Surveillance Final Report

Surveillance in Public Places
Final Report 18
1
Contents
Preface 5 Major users of public place surviellance 32
Terms of reference 6 Victoria Police 32
Glossary 7 Corrections Victoria 34
Executive summary 11 Local councils 34
Recommendations 15 Public housing 35
Universities and TAFEs 35
Chapter 1: Introduction 19
Transport 35
Introduction 20
Major public events: concerts
Background 20
and sports 38
Important definitions 21
Crown Casino 39
What is surveillance? 21
The hospitality industry 40
What is a public place? 22
Shopping centres and retailers 40
Coverage of this report 22
The media 41
Federal areas of concern 22
Marketing companies 41
State law enforcement 23
Private investigators 41
Practices covered by information
Public and private insurers 42
privacy laws 23
The private security industry 42
Other law reform activity 24
Aged care 42
Australian Law Reform Commission 24
Personal uses 42
NSW Law Reform Commission 24
Conclusion 43
New Zealand Law Commission 25
UK House of Lords Select Committee 25 Chapter 3: Current Law 45
Hong Kong Law Reform Commission 26 Introduction 46
Law Reform Commission of Ireland 26 Surveillance devices legislation 46
Our process 26 Information privacy legislation 47
Consultation Paper 26 Information privacy laws and public
Final Report 26 place surveillance 48
Outline of this report 27 Enforcement of information privacy laws 49
Regulation of specific aspects of public
Chapter 2: Use of Surveillance in Public Places 29 place surveillance 50
Introduction 30 Common law protections 51
Surveillance technology 31 The Victorian Charter of Human Rights and
Closed-circuit television (CCTV) 31 Responsibilities 51
GPS and satellite technology 31 Limits on the right to privacy under
the Charter 52
Tracking mobile phones 31
Non-binding guidelines, standards and policies 52
Radio frequency identification (RFID) 31
Regulation in other jurisdictions 53
Automatic number plate recognition
(ANPR) 31 Other Australian jurisdictions 53
Body imaging devices and scanners 32 Other countries 54
Biometric technologies 32 Conclusion 54
Google Earth and Google Streetview 32 Table 1: Legislation and binding codes
relating to public place surveillance in Victoria 55
Table 2: Major non-binding instruments relating
to public place surveillance in Victoria 57
2 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

Chapter 4: A Balanced Approach to Regulation 59 Significant surveillance users: ensuring
responsible practice 93
Introduction 60
Significant users of public place surveillance 93
The impact of public place surveillance 60
Reviewing advice prepared by significant
Benefits 60
users of public place surveillance 96
Investigation of criminal activity and fraud 61
Examining the practices of significant users
Asset protection and deterrence of crime 61 of public place surviellance 96
Saftey 62 Advising of a significant user’s failure to
Operational needs 63 comply 96
Managing the movement and conduct Reporting to parliament 97
of people 63 Investigations and proceedings in relation to
News gathering and the dissemination of SDA breaches 98
information 63 The most appropriate body to regulate public
Artistic purposes, entertainment and other place surveillance 99
personal uses 63 Relationship with other surveillance
Risks 64 regulators 100
Threat to privacy 64 Review of Victoria Police surveillance practices 101
Social exclusion 64 Regulatory features not recommended at
Loss of anonymity 66 this stage 103
The chilling effect 66 Registration or licensing of some
surveillance users 103
Criminal conduct and offensive uses 68
A complaint-handling power for the regulator 104
Publication on the internet 68
General own-motion investigatory powers 104
Surveillance may not work 69
Procurement standards as a tool to
Converging devices 71 encourage compliance 105
A balanced approach to regulation 71 Conclusion 105
The Victorian Charter of Human Rights and
Responsibilities 71 Chapter 6: Modernising the Surveillance
Regulatory theory 75 Devices Act 107
An overview of our recommendations and our Introduction 108
approach 80 Background 108
Conclusion 80 Definitions 108
Private activity 108
Chapter 5: Promoting Responsible Use of
Implied consent 110
Surveillance in Public Places 83
Prohibition of surveillance devices in toilets 112
Introduction 84
Regulated tracking devices 112
Principles to govern the use of surveillance in
public places 84 Automatic number plate recognition 114
Six public place surveillance principles 85 Management and care of patients 115
An independent regulator of public place surveillance 89 Removing the participant monitoring exception 117
Regulatory functions 90 Allowing some instances of participant
monitoring 117
Encouraging responsible practice 90
Research and monitoring 90 A civil penalty regime 121
Educating, providing advice and promoting A new offence for improper use of a
understanding of laws and best practice 91 surveillance device 122
Developing and publishing best practice Other jurisdictions 124
guidelines 91 Conclusion 125
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Contributors Contents
VICTORIAN LAW REFORM COMMISSION Chapter 7: Statutory Causes of Action 127
Chairperson Introduction 128
Professor Neil Rees* Civil action for serious invasion of privacy 128
Commissioner The law in Australia 128

Associate Professor Pamela O’Connor The law in the UK 130
The law in New Zealand 134
Part-time Commissioners
The law in the United States 137
Paris Aristotle AM*
Magistrate Mandy Chambers The law in Canada 140
Hugh de Kretser* Other law reform commission recommendations 141
Her Honour Judge Felicity Hampel Australian Law Reform Commission 141
Professor Sam Ricketson* NSW Law Reform Commission 143
Justice Iain Ross AO*† Should Victoria enact a cause of action for
Reference Team invasion of privacy? 145
Emily Minter (Team leader) The commission’s recommendation: two
Miriam Cullen statutory causes of action 147
Sally Finlay Misuse of private information 149
Lara Rabiee Intrusion upon seclusion 150
Chief Executive Officer Statutory causes of action 151
Merrin Mason Elements 151
Defences 153
Operations Manager
Kathy Karlevski Exemptions? 159
Remedies 160
Team Leaders
Costs 163
Emma Cashen Lindy Smith
Emily Minter Myra White Jurisdiction 163
Availability of the cause of action to
Policy and Research Officers corporations and deceased persons 164
Becky Batagol Ian Parsons
Limitation of action 166
Freia Carlton Lara Rabiee
Conclusion 167
Zane Gaylard Martin Wimpole
Kirsten McKillop Hilda Wrixon Appendices 169
Research Assistants Appendix A: Submissions 170
Sarah Dillon Alexandra Krummel Appendix B: Consultative Committee, Community
Melleta Elton Tess McCarthy Forums, Consultations and Site Visits 172
Amanda Kite Jessica Saunders Appendix C: Preliminary Roundtable Consultations 174
Communications Officer Bibliography 176
Carlie Jennings
Project Officer
Simone Marrocco
Assistant Operations Manager

Vicki Christou
Research and Executive Assistant

Mia Hollick
Librarian
Julie Bransden
Administrative Officers
Failelei Siatua Samuel Tucker
* Commissioners involved in this reference.

† Retired March 2010.
Preface
This report completes a two-stage inquiry into the Sam Ricketson who chaired this division prior to my
widespread use of privacy invasive technologies. appointment to the VLRC. Justice Ross resigned from
The first stage of our inquiry dealt with workplace the VLRC upon being appointed President of the
privacy, while this report deals with the growing use Victorian Civil and Administrative Tribunal (VCAT)
of surveillance in public places. in March 2010. The recommendation in Chapter 7
Public place surveillance is so extensive that it now concerning VCAT was devised well before this date.
affects the lives of nearly all Victorians. It is highly All members of the commission team who worked
likely that our image will be captured by camera, on this project have produced high quality work.
and recorded, whenever we are walking down city Team Leader Emily Minter played a central role in
streets, travelling on public transport, driving on the preparation of this report. Her commitment,
freeways, visiting shopping centres or attending a understanding of the issues and organisational
major sporting event. People should know about skills were of vital importance. Policy and Research
these activities and appreciate that it is becoming officers Miriam Cullen and Lara Rabiee made major
increasingly difficult to remain anonymous in public contributions to the entire report, while Sally Finlay
places. The notion of blending in with the crowd is and Padma Raman participated in overall planning
fast disappearing. and worked on particular chapters. Melleta Elton,
The Attorney-General asked the commission to Mia Hollick, Simone Marrocco, Claire Roberts and
consider the interests of users of surveillance in Suzanne Zhou provided research assistance. The
protecting their property and providing safe places, report was edited by Clare Chandler and produced
and to balance these against the protection of by Carlie Jennings.
privacy, autonomy and the dignity of individuals. The Many others made important earlier contributions to
commission has been guided by these concerns and this reference. Former Team Leader Emma Cashen
this report reflects the diversity of opinion regarding coordinated the later consultation stage of the
the use of surveillance in public places. We must seek reference and the publication of our Consultation
to reap the many benefits of modern surveillance Paper. Priya SaratChandran made a contribution to
equipment while also ensuring that it is not used research and consultation, and to our understanding
oppressively and unnecessarily in public places. of the many complex issues which should be
Existing laws were not designed with the use of individually recognised. Michelle Burrell and
high technology surveillance devices in mind. This Bronwyn Jennings gave early research and writing
report contains 33 recommendations for reform. assistance. Vicki Christou and Failelei Siatua provided
Our proposed regulatory model encourages the administrative support.
responsible use of surveillance in public places. It In 2009 we established a consultative committee
balances this with the protection of individual rights, to provide us with advice. I thank the members of
especially the right to privacy. that committee—Louise Connor, Andy Frances,
Similar reviews of public place surveillance Leigh Gassner, Moira Paterson, Michael Pearce SC,
have taken place or are occurring elsewhere. In Bill Penrose, Jen Rose, Helen Versey and Deane
February 2010 the New Zealand Law Commission Wilson—for their very helpful responses to our draft
recommended new laws to deal with the misuse of recommendations.
visual surveillance, interception and tracking devices. One of the members of that committee, Associate
In the UK, the interim CCTV Regulator will make Professor Moira Paterson, has acted as a consultant
recommendations by the end of 2010 for regulation and adviser throughout this reference. We benefited
of the use of CCTV in public places. greatly from her expertise and wise counsel.
Devising regulatory responses to significant
technological change is often challenging. That
has proven to be the case in this instance. I express
my thanks to the members of the division of the
commission who worked with me on this reference— Professor Neil Rees
Justice Iain Ross AO, Professor Sam Ricketson, Paris Chairperson
Aristotle AM and Hugh de Kretser—and who gave
generously of their time and expertise. In particular, May 2010
I wish to acknowledge the contribution of Professor
5
Terms of Reference
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
a. whether legislative or other reforms should be made to ensure that workers’
privacy, including that of employees, independent contractors, outworkers and
volunteers, is appropriately protected in Victoria. In the course of this inquiry, the
commission should consider activities such as
• surveillance and monitoring of workers’ communications;
• surveillance of workers by current and emerging technologies,
including the use of video and audio devices on the employers’
premises or in other places;
• physical and psychological testing of workers, including drug and
alcohol testing, medical testing and honesty testing;
• searching of workers and their possessions;
• collecting, using or disclosing personal information in workers’
records.
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.
In undertaking this reference, the commission should have regard to
• the interests of employers and other users of surveillance, including
their interest in protecting property and assets, complying with laws
and regulations, ensuring productivity and providing safe and secure
places;
• the protection of the privacy, autonomy and dignity of workers and
other individuals;
• the interaction between state and Commonwealth laws, and the
jurisdictional limits imposed on the Victorian parliament;
• the desirability of building on the work of other law reform bodies.
* Our terms of reference also originally included the publication of photographs

without the subject’s consent. This issue was removed from the terms of reference
by the Attorney-General in October 2006 and referred to the Standing Committee of
Attorneys-General (SCAG).

Glossary
Automatic number Technology that recognises symbols in images of a
plate recognition number plate and stores or uses those symbols to identify
(ANPR) the vehicle.
Biometric surveillance Surveillance conducted using biological data, for example,
fingerprints, iris patterns or facial features.
Bluetooth A wireless form of transmission that uses radio waves to
transmit information over short distances.
Breach of confidence When confidential information is disclosed to a wider
audience. May result in a right to sue.
Cause of action A right to sue another person.
CCTV Closed-circuit television. Now a generic term for
surveillance camera systems.
Chilling effect Where speech or conduct is suppressed because of a
belief that it may result in undesirable consequences.
Citizen journalism Journalism undertaken by non-professionals.
Civil penalty A fine or other sanction for a civil offence. It has a lower
standard of proof than a criminal penalty and there is no
finding of criminal responsibility.
Common law Law that derives its authority from the decisions of courts,
rather than from Acts of parliament.
Convergence When used in relation to technology, describes the
phenomenon in which technology is becoming
increasingly interconnected and multi-functional.
CrimTrac A Commonwealth agency that uses, develops, and
provides access to information technology and services for
police use.
Data mining The process of analysing data for known and unknown
data patterns.
Data surveillance The monitoring of data, as opposed to people or places.
Enforcement pyramid A regulatory model characterised by increasing levels

of intervention that utilises serious measures only when
milder sanctions (such as education) have failed.
e-tag A device attached to a vehicle that transmits information
to an electronic reader; used to identify the vehicle for
tolling purposes.
E-view (Enterprise A web-based tool that provides detailed, zoomable
view) images of buildings and other features compiled through
aerial photographs.
Facial recognition A computer application for identifying or verifying a
person from an image by comparing it with a database of
existing images. A form of biometric technology.
7
Glossary
Global positioning A navigation system that relies on information received
system (GPS) from a network of satellites to provide the latitude and
longitude of an object or location.
Google Earth A web-based program that maps the earth by the
superimposition of images obtained from satellite imagery
and aerial photography.
Google Street View A feature of Google Maps and Google Earth that
provides 360 degrees horizontal and 290 degrees vertical
panoramic street views and enables users to view parts of
some regions of the world at ground level.
Happy slapping The practice of recording an assault on a victim
(commonly with a camera phone) for entertainment.
In-car video A video camera fitted inside a vehicle (for example, a
police vehicle or taxi). May be used to observe the interior
or exterior of the vehicle.
International Covenant A treaty giving effect to civil and political rights contained
on Civil and Political in the Universal Declaration of Human Rights. Australia is
Rights (ICCPR) a signatory to the ICCPR.
Location surveillance Identifying a person’s or an object’s whereabouts at a
particular time.
Mass surveillance Monitoring the public at large, or a significant part of the
public, instead of a particular individual.
Nuisance An unlawful interference with a person’s use or
enjoyment of land, or some right over or in connection
with it. May result in a right to sue.
Optical character Software designed to recognise letters and numbers from
recognition a captured image and to translate them into editable text.
Optical surveillance See Visual surveillance.
Own-motion The power of a regulator to investigate possible breaches
investigation of a law without the need for a complaint or referral by
a person.
Olfactory surveillance Purposeful monitoring of a person or object by smell,
including by the use of a device or animal.
Panopticon A type of prison building designed by Jeremy Bentham
to facilitate the observation of prisoners without the
prisoners being able to tell whether they are actually
being watched.
Participant monitoring Recording of conversations or activities by someone
participating in them.

Passive location Passive location services are those in which a mobile
services phone user consents to have his or her location tracked
by another person, either from the other person’s mobile
phone or a computer.
Physical surveillance Observing a person by being physically present at their
location.
Profiling When used in a law enforcement context, reliance on
personal traits (such as race, gender and age) to target
potential offenders.
Purpose creep In a surveillance context, where a surveillance system set
up for one purpose is used for another purpose. Also
known as ‘function creep’.
Radio frequency A technology that enables items to be identified through
identification (RFID) an embedded chip that emits a unique radio signal. There
are two forms: active RFID, which emits its own signal,
and passive RFID that is read using energy from an
RFID reader.
Text message/SMS The exchange of brief written messages between mobile
phones and other portable devices over cellular networks.
Messages can now also include image, video and sound
content (known as MMS messages).
SmartGate A project of the Australian Customs and Border
Protection Service that uses a biometric passport and face
recognition technology to allow eligible travellers arriving
at Australia’s international airports to self-process through
passport control.
Smart card A card containing integrated circuits that can store and
process data. Used for performing financial transactions
and accessing restricted areas
Snaparazzi A play on the word ‘paparazzi’; used to describe the
collection of unstaged and/or candid photographs of
celebrities by non-professionals.
Spyware Software that, once installed in a computer, secretly
collects information about the computer use.
Statute A written law passed by parliament.
Surveillance Deliberate or purposive observation or monitoring of a
person, object or place.
Tort A breach of a duty, imposed by law, that protects the
bodily integrity, property, reputation or other interests of
a person.
9
Glossary
Tracking Monitoring a person or object’s whereabouts over a
period of time. Also called ‘location surveillance’.
Trespass Direct interference with a person, goods, or property of
another without lawful justification. May result in a right
to sue.
Universal Declaration A resolution of the United Nations General Assembly
of Human Rights affirming the importance of human rights and listing the
(UDHR) rights that UN member countries have pledged to uphold.
Upskirting The observation or recording of a person’s genital or anal
regions without their consent.
Visual surveillance Purposeful monitoring of a person or object by sight,
including by the use of a device. Also known as ‘optical
surveillance’.
Voice over Internet Generic term for technology that enables the delivery
Protocol (VoIP) of voice communication over the internet and other
networks.
Wire tapping The use of electronic or mechanical equipment to gain
access to transmission of private telephone conversations,
computer data or facsimiles.

Executive Summary
introduction
This is the Victorian Law Reform Commission’s Final Report for the second phase of our
inquiry into the use of surveillance and other privacy-invasive technologies. In 2005 we
published our Workplace Privacy: Final Report. In this report we consider surveillance in
public places.
Surveillance devices have become increasingly affordable, available and sophisticated.
Their use has proliferated. Current laws were not designed to deal with the many ways
in which these devices are used in Victorian public places. In this report the commission
makes a series of recommendations that seek to modernise the existing regulatory
regime. The recommendations strive to encourage responsible surveillance practices and
ensure that users of surveillance devices do not infringe the rights of the Victorian public.
background
Government agencies, private organisations and individuals use public place surveillance
extensively. Victorians can expect to be observed, recorded and tracked while engaging
in daily activities in streets, shopping centres and major public venues.
The capabilities of surveillance devices are also increasing rapidly. Surveillance devices
are able to locate individuals in a crowd, determine identity, track movements, record
conversations, and compile and share this information almost instantaneously. As
technologies become more sophisticated, so, too, do the applications for which they are
used. For example, devices may be used at airports to see through passengers’ clothing,
or identify individuals from within hundreds of cars on a freeway.
Many groups within our community rely heavily on surveillance technology in their
everyday activities, including police, transport operators, retailers, private investigators,
sports venues and journalists. Surveillance serves a number of important purposes,
including the promotion of public safety, the prevention and investigation of crime,
and newsgathering. In addition, many widely owned personal products, such as mobile
phones, have surveillance capabilities.
Negative consequences that may flow from the increased use of surveillance in public
places include a loss of privacy and anonymity. One concern is that this may cause
Victorians 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.
Those people with the means to do so may retreat to private places whenever possible in
order to avoid unwanted observation.
In devising recommendations for reform, the commission has taken into account the
many benefits that arise from the use of public place surveillance, as well as the risks
posed by its misuse.
Constitutional constraints and practical considerations have limited our inquiries. We
have not considered national security uses of surveillance, or telecommunications and
data surveillance practices, because they are federal responsibilities. We recommend
that the surveillance activities of state law enforcement bodies be considered separately
because of the need to consider police investigation and information gathering activities
as a whole.
11
consultative process
In March 2009 the commission published a Consultation Paper that was informed by
extensive preliminary consultations. We presented a number of options for reform and
received detailed feedback in over 40 submissions from government agencies, private
organisations and community advocates.
We also hosted five forums with groups who experience public place surveillance,
including young people, people experiencing homelessness, and culturally and
linguistically diverse communities. We established a consultative committee of individuals
with different experiences of public place surveillance whom we consulted on a number
of occasions. In addition, we met members of the community, and visited major
Victorian surveillance users at their premises in order to gain a thorough understanding
of their use of surveillance technologies.
These submissions, consultations and meetings provided us with a thorough
understanding of the scope, nature and impact of public place surveillance in Victoria
(outlined in Chapter 2), and the benefits and risks that flow from its use (outlined in
Chapter 4).
current law
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 they do not appear
to be actively enforced. There is a widespread uncertainty among 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) (SDA), the
Privacy Act 1988 (Cth) and the Information Privacy Act 2000 (Vic)—were not specifically
designed to regulate public place surveillance.
The 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 current regime. In addition, surveillance in some
contexts, for example in casinos and bars, is separately regulated.
No clear public policy emerges from these separate laws concerning the circumstances in
which public place surveillance is acceptable and those when it is not. We consider the
current regulatory framework in Chapter 3.
a balanced approach to regulation

Numerous benefits arise from the use of surveillance devices, including crime prevention
and investigation, crowd control and the dissemination of information. However, there
are also risks associated with its use, including the increased loss of people’s anonymity
and personal space in public. The commission proposes a regulatory regime that is based
on a set of overarching principles that seek to balance the many competing interests at
play and are flexible enough to allow for rapid changes in technology. This approach is
primarily educative and focuses on achieving best practice use of surveillance technology,
while also ensuring that the privacy rights of individuals are adequately protected.
Two sources that provide a framework for achieving a balanced approach to regulation,
and which have informed our recommendations, are the Charter of Human Rights
and Responsibilities Act 2006 (Vic) (the Victorian Charter) and theories of responsible
regulation. We discuss the applicability of these sources to the development of our
approach in Chapter 4.

encouraging responsible use
Users of surveillance frequently stated that they were unsure of what surveillance
they could lawfully undertake and would welcome further guidance in this area. Our
recommendations aim to provide greater certainty about appropriate uses of surveillance
in any particular circumstance.
The commission proposes a set of overarching legislative principles to guide all users
about responsible use of public place surveillance. The principles, set out in Chapter
5, are based on those proposed in our Consultation Paper. The Victorian Charter
framework for balancing competing interests, and the principles contained in privacy
legislation, informed our approach. In refining these principles we drew upon the
opinions expressed in submissions and consultations, and the views of our Consultative
Committee.
The six public place surveillance principles devised by the commission are as follows.
1. People are entitled to a reasonable expectation of privacy when in public
places.
2. Users of surveillance devices in public places should act responsibly and
consider the reasonable expectations of privacy of individuals.
3. Users of surveillance devices in public places should take reasonable steps to
inform people of the use of those devices.
4. Public place surveillance should be for a legitimate purpose related to the
activities of the organisation conducting it.
5. Public place surveillance should be proportional to its legitimate purpose.
6. Reasonable steps should be taken to protect information gathered through
public place surveillance from misuse or inappropriate disclosure.
These principles are discussed in Chapter 5.
The commission recommends the creation of an independent regulator. The primary
roles of the regulator would be to promote the responsible use of surveillance in public
places by providing practical guidance to surveillance users, to provide the public with
information about their rights, and to keep the government and the people of Victoria
fully informed of rapidly changing technology. In Chapter 5 we consider the range of
functions and powers necessary for the regulator to fulfil these tasks, bearing in mind
that the least restrictive regulatory methods are desirable.
Although appropriate guidance about the responsible use of surveillance in public places
is a cornerstone of our recommendations, guidance alone cannot protect people from
some practices that seriously affect their privacy. Chapters 6 and 7 deal with additional
regulatory measures for particularly offensive uses of surveillance.
modernising the surveillance devices act

To reflect changes to the way surveillance is used in Victoria, and to ensure that the law
keeps pace with advances in technology, the commission recommends a number of
changes to clarify, modernise and strengthen the SDA. The SDA primarily prohibits the
use of covert surveillance devices in private places, while also allowing law enforcement
use of surveillance with a warrant. The commission’s proposed recommendations include
amending some important definitions to reflect contemporary uses of surveillance
devices, and expressly prohibiting surveillance in toilets and change rooms. Another
recommendation is the introduction of a prohibition on participant monitoring (where a
person records an activity or conversation to which they are a party without the consent
of other parties), which is currently allowed under the Act.
13
Executive Summary
The commission also recommends the introduction of a new offence to prohibit highly
offensive uses of surveillance devices, regardless of where the surveillance occurs. This
offence is designed to send a clear message to the community that various forms of
behaviour are unacceptable, including, for example, filming violence for entertainment
(happy slapping). Using surveillance to intimidate or prevent people from doing
something they are otherwise lawfully entitled to do, like attending an abortion clinic or
drug treatment centre, would also be covered by the offence.
In addition, we recommend that a civil penalty regime also apply to existing criminal
offences in the SDA. This would provide for greater flexibility in enforcement by allowing
a surveillance regulator to act on the less serious matters that come to his or her
attention without referring the matter to Victoria Police for criminal prosecution.
statutory causes of action

The commission believes that individual Victorians should be able to take civil action in
response to serious invasions of privacy by the use of surveillance in a public place.
At present, no Australian jurisdiction has enacted a statutory cause of action for invasion
of privacy, and no appellate court has acknowledged the existence of a common law tort
of invasion of privacy.
It is open to both the High Court and the Victorian Court of Appeal to recognise a
common law tort of invasion of privacy in the absence of any legislative action. However,
developments in other common law countries, most notably the UK and New Zealand,
suggest it will take a long time before a reasonably clear body of law emerges.
Legislation would provide greater clarity and certainty within a more acceptable
timeframe. The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter)
is a useful catalyst for legislative action because ‘privacy’ is one of the human rights that
parliament specifically seeks to protect and promote under the Charter.
The commission recommends the introduction of two statutory causes of action for
serious invasions of privacy: the first dealing with misuse of private information, the
second with intrusion upon seclusion.
Although our focus is an appropriate legal response to the misuse of surveillance in
public places, these new causes of action would not necessarily be limited to conduct
that occurred in a public place or that involved the use of a surveillance device.

Recommendations
GENERAL
1. The Victorian parliament should enact new laws that promote the
responsible use of surveillance devices in public places.
PRINCIPLES
2. The legislation should include the following guiding principles.
1. People are entitled to a reasonable expectation of privacy when in
public places
consider the reasonable expectations of privacy of individuals
3. Users of surveillance devices in public places should take reasonable
steps to inform people of the use of those devices
4. Public place surveillance should be for a legitimate purpose related to
the activities of the organisation conducting it
5. Public place surveillance should be proportional to its legitimate purpose
6. Reasonable steps should be taken to protect information gathered
through public place surveillance from misuse or inappropriate disclosure.
REGULATOR OF PUBLIC PLACE SURVEILLANCE

3. A regulator should be responsible for the oversight of public place
surveillance in Victoria.
4. The regulator should have the following functions in relation to public place
surveillance:
a. research and monitoring, including use, technologies and current laws
b. educating, providing advice and promoting understanding of laws and
best practice
c. developing and publishing best practice guidelines
d. reviewing advice prepared by public authorities and significant private
users of public place surveillance
e. examining the practices of public authorities and significant private
users in relation to their public place surveillance practices
f. advising a public authority or significant private organisation of any
failure to comply with laws and best practice guidelines
g. investigating and taking civil proceedings in relation to potential
breaches of the SDA
h. reporting to the Minister on an annual basis on any matters in relation
to any of its functions, including any failure by public authorities and
significant organisations to comply with advice under paragraph (f).
5. Public authorities and significant private users should be required to provide
advice to the regulator annually on their compliance with public place
surveillance guidelines in relation to designated surveillance devices.
6. The Victorian government should define ‘significant private user’ for the
purposes of the regulatory regime.
15
Recommendations
7. In addition to any other powers conferred on the regulator by legislation,
the regulator should have the power to do all things necessary or convenient
for, or in connection with, the performance of the functions of the regulator.
8. In addition to his or her annual reporting function, the regulator should also
have the power to report formally to the relevant Minister about any matters
relating to his or her functions. The Minister should be required to table all
reports provided by the regulator in parliament.
9. The functions of the regulator should be exercised by the Victorian Privacy
Commissioner.
10. The Commissioner for Law Enforcement and Data Security should conduct a
review of, and create guidelines for, Victoria Police’s use of surveillance and
surveillance-captured data.
MODERNISING THE SURVEILLANCE DEVICES ACT

11. The words ‘an activity carried on outside a building’ should be removed
from the definition of ‘private activity’ in section 3 of the SDA so that it reads:
private activity means an activity carried on in circumstances that may
reasonably be taken to indicate that the parties to it desire it to be
observed only by themselves, but does not include an activity carried on
in any circumstances in which the parties to it ought reasonably to expect
that it may be observed by someone else.
12. The SDA should be amended so that courts are directed to consider whether a
public place surveillance user has given adequate notice of their surveillance
activities when considering whether a person has given ‘implied consent’ to
any of the conduct that falls within sections 6–9 and 11–12 of the SDA.
13. The SDA should be amended to expressly prohibit the use of an optical
surveillance device or listening device to observe, listen to, record or monitor
any activity in toilets, shower areas and change rooms which form a part
of any public place. This prohibition should include a law enforcement
exemption similar to that in section 9B(2) of the SDA.
14. The definition of ‘tracking device’ in section 3 the SDA should be amended
so that it includes all electronic devices capable of being used to determine
the geographical location of a person or object.
15. The Governor in Council should be permitted to make regulations that
allow specific law enforcement activities to be exempted from the general
prohibition in section 8 of the SDA against using a tracking device without
consent.
16. The proposed new regulator should advise Parliament regularly about the
use of ANPR technology in Victoria, including whether the current regulatory
controls are adequate.
17. The automatic substitute consent regime in Part 4A of the Guardianship
and Administration Act 1986 (Vic) should be extended so that the ‘person
responsible’ may consent to the installation of a tracking device for a
person over the age of 18 years who is incapable of giving consent to the
installation of that device.
18. Sections 6 and 7 of the SDA should be amended to prohibit participant
monitoring using a listening or optical surveillance device subject to the
following additional exceptions:

a. the use of a listening or optical surveillance device by a law
enforcement officer to record a private conversation or private activity
to which he or she is a party if:
i) the law enforcement officer is acting in the course of his or her
duty; and
ii) the law enforcement officer reasonably believes at least one party
to the conversation or activity of having committed or being in the
course of committing an offence
b. the use of a listening device or optical surveillance device by a party to a
private conversation or private activity if:
i) a principal party to the conversation or activity consents to the
listening device being so used; and
ii) recording of the conversation or activity is reasonably necessary for
the protection of the lawful interests of that principal party.
19. Sections 6–9 and 11–12 of the SDA should be amended to include civil
penalties as an alternative to criminal penalties. The regulator should be
permitted to commence proceedings for the imposition of a civil penalty.
20. A new offence should be included in the SDA that makes it unlawful to use
a surveillance device in such a way as to:
a. intimidate, demean or harass a person of ordinary sensibilities; or to
b. prevent or hinder a person of ordinary sensibilities from performing an
act they are lawfully entitled to do.
21. A civil and alternative criminal penalty should apply for breach of the
offence. The regulator should be permitted to commence proceedings for
the imposition of a civil penalty.
CREATING STATUTORY CAUSES OF ACTION

22. There should be two statutory causes of action dealing with serious invasion
of privacy caused by misuse of surveillance in a public place.
23. The first cause of action should deal with serious invasion of privacy by
misuse of private information.
24. The second cause of action should deal with serious invasion of privacy by
intrusion upon seclusion.
25. The elements of the cause of action for serious invasion of privacy caused by
misuse of private information should be:
a. D misused, by publication or otherwise, information about P in respect
of which he/she had a reasonable expectation of privacy; and
b. a reasonable person would consider D’s misuse of that information
highly offensive.
26. The elements of the cause of action for serious invasion of privacy caused by
intrusion upon seclusion should be:
a. D intruded upon the seclusion of P when he/she had a reasonable
expectation of privacy; and
b. a reasonable person would consider D’s intrusion upon P’s seclusion
highly offensive.
17
Recommendations
27. The defences to the cause of action for serious invasion of privacy caused by
misuse of private information should be:
a. P consented to the use of the information
b. D’s conduct was incidental to the exercise of a lawful right of defence
of person or property, and was a reasonable and proportionate
response to the threatened harm
c. D’s conduct was authorised or required by law
d. D is a police or public officer who was engaged in his/her duty and
the D’s conduct was neither disproportionate to the matter being
investigated nor committed in the course of a trespass
e. if D’s conduct involved publication, the publication was privileged or
fair comment
f. D’s conduct was in the public interest, where public interest is a limited
concept and not any matter the public may be interested in.
28. The defences to the cause of action for serious invasion of privacy caused by
a. P consented to the conduct
b. D’s conduct was incidental to the exercise of a lawful right of defence
of person or property, and was a reasonable and proportionate
response to the threatened harm
e. D’s conduct was in the public interest, where public interest is a limited
29. The remedies for both causes of action should be:
a. compensatory damages
b. injunctions
c. declarations.
30. Costs should be dealt with in accordance with section 109 of the VCAT Act.
31. Jurisdiction to hear and determine the causes of action for serious invasion
of privacy by misuse of private information and by intrusion upon seclusion
should be vested exclusively in the Victorian Civil and Administrative Tribunal.
32. These causes of action should be restricted to natural persons. Corporations
and the estates of deceased persons should not have the capacity to take
proceedings for these causes of action.
33. Proceedings must be commenced within three years of the date upon which
the cause of action arose.

1
SURVEILLANCE SURVEILLANCE SURVEILLANCE
LLANCE SURVEILLANCE SURVEILLANCE SURVEILLANCE
LLANCEChapter 1
Introduction CONTENTS
SURVEILLANCE SURVEILLANCE SURVEILLANCE20 Introduction
20 Background

21
22
Important definitions
Coverage of this report
SURVEILLANCE SURVEILLANCE SURVEILLANCE24 Other law reform activity

26 Our process
27 Outline of this report

19
1
Chapter 1 Introduction
introduction
1.1 This is the Victorian Law Reform Commission’s Final Report into surveillance in
public places. The Victorian Attorney-General asked the Victorian Law Reform
Commission (the commission) to inquire into two major issues of public concern
in relation to privacy: workplace privacy and the use of surveillance in public
places. The first phase of the reference concluded in 2005 with the publication of
the commission’s Workplace Privacy: Final Report.1
1.2 The terms of reference for the second phase asked the commission to consider
whether there is appropriate control of surveillance in public places.2 In January
2009 we produced Surveillance in Public Places: Consultation Paper (Consultation
Paper) in which we presented a number of options for reforming the law to better
regulate surveillance of public places.3 We have since received submissions and
engaged in consultations on the options we presented. In this report we present
our final recommendations.
1.3 The terms of reference also asked us to consider whether the commission’s
proposed model to regulate surveillance of workers could be applied in relation to
the regulation of surveillance in public places. There are a number of similarities
between the two sets of recommendations (including our proposal for the
introduction of overarching principles to guide legislative changes, and a ‘light-
touch’ regulatory approach). This is explained in more detail in Chapters 4 and 5.
background
1.4 Surveillance devices have become increasingly available, affordable and
sophisticated, and their use in public places has proliferated. For example, many
local councils in Victoria now operate closed-circuit television (CCTV) systems.
Police, transport authorities, sporting and entertainment venues and retail outlets
also use CCTV. In addition, the capacity to use information gathered by CCTV
systems is expanding. Many modern CCTV systems are now networked, and
images can be stored, searched, analysed, reproduced and made available on
the internet.
1.5 A variety of location and tracking devices is also being used in Victorian public
places to determine the whereabouts and movement of individuals. They
include the use of global positioning system (GPS) technology in phones and
cars, and automatic number plate recognition (ANPR) technology on freeways.
Google’s Street View application allows internet users to view and zoom in on
photographs of Australian streetscapes, and, potentially, individuals.4 The federal
government has also recently announced its intention to introduce body scanners
at international airports, which will effectively enable security personnel to see
through passengers’ clothing.5
1.6 Many common products now have surveillance capabilities. One obvious example
is mobile phones,6 many of which have the capacity to record images and
sounds and to transmit them to multiple destinations, almost instantaneously
and at low cost.
1.7 Numerous benefits arise from the use of surveillance devices, including crime
prevention, investigations, crowd control and the dissemination of information.
However, there are also risks, including the increased loss of individuals’
anonymity and personal space in public, particularly as devices can monitor
movement and capture information in ways not previously possible.

1.8 Although research has shown community support for the use of some types of 1 Victorian Law Reform Commission,
Workplace Privacy: Final Report (2005).
surveillance in public places,7 this support is not absolute. There are concerns 2 The terms of reference are reproduced on
about the potential loss of privacy in public places, the potential misuse of page 6.
collected information, the potential discriminatory effect of surveillance and the 3 Victorian Law Reform Commission,
Surveillance in Public Places, Consultation
lack of evidence supporting the effectiveness of surveillance in achieving its stated Paper No 7 (2009).
purposes.8 Instances of users of surveillance inappropriately sharing surveillance 4 Andrew Colley, ‘Privacy Advocates Say
Google’s Gone Too Far’, The Australian
footage with the media in Victoria have also raised community concerns about (Sydney), 5 August 2008, 3.
the use of surveillance-obtained information.9 5 Anthony Albanese MP, Minister for
Transport, ‘Strengthening Aviation
1.9 While the practice of surveillance in public places continues to grow in Victoria, Security’ (press release, 9 February 2010).
the use of surveillance devices is not comprehensively regulated. Our existing laws 6 Mobile phone subscriber penetration
rates in Australia were estimated at
are unclear, they have not kept pace with technological change, and they do not being between 110% and 115% of the
appear to have been actively enforced. It is likely that some organisations and population in August 2009: Paul Budde,
Australia: Mobile Communications
individuals do not always know whether they are acting lawfully when engaging Subscriber Statistics, (2004) Paul Budde
in surveillance practices. Because surveillance technology is developing so rapidly, Communication Pty Ltd <www.budde.
com.au/Research/Australia-Mobile-
and laws are subsequently becoming outdated, it is time to consider how best to Communications-Subscriber-Statistics.
encourage the responsible use of surveillance devices while also protecting the html> at 5 March 2010.
7 See Helene Wells et al, Crime and
rights and interests of individuals who may be harmed by their misuse. CCTV in Australia: Understanding the
Relationship (2006) i–iii, 50; Wallis
important definitions Consulting Group, Community Attitudes
to Privacy 2007: Prepared for Office of
the Privacy Commissioner Reference No
what is surveillance? WG3322 (2007) 3, 74–5; Terry Honess
and Elizabeth Charman, Closed Circuit
1.10 The term ‘surveillance’ stems from the French word surveiller, meaning ‘to watch Television in Public Places: Its Acceptability
over’.10 The Macquarie Dictionary defines surveillance as the ‘watch kept over a and Perceived Effectiveness (1992) 4–5,
25; Leon Hempel and Eric Töpfer, CCTV in
person, etc., especially over a suspect, a prisoner, or the like’.11 Other definitions Europe: Final Report (2004) 1; Martin Gill
emphasise the motivation for the conduct in question. For example, David Lyon, and Angela Spriggs, Assessing the Impact
of CCTV (2005) 55, 123.
one of the foremost academics in this area, defines surveillance as ‘the focused, 8 Submissions 5, 7, 12, 14, 18, 19, 27, 30,
systematic and routine attention to personal details for the purposes of influence, 32, 34, 40, 42, 43. For a discussion on the
effectiveness of CCTV, see Wells, above
management, protection or directions’.12 n 7, 47–50; see also Wallis Consulting
Group, above n 7, 74–5.
1.11 In our Consultation Paper we said that surveillance may be a once off or
9 See eg Asher Moses, ‘Privacy Fears as
systematic activity, it may be conducted using a device or by personal observation, Google Hits Road’, The Age (Melbourne),
and it usually involves deliberate rather than incidental conduct. Accordingly, the 10 April 2008, 3; ‘Hi-tech Cops Use
Cyber Clues’, Community News
commission suggested that surveillance should be defined as ‘the deliberate or (Moonee Valley), 1 April 2008, 16;
purposive observation or monitoring of a person or object’.13 Kate Uebergang, ‘Prison Term Cut for
Toilet Spy’, Herald Sun (Melbourne), 14
1.12 There was general support in consultations and submissions for this definition, November 2007, 2; Mark Dunn, ‘Zooming
in On Crims: Privacy Worries Over Road
although some consultees raised specific concerns. In particular, there was Cams Plan’, Herald Sun (Melbourne),
31 January 2008, 9; Roundtable 16.
concern that the definition refers only to the monitoring of people and objects. It
10 Oxford English Dictionary (10th ed rev,
was suggested that some users of surveillance could potentially avoid regulation 2002) 1443.
by arguing that their use of surveillance protects or monitors a place or area.14 11 Colin Yallop et al (eds), Macquarie
Dictionary (4th ed, 2005) 1418.
1.13 We have amended our definition of surveillance in response to this concern. 12 David Lyon, Surveillance Studies: An
In this report we use the term surveillance to mean the deliberate or purposive Overview (2007) 14.
13 Victorian Law Reform Commission, above
observation or monitoring of a person, object or place. n 3, 11.
1.14 The expansion of the definition to include ‘place’ means that cameras installed 14 Consultation 9.
15 Although monitoring of a place will
to observe a general area, such as an outdoor mall or park, would constitute necessarily include the monitoring of
surveillance.15 We consider this definition broad enough to cover the many activities conducted, or changes that
occur to objects within that place, we
surveillance practices undertaken in Victoria without risk of over-inclusion.16 have included ‘place’ in our definition to
make it clear that we mean to cover this
type of surveillance.
16 This is also consistent with the definition
adopted by the NSW Law Reform
Commission. See NSW Law Reform
Commission, Surveillance: Final Report,
Report No 108 (2005).
21
1
what is a public place?
1.15 In our Consultation Paper, we noted that it was difficult to draw a clear line
between a ‘public place’ and a ‘private place’.17 We suggested that any attempt
to do so should focus on the nature and degree of accessibility to a place by
members of the public, rather than whether a place is privately or publicly owned.
1.16 Drawing on the definition contained in the Racial Discrimination Act 1975 (Cth),
we suggested that ‘public place’ should be defined as ‘any place to which the
public have access as of right or by invitation, whether express or implied and
whether or not a charge is made for admission to the place’.18
1.17 Thus ‘public places’ include public areas such as parks and streets, as well as
government or privately owned places when they are open to the general public,
such as shopping centres, libraries, sporting arenas and local swimming pools.
This definition received general support in consultations and submissions.
coverage of this report

1.18 Despite our broad definitions of ‘public place’ and ‘surveillance’ we have not
examined all forms of public place surveillance in Victoria. We have not, for
example, considered surveillance that occurs in workplaces because we addressed
this in the first phase of our privacy reference. In addition, we do not address the
issue of non-consensual publication of photographs because this is the subject of
a separate inquiry by the Standing Committee of Attorneys-General.19
1.19 Other practical considerations and constitutional constraints have also limited our
field of inquiry. These are outlined below.
federal areas of concern
1.20 Section 109 of the Commonwealth Constitution says that where state and
federal laws are inconsistent, the federal law should prevail to the extent of the
inconsistency. Thus, in developing our options for reform of Victorian law, we
must consider its interaction with relevant areas of Commonwealth concern.
Telecommunication and data surveillance

1.21 The Telecommunications (Interception and Access) Act 1979 (Cth) (TIA) regulates
the interception of telecommunications and access to communications stored
in infrastructure owned by telecommunications carriers. The TIA imposes
general prohibitions on these activities, though exceptions exist for authorised
interception and access by Commonwealth and state law-enforcement bodies.
1.22 The High Court has decided that the TIA exclusively regulates interception
of telephone communications.20 It is also highly likely that the TIA exclusively
regulates interceptions of other communications that take place across
telecommunications networks, such as SMS and email. Consequently, our
consideration of telecommunications surveillance practices is limited. However,
it is important to note that the TIA does not provide complete protection
against the monitoring of communications across public networks. In
particular, it protects telecommunications only while they are passing over the
telecommunications system and does not cover interceptions via devices placed
next to a phone handset. It also does not apply to communications that do not
involve the use of telecommunications equipment, for example, those made
solely by radio signals, such as Bluetooth or walkie-talkie communications.21 These
limitations mean that the Victorian regulation of listening devices, in particular, is
important in protecting communications across public networks.

1.23 The existence of the TIA also limits the ability of the Victorian government 17 These difficulties have been noted
by commentators in the context of
to regulate cyberspace surveillance. Most practices involving the use of surveillance. See eg, Hille Koskela,
computer software to spy on the activities of others via the internet22 involve ‘“Cam Era”—The Contemporary Urban
Panopticon’ (2003) 1 (3) Surveillance &
telecommunications interceptions. Further, the borderless nature of cyberspace Society 292; Alison Wakefield, ‘The Public
makes it impractical to regulate at a state level. For these reasons, we have not Surveillance Functions of Private Security’
(2004) 2 (4) Surveillance & Society 529.
considered cyberspace-related surveillance in this inquiry. We do note, however, 18 Racial Discrimination Act 1975 (Cth)
the importance of appropriate regulation in this area.23 s 18C.
19 Standing Committee of Attorneys-
1.24 Other data surveillance that is incidental to the activities regulated by the TIA General, Unauthorised Photographs on
the Internet and Ancillary Privacy Issues
but does not actually fall within the scope of the Act is best regulated at the Discussion Paper (2005).
Commonwealth level. An example of such surveillance may be the use of a 20 See Miller v Miller (1978) 141 CLR 269,
keystroke monitor to detect use of a computer in an internet cafe or public library. 276.
21 Telecommunications (Interception and
National security Access) Act 1979 (Cth) s 5.
22 Eg the use of viruses or worms such as
1.25 We have not examined surveillance practices conducted for national security Trojan or rootkit malware infections.
purposes because this is primarily a Commonwealth responsibility. A number of 23 For a comprehensive discussion on the
international approaches to privacy in
Commonwealth laws give various bodies, including federal and state police and cyberspace see Graham Greenleaf, Global
other national security organisations, specific powers to engage in surveillance Protection of Privacy in Cyberspace:
Implications for the Asia–Pacific (1998)
activities for security purposes.24 Recently, these powers were greatly expanded <www.austlii.edu.au/itlaw/articles/
by a series of laws that form part of a package of anti-terrorism measures.25 TaiwanSTLC.html> at 19 November 2008;
Cyber Law Policy Centre at the University
Australian Security Intelligence Organisation (ASIO) officers, for example, are of NSW <www.bakercyberlawcentre.
permitted to use tracking devices in accordance with a ministerial warrant ‘despite org/> at 3 December 2008.
24 Eg the Surveillance Devices Act 2004
any law of a State or Territory’.26 (Cth).
25 Eg changes under the Anti-Terrorism Act
state law enforcement (No. 2) 2005 (Cth).
1.26 The commission believes that regulation of police use of surveillance is best 26 Australian Security Intelligence
Organisation Act 1979 (Cth) s 26A.
achieved through an entirely separate regime from the one we propose for
general users of surveillance. For this reason, and others, we have not undertaken
a comprehensive review of the police use of surveillance in public places.
1.27 Surveillance is one of many means of investigation and crime detection available
to police. Examining the police use of surveillance in isolation from other
investigative tools would not be a fruitful exercise. In addition, some police use of
surveillance is subject to warrant-based processes under the Surveillance Devices
Act 1999 (Vic) (SDA) and other state and Commonwealth laws. Police officers are
subject to sanctions that do not apply to other surveillance users and, with judicial
authorisation, they may engage in activities that are otherwise prohibited.
1.28 A number of specialist bodies monitor the operations of Victoria Police, including
access to its data. The commission recommends that such a body undertake a
review of police use of surveillance technology and surveillance-captured data.
This proposal is dealt with in Chapter 5.
practices covered by information privacy laws
1.29 The primary focus of this report and our recommendations is surveillance
practices—that is, the practices associated with observing and recording a
person’s behaviour. Although we have considered the use of information
gathered by the use of surveillance (including the purposes for which it is used,
and procedures relating to retention, security and provision third parties), we have
not focused specifically on the ‘personal information’ that may be collected by
surveillance practices.
23
1
1.30 Commonwealth and state information privacy laws regulate the use of ‘personal
information’.27 These laws contain privacy principles concerning the collection,
storage and use of personal information. While information privacy laws may
regulate some uses of public place surveillance,28 many of these activities are likely
to be beyond the reach of privacy laws.
1.31 Information privacy laws apply to government agencies and large businesses
only.29 In order to be defined as ‘personal information’, information must be
recorded,30 and must be about an individual ‘whose identity is apparent, or
can reasonably be ascertained’.31 The extent to which surveillance-captured
information is covered by this description is discussed in Chapter 3. Most
information captured by surveillance practices is unlikely to be ‘personal
information’ for the purposes of information privacy laws because the identity of
an individual cannot ‘reasonably be ascertained’ from that information.
1.32 However, because some ‘personal information’ is capable of being captured by
surveillance practices, there is potential for overlap between information privacy
laws and any regulation of surveillance. We have developed our recommendations
with this issue in mind.
other law reform activity

1.33 The issues of surveillance and privacy have been the subject of recent reports by
other Australian and international law reform bodies. The work of those bodies
has informed the commission’s approach to the complex issues surrounding
public place surveillance. We have referred to the findings of these law reform
agencies throughout the report.
australian law reform commission
1.34 In August 2008 the Australian Law Reform Commission (ALRC) reported on
whether the Privacy Act 1988 (Cth) and related laws continue to provide an
effective framework for the protection of privacy in Australia.32 The report
included 295 recommendations, which, if implemented, will result in a large-scale
overhaul of privacy regulation in Australia.
1.35 In its report, the ALRC recommended the creation of a unified set of privacy
principles that would apply to all federal government agencies and the private
sector. The ALRC also recommended that these principles should apply to state
and territory government agencies through an intergovernmental cooperative
scheme. This model aimed to ensure that, subject to limited exceptions, the same
privacy principles would apply across Australia.
1.36 The Australian Government released the first stage of its response to the ALRC
proposals in October 2009.33 It made an extensive commitment to redrafting the
Privacy Act 1998 (Cth) and giving new powers to the Privacy Commissioner. The
ALRC proposals, and the government response to them, are discussed in more
detail in Chapter 3 of this report.
1.37 The ALRC recommended a federal statutory cause of action for invasion of privacy
that would be available to individuals whose privacy has been invaded by means
of surveillance. This proposal assisted us when developing recommendations, set
out in Chapter 7, about two new causes of action for misuse of surveillance.
NSW law reform commission
1.38 In 2005, the NSW Law Reform Commission (NSWLRC) published a report entitled
Surveillance: Final Report which proposed a broad legislative approach to regulating
covert and overt forms of surveillance in private and public places.34

1.39 More recently, the NSWLRC released a 27 The Acts define personal information as 33 Australian Government, Australian
recorded information or an opinion about Government First Stage Response to
report (Invasion of Privacy) that examined the an individual, whether true or not, whose the Australian Law Reform Commission
adequacy of NSW personal information and identity is apparent, or can reasonably Report 108: For Your Information:
be ascertained, from the information Australian Privacy Law and Practice (2009).
health information legislation, with a view or opinion: Privacy Act 1988 (Cth) s 3; 34 NSW Law Reform Commission,
to providing an effective framework for the Information Privacy Act 2000 (Vic) s 3. Surveillance: Final Report, Report
28 See WL v La Trobe University [2005] 108 (2005).
protection of individuals’ privacy.35 This report VCAT 2592; Smith v Victoria Police 35 NSW Law Reform Commission, Invasion
also recommended the development of a [2005] VCAT 654; Ng v Department of of Privacy, Report 120 (2009).
Education [2005] VCAT 1054; Re Pasla
statutory cause of action for invasion of privacy. and Australian Postal Corporation (1990)
36 New Zealand Law Commission, Invasion
of Privacy: Penalties and Remedies Review
20 ALD 407; Kiernan v Commissioner
new zealand law commission of Police, NSW Police [2007] NSWADT
of the Law of Privacy Stage 3, Issues Paper
14 (2009) [5.30].
207. See also Office of the Federal Privacy
1.40 In March 2009 the New Zealand Law Commissioner, Plain English Guidelines 37 New Zealand Law Commission, Invasion
of Privacy: Penalties and Remedies:
Commission (NZLC) released an issues paper to Information Privacy Principles 1–3
Review of the Law of Privacy: Stage 3,
(1994) 11–12; Office of the Victorian
on the adequacy of New Zealand’s civil and Privacy Commissioner, Short Guide to the Report 113 (2010).
criminal laws in dealing with invasions of Information Privacy Principles (2006) 13. 38 Select Committee on the Constitution,
29 Large businesses are defined as those House of Lords, Surveillance: Citizens and
privacy. They found a number of significant with a turnover of over $3 million. Privacy the State: Volume1: Report 2nd Report of
gaps in the law.36 Act 1988 (Cth) s 6(D). Session 2008–9 (2009).
30 Privacy Act 1988 (Cth) s 16B; Information 39 Ibid.
1.41 In February 2010 the NZLC published its Privacy Act 2000 (Vic) s 3. 40 See eg, UK Government, Response to the
final report, Invasion of Privacy: Penalties 31 Privacy Act 1988 (Cth ) s 6(1); Information House of Lords Selection Committee on
Privacy Act 2000 (Vic) s 3. the Constitution’s Report Surveillance:
and Remedies, which recommended a 32 Australian Law Reform Commission, For
Citizens and the State (2009).
comprehensive model to reform the gaps Your Information: Australian Privacy Law
and Practice: Volume 1: Final Report 108
identified in the existing law regulating the use (2008).
of surveillance in New Zealand. Central to these
recommendations was the creation of a new
Surveillance Devices Act that would establish
both civil and criminal remedies in relation to
the misuse of visual surveillance, interception
and tracking devices.37
UK house of lords select committee
1.42 In January 2009 the House of Lords Select
Committee on the Constitution released a
report into surveillance.38 Entitled Surveillance:
Citizens and the State, the report made 44
recommendations on issues such as greater
government monitoring of surveillance
(particularly in the private sector), secure
storage of personal data and investment in
technology to help protect privacy.39
1.43 The UK government issued a response to the
report in May 2009 in which it addressed each
of the recommendations. The government
agreed to undertake consultation on a number
of issues, but challenged the need for greater
regulation in the private sector and observed
that it found many of the government’s current
practices to be adequate.40 The UK Home Office
has also established an interim independent
regulator for CCTV in the UK.
25
1
hong kong law reform commission
1.44 The Hong Kong Law Reform Commission (HKLRC) has released a number of
reports considering surveillance related issues. Of particular relevance to our
inquiry is the report Privacy: The Regulation of Covert Surveillance.41 Legislation
enacted in 2006 adopted the recommendations in the HKLRC’s report by
prohibiting covert surveillance without judicial authorisation.42
law reform commission of ireland
1.45 In 1998, the Law Reform Commission of Ireland released a report into
surveillance.43 A parliamentary working group subsequently released another
report on privacy in 2006.44 Some of the recommendations from the surveillance
report informed the drafting of the Criminal Justice (Surveillance) Act 2009 which
provides for the use of covert surveillance by authorisation in relation to criminal
investigations.45
our process
consultation paper
1.46 The commission’s first step was to hold 31 roundtable discussions with
organisations including police, local councils, universities, transport operators,
media, entertainment venues, retailers, courts, security organisations, as well as
representatives of young people, the indigenous community, state government
and other community representatives.
1.47 The purpose of these consultations was to provide the commission with a broad
understanding of the way organisations and individuals use surveillance in public
places and how their use affects people. The consultations also helped us to
understand what ‘surveillance’ and ‘public places’ mean to members of the
community and to gauge their understanding of existing relevant laws.
1.48 In March 2009 we published a Consultation Paper, which was informed by
our consultations as well as extensive secondary research. The paper described
current uses of public place surveillance in Victoria and examined likely future
trends. The paper also explored the concept of privacy, provided an overview
of the relevant law in Victoria and other jurisdictions, and considered the risks
and benefits associated with public place surveillance. Finally, the Consultation
Paper presented a number of options for reform, designed to stimulate public
discussion. We called for submissions and posed 24 questions to guide responses.
These responses informed the recommendations in this report.
final report
1.49 This Final Report is the product of a year-long period of consultation and research
in which we sought feedback on the proposals made in our Consultation Paper,
and information about the scope, nature, and impact of public place surveillance
in Victoria.
Submissions and consultations

1.50 The commission received 44 written submissions in response to our Consultation
Paper from a variety of organisations and individuals, including community
representatives, human rights advocacy groups, legal organisations and users of
surveillance technology.46

1.51 In addition, we visited 18 surveillance users at their premises in order to gain 41 Law Reform Commission of Hong
Kong, Privacy: The Regulation of Covert
a thorough understanding of the way surveillance is used in public places in Surveillance Report (2006).
Victoria. Many of these users have surveillance technology in place that can 42 Interception of Communications and
Surveillance Ordinance 2006 (Hong Kong)
record the images of thousands of people in a day. We viewed the technology pt 2.
used, discussed the individual practices of operators, and examined the protocols 43 Law Reform Commission [Ireland], Privacy:
and procedures in place to protect the integrity of the information collected. Surveillance and the Interception of
Communications LRC 57–1998 (1998).
1.52 We conducted 32 consultations with users of surveillance, advocacy organisations, 44 Ireland, Working Group on Privacy, Report
(2006).
and experts seeking feedback on our proposed reform options.
45 Criminal Justice (Surveillance) Act
2009 (Ireland) ss 7, 8. The Commission
1.53 As well as formal consultations, the commission hosted five forums with groups Publications Library, The Law Reform
who experience public place surveillance, including young people, people Commission of Ireland <www.lawreform.
ie/publications/publications.htm#TABLE_
experiencing homelessness, and culturally and linguistically diverse communities.47 OF_Implementation_of_Commission_Re>
at 12 January 2010.
Consultative committee 46 Submissions are listed in Appendix A and
reproduced at www.lawreform.vic.gov.au.
1.54 In 2009 we established a consultative committee of individuals with different
47 Forums, consultations and site visits and
experiences of public place surveillance to gain responses to our draft forums are listed in Appendix B.
recommendations. Although the committee members provided us with a lot of
useful advice, the commission alone is responsible for the recommendations in
this report.
1.55 The committee members were:
• Louise Connor, Secretary (Victoria), Media and Arts Alliance
• Andy Frances, Manager, Security and Venue Support, Melbourne
Cricket Club
• Leigh Gassner, former Assistant Commissioner, Region 1 (CBD),
Victoria Police
• Moira Paterson, Associate Professor, Monash University Faculty
of Law
• Michael Pearce SC, President, Liberty Victoria
• Bill Penrose, Vice President, Victorian Local Governance Association
• Jen Rose, Manager, Policy and Projects, Youth Affairs Council
of Victoria
• Helen Versey, Victorian Privacy Commissioner
• Dr Deane Wilson, Senior Lecturer in Criminology, Monash University.
outline of this report

1.56 The following chapter describes the major users of surveillance in Victoria
and the purposes of their surveillance activities. In Chapter 3 we provide an
overview of the current law relating to public place surveillance and highlight the
inconsistencies and gaps in the legislative framework.
1.57 Chapter 4 discusses the benefits and risks of surveillance and the rights that
may be affected by its use. When used responsibly, surveillance in public
places can serve important and beneficial social purposes. The commission’s
recommendations aim to preserve these benefits while safeguarding against
potential harm. This chapter also explains the commission’s approach to
regulatory reform.
27
1
1.58 Chapters 5, 6 and 7 contain the commission’s recommendations for the
regulation of surveillance in public places. The central focus is good advice
about best practice. In Chapter 5 we explain our overarching principles that are
designed to guide responsible use of public place surveillance by all users. We
also detail one of our major recommendations—the creation of an independent
S
L
S
regulator to inform and guide users about the practical implementation of these
principles and advise the public about their operation.
L
1.59 Although appropriate guidance about the responsible use of surveillance in
public places is a cornerstone of our recommendations, we do not believe that
guidance alone can protect people from some practices that seriously affect their
privacy. Chapters 6 and 7 deal with additional regulatory measures for particularly
offensive uses of surveillance. S
1.60 Although the SDA is the major piece of legislation that deals with public place
surveillance it was not designed for this purpose. Its primary aim is to prohibit
the use of covert surveillance devices in private places, while also allowing law
L
enforcement agencies to use such devices with judicial authorisation. In Chapter 6
we recommend amendments to clarify, modernise and strengthen the SDA. S
These include refining some of the existing prohibitions and introducing a civil
penalty regime. L
S
1.61 In Chapter 7 we recommend the introduction of two statutory causes of action
for serious invasions of privacy caused by misuse of surveillance devices in public
places. The first deals with misuse of private information, the second with
intrusion upon seclusion. We provide an overview of the current law in Australia
and other comparable jurisdictions, and discuss matters of detail such as the L
S
elements, defences and remedies.
L
S
L
S
L
S
L

2
Chapter 2
Use of Surveillance in CONTENTS
LLANCEPublic Places SURVEILLANCE SURVEILLANCE
30 Introduction
31 Surveillance technology
SURVEILLANCE 32 Major users of public place

surveillance
SURVEILLANCE SURVEILLANCE SURVEILLANCE 43 Conclusion

29
2
Chapter 2 Use of Surveillance in Public Places
introduction
2.1
2.2
This chapter examines the various forms of public place surveillance in Victoria,
who uses it, and why.
There is no single comprehensive source of information about the use of public
place surveillance in Victoria. Therefore, our description has been informed by
the results of our discussions with users of public place surveillance and our
examination of published research. In this chapter we list the major users of public
place surveillance and describe their surveillance practices and the technologies
used. The many important purposes served by public place surveillance—including
safety, crime prevention and control, journalism and entertainment—are outlined
in Chapter 4.
2.3 Government agencies and departments, individuals and private organisations
of all sizes use public place surveillance extensively and its use is increasing.
Victorians can expect to be observed, recorded and tracked while engaging in
daily activities in our streets, shops and major public venues.
2.4 By far the most common form of surveillance is visual surveillance, particularly by
the use of CCTV cameras. As systems are becoming cheaper and easier to install
and use, CCTV is increasingly relied upon by government and private users. There
is also growing use of other surveillance technologies, notably tracking devices,
in Victoria. We provide definitions and descriptions of the various surveillance
technologies in this chapter.
2.5 In our Consultation Paper we discussed some current trends in relation to
surveillance use in Victoria. These are:
• the use of increasingly sophisticated technological devices with
greater capacities
• the decreasing cost of surveillance devices and their greater use by
businesses and individuals
• the increase in mass surveillance that monitors large groups of
people rather than specific individuals
• the widespread use of location and tracking devices
• the increased capacity to store, use and disseminate surveillance
data.1
2.6 There is also a tendency for technologies to converge, allowing for the creation
of devices with increased surveillance capabilities. CCTV, for example, may
be combined with facial recognition technology (described below) to identify
individuals from their images. Another example is modern mobile phones, which
combine telephonic services with GPS tracking software, digital visual and sound
recording capabilities, and connection to the internet. A consequence of the
convergence of surveillance technologies is the greater ability of surveillance users
to compile detailed pictures of members of the public,2 making it increasingly
difficult for individuals to maintain their privacy and anonymity.3

1 See Victorian Law Reform Commission,
surveillance technology Surveillance in Public Places, Consultation
Paper 7 (2009) 26–36.
closed-circuit television (cctv) 2 New Zealand Law Commission, Privacy:
Concepts and Issues: Review of the Law
2.7 A CCTV system is one in which a number of video cameras are connected of Privacy: Stage 1, Study Paper 19
through a closed circuit or loop, and the images taken by these cameras are (2008) 136.
sent to a television monitor or recorder.4 The term ‘closed circuit’ highlights the 3 Kevin Haggerty and Richard Ericson, ‘The
Surveillant Assemblage’ (2000) 51 British
private nature of the system and distinguishes it from television broadcasting Journal of Sociology 605, 619.
from which anyone can receive signals.5 Increasingly, modern CCTV cameras use 4 Benjamin Goold, CCTV and Policing
(2004) 12.
digital technology and are no longer closed circuit but are usually networked
5 Ibid 12.
digital cameras.6 The expression CCTV is still commonly used, however, to refer 6 New Zealand Law Commission, Privacy:
to camera surveillance. Increasingly, CCTV is combined with software capable Concepts and Issues, above n 2, 140 citing
Royal Academy of Engineering, Dilemmas
of ‘smart’ surveillance.7 For example, some CCTV systems can track individuals of Privacy and Surveillance: Challenges of
within a camera image or across multiple screens. 8 Technological Change (2007) 33.
7 Tom Riley et al, ‘Implementing Advanced
global positioning system (GPS) and satellite technology Image Processing Technology in Sensor
Systems for Security and Surveillance’
2.8 Many location devices rely on GPS technology. GPS works by measuring the time Proceedings of SPIE—The International
Society for Optical Engineering: Volume
it takes a signal to travel the distance between a satellite and the device itself. 6741 (2007) 1, 3.
GPS is commonly used in vehicles and handheld objects such as mobile phones9 8 Anton van den Hengel, Anthony Dick and
and personal digital assistants.The nature of the technology means the device Rhys Hill, Activity Topology Estimation for
Large Networks of Cameras, School of
itself can be used as a tracking device.10 Computer Science, University of Adelaide
<www.acvt.com.au/research/surveillance/
tracking mobile phones AVSS06.pdf> at 1 October 2009.
9 In 2008, an estimated 10–20% of mobile
2.9 Every mobile phone has an unchangeable electronic serial number (ESN), which, phones had GPS: Chris Rizos, ‘Location
when combined with a phone number, makes the phone easily distinguishable Based Services and Issues such as Privacy’
(Speech delivered at the You are Where
by a telecommunications service provider, enabling the telephone to be tracked You’ve Been: Technological Threats to
over time.11 GPS applications on mobile phones mean that phones can also be Your Location Privacy Seminar, Sydney, 23
July 2008).
used for location or tracking surveillance.12
10 See eg, Telstra, Whereis Everyone FAQ
<http://everyone.whereis.com/home/
radio frequency identification (rfid) faq/#faq26> at 28 January 2010.
2.10 RFID is another type of tracking device that enables identification of an object. 11 Recent Development, ‘Who Knows
Where You’ve Been? Privacy Concerns
The technology relies on a small transponder, known as a radio frequency Regarding the Use of Cellular Phones as
tag, to transmit and receive radio signals to and from a scanner, known as a Personal Locators’ (2004) 18; Harvard
Journal of Law and Technology 307,
radio frequency reader.13 There are two types of RFID tags: active and passive. 309; Timothy Stapleton, ‘The Electronic
An active RFID tag is powered by an internal source, such as a battery, and is Communications Privacy Act and Cell
Location Data: Is the Whole more than the
constantly functioning. A passive RFID tag is powered by an external source, for Sum of its Parts?’ (2007) 73; Brooklyn Law
example the e-tag reader on Melbourne freeways. Although a passive RFID tag, Review 383, 386.
12 Telstra, above n 10.
such as the e-tag, cannot be used to monitor the location of a vehicle constantly,
13 Privacy Commissioner [New Zealand],
it will identify the tag, and therefore the vehicle, when it is near a reader. In this ‘Tracking Technology on the Move’ (2005)
way this technology can, for example, be used to track a vehicle. 54 Private Word 1.
14 Metlink, Victorian Fares and Ticketing
2.11 Another example of RFID as a surveillance device is the new public transport Manual (myki) (2009) 43 <www.
metlinkmelbourne.com.au/fares-tickets/
ticketing system myki, which uses RFID to allow access to transport. Cards that victorian-fares-and-ticketing-manual-
are not issued on an anonymous basis include details about the card holder. myki/> at 23 November 2009.
15 Crimtrac, Automated Number
There is, therefore, the potential for card holders’ movements to be tracked Plate Recognition <www.
while using the transport system through the records of their card use.14 crimtrac.gov.au/systems_projects/
AutomatedNumberPlateRecognitionANPR.
automatic number plate recognition (anpr) html> at 11 November 2008.
2.12 Another technology that can be used for location and tracking surveillance is
automatic number plate recognition (ANPR). ANPR uses a camera and optical
character recognition software to locate a vehicle’s number plate in an image of
the vehicle and convert the number plate to text.15 The car’s number plate can
be matched to a car registration database to identify the car owner or other
matters of interest.
31
2
body imaging devices and scanners
2.13 Some types of body scanners have recently come into use at international airports
in a number of countries. One type relies on x-ray technology, which has been
used for over 100 years,16 most commonly for medical purposes. Recently, the
Australian Government has trialled the use of body scan x-ray machines as an
alternative to pat down checks to identify items such as weapons or explosives
concealed beneath a passenger’s clothing.17 Another type of body scanner that
was trialled is the millimetre wave scanner, which uses very low-level radio waves
(similar to a radar) to scan the human body. This creates an image that may also
be used to detect objects concealed under an individual’s clothing.18
2.14 Thermal imaging cameras work by detecting and measuring the heat radiating
from an object or person. This type of technology has been used in Australian
airports to identify individuals with higher than normal body temperatures that
may indicate a person suffering from a particular virus, for example, swine flu.19
2.15 Another type of technology is the residue scanner used in some airports and
prisons. It works by blowing air over an individual’s body in order to release small
particles attached to the skin, hair or clothing. The particles are analysed for trace
amounts of explosives or drugs.20
biometric technologies
2.16 Biometrics involves the collection of samples of biological information, such as
fingerprints and face or voice characteristics, for later comparison with samples
provided by the same person, or different individuals, to establish identity.21 An
example of a biometric technology used in combination with camera surveillance
is facial recognition technology, which compares a camera image of an individual’s
face with images held in a database to determine the individual’s identity.
google earth and google streetview
2.17 Google Inc., a publicly-listed US company specialising in internet search
technologies and other web-based services, has developed two popular services
using public place surveillance: Google Earth and Google Streetview. Google
Earth is a free online database of satellite images that provides a bird’s eye view
of a location, searchable by landmark or address.22 Google Streetview provides
a curbside view of streets and other locations. Vehicles with rooftop-mounted
cameras capture images. This application is also free and is searchable by address
or landmark. Streetview provides a higher level of clarity; in some cases it is
possible to identify faces and other identifying features such as number plates. To
address privacy concerns, these features may be blurred.23
major users of public place surviellance

victoria police
2.18 Victoria Police has access to state-of-the-art surveillance technology and its use of
surveillance devices in Victoria is extensive. Police routinely use optical surveillance,
including stationary CCTV systems and hand-held devices, in relation to the
investigation and prevention of crime. Cameras are also fitted to the front and
rear of some metropolitan and regional police vehicles.24 In some instances, video
surveillance is coupled with software to enhance its capabilities. For example, the
Victorian government recently announced its intention to provide funding for
police use of facial recognition software to identify individuals.25

2.19 Police also use listening devices that can be 16 NDT Resource Centre, History of 25 Minister for Police and Emergency
Radiography <www.ndt-ed.org/ Services, ‘Facial Recognition Technology
handheld or installed at specific locations. The EducationResources/CommunityCollege/ will Catch Criminals’ (Press Release,
commission was told that some police officers Radiography/Introduction/history.htm> at 30 April 2007).
10 March 2010. 26 Consultation 20.
record conversations between themselves 17 ‘Australian airport trials full body X-rays’ 27 Surveillance Devices Act 1999 (Vic) ss 6, 7.
and members of the public for evidentiary Herald Sun (Melbourne), 2 October 2008
28 Police must obtain a warrant from a
<www.heraldsun.com.au/lifestyle/health-
purposes.26 Police must obtain a warrant science/airports-trial-full-body-x-rays/story-
magistrate before undertaking this form
of surveillance. Surveillance Devices Act
issued by a judge or magistrate to conduct e6frfhjf-1111117642977> at 20 April
1999 (Vic) s 8.
2010.
covert surveillance of private activities and 18 Site Visit 17.
29 See Victoria Police, Inquiry into Automatic
conversations, unless they are a party to that 19 ABC Radio National, ‘Thermal Imaging
Number Plate Recognition Technology
(2008) <www.parliament.qld.gov.au/
activity or conversation.27 at Airports to Check for Flu Fevers’, AM, view/historical/documents/committees/
1 May 2009 <www.abc.net.au/am/ TSAFE/inquiry/ANPR%20technology/
2.20 Potential suspects may also be tracked through content/2008/s2557794.htm> at Submissions/14.pdf> at 14 January 2010.
28 January 2010.
their mobile phone28 or by ANPR. In 2007 20 IonScan Sentinel II, Global Security
30 ‘Vic Police Trial Hi-Tech Traffic Cameras’,
The Age (Melbourne), 5 September 2009
Victoria Police and VicRoads trialled the use Solutions <www.global-security-solutions. <http://news.theage.com.au/breaking-
com/IonScanSentinel.htm> at 13 October
of ANPR to record the details of vehicles 2009.
news-national/vic-police-trial-hitech-
traffic-cameras-20090905-fbo9.html> at
potentially involved in traffic violations and 21 New Zealand Law Commission, Privacy: 28 January 2010.
other matters of interest.29 By late September Concepts and Issues, above n 2, 148. 31 Victoria Police, ‘Wyndham Police Call Out
22 Google Earth Pro for Business Users, to Local Businesses’ (Press Release,
2009, 316 526 plates had been scanned and Google <www.google.com/enterprise/ 27 August 2008) <www.police.vic.gov.
6079 offences detected.30 Other less common earthmaps/earth_pro.html> at 14 January au/content.asp?Document_ID=16904> at
2010. 13 October 2009.
methods of surveillance, such as drug and
23 Street View FAQ, Google <maps.google. 32 Consultation 22.
explosive-detection dogs, are also used. com.au/help/maps/streetview/faq. 33 Sharing Crime Information
html#howto_report_an_image> at Online, Crimestoppers <www.vic.
2.21 Police are also increasingly using data 14 January 2010. crimestoppers.com.au/articleZone.
provided by other Victorian bodies, including 24 Victoria Police, ‘First in Car Video Vehicles aspx?articleZoneID=11> at 28 January
Launched’ (Press Release, 25 July 2007) 2010.
government departments, local councils, <www.police.vic.gov.au/content.
private organisations and individuals. In some asp?Document_ID=11796> at 28 January
2010.
cases this is provided on an ad hoc basis; in
others, formal agreements are in place. The
collection and subsequent use of these data
frequently falls outside the regulatory regime
designed to deal with police use of surveillance.
2.22 At least one police station has attempted to
simplify the process of locating CCTV footage
from local businesses by asking business
owners to complete a form describing the
CCTV systems they use.31 There are also
some formal agreements in place concerning
police access to surveillance footage between
organisations that operate CCTV systems and
Victoria Police.32
2.23 Victoria Police also funds the Crime Stoppers
Victoria program. Images (either captured by
CCTV or provided by the public) are publicised
in order to elicit information about potential
suspected criminals.33
33
2
corrections victoria
2.24 Corrections Victoria also uses state-of-the art surveillance technology. While much
of its surveillance is not conducted in public places, Corrections Victoria does
track some people in public places under a home detention scheme.34 In some
cases, individuals placed on a home detention order can engage in employment
and some community activities but must wear a tamper-proof electronic tracking
bracelet equipped with an active RFID tag that enables supervising officials to
monitor the individual’s location.35 Before a home detention order can be granted,
the offender must sign an undertaking consenting to be monitored in this way.36
2.25 Since 2005 Corrections Victoria has also used a residue scanner in some prisons.
This machine blows air over an individual to detect trace amounts of explosives
and drugs. Iris scanning equipment was also introduced at the entry and exit of
the Melbourne Assessment Prison in 2005.37
local councils
CCTV
2.26 While the Victorian and federal governments fund some CCTV initiatives, local
councils are the primary government user of CCTV throughout the state.38
2.27 Melbourne City Council has the largest council-operated CCTV network in
Victoria. The network has been in place since 1997,39 and has had 54 cameras
in operation since an upgrade of the system in 2009.40 The cameras operate 24
hours a day, have the capacity to tilt and zoom, and can rotate 360 degrees. They
are placed throughout the city, including in areas known to have high crime rates,
and on some landmark buildings.41 The council also uses portable cameras for
crowd control during major events. These are mounted on poles and removed
within 24 hours.42 In addition, in 2009 the Melbourne City Council began trialling
the use of two CCTV security vehicles that are installed with cameras that record
a 360 degree view from the vehicle as it drives through the streets.43
2.28 Melbourne City Council has established detailed protocols that govern its use of
the CCTV system. These note the council’s commitment to privacy and include
procedures relating to security and access to footage, release of information and
provisions for sharing some types of information with Victoria Police. An external
consultant evaluates the policy every three years.44 Council’s use of CCTV is also
subject to scrutiny by an audit committee made up of senior staff and external
members. The committee provides oversight for council’s operations, including
storage, security, accuracy of documentation relating to CCTV footage and the
provision of footage to Victoria Police.45
2.29 A number of other metropolitan and regional councils also use CCTV cameras
in central business districts and high-crime areas. The arrangements regarding
the ownership and operation of systems vary between councils. One local
council has established a partnership with an incorporated body (made up of
local businesses owners and a councillor) to install CCTV systems in a shopping
strip and other identified areas.46 Footage from the systems is streamed live into
the local police station and monitored by an officer on duty.47 Procedures for
the operation and management of the CCTV system are set out in guidelines
agreed to by the incorporated body and Victoria Police. These stipulate that
the incorporated body is responsible for all costs and liability arising from the
operation of the CCTV cameras.48

2.30 The commission is aware that there are a number of other models in place for 34 Approximately 35–50 people are subject
to home detention every year in Victoria:
the management of council systems. In one central business district council Melbourne Centre for Criminological
staff monitor footage from the central police station. Footage is monitored at Research and Evaluation for Corrections
Victoria, Department of Justice, Home
busy times (ie weekend nights) and during special events only. Senior officers Detention in Victoria: Final Evaluation
are involved in the training of council staff, and staff may contact police if they Report (2006) 8.
35 Home Detention, Department of Justice
become aware of an incident occurring. Footage is also recorded and available (Vic) (2008) <www.justice.vic.gov.au/
for police viewing at any time.49 Other councils contract security companies to wps/wcm/connect/DOJ+Internet/Home/
Sentencing/Home+Detention/> at
operate their systems.50 28 January 2010.
36 Surveillance Devices Act 1999 (Vic), s
GPS 8(1)(a); Corrections and Sentencing Acts
(Home Detention) Act 2003 (Vic),
2.31 Local councils also use GPS to monitor activities within their council area. The s 18ZZ(1)(b).
media have reported that local councils have, for example, used GPS and Google 37 Selma Milovanovic, ‘Blown Away by
Earth to ‘check on illegal pools, buildings and vegetation clearing’.51 As long ago New Technology’, The Age (Melbourne),
30 December 2005, 4.
as 2001, at least one local council was using GPS to identify potential fire hazards 38 Adam Sutton and Dean Wilson, ‘Open-
on private residential property in its district.52 Street CCTV in Australia: The Politics
of Resistance and Expansion’ (2004) 2
public housing Surveillance and Society 310, 313.
39 Site Visit 5.
2.32 The Housing and Community Building Division of the Department of Human 40 Safe City Cameras, City of Melbourne
Services is responsible for the wireless CCTV network in operation at high- <www.melbourne.vic.gov.au/
CommunityServices/CommunitySafety/
rise public housing estates. The network was initially established to monitor Pages/SafeCitycameras.aspx> at
equipment and manage maintenance issues, but has since been expanded to 28 January 2010.
41 Site Visit 5.
include camera surveillance. Cameras are located in lifts, foyers, car parks, plant
42 Consultation 10.
rooms and on external walls. Some cameras are strategically placed in areas 43 Jason Dowling, ‘CCTV Security Vehicles to
where criminal activity, such as drug dealing, may occur. Although the cameras Patrol CBD Streets’, The Age (Melbourne),
10 November 2009 <www.theage.com.
are not hidden, there are no signs notifying people of their use. In some instances au/national/cctv-security-vehicles-to-
covert cameras have been installed upon police request when there has been a patrol-cbd-streets-20091110-i6e8.html>
at 28 January 2010.
strong suspicion of criminal activity. 53
44 Consultation 10.
2.33 All CCTV footage is fed to an offsite control room monitored by a contracted 45 Site Visit 5.
security company. At larger housing estates there are also onsite control rooms 46 Consultation 22.
47 Consultation 22.
and security staff who monitor footage in real time. Footage is stored at the
48 Lilydale Centre Safe Committee
central control room for 28 days and at the onsite control rooms for five days. Incorporated, Lilydale (2006)
Cameras that are able to pan, tilt and zoom can be manoeuvred by onsite security Memorandum of Understanding
between Lilydale Centre Safe Committee
personnel and by staff at the central control room.54 Incorporated, Lilydale and Victoria Police,
provided by Victoria Police 12 February
universities and tafes 2010.
49 Consultation 27.
2.34 The commission consulted Victorian universities in our preliminary consultation
50 Jeff Jones, ‘CCTV for Dandenong North
period. All universities consulted by the commission use CCTV to monitor their Shops’, The Dandenong Leader,
campuses for the purpose of protecting students, staff and property. Some 12 October 2009 <http://dandenong-
leader.whereilive.com.au/news/story/cctv-
institutions use surveillance cameras to monitor the movements of any individual for-dandenong-north-shops> at
12 March 2010; Consultation 10.
on the campus late at night. All universities and TAFEs the commission consulted
51 Lachlan Heywood, ‘Public Told not to Fear
have internal policies regarding the storage, access and use of footage obtained Council Spies in the Sky’, The Courier Mail
by CCTV.55 (Brisbane), 19 September 2003, 18.
52 Sue Cant, ‘Satellites Help Council Spot
2.35 Universities and TAFEs can also track student and staff movements through their Fire Hazards’, The Age (Melbourne),
16 January 2001, 2.
university identity cards. These cards hold information about users and provide
53 Site Visit 18.
access to particular campus locations, which enables individuals who have used 54 Site Visit 18.
the card to be potentially located or subsequently tracked.56 55 Roundtable 10.
56 Roundtable 10.
transport
2.36 Transport operators rely heavily on surveillance technologies—including visual,
audio and tracking devices. Specific uses are outlined below.
35
2
Trains
2.37 CCTV is used in and around metropolitan and regional train stations for a number
of purposes, including monitoring train movements, passenger safety, and
deterring and investigating crime. The number of cameras at a particular station
can be significant—Flinders Street Station, for example, has approximately 150
cameras and Southern Cross Station 180, all operating 24 hours a day. Most
cameras show only a fixed view and only a few have zoom, pan and tilt functions.
Some stations erect signs notifying of the surveillance.57
2.38 Cameras operate inside most train carriages on metropolitan train lines.58 Footage
cannot be viewed from train stations but can be viewed by the driver. When
a duress alarm sounds in a carriage, the driver is alerted to the view in that
carriage.59
2.39 At larger stations the station’s footage is monitored from an onsite control
room;60 on suburban lines footage for several stations is monitored from a
central suburban station.61 Control room operators and Department of Transport
personnel can view footage live, but do not have access to recorded footage;
recorded footage from cameras at train stations and inside trains is accessible
only to management centre staff.62 The commission was told that police requests
for footage was increasing. There is a formal process within the department for
dealing with all requests for footage.63
2.40 Myki, the new public transport ticketing system, uses passive RFID in plastic cards
to allow access to transport. The myki system ‘will provide passengers with smart
travel cards that can calculate and automatically deduct fares from pre-paid
accounts’.64 Except when issued on an anonymous basis, use of these cards could
potentially enable a person’s movements through the transport system to be
tracked and recorded.65
Trams
2.41 CCTV is used for operational and safety purposes on the Melbourne metropolitan
tram network. For example, footage from VicRoads traffic control cameras is
provided to Yarra Trams to monitor traffic conditions.66 Specific incidents can be
highlighted to better enable staff to monitor and manage incidents. CCTV also
operates on board newer Melbourne trams.67 These cameras are mounted on the
front and sides of trams and, in a bid to improve passenger safety, capture images
of cars that illegally drive past stationary trams.68
2.42 GPS tracking devices have also been installed in trams to allow trams to be
tracked in real time and for information to be relayed to passengers waiting at
tram stops.69 The tracking system also communicates with VicRoads to ensure
that trams are given priority at certain intersections across Melbourne.70 Trams
can also be tracked by individuals through an iPhone application.71
Buses
2.43 Some metropolitan buses have CCTV cameras that capture images inside buses.
These generally record while the bus is in operation. More modern buses also
have sound recording capabilities that record while the bus is in operation.
Footage and recordings may be reviewed at a later date in relation to a specific
incident. Some buses display signs notifying of surveillance.72 GPS tracking
systems are also used on some metropolitan bus routes. The information is used
by VicRoads to request priority at traffic lights and to provide accurate wait times
at bus stops.73

57 Site Visits 2, 4.
Taxis 58 The commission was informed in a 2007
2.44 All taxis that operate in the metropolitan, outer-suburban and Geelong taxi zones Roundtable consultation that regional
train services do not have internal CCTV
are required by law to have cameras installed to capture images inside the vehicle. because these are staffed by conductors:
Taxis must display notices inside and outside the taxi to notify of the presence of Roundtable 3.
59 Site Visit 4.
the cameras.74 Footage can be viewed only by transport safety officers. Footage
may be released to a driver or passenger only in relation to an incident reported
61 Site Visit 4.
to police and upon written request from a police officer.75 62 Site Visit 4.
2.45 Approximately 90 per cent of Victorian taxis have GPS installed. In addition to 63 The Department of Transport process for
determining police requests for footage
assisting drivers to determine which route to follow, the system can also assist in is known as the ‘Keeper of Evidence’
process. See Site Visit 4.
emergencies. Once a driver triggers a duress alarm, the base operators can track
64 How Will I Use Myki?, myki <www.myki.
the vehicle. A one-way voice channel is also activated so that the conversation com.au/use-myki_your-key.aspx> at
inside the taxi can be heard at base.76 12 November 2008.
65 Metlink, above n 14.
2.46 Some local councils have established taxi ranks at which a customer’s 66 Yarra Trams, ‘Think Tram Takes a Closer
identification information is collected and photo identification may be scanned.77 Look at the Tram Network’ (Press Release,
3 February 2009) <www.yarratrams.com.
Privacy Victoria has expressed concern regarding the privacy implications of this au/desktopdefault.aspx/tabid-105/99_
practice and as a result some local councils have abandoned it.78 read-1748/> at 28 January 2010.
67 Stephen Moynihan, ‘Stop! Tram-Stop
Roads Sneaks will be in the Picture’, The Age
(Melbourne), 2 July 2007 <www.theage.
com.au/news/national/snap-tramstop-
Cameras sneaks-targetted/2007/07/01/118322896
0462.html?s_cid=rss_age> at 28 January
2.47 There are between 600 and 700 cameras used to monitor and manage traffic 2010.
on Victoria’s roads, including cameras owned by VicRoads and private toll road 68 Ibid.
operators Citylink and Eastlink. The majority of these cameras can be tilted and 69 Think Tram Projects, VicRoads
<www.vicroads.vic.gov.au/Home/
zoomed. VicRoads and private operators continuously monitor footage from PublicTransportAndEnvironment/
inhouse control rooms.79 VicRoads has at least two operators in a control room at PublicTransportOnRoads/TramProjects/
ThinkTramProjects.htm> at 14 January
all times. Once alerted to an incident or traffic situation, operators use cameras to 2010.
determine an appropriate traffic management response.80 70 Ibid.
71 Clay Lucas, ‘iPhone App Tracks Tram in
2.48 VicRoads generally does not record footage. Where footage is recorded, it is Real-Time’, The Sydney Morning Herald
usually for operational purposes such as reviewing the effectiveness of a change (Sydney), 15 June 2009 <www.smh.com.
au/digital-life/mobiles/iphone-app-tracks-
in a traffic management plan. There are no signs notifying the public that cameras trams-in-realtime-20090615-c8ut.html>
are in operation.81 at 28 January 2010.
72 Forum 3.
2.49 Footage can be provided to Victoria Police if requested for criminal investigations. 73 SmartBus Infrastructure, Department of
CityLink also provides real-time webcam images of major Melbourne roads on Transport (Vic) <www.transport.vic.gov.
au/web23/Home.nsf/AllDocs/90A14F13E
its website in order to enable individuals to view traffic conditions.82 VicRoads is ABE24E4CA25766600140C50?OpenDoc
considering the use of similar webcams.83 ument> at 28 January 2010.
74 Submission 3, Victorian Taxi Directorate,
Tracking devices Function and Performance Specification for
a Taxi Safety Camera System 2009 (2009).
2.50 Toll collecting systems on Citylink and Eastlink use RFID technology in e-tag 75 Site Visit 8.
transponders for billing and payments. When a car carrying an e-tag passes a 76 Site Visit 8.
reader on the freeway, a fee is automatically charged to the individual’s account 77 Office of the Victorian Privacy Commissioner,
Annual Report 2008–2009 (2009) 12;
without the car having to stop. If no e-tag registers as a vehicle passes, cameras Photo Identification Scheme for Geelong
Taxis (2008) ABC News <www.abc.net.
are triggered to capture images of the front and the back of the vehicle. The au/news/stories/2008/06/16/2275860.
information is downloaded and optical character recognition software is used htm> at 14 January 2010.
to read and record licence plate details. In most situations a toll is automatically 78 Office of the Victorian Privacy
Commissioner, above n 77, 12.
charged.84 79 Site Visit 1.
2.51 Where photographs do not provide a clear image, an operator will review the 80 Site Visit 9.
81 Site Visit 1.
footage to determine the licence details and may contact VicRoads for
82 See Citylink <www.citylink.com.au> at
registration details for billing purposes.85 VicRoads also uses fixed and mobile 28 January 2010.
cameras with ANPR technology to detect traffic infringements such as running 83 Site Visit 1.
red lights and speeding.86 84 Site Visit 9.
85 Site Visit 9.
86 Site Visit 1.
37
2
Monitoring heavy vehicle movements
2.52 Heavy freight vehicles are restricted from using some roads because their size and
mass can damage infrastructure or threaten safety. The Intelligent Access Program
(IAP) is a voluntary program that allows controlled vehicles access to additional
roads on the condition they install a GPS monitoring device and allow tracking
by the Transport Certification Authority. In 2009 over 3000 vehicles voluntarily
registered for involvement in the IAP across Australia.87
Airports
2.53 Airports use a number of surveillance technologies. For example, since 2005 all
Australian passports have included embedded RFID chips88 that can be read by an
airport scanner. The chip contains information that includes the holder’s photograph,
name, signature, gender, date of birth, passport number and expiry date.89
2.54 In 2008 the SmartGate system was introduced at Melbourne international
airport.90 The system, which relies on facial recognition technology, enables
Australian and New Zealand citizens to process themselves through passport
control.91 If the machine does not detect a match, the individual must go through
manual processing with a customs official.92
2.55 In 2008 the federal government trialled the use of x-ray and millimetre-wave body
scanning systems at Melbourne, Sydney and Adelaide airports.93 These scanners
were used as an alternative to a pat-down search to see through passenger
clothing to determine whether items such as weapons or explosives had been
concealed. In February 2010 the federal government released plans to install x-ray
body scanners in international airports as part of increased security measures.94
2.56 Another technology sometimes used in airports is thermal imaging, which is used
to identify people with higher than normal body temperatures.95 In 2009, thermal
imaging machines were installed in Australian international airports to detect
passengers arriving from overseas who may have had the swine flu virus.
Port of Melbourne
2.57 The Port of Melbourne Authority operates 180 CCTV cameras to maintain
employee health and safety and to protect against crime, including theft and
terrorist acts. Some cameras are positioned around bulk liquid terminals; others
overlook the beach and the pier. Footage is relayed to a central control room
and is continuously monitored by contracted security personnel. Footage is also
provided to the Water Police. There are no signs notifying the public of the use of
surveillance cameras in the area.96
major public events: concerts and sports
2.58 The commission consulted with two major sporting venues in Melbourne: Etihad
Stadium (Etihad) and the Melbourne Cricket Ground (MCG). Both rely heavily
on surveillance technology for the management of crowds, the protection of
people and property, and for responding to claims about injuries sustained at
the venue.97
2.59 The MCG, which holds approximately 100 000 people, has 400 cameras in
operation.98 Etihad is much smaller, with a capacity of 58 000 people and 63
cameras.99 Both organisations are considering upgrading their systems in the
near future. Some cameras pan the crowd and several monitor the perimeter of
the premises. A powerful camera is used by the MCG to monitor crowd flow
from nearby train stations and traffic flow outside the MCG. It can zoom up to
1.5 kilometres.100 There are signs in both stadiums notifying patrons of the use
of these systems.101

2.60 On event days security staff and police officers operate the control rooms. The 87 Consultation 2.
88 The Australian ePassport (2009)
police have a leading role in directing camera operation.102 Footage is recorded Department of Foreign Affairs and Trade
and stored for up to 30 days.103 The MCG’s policy is to release footage only to <www.dfat.gov.au/dept/passports/> at
28 January 2010.
police, insurers, and in response to a subpoena or court order. When members of
89 Ibid.
the public request footage a court order is requested.104 To date Etihad has not 90 New Smartgate Technology at Melbourne
received a request for footage from a member of the public but suggested that if Airport (2008), Melbourne Airport
<www.melbourneairport.com.au/
it did, it would probably refer the matter to the police.105 About-Melbourne-Airport/Media/Media-
releases/Media-Release-Archive/2008/
2.61 Other security measures used at the MCG include the use of a duress alarm by NEW-SMARTGATE-TECHNOLOGY-AT-
cashiers. The alarm is linked to the CCTV system. Pressing the alarm button will MELBOURNE-AIRPORT.html> at
28 January 2010.
ensure that the camera records and retains footage from 15 seconds before the 91 Peter Hawkins, ‘Sydney Airport Opens
alarm was activated. The MCG also uses biometric fingerprint scanning for the SmartGate’, Sydney Morning Herald
(Sydney), 27 September 2009 <www.
purpose of controlling contractors’ access to the ground.106 smh.com.au/travel/travel-news/sydney-
airport-opens-smartgate-20090926-g742.
2.62 The Melbourne Sports and Aquatic Centre (the Centre) is another major user of html> at 28 January 2010.
surveillance. The Centre operates 86 cameras across its premises, although not 92 ABC Radio, ‘New Airport Security System
in change rooms and toilets. Footage can be viewed in the surveillance control Tested in Sydney’, The World Today,
29 January 2003 <www.abc.net.au/
room and the Duty Manager’s office, although neither is continuously monitored. worldtoday/stories/s772230.htm> at
Footage, which is routinely viewed for safety purposes, includes monitoring the 28 October 2009.
93 ‘Australian airport trials full body X-rays’,
number of people using the pool and the location of staff. Recorded footage is above n 17.
also used to investigate criminal offences, including break-ins and theft. Signs 94 Anthony Albanese MP, Minister for
notifying people that cameras are in operation are strategically placed to deter Transport, ‘Strengthening Aviation
Security’ (Press Release, 9 February 2010).
criminal activity.107 95 ABC Radio National, ‘Thermal Imaging
at Airports to Check for Flu Fevers’, AM,
2.63 The Centre stores footage for approximately 14 days after it is recorded and 1 May 2009 <www.abc.net.au/am/
provides footage to the police upon request. The Centre has not received any content/2008/s2557794.htm> at
28 January 2010.
requests for footage from members of the public and stated that if it did, it would 96 Roundtable 10.
be unlikely to provide it.108 97 Site Visits 6, 14.
98 Site Visit 14.
crown casino 99 Site Visit 6.
2.64 Melbourne’s Crown Casino (the Casino), which employs approximately 6000 100 Site Visit 14.
staff, is visited by over 30 000 people every day. Crown Casino has one of the 101 Site Visits 6, 14.
most advanced, complex and comprehensive video surveillance systems currently 102 Site Visit 14.
in use in Victoria. The primary component of this system is CCTV.109
104 Site Visit 14.
2.65 The Casino has an inhouse surveillance technical team that is responsible for 105 Site Visit 6.
maintaining the equipment, sourcing new equipment and keeping up to date 106 Site Visit 14.
107 Site Visit 12.
with technology. As well as performing those general duties these staff are also
108 Site Visit 12.
responsible for developing inhouse surveillance technologies to suit the 109 Site Visit 13.
Casino’s needs.110 110 Site Visit 13.
111 Site Visit 13.
2.66 In the past five years Crown Casino’s CCTV system has undergone technological
112 Site Visit 13.
improvement, particularly in relation to the resolution quality of images and its
digital recording capabilities. The Casino relies on the system to identify and
prevent illegal activity, monitor cash handling and gambling activities, and to
ensure patron and staff safety by responding quickly to incidents as they arise.111
2.67 The Casino operates a large number of cameras within its premises. Many of the
cameras have the capacity to pan, tilt and zoom. Often several cameras target
one area, such as a gaming table. Some cameras are equipped with both audio
and visual recording capabilities. There are others that begin recording only when
motion is detected in a given area. In premium gaming rooms there is additional
surveillance. In most of these areas access is restricted either by use of swipe cards
or by a licensed officer at the door.112
39
2
2.68 A number of staff continuously monitor the CCTV system. The cameras are
monitored in real time but footage can also be viewed retrospectively. The
Casino’s Security Communications Centre and the Victorian Commission for
Gambling Regulation can also access surveillance footage in real time.113
2.69 Crown Casino has installed software that is used in conjunction with some of
its cameras for surveillance purposes. For example, people-counting technology
(which does not identify individuals) is used in conjunction with tracking software
to determine the number of people entering the Casino. The Casino has also
conducted trials of facial recognition technology but has found it to be of
limited use.114
2.70 Crown Casino’s nightclubs use identification scanning technologies at their
entrances to record the details of the patrons entering. The use of this technology
has assisted police to apprehend at least one serious offender. Police often alert
the Casino to people who are of interest to their investigations. The identity
scanner can be used in conjunction with CCTV to identify such individuals and
monitor their movements.115
the hospitality industry
2.71 CCTV is widely used in the hospitality industry. Some licensed venues must
have CCTV cameras that operate to proscribed standards and security staff as a
condition of their licence,116 while other licensed venues choose to have security
cameras even though it is not a condition of their licence. In addition to cameras
within the premises, some venues also have cameras to view adjacent areas,
such as footpaths and carparks. Footage from these cameras can be viewed in
real time for crowd control purposes and to prevent criminal behaviour, and can
also be viewed later to investigate crime. In early 2009 some interstate hospitality
venues trialled the use of small cameras worn by security staff that record sound
as well as pictures.117
2.72 Some nightclubs operate other forms of surveillance, including identification
scanners and facial recognition technology.118 Identification scanners record the
image and written details on an individual’s driving licence or other identity card,
including their name and address.119 Facial recognition software scans patrons’
faces as they enter the nightclub and matches those images against a database of
photos. In this way the software can be used to identify patrons who have been
previously banned from a venue.120 The software can be shared among venues.
shopping centres and retailers
2.73 Many shopping centres and retail outlets such as service stations, supermarkets
and department stores rely on CCTV for crime prevention and detection.121
Large shopping centres typically use sophisticated CCTV systems that have many
cameras operating both inside and outside the centre. Cameras tend to be
concentrated on entrances and areas where there have been crime problems.
One consultation participant mentioned that as handbag theft was especially
common in food courts, there are more cameras in these areas.122 Service stations
use CCTV to deter theft and record the details of individuals who leave the service
station without paying for petrol so they can be provided to police.123 One large
shopping centre reported that its security personnel carry CCTV-captured images
of people who have been banned from the centre so they can be identified
and removed.124

2.74 RFID tracking is also used by some businesses for stock control. In this system, a 113 Site Visit 13.
114 Site Visit 13.
tag is attached to a pallet when it leaves the manufacturer and a scanner reads it
115 Site Visit 13.
at each stage of its journey to the distribution centre.125 Some large retail chains 116 Consultation 6; Liquor Control Reform
are considering attaching RFID chips to individual boxes or items so they can be Regulations 1999 (Vic).
tracked to the store.126 117 Jacqui Jones, ‘Little Camera a Big
Deterrent’, The Herald (Sydney),
2.75 Passive RFID devices are also used as anti-theft mechanisms in many clothing and 23 February 2009 <www.theherald.
com.au/news/local/news/general/little-
department stores. A tag on a garment triggers an alarm if the item is taken past camera-a-big-deterrent-in-late-night-
readers that are usually situated at the entrance of the store. As a rule, tags can violence/1440566.aspx#> at 28 January
2010.
only be removed by the use of a device at the point of sale. 118 Consultation 27; Site Visit 10.
119 Site Visit 10.
the media 120 Site Visit 10.
2.76 Media organisations use various surveillance devices in public places in order to 121 Consultations 1, 7.
carry out news gathering. For example, media organisations routinely use cameras 122 Consultation 1.
and audio devices to record events and interviews. Unlike many organisations the 123 Consultation 7.
124 Consultation 1.
media’s use of surveillance does not generally occur on an ongoing basis in only
125 Teresa Scassa et al, ‘Consumer Privacy
one place, but typically for a short time in a given location. and Radio Frequency Identification
Technology’ (2005–6) 37 Ottawa Law
2.77 Sometimes media organisations receive CCTV footage of alleged criminal conduct Review 215, 219.
from third parties. This occurred in relation to the shooting in Melbourne’s CBD 126 Consultation 16.
in June 2007.127 Generally, media organisations will attempt to corroborate such 127 Consultation 12.
128 Consultations 12, 14.
footage and will be careful to consider its likely authenticity.128
129 Consultations 12, 14.
2.78 Media groups told us they generally use surveillance equipment in an overt and 130 Consultation 12.
obvious way.129 When, for example, a news crew from a television station arrives 131 Submission 19.
132 How It Works, Bluetooth Advertising
at the scene of an event it is usually in a marked vehicle, with crew wearing <www.bluetoothadvertising.com.au/
clothing and carrying equipment marked with the logo of the television station.130 how_it_works.html> at 28 January 2010.
133 Examples, Bluetooth Advertising <www.
marketing companies bluetoothadvertising.com.au/examples.
html> at 28 January 2010.
2.79 Some organisations use surveillance technologies for marketing purposes. One 134 Consultation 31.
example uses mobile phones with Bluetooth functionality. Location-based services 135 Private Security Regulations 2005 (Vic)
detect that a phone is in a certain vicinity (for example, a shopping centre) and, at reg 13.
the customer’s request, send information about nearby services.

2.80 The same process is also used for advertising.131 A Bluetooth transmitting device
is placed in a location near a retailer or institution wanting to advertise to people
nearby. The device sends a message to all Bluetooth-enabled mobile phones
within 100 metres of the device and the mobile phone user either accepts or
declines the offer from their phone.132 For example, pubs and clubs can advertise
drink specials or cinemas can send people the latest movie session times.133
private investigators
2.81 Private investigators routinely engage in public place surveillance to carry out
their work. While insurance companies are the primary source of work for
private investigators, private clients also request investigations about matters
such as matrimonial and child support issues. Footage is usually obtained in
a covert manner, for example, from inside cars or from public places using
concealed cameras. The commission was informed that toilets, change rooms,
homes and private yards are considered no go areas for surveillance by private
investigators.134
2.82 Private investigators must hold a licence. An application for a licence must include
details of the applicant’s qualifications and any training or experience relevant to
each private activity to be authorised under the licence.135
41
2
public and private insurers
2.83 Public and private insurers hire private investigators to engage in some public
place surveillance in order to determine the validity of some insurance claims.136
The surveillance might include, for example, the use of an optical recording device
in a public location, such as a park, to record the claimant’s behaviour in order to
test the truth of his or her statements.137
2.84 The commission was told that while the use of covert surveillance is an important
part of the insurance industry’s ability to investigate claims, it is not a particularly
common activity.138 Private insurance companies advise policy holders in their
disclosure statements that surveillance may be used to assess the veracity of any
claim and to investigate possible fraud.139
the private security industry
2.85 Many surveillance systems in Victoria are managed and monitored by private
security companies. The commission met a number of organisations (including
government departments, local councils and private organisations) that outsource
all or part of their security needs to private security firms.140 There are many different
arrangements. Some private security companies manage operations from their
own premises using their own equipment (often for a number of clients) and
others work at the venue itself under direction of venue staff. In contrast, some
other organisations employ inhouse security staff to manage their operations.141
2.86 Contracted security personnel are required to undergo training,142 which must
be provided by a registered training organisation at Certificate II or Certificate III
level.143 A Certificate III course typically takes three to four weeks to complete.144
Some people we consulted raised concerns that, in contrast, inhouse security staff
are not required to have any certification or training.145
aged care
2.87 RFID and GPS technology is used as a method to monitor the location of aged
care patients suffering from dementia and other memory-affecting conditions.
Alzheimer’s Australia recommends that carers consider the use of a tracking
device to monitor a person with dementia so that the individual can freely go for
walks on their own but are also easily located if they become lost or disoriented.
A device can be worn around the wrist, waist or neck. Some devices can be
activated only by the person wearing the device, while others enable an external
party to monitor the whereabouts of the person wearing the device.146
personal uses
2.88 Individuals use surveillance devices in public places for a number of reasons. Optical
surveillance devices, such as cameras and video recorders, are commonplace.
The Victorian Association of Photographic Societies noted in its submission that
photographers frequently use photography for legitimate purposes.147
2.89 It is also now possible for individuals to track each other. Telstra, for example, offers a
service that locates any Telstra mobile phone and marks the approximate address
on an online map.148 Although this service can be used only with the consent of
the phone user and the person receiving the alert, there are other covert phone
tracking services offered in Australia. One Sydney-based company offers ‘mobile
phone monitoring software’ that can be downloaded onto a mobile phone
without notification to the owner and can covertly copy, record and send to
another account all communications made to and from that phone.149 This type of
service has been marketed, for example, to people to monitor their spouse. There
have also been newspaper reports of an increasing number of parents tracking
their children, including by mobile phone tracking systems.150

2.90 The commission was also told about the importance of surveillance technologies 136 Consultation 31.
137 Submission 16.
in family disputes.151 Family violence victims, for example, have used covert
138 Submission 16.
surveillance to document abuse.152 Another group of individuals who routinely 139 Submission 16.
use surveillance devices are people involved in protests. Visual recording is used by 140 See eg, Consultation 10; Site Visits 15, 18.
activists ‘where there are community concerns that violence may occur’.153 141 See eg, Site Visits 1, 9, 12, 16.
142 Consultation 17.
2.91 There are some reports of individuals using surveillance for criminal purposes. 143 Eg, the International Security Training
There have been several cases of people using hidden cameras to record images Company offer a Certificate III in Security
Operations (control room operator).
up the skirts of unsuspecting women.154 This practice, known as ‘upskirting’, is
144 Consultation 18.
now a specific criminal offence.155 Another disturbing use of surveillance devices 145 Consultations 17, 18.
by individuals is the practice of recording violent attacks on mobile phones 146 Alzheimer’s Australia, Safer Walking for
and then distributing that footage. This practice, known as ‘happy slapping’, is People with Dementia: Approaches and
Technologies, Update Sheet 16 (April
discussed in greater detail in Chapter 4. 2009) 3, 4.
147 Submission 15.
2.92 Surveillance in public places can also be used to facilitate other crimes. For
148 Telstra, above n 10.
example, covert surveillance cameras have been installed at ATMs to capture PIN 149 Mark Russell, ‘I’ll Be Watching You:
numbers for the purpose of stealing from individual accounts. Warning on Mobile Phone Tracking’,
The Age (Melbourne), 8 March 2009;
Spousebusters, Latest News (2008)
conclusion <www.hotfrog.com.au/Companies/
Spousebusters/FullPressRelease.
2.93 Because public place surveillance is widespread in Victoria, we can no longer aspx?id=15557> at 11 March 2009.
assume that activities performed in public places will pass unobserved and 150 ‘Parents Using Private Investigators on
Kids’, The Advertiser (Adelaide),
unrecorded. Government, private organisations and individuals are all extensive 2 December 2009 <www.news.com.au/
users of public place surveillance. Although there are many different practices, we national/parents-use-private-investigators-
on-kids/story-e6frfkvr-1225805939625>
found some common themes. at 28 January 2010.
151 Submissions 14, 34, 40.
• Many agencies and organisations use CCTV. Although most systems
152 Submission 40.
can record large amounts of data, many are not actively monitored. 153 Submission 34.
• The sophistication of modern CCTV systems is increasing rapidly, 154 For recent examples see: ‘Man Charged
Over “Upskirting” Photos’, Sydney
including considerable pan, tilt and zoom capabilities, and an ability Morning Herald (Sydney), 6 September
to film in colour or use an infrared light. 2009 <www.smh.com.au/national/
man-charged-over-upskirting-photos-
20090906-fccu.html> at 28 January
• Contracted security companies are responsible for monitoring many 2010; Karen Matthews, ‘Upskirting
of the CCTV systems that are actively monitored. Case Delayed’, Geelong Advertiser
(Geelong), 24 September 2009
• Because many cameras are small and are often placed in obscure <www.geelongadvertiser.com.au/
article/2009/09/24/106781_news.html>
positions, and because not all users of CCTV erect signs, it is likely at 28 January 2010
that many people do not know that their image is being recorded as 155 Summary Offences Act 1966 (Vic) div 4A.
they go about their daily lives.
• Smart surveillance, such as facial recognition technology, is not yet
in widespread use.
• In general, surveillance users appear to avoid private areas, such as
toilets and change rooms.
• Surveillance data, such as CCTV footage, is generally shared only
with police and insurers.
• While some organisations have good internal policies concerning
their use of surveillance equipment, others do not.
43
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3
Chapter 3
Current Law CONTENTS
SURVEILLANCE SURVEILLANCE SURVEILLANCE46 Introduction
46 Surveillance devices

legislation
47 Information privacy
SURVEILLANCE SURVEILLANCE SURVEILLANCE50

legislation
Regulation of specific

aspects of public place
surveillance
51 Common law protections
SURVEILLANCE SURVEILLANCE SURVEILLANCE51 The Victorian Charter

of Human Rights and

52
Responsibilities
Non-binding guidelines,
SURVEILLANCE SURVEILLANCE SURVEILLANCE standards and policies

53 Regulation in other

jurisdictions
54 Conclusion
SURVEILLANCE SURVEILLANCE SURVEILLANCE55 Table 1: Legislation and

binding codes relating to
public place surveillance

57
in Victoria
Table 2: Major non-binding
SURVEILLANCE SURVEILLANCE SURVEILLANCE instruments relating to

public place surveillance

in Victoria

45
3
Chapter 3 Current Law
introduction
3.1 Most public place surveillance in Victoria takes place without any regulation.
Although some of the most offensive forms of surveillance are prohibited, the
two main relevant bodies of law—the Surveillance Devices Act 1999 (Vic) (SDA)
and Commonwealth and Victorian privacy laws1—have limited application
to public place surveillance. While some businesses, such as licensed venues,
taxis and casinos, operate under industry specific laws that regulate their use
of surveillance, these laws are not consistent. The result has been piecemeal
regulation. This chapter outlines the regulatory regime governing surveillance in
public places and highlights the gaps in the law. Table 1, on page 55, sets out all
legislation relating to public place surveillance in Victoria.
surveillance devices legislation

3.2 The SDA was enacted in 1999 to replace listening devices legislation and to
address the increasing use of different forms of surveillance, such as visual
surveillance and tracking devices. When introducing the Act to parliament, the
Attorney-General noted that it was designed to provide ‘stringent safeguards to
protect individual privacy’.2
3.3 The SDA prohibits some uses of four types of surveillance devices: listening
devices, optical surveillance devices, tracking devices and data surveillance
devices. The SDA regulates the use of these four types of surveillance device
differently. For example, it is illegal, subject to a few exceptions, to use a
listening device, such as a tape recorder, to record a private conversation in any
public place without consent.3 On the other hand, a person may use an optical
surveillance device, such as a CCTV system or a camera, to record any activity
outside a building without consent, but must obtain consent to record a private
activity indoors.4
3.4 Under the Act it is also illegal to use some devices to track a person’s movements
without their consent. Only those devices for which the primary purpose is to
track are regulated by the Act.5 Other devices that can track, such as mobile
phones with GPS capabilities, are not regulated.6 We discuss the details of these
provisions in Chapter 6.
3.5 The SDA also prohibits a person from communicating or publishing details of a
private conversation or activity without consent,7 and it regulates the use of data
surveillance devices such as spyware.8 Breaches of the Act are punishable by up to
two years imprisonment and/or 240 penalty units (currently $28 036.80).9
3.6 Law enforcement officers must apply to a Supreme Court judge or magistrate10
for a warrant to covertly install and use a surveillance device.11 The Act also allows
senior police officers to issue emergency authorisations in some exceptional
circumstances to engage in surveillance activities that would otherwise be
unlawful.12 It appears that this procedure is rarely used.13 It is an offence to use,
communicate or publish the information collected by a surveillance device in these
circumstances, except for law enforcement purposes.14
3.7 Each law enforcement agency must keep detailed records of the types of devices
used, the people involved in executing the warrant, and submit a report to
the judge or magistrate who issued the warrant. The agency must also submit
an annual report to the Minister that includes the number of applications for
warrants and the number of ensuing arrests and prosecutions.15

3.8 The Special Investigations Monitor (SIM) is a 1 Privacy Act 1988 (Cth), Information 17 Surveillance Devices Act 1999 (Vic)
Privacy Act 2000 (Vic). s 30P(2).
statutory agency with a range of monitoring 2 Victoria, Parliamentary Debates, 18 Surveillance Devices Act 1999 (Vic) s 5.
functions concerning bodies that deal with Legislative Assembly, 25 March 1999, 192 19 See definition of ‘relevant offence’:
(Jan Wade).
police corruption and organised crime. It also Surveillance Devices Act 2004 (Cth) s 6.
3 Surveillance Devices Act 1999 (Vic) s 6. 20 See Telecommunications (Interception
has an oversight role in relation to police use 4 Surveillance Devices Act 1999 (Vic) ss 3, 7. and Access) Act 1979 (Cth); Australian
of surveillance devices under the Act. The SIM 5 Surveillance Devices Act 1999 (Vic) s 8. Security Intelligence Organisation Act
1979 (Cth); Aviation Transport Security
must inspect the records of law enforcement 6 See definition of ’tracking device’:
Act 2004 (Cth); Crimes Act 1914 (Cth).
Surveillance Devices Act 1999 (Vic) s 3.
agencies to determine compliance with the Act 21 Personal information is defined as being
7 Surveillance Devices Act 1999 (Vic) s 11.
and report to parliament and to the Minister 8 Surveillance Devices Act 1999 (Vic) s 12.
information or an opinion (including
information or an opinion forming part
on its findings.16 The SIM is entitled to access This type of surveillance is not within the of a database), recorded in any form
scope of this reference. See Chapter 1. and whether true or not, about an
documents and to request information from individual whose identity is apparent, or
9 Surveillance Devices Act 1999 (Vic) ss 6,
agency staff members about an investigation.17 7, 8. Under these sections, a corporation can reasonably be ascertained, from the
is liable to a maximum penalty of 1200 information or opinion. See Privacy Act
3.9 The SDA does not apply to the Australian penalty units (currently $140,184). This 1988 (Cth) s 6 (read in conjunction with
section 16B); Information Privacy Act
Federal Police and other Commonwealth amount is current until 30 June 2010.
2000 (Vic) s 3.
10 An application can be made to a Supreme
agencies,18 which are regulated by the Court judge in relation to any surveillance 22 Small businesses—those with an annual
Surveillance Devices Act 2004 (Cth). That Act device, and to a magistrate in relation turnover of less than $3 million—are
to the use of a tracking device only: exempt from the laws: Privacy Act 1988
establishes procedures for law enforcement Surveillance Devices Act 1999 (Vic) (Cth) s 6D(1)–(2).
officers to obtain warrants for offences against s 15(3). 23 Privacy Act 1988 (Cth) div 3.
a Commonwealth law or a state law that has a 11 Surveillance Devices Act 1999 (Vic) Pt 4. 24 Privacy Act 1988 (Cth) s 13A, sch 3.
12 Surveillance Devices Act 1999 (Vic) Pt 4 25 Information Privacy Act 2000 (Vic),
federal aspect.19 In addition, there are a number div 3. sch 1. These laws are supplemented
of other Commonwealth laws that authorise 13 Consultations 16, 25. by the Health Records Act 2001 (Vic)
which regulates the handling of health
the use of surveillance for law enforcement 14 Surveillance Devices Act 1999 (Vic)
information by Victorian government
ss 30E, 30F.
purposes and for the protection of national agencies and by private sector bodies
15 Surveillance Devices Act 1999 (Vic) ss operating within Victoria.
security.20 These are discussed in detail in our 30M, 30K, 30L.
Consultation Paper. 16 Surveillance Devices Act 1999 (Vic) ss
30P(1), 30Q.
information privacy legislation

3.10 The Privacy Act 1988 (Cth) (Privacy Act)
and the Information Privacy Act 2000 (Vic)
(IPA) regulate the handling of ‘personal
information’21 by government agencies and
large private organisations.22 The Privacy Act
contains principles that cover the operations
of Commonwealth government agencies23
and slightly different principles that apply to
large private sector organisations.24 The IPA
has a set of principles that cover Victorian
government agencies.25 These are modelled
on the Commonwealth principles for large
organisations.
3.11 All three sets of privacy principles deal with the
collection, accuracy, security, use and disclosure
of personal information. They also stipulate
that collectors of personal information must set
out their practices in a public document and
provide access and collection rights. In addition,
the principles covering large organisations and
Victorian agencies have provisions relating to
the creation of unique identifiers, anonymity
and pseudonymity, restrictions on transborder
dataflows, and ‘sensitive’ personal information.
47
3
3.12 In its 2008 report, For Your Information: Australian Privacy Law and Practice,
the ALRC noted that ‘Australian privacy laws are multi-layered, fragmented and
inconsistent’.26 The ALRC recommended the creation of a unified set of privacy
principles to apply to all federal government agencies and the private sector,27
and to state and territory government agencies through an intergovernmental
cooperative scheme.28 In its response in October 2009 the Commonwealth
Government committed to enacting a single set of Privacy Principles, noting that
this ‘will mark a significant step toward consistent privacy laws in Australia’.29
The government noted that the ultimate aim was to have a ‘consistent set of
privacy standards for the Commonwealth, state and territory public sectors, as
well as the private sector’ and that additional national consistency issues would be
considered in the government’s second stage response.30
information privacy laws and public place surveillance
3.13 Although information privacy laws regulate some types of public place
surveillance31 there are a number of reasons why many of the more common
public place surveillance activities fall beyond the reach of these laws. First,
information privacy laws do not apply to all members of the community; they
apply only to government agencies and businesses with a gross annual turnover
of more than $3 million. Individuals and smaller businesses are not covered.32 In
2008 the ALRC recommended the removal of the small business exemption in the
Privacy Act.33 The government will consider this recommendation in its second
stage response to the ALRC report.34
3.14 Secondly, as information privacy laws cover only information that is recorded,
they do not apply to any surveillance activities that do not involve the recording
of information.35
3.15 Thirdly, information privacy laws apply only to ‘personal information’; that is,
information collected about an individual ‘whose identity is apparent, or can
reasonably be ascertained, from the information or opinion’.36 The extent to
which surveillance-captured information falls within this description is not clear.
The Victorian Civil and Administrative Tribunal (VCAT) has found a surveillance-
captured image to be ‘personal information’ in cases where the image was
directly linked to other information about an individual.37 This may occur when
someone who knew the individual held the image, or when the image was
accompanied by the individual’s name. Thus, a CCTV-recorded image of a person
may be ‘personal information’ if, for example, that person’s image is also on the
organisation’s security blacklist.
3.16 The limited case law does not provide much guidance about the circumstances
in which a person’s identity ‘can be reasonably ascertained’. In one case it
was decided that this may extend to circumstances in which it is possible for
an organisation to cross-match information within its own databases, but not
necessarily with an external database to which it has access.38 Therefore, if
someone’s identity can be ascertained by reference to external material that may
be obtained without an obscure or lengthy process, the information may be
‘personal information’ covered by Commonwealth and state privacy laws.39
3.17 Although some surveillance-captured information is about identified individuals,
it is unlikely that the majority of images captured on a public place CCTV system
constitute ‘personal information’ for the purposes of information privacy laws.
This is because the identity of many of the individuals depicted cannot be
‘reasonably ascertained’ from the footage.

3.18 The ALRC has recommended clarifying the 26 Australian Law Reform Commission, For 37 See Smith v Victoria Police [2005] VCAT
Your Information: Australian Privacy Law 654; Ng v Department of Education
scope of the definition of ‘personal information’ and Practice: Volume 1: Final Report 108 [2005] VCAT 1054; Re Rasla and
by narrowing it, saying: (2008) [3.1]. Australian Postal Corporation (1990) 20
27 Ibid 110–111. ALD 407; Kiernan v Commissioner of
Police, NSW Police [2007] NSWADT 207.
a great deal of information is about 28 Ibid 25, rec 3–4.
38 WL v La Trobe University [2005] VCAT
potentially identifiable individuals 29 Australian Government, Australian
2592.
Government First Stage Response to
but where identifying the individuals the Australian Law Reform Commission 39 Christa Ludlow, ‘“The Gentlest of
Predations”: Photography and Privacy
would involve unreasonable expense or Report 108: For Your Information:
Law’ (2006) 10 Law Text Culture 135,
Australian Privacy Law and Practice
difficulty, and is unlikely to happen, the (2009) 13. 145–6 discussing Police Force of Western
Australia v Ayton [1999] WASCA 233.
ALRC is of the view that the information 30 Ibid 13.
40 Australian Law Reform Commission,
is not ‘personal information’ for the 31 See WL v La Trobe University [2005]
above n 26 [6.57].
VCAT 2592; Smith v Victoria Police
purposes of the Privacy Act.40 [2005] VCAT 654; Ng v Department of 41 Ibid rec 6.1.
Education [2005] VCAT 1054; Re Pasla 42 Including the APEC Privacy Framework,
3.19 The ALRC recommended that the definition of and Australian Postal Corporation (1990) the OECD Guidelines, the Council of
personal information should be amended to be 20 ALD 407; Kiernan v Commissioner Europe Convention and the EU Directive;
of Police, NSW Police [2007] NSWADT Australian Law Reform Commission,
information about an ‘identified or reasonably 207. See also Office of the Federal Privacy above n 26 [6.53].
identifiable individual’ (emphasis added).41 Commissioner, Plain English Guidelines 43 Australian Government, above n 29, 24.
to Information Privacy Principles 1–3
This would bring it in line with international (1994) 11–12; Office of the Victorian
44 Privacy Act 1988 (Cth) sch 3; Information
Privacy Act 2000 (Vic) sch 1.
standards and precedents.42 The government Privacy Commissioner, Short Guide to the
45 Australian Government, above n 29, 25.
Information Privacy Principles (2006) 13.
has accepted this recommendation.43 32 Privacy Act 1988 (Cth) ss 6(1), 7; 46 Ibid 24.
Information Privacy Act 2000 (Vic) ss 9, 47 Privacy Act 1988 (Cth) s 36(1); Information
3.20 The Commonwealth government also 17(2). Privacy Act 2000 (Vic) s 25(1).
accepted the ALRC’s recommendation that the 33 Australian Law Reform Commission, 48 Office of the Federal Privacy
above n 26, rec 39–1.
definition of ‘sensitive information’ (a kind of Commissioner, The Operation of the
34 Australian Government, above n 29, 14. Privacy Act Annual Report 1 July 2008–
personal information given extra protection 30 June 2009 (2009), 6, 54.
35 Privacy Act 1988 (Cth) s 16B; Information
under privacy laws)44 be changed so that it Privacy Act 2000 (Vic) s 3. 49 Office of the Victorian Privacy
Commissioner, Annual Report 2008–9
unequivocally includes biometric information.45 36 Privacy Act 1988 (Cth ) s 6(1); Information
(2009) 22–3.
Privacy Act 2000 (Vic) s 3.
Therefore, in the future, organisations that
capture biometric information through public
place surveillance will have to comply with
information privacy laws if this legislation
is enacted.
3.21 The commission is of the view that the extent
to which surveillance-captured information is
governed by information privacy law requires
clarification. The Commonwealth Government
accepted the ALRC’s recommendation that
the Federal Privacy Commissioner develop and
publish guidance on the meaning of ‘identified
or reasonably identifiable individual’.46 The
Victorian Privacy Commissioner should be
encouraged to liaise with the Federal Privacy
Commissioner in order to ensure a consistent
response to this complex issue.
enforcement of information privacy laws
3.22 The Federal and Victorian Privacy
Commissioners have the power to receive
complaints about bodies that may have
contravened information privacy laws.47 The
Federal Privacy Commissioner received 1089
new complaints in 2008–9.48 The Victorian
Privacy Commissioner received 88 new
complaints in 2008–9.49
49
3
3.23 The Federal Privacy Commissioner can investigate a complaint, including by
way of obtaining information and documents and examining witnesses.50 The
Commissioner can make a non-binding order for the payment of damages and
institute court proceedings to enforce a determination.51 The government recently
accepted the ALRC’s recommendation that the Commissioner should be granted
additional powers, including the power to seek civil penalties for serious or
repeated breaches of the Privacy Act.52
3.24 The Victorian Privacy Commissioner can investigate and conciliate a complaint.53
Conciliation may involve an undertaking by one of the parties to take
some action, including the provision of compensation or an apology.54 The
Commissioner can serve a compliance notice when there has been a ‘serious or
flagrant contravention’ of the IPA or an organisation has committed a breach of
the Act at least five times within the previous two years.55 It is an offence not to
comply with a compliance notice.56 To date the Commissioner has issued two
compliance notices.57
3.25 If conciliation fails, the Victorian Privacy Commissioner may refer a complaint to
VCAT at the request of the complainant.58 The Minister may also refer a complaint
directly to VCAT if he or she considers that the complaint ‘raises an issue of important
public policy’.59 When VCAT finds that a complaint is legitimate, it may make a
number of orders. These include restraining the respondent from repeating or
continuing the act or payment of compensatory damages up to $100 000.60
regulation of specific aspects of public place surveillance

3.26 Some of the most offensive forms of surveillance and behaviours accompanying
surveillance are separate criminal offences. There are, for example, Victorian and
Commonwealth laws dealing with child pornography,61 stalking62 and harassment
(including by the use and dissemination of an image).63 Since 2007 there has also
been a law that prohibits ‘upskirting’.64
3.27 There are also some laws that regulate the use of surveillance by specific
industries and organisations. The Private Security Act 2004 (Vic) imposes a
competency requirement on private investigators and private security officers that
includes completing approved training.65 Training can comprise knowledge of the
law relevant to surveillance, including the storage and protection of information
gathered.66
3.28 The Casino Control Act 1991 (Vic) has specific laws governing the installation and
operation of security cameras. The Act requires clubs to develop procedures for
their use,67 and establishes the Victorian Commission for Gambling Regulation as
the oversight body for the operation of security cameras in gaming clubs.68 The
Liquor Control Reform Act 1998 (Vic) provides that installation of security cameras
may be a condition of a liquor licence. There may also be conditions about the
quality of images and modes of operation.69
3.29 There are also laws that make it illegal to drive a taxi not fitted with a functioning
camera and to interfere with such a camera.70 It is also illegal to download, print
or disclose any images or other data from a taxi camera without authorisation.71

50 Privacy Act 1988 (Cth) ss 40, 44, 45. 67 Casino Control Act 1991 (Vic) s 122(1)(r).
common law protections 51 Privacy Act 1988 (Cth) ss 52(1)(B)(iii), 55A. 68 Casino Control Act 1991 (Vic) s 59(2)(b).
3.30 As well as the laws made by Commonwealth, 52 Australian Government, above n 29, 12. 69 Liquor Control Reform Act 1998 (Vic)
53 Information Privacy Act 2000 (Vic) s 34. s 18B.
state and territory parliaments, Australia has The Commissioner also has the power 70 Transport (Taxi-Cabs) Regulations 2005
a system of common law that is developed to decline, dismiss, refer or conciliate the (Vic) regs 15, 22.
complaint in certain circumstances. See
though decisions of the courts. The common Information Privacy Act 2000 (Vic) ss 29,
71 Transport Act 1983 (Vic) s 158B–C.
law regulates some surveillance activities, 30, 33, 34A. 72 An action for trespass requires showing
there was a direct interference with
but does so indirectly when protecting other 54 See eg, Complainant X v Contracted the plaintiff’s land; an action for
Service Provider to a Department [2005] nuisance requires showing some indirect
interests, such as those in property. VPrivCmr 6, where the respondent agreed interference with the plaintiff’s right
to pay the complainant compensation to use and enjoy their land. Danuta
3.31 In some instances a person can take action for for humiliation and distress, to formally Mendelson, The New Law of Torts (2007)
trespass or nuisance to protect their privacy apologise, and to destroy all surveillance- 117, 529.
collected information it held regarding the
if surveillance activities interfere with their complainant. 73 Raciti v Hughes (1995) 7 BPR 14 837. See
also Stoakes v Brydes [1958] QWN 5;
interest in land.72 A person may, for example, 55 Information Privacy Act 2000 (Vic) s 44(1). Khorasandjian v Bush [1993] QB 729.
bring a trespass action to prevent other people 56 In the case of a body corporate the 74 Grosse v Purvis [2003] QDC 151;
offence attracts 3000 penalty units; in any Jane Doe v Australian Broadcasting
from entering his or her land to engage in other case 600 penalty units: Information Corporation [2007] VCC 281.
surveillance activities. A person may also bring Privacy Act 2000 (Vic) s 48.
75 The term ‘public authority’ is defined
57 Office of the Victorian Privacy
a nuisance action to prevent someone from Commissioner, Report 03.06 Mr C’s Case
broadly in the Charter of Human Rights
and Responsibilities Act 2006 (Vic) s 4.
persistently conducting video surveillance of his (2006) 47; Office of the Victorian Privacy It includes police, local councils and
Commissioner, Report 01.06 Jenny’s Case
or her property.73 Importantly, the actions of (2006) 79.
private entities that have functions of
a public nature.
trespass and nuisance provide limited protection 58 Information Privacy Act 2000 (Vic) s 37. 76 Charter of Human Rights and
in relation to public place surveillance because 59 Information Privacy Act 2000 (Vic) s 31(1). Responsibilities Act 2006 (Vic) s 38(1).
only owners of private land can bring these 60 Information Privacy Act 2000 (Vic) ss 43(1) 77 Charter of Human Rights and
(a). Responsibilities Act 2006 (Vic) s 13(a).
actions before a court. 61 Crimes Act 1958 (Vic) ss 68–70; Criminal 78 International Covenant on Civil and
Code Act 1995 (Cth) sch [474.19]. Political Rights, opened for signature
3.32 Although two Australian trial courts have 62 Crimes Act 1958 (Vic) s 21A. 16 December 1966, 999 UNTS 171, art
recognised a right to sue for an invasion 63 Criminal Code Act 1995 (Cth) sch
17 (entered into force 23 March 1976).
79 Guidelines suggest that surveillance that
of privacy,74 there are no decisions of the [474.17].
enables a public authority to monitor or
Australian High Court or intermediate appellate 64 Summary Offences Act 1966 (Vic) div
trace the movements of a person within
4A. Penalties include three months
Victoria should act as a policy trigger for
courts that have confirmed the existence of imprisonment for observing a person’s
consideration of the right to freedom
genital or anal areas from beneath and
this right. This issue is discussed in detail in two years imprisonment for visually
of movement: Human Rights Unit,
Department of Justice [Victoria], Charter
Chapter 7. capturing or distributing images of a
of Human Rights and Responsibilities:
person’s genital or anal region: Summary
Guidelines for Legislation and Policy
Offences Act 1966 (Vic) ss 41A, 41B
the victorian charter of human rights and 41C.
Officers in Victoria (2008).
and responsibilities 65 Private Security Act 2004 (Vic) ss 25(3),

182.
3.33 The Charter of Human Rights and 66 See Australian School of Security and
Investigations, Certificate III in Investigative
Responsibilities Act 2006 (Vic) (the Charter) Services (2009) <www.trainingschool.
makes it unlawful for public authorities75 to act com.au/certificate3.html> at 26 October
2009.
in a way that is incompatible with the human
rights contained in the Charter.76
3.34 The Charter right of most relevance to public
place surveillance is the right to privacy in
section 13—the right for a person ‘not to
have his or her privacy, family, home or
correspondence unlawfully or arbitrarily
interfered with’.77 This section is modelled on a
similar provision in the International Covenant
on Civil and Political Rights (ICCPR)—a treaty to
which Australia is a party.78 Section 12 of the
Charter, which refers to the right to freedom of
movement, is also relevant.79
51
3
3.35 There has not been any judicial consideration of the scope of the right to
privacy in section 13 of the Charter. However, the United Nations Human Rights
Committee (the Human Rights Committee), the body charged with monitoring
implementation of the ICCPR, has recognised that the right to privacy may be
breached through some surveillance practices.80 Likewise, the European Court of
Human Rights, in considering the right to privacy under the European Convention
on Human Rights, found invasions in relation to publication of photographs of a
celebrity81 and television broadcast of CCTV street footage.82
3.36 Draft guidelines prepared by the Victorian Department of Justice (DOJ Draft
Guidelines),83 to assist with implementation of the Charter identify public place
surveillance as a possible policy trigger for consideration of the right to privacy.
Two forms of surveillance are listed:
• surveillance of persons for any purpose (such as CCTV)
• surveillance or other monitoring where recorded personal
information is collected, accessed, used or disclosed.84
limits on the right to privacy under the charter
3.37 The Charter recognises that the right to privacy is not absolute. Section 13 of
the Charter prohibits interferences with the right to privacy only if they are
unlawful or arbitrary. The term ‘arbitrary’ has not yet been considered by a
court in Victoria. The Human Rights Committee has said that an interference is
not arbitrary if it is ‘reasonable’,85 that is, proportionate to the end sought and
necessary in the circumstances.86
3.38 In order to demonstrate that surveillance is reasonable, guidelines prepared by the
Department of Justice say that a public authority using surveillance must be able
to demonstrate that the limitation on privacy ‘is justified in the circumstances’.87
The guidelines also suggest that
• the purported purpose of the surveillance must at minimum be a
societal concern that is pressing and substantial and this is more
than just an effort to achieve a common good88 and
• the purpose of surveillance would need to relate to an area of
public or social concern that is important, and not trivial. Economic
considerations alone (other than a serious fiscal crisis) will almost
never be important enough to justify a limitation to a right.89
3.39 In addition, any right under the Charter may be limited by the application
of another right. For example, although the use of a surveillance device may
interfere with the right to privacy, that activity may also be an exercise of the right
to freedom of expression set out in section 15 of the Charter.90 Section 7(2)—the
general limitations clause—of the Charter is designed to assist in resolving conflict
between human rights. For example, in determining if the right to privacy can be
reasonably limited in order to exercise the right to freedom of expression, it would
be necessary to consider a number of factors, including the importance of the
right to freedom of expression in the particular context.91 The right to privacy,
and other rights potentially affected by public place surveillance, are discussed
more in Chapter 4.
non-binding guidelines, standards and policies

3.40 Because few laws regulate surveillance in public places, users of surveillance
generally look to advisory guidelines and industry standards, or devise their own
internal policies and procedures, to determine which surveillance practices are
permissible and which are unacceptable.

3.41 A number of non-binding guidelines, standards 80 Including telephone tapping and 93 Australian Institute of Criminology,
interference with the correspondence Considerations for Establishing a Public
and polices have been developed, particularly of prisoners: Sarah Joseph et al, The Space CCTV Network (2009).
covering common forms of surveillance. For International Covenant on Civil and 94 Roundtable 20.
Political Rights: Cases, Materials and
example, the Federal and Victorian Privacy Commentary (2nd ed) (2004) 492.
95 Victorian Law Reform Commission,
Commissioners have written advisory guidelines 81 Von Hannover v Germany 59320/00 Paper 7 (2009), 113–6.
[2004] VI Eur Court HR 294 [61].
about the application of privacy law, some 96 See Listening Devices Act 1992 (ACT);
82 Peck v United Kingdom 44647/98 [2003] Invasion of Privacy Act 1971 (Qld);
of which have relevance to public place I Eur Court HR 44. Listening Devices Act 1991 (Tas).
surveillance.92 The Australian Institute of 83 Human Rights Unit, Department of Justice 97 Surveillance Devices Act 2007 (NSW);
[Victoria], above n 79.
Criminology also recently developed guidelines Surveillance Devices Act 2007 (NT);
84 Ibid 81. Listening and Surveillance Devices Act
for the use of public place CCTV.93 Some 85 Human Rights Committee, General 1972 (SA); Surveillance Devices Act
government departments and local councils Comment 16 (Twenty-third session, 1998 (WA).
1988). Compilation of General Comments 98 Privacy and Personal Information
have developed their own internal protocols, and General Recommendations Adopted Protection Act 1998 (NSW); Australian
particularly for their use of CCTV. These by Human Rights Treaty Bodies, UN Doc Capital Territory Government Service
HRI/GEN/1/Rev.6 at 142 (2003) [4]. (Consequential Provisions) Act 1994
generally include who can access, download 86 Toonen v Australia, Human Rights (Cth); Information Act 2002 (NT);
and copy footage and how this should be done, Committee, Communication no Information Standard 42—Information
488/1992, UN Doc CCPR/C/50/ Privacy (IS 42), issued by the Queensland
as well as how footage should be securely stored. D/488/1992 (31 March 1994) [8.3]. Department of Innovation and
Information Economy under the Financial
3.42 Guidelines for compliance with legislation have 87 Human Rights Unit, Department of Justice
Management Standard 1997 (Qld);
[Victoria], above n 79, 42.
also been developed at an industry level. For 88 Ibid 43.
PC012 – Information Privacy Principles
Instruction, Government of South
example, the Australian Institute of Petroleum 89 Ibid 43. Australia (1992). The Information Privacy
and the Federal Police have developed Bill 2007 (WA) was introduced into the
90 ‘Every person has the right to freedom of
Western Australian Parliament in March
expression which includes the freedom
national guidelines for petrol service station to seek, receive and impart information
2007. The Bill has not yet passed through
both houses of the Western Australian
use of surveillance cameras.94 In addition, and ideas of all kinds, whether within or
Parliament.
outside Victoria’: Charter of Human Rights
many individual users of surveillance in public and Responsibilities Act 2006 (Vic) s 15(2).
places told the commission that they follow 91 Human Rights Unit, Department of Justice
internal policies and practices in relation to [Victoria], above n 79, s 2.2.
92 See eg, Office of the Federal Privacy
the collection and storage of footage, and its Commissioner and Human Rights
provision to third parties. Examples of major and Equal Opportunity Commission,
Covert Surveillance in Commonwealth
relevant guidelines, standards and policies are Administration: Guidelines (1992); Office
provided in Table 2 on page 57. These are of the Victorian Privacy Commissioner,
Mobile Phones with Cameras Info Sheet
discussed in detail in our Consultation Paper.95 05.03 (2003).
regulation in other jurisdictions

other australian jurisdictions
3.43 All Australian states and territories have
legislation that regulates the use of surveillance
devices, although some jurisdictions deal only
with the use of listening devices.96 NSW, the
Northern Territory, South Australia and Western
Australia all have laws that extend to devices
other than listening devices, as in Victoria.97
These Acts are similar to the SDA, but there
are some important distinctions. These are
discussed in Chapter 6.
3.44 Similarly, each Australian state and territory
regulates the management of personal
information by public authorities through
either a legislative regime or an administrative
scheme.98 The regulation of the handling
of personal information in other Australian
jurisdictions is discussed in detail in our
Consultation Paper.
53
3
other countries
3.45 Public place surveillance is more directly regulated in some other countries than
it is in Victoria. In the UK,99 New Zealand,100 Canada,101 Ireland,102 Norway103 and
the Netherlands104 surveillance practices are regulated through data protection
or privacy laws. In a recent development, the UK Minister for Policing announced
the creation of a new National CCTV Oversight Body and appointed an interim
CCTV regulator. The regulator will work with the National CCTV Strategy Board to
develop recommendations about the use of CCTV in public places.105
3.46 Other countries, such as Sweden,106 Denmark,107 and France,108 have separate
laws that specifically regulate surveillance in public places. In addition, some
countries have created a right to sue for invasion of privacy, either through the
courts or by legislation. These models are discussed in Chapter 7.
conclusion
3.47 Although the practice of surveillance in public places continues to grow in
Victoria, the law has not kept pace with the expanded capabilities and uses of
surveillance devices. Devices have become increasingly affordable, available and
sophisticated. The two major bodies of law regulating public place surveillance—
the SDA and information privacy laws—are limited when it comes to public place
surveillance because they were not specifically designed to regulate this activity.
3.48 The development of laws to cover particularly offensive forms of surveillance (such
as upskirting and surveillance related to child pornography), and to regulate some
industries (for example, casinos and bars), has been an attempt to address some
of the limitations in the current regime. The result has been piecemeal regulation.
Victorians do not have laws of general application, based on a set of guiding
principles, that seek to balance the competing interests at stake when surveillance
devices are used in public places.

99 Information Commissioner’s Office [UK],
table 1: legislation and binding codes relating to public place CCTV Code of Practice (revised ed, 2008)
surveillance in victoria <www.ico.gov.uk/upload/documents/

library/data_protection/detailed_specialist_
guides/ico_cctvfinal_2301.pdf> at
13 January 2009.
100 Privacy Commissioner [New Zealand],
Application to public place Privacy and CCTV: A guide to the
Legislation Users covered
surveillance Privacy Act for businesses, agencies and
organisations (2009) <www.privacy.
org.nz/privacy-and-cctv-a-guide-to-the-
Regulates the collection, use, privacy-act-for-businesses-agencies-and-
storage and disclosure of ‘personal organisations> at 26 October 2009.
information’ about individuals, Commonwealth 101 Privacy Act RS C 1985 c P-21; Personal
Privacy Act 1988 (Cth) Information Protection and Electronic
including surveillance-captured government agencies Documents Act RS C 2000 c 5.
information that is recorded and and large businesses 102 See Office of the Data Protection
in which a person is potentially Commissioner, Ireland, What
Issues Surround the Use of CCTV?
identifiable. <www.dataprotection.ie/viewdoc.
asp?DocID=642> at 19 January 2009.
Establishes procedures for law 103 Act of 14 April 2000, No 31 relating to
enforcement officers to obtain the processing of personal data (Personal
Surveillance Devices Act warrants for the installation and use Commonwealth and Data Act) (Norway).
2004 (Cth) of surveillance devices in relation to state law enforcement 104 College Bescherming Persoonsgevens, If
You Record People on Video Camera Fact
the investigation of certain offences; officers Sheets 20A (2005), 20B (2005).
regulates the use and disclosure of 105 Briefing 15.12.09: National CCTV
information collected. Oversight Body, The National CCTV
Strategy Board, Home Office <www.
crimereduction.homeoffice.gov.uk/cctv/
Prohibits interception of cctv_oversight_body_b.pdf> at 20 January
telecommunications systems and 2010.
access to stored communications 106 Electronic Privacy Information Center and
Telecommunications Privacy International, Privacy and Human
without a warrant in most
(Interception and Access) All Rights 2006: An International Survey of
circumstances. Establishes Privacy Laws and Developments (2007).
Act 1979 (Cth)
procedures for the issuing of 107 Ibid 402.
warrants for national security and 108 Marianne Gras, ‘The Legal Regulation of
law enforcement activities. CCTV in Europe’ (2004) 2 Surveillance &
Society 216, 222–3.
Gives the Victorian Commission for
Gambling Regulation control over
Casino Control Act 1991 the operation of security cameras
Gaming venues
(Vic) ss 59(2), 122(1)(r) at gaming venues in Victoria and
requires that it develop procedures
for their use.
Makes it unlawful for public

authorities to act in a way that
is incompatible with human
Charter of Human Rights rights listed in the Charter,
Victorian Government
and Responsibilities Act including the right not to have
agencies and contracted
2006 (Vic), in particular privacy arbitrarily interfered with.
service providers
ss 7, 13 Requires any interference (such as
through surveillance, recorded or
unrecorded) to be demonstrably
justified.
Prohibits the production of child

Crimes Act 1958 (Vic) s 68 All
pornography.
Crimes Act 1958 (Vic)

Prohibits stalking. All
s 21A
55
3
Legislation
Application to public place
surveillance
Regulates the collection, use and
disclosure of ‘personal information’
Users covered
Information Privacy Act (other than health information) Victorian Government

2000 (Vic) about individuals, including agencies and contracted
surveillance-captured information service providers
that is recorded and in which a
person is potentially identifiable.
Regulates the handling of health

Victorian Government
Health Records Act 2001 information. Contains a set of
agencies and private
(Vic) Health Privacy Principles (HPPs)
health service providers
based on the NPPs.
Prohibits, in different circumstances,

listening and optical surveillance
devices to monitor private
conversations and activities,
and the use of tracking devices. Everyone, other than
Surveillance Devices Act
Establishes exceptions, for example Australian Federal
1999 (Vic)
for authorised law enforcement Police and some other
activities. Prohibits the use of Commonwealth agencies
data surveillance devices by law
enforcement officers in most
circumstances unless a warrant is
obtained.
Provides that installation of security

Liquor Control Reform Act cameras may be a condition for a
Liquor venues
1998 (Vic) s 18B liquor licence, and standards on their
quality and operation may apply.
Summary Offences Act

Prohibits upskirting. All
1966 (Vic) div 4A
Summary Offences Act Prohibits indecent, offensive, or

All
1966 (Vic) s 17 insulting behaviour in public.
Provides that a requirement of being

granted a private security licence is
Private security
Private Security Act 2004 the successful completion of training
individuals and
(Vic) s 25 (3) in relation to each activity for which
businesses
the licence is granted (including
private investigation).
Requires that taxis be fitted with

Transport (Taxi-Cabs) surveillance cameras and that
Regulations 2005 (Vic) the installation be approved by a Taxi operators and drivers
ss 15, 22 regulator. Prohibits interference with
the cameras.
Makes it a condition of a taxi

licence that equipment capable
Transport Act 1983 (Vic) of transmitting images from a
Taxi operators and drivers
s 144 surveillance camera or making
an audio recording cannot be
unlawfully installed in a taxi.

Legislation Users covered
surveillance
Binding codes Users covered
surveillance
Substantially similar to the National
Biometrics Institute
Privacy Principles (NPPs) under the
Biometrics Institute Privacy members who have
Privacy Act 1998 (Cth), but tailored
Code (Cth) agreed to be covered by
to organisations using or planning to
the Code
use biometrics.
Substantially similar to the NPPs, but Association of Market

Market and Social Research
tailored to the market and social and Social Research
Privacy Code (Cth)
research context. Organisations members
Not necessarily substantially similar

to the NPPs. Generally require a
public interest justification to breach
Signatory media
Media codes the right to privacy with respect
organisations
to private matters in public places.
Similarly, require public interest
justification for covert surveillance.
table 2: major non-binding instruments relating to public place

surveillance in victoria
Guidelines
Application to public
Organisation Instrument Users covered
place surveillance
Victorian
Guidelines relating to Guidance on how to comply Government
Victorian Privacy
information privacy with various aspects of agencies and
Commissioner
laws information privacy laws. contracted service
providers
Discussion of the privacy

Information sheets implications of types of
Victorian Privacy Relevant
on various aspects of surveillance devices and
Commissioner surveillance users
surveillance policy measures to prevent
their abuse.
Covert Surveillance Guidance on agencies’

Commonwealth
Federal Privacy in Commonwealth responsibilities in carrying
Government
Commissioner Administration: out covert surveillance
agencies
Guidelines activities.
57
3
Guidelines
Organisation Instrument
place surveillance
Users covered
S
L
Policy and
Procedures for the
Establishes a system for the
handling of CCTV footage,
including that it be treated
S
L
Department of Public transport
Management of in accordance with privacy
Infrastructure (Vic) systems
CCTV Evidence principles contained in the
S
Records Information Privacy Act
2000 (Vic).
L
Provides guidance to
Australian Guidelines for petrol station owners
Petrol station
Institute of Service Station and staff relating to their
owners and staff
S
Petroleum Security responsibilities in carrying
out surveillance.
Voluntary standards
L
S
Organisation Instrument Users covered
place surveillance
Designed to protect
L
Radio Frequency
consumer privacy; covers
Australian Identification (RFID)
areas including notice to
Retailers in Retail: Consumer Retail outlets
S
consumers, education, and
Association Privacy Code of
retention, use and security
Practice
of data.
National Code of
Standards for use of CCTV
systems on mass passenger L
S
transport. Covers permissible Specified forms
Council of Practice for CCTV
uses and disclosure of of mass public
Australian Systems for the Mass
surveillance footage for transport,
L
Governments Passenger Transport
counter-terrorism purposes including trains,
(COAG) Sector for Counter-
and recommends community trams and buses
Terrorism
consultation on camera
location and installation.
Includes recommendations
S
Australian Standard:
on the operation,
management, selection,
planning and installation
L
S
Standards Closed circuit
of CCTV systems. Outlines All
Australia television (CCTV),
good practice, including
Parts 1–3
L
that cameras not be used
to infringe the individual’s
privacy rights.
Policies on placement of
cameras and no-go areas
for cameras, signage, Government and
Individual
Internal policies access to footage by private sector
businesses
staff, inappropriate use users
of surveillance cameras,
disclosure to third parties, etc.

4
Chapter 4
A Balanced Approach to CONTENTS
LLANCERegulation
60 Introduction
60 The impact of public

60
place surveillance
Benefits
SURVEILLANCE SURVEILLANCE SURVEILLANCE64

71
Risks
A balanced approach

to regulation
80 An overview of our

recommendations and
our approach

80 Conclusion

59
4
Chapter4 A Balanced Approach to Regulation
introduction
4.1 In Chapter 2 we described the many ways Victorians experience surveillance in
public places. Examples include the widespread presence of CCTV on city streets
and in shopping centres, the various surveillance devices in public transport and the
increasing use of personal surveillance, such as cameras and GPS in mobile phones.
4.2 In this chapter, we consider the impact surveillance is having on the lives of
Victorians. In particular, we report what we have learnt from users of public place
surveillance, as well as members of the public and community organisations,
about the benefits and risks of its use. In response, we have devised a balanced
approach to regulation—one that strives to maximise the benefits of public place
surveillance while minimising its risks.
4.3 In developing our recommendations for reform, the commission has drawn
on two particular sources. The first is the Charter of Human Rights and
Responsibilities Act 2006 (Vic) (the Charter). This contains a useful framework for
achieving a balanced approach to regulation when rights are in conflict and when
there is a need to place limits upon the capacity to exercise a particular right. The
second is modern theories of responsible regulation, which are also useful when
considering how best to regulate a complex activity where interests may differ
quite markedly. We discuss the applicability of these sources to the development
of our approach below.
4.4 We conclude the chapter by outlining our recommendations for reform in general
terms. Chapters 5, 6 and 7 contain detailed discussion of each recommendation.
the impact of public place surveillance

4.5 Many questions arise when considering the impact of public place surveillance.
Are such activities harmful because they threaten human rights, such as the right
to privacy? Will the ‘surveillance society’1 irreversibly change the way we live
because we will always feel we are being watched in public places?
4.6 Is it right, as is commonly said, that ‘If you’ve got nothing to hide, you’ve
got nothing to fear’?2 What are the benefits of surveillance in public places?
David Lyon has noted that we depend on surveillance ‘for the efficiency and
convenience of many ordinary transactions and interactions’.3
4.7 Characterisation of the risks and benefits of public place surveillance is often
challenging because the effects of particular forms of surveillance might be
considered beneficial to some people and detrimental to others. Nevertheless,
we have prepared an outline of the various benefits and risks as defined in the
literature and as explained to us in consultations.
benefits
4.8 The uses and users of surveillance have changed markedly over the past few
years. Surveillance technology is increasingly able to collect and disseminate
information in ways previously not thought possible. Today, police and many
other Victorian agencies rely on sophisticated surveillance technology for their
everyday operational and business activities. Surveillance devices are also utilised
by individuals for a number of important purposes. The commission met a wide
variety of users of surveillance, who told us why they use the technology and the
benefits they derive from it. These are outlined below.

1 The expression ‘surveillance society’
investigation of criminal activity and fraud emerged in the 1980s in studies of
surveillance: Surveillance Studies Network,
4.9 One of the primary benefits of public place surveillance is its use in investigating A Report on the Surveillance Society
incidents that may involve criminal behaviour. Victoria Police told the commission (2006), [3.5].
that surveillance is an important part of criminal investigations and a key factor in 2 Daniel Solove, ‘“I’ve Got Nothing to
Hide” and Other Misunderstandings of
obtaining convictions.4 The reasons for police use of surveillance include: Privacy’ (2007) 44 San Diego Law Review
745, 748.
• to obtain evidence of criminal activity 3 David Lyon, Surveillance Society:
Monitoring Everyday Life (2001) 2.
• to enhance the ability to investigative corruption offences and other
4 Roundtable 5. Youth groups also noted
forms of crime that are covert, sophisticated and difficult to detect that police use surveillance footage to
by conventional methods draw out confessions: Roundtable 16.
5 Consultations 19, 20; Roundtables 5,
• to encourage more defendants to plead guilty to charges because of 16, 30.
surveillance evidence 6 Consultations 19, 20 and Site Visits 5,
11, 13, 14, 15 indicated they had been
approached by police for footage.
• to reduce the potential for harm to police, undercover operatives
7 Consultation 20.
and informants because they can be forewarned of planned
8 Police must obtain a warrant from a
reprisals and criminal activities.5 magistrate before undertaking this form
of surveillance. Surveillance Devices Act
4.10 In addition to their own surveillance records, police use CCTV footage provided by 1999 (Vic) s 8.
others, either voluntarily or upon request.6 9 See Victoria Police, Inquiry into Automatic
Number Plate Recognition Technology
4.11 Police also use listening and tracking devices to aid in investigations. For example, (2008) <www.parliament.qld.gov.au/
view/historical/documents/committees/
the commission was told that some police officers record conversations between TSAFE/inquiry/ANPR%20technology/
themselves and members of the public for evidentiary purposes.7 Potential Submissions/14.pdf> at 14 January 2010.
10 Consultation 3.
suspects may also be tracked through their mobile phone8 or through the use
11 See Site Visits 3, 5, 15, 16, 18.
of ANPR.9 12 See eg, Submission 4; Consultations 1,
27; Site Visit 15.
4.12 Insurance companies and private investigators also use various surveillance
13 Roundtable 15.
technologies, including visual surveillance and listening devices, to determine the 14 Roundtables 3, 4.
validity of insurance claims.10 15 Roundtables 6, 7, 8.
16 Submission 25.
asset protection and deterrence of crime 17 Consultation 27.
4.13 A number of businesses with whom the commission consulted stated that their 18 Site Visit 1.
main reason for installing CCTV was to protect their property.11 Some also said
that the visible presence of cameras reduced crime, particularly property crime,
such as graffiti, theft and vandalism.12 We were told that the installation of CCTV
cameras in petrol stations, for example, has reduced the number of drive offs
from those stations.13 Transport operators also suggested that cameras might
serve as a general deterrent to crime and other antisocial behaviour on trains,
trams and buses.14 In addition, local councils told the commission that they used
surveillance cameras in the hope they would prevent a range of behaviours,
including assault, vandalism, drug dealing, street-car racing, and drunk and
disorderly behaviour.15
4.14 CCTV footage is used in a number of ways. Shopping centres noted that it assists
security staff to identify people who have previously committed crimes and
prevent them from offending again.16 A council employee told us that operators
are able to view footage in real time and notify police of criminal activity quickly,
which allows them to respond promptly and avoid the situation escalating.17
4.15 Cameras may be combined with other technology or software to assist in the
detection of crime. VicRoads, for example, uses fixed and mobile cameras with
ANPR technology to automatically detect traffic offences, such as speeding and
traffic light offences.18
61
4
4.16 Other technologies are also used to detect or prevent crime. For example,
RFID technology is widely used in the retail sector to deter and apprehend
shoplifters. Stock is fitted with a passive device that sounds an alarm if it passes
through a reader (generally at the exit of a store).19 RFID chips also are used in
modern Australian passports to assist in the prevention of identity fraud.20 Other
sophisticated technology, such as facial recognition technology, body scanners
and residue scanners are also used in some international airports for the same
purposes. This is discussed in Chapter 2.
4.17 Although crime prevention and control are major reasons for using CCTV,
the evidence suggests its effectiveness in reducing crime is debateable. This is
discussed below.
saftey
4.18 Another important benefit of public place surveillance is the promotion of
community and employee safety. The commission was told that CCTV cameras
are frequently installed to enhance the safety of an area (including suburban
train stations, car parks and some metropolitan streets), particularly at night.21
Businesses also use surveillance to protect their employees, particularly those
vulnerable to armed robbery, such as petrol stations and bottle shops.22
4.19 Public safety is an important reason underlying the use of surveillance in the
transport sector. Surveillance cameras can assist transport operators to respond
when a fire has erupted23 and when determining if passengers are clear of a
departing train or tram before allowing it to leave.24 There are over 600 CCTV
cameras operated by roads authorities for the purpose of traffic monitoring and
accident response.25 Safety is also a major reason for use of surveillance by local
councils. Surveillance is used for monitoring road traffic, the movement of fires,
access for emergency vehicles and crowd flow at major venues.26
4.20 Individuals may also carry surveillance devices to protect themselves and other
family members. We were told, for example, of the use of surveillance in domestic
violence and family law matters, such as a woman recording her ex-husband’s
conversations with her as evidence of him breaching his intervention order.27
We were also told of individuals recording scenes at protests ‘where there
are community concerns that violence may occur’.28 Interestingly, when we
consulted community groups—such as youth, multicultural groups and people
experiencing homelessness—there was a mixed response to whether CCTV made
them feel safer.29
4.21 Another way surveillance devices are used to enhance safety is by assisting in
locating people who have gone missing. Tracking devices in mobile phones, for
example, are used by some parents to keep track of a child’s whereabouts,30
and by carers for tracking people suffering from memory loss,31 or who have
fallen unconscious.32
4.22 Another beneficial use of surveillance devices is in the management of serious
incidents or emergencies. For example, in an emergency evacuation camera
surveillance can be used to ensure that every person has safely and successfully
left the premises.33 Transport providers and shopping centres told us that camera
surveillance has also been useful in facilitating speedy assistance to people if they
are injured or in danger.34

19 Clive Norris and Gary Armstrong, The
operational needs Maximum Surveillance Society: the Rise of
CCTV (1999) 18.
4.23 In addition to its use in the protection of property and promotion of safety,
20 The Australian ePassport (2009)
public place surveillance can aid organisations in the everyday operations of Department of Foreign Affairs and Trade
their business. For example, cameras and tracking devices are used within the <www.dfat.gov.au/dept/passports/> at
28 January 2010.
transport sector to monitor traffic flow.35 Recorded footage may also be viewed 21 Consultation 22; Site Visits 3, 4, 5.
later to review major incidents or the success of traffic management plans.36 In 22 Roundtable 15.
addition, ANPR and RFID allow speedy billing processes on the road, rail and tram 23 Roundtable 23.
networks.37 24 Site Visit 4.
25 Site Visit 1.
4.24 RFID tracking is used within many stock supply chains as a method for stock 26 Consultation 5; Roundtable 7; Sue Cant,
control and distribution.38 Local councils use Google Earth and other satellite ‘Satellites Help Council Spot Fire Hazards’,
The Age (Melbourne), 16 January 2001, 2.
technologies to monitor activities, such as illegal housing developments or tree 27 Submission 4.
clearing, within their municipality.39 28 Submission 34.
4.25 Some organisations use surveillance technologies for advertising or marketing 29 Some people told us that the presence of
cameras made them feel safer: Forums 2,
purposes, for example, through mobile phones with Bluetooth functionality.40 3, 5. Other people said the presence of
CCTV cameras did not make them feel
This is discussed in Chapter 2. safer: Forums 3, 4.
managing the movement and conduct of people 30 See eg, ‘Tracking teens: Parents use GPS
Cell Phones to Keep up with Their Children’
4.26 Surveillance cameras are also used to ensure that public spaces remain accident LA Times/Washington Post wire service,
27 June 2006, <medialab.semissourian.
free by monitoring crowd behaviour. Large stores and entertainment venues com/story/1158246.html> at 30 June 2008.
use surveillance for public safety purposes and for crowd control. Cameras are 31 See Katina Michael, Andrew McNamee,
M G Michael, ‘The Emerging Ethics
monitored and information is passed on to ground staff about how best to of Humancentric GPS Tracking and
manage crowd movement.41 Surveillance also offers similar benefits for managing Monitoring’ (Paper presented at the
International Conference on Mobile
the movement of large volumes of people through public transport hubs during Business: IEEE Computer Society.
busy periods.42 Police can access existing CCTV networks (such as those operated Copenhagen, Denmark, 25–7 July 2006)
<ro.uow.edu.au/cgi/viewcontent.cgi?articl
by local councils or transport operators) during special events to monitor and e=1384&context=infopapers> at
manage crowd movement.43 21 May 2008.
32 Chris Rizos, ‘You Are Where You’ve Been:
news gathering and the dissemination of information Location Technologies’ Deep Privacy
Impact’ (Speech delivered at the You
4.27 Public place surveillance is a tool used by journalists to record people’s activities Are Where You’ve Been: Technological
Threats to Your Location Privacy Seminar,
in public places as part of the newsgathering process. One media organisation Sydney, 23 July 2008).
told us their activities frequently included ‘crowd shots taken at sporting events, 33 Site Visit 10.
filming people participating in street demonstrations, recording of public events 34 Submissions 22, 25; Site Visits 2, 4, 15.
and activities, such as outdoor concerts, and recording of events having a public 35 Site Visits 1, 9.
36 Site Visit 1; Think Tram Projects,
interest dimension, such as police actions’.44 VicRoads <www.vicroads.vic.gov.au/
Home/PublicTransportAndEnvironment/
4.28 The dissemination of information by the media is of great benefit to the public PublicTransportOnRoads/TramProjects/
because it allows the community to know about issues as they arise. ThinkTramProjects.htm> at 14 January
2010; SmartBus Infrastructure, Department
artistic purposes, entertainment and other personal uses of Transport (Vic) <www.transport.vic.
gov.au/web23/Home.nsf/AllDocs/90A14F
4.29 Individuals also conduct public place surveillance for a number of beneficial 13EABE24E4CA25766600140C50?Open
Document> at 28 January 2010.
reasons. The use of optical surveillance, such as cameras and video recorders, is 37 Site Visit 1.
commonplace. In its submission to the commission, the Victorian Association of 38 Teresa Scassa et al, ‘Consumer Privacy
Photographic Societies noted the frequent use of photography by professional and Radio Frequency Identification
Technology’ (2005–6) 37 Ottawa Law
and recreational photographers for legitimate artistic purposes to record events Review 215, 219.
and capture images.45 People also use audio recording devices—including 39 Lachlan Heywood, ‘Public Told not to Fear
Council Spies in the Sky’, The Courier Mail
recorders contained in mobile phones or hand-held computers—to record (Brisbane), 19 September 2003, 18.
lectures, presentations or important conversations. Individuals may also use 40 How It Works, Bluetooth Advertising
tracking devices in public places for personal purposes. Use of GPS technology in <www.bluetoothadvertising.com.au/
how_it_works.html> at 28 January 2010.
mobile phones and vehicles is now widespread. 41 Site Visits 6, 14; Roundtables 13, 20, 31.
44 Submission 10.
45 Submission 15.
63
4
risks
4.30 Although public place surveillance has many benefits, there are also a number
of risks associated with its use. Because some of those risks are subtle and
incremental, they may not be widely discussed. Other risks are difficult to
characterise. As one privacy commentator has noted, ‘most privacy problems lack
dead bodies’.46 In addition, invasion of privacy may result in harm that the law
finds difficult to remedy. We outline below the risks identified by the commission
through our research, site visits and consultations.
threat to privacy
4.31 Most, if not all, people have reasonable expectations of some privacy in public
places. The nature of those reasonable expectations will change according to
time and place. Most people would reasonably expect, for example, that a
conversation on a secluded park bench or a quiet beach would not be overheard
or recorded, and most people would similarly expect that a brief intimate
moment, such as a kiss or embrace, in a secluded public place would not be
observed or recorded. It may be unreasonable to have similar expectations on a
crowded tram or in a busy shopping mall.
4.32 Some current surveillance practices may interfere with people’s reasonable
expectations of privacy in public places. Many people may be shocked to discover
that their movements or conversations in public places have been recorded by
unseen CCTV cameras or listening devices. The commission was told of numerous
instances of surveillance occurring without clear notice to the public.47 Even
where signs are used, they do not necessarily contain sufficient information: they
may not identify why cameras are used; who owns, operates, or is responsible
for them; how footage is managed, where it goes, the people to whom it can be
released; and how to complain about abuse.48
4.33 Another surveillance practice that has raised privacy concerns is the use of x-ray
body scanners, trialled in 2009, and planned for installation in some Australian
airports.49 The scanners provide operators with an image of passengers without
clothes. A recent UK case of a man caught ogling the image of his colleague has
sparked concerns in the UK.50
4.34 The need to retain privacy in public places is sometimes concerned with the desire
to keep particular information private. This information may relate to a person’s
political views, medical issues (such as attendance at an abortion clinic or a drug
and alcohol treatment centre), and social matters (such as attendance at a gay
bar).51 It is strongly arguable that people ought to be able to restrict access to
information about themselves of this nature.
social exclusion
4.35 Young people, Indigenous communities, people experiencing homelessness, and
other marginalised and vulnerable members of society use public spaces more
than others do because these groups rely on public places as social, living and
cultural spaces.52 As a result, these groups experience more surveillance in public
places than do other members of the community.

4.36 Some submissions pointed out that surveillance in public places has a 46 Solove, above n 2, 768.
47 Eg, Consultation 31; Site Visit 18;
disproportionate effect on the Indigenous community because of their reliance on Roundtables 5, 25, 26, 27.
public space as cultural space.53 This can lead to individuals feeling targeted. For 48 Roundtable 16.
example, one organisation noted that 49 Anthony Albanese MP, Minister for
Transport, ‘Strengthening Aviation
where there is a concentration on policing of street offences, coupled with Security’ (Press Release, 9 February 2010).
the increased surveillance of public places, it is understandable that many 50 Reuters UK (2010), ‘Heathrow
Worker Warned in Scanner Ogling
Aboriginal and Torres Strait Islander People will perceive such actions as Claim’, <uk.reuters.com/article/
aimed directly to their specific use of public space.54 idUKTRE62N1TB20100324> at
25 March 2010.
4.37 The St Kilda Legal Service also noted that the presence of surveillance might act to 51 Christopher Slobogin, ‘Public Privacy:
Camera Surveillance of Public Places
exclude people experiencing homelessness from public places: and the Right to Anonymity’ (2002) 72
Mississippi Law Journal 213, 244–5.
The homeless … face an increase in the risk of being charged with a 52 Submissions 12, 20, 32, 40, 42.
range of offences related to their homeless status. For example, if a 53 Submission 20, 40.
person is homeless they have far greater likelihood of breaching the law 54 Submission 20.
around being intoxicated in a public place. Moreover, if their activities are 55 Submission 14.
monitored on CCTV they are more likely to be charged with this offence. 56 See eg, Submissions 5, 14, 40, 42.
57 Forums 2, 3, Roundtable 16.
The Legal Service is also concerned that increasingly homeless persons
58 Roundtable 18.
are being pushed out of areas where they might previously have found 59 Walter Siebel and Jan Wehrheim, ‘Security
shelter by the proliferation of CCTV cameras. For example, a CCTV camera and the Urban Public Sphere’ (2006) 3 (1)
German Policy Studies 19, 22.
positioned to record the sheltered waiting area of a railway station may
60 Submission 12. Other submissions
have a ‘security’ function, but it can also facilitate train authorities ‘moving expressed similar views, see eg,
on’ a homeless person who uses the area to shelter for the night.55 Submissions 32, 42.
61 Submission 25; Consultation 27; Site
4.38 Participants in our consultations suggested that CCTV could also exclude other Visit 13.
marginalised groups from public places,56 For example, including complaints by 62 Submission 34.
63 Submission 42.
young people about being moved on when congregating in public areas.57
4.39 The risk that certain people will be denied access to public space is magnified
by the increase in privately owned public places, such as shopping centres and
entertainment complexes. Some community organisations noted that their clients
report difficulties arising from the use of surveillance and security in shopping
centres.58 Walter Siebel and Jan Wehrheim suggest that the temptation to move
along ‘undesirables’ may be acted upon with less public accountability in the case
of private public places than would be the case with police on city streets.59
Access to services
4.40 Surveillance can also disproportionately affect access to services. The commission
was told of a number of instances in which young people and other marginalised
groups have been moved on by security guards at shopping complexes and train
stations, which has prevented them from enjoying public places and also moved
them ‘away from sites they have elected to be in because they are safe’.60 The
commission was informed that security guards frequently use CCTV images to
help them identify groups or individuals for attention.61
4.41 It was suggested that the practice of ejecting ‘undesirables’ essentially establishes
that some people have a less legitimate claim to being in public places than
others. The result is that they ‘develop a clearer sense of marginalisation and
alienation’.62 One submission suggested that the right to freedom of movement
includes ‘the right to avoid being forced to move’.63
65
4
Access to CCTV footage
4.42 The issue of access to and retention of surveillance data—in particular CCTV
footage—was of concern to several organisations the commission met.64 They
noted that only those conducting the surveillance are aware of the period of time
data are kept, and that community members are unlikely to be able to access the
footage in time, particularly if the process involves getting legal advice.65 It was
suggested that this is indicative of the general power imbalance between users
and subjects of surveillance.66
4.43 We were also told of people who had been victims of assault at nightclubs and
other CCTV monitored places who were refused access to the footage of the
incident.67 In submissions and forums it was alleged that assaults have been
committed against members of the public by persons in positions of authority who
were aware of the placement of CCTV and intentionally avoided being within its
range.68 A surveillance user noted that police usually request access to the footage
before it has been destroyed but that requests from the public are usually too late.69
Inappropriate publication of footage

4.44 Another specific concern was with the publication of images captured by
surveillance devices of people, particularly children, suspected of having
committed criminal offences.70 The commission was told that there are CCTV
captured images of young people displayed in some shops and shopping
complexes.71 Concern was expressed over the potential impact that this practice
can have on young people.72 A number of individuals and organisations were
of the view that the publishing, dissemination and use of material captured by
surveillance also requires regulation.73
loss of anonymity
4.45 Some authors have argued that surveillance of public places creates a loss of
individual anonymity in public and that this has negative social consequences.74
4.46 As one commentator noted, ‘under the gaze of CCTV, it is simply impossible
to blend into the situational landscape, or to be confident that one is acting
anonymously’.75 In this way, ‘an ability to spy on the lives of individuals by
intrusive methods can not only affect the lives of individuals but can provide a
source of power which can have profound effects on wider society’.76
4.47 Some people expressed concerns about the operation of the new myki public
transport card which requires anyone wanting to travel on a concession fare
to disclose personal details, while individuals travelling on a full fare can elect
to remain anonymous.77 People who qualify for concession fares on public
transport necessarily have a lower income and are often heavily reliant on public
transport as a mode of transportation, making it difficult for them to opt out of
such a scheme. A Liberty Victoria spokesperson has stated that ‘from a privacy
perspective the myki card is an unofficial tracking device’ because it will register
where and at what time an individual has used their card.78 ANPR and RFID
technology on private toll roads, which is discussed in Chapter 2, allows the
movement of vehicles to be tracked.
the chilling effect
4.48 The ‘chilling effect’ is a term used to describe the phenomenon of people
changing the way they behave in public, even when alone, because they are aware
of the presence of surveillance.79 Concerns were raised in several consultations
and submissions about the way surveillance can affect an individual’s public
behaviour.80 It was acknowledged that surveillance could have the effect of
‘normalising behaviour to result in a less diverse and more inhibited society’.81

4.49 The idea that an anonymous observer can 64 Submissions 1, 12, 34, 42. 78 Georgia King-Siem, quoted in Clay Lucas,
65 Submission 34. ‘Myki Tracking Device Warning’, The Age
alter individual behaviour is not new. Michel (Melbourne), 19 November 2009 <www.
66 Submission 34.
Foucault wrote about this effect of surveillance. 67 Submission 12.
theage.com.au/national/myki-tracking-
device-warning-20091118-imlj.html> at
He described the gaze of surveillance as central 68 Submission 34; Forum 4. 19 November 2009.
to the exercise of power: 69 Consultation 4. 79 Slobogin, above n 51, 242–3.
70 Submissions 12, 14. 80 Submissions 5, 30.
There is no need for arms, physical 71 Submissions 12, 14. 81 Submission 30.
violence, material constraints. Just a 72 Submission 14. 82 Michel Foucault, Discipline and Punish:
gaze, a gaze to which each individual 73 Submissions 5, 12, 14, 18, 33, 41.
The Birth of the Prison (1975) 155.
83 Slobogin, above n 51, 244–5.
under its weight will end by interiorising 74 See eg, Slobogin, above n 51, 239.
84 Wood v Commissioner of Police of the
to the point that he is his own overseer, 75 Benjamin Goold, ‘Open to All? Regulating
Metropolis [2009] EWCA Civ 414 [92] per
Open Street CCTV and the Case for
each individual thus exercising this “Symmetrical Surveillance”’ (2006) 25(1)
Lord Collins.
Criminal Justice Ethics 3, 6. 85 Wood v Commissioner of Police of the
surveillance over, and against, himself. Metropolis [2009] EWCA Civ 414.
76 Roger Toulson, ‘Freedom of Expression
A superb formula: power exercised and Privacy’ (2007) 41 Law Teacher 86 See eg, Office of the Victorian Privacy
continuously and for what turns out to 139, 148. Commissioner, ‘Briefing on the Aquasure
Memorandum of Understanding’ (Press
77 Metlink, Victorian Fares and Ticketing
be a minimal cost.82 Manual (myki) (2009) 43 <www.
Release, 10 December 2009).
metlinkmelbourne.com.au/fares-tickets/
4.50 As the use of surveillance cameras becomes victorian-fares-and-ticketing-manual-
more widespread, there is a concern that myki/> at 23 November 2009.
apprehension about unknown monitoring of
activities in public places may alter the way in
which people behave. People may no longer
feel comfortable to act and communicate with
a sense of freedom outside private places. For
example, people may be less likely to engage
in some activities—such as attending an
Alcoholics Anonymous meeting, a psychiatrist’s
office, or a sexual health clinic—if they believe
they may be under surveillance.83
4.51 In a recent case, the UK Court of Appeal
expressed concern about the potential chilling
effect of surveillance. In that case the police
were not permitted to keep photographs they
had taken of a man who had participated in a
protest. Lord Collins said he was ‘struck by the
chilling effect on the exercise of lawful rights
such a deployment would have’.84
4.52 The decision not to permit the police to retain
the photographs was based largely on Article 8
of the European Convention of Human Rights,
which protects the right to private life.85
This example is important given the recent
allegations that Victoria Police may have been
sharing surveillance footage of individual
protestors with private organisations.86
67
4
criminal conduct and offensive uses
4.53 As surveillance devices become cheaper, they become increasingly accessible to
people who may wish to use them for criminal or offensive conduct. For example,
there have been several cases of people using hidden cameras to record under the
skirts of unsuspecting women.87 This practice is known as ‘upskirting’ and is now
a specific criminal offence.88 Surveillance in public places is also used to facilitate
other crimes. For example, covert surveillance cameras have been installed at
ATMs to capture individual PINs for the purpose of stealing from individual
accounts. There is also the possibility of blackmail based on recorded images of
embarrassing conduct.89
Recording criminal behaviour as entertainment

4.54 There has been a disturbing trend of people recording their own criminal conduct.
In some cases this has involved activities that are especially cruel and violent. In a
widely publicised Victorian example, a group of teenage boys lured a teenage girl
to a park in Werribee and forced her to remove some of her clothing and perform
oral sex. They then set fire to her hair and urinated on her. The young men
responsible filmed the entire incident and produced a DVD that they distributed
to a number of people.90 In another incident in Geelong, five men set upon
two teenage girls, sexually assaulted them and filmed the incident on a mobile
phone.91 In a recent case, a woman filmed her 14-year-old daughter assaulting
another girl.92 Footage from these types of incidents is commonly distributed
among friends. There have also been some examples of footage having been
posted on the internet.93
Innappropriate recording of emergencies

4.55 Recently, the media have reported incidents in which individuals have used their
mobile phones to film emergencies for the apparent purpose of entertainment.
In Queensland, after a runaway vehicle hit a backpacker, ‘dozens’ of bystanders
apparently filmed the victim’s final moments on their mobile phones.94 Similarly,
in NSW, after a traffic accident in which children were killed, bystanders began
filming the mother’s pleas for assistance and the accident scene.95
publication on the internet
4.56 Digital technologies have increased the capacity of individuals to capture,
transmit and distribute recordings of voices and images quickly and easily. The
popularity of the mobile camera phone has meant that the distribution of images
can be both immediate and widespread. As noted in some consultations and
submissions, the development of this technology has meant that embarrassing
(but legal) behaviour is increasingly posted on the internet without the consent
of the person who would find it most embarrassing.96 For example, videos have
been posted online of celebrities intoxicated in public places in Melbourne,97 and
individuals falling over or injuring themselves.98
4.57 In at least one consultation, some participants were of the view that if a person,
particularly a celebrity, is in a public place they run the risk of being filmed and
should be aware that images of them might be distributed.99 Others were of
the opinion that the use of embarrassing footage as entertainment without the
consent of the potentially humiliated party was unacceptable.

4.58 Widespread concerns have been expressed 87 Eg ‘Man Charged Over “Upskirting” 95 Gemma Jones and Anna Caldwell,
Photos’, Sydney Morning Herald ‘Onlookers Film Burning Car as Sisters Lay
in the media and by privacy advocates about (Sydney), 6 September 2009 <www. Dying’, The Courier-Mail (Brisbane),
the implications of Google Street View.100 For smh.com.au/national/man-charged-over- 30 December 2009 <www.news.com.au/
upskirting-photos-20090906-fccu.html> couriermail/story/0,1,26535799-952,00.
example, the Google camera has occasionally at 28 January 2010; Karen Matthews, html> at 8 January 2010.
captured individuals who are clearly identifiable ‘Upskirting Case Delayed’, Geelong 96 Submission 5; Forum 4.
Advertiser (Geelong), 24 September
and unaware their image would be published 2009 <www.geelongadvertiser.com.au/
97 See eg, ‘Andrew O’Keefe’s Drunk
Night on the Tiles’ Herald Sun
article/2009/09/24/106781_news.html>
on the internet via Street View. Overseas it at 28 January 2010
(Melbourne) <www.youtube.com/
has captured and published images of women watch?v=MagtXy1Exwo> at
88 Summary Offences Act 1966 (Vic) div 4A. 11 November 2009; ‘AFL Footy Show—
sunbathing and a man entering an adult 89 Submission 5. Brendan Fevola Brownlow Street Talk
‘09 (24 September, 2009) HQ’ <www.
book store.101 90 Mex Cooper, ‘Werribee DVD Sex Case:
youtube.com/watch?v=UDSphOXMgbM>
Teens’ Attack Sickening, Says Girl’s Dad’,
at 11 November 2009.
surveillance may not work Geelong Advertiser (Geelong), 18 October
2007 <www.geelongadvertiser.com.au/ 98 ‘Man Falling Over a YouTube Sensation’,
4.59 During consultations the commission article/2007/10/18/7951_news.html> at Herald Sun (Melbourne), 12 January
18 November 2009; Greg Roberts, ‘Boys 2010 <www.heraldsun.com.au/lifestyle/
was frequently informed that surveillance Escape Detention Over Assault Film’, The the-other-side/man-falling-over-a-
equipment does not always achieve the Age (Melbourne), 5 November 2007 youtube-sensation/story-e6frfhk6-
<http://news.theage.com.au/national/ 1225818535649> at 13 January 2010.
purpose for which it was installed. Most boys-escape-detention-over-assault-film- 99 Consultation 12.
commonly, questions were raised about 20071105-18ct.html> at 18 November
100 See eg, Lisa Martin, ‘Big Brother in the
2009.
whether CCTV surveillance actually deters 91 ‘Gang Sex Attack Filmed on Mobile
Backyard—Issues in the News—Google
Street View’, The Age (Melbourne),
crime. In some submissions and consultations Phone’, The Age (Melbourne), 17 May 6 October 2008 16; Kelly Brown, ‘Alarm
2007 <http://news.theage.com.au/ over Street View’, The Hume Moreland
people expressed the view that criminals can national/gang-sex-attack-filmed-on- Leader (Melbourne), 13 August 2008, 7;
relatively easily alter their behaviour to avoid mobile-phone-20070517-db9.html> at Sharon Labi, ‘Google to Limit its Street
18 November 2009. View’, Herald Sun (Melbourne), 20 July
surveillance.102 For example, criminals are often 92 Adrian Lowe, ‘Mother Reportedly 2008, 12.
aware of the presence of cameras and will Videotaped Daughter Assaulting Disabled 101 Labi, above n 100, 12.
Girl’, The Age (Melbourne), 1 December
sometimes try to alter their appearance to 2009 <www.theage.com.au/national/
102 Submissions 20, 30; Forums 1, 3, 4;
Consultations 6, 11; Site Visit 5.
avoid detection.103 mother-urged-daughter-to-bash-
intellectually-disabled-girl-20091201- 103 Forum 1.
4.60 In considering whether surveillance improves k2eo.html> at 1 February 2010. 104 Submission 40.
security, one organisation stated: 93 See eg, ‘Clip of Mother being Gang- 105 Consultations 1, 11; Site Visits 10,13.
Raped Posted on YouTube’, News.Com.
By pledging to improve ‘security’ Au, 5 March 2008 <www.news.com.au/
story/0,23599,23322566-2,00.html> at
through increased surveillance, 18 November 2009.
politicians pander to voters’ anxiety, 94 Peter Michael, ‘Police Condemn Ghoulish
People Who Filmed Backpacker’s Dying
without addressing its underlying causes. Moments’, The Courier-Mail (Brisbane),
We suspect that commercial interests— 8 January 2010 <www.news.com.au/
national/police-condemn-ghoulish-people-
those of surveillance technology who-filmed-backpackers-dying-moments/
producers, as well as those of businesses story-e6frfkvr-1225817200736> at
8 January 2010.
employing surveillance—are equally
significant drivers of the increase in
public place surveillance.104
Technological limits
4.61 During consultations the commission was often
reminded that surveillance technology is fallible.
We were told, for example, that CCTV systems
had sometimes failed to capture footage of a
serious incident or failed to produce footage to
a standard where the offender was identifiable.
Similarly, biometric evidence, often touted as
foolproof, can also provide inaccurate results.
For example, a number of organisations told
us that facial recognition technology has a
tendency to register false positives.105
69
4
4.62 The use of camera footage in conjunction with expert identification evidence in
criminal prosecutions has been questioned because it is not always accurate.106
Experts in criminal prosecutions use facial mapping techniques to compare the
face of the accused with that contained in the camera image of the offender.
These techniques are neither standardised nor consistently applied. Critics have
suggested that as a result this method of identification risks being ‘unreliable and
unfairly prejudicial’.107
Ineffective in preventing crime

4.63 Evidence that CCTV is effective in controlling crime remains largely inconclusive.108
Researchers have concluded that CCTV is ‘either largely ineffective at reducing
crime or that CCTV has different effects depending on the type of crime under
consideration’.109 Brandon Welsh and David Farrington concluded in 2002 that
‘the best current evidence suggests that CCTV reduces crime to a small degree’.110
4.64 In Australia there have been few published evaluations of CCTV.111 In 2006,
Helene Wells and others published results from their research into CCTV use in
Gold Coast public spaces and on the Queensland Rail Citytrain network.112 The
authors found an increase in total offences against the person after CCTV was
installed, compared to areas without CCTV.113 They concluded it was likely that
CCTV detected violent crime that previously went undetected, but it had not
prevented it.114
4.65 Even when CCTV has been shown to reduce crime rates, that reduction relates
only to certain types of crimes. CCTV has been more successful at reducing
property crimes,115 and two studies found that CCTV was effective at reducing
vehicle theft from car parks.116 CCTV may be less effective at reducing crime
against the person and ‘impulsive’ acts such as alcohol-related crime.117 Wells
and others also reported that the evidence of CCTV’s effectiveness at reducing
burglary was mixed, and that CCTV may have no impact on shoplifting.118
4.66 Researchers have also noted the possibility that some decline in crime rates after
CCTV is installed may be due to a ‘displacement’ effect rather than a true decline
in the overall crime rate. Displacement occurs when incidents of crime move to
areas not covered by CCTV.119 Similarly, some people in consultations suggested
that one response to CCTV use in Melbourne has been that drug dealing has
relocated.120 Nevertheless, Wilson and Sutton argue the statistical evidence on the
displacement effects of CCTV is largely inconclusive.121
Misleading perceptions of safety

4.67 CCTV may be more effective in creating a perception of safety than preventing
crime. We learnt in consultations that some people who experience homelessness
in Victoria can derive a sense of safety from the presence of surveillance
cameras,122 although others do not.123 We were also told about the use of CCTV
to create a perception of safety in areas such as car parks, train stations and
schools.124 At least one study has concluded, however, that CCTV installation may
not make people feel safer.125 Moreover, creating a false sense of security carries
its own risks, such as encouraging people to let down their guard. Finally, there
is a question about whether merely creating a perception of safety is worth the
costs and risks associated with the installation of surveillance systems.

106 See esp., Gary Edmond et al, ‘Law’s
converging devices Looking Glass: Expert Identification
Evidence Derived from Photographic and
4.68 Many surveillance devices now have a number of capabilities. This phenomenon Video Images’ (2008–2009) 20 Current
is sometimes referred to as ‘convergence’. A number of people the commission Issues in Criminal Justice, 337.
spoke with expressed concern that the expansion of surveillance capabilities in a 107 Ibid 350–1.
108 See Dean Wilson and Adam Sutton,
single device poses new privacy risks and creates challenges for regulation.126 Open-Street CCTV in Australia (2003)
13–15. They note that studies have
4.69 It is possible to use one device to gain a very detailed account of what an produced mixed findings. See also
individual is doing. Some cameras, for example, now include audio as well as Coretta Phillips, ‘A Review of CCTV
Evaluations: Crime reduction effects and
visual recording, and contain software to assist with recognition and tracking.127 attitudes towards its use’ in Kate Painter
and Nick Tilley (eds) Surveillance of Public
4.70 The potential for unreasonable intrusion into people’s lives is also increased by Space: CCTV, Street Lighting and Crime
improvements in technology that provide greater precision when monitoring and Prevention (1999); Brandon Welsh and
David Farrington, Crime Prevention Effects
recording activities. Improvements in image clarity, zoom capacity, sound quality of Closed Circuit Television: A Systematic
and scanning accuracy are a few examples. Review (2002); Clive Coleman and Clive
Norris, Introducing Criminology (2000).
109 Helene Wells et al, Crime and CCTV in
a balanced approach to regulation Australia: Understanding the Relationship
(2006) 2.
4.71 Any regulation of public place surveillance must strive to balance the many 110 Welsh, above n 108, i.
risks and benefits associated with its use. The Charter of Human Rights and 111 See Wilson, above n 108, 112.
Responsibilities Act 2006 (Vic) (the Charter) contains a useful framework for 112 Wells, above n 109, 4–5.
achieving a balanced approach to regulation when rights are in conflict and when 113 Ibid 78.
114 Ibid iii.
there is a need to place limits upon the capacity to exercise a particular right.
115 Martin Gill and Angela Spriggs, Assessing
Modern theories of responsible regulation are also of use when considering how the Impact of CCTV (2005) 3.
best to regulate a complex activity where interests may differ quite markedly. 116 Ibid 29–30; Welsh, above n 108, vii,
34–40.
the victorian charter of human rights and responsibilities 117 Gill, above n 115, vii, 33–40, 118.
118 Wells, above n 109, 2 (see studies cited
4.72 Victoria is one of two jurisdictions in Australia with a human rights charter. 128
therein).
Modelled on the International Covenant on Civil and Political Rights (ICCPR),129 119 See Vanessa Goodwin, Crime Prevention
the Charter makes it unlawful for public authorities to act in a way that is and Community Safety Council
[Tasmania], Evaluation of the Devonport
incompatible with the human rights listed in the Charter.130 The Charter defines CCTV Scheme (2002) 34.
the term ‘public authority’ broadly. It includes police, local councils, and private 120 Roundtable 6.
entities that have functions of a public nature. 131 121 Wilson, above n 108, 14.
122 Forum 4; Roundtable 16.
4.73 The Charter also requires that statutes be interpreted in a way that is compatible 123 Forum 4.
with human rights whenever possible,132 and that statements of compatibility with 124 Roundtables 2, 5, 7.
human rights accompany all Bills introduced into parliament.133 125 Gill, above n 115, 60–1.
126 Submission 5; Consultation 5.
Human rights affected by public place surveillance 127 See Chapter 2.
128 The other is the Australian Capital
4.74 The Charter provides a useful framework for devising a balanced approach to Territory. See the Human Rights Act
regulation of public place surveillance because some forms of surveillance may 2004 (ACT).
129 Human Rights Unit, Department of Justice
affect a number of rights in the Charter. [Victoria], Charter of Human Rights and
Responsibilities: Guidelines for Legislation
4.75 Human rights considerations were at the forefront of many views expressed in and Policy Officers in Victoria (2008) 13
submissions and consultations. One submission noted that ‘the Charter ensures (definition of ‘human rights’).
that human rights language and standards will be relevant to regulation of public 130 Charter of Human Rights and
Responsibilities Act 2006 (Vic) s 38(1).
place surveillance’.134 A number of submissions were especially concerned about 131 Charter of Human Rights and
ensuring adequate protections for individuals,135 while others emphasised that the Responsibilities Act 2006 (Vic) s 4.
protection of rights should not be taken too far.136 132 Charter of Human Rights and
133 Charter of Human Rights and
The right to privacy Responsibilities Act 2006 (Vic) s 28(1).
4.76 Section 13 of the Charter grants a person the right ‘not to have his or her 134 Submission 9.
privacy … unlawfully or arbitrarily interfered with’.137 Government agencies 135 Submissions 5, 9, 12, 14, 18, 20, 29, 30,
32, 34, 35, 36, 40, 42, 43.
should consider this right before installing surveillance devices and undertaking 136 Submissions 4, 10, 15, 21, 25, 26, 28.
surveillance activities.138 137 Charter of Human Rights and
Responsibilities Act 2006 (Vic) s 13(a).
138 Ibid 81.
71
4
4.77 Privacy is, however, notoriously difficult to define.139 It is a fluid concept that has
developed over time in response to new technologies and changes in cultures
and lifestyles.140 It concerns a range of ideas, including secrecy, confidentiality,
solitude, anonymity, control over information, freedom from surveillance and
protection of one’s reputation.141 Accordingly, one leading commentator has
referred to privacy as ‘a concept in disarray’.142
4.78 Privacy is considered by some to be ‘essential for freedom, democracy,
psychological well-being, individuality, and creativity’.143 Privacy enables
individuals to develop a ‘better constructed’ view of themselves and the world
around them.144 It also gives people the freedom to develop, discuss and criticise
society and government ‘anonymously … and without fear of community
reprisal’.145
4.79 Some authors suggest that protecting a right to privacy can have negative
consequences. It can cloak illegal activities by protecting them from scrutiny and
inhibit some security and law enforcement steps. The enforcement of privacy
rights can also dilute transparency and accountability by limiting the extent to
which private activities and conversations can be monitored.146 There can often
be an inherent tension between the security objectives of government and the
privacy rights of individual members of the community.
The right to freedom of movement

4.80 Public place surveillance may also affect the right to freedom of movement,
contained in section 12 of the Charter. Guidelines prepared by the Victorian
Department of Justice suggest that surveillance that enables a public authority to
monitor or trace the movements of a person within Victoria should act as a policy
trigger for consideration of the right to freedom of movement.147
The right to freedom of expression

4.81 Section 15 of the Charter deals with the right to freedom of expression. It
protects the right of individuals to express and share views, ideas and information
with others.148 This right has long been considered central to a well-functioning
democracy.149
4.82 In a liberal democratic country such as Australia there is a need for ‘a public
sphere, in which there can be open deliberation of issues of public policy, and the
opportunity of learning from such exchanges’.150
4.83 Freedom of expression is of fundamental importance to media organisations. In
fact, the term ‘freedom of expression’ is sometimes used to mean ‘press rights’.151
The media are understandably concerned to maintain their capacity to report
freely and their relative freedom to use visual and audio recording devices to
capture newsworthy information.152
4.84 There is, however, another perspective to consider. The use of surveillance devices
in public places may affect freedom of expression by limiting what people feel
comfortable saying and doing in public either because they know they are under
surveillance or because they may believe this to be the case. Recent allegations
that police have agreed to share law enforcement data about protestors with
private organisations provides a useful example.153 Individuals exercising their right
to protest may be reluctant to express themselves this way if they are aware of
being monitored and having information about them distributed to others.

4.85 In some instances there is an inevitable tension between the right to privacy and 139 See eg, Eric Barendt, ‘Privacy and
Freedom of Speech’ in Andrew Kenyon
the right to freedom of expression.154 When this occurs a balance must be struck and Megan Richardson (eds) New
between the media’s right to pursue their newsgathering role (which also involves Dimensions in Privacy Law: International
and Comparative Perspectives (2006)
the public’s right to receive that news) and the privacy rights of individuals who 11, 12. This was also noted in a number
might be affected by the gathering and publication of that news.155 of consultations and submissions, see
Submission 20. Note the commission’s
Consultation Paper provides a detailed
The right to not be unlawfully deprived of property literature review of the right to privacy.
140 See eg, Danuta Mendelson, ‘Illustory
4.86 The commission was frequently told in submissions and consultations that Rights to Confidentiality and Privacy in
surveillance devices are installed primarily for the purposes of protecting property the 21st Century?’ (Professorial address
delivered at Deakin University, Melbourne,
and deterring crime. Property rights are protected in section 20 of the Charter, 26 August 2009) 7; John Gilliom,
which provides that ‘a person must not be deprived of his or her property other Overseers of the Poor: Surveillance,
Resistance, and the Limits of Privacy
than in accordance with law’.156 Although Charter rights do not directly protect (2001) 115–136.
business, all property owners have rights at law to protect their property. 141 Daniel Solove, ‘Conceptualizing Privacy’
(2002) 90 California Law Review 1087,
4.87 Property rights are a fundamental part of our society. Numerous criminal and civil 1088; Daniel Solove, Understanding
laws protect those rights and impose sanctions upon individuals who interfere Privacy (2008) 1.
142 Daniel Solove, ‘A Taxonomy of Privacy’
with them. (2006) 154 University of Pennsylvania Law
Review, 477.
Freedom from fear 143 Solove, Understanding Privacy, above
n 141, 5.
4.88 Although freedom from fear is not specifically referred to in the Charter, it is a
144 Ibid 79.
value that underpins other rights and is a fundamental freedom in the Universal 145 Ibid 80.
Declaration of Human Rights.157 It is rarely raised in modern human rights 146 Ibid 81–2.
dialogues, causing Chief Justice Spigelman to suggest that it has become ‘the 147 Human Rights Unit, Department of Justice
[Victoria], above n 129, s 12.
forgotten freedom’.158
148 Barendt, above n 139, 11, 30–1.
4.89 Freedom from fear can be used as an argument in favour of the use of 149 Roger Toulson, ‘Freedom of Expression
and Privacy’ (2007) 41 Law Teacher 139,
surveillance in public places. One of the primary reasons for the installation of 139.
surveillance devices is to improve safety and security. Participants in some of the 150 Jeremy Shearmur, ‘Free Speech, Offence
commission’s forums said that surveillance in public places sometimes made them and Religion’ (2006) 22 Policy 21, 22.
151 See eg, Barendt, above n 139, 11, 16.
feel safer because, for example, surveillance might have reduced the likelihood
152 Submission 10.
that they would become victims of crime.159 153 See Office of the Victorian Privacy
Commissioner, ‘Briefing on Aquasure
4.90 Conversely, freedom from fear may also be a reason for regulating the use of Memorandum of Understanding’ (Press
surveillance in public places. The use of surveillance can be intimidating and can Release, 10 December 2009).
negatively alter the way some members of the public behave in public places. 154 See eg, Barendt, above n 139, 11, 30.
155 See Shering Chemicals Ltd v Falkman Ltd
[1981] 2 WLR 848, 865 (Lord Denning).
The Charter’s framework for determining when surveillance is justified 156 Charter of Human Rights and
4.91 The Charter provides a useful framework for balancing rights. It does this by Responsibilities Act 2006 (Vic) s 20.
declaring that human rights are not absolute and that they may be limited in 157 CJ James Spigelman, ‘The Forgotten
Freedom: Freedom from Fear’ (Paper
certain circumstances. The human rights in the Charter are subject to ‘specific presented at the Sydney Law School,
limitations’ that are relevant to a particular human right, as well as to a University of Sydney, 17 November 2009
and at the Australian Academy of Law,
‘general limitations clause’ that is relevant to all of the human rights contained Sydney 18 November 2009) 1–3, 6.
in the Charter. 158 Ibid 4.
159 Forum 2. See also Submissions 4, 25.
4.92 There is a specific limitation on the right to privacy in section 13 of the Charter. 160 Human Rights Committee, General
Interferences with the right to privacy are prohibited only if they are unlawful or Comment 16, (Twenty-third session,
1988), Compilation of General Comments
arbitrary. An interference that is not arbitrary is one that is ‘reasonable’;160 that is, and General Recommendations Adopted
proportionate to the end sought and necessary in the circumstances.161 Section 13 by Human Rights Treaty Bodies, UN Doc
HRI/GEN/1/Rev.6 at 142 (2003) [4].
invites the balancing of the right to privacy against other ends, and consideration 161 Toonen v Australia, Human Rights
of whether the means used, in this case surveillance, is in fact necessary to Committee, Communication no
488/1992, UN Doc CCPR/C/50/
achieve that end. D/488/1992 (31 March 1994) [8.3].
73
4
4.93 The general limitations clause in section 7 of the Charter requires that rights
be ‘balanced against each other and against competing public interests’.162 It
states that the human rights contained in the Charter may be subject to action
that limits the right, but only if the action is authorised by law. It also says
the limitation must be ‘reasonable’ and ‘demonstrably justified in a free and
democratic society based on human dignity, equality and freedom’.163 When
determining whether a limit is reasonable, the following factors must be taken
into account:
• the nature of the right
• the importance and purpose of the limitation
• the nature and extent of the limitation
• the relationship between the limitation and its purpose
• any less restrictive means reasonably available to achieve the
purpose that the limitation seeks to achieve.
4.94 Section 7 provides a useful framework when human rights conflict, that is, when
protecting one person’s rights limits the rights of another. As previously discussed,
although the use of a surveillance device may interfere with the right to privacy,
that activity may also be an exercise of the right to freedom of expression set
out in section 15 of the Charter. In such cases, section 7 instructs us to consider
the importance of the right to freedom of expression in that context (‘the
importance and purpose of the limitation’) and whether that right was advanced
by interfering with the privacy rights of others (‘the relationship between the
limitation and its purpose’).164
4.95 One submission explained the restricted way Charter rights can be limited in
relation to the use of surveillance in public places. It stated that the Charter
requires proportionality between the surveillance practice and the purpose it seeks
to achieve:
This means that a user of surveillance ought to use the least privacy-
intrusive means of achieving the purpose, and excessively intrusive forms
of surveillance may only be justifiable when designed to protect individuals
from grave physical harm.165
The Charter’s framework for evaluating the human rights impact of

surveillance regulation
4.96 The Charter also helps evaluate whether our recommended reforms would
adversely affect the human rights of users of surveillance. As noted above, the
Charter requires that statements of compatibility with human rights be prepared
for all Bills introduced to parliament.166 Department of Justice Guidelines for
preparing these statements offer a model for testing whether our recommended
reforms for public place surveillance regulation affect the rights contained in
the Charter.167
4.97 The guidelines suggest that, as a first step, a legislator should ask whether draft
laws raise human rights issues. For example, laws seeking some controls on public
place surveillance would raise the human rights issues identified in this chapter.
The scope of each relevant human right should be considered, followed by an
evaluation of whether the draft law limits, restricts or interferes with each right.
4.98 Next, a legislator must ask whether the limitations or restrictions are reasonable
and demonstrably justified after having considered all of the relevant factors in
section 7(2) of the Charter.168

162 Explanatory Memorandum, Charter of
regulatory theory Human Rights and Responsibilities Bill
2006 (Vic) 9.
4.99 Our interest in a balanced approach to regulation of public place surveillance has
led us to consider modern theoretical approaches to regulation. Regulatory theory Responsibilities Act 2006 (Vic) s 7(2).
is useful in this context because a ‘responsive regulatory approach’ takes account 164 Human Rights Unit, Department of Justice
[Victoria], above n 129, s 2.2.
of the relationship between regulation and those being regulated and offers a
165 Submission 12.
graduated approach to enforcement.
4.100 We also discuss compliance-based regulatory theory, which is characterised
167 Human Rights Unit, Department of Justice
by enforcement mechanisms that actively encourage compliance with desired [Victoria], above n 129.
behaviour. A subset of compliance-based regulatory theory is principle-based 168 Ibid 47–8.
regulation, which forms the cornerstone of the commission’s recommendations. 169 Ian Ayres and John Braithwaite,
Responsive Regulation: Transcending the
4.101 Finally, we discuss the Victorian Guide to Regulation, which encapsulates much of Deregulation Debate (1992).
170 John Braithwaite, ‘Rewards and
the modern writing in regulatory theory and apply its suggested approach to law Regulation’ (2002) 29 Journal of Law and
reform of public place surveillance. Society 12, 19; see also Robert Baldwin
and Julia Black, ‘Really Responsive
Regulation’ (Law Society Economy
Responsive regulation Working Paper No 15/2007, London
4.102 ‘Responsive regulation’—an approach developed by Ian Ayres and John School of Economics and Political
Science, 2007).
Braithwaite—is one of the most influential developments in regulatory theory over 171 Braithwaite, above n 170, 20.
the last two decades.169 This approach to regulation grew out of frustration at the 172 Ibid 20.
polarised nature of many regulatory debates. Businesses were seen either as entities 173 Ayres, above n 169, 35, 39.
that needed punishment when they broke the law, or as responsible corporate
citizens who could be persuaded to comply. There was no middle ground.170
4.103 As Braithwaite notes, the threat of punishment alone is an ineffective means of
regulating business. Moreover, it has the potential to backfire and make situations
worse for those people who may be future victims of the harm in question.171
Responsive regulation, however, relies on persuasion and cooperation in the first
instance. ‘Consistent punishment of business non-compliance would be a bad policy
… persuasion is normally the better way to go when there is reason to suspect that
cooperation with attempting to secure compliance will be forthcoming.’172
4.104 Ayres and Braithwaite propose a regulatory pyramid to assist in determining when
punishment becomes necessary and when persuasion is more appropriate.173
Criminal
penalties
Civil penalties
Warnings
Persuasion
Collaboration
Ayres and Braithwaite: Regulatory Pyramid
75
4
4.105 The pyramid model emphasises that most effort should be directed towards
initiatives at the base of the pyramid. Escalation to methods further up the
pyramid should occur only when efforts to secure compliance through persuasion
have failed. This reflects that ‘cooperative approaches such as education,
persuasion and restorative justice are normally better … as a first strategy’.174
4.106 Having a specific regulator in place to administer the system in question is
important to the success of the model. The model works by providing a regulator
with flexibility and a range of tools that focus on cooperative compliance and only
revert to coercion if efforts at persuasion fail. Self-regulation, co-regulation and
direct regulation all fall within the pyramid.175
4.107 Those subject to regulation are essentially categorised into three different groups.
First, at the base of the pyramid, the organisation or individual is presumed to
be willing to comply. Secondly, in the centre of the pyramid, it is presumed the
organisation or individual is rational but needs incentives to comply. Thirdly, the
apex of the pyramid deals with the irrational organisation or individual whose
actions require a much heavier sanction.
4.108 Responsive regulation acknowledges that ‘persuasive and compliance-oriented
enforcement methods are more likely to work where they are backed up by the
possibility of more severe methods’.176 Thus, where regulation seeks to promote
socially responsible ends, there is a need to focus on persuasive means to
encourage responsible, law-abiding behaviour. Ayres and Braithwaite write that
when creating obligations involving social responsibility, models work best when
the regulator has ‘benign big guns’.177 By this the authors mean that ‘persuasion
will normally only be more effective than punishment in securing compliance
when the persuasion is backed up by punishment’.178 A culture of cooperation
is easier to establish when there are serious consequences for misbehaviour,
but when supportive methods are the first means of attempting to promote
good behaviour.179
Compliance-based regulation
4.109 Many scholars have considered how best to achieve compliance through
persuasion. These studies suggest that ‘in practice … officials have often relied
on education, persuasion and cooperation rather than deterrence to persuade
business to preventatively comply with regulatory goals’.180 The body of theory
that explains this approach can be described as compliance-based regulatory theory.
4.110 Compliance-oriented regulation relies on a range of strategies. First, it aims
to secure compliance with regulatory goals through ‘(a) codes of conduct and
self-regulation, (b) voluntary agreements between government and industry,
(c) industry standards and internal management systems, and (d) economic
instruments and market mechanisms’.181 Like principle-based regulation (discussed
below), compliance-based regulation focuses on the desired outcome rather than
the means used to achieve it. This permits flexibility of approach to regulation.
4.111 Like responsive regulation, the first efforts by a regulator in a compliance-based
system are education, cooperation and structured guidance. A compliance-based
approach is about
providing incentives and encouragement to voluntary compliance and
nurturing the ability for private actors to secure compliance through
self-regulation, internal management systems, and market mechanisms
where possible.182

4.112 Christine Parker believes that compliance-based regulation can be expressed in 174 Braithwaite, above n 170, 20–1.
175 Ayres, above n 169, 39.
seven principles:
176 Christine Parker, ‘Reinventing Regulation
1. identification and analysis of problems Within the Corporation: Compliance
Oriented Regulatory Innovation’ (2000)
2. harnessing of private capacity to secure compliance through alternatives to 32(5) Administration and Society 529,
541.
public regulation 177 Ibid 19.
3. use of process or outcome-based regulation where possible to maximise 178 Braithwaite, above n 170, 19.
179 Ayres, above n 169, 48–9.
voluntary compliance
180 Parker, above n 176, 533.
4. provision of rewards and incentives for high/voluntary compliance 181 Ibid 542.
182 Ibid 539.
5. informed monitoring of non-compliance 183 Ibid 535
6. dialogue and restorative justice when compliance fails, and 184 Ibid 536–7.
185 Ibid 539.
7. tit-for-tat enforcement when restorative justice fails.183 186 Ibid 534.
187 Ibid 538.
4.113 Compliance-based regulation also requires a strong emphasis on monitoring 188 See eg, Julia Black, Martyn Hopper and
for non-compliance. Monitoring determines whether the system is achieving Christa Band, ‘Making a Success of
Principles-Based Regulation’ (2007) May
its aims.184 A system that includes monitoring recognises that not all impacts Law and Financial Markets Review 191;
are foreseeable, and that gaps and loopholes in the regulatory model can be Surendra Arjoon, ‘Striking a Balance
Between Rules and Principle-Based
identified using the information gathered. Approaches for Effective Governance:
a Risks-Based Approach’ (2003) 68(1)
4.114 Secondly, compliance-based regulation takes a rehabilitative approach to Journal of Business Ethics 53.
enforcement rather than a punitive one. Parker writes that in the face of 189 Black, above n 188, 195.
non-compliance this approach would require an ‘attempt to restore or nurture 190 Australian Law Reform Commission, For
Your Information: Australian Privacy Law
compliance rather than reverting immediately to a purely punishment-oriented and Practice: Volume 1: Final Report 108
approach’.185 (2008) [4.4].
4.115 Critics argue that a major weakness in compliance-based regulatory theory is that in
practice businesses will only do the right thing when it is in their interest to do so.186
However, studies have found that this is not always the case. One US study examined
whether cooperative enforcement, or punitive, sanction-based, enforcement, was a
more effective means of protecting the environment. It found that there was greater
success and compliance when using a cooperative approach in which a regulator
worked with stakeholders to develop commitment and capacity for compliance.187
Principle-based regulation
4.116 A consequence of compliance-based regulation is that it places great emphasis
on principles that articulate the desired outcomes of any use of regulation.
Scholars who support principle-based regulation suggest that regulation that
relies exclusively on proscriptive rules is a creature of the past and does not have
the flexibility required for regulation in the modern era.188 ‘Principles … have
the benefit of congruence: of communicating the regulatory objectives and
promoting behaviour that will achieve those objectives.’189
4.117 Principle-based regulation focuses on outcomes and uses overarching principles
to guide the regulatory regime. It seeks to address the problems inherent in
rule-based regulation by enabling the regime to respond to new issues as they
arise without having to create new rules. In a rapidly changing field, such as
public place surveillance, a principles-based approach can focus the aims of new
regulation and provide a set of overarching standards than can adapt to new
technologies and practices.
4.118 Principle-based approaches are already in place in state and federal information
privacy laws. In its recent review of federal privacy laws, the ALRC recognised
the importance of principle-based regulation when dealing with privacy.190 The
commission agrees with this approach and the surveillance principles described in
Chapter 5 form the centrepiece of our recommendations.
77
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4.119 One of the criticisms of principle-based regulation is that it leads to uncertainty
and inconsistency as organisations and agencies interpret and adapt to the
principles.191 Moreover, principles-based regulation is considered inadequate as
a form of regulation on its own.192 The ALRC’s approach to privacy regulation
is, however, a hybrid model that relies on principles as high level objectives and
uses more traditional rule-based regulation to ensure certainty and compliance.193
The commission has adopted a similar approach to the regulation of public place
surveillance.194
The Victorian Guide to Regulation

4.120 The commission has also considered the Victorian Guide to Regulation. The Guide
encapsulates much of the modern theoretical writing and provides a blueprint
for regulatory reform in Victoria. It seeks to establish a consistent regulatory
framework across the whole of the Victorian government.195 The commission’s
recommendations will ultimately have to satisfy the Victorian Competition and
Efficiency Commission (VCEC) of their value in accordance with the Guide if they
are to be adopted.
4.121 The VCEC outlines characteristics of good regulatory systems. It requires a
step-by-step approach that identifies the existence of a problem, the justification
for government action and an assessment of whether regulation and the form
of regulation chosen is the best option available to government to address
the concern.
4.122 The Guide’s threshold requirement is that there must be a legitimate justification
for government intervention. The Guide suggests that there are at least three
broad reasons for governments to choose to regulate in a particular field. They
are first, in order to deal with the failure of the market to regulate an activity,
secondly, to address social welfare objectives and, thirdly, to address the
management of public risk.196
4.123 Regulation of public place surveillance clearly falls within two of these categories.
Important rights and freedoms are threatened by inappropriate, disproportionate
or overly intrusive public place surveillance. This problem is exacerbated by the
prevalence of surveillance use in Victoria, the increasing sophistication and
capabilities of surveillance devices, and the increasing inability of current laws
to effectively regulate in this area. In addition, there is a real risk of harm to
vulnerable sections of the community if public place surveillance remains
largely unregulated.
Is there a problem that requires intervention?

4.124 There are major shortcomings in the way we regulate public place surveillance
because we have no laws specifically designed for this purpose. Commonwealth
and State information privacy laws regulate public place surveillance to a limited
extent only as part of general regimes that govern the collection and use of
private information. The Surveillance Devices Act 1999 (Vic) (SDA) is of limited
relevance because it is primarily concerned with the use of concealed surveillance
devices in private places and with authorising and monitoring the police use
of surveillance.197
4.125 There is widespread concern about the lack of certainty in the existing regulatory
regime. Users of surveillance frequently stated that they were unsure of what
surveillance they could lawfully undertake and welcomed further guidance.198 The
commission’s recommendations seek to balance the continuing use of surveillance
with the rights of individuals who may be harmed unless surveillance is used
responsibly and only when appropriate.

4.126 The legitimate interest that public authorities and private organisations have 191 Julia Black, ‘Managing Discretion’ (Paper
presented at the ALRC Conference,
in using surveillance devices to safeguard against threats to public safety and Penalties: Policy, Principles and Practice in
interference with property must be balanced against the potential damage to Government Regulation, Sydney, 7 June
2001) 23–4.
individual and community interests by misuse and overuse of surveillance in public 192 See eg, Julia Black, ‘Forms and Paradoxes
places. Only government can balance these competing interests and take steps to of Principles Based Regulation’, LSE Legal
Studies Working Paper No 13/2008
discourage or prevent the inappropriate use of surveillance. (2008) <http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=1267722> at
4.127 The harm surveillance can cause is not always easy to identify, especially when 21 December 2009.
compared to other kinds of harm, such as physical injuries or damage to property. 193 Australian Law Reform Commission,
above n 190, 241–2.
However, just because surveillance-related harm, such as invasion of privacy, is
194 The details of the commission’s specific
difficult to quantify, it does not mean there is no need for regulatory action to reform options are contained in the
minimise the incidence of harm.199 following chapters. Chapter 5 outlines the
proposed principles to guide the use of
4.128 Some useful parallels can be drawn between the potential harm caused by surveillance in public places.
195 Department of Treasury and Finance,
unregulated use of surveillance in public places and the harm caused by various Victorian Guide to Regulation (2nd ed,
threats to the physical environment. In all of these instances, the harm may not 2007) 1–3.
always be immediate or easily quantifiable.200 Sometimes the potential harm 196 Ibid 2–1, 2–2, 2–3.
197 Victoria, Parliamentary Debates,
can seem less important, or in less need of an immediate response, because ‘it Legislative Assembly, 25 March 1999,
is perceived to be too far over the horizon’.201 Some harms, such as the chilling 191–2 (Jan Murray Wade, Attorney-
General).
effect brought about by the excessive use of surveillance in public places, might
198 Submissions 7, 26, 33; Consultation 11;
not affect an individual directly or immediately, but might still influence the way Site Visit 16.
that person lives and the community uses public places. The particular activity 199 Solove, above n 142, 487–8.
might upset ‘the balance of social or institutional power in undesirable ways’.202 200 Dan Adams, ‘Climate Change and
Human Rights’ (Paper presented as the
4.129 Once the need for regulation is established, the Guide suggests that regulatory 2008 Human Rights Oration, Victorian
Equal Opportunity and Human Rights
reform be characterised by the following eight features:203 Commission, Melbourne, 4 January
2009) 7–8.
1. Effectiveness: ‘Regulation … must be focused on the problem and achieve 201 Ibid.
its intended policy objectives with minimal side-effects.’ 202 Solove, above n 142, 488.
2. Proportionality: Regulatory measures must be proportional to the problem above n 195, 3–2.
that they seek to address. 204 For specific recommendations forming
part of the commission’s model see
3 Flexibility: Government should pursue a culture of continuous improvement Chapters 5, 6 and 7.
and any new legislation should not constrain future government responses.
4. Transparency: The development and enforcement of regulation should
be transparent to the community and business sector. ‘Transparency can
promote learning and information-sharing within the regulatory system,
and can also help to build public trust in the quality of regulation and the
integrity of the process.’
5. Consistency and predictability: Regulation needs to be consistent with other
government policies and applied consistency. It should also be predictable to
allow for a stable regulatory environment.
6. Cooperation: Regulation should be developed cooperatively and aim to build
a cooperative culture.
7. Accountability: Government and enforcement agencies should be monitored
with the result being reported to the public on a systemic basis.
8. Review: Robust and transparent mechanisms for appeal should be available
when regulatory action has a significant impact on an individual or business.
4.130 According to the Guide, each of these characteristics should be present in any
new Victorian regulatory regime. They have been considered and applied to the
package of reforms recommended by the commission.204
79
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an overview of our recommendations and our approach
4.131 The commission’s conclusions about the best possible regulatory approach are
guided by our extensive consultations, site visits, submissions and research. Our
Consultation Paper contained a range of reform options that produced helpful
responses from many organisations and individuals.
4.132 Our research and consultations have led us to recommend a regulatory approach
that is primarily educative. The commission believes that regulation must focus
on encouraging best practice use of surveillance rather than placing additional
burdens on business and government.
4.133 The commission faced a number of challenges when developing its reform
options. First, in this area ‘there is no clear-cut wrongdoer, no indisputable villain
whose activities lack social value’.205 Secondly, the capacity of the technology
used to engage in surveillance in public places is constantly changing. Thirdly,
it is extremely difficult to regulate most of the activities of once-off uses of
surveillance devices, such as people who use mobile phones that have a range
of functions.206
4.134 An approach that emphasises information collection and guidance about
responsible practices is a useful first step in a field in which there has been little
regulation. As technology develops and the potential for harm increases, it is
important to provide guidance to users and information to the community about
the use of surveillance.
4.135 The commission has developed a principle-based, outcome-focused approach
to regulation of public place surveillance. We have devised a set of overarching
principles that can be included in legislation. Those principles, which are set out in
Chapter 5, seek to balance competing rights and interests.
4.136 The commission recommends that an independent regulator be appointed. In line
with modern regulatory theory, the primary function of the independent regulator
will be to work collaboratively with surveillance users. The regulator will assist
users to comply with the principles and will inform the public about the operation
of surveillance in public places. The commission has recommended in Chapter
5 that the independent regulator have a range of powers to guide and ensure
compliance with the principles.
4.137 In the chapters that follow we describe other recommendations that are designed
to deal with the most serious misuses of surveillance in public places. These
responses include the introduction of civil penalties for breaches of the SDA,
clarifying the reach of existing criminal prohibitions in the SDA, the creation of
a new offence designed to deal with the most offensive uses of surveillance and
two new civil causes of action for misuse of surveillance.
conclusion
4.138 Public place surveillance offers both benefits and risks. It affects important rights.
Do the risks outweigh the benefits? Which rights are paramount? The responses
depend on a range of matters, including the type of public place surveillance
under consideration, the purpose for which it is used, and the organisation or
person conducting the surveillance.

4.139 Achieving a balance between the risks and benefits of public place surveillance 205 Solove, above n 142, 563.
206 Submissions 11, 13, 29, 33, 38.
sometimes involves personal choice. At times we must choose whether to forfeit
207 Dan Oakes, ‘Melbourne Airport Scanners
some aspects of our privacy in exchange for one or more of the benefits of public “Will Show Private Parts”’, (2008) Sydney
place surveillance. Some people may, for example, be willing to give up privacy Morning Herald (Sydney) <www.smh.
com.au/news/news/airport-scanners-
with respect to their car travel patterns in return for speedier travel on a toll road. show-genitals/2008/10/15/12237500
During the recent trial phase of the x-ray body scanners at Melbourne airport 83412.html> at 21 January. 2009. A
woman was recently barred from flying
people were able to decide whether to allow invasive scrutiny of their body image in the UK because she refused to submit
to avoid submitting to the alternative, a physical pat-down.207 to a body scan: ‘Muslim Woman Barred
From Flight After Refusing Body Scan’
(2010) Telegraph UK <www.telegraph.
4.140 As these examples suggest, however, the notion of choice may sometimes be co.uk/travel/travelnews/7358967/Muslim-
illusory. The non-toll roads may be heavily congested, and the alternative of a pat- woman-barred-from-flight-after-refusing-
body-scan.html> at 25 March 2010.
down search may not be any less privacy invasive than a full body scan. Moreover,
as public place surveillance becomes more widespread, we may find ourselves
increasingly foregoing our privacy not merely for convenience, but also in order to
access basic services.
4.141 Regulation is needed in order to encourage responsible practice, to assist with
those instances where choice about submitting to surveillance is illusory, and
to respond effectively to gross misuse of surveillance devices. Any regulation
of public place surveillance must be flexible enough to balance the many
competing interests.
81
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5
Chapter 5
Promoting Responsible CONTENTS
LLANCEUse of Surveillance in
84 Introduction
84 Principles to govern the

use of surveillance in
Public Places
public places
SURVEILLANCE SURVEILLANCE SURVEILLANCE 89 An independent regulator

of public place surveillance

90 Regulatory functions
90 Encouraging responsible
practice
SURVEILLANCE SURVEILLANCE SURVEILLANCE 93 Significant surveillance

users: ensuring responsible

98
pracice
Investigations and
SURVEILLANCE SURVEILLANCE SURVEILLANCE proceedings in relation to

SDA breaches

99 The most appropriate
body to regulate public
place surveillance
SURVEILLANCE SURVEILLANCE SURVEILLANCE 101 Review of Victoria Police

surveillance practices

103 Regulatory features not
recommended at this stage
SURVEILLANCE SURVEILLANCE SURVEILLANCE 105 Conclusion

83
5
Chapter 5
Promoting Responsible Use of
introduction
5.1 This chapter contains details of the commission’s recommendations for promoting
the responsible use of surveillance in public places in Victoria. We have developed an
approach to regulation that is based on principles and focuses upon outcomes. The
first limb of the commission’s regulatory approach is a set of overarching legislative
principles to guide all users about responsible use of public place surveillance.
5.2 The second limb is the creation of an independent regulator who will assist users
to comply with the principles and inform the public about responsible surveillance
use. In this chapter we outline the range of functions and powers necessary
for the regulator to fulfil these tasks, bearing in mind that the least restrictive
regulatory methods are desirable. In preparing these recommendations, we have
drawn upon the opinions expressed in submissions and consultations and the
views of our Consultative Committee.
5.3 Although appropriate guidance about the responsible use of surveillance in public
places is a cornerstone of our recommendations, we believe that guidance alone
cannot protect people from some practices that seriously affect their privacy.
Chapters 6 and 7 deal with additional regulatory measures for particularly
offensive uses of surveillance.
principles to govern the use of surveillance in public places

5.4 Victoria does not have any laws that seek to promote the responsible use of
surveillance in public places. As outlined in Chapter 3, existing privacy and
surveillance laws were not designed to deal with public place surveillance. Privacy
laws regulate the handling of ‘personal information’1 by agencies and large
organisations. They are limited in their application to public place surveillance
because common means of surveillance, such as CCTV, monitor the activities of
large numbers of people who may not always be easily identifiable.
5.5 The Surveillance Devices Act 1999 (Vic) (SDA) was designed to prohibit the use
of covert surveillance devices primarily in private places, while also allowing law
enforcement agencies to engage in such activities when authorised by judicial
warrant to do so.
5.6 We published draft policy principles in our Consultation Paper and invited
comments. Most people who expressed a view were supportive of the proposal
to introduce principles to guide regulation of public place surveillance.2 For
example, the Federal Privacy Commissioner noted that
a simple set of principles is an effective way to encourage users of
surveillance to build privacy compliant practices into a surveillance system
prior to its implementation.3
5.7 Some people who made submissions were concerned that any principles should
reflect the rights contained in the Charter of Human Rights and Responsibilities
Act 2006 (Vic) (the Charter), in particular the right to privacy.4 When refining the
principles, we took account of the views expressed in submissions and considered
the principles contained in federal and state privacy laws.
5.8 Devising general principles about the use of surveillance in public places is
challenging because there are many different users of surveillance and many
contexts in which it is used. What the community would consider acceptable
conduct by government departments and large organisations might differ from
what would be expected from individuals using surveillance devices for their own
purposes. Adding to the complexity is the wide range of interests at stake.

5.9 The principles are designed to work together. Although they are expressed very 1 Personal information is defined as being
information or an opinion (including
generally, a primary function of the proposed regulator will be to provide users of information or an opinion forming part
surveillance with guidance about how each of the principles applies to them. of a database) that is recorded in any
form and whether true or not, about an
individual whose identity is apparent,
six public place surveillance principles or can reasonably be ascertained, from
the information or opinion: Privacy Act
5.10 We have devised six public place surveillance principles. 1988 (Cth) s 6 (read in conjunction with
section 16B); Information Privacy Act
1. People are entitled to a reasonable expectation of privacy when in public 2000 (Vic) s 3.
places. 2 See eg, Consultations 1, 4, 5, 14.
3 Submission 35.
4 See eg, Submissions 5, 13, 20;
consider the reasonable expectations of privacy of individuals. Consultation 28.
5 Eg, PG and JH v United Kingdom (2001)
3. Users of surveillance devices in public places should take reasonable steps to IX Eur Court HR; Aubry v Éditions Vice-
inform people of the use of those devices. Versa Inc [1998] 1 SCR 591.
6 Eg, Campbell v MGN Ltd [2004] 2 AC
4. Public place surveillance should be for a legitimate purpose related to the 457; Katz v United States 389 US 347
(1967).
activities of the organisation conducting it.
7 Ireland Law Reform Commission, Privacy:
5. Public place surveillance should be proportional to its legitimate purpose. Surveillance and the Interception of
Communications Report 57 (1998) [2.11].
6. Reasonable steps should be taken to protect information gathered through 8 NSW Law Reform Commission,
Surveillance: An Interim Report, Report
public place surveillance from misuse or inappropriate disclosure. No 98 (2001) [4.41].
We explain these principles in the following paragraphs. 9 Victoria, Parliamentary Debates,
Legislative Council, 11 May 1999, 524–5
(Maree Luckins); Victoria, Parliamentary
1. People are entitled to a reasonable expectation of privacy when in public places Debates, Legislative Assembly, 22 April
1999, 551 (Rob Hulls) 555 (Victor Perton),
5.11 There is increasing international acceptance of the fact that people’s reasonable 559 (Hurtle Lupton).
expectations of privacy extend to activities in public places. The notion that people 10 Nicole Moreham, ‘Privacy in Public Places’
can have reasonable expectations of privacy in public places has been accepted (2006) 65 Cambridge Law Journal
606, 618.
in cases arising under European and Canadian human rights instruments,5 and at 11 Consultation 12.
common law in the UK and the US.6 The human right to privacy in the Charter is 12 Consultation 12.
not limited to private spaces.
5.12 The Irish Law Reform Commission has stated that privacy is a personal
right, ‘following the personal space of the person’.7 The NSW Law Reform
Commission (NSWLRC) agreed with this view, noting that ‘for this reason the
right is not extinguished by entry into either a public space or onto another’s
private property’.8 Some members of the Victorian parliament acknowledged
the expectation of privacy in some public places, such as at the beach, when
considering the SDA in 1999.9
5.13 Most people demonstrate an expectation of some privacy when in public places—
for example, by wearing clothing to hide intimate areas of the body and avoiding
discussion of personal matters when there is a chance of being overheard.10 In
submissions and consultations most groups were of the view that individuals do
have some right to privacy in public places. However, most also stated that the
right to privacy is not as extensive in public places as it is in private places.
5.14 As technology enables ever-closer scrutiny of individuals, the view that a right
to some privacy exists in public places has gained more popularity. Even when
submissions suggested that little or no right to privacy in public places existed,
they nevertheless acknowledged that the use of surveillance in public should be
limited to some extent. It was noted that, for example, particular care should be
taken before filming a private funeral on a public street.11 It was also noted that
permission of a child’s parents should be sought before filming the child.12
85
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Chapter 5
5.15 Although there may be shared expectations of privacy in public places, the
extent and reasonableness of those expectations differs according to context.
Commentators have identified a number of factors relevant to the expectation
of privacy in public places.13 Submissions and consultations also noted certain
relevant factors. The commission’s view is that the reasonableness of any
expectation of privacy in public will depend on, among other things, the following
factors:
• the location
• the nature of the activity being observed
• whether the activity is recorded and disseminated
• the type of surveillance used
• the identity of the person being observed (for example a public
official, celebrity or a member of the public)
• whether the surveillance was harassing in nature
• whether the surveillance was covert
• whether the person specifically consented to the surveillance.14
2. Users of surveillance devices in public places should act responsibly and consider
the reasonable expectations of privacy of individuals
5.16 This principle seeks to oblige surveillance users to consider the reasonable
expectations of privacy of people who may be subject to that surveillance.
For example, this principle should make it quite clear that the use of visual
surveillance in a department store’s fitting rooms to deter theft would be contrary
to reasonable expectations of privacy. Consequently, it would not be responsible
practice to use a visual surveillance device in this area for this purpose.
5.17 There may be situations in which the ‘reasonable expectations’ of privacy of
individuals is not clear. In these instances surveillance users should be able to turn
to the regulator for guidance about what is appropriate in the circumstances.
3. Users of surveillance devices in public places should take reasonable steps to

inform people of the use of those devices
5.18 This principle seeks to ensure that members of the public are aware of when they
are under surveillance. Notification reduces the potential for harm by allowing
people to adjust their behaviour in response to the surveillance activity. Many
submissions emphasised that people should know when they are being watched,
by whom and for what purpose.15 Organisations representing Indigenous people
also suggested that there should be transparency about who has access to any
surveillance footage.16
5.19 What constitutes ‘reasonable steps to inform people of the use’ of surveillance
devices will depend upon context. For example, while it is reasonable to expect a
department store to have signs notifying the public that they use CCTV, it would
seem unreasonable to insist that a person taking a photograph on a mobile
phone should always alert the public to his or her actions. The regulator will be
well placed to advise surveillance users about what is reasonable in their particular
circumstance, and the public about what they can expect.

5.20 In determining what is reasonable, the regulator should consider the particular 13 See Law Reform Commission [Ireland],
Privacy: Surveillance and the Interception
circumstances of each type of surveillance use. For example, most CCTV operators of Communications, Report 57 (1998)
should not be required to place signs under every single camera in operation. It [2.13]–[2.19]; Moreham, above n 10, 620.
14 These factors are outlined further in our
may be more appropriate to use a limited number of well-placed signs, including Consultation Paper.
a visual depiction of a CCTV camera where appropriate. Some uses of surveillance 15 Roundtable 29.
(for example public filming by a clearly identifiable media crew) will constitute 16 Roundtable 28.
reasonable notice without the provision of any extra signage. Further, the 17 Roundtables 1, 2, 9, 19, 29.
18 Roundtable 18.
regulator should assist users to ensure that the economic burden of providing
notice does not outweigh the potential benefits in each particular circumstance. Workplace Privacy: Final Report (2005)
[3.47].
4. Public place surveillance should be for a legitimate purpose related to the activities 20 NSW Law Reform Commission, above n 8.
of the organisation conducting it 21 Ibid [4.47].

22 Victorian Law Reform Commission, above
5.21 This principle seeks to ensure that organisations and agencies do not utilise n 19 [3.50].
surveillance in a way that is arbitrary or unnecessarily intrusive. In our preliminary 23 Peck v United Kingdom, 44647/98 [2003]
I Eur Court HR 44, [76].
consultations many groups supported this principle.17 The view was expressed
24 Leon Hempel and Eric Töpfer, CCTV in
that there should be a valid reason for surveillance, and that users should have to Europe: Final Report (2004) 66–7. The
report provides a comparative overview of
justify their practices.18 CCTV use in Austria, Denmark, Germany,
Hungary, Norway, Spain and the UK.
5.22 What constitutes a ‘legitimate purpose’ will vary according to the circumstances.
In our Workplace Privacy report, we noted that one way to identify a legitimate
purpose is to require a direct connection between an organisation’s operations
and the surveillance practice, and that the connection not be trivial or incidental.19
5.23 The NSWLRC identified the following legitimate uses of public place surveillance:
• protection of the person
• protection of property
• protection of the public interest
• a catch-all category, ‘protection of a legitimate interest’.20
5.24 Further, the purpose must be related to the activities of the organisation. The
NSWLRC noted that surveillance cameras in a casino were not being used in a
manner appropriate to their purpose when zooming in on female patrons.21
5. Public place surveillance should be proportional to its legitimate purpose

5.25 This principle seeks to ensure that the means of surveillance employed by an
organisation is proportionate to the legitimate purpose for which it is used.
Excessively intrusive surveillance should be used only for particularly important
purposes. For example, a highly intrusive form of surveillance such as an x-ray
body scanner may be justifiable when designed to protect individuals from
grave physical harm, but its use to avoid minor loss of property is not likely to
be proportionate to its purpose. The principle of proportionality means that a
user of surveillance ought to use the least privacy-intrusive means of achieving
their purpose.22
5.26 The European Human Rights Convention has been interpreted to require
proportionality between the surveillance practice and the purpose it seeks to
achieve.23 A study into the social and political impacts of CCTV in European cities
recommended allowing video surveillance in public places for only a limited set of
clearly defined purposes, and making surveillance use transparent.24
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5.27 Given the many situations in which surveillance in public places occurs, it is not
possible to describe in general terms those surveillance activities that may be
proportional in particular circumstances. Instead, it is hoped this principle will
encourage surveillance users to assess their practices and consider whether there
are less intrusive ways to achieve the same purpose. The regulator will be well
placed to issue guidelines and to assist individual users of surveillance.
6. Reasonable steps should be taken to protect information gathered through public

place surveillance from misuse or inappropriate disclosure
5.28 This principle seeks to ensure that users of public place surveillance act responsibly
by safeguarding any information they gather so that innocent people are not
harmed by its misuse or disclosure without good cause.
5.29 Surveillance users have a wide variety of procedures in place concerning the
handling, storing and sharing of information. Some users of CCTV systems, for
example, keep all footage in a secure room, allow access only to designated staff
and have strict protocols in place for the provision of footage to external parties.
The commission considers this to be best practice. Other users stream their
footage to monitors that may be viewed by a large number of people, and have
no protocols in place for the release of footage to external parties.
5.30 This principle, which draws on existing information privacy principles, is designed
to discourage the misuse of information obtained by surveillance. As noted in one
submission, these principles are intended to operate in a way that expands upon,
but complements, the existing information privacy laws because those laws do
not effectively regulate the use of all information collected by surveillance, such as
material captured by CCTV.25
RECOMMENDATIONS
1. The Victorian parliament should enact new laws that promote the
responsible use of surveillance devices in public places.
2. The legislation should include the following guiding principles.
1. People are entitled to a reasonable expectation of privacy when in
public places.
consider the reasonable expectations of privacy of individuals.
3. Users of surveillance devices in public places should take reasonable
steps to inform people of the use of those devices.
4. Public place surveillance should be for a legitimate purpose related to
the activities of the organisation conducting it.
5. Public place surveillance should be proportional to its legitimate
purpose.
6. Reasonable steps should be taken to protect information gathered
through public place surveillance from misuse or inappropriate
disclosure.

25 Submission 14.
an independent regulator of public place surveillance 26 Also the Commissioner for Law
Enforcement and Data Security, the
5.31 The commission believes there should be an independent regulator to guide Victorian Commission for Gambling
responsible use of public place surveillance in Victoria. The primary roles of the Regulation and the Special Investigations
Monitor.
regulator would be to promote the responsible use of surveillance in public places
27 See eg, Submissions 2, 5, 7, 9, 11, 12;
by providing practical guidance to surveillance users, and to keep the government Forums 1, 5; Consultations 5, 9, 11,
and the people of Victoria fully informed of rapidly changing technology. 15, 17.
28 Including Submissions 7, 26, 28, 33;
5.32 Currently, no regulator has specific responsibility for monitoring the use of Consultation 11; Site Visits 10, 16.
surveillance in public places. The Victorian and Federal Privacy Commissioners’ 29 Submissions 7, 11, 30, 33; Forum 1;
Consultations 8, 14; Site Visit 10.
existing responsibilities in relation to public place surveillance in Victoria are 30 See Briefing 15.12.09: National CCTV
limited. The Commissioners have oversight roles in relation only to the personal Oversight Body, The National CCTV
Strategy Board, Home Office <www.
information held by public agencies and large organisations. Although other crimereduction.homeoffice.gov.uk/cctv/
regulators, such as the Director of Liquor Licensing,26 have some responsibilities cctv_oversight_body_b.pdf> at 20 January
2010.
in relation to public place surveillance, their oversight of this area is incidental to
31 A modified version of the Affirmative
their primary functions and involves only particular users of surveillance. Action (Equal Opportunity for Women)
Act 1986 (Cth).
5.33 In our Consultation Paper we suggested the creation of a regulator to monitor 32 Explanatory Memorandum, Equal
public place surveillance in Victoria. There was widespread support for this Opportunity for Women in the Workplace
Amendment Bill 1999 (Cth) 1.
proposal.27 Significantly, many surveillance users said they would benefit from 33 Equal Opportunity for Women in the
guidance on how to conduct public place surveillance responsibly.28 Workplace Act 1999 (Cth) s 10.
34 Equal Opportunity for Women in the
5.34 Many of the surveillance users we consulted favoured a regulatory regime Workplace Act 1999 (Cth) ss 3, 6, 13.
that is not intrusive or prescriptive and which emphasises the importance of 35 Equal Opportunity for Women in the
Workplace Act 1999 (Cth) s 19.
educating surveillance users about responsible practices and privacy protection.29
36 Explanatory Memorandum, Equal
Surveillance users should be encouraged to work with a regulator to ensure that Opportunity for Women in the Workplace
they are conducting surveillance responsibly and in accordance with public place Amendment Bill 1999 (Cth) 1–2.
surveillance guidelines.
5.35 The UK government has recently taken the first step down this path. As a result of
its 2007 report on a national CCTV strategy, the Home Office has established an
interim independent regulator for CCTV in the UK. The regulator has 12 months
to draft recommendations to the Minister for Home Affairs on how CCTV should
be regulated.30 The regulator is required to raise public awareness, set standards
and establish a complaints process.
5.36 A broadly similar regime to that proposed by the commission was introduced
federally in 1999 under the Equal Opportunity for Women in the Workplace
Act 1999 (Cth) (EOWWA),31 which established a regulator to promote equal
opportunity for women in the workplace. That regime emphasises a facilitative
rather than a punitive approach to compliance.32 The primary role of the regulator
is to provide advice to employers, to undertake research, and to promote
understanding and acceptance of the equal opportunity principle.33
5.37 Under the Act, all employers of more than 100 people must develop a program
for fostering equal opportunities for women, and report outcomes to the regulator.34
Where they fail to do so, the regulator may report them to the Minister.35
5.38 Although the regime covers government and private employers, it avoids
imposing an undue regulatory burden on business by exempting employers with
less than 100 employees and by keeping compliance costs to a minimum.36
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5.39 The level of compliance with the Act is significant—the 2008 annual report
listed 12 non-compliant employers and noted that there were 2501 compliant
employers. The report also noted that public feedback about the scheme was
overwhelmingly positive.37
5.40 The commission is of the view that a broadly similar model is appropriate for the
regulation of public place surveillance.
RECOMMENDATION
3. A regulator should be responsible for the oversight of public place
surveillance in Victoria.
regulatory functions
5.41 Responsive regulation requires a suite of tools for the regulator when encouraging
compliance with best practice guidelines. We have designed a multifaceted
regime that places emphasis on education and encouragement, and moves to
more punitive enforcement mechanisms only as a last resort.
5.42 First, the regulator should have responsibility for monitoring surveillance use and
technology, and for educating surveillance users and the general community
about their rights and responsibilities. The development of best practice guidelines
to aid users of public place surveillance is central to this role. We discuss these
functions below under ‘Encouraging responsible practice’.
5.43 Secondly, it is the commission’s view that the regulator should work closely with
significant government and private users of public place surveillance to ensure they
employ best practice standards. This should include reviewing advice prepared by
the users and advising on any areas for improvement, examining their surveillance
practices where appropriate, and reporting findings to parliament. We discuss these
functions below under ‘Significant surveillance users: ensuring responsible practice’.
5.44 Thirdly, the commission is of the view that it is appropriate for the regulator to
seek civil penalties for the principal offences in the Surveillance Devices Act 1999
(Vic) when this course is preferable to criminal prosecutions. This is discussed
below and further in Chapter 6.
encouraging responsible practice

5.45 In order to encourage responsible practice by all public place surveillance users,
the commission recommends that the regulator should be responsible for
• researching and monitoring surveillance technology and the use of
surveillance in public places
• educating, providing advice and promoting understanding of laws
and best practice in relation to public place surveillance
• developing and publishing best practice guidelines to illustrate
appropriate use of public place surveillance technology.
research and monitoring
5.46 Public place surveillance is used extensively in Victoria and its use has increased
markedly in the past few years. Nevertheless, there is a distinct lack of data about
the precise extent of its use, including what types of devices are used, who uses
them, and for what purposes.

5.47 In our Consultation Paper we suggested that an appropriate regulator be given 37 Equal Opportunity for Women in the
Workplace Agency, Annual Report
responsibility for researching and monitoring the use of surveillance technologies. (2008–09) 16.
There was widespread support for this proposal.38 A thorough understanding 38 Submissions 5, 9, 11, 12, 14, 26, 29, 33,
34, 36, 40, 42.
of all aspects of public place surveillance is central to effective regulation. The
39 Consultations 18, 26; Site Visits 10,
information gathered will provide a base for educational campaigns to promote 17, 18.
responsible use. 40 Submissions 5, 33; Consultation 11;
Site Visits 3, 10, 17. There was only
5.48 The commission is of the view the regulator should be responsible for one submission that expressed strong
disagreement with having any new form
• collecting information and conducting empirical research about of regulation, and this submission did
so specifically in relation to that which
surveillance practices in Victoria might limit CCTV use in shopping centres:
Submission 22.
• monitoring the operation of existing and proposed regulatory 41 Submissions 5, 7, 11, 12, 14, 29, 30, 33,
standards and codes 34; Forum 1; Consultations 5, 8, 14.
42 Submission 5.
• monitoring the operation of the law in Australia and elsewhere 43 Consultations 7, 27; Site Visit 10.
• monitoring the development of technology in order to ensure that 44 Submission 16.
appropriate regulatory regimes are in place

• identifying and monitoring regulatory schemes that require, or have
an impact on, the use of surveillance in public places (for example,
licensing regimes for liquor, gaming, private security and private
investigators) and ensuring these schemes offer consistent privacy
protection
• reviewing Australian Standards relating to design and use of CCTV
and other surveillance technologies.
educating, providing advice and promoting understanding of
laws and best practice
5.49 Views expressed in consultations and submissions indicate there is a widespread
lack of understanding (both within the general community and among users of
surveillance) of many aspects of public place surveillance. It was, for example,
apparent that the public is not well informed about the nature and extent of
public place surveillance that is conducted in Victoria. There appears to be a
lack of awareness on the part of users of surveillance devices about existing
regulation.39 Submissions and consultations noted the need for more clarity and
certainty about the law regulating the use of public place surveillance.40
5.50 Submissions and consultations supported the provision of education about public
place surveillance.41 Many users indicated a wish for more guidance about how
to conduct surveillance responsibly. One submission noted, for example, that
increased awareness of surveillance technology would ‘enhance the deterrent
potential of surveillance … use’.42
5.51 One of the primary roles of the proposed regulator should be to ensure users of
surveillance understand how to act responsibly and to follow best practice. The
regulator should also be responsible for ensuring that the Victorian public is aware
of the extent of public place surveillance and of their rights if surveillance is misused.
developing and publishing best practice guidelines
5.52 Surveillance users should be given practical guidance about how to comply with
the public place surveillance principles. In our Consultation Paper we suggested
that a regulator could be responsible for devising guidelines. In submissions there
was strong support for either voluntary standards or mandatory codes. Many
users supported the introduction of voluntary standards.43 It was noted that the
introduction of a mandatory regime at this stage might place too great a burden
on surveillance users.44
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5.53 Other submissions expressed the view that standards may not have much practical
effect if they are not enforceable.45 The Victorian Privacy Commissioner, for
example, noted:
While the introduction of voluntary standards could be perceived to be an
initial ‘light touch’ regulatory action … in my view the rights and interest
at stake are of such importance and the scope, extent and nature of public
place surveillance is already so overwhelming that some form of mandatory
regulation is required.46
5.54 The commission proposes the adoption of voluntary standards accompanied by
an obligation upon major users of public place surveillance to provide advice
to the regulator about their compliance with those standards. The regulator
should develop, in consultation with users, best practice guidelines for specific
surveillance technologies, such as sophisticated CCTV systems, ANPR, body-
scanners and biometrics.47 This is the most appropriate way to provide users
of surveillance with practical guidance about how to comply with public place
surveillance principles. The guidelines would encourage users to conduct public
place surveillance responsibly while also protecting their own interests. They
would also provide the community with an understanding of their rights in
relation to public place surveillance.
5.55 In 2009 the New Zealand Privacy Commissioner published Privacy and CCTV,
guidelines to help businesses ensure that their use of CCTV was compliant with
their obligations under the Privacy Act 1993 (NZ).48
5.56 The New Zealand guidelines advise CCTV users to
• clearly identify whether CCTV is appropriate and, if so, for what
purposes
• develop a business plan for its use
• consult with affected people if appropriate
• choose equipment to achieve the desired aims with minimal
invasion of privacy, and, where possible, use privacy enhancing
technologies
• erect signage to alert the public to the use of cameras and train
staff to answer questions about it
• limit the hours when footage is collected, and only retain footage as
long as necessary to achieve the stated purposes
• ensure that the footage is stored securely and protected from
unauthorised access.49
5.57 Some individual users of surveillance and industry groups have developed their
own CCTV standards. VicRoads, Crown Casino, the Department of Transport,
Melbourne City Council and Victoria Police have internal guidelines that deal with
specific aspects of surveillance use.50 Victoria Police has arrangements with some
local councils concerning access, use and storage of council CCTV footage.51
Victoria Police noted that the protocols it has with Melbourne City Council work
well and could be applied in other areas.52

5.58 Some of the matters that could be included in Victorian CCTV guidelines, bearing 45 Submissions 7, 14, 27, 29, 33, 34, 36, 39,
40; Consultations 5, 9.
in mind the public place surveillance principles, are 46 Submission 29.
• careful consideration of the need to install a public place 47 These technologies are described in detail
in Chapter 2.
CCTV system, including, where appropriate, consultation with 48 Privacy Commissioner [New Zealand],
communities likely to be affected ‘Privacy and CCTV: A Guide to the
Privacy Act for Businesses, Agencies and
• assurance that the public receives adequate notice about the Organisations’ (2009) <www.privacy.org.
nz/assets/Files/Brochures-and-pamphlets-
surveillance, including who is responsible for the system, why it is and-pubs/Privacy-and-CCTV-A-guide-
being used, and who to contact about complaints October-2009.pdf> at 23 November
2009.
• the taking of active measures, such as monitoring of staff 49 Ibid.
responsible for the use of the surveillance system, in order to 50 Consultations 4, 10, 25; Site Visits 1, 13.
51 Submission 4; Consultations 19, 27; Site
minimise privacy invasion Visit 10.
• regular evaluation of surveillance practices to determine if they 52 Consultation 19.
53 This was supported in submissions. See
continue to be justified and proportionate Submissions 4, 16, 33, 35, 36, 39.
• assurance that information is protected from misuse or disclosure
without good cause.
5.59 The regulator should consult surveillance users, key stakeholders and the broader
community when developing guidelines about particular forms of public place
surveillance.53 The regulator should also consider existing guidelines in other
countries, such as the CCTV guidelines developed by the New Zealand Privacy
Commissioner, and the guidelines followed by Victorian users of surveillance, such
as those developed by the Melbourne City Council.
significant surveillance users: ensuring responsible practice

5.60 Although the regulator should encourage all users of public place surveillance
to adopt best practice standards, some significant users of surveillance could be
assisted by working collaboratively with the regulator to create guidelines for their
own particular activities. The regulator should have additional functions in relation
to significant users which include
• reviewing advice prepared by significant users about their use of
public place surveillance and compliance with laws and best-practice
guidelines
• examining the practices of significant users
• advising significant users of any failure to comply with laws and best
practice guidelines.
In the following paragraphs we describe ‘significant users’ of public place
surveillance and discuss the relevant functions of the regulator.
significant users of public place surveillance
5.61 There are many surveillance users in Victoria. For example, users of CCTV
range from large organisations with sophisticated systems (such as government
departments and sporting and entertainment venues) to small businesses (such as
convenience stores) with systems of limited capacity.
5.62 The more significant users of public place surveillance should be required to work
cooperatively with the regulator to integrate best practice standards into their
own practices. To ensure proper accountability, significant users should be made
accountable for their compliance with public place surveillance laws and best
practice guidelines. Such a scheme would be similar that under federal affirmative
action legislation, outlined above.
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Chapter 5
5.63 The commission believes the following users of public place surveillance should be
subject to additional accountability mechanisms:
•
•
public authorities
‘significant private users’ of public place surveillance.
Public authorities
5.64 Bodies that exercise the power of the state (public authorities) should be held to
the highest standards of compliance with laws and guidelines concerning public
place surveillance. The term ‘public authority’ is defined in the Charter to include
bodies such as government departments, statutory agencies, local government
and entities performing functions of a public nature on behalf of a government
body.54 The commission believes these users of public place surveillance should be
required to work collaboratively with a regulator to strive for best practice. This
will increase accountability of government use of surveillance and will give the
regulator the opportunity to provide advice to parliament about the use of public
place surveillance in Victoria.
5.65 Government agencies were among the most significant users of surveillance we
consulted. Many government agencies have large, sophisticated surveillance
systems that monitor activities in the streets, in public housing estates and
on public transport. These systems have the capacity to record private, and
potentially sensitive, information. It is important that there are appropriate
safeguards concerning the way public authorities handle this information.
5.66 As described in Chapter 4, public authorities are required to give effect to privacy
rights, as well as other rights, under the Charter. Adoption of best practice
guidelines will ensure that agencies are meeting their obligations under the
Charter. Demonstration of government compliance with best practice guidelines
will also provide leadership to other users of public place surveillance.
5.67 Many public authorities already have processes in place to comply with a
range of best practice guidelines and to respond to their numerous reporting
requirements. Furthermore, a number of public authorities already have their
own internal protocols concerning their use of public place surveillance. Some,
such as Melbourne City Council, clearly follow current best practice in this area.
Compliance with protocols of this nature is not expensive, especially when
contrasted with the resources necessary to implement and operate a sophisticated
surveillance system. Some public authorities, however, do not have appropriate
protocols in place concerning their use of public place surveillance. In these cases
the regulator should work with the authority to develop appropriate procedures.
5.68 When the regulator considers the use of public place surveillance is so
insignificant as not to warrant additional accounting mechanisms, we believe
that the regulator should have the power to exempt the public authority from
additional accountability mechanisms until such time as the authority’s use of
surveillance changes.
Signficant private users of public place surveillance

5.69 In order to ensure that surveillance is conducted responsibly throughout
Victoria additional accountability mechanisms should not be limited to public
authorities. Many private usersincluding private transport operators, sports and
entertainment venues and large shopping centresuse such sophisticated public
place surveillance systems that they could be misused, and the resulting potential
harm could be considerable.

5.70 Significant private sector users of public place surveillance are generally 54 The commission adopts the meaning
of ‘public authority’ set out in section
larger organisations who will be able to carry the small burden of additional 4 of the Charter of Human Rights and
accountability mechanisms. Further, as with major government users, the Responsibilities Act 2006 (Vic).
55 See eg, the Privacy Act 1988 (Cth),
resources used to fulfil these would be very small when compared to the in which businesses with a turnover
resources used to implement and operate a sophisticated surveillance system. of $3 million or less are exempt from
the operation of the national privacy
These significant private sector users will also benefit from the guidance and principles.
advice about best practice that would be available from the regulator. 56 See eg, the Equal Opportunity for Women
in the Workplace Act 1999 (Cth), in which
5.71 The commission thinks that small users of public place surveillance, with relatively employers with less than 100 employees
are exempt from the operation of the Act.
unsophisticated systems, such as a CCTV system in a convenience store, should
57 See eg, Site Visit 22.
not be burdened with these obligations at this stage. Such surveillance users
should be encouraged to comply with best practice guidelines and they should
have the opportunity to seek advice from the regulator.
5.72 In other regulatory schemes where it has been necessary to distinguish some
private users from others, legislators have typically marked a distinction by the
organisation’s size—either by its annual turnover,55 or by number of employees.56
We have found these distinctions are less useful in relation to the use of
surveillance in public places. Our consultations revealed that some very small
organisations operate sophisticated surveillance systems57 and, conversely, not all
large organisations conduct significant public place surveillance.
5.73 The commission believes that a different approach should be taken in order to
determine which private organisations should be considered ‘significant users’ of
surveillance. Factors other than the size of the organisation should be taken into
account. Such factors could include
• the sophistication or capacity of the surveillance system used
• the invasiveness of the surveillance technology used (potentially, all
users of the most invasive forms of surveillance)
• the percentage or amount of public place under surveillance
• the regulatory burden of any additional accounting requirement on
the user.
5.74 The commission acknowledges the difficulties that arise when attempting to
distinguish ‘significant users’ from other users of surveillance. Consequently,
resorting to the approaches of other regimes may be a useful starting point. For
example, the following organisations could be classified as significant users of
public place surveillance:
• all organisations with a turnover of at least $3 million
• all major sporting and entertainment venues
• all organisations with a primary purpose of conducting surveillance
• other organisations or classes of organisations nominated by the
regulator, including those using particularly invasive forms of
surveillance.
5.75 Any users that fall within these broad categories should be exempted where they
can demonstrate they are not significant users of public place surveillance.
5.76 The commission believes the Victorian Government, working in conjunction with
the regulator, is best placed to determine which organisations are ‘significant
private users’ for the purposes of the proposed regime.
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Chapter 5
reviewing advice prepared by significant users of public
place surveillance
5.77 It is the commission’s view that significant users of public place surveillance
devices should provide regular advice to the regulator about their use of
surveillance in public places, including their compliance with law and best practice
guidelines. One of the functions of the regulator would be to provide users with
a template for the provision of advice, so that users can understand what is
expected of them. The regulator would also be responsible for reviewing advice
and providing reports to government.
5.78 A requirement to report is a feature of a number of other educative regulatory
regimes. The EOWWA, for example, requires all organisations with more than 100
employees to produce a workplace program and report to the regulator.58 The
regulator has developed a number of educational tools and other resources to
assist employers when making their reports.59
5.79 Similar reporting requirements are already used in Victoria. Victorian public
sector bodies are required to prepare action plans outlining their initiatives to
make workplaces accessible for people with disabilities, and to report on the
implementation of their plans.60 The Victorian Government’s policy, A Fairer
Victoria 2006, requires all departments to develop a cultural diversity plan.61
Likewise, the government’s Our Environment Our Future policy requires all
departments and agencies to report on their integration of the government’s
Environmental Sustainability Framework.62 The commission is of the view that
broadly similar reporting requirements are appropriate for significant users
of public place surveillance. The level of detail required in reports should be
determined by the regulator, and would vary according to the class of user and
type of surveillance technology.
examining the practices of significant users of public place surviellance
5.80 The commission recommends that the regulator be responsible for examining the
practices of significant users of public place surveillance.
5.81 This is a similar function to one held by the Victorian Privacy Commissioner. The
Commissioner has a responsibility to ‘examine the practices of an organisation
with respect to personal information maintained by that organisation for the
purpose of ascertaining whether or not the information is maintained according
to the Information Privacy Principles’.63 The Privacy Commissioner has the ‘power
to do all things that are necessary or convenient to be done for or in connection
with the performance of his or her functions’.64
5.82 It is envisaged that the surveillance regulator may examine the practices of
significant surveillance users on a systematic basis (that is, routinely, by class
of user or type of device). The regulator may wish to examine a particular
surveillance user if it did not provide advice to an appropriate standard, or if the
advice was unsatisfactory in some way. An examination may also be triggered
by the regulator’s research, or in response to a report by a member of the public
about the surveillance practices of a particular user.
advising of a significant user’s failure to comply
5.83 In line with the responsive regulatory approach outlined in the previous chapter,
the commission believes that the regulator should have a number of options
when a significant user of public place surveillance fails to comply with the law or
with best practice guidelines.

5.84 As a first step, the regulator should have the power to advise a significant user 58 Equal Opportunity for Women in the
Workplace Act 1999 (Cth) s 13.
of any failure to comply with best-practice guidelines and to require that user to 59 Australian Government, Equal
provide advice about action taken to remedy that failure. Opportunity for Women in the Workplace
Agency, <www.eowa.gov.au/Reporting_
5.85 The Victorian Privacy Commissioner is currently empowered to serve a compliance And_Compliance/The_Quick_Guide.
asp#06> at 7 December 2009.
notice on an organisation if it appears it has acted in a way that ‘constitutes a
60 Disability Act 2006 (Vic) s 38.
serious or flagrant contravention’ of an information privacy principle.65 It is an 61 Department of Premier and Cabinet,
offence not to comply with a compliance notice.66 A Fairer Victoria <www.dpc.vic.
gov.au/CA256D8000265E1A/page/
5.86 The proposed power for the surveillance regulator differs from this existing Listing-Government+Initiatives-
A+Fairer+Victoria+-+The+Victorian+Gover
compliance notice power because failure to rectify the breach following advice nment%27s+social+policy+action+plan!O
from the surveillance regulator would not be an offence. However, failure by penDocument&1=~&2=~&3=~>at
8 December 2009.
a significant user to remedy the breach could result in an adverse report to 62 Department of Sustainability and
parliament, which is discussed in more detail below. Environment, Victoria’s Environmental
Sustainability Framework: Our
5.87 Where it comes to the attention of the regulator that a surveillance user may Environment Our Future (2005) <www.
dse.vic.gov.au/DSE/nrence.nsf/LinkView/
have breached the SDA, the regulator should have the power to commence civil C50F9AEFF496CEA8CA256FE800232FE1
penalty proceedings or refer the matter to the police for criminal action. These E2176756455B21FFCA256E57007C82C
F> at 8 December 2009.
options are discussed later in this chapter and in Chapter 6.
63 Information Privacy Act 2000 (Vic) s 58(g).
reporting to parliament 64 Information Privacy Act 2000 (Vic) s 59.

65 Information Privacy Act 2000 (Vic) s
5.88 The commission recommends that the regulator provide an annual report to 44(1)(a).
parliament about the use of surveillance in public places in Victoria and about any 66 In the case of a body corporate, the
offence attracts 3000 penalty units; in any
developments in technology that may require separate regulation. other case 600 penalty units. Information
Privacy Act 2000 (Vic) s 48.
5.89 Such a report should include advice about the users of public place surveillance, 67 Privacy Act 1988 (Cth) s 32(1), (3).
the devices that are used and the reasons for their use. Much of this information 68 See Privacy and Personal Information
could be drawn from the advice provided by significant users of public place Protection Act 1998 (NSW) s 65(1)–(2).
69 Information Privacy Act 2000 (Vic) s 58.
surveillance.
5.90 The regulator should also be responsible for reporting about changes to
surveillance technologies, and the potential risks and benefits that may arise from
the use of these technologies. The regulator should advise government about
whether current legislative frameworks are adequate to deal with such changes.
In addition to providing legislators with valuable information, these reports will
also serve the function of informing the wider community about best practice use
of surveillance in public places.
5.91 The Federal Privacy Commissioner is empowered to provide the Minister with
a report relating to an inquiry or audit into any matter related to his or her
functions, which the Minister must table in parliament.67 The NSW Privacy
Commissioner also has the power to make a special report to parliament on
any matter arising in connection with his or her functions, and may include a
recommendation that the report be made public immediately.68 The Victorian
Privacy Commissioner currently has limited reporting powers. The Commissioner
may report to the Attorney-General in relation to some of the commission’s
functions only, and the Act does not require the Attorney-General to table
the reports in parliament.69 The commission is of the view that the proposed
surveillance regulator should have similar reporting powers to those possessed by
the federal and NSW Privacy Commissioners.
97
5
Chapter 5
Reporting non-compliance with best practice guidelines by significant users
5.92 Reporting is used as a successful compliance tool in a number of federal and
state regimes. For example, reporting is the ultimate sanction for continued
non-compliance with laws under the EOWWA regime discussed above. The NSW
Food Authority publishes a ‘Register of Penalty Notices’, a public list of details
of cafes and restaurants that have failed to comply with food standards.70 In its
first three weeks of operation, the website was accessed 25 000 times71 and 1.5
million times during its first year.72 Victorian legislators plan to implement a similar
scheme in the food industry from mid 2010.73
5.93 The commission takes the view that the most appropriate way to deal with
routine non-compliance by significant users of surveillance with best practice
guidelines is by reporting these users to parliament.
5.94 Reputation is important to both the government and the private sectors. To
government, a loss of reputation raises obvious political risks. Studies have shown
that damage to reputation is also a significant concern for private organisations.74
Modern regulatory theorists have noted that public reporting can help add to a
‘culture of compliance’75 with the particular regime in question.
investigations and proceedings in relation to sda breaches

5.95 A greater range of regulatory measures should be available to control the use of
surveillance in Victoria. In Chapter 6 we outline the rationale for introducing civil
penalties, as an alternative to criminal penalties, into the SDA. We recommend
that the surveillance regulator be responsible for investigating potential breaches
of the SDA, and instituting civil penalty proceedings in the Victorian Civil and
Administrative Tribunal (VCAT) where appropriate.
5.96 At present, Victoria Police is responsible for investigating and prosecuting
breaches of the SDA. The commission is aware of only four successful
prosecutions for breach of the Act since its inception on 1 January 2000 (all in
relation to unlawful uses of optical surveillance devices).76 The Victorian Privacy
Commissioner noted the potential for a conflict of interest to arise in this role,
particularly as police are one of the major users of surveillance; they also often use
the information captured by other users.77
5.97 The commission’s recommendation that a regulator be made jointly responsible
for investigating potential breaches and initiating proceedings under the SDA
is consistent with recommendations of the ALRC. The ALRC recommended
amendments to the Privacy Act to allow the federal Privacy Commissioner to seek
a civil penalty in the Federal Court or the Federal Magistrates Court when there
had been a serious or repeated interference with the privacy of an individual.78
5.98 The commission recommends that the regulator be provided similar investigative
powers to those of other bodies responsible for initiating civil penalty
proceedings, for example the Australian Security Investment Commission (ASIC)
or the Australian Competition and Consumer Commission (ACCC).79 ASIC has the
power to seek a wide range of civil remedies, for example to prevent or contain
damage to corporate or individual assets, assist in the return of assets or to obtain
damages.80 Similarly, under the Trade Practices Act 1974 (Cth), the ACCC may
institute a civil proceeding in the Federal Court for the recovery of a monetary
penalty for a potential breach of certain provisions of the Act.81

70 Available at NSW Food Authority, Food
RECOMMENDATIONS Safety Offences <www.foodauthority.
nsw.gov.au/aboutus/offences/> at
4. The regulator should have the following functions in relation to public place 18 November 2009.
surveillance: 71 NSW Food Authority, Name and Shame
Website Scores 25,000 Hits in Three
a. research and monitoring, including use, technologies and current laws Weeks (2008) <www.foodauthority.nsw.
gov.au/aboutus/media-releases/mr-23-Jul-
b. educating, providing advice and promoting understanding of laws and 08-name-and-shame-website-hits/> at
18 November 2009.
best practice
72 Food Safety Australia, Name and Shame
List Nearly a Year Old (2009) <www.
c. developing and publishing best practice guidelines foodsafety.edu.au/news/2009/06/name-
shame-list-nearly-a-year-old/> at
d. reviewing advice prepared by public authorities and significant private 18 November 2009.
users of public place surveillance 73 Food Amendment (Regulation Reform)
Bill 2009 (Vic). Note that the ACCC may
e. examining the practices of public authorities and significant private soon have a name and shame power in
users in relation to their public place surveillance practices the form of a right to issue public warning
notices: Trade Practices Amendment
f. advising a public authority or significant private organisation of any (Australian Consumer Law) Bill 2009
(Cth) cl 86DA.
failure to comply with laws and best practice guidelines 74 Brent Fisse and John Braithwaite,
The Impact of Publicity on Corporate
g. investigating and taking civil proceedings in relation to potential Offenders (1983), 247.
breaches of the SDA 75 Ibid 2–3.
76 See Steve Butcher, ‘Man May Face Jail
h. reporting to the Minister on an annual basis on any matters in relation For Pointing Camera at Woman in Toilet’,
to any of its functions, including any failure by public authorities and The Age (Melbourne), 4 March 2010,
10; Mark Russell, ‘Privacy Threatened
significant organisations to comply with advice under paragraph (f). by Rise in Hidden Cameras’, The Age
(Melbourne), 30 September 2007, 2;
5. Public authorities and significant private users should be required to provide ‘Former Drama Teacher Pleads Guilty to
advice to the regulator annually on their compliance with public place Porn Charges’, The Age (Melbourne),
1 March 2010, 6.
surveillance guidelines in relation to designated surveillance devices. 77 Submission 29.
6. The Victorian Government should define ‘significant private user’ for the 78 Australian Law Reform Commission, For
purposes of the regulatory regime. and Practice: Volume 1: Final Report 108
(2008) Rec 50–2.
7. In addition to any other powers conferred on the regulator by legislation, 79 See powers under the Australian
the regulator should have the power to do all things necessary or Securities and Investment Commission Act
2001 (Cth) s 13 and the Trade Practices
convenient for, or in connection with, the performance of the functions Act 1974 (Cth) s 155.
of the regulator.82 80 See eg, powers under the Financial
Services Reform Act 2001 (Cth).
8. In addition to his or her annual reporting function, the regulator should also 81 Trade Practices Act 1974 (Cth) ss 77 and
have the power to report formally to the relevant Minister about any matters 151BY.
82 Modelled on s 10(2) of the Equal
relating to his or her functions. The Minister should be required to table all Opportunity for Women in the Workplace
reports provided by the regulator in parliament. Act 1999 (Cth).
Victorian Guide to Regulation (2nd ed,
2007) 3–7.
the most appropriate body to regulate public place surveillance

5.99 The commission believes it is more appropriate to extend the functions of an
existing regulator to regulate surveillance in public places than to create a
new regulator. This approach is consistent with the Victorian Government’s
commitment to devise regulatory options that are as cost-effective as possible and
that minimise the regulatory burden on agencies and organisations.83
5.100 In our Consultation Paper we sought submissions about the most appropriate
body to regulate public place surveillance. We suggested that the Victorian Privacy
Commissioner appeared to be an obvious choice to exercise regulatory functions
in relation to public place surveillance because of the Commissioner’s expertise in
protecting privacy.
99
5
Chapter 5
5.101 The vast majority of submissions and consultations supported this suggestion.84
The Privacy Commissioner herself said:
While I have no settled view as to who should perform this independent
regulatory role, a number of the proposed functions are similar to those
currently bestowed on the Victorian Privacy Commissioner by the IPA,
which include some regulation of surveillance when undertaken by
Victorian public sector agencies or contracted service providers. It may
therefore make sense, in the absence of a new, specialist, independent
regulator, for the functions to be added to these. In addition, in other
jurisdictions, privacy or data protection commissioners have regulation of
surveillance included in their functions,85 to varying extents.86
5.102 The Privacy Commissioner also noted, however, that
additional functions will require substantial resources. The extension of the
functions of an existing regulator should not be seen as a ‘cost neutral’
option, otherwise neither the proposed surveillance related functions nor
the existing privacy functions will be adequately fulfilled.87
5.103 The Victorian Privacy Commissioner currently has a regulatory role in relation to
the privacy of personal information held by Victorian government agencies. There
is often a close relationship between the use of surveillance and the personal
information gathered by those practices. The commission believes that the Privacy
Commissioner is the most appropriate body to exercise regulatory functions
concerning the use of public place surveillance.88
5.104 The Privacy Commissioner has an existing role in relation to some information
captured by the use of surveillance in public places. For example, the
Commissioner’s existing oversight functions extend to surveillance-captured
information held by Victorian agencies where that information constitutes
‘personal information’ for the purposes of privacy legislation.89 These
functions include educative, examination and monitoring responsibilities.90
The Commissioner is also empowered to receive and resolve complaints about
the handling of personal information by a public sector agency (including that
captured by a surveillance regulator), to issue compliance notices, and to carry out
investigations for these purposes.91
5.105 While the Commissioner is currently empowered to deal with complaints about
public agencies only, her educative function is not limited to public agencies.92
The commission is of the view that it is a natural extension of the Commissioner’s
existing functions to regulate the use of surveillance in public places.
relationship with other surveillance regulators
5.106 As well as the Victorian and federal Privacy Commissioners, there are a number
of other regulators with responsibility for some limited aspects of public place
surveillance. These include
• the Commissioner for Law Enforcement and Data Security, in
relation to Victoria Police’s handling of surveillance-captured data in
its possession93
• the Director of Liquor Licensing, in relation to the procedures
concerning use of security cameras and retention and storage of
footage by some licensed venues94
• the Victorian Commission for Gambling Regulation, in relation to 84 Submissions 5, 9, 12, 29; Consultations 5,
9, 14, 27, 28.
the collection, storage and retention of security footage by Crown 85 Including the Netherlands, the UK,
Casino95 Ireland, Canada, New Zealand, Germany,
Norway, Greece.
• the Special Investigations Monitor, in relation to compliance with 86 Submission 29.
the SDA by the four Victorian agencies authorised to apply for 87 Submission 29.
surveillance device warrants under the Act—Victoria Police, the 88 Surveillance is regulated under
information privacy laws in a number of
Office of Police Integrity, The Department of Primary Industries, and countries, including New Zealand, the UK,
the Department of Sustainability and Environment.96 Canada, Ireland and The Netherlands.
See Victorian Law Reform Commission,
5.107 The new regulator should liaise with these agencies about their functions to Surveillance in Public Places, Consultation
Paper 7 (2009) [5.15–5.172] for detail.
ensure that the regulatory regimes are consistent, and that particular users are 89 This is discussed in detail in
not unnecessarily burdened by obligations under more than one regime. Chapter 3.
90 Information Privacy Act 2000 (Vic)
ss 58(o),(g), (l), (k).
RECOMMENDATION 91 Information Privacy Act 2000 (Vic) pt 5,
pt 6, ss 34, 45.
9. The functions of the regulator should be exercised by the Victorian Privacy 92 Information Privacy Act 2000 (Vic) s 58(a).
Commissioner. 93 Commissioner for Law Enforcement Data
Security Act 2005 (Vic) ss 4, 11, 12.
94 Liquor Control Reform Act 1998 (Vic)
s 18B.
95 Casino Control Act 1991 (Vic) ss 59(2),
review of victoria police surveillance practices 122(1)(r).
5.108 Victoria Police, Victoria’s major law enforcement body, has access to state-of- 96 Major Crimes (Special Investigations
Monitor) Act 2004 (Vic) ss 4,11,12;
the-art surveillance technology. Its use of surveillance devices is extensive. We Surveillance Devices Act 1999 (Vic)
s 30P.
consulted a number of organisations that provided insight into police use of
97 The leaking of confidential files from
surveillance, including numerous departments and officers within Victoria Police, the Victoria Police’s covert surveillance
as well as oversight bodies, including the Commissioner for Law Enforcement unit to organised crime figures in 2008
highlights the complexity of issues that
Data Security, the Office of Police Integrity, the Special Investigations Monitor and surround police surveillance. The incident
the Supreme Court. lends support to commission’s view
that consideration of police surveillance
5.109 Although the benefits of police use of surveillance are significant—importantly, practices would be best undertaken by
a body that has broad ranging access
preventing and solving crime on behalf of the community—the consequences for to covert police units as well as police
a person subject to surveillance can also be profound. These include the potential information and policies. See Nick
McKenzie and Richard Baker, ‘Secret
loss of personal liberty following an arrest or conviction.97 Police Files Leaked’, The Age (Melbourne),
2 December 2008, 1. See also Office
5.110 The commission believes that regulation of police use of surveillance is best of the Victorian Privacy Commissioner,
‘Briefing on the Aquasure Memorandum
achieved through an entirely separate regime from the one we have proposed of Understanding’ (Press Release,
for general users of surveillance. Surveillance is only one of the many powers of 10 December 2009).
investigation and crime prevention available to police, and the commission’s view 98 Minister for Police and Emergency
Services, ‘Facial Recognition Technology
is that to consider police use of surveillance in isolation from the broader contexts will Catch Criminals’ (Press Release,
would be to consider only part of the picture. Appropriately, police use of 30 April 2007).
surveillance is currently regulated by a separate regime from that of other bodies.

Regulation includes the warrant-based process under the SDA, and provisions
in other state and Commonwealth laws. Therefore, although police officers
are subject to sanctions that do not apply to other surveillance users, they also
engage in activities, with judicial authorisation, that are otherwise prohibited.
5.111 Victoria Police routinely use a variety of surveillance technologies, for example,
video surveillance, including stationary CCTV systems, hand-held devices and
cameras fitted in vehicles. In some instances, this is coupled with things such as
automatic number plate recognition (ANPR) software, which may determine the
registered owner of a vehicle from a photograph of the vehicle’s numberplate.
The Victorian Government has also announced its intention to provide funding for
police use of facial recognition software, to be used in conjunction with CCTV to
identify individuals from their images.98
101
5
Chapter 5
5.112 In addition to video surveillance, police commonly use listening devices, including
handheld devices and those installed at specific locations. Potential suspects
may also be tracked, for example, through their mobile phone. Other less
common methods of surveillance, such as drug and explosive-detection dogs,
are also used. Police must obtain a warrant issued by a judge to conduct intrusive
covert surveillance.99
5.113 There is also a growing trend for police to use data provided by other Victorian
bodies, including government departments, local councils, private organisations
and individuals. In some cases this is provided on an adhoc basis, in others, there
are formal agreements in place. The collection and subsequent use of these data
frequently falls outside the regulatory regime designed to deal with police use
of surveillance.
5.114 It is important that regulation of police use of surveillance data responds to the
rapidly increasing sophistication of surveillance technologies and the increasing
variety of methods to obtain data. The SDA (the primary Act relating to law
enforcement use of surveillance in Victoria) is over a decade old and no longer
adequately covers all surveillance technologies or surveillance-captured data
accessed by police. For this reason, it is the commission’s view that there should
be a review of both police use of public place surveillance technologies and
the data acquired by its use. Victoria Police, like other users of public place
surveillance, should have the benefit of appropriate ‘best practice’ guidelines.
Such guidelines should take into account the principles proposed by the
commission to regulate general surveillance use.
5.115 There are a number of specialist bodies that have an oversight role in relation to
Victoria Police and, importantly, access to its data. The Commissioner for Law
Enforcement Data Security (CLEDS) is the most appropriate body to undertake a
review of the use of surveillance by Victoria Police.
5.116 The CLEDS’s primary role is to ‘promote the use by Victoria Police of appropriate
and secure management practices for law enforcement data’.100 All data,
including ‘any information obtained, received or held’ by Victoria Police, fall
within the Commissioner’s jurisdiction,101 and, importantly, this includes data
obtained through the surveillance activities of other bodies. The powers of the
Commissioner include the capacity to establish standards, monitor compliance
with those standards, and to conduct periodic reviews of ‘any matter related to
law enforcement data security’.102
5.117 The commission is of the view that the CLEDS should conduct a review of, and
create guidelines for, Victoria Police’s use of surveillance and surveillance-captured
data. Consideration may need to be given to whether current CLEDS powers are
sufficient for the Commissioner to comprehensively carry out these functions.
RECOMMENDATION
10. The Commissioner for Law Enforcement and Data Security should conduct a
review of, and create guidelines for, Victoria Police’s use of surveillance and
surveillance-captured data.
regulatory features not recommended at this stage 99 Law enforcement use of surveillance is
described in more detail in Chapter 2.
registration or licensing of some surveillance users 100 Commissioner for Law Enforcement Data
Security, About CLEDS (2009) <www.
5.118 In our Consultation Paper we canvassed the options of requiring users of cleds.vic.gov.au/content.asp?Document_
ID=10470> at 16 December 2009.
surveillance to register their use with a regulator, or to apply for a licence for their
101 Commissioner for Law Enforcement Data
use of specific public place surveillance devices. Many European countries require Security Act 2005 (Vic) s 3.
some users of public place surveillance to register with a regulator,103 or to obtain 102 Commissioner for Law Enforcement Data
Security, above n 100.
a licence for their surveillance use.104
103 The European Parliament and the Council
5.119 There was a mixed response to these proposals. A number of submissions of the European Union, Directive 95/46/
EC of the European Parliament and of
supported a registration scheme, mainly because such a scheme would the Council of 24 October 1995 on the
provide the regulator with knowledge of surveillance users in Victoria.105 Other Protection of Individuals with Regard to
the Processing of Personal Data and on
submissions raised concerns about the introduction of such a scheme. It was the Free Movement of Such Data [1995]
noted that such a scheme could lead to the potential for data to be shared more OJ L 281/31.
104 Including Norway, Germany and Sweden.
readily between organisations and agencies.106 Some stakeholders (including See Victorian Law Reform Commission,
Victoria Police) questioned the practicability of a registration scheme and above n 88, 150 for detail.
noted the potential for it to be very resource intensive.107 It was suggested 105 Submissions 5, 14, 29, 31, 33, 34, 40, 42.
106 Submission 34.
that the benefits of such a scheme should be carefully weighed up against the
107 Submissions 11, 21.
potential costs.108 108 Submission 21.
5.120 The response to the proposal of a licensing scheme for users of some forms 109 Submission 38.
110 Consultation 4.
of surveillance was also mixed. A number of submissions supported licensing
111 Submission 34.
for surveillance practices described variously as those that are ‘invasive’,109 112 Submission 39.
‘intrusive’,110 that ‘have a significant impact on privacy’111 or are used in 113 Submission 13.
‘particularly sensitive situations/areas’.112 On the other hand, many submissions 114 Submission 29. The Commissioner
noted that in the absence of a warrant,
commented on the cost or resource requirements of establishing and maintaining prohibition should include, at a minimum,
a licensing system.113 The Victorian Privacy Commissioner was ‘sceptical of the covert surveillance, x-ray body scanners,
infrared equipment and other equipment
efficacy of a licensing regime’, and preferred the prohibition of some forms of operating outside the visible light
invasive or potentially offensive surveillance.114 spectrum.
115 Discussed in Chapter 2.
5.121 The commission believes that requiring significant surveillance users to provide 116 Anthony Albanese MP, Minister for
regular advice about their surveillance use is a better way for the regulator to Infrastructure, Transport, Regional
Development and Local Government,
acquire information than a registration scheme. The introduction of our proposed ‘Strengthening Aviation Security’ (Press
scheme would render registration unnecessary. The commission does not think Release, 9 February 2010).
the potential benefits of requiring organisations to register their surveillance use

with a regulator outweigh the potential regulatory burden of having to register,
nor the resulting resource burden on the regulator.
5.122 The commission is also of the view that our proposed scheme is a more
appropriate method of regulating particularly invasive forms of surveillance than a
licensing scheme. An example of a particularly invasive form of surveillance is the
body scanners trialled at some Australian airports in 2009.115 Although the federal
government has recently announced its intention to introduce these at some
international airports,116 the devices are currently expensive and resource intensive
to use; the commission is not aware of plans for their use by any Victorian
bodies in the near future. The commission proposes that all users of particularly
invasive surveillance devices be required to provide advice to the regulator, and
to ensure they are conducting their surveillance in accordance with the proposed
surveillance principles. When the use of such devices becomes widespread in
Victoria, the regulator may wish to recommend a licensing scheme (or other
appropriate method of regulation) for the users of such devices.
103
5
Chapter 5
a complaint-handling power for the regulator
5.123 Some submissions suggested that the regulator should receive and investigate
complaints made by members of the public about misuse of public place
surveillance.117 The proposed regime is a more appropriate model for regulating
public place surveillance than a complaints-based regime, as it is designed to deal
primarily with systemic issues rather than individual grievances.
5.124 There are already some processes in place to deal with individual complaints
arising from some aspects of misuse of public place surveillance. Existing federal
and Victorian privacy laws, for example, have a mechanism for dealing with
complaints relating to misuse of personal information, including that captured
by way of a surveillance device.118 Additionally, the proposed statutory causes of
action discussed in Chapter 7 will allow an individual response to serious invasions
of privacy. These mechanisms should provide adequate redress for individuals
harmed by misuse of a surveillance device.
5.125 The commission’s proposed model places the onus on users to demonstrate their
compliance with laws and best practice guidelines, rather than on individuals to
notify the regulator of misuse. This is particularly appropriate in the public place
surveillance context, as in many instances it is likely that people will be unaware
of the fact that they are the victim of misuse of a surveillance device.
5.126 There is a noticeable shift away from complaints-based models in regimes
designed to protect people’s rights. For example, the Victorian Attorney-General
noted the shortcomings of a complaints-based model in relation to Victoria’s
equal opportunity laws in his 2008 Justice Statement:
This rather narrow approach places the onus for change on the willingness
of individual victims of discrimination to come forward and take the risks
and burden of pursuing a complaint through an unfamiliar legal system.119
5.127 Under the proposed model the regulator may receive notification from the public
about suspected inappropriate use of surveillance devices. The regulator will not
be obliged to act on this advice in every case. Instead, the regulator may choose
to request information from the surveillance user, or examine their surveillance
practices, to determine if they are acting in compliance with the law and best
practice guidelines.
general own-motion investigatory powers
5.128 The commission recommends that the regulator have limited investigatory
powers in relation to the most serious instances of inappropriate use of public
place surveillance. In some cases, such investigations may lead to civil penalty
proceedings.
5.129 In our Consultation Paper we suggested the regulator could be given the power
to carry out investigations into the public place surveillance practices of particular
agencies and organisations. There was a mixed response to this proposal.120
5.130 The Victorian Privacy Commissioner’s current investigative power is limited to
her complaint-handling function.121 The commission is of the view that it is
more appropriate that the focus of the surveillance regulator be on educating,
providing advice and working collaboratively with surveillance users to encourage
them to employ best practice. If, later, the regulator believes that the educative
role is not sufficient, and that investigatory powers are needed, the government
can be advised of this in a report to parliament.
procurement standards as a tool to encourage compliance 118 Discussed in Chapter 3.
5.131 In our Consultation Paper we raised the possibility of making compliance 119 Department of Justice [Victoria], Attorney-
with a voluntary public place surveillance standard a condition of entering General’s Justice Statement 2: The Next
Chapter (2008) 22.
into a contractual agreement with the Victorian Government. Although 120 Supporters of the proposal included
some organisations supported the proposal of linking voluntary standards to Submissions 5, 12, 36, 40; Consultations
5, 9, 28. Other submissions did not
government procurement criteria,122 it was also noted this strategy may have support the proposal, or did not canvass
limited effect for a number of reasons, including that only a small proportion of the issue.
121 See Information Privacy Act 2000 (Vic)
businesses compete for contracts with government through the tender process, ss 34 and 58(i).
and that the government sector makes up a large proportion of surveillance users.123 122 Submissions 4, 5, 7, 26, 35, 37, 40;
Consultation 27.
5.132 The commission is of the view that requiring all government agencies and larger 123 Submissions 14, 29, 33.
private users of public place surveillance to provide advice to a regulator about
their compliance with best practice standards is a more effective way of ensuring
that the major users are conducting public place surveillance responsibly. Many of
the organisations who provide goods and services to the Victorian Government
will be covered by these requirements; it is unnecessary to burden them with
further requirements.
conclusion
5.133 This chapter outlines the first and second limbs of the commission’s proposed
regulatory model for regulating public place surveillance in Victoria. These are
based on the approach to regulation outlined in Chapter 4—a flexible, principle-
based approach that is primarily educative and focuses on achieving best practice.
5.134 In devising our principles and the functions of a proposed surveillance regulator,
the commission has been guided by its extensive consultations, site visits
and submissions. It has also been informed by the Charter framework for
balancing the competing rights and interests that arise in relation to public
place surveillance.
5.135 The second limb of the commission’s regulatory approach—the creation of an
independent regulator—is designed to provide surveillance users with practical
advice on how to apply the principles to their use of surveillance. The focus of the
regulator is to encourage users to conduct surveillance responsibly, and to inform
the public about their rights and responsibilities.
5.136 Regulatory options for dealing with particularly offensive or privacy-invasive forms
of surveillance are outlined in the following chapters.
105
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6
Chapter 6
Modernising the CONTENTS
LLANCESurveillance
108 Introduction
108 Background

Devices Act
108 Definitions
112 Prohibition of surveillance
SURVEILLANCE SURVEILLANCE SURVEILLANCE devices in toilets

112 Regulating tracking

devices
117 Removing the participant

monitoring exception
121 A civil penalty regime

122 A new offence for improper
use of a surveillance device

125 Conclusion

107
6
Chapter 6
Modernising the Surveillance
Devices Act
introduction
6.1 This chapter deals with those parts of the Surveillance Devices Act 1999 (Vic)
(SDA) where the commission recommends change to deal with advances in
technology and to modernise the way we regulate the use of surveillance devices.
background
6.2 The Victorian parliament first dealt with surveillance devices in 1969 when it
introduced the Listening Devices Act 1969 (Vic), which prohibited the use of
listening devices to record or monitor private conversations. That Act also included
requirements for obtaining a warrant to undertake covert surveillance with a
listening device and provided exemptions for police in specific circumstances.
6.3 In 1999 parliament responded to advances in technology and the more
widespread use of surveillance by passing the SDA. This Act regulates the use of
optical surveillance devices, tracking devices and data surveillance devices as well
as listening devices. The SDA has been amended on a number of occasions since
then. Major amendments include prohibiting surveillance of workers in toilets and
change rooms,1 and establishing an oversight and monitoring role for the Special
Investigations Monitor in relation to law enforcement use of surveillance.2
6.4 Surveillance technology has become increasingly sophisticated, affordable,
concealable and unobtrusive. Its use is now commonplace. People are subject to
surveillance every day when they use public transport, shop for groceries, attend
sporting events and walk down city streets.3
6.5 Technology has also changed the way people use public places. Activities
that many people would still consider private, such as personal telephone
conversations, now regularly take place in public places on mobile phones.
6.6 To reflect these changes in behaviour, and to ensure that the law keeps pace
with advances in technology, the commission recommends a number of changes
to clarify, modernise and strengthen the SDA. These include amending some
important definitions to reflect contemporary uses of surveillance devices,
expressly prohibiting surveillance in toilets and change rooms, strengthening
the prohibition on participant monitoring, introducing a new offence to
prohibit particularly offensive uses of surveillance devices, and introducing a civil
enforcement regime into the Act.
definitions
PRIVATE ACTIVITY
6.7 The SDA prohibits a person from using a listening device to monitor4 a
‘private conversation’ to which they are not a party if not all the people in the
conversation have given their consent.5 Similarly, the Act prohibits a person
from using an optical surveillance device to monitor a ‘private activity’ to which
they are not a party if not all the people conducting the activity have given their
consent.6
6.8 Under the Act, a conversation or activity is ‘private’ if it occurs in circumstances
that reasonably indicate the parties desire it to be heard or observed by
themselves only, and when they may reasonably expect that they will not be
heard or observed by someone else.7
6.9 Currently, the definitions of ‘private conversation’ and ‘private activity’ differ in 1 Surveillance Devices Act 1999 (Vic)
s 9B. This was in response to our
relation to the physical location of the conversation or activity being monitored. recommendation: Victorian Law Reform
Although an activity cannot be ‘private’ if it occurs outside a building, a Commission, Workplace Privacy: Final
Report (2005) rec 30.
conversation may be ‘private’ regardless of where it occurs. It is unlawful for a 2 Surveillance Devices Act 1999 (Vic)
person to use a listening device to record a private conversation without consent, ss 30P, 30Q.
either indoors or outdoors.8 By contrast, although a person cannot use an optical 3 The use of surveillance in Victoria is
detailed in Chapter 2.
surveillance device indoors to record a private activity without consent, there 4 The word ‘monitor’ is used here in a
is no such prohibition on the use of an optical surveillance device outdoors. generic sense. Section 6 of the Act makes
it unlawful to use a listening device ‘to
Consequently, the SDA offers no protection against highly intrusive visual overhear, record, monitor or listen to a
surveillance in outdoor places.9 private conversation’. Surveillance Devices
Act 1999 (Vic) s 6.
6.10 During the parliamentary debates that accompanied the passage of the SDA a 5 Surveillance Devices Act 1999 (Vic) s 6.
number of members referred to the lack of protection for private activities in 6 Surveillance Devices Act 1999 (Vic) s 7.
outdoor places, such as beaches and backyards.10 This issue generates community 7 The terms ‘private activity’ and ‘private
conversation’ are defined in section 3 of
interest from time to time, such as when the satellite images and photographs the Surveillance Devices Act 1999 (Vic).
published by Google Street View, and used by some NSW and Victorian councils, 8 Surveillance Devices Act 1999 (Vic) s 6.
attracted publicity.11 9 Surveillance Devices Act 1999 (Vic) s 7.

10 Victoria, Parliamentary Debates,
6.11 Advances in technology have meant that these different provisions in the SDA Legislative Council, 11 May 1999, 524–5
(Maree Luckins); Victoria, Parliamentary
for listening devices and optical surveillance devices produce illogical outcomes. Debates, Legislative Assembly, 22 April
For example, the prohibition on recording a private conversation that occurs 1999, 551 (Robert Hulls), 555 (Victor
Perton), 559 (Hurtle Lupton).
outside a building without consent may be lawfully circumvented by the use 11 Roundtable 10; Asher Moses and
of a video recorder used in conjunction with lip-reading technology or services. Dewi Cooke, ‘Anyone for a Gentle
Google Down Wisteria Lane?’, The Age
Further, using a video recorder with sound recording capacity to record a private (Melbourne), 6 August 2008, 5. See
occurrence outside a building could breach the listening device offence in section discussion in Chapter 2.
6 of the SDA without breaching the optical surveillance device offence in section 7. 12 Surveillance Devices Act 1998 (WA) s 6;
Surveillance Devices Act 2007 (NT) s 12.
This is because of the limited definition of ‘private activity’ in the SDA. 13 Surveillance Devices Act 1998 (WA) s 3;
Surveillance Devices Act 2007 (NT) s 4.
6.12 Surveillance device legislation in Western Australia and the Northern Territory
14 Surveillance Devices Act 2007 (NSW) s
prohibits (with exceptions) the use of an optical surveillance device to record 8. Note that there are some exceptions
a private activity.12 Neither jurisdiction makes a distinction between whether to the prohibition, including for law
enforcement purposes.
the activity occurs indoors or outdoors.13 As well as this, NSW legislation that
regulates optical surveillance devices does not make a distinction between indoor
and outdoor activities.14
6.13 The commission believes the SDA should prohibit the use of an optical surveillance
device to monitor private activities that occur outdoors as well as indoors. This
change would ensure consistency in the regulation of surveillance devices and
would bring Victorian surveillance device legislation in line with legislation in other
Australian jurisdictions.
6.14 Most visual surveillance activities that occur outdoors would not be affected by
the commission’s proposal. This is because the prohibition in section 7 of the SDA
against the use of a visual surveillance device applies only to ‘private activities’.
These are activities that people do not wish others to observe, and which are not
carried out in circumstances where they ought to reasonably expect that someone
else may observe it. There are, however, some ‘private activities’ that do occur
outdoors and in public places. It should be unlawful for people to monitor these
activities with a visual surveillance device.
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Recommendation
11. The words ‘an activity carried on outside a building’ should be removed
from the definition of ‘private activity’ in section 3 of the SDA so that it
reads:
private activity means an activity carried on in circumstances that may
reasonably be taken to indicate that the parties to it desire it to be
observed only by themselves, but does not include an activity carried on
in any circumstances in which the parties to it ought reasonably to expect
that it may be observed by someone else.
IMPLIED CONSENT
6.15 The prohibitions in the SDA concerning the use of listening, optical, tracking or
data surveillance devices do not apply if the surveillance user has the express or
implied consent of the person being monitored.15 As the Act does not define
‘consent’ common law principles concerning the meaning of consent probably
apply. For example, at common law, a person must have capacity for consent to
be valid and that consent must be given freely and voluntarily.16
6.16 The notion of consent—particularly implied consent—is sometimes difficult to
characterise when dealing with many common surveillance practices in public
places. If, for example, a retail outlet has a sign on the door stating that cameras
are in use on the premises, does this mean that all customers give their implied
consent to being filmed when they walk into the shop, including when they
enter change rooms to try on clothing? Does this include people who might not
have the capacity to give consent, or those who cannot read the sign? In some
circumstances it may be inconvenient (or impossible) for a person to opt out of
being subject to surveillance, and therefore any implied consent may not be
truly voluntary.
6.17 In its Privacy Report the Australian Law Reform Commission (ALRC) discussed
the difficulties raised by the concept of consent, noting, in relation to personal
information:
There is a pressing need for contextual guidance on consent. What is
required to demonstrate that consent has been obtained is often highly
dependant on the context in which personal information is collected, used
or disclosed.17
6.18 To address this, the ALRC recommended that the Office of the Privacy Commissioner
‘develop and publish further guidance about what is required of agencies and
organisations to obtain an individual’s consent for the purposes of the Privacy
Act’.18 In our Consultation Paper we asked stakeholders whether a regulator
should develop guidelines to clarify the meaning of consent. Many submissions
supported this proposition. However, of those that did not, Victoria Police said
this was a matter for parliament and the judiciary,19 and the Victorian Privacy
Commissioner said the meaning of consent should be defined in the SDA itself.20
6.19 Submissions also noted the difficulties in defining ‘implied behaviour’. The St Kilda
Legal Service noted that consent should not be implied when an individual has
no reasonable choice about being in a particular place. The service noted that the
most marginalised groups—for example, homeless people—have little choice in
avoiding public place surveillance.21 The Victorian Privacy Commissioner noted
that even implied consent should be free, revocable and fully informed.22
6.20 From a commercial perspective Sensis (the information and advertising arm of 15 Surveillance Devices Act 1999 (Vic) ss 6–9.
16 Jeremy Douglas-Stewart, Annotated
Telstra) said the lawfulness of their location-based services relied on implied National Privacy Principles (2007), cited in
consent. When, for example, a mobile phone user is offered details of the Australian Law Reform Commission, For
location of the closest petrol station via text message, the service provider must and Practice: Volume 1, Final Report 108
identify the phone owner’s location in order to provide that information. By (2008) [19.9].
requesting the service has the phone owner consented to having their location 17 Australian Law Reform Commission, For
Your Information above n 16 [19.59].
tracked by the service provider? Sensis said the status quo, where implied consent 18 Ibid rec 19–1.
is not defined, operates effectively and flexibly and does not require legislative 19 Submission 11.
amendment.23 20 Submission 29.
21 Submission 14.
6.21 The commission acknowledges that in many instances it makes little sense to 22 Submission 29.
suggest that people whose activities are monitored by surveillance equipment 23 Submission 19.
in public places have given actual consent to a ‘private activity’ or a ‘private 24 We use the term ‘implied consent’ to
mean behaviour by a person, falling short
conversation’ being monitored by an optical surveillance device or a listening of express agreement, which would cause
device. Nevertheless, the notion of ‘implied consent’24 remains the most practical a reasonable observer to conclude that
the person has agreed to a particular
dividing line between behaviour that should be prohibited in a public place course of conduct.
because it is highly intrusive, unannounced and undetectable, and behaviour that
should be permitted because reasonable attempts have been made to alert members
of the public to the fact that some form of intrusive surveillance is occurring.
6.22 Given the widespread use of surveillance devices in public places, it is important
to encourage surveillance device users to give adequate notice of their activities
when they engage in practices that may involve monitoring of a ‘private
conversation’ or a ‘private activity’. The SDA should actively encourage the
practice of giving adequate notice of surveillance, by signage or other means, in
these circumstances. The SDA should be amended to direct courts, when deciding
whether a person has given implied consent to conduct that would otherwise fall
within sections 6–9 and 11–12 of the SDA, to consider whether the defendant
should have given adequate notice of the surveillance activities and whether
in fact that notice was given. Although common law principles concerning the
meaning of implied consent would otherwise continue to apply, this change
would encourage surveillance users to ensure they do not conduct highly intrusive
public place surveillance without providing adequate notice of their activities.
6.23 In some instances it may be appropriate to make limited use of well-placed signs,
perhaps containing an image of a camera, to give people adequate notice of the
fact that a CCTV surveillance system is being used in a way that is particularly
intrusive. The regulator will be well placed to advise people about how to strike a
balance between reasonable notice, the cost of erecting signs and the unsightly
impact of some notices.
recommendation
12. The SDA should be amended so that courts are directed to consider
whether a public place surveillance user has given adequate notice of their
surveillance activities when considering whether a person has given ‘implied
consent’ to any of the conduct that falls within sections 6–9 and 11–12 of
the SDA.
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prohibition of surveillance devices in toilets
6.24 At present, the SDA prohibits use of an optical surveillance device to monitor
‘private activity’—defined in the Act as an activity where parties may reasonably
expect that they may not be observed by someone else—without consent. The
explanatory memorandum to the Act suggests that the prohibition extends to
activities in toilet cubicles, shower areas and change rooms.25
6.25 There is, however, uncertainty about the reach of this prohibition because in
some instances a person would reasonably expect to be seen by others when
using communal facilities, such as in open showers and at urinals.26 Perhaps
because of the uncertainty about the reach of the current law, some fitness
centres have independently instituted policies to ban mobile telephones (which
may have camera devices) in such areas.27 The Victorian Privacy Commissioner has
queried whether the comment in the explanatory memorandum to the SDA is an
accurate description of the terms of the Act:
While courts can take note of the explanatory memoranda to statutes, courts
might be reluctant to impose criminal liability for conduct that does not clearly
fall within the terms of the Surveillance Devices Act, as currently drafted. It
may be better to state explicitly in the Surveillance Devices Act that private
activities do occur in certain public places and that invading the privacy of
persons in those places is prohibited, with serious penalties for breach.28
6.26 The commission is of the view that the SDA should be amended to include an
express prohibition on the use of all optical surveillance devices in toilet areas,
shower areas and change rooms. As with other prohibitions in the SDA, this
prohibition would not apply to law enforcement officers acting under warrant.
6.27 A prohibition of this nature appears to be in keeping with public expectations that
these are no go areas where all surveillance is regarded as unacceptable. This view
was strongly expressed in submissions and consultations.29 Further, many international
codes of practice and guidelines30 prohibit, or greatly restrict,31 surveillance in such areas.
6.28 This reform proposal reflects our recommendation in the Workplace Privacy report
that employers should be prohibited from using optical surveillance and listening
devices to monitor the activities of workers in toilets, change rooms, lactation
rooms and bathrooms.32 The Victorian parliament adopted that proposal in 2006
by inserting section 9B into the SDA.
recommendation
13. The SDA should be amended to expressly prohibit the use of an optical
surveillance device or listening device to observe, listen to, record or monitor
any activity in toilets, shower areas and change rooms which form a part
of any public place. This prohibition should include a law enforcement
exemption similar to that in section 9B(2) of the SDA.
regulating tracking devices

6.29 The use of tracking devices is regulated far more strictly under the SDA than the
use of optical surveillance or listening devices. It is unlawful to use a tracking device
without the consent of the person being tracked, unless one of the law enforcement
exceptions applies. In contrast, it is unlawful to use an optical surveillance or listening
device only when monitoring a private activity or a private conversation without
consent. Again, this is subject to the law enforcement exceptions.
6.30 This distinction reflects the serious privacy implications of tracking a person 25 Explanatory Memorandum, Surveillance
Devices Bill 1999 (Vic) cl 3.
without their consent. These implications were discussed by the New Zealand Law 26 Office of the Victorian Privacy
Commission (NZLC), which recommended that tracking a person without their Commissioner, Mobile Phones with
Cameras, Info Sheet 05.03 (2003) 4.
consent should be generally prohibited in New Zealand. The NZLC notes:
27 ‘Tighter Rules on Camera Phones’, Herald
Covert tracking robs people of the ability to choose whether or not Sun (Melbourne), 1 July 2004, 1.
28 Office of the Victorian Privacy
others know where they are at a particular time. It can reveal very private Commissioner, above n 26, 4.
information: that a person visited an abortion clinic or a gay bar for 29 Submissions 2, 4, 5, 9, 13, 29, 33, 34, 37,
example … In the most serious cases, being tracked may make people feel 38, 40; Roundtables 2, 8, 9, 10, 12, 13,
14, 15, 20, 21, 24, 25, 26, 27.
insecure, or may genuinely threaten their safety if it is done by a violent 30 See eg, Office of the Privacy
ex-partner, for example.33 Commissioner of Canada, OPC Guidelines
for the Use of Video Surveillance of Public
6.31 Currently, not all tracking devices are regulated under the SDA. Although an Places by Police and Law Enforcement
Authorities (2006) <www.privcom.
optical or listening device is defined as ‘any device capable’ of being used to gc.ca/information/guide/vs_060301_e.
record a person’s voice or activity under the Act, a tracking device is defined as a asp> at 18 November 2008; Information
Commissioner’s Office [UK], CCTV
device the primary purpose of which is to determine the geographical location of Code of Practice (2008) <www.ico.
a person or an object.34 This means that a device that is capable of tracking, but is gov.uk/upload/documents/library/data_
protection/detailed_specialist_guides/
not primarily used for that purpose (such as a mobile phone with GPS capacity), is ico_cctvfinal_2301.pdf> at 4 March 2009.
not a tracking device covered by the Act. 31 See eg, Information Commissioner’s
Office [UK], above n 30, 9.
6.32 In our Consultation Paper we asked whether it was appropriate for the definition 32 Victorian Law Reform Commission,
of ‘tracking device’ to be amended so it includes any electronic device capable Workplace Privacy, above n 1 rec 30.
33 New Zealand Law Commission, Invasion
of being used to determine the geographical location of a person or object. This of Privacy: Penalties and Remedies, Report
change would mean that the definition of ‘tracking device’ is consistent with the No 113 (2010) [3.51].
definitions of other surveillance devices that are concerned with the capacity of a 34 Surveillance Devices Act 1999 (Vic) s 3.
35 Submission 36.
device rather than its primary purpose.
36 Surveillance Devices Act 1999 (Vic) s 8(2).
6.33 There was broad support for amending the definition of ‘tracking device’ in this
way. Consultees raised concerns about the unregulated use of some tracking
devices. For example, the Victorian Women’s Legal Service expressed concern
about ‘stalkers’ using tracking devices with no protection for the person who is
being stalked.35
6.34 Amending the definition of ‘tracking device’ would create consistency with NSW
legislation. The Surveillance Devices Act 2007 (NSW) does not use the ‘primary
purpose’ test. It defines a ‘tracking device’ as ‘any electronic device capable of
being used to determine or monitor the geographical location of a person or an
object’ (emphasis added).
6.35 The commission recommends that the definition of ‘tracking device’ in the SDA
be amended so that it includes all electronic devices capable of being used to
determine the geographical location of a person or object. However, we also
recognise that there are many legitimate and beneficial uses of tracking devices.
The SDA currently includes the following exemptions:
• the installation, use or maintenance of a tracking device in
accordance with a warrant, emergency authorisation, corresponding
warrant or corresponding emergency authorisation
accordance with a detention order or supervision order or an interim
order under the Serious Sex Offenders (Detention and Supervision)
Act 2009 (Vic)
accordance with a law of the Commonwealth.36
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6.36 The commission is of the view that these are appropriate and necessary
exemptions, and should continue to apply. In addition, there are other legitimate
uses of tracking devices that should be exempted from the general prohibition
against the use of a tracking device without consent. These are discussed below.
automatic number plate recognition
6.37 Automatic number plate recognition (ANPR) devices use pattern recognition
software to automatically detect and read the licence plates of vehicles that pass the
system’s cameras and match these against registration records on a database. ANPR
identifies the time and date of the scan and the GPS location. When multiple
ANPR devices are used together, they can track the movement of a vehicle.
6.38 ANPR technology is a classic example of ‘convergence’37 of surveillance
technologies, as it uses both optical surveillance (cameras) and tracking devices
(GPS) in order to determine the location of a vehicle. The use of ANPR does not
infringe the prohibition on the use of optical surveillance devices in the SDA, as
optical surveillance is prohibited in relation to a private activity only. However, as
the current and proposed prohibition on the use of tracking devices is not limited
to ‘private activities’, the continued use of ANPR is relevant when considering the
regulation of tracking devices.
6.39 A number of organisations in Victoria use ANPR technology. For example, in
2009 Victoria Police trialled the use of ANPR in police cars to record the details
of passing vehicles and detect those that may be unregistered or stolen.38 It is
also possible for police to search for persons of interest using this technology.
ANPR is also used to assist in the collection of road tolls on private tollways in
Melbourne,39 and VicRoads uses the technology with red-light and speeding
cameras across Victoria. In addition, ANPR may be used by governments and
private organisations for a number of applications, including controlling access to
restricted areas, congestion taxes, monitoring freight movement and calculating
fees for unattended car parks.40
6.40 Government agencies in many countries use ANPR technology for road safety and
law enforcement purposes.41 It is estimated that there are at least 10 000 ANPR
cameras in operation in the UK. These cameras provide data about over 10 million
number plates per day to a national database run on behalf of the Association of
Chief Police Officers. The data are kept for two years and are used for a number
of purposes, including evidence in criminal trials. Concerns have been raised
about possible misuse of this information.42
6.41 In its submission to the commission Victoria Police noted that the commission’s
proposed changes to the definition of tracking device would have a significant
impact on police operations, particularly their use of ANPR technology, which
they believe does not currently fall within section 8 of the SDA. Victoria Police
believes that it would be ‘administratively unworkable’ to require police to obtain
a warrant each time they wish to use ANPR. Victoria Police also raised concerns
about the impact on emergency services in the case of missing persons.43 In
addition, it seems desirable that VicRoads and tollway operators be permitted to
continue to use ANPR for road safety and tolling purposes.
6.42 In NSW, ANPR has been an integral part of the Safe-T-Cam traffic monitoring
system since 1989.44 In addition, NSW Police trialled ANPR use in 2009.45 It
appears that these activities fall outside of the general prohibition against the
use of tracking devices in section 9 of the Surveillance Devices Act 2007 (NSW)
because of the exception in section 9(2)(c) that extends to ‘the installation, use or
maintenance of a tracking device for a lawful purpose’.
6.43 This exception to the prohibition against using a tracking device without consent 37 Convergence is discussed in Chapter 2.
38 Michael Daley MP, NSW Minister for
is both vague and unnecessarily broad. There are better ways of ensuring that Police, ‘New Mobile Technology to Help
all relevant interests are taken into account when deciding whether technology Capture Unregistered and Stolen Vehicles’
(Press Release, 17 September 2009).
of this nature should be used to track the movements of people who are acting
39 Site Visit 9.
lawfully, as well as those who are acting unlawfully. One way would be to allow 40 Parliamentary Travelsafe Committee,
specific law enforcement activities to be exempted by regulation from the general Queensland Parliament, Inquiry into
Automatic Number Plate Recognition
prohibition against using a tracking device without consent. Technology, Report 51 (2007) 2.
6.44 This process should ensure that there is appropriate oversight of any decision to 41 Ibid 4.
42 See eg, S A Mathieson, The ANPR
provide a law enforcement exception to the general prohibition against using Secret (2010) Kable <www.kable.co.uk/
a tracking device without consent. It is highly likely that the government would automatic-numberplate-recognition-
police-anpr-gc-feb10> at 3 March 2010.
seek advice from the Privacy Commissioner and the proposed new surveillance
43 Submission 11.
regulator before preparing a regulation. Any regulation would be subject to 44 Parliamentary Travelsafe Committee,
parliamentary scrutiny and disallowance under the relevant provisions of the above n 40, 5.
Subordinate Legislation Act 1994 (Vic). 45 Daley, above n 38.
46 Parliamentary Travelsafe Committee,
6.45 The use of ANPR technology should be carefully monitored because of its above n 40, 14.
potential for capturing vast amounts of information about individuals who 47 Queensland Government, Queensland
Government Response to the
are behaving lawfully. ANPR was the subject of a study by the Queensland Parliamentary Select Committee on
Travelsafe’s Report No 51: Report on
Parliamentary Travelsafe Committee, which released a report in September 2008. the Inquiry into Automatic Number
A number of submissions (including those by the federal and Victorian Privacy Plate Recognition Technology (2009)
<www.parliament.qld.gov.au/view/
Commissioners) raised privacy concerns in relation to the technology, including legislativeAssembly/tableOffice/
the appropriateness of recording and retaining data of people not identified documents/TabledPapers/2009/5309T434.
pdf> at 9 March 2010.
as having done something illegal, and the potential for ANPR to be used for
48 Alzheimer’s Australia, Update Sheet:
unintended purposes, referred to as ‘function creep’.46 Safer Walking for People with Dementia:
Approaches and Technologies, Update
6.46 The Committee made a number of recommendations, including the installation Sheet 16 (April 2009) 3.
of signs that inform motorists that their image may be recorded, and legislation 49 New Zealand Law Commission, above
n 33, [3.54].
that contains safeguards and controls governing the use of ANPR technology. The
Queensland government has implemented a number of the recommendations,
including amending signs, and has committed to consider the Committee’s other
recommendations concerning legislation.47
6.47 The commission recommends that the proposed regulator should advise
parliament regularly about the use of ANPR technology in Victoria, including
whether the current regulatory controls are adequate.
management and care of patients
6.48 Another issue that arises in relation to tracking devices is their use in the
management and care of people suffering from dementia and other memory-
affecting conditions. Alzheimer’s Australia recommends that carers consider the
use of a GPS-enabled tracking device, such as a bracelet-type device, to monitor a
person with dementia so that the individual can freely go for walks on their own
but can be easily located if they are lost or disoriented.48 In many instances the
person being tracked may not have the capacity to consent to being monitored by
a device that enables them to be located.
6.49 It should be possible to use tracking devices to protect the health, safety and
wellbeing of people in these circumstances. The New Zealand Law Commission
has considered this issue in relation to its proposal that new surveillance legislation
include a prohibition on the use of tracking devices. The Commission notes:
We think that it should be a defence to the tracking device offence that
the use of the tracking device was necessary for the protection of the
health, safety or wellbeing of any person, or for the protection of public
health or safety, and was no more extensive than reasonably necessary for
those purposes.49
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6.50 The Commission notes the defence would cover such situations as
•
•
use of tracking devices to monitor the movements of dementia
patients
use of tracking devices by parents or guardians to monitor the
location of their children
• use by hospital management to track the movements of patients
within the hospital.50
6.51 These defences may go too far. The family, friends and/or carers of people
suffering from dementia and other memory-affecting conditions should be able
to use a tracking device to locate that person if they are lost or disorientated. That
person’s freedom of decision and action is enhanced by permitting them to move
around the community as freely as possible so long as they do not pose a threat
to their own safety or that of others. If the person is unable to consent to the use
of the tracking device because of lack of capacity, there should be an automatic
substitute consent-giving regime that is similar to that which applies to consent
for medical treatment set out in Part 4A of the Guardianship and Administration
Act 1986 (Vic).
6.52 The Guardianship and Administration Act 1986 (Vic) establishes a hierarchy of
people, known as the ‘person responsible’, who may consent to most forms of
medical treatment on behalf of a person who cannot consent to it themselves.
These people range from a medical agent and guardian to a spouse or primary
carer.51 This regime should be extended so that the ‘person responsible’ may
consent to the wearing of a tracking device.
6.53 The issue of substituted consent for using a tracking device to monitor the
location of a child is far more complex. Children of a certain age should be able
to move freely around the community without parents tracking them, no matter
how well meaning they may be. The proposed new regulator may choose to
report to parliament about this issue.
Recommendation
14. The definition of ‘tracking device’ in section 3 the SDA should be amended
so that it includes all electronic devices capable of being used to determine
the geographical location of a person or object.
15. The Governor in Council should be permitted to make regulations that
allow specific law enforcement activities to be exempted from the general
prohibition in section 8 of the SDA against using a tracking device without
consent.
16. The proposed new regulator should advise parliament regularly about the
use of ANPR technology in Victoria, including whether the current regulatory
controls are adequate.
17. The automatic substitute consent regime in Part 4A of the Guardianship
and Administration Act 1986 (Vic) should be extended so that the ‘person
responsible’ may consent to the installation of a tracking device for a
person over the age of 18 years who is incapable of giving consent to the
installation of that device.
50 Ibid.
removing the participant monitoring exception 51 Guardianship and Administration Act
1986 (Vic) s 37.
6.54 The SDA’s prohibition on recording a conversation or activity using a surveillance
52 Section 6 of the SDA prohibits a person
device applies only to people who are not a party to the conversation or activity. using a listening device to monitor a
It does not prohibit a person from recording a private conversation or activity to private conversation to which the person
is not a party. Section 7 contains a similar
which they are a party.52 This activity is known as ‘participant monitoring’. prohibition on the use of an optical
surveillance device.
6.55 At present it is quite lawful for one person to secretly record his or her 53 Surveillance Devices Act 2001 (Vic)
conversation with another person on a park bench, or to secretly film an s 11(1).
encounter with another on a secluded beach. These are places where it might 54 Note that a person’s conversation might
also be secretly recorded by an individual
be reasonable for a person to expect that a conversation or activity would not be acting for the police. Specifically, the SDA
overheard or seen by others. allows a law enforcement officer, without
a warrant, to use a listening device to
6.56 Publication of information gained through participant monitoring is unlawful monitor or record a private conversation
to which he or she is not a party if at least
however. Section 11 of the SDA prohibits publication of a record or report one party to the conversation consents,
and where the officer is acting in the
of ‘private conversation’ or ‘private activity’ that has been made by using a course of his or her duty and believes the
surveillance device.53 There are a number of exceptions to this prohibition that recording is needed to protect the safety
of any person: Surveillance Devices Act
are set out in section 11(2) of the SDA. 2001 (Vic) s 6(2)(c).
6.57 It is strongly arguable that it is offensive in most circumstances to record a 55 This is what was found to have occurred
in Giller v Procopets (2008) 40 Fam LR
private conversation or activity to which a person is a party without informing 378; [2008] VSCA 236.
the other participants.54 Without this knowledge, those people cannot refuse to 56 Victorian Law Reform Commission,
be recorded or alter their behaviour. These concerns apply even more strongly in Paper No 7 (2009) [6.134]; and see
the case of activities or conduct in private places. For example, the SDA currently Surveillance Devices Act 2007 (NSW)
s 7(1)(b); Listening Devices Act 1992
permits a participant in a sexual act to record that activity without the knowledge (ACT) s 4(1)(b); Surveillance Devices Act
and consent of the other party involved.55 1998 (WA) s 5(1)(b); Listening Devices Act
1991 (Tas) s 5(1)(b); and Listening and
6.58 Finally, as we noted in our Consultation Paper, most Australian states prohibit Surveillance Devices Act 1972 (SA) s 4.
57 Surveillance Devices Act 1999 (Vic) s 6(1);
participant monitoring under their surveillance devices legislation.56 Only Invasion of Privacy Act 1971 (Qld) s 43(1)
Queensland and the Northern Territory have similar participant monitoring (a); Surveillance Devices Act 2007 (NT)
s 11(1a).
exceptions to those in the Victorian legislation.57
Privacy, Report No 22 (1983) [1129].
allowing some instances of participant monitoring 59 Submission 4.
6.59 It is also arguable that some forms of participant monitoring are beneficial 60 Submission 11.
and should continue to be permitted. Participant monitoring allows individuals 61 Surveillance Devices Act 2007 (NSW)
s 7(3)(a); Surveillance Devices Act 1998
to protect their interests, particularly in ‘commercial, business and domestic (WA) ss 5(3)(c), 6(3)(a); Listening Devices
contexts’.58 For example, the commission was told that participant monitoring Act 1992 (ACT) s 4(3)(a); Listening Devices
Act 1991 (Tas) s 5(3)(a).
is used by parties in domestic violence and family law matters, such as when a
62 Surveillance Devices Act 2007 (NSW)
woman records her ex-husband’s conversations with her as evidence of breach s 7(3)(b)(i); Listening Devices Act 1991
of an intervention order.59 Police also use participant monitoring when gathering (Tas) s 5(3)(b)(i); Listening Devices Act
1992 (ACT) s 4(3)(b)(i); Surveillance
evidence for criminal prosecutions.60 Devices Act 1998 (WA) ss 5(3)(c), 6(3)
(iii); Listening and Surveillance Devices Act
6.60 In those Australian jurisdictions where participant monitoring is unlawful (NSW, 1972 (SA) s 7(1)(b).
Western Australia, ACT, South Australia and Tasmania), the legislation contains a 63 See eg, Surveillance Devices Act 1998
(WA) s 3 (‘principal party’).
range of exceptions. A common exception is where all parties to the conversation 64 Sepulveda v R (2006) 167 A Crim R 108;
or activity consent.61 Other exceptions are outlined directly below. [2006] NSWCCA 379.
When reasonably necessary for the protection of lawful interests

6.61 NSW, Tasmania, ACT, Western Australia and South Australia allow participant
monitoring by a principal party to the conversation or activity if it is reasonably
necessary for the protection of that party’s lawful interests.62 A principal party is
one who speaks or is spoken to in the course of the conversation, or who takes
part in the activity.63
6.62 The NSW Court of Criminal Appeal has interpreted ‘reasonably necessary for the
protection of the lawful interests’ of a principal party narrowly in order to prevent
the exception from swallowing the rule.64
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6.63 Although ‘reasonably necessary’ means only ‘reasonably appropriate’ (rather than
essential),65 the Court held that it was not reasonably appropriate for a sexual
assault victim to secretly record the perpetrator admitting to the assault. This was
because the victim could have approached the police with his complaints.66
6.64 Thus, the exception does not allow for ‘covert recordings of a conversation by
any person who alleges that he or she is a victim of crime, and who speaks to the
alleged offender for the purpose of obtaining admissions of offences’.67
6.65 Moreover, what is reasonably necessary is an objective test, having regard to
the circumstances that existed at the time the recording was made.68 Thus, it is
not sufficient that the surveillance user believed it to be reasonably necessary
to protect a lawful interest. The Court also declined to give the term ‘lawful
interests’ a broad meaning.69 It held that ‘lawful interests’ do not include an
interest in vindicating one’s right not to be a victim of crime.70
Police duties
6.66 NSW, Tasmanian, Western Australian and South Australian71 surveillance device
legislation also exempts participant monitoring by law enforcement officers from
the general prohibition against participant monitoring. In the Western Australian
legislation, the prohibition against recording a private conversation or a private
activity to which a person is a party does not apply to a police officer acting in
the course of his or her duty.72 Moreover, the Act also exempts a person who acts
under instruction from a law enforcement officer in the course of investigating a
criminal offence.73 There is a similar provision in the South Australian legislation.74
6.67 NSW and Tasmania75 have broader exemptions. For example, the NSW legislation
exempts a law enforcement officer who is a party to a private conversation
and is participating in an authorised operation (within the meaning of the Law
Enforcement (Controlled Operations) Act 1997 (NSW)) under an assumed name
from the prohibition on the installation, use and maintenance of a listening device.76
Other allowed instances of particpant monitoring

6.68 A number of states (NSW, ACT and Tasmania) also allow for participant
monitoring by a principal party when the purpose of the recording is not to share
it with individuals who are not a party to the conversation or activity.77
6.69 The Tasmanian legislation contains a general exception to the ban on the use of a
listening device without consent, where the use is to gain evidence or information
in connection with an imminent threat of serious violence, substantial damage to
property or serious narcotics offence.78 In such a case, the user must report to the
Chief Magistrate within three days after using the device.79 The South Australian
legislation allows for participant monitoring if it is ‘in the public interest’.80
Submissions
6.70 There was support in submissions for the proposal in our Consultation Paper
that Victoria should prohibit participant monitoring using surveillance devices.81
Liberty Victoria, for example, noted that the reform would promote privacy and
consistency between jurisdictions, bringing provisions of the SDA in line with
NSW, South Australia, Tasmania, Western Australia and ACT.82
6.71 Those who opposed any change noted the beneficial uses of participant 65 Meaning that surveillance was the only
means by which a person could protect
monitoring. For example, Victoria Police argued that the use of participant the lawful interest: Sepulveda v R [2006]
monitoring enables police to perform important functions such as evidence NSWCCA 379 [117].
66 Sepulveda v R [2006] NSWCCA 379 [139].
gathering and the protection of undercover operatives.83 The Lilydale Centre Safe
67 Sepulveda v R [2006] NSWCCA 379
Committee noted its use by parties in domestic violence and family law matters, [142]. But see R v Riganias (2009) 9 DCLR
such as a woman recording her ex-husband’s conversations with her as evidence (NSW) 235; [2009] NSWDC 216 where
the court found it reasonably necessary
of him breaching his intervention order.84 In fact, the Committee favours such for the protection of lawful interests
monitoring by both parties, because when they do they ‘tend to be civil to one the secret recording by an investor of
conversations with an individual to whom
another averting further breaches and allegations of breaches’.85 he gave money and who he believed may
not have been properly investing
6.72 One submission suggested that the ban on participant monitoring was ultimately his money.
uncontroversial given the prohibition on communicating or publishing the 68 Sepulveda v R [2006] NSWCCA 379
[139]. See also R v Riganias [2009]
information gained. In consultation with media representatives the commission NSWDC 216 [13].
was told that extending the participant monitoring ban would have little effect 69 Sepulveda v R [2006] NSWCCA 379
[141].
on journalistic practices. As one television news executive told the commission,
70 Sepulveda v R [2006] NSWCCA 379
whether participant monitoring should be banned is an academic point because, [135], [142].
as it stands, the material obtained through participant monitoring cannot be used.86 71 Listening and Surveillance Devices Act
1972 (SA) s 7(1)(b).
6.73 In general, submissions in favour of the ban also supported exemptions that 72 Surveillance Devices Act 1998 (WA)
would allow participant monitoring in limited circumstances. For example, the ss 5(3)(a), 6(3)(b)(i).
73 Surveillance Devices Act 1998 (WA)
St Kilda Legal Service said there should be an exception to allow for evidence ss 5(3)(b), 6(3)(b)(ii).
gathering in family violence and family law matters: 74 Listening and Surveillance Devices Act
1972 (SA) s 7(2).
Without [such an exemption] individuals may find it more difficult to gather 75 Listening Devices Act 1991 (Tas) s 5(2)(e).
evidence to support their case. This is because in family violence matters, 76 Surveillance Devices Act 2007 (NSW)
for example, there are often no witnesses to the alleged abuse apart from s 7(4)(1).
77 Surveillance Devices Act 2007 (NSW)
the victim and the perpetrator.87 s 7(3)(b)(ii); Listening Devices Act 1991
(Tas) s 5(3)(b)(ii); Listening Devices Act
6.74 Liberty Victoria supported the exceptions now found in the SDA (NSW) ‘which 1992 (ACT) s 4(3)(b)(ii).
ensure the practice remains legal in limited and appropriate circumstances’.88 The 78 Listening Devices Act 1991 (Tas) s 5(2)(c).
Office of the Victorian Privacy Commissioner went further, suggesting it would be 79 Listening Devices Act 1991 (Tas) s
5(4)–(7).
preferable if the exceptions were warrant-based.89
80 Listening and Surveillance Devices Act
6.75 The commission is of the view that, as a rule, a person should be able to conduct 1972 (SA) ss 4, 7(1).
81 Submissions 2, 5, 14, 29, 33.
private conversations and engage in private activities without those events
82 Submission 5.
being recorded without their consent. Such an expectation is consistent with 83 Submission 11.
the overall purpose of surveillance devices legislation, which is to protect privacy 84 Submission 4.
by prohibiting the covert use of surveillance devices other than in exceptional 85 Submission 4.
circumstances associated with law enforcement. We recommend that the general 86 Consultation 12.
87 Submission 14.
participant monitoring exception in sections 6(1) and 7(1) of the SDA be removed.
88 Submission 5.
6.76 We accept, however, that in some circumstances this general rule should not 89 Submission 29.
apply. Any exceptions to a general prohibition against participant monitoring 90 Surveillance Devices Act 1999 (Vic)
ss 6(1), 7(1).
should not greatly diminish the usual expectation that conversations and activities
should not be covertly recorded by anyone.
6.77 There is no need to prohibit participant monitoring when all parties to the
conversation or activity consent. The prohibitions in the SDA already provide
an exception when each party to a conversation or activity gives their consent,
express or implied, to the use of a surveillance device.90 Consequently, even if the
words ‘to which the person is not a party’ are removed from sections 6(1) and
7(1), there is no need to create an additional exception for those instances when
each party has given his or her consent to the recording.
119
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Devices Act
6.78 Participant monitoring by a principal party to a conversation should be possible
where it is reasonably necessary for the protection of that party’s lawful interests.
This exception should not be too broad. For example, we do not favour the
exception recently suggested by the New Zealand Law Commission, which would
permit non-consensual recording of a conversation to keep a more accurate
record than memory could provide.91
6.79 Although we favour a narrow view of the ‘lawful interests’ exception, we
suggest that it should not be as narrow as the one suggested by the NSW Court
of Criminal Appeal. We favour an interpretation that allows for participant
monitoring for evidentiary purposes, as suggested in a number of the submissions
we discussed above.
6.80 Similarly, although we support allowing participant monitoring by law
enforcement officers in the course of their duties and without a warrant, we
favour limiting the exception to situations in which an officer reasonably suspects
the person being recorded has committed an offence or is doing so.
6.81 We have not proposed the exception found in legislation elsewhere that permits
a person to engage in covert participant monitoring when the recording is made
without the purpose of sharing the material with others. In these circumstances
it is still possible that recordings made by a party to a conversation or activity
may fall into the hands of third parties. We have also chosen not to recommend
a broad public interest exception because its scope is too uncertain for use in a
regime that contains criminal sanctions.
Recommendation
18. Sections 6 and 7 of the SDA should be amended to prohibit participant
monitoring using a listening or optical surveillance device subject to the
following additional exceptions:
a. the use of a listening or optical surveillance device by a law enforcement
officer to record a private conversation or private activity to which he or
she is a party if:
i) the law enforcement officer is acting in the course of his or her
duty; and
ii) the law enforcement officer reasonably believes at least one party
to the conversation or activity of having committed or being in the
course of committing an offence
b. the use of a listening device or optical surveillance device by a party to a
private conversation or private activity if:
i) a principal party to the conversation or activity consents to the
listening device being so used; and
ii) recording of the conversation or activity is reasonably necessary for
the protection of the lawful interests of that principal party.
91 New Zealand Law Commission, above
a civil penalty regime n 33 [3.87].
92 Surveillance Devices Act 1999 (Vic)
6.82 The SDA provides criminal sanctions when a person uses a surveillance device, ss 6–12.
or publishes information gained by the use of a surveillance device, in prohibited 93 Surveillance Devices Act 1999 (Vic) ss 6(1),
ways.92 The more serious offences attract a maximum penalty of two years 7(1), 8(1). The penalty unit rate is $116.82
for the financial year 2009–10. Thus, the
imprisonment, or a fine of up to 240 penalty units for an individual (1200 penalty current maximum fine for an individual is
units for a corporation), or both.93 $26 836.80 and the maximum fine for a
body corporate is $140 184.
6.83 The commission has only been able to find evidence of four successful 94 See Mark Russell, ‘Privacy Threatened by
Hidden Cameras’, The Age (Melbourne),
prosecutions for breach of the SDA since its inception on 1 January 2000. All 30 September 2009, 2; ‘Former Drama
cases concerned the unlawful use of optical surveillance devices in particularly Teacher Pleads Guilty to Porn Charges’,
The Age (Melbourne), 1 March 2010, 8;
offensive circumstances.94 One explanation for the small number prosecutions Steve Butcher, ‘Man May Face Jail For
may be that the criminal sanctions in the SDA are too severe for use in cases Pointing Camera at Woman in Toilet’, The
Age (Melbourne), 4 March 2010, 10.
where the wrongful behaviour is not highly offensive. 95 Eamonn Moran, ‘Enforcement Mechanisms
(including Alternatives to Criminal
6.84 There is growing support for the use of civil penalties when dealing with many Penalties)’ (2009) 2 The Loophole 12.
violations of the law. One legislator noted ‘a modern complex society with limited 96 Australian Government, Attorney-
judicial resources and an economic need for efficiency must necessarily seek General’s Department, A Guide to
Framing Commonwealth Offences,
mechanisms for the enforcement of its rules additional to traditional criminal Civil Penalties and Enforcement Powers
processes’.95 In 2007 the Commonwealth Attorney-General’s Department stated (December 2007) 63–4.
97 The ALRC recommended the Privacy Act
that civil penalties are most likely to be appropriate and effective where 1988 (Cth) be amended to ‘allow the
Federal Privacy Commissioner to seek
• criminal punishment is not merited (for example, offences involving a civil penalty in the Federal Court or
harm to a person or a serious danger to public safety should always Federal Magistrates Court where there is
a serious or repeated interference with
result in a criminal punishment) the privacy of an individual’: Australian
Law Reform Commission, above n 16
• the penalty is sufficient to justify court proceedings rec 50–2. Currently, the Act empowers
the Privacy Commissioner to make
• there is corporate wrongdoing.96 orders—including the payment of
compensation or that other action be
6.85 These matters were considered by the ALRC when it recommended a civil taken (s 52)—but does not impose civil
penalties regime for breaches of the Privacy Act 1988 (Cth).97 The ALRC penalties or criminal offences in most
circumstances. The Act does contain a
concluded that ‘criminal sanctions would be disproportionate to the level of harm number of criminal offences in relation to
caused by a serious or repeated interference with an individual’s privacy’.98 specific actions, including the disclosure of
information (s 80Q) and credit reporting
(ss 18K, 18L, 18N, 18P, 18R).
6.86 In our Consultation Paper we suggested the introduction of a civil penalty regime
98 Ibid [50.50].
for existing offences in the SDA. This would allow a surveillance regulator to act 99 Australian Law Reform Commission,
on the less serious matters that come to his or her attention without referring the Principled Regulation: Federal Civil and
Administrative Penalties in Australia,
matter to Victoria Police. Report No 95 (2002) [2.81].
6.87 Introducing civil penalties is also likely to reduce the cost and complexity of 100 Department of Treasury and Finance,
Victorian Guide to Regulation (2nd ed,
the regulatory process.99 This is consistent with the current approach taken by 2007) i.
the Victorian government, which ‘continues to work towards minimising [the 101 Under the Trade Practices Act 1974 (Cth).
regulatory] burden’ on ‘businesses, not-for-profit organisations, government 102 Under the Corporations Act 2001 (Cth).
103 Under the Environmental Protection and
sector organisations … and society as a whole’.100 Biodiversity Conservation Act 1999 (Cth).
6.88 A number of federal oversight bodies have the power to bring civil penalty 104 Including the Banking Act 1959 (Cth) and
the Fair Work (Registered Organisations
proceedings, including the Australian Competition and Consumer Commission Act) 2009 (Cth).
(ACCC),101 Australian Securities and Investment Commission (ASIC)102 and the 105 Essential Services Commission Act 2001
(Vic) s 54A.
Environment Protection Authority (EPA).103 Civil penalty orders are available under
106 Rail Corporations Act 1996 (Vic) ss 68–9.
many pieces of Commonwealth legislation.104 107 Victorian Renewable Energy Act 2006
(Vic) s 71.
6.89 In Victoria, there has also been growing use of civil penalties. For example, the
108 Outworkers (Improved Protection) Act
Essential Services Commission is responsible for bringing civil penalty proceedings 2003 (Vic) s 47.
under a number of Acts, including the Essential Services Commission Act 2001 109 Long Service Leave Act 1992 (Vic) s 88.
(Vic),105 the Rail Corporations Act 1996 (Vic),106 and the Victorian Renewable 110 Owners Corporation Act 2006 (Vic) s 166.
Energy Act 2006 (Vic).107 The courts may make a civil penalty order under the
Outworkers (Improved Protection) Act 2003 (Vic)108 and the Long Service Leave
Act 1992 (Vic).109 VCAT may make a civil penalty order under the Owners
Corporation Act 2006 (Vic).110
121
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Devices Act
6.90 There was broad support for the introduction of a civil penalty regime among
submissions to the commission. The Victorian Privacy Commissioner argued
that one reason the current criminal regime was ineffective was due to an
inherent conflict of interest: the police who prosecute illegal uses of surveillance
devices also have an interest in obtaining footage from third parties to assist
their investigations.111
6.91 The Federation of Community Legal Centres supported civil penalties but also
promoted an educational approach.112 Victoria Police noted they seek ‘protection
from liability for police officers acting for a lawful purpose in the course of their
duties’.113
6.92 The commission believes that a greater range of regulatory measures should be
available to control the use of surveillance in Victoria.
6.93 In our Consultation Paper we noted it may be appropriate to retain criminal
penalties in the SDA if a civil penalties regime is introduced. The introduction of
civil penalties should not restrict police from pursuing criminal prosecutions under
the existing provisions of the SDA, or for surveillance-related offences in other
Acts. This includes those dealing with stalking,114 indecent, offensive or insulting
behaviour115 and ‘upskirting’.116 A number of federal regulators, including the
ACCC117, ASIC118 and the EPA, have the power to bring civil penalty proceedings
when criminal prosecutions are also available.119
Recommendation
19. Sections 6–9 and 11–12 of the SDA should be amended to include civil
penalties as an alternative to criminal penalties. The regulator should be
permitted to commence proceedings for the imposition of a civil penalty.
a new offence for improper use of a surveillance device

6.94 The SDA currently regulates the use of four types of devices: listening devices,
optical surveillance devices, tracking devices and data surveillance devices.120 The
commission has recommended changes to modernise these provisions and to
fill gaps that have become apparent over time. In addition, we have considered
whether the SDA should be amended to include a new offence that would
prohibit offensive surveillance practices regardless of the type of device actually
used. The primary purpose of such a new offence would be to send a clear
message to the community that various forms of behaviour with a surveillance
device are unacceptable.
6.95 A number of submissions noted the desirability of ensuring the SDA is sufficiently
flexible to cover new and emerging uses of surveillance.121 Although the
commission agrees with these views, it is difficult to prohibit particular uses
of unknown devices with the precision necessary for a criminal offence. The
commission has concluded, however, that there is merit in introducing a new
offence which prohibits unacceptable behaviour with a surveillance device.
6.96 The commission is aware of a number of 111 Submission 29. 126 ‘Pair Jailed for Drugging, Raping 14-Year-
112 Submission 40. Old Girls’, The Age (Melbourne),
instances of surveillance devices being used 8 December 2009 <www.theage.com.au/
113 Submission 11.
to intimidate, demean or harass people. For 114 Crimes Act 1958 (Vic) s 21A.
national/pair-jailed-for-drugging-raping-
14yearold-girls-20091208-kgb0.html>
example, in submissions and consultations we 115 Summary Offences Act 1966 (Vic) s 17. at 21 January 2010. See also’Gang Sex
learnt about individuals filming violence for Attack Filmed on Mobile Phone’, The Age
116 Summary Offences Act 1966 (Vic) ss 41A,
(Melbourne), 17 May 2007 <http://news.
41B, 41C.
entertainment—a practice known colloquially theage.com.au/national/gang-sex-attack-
117 Under the Trade Practices Act 1974 (Cth). filmed-on-mobile-phone-20070517-db9.
as ‘happy slapping’. For example, in 2007 a 118 Under the Corporations Act 2001 (Cth). html> at 18 November 2009.
group of young people lured a teenage girl to 119 Under the Environmental Protection and 127 Professor Kerry Carrington quoted in
a park and sexually assaulted her, set fire to Biodiversity Conservation Act 1999 (Cth). Robyn Ironside, ‘Girl Fight Videos Posted
120 Surveillance Devices Act 1999 (Vic) ss 6–9. on Internet Amid Violence Surge’, The
her hair and urinated on her.122 They filmed Courier-Mail (Brisbane), 12 January 2010
121 Submissions 11, 29, 33, 36.
the incident and distributed the footage on <www.news.com.au/national/girl-fight-
122 Mex Cooper, ‘Werribee DVD Sex Case: videos-posted-on-internet-amid-violence-
DVD.123 Other examples include an incident at Teens’ Attack Sickening, Says Girls Dad’, surge/story-e6frfkvr-1225818238872> at
a secondary school in Pakenham, where a fight Geelong Advertiser (Geelong), 18 October 22 January 2010.
2007 <www.geelongadvertiser.com.au/ 128 (2008) 40 Fam LR 378; [2008] VSCA 236.
between students was recorded on another article/2007/10/18/7951_news.html> at The court awarded Ms Giller a total of
18 November 2009; Greg Roberts, ‘Boys
student’s mobile phone.124 Other school yard Escape Detention Over Assault Film’, The
$135 000 in damages.
assaults have also been captured on mobile Age (Melbourne), 5 November 2007 129 Gemma Jones and Anna Caldwell,
<http://news.theage.com.au/national/ ‘Onlookers Film Burning Car as Sisters Lay
phone cameras, with those behind the camera boys-escape-detention-over-assault-film- Dying’, Courier Mail (Brisbane),
audibly encouraging the violence.125 In some 20071105-18ct.html> at 18 November 30 December 2009 <www.news.com.
2009. au/couriermail/story/0,23739,26535799-
cases the use of a surveillance device may 952,00.html> at 25 January 2010; Peter
123 See Cooper, above n 122. Michael, ‘Police Condemn Ghoulish
exacerbate criminal behaviour. For example, in 124 Anthony Dowsley, ‘Schoolboy Filmed by People Who Filmed Backpacker’s Dying
one case, it was reported that a man waved at Classmates Being Bashed’, Herald Sun Moments’, Courier Mail (Brisbane),
(Melbourne), 15 October 2009, 4. 8 January 2010 <www.news.com.au/
a camera during a sexual assault.126 national/police-condemn-ghoulish-people-
125 See eg, Alyssa Betts, ‘Boxing Champ Filmed
who-filmed-backpackers-dying-moments/
6.97 The fact that the images can be distributed in School Bashing’, NT News (Darwin), 4
story-e6frfkvr-1225817200736> at
December 2009 <www.ntnews.com.au/
widely and quickly further compounds the article/2009/12/04/106431_ntnews.html> 25 January 2010.
problem. One academic stated that ‘the at 22 January 2010. 130 Michael, above n 129.
internet actually encourages this behaviour

because kids from all over the world go on and
rate the fights, so … this particular medium
may be encouraging violence’.127
6.98 Surveillance devices can be used to record
highly personal information. In a recent case,
Giller v Procopets,128 the defendant covertly
filmed the couple’s consensual sexual activity
and later threatened to show the plaintiff’s
family and friends the videotapes. This sort of
behaviour should be strongly discouraged.
6.99 In Chapter 4 we also noted media reports of
an increase in individuals using devices such
as camera phones to capture images of
other people in distress during emergencies.
Recent examples include incidents in which
people have filmed the aftermath of traffic
accidents.129 In one instance, onlookers filmed
the dying moments of a man after a car hit
him.130 Filming an emergency in order to assist
emergency services is quite different to filming
an emergency for entertainment purposes.
123
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Devices Act
6.100 Sometimes surveillance devices are used for the purpose of intimidation or to
prevent people from doing something they are otherwise lawfully entitled to do.
Some submissions to our Consultation Paper expressed concern about surveillance
being used in this manner.131 Local examples include anti-abortion campaigners
setting up surveillance outside abortion clinics and people being filmed entering
gay bars or drug treatment clinics.132
6.101 In consultations and submissions concern was expressed at the power relationship
that exists between users of surveillance and people under surveillance.133 At
the extreme end of the scale, classic cases of blackmail involve the threat of the
release of personal or embarrassing information. Submissions gave examples of
people involved in an embarrassing incident who have been recorded, and then
the footage later broadcast on television or uploaded to the internet.134
other jurisdictions
6.102 Some other countries have criminalised the act of filming violence for entertainment.
For example, in 2007, the French government inserted provisions into its criminal
code as a response to the rising incidences of ‘happy slapping’.135 Now, only
professional journalists may film real-world violence and distribute it on the
internet.136 The offence is punishable by up to five years imprisonment and/or a
fine of up to €75 000.137
6.103 The New Zealand Law Commission has recently delivered its final report into
invasion of privacy. Recommendations include strengthening and streamlining
prohibitions against inappropriate uses of surveillance devices. For example, the
Commission recommends that the sections of the Crimes Act 1961 (NZ) dealing
with intimate visual recordings (which aim to prevent the filming of a person’s
sexual activity or intimate areas without their consent)138 should be moved
into their proposed new Surveillance Devices Act.139 Further, the Commission
recommends that ‘keeping a person under surveillance’ should be added as a
specified form of surveillance regulated under the Harassment Act 1997 (NZ).140
6.104 Newspaper articles from the UK cite particularly violent incidents of happy
slapping,141 including instances in which a victim ultimately died from their
injuries.142 In the UK there is no specific offence prohibiting filming violent
attacks for entertainment, however, other offences may be used to deal with
this behaviour. In 2008 a teenager who used her mobile phone to film the fatal
bashing of a man pleaded guilty to aiding and abetting manslaughter, even
though she did not physically participate in the attack. She was sentenced to two
years imprisonment.143
6.105 The commission is of the view that it is desirable to introduce a new offence that
demonstrates clear community disapproval of the growing use of a surveillance
device to intimidate, demean or harass people. There is considerable educative
value in a strong legislative statement that it is unacceptable to use a surveillance
device for these purposes. Although there are already some offences concerning
certain specific uses of surveillance devices, such as stalking or ‘upskirting’, and
while offensive behaviour of any nature in a public place is unlawful,144 there is no
specific offence concerned with the grossly offensive use of a surveillance device.
6.106 The SDA currently prohibits the publication or recording of a private conversation 131 Submissions 5, 33.
132 Submission 6; Forum 1.
or private activity.145 The current SDA prohibitions are limited to private conduct.
133 Submission 14.
These provisions do not apply where parties ought reasonably to expect that 134 Submission 5.
someone else could observe what they are doing or saying.146 Many of the 135 ‘France: New Law Says Only Scribes can
inappropriate uses of surveillance devices would probably constitute an offence Upload Violence Snaps’, The Times (India),
8 March 2007 <www.asiamedia.ucla.edu/
of obscene, indecent or offensive behaviour under the Summary Offences Act article.asp?parentid=65364> at
1966 (Vic).147 This longstanding offence does not provide the community with a 22 January 2010.
136 Legifrance, Law No 2007–297 of 5 March
clear message, however, that use of a surveillance device to intimidate, demean 2007 (2010) <www.legifrance.gouv.fr/
or harass another person is unacceptable. The commission is of the view that a affichTexte.do?cidTexte=JORFTEXT000
000615568&dateTexte=> at 3 February
separate offence in the SDA would appropriately serve this purpose. 2010.
6.107 The new offence should apply in two situations. First, where a surveillance 137 New Prevention of Criminality Law Poses
Threat to Citizen Reporting (2007),
device is used to intimidate, demean or harass a person of ordinary sensibilities. Reporters Without Borders <www.rsf.org/
Secondly, where a surveillance device is used to prevent or hinder a person from New-prevention-of-criminality-law.html>
at 27 January 2010.
performing an act they are lawfully entitled to do. This latter situation includes, 138 Crimes Act 1961 (NZ) ss 216G–216N.
for example, using a surveillance device to discourage people from entering places 139 New Zealand Law Commission, above
such as abortion clinics or gay bars. n 33, rec 6.
140 Ibid rec 21.
6.108 Some submissions expressed concern that any amendments to the SDA should 141 See eg, a recent case in which two
brothers tortured four people over
avoid criminalising legitimate uses of surveillance devices.148 We believe that the several hours, one of whom nearly
proposed new offence strikes an appropriate balance and would not outlaw died. ‘Edlington: Full Text of Mr Justice
Keith’s Comments to Torture Brothers’,
acceptable uses of surveillance devices. For example, the use of a surveillance The Times Online (London), <www.
device by the media to record the aftermath of a natural disaster is part of their timesonline.co.uk/tol/news/uk/crime/
article6998667.ece> at 25 January 2010.
legitimate newsgathering activity, and is not conducted for the purpose of
142 ‘“Happy Slapper” Killers Jailed’ (8 July
intimidating, demeaning or harassing an individual. 2007) ABC News <http://abc.gov.au/
news/stories/2007/07/28/1990731.htm>
at 25 January 2010.
Recommendation 143 Angela Balakrishnan, Girl Jailed for
Filming “Happy Slap” Killing (18 March
20. A new offence should be included in the SDA that makes it unlawful to use a 2008) guardian.co.uk <www.guardian.
co.uk/uk/2008/mar/18/happyslap.killing>
surveillance device in such a way as to: at 25 January 2010.
144 Summary Offences Act 1966 (Vic) div 4A;
a. intimidate, demean or harass a person of ordinary sensibilities; or to Crimes Act 1958 (Vic) s 21A.
b. prevent or hinder a person of ordinary sensibilities from performing an 145 Surveillance Devices Act 1999 (Vic) s 11.
146 Surveillance Devices Act 1999 (Vic)
act they are lawfully entitled to do. ss 3, 11.
21. A civil and alternative criminal penalty should apply for breach of the 147 Summary Offences Act 1966 (Vic) s 17.
offence. The regulator should be permitted to commence proceedings for
the imposition of a civil penalty.
conclusion
6.109 At present the SDA regulates the use of surveillance devices inconsistently—
certain activities are prohibited while others are effectively permitted because the
Act says nothing about them. Furthermore, breaches of the Act attract serious
criminal sanctions, which have proven not particularly effective in regulating
public place surveillance. In this chapter we have explained our recommended
changes to the Act to address these shortcomings, and to modernise the way in
which the use of surveillance devices is regulated.
125
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7
Chapter 7
Statutory Causes CONTENTS
LLANCEofSURVEILLANCE
Action
128 Introduction
128 Civil action for serious
SURVEILLANCE SURVEILLANCE
invasions of privacy
141 Other law reform
SURVEILLANCE SURVEILLANCE SURVEILLANCE commission

recommendations

145 Should Australia enact a
cause of action for invasion
of privacy?
SURVEILLANCE SURVEILLANCE SURVEILLANCE 147 The commission’s

recommendation: two

statutory causes of action
167 Conclusion

127
7
Chapter 7 Statutory Causes of Action
introduction
7.1 One of the options discussed in our Consultation Paper is a statutory cause of
action1 for a serious invasion of privacy. In the interests of national consistency,
we suggested that the cause of action for a serious invasion of privacy
recommended by the Australian Law Reform Commission (ALRC) in 2008 could
be used as the model for any new Victorian law.2
7.2 The ALRC recommended that its proposed cause of action be included in
Commonwealth legislation.3 Any such legislation would probably remove
Victoria’s ability to enact a similar cause of action because of constitutional
restrictions.4 However, as the Commonwealth may not implement the ALRC’s
recommendation, or may take some time to do so,5 Victoria is still in a position to
provide leadership in this area.
7.3 Since the release of the ALRC report, the NSW Law Reform Commission
(NSWLRC) has recommended a different version of a statutory cause of action
for invasion of privacy.6 Consequently, national harmony in this field may be a
long-term goal.
7.4 This chapter begins with a summary of the relevant law in Australia and other
comparable jurisdictions. We then discuss the views of those who made
submissions about our Consultation Paper proposal. The Consultation Paper
proposal attracted support and opposition. Some supporters also suggested
different causes of action to that proposed by the ALRC.
7.5 We recommend the introduction of two statutory causes of action for serious
invasions of privacy: the first dealing with misuse of private information, the
second with intrusion upon seclusion. Although our focus is an appropriate legal
response to the misuse of surveillance in public places, these new causes of action
would not necessarily be limited to conduct that occurred in a public place or that
involved the use of a surveillance device. We have drawn upon the work of the
ALRC and the NSWLRC when devising these causes of action.
7.6 Our recommendations deal with the legal characterisation of these causes of
action, their elements, the defences, the remedies, the people granted rights by
the law, the limitations period, and the tribunal that should hear these cases.
civil action for serious invasions of privacy

the law in australia
7.7 The right of a person to take civil action for a serious invasion of privacy by
use of a surveillance device in a public place is unclear. There are no relevant
statutory causes of action for invasion of privacy in any Australian jurisdiction.7 No
appellate court has acknowledged the existence of a common law tort of invasion
of privacy.8 The availability of general law causes of action, such as a claim for
breach of confidence, which has been used in other countries9 to seek redress for
a serious invasion of privacy in a public place, is untested.10
7.8 The common law regulates some surveillance activities, but does so indirectly
when protecting other interests, most particularly those in property. The interest
most directly and immediately affected by surveillance activities—privacy—has not
received much attention from the common law. Danuta Mendelson has written:
Our right to privacy is relatively modern, and has received scant protection
at common law. However, as society ascribes to it more value, it is possible
either that a new tort protecting privacy will be recognised or that existing
torts will be expanded to encompass aspects of the right to privacy.11
7.9 Development of an Australian body of common 1 A cause of action is a right to sue another 9 See eg, the House of Lords decision in
person. Campbell v MGN Ltd [2004] 2 AC 457.
law to protect the growing interest in privacy 2 Australian Law Reform Commission, For 10 Recent appellate court decisions
may have been hindered by the fact that ‘there Your Information: Australian Privacy Law concerning the reach of the action for
and Practice: Volume 3: Final Report breach of confidence involved the use of
is no easy, embracing formula for dealing with 108 (2008) rec 74–1. a surveillance device (a video camera) in
all the different practices involved’ and because 3 Ibid. private places (see Australian Broadcasting
Corporation v Lenah Game Meats Pty
the proper balance to be struck between the 4 S 109 of the Constitution renders
Limited (2001) 208 CLR 199 [34]-[39];
a state law inoperative when it is
diverse interests ‘varies greatly and demands inconsistent with a Commonwealth
Giller v Procopets [2008] 40 Fam LR 378.
individualised solutions’.12 Former Chief Justice law. A state law may be inconsistent 11 Danuta Mendelson, The New Law of Torts
with a Commonwealth law when the (2007) 6.
of the Australian High Court Murray Gleeson Commonwealth law seeks to be the sole 12 John Fleming, The Law of Torts (9th ed,
has referred to ‘the lack of precision of the law covering a particular activity. In these 1998) 665.
circumstances, the Commonwealth law 13 Australian Broadcasting Corporation v
concept of privacy’ and to ‘the tension that covers the field. Lenah Game Meats Pty Limited (2001)
exists between interests in privacy and interests 5 On 14 October 2009 Cabinet Secretary 208 CLR 199 [41].
Senator Joe Ludwig released the
in free speech’.13 The limited capacity of the Commonwealth Government’s
14 See Giller v Procopets [2008] 40 Fam
LR 378 for discussion of the available
traditional common law remedies to deal with response to the ALRC’s Report 108. remedies.
The Commonwealth Government has
the damage caused by invasion of privacy may neither accepted nor rejected the ALRC’s
15 Australian Broadcasting Corporation
v Lenah Game Meats Pty Limited
have also contributed to the fact that there recommendations concerning a statutory
(2001) 208 CLR 199. See Ian Callinan,
cause of action for serious invasions of
have been few privacy cases to assist in the privacy. It announced that the relevant
‘Privacy, Confidence, Celebrity and
Spectacle’ (2007) 7 Oxford University
formulation of broad principles.14 recommendations will be considered
Commonwealth Law Journal 1.
later (Australian Government, Enhancing
7.10 Although no decision of the High Court, or of National Privacy Protection: First Stage 16 Hosking v Runting [2005] 1 NZLR 1
Response to the Australian Law Reform [59] (Gault P and Blanchard J). This
any Australian intermediate appellate court, has Commission Report 108 ‘For Your statement was made following a detailed
confirmed the existence of an Australian tort of Information: Australian Privacy Law and consideration of the relevant judgments
Practice’, October 2009). in Australian Broadcasting Corporation
invasion of privacy, in 2001 various members 6 NSW Law Reform Commission, Invasion
v Lenah Game Meats Pty Limited (2001)
of the High Court observed that there is no 208 CLR 199.
of Privacy, Consultation Paper No 1
(2007), 3. 17 Grosse v Purvis [2003] QDC 151;
barrier to the creation of such a tort.15 As two Jane Doe v Australian Broadcasting
7 See Chapter 3 for a brief discussion of
members of the New Zealand Court of Appeal compensation awards for information
Corporation [2007] VCC 281.
subsequently pointed out, ‘the High Court privacy breaches. 18 [2003] QDC 151.
8 See Australian Broadcasting Corporation 19 Grosse v Purvis [2003] QDC 151 [442].
of Australia has not ruled out the possibility v Lenah Game Meats Pty Limited (2001)
of a common law tort of privacy, nor has it 208 CLR 199 [132].
embraced it with open arms’.16
7.11 Since 2001, two Australian trial courts have
recognised a tort of invasion of privacy.17 In
Grosse v Purvis18 a judge in the Queensland
District Court concluded that a prolonged
course of stalking and harassment was an
unlawful invasion of the plaintiff’s privacy. The
Court decided that the conduct in question was
unlawful because it amounted to a breach of
‘the actionable right of an individual person to
privacy’.19
129
7
7.12 The court determined that the essential elements of an action for invasion of
privacy are
a.
b.
a willed act by the defendant
which intrudes upon the privacy or seclusion of the plaintiff
c. in a manner which would be considered highly offensive to a
reasonable person of ordinary sensibilities
d. and which causes the plaintiff detriment in the form of mental,
psychological or emotional harm or distress, or because it prevented or
hindered her from doing an act which she was lawfully entitled to do.20
7.13 In Doe v Australian Broadcasting Corporation21 a Victorian County Court judge
held that the publication of the name of a rape victim entitled her to damages
for breach of confidence, negligence, breach of statutory duty and invasion of
privacy. Judge Hampel observed that the ‘development of a tort of invasion of
privacy is intertwined with the development of the cause of action for breach of
confidence’ and that both causes of action are concerned with ‘a recognition
of the value of, and importance of the law recognising and protecting human
dignity’.22 Although Judge Hampel did not consider it appropriate to formulate
an exhaustive description of the elements of the cause of action for invasion of
privacy, she concluded that the wrong done in the case was ‘the publication of
personal information, in circumstances where there was no public interest in
publishing it, and where there was a prohibition on its publication’.23
Possible common law developments

7.14 Despite these trial court decisions, development of a broad ranging tort of
invasion of privacy is likely to take a very long time because of the way the
common law develops. Although the courts may ‘reformulate existing legal
rules and principles to take account of changing social conditions’,24 there is
widespread judicial acceptance of the proposition that ‘in a democratic society,
changes in the law that cannot logically or analogically be related to existing
common law rules and principles are the province of the legislature’.25
7.15 In the short term, the Australian High Court may follow the lead of the House
of Lords26 and the New Zealand Court of Appeal,27 which have both declined to
develop a broad tort of invasion of privacy, but have recognised a more limited
cause of action for misuse of private information. In order for this step to occur
appropriate cases would need to make their way through the legal system to the
High Court.
the law in the UK
Misuse of private information
7.16 In 2004 the House of Lords declared that there is no common law tort of invasion
of privacy in the UK.28 However, the equitable action for breach of confidence,
which was originally concerned with the wrongful disclosure of information
obtained in a confidential relationship,29 is evolving into a wider action concerned
with misuse of private information. The elements and reach of this cause of
action, described by one Law Lord as a tort,30 are developing slowly on a
case-by-case basis.
7.17 In Campbell v MGN Ltd31—a case concerning disclosure by a newspaper that 20 Grosse v Purvis [2003] QDC 151 [444].
21 [2007] VCC 281. Although an appeal was
model Naomi Campbell had attended a Narcotics Anonymous meeting—the lodged against the decision, the case was
House of Lords confirmed that the action for breach of confidence ’has now settled before the appeal was heard.
firmly shaken off the limiting constraint of the need for an initial confidential 22 [2007] VCC 281 [148].
23 [2007] VCC 281 [163].
relationship’.32 The court held that the obligation to respect the confidentiality of
24 Breen v Williams (1996) 186 CLR 71, 115
information extends to a person who knows, or ought to know, that information (Gaudron and McHugh JJ).
that he or she receives is confidential.33 The essence of the action for breach of 25 Ibid.
confidence is now misuse of private information. It seeks to protect ‘two different 26 Wainright v Home Office [2004] 2 AC
406 [35] (Lord Hoffman).
interests: privacy and secret (confidential) information’.34 27 Hosking v Runting [2005] 1 NZLR 1 [110]
(Gault P and Blanchard J).
7.18 Human rights principles were a catalyst for the common law developments
28 Wainright v Home Office [2004] 2 AC
in Campbell. In 2003,35 the European Court of Human Rights had found that 406 [35]
public disclosure of CCTV footage of a man who had attempted suicide in an 29 The elements of the traditional action for
breach of confidence were explained by
English street breached his right to privacy.36 Moreover, it had found that English Megarry J in Coco v A N Clark (Engineers)
law provided him with ‘no effective remedy in relation to the violation of his Ltd [1969] RPC 41.
right to respect for his private life guaranteed by Article 8 of the Convention’.37 30 Campbell v MGN Ltd [2004] 2 AC 457
[13] (Lord Nicholls). There is uncertainty
When Campbell was decided in 2004, all of the members of the House of Lords about whether the cause of action is
considered European human rights issues.38 Lord Nicholls said that ‘the values properly described as a tort, as a majority
of the House of Lords in Campbell
enshrined in articles 8 and 10 [of the European Convention on Human Rights] are did not formally adopt Lord Nicholls’
now part of the cause of action for breach of confidence’ and that change has characterisation (See eg, Mosley v News
Group Newspapers Limited [2008] EWHC
been achieved ‘by absorbing the rights protected by articles 8 and 10 into this 177 [184] (QB)).
cause of action’.39 Article 8 of the European Convention is concerned with 31 [2004] 2 AC 457.
privacy while article 10 is concerned with freedom of expression.40 Lord Nicholls 32 Campbell v MGN Ltd [2004] 2 AC 457
[14] (Lord Nicholls).
went on to say: 33 Campbell v MGN Ltd [2004] 2 AC 457, [14].
The values embodied in articles 8 and 10 are as much applicable in 34 Campbell v MGN Ltd [2004] 2 AC 457,
[14]–[15].
disputes between individuals or between an individual and a non- 35 Peck v United Kingdom [2003] ECHR 44.
governmental body such as a newspaper as they are in disputes between 36 Peck v United Kingdom [ 2003] ECHR 44
individuals and a public authority.41 [62]–[63].
37 [2003] ECHR 44 [113]. Article 13 of the
European Convention of Human Rights
Elements requires an effective national remedy for
any violation of Convention rights.
7.19 The law concerning the elements, defences and remedies that apply to the
38 Although the House of Lords was divided
cause of action for misuse of private information is embryonic. The elements of (3–2) on the question of whether the
the cause of action appear to be, first, ‘whether the claimant had a reasonable plaintiff should succeed on the facts of
the case, all five Law Lords supported the
expectation of privacy in relation to the particular information in question’ and, development of the cause of action for
secondly, ‘whether there is some countervailing public interest such as to justify misuse of private information.
39 Campbell v MGN Ltd [2004] 2 AC 457 [17].
overriding that prima facie right’.42 Both issues are ‘essentially questions of fact’.43
40 Article 8 of the European Convention
The English courts have provided limited guidance about matters to consider, or deals with ‘respect for private and family
steps to take, when resolving these questions of fact. life’ and Article 10 with ‘freedom of
expression’.
7.20 The first element—a reasonable expectation of privacy—involves an objective 41 Campbell v MGN Ltd [2004] 2 AC 457 [17].
evaluation of the expectation of ‘a reasonable person of ordinary sensibilities … 42 The Author of a Blog v Times Newspapers
Limited [2009] EWHC 1358 (QB) [7]
placed in the same position as the claimant and faced with the same publicity’.44 (Eady J). An act of the defendant that led
The Court of Appeal has recently listed a number of factors that can be considered to the publication of the information in
question appears to be subsumed within
when deciding whether the claimant had a reasonable expectation of privacy.45 these two elements.
These include the attributes of the claimant, the nature of the activity he or she was 43 Murray v Big Pictures (UK) Limited [2008]
EWCA Civ 446 [41] (Clarke MR).
engaged in, the place where it occurred, the nature and purpose of any intrusion,
44 Campbell v MGN Ltd [2004] 2 AC 457
the presence or absence of consent, how the information came into the possession [99] (Lord Hope); Murray v Big Pictures
of the publisher, and the effect of publication on the claimant.46 Although the (UK) Limited [2008] EWCA Civ 446 [35]
(Clarke MR).
courts have warned against generalisations about the sort of behaviour that 45 Murray v Big Pictures (UK) Limited [2008]
attracts a reasonable expectation of privacy, in those cases where the claimant has EWCA Civ 446 [36] (Clarke MR).
been successful, ‘the information in question has been of a strictly personal nature 46 Murray v Big Pictures (UK) Limited [2008]
EWCA Civ 446 [36] (Clarke MR).
concerning, for example, sexual relationships, mental or physical health, financial 47 The Author of a Blog v Times Newspapers
affairs, or the claimant’s family or domestic arrangements’.47 Limited [2009] EWHC 1358 (QB) [9]
(Eady J).
131
7
7.21 The second element involves striking a balance between an individual’s right to
privacy and a publisher’s right to publish. Resolving ‘the tension between privacy
and freedom of expression’48 is not easy, as the result in Campbell demonstrates.
The House of Lords divided 3–2 in favour of the plaintiff on this point. Although
no appellate court has yet identified a list of factors to be considered when
seeking to strike this balance, it appears that an evaluation of the worth or value
of the private information disclosed has been significant in some cases.49 In
addition, the ‘difficult question of proportionality may arise’ when considering
how to assess any interference with one person’s right to privacy or another’s
freedom of expression.50 What this may mean is, for example, that an act
done to further one person’s right to freedom of expression must not have a
disproportionate impact upon another’s right to privacy.
Defences
7.22 The English courts have not yet articulated any defences to a claim for misuse
of private information. It does appear, however, that consent is a defence, just
as it is to most torts. There may also be a ‘defence’51 that is quite similar to
the defence of qualified privilege in defamation law.52 In Campbell all five Law
Lords accepted that it was quite lawful for the newspaper in question to publish
the fact that Naomi Campbell was a drug addict because she had made many
public statements to the contrary.53 Lord Nicholls said that ‘where a public figure
chooses to present a false image and make untrue pronouncements about his or
her life, the press will normally be entitled to put the record straight’.54
Remedies
7.23 It is not clear whether the wrong of misuse of private information requires proof
of actual damage or whether, like the tort of trespass, it may be committed
without proof of any damage. This lack of clarity has created uncertainty about
the types of damages that may be awarded.55
7.24 Damages awards have generally been modest in these cases, perhaps because the
courts have been asked to order compensation for injury that is difficult to assess
and quantify. The cause of action seeks ‘to protect such matters as personal dignity,
autonomy and integrity’, and ‘damages for such an infringement may include
distress, hurt feelings and loss of dignity’.56 In Mosley v News Group Newspapers
Limited, which attracted the largest damages award of £60 000, Eady J said ‘an
infringement of privacy cannot ever be effectively compensated by a monetary
award’.57 He also noted that ‘once privacy has been infringed, the damage is
done and the embarrassment is only augmented by pursuing a court action’.58
When concluding that £60 000 was the appropriate sum in the case, Eady J stated
that Mr Mosley ‘is hardly exaggerating when he says that his life was ruined’.59
7.25 The British courts have also issued injunctions to prevent the initial publication, or
continued publication, of material in some misuse of private information cases.
Injunctions have prevented publication of the addresses of convicted murderers
once they have been released from prison,60 the details of the extra-marital sex life
of a football player,61 the private life of a musician,62 and the musings of Prince
Charles in his diary.63
7.26 By contrast, in the recent case of John Terry v Persons Unknown,64 the court
rejected an application for an injunction to prevent the media from publishing
information about an affair between the English football captain and a then-
unidentified woman. Justice Tugendhat concluded that disclosing the existence
of the relationship was not of itself highly intrusive,65 and that there was room for
argument about the social utility of publishing this information.66
48 Campbell v MGN Ltd [2004] 2 AC 457
Costs [28] (Lord Nicholls).
7.27 Even though damages awards have generally been quite small in misuse of private 49 See eg, Campbell v MGN Ltd [2004] 2 AC
457; Mosley v News Group Newspapers
information litigation, costs awards have been quite extraordinary in some of the Limited [2008] EWHC 177 (QB).
more notorious cases. Naomi Campbell was awarded damages of £3500 and 50 Campbell v MGN Ltd [2004] 2 AC 457
costs of £1.08 million.67 Max Mosley was awarded damages of £60 000 and costs [20] (Lord Nicholls).
51 Lord Nicholls suggested that this issue
of £850 000.68 Costs orders have also outstripped damages awards in some of may fall within one of the elements of
the significant European Court of Human Rights cases. One man was awarded the cause of action because it may affect
the ‘reasonableness’ of the claimant’s
damages of £11 800 and costs of £18 075 for the broadcasting of CCTV footage expectation of privacy (Campbell v MGN
of his suicide attempt.69 Ltd [2004] 2 AC 457 [24]).
52 See Patrick George, Defamation Law in
Criticism of the cause of action Australia (2006).
53 The case was ultimately fought over the
7.28 Viewed from one perspective, many of the more prominent English misuse issue of whether it was lawful for the
newspaper to publish a photo of Naomi
of private information cases are little more than legal actions by celebrities to Campbell, covertly taken and at a distance,
suppress inconvenient truths. For example, English Law Lord, Baroness Hale, in a public street, leaving a Narcotics
Anonymous meeting as well as details of
described the Campbell case as ‘a prima donna celebrity against a celebrity- what occurred at those meetings (Campbell
exploiting newspaper’,70 noting that ‘each in their time has profited from the v MGN [2004] 2 AC 457 [23]–[25]).
other. Both are assumed to be grown-ups who know the score’.71 The New Zealand 54 Campbell v MGN Ltd [2004] 2 AC
457 [24] (Lord Nicholls). Lord Nicholls’
Law Commission referred to ‘the more highly-developed celebrity culture, and statement can be traced back to the
the more aggressive nature of the media, in Britain’ when commenting upon the Court of Appeal decision in Woodward
v Hutchins [1977] 1 WLR 760. For a
differences between the types of cases that had arisen in the UK and New Zealand.72 discussion, see Sam Ricketson, ‘Public
Interest and Breach of Confidence’ (1979)
7.29 Some British cases have provided an effective forum, however, to determine the 12 Melbourne University Law Review 176.
limits that should be placed upon the publication of information obtained by use 55 See eg, Mosley v News Group Newspapers
Limited [2008] EWHC 177 (QB) [214].
of surveillance devices. Although people must expect to be observed in many 56 Mosley v News Group Newspapers
public places, recent UK cases have illustrated conduct that may fall beyond the Limited [2008] EWHC 177 (QB)
[214]–[216].
limits of reasonable exposure to the gaze of others, or to the use of information
57 Mosley v News Group Newspapers
obtained by the use of a surveillance device in a public place. Is it acceptable, for Limited [2008] EWHC 177 (QB) [231].
example, to broadcast CCTV footage of a man who has just slashed his wrists in 58 Mosley v News Group Newspapers
Limited [2008] EWHC 177 (QB) [230].
the street,73 or to publish a photo of a small child—whose mother happens to be
59 Mosley v News Group Newspapers
a famous author—being pushed down the street in a stroller?74 Limited [2008] EWHC 177 (QB) [236].
60 Venables v News Group Newspapers Ltd
7.30 The English courts have been criticised for distorting settled legal principle [2001] Fam 430.
because they have been content to develop existing legal rules in response to new 61 A v B plc [2003] QB 195.
situations rather than devise entirely new common law rules as their New Zealand 62 McKennitt v Ash [2008] QB 73.
counterparts have done. Butler has questioned 63 Associated Newspapers Ltd v HRH Prince
of Wales [2008] Ch 105.
the legitimacy of the theoretical transformation of an equitable doctrine, 64 [2010] EWHC 119 (QB).
based on a confidante’s obligations of good conscience and for which 65 [2010] EWHC 119 (QB) [68].
an injunction is the major discretionary remedy, into what is studiously 66 [2010] EWHC 119 (QB). [102]–[105].
67 Campbell v MGN Ltd Limited [2005]
referred to by several judges as the ‘action’ for breach of confidence but 2 AC 457.
which is evidently a tort protecting an aspect of human dignity, the major 68 ‘Mosley Wins £60 000 in Privacy Case’
remedy for which is substantive damages.75 Metro, 24 July 2008 <www.metro.
co.uk/news/article.html?in_article_
id=233683&in_page_id=34> at
7.31 There is some power to this criticism. Private information may be quite different 19 November 2009.
to confidential information. The traditional equitable action for breach of 69 Peck v United Kingdom [2003] ECHR 44.
confidence dealt with the wrongful use of information acquired in the course of 70 Campbell v MGN [2004] 2 AC 457 [143].
a confidential relationship. This cause of action sought to preserve the element 71 Campbell v MGN [2004] 2 AC 457 [143].
of trust that forms part of any confidential relationship. Privacy, however, is 72 New Zealand Law Commission, Invasion
of Privacy: Penalties and Remedies Review
concerned with control of information that may never be revealed to anyone. of the Law of Privacy Stage 3 Issues Paper
No 14 (2009) [4.69].
Preservation of human dignity lies at the core of privacy protection. As two
73 Peck v United Kingdom [2003] ECHR 44.
members of the New Zealand Court of Appeal said in a leading case: 74 Murray v Big Pictures (UK) Limited [2008]
EWCA Civ 446.
Privacy and confidence are different concepts. To press every case calling
75 Des Butler, ‘A Tort of Invasion of Privacy
for a remedy for unwarranted exposure of information about private lives in Australia?’ (2005) 29 Melbourne
of individuals into a cause of action having as its foundation trust and University Law Review 339, 352.
76 Hosking v Runting [2005] 1 NZLR 1[48]
confidence will be to confuse those concepts.76 (Gault P and Blanchard J).
133
7
7.32 The response to this criticism by one Law Lord has been to observe that the action
for breach of confidence has split in two. Lord Nicholls said that ‘the law has
developed’ so that ‘breach of confidence, or misuse of confidential information,
now covers two distinct causes of action, protecting two different interests:
privacy and secret (“confidential”) information’.77
7.33 The continued development of that branch of the breach of confidence cause
of action that protects privacy may be troublesome, however, because as Lord
Walker has observed, its ‘uncontrolled growth’ may ‘tend to bring incoherence
into the law of intellectual property’.78
Intrusion upon seclusion

7.34 UK common law has not yet developed a cause of action to protect what is
referred to as ‘intrusion upon seclusion’ in United States tort law,79 even though
British courts have referred to a relevant gap in the law on a number of occasions
over the past 20 years. The core of this wrong is an unjustifiable intrusion into a
person’s private space, such as the use of a camera to engage in ‘upskirting’ or a
hidden device to record a private conversation.
7.35 In 1991 the English Court of Appeal found that there was no remedy for invasion
of any privacy interest when a journalist and a photographer entered the hospital
room of a celebrity without permission and took his photograph.80 All three
members of the Court of Appeal encouraged the development of legislation that
would protect the privacy of a person in these circumstances.81
7.36 In Campbell Lord Nicholls referred to this issue when he observed that an
‘individual’s privacy can be invaded in ways not involving publication of
information’ and that ‘strip searches are an example’.82 This is what happened in
Wainwright v Home Office, in which a woman and her son were strip searched
before being permitted to visit a family member in prison.83 The House of Lords
found that the common law had no remedy for them even though the prison
officers did not have any statutory authority to conduct the strip searches. In
this case the court was unable to fill any ‘perceived gap’ in the law by ‘judicious
development of an existing principle’.84
the law in new zealand
A tort of invasion of privacy by publishing private facts
7.37 The New Zealand courts have developed a tort of breach of privacy by giving
publicity to private and personal information.85 The tort concerns conduct that is
similar to that which falls within the UK extended cause of action for breach of
confidence by misuse of private information. Despite this similarity, the majority
of the New Zealand Court of Appeal chose to acknowledge the existence of a
new tort rather than follow the approach of the UK courts. They did this in order
to ‘allow the law to develop with a direct focus on the legitimate protection of
privacy, without the need to be related to issues of trust and confidence’.86 The
majority judges observed that as privacy and confidence are different concepts,
it could be confusing to ‘press every case calling for a remedy for unwarranted
exposure of information about the private lives of individuals into a cause of
action having as its foundation trust and confidence.’87
7.38 The majority judges said that it is up to the legislature to develop ‘any high- 77 OBG Ltd v Allan [2008] 1 AC 1 [255] (Lord
Nicholls).
level and wide tort of invasion of privacy’.88 In developing the new tort the 78 OBG Ltd v Allan [2008] 1 AC 1 [292].
majority referred to New Zealand’s international human rights obligations and 79 See [7.55–7.62].
observed that the ‘intrusiveness of the long-range lens and listening devices 80 Kaye v Robertson [1991] FSR 62.
and the willingness to pay for and publish the salacious are factors in modern 81 Kaye v Robertson [1991] FSR 62, 66
(Glidewell LJ), 70 (Bingham LJ), 71
society of which the law must take account’.89 They went on to say that it is ‘the (Leggatt LJ).
very process of the common law’ for the courts to devise new civil remedies in 82 Campbell v MGN Ltd [2004] 2 AC 457
[15].
response to these developments. 90
83 Wainwright v Home Office [2004] 2 AC
406.
Elements 84 Wainwright v Home Office [2004] 2 AC
7.39 The elements of this new tort of invasion of privacy by publicising private 406 [18] (Lord Hoffmann).
85 Hosking v Runting [2005] 1 NZLR 1.
information are
• the existence of facts in respect of which there is a reasonable (Gault P and Blanchard J); Tipping J
expressed general agreement with Gault
expectation of privacy P and Blanchard J [223].
• publicity given to those private facts that would be considered (Gault P and Blanchard J).
highly offensive to a reasonable person.91 88 Hosking v Runting [2005] 1 NZLR 1[110]
7.40 In Hosking v Runting the New Zealand Court of Appeal concluded that these
92
elements were not made out by a celebrity couple who were seeking to prevent (Gault P and Blanchard J).
publication of photographs taken on a public street of their 18-month-old twins. 90 Hosking v Runting [2005] 1 NZLR 1[109]
The court found that the photographs did not publicise a fact in respect of 91 Hosking v Runting [2005] 1 NZLR 1 [117]
which there was a reasonable expectation of privacy, and that their publication (Gault P and Blanchard J).
was not one that a person of ordinary sensibilities would find highly offensive 92 [2005] 1 NZLR 1.
93 Hosking v Runting [2005] 1 NZLR 1
or objectionable.93 The court held that the photographs only disclosed what any [164]–[165].
member of the public in that area could see on the particular day, and there was 94 Hosking v Runting [2005] 1 NZLR 1
no harm in publication of the photographs, even though they were of children.94 [164]–[165].
95 Hosking v Runting [2005] 1 NZLR
7.41 The second element of the New Zealand tort—that the publicity given to private 1[125]–[126] (Gault P and Blanchard J).
facts is highly offensive to a reasonable person—is not found in the UK action 96 Murray v Big Pictures (UK) Limited [2008]
EWCA Civ 446.
for breach of confidence. The majority judges in Hosking v Runting explained 97 The case was an appeal against a decision
the reasoning that led to the adoption of this test drawn from US privacy law. by the trial judge to strike out the
proceedings because the pleaded facts
After acknowledging that people give up expectations of complete privacy and did not disclose a cause of action. The
seclusion by living in communities, they said they were concerned with ‘wide- Court of Appeal overturned that decision
and directed the case proceed to trial.
spread publicity of very personal and private matters’ which is ‘truly humiliating 98 Murray v Big Pictures (UK) Limited [2008]
and distressful or otherwise harmful to the individual concerned’.95 EWCA Civ 446 [57].
7.42 The result in Hosking v Runting is different to that reached in a very similar recent UK
case involving the publication of photographs of the infant son of noted children’s
author J K Rowling, taken by a professional photographer with a long-range lens.96
The two courts reached different conclusions about whether there was a reasonable
expectation of privacy in relation to photographs of a child of a celebrity taken
in a public street. The English Court of Appeal held that J K Rowling’s action on
behalf of her son should be permitted to proceed97 because
the law should … protect children from intrusive media attention, at any
rate to the extent of holding that a child has a reasonable expectation that
he or she will not be targeted in order to obtain photographs in a public
place for publication which the person who took or procured the taking of
the photographs knew would be objected to on behalf of the child.98
135
7
Defences
7.43 The majority judges in Hosking v Runting suggested that there should be a
defence of legitimate public concern in order to ensure that ‘the scope of privacy
protection should not exceed such limits on the freedom of expression as is
justified in a free and democratic society’.99 They used the term ‘public concern’
rather than public interest to differentiate ‘matters of general interest or curiosity
to the public, and matters which are of legitimate public concern’.100 They
acknowledged that this might require judges to balance interests by considering
‘community norms, values and standards’.101
7.44 Although the New Zealand courts have had few opportunities to develop the
defences to this new cause of action, the New Zealand Law Commission has
suggested that consent should be a defence, as it is to all torts.102 The Commission
has also pointed out that it should be possible to rely upon a defence that an act
was privileged, or performed under legal authority, if it did not fall within the
broad defence of legitimate public concern identified in Hosking v Runting.103
Remedies
7.45 The majority judges said that the ‘primary remedy upon a successful claim will
be an award of damages’ and that ‘injunctive relief may be appropriate in some
circumstances’.104 They said actual damage in the sense of ‘personal injury or
economic loss’ is unnecessary and that the ‘harm to be protected against is in the
nature of humiliation and distress’.105 Proof of recognised psychiatric harm
is unnecessary.106
7.46 When dealing with the availability of injunctive relief, the majority judges
acknowledged legitimate concerns about ‘prior restraint’ of material the media
wish to publish.107 They suggested an injunction should not be granted to restrain
publication unless there is ‘compelling evidence of most highly offensive intended
publicising of private information and there is little legitimate public concern in
the information’.108
Comment
7.47 The precise status of the New Zealand tort of invasion of privacy by publishing
private facts is uncertain because some members of the country’s new highest
court, the Supreme Court, have cast doubts upon its continued acceptance
and its content. In a recent case109 Justice Anderson, who was one of the two
dissenting judges in Hosking v Runting,110 said that, in his view, the existence of
the tort and its scope were matters for debate in the Supreme Court.111 Chief
Justice Elias queried the details of the tort, particularly the need for the second
element concerning the ‘highly offensive’ nature of the publicity.112
7.48 There have been relatively few cases in New Zealand dealing with the tort of
invasion of privacy by publishing private facts since developments started at the
trial court level in the mid 1980s. It appears that ‘fifteen people have brought
cases wholly or partly based on privacy, and many of them have been neither rich
nor famous’.113 The New Zealand Law Commission has published brief details of
all of these cases.114 Damages were ordered in only two cases, with the highest
award being NZ$25 000.115 An injunction restraining publication was granted on
five occasions.116
7.49 The New Zealand Law Commission has recently recommended that development 99 Hosking v Runting [2005] 1 NZLR
1[129]–[130] (Gault P and Blanchard J).
of the tort recognised in Hosking v Runting should be left to the common law.117 100 Hosking v Runting [2005] 1 NZLR 1[133]
Although the Commission acknowledged that a statutory cause of action would (Gault P and Blanchard J).
make the law more accessible and certain, it referred to the absence of ‘evidence 101 Hosking v Runting [2005] 1 NZLR 1[135]
that the current state of the law is causing practical difficulties to anyone’.118 102 New Zealand Law Commission, Invasion
of Privacy: Penalties and Remedies Stage 3
Intrusion upon seclusion Report No 113 [6.91].
103 Ibid.
7.50 The majority of the Court of Appeal in Hosking v Runting119 said that they were
dealing with only one of the four strands of the US privacy tort120—wrongful (Gault P and Blanchard J).
publicity given to private lives—and that the scope of the cause of action should 105 Hosking v Runting [2005] 1 NZLR 1[135]
be left to incremental development by the courts. They stated that it was
106 Ibid.
unnecessary to decide ‘whether a tortious remedy should be available … for 107 Hosking v Runting [2005] 1 NZLR 1[151]
unreasonable intrusion into a person’s solitude or seclusion’.121 (Gault P and Blanchard J).
7.51 In its Issues Paper, the New Zealand Law Commission argued for the introduction (Gault P and Blanchard J).
of a separate intrusion upon seclusion tort, suggesting that some intrusions upon 109 Rogers v Television New Zealand Ltd
[2008] 2 NZLR 277 (SC).
spatial privacy may be regarded as unacceptable invasions of privacy, regardless of
110 [2005] 1 NZLR 1.
whether they are accompanied by unwanted disclosure of private information.122 111 Rogers v Television New Zealand Ltd
[2008] 2 NZLR 277 [144] (SC).
7.52 The New Zealand Law Commission ultimately recommended that any recognition
112 Rogers v Television New Zealand Ltd
and development of a tort of intrusion into seclusion should be left to the [2008] 2 NZLR 277 [25] (SC).
common law.123 The Commission concluded that ‘the development of such a 113 Professor John Burrows, ‘Privacy and the
Courts’ (Address to the Privacy Forum,
tort deserves serious consideration’ and said that the ‘real question is whether Wellington New Zealand, 27 August
it should be introduced by statute, or whether it should be left to develop at 2008) <www.privacy.org.nz/assets/
Files/PAW/10.-Speaker-Professor-John-
common law’.124 Because of its support for the common law tort of invasion Burrows.doc > at 10 November 2009.
of privacy by publishing private facts, the Commission was content to leave 114 New Zealand Law Commission, above
development of an intrusion tort to the courts.125 n 72, 158–160.
115 Brown v Attorney-General [2006] DCR 630.
the law in the united states 116 New Zealand Law Commission above n 72.
7.53 Nearly all US states now recognise a right to privacy, either at common law or, in n 102, 91.
a few states, as a creation of statute.126 There are four types of invasion of privacy: 118 Ibid 90.
119 [2005] 1 NZLR 1.
• intrusion of seclusion
120 See [7.55–7.69] for a discussion of the US
privacy tort.
• appropriation of name or likeness
• publicity given to private life (Gault P and Blanchard J).
• publicity placing a person in a false light.127 n 72 [11.2].
7.54 Although most plaintiffs in privacy cases rely on more than one of the privacy n 102, 93.
torts,128 the two causes of action most relevant to surveillance are intrusion upon 124 Ibid 92.
the seclusion of, and publicity given to, private life. These are also the two privacy 125 Ibid 93.
126 W Page Keeton et al (eds) Prosser and
torts most concerned with ‘the fundamental value of personal autonomy’.129 Keeton on the Law of Torts (5th ed) (1984)
851 with reference to statutes in New York,
Tort of intrusion upon seclusion Utah, Virginia, Wisconsin, and Nebraska.
127 William Prosser, ‘Privacy’ (1960) 48 (3)
Elements California Law Review 383, 388–389.
128 Andrew McClurg, ‘Bringing Privacy Law
7.55 According to the Restatements of the Law, published to give judges greater Out of the Closet: A Tort Theory of Liability
clarity about the law, ‘one who intentionally intrudes, physically or otherwise, for Intrusions in Public Places’ (1995) 73
North Carolina Law Review 989, 1008.
upon the solitude or seclusion of another or his private affairs or concerns, is
129 Australian Broadcasting Corporation v
subject to liability to the other for invasion of privacy, if the intrusion would be Lenah Game Meats Pty Ltd (2001) 208
highly offensive to a reasonable person’.130 The tort includes physical intrusions, CLR 199 [125] (Gummow and Hayne JJ)
citing Sedley LJ in Douglas v Hello! Ltd
as well as ‘sensory intrusions such as eavesdropping, wiretapping, and visual and [2001] QB 967 at 1001.
photographic spying’.131 130 Restatement (Second) of Torts § 652B
(1977).
131 Ruth Shulman v Group W Productions
(1998) 18 Cal 4th 200, 230–231; 955 P2d
469, 489; 74 Cal Rptr 2d 843, 863 citing
Restatement (Second) of Torts § 652B
cmt b (1977).
137
7
7.56 The tort has two elements:
•
•
intrusion into a private place, conversation or matter; and
in a manner highly offensive to a reasonable person.132
7.57 The requirement that the intrusion upon seclusion be ‘highly offensive to a
reasonable person’ means that the interference with seclusion must be substantial
and involve conduct that would elicit strong objection from a reasonable
person.133 An often-cited example is a press photographer who enters the hospital
room of a woman who has a rare illness and takes her photograph, even though
she previously objected to giving an interview.134
7.58 The intrusion itself subjects the defendant to liability, regardless of whether he or
she has published information gained from the intrusion.135 According to Andrew
McClurg: ‘this is important because it insulates the tort of intrusion from many of
the free speech obstacles that infiltrate the other privacy torts, most notably the
tort of public disclosure of private facts’.136
7.59 The US Supreme Court has held that the First Amendment to the US Constitution
prohibits actions for invasion of privacy where the published matter is truthful
and lawfully obtained information of legitimate public concern.137 By contrast,
the US Constitution provides only a limited right to gather information, which is
the right more directly implicated by intrusions into seclusion.138 Further, because
the ‘public interest test’ does not apply in the tort of intrusion, ‘it is technically
irrelevant whether the subject of intrusion is a public figure and/or whether
information acquired during the intrusion is a matter of public interest’.139
Application in public places

7.60 The tort of intrusion has been of limited use to people whose privacy has been
invaded in public places. This is due to what has been described as the ‘stubborn
principle’ in US tort law that privacy cannot be invaded in or from a public
place.140 William Prosser wrote in his 1960 article:
On the public street, or in any other public place, the plaintiff has no right
to be alone, and it is no invasion of his privacy to do no more than follow
him about. Neither is it such an invasion to take his photograph in such
a place, since this amounts to nothing more than making a record, not
differing essentially from a full written description, of a public sight which
any one present would be free to see.141
7.61 The principle also appears in the Restatements, which adopted his view that
the tort of intrusion generally cannot occur in public places.142 According to the
Restatements, there is no ‘liability for observing … or even taking [a plaintiff’s]
photograph while he is walking on the public highway, since he is not then in
seclusion, and his appearance is public and open to the public eye’.143
7.62 The Restatements acknowledges a narrow exception to the rule where the
intrusion concerns a matter that is not normally exhibited to the public gaze, such
as details of a person’s undergarments.144 Similarly, there may be privacy in public
with respect to a matter that is very personal in nature or implicates a person’s
‘emotional sanctum’.145 A number of cases have also said unreasonable, harassing
or persistent surveillance of individuals in public places can be unlawful.146
132 Ruth Shulman v Group W Productions
Tort of publicity given to private life (1998) 18 Cal 4th 200, 231; 955 P2d 469,
490; 74 Cal Rptr 2d 843, 864.
Elements 133 Restatement (Second) of Torts § 652B
7.63 The Restatements defines the tort of publicity given to private life in the following cmt d (1977).
134 Restatement (Second) of Torts § 652B
terms: cmt b, illus 1 (1977).
One who gives publicity to a matter concerning the private life of another 135 Restatement (Second) of Torts § 652B
cmts a–b (1977).
is subject to liability to the other for invasion of privacy, if the matter 136 McClurg, above n 128, 1070.
publicized is of a kind that 137 Cox Broadcasting Co v Cohn, 420 US 469
(1975); The Florida Star v BJF, 491 US 524
• would be highly offensive to a reasonable person, and (1989).
138 McClurg, above n 128, 1070–1.
• is not of legitimate concern to the public.147 139 Ibid 1078–1079.
7.64 Thus, like the tort of intrusion upon seclusion, the tort of publicity given to private 140 Ibid 999.
141 Prosser, above n 127, 391–2.
life requires that the information publicised is highly offensive to a reasonable
142 McClurg, above n 128,1026.
person.148 In contrast to the tort of unreasonable intrusion, however, publication
is a necessary element of the tort of unreasonable publicity. cmt c (1977).
7.65 The further requirement that the matter publicised is not of legitimate concern cmt c (1977).
to the public stems from concerns with freedom of the press, and the privilege 145 Harvey Martin and David Whitten v
Robert Patterson, individually, and d/b/a
under the common law to giving publicity to news, and other matters of public Patterson Construction (2007) 975 So 2d
interest.149 According to the Restatements, ‘when the matter to which publicity 984, 994.
is given is true, it is not enough that the publicity would be highly offensive 146 See eg, Galella v Onassis, 487 F2d 986
(2nd Cir, 1973); Nader v General Motors
to a reasonable person’.150 The US Supreme Court has found that the First Corporation, 255 NE 2d 765 (NY Ct
Amendment to the US Constitution prohibits actions for invasion of privacy where App 1970); Robert Gellman, ‘A General
Survey of Video Surveillance in the
the matter publicised is truthful and was lawfully obtained.151 United States’ in Sjaak Nouwt et al (eds)
Reasonable Expectations of Privacy?
Application in public places Eleven Country Reports on Camera
Surveillance and Workplace Privacy
7.66 Like the tort of seclusion, the tort of publicity is generally not available when (2005), 7, 32 citing Annotation, ‘Right of
Privacy—Surveillance’, 13 ALR 3rd (1967)
the information in question was gathered in a public place. According to the 1025, 1026.
Restatements 147 Restatement ( Second) of Torts § 652D
(1977).
there is no liability for giving further publicity to what the plaintiff himself 148 Keeton, above n 126, 857.
leaves open to the public eye. Thus he normally cannot complain when 149 Ibid 860.
his photograph is taken while he is walking down the public street and is 150 Restatement (Second) of Torts § 652D
cmt d (1977).
published in the defendant’s newspaper.152
151 Cox Broadcasting Co v Cohn 420 US 469
(1975); The Florida Star v BJF (1989) 491
Defences US 524, 541.
7.67 Leading commentators suggest that consent may be the only defence in actions 152 Restatement (Second) of Torts § 652D
cmt b (1977).
for invasion of privacy.153 Consent may not in fact be a true defence because one 153 Keeton, above n 126, 868.
element of the tort—an offensive invasion of privacy—could not be established if 154 Ibid 867.
the plaintiff had consented to the conduct in question.154 155 Restatement (Second) of Torts § 652H
(1977).
Remedies 156 Restatement (Second) of Torts § 652H
(1977).
7.68 In the US, a successful claim of invasion of privacy under common law entitles the 157 Robert Gellman, ‘A General Survey of
plaintiff to recover damages on three bases: Video Surveillance in the United States’,
in Sjaak Nouwt et al (eds) Reasonable
• the harm from the loss of privacy Expectations of Privacy? Eleven Country
Reports on Camera Surveillance and
Workplace Privacy (2005) 7, 34.
• mental distress reasonably suffered
• when there is cause for ‘special damages’.155
7.69 It remains unclear whether damages can be awarded in the absence of proof of
actual harm.156 Injunctions are not readily ordered.157
139
7
the law in canada
Statutory causes of action for invasion of privacy
7.70 There is no common law tort of invasion of privacy in Canada.158 However, four
provinces—British Columbia, Manitoba, Saskatchewan, and Newfoundland
and Labrador—have statutory causes of action for invasion of privacy.159 British
Columbia enacted the first Privacy Act in 1968, followed by Manitoba (1970),
Saskatchewan (1974), and Newfoundland and Labrador (1981).160
Elements of the statutory causes of action

7.71 All of the provincial statutes create broadly defined causes of action. In British
Columbia, for example, it is a tort, without proof of damage, ‘for a person,
wilfully and without claim of right to violate the privacy of another’.161
7.72 The elements of the statutory causes of action are similar. First, the plaintiff’s
expectation of privacy must be reasonable. For example, the British Columbia
Act provides that ‘the nature and degree of privacy to which a person is
entitled in a situation or in relation to a matter is that which is reasonable in the
circumstances, giving due regard to the lawful interests of others’.162 Among
the factors the courts look at to determine reasonableness is the location of the
privacy invasion and, in the case of surveillance, whether it was conspicuous,
together with its extent, thoroughness and duration.163
7.73 Secondly, all but the Manitoba Act require proof that the defendant acted
wilfully. This means that the defendant knew, or ought to have known, that an
act would violate the privacy of the plaintiff, and was not merely negligent.164
7.74 Thirdly, the statutes require the courts to consider a range of relevant factors such
as the nature of the privacy invasion and the relationship between the parties.
With the exception of the Manitoba Privacy Act, which stipulates that an invasion
of privacy must be ‘substantial’, the legislation does not require the alleged
invasion of privacy to be ‘serious’ or ‘highly offensive’.165
7.75 The Canadian provincial statutes include three of the four US privacy torts. Cases
brought under these laws have found liability for intrusion into seclusion and
disclosure of embarrassing private facts. The Canadian Acts also explicitly provide
for a right of action for misappropriation of personality.166
Defences
7.76 All four Acts list exceptions or defences to the cause of action. The common
exceptions or defences are:
• the plaintiff consented to the conduct
• the defendent’s conduct was incidental to the exercise of a lawful
right of defence of person or property
• the defendant’s conduct was authorised or required by law
• the defendent is a police or public officer who was engaged in
his/her duty and the conduct was neither disproportionate to the
matter being investigated nor committed in the course of a trespass
• if the defendant’s conduct involved publication, the publication was
privileged, fair comment or was in the public interest.
7.77 The Saskatchewan Privacy Act also contains a defence of acting in the scope of 158 Neither the Supreme Court of Canada
nor any provincial courts of appeal have
newsgathering, while the Manitoba Act has a defence for a person who neither endorsed a common law tort of invasion
knows, nor reasonably should have known, that the act in question would violate of privacy: Colin McNairn and Alexander
Scott, Privacy Law in Canada (2001) 45;
the privacy of any person. Simon Chester, Jason Murphy and Eric
Robb, ‘Zapping the Paparazzi: Is the Tort
Remedies of Privacy Alive and Well?’ (2003) 27
Advocates Quarterly 357, 360. However,
7.78 The Canadian statutes, other than the British Columbia Privacy Act, specify the some lower courts have been prepared
to do so. See eg, Somwar v MacDonald’s
remedies that a court may order for an unlawful invasion of privacy. Common Restaurants of Canada Ltd [2006] OJ No
remedies are: 64 as discussed in Alex Cameron and
Mimi Palmer, ‘Invasion of Privacy as a
• damages Common Law Tort in Canada (2009)
6(11) Canadian Privacy Law Review 105.
• an injunction 159 Privacy Act, RSBC 1996, c 373, Privacy
Act, RSM 1987, c P125, Privacy Act, RSS
• an order for the defendant to account to the plaintiff for profits in 1978, c P–24, Privacy Act, RSNL 1990,
c P–22. The province of Quebec, which
consequence of the violation is a civil rather than a common law
jurisdiction, has also enacted a statutory
• an order for the defendant to deliver the documents obtained in cause of action for invasion of privacy.
consequence of the violation. McNairn, above n 158, 66, citing Articles
35–40 of the Civil Code of Quebec, SQ
7.79 In British Columbia, damages are the only remedy that has been ordered by 1991, c 64.
160 McNairn, above n 158, 68, 70, 72.
the courts.167
161 Privacy Act, RSBC 1996, c 373, s 1(1).
162 Privacy Act, RSBC 1996, c 373, s 1(2).
Comment 163 McNairn, above n 158, 79 citing Davis v
7.80 There have been relatively few privacy cases in Canada. By 2001, there had been McArthur (1969) 10 DLR (3d) 250 (BCSC).
no more than 25 privacy cases under the four provincial statutes.168 Most of those 164 British Columbia Law Institute, Report
on the Privacy Act of British Columbia
cases had been taken under the British Columbia Privacy Act.169 BCLI Report No 49 (2008) 11 citing
Hollinsworth v BCTV (1998) 59 BCLR
7.81 The small number of cases may be due in part to the cost of litigation. For (3d) 121 (CA) and Getejanc v Brentwood
example, in British Columbia, jurisdiction is vested solely in the Supreme Court, College Association (2001) 6 CCLT (3d)
261 at [22] (BCSC).
where the high cost of bringing an action is a disincentive to litigation.170 165 McNairn, above n 158, 67.
166 Ibid 76.
other law reform commission recommendations 167 British Columbia Law Institute, above n
164, 40–1.
australian law reform commission 168 McNairn, above n 158, 73.
169 Chester, above n 158, 364.
7.82 The ALRC proposed a new statutory cause of action for serious invasion of
170 McNairn, above n 158, 70.
privacy in its report about protection of privacy in Australia.171 When the 171 Australian Law Reform Commission,
Australian Government announced its intention to implement many of the ALRC’s above n 2, 19.
recommendations in a document published in October 2009, it indicated it would 172 Australian Government, Australian
Government First Stage response to the
not respond to the recommendations concerning a new cause of action until an ALRC Report 108 (2009).
unspecified later date.172 173 Australian Law Reform Commission,
7.83 The ALRC recommended a broad statutory cause of action for serious invasion of 174 Australian Law Reform Commission,
privacy.173 Although the ALRC did not seek to define ‘serious invasion of privacy’, above n 2 [74.119]. It appears that
‘unauthorised surveillance’ is surveillance
it did provide a non-exhaustive list of the circumstances that could give rise to the not authorised by any law. This
cause of action. They were: description probably includes most
surveillance that currently takes place
• if there has been an interference with an individual’s home or in Victoria.
family life
• if an individual has been subjected to unauthorised surveillance
• if an individual’s correspondence or private written, oral or electronic
communication has been interfered with, misused or disclosed
• if sensitive facts relating to an individual’s private life have
been disclosed.174
141
7
7.84 The ALRC concluded that a statutory cause of action was ‘the best way’ to
protect people from ‘unwanted intrusions into their private lives or affairs in
a broad range of contexts’.175 It supported legislative intervention because of
concern about ‘a lengthy period of uncertainty and inconsistency as the courts
refine the law in this area’.176 The ALRC suggested that a statutory cause of action
would overcome ‘the distinction between equitable and tortious causes of action,
and between the defences and remedies available under each’.177
Elements of the cause of action

7.85 The ALRC recommended that the elements of the cause of action should be that
• the claimant had a reasonable expectation of privacy in the
circumstances
• the act or conduct complained of is highly offensive to a reasonable
person of ordinary sensibilities.178
These elements are similar to those adopted by the New Zealand Court of Appeal
when devising the tort of misuse of private information. The ALRC cause of
action, however, extends to a much broader range of activities because it seeks to
deal with a serious invasion of privacy in any circumstances.
7.86 The ALRC proposed that a court undertake a balancing of interests when
considering the two elements of the cause of action. The court would be required
to consider whether ‘the public interest in maintaining the claimant’s privacy’
outweighs ‘other matters of public interest’, such as being informed about
matters of public concern and freedom of expression.179 This balancing exercise,
which is very similar to the second element of the UK cause of action for misuse
of private information,180 requires the court to consider those ‘other matters of
public interest’ when considering both elements of the cause of action.
7.87 The ALRC argued that including the public interest test within the elements of
the cause of action recognises the importance of freedom of expression. If freedom of
expression were merely a defence, claims without merit could proceed with defendants
having to wait until the defence case to raise their public interest defence.181
7.88 The ALRC’s recommended cause of action requires conduct that is either
deliberate or reckless, and not merely negligent. Negligent acts were excluded
because ‘including liability for negligent or accidental acts in relation to all
invasions of privacy would, arguably, go too far’.182
Defences
7.89 The ALRC recommended that there be three defences to the proposed statutory
cause of action for serious invasion of privacy:
• where the act or conduct is incidental to the exercise of a lawful
right of defence of person or property
• where the act or conduct is required or authorised by or under law
• where publication of the information is subject to privilege under
the law of defamation.183
7.90 The ALRC suggested that defences that are commonly recognised in other
countries—such as consent, information in the public domain, and disclosure to
rebut an untruth—are subsumed within the elements of the cause of action. For
example, a person who consented to a particular course of conduct could not
have a reasonable expectation of privacy and nor could the defendant’s actions
be highly offensive to an ordinary person of reasonable sensibilities.184
Remedies 175 Australian Law Reform Commission,
above n 2 [74.117].
7.91 The ALRC’s proposed cause of action does not require proof of actual damage. 176 Ibid.
This means that proof of physical or economic harm is unnecessary and that 177 Ibid.
the cause of action extends to conduct that causes insult or humiliation. The 178 Ibid rec 74–2.
ALRC suggested that a successful plaintiff should have access to a wide range 179 Ibid rec 74–2.
180 See discussion at 7.16–7.33.
of remedies, including ordinary and aggravated damages (but not exemplary
damages), an account of profits, an injunction, an order requiring the respondent above n 2 [74.144], [74.147].
to apologise to the claimant, a correction order, an order for the delivery up and 182 NSW Law Reform Commission, above
n 6 [7.24].
destruction of material, and a declaration. The ALRC did not recommend any
limits to the amount of damages that could be awarded. Although the ALRC did above n 2 [74.169].
not directly address the matter, it seems apparent that the Federal Court and the 184 Ibid [74.174].
Federal Magistrates Court would exercise jurisdiction in these cases. 185 NSW Law Reform Commission, Invasion
of Privacy, Report No 120, (2009).
nsw law reform commission 186 Ibid 4.11.

187 Ibid 4.16.
7.92 In 2009 the NSWLRC recommended a statutory cause of action for invasion of 188 The precise wording of the cause of
privacy.185 Like the ALRC, the NSWLRC recommended that it be a broad cause of action is set out in the draft legislation
that the Commission prepared as part
action for ‘invasion of privacy’ generally. Although declining to define ‘privacy’, of its report. See NSW Law Reform
the NSWLRC said that its proposed cause of action seeks to protect two interests: Commission, above n 185, 80–92.
invasions of information privacy and intrusions on seclusion.186 It suggests that the 189 The requirement to balance competing
interests that is built into the two
courts will develop and refine the cause of action over time.187 Unlike the ALRC, it elements in the ALRC model is made
did not limit the cause of action to serious invasions of privacy. explicit in the NSW model.
190 NSW Law Reform Commission, above
n 185 [5.11].
Elements of the cause of action 191 Ibid.
7.93 There are two elements to the NSWLRC’s proposed cause of action.188 The first 192 Ibid [5.21].
element is that the individual concerned (P) had a reasonable expectation of
privacy in the circumstances having regard to any relevant public interest and that
P’s privacy was invaded by the conduct of the alleged wrongdoer (D).189 It is also
necessary for P to prove, as a second element, that he or she did not consent to
the conduct in question.
7.94 The NSWLRC rejected the second element in the ALRC’s model cause of action—
that the act or conduct complained of is highly offensive to a reasonable person of
ordinary sensibilities—because it concluded that it is ‘unwarranted in principle’.190
The NSWLRC said that the ‘highly offensive’ test amounts to a qualification of the
‘reasonable expectation of privacy test’ which would unnecessarily privilege other
interests, such as freedom of expression, over protection of privacy.191
7.95 The NSWLRC recommended that in order to balance P’s interests with any other
relevant interests, a court should be legislatively required to consider nine matters
when deciding whether there has been an invasion of privacy. Those matters are:
• the nature of the subject matter alleged to be private
• the nature of the conduct concerned, including the extent to which a
person of ordinary sensibilities would consider the conduct offensive
• the relationship between P and D
• the extent to which P has a public profile
• the extent to which P was in a position of vulnerability
• the conduct of P and D before and after the event, including any
apology by D
• the effect of D’s conduct on P’s health and welfare
• whether D’s conduct contravened any Australian statute
• any other matter the court considers relevant.192
143
7
7.96 The NSWLRC suggested that the proposed cause of action should be
characterised as a statutory action rather than as a tort for two reasons. First,
it reasoned that the methodology of the cause of action is not that usually
associated with torts because they ‘do not generally require the courts to engage
in an overt balancing of relevant interests … in order to determine whether or not
the elements of the cause of action in question are satisfied’. Secondly, it argued
that the proposed cause of action ‘should not necessarily be constrained by rules
or principles generally applicable in the law of torts’.193
7.97 The NSWLRC identified two tort rules or principles that were of concern: the state
of mind of the wrongdoer and the extent to which actual damage forms part of
the cause of action. If the cause of action were characterised as a tort it would
be necessary to determine whether the wrongdoer’s conduct was intentional in
order to attract liability. Although the Commission was of the view that liability
should generally arise only where the conduct in question was intentional, it
preferred to leave the matter to the courts because there might be circumstances
in which a person should be held liable for reckless or negligent conduct, such as
when a doctor negligently discloses medical records. If the cause of action were
characterised as a tort it would also be necessary to determine whether it was
a tort that is actionable without proof of damage, such as trespass, or whether
actual proof of damage is necessary, as in the tort of negligence. The Commission
was of the view that this requirement of tort law ‘is inapposite to the statutory
cause of action, which is designed primarily to protect the plaintiff from suffering
non-economic loss, including mental distress’.194
Defences
7.98 The NSWLRC recommended that there should be five statutory defences to the
cause of action for invasion of privacy. These defences are similar to those found
in the Canadian provinces that have statutory causes of action. The defendant
bears the burden of proof in relation to the statutory defences, which are:
• D’s conduct was required or authorised by law
• D’s conduct was done in lawful defence of a person or property
• D’s conduct involved publication of information in circumstances
where under defamation law D could rely upon the defences of
absolute privilege or fair reporting
• D’s conduct involved publication of information as an employee or
agent of a subordinate distributor and D could not have reasonably
known that the publication constituted an invasion of privacy
• D’s conduct involved publication of information in circumstances
similar to those that attract the defence of qualified privilege in
defamation law and D’s conduct was not actuated by malice.195
7.99 There are no public interest defences in the draft legislation prepared by the
NSWLRC. Rather, in determining whether an individual’s privacy has been
invaded for the purposes of the action, a court must consider any relevant public
interest, including the interest of the public in being informed about matters of
public concern.196
193 Ibid [5.55].
Remedies 194 Ibid [5.57].
7.100 The NSW Commission proposes that a court be permitted to order a range of 195 Ibid 85–6.
statutory remedies, including compensatory damages, injunctive style prohibitory 196 Ibid 86.
orders and orders of a declaratory nature. The draft legislation caps the amount 197 Australian Law Reform Commission,
of compensation that may be awarded for non-economic loss at $150 000, with 198 Submissions 2, 5, 7, 9, 12, 20, 27, 29,
this maximum figure being adjusted on an annual basis. Exemplary or punitive 33, 34, 35, 36, 37, 38, 40, 42, 44;
Consultations 4, 5, 9, 27.
damages are specifically excluded.
199 Submissions 27, 36, 38, 40, 42;
Consultation 5.
Jurisdiction 200 Submissions 16, 19, 22, 25, 28.
7.101 The NSWLRC proposed that the cause of action be created by state legislation 201 Submission 29; Consultation 5. See also
Submissions 5, 20.
as part of a uniform national law project. Jurisdiction should be vested in a state
202 Submission 29.
court of competent jurisdiction. 203 Submission 27.
7.102 The cause of action is available only to living ‘individuals’ or natural persons. Any
cause of action would not survive the death of the complainant. Proceedings
must be commenced within 12 months of the date upon which the cause of
action accrues unless a court extends that limitation period. Any extension cannot
exceed three years from the date upon which the cause of action accrued.
should victoria enact a cause of action for invasion of privacy?

7.103 In our Consultation Paper, we suggested that consideration be given to whether
Victoria should have a statutory cause of action for serious invasions of privacy
modelled on the recommendations in the ALRC’s Privacy Report.197
7.104 The commission received a range of views about the proposed cause of action.
There was broad support for a statutory cause of action,198 although it was
carefully qualified in a number of instances.199 A number of organisations also
expressed direct opposition to the proposal.200
7.105 Support for a cause of action was often accompanied by the suggestion that
it would fill a gap in the protection of privacy in Victoria. For example, some
groups supported the cause of action because of its capacity to deal with
once-off or intermittent use of surveillance by individuals where other forms of
regulation might fail.201 Others took a slightly broader view. The Victorian Privacy
Commissioner, for example, wrote:
A large number of individuals who contact the Office of the Victorian
Privacy Commissioner … seek redress for interferences with spatial or
physical privacy for which there is currently no readily accessible remedy
in Australian law, or seek to complain about interferences with personal
information by other individuals, which are effectively beyond the
jurisdiction of all current privacy regulators.202
7.106 The Law Institute of Victoria noted that the protection afforded the right to
privacy by section 13 of the Charter of Human Rights and Responsibilities Act
2006 (the Charter) is limited because it ‘does [not] give rise to a direct cause of
action for invasions of privacy and it is limited to acts of public authorities’.203 A
statutory cause of action might fill this gap.
145
7
7.107 In some instances, submissions expressed the view that the introduction of a
statutory cause of action is preferable to waiting for the courts to develop the
cause of action as part of the common law.204 For example, the Victorian Privacy
Commissioner wrote:
Relying on the courts to recognise a cause of action for privacy may not
be the best approach, given the inherent limitations associated with the
courts only being able to consider particular matters brought before them
by parties resourced to access justice at the requisite level. In addition,
the courts would be limited by existing remedies developed within the
common law or equity.
Legislators have a better opportunity to craft a cause of action that is
more precisely targeted and which takes into account competing public
interests. Moreover, protection of a fundamental human right such as
privacy should not be dependent on the efforts of a particularly persistent
and well resourced plaintiff, to take an action all the way to the High Court
of Australia in order to definitively establish the existence of a cause of
action.205
7.108 Similarly, the Law Institute of Victoria noted that the evolution of common law
protection for privacy was ‘too slow and too limited’ to provide protection from
new surveillance technologies and other pressures on privacy protection such as
counter-terrorism.206
7.109 A number of submissions referred to the limited capacity of a cause of action
for serious invasions of privacy to control misuse of public place surveillance,
especially when compared to other regulatory measures.207 The Fitzroy Legal
Service, for example, acknowledged that a cause of action for serious invasions
of privacy could protect the rights of individuals, but also noted that it would not
address systemic discrimination, racial profiling, or harassment in the context of
surveillance in public places.208
7.110 The capacity of the proposed statutory cause of action to be useful to the
average person was questioned by some people. Some expressed concern that
the cause of action would probably assist only those individuals able to afford
the high cost of litigation.209 On the other hand, several people suggested that
judicial consideration of the cause of action would set useful precedents for
the entire community even if proceedings were taken only by the wealthy.210 It
was suggested that a high profile case would send an educative message about
acceptable use of surveillance in public places.211
7.111 Although there was considerable support for a statutory cause of action, some
organisations opposed the proposal that there be a cause of action for serious
invasions of privacy.212 For example, some noted that a cause of action for
invasion of privacy is best established at the federal level.213 One submission
suggested that the cause of action would alter the balance between privacy and
competing rights, including freedom of communication.214 Other organisations
said that the introduction of a statutory cause of action is ‘excessive’,215 and that
current regulation of the media sufficiently protects any potential infringement of
an individual’s privacy.216
7.112 The federal Privacy Commissioner, who supports development of a statutory
cause of action for invasion of privacy, encouraged ‘national consistency in the
regulation of surveillance’ and ‘ongoing collaboration between governments
to propose a cause of action that could be uniformly applied across all
jurisdictions’.217
the commission’s recommendation: two statutory causes of action 205 Submission 29.
7.113 The commission is of the view that Victorians should be able to take civil action 206 Submission 27.
in response to threatened or actual serious invasions of privacy by the use of 207 Submissions 16, 19, 22, 25, 28.
208 Submission 34.
surveillance in a public place. Privacy is a value of increasing importance to
209 Consultation 5.
the entire community because it recognises and promotes human dignity. The 210 Submission 5; Consultation 5.
preamble to the Charter acknowledges that ‘all people are born free and equal in 211 Consultation 5.
dignity and rights’. 212 Submissions 19, 28.
7.114 The reach of current privacy law is limited. There are Commonwealth and state 214 Submission 28.
laws that regulate how public authorities and some larger businesses deal with 215 Submission 19.
matters concerning information privacy. The Surveillance Devices Act 1999 (Vic) 216 Submission 28.
(SDA) and the Summary Offences Act 1966 (Vic) regulate the most flagrant 217 Submission 35.
218 John Burrows, ‘Privacy and the Courts’
invasions of privacy by use of a surveillance device. The extent to which the (Address to the Privacy Forum, Hotel
common law protects privacy is unclear. Intercontinental, Wellington, New
Zealand, 27 August 2008) <www.privacy.
7.115 Although the commission believes the introduction of proper guidelines, coupled org.nz/assets/Files/PAW/10.-Speaker-
Professor-John-Burrows.doc > at
with appropriate education about their implementation, will be an effective 10 November 2009.
means of promoting responsible use of public place surveillance, new civil 219 See Campbell v MGN [2004] 2 AC 457
causes of action are warranted because, inevitably, some people will choose not [16]–[20] (Lord Nicholls), [49]–[50] (Lord
Hoffmann; Hosking v Runting [2004]
to follow the guidelines. The possibility of civil action ‘can create a climate of NZCA 34 [2]–[6] (Gault P and Blanchard J).
restraint which ensures that serious breaches do not happen in the first place’, 220 The remedies available in the general law
action for breach of confidence were
and can provide a unique response in particularly serious cases which require ‘an recently clarified by the Victorian Court of
injunction to stop an offensive publication happening in the first place’.218 Appeal in Giller v Procopets [2008] 40 Fam
LR 378. This decision is discussed in Robert
7.116 There is a clear gap in the current regulatory regime. Although the criminal law deals Dean, ‘Sex, Videotape and the Law’
(2009) 83.08 Law Institute Journal 52.
with the most offensive invasions of privacy, there is no parallel civil cause of action 221 Charter of Human Rights and
for people harmed by that behaviour. There is also no right of action for serious Responsibilities Act 2006 (Vic) s 13.
misuse of a surveillance device that falls short of criminal conduct. The Victorian 222 While the Charter does not contain any
express provision that directs the courts to
Privacy Commissioner informed the commission that people contact her office with consider human rights when developing
complaints about interferences with spatial privacy or misuse of private information the common law in light of changing
social conditions (cf section 32 of the
for which for there is no redress under Victorian and Commonwealth law. Charter, which deals with interpretation
of statutory provisions), the courts could
7.117 Events in other comparable countries suggest that the courts will face increasing quite properly consider ‘the human
pressure to develop a response to misuse of surveillance devices in a public place rights that Parliament specifically seeks to
protect and promote’ (section 7(1) of the
unless there is appropriate legislation. The developments in other common law Charter) when doing so.
countries, most notably the UK and New Zealand, suggest it will take a long time
before a reasonably clear body of law emerges. Until that time, many people and
organisations with a direct interest in the evolution of privacy causes of action will
face substantial legal compliance costs to satisfy themselves that their proposed
activities are lawful. The UK experience suggests a few pioneering plaintiffs, and
some media organisations, will outlay significant sums of money in legal costs
to develop the general law through the courts. This means of developing an
important aspect of our law should be avoided if possible.
7.118 It is open to both the High Court and the Victorian Court of Appeal to recognise
causes of action for wrongful publication of private information and for intrusion
upon seclusion in the absence of any legislative action. This outcome could be
achieved by following long recognised principles about the process by which the
common law evolves. It is important to note that both the House of Lords and the
New Zealand Court of Appeal were influenced by human rights principles when
developing a cause of action for wrongful publication of private information.219
The Victorian Court of Appeal may follow a similar course.220 That Court might
be asked to consider what effect, if any, the right to privacy in the Victorian
Charter221 should have upon the common law as that body of law responds to
changing social conditions.222
147
7
7.119 Former High Court Chief Justice Sir Anthony Mason has suggested that a human
rights charter guaranteeing a right to privacy ‘could provide a platform for the
development of a common law right’.223 Although the extent to which the
High Court should, or may, consider the rights in the Victorian Charter when
developing the Australian common law is a complex question, it can consider
the right to privacy in international human rights instruments ratified by the
Australian Government when doing so.224
7.120 The commission believes there should be two overlapping statutory causes of
action for some serious invasions of privacy caused by misuse of a surveillance
device in a public place. As national harmony of privacy law is likely to be a
long-term goal, Victoria is well placed to demonstrate leadership in this area.
The Charter is a useful catalyst for legislative action because ‘privacy’225 is one
of the human rights that ‘Parliament specifically seeks to protect and
promote’.226
7.121 The evidence from within Australia and other comparable countries suggests
that there is unlikely to be a flood of litigation in response to the creation of any
new causes of action for invasion of some privacy interests. There have been
very few Australian cases in the eight years since the High Court indicated in
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd that there were
no common law barriers to the development of a cause of action for invasion of
privacy.227 In New Zealand there have been approximately 15 privacy cases since
1985228 and Sir David Eady, the English High Court judge who has presided in
some of the most significant privacy cases in that country, has recently written
that after an early flurry of activity ‘things seem to have settled down to a large
extent’.229 He suggests this may mean ‘that journalists and their lawyers have
developed a feel for what is now acceptable to the general public (and to the
courts) and what is not’.230
7.122 The commission believes that access to any causes of action for invasion of privacy
should not be restricted to the few wealthy people who can afford the legal
fees involved in court proceedings and have the financial capacity to accept the
risk involved in any litigation. At the same time, senior judicial officers who have
experience in weighing competing interests and shaping the law should hear the
more difficult cases. The Victorian Civil and Administrative Tribunal (VCAT) is an
ideal forum for these purposes because it is a low cost jurisdiction comprised of a
broad range of judicial officers headed by a Supreme Court judge.
7.123 The commission believes it is not desirable for there to be one statutory cause
of action for all serious invasions of privacy because the concept of privacy is
too broad and imprecise to be of use when creating legal rights and obligations.
Many appellate court judges and academic commentators have warned of the
difficulty in devising a workable legal definition of privacy. In Lenah Game Meats
Gleeson CJ said that ‘the lack of precision of the concept of privacy is a reason for
caution in declaring a new tort’,231 while Justices Gummow and Hayne referred to
the ‘difficulties in obtaining in this field something approaching definition rather
than abstracted generalisation’.232 Members of the House of Lords233 and the New
Zealand Court of Appeal234 made similar comments when rejecting invitations to
devise a broad tort of invasion of privacy.
7.124 Two internationally recognised academic commentators on privacy law, Daniel 223 Anthony Mason, ‘Legislative and
Judicial Law-Making: Can we locate
Solove and Raymond Wacks, make similar points. Solove suggests that while an identifiable boundary?’ (2003) 24
‘privacy is an issue of profound importance around the world’,235 it is ‘a concept Adelaide Law Review 15, 35–6.
224 See eg, International Covenant of Civil
in disarray’ because ‘nobody can articulate what it means’.236 He argues that and Political Rights Art 17.
because ‘we should understand privacy as a set of protections against a plurality 225 Charter of Human Rights and
of distinct but related problems’237 it is advisable to identify particular types of Responsibilities Act 2006 (Vic) s 13.
privacy problems when considering regulation. Two of Solove’s privacy problem Responsibilities Act 2006 (Vic) s 7(1).
areas—information dissemination and invasion—are of particular relevance 227 Australian Broadcasting Corporation v
when considering new statutory causes of action involving misuse of surveillance Lenah Game Meats Pty Ltd (2001) 208
CLR 199 [107] (Gummow and Hayne JJ).
devices. According to Solove, ‘information dissemination involves the transfer 228 Burrows, above n 218.
and publicizing of personal data’ and ‘invasion involves interference with one’s 229 David Eady (Speech delivered at
personal life’.238 the University of Hertfordshire,
10 November 2009) <www.judiciary.
7.125 Wacks suggests that one of the reasons why a tort of privacy has not evolved as gov.uk/docs/speeches/justice-eady-
univ-of-hertfordshire-101109.pdf> at
part of the English common law is the lack of a coherent and consistent meaning 20 April 2010.
of the notion of privacy.239 He argues that it is more constructive to identify the 230 Ibid.
specific interests the law ought to protect and suggests that ‘at the core of the 231 (2001) 208 CLR 199 [41].
232 (2001) 208 CLR 199 [116].
preoccupation with the “right to privacy” is protection against the misuse of
233 Wainwright v Home Office [2004] 2 AC
personal, sensitive information’.240 406 (Lord Hoffmann).
234 Hosking v Runting [2005] 1 NZLR 1 (Gault
7.126 The commission believes there should be two overlapping statutory causes of P and Blanchard J).
action concerning the privacy interests most likely to be adversely affected by 235 Daniel Solove, Understanding Privacy
(2008) 2.
the misuse of public place surveillance. Those causes of action should deal with
236 Ibid 1.
misuse of private information and what is often referred to as intrusion upon
237 Ibid 171.
seclusion, or unwarranted interference with spatial privacy. Legislating to protect 238 Ibid 172.
these broadly recognised sub-categories of privacy is likely to promote greater 239 Raymond Wacks, ‘Why there will never be
clarity about the precise nature of the legal rights and obligations that have been an English common law privacy tort’, in
Andrew T Kenyon and Megan Richardson
created than by creating a broad civilly enforceable right to privacy. (eds) New Dimensions in privacy
law: International and Comparative
Perspectives (2006) 183.
recommendation 240 Ibid 177.
22. There should be two statutory causes of action dealing with serious invasion
of privacy caused by misuse of surveillance in a public place.
misuse of private information

7.127 The first new cause of action should deal with serious invasion of privacy by
misuse of private information. This cause of action is primarily concerned with
the use of private information rather than with how it is gathered or received.
It is similar in effect to the tort developed by the New Zealand courts and to the
extended action for breach of confidence which is evolving in the UK courts.
7.128 Whether the information in question is private is best determined by the
application of an objective test rather than by relying solely on the views of the
person to whom the information relates. This approach means that the tribunal
should consider values and attitudes widely held throughout the community
before deciding whether the plaintiff had a reasonable expectation of privacy
about the information in question. Examples of the sort of information obtained
by the use of public place surveillance, which could fall within this cause of action
because the plaintiff had a reasonable expectation of privacy, include footage of a
person entering a medical clinic or a gay bar.
149
7
7.129 The gist of this cause of action is the misuse of private information. In most,
but not necessarily all, cases the misuse of private information will involve
some form of publication. This may range from photocopying documents and
distributing them to others, to broadcasting footage on television or posting it
on the internet. Whether the private information in question has been misused
is best determined by the application of an objective test rather than by relying
solely upon the views of the person to whom the information relates. Again, this
approach means that the tribunal should consider values and attitudes widely
held throughout the community before deciding whether the use of the private
information was highly offensive. Examples of the sort of behaviour that could fall
within this cause of action because the use of the private information was highly
offensive to a reasonable person include publishing footage of a person entering
an abortion clinic or a hospice for the dying.
recommendation
23. The first cause of action should deal with serious invasion of privacy by
misuse of private information.
intrusion upon seclusion

7.130 The second cause of action should deal with what is often referred to as intrusion
upon seclusion or spatial privacy. This cause of action is primarily concerned with
the use of a surveillance device, often surreptitiously, to view parts of a person
not open to public gaze or to monitor conduct that a person believes to be
private. Although this cause of action has not yet been developed by the courts
in New Zealand and the UK, it may emerge in time because there can be serious
invasions of privacy without any publication of personal information.
7.131 The act of intruding upon a person’s seclusion or invading their private space is in
itself objectionable conduct. Whether a person had an entitlement to seclusion is
best determined by the application of an objective test rather than by relying solely
on the views of the person to whom the information relates. This approach means
that the tribunal should consider values and attitudes widely held throughout the
community before deciding whether the plaintiff had a reasonable expectation of
privacy. Examples of the sort of things about which a person could have reasonable
expectations of privacy are intimate parts of their body that are clothed and
conversations that appear to be taking place well out of the earshot of others.
7.132 The gist of this cause of action is the intrusion upon a person’s seclusion or
private space. Whether the intrusion is unacceptable is best determined by the
application of an objective test rather than by relying solely upon the views
of the person seeking seclusion. Again, this approach means that the tribunal
should consider values and attitudes widely held throughout the community
before deciding whether the conduct was highly offensive. Examples of the sort
of behaviour that could fall within this cause of action because the intrusion
upon seclusion was highly offensive to a reasonable person include engaging in
‘upskirting’ on public transport or covertly listening to a conversation between
people sitting on an isolated park bench.
7.133 Both examples in the previous paragraph involve criminal conduct.241 Although
the wrongdoer may be prosecuted for a criminal offence, there is no civil cause of
action open to a person harmed by conduct of this nature. An action for breach
of statutory duty is not available in these cases because of the limited reach of
that cause of action.242
241 The offence of ‘upskirting’ is dealt with
recommendation in sections 41A and 41B of the Summary
Offences Act 1966 (Vic), while using
24. The second cause of action should deal with serious invasion of privacy by a listening device to monitor a private
intrusion upon seclusion. conversation is an offence under section 6
of the Surveillance Devices Act 1999 (Vic).
242 Mendelson, The New Law of Torts, above
n 11. See esp Ch 19 for a discussion of
statutory causes of action the law of breach of statutory duty.
7.134 The commission believes that any new causes of action should be statutory n 6 [1.5].
causes of action rather than torts. As the NSWLRC pointed out, there is little 244 See Mendelson, The New Law of Torts,
above n 11. See esp Ch 1 for a discussion
to be gained—and many complex rules of law to be navigated—if any new of classification in the law of torts.
cause of action is characterised as a tort.243 Integration within the law of torts 245 Ibid esp Ch 21 for a discussion of
would involve classification of the cause of action as one that is either actionable remedies and Ch 22 for a discussion of
the different types of liability in the law
without proof of damage or that requires proof of damage.244 It would also of torts.
involve incorporation of the detailed rules that have arisen in tort law concerning 246 Commissioner of Police v Estate of Russell
(2002) 55 NSWLR 232 [70]–[75].
remedies and the various types of liability that may attach to actual wrongdoers 247 Australian Law Reform Commission,
and to those persons who are legally liable for the actions of others.245 above n 2, 127.
248 Ibid [74.135].
7.135 Chief Justice Spigelman of the NSW Supreme Court has suggested that ‘torts’ refer 249 Ibid [74.135].
to rights or causes of action generally enforceable in courts. As the commission 250 Submission 27.
recommends that jurisdiction in these new causes of action be vested solely in a 251 Submission 27.
tribunal, this observation about the ‘usual’ venue for torts is another reason why it
is preferable to characterise them as statutory causes of action rather than torts.246
elements
7.136 A number of submissions and consultations supported the creation of a cause of
action for serious invasions of privacy but criticised aspects of the model proposed
by the ALRC.
Should the conduct be ‘highly offensive’?

7.137 An important issue common to both proposed causes of action is the seriousness
of the invasion of privacy. The ALRC and the NSWLRC differed on this point.
The second element of the ALRC cause of action is that ‘the act or conduct
complained of is highly offensive to a reasonable person of ordinary sensibilities’.
The NSWLRC disagreed with this approach because, in its view, this element set
the bar too high. It concluded that this element unnecessarily favoured other
interests, most notably, freedom of expression, over privacy.
7.138 The ALRC recommended that the conduct in question be objectively highly
offensive because this would help limit the cause of action to ‘egregious
circumstances’247 and ensure that the important countervailing interest of
‘freedom of expression is respected and not unduly curtailed in the great run of
circumstances’.248 The ALRC suggested that the requirement helps ensure that
the law does not protect ‘unduly sensitive’ plaintiffs; a plaintiff will succeed only
‘where the defendant’s conduct is thoroughly inappropriate and the complainant
suffered serious harm as a result’.249
7.139 A number of individuals and organisations suggested that the requirement in the
ALRC cause of action that the conduct complained of be ‘highly offensive to a
reasonable person of ordinary sensibilities’ set the bar too high for the plaintiff.
7.140 The Law Institute of Victoria (LIV), for example, submitted that the requirement
‘could be too restrictive and too subjective to lead to consistent outcomes’.250 It
suggested that this second element be amended to require that ‘the act complained
of [be] unreasonable’, with additional guidance concerning the factors that
should be taken into account in determining what is ‘unreasonable’. The LIV
argued that this would be consistent with interpretations of reasonableness under
the United Nations Human Rights Committee and the Victorian Charter.251
151
7
7.141 According to the LIV, the application of the concept of reasonableness together
with the public interest test ‘would provide appropriate limits on the cause of
action, such as the right to freedom of expression’.252
7.142 The commission believes that as legal protections for privacy develop, we should
ensure that minor or trivial invasions do not divert attention away from the more
significant cases. This is best done by including an element that a reasonable
person of ordinary sensibilities must find the defendant’s conduct to be highly
offensive. In other new areas of law, such as racial and religious vilification, there
are intensifiers in the statutory language used to describe unlawful conduct.
Sections 7 and 8 of the Racial and Religious Tolerance Act 2001 (Vic) prohibit
conduct that incites serious contempt for, or severe ridicule of, people on racial
and religious grounds. Presumably, this language has been used with the aim
of ensuring that important new social policies are not undermined by adverse
community responses to inconsequential claims.
7.143 The commission believes that the elements of the cause of action for serious
invasion of privacy caused by misuse of private information should be:
• D (the defendant) misused, by publication or otherwise, information
about P (the plaintiff) in respect of which he/she had a reasonable
• a reasonable person would consider D’s misuse of that information
highly offensive.
7.144 Similarly, the commission believes the elements of the cause of action for serious
invasion of privacy caused by intrusion upon seclusion should be:
• D intruded upon the seclusion of P when he/she had a reasonable
• a reasonable person would consider D’s intrusion upon P’s seclusion
highly offensive.
Intentional, reckless and negligent acts

7.145 The ALRC’s recommended cause of action requires conduct that is deliberate or
reckless, and not simply negligent. The inclusion of an element of wilfulness is
consistent with the Canadian statutory privacy torts.253
7.146 The ALRC approach of excluding negligent acts was supported in one submission.
The author of this submission supported the cause of action only if it was limited
to deliberate and reckless conduct and did not extend to negligence.254
7.147 The LIV noted one possible concern with the ALRC ‘state of mind’ requirement.
It queried whether there must be an intent to act, or an intent to invade privacy.
The LIV submitted that it appears the ALRC contemplated an intent to invade
privacy.
7.148 The commission is of the view that it is unnecessary to expressly exclude negligent
acts from the conduct which might fall within the two statutory causes of action.
Although it is highly likely that most serious invasions of privacy will involve
intentional conduct, there may be circumstances in which a person’s actions were
so grossly negligent that civil action ought to be possible. An example might be a
medical practitioner who leaves a patient’s highly sensitive medical records on a
train or tram.
252 Submission 27.
recommendations 253 Privacy Act, RSBC 1996, c 373, s 1(1);
Privacy Act, RSS 1978, c P–24, s 2; Privacy
25. The elements of the cause of action for serious invasion of privacy caused by Act, RSNL 1990, c P–22, s 3(1).
misuse of private information should be: 254 Submission 38.
a. D misused, by publication or otherwise, information about P in respect Surveillance in Public Places: Consultation
of which he/she had a reasonable expectation of privacy; and Paper Consultation Paper 7 (2009)
[6.168].
b. a reasonable person would consider D’s misuse of that information 256 Australian Law Reform Commission,
highly offensive. above n 2 [74.169]. As noted above, a
public interest justification for the invasion
26. The elements of the cause of action for serious invasion of privacy caused by of privacy is not a defence to the cause of
action because it is to be considered by
intrusion upon seclusion should be: the court at an earlier stage in deciding
whether the cause of action is made out.
a. D intruded upon the seclusion of P when he/she had a reasonable 257 Keeton, above n 126, 867–8, stating
expectation of privacy; and ‘It has been said that chief among the
defences at common law is the plaintiff’s
b. a reasonable person would consider D’s intrusion upon P’s seclusion consent to the invasion’ and that
‘[o]ther defences have appeared only
highly offensive. infrequently’ in the surveyed case law;
also Helen Fenwick and Gavin Phillipson,
Media Freedom Under the Human Rights
Act (2006) 772 stating that in the UK, the
Defences most often invoked are implied consent
(or ‘waiver’) and press freedom (or
7.149 Our Consultation Paper proposal for a statutory cause of action for serious invasions freedom of expression).
of privacy listed the three defences recommended by the ALRC,255 namely: 258 Australian Law Reform Commission,
above n 2 [74.174].
• where the act or conduct is incidental to the exercise of a lawful 259 NSW Law Reform Commission, above
n 185 [5.46]; see also clause 74(4) of the
right of defence of person or property Commission’s draft bill.
• where the act or conduct is required or authorised by or under law

• where publication of the information is subject to privilege under
the law of defamation.256
7.150 Having considered the law in other jurisdictions and the recommendations
made by other law reform commissions, we believe that additional defences are
desirable. They are:
• consent
• where the defendant was a public officer engaged in his or her duty
and acted in a way that was not disproportionate to the matter
being investigated and not committed in the course of a trespass
• where D’s conduct was in the public interest, or if involving a
publication, the publication was privileged or fair comment.
Consent
7.151 In the US and the UK, consent is one of the most commonly used defences in
privacy actions.257 Consent is also an important defence in the Canadian Privacy Acts.
7.152 The ALRC did not include consent as a defence to its proposed cause of action
because it believed it was unnecessary to do so. It reasoned that if a ‘claimant
had consented to the invasion of his or her privacy … it is unlikely that the
elements of the cause of action would be satisfied’ as there would be no
reasonable expectation of privacy and the conduct of the defendant would not
be highly offensive.258
7.153 The NSWLRC included lack of consent as an element of its proposed cause of
action.259 This means that the plaintiff would bear the burden of proof in relation
to the issue of consent.
153
7
7.154 The commission is of the view that consent should be an express defence to
both proposed causes of action. The defendant, rather than the plaintiff, should
carry the burden of proving that his or her conduct was justified by the plaintiff’s
consent. To do otherwise is to force the plaintiff to engage in the difficult task of
proving a negative.
Protection of person or property

7.155 The defence that a person’s conduct was incidental to a lawful right of defence
of person or property appears in the Canadian Privacy Acts260 and in the
recommendations of the NSWLRC and the ALRC.261
7.156 Examples of this defence from the Canadian Acts include an employer taking
privacy invasive action to prevent employee pilferage of stock,262 and a defendant
arguing (unsuccessfully) that his interception of his neighbour’s cordless
telephone conversations was protection of person since the neighbour had
repeatedly threatened him.263 The defence also encompasses conduct undertaken
for the purpose of prosecuting or defending civil or criminal proceedings,264 such
as private investigations.265
7.157 The commission’s view is that if a person’s conduct was incidental to a defence of
person or property it should be a defence to the proposed causes of action if the
conduct is a reasonable and proportionate response to the threatened harm.
Authorised or required by law

7.158 The defence that a person’s action was authorised or required by law also appears
in the Canadian Privacy Acts266 and in the recommendations of the NSWLRC and
the ALRC.267 This defence is important for government actors, particularly in the
areas of law enforcement and national security,268 as it acknowledges that other
laws, such as the SDA, permit them to engage in some invasions of privacy when
their actions are appropriately authorised.
7.159 The commission is of the view that it should be a defence to the recommended
causes of action that the defendant’s conduct was authorised or required by law.
Public officer engaged in duty

7.160 The defence of being a police or public officer engaged in duties appears in
the Canadian Privacy Acts. The officer must also be acting in a manner not
disproportionate to the matter being investigated, and not committing a trespass.269
7.161 Although the defence of a police or public officer engaged in his or her duties
may fall within a broad public interest defence, the commission believes it is
important to provide police and public officers with a specific exception when
engaged in their duties. This defence does not give police and public officers
a licence to invade people’s privacy. As in Canada, the conduct should be
reasonable, proportionate to the duties of the officer and not involve a trespass in
order to fall within the defence.
Privilege, fair comment (honest opinion) and public interest

7.162 The defences of privilege and fair comment derived from defamation law are also
commonly available in privacy causes of action in other jurisdictions. So too is the
defence of public interest.270
7.163 Although defamation is concerned with the protection of reputation, rather than
privacy, the motivation for plaintiffs in a defamation action is often the desire to
protect privacy or to gain compensation for an invasion of privacy.271 In Victoria,
the Defamation Act 2005 (Vic) has replaced aspects of the common law tort of
defamation.272
7.164 As the defences in defamation law seek to 260 Privacy Act, RSBC 1996, c 373, s 2(2)(b); 269 Privacy Act, RSBC 1996, c 373, s 2(2)(d);
Privacy Act, RSM 1987, c P125, s 5(c); Privacy Act, RSM 1987, c P125, s 5(e);
strike a balance between protection of a Privacy Act, RSS 1978, c P–24, s 4(1)(b); Privacy Act, RSS 1978, c P–24, s 4(1)(d);
plaintiff’s reputation and freedom of speech, Privacy Act, RSNL 1990, c P–22, s 5(1)(b). Privacy Act, RSNL 1990, c P–22, s 5(1)(d).
261 Australian Law Reform Commission, 270 Not a defence in defamation cases under
they may also be usefully employed when above n 2, rec 74–4(a); NSW Law Reform the common law where truth alone is a
seeking to strike a balance between privacy and Commission, above n 185 [6.2]. defence. Patrick George, Defamation Law
in Australia (2006) 243.
freedom of speech. 262 McNairn, above n 158, 84–5 citing United
Food and Commercial Workers, Local 271 Mendelson, The New Law of Torts, above
1400 v Saskatoon Co-operative Assn Ltd n 11, 579.
Privilege (1992) 101 Sask R 1 (QB). 272 Defamation Act 2005 (Vic) ss 6(1)–(2).
7.165 A privilege can be absolute or it can be 263 British Columbia Law Institute, above 273 George, above n 270, (2006) 260.
n 164, 14.
qualified. Examples of absolute privilege include 264 NSW Law Reform Commission, above
274 Ibid 269.
275 Ibid quoting from the High Court in
statements made by a member of parliament n 185, 86.
Roberts v Bass (2002) CLR 1, 26.
and by participants in court proceedings.273 265 McNairn, above n 158, 84–5 citing United
276 Privacy Act, RSBC 1996, c 373, s 2(3)(b);
Food and Commercial Workers, Local
By contrast, a qualified privilege requires 1400 v Saskatoon Co-operative Assn Ltd Privacy Act, RSM 1987, c P125, s 5(f)(ii);
(1992) 101 Sask R 1 (QB) and Druken Privacy Act, RSS 1978, c P–24, s 4(2)(b),
the defendant to show that he or she had v RG Fewer and Associates Inc (1998) Privacy Act, RSNL 1990, c P–22, s 5(2)(b).
a legitimate duty and interest to publicise 171 Nfld & PEIR 312 (Nfld TD). See also 277 NSW Law Reform Commission, above
Ireland Law Reform Commission, Privacy: n 185, [6.2].
the private matter.274 The law protects Surveillance and the Interception of 278 Australian Law Reform Commission,
such revelations because they promote the Communications Report 57 (1998) 132 above n 2, rec 74–4.
where, under the defence of ‘fulfilling a
welfare of society.275 Sections 27 and 30 of legal duty, or exercising a legal power,
279 Lord Nicholls suggested that this issue
may fall within one of the elements of
the Defamation Act 2005 (Vic) provide for a or defending or maintaining a legal
the cause of action because it may affect
right’, the Law Reform Commission of
defence of absolute and qualified privilege, Ireland includes as an example where one
the reasonableness of the claimant’s
expectation of privacy (Campbell v MGN
respectively, in any cause of action for employs a private detective to investigate
[2004] 2 AC 457 [24]).
another for the purpose of defending or
defamation in Victoria. maintaining a civil action. 280 See George, above n 270, Ch 22.
266 Privacy Act, RSBC 1996, c 373, s 2(2)(c); 281 Ibid.
7.166 Privilege is a defence in the Canadian Privacy Privacy Act, RSM 1987, c P125, s 5(d); 282 Ibid 338.
Acts,276 and the NSWLRC277 and ALRC proposed Privacy Act, RSS 1978, c P–24, s 4(c); 283 Ibid 338–9.
Privacy Act, RSNL 1990, c P–22, s 5(1)(c).
causes of action.278 It is a defence to the Law 284 Ibid 339.
Reform Commission of Ireland’s proposed tort above n 2, rec 74–4(b); NSW Law Reform
of disclosure of information obtained by privacy Commission, above n 185 [6.2].
268 As noted by Australian Law Reform
invasive surveillance. A ‘defence’279 similar to Commission, above n 2 [74.171] and
the defence of qualified privilege in defamation NSW Law Reform Commission, above
n 185 [6.3].
law280 may be available in the UK cause of action
for misuse of private information. Finally, the
New Zealand Law Commission has suggested
that actions that are privileged should be a
defence to the New Zealand tort if they do not
fall within the broad defence of legitimate public
concern recognised in Hosking v Runting.281
Fair comment (honest opinion)

7.167 In the interests of protecting the freedom to
discuss matters of public concern, the common
law developed the defence of fair comment in
actions for defamation.282 The fair comment
defence applies when there is
1. comment based on fact
2. about a matter of public interest
3. recognisable as comment (versus fact)
4. ‘fair’ in the sense that ‘an honest person
could express the opinion, even if it is
exaggerated, prejudiced or obstinate’.283
The defence may be defeated, however, by
proof of malice.284
155
7
7.168 The Defamation Act 2005 (Vic) provides for a defence of honest opinion, which,
though largely intended to reflect the common law, differs in some respects from
the defence of fair comment.285
7.169 Fair comment is a defence in the Canadian Privacy Acts286 and the NSWLRC
proposal.287 By contrast, the ALRC proposal does not include fair comment as
a separate defence, as it is subsumed within the public interest test that is an
element of the proposed cause of action.288
Public interest
7.170 In contrast to privilege and fair comment, where the primary concern is protection
of communications, the defence of public interest may involve other matters of
community concern that might justify an intrusion into privacy. The Law Reform
Commission of Ireland lists the following four specific, but non-exhaustive,
strands in their public interest defence:
• the detection and prevention of crime
• the exposure of illegality or serious wrongdoing
• informing the public on a matter of public importance
• preventing the public from being misled by the public utterances of
public figures (broadly defined) where private beliefs and behaviour
are directly at variance with the same.289
7.171 Freedom of expression remains a central reason for any public interest defence.290
For example, the New Zealand tort of invasion of privacy by publication of private
facts includes the defence that the publication concerned a matter of legitimate
public concern.291
7.172 The public interest defence appears in other existing and proposed statutory causes
of action for invasion of privacy. In the case of the Canadian Privacy Acts,292 and the
proposal of the Law Reform Commission of Ireland, the defence is limited to where
there has been a publication, and so may not apply where there is surveillance
without publication of the material. By contrast, in the proposals of the NSWLRC
and the ALRC, where the cause of action is not limited to publication of private
matters, the defence would likely apply to mere surveillance activities.293
7.173 The commission is of the view that, when devising new causes of action
concerning invasion of privacy, it is important to protect revelations that would
fall within the defences of privilege and honest opinion (fair comment) in
defamation law. If some statements merit protection because of their value to
the community, even when they are defamatory, it is strongly arguable that they
should be similarly protected, even when they are invasive of privacy. Because
the defences of privilege and fair comment are concerned with the publication of
information, they would apply only to the proposed cause of action concerned
with misuse of private information.
7.174 The public interest in protecting revelations of particular forms of conduct, such
as abuse of the powers associated with public office, is widely acknowledged,
even when it involves some invasion of privacy. The public interest defence should
apply to both recommended causes of action. It is not logical to limit this defence
to those cases that involve publication of private information because otherwise
people would be encouraged to publish everything they discover that may be
invasive of privacy in order to avail themselves of the defence. There will be
occasions in which it ought to be possible for investigative journalists, and others,
to rely upon a defence of public interest when their conduct would otherwise be
an intrusion upon a person’s seclusion.
7.175 There are different approaches to the question of which party should bear the 285 Mendelson, above n 11, 616, 622–3.
286 Privacy Act, RSBC 1996, c 373, s 2(3)(a);
burden of proof when the public interest is a relevant issue in a privacy dispute. Privacy Act, RSM 1987, c P125, s 5(f)(iii);
Privacy Act, RSS 1978, c P–24, s 4(2)(a);
7.176 In an action under the New Zealand tort, the defendant bears the onus of Privacy Act, RSNL 1990, c P–22, s 5(2)(a).
establishing there is a legitimate public concern in the publication of otherwise 287 NSW Law Reform Commission, above
private facts.294 The defendant also bears the onus of proof of public interest under n 185, [6.2].
the Canadian Privacy Acts and the Law Reform Commission of Ireland proposal. above n 2, [74.170].
7.177 In the US the plaintiff bears the burden of proof in actions for the tort of publicity 289 Law Reform Commission [Ireland],
above n 265, 36; Australian Law Reform
given to private life. A plaintiff must show that the matter publicised is highly Commission, above n 2 [8.10]; NSW Law
Reform Commission, above n 185, [6.2].
offensive to a reasonable person, and that it is not of legitimate concern to the
public.295 Although the public interest is not a defence to the UK cause of action above n 2 [74.147].
for misuse of private information, the second element of the action requires a 291 Hosking v Runting [2005] 1 NZLR
1[129]–[130] (Gault P and Blanchard J).
court to balance the right to press freedom and the right to privacy.296
292 Privacy Act, RSBC 1996, c 373, s 2(3)(a);
7.178 As both the ALRC and NSWLRC proposals treat the public interest as an Privacy Act, RSM 1987, c P125, s 5(f)(i);
Privacy Act, RSS 1978, c P–24, s 4(2)(a);
element of their causes of action—the plaintiff bears the burden of proof in Privacy Act, RSNL 1990, c P–22, s 5(2)(a).
relation to this matter. For example, under the NSWLRC proposed cause of 293 Australian Law Reform Commission,
above n 2 [74.170], where it is an
action, a court is required to consider ‘any relevant public interest (including the element rather than a defence.
interest of the public in being informed about matters of public concern)’ when 294 New Zealand Law Commission, above
deciding whether an individual’s privacy has been invaded.297 In the case of the n 6, [6.63].
295 Restatement (Second) of Torts § 652D
ALRC proposal, a court must take into account ‘whether the public interest in (1977).
maintaining the claimant’s privacy outweighs other matters of public interest 296 Helen Fenwick and Gavin Phillipson,
(including the interest of the public to be informed about matters of public Media Freedom Under the Human Rights
Act (2006) 771.
concern and the public interest in allowing freedom of expression)’.298 297 Ibid 86, citing NSWLRC Draft Civil Liability
Amendment (Privacy) Bill 2009
7.179 The submission from legal academic David Lindsay expressed concern that s 74(2).
requiring the plaintiff to establish that there is no countervailing public interest 298 Australian Law Reform Commission,
(such as freedom of expression) may be too high a burden because it requires the above n 2, rec 74–2.
299 Consultation 5.
plaintiff to prove a negative. 299
300 George, above n 270, 338–9.
7.180 The commission believes that a plaintiff should not have to prove a negative, such 301 David Morrison and Michael Svennevig,
‘The Defence of Public Interest and
as the lack of a countervailing public interest. The defendant should carry the the Intrusion of Privacy’ (2007) 8 (1)
burden of proof in relation to the public interest defence. The defendant should Journalism 44, 55.
be required to introduce evidence (if necessary) and satisfy the tribunal that it was 302 Ibid 45.
303 Jennifer Mullaly, ‘Privacy: Are the
in the public interest to engage in conduct that would otherwise be unlawful. Media a Special Case?’ (1997) 16 (1)
Communication Law Bulletin 10, 11.
7.181 In Canada and New Zealand the defendant has the burden of proof in relation
to the public interest. In other areas of law involving statutory causes of action
the defendant carries the burden of proof with respect to public interest
considerations. Vilification law is an example in point. Under section 11 of the
Racial and Religious Tolerance Act 2001 (Vic) the defendant must establish that
conduct which would otherwise be racial or religious vilification was justified
because it was in the public interest. In the law of defamation, public interest
considerations are dealt with as a defence rather than as one of the elements of
the cause of action that must be negatived by the plaintiff.300
7.182 The defence that publicity given to a private matter is justified because it concerns a
matter of public interest begs the question: What is a matter of public interest? There
is no settled and clear definition of public interest.301 Rather, more commonly, there
are categories believed to cover what may fall within public interest,302 including:
• information needed by the public to evaluate a government official’s
fitness for office
• information for the exposure of crime, corruption and other
wrongdoing in public life
• other information affecting the public at large.303
157
7
7.183 There are different perspectives about whether publication of any matter
of interest to the public should constitute a defence to invasion of privacy.
The approach of treating any subject matter that is of interest to the public
as a matter of public concern is seen in the United States, where the law
regards whatever the media consider to be worthy of print or broadcast as
‘newsworthy’.304 This approach does not distinguish between speech about
celebrities’ lives and the lives of politicians, and speech about public figures and
people cast into the public spotlight.305
7.184 Supporters of the approach of equating all speech with matters of public interest
can point to several justifications for their stance. These include: the difficulty
of distinguishing between speech of a ‘public interest’ nature and that which is
not;306 the fact that there may never be consensus on what constitutes the public
interest;307 the fact that information about celebrities’ lives could serve a social
function, because people can model their lives on the choices celebrities make;308
and finally, if there is no consensus on what constitutes the public interest, who
should be assigned the task of deciding what it is?309
7.185 An alternative approach avoids equating the public interest with matters that may
interest the public.310 A notable example is the 2004 decision of the European
Court of Human Rights in Von Hannover v Germany.311 In this case, the Court
concluded that Princess Caroline of Monaco’s right to private life had been
breached following publication of photographs of her in public places engaged in
activities such as shopping and practising sport.312 The Court deemed the freedom
of interest values at stake to be minimal: the photos did not contribute to any
debate of general interest to society, but merely satisfied the curiosity of readers
about her private life.313
7.186 Some existing and proposed causes of action for invasion of privacy attempt to
exclude matters that are merely of interest to a public curious about the private
lives of others from the ambit of the defence of public interest. For example,
the draft legislation proposed by the Law Reform Commission of Ireland states
that a disclosure ‘is not in the public interest merely because the object of such
surveillance, or such information or material, is or would be newsworthy’.314
7.187 The commission is of the view that not all matters of interest to the public are
matters of public interest that ought to deprive a person of their right to privacy.
In particular, the public interest defence ought not to extend to matters that
satisfy a curiosity about the private lives of others, but serve no other purpose
relevant to the common good. Tribunals and courts should be aware of this
important point when interpreting and applying the proposed new laws.
Should the list of defences be exhaustive?

7.188 Opinions among submissions and consultations were varied on this point. The
LIV queried whether having an exhaustive list of defences was advisable315 and
suggested that there might be no need to have a list of defences if the second
element of the proposed cause of action for serious invasions of privacy—that the
act or conduct was highly offensive to a reasonable person—is replaced with a
requirement that the act or conduct was unreasonable.316
7.189 The commission is of the view that the legislation should contain an exhaustive list
of defences. Consent should be a defence to the proposed causes of action. The
issue of the reasonableness of the defendant’s conduct is best dealt with as an
element of both causes of action.
304 Camrin Crisci, ‘All the World is Not
recommendations a Stage: Finding a Rights to Privacy
in Existing and Proposed Legislation’
27. The defences to the cause of action for serious invasion of privacy caused by (2002) 6 New York University Journal
misuse of private information should be: of Legislation and Public Policy 207,
219–20. See also Restatement (Second)
a. P consented to the use of the information of Torts § 652D cmt g (1977) stating:
‘To a considerable extent, in accordance
b. D’s conduct was incidental to the exercise of a lawful right of defence with the mores of the community,
the publishers and broadcasters have
of person or property, and was a reasonable and proportionate themselves defined the term [news]’.
response to the threatened harm 305 Ibid 225.
306 Morrison, above n 301, 55.
c. D’s conduct was authorised or required by law 307 Ibid 48.
308 See Richard Posner, ‘The Right of Privacy’
d. D is a police or public officer who was engaged in his/her duty and (1978) 12 Georgia Law Review 393, 396;
the D’s conduct was neither disproportionate to the matter being Crisci, above n 304, 217.
investigated nor committed in the course of a trespass 309 Ibid 209.
310 Morrison, above n 301, 44.
e. if D’s conduct involved publication, the publication was privileged or 311 Von Hannover v Germany 59320/00
fair comment [2004] VI Eur Court HR [61].
312 Von Hannover v Germany 59320/00
f. D’s conduct was in the public interest, where public interest is a limited [2004] VI Eur Court HR [61].
concept and not any matter the public may be interested in. 313 Von Hannover v Germany 59320/00
[2004] VI Eur Court HR [65].
28. The defences to the cause of action for serious invasion of privacy caused by 314 Law Reform Commission [Ireland], above
n 265, 129.
315 Submission 27.
a. P consented to the conduct 316 Submission 27.
b. D’s conduct was incidental to the exercise of a lawful right of defence 318 Submission 28.
of person or property, and was a reasonable and proportionate 319 Submission 27.
response to the threatened harm 320 Submission 21.
321 Submission 21.
e. D’s conduct was in the public interest, where public interest is a limited
Exemptions?
7.190 In their submissions to the commission, some organisations suggested that they,
or their members, should be exempted from any new causes of action.317 For
example, Australia’s Right to Know, a coalition of major media organisations, wrote:
There is no need for any additional privacy rights or remedies in Australia.
If any need for an additional privacy right or remedy is identified in future,
it should be very clearly and narrowly defined and there should be a broad
media exemption.318
7.191 The LIV opposed a media exemption, arguing that the balancing test in the cause
of action was sufficient to protect media activities.319
7.192 The Insurance Council of Australia argued that exemptions were required for the
legitimate need of insurers to undertake surveillance.320 According to the Council,
its ‘members have a vital interest in being able to undertake surveillance in public
places, for example to assess a personal injury claim (particularly for Compulsory
Third Party and workers’ compensation claims) and in defence of a decision to
decline a claim’.321
159
7
7.193 Another group seeking an exemption was Victoria Police, who suggested police
officers acting for a lawful purpose in the course of their duties should be
protected from liability.322
7.194 The commission’s view is that no organisations or classes of people should be
exempted from the proposed statutory causes of action. The defences adequately
protect people engaged in legitimate activities from unmeritorious actions for
serious invasion of privacy.
remedies
7.195 A remedy is a step or an action that a defendant is ordered to take, such as
the payment of damages, once a court or tribunal finds that a wrong has been
committed.
Damages
7.196 The most common remedy in civil actions is an order for the payment of
damages. In the law of torts, damages means a court order that the defendant
compensate the plaintiff monetarily for the harm caused by the defendant’s
wrongful conduct.323 Damages are usually awarded to restore a plaintiff, to the
extent money can do so, to the position he or she would have been in had the
wrong not been committed.324 Damages of this nature are compensatory.
7.197 By contrast, exemplary (or punitive) damages are designed to punish the
defendant for particularly reprehensible conduct and to deter him or her (and
others) from acting in this way in the future.325
7.198 Although exemplary damages are part of Australian law, they are rarely awarded,
and only if the defendant engaged in conscious wrongdoing in flagrant disregard
of the plaintiff’s rights.326 Exemplary damages also raise unresolved concerns, such
as whether the criminal law, with its safeguards for defendants, might be the
more appropriate forum for punishing a wrongdoer and whether their award may
amount to an unfair windfall for the plaintiff.327
7.199 Exemplary damages have been awarded at common law in defamation cases.328
However, section 37 of the Defamation Act 2005 (Vic) now provides that
exemplary damages cannot be awarded in defamation actions. As the NSW Court
of Appeal recently noted:
Parliament has tended to cut down exemplary damages at common
law. Secondly, in the fields where Parliament has created new rights
or developed existing rights, it has generally not conferred a right to
exemplary damages.329
7.200 Neither the ALRC nor the NSWLRC proposed that causes of action for invasion of
privacy provide for exemplary damages.
Proof of actual damage

7.201 Some torts, such as assault, trespass and defamation, are actionable per se,330
meaning that the plaintiff may be awarded ‘damages at large’ without the
need to prove any actual injury or economic loss caused by the defendant’s
wrongdoing.331 In cases of this nature damages may be awarded to compensate
the plaintiff for infringement of his or her dignity, honour or decorum.332
The practical effect is to allow the plaintiff to be compensated for insult and
humiliation,333 without the need to prove injury or economic loss, which is
necessary when actual damage forms part of the cause of action.
7.202 In most of the jurisdictions we reviewed proof of actual damage is unnecessary 322 Submission 11.
323 See eg, Mendelson, above n 10, 31.
in privacy actions. The Court of Appeal in Hosking v Runting made it clear that
324 George, above n 278, 370.
under the New Zealand privacy tort, proof of actual damage in the sense of 325 NSW Law Reform Commission, Invasion
‘personal injury or economic loss’ is unnecessary and the ‘harm to be protected of Privacy, Consultation Paper, above n 5
[8.11].
against is in the nature of humiliation and distress’.334 Similarly, proof of damage
326 Gray v Motor Accident Commission
is unnecessary under the Canadian Privacy Acts,335 and in the proposal of the Law (1998) 196 CLR 1, 5, 9.
Reform Commission of Ireland for a tort of privacy-invasive surveillance.336 The 327 See Ibid 42–3 discussing Gray v Motor
Accident Commission (1998) 196 CLR
ALRC and NSWLRC proposals for a cause of action for invasion of privacy are also 1 and Rachael Mulheron, ‘Exemplary
actionable without proof of damage.337 Damages and Tort: an International
Comparison (2000) 2 UNDALR 17. But
see Gray v Motor Accident Commission
Limits to the amount of damages (1998) 196 CLR 1, 7 (Gleeson CJ,
7.203 Caps to the amount of compensation a court may award for non-economic loss McHugh, Gummow and Hayne JJ) noting
that there is tension between using
are common in Australia.338 Their purpose is to ensure that awards are not too civil proceedings to compensate a party
who is wronged and using the same
high, given that non-economic, as opposed to economic, loss cannot be precisely proceedings to punish the wrongdoer
quantified. Under the Defamation Act 2005 (Cth), for example, the maximum only if it is assumed there is a sharp
dividing line between the criminal law and
amount of damages that a court may award in defamation cases is generally the law of torts and contract, and noting
$250 000.339 the intermingling of criminal and civil law,
such as ‘the increasing frequency with
7.204 Damages awards in invasion of privacy and breach of confidence cases in which civil penalty provisions are enacted’.
Australia and elsewhere have not been excessive. In Giller v Procopets,340 the 328 Uren v John Fairfax & Sons Pty Ltd (1966)
117 CLR 118.
plaintiff was awarded $50 000 damages (including aggravated damages) for 329 Harris v Digital Pulse Pty Ltd [2003]
non-economic loss; in Jane Doe v ABC341 the plaintiff was awarded $110 000 for NSWCA 10 at [296].
non-economic loss; and in Grosse v Purvis,342 the plaintiff was awarded $108 000 330 Meaning literally, ‘by itself’.
331 Mendelson, above n 10, 46.
for non-economic loss.
332 Ibid 46.
7.205 Damages awards have ranged from small to moderate in both Canada and the 333 Australian Law Reform Commission,
above n 2 [74.167] citing Francis
UK. In the UK, Mosley attracted the largest award, £60 000.343 Trindade, Peter Cane, Mark Lunney, The
Law of Torts in Australia (3rd ed, 1999) 23.
7.206 The NSWLRC proposal places a cap on the award of damages for non-economic
loss at $150 000, adjustable yearly based on average weekly total earnings of (Gault P and Blanchard J).
full-time adults over the preceding four quarters. This is the form of adjustment 335 Privacy Act, RSS 1978, c P–24, s 2; Privacy
Act, RSBC 1996, c 373, s 1(1); Privacy Act,
used in the Civil Liability Act 2002 (NSW), which deals with actions in tort.344 RSM 1987, c P125, s 2(2); Privacy Act,
RSNL 1990, c P–22, s 3(1).
Injunctions 336 Law Reform Commission [Ireland], above
n 265 [7.28].
7.207 An injunction is a remedy that may have an important role to play in some
invasion of privacy cases. We use the term ‘injunction’ broadly to mean any above n 2 rec 74–3(b); NSW Law Reform
order of a tribunal or court that compels specified conduct. In some instances, Commission, Invasion of Privacy, Report,
above n 185 [7.9].
an injunction may be sought to prevent the initial publication of material, while 338 NSW Law Reform Commission, above
in others it may be sought to prevent its ongoing publication in forums such as n 185 (2009) [7.11] citing Harold
Luntz, Assessment of Damages for
websites. Sometimes it may be appropriate to a direct a person to publish an Personal Injury and Death (4th ed) (2002)
apology in response to the wrongful publication of private information, or to [11.2.1]–[11.2.22].
339 Defamation Act 2005 (Cth) s 35(1).
apologise privately for an intrusion upon seclusion.
340 [2008] VSCA 236 [443]–[446].
7.208 An injunction may be sought to stop the threatened publication of private 341 [2007] VCC 281.
information. This step is particularly challenging in cases involving privacy interests 342 [2003] QDC 151.
because of the irreparable consequences of publication. Justice Eady suggested in 343 Mosley v News Group Newspapers
Limited [2008] EWHC 177 (QB) [231].
Mosley that ‘an infringement of privacy cannot ever be effectively compensated by a 344 NSW Law Reform Commission, Invasion
monetary award’,345 and observed that ‘once privacy has been infringed, the damage of Privacy, Report, above n 185 [7.13].
is done and the embarrassment is only augmented by pursuing a court action’.346 345 Mosley v News Group Newspapers
Limited [2008] EWHC 177 (QB) [231].
7.209 The British courts have issued injunctions to prevent the initial publication, or 346 Mosley v News Group Newspapers
Limited [2008] EWHC 177 (QB) [230]
continued publication, of material in some misuse of private information cases. 347 Venables v News Group Newspapers Ltd
Injunctions have prevented publication of the addresses of convicted murderers [2001] Fam 430.
when released from prison,347 the details of the extra-marital sex life of a football 348 A v B plc [2003] QB 195.
player,348 the private life of a musician,349 and the musings of Prince Charles in 349 McKennitt v Ash [2008] QB 73.
350 Associated Newspapers Ltd v HRH Prince
his diary.350 of Wales [2008] Ch 105.
161
7
7.210 Importantly, there have also been high profile cases in which the courts have
declined to restrain publication of material that may be invasive of privacy. In John
Terry v Persons Unknown, 351 Tugendhat J rejected an application for an injunction
against the media to prevent publication of information about an affair involving
the captain of the English football team. The judge was not satisfied that the
plaintiff was likely to succeed in defeating a defence that it would be in the public
interest for there to be publication.352
7.211 A number of law reform bodies have discussed the importance of injunctions as
a remedy for privacy invasion cases. For example, because the British Columbia
Privacy Act, unlike the other three Canadian Privacy Acts, does not deal with
remedies expressly, the British Columbia Law Institute recently recommended
that the Act be amended to confer power on the courts to grant remedies other
than damages. In particular, the Institute noted the importance of injunctions
‘to make civil privacy legislation useful in curbing a privacy violation of a
persistent nature’.353
7.212 Similarly, the Law Reform Commission of Ireland recommended an injunction, or
‘privacy order’, be a remedy for its proposed torts. The Commission has written
that injunctions are ‘a key feature in any strategy to enhance the protection of
privacy, as privacy is a highly perishable commodity’.354
7.213 Because injunctions impede media freedom, the common law has generally
disfavoured ‘prior restraint’ on publication.355 In the US, injunctions may not be
readily awarded in privacy invasion cases.356 In Hosking v Runting members of the
New Zealand Court of Appeal referred to the legitimate concerns of the media with
respect to injunctions and ‘prior restraint’.357 The justices in the majority suggest
that an injunction should not be granted to restrain publication unless there is
‘compelling evidence of most highly offensive intended publicising of private
information and there is little legitimate public concern in the information’.358
Declarations
7.214 A declaration is an order of a court or tribunal that contains a statement about
the legal rights and obligations of a party to a dispute. In some cases involving
misuse of private information or intrusion upon seclusion, the plaintiff may seek
little more than a public finding, by way of declaration, that he or she has been
wronged. For example, a court or tribunal could declare that the publication in
a newspaper of the naked image of an identifiable person, originally obtained
by the use of a wave scanner, was a wrongful use of private information. In
some instances a declaration of this nature may be sufficient solace for the
wronged person.
7.215 We received only one submission about the remedies that should be available
when there has been a serious invasion of privacy.
7.216 The LIV suggested there may be circumstances in which exemplary damages
would be appropriate.359 Specifically, the LIV would ‘prefer to leave it to the
adjudicator’s discretion as to whether exemplary damages should be awarded’.360
7.217 The commission is of the view the remedies for the two proposed causes of action
should be
• compensatory damages
• injunctions
• declarations.
7.218 We do not include exemplary damages. It is our view that the available damages 351 [2010] EWHC 119 (QB).
352 [2010] EWHC 119 (QB) [149].
should be compensatory only. Criminal proceedings and civil penalty proceedings
353 British Columbia Law Institute, above
should be the sole means of punitive action against any person for grossly offensive n 164, 41.
behaviour falling within either of the proposed statutory causes of action. 354 Law Reform Commission [Ireland], above
n 265 [7.31].
7.219 Further, in view of the modest sums likely to be awarded in cases of this nature, 355 NSW Law Reform Commission, above
the commission believes that a statutory cap on damages is unnecessary. It should n 185 citing William Blackstone,
Commentaries on the Laws of England
be possible for the plaintiff to be compensated for insult and humiliation without (1769) vol 4, 151–2; Australian
the need to prove injury or economic loss. Broadcasting Corporation v O’Neill (2006)
227 CLR 52, [260]–[268] (Heydon J
dissenting).
costs 356 Robert Gellman, ‘A General Survey of
7.220 The question of who should be responsible for paying the costs of any civil legal Video Surveillance in the United States’
in Sjaak Nouwt et al (eds) Reasonable
proceedings is often complicated. The usual costs rule in the courts—that the Expectations of Privacy? Eleven Country
losing party should be required to pay the costs of the winning party—can be a Reports on Camera Surveillance and
Workplace Privacy (2005), 7, 34.
strong disincentive to the vindication of legal rights when the sum of money that 357 Hosking v Runting [2005] 1 NZLR 1[151]
may be awarded in damages to a successful plaintiff is small. A simple risk:benefit (Gault P and Blanchard J).
analysis will often lead to the conclusion that it is not worth the risk of litigating, 358 Hosking v Runting [2005] 1 NZLR 1[158]
especially when an adverse legal costs order may be much greater than any award 359 Submission 27.
of damages. Only the wealthy can afford the risk in these circumstances. 360 Submission 27.
361 Campbell v MGN Ltd [2005] 2 AC 457.
7.221 Two leading English cases illustrate this point. Supermodel Naomi Campbell risked
362 ‘Mosley Wins £60,000 in Privacy Case’
over £1 million in costs for a damages award of £3500,361 while motor racing Metro, 24 July 2008 <www.metro.
impresario Max Mosley succeeded in gaining £60 000 in damages and £850 000 co.uk/news/article.html?in_article_
id=233683&in_page_id=34> at
in legal costs.362 Litigation of this nature is beyond the reach of ordinary members 19 November 2009.
of the community. 363 S 109 (1)–(3) Victorian Civil and
Administrative Tribunal Act 1998 (Vic).
7.222 The fairest way to deal with costs in cases of this nature is to start from the
position that each party should be responsible for their costs but to permit
departures from this presumption when it is fair to do so. This rule guards against
the abuse of legal process because the decision-maker can award costs against a
plaintiff who takes frivolous proceedings and against a defendant who seeks to
exhaust the resources of the plaintiff by unnecessarily prolonging the case.
7.223 Costs should be dealt with in accordance with section 109 of the Victorian Civil and
Administrative Tribunal Act 1998 (Vic) (VCAT Act). That section provides that each
party is to bear their own costs in the proceeding, unless the Tribunal orders one party
to pay all or a part of the costs of the other party, if that would be fair to do so.363
recommendation
29. The remedies for both causes of action should be:
a. compensatory damages
b. injunctions
c. declarations.
30. Costs should be dealt with in accordance with section 109 of the VCAT Act.
jurisdiction
7.224 It is necessary to consider which body should have jurisdiction to hear cases
involving the proposed new causes of action for misuse of private information
and intrusion upon seclusion.
163
7
7.225 A number of submissions in response to our Consultation Paper supported giving
jurisdiction to VCAT rather than to the courts.364 Among them, the LIV argued:
Giving powers to the Victorian Privacy Commissioner or the Victorian Civil
and Administrative Tribunal to adjudicate actions for privacy invasions
could make the action more accessible to people and therefore more
appropriate than actions in the courts.365
7.226 The commission agrees with this view. VCAT is designed to be more accessible
than the courts. It seeks to be a speedy, low-cost tribunal where legal costs do not
outweigh the issues at stake. The experience in other jurisdictions demonstrates
that any damages awards in cases of this nature are likely to be relatively
small. The sums of money involved do not justify the level of legal costs usually
associated with civil litigation in the courts. The costs associated with the high
profile UK cases involving Naomi Campbell and Max Mosley could be replicated in
Victoria if there were to be protracted litigation in the Supreme Court.
7.227 The likely nature of cases concerning the two proposed statutory causes of action
also supports the view that jurisdiction should be vested in VCAT rather than
the courts. Courts are well equipped to conduct civil litigation involving complex
issues of law or fact. Court rules concerning pleadings are designed to identify
contested questions of law and fact so that the parties and the court can direct
their attention to matters that require adjudication. Court rules concerning the
admissibility and use of evidence seek to ensure that contested issues of fact are
determined as fairly as possible.
7.228 Cases concerning the two proposed statutory causes of action are unlikely to
involve contested and complex issues of law or fact. They may involve judgment,
however, about contested issues of privacy and community standards. VCAT
is well placed to undertake these tasks because of its experience in exercising
jurisdiction under the Information Privacy Act 1999 (Vic) and because of the broad
range of members upon which it may draw to hear cases of this nature. There will
be some opportunity for input by the courts because the Supreme Court hears
appeals from VCAT on questions of law.366
recommendation
31. Jurisdiction to hear and determine the causes of action for serious invasion
of privacy by misuse of private information and by intrusion upon seclusion
should be vested exclusively in the Victorian Civil and Administrative Tribunal.
availability of the cause of action to corporations and deceased persons

7.229 It is important to consider whether corporations and deceased persons, as well
as living individuals, should have the right to take action for misuse of private
information or intrusion upon seclusion.
Corporations
7.230 Although the law has assigned many of the attributes of individuals to
corporations,367 it does not make all causes of action available to corporations,
and sometimes restricts the claims they can make.368 For example, while a
corporation could sue for defamation at common law, it could not claim injury
to feelings and was restricted to a claim for financial loss.369 Under section 9 of
the Defamation Act 2005 (Vic), corporations no longer have a cause of action for
defamation, unless they are small businesses or not-for-profit organisations.370
7.231 Some members of the High Court have suggested that any common law tort 364 Submissions 27, 40.
365 Submission 27.
of invasion of privacy should not be available to corporations. In Lenah Game
366 Victorian Civil and Administrative Tribunal
Meats,371 Gummow and Hayne JJ said that the plaintiff was an ‘artificial legal Act 1998, s 148.
person [which] lacks the sensibilities, offence and injury to which provide a staple 367 Harold Ford, R Austin, Ian Ramsay, Ford’s
Principles of Corporations Law (13th ed)
value for any developing law of privacy’.372 In the same case Gleeson CJ said that (2007) [4.050].
because the concept of privacy involves the protection of human dignity, it ‘may 368 Ibid.
be incongruous when applied to a corporation’.373 369 Ibid citing Lewis v Daily Telegraph Ltd
[1964] AC 234 at 262 per Lord Reid.
7.232 As the NSWLRC recently noted, jurisdictions with existing privacy causes of action 370 See also George, above n 270, 399.
typically allow only ‘natural persons’ (that is, human beings) to bring the action.374 371 Australian Broadcasting Corporation v
Lenah Game Meats Pty Limited (2001)
For example, the Restatements of US law states that, other than in actions for 208 CLR 199.
appropriation of one’s name or likeness, an action for invasion of privacy can only 372 Australian Broadcasting Corporation v
be brought by a living individual.375 The Privacy Act of the Canadian province of Lenah Game Meats Pty Limited (2001)
208 CLR 199, 256 [126].
Newfoundland and Labrador limits the cause of action to natural persons,376 and 373 Australian Broadcasting Corporation v
the British Columbia Law Institute has recently recommended that the British Lenah Game Meats Pty Limited (2001)
208 CLR 199, 226 [43].
Columbia Act be amended to make it clear that it does not confer a right of
action upon corporations for any violation of privacy.377 n 6, 180.
375 Restatement (Second) of Torts § 652l
7.233 Other law reform commissions have favoured limiting proposed privacy rights of (1977).
action to natural persons. The ALRC proposed cause of action for an invasion of 376 By referring only to the privacy of an
privacy is not available to corporations.378 The ALRC has reasoned that ‘extending individual, and defines an individual to
mean ‘natural person’ (ie, a human being.
the protection of a human right to an entity that is not human is inconsistent Privacy Act, RSNL 1990, c P–22, ss 2, 3(1).
with the fundamental approach of Australian privacy law’.379 The Law Reform 377 British Columbia Law Institute, above
n 164, rec 6.
Commission of Ireland has similarly observed that corporate bodies do not have
personal space that can be invaded in the same way as individuals, and no human above n 2 [74.160] rec 74–3(a).
rights objectives, such as dignity or autonomy, compel the application of the 379 Ibid [74.160].
protections offered by their proposed torts to corporations.380 The NSWLRC draft 380 Law Reform Commission [Ireland], above
n 265 [7.33].
legislation for a cause of action for invasion of privacy also limits the action to 381 NSW Law Reform Commission, above
humans by using the term ‘individual’ when describing the right of action.381 n 185, 85.
382 British Columbia Law Institute, above
7.234 Corporations may have some privacy-related interests. The British Columbia n 164, 44.
Law Institute has observed that ‘corporations have their secrets and may suffer 383 Ibid 45.
economic damage from disclosure of certain kinds of information, such as the 384 NSW Law Reform Commission, above
n 185, 71, 89.
details of an unpatented process or competitively sensitive production cost data’.382 385 Australian Law Reform Commission,
However, according to the Institute, a right of action for invasion of privacy is best above n 2, rec 74–3(a).
restricted to natural persons, because corporations have other remedies available 386 Australian Law Reform Commission,
above n 2 [8.44].
to them, such as causes of action for breach of contract, breach of fiduciary duty, 387 George, above n 270, 174.
trespass, and nuisance by which they may enforce confidentiality agreements or
prevent physical or electronic intrusion onto their premises.383
Deceased persons
7.235 Both the NSWLRC and the ALRC have recommended that any causes of action for
invasion of privacy should be restricted to living persons. Clause 79 of the draft
legislation proposed by the NSWLRC for a statutory cause of action for invasion
of an individual’s privacy states that the action does not survive the death of the
individual.384 The ALRC’s proposed cause of action for a serious invasion of privacy
is limited to ‘natural persons’,385 and in the context of the Privacy Act 1988 (Cth),
the ALRC has written that the right to privacy ‘attaches to the individual and
should not survive the death of the individual’.386
7.236 Deceased persons have no right of action under defamation law. At common law, a
deceased person’s estate or family members have no right to sue for defamation on
that person’s behalf.387 Section 10(a) of the Defamation Act 2005 (Vic) prohibits a
person from asserting, continuing, or enforcing a cause of action for defamation in
relation to the publication of defamatory matter about a deceased person.
165
7
7.237 The rationale for excluding deceased persons from a right of action for defamation or
privacy is that deceased persons cannot suffer any insult to reputation or dignity and
cannot incur the injury to feelings and mental distress that flows from these insults.
7.238 It is arguable, however, that in some instances deceased persons may have an
interest in the privacy of their personal information past death. For example,
under the Law Reform Commission of Ireland’s proposed privacy torts, a right
of action is available to representatives of deceased persons, where the remedy
sought is a privacy order, rather than damages or an account of profits.388 The
former would allow the family or estate of a deceased person to seek delivery of
materials, such as private or confidential documents, from a defendant.389
7.239 Similarly, the ALRC has recommended amendments to the Privacy Act 1988
(Cth) to protect the personal information of persons who have been dead for
30 years or less where the information is held by an organisation.390 According
to the ALRC, the protections provided by the Privacy Act are analogous to the
protections offered by legal duties of confidentiality, which do survive the death
of an individual.391 The reforms they suggest aim to ensure that ‘living individuals
are confident to provide personal information, including sensitive information,
in the knowledge that the information will not be disclosed in inappropriate
circumstances after they die’.392
7.240 The commission is of the view that the causes of action for misuse of private
information and intrusion upon seclusion should be available to natural persons
only, and not to corporations or deceased people.
7.241 Limiting privacy rights of action to living human beings is consistent with other
jurisdictions, the views expressed by some High Court judges, defamation law,
and the recommendations of other law reform commissions. This approach is also
consistent with the Charter, which stipulates that human rights, such as the right
to privacy,393 are applicable to human beings only.394
7.242 Although there may be some legitimate reasons for protecting the privacy of
people’s personal information past death, these interests are best protected by
implementing the ALRC’s recommendations with respect to the Privacy Act 1988
(Cth) rather than conferring a right of action upon the estate of a deceased person.
recommendation
32. These causes of action should be restricted to natural persons. Corporations
and the estates of deceased persons should not have the capacity to take
proceedings for these causes of action.
limitation of action
7.243 A plaintiff in a defamation action has one year from the date of publication of the
defamatory matter to bring the action.395 A court can extend this limitation period
to up to three years if satisfied that it was not reasonable in the circumstances for
the plaintiff to have commenced the action within one year of publication.396
7.244 The NSWLRC’s proposal for a cause of action for invasion of privacy takes a
similar approach. There is a limitation period of one year, running from the date
of the defendant’s conduct,397 and an extension of the limitation period to up to
three years from the date of the defendant’s conduct if the court is satisfied it
was not reasonable in the circumstances for the plaintiff to have commenced the
action within the year.398
7.245 According to the NSWLRC, a one-year limitation period is generally appropriate 388 Law Reform Commission, above n 265,
142–3.
because ‘if the invasion is serious enough, the plaintiff will, and should, act 389 Ibid 142–143.
promptly to avoid any escalation in the impact of the injury’.399 Moreover, the 390 Australian Law Reform Commission,
court’s ability to extend the limitations period to up to three years allows for cases above n 2, rec 8–1.
where, for example, a plaintiff was not aware of the defendant’s conduct during above n 2 [8.1]–[8.3].
that one year period.400 392 Ibid [8.3].
393 The right to privacy is recognised in
7.246 However, the NSWLRC did not favour a general rule that the cause of action section 13 of the Charter of Human
accrue from the time the plaintiff first became aware of the invasion of privacy. Rights and Responsibilities Act 2006 (Vic).
According to the NSWLRC: 394 Charter of Human Rights and
Responsibilities Act 2006 (Vic), s 6(1).
Such an approach would not cohere with the general approach to the law 395 Limitation of Actions Act 1958 (Vic) s 5
(1AAA).
of limitations in Australia and would, we believe, be difficult to achieve as
396 Limitation of Actions Act 1958 (Vic),
part of an exercise in uniformity of law in Australia.401 s 23B.
7.247 By contrast, the Law Reform Commission of Ireland recommended that under n 185 [9.1].
its proposed statutory torts, an action be barred after a period of three years 398 Ibid [9.1].
commencing from the date the plaintiff became aware (or ought reasonably to 399 Ibid [9.2].
have become aware) of the tort and of the identity of the defendant.402 400 Ibid [9.2].
401 Ibid [9.2].
7.248 The commission is of the view that a plaintiff should bring the action within three 402 Law Reform Commission [Ireland], above
years of the date the cause of action arose, that being the date of the defendant’s n 265 [7.37].
403 Limitation of Actions Act 1958 (Vic),
conduct. This step would ensure actual consistency with causes of action for s 5(1AA).
personal injuries,403 and practical consistency with causes of action for defamation 404 Limitation of Actions Act 1958 (Vic),
where the limitation period can be extended to up to three years if the reason for s 23B.
the delay in not commencing proceedings within 12 months can be reasonably

explained.404
recommendation
33. Proceedings must be commenced within three years of the date upon which
the cause of action arose.
conclusion
7.249 We have recommended the introduction of two statutory causes of action in
response to serious invasions of privacy: the first dealing with misuse of private
information, the second with intrusion upon seclusion.
7.250 Although our focus has been to establish an appropriate legal response to the
misuse of surveillance in public places, these new causes of action would not be
limited to surveillance practices and conduct in public places. Rather, they would
apply to all instances of misuse of private information and intrusion upon seclusion.
7.251 Evidence from other jurisdictions with similar causes of action suggests that their
availability is unlikely to lead to a flood of litigation and increased expense for
users of public place surveillance.
167
Appendices CONTENTS
170 Appendix A: Submissions
172 Appendix B: Consultative
Committee, Community
Forums, Consultations and
Site Visits
174 Appendix C: Preliminary
Roundtable Consultations
169
Appendix A submissions
submissions
1 Pastor Richard D T Wilson
2 Anonymous
3 Victorian Taxi Directorate, Victorian Department of Transport
4 Lilydale Centre Safe Committee Inc
5 Liberty Victoria
6 Francis and Leonie Osowski
7 Office for Youth, Department of Planning and Community Development
8 Australian Hotels and Hospitality Association Incorporated
9 Human Rights Law Resource Centre Ltd
10 Australian Press Council
11 Victoria Police
12 Youthlaw Inc
13 Anonymous
14 St Kilda Legal Service Co-op Limited
15 Victorian Association of Photographic Societies
16 Suncorp-Metway Ltd
17 Les Simmonds and Associates Pty Ltd
18 Harm Reduction Victoria Inc
19 Sensis Pty Ltd
20 Victorian Aboriginal Legal Service Cooperative Ltd
21 Insurance Council of Australia
22 Property Council of Australia
23 Confidential
24 Investment and Financial Services Association Ltd
25 Shopping Centre Council of Australia
26 Australian Security Industry Association Limited
27 Law Institute Victoria
28 Right to Know Coalition
29 Office of the Victorian Privacy Commissioner
30 Victorian Alcohol and Drug Association
31 Confidential
32 Youth Affairs Council of Victoria Inc
33 ART Security Pty Ltd
submissions
34 Fitzroy Legal Service
35 Office of the Privacy Commissioner, Australia
36 Women’s Legal Service Victoria
37 Anonymous
38 Anonymous
39 Anonymous
40 Federation of Community Legal Centres Victoria
41 Biometrics Institute
42 Homeless Persons’ Legal Clinic, Public Interest Law Clearing House
43 Islamic Council of Victoria
44 Confidential
171
Appendix B Consultative committee, community forums,
consultations and site visits
consultative Committee
Louise Connor Secretary (Victoria), Media and Arts Alliance
Andy Frances Manager, Security and Venue Support, Melbourne Cricket Club
Leigh Gassner Former Assistant Commissioner, Region 1 (CBD), Victoria Police
Moira Paterson Associate Professor, Monash University Faculty of Law
Michael Pearce SC President, Liberty Victoria
Bill Penrose Vice President, Victorian Local Governance Association
Jen Rose Manager, Policy and Projects, Youth Affairs Council of Victoria
Helen Versey Victorian Privacy Commissioner
Dr Deane Wilson Senior Lecturer in Criminology, Monash University
community forums
1 Neighbourhood Justice Centre
2 Centre for Multicultural Youth
3 Youthlaw Inc and Youth Affairs Council of Victoria Inc
4 Homeless Persons’ Legal Clinic, Public Interest Law Clearing House
5 Ethnic Communities Council of Victoria
consultations
1 Shopping Centre Council of Australia and Westfield Shopping Australia
2 Transport Certification Australia Limited
3 Confidential
4 Keeper of Evidence, Department of Transport
5 Dr David Lindsay
6 Director of Liquor Licensing, Department of Justice
7 Service Station Association Ltd
8 Confidential
9 Nigel Waters
10 Melbourne City Council
11 Woolworths Limited
12 Broadcast media
13 Confidential
14 Print media
15 Office of Policy Integrity
16 Radio Frequency Identification Association of Australia
17 ART Security Pty Ltd
consultations
18 Australian Security Industry Association Limited
19 Victoria Police
20 Victoria Police
21 Victoria Police
22 Lilydale Centre Safe Committee Inc
23 Office of the Special Investigations Monitor
24 Confidential
25 Victoria Police
26 Confidential
27 Geelong City Council employees
28 Victorian Equal Opportunity and Human Rights Commission
29 Confidential
30 Confidential
31 Private investigators
32 Commissioner for Law Enforcement Data Security
Site Visits
1 VicRoads
2 Southern Cross Station
3 Federation Square
4 Connex
5 Melbourne City Council
6 Etihad Stadium
7 Connex Metro Train Control
8 Victorian Taxi Directorate
9 Citylink
10 Chasers Nightclub
11 State Library of Victoria
12 Melbourne Sports and Aquatic Centre
13 Crown Casino
14 Melbourne Cricket Ground
15 Westfield Shopping Centre, Airport West
16 Myer, Doncaster
17 L3 Communications
18 Department of Housing
173
Appendix C preliminary roundtable consultations
roundtables
Melbourne Magistrates Court; Director of Liquor Licensing,
Department of Justice; Office of Housing Department of
1 Policy I
Housing; Privacy Victoria; Policy Division, Department of
Justice
Tourism Victoria; Victorian WorkCover Authority; Office
for Youth, Department of Planning and Community
Development; Department of Sustainability and
2 Policy II
Environment; Department of Human Services; Office
of Small Business; Department of Education and Early
Childhood Development; Consumer Affairs Victoria
Department of Infrastructure; VicRoads; V/Line; Transport
3 Transport I
Accident Commission
Melbourne Exhibition Centre; Melbourne Cricket Ground
Sports and entertainment
4 Trust; National Gallery of Victoria; Museum Victoria;
(government)
Victorian Arts Centre Trust; Film Victoria; Parks Victoria
5 Victoria Police Victoria Police
Municipal Association of Victoria; City of Stonnington; City
6 Local government I of Port Phillip; City of Ballarat; City of Greater Geelong;
Lilydale Safe Centre Committee
City of Melbourne; Darebin City Council; City of Greater
7 Local government II
Dandenong
Local government and
8 Latrobe City Council; Victoria Police
Victoria Police
Victoria University; Ballarat University; Melbourne University;
9 Tertiary education Monash University; Swinburne University of Technology;
Royal Melbourne Institute of Technology; Deakin University
Department of Innovation, Industry and Regional
Sports, entertainment, Development; Victorian Taxi and Tow Truck Directorate;
10 education and transport Port of Melbourne Corporation; State Sport Centres Trust;
(government) Holmesglen Institute of TAFE; Box Hill Institute of TAFE;
Kangan Batman Institute of TAFE.
Racing (government and Office for Racing, Department of Justice; Greyhound Racing
11
private) Victoria; Racing Victoria Limited
Gaming and transport Department of Justice; Department of Infrastructure;
12
(government) Victorian Commission for Gambling Regulation
Sports and entertainment Federation Square; Telstra Dome; Clubs Victoria; Crown
13
(private) Casino; Marriner Theatres
Queen Victoria Market; Coles Group; Institute of Body
14 Retail I
Corporate Managers
Pharmacy Guild of Australia; Woolworths Limited; Myer;
15 Retail II Colonial First State Property Management; Australian
Retailers Association
Community Youthlaw Inc; Human Rights Law Resource Centre;
16 representatives and Homeless Persons’ Legal Clinic, Public Interest Law Clearing
private citizens I House
roundtables
Community
Youth Affairs Council of Victoria Inc; Mental Health Legal
17 representatives and
Centre; Electronic Frontiers; Liberty Victoria
private citizens II
Community
Welfare Rights Unit; Victorian Council of Social Services;
18 representatives and
Islamic Council of Victoria; Australian Privacy Foundation
private citizens III
CityLink; Southern Cross Station; Bus Association of
19 Transport II Victoria; National Intelligent Transport Systems Centre;
Yarra Trams
Shopping Centre Council of Australia; Victorian Automobile
Transport, retail and
20 Chamber of Commerce; Victorian Authorised Newsagents
services (private)
Association; Fitness Victoria; RACV
Utilities and services Neighbourhood Watch Victoria; Crime Stoppers Victoria;
21
(government) Yarra Valley Water; South East Water
Youth Affairs Council of Victoria (Members); Youth
22 Young people Workers; Discussion, Action, Representation and Thought
(DART) Board
23 Transport (government) Connex
Inner Range; Australian Security Industry Association Ltd;
24 Private security industry Southern Health; Victorian Security Advisory Committee;
SMI Security Group, ADT Security; Siemens Security
Private investigation Victorian Detective Services; Maurice J Kerrigan and
25
industry Associates; Institute of Mercantile Agents
Herald and Weekly Times; Leader Newspapers; Australian
26 Print media Press Council; Australian Commercial and Media
Photographers; Australian Photographic Society
Holding Redlich; Corrs Chambers Westgarth; Minter
Ellison; Victorian College of the Arts; Film and Television
Electronic media and
27 School; ABC News and Current Affairs; Channel 10 News;
legal firms
Commercial Radio Australia; Communications Law Centre;
Australian Subscription Television and Radio Association
Indigenous community Regional Aboriginal Justice Advisory Committee; Indigenous
28
groups Issues Unit, Department of Justice
29 Insurance agencies ANZ Bank
30 Crime Stoppers Victoria Crime Stoppers Victoria
31 Property Councils Centro Properties Group; Property Council of Australia
175
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Surveillance in Public Places

2 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

Commissioner The law in Australia 128

Assistant Operations Manager

Research and Executive Assistant

* Commissioners involved in this reference.

* Our terms of reference also originally included the publication of photographs

6 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

Citizen journalism Journalism undertaken by non-professionals.

Data surveillance The monitoring of data, as opposed to people or places.

Enforcement pyramid A regulatory model characterised by increasing levels

8 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

10 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

a balanced approach to regulation

12 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

modernising the surveillance devices act

statutory causes of action

14 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

REGULATOR OF PUBLIC PLACE SURVEILLANCE

MODERNISING THE SURVEILLANCE DEVICES ACT

16 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

CREATING STATUTORY CAUSES OF ACTION

18 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

LLANCE SURVEILLANCE SURVEILLANCE SURVEILLANCE

SURVEILLANCE SURVEILLANCE SURVEILLANCE24 Other law reform activity

LLANCE SURVEILLANCE SURVEILLANCE SURVEILLANCE

SURVEILLANCE SURVEILLANCE SURVEILLANCE

20 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

coverage of this report

Telecommunication and data surveillance

22 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

other law reform activity

24 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

Submissions and consultations

26 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

outline of this report

28 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

SURVEILLANCE 32 Major users of public place

SURVEILLANCE SURVEILLANCE SURVEILLANCE 43 Conclusion

LLANCE SURVEILLANCE SURVEILLANCE SURVEILLANCE

30 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

major users of public place surviellance

32 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

34 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

36 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

38 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

40 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

the customer’s request, send information about nearby services.

42 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

44 Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18

LLANCE SURVEILLANCE SURVEILLANCE SURVEILLANCE

SURVEILLANCE SURVEILLANCE SURVEILLANCE50

LLANCE SURVEILLANCE SURVEILLANCE SURVEILLANCE

SURVEILLANCE SURVEILLANCE SURVEILLANCE51 The Victorian Charter

LLANCE SURVEILLANCE SURVEILLANCE SURVEILLANCE

SURVEILLANCE SURVEILLANCE SURVEILLANCE standards and policies

LLANCE SURVEILLANCE SURVEILLANCE SURVEILLANCE

SURVEILLANCE SURVEILLANCE SURVEILLANCE55 Table 1: Legislation and

LLANCE SURVEILLANCE SURVEILLANCE SURVEILLANCE