This article was produced by the Commission and appeared in the October 2010 issue of the Law Institute Journal.
A report containing 33 recommendations to modernise surveillance laws and promote the responsible use of surveillance devices in public places has been tabled in state Parliament.
Surveillance in Public Places: Final Report was prepared by the Victorian Law Reform Commission (VLRC) and recently tabled by the Attorney-General Rob Hulls.
The report concludes the second phase of the VLRC’s inquiry into the use of surveillance technologies.
The VLRC was asked to investigate whether new legislative or other measures were needed because of the widespread use of surveillance in public places. In its report the VLRC examined:
- the types and extent of surveillance use in Victoria;
- the identity of surveillance users and the possible impact upon others; and
- whether more regulation is needed.
Surveillance devices have become increasingly affordable, available and sophisticated. Their use has proliferated greatly over the past decade.
There is little regulation of the use of surveillance devices in public places. Existing laws are unclear, they have not kept pace with technological change, and some do not appear to be actively enforced.
There is a widespread uncertainty amongst surveillance users and the community about which surveillance activities are permitted in public places. The three major bodies of relevant law—the Surveillance Devices Act 1999 (Vic), and Commonwealth and Victorian information privacy laws—were not designed to regulate public place surveillance.
The recent development of laws to cover particularly offensive forms of surveillance, such as ‘upskirting’ and the recording of images related to child pornography, represent attempts to address some of the limitations in the regime.
A balanced approach
There are many benefits associated with the use of surveillance devices in public places, including crime prevention and investigation, crowd control and the dissemination of information. However, there are also risks in their use, including the potential for loss of privacy and anonymity in public.
The VLRC’s report proposes a regulatory regime that is based on a set of overarching principles seeking to balance the many competing interests at play and flexible enough to allow for rapid increases in technology.
The six principles devised by the VLRC are:
- People are entitled to a reasonable expectation of privacy when in public places.
- Users of surveillance devices in public places should act responsibly and consider the reasonable expectations of privacy of individuals.
- Users of surveillance devices in public places should take reasonable steps to inform people of the use of those devices.
- Public place surveillance should be for a legitimate purpose related to the activities of the organisation conducting it.
- Public place surveillance should be proportional to its legitimate purpose.
- Reasonable steps should be taken to protect information gathered through public place surveillance from misuse or inappropriate disclosure.
The VLRC proposes that an existing regulator—the Privacy Commissioner—should oversee public place surveillance in Victoria. The regulator’s responsibilities would include guidance about the responsible use of surveillance devices, monitoring and advising the government about technological developments, and examining the practices of public authorities and significant private organisations when using devices such as CCTV.
The VLRC recommends changes to the Surveillance Devices Act 1999 so it keeps pace with advances in technology. The recommendations include updating some existing offences to broaden their coverage and clarifying the reach of others in order to ensure that it is unlawful to use surveillance devices in public toilets and change rooms.
There is also a recommendation that there be a new offence that makes it unlawful to use a surveillance device to intimidate, demean or harass another person, or to prevent or hinder a person from performing an act they are lawfully entitled to do.
The VLRC believes Victorians should be able to take civil action in response to serious invasions of privacy by the use of a surveillance device in a public place. It recommends the creation of two new statutory causes of action for serious invasions of privacy—the first dealing with misuse of private information and the second with intrusion upon seclusion.
The recommendations are explained in the final report. For a copy of report visit: www.lawreform.vic.gov.au or call the VLRC on 03 8608 7800.