Media Release - Report 98: Surveillance (10 December 2001)

New Laws To Target Surveillance

Protection of privacy from intrusive surveillance requires regulation of the use of electronic devices by private and commercial operators as well as law enforcement, according to a report [PDF, 1Mb] released by the New South Wales Law Reform Commission.

The main way in which surveillance is regulated in New South Wales at present is by the Listening Devices Act 1984. Since this Act commenced operation, surveillance devices have increased in sophistication and intrusiveness. They are much more widely available and are used extensively, not only by law enforcement authorities. They are important tools for law enforcement but regulation is needed to ensure they are not misused.

The Commission recommends that the law should regulate any kind of device used to conduct surveillance. This covers not only the devices that spring readily to mind, such as video cameras and tape recorders, but includes tracking devices, computers, x-ray imaging technology and biometric equipment (that can verify a person's identity through retina or finger prints, palm verification and face or voice recognition). There is no question that such technology may be (and is) used for the benefit of the public. It is also undeniable that there is considerable potential for abuse.

Surveillance conducted overtly with the knowledge of the subject should, according to the Commission, be regulated flexibly by industry codes of practice which must conform to 8 legislative principles covering the way surveillance is conducted and the use of material obtained as a result. This would regulate, for example, the use of CCTV in banks, shopping centres, trains and service stations. The Commission's recommendations in this area are ground breaking since, despite the potential for privacy invasions, there is currently no law applying generally to this type of surveillance.

Covert or secret surveillance raises more serious privacy concerns than overt surveillance. The Commission recommends that covert surveillance should be illegal unless it is authorised by a judge or member of the Administrative Decisions Tribunal. This is similar to the current system for regulating the covert use of listening devices and video surveillance in the workplace. The recommendations concerning covert surveillance would control, for example, the use of hidden cameras by current affairs reporters, the covert interception of emails by an employer as well as the activities of police and private investigators.

'Surveillance technology has given people unprecedented ability to intrude on the personal privacy of others. Sometimes that intrusion is justifiable but it may merely be prying for commercial, prurient or malicious reasons. It is important that privacy is only invaded when the public interest demands it. What the Commission recommends is better control of surveillance, a new law which covers who conducts it, where or how it is conducted, and the type of device used. If implemented, this will provide NSW with an up to date and comprehensive legislative regime.' says the Commission's Chairperson, Justice Michael Adams.

For further information, contact Justice Adams, Chairperson, on (02) 9230 8737, or Mr Peter Hennessy, Executive Director, on (02) 9228 8230.