Chapter Two

Recommendation 1
The proposed Surveillance Act should define “surveillance device” to mean any instrument, apparatus or equipment used either alone, or in conjunction with other equipment, which is being used to conduct surveillance.

Recommendation 2
The proposed Surveillance Act should define “surveillance” 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.

Recommendation 3
The proposed Surveillance Act should define “monitor” (as used in the definition of surveillance) 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 4
The proposed Surveillance Act should exempt from its scope surveillance conducted under a Commonwealth law.

Recommendation 5
The proposed Surveillance Act should regulate all surveillance activity within its scope, unless other New South Wales laws specifically exempt the operation of the surveillance legislation.

Recommendation 6
The random or overt collection, retrieval and matching of information on computer databases should be excluded from the scope of the proposed Surveillance Act.

Recommendation 7
The covert use of a surveillance device to monitor data relating to particular individuals or groups, as it is entered into a technology system or stored on a database, should be regulated under the proposed Surveillance Act.

Recommendation 8
Data surveillance of employees conducted by employers, either overtly or covertly, should be regulated by the proposed Surveillance Act.

Recommendation 9
The proposed Surveillance Act should define overt surveillance to be surveillance which occurs in circumstances where adequate notice of the surveillance has been given prior to, or simultaneously with, the occurrence of the surveillance.

Recommendation 10
For the purpose of Recommendation 9, adequate notice is 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.

In the case of new employees, where surveillance has already commenced, surveillance in the employment context would be considered overt if they are provided with written notification of the surveillance at the time when an offer of employment is made.

Recommendation 12
For the purposes of overt surveillance in employment, written notice should contain the following information:

(a) the location of the surveillance;

(b) the nature and capacity of the surveillance devices;

(c) whether the surveillance will be continuous and, if not, the hours of operation;

(d) the purpose of the surveillance; and

(e) the person responsible for the conduct of the surveillance.

Recommendation 13
Any surveillance conducted in circumstances that fail to satisfy the notice requirements for overt surveillance should be considered to be covert for the purposes of the proposed Surveillance Act.

Recommendation 14
The proposed Surveillance Act should not contain participant monitoring provisions with regard to covert surveillance. Covert surveillance should be permitted only when justified and authorised in particular circumstances, regardless of whether the monitoring is conducted by a party or an outsider.

Recommendation 15
In the proposed Surveillance Act, employment specific provisions should apply:

(a) when an employer is undertaking surveillance of an employee on work premises; or

(b) when an employer is undertaking surveillance of an employee not on work premises but for an employment-related purpose.

Recommendation 16
“Employer” and “employee” should be defined in the proposed Surveillance Act by reference to a contract of employment or apprenticeship, to which both are parties.

Part Two: Overt Surveillance

Chapter 4

Recommendation 17
The use of overt surveillance otherwise than in accordance with the proposed Surveillance Act, should be unlawful. This will entail compliance with the overt surveillance principles (see paragraph 4.38 and following).

Recommendation 18
In certain cases specified in the proposed Surveillance Act, surveillance will be regarded as overt, notwithstanding the absence of notification to potential surveillance subjects.

Recommendation 19
“Relevant surveillance users” (defined in the proposed Surveillance Act according to criteria such as the number of devices operated) should be required to formulate and act in accordance with a code of practice consistent with the overt surveillance principles. A relevant surveillance user should make its code available for perusal by any member of the public subjected to its surveillance.

Recommendation 20
All public sector surveillance users, as well as all “relevant surveillance users” operating within the private sector, should maintain a register containing details of the number, types and locations of all their overt surveillance devices, together with any other details from time to time required by the Privacy Commissioner. Such registers should be available for inspection by the Privacy Commissioner at any time.

Recommendation 21
Staff operating equipment in control rooms (or in similar circumstances) with which to conduct overt surveillance, should be licensed in accordance with the Security Industry Act 1997 (NSW). The Security Industry Act 1997 (NSW) should be amended to provide that “security activity” is defined as including the monitoring or operating of a surveillance device or system.

Part Three: Covert Surveillance

Chapter 5

Recommendation 22
Law enforcement officers should be required to obtain a warrant in order to carry out covert surveillance. The provisions of the proposed Surveillance Act regulating covert surveillance by law enforcement officers should be based on Part 4 of the Listening Devices Act 1984 (NSW).

Recommendation 23
“Law enforcement officer” should be defined in the proposed Surveillance Act to include the Australian Federal Police, State and Territory police, the Australian Security Intelligence Organisation, the Independent Commission Against Corruption, the National Crime Authority, the NSW Crime Commission, Royal Commissions and the Police Integrity Commission. It should also include any office holder specifically empowered to enforce a particular law.

Recommendation 24
The proposed Surveillance Act should allow an application for a warrant to be made with respect to any offence.

Recommendation 25
The proposed Surveillance Act should empower the Attorney General to declare Supreme Court judges as “eligible judges” for the purpose of deciding applications for surveillance warrants. The proposed Surveillance Act should also authorise the Attorney General to nominate District Court judges and Magistrates as “eligible judicial officers” who may exercise the functions of an “eligible judge”.

Recommendation 26
In determining whether a warrant should be granted, the eligible judge should have regard to:

• the nature of the offence in respect of which the warrant is sought;
• the extent to which the privacy of any person is likely to be affected;
• whether other investigative procedures have been tried but have failed; or other investigative procedures are unlikely to succeed or likely to be too dangerous to adopt in the particular case; or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative techniques;
• the evidentiary value of any evidence sought to be obtained; and
• any previous warrant sought or granted in connection with the same offence.

Recommendation 28
The eligible judge should have the discretion to issue a warrant permitting surveillance of a particular person or thing without reference to specific premises if the applicant satisfies the eligible judge that such a warrant is justified in the particular circumstances, subject to any conditions which the eligible judge deems fit to impose.

Recommendation 29
The proposed Surveillance Act should contain a provision similar to section 16(3) of the LDA, expressly authorising entry by the warrant-holder onto authorised premises for the purpose of installation and retrieval of the surveillance device, notwithstanding that such entry might otherwise be unlawful.

Recommendation 30
An eligible judge should have the power to authorise the warrant-holder to enter upon any other premises as may be necessary for the purpose of gaining access to the premises where the surveillance device is to be installed and retrieved, notwithstanding that such entry might otherwise be unlawful.

Recommendation 31
An eligible judge should have the power to authorise entry to the relevant premises to enable the warrant-holder to repair, test, maintain, move and replace the surveillance device after it was installed, nothwithstanding that such entry might otherwise be unlawful.

Recommendation 32
If the warrant-holder exercises an authority given under the warrant to move a device to premises not specified in the warrant, the warrant-holder must report the move to the eligible judge as soon as reasonably practicable.

Recommendation 33
The eligible judge should have the power to authorise the warrant-holder to employ all reasonable means, not including force against a person, necessary in order to gain entry to premises where the surveillance devices are to be installed, retrieved, repaired, tested, moved, maintained or replaced, as well as other premises where the warrant-holder has been authorised to enter for those purposes, whether or not the means employed would otherwise amount to damage or trespass to property.

Recommendation 34
The proposed Surveillance Act should empower the eligible judge to authorise the use of electricity connected to the premises to power the surveillance device.

Recommendation 35
The person primarily responsible for the execution of the warrant should be named in the warrant. The eligible judge should have the power to authorise that person to seek whatever assistance is necessary to execute the warrant.

Recommendation 36
The proposed Surveillance Act should contain a provision similar to section 20A(1) of the LDA permitting the use of assumed names or code names in a warrant.

Recommendation 37
The names of all persons who were involved in executing the warrant should be provided to the eligible judge as soon as reasonably practicable after the completion of the surveillance.

Recommendation 38
The period for which a warrant can be in force should be 30 days. Further warrants, each for a maximum period of 30 days, should be able to be applied for in respect of the same offence upon lodgement of a new application.

Recommendation 39
The warrant should specify:

(a) the offence in respect of which the warrant is granted;

(b) where practicable, the name of any person who is to be the subject of surveillance;

(c) the period (being a period not exceeding 30 days) during which the warrant is in force;

(d) the name of the person primarily responsible for the execution of the warrant;

(e) the premises on which the surveillance device(s) are to be installed or used, except in cases where the eligible judge has determined that it is justified not to specify the premises;

(f) the type(s) of surveillance device(s) to be used;

(g) any conditions subject to which the premises may be entered, or the surveillance device(s) may be used pursuant to the warrant;

(h) any conditions subject to which any information obtained as a result of the surveillance may be used, released or published; and

(i) the time within which the person authorised to use the surveillance device(s) pursuant to the warrant is required to report to the eligible judge and the Attorney General.

Recommendation 40
Where a warrant authorises the installation of one or more surveillance devices, the eligible judge should have the power to authorise:

(a) the retrieval of the surveillance device;

(b) the repair, testing, movement, maintenance and/or replacement of the surveillance device;

(c) entry onto the premises where the surveillance device is installed, and onto other premises, for the purpose of installation, retrieval, repair, testing, movement and/or replacement of the surveillance device;

(d) the person executing the warrant to employ such means as is necessary and reasonable for the purpose of executing the warrant, not including force against a person;

(e) the warrant-holder to seek whatever assistance is necessary to execute the warrant; and

(f) the use of electricity to power the surveillance device(s).

The eligible judge should also have the power to order retrieval of a surveillance device.

Recommendation 41
Except where the proposed Surveillance Act allows an application to be made by telephone or radio, applications for a covert surveillance warrant should be in writing supported by an affidavit attesting to the following:

• the name of the person or organisation requesting the warrant and the name of any person acting, or making an application, on behalf of an organisation;
• the names of all persons who will be involved in the execution of the warrant, or their codenames and the reasons for the use of codenames, and whether the assistance of other persons in the execution of the warrant is likely to be required;
• if known, the identity of the person who will be the subject of the surveillance;
• a general description of all surveillance devices intended to be used;
• where the surveillance device will be installed and used, or, if it is not possible to nominate an exact location, why this is so;
• the length of time (not exceeding 30 days) for which the applicant seeks that the warrant be in force;
• details of any previous warrants sought or granted in connection with the same offence; and
• evidence in support of the matters to which the legislation requires that the eligible judge, in determining the application, shall have regard.

Recommendation 43
The eligible judge should have the discretion to require information in addition to that which is prescribed by the legislation, if it is deemed necessary to determining the application.

Recommendation 44
The proposed Surveillance Act should permit one warrant to be issued authorising the use of more than one surveillance device, or a surveillance device which has more that one kind of function, provided that the warrant specify all devices which will be used in the law enforcement operation.

Recommendation 45
The eligible judge should have the power to authorise or order retrieval of a device.

Recommendation 46
If a device is capable of continuing to transmit information after the expiry of the warrant, then the warrant-holder must obtain permission from the eligible judge not to retrieve it.

Recommendation 47
The proposed Surveillance Act should contain a provision similar to section 18 of the LDA, but should include complaint by facsimile or other electronic means as methods by which an application for a warrant can be made under the proposed section.

Recommendation 48
The proposed Surveillance Act should enable warrants to be applied for within 24 hours of the surveillance taking place and issued retrospectively to law enforcement officers where:

• evidence of an offence is obtained by covert surveillance incidentally during the investigation, pursuant to a warrant, of another offence; or
• it was not possible or practicable to obtain a warrant before conducting or continuing covert surveillance of an offence without prejudicing the investigation or endangering the officers or other parties involved.

Recommendation 49
The proposed Surveillance Act should permit covert surveillance to be conducted in the public interest only when it is judged to be justified by an appropriate issuing authority. The proposed Surveillance Act should provide that anyone, apart from:

• an employer in the course of an employment relationship;
• a law enforcement officer in the course of his or her duty; or
• anyone acting on behalf of an employer or a law enforcement officer in the above circumstances,

Recommendation 50
The term “public interest” should be interpreted broadly by the issuing authority, and may include private rights and interests where appropriate.

Recommendation 51
The Privacy Commissioner should develop guidelines to assist the issuing authority to determine the types of circumstances which may give rise to significant public interest concerns (see paragraph 6.11).

Recommendation 52
The appropriate authority for issuing authorisations to conduct covert surveillance in the public interest should be either “eligible judges” or members of a tribunal such as the Administrative Decisions Tribunal. Regardless of which forum is considered to be most appropriate, the authorisation process should be accessible, affordable, expeditious and impartial.

Recommendation 53
The proposed Surveillance Act should require an application for an authorisation to conduct covert surveillance in the public interest to contain information similar to an application for a warrant made by a law enforcement officer (see Recommendation 41).

Recommendation 54
In determining whether to grant an authorisation to conduct covert surveillance in the public interest, the issuing authority should have regard to:

• the nature of the issue in respect of which the authorisation is sought;
• the public interest (or interests) arising from the circumstances;
• the extent to which the privacy of any person is likely to be affected;
• whether measures other than covert surveillance have been used or may be more effective;
• the intended use of any information obtained as a result; and
• whether the public interest (or interests) involved justifies the displacement of individual privacy in the circumstances.

• the circumstances in respect of which the authorisation is granted;
• where practicable, the name of any person who is to be the subject of surveillance;
• the various public interests considered;
• the period (being a period not exceeding 30 days) during which the authorisation may be in force;
• that the surveillance device(s) may be repaired, tested, moved, maintained, replaced and/or retrieved during the duration of the authorisation;
• the name(s) of the person(s) who may use the surveillance device(s), or who may repair, test, move, maintain, replace or retrieve the surveillance device(s), pursuant to the authorisation;
• if practicable, the premises on which the surveillance device(s) are to be installed or used;
• that entry onto premises for the purpose of installing, repairing, testing, moving, replacing or retrieving the surveillance device(s) is permitted, provided no trespass is committed;
• the type(s) and number of surveillance device(s) to be used;
• any conditions subject to which the surveillance device(s) may be used pursuant to the authorisation;
• any conditions subject to which any information obtained as a result of the use of the surveillance device(s) may be used, released or published; and
• the time within which the person authorised to use the surveillance device(s) pursuant to the authorisation is required to report to the issuing authority and the Attorney General (see recommendation 68).

Recommendation 56
Covert surveillance in the public interest must be authorised by the appropriate body prior to the surveillance being conducted. Where such prior authorisation is not possible or practicable, it may be obtained retrospectively (preferably within 24 hours) following the conclusion of the surveillance.

Chapter 7

Recommendation 57

Surveillance in the employment context should be addressed as part of the general framework proposed by the Commission, with the creation of employment specific provisions where necessary.

Recommendation 58
An employer is only entitled to obtain a covert surveillance authorisation if:

(a) unlawful activity on work premises is reasonably suspected;

(b) employment-related unlawful activity is reasonably suspected; or

(c) serious misconduct justifying summary dismissal is reasonably suspected.

Recommendation 59
There should continue to be an express prohibition on the use of covert surveillance by employers for the purpose of monitoring employee performance.

Recommendation 60
Covert surveillance of employees by employers in toilets, showers and change rooms should be prohibited.

Recommendation 61
When considering an application by an employer for a covert surveillance authorisation that will involve surveillance in recreational or meal rooms, regard must be had to the employees’ heightened expectation of privacy.

Recommendation 62
Applications by employers for covert surveillance authorisations should be determined by an Industrial Magistrate or a Judicial Member of the Industrial Relations Commission.

Recommendation 63
The current provisions governing an application by an employer for a covert surveillance authority should be continued. Accordingly, an application by an employer for a covert surveillance authorisation must be in writing, supported by an affidavit, and contain the following information:

(a) the grounds the employer or employer’s representative has for suspecting that a particular employee is or employees are involved in unlawful activity or serious misconduct;

(b) whether other managerial or investigative procedures have been undertaken to detect the unlawful activity or serious misconduct and if so, what was the outcome;

(c) who and what will regularly or ordinarily be in view of the cameras;

(d) the dates and times during which the covert surveillance is proposed to be conducted; and

(e) the licensed security operator who will oversee the conduct of the covert surveillance operation.

The issuing authority should have the power to seek further information.

Recommendation 64
In determining whether to grant an authorisation to conduct covert surveillance in the employment context, the issuing authority must have regard to:

(a) the matters listed in the application;

(b) the extent to which the privacy of an employee or employees is likely to be affected; and

(c) the extent to which the privacy of a third party or third parties is likely to be affected.

When considering an application by an employer for a covert surveillance authorisation that will involve surveillance in recreational or meal rooms, the issuing authority must have regard to the employees’ heightened expectation of privacy.

The issuing authority must be satisfied that the application shows that reasonable grounds exist to justify its issue.

Recommendation 65
An authorisation permitting covert surveillance in the employment context should specify:

(a) the purpose for which the authorisation is granted;

(b) the licensed security operator who is to oversee the conduct of the surveillance;

(c) where practicable, the name of any person who is to be the subject of surveillance;

(d) the period (being a period not exceeding 30 days) during which the authorisation may be in force;

(e) that the surveillance device(s) may be repaired, tested, moved, maintained, replaced and/or retrieved during the period that the authorisation is in force;

(f) if practicable, the premises on which the surveillance device(s) are to be installed or used;

(g) the type(s) and number of surveillance device(s) to be used;

(h) any conditions on the use of the surveillance device(s);

(i) any conditions on the use, release or publication of any information obtained as a result of the use of the surveillance device(s); and

(j) the time within which the person authorised to use the surveillance device(s) is required to report to the issuing authority and the Attorney General.

Recommendation 66
Where covert surveillance in an employment context is commenced prior to obtaining authorisation, the employer must apply for authorisation as soon as practicable following the commencement.

An application for retrospective authorisation must specify why covert surveillance was commenced prior to obtaining an authorisation.

Part Four: Mechanisms for Ensuring Accountability

Chapter 8

Recommendation 67
The proposed Surveillance Act should not require an applicant for a warrant or authorisation to notify the Attorney General of the application, subject to the following:

• the issuing authority must notify the Attorney General when an application raises an issue of legal professional privilege; and
• the issuing authority may notify the Attorney General or any other person of an application, if the issuing authority deems it appropriate to do so in the circumstances.

(a) the name, if known, of any person whose private conversation or activity was recorded by the use of the surveillance device;

(b) the period during which the surveillance device was used;

(c) particulars of the types of premises in which the surveillance device was installed or the place where any device was used;

(d) particulars of the general use made or to be made of any evidence or information obtained from the use of the device;

(e) particulars of any previous use of a surveillance device with respect to the same offence or activity subject of the warrant or authorisation;

(f) the type of surveillance device(s) used;

(g) details of any conditions placed by the issuing authority on the exercise of the warrant or authorisation and whether or not those conditions were complied with;

(h) the number of, and reasons for, any warrant or authorisation renewals;

(i) whether the device was retrieved and, if not, the reasons why it was not retrieved; and

(j) any other information requested by the Attorney General.

In the case of surveillance conducted pursuant to a retrospective warrant or authorisation, the report should include, in addition to all the information specified above, information containing the particulars of the circumstances on which a retrospective warrant or authorisation application was based.

Failure to comply with these requirements should constitute an offence.

Recommendation 69
The proposed Surveillance Act should require holders of warrants or public interest authorisations or employment authorisations to report to the issuing authority within the period specified in the warrant or authorisation, with provision for the issuing authority to approve an extension. The report should contain the same information required in the report to the Attorney General. Failure to comply with this requirement should constitute an offence.

Recommendation 70
The proposed Surveillance Act should provide that the registry of the issuing authority should forward annually to the Attorney General such information about applications for warrants or authorisations as it deems appropriate, including:

(a) the number of applications received, granted or refused, and the reasons for refusal;

(b) the number of renewal applications received, granted or refused, and the reasons for refusal;

(c) the number of retrospective warrants granted or refused, and the reasons for refusal; and

(d) any discrepancies the court may have noticed between the affidavit supporting a warrant application and the information provided by the warrant holder concerning the results of the surveillance.

Recommendation 71
The proposed Surveillance Act should provide that the issuing authority:

• may direct that any record of evidence or information obtained by the use of the surveillance device to which the report relates be brought before it;
• may keep such record in its custody; and
• may make an order that the evidence or information may be made available to such persons or organisations as the issuing authority directs.

The records should include:

(a) each application for warrants or authorisations;

(b) a statement as to the result of the application;

(c) the warrant or authorisation issued to the person or organisation;

(d) copies of the reports on the warrant to the Attorney General and to the issuing authority;

(e) particulars of each use by the person or organisation of the information obtained by the use of a surveillance device(s);

(f) particulars of each occasion when the information was communicated to a person or organisation, not being a warrant-holder or authorisation-holder;

(g) particulars of each occasion when, to the knowledge of the person or an officer of the agency or organisation, the information was given in evidence in legal proceedings;

(h) details of instances when the activities of persons other than those named in warrants or authorisations were recorded;

(i) particulars of all cases when surveillance devices were used without a warrant or authorisation, including details of the subjects, dates, times and places of the surveillance, the persons who used the devices and the reasons for their use;

(j) particulars of persons whose private activities were monitored or recorded by the use of surveillance devices, but against whom no criminal proceedings had been instituted or were likely to be instituted; and

(k) particulars of the destruction of the information in compliance with the provisions concerning destruction.

Recommendation 73
The proposed Surveillance Act should provide that the inspecting authority (the Privacy Commissioner or Ombudsman) should be required to:

(a) inspect the records of the relevant law enforcement agencies and private individuals or organisations for the purpose of ascertaining:

• the accuracy of the entries in the records;
• the extent of compliance with the requirements of the proposed surveillance legislation including, but not limited to, those concerning the use, communication or publication of surveillance information, storage and security of information, destruction of information; and
• whether notice should be given to a subject of the surveillance;

(c) do anything incidental or instrumental to the performance of any of the preceding functions.

Recommendation 74
The proposed Surveillance Act should provide that the inspecting authority may, at any time, inspect the records of the relevant agencies, organisations or individuals to ascertain compliance with the proposed Surveillance Act. The inspecting authority should inspect records of law enforcement agencies at least once during each financial year.

Recommendation 75
The proposed Surveillance Act should provide that the inspecting authority may, at any time, report the results of the inspection to the Attorney General and shall do so at least once a year and whenever requested to do so by the Attorney General.

Recommendation 76
The proposed Surveillance Act should give the inspecting authority the power to:

(a) enter, at any reasonable time, premises occupied by any relevant agency, organisation or individual, provided reasonable notice is given;

(b) have full and free access, at reasonable times, to their records;

(c) make copies of, and take extracts from, their records; and

(d) require any person to give such information as the inspecting authority considers relevant to the inspection.

Recommendation 77
The proposed Surveillance Act should provide that the communication of surveillance information:

• to the inspecting authority for purposes of inspection of records; and
• by the inspecting authority to the Attorney General for purposes of complying with the reporting requirements

Recommendation 78
The office of the inspecting authority should be given sufficient resources to enable it to discharge effectively its duties under the proposed Surveillance Act.

Recommendation 79
The proposed Surveillance Act should require the Attorney General to include, whenever possible, the following information in the annual report to Parliament:

with respect to warrants for the use of surveillance devices:

(a) the total number of applications for warrants, including the number of radio, telephone, facsimile or other electronic applications, which organisations made the requests and the number of applications that were granted, refused or withdrawn;

(b) the number of applications for retrospective warrants, by whom they were made and the number of those that were granted, refused or withdrawn;

(c) the number and type of offences for which warrants were issued, and the number of warrants issued for each type of offence;

(d) the number of each type of surveillance device used;

(e) the average period of time each warrant was in force;

(f) the number of renewal applications received, granted, refused or withdrawn;

(g) the number of warrants authorising the installation of devices in premises, an indication of the type of premises where devices were installed and the number of warrants authorising surveillance of a particular individual;

(h) the number of warrant applications requesting entry to premises and the number of warrants granted, refused or withdrawn;

(i) the number of warrants issued specifying conditions or restrictions and the type of conditions or restrictions applied;

(j) the number of devices not removed following the completion of surveillance and the reasons why the devices were not removed;

(k) the general use to which information obtained pursuant to surveillance devices has been put, including the number of arrests, prosecutions and convictions in which the information was used; and

(l) the annual cost of the covert use of surveillance devices by the different law enforcement agencies;

(a) the total number of applications for public interest authorisations, including the number of radio, telephone, facsimile and other electronic applications, the types of organisations that made the requests and the number of applications that were granted, refused or withdrawn;

(b) the number of applications for retrospective authorisations and the number of those that were granted, refused or withdrawn;

(c) the number of each type of surveillance device used;

(d) the average period of time each authorisation was in force;

(e) the number of renewal applications received, granted, refused or withdrawn;

(f) the number of authorisations issued specifying conditions or restrictions, and the type of conditions or restrictions applied;

(g) the number of devices not removed following the completion of surveillance and the reasons why the devices were not removed; and

(h) the general use to which information obtained pursuant to the surveillance has been put;

(a) the total number of applications for employment authorisations, including the number of radio, telephone, facsimile and other electronic applications and the number of applications that were granted, refused or withdrawn;

(b) the number of applications for retrospective authorisations and the number of those that were granted, refused or withdrawn;

(c) the number of each type of surveillance device used;

(d) the average period of time each authorisation was in force;

(e) the number of renewal applications received, granted, refused or withdrawn;

(f) the number of authorisations issued specifying conditions or restrictions, and the type of conditions or restrictions applied;

(g) the number of devices not removed following the completion of surveillance and the reasons why the devices were not removed; and

(h) the general use to which information obtained pursuant to the surveillance has been put; and

(i) the extent of compliance with the requirements of the proposed Surveillance Act including, but not limited to, those concerning the keeping and inspection of records, the use, communication or publication of surveillance information, storage and security of information and destruction of information;

(j) the number of notifications to the subject of the surveillance;

(k) a general account of the extent to which “incidental” information is obtained and used, including, for example, information relating to the commission of an offence by a person not identified in the warrant or authorisation was obtained as a result of the authorised use of a surveillance device;

(l) details of breaches of the proposed Surveillance Act, including actions taken, such as criminal, civil or disciplinary proceedings;

(m) any changes to the proposed Surveillance Act during the year in review;

(n) comparative statistics from previous years; and

(o) any general comments on the operation of the proposed Surveillance Act.

• direct the person or organisation which used the device to supply to the subject of the surveillance, within a period specified by the issuing authority, such information regarding the use of the device as the issuing authority may specify, including details about the surveillance such as the date, time, place and type of devices used;
• upon motion, make available to the subject for inspection such portions of the recorded private conversation or activity, applications for the warrant or authorisation and the warrant or authorisation as the issuing authority determines to be in the interest of justice; and
• either upon the recommendation of the inspection authority or on its own motion, direct that notice is required to be given, if satisfied that notice is necessary under the circumstances. The issuing authority must give the person or organisation who will be required to give notice an opportunity to be heard on the matter. Failure to comply with a direction to give notice should constitute an offence.

Recommendation 81
The proposed Surveillance Act should contain a general prohibition on the publication or communication of all information obtained as a result of the conduct of surveillance, whether the surveillance has been authorised or not, subject to the following exceptions. The prohibition should not apply where the communication or publication of the information is made:

(a) by a law enforcement officer:

• to another law enforcement officer for the purpose of investigating or prosecuting an offence;
• to the DPP or other prosecuting officer for the purpose of prosecuting an offence; or
• is otherwise made in the performance of his or her duty;

(c) in the course of, or for the purposes of, investigations or criminal, civil or disciplinary proceedings related to any violation of the proposed Surveillance Act;

(d) in the belief based on reasonable grounds that it was necessary in connection with an imminent threat of serious violence to persons, or of substantial damage to property;

(e) with the consent of all of the parties to the conversation or activity.

Breach of this provision should be an offence.

Recommendation 82
The proposed Surveillance Act should provide that when a public interest or employment authorisation is made, the order must specify the purposes for which the information obtained though the conduct of surveillance may be used and the circumstances under which the information may be published or communicated. Breach of the terms of the authorisation should constitute an offence. The proposed Surveillance Act should provide that the issuing authority may authorise, at the completion of the surveillance, the use of information obtained by the surveillance for a purpose other than that specified in the authorisation.

Recommendation 83
The admission of evidence obtained in violation of the proposed Surveillance Act should be governed by the Evidence Act 1995 (NSW) and the general law on evidence.

Recommendation 84
The proposed Surveillance Act should provide that where a private conversation or activity has inadvertently or unexpectedly come to the knowledge of a person as a result of the conduct of surveillance pursuant to a warrant or authorisation:

(a) evidence of the conversation or activity; and

(b) evidence obtained as a consequence of the conversation or activity may be given by that person in any criminal proceedings even if the warrant or authorisation was not issued for the purpose of allowing that evidence to be obtained.

This should be subject to the proviso that such evidence will not be admissible if the application upon which the warrant or authorisation was granted was not, in the opinion of the court, made in good faith.

Recommendation 85
The proposed Surveillance Act should provide that any court, in any proceedings where evidence obtained through the conduct of surveillance is relevant or admitted in evidence, has the power to suppress the publication of reports of any part of the proceedings, where such publication would create a substantial risk of prejudice to the administration of justice, either generally, or in relation to specific proceedings (including the proceedings in which the order is made). The power should apply in both civil and criminal proceedings and should extend to suppression of publication of the evidence as well as material which would lead to the identification of parties and witnesses involved in proceedings before the court. Breach of a suppression order should constitute a criminal offence.

Recommendation 86
The proposed Surveillance Act should provide that a person who has obtained material through the conduct of surveillance must ensure that the material and all copies, extracts, summaries or reports of it must be kept in a secure place that is not accessible to people who are not entitled to deal with it. Breach of this requirement should be an offence.

Recommendation 87
The proposed Surveillance Act should provide that every person who obtains information through the conduct of surveillance is required to destroy the information and any record of it as soon as it appears that none of the information directly or indirectly relates to the commission of an offence.

The proposed Surveillance Act should also provide that every person who obtains information through the conduct of surveillance that relates wholly or partly to the commission of an offence is required to destroy the information and any record of it as soon as it appears that no investigations or proceedings will be taken in which the information would be likely to be relevant.

The requirements in these provisions should apply in all cases where information is obtained through the conduct of surveillance, whether the surveillance is authorised or not.

These provisions should be subject to three provisos:

(1) The information should not be destroyed if the person who obtained it is notified that it may be required in criminal, civil, administrative or disciplinary proceedings in connection with the breach of the proposed Surveillance Act. In such case, the information should be destroyed as soon as the proceedings are terminated or it becomes clear that none of them will proceed.

(2) Where the information was gathered under the authority of a public interest or employment authorisation, the information and every record of it should be destroyed as soon as it appears that:

• the material is not likely to be relevant or useful to the purpose for which the authorisation was issued; or
• the purpose for which the authorisation was issued has been accomplished.

Information obtained through the conduct of surveillance should not be retained for a period of more than 5 years, unless it remains relevant as provided in the preceding paragraphs. Where information is stored for such length of time, the relevant organisation should conduct periodic reviews to confirm that the justification for its retention remains valid.

The proposed Surveillance Act should provide that the requirements to destroy surveillance information do not apply to material which has been received into evidence in legal proceedings.

Breach of these provisions should constitute an offence.

Chapter 10

Recommendation 88
A breach of an overt surveillance provision of the proposed Surveillance Act should give rise to civil liability.

Recommendation 89
A breach of a covert surveillance provision of the proposed Surveillance Act should constitute a criminal offence.

Recommendation 90
A breach of a provision of the proposed Surveillance Act in the workplace should constitute either a civil breach, if the surveillance was overt, or a criminal offence, if the surveillance was covert.

Recommendation 91
A complaint relating to a breach of an overt surveillance provision of the proposed Surveillance Act should be made to the Privacy Commissioner.

Recommendation 92
The proposed Surveillance Act should give standing to make a complaint to the Privacy Commissioner to the following:

• a person affected to some degree by the conduct of the surveillance; and
• where the surveillance has taken place in the workplace, an industrial organisation on behalf of the employee(s) who have been affected by the conduct of surveillance.

Recommendation 94
The Privacy Commissioner should, in the first instance, conciliate a complaint. Where a complaint remains unresolved 12 months after the date of lodgement of the complaint:

• either party to the complaint should be able to make a request in writing to the Privacy Commissioner to refer the matter to a specialist division of the Administrative Decisions Tribunal for hearing;
• the Privacy Commissioner should be required to refer the complaint within 28 days of such a request, unless the Privacy Commissioner believes the complaint can be conciliated;
• where the complainant objects to the referral of the complaint and the Privacy Commissioner is satisfied that the complaint cannot be conciliated, the complaint should lapse.

Recommendation 96
An agreement reached pursuant to conciliation should be enforceable by the Privacy Commissioner.

Recommendation 97
The Privacy Commissioner should have the power to decide not to proceed with a complaint where:

• the dispute has been settled or resolved by agreement between the parties;
• the complainant, or person on whose behalf the complaint was made, does not wish to proceed with the complaint; or
• the complainant has allowed the complaint to remain inactive for an extended period of time or abandoned the complaint.

Recommendation 99
The proposed Surveillance Act should give standing to bring proceedings in the Administrative Decisions Tribunal to the following:

• a person affected to some degree by the conduct of the surveillance;
• the Privacy Commissioner, including in a representative capacity; and
• where the surveillance has taken place in the workplace, an industrial organisation on behalf of the employee(s) who have been affected by the conduct of surveillance.

Recommendation 101
The Administrative Decisions Tribunal Act 1997 (NSW) should adopt a comprehensive set of procedural and machinery provisions, similar to the provisions contained in the Federal Court of Australia Act 1976 (Cth), to deal with the conduct of representative complaints under the proposed Surveillance Act.

Recommendation 102
The proposed Surveillance Act should contain provisions similar to the Anti-Discrimination Act regulating procedural requirements in relation to complaints and the practices and procedures governing the conduct of proceedings.

Recommendation 103
Prosecution for a breach of a covert surveillance provision of the proposed Surveillance Act, or for breach of a provision which the proposed Surveillance Act specifies will give rise to a criminal offence, should be through the criminal justice system.

Recommendation 104
Offences against the proposed Surveillance Act generally should be prosecuted summarily, before a Local Court constituted by a Magistrate sitting alone, or before the Supreme Court in its summary jurisdiction. There should be provision within the proposed Surveillance Act for prescribed offences to be able to be prosecuted either summarily or on indictment. There should also be provision in the proposed Surveillance Act for summary proceedings to become committal proceedings if the court decides that the offence should be dealt with as an indictable offence, and no evidence has been led by the defendant.

Recommendation 105
A person aggrieved by the conduct of covert surveillance, or a breach of a provision giving rise to a criminal offence, should have access to the complaints and review processes available in relation to breaches of overt surveillance provisions, both generally and in the workplace.

Recommendation 106
A person aggrieved by a breach of the provisions of the proposed Surveillance Act in the workplace should have access to the complaints and review processes available for surveillance generally, or, if the person so chooses, should be able to pursue the complaint in the Industrial Relations Commission.

Recommendation 107
The Industrial Relations Act 1996 (NSW) should be amended to enable the Industrial Relations Commission to hear complaints under the proposed Surveillance Act.

Recommendation 108
The Industrial Relations Act 1996 (NSW) should be amended to provide that an issue that is the subject of proceedings under the proposed Surveillance Act before the Administrative Decisions Tribunal may, with the Commission’s leave, be the subject of proceedings before the Industrial Relations Commission. It should be a condition of granting leave that any relief received previously is not duplicated and that granting the relief sought would not cause undue prejudice to the respondent.

Recommendation 109
The proposed Surveillance Act should provide that an issue that is the subject of proceedings under that Act before the Industrial Relations Commission may, with the leave of the Administrative Decisions Tribunal, be the subject of proceedings before the Tribunal. The proposed Surveillance Act should provide expressly that it be a condition of granting leave that any relief received previously is not duplicated and that granting the relief sought would not cause undue prejudice to the respondent.

Recommendation 110
The Administrative Decisions Tribunal should have the power to transfer proceedings brought under that Act to the Industrial Relations Commission on the application of the complainant or in any such circumstances as to the Tribunal seems just.

Recommendation 111
The Industrial Relations Commission should have the power to transfer proceedings brought under the proposed Surveillance Act to the Administrative Decisions Tribunal on the application of the complainant or in any such circumstances as to the Commission seems just.

Recommendation 112
The proposed Surveillance Act should provide that in proceedings brought under that Act, the Administrative Decisions Tribunal should have the power to grant the following relief:

• an award of damages to the limit of $150,000, except in cases where the panel has a District Court judge as its presidential member where the limit should reflect the jurisdiction of the District Court;
• an injunction;
• a mandatory order;
• a declaration that certain conduct is unlawful under the Surveillance Act;
• an order that a respondent publish an apology or retraction in relation to unlawful conduct under the proposed Surveillance Act;
• an order that a respondent implement a program or policy aimed at eliminating all forms of unlawful conduct under the proposed Surveillance Act;
• an order that the respondent not disclose information obtained as a result of the surveillance; and
• such other orders as seems to the Administrative Decisions Tribunal to be just and appropriate in the circumstances.

Recommendation 113
The Administrative Decisions Tribunal should have the power to make interim orders to preserve the rights of the parties, on the application of either the Privacy Commissioner or a party to the proceedings.

Recommendation 114
The Administrative Decisions Tribunal’s power to award damages should not be limited to financial loss, but should include the power to award damages for psychological or physical harm resulting from the unlawful surveillance.

Recommendation 115
The Administrative Decisions Tribunal should have the power to grant an injunction which extends to the conduct of surveillance affecting persons other than the individual complainant in the following circumstances:

• where the complaint has been lodged in a representative capacity;
• where the Privacy Commissioner has been notified and given the opportunity to make submissions; or
• in any other case, where the Tribunal believes that the particular circumstances warrant such action.

Recommendation 117
The proposed Surveillance Act should give the Privacy Commissioner the power to monitor compliance with mandatory and injunctive orders made by the Administrative Decisions Tribunal.

Recommendation 118
The proposed Surveillance Act should give the Privacy Commissioner standing to apply for injunctive, mandatory and declaratory orders, whether or not proceedings have been instigated by a complainant.

Recommendation 119
Where proceedings have been brought by an industrial organisation or by the Privacy Commissioner in a representative capacity, the Administrative Decisions Tribunal should have the power to make similar orders for relief as is available in representative proceedings under the Federal Court of Australia Act 1976 (Cth).

Recommendation 120
The proposed Surveillance Act should give the Privacy Commissioner the power:

• in the case of an individual complaint, to take steps to enforce an order on behalf of a complainant with their consent; and
• in the case of a representative complaint (or in any other case where the Privacy Commissioner believes that the public interest demands), to take steps to enforce an order on his or her own motion.