Tracking Down Surveillance Regulations

The following article was published in the Law Institute Journal in February 2007.

 

The first stage of the Victorian Law Reform Commission’s (VLRC) privacy reference, workplace privacy, is now finished and stage two is well under way. A consultation paper on surveillance in public places looks set to be released later this year.

How organisations and individuals watch and track people in public places, and why, is the focus of the VLRC’s new project on surveillance in public places.

The project is the second stage of the privacy reference the VLRC has had since December 2001.

The first stage of the project focused on workplace privacy and culminated in a report to parliament in October 2005 that included recommendations to establish a workplace privacy regulator and codes of practice for different privacy-invasive practices.

The government implemented the recommendation to ban surveillance in workplace toilets and change rooms in the Surveillance Devices (Workplace Privacy) Bill, which comes into effect on 1 July 2007.

Surveillance in public places is concerned with similar issues, in particular the questions of who uses surveillance and the extent to which such use is regulated to protect individual privacy.

The commissioners on the division in charge of the project include Professor Sam Ricketson (chair), Dr Iain Ross and Mr Paris Aristotle.

Terms of reference

The terms of reference cover the first stage as well as the second stage, but the relevant sections for the second stage are:

In light of the widespread use of surveillance and other privacy-invasive technologies in workplaces and places of public resort, and the potential benefits and risks posed by these technologies, the Victorian Law Reform Commission will inquire into and report progressively upon:

            …

b.      whether legislative or other measures are necessary to ensure that there is appropriate control of surveillance, including current and emerging methods of surveillance. As part of this examination, the commission should consider whether any regulatory models proposed by the commission in relation to surveillance of workers could be applied in other surveillance contexts, such as surveillance in places of public resort, to provide for a uniform approach to the regulation of surveillance.

The terms of reference were amended in June 2002 to include the line “and the publication of photographs without the subject’s consent” at the end of the first sentence in point b. However, the inserted line was removed in October 2006 because the Standing Committee of Attorneys-General has since taken up the issue.

Victoria is not alone in considering privacy in the context of new and emerging technologies. Other jurisdictions have, and are, conducting reviews on privacy. The New South Wales Law Reform Commission reviewed NSW surveillance laws and reported in May 2005, and is currently reviewing information privacy laws. Similarly, the Australian Law Reform Commission is reviewing the Privacy Act 1988, and released the Review of Privacy Issues Paper in October 2006.

Definitions

The terms of reference for this stage have been drafted broadly, so the VLRC must first define key concepts, such as ‘surveillance’ and ‘places of public resort’ (public places).

We have also decided to analyse surveillance in public places by categories of ‘users’ rather than by the places where surveillance occurs or the means which are used.

Users have been divided into three general categories:

  • state and local government/police,
  • private corporations
  • private citizens.

While this approach provides a useful starting point, these categories are not precise and do overlap.

Consultations

Consultations with state government users of surveillance were held towards the end of last year and consultations with local government, private organisations and other users will continue this year.

Participants have been encouraged to provide information that will help the VLRC to:

  • identify the methods of surveillance used in public places
  • understand the reason(s) why surveillance is used
  • determine its prevalence
  • understand how its use is regulated
  • ascertain what participants understand ‘surveillance’  and ‘public place’ to mean
  • ascertain the attitudes of users of surveillance to potential law reform in this area.

Professor Ricketson said most state government agencies appear to use surveillance for the purposes of public safety and protection of assets, but that the level and scope of regulation varies between users.

“Our general impression is that the protocols and guidelines followed are not applied as a result of an overarching regulatory framework and tend to be devised by the people who use them.”

The VLRC will continue to meet with relevant organisations and individuals while writing a consultation paper that will outline the purposes for which surveillance in public places is used, the extent to which this occurs, the gaps in our current regulatory framework and the approaches adopted in comparable jurisdictions.

To receive a copy of the consultation paper when it is released later this year, please contact the VLRC on email: law.reform@lawreform.vic.gov.au or tel: 8619 8619. The full terms of reference and other privacy publications are available on the VLRC website: www.lawreform.vic.gov.au.

Date published: 
01 Feb 2007

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