11 August 2016


The ACT Justice and Community Safety Directorate is conducting a community consultationn on recommendations in the report of the Review of ACT Civil Surveillance Regulation Report.

That Review was announced in May this year (and noted here). It is described as "an independent review into the regulatory framework for non-government surveillance in the ACT".

The report makes ten recommendations for improving the regulation of surveillance in the ACT, including generally prohibiting surveillance by any device unless for the purpose of protecting an individual’s lawful interests or for a purpose in the public interest. The Review was to consider the following issues and make recommendations for options to improve regulation of civil surveillance:
1. the occurrence and use of surveillance in civil litigation claims in the ACT;
2. the extent of existing regulation of surveillance activities, including regulation of surveillance businesses;
3. whether the Listening Devices Act 1992 should be expanded to capture video surveillance and electronic monitoring;
4. the ability of existing legislation to respond to emerging surveillance technologies and practices, such as smartphones, fitness trackers, geo-tagging and drones; and
5. the interaction of provisions regulating surveillance with other ACT legislation, including the Information Privacy Act 2014, the Workplace Privacy Act 2011 and the Human Rights Act 2004.
The summary states
Surveillance brings with it the potential to interfere or intrude on a person’s privacy. Developments in surveillance technology and increased use by individuals and organisations outside of government have increased this potential harm and exposed gaps in current regulation. Recent reviews in a number of jurisdictions have highlighted the importance of getting the balance right in protecting against interferences with privacy and other harms that might arise without undermining the legitimate uses of surveillance.
In the ACT, the Listening Devices Act 1992 (ACT) provides for various offences involving the use of listening devices to listen to or record private conversations. However, it doesn’t cover forms of surveillance involving use of optical, tracking and data access devices. It is increasingly possible to use these devices without interfering with property rights and related protections against nuisance and trespass. The availability of an action for breach of confidence to protect against disclosure of private information is still largely uncertain. While collection, use and disclosure of personal information is regulated by the Privacy Act 1988 (Cth), acts of surveillance nor all information which might be considered private are not included. The Privacy Act also has limited application beyond practices of government and large businesses. The Crimes Act 1900 (ACT) also provides for a number of offences relating to serous harms to privacy, but are limited in their application and nature of the harms protected against.
The Workplace Privacy Act 2011 (ACT) regulates the collection and use of surveillance information in workplaces in the ACT. It fills the gaps left by the Listening Devices Act by protecting against the use of data, optical and tracking devices, but only in relation to the workplace or purposes related to employment. Other legislation also regulates surveillance in particular workplace contexts, and a variety of codes, guidelines and standards influence use of surveillance.
These other forms of regulation have an important role in protecting against the harms that might arise from surveillance by non-government bodies. In most other States and the Northern Territory, surveillance legislation has been extended beyond use of listening devices. Different approaches remain, however, on issues including how to define privacy outside of a connection with property or premises, recognition and definition of the public interest in surveillance and its product, whether workplace surveillance is subject to distinct regulation, and the use of surveillance evidence in court proceedings. The common elements across these approaches, along with the recommendations of review bodies and other responses to recent developments suggest that the ACT Listening Devices Act is in need of reform.
This review therefore makes the following recommendations in relation to amendment of the Listening Devices Act 1992 (ACT):
(a) The Listening Devices Act 1992 (ACT) be renamed the Surveillance Act and amended to include restrictions on other forms of surveillance activity, including visual observation, tracking and data collection;
(b) The Surveillance Act should make it clear that private conversations or activities are limited where the parties can reasonably expect to be overheard or observed by others;
(c) Any exemption allowing surveillance or communication of the results of surveillance for the reasonable protection of a person’s lawful interests requires an objective evaluation of the purposes for which surveillance or communication is carried out, and whether that surveillance or communication was necessary and proportionate;
(d) The Surveillance Act should allow surveillance when it is carried out to protect a public interest and the surveillance activity is necessary and proportionate. Communication of the results of surveillance should require a court order unless the communication is to a media organisation subject to an appropriate code of conduct;
(e) Consent in the context of surveillance or communication of the results of surveillance requires the individual giving consent has the capacity to understand and communicate their consent, be adequately informed, consents voluntarily, and the consent is current and specific;
(f) Any prohibition on surveillance should not extend to the inadvertent observation of a private activity, including through use of drones or other unmanned aerial vehicles. Communication or publication of the results of inadvertent observation however should be regulated through requiring a court order or as a proportionate response to the public interest;
(g) Any prohibition on tracking the geographical location of any person or object include the use of a network or computer system, including access to metadata or other information, and not require the use of a distinct device which can be used for that purpose. Any prohibition on tracking activity should include circumstances where the person whose location is able to be tracked has not consented to the making available of the information through the network or computer system in question;
(h) In the absence of an effective licencing system being introduced in the ACT, private investigators or others who carry out surveillance activities for remuneration should not be the subject of exemptions to surveillance offences or allowed to communicate or publish the results of surveillance;
(i) A court should retain a discretion to admit evidence obtained through use a surveillance device where the recording was intended at the time of the recording, whether reasonably or not, to be used to protect a principal party’s lawful interests;
(j) That consideration be given to expanding the range of remedial options available for contravention of the Surveillance Act, including allowing access to the ACT Civil and Administrative Tribunal to seek monetary compensation.
Importantly, the Report offers the following comment
The recommendations set out amendments to the Listening Devices Act in the ACT. In doing so they propose reforms directed specifically to non-government surveillance activities and the various harms that activity gives rise to. However, given the nature of the privacy and other interests affected by surveillance, and the diverse range of other legislation and common law regulatory measures which affect this area, a number of other reform options might also be considered. These alternative options for reform include:
(a) extension the requirements of the Information Privacy Act to all private organisations and individuals operating within the ACT;
(b) establishing a tort for serious invasions of privacy;
(c) extending the cause of action for breach of the Human Rights Act to activities carried on by private organisations or individuals.
Each of these options would have implications beyond surveillance and as such are beyond the scope of this review.