The report responds to the growing use and sophistication of surveillance technologies. It provides recommendations to "modernise Victorian surveillance laws and promote the responsible use of surveillance devices in public places". Those recomendations include -
* clarifying, modernising and strengthening the Surveillance Devices Act 1999, including a new offence dealing with improper use of a surveillance device, such as 'happy slapping'The report completes a two-stage inquiry into the widespread use of privacy-invasive technologies. The Commission's Workplace Privacy: Final Report was the first stage and proposed the creation of workplace privacy legislation to regulate potentially privacy-invasive acts and practices in the workplace. The Commission had been requested to -
* prohibiting surveillance in public toilets and change rooms
* prohibiting a person recording an activity or conversation which they are part of without the consent of the other parties
* broadening the role of the Victorian Privacy Commissioner to include regulation of public place surveillance
* creating two new causes of action (the right to sue) dealing with serious invasions of privacy.
In light of the widespread use of surveillance and other privacy-invasive technologies in workplaces and places of public resort, and the potential benefits and risks posed by these technologies, inquire into and report progressively uponAs part of that examination, the Commission was to consider whether any regulatory models in relation to surveillance of workers, could be applied in other surveillance contexts such as surveillance in public places to provide for a uniform approach to the regulation of surveillance.
a. whether legislative or other reforms should be made to ensure that workers’ privacy, including that of employees, independent contractors, outworkers and volunteers, is appropriately protected in Victoria. In the course of this inquiry, the Commission should consider activities such as• surveillance and monitoring of workers’ communications;b. whether legislative or other measures are necessary to ensure that there is appropriate control of surveillance, including current and emerging methods of surveillance.
• surveillance of workers by current and emerging technologies, including the use of video and audio devices on the employers’ premises or in other places;
• physical and psychological testing of workers, including drug and alcohol testing, medical testing and honesty testing;
• searching of workers and their possessions;
• collecting, using or disclosing personal information in workers’ records.
In its new report the Commission draws on the Victorian Charter framework to identify six public place surveillance principles that would be enshrined in legislation and provide guidance regarding "responsible use of public place surveillance".
The principles would balance competing interests, as follows.
1. People are entitled to a reasonable expectation of privacy when in public places.The report recommends establishment of an independent regulator, primarily to promote responsible use of surveillance in public places by providing practical guidance to surveillance users, to provide the public with information about rights, and to keep the government and the people of Victoria fully informed of rapidly changing technology. That would involve a "range of functions and powers necessary for the regulator to fulfil these tasks, bearing in mind that the least restrictive regulatory methods are desirable".
2. Users of surveillance devices in public places should act responsibly and consider the reasonable expectations of privacy of individuals.
3. Users of surveillance devices in public places should take reasonable steps to inform people of the use of those devices.
4. Public place surveillance should be for a legitimate purpose related to the activities of the organisation conducting it.
5. Public place surveillance should be proportional to its legitimate purpose.
6. Reasonable steps should be taken to protect information gathered through public place surveillance from misuse or inappropriate disclosure.
The Commission acknowledges that "guidance alone cannot protect people from some practices that seriously affect their privacy", therefore suggesting changes to clarify, modernise and strengthen the Surveillance Devices Act that prohibits the use of covert surveillance devices in private places, while also allowing law enforcement use of surveillance with a warrant. The proposed amendment of definitions reflects contemporary practice, for example expressly prohibiting surveillance in toilets and change rooms. The Commission also recommends introduction of a prohibition on participant monitoring (where a person records an activity or conversation to which they are a party without the consent of other parties), something that is currently allowed under the Act.
The Commission recommends introduction of a new offence to "prohibit highly offensive uses of surveillance devices, regardless of where the surveillance occurs", designed to "send a clear message to the community that various forms of behaviour are unacceptable, including, for example, filming violence for entertainment (happy slapping). Using surveillance to intimidate or prevent people from doing something they are otherwise lawfully entitled to do, like attending an abortion clinic or drug treatment centre, would also be covered by the offence. A civil penalty regime would also apply to existing criminal offences in the SDA, providing for greater flexibility in enforcement by allowing a surveillance regulator to act on the less serious matters that come to attention without referring the matter to Victoria Police for criminal prosecution.
A significant recommendation is the call for a statutory tort of privacy. The report indicates that
The commission believes that individual Victorians should be able to take civil action in response to serious invasions of privacy by the use of surveillance in a public place.
At present, no Australian jurisdiction has enacted a statutory cause of action for invasion of privacy, and no appellate court has acknowledged the existence of a common law tort of invasion of privacy. It is open to both the High Court and the Victorian Court of Appeal to recognise a common law tort of invasion of privacy in the absence of any legislative action. However, developments in other common law countries, most notably the UK and New Zealand, suggest it will take a long time before a reasonably clear body of law emerges. Legislation would provide greater clarity and certainty within a more acceptable timeframe. The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) is a useful catalyst for legislative action because 'privacy' is one of the human rights that parliament specifically seeks to protect and promote under the Charter.
The Commission recommends the introduction of two statutory causes of action for serious invasions of privacy: the first dealing with misuse of private information, the second with intrusion upon seclusion.
Although our focus is an appropriate legal response to the misuse of surveillance in public places, these new causes of action would not necessarily be limited to conduct that occurred in a public place or that involved the use of a surveillance device.
