Privacy NSW --- "Privacy NSW on surveillance reforms" [2003] PrivLawPRpr 14; (2003) 9(10) Privacy Law and Policy Reporter 198

Privacy NSW on surveillance reforms

The NSW Privacy Commissioner ,has released a Position Paper on the recommendations for legislative reform set out in the NSW Law Reform Commission Report 98 Surveillance: ,An Interim Report (December 2001) <www.lawlink.nsw.gov.au/lrc.nsf/pages/r98toc>. The text of the summary follows. As yet, the NSW government has not announced its intentions in relation to the recommended legislation, or the comments by Privacy NSW —General Editor.

Privacy NSW strongly supports the overarching recommendations of the Law Reform Commission Report 98 Surveillance: An Interim Report (LRC Report) in relation to the development of a comprehensive Surveillance Act which is technology-neutral in its application. In developing the new Act, it is critical to ensure that:

• the proper balance is struck between the public interest in the protection of individuals’ privacy on the one hand, and the public interest in law enforcement and public safety on the other;
• the privacy principles already binding on State and local government in NSW not be diminished in any way through any new legislation;
• there is consistency in the application of the privacy principles across the public and private sectors unless there is a justifiable reason otherwise; and
• there are adequate and transparent oversight and accountability provisions backed by legislative authority.

Overt surveillance

In relation to overt surveillance, Privacy NSW has made the following key recommendations.

• The visibility of the surveillance equipment itself ought not be considered adequate; that is, without signs or other written/audio warnings, the surveillance ought be considered ‘covert’.
• Surveillance always constitutes an interference with privacy rights. Rather than the test proposed by ,the LRC — whether the use of surveillance has breached an individual’s ‘reasonable expectation ,of privacy’ — the real question is whether that interference with privacy is warranted. This approach would ensure that the onus of justifying the use of surveillance is placed upon the surveillance user rather than the individual whose privacy has been breached.
• Consequently, surveillance users should be able to justify that the surveillance is for a lawful purpose, directly related to a lawful function ,of that surveillance user, and the surveillance must be reasonably necessary for the achievement of ,that purpose.
• The Act or regulations must make clear the appropriate standards ,with respect to the storage and destruction of surveillance material, having given due consideration to the competing interests of privacy protection and State records obligations.
• There must be a specific principle which addresses disclosures to third parties.
• The complaints and enforcement model established under the Health Records & Information Privacy ,Act 2002 (NSW) is the preferred option. Such a model allows for complaints about public sector agencies to be dealt with through ,the complaints mechanisms already established under the Privacy and Personal Information Protection ,Act 1998 (NSW) and establishes Privacy NSW as the main ,complaints handling body ,for the private sector.

Covert surveillance

The LRC Report suggests that authorisation for covert surveillance ,can only be given for the purposes ,of law enforcement, protecting the public interest and employment related investigations. In relation to covert surveillance, Privacy NSW has made ,the following recommendations.

• In relation to law enforcement activities, a covert surveillance authority should only be issued for the enforcement of serious indictable offences, being those with a maximum penalty of seven years’ imprisonment or more.
• Since the term ‘public interest’ is one which is commonly misunderstood, manipulated, or inconsistently applied, it is essential that the proposed Act include a specific definition of the ‘public interest’, which weighs appropriately the public interest in the protection of privacy as a human right against other interests.
• If an application is made under the grounds of ‘unlawful activity’, the employer must be required to establish that they have a legitimate interest in preventing the behaviour, and that there is a sufficient explanation for not involving ,NSW Police instead.

The very nature of covert surveillance raises serious questions about unauthorised surveillance material, secondary use, disclosure to subjects ,of covert surveillance, nature of such disclosure and destruction of material gathered during surveillance.

Privacy NSW therefore supports comprehensive legislation to regulate these issues.

Summary provided by Privacy NSW.