This article was produced by the commission and appeared in the May 2009 issue of the Law Institute Journal.
The Victorian Law Reform Commission has released a Consultation Paper on Surveillance in Public Places and is encouraging all Victorians to consider who may be watching their activities, listening to their conversations or tracking their movements.
The Consultation Paper introduces the second phase of the commission’s inquiry into the use of surveillance and other privacy-invasive technologies. In 2005, the commission completed the first phase on Workplace Privacy.
The terms of reference draw attention to the widespread use of surveillance in public places and ask the commission to investigate whether legislative or other measures are needed to ensure that surveillance practices are appropriately controlled.
Widespread use of surveillance
From initial consultations and research the commission learned that surveillance is now part of our everyday lives. We are accustomed to seeing CCTV cameras in shops and at railway stations. Surveillance devices assist with the collection of tolls on freeways, and with stock control and theft prevention when used in product tags in shops. Surveillance technology is used to assist with immigration checks at airports. Many widely owned products now have surveillance capabilities. Mobile phones that are able to take photos, record sound and images and assist us to find our destinations or locate people are common.
Factors that drive the use of surveillance
Surveillance serves many important purposes including the promotion of public safety and the prevention of crime. It also features in areas such as journalism and entertainment. Many groups within our community use surveillance technology, including police, transport operators, retailers, private investigators, sporting and entertainment venues, and journalists. Despite this widespread use, there is no comprehensive source of information about the extent of public place surveillance in Victoria.
Because of the growing affordability and capacity of surveillance devices we are increasingly likely to be recorded or scrutinised when we are in public places. The ability to store, use and disseminate surveillance data has also grown.
Risks and benefits of surveillance
Some of the negative consequences that may flow from the increased use of surveillance in public places include a loss of privacy and anonymity which may cause us to alter the way we express ourselves and behave when in public. While these adjustments may not be readily apparent in the short term, the long-term incremental effect may be permanent changes to the way in which we use and enjoy public places. Because surveillance is often covert, those people with the means to do so may retreat to private places whenever possible in order to avoid unwanted observation.
Because surveillance technology is developing so rapidly, it is time to consider how best to encourage and support its responsible use. The existing regulatory framework has a number of shortcomings which are discussed in the paper.
Reform options include:
- a new role for an independent regulator to monitor, report and provide information about public place surveillance in Victoria. It is envisaged that the regulator may require statutory powers of investigation and could be responsible for regularly reporting to parliament.
- new voluntary best-practice standards to promote responsible use of surveillance in public places. We ask whether compliance with best-practice standards could be encouraged by tying them to Victorian government procurement criteria.
- mandatory codes to govern the use of surveillance in public places with sanctions for non-compliance that include civil or criminal penalties.
- a licensing system for some surveillance practices that are found to be particularly invasive of privacy.
- various changes to clarify and strengthen the Surveillance Devices Act 1999 (Vic).
- a new statutory obligation to refrain from committing a serious invasion of privacy modelled on the statutory cause of action proposed by the ALRC in its recent report.
For a copy of Consultation Paper and to make a submission visit: www.lawreform.vic.gov.au or call the commission on 03 8619 8619.
The deadline for submissions is 30 June 2009.