Privacy no hindrance to CCTV camera go-ahead for NSW local councils

Filling the "loophole" that NSW Premier Barry O'Farrell and Attorney General Smith discovered as a result of the ADT decision that the operation of Shoalhaven Council's CCTV cameras breached aspects of privacy legislation turned into a reasonable size excavation instead. 

The Privacy and Personal Information Protection Amendment(CCTV) Regulation 2013 introduced to fix "the problem" digs another pothole in legislation riddled with them.

The Regulation exempts local councils from provisions of the Privacy and Personal Information Protection Act 1998 relating to:

• the collection of personal information, by using a CCTV camera installed for the purpose of filming in a public place if the camera is positioned so no other land is filmed (unless it is not reasonably practicable to avoid filming the other land when filming the public place)-Section 11; and
• the disclosure to the NSW Police Force of that information by way of live transmission-Section 18.

Local councils no longer have to take such steps as are reasonable in the circumstances to ensure the personal information collected in this way is relevant to the purpose of collection, is not excessive, but accurate, up to date and complete. Or worry at all about providing a live feed to the Police - who are not subject to the privacy act except in the exercise of their administrative and educative functions, and in the Shoalhaven case were shown not to comply with their own rules regarding access to the computer that received the feed at the local station.

The Greens unsuccessfully moved a disallowance motion in the Legislative Council yesterday (the hour long debate starts at page 5 of Hansard). 

Government and opposition speakers were heavy on the law enforcement and crime prevention benefits from allowing councils to operate CCTV largely unhindered by privacy act obligations. The Greens pointed to the absence of evidence, and the finding to this effect by the ADT, citing in support a letter from Parliamentary Secretary for Justice, David Clarke on behalf of the Attorney General recounting that the government had refused to fund cameras for a local council because "there is limited evidence to support CCTV as an effective crime prevention tool." 

David Shoebridge's concluding remarks captured it pretty well:

Of course there are circumstances where closed-circuit television is useful. For example, out the front of a licensed hotel where there have been instances of assault is a great spot to put high-quality closed-circuit television to identify miscreants. If people know they are going to be recorded closed-circuit television can be a deterrent but it can also assist police to gather evidence to nail people for crimes of violence in particular. It is also entirely appropriate to have them out the front of automatic teller machines if there has been a spate of violence or a robbery. High-quality closed-circuit television monitoring hot spots can have a valid use in fighting crime.

Its use would also be entirely appropriate in cases such as surveillance inside police cells and surveillance inside police stations where footage can be used to protect police from false claims and also to protect people from excessive violence by police. There are clearly cases where closed-circuit television has a valid use, but it is not valid to install second rate closed-circuit television cameras to cover public streets and effectively use them as a very poor sieve of people who go about their ordinary business. This issue is not about stopping councils from using closed-circuit television where it is appropriate, fit for purpose and where it serves a legitimate purpose. It is about making sure that local councils comply with the Privacy and Personal Information Protection Act, that if they roll out closed-circuit television and spend thousands and thousands of ratepayers' money, that it is fit for purpose, competent and addresses one of the core issues of local council. A merits hearing in the Administrative Decisions Tribunal determined that the cameras used by the Shoalhaven Council did none of that. Rather than improving the operation of the closed-circuit television cameras in Nowra, the Government moved to exempt all closed-circuit television operations from the Privacy and Personal Information Protection Act, which is poor public administration. It is a matter of not agreeing with the umpire's call and then changing the rules afterwards.

Lawyers Hunt & Hunt agree in this respect: 

... the Regulation was not required as the Tribunal found that Shoalhaven City Council did not comply with the PPIP Act. It failed to use the footage collected for law enforcement purposes and failed to monitor the security safeguards Shoalhaven City Council had in place to protect the personal information collected. All Shoalhaven City Council had to do was to get its own affairs in order to comply with the PPIP Act.

Privacy advocates point out that exceptions to the collection principle in s 11 are rare, and require a judgment that privacy intrusive practices are so beneficial that they should trump other considerations, with evidence lacking in this case. But are somewhat relieved the pothole isn't as big as it might have been.

As to available evidence about CCTV there is plenty out there -  case in point this from the Surveillance Studies Center at Queen's University in Canada.