You are here:
Privacy Law and Policy Reporter >>
 PrivLawPRpr 14
| Name Search
| Recent Articles
Privacy NSW --- "Privacy NSW on surveillance reforms"  PrivLawPRpr 14; (2003) 9(10) Privacy Law and Policy Reporter 198
Privacy NSW on surveillance reforms
The NSW Privacy Commissioner ,has released a Position Paper on the
recommendations for legislative reform set out in the NSW Law Reform
Report 98 Surveillance: ,An Interim Report (December 2001)
The text of the summary follows. As yet, the NSW government has not announced
its intentions in relation to the recommended
legislation, or the comments by
Privacy NSW —General Editor.
Privacy NSW strongly supports the overarching recommendations of the Law
Reform Commission Report 98 Surveillance: An Interim Report (LRC Report)
in relation to the development of a comprehensive Surveillance Act which is
technology-neutral in its application. In
developing the new Act, it is critical
to ensure that:
- the proper balance is struck between the public interest in the protection
of individuals’ privacy on the one hand, and the
public interest in law
enforcement and public safety on the other;
- the privacy principles already binding on State and local government in NSW
not be diminished in any way through any new legislation;
- there is consistency in the application of the privacy principles across the
public and private sectors unless there is a justifiable
- there are adequate and transparent oversight and accountability provisions
backed by legislative authority.
In relation to overt surveillance, Privacy NSW has made the following key
- The visibility of the surveillance equipment itself ought not be considered
adequate; that is, without signs or other written/audio
surveillance ought be considered ‘covert’.
- Surveillance always constitutes an interference with privacy rights. Rather
than the test proposed by ,the LRC — whether the
use of surveillance has
breached an individual’s ‘reasonable expectation ,of
privacy’ — the real question is whether that interference
with privacy is warranted. This approach would ensure that the onus of
the use of surveillance is placed upon the surveillance user rather
than the individual whose privacy has been breached.
- Consequently, surveillance users should be able to justify that the
surveillance is for a lawful purpose, directly related to a lawful
that surveillance user, and the surveillance must be reasonably necessary
for the achievement of ,that purpose.
- The Act or regulations must make clear the appropriate standards ,with
respect to the storage and destruction of surveillance material,
due consideration to the competing interests of privacy protection and State
- There must be a specific principle which addresses disclosures to third
- The complaints and enforcement model established under the Health Records
& Information Privacy ,Act 2002 (NSW) is the preferred option. Such a
model allows for complaints about public sector agencies to be dealt with
through ,the complaints
mechanisms already established under the Privacy and
Personal Information Protection ,Act 1998 (NSW) and establishes Privacy NSW
as the main ,complaints handling body ,for the private sector.
The LRC Report suggests that authorisation for covert surveillance ,can only
be given for the purposes ,of law enforcement, protecting
the public interest
and employment related investigations. In relation to covert surveillance,
Privacy NSW has made ,the following
- In relation to law enforcement activities, a covert surveillance authority
should only be issued for the enforcement of serious indictable
those with a maximum penalty of seven years’ imprisonment or more.
- Since the term ‘public interest’ is one which is commonly
misunderstood, manipulated, or inconsistently applied, it is
essential that the
proposed Act include a specific definition of the ‘public interest’,
which weighs appropriately the
public interest in the protection of privacy as a
human right against other interests.
- If an application is made under the grounds of ‘unlawful
activity’, the employer must be required to establish that they
legitimate interest in preventing the behaviour, and that there is a
sufficient explanation for not involving ,NSW Police instead.
very nature of covert surveillance raises serious questions about unauthorised
surveillance material, secondary use, disclosure
to subjects ,of covert
surveillance, nature of such disclosure and destruction of material gathered
Privacy NSW therefore supports comprehensive legislation to regulate these
Summary provided by Privacy NSW.