CCTV cameras: Premier dumps on ADT but quick to fix loophole

NSW Premier Barry O'Farrell didn't hold back in Parliament yesterday, describing the Administrative Decisions Tribunal decision concerning privacy and CCTV cameras in Nowra as "ridiculous" (four times) and "terrible" (twice). For good measure, "the tribunal was trying to make policy" and should put the interests of the entire community ahead of the interests of the individual who had argued successfully that there had been breaches of the Privacy and Personal Information Protection Act.

 That was a little difficult to square with the Premier's announcement that the Attorney General "advised me that the decision on Friday exposed a loophole in the State's privacy legislation, and today I can announce that that loophole will be fixed" by 

"a regulation to provide appropriate exemptions under that privacy legislation to allow local councils, including Shoalhaven City Council, to use such cameras without breaching privacy laws. The regulation will allow councils to use closed-circuit television cameras in public places."

Difficult to square also with the role of the Tribunal: to review (Part 5) conduct claimed to be a contravention of an information protection principle and decide (s 53) the correct and preferable decision on the basis of factual material before it and the law as it stands at the time. 

Whether the Tribunal decision was terrible and ridiculous as the Premier asserts presumably won't now be tested at the Appeal Panel. But the loophole (a policy and legislative question) in the law at the time the Tribunal dealt with the matter will be fixed next week. 

Unlike other loopholes in NSW privacy legislation, once described as swiss cheese with more holes than cheese, that haven't attracted the same attention. 

Including to mention just three off the top of my head, that the law does not apply to ministers in the handling of personal information; state owned corporations are not subject to this or the Commonwealth Privacy Act; and uniquely, the police in NSW, whose privacy procedures were shown to be lax in the Shoalhaven case, are not subject to this law except (s 27) in connection with the exercise of educative and administrative functions, terms that a member of the Tribunal observed recently should be narrowly interpreted.

Ah dear, back to the current main game:

The New South Wales Government will introduce exemptions to ensure that local councils can continue to use closed-circuit television cameras to prevent crime. In other words, the use of closed-circuit television cameras by councils will be given an exemption through that section of the Privacy Act that was used on Friday to strike out their use in the Shoalhaven. We are drafting urgently a regulation to provide appropriate exemptions under that privacy legislation to allow local councils, including Shoalhaven City Council, to use such cameras without breaching privacy laws. The regulation will allow councils to use closed-circuit television cameras in public places.

The extract from Hansard 7 May (page 12) follows:

Mr BARRY O'FARRELL: I thank you, Madam Speaker, as the member representing the city of Nowra, and the member for Kiama for his interest last Friday in what was a ridiculous decision by the Administrative Decisions Tribunal. It is ironic that that decision came on the same day that 202 officers graduated from the Police Academy, 14 of whom till go into the southern region, which of course includes the Shoalhaven. On the very day that the State Government is trying to improve the number of police across the State and the number of police in the Shoalhaven, the Administrative Decisions Tribunal has made a decision to, in one fell swoop, turn off closed-circuit television cameras in the city of Nowra—closed-circuit television cameras that have an impact in Nowra and elsewhere in driving down crime.

It was a terrible decision. It was a terrible decision because it was based on a complaint from one individual. One individual was put ahead of the concerns and interests of an entire community, and I will always argue that that is unacceptable. I do not drive on the right-hand side of the road because the law says I should drive on the left, and that law is there for good reason. It is there to protect the broader public interest. So, too, were the laws in relation to closed-circuit television cameras.

Following contact from the member for Kiama I sought advice from the State's Attorney General on what was the best option to ensure that the use of closed-circuit television cameras by councils across the State could indeed be assured. We understand that privacy considerations are important but public safety has to be paramount. Today the Attorney General advised me that the decision on Friday exposed a loophole in the State's privacy legislation, and today I can announce that that loophole will be fixed.

The New South Wales Government will introduce exemptions to ensure that local councils can continue to use closed-circuit television cameras to prevent crime. In other words, the use of closed-circuit television cameras by councils will be given an exemption through that section of the Privacy Act that was used on Friday to strike out their use in the Shoalhaven. We are drafting urgently a regulation to provide appropriate exemptions under that privacy legislation to allow local councils, including Shoalhaven City Council, to use such cameras without breaching privacy laws. The regulation will allow councils to use closed-circuit television cameras in public places.

However, councils will still be subject to other requirements under the privacy legislation to ensure that the use of closed-circuit television cameras is not unregulated, and that they comply with requirements such as the security of information and how the use and disclosure of information is handled. It is anticipated that this regulation will be in place by the end of next week. That should mean that Jo Gash, the Mayor of Shoalhaven, can turn those cameras back on, something that I know will be welcomed by the community of Nowra.

We were never going to stand by and allow this ridiculous decision to deny police in this State a tool that they use to combat crime. We are never going to stand by and allow the use of closed-circuit television cameras by local councils to be extinguished. I applaud Shoalhaven and other councils for putting in place such cameras to try to ensure that we drive down crime. One does not have to look too far to find examples of the importance of these cameras. They are important in identifying those who perpetrated the bombings at the Boston Marathon. [Extension of time granted.]

They were important, albeit privately owned, in the context of identifying the rapist and murderer of ABC employee Jill Meagher in Melbourne, and they were also used in the investigation of the tragic death of Thomas Kelly at Kings Cross last year. I congratulate the Attorney General on his action. I highlight the ridiculous nature of this decision, which I have read. We know that closed-circuit television cameras under the current regulations can only be accessed by council staff or police under appropriate orders. The Administrative Decisions Tribunal decision on Friday made clear "there was no evidence that any of the police officers in fact viewed the applicant's image". This is the applicant who was concerned about his privacy. It went on to say, "There is no evidence to suggest that the applicant's personal information has been accessed or used in any way", except to fulfil the Government Information (Public Access) Act—the freedom of information Act—as advanced by the applicant to bring this case forward.

If that does not take the cake: the bloke no long lives in the Shoalhaven. This was a ridiculous decision. It was a decision that concerns me because it struck me that the tribunal was trying to make policy. This Parliament is the place that will make policy. Whichever party is sitting on the Government side of this place will initiate policy. I will never stand by and allow those who sit on our tribunals or courts to dictate policy.