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 Chapter 1: Introduction 19 Universities and TAFEs 35 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 Chapter 5: Promoting Responsible Use of Private activity 108 Surveillance in Public Places 83 Implied consent 110 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 3 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 Operations Manager Defences 153 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. Contents 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