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.

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:

Surveillance camera dangers concern this audience

The IQ2 debate in Sydney this week, organised by the St James Ethics Centre and sponsored by the Sydney Morning Herald on the proposition ''Better more cameras than more crime'', saw a win for those arguing, among other points, that privacy concerns should trump the rush to more and more surveillance cameras.The audience vote beforehand was 22.8% undecided; 40.4% Against; and 36.8% For. After the debate 4% undecided, 76.6% Against, and 19.4% For- the largest swing in the history of the IQ-squared debates, I'm told by one of the proud Against team.

Anyone listening in the corridors of power?

Surveillance questions in Victoria raise issues for us all.

The Victorian Law Reform Commission has released a Discussion Paper on Surveillance in Public Places. Chairperson of the commission, Neil Rees, said “surveillance affects all Victorians whether we are shopping, catching public transport, driving on major roads, or attending a sporting event”.

The paper proposes possible reforms that could better regulate surveillance in Victoria including a new role for an independent regulator, new best practice standards, mandatory codes to govern surveillance in public places with sanctions for non-compliance including civil and criminal penalties, a licensing system for some particularly privacy invasive practices and a new statutory obligation to refrain from committing a serious invasion of privacy, modelled on the statutory cause of action proposed recently by the ALRC.

Surveillance in public places is not just an issue for Victorians-it raises the same concerns everywhere. So strange to recall that in NSW in June 2007 the NSW Attorney General dismissed recommendations from the NSW Law Reform Commission about what should be done about this and related problems posed by surveillance devices.. This from a post at the time:

"Eleven years ago ( the Government) gave the NSW Law Reform Commission a reference on this issue. The Commission released an issues paper in 1997 and undertook further research before releasing an interim report in 2001. The then Attorney General, asked for further work to be done, and a final report was made available to the Attorney General in 2005.There the report sat in the 'in tray' until last week when the new Attorney General tabled it in Parliament, and then said the recommendations in the final report were rejected. The full text of the news release said that issues concerning surveillance in the workplace had already been the subject of specific legislation, and surveillance for law enforcement purposes was being looked at on a national basis."

What happened to the national initiative? I can recall a vague reference in a Standing Committee of Attorneys General communique but can't find anything on the web. If it came to nothing, how come Victoria is the only state where the issue is now commanding attention from our legal policy thinkers?

Concern about personal information misuse tops poll

Unisys has been conducting a regular survey of public perceptions towards security since June 2006. The December 2007 results show a moderate change since August last year, with the largest changes occurring in the number of people extremely or very concerned about a serious health epidemic and their ability to meet essential financial obligations (and this before the darker days of January).

Of particular interest is that the top two areas of concern are unauthorised access to, or misuse of personal information, and other people obtaining credit card/debit card details.

Number three? Australia's national security in relation to war/terrorism.

Full details are contained in the December 2007 report which includes state by state breakdown of some responses.

Surveillance society not just an overseas phenomenon

There has been plenty of publicity about the emergence of the "surveillance society", particularly in the UK, but this article in the Sydney Morning Herald says that there are probably 40,000-60,000 security cameras monitoring Sydney alone.

As a recent survey by the Australian Privacy Commission found, a majority of Australians aren't concerned about the use of surveillance cameras. However one of the experts quoted in the article reminds us that it's not so long since we would have responded to news about surveillance of this kind in places like Moscow with a lot of tut tutting about how terrible it was that the Soviets monitored the day to day movements of their citizens.

NSW relaxed and comfortable about surveillance

Surveillance - or the use of surveillance devices - is a hot topic in most places. The UK Information Commissioner warned last year of the danger that Britain was heading towards a "surveillance society". Similar concerns have been raised in the US, most recently in this report by the American Civil Liberties Union.

In NSW however, the Government appears to be much more relaxed.

Eleven years ago it gave the NSW Law Reform Commission a reference on this issue. The Commission released an issues paper in 1997 and undertook further research before releasing an interim report in 2001. The then Attorney General, asked for further work to be done, and a final report was made available to the Attorney General in 2005.

There the report sat in the 'in tray' until last week when the new Attorney General tabled it in Parliament, and then said the recommendations in the final report were rejected. The full text of the news release said that issues concerning surveillance in the workplace had already been the subject of specific legislation, and surveillance for law enforcement purposes was being looked at on a national basis.

And the result of nine years work by the Commission, thanks but no thanks.

Privacy concerns regarding information sharing with US

Summer blog

I notice that The Australian has reported that Qantas routinely passes passenger information to the US authorities for those traveling from Australia to the US. This won't surprise anyone who has read the fine print on their e-ticket, although its news that, according to The Australian the shared information includes meal preference - you need to keep a watch out for those vegetarians and vegans!

There has been quite a fuss in the UK however, as reports indicate that information provided about passengers arriving in the US from there includes not just names but credit card and other details including email addresses. This report suggests that the US may be in a position to examine the history of credit card purchases. I don't imagine this, if true, is a unique requirement for the UK.

No one has clarified to date what happens with all this information, including what US agencies have access, and what security safeguards apply. There is certainly no evident privacy notice or pamphlet when you line up for the customs service on arrival at a US airport.

A new issue has arisen this week in the light of US plans to require 10 finger prints for arriving passengers, so that data can be matched against an FBI data base. At present arriving passengers in the US provide a one finger print and a retina scan.

This UK report says that the new requirements will apply also to passengers arriving from Australia.

One thing that isn't clear from what I have seen is what information Australian authorities share with the US - for example does the FBI already hold the complete database of finger prints now consolidated in Australia in the Federal Government's Crimtrack system?

Are our privacy regulators keeping an eye on all this?

Thanks to PogoWasRight for some links.

Surveillance society dangers uncovered in US

We posted here a couple of weeks ago an item regarding a Channel 4 UK TV program "Suspect Nation" that identified threats to privacy from surveillance cameras and other devices. This program Big Brother Big Business available on Google Video via Information Clearinghouse also aired recently in the US on CNBC. Note the program is 120 minutes long.

Will we get an Australian version in 2007?

Thanks to David Fraser's Canadian Privacy Law Blog for the lead.