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Where am I now? Lawlink > Law Reform Commission > Publications > Executive summary
Report 98 (2001) - Surveillance: an interim report
Executive summary
The term “surveillance” is a colourful one, often giving rise to exotic images involving hidden microphones, telephoto lenses and perhaps even elaborate spy rings. Two of the many preconceptions people may have concerning surveillance, fostered largely by action/science fiction films and novels, are that it is conducted only with expensive, highly technical equipment, and happens only to people involved in criminal or other underworld activity. Increasingly, however, what was once the realm of science fiction is becoming fact. The technological boom in recent times, coinciding with the development and growth of the internet and e-mail systems, has made surveillance equipment more affordable and available than ever before.
All of us, at some time in our lives, are affected by surveillance. 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, and may be carried out, enhanced or recorded by a staggering array of devices, such as:
- binoculars and telescopes;
- listening devices or “bugs”;
- video cameras;
- audio-visual devices;
- computers;
- tracking devices;
- biometric identification systems, which use personal characteristics (such as retina or fingerprints, palm verification, voice and facial recognition, and signature verification) to verify identity; and
- various technologies (such as x-ray imaging) developed to detect concealed weapons.1
Surveillance is conducted routinely by law enforcement officers, private investigators, employers, the media, and private individuals, for diverse purposes: crime prevention and detection, protection of private property, the performance of employees and investigating matters of public interest, to name but a few. Despite the range of surveillance equipment and the myriad ways in which it may be used, there is currently very little in the way of legislative regulation of surveillance: only the general covert use of listening devices,2 and the covert use of video surveillance in the workplace,3 has received any specific legislative recognition in New South Wales.4 There is no existing regulation of overt surveillance.
While surveillance is often legitimate and beneficial, it is also open to abuse and may present a significant intrusion into personal privacy. The Commission is of the view that, in recommending a broad-based system of regulation for surveillance, personal privacy should be the paramount concern. Intrusions into it by way of surveillance may sometimes be necessary, but should be supported by clear rules and only occur when justified as being for the greater public benefit.
The recommendations in this Report would, if implemented, provide New South Wales with an extremely comprehensive system of surveillance regulation. The Commission recommends the introduction of a new Surveillance Act which, among other things, would replace the Listening Devices Act 1984 (NSW) and the Workplace Video Surveillance Act 1998 (NSW). In making its recommendations, the Commission takes the approach that, in order to be optimally effective, any new legislation designed to govern surveillance should be as broad in scope as the nature of surveillance itself. The legislation should not be device specific to ensure that the law is not outpaced by technological developments. As a result, any device used to conduct surveillance (according to the definition recommended by the Commission) would be caught by the terms of the proposed Act. 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
The Commission is of the view that the broad approach reflected by this definition avoids the arbitrary gaps and anomalies that characterise existing surveillance laws, and extends privacy protection to as wide a range of activity as reasonably possible. The Commission’s recommended regime includes surveillance conducted overtly (ie with the knowledge of the person being monitored) or covertly. It covers surveillance regardless of where it is conducted (both public and private places are covered,6 as well as the workplace7 ), or who it is conducted by (law enforcement officers, employers, private investigators, the media, and any person conducting surveillance in the public interest are all included in the proposed legislative regime). The Commission’s recommended regime will also cover aspects of internet and e-mail surveillance8 and data surveillance.9
Under the Commission’s recommendations, surveillance should be considered to be overt where adequate notice is given to the subject prior to, or simultaneously with, the occurrence of the surveillance. Notice would be proven where there are clearly visible signs or other warnings, such as audio announcements etc, that are widely understood and indicate that surveillance is, or may be, occurring.10 Where surveillance of employees is conducted by an employer, the Commission recommends that an additional notice requirement should apply in order for the surveillance to be considered overt, due to the added rights and responsibilities inherent in the employer/employee relationship.11 Surveillance conducted in circumstances that do not meet these notice requirements would be considered to be covert.
So far as overt surveillance is concerned, the Commission recommends that this should be regulated flexibly, requiring adherence to eight legislative principles to be supplemented by codes of practice for those conducting a significant amount of overt surveillance. The principles are as follows:
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 must be accountable for their surveillance devices 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 must be destroyed within a specified period.12
Failure to comply with the principles would expose those conducting overt surveillance to the threat of a civil action under the proposed surveillance legislation.13
Since covert surveillance is conducted without the knowledge of the subject, and is thereby more intrusive than surveillance conducted overtly, it should be regulated more stringently.
The Commission recommends that the approval of an independent arbiter should have to be obtained before any covert surveillance may occur under the proposed Surveillance Act. In circumstances where such prior approval is not possible or practicable, it may, where appropriate, be obtained retrospectively. The Commission has isolated three main areas where covert surveillance may legitimately be conducted. Those are law enforcement, in the course of employment, and in the public interest.14
- Covert surveillance by, or on behalf of, law enforcement officers should be regulated by a warrants procedure similar to that currently operating in the Listening Devices Act 1984 (NSW), with applications made to and warrants issued by “eligible judges” in the courts system.15
- Covert surveillance by, or on behalf of, employers should be authorised by members of the Industrial Relations Commission.16
- Covert surveillance conducted in the public interest by anyone other than law enforcement officers or employers (or people acting on their behalf), must be authorised by an appropriate issuing authority, being either members of a court or a tribunal.17
The proposed Surveillance Act should also specify measures to promote accountability for the conduct of covert surveillance and the use of material obtained as a result.18 Breach of the provisions of the proposed Surveillance Act regarding covert surveillance would give rise to a criminal offence. In addition, liability for a civil action resulting in damages or other appropriate remedies may be incurred as a result of a breach of the Act.19 FOOTNOTES
1. See ch 1 for more details of the nature, type, uses and origins of surveillance.
2. Listening Devices Act 1984 (NSW).
3. Workplace Video Surveillance Act 1998 (NSW).
4. See para 1.36-1.58 for a discussion of the current statutory and common law regulation of surveillance in New South Wales and other jurisdictions.
5. The term “monitoring” for the purpose of the Commission’s recommended definition includes “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”: see para 2.37-2.39.
6. See para 2.20-2.27 for a discussion of the public/private distinction. A private place also includes a private home: see para 2.51-2.55.
7. Although the Commission refrains from using the term “workplace”, preferring “employment” or “employment context”, as this emphasises that it is the relationship between the employer and employee that is the significant factor in determining the type of regulation that should apply, rather than the physical location of the workplace: see para 2.108-2.113 and ch 7.
8. The recommendations concerning internet and e-mail surveillance are discussed at para 2.43-2.50.
9. The recommendations concerning data surveillance are discussed at para 2.68-2.76.
10. See para 2.78-2.79.
11. That is, that all employees must be notified in writing at least 14 days prior to the commencement of the surveillance: see para 2.80-2.82.
12. See ch 4 for more details of the regulation of overt surveillance.
13. See ch 10.
14. While the Commission acknowledges that covert surveillance conducted by, or on behalf of, law enforcement officers and employers has a public interest element, the term “public interest” is used in this context to refer to covert surveillance which can be justified in any circumstance outside law enforcement and employment: see ch 6.
15. See ch 5.
16. See ch 7.
17. See ch 6.
18. See ch 8 and 9.
19. See ch 10.
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