defendant publisher may assert that the published material is substantially true and is of public interest, in which case the defamation action will fail.⁹³ In recent times, the High Court has also developed what is known as the “public figure test” in relation to political officials, whereby an allegation of defamation can be defended successfully by reliance on an implied freedom of political communication in the Australian Constitution.⁹⁴ As a result, it has become harder for political figures to bring defamation actions.

1.55 Even if a breach of an as aspect of general law is proved, the remedies available may be unsatisfactory. Injunctions are available in relation to trespass and nuisance to prevent acts continuing. However, the standard for granting injunctions is quite high. In Lincoln Hunt Australia Pty Ltd v Willesee,⁹⁵ Justice Young refused to grant an injunction to prevent the televising of material obtained by a television crew after entering the plaintiff’s premises without permission, on the ground that an injunction should only be granted if the circumstances would make the publication “unconscionable”, by which he meant that the plaintiff would suffer “irreparable damage” if the injunction were not granted,⁹⁶ and “that the balance of convenience favours the granting of an injunction”.⁹⁷ It is arguably quite difficult to demonstrate “irreparable damage”. The court may also refuse an injunction if it considers damages to be a more appropriate remedy, although these may be difficult to quantify. Damages will often be an inadequate remedy if lasting harm has been occasioned as a result of the surveillance.

1.56 The shortcomings in the existing laws as they relate to surveillance highlight the fact that they were meant to protect interests other than freedom from unwarranted surveillance. Nuisance and trespass, for example, are based in land ownership or right to occupation. Such actions only deal in a peripheral way with privacy issues.

The LDA is outdated

1.57 The equipment that is now available is considerably more sophisticated than it was when the LDA came into force in 1984. Many devices are capable of recording sound as well as visual images and other signals. Several submissions consider that the limited operation of the LDA is inadequate in the light of technology currently being used to monitor activity.⁹⁸ It seems illogical that the use of some types of surveillance equipment is regulated while the use of others is not. The lack of comprehensive coverage of all surveillance equipment may result in uncertainty on the admissibility of evidence obtained through equipment other than listening devices. It has also 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.⁹⁹

THE STRUCTURE OF THIS PAPER

1.59 This paper is divided into three parts. Part 1 deals with the background to and objectives of the reference and with the fundamental principles that should govern the use of surveillance devices.

• Chapter 2 outlines the broad scope and framework of the proposed surveillance legislation.

• Chapter 3 outlines the issues raised by the use of overt surveillance, and the arguments for and against its regulation.
• Chapter 4 sets out the proposed regulatory scheme for overt surveillance, which includes a set of basic principles that need to be observed in the overt use of surveillance devices.

• Chapter 5 examines the system of warrants that will allow law enforcement agencies to use surveillance devices covertly.
• Chapter 6 discusses the system of public interest authorisations that will allow individuals and organisations other than law enforcement agencies and employers to use surveillance devices covertly.
• Chapter 7 examines and makes recommendations on covert surveillance conducted in the employment context.

• Chapter 8 looks at the reporting and record keeping requirements for covert surveillance, as well as the need for notice to be given to the surveillance subject.
• Chapter 9 examines the use of information obtained as a result of covert surveillance, such as the publication or communication of such information and its use as evidence in legal proceedings. It also looks at whether there should be obligations concerning storage and destruction of covert surveillance information.
• Chapter 10 makes recommendation on the complaints and review procedures for overt and covert surveillance. It also looks at the range of sanctions and remedies that should apply for breaches of the proposed legislation.

2. New South Wales Law Reform Commission, Surveillance (Issues Paper 12, 1997) (“IP 12”).

3. See Appendix B.

4. Warren and Brandeis at 195.

5. Australian Law Reform Commission (“ALRC”), Privacy (Report 22, 1983) at para 46.

6. “[T]his sense of privacy transcends the physical and is aimed essentially at protecting the dignity of the human person. Our persons are protected not so much against the physical search ... as against the indignity of the search, its invasion of the person in a moral sense”: Canada, Department of Communications and Department of Justice, Privacy and Computers: a report of a Task Force established jointly by the Department of Communications and the Department of Justice (Ottawa, 1972) at 13-14.

7. Haynes v Alfred A Knopf Inc (1993) 8 F3d 1222 at 1229, 1232 (Posner J).

8. J Rosen, The Unwanted Gaze: the Destruction of Privacy in America (Random House, New York, 2000) at 8-9.

9. For examples of such systems see J Robotham, “Weaving the Tangled Web” Sydney Morning Herald (16 December 1995, Spectrum) at 7; S McKenzie, “Enjoy Your Flight ... We’ve Got You Already” Daily Telegraph (29 January 1997) at 11.

10. ALRC Report 22 at para 45.

11. Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 at 496.

12. Eg Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 7(1)(h) and 142A(6); Customs Act 1901 (Cth) s 219M(2) and 219Q(2).

13. Eg Adoption Information Act 1990 (NSW) s 3; Anti-Discrimination Act 1977 (NSW) s 31; Births, Deaths and Marriages Registration Act 1995 (NSW) s 48.

14. Privacy Act 1988 (Cth).

15. Privacy and Personal Information Protection Act 1988 (NSW).

16. Cf Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 286-287.

17. To this extent the Act also ensures that the Commonwealth’s responsibilities as a member of the Organisation for Economic Co-operation and Development (OECD) are met, in taking into account the Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. The passing of the Privacy Amendment (Private Sector) Act 2000 (Cth) in December 2000 amends the principal Act, so that it will, upon commencement in December 2001, apply to most private sector organisations as well. It is based on the Privacy Commissioner’s January 1999 voluntary National Principles for the Fair Handling of Personal Information: see the Australian Privacy Commissioner’s website at «www.privacy.gov.au».

18. (1995) 183 CLR 273.

19. Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 290-291 (Mason CJ and Deane J). In a ground-breaking decision handed down in December 2000, the English Court of Appeal found that the actors Catherine Zeta-Jones and Michael Douglas had a “powerful prima facie claim to redress for invasion of their privacy as a qualified right recognised and protected by English law.” This was possible because less than three months earlier, the Human Rights Act 1998 (UK) had come into force, giving effect to rights guaranteed under the European Convention on Human Rights, including a right to privacy and a right to freedom of expression. The couple were granted the right to sue Hello! magazine for invasion of privacy, after it published pictures of their wedding ahead of a rival publication which had paid for the exclusive right to do so: F Gibb, “New Privacy Right Won by Zeta-Jones” The Times «www.thetimes.co.uk/article/ 0,,2-57584,00.html».

20. He also argued that the Act violated his right to equality under Article 26, but the Committee decided there was no need to consider that, given its view on Article 17. For a discussion of this see W Morgan, “Identifying Evil For What it is: Tasmania, Sexual Perversity and the United Nations” (1994) 19 Melbourne University Law Review 740.

21. Section 109 provides: “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

22. Croome v Tasmania (1997) 71 ALJR 430.

23. The “reasonable expectation of privacy” test was coined in the leading American case of Katz v United States 389 US 347 (1967).

24. Ireland, Law Reform Commission, Report on Privacy: Surveillance and the Interception of Communications (LRC 57, 1998) at para 2.10.

25. M L Zabel, “A High-Tech Assault on the ‘Castle’: Warrantless Thermal Surveillance of Private Residences and the Fourth Amendment” (1995) 90 Northwestern University Law Review 267 at 267 and 268 note 1.

26. Computer surveillance can refer to accessing information stored in the computer or to monitoring the behaviour of the person operating the computer. One computer software company has developed a product to analyse a “customer’s” reaction to internet advertising when viewing it on his or her monitor. This product goes further than merely counting the number of “hits”, or visits, made by all viewers to an internet page. It registers “the time a user spends looking at a specific ad. It also uses hidden touchpoints in the advertisement to record how long the cursor lingers over a specific message in the text as the user decides whether or not to click onto it for more information. … every move of every user can be watched and recorded …”: H Sher, “Net Income” Jerusalem Report (7 August 1997) at 36-37.

27. For example, in December 1995 a State-wide network of cameras, Safe-T-Cam, commenced operation in New South Wales. It “tracks the movements of trucks across NSW by using artificial computer sight to recognise their number plates and relaying those details to a central computer in Sydney. Safe-T-Cam determines ‘whether any potential travel time or speeding violation may have occurred’, according to an RTA spokesman.”: J Robotham, “Weaving the Tangled Web” Sydney Morning Herald (16 December 1995, Spectrum) at 7.

28. For example, fingerprint and palm verification, voice and facial recognition, signature verification, and “even body odours sensed through the palm”: SJB Services, “The Biometrics Report: News Release” «www.sjb.co.uk/pr/pr_tbr2.txt». “Biometric technologies – the logging of unique personal measurements – are already emerging as the next wave of public surveillance … In Massachusetts, State authorities use the Eigen Faces system, which maps areas of light and shade to collect uniquely identifiable facial images of all registered drivers. Biometrics would not be possible without computer programs, called algorithms, for recognising particular patterns from vast backgrounds of white noise, and this is one of computing’s fastest advancing technologies. These algorithms can, literally, pick a face in a crowd.”: J Robotham, “Weaving the Tangled Web” Sydney Morning Herald (16 December 1995, Spectrum) at 7.

29. For example, back-scattered x-ray imaging and passive millimetre wave imaging: M Hansen, “No Place to Hide” (August 1997) 83 ABA Journal 44 at 47.

30. Numbers XIII:2.

31. Night viewing devices, for example, resulted from technology developed during the Vietnam War: G Yost, Spy-Tech (Harrap, London, 1985) at 206.

32. M Nieto, Public Video Surveillance: is it an Effective Crime Prevention Tool? (California Research Bureau, California State Library, Sacramento, 1997) at 2.

33. G Yost, Spy-Tech (Harrap, London, 1985) at 176.

34. Smart dust “relies on the convergence of three technologies: digital circuitry, laser-driven wireless communications, and something called MEMS (Micro ElectroMechanical Systems) to pack enough equipment into a space no more than one or two cubic millimeters in size”: J Flint, “Smart Dust” «www.telepolis.de/tp/english/inhalt/ co/5269/1.html». The inventors claim numerous applications for their product, including inventory control and product quality monitoring, but acknowledge that as they are funded by DARPA, the US Defence Department’s central research and development organisation, they are working on military applications: University of California at Berkeley, Department of Electrical Engineering and Computer Sciences, “Smart Dust: Autonomous Sensing and Communication in a Cubic Millimetre” «robotics.eecs.berkeley.edu/ ~pister/SmartDust».

35. D Diamond (ed), The Cambridge Factfinder (Cambridge University Press, 1994) at 526.

36. Hoboken (New Jersey), Olean and Mount Vernon (New York), Times Square (Manhattan, NY) and Miami Beach (Florida): Q Burrows, “Scowl Because You’re on Candid Camera: Privacy and Video Surveillance” (1997) 31 Valparaiso University Law Review 1079 at 1103.

37. T Dixon, “Who Will Watch the Watchers” Sydney Morning Herald (17 February 1997) at 17.

38. John Date, quoted by D Murphy, “Council Pays $1.5m to Keep Eye on City” Sydney Morning Herald (18 December 1998) at 6.

39. R V Clarke, Situational Crime Prevention: Successful Case Studies (2nd ed, Harrow and Heston, NY, 1997) at 2.

40. Clarke at 2.

41. New South Wales, Crime Prevention Division, “Developing Local Crime Prevention Plans: Why Should a Local Council Care About Crime Prevention?” «www.lawlink.nsw.gov.au/cpd.nsf/pages/ cpddevelop3».

42. The other nine points are: emergency video phones, improved street lighting, graffiti removal, upgrading city streets to encourage greater public use, crime prevention through environmental design, consultation between Police and licensed premises regarding the serving of alcohol, community safety education, increasing the number of personnel in a City Safety Taskforce, and developing supervised recreational activities in the Central Sydney area: City of Sydney, Report to Ratepayers 1997-98 at 22-23.

43. H Grennan, “Cops and robots” Bulletin (17 June 1997) at 18.

44. Safe-T-Cam (see note 27 above) is one example, described in the Transport Workers’ Union newspaper as a way to “reduce the economic pressure on the majority of drivers by modifying the behaviour of those who compete unfairly by speeding and driving long hours”: J Robotham, “Weaving the Tangled Web” Sydney Morning Herald (16 December 1995, Spectrum) at 7.

45. J Robotham, “Weaving the Tangled Web” Sydney Morning Herald (16 December 1995, Spectrum) at 7.

46. C T Onions (ed), Oxford Dictionary of English Etymology (Oxford, 1978) at 890.

47. M Dapin, “P I Blues” Sun Herald Sunday Life Supplement (8 March 1998) at 10.

48. B Buford, “Thy Neighbour’s Life” New Yorker (5 January 1998) at 36.

49. B Brown, CCTV in Town Centres: Three Case Studies (Home Office Police Department, Police Research Group Crime Detection and Prevention Series No 68, London, 1995).

50. Brown at 24.

51. One might also note that this is also an example of CCTV failing to act as a deterrent.

52. New South Wales, Royal Commission into the New South Wales Police Service, Final Report Vol 2: Reform (Sydney, 1997) (“Wood Report”) at para 7.82.

53. Burrows at 1123.

54. J Robotham, “Weaving the Tangled Web” Sydney Morning Herald (16 December 1995, Spectrum) at 7. However, civil libertarians criticised the covert videotaping of football fans attending the Super Bowl in Tampa, Florida, in January 2001. The images captured were fed into computers which, in under a second, compared them with thousands of digital portraits of known criminals and suspected terrorists contained in a database assembled from law enforcement agency files: P Slevin, “Police Video Cameras Taped Football Fans: Super Bowl Surveillance Stirs Debate” Washington Post (1 February 2001) at A1.

55. LDA s 3(1).

56. LDA s 3(1A). This amendment was introduced as a result of the decision in R v Peter Kay and Roula Kay (District Court of NSW, Viney J, 22 October 1999, unreported) which questioned whether a multi-function device fell within the definition of “listening device”: cf R v McNamara (1995) 1 VR 263.

57. Workplace Video Surveillance Act 1998 (NSW) s 3.

58. Workplace Video Surveillance Act 1998 (NSW) s 4.

59. Workplace Video Surveillance Act 1998 (NSW) Part 2 and 3.

60. Crimes Act 1900 (NSW) s 309, 310.

61. Telecommunications (Interception) Act 1979 (Cth) s 6(1). This legislation was enacted pursuant to the Commonwealth’s power to regulate “postal, telegraphic, telephonic and other like services”: Constitution (Cth) s 51(v).

62. See Telecommunications (Interception) Act 1979 (Cth) s 34; Telecommunications (Interception) (New South Wales) Act 1987 (NSW).

63. Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222 at 230; Miller v Miller (1978) 141 CLR 269.

64. The use of aural surveillance devices by Commonwealth agencies in the investigation of Commonwealth drug importation offences is regulated by the Customs Act 1901 (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 the Australian Federal Police Act 1979 (Cth) s 12B-12L; the use of aural, optical and computer surveillance devices by members of the Australian Security Intelligence Organisation is regulated by the Australian Security Intelligence Organisation Act 1979 (Cth).

65. As of December 2001, certain private sector organisations will also be subject to privacy regulation courtesy of the Privacy Amendment (Private Sector) Act 2000 (Cth).

66. For example, the Data-Matching Program (Assistance and Tax) Act 1990 (Cth) regulates the use of the tax file number in comparing personal information held by the Australian Taxation Office and by assistance agencies (Centrelink and the Department of Veterans Affairs).

67. For example, records from different government departments are often compared to identify people who are being paid benefits to which they are not entitled or people who are not paying the right amount of tax.

68. See Crimes Act 1914 (Cth) Part VIA.

69. Invasion of Privacy Act 1971 (Qld) Part 4; Listening Devices Act 1972 (SA); Listening Devices Act 1991 (Tas); Listening Devices Act 1992 (ACT).

70. Surveillance Devices Act 1998 (WA) s 5-7.

71. Surveillance Devices Act 1998 (WA) s 3.

72. Surveillance Devices Act 1999 (Vic) s 3 and 9.

73. Surveillance Devices Act 2000 (NT) s 3 and 5.

74. Trespass to the person involves direct physical interference with another, such as assault or battery. Trespass to goods applies to a similar direct interference with property other than land or buildings. See R P Balkin and J L R Davis, Law of Torts (2nd ed, Butterworths, Canberra, 1996) at 35-58, 97-103; See also R P Handley, “Trespass to Land as a Remedy for Unlawful Intrusion on Privacy” (1988) 62 Australian Law Journal 216.

75. Balkin and Davis at 114.

76. In Greig v Greig [1966] VR 376 at 380-381, Gillard J held that entering a house without consent to install a microphone in the chimney amounted to trespass to land.

77. See Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169; Whiskisoda Pty Ltd v HSV Channel 7 Pty Ltd (Victoria, Supreme Court, McDonald J, 9417/93, 5 November 1993, unreported).

78. In Walter v Selfe (1851) 64 ER 849, Knight-Bruce VC noted that the interference with the occupier’s enjoyment of his or her land must be “more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence…”: at 852.

79. In Sedleigh-Denfield v O’Callaghan [1940] 3 All ER 349, Lord Wright stated that it was “impossible to give any precise or universal formula [in relation to unreasonableness], but it may be broadly said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society.”: at 364.

80. The loss of a night’s sleep has been held to amount to nuisance: Munro v Southern Dairies Limited [1955] VLR 332 at 335.

81. See Balkin and Davis at 443-464. See also K Koomen, “Under Surveillance: Fergie, Photographers and Infringements on Freedom” (1993) 17 University of Queensland Law Journal 234 at 239-240.

82. [1977] 2 All E R 902.

83. [1977] 2 All E R 902 at 909 (Griffiths J).

84. (NSW, Supreme Court, EQD 3667/95, 19 October 1995, unreported).

85. See Defamation Act 1974 (NSW) s 9.

86. Ettingshausen v Australian Consolidated Press Limited (1991) 23 NSWLR 443.

87. [1997] TLR 221.

88. Handley at 221-222.

89. Bathurst City Council v Saban (1985) 2 NSWLR 704 at 706 (Young J).

90. Koomen at 238.

91. Such as the taking of a single photograph: Lord Bernstein v Skyviews and General Ltd [1977] 2 All ER 902.

92. Publication is the communication of defamatory material concerning the plaintiff to some person other than the plaintiff: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW); Toomey v Mirror Newspaper Ltd (1985) 1 NSWLR 173.

93. Defamation Act 1974 (NSW) s 15(2).

94. See Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, and Lange v Australian Broadcasting Corporation (1997) 148 ALR 96.

95. (1986) 4 NSWLR 457.

96. (1986) 4 NSWLR 457 at 464.

97. (1986) 4 NSWLR 457 at 464.

98. NSW Nurses’ Association, Submission at 1; Price Waterhouse, Submission at 14, NSW Council for Civil Liberties, Submission at 4; NSW Crime Commission (NSWCC), Independent Commission Against Corruption (ICAC), Police Integrity Commission (PIC) and National Crime Authority (NCA) (“Joint Law Enforcement Agencies”), Submission at 4; Privacy Committee of NSW, Submission at 28-29.