Junk

In Nigel Stock v Rocla Ltd [2022] FWC 2597 Deputy President Clancy states 

 [33] In the period leading up to his termination and throughout the conduct of this proceeding, Mr Stock has enlisted the assistance of Mr Alex Smith, a “non-paid representative.” It is also apparent Mr Stock utilised template correspondence prepared by “De Cline”, which I am satisfied is a moniker used by Mr Smith. This is because subsequent to determining Mr Stock’s unfair dismissal application, I heard and determined another unfair dismissal matter in which Mr Smith was involved, Jemimah Scale v Coles Supermarkets Australia Pty Ltd (Scale). In Scale, it was apparent that Mr Smith was similarly using the moniker “De Cline” and the same or very similar template correspondence described as having been prepared by “De Cline.” 

[34] Mr Smith advocated on Mr Stock’s behalf at the hearing and it is evident he has maintained involvement, having filed Stock’s submissions in response to Rocla’s costs application. Despite the arguments he advanced in this matter (and Scale) being unsuccessful, Mr Smith has nonetheless persisted with them in resisting, on behalf of Mr Stock, this application for costs. In particular, the costs submissions Mr Stock filed on behalf of Mr Stock state, inter alia:

“...2. The living men and woman acting in various roles as employees/operators/directors of the COMPANY, ROCLA PTY LTD (COST APPLICANT), were put on Legal Notice on several occasions with regard to the COST APPLICANT’S COVID-19 policy/directions that were in fact unlawful/ illegal and, as such, were: 2.1. given several opportunities to provide the law relied upon for the COVID-19 policy/directions, more specifically in terms of the legislative, statute, federal Act; 2.2. made aware by failing to do so the living men and woman acting in various roles as employees/operators/directors of the COMPANY, ROCLA PTY LTD, AQUIESCED that no such law nor authority existed; 2.3. made aware that the claimed COVID-19 vaccines were not approved. There are vast amounts of information available on various Government sites, such as reaffirming this fact that the current claimed COVID -19 vaccines are all only provisionally approved and are a part of a CLINICAL-TRIAL, thus making the coercion direction policy void ab initio. 

3. The company employees of the ROCLA PTY LTD (COSTS APPLICANT) claim they had no choice but to comply with a mandate, however, the prima facie evidence is that the COSTS APPLICANT had the same choice as everyone else - namely, with regard to participating in the mandate - the COSTS APPLICANT had the choice to accept or DECLINE. ROCLA PTY LTD (COSTS APPLICANT) chose to accept, however that acceptance does not apply to any employees who choose not to do so. 

4. It is the absolute fact that no law exists permitting coercion/pressure with threat and menace to participate in a clinical trial, in this instance, the CLAIMED COVID-19 clinical trial vaccine. 

5. Regardless of the outcome of the Commission, there are no grounds for any form of costs order against the Nigel STOCK (COSTS RESPONDENT). ROCLA PTY LTD (COSTS APPLICANT) made it clear in the unfair dismissal case that there were no vexatious or malicious actions in play with regard to Nigel STOCK’s actions, and as such, as for any claims that the application was doomed from the beginning shows a lack of probity on behalf of ROCLA PTY LTD (COSTS APPLICANT). 

6. The application for Costs is DECLINED, DECLINED, DECLINED. 

7. Any further actions will be seen as deliberate vexatious and malicious conduct towards Nigel STOCK (COSTS RESPONDENT) Regards Alex SMITH on behalf of Nigel STOCK 19 JULY 2022” 

[35] In addition to this matter and Scale, I have noted that Mr Smith has been involved in at least these additional unfair dismissal applications decided by the Commission during 2022:

1) Elizabeth Cogger v New Horizons Enterprises Limited, determined on 24 May 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar, if not identical, submissions were advanced by Mr Smith; 

2) Shantay Moriah May v Wesley Mission Queensland,  determined on 28 June 2022 and in which it would appear some correspondence substantially similar, if not identical, to “De Cline” template correspondence was used and similar submissions were advanced by Mr Smith; 

3) Fiona Howard v Uniting Care Health, determined on 15 July 2022 and in which submissions advanced by Mr Smith were described as being neither helpful nor persuasive and simply a re-ventilation from earlier unsuccessful efforts by him; 

4) Emma Frances Sommerville v University of Tasmania, determined on 15 July 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar submissions were advanced; and 

5) Mills & Ors v Village Roadshow Theme Parkes Pty Ltd, determined on 31 August 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar submissions were advanced in four related applications. 

[36] My experience of Mr Smith was that despite evincing an attitude to the Commission that was belligerent, verging on dismissive, he has nonetheless been intent on persisting with certain submissions despite grudgingly acknowledging during the conduct of Scale that it was for a court to determine the legality or otherwise of public health orders and directives. In the two matters in which he appeared before me, Mr Smith attempted to advance propositions that were plainly incorrect, such as contending that any line managers who had sought to ensure their employer’s compliance with public health orders would be held personally liable for any adverse consequences that flowed. While representing Jemimah Scale, Mr Smith himself sent correspondence to a line manager accusing him of criminal activity and threatening his arrest.[29] 

[37] Mr Smith appears to have persisted with the same or similar strategies and submissions in ten different unfair dismissal applications before five different Commission Members presiding in four states. Even though Mr Smith has continued to be unsuccessful, he does not yet appear to have modified his approach. In his most recent attempt at representation, Mr Smith stooped to advancing the submission that there is “a prima facie case of biased considerations in favour of the Employer/Respondent by FWC as a whole.” 

[38] My conclusion is that despite Mr Stock appearing to have invested significant trust in Mr Smith, the role Mr Smith has played while purporting to represent Mr Stock has been reckless to the point of deleterious. While employed, Mr Stock relied on the ‘notices’ prepared by “De Cline” that in my view comprised “a disparate collection of concepts and assertions that lacked a coherent thread.”  These notices did not assist, and I maintain my previously stated view. I also note that even though Mr Stock was on notice that Rocla would pursue costs against him from 7 April 2022 if successful, Mr Smith insisted on advancing such arguments at the hearing as the proposition that Mr Stock was not capable of being a manufacturing worker covered by the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) because the concrete stormwater and drainage pipes and range of precast products produced and distributed by Rocla were not goods. These are just two examples of the poor quality of Mr Smith’s “representation.” 

[39] No doubt Mr Stock was aggrieved by the circumstances that befell him and anxious about the implications of being dismissed from his employment, but this would not ordinarily absolve him of all responsibility for filing an unfair dismissal application without reasonable cause and when it should have been reasonably apparent to him that it had no reasonable prospects of success, or for causing Rocla to incur costs by failing to discontinue the matter. Ultimately, however, I am persuaded that the particular circumstances of this case save Mr Stock because having had the misfortune to fall under the influence of the stubborn, misguided and almost wholly incompetent Mr Smith, I do not consider that Mr Stock should have a Costs order visited upon him. 

[40] Nonetheless, the involvement of Mr Smith cannot be left uncommented upon. As I have outlined, the “representation” provided by Mr Smith has been a feature of at least ten unfair dismissal applications before the Commission during 2022. None have succeeded but, in each case, the respondent to the application has been required to comply with directions of the Commission and commit the necessary resources to defend its position at both conciliation and during the arbitral process. Additionally, a not insignificant amount of the Commission’s time and resources has been absorbed dealing with the applications spearheaded by Mr Smith and this has been at the expense of other parties with matters before the Commission. Had Mr Smith been a lawyer or paid agent, he would have fallen within the meaning of a “representative” in s.401 of the Act and at risk of being the subject of an application for costs in some or even all of those matters. However, as things currently stand, there is a regulatory gap in the Act when it comes to individuals such as Mr Smith who impose themselves on the Commission’s processes with all care, no responsibility and no “skin in the game.”

In Re Coles Supermarkets Australia Pty Ltd [2022] VSC 438 the Court states

[16] In a notice of appearance dated 4 July 2022, Amber and Wenico entered an appearance for the named defendants as ‘Attorney of Records ... appearing under duress for the beneficiaries as the Defendants are the injured party in this matter’. In statutory declarations dated 7 July 2022 and filed in the proceeding, Amber and Wenico say they each ‘deposited the natural person into a private trust’ (which I understand to be called ‘the Mane Trust’), in respect of which Amber has been appointed power of attorney. In their written submissions dated 25 July 2022, the defendants assert that ‘Amber, the woman, and Wenico, the man, are the Creditor’s [sic] and acting as agent for the Defendants, whom in the legal realm, the Defendants are seen as the Creditor’s [sic]’. 

[17] The defendants appear to be seeking to draw a distinction between themselves as ‘natural’ or ‘living’ persons, on the one hand, and their status as ‘legal’ personalities, on the other. However, contemporary Australian law does not distinguish between a human being and their legal personality. Any such distinction would potentially leave a human being without legal rights, which would be unacceptable in modern society. The contentions put forward by the defendants in this regard are artificial and have no legal consequence.

Commercial Mugshots

'The new Bedlam: a legal and ethical analysis of commercial mug shot websites' by Jennifer L. Lanterman and Catherine A. Houk in (2022) 32(2) Ethics and Behaviour 178-193 comments 

Legal and ethical concerns have been raised since the inception of the commercial mug shot website industry in the United States. These issues include the violation of the presumption of innocence, privacy interests, humiliation, extortion, and sensationalizing crime. These websites lend comparison to Bedlam asylum, which allowed visitors to mock and humiliate the patients. The popularity of these websites renders it essential that the legality and ethics of these websites be reevaluated. The deontological and utilitarian perspectives offer converging assessments regarding the need to regulate the industry and to modify the practices of law enforcement agencies and news organizations.

The authors state 

The popularity of commercial mug shot websites in the United States presents legal and ethical issues. Internet search tools are continually advancing and allowing users to easily access an exceptionally large amount of personal information about people without their consent and to use it to generate profit. Mug shots of individuals who have been arrested are easy to find using Internet search engines, which obtain information from a host of government and commercial websites dedicated to posting the facial images of people who have been arrested. Commercial websites acquire these mug shots from law enforcement agencies that post their mug shots in online databases. These commercial websites generate a profit through click-related advertisements and by charging arrestees to have their mug shots removed from the sites in some jurisdictions (Batchelder, 2014). 

Commercial mug shot websites present major concerns related to public information laws and individual rights and protections. The main ethical issue presented by commercial mug shot websites is whether the republication of mug shots serves a legitimate public interest or if the consequences are more harmful than beneficial to everyone involved. To answer this question, the purpose commercial mug shot websites serve in practice must be evaluated, and the public interest must be weighed against the interest of individual rights and protections. The arguments in favor of the continued operation of commercial mug shot websites, include public interest and safety, the Freedom of Information Act (FOIA) and state-level public records laws, and First Amendment protections. The arguments against commercial mug shot websites include infringement on the presumption of innocence, privacy interests, humiliation, extortion, and sensationalizing crime.

Facial Biometrics

The Facial recognition technology: Towards a model law report from UTS states

 There is growing community concern about the rise of facial recognition technology (FRT). As with other jurisdictions around the world, Australian law does not provide the legal guardrails necessary to ensure that FRT is developed and deployed in ways that uphold basic human rights. 

The Model Law is intended to be applied to any individual or organisation that develops, distributes, or deploys FRT in Australia. It covers use of FRT by both government and private sector organisations. 

The precise human rights impact of FRT turns on how the technology is developed, deployed and regulated. Therefore, the Model Law proposed in this report focuses on how FRT is used in practice, adopting a risk-based approach grounded in international human rights law. While the report has been written primarily by reference to Australian law, the reform principles set out in this report are applicable to other, comparable jurisdictions. 

This report proposes reform. It provides an outline of a model law for FRT (the Model Law). The Model Law aims to foster innovation and enable the responsible use of FRT, while protecting against the risks posed to human rights. 

This report recognises that FRT can be used consistently with international human rights law, and indeed in ways that achieve public and other benefits. However, FRT necessarily also engages, and often limits or restricts, a range of human rights. As a result, the use of FRT can – and has been proven to – cause harm. 

Australian law does not provide the legal guardrails necessary to ensure that FRT is developed and deployed in ways that uphold basic human rights. 

Why is reform needed? 

There is rapid, almost exponential, growth in the development and deployment of FRT and other remote biometric technologies. These technologies can identify and extract a wealth of sensitive personal information about an individual, often without the individual’s knowledge, let alone consent. Australian law, like the laws of most jurisdictions around the world, was not developed with the prospect of widespread use of FRT in mind. In particular, our law was not drafted to address the challenges posed by FRT to human rights such as the right to privacy, freedom of assembly and association, freedom of expression and of movement. In Australia and other similar jurisdictions, several existing laws apply to the development and use of FRT. For example, Australian privacy law includes several provisions dealing with the handling of biometric information. Yet, on the whole, these existing laws are inadequate in addressing many of the risks associated with FRT. 

Some jurisdictions have responded to the rise of FRT by prohibiting certain uses of FRT. Most famously, in 2019, the city of San Francisco issued a legal moratorium that prohibits many uses of FRT by the San Francisco Police Department. While this sort of moratorium may be useful in addressing a very specific risk, it is a limited and blunt instrument, which can leave many uses of FRT unregulated. In addition, if a moratorium were introduced to prohibit all development and use of FRT (something that no major jurisdiction has done), it would preclude uses of the technology that have a demonstrable public benefit. 

Against this backdrop, a small but growing number of jurisdictions have begun to explore a more nuanced approach to regulating FRT. Especially in the United States and Europe, risk-based laws have been proposed to enable beneficial forms or applications of FRT, while restricting or prohibiting harmful uses of FRT. This report has been drafted to apply the lessons from those reform processes to create a nuanced, risk-based, FRT-focused Model Law. 

Many civil society organisations, government and inter-governmental bodies and independent experts have sounded the alarm about dangers associated with current and predicted uses of FRT – including the inadequacy of existing law to protect communities and individuals from having their human rights restricted. Several leading trans-national technology companies have expressed concern that existing laws do not protect against harmful use of FRT. This has prompted a number of companies to voluntarily limit their own use of FRT, including in the products and services they sell. However, many other companies have not tempered their use of FRT. 

What is facial recognition technology? 

Facial recognition technology is defined in this report as any computer system or device with embedded functionality that uses data drawn from human faces to verify an individual’s identity, identify an individual and/or analyse characteristics about an individual. 

This report focuses on FRT, which is a specific form of biometric technology that has some unusual, if not unique, characteristics. In considering broader reform in this area, the authors urge that the reform principles set out in this report be adapted to apply also to other forms of remote biometric technology, including those based on an individual’s voice, gait, ear, iris, body odour and other biometric data. 

How does the Model Law work? 

The Model Law sets out a risk-based approach to FRT, grounded in human rights. Under the Model Law, anyone who develops or deploys an FRT Application must first assess the level of human rights risk that would apply to their particular FRT Application. In assessing this risk, it will be necessary to consider a range of factors including:

• how the FRT application functions 

• where and how it is deployed (for example, the spatial context)  

• hether affected individuals can provide free and informed consent.

• the performance or accuracy of the application, and

• the effect of any decisions made in reliance on the FRT application’s outputs.

Drawing on these factors, the Model Law provides for a structured way of assessing the human rights risk of each specific FRT Application through a ‘Facial Recognition Impact Assessment’ (FRIA). FRT Developers and Deployers must complete this FRIA process, and assign a risk rating to the relevant FRT Application: base-level, elevated or high risk. That assessment can be challenged by members of the public and the regulator. 

To address this human rights risk, the Model Law contains a cumulative set of legal requirements, limitations and prohibitions that apply based on this risk assessment. The Model Law imposes stricter legal constraints, and prohibitions, as the level of risk for any particular FRT Application increases. 

Some of the Model Law’s requirements are procedural – for example, FRIAs must be registered with the regulator and made publicly available to ensure transparency of operation and use. Other requirements are substantive – for example, the Model Law applies and extends existing privacy law obligations to FRT Applications. In addition, the Model Law provides for the creation of a new FRT technical standard that would have the force of law. 

The Model Law prohibits the development and use of high-risk FRT Applications, subject to three exceptions: where the regulator provides specific authorisation; in genuine research; and in the context of law enforcement and national security agencies, where the Model Law provides for specific legal rules, including a ‘face warrant’ scheme. 

Finally, the report recommends that a suitable regulator be legally empowered and resourced to oversee the development and use of FRT in Australia. The Office of the Australian Information Commissioner (OAIC) would be the most obvious candidate to regulate the development and use of FRT in the federal jurisdiction, with a harmonised approach in respect of the state and territory jurisdictions. 

Next steps for urgent reform 

There is an emerging consensus across diverse stakeholder groups that reform in this area is both urgent and important. This report calls on Australia’s Federal Attorney-General to lead the reform process by taking four key steps:

1. The Attorney-General should introduce a bill into the Australian Parliament, based on the FRT Model Law set out in this report. This bill would apply to FRT within the regulatory purview of the Australian Government. 

2. The Attorney-General should assign regulatory responsibility to the Office of the Australian Information Commissioner, or another suitable regulator, empowering that body to take a central role in the creation of an FRT technical standard, and in providing advice for FRT Developers, Deployers and affected individuals. The Australian Government should provide appropriate resourcing to the FRT regulator to fulfil these new functions. 

3. The Attorney-General should initiate a process with his state and territory counterparts to ensure that the law on FRT is harmonised across all Australian jurisdictions. This process should ensure the law is consistent and easy to understand for FRT Developers, Deployers and affected individuals regardless of where one is located in Australia. 

4. The Attorney-General should work with other relevant federal ministers to establish an Australian Government taskforce on FRT. The taskforce would have two functions. First, it would work with all relevant Federal Government departments and agencies, such as the Australian Federal Police, to ensure their development and use of FRT accords with legal and ethical standards. Second, it would lead Australia’s international engagement on FRT, so that Australia can have a positive influence on the development of international standards and other assurance mechanisms for FRT, and to ensure that Australia’s legal approach to FRT is consistent with international law and international best practice.

Policing

The report of the Joint inquiry by the NZ Independent Police Conduct Authority and the NZ Privacy Commissioner into Police conduct when photographing members of the public states 

This joint inquiry was prompted after whānau reported Police photographing their rangatahi in circumstances they considered unfair or unjustified. Subsequent media coverage led more people to report similar experiences. As a result, IPCA and OPC undertook a joint investigation beginning in March 2021, to examine Police photography of persons who have not been detained for the suspected commission of an offence. 

In the course of the joint investigation, we considered five individual complaints in which whānau claimed Police had either uplifted rangatahi for care and protection reasons but had then photographed them in relation to a criminal investigation or had stopped their rangatahi in public places and photographed them without their consent. Two of these complaints were historic in nature and, given the time that had passed and the lack of records or other available information, we were unable to establish the facts or make any findings. 

In relation to the three remaining complaints, we found that Police were not justified in photographing the rangatahi, as the photographs were not necessary for a lawful policing purpose. We also found that, in these incidents, Police had not properly sought consent from the rangatahi or their parents or caregivers before taking the photographs, and had not adequately explained why the photographs were being taken and what they would be used for. In one incident, we found Police had wrongly threatened to arrest a rangatahi if they did not consent to being photographed. 

Our interviews with officers in relation to these complaints suggested that there were broader questions about the appropriateness of current Police practice in this area. We therefore extended the inquiry to an examination of the way in which photographs or video recordings of members of the public (referred to in the remainder of this report as “photography”) are being taken, used and retained in a variety of policing contexts. We interviewed a range of front-line officers and managers in four Police districts about their own practice, whether this was representative of general practice and their understanding of the law and Police policy.  During this broader investigation, we also found that Police were regularly taking duplicate sets of “voluntary” fingerprints from youths who ended up in Police custody for suspected offending and retaining them for a longer period than permitted by the regime for compulsory prints under the Policing Act. We have included consideration of that practice within the scope of this report. 

General findings 

Police use of photography depends on the relevant powers that are available in each policing situation and the respective constraints that apply. Where Police are taking a photograph of a person or persons under any statutory power (which relate primarily to a search scene or a person in custody), they need to comply with the relevant specific legislative threshold and applicable constraints. The Privacy Act should not be used as a basis for taking photographs which circumvent those constraints. Where Police take photographs of people in contexts outside those specific statutory situations, officers must comply with the Privacy Act and the information privacy principles (IPPs) within it, taking into account the status of digital photographs as sensitive biometric information. 

The way that the privacy principles operate as a constraint depends on the policing purpose and the particular circumstances that Police encounter. IPPs 1- 4 are the source of the privacy safeguards that apply when Police are taking photographs. These dictate the need for a lawful purpose and set out the expectation that the person will be informed at the time of the purpose for the photograph and their consent sought. 

The privacy safeguards are flexible and Police can depart from these where necessary. For example, the Police can use covert photography where this is justified and proportionate to their policing purpose. 

Overall, we have found aspects of both Police policy and practice are inconsistent with this framework and breach individual rights. 

Officers are routinely taking photographs when it is not lawful for them to do so. Many are under the misapprehension that if they obtain the consent of the person photographed, this gives them the necessary authority, even though they do not have a lawful purpose in terms of the Privacy Act. 

When they do take photographs in circumstances that comply with the information privacy principles, many officers appear to have very little understanding of the law relating to the retention of these photographs under the Policing Act or the Privacy Act. As a result, thousands of photographs of members of the public are kept on the mobile devices (mobile phones, tablets etc) of individual officers or, if transferred to the Police computer system, not destroyed after there is no longer a legitimate need for them. 

Fundamentally, these problems have arisen because Police as an organisation have not developed appropriate training, guidance or policies to enable officers to use their powers and collect personal information effectively and lawfully. In particular, their roll-out of technology and mobile devices has not been accompanied by sufficient training and support, which has resulted in inconsistent and improper practices. 

We have therefore concluded that Police policy, procedures and training need to be significantly revised and enhanced to reflect that photographs are sensitive biometric information and to ensure that, when Police are photographing people, they are doing so only when either there is a specific statutory authorisation or there is full compliance with the information privacy principles.

The recommendations are 

Taking photographs for intelligence purposes 

R 1 Police should develop a consolidated and comprehensive policy covering the use of photography to collect personal information under the Privacy Act for general intelligence gathering purposes. This policy should develop clear, practical guidelines for complying with the Privacy Act when stopping individuals in public and taking photographs for intelligence gathering purposes including: (a) setting an appropriate threshold under the Privacy Act (IPP1) for the collection of personal information: when turning their minds to their reasons for collection officers must be able to articulate a reasonable possibility, based on more than mere conjecture, that the individual being photographed could be relevant to a particular or likely investigation (the lawful purpose). (b) unless an exception applies, informing the individual of the purpose for taking the photograph, the consequences for the individual if the photograph is not provided and other information required under the Privacy Act (IPP 3); (c) setting out the applicable thresholds for exceptions to the requirement to inform the individual. In relation to the maintenance of the law exception, that requires a reasonably held belief that not complying with IPP 3 is necessary to avoid prejudice to the maintenance of the law; (d) the circumstances that require the consent of the individual to ensure that photographing the individual is fair and does not intrude to an unreasonable extent on their personal affairs. For example: (i) if an officer is engaging with an individual and informing them of the reason and purpose for the photograph, it will generally be fair to also obtain their consent, particularly if the individual is a youth; or (ii) if seeking the individual’s consent would be disproportionately prejudicial to the reason for taking the photograph or to the maintenance of the law, that risk of prejudice can justify proceeding without consent; and (iii) that, if a photograph is taken after the refusal of consent, the individual must be informed that the photograph is mandatory. 

R 2 Police policy should provide clear guidelines for complying with the Privacy Act when stopping a youth in public and taking photographs for general intelligence-gathering purposes including: (a) reflecting the youth specific protections in the Oranga Tamariki Act and UNCROC; (b) tailoring the explanation under IPP 3 to youth in an age-appropriate way; and (c) reflecting the requirements of IPP 4 when officers are deciding to proceed with a photograph of a youth and require officers to engage with the youth’s family, whanau or caregiver and, in the case of a child or tamariki under the age of 14, to obtain their consent (or if they are unavailable another appropriate and independent adult), before taking a photograph of the youth. 

R 3 Police policy should require officers to record the circumstances and considerations that they rely on to justify the collection of personal information for purposes of intelligence gathering. 

R 4 Police policy should include guidance on the limits of an officer’s power to take photographs or video recordings when that officer is lawfully on private premises. 

Taking photographs for investigation purposes 

R 5 Police should develop a consolidated and comprehensive policy covering the use of photography to collect personal information under the Privacy Act for non-crime scene identification. This policy should develop clear, practical guidelines for complying with the Privacy Act when stopping individuals in public and taking photographs for purposes of investigations including: (a) setting an appropriate threshold under the Privacy Act (IPP1) for the collection of personal information: when turning their minds to their reasons for collection officers must be able to articulate a reasonable possibility, based on more than mere conjecture, that the individual being photographed could be relevant to a specific investigation that is currently underway (the lawful purpose); (b) unless an exception applies, informing the individual of the purpose for taking the photograph, the consequences for the individual if the photograph is not provided and other information required under the Privacy Act (IPP 3); (c) setting out the applicable thresholds for exceptions to the requirement to inform the individual. In relation to the maintenance of the law exception, that requires a reasonably held belief that not complying with IPP 3 is necessary to avoid prejudice to the maintenance of the law; (d) the circumstances that require the consent of the individual, to ensure that photographing the individual is fair and does not intrude to an unreasonable extent on the personal affairs of the individual concerned. For example: (i) if an officer is engaging with an individual and informing them of the reason and purpose of the photograph, it will generally be fair to also obtain their consent, particularly if the individual is a youth; or (ii) if seeking the individual’s consent would be disproportionately prejudicial to the reason for taking the photograph or to the maintenance of the law, that risk of prejudice can justify proceeding without consent; and (iii) that, if a photograph is taken after the refusal of consent, the individual must be informed that the photograph is mandatory. 

R 6 Police policy should provide clear guidelines for complying with the Privacy Act when taking photographs of youth for investigation purposes including: (a) reflecting the youth specific protections in the Oranga Tamariki Act and UNCROC; (b) tailoring the explanation under IPP 3 to the youth in an age-appropriate way; and (c) reflecting the requirements of IPP 4 when officers are deciding whether to proceed with a photograph of a youth and require officers to engage with the youth’s family, whanau or caregiver and, in the case of a child or tamariki under the age of 14, to obtain consent from them (or if they are unavailable another appropriate and independent adult), before taking a photograph of the youth. 

R 7 Police policy should require officers to record the circumstances and considerations that they rely upon to justify the collection of personal information for investigation purposes. 

R 8 Police policy should confirm that Police may take photographs at a crime scene provided that the privacy of those unrelated to the incident is taken into account. This could be addressed by the redaction of images that include individuals who are not relevant to the investigation. 

Traffic checkpoints and other traffic stops 

R 9 Police should prioritise review of training and policy on LTA checkpoints and stops to ensure that: (a) policies reflect the current legal constraints, including the application of the privacy principles when taking photographs for non-LTA purposes; (b) checkpoints and other traffic stops are not established for the primary purpose of collecting photographs and personal information for a collateral purpose; (c) information gathered in the course of an LTA checkpoint or stop is not used for other purposes (e.g. general intelligence) unless lawfully collected for that other purpose, or it comes under a valid use exception under the Privacy Act; (d) photographs are taken for identification purposes at traffic checkpoints and other traffic stops when an infringement notice is being issued only when the driver’s identity is not able to be ascertained in other way (eg by examination of the driving licence and accompanying photograph); and (e) officers receive regular training on the limits of taking photographs at LTA checkpoints and traffic stops. 

Protests and other large gatherings 

R 10 Police should review the Demonstrations policy to reflect that: (a) an appropriate threshold for photography is where the officer believes, based on some articulable facts, that there is a reasonable possibility of disorder occurring; and (b) recording demonstrators for no reason other than their presence in an otherwise lawful and peaceful demonstration, with the aim of identifying them for potential future demonstrations, is not necessary for a lawful Police purpose. Issuing notices and proof of service 

R 11 As part of a general review of policy and guidance relating to photographs of members of the public, Police should review and update policies and process relating to proof of service. This should make it clear that officers may photograph individuals holding a summons or infringement notice, as long as officers properly explain the purpose and use of the photograph, take it by fair and reasonable means, and limit the use of the photographs to demonstrating proof of service. 

Responding to monitoring by members of the public 

R 12 As part of a general review of policy and guidance relating to photographs of members of the public, Police should ensure there is guidance about the lawful basis for photographing or video recording members of the public monitoring Police. This should make clear that officers should do so only if the officer has reasonable concerns that the person’s behaviour poses a threat or is obstructing them in the performance of their duty. 

Interaction with youth in Police stations 

R 13 Police policy should reflect that “voluntary consent” - whether or not it is informed - does not make the otherwise unlawful or unnecessary collection of personal information lawful or compliant with the Privacy Act 

R 14 Police should cease the practice of taking photographs of youth on a ‘voluntary’ basis where a youth has been uplifted or detained, except where a photograph is necessary for Police’s care and protection role to ensure the safety of the youth. 

R 15 Police should cease the practice of taking biometric prints from youth on a ‘voluntary’ basis. 

R 16 Police policy should identify: (a) the limits on taking ‘voluntary’ photographs of youth (and adults) present in Police stations on a voluntary basis under IPP 1; and (b) where a youth is concerned, the requirement for a parent, caregiver or other appropriate adult to be present to give informed consent for a ‘voluntary’ photograph. 

R 17 Police should prioritise training for officers to improve understanding of: (a) Police’s functions under the Oranga Tamariki Act in the youth justice and care and protection contexts; and (b) the youth-specific protections due to vulnerability. 

Use 

R 18 Police policy should provide clear guidelines on the purposes for which lawfully collected personal information in the form of photographs and videos may be used under the Privacy Act (IPP 10). 

Retention 

R 19 Police policy and guidelines (including any relevant disposal schedule) should be reviewed and amended to ensure the technology policy is fit for purpose to support compliance with Police’s obligations under the Privacy Act (and other relevant legislation) and provide guidance for officers routinely using mobile devices for mixed personal and policing purposes including, in particular: (a) the consistent storage and uploading of images and associated data to secure locations, and minimising the retention of images on individual devices and the duplication of images across Police systems; (b) limits on using individual devices to capture images where other Police devices or technology is specifically set up for that purpose; (c) protocols on handling sensitive or traumatic images; (d) limits on the use and retention of images (and copies) in individual devices and in Police systems; (e) routine review and deletion of images from mobile and desktop devices; (f) protocols for purging and replacing devices. 

R 20 Police should prioritise regular training for all officers on using mobile devices to ensure legal compliance. 

R 21 Police should review systems and implement the ability to audit compliance with: (a) updated technology policy and the handling of photographs of individuals on mobile devices; and (b) the deletion of identifying particulars in accordance with statutory time limits. 

R 22 Police should develop a strategy to improve its staff’s fundamental understanding of the application of the Privacy Act to the collection and protection of personal information with a particular focus on photographs as sensitive biometric information covering: (a) policies and processes; (b) training; and (c) methods for updating knowledge and practice on an ongoing basis. 

R 23 In implementing the strategy, Police should establish a rolling programme of reviews and updates of key policies, and develop and deliver agency-wide training to its staff and relevant contractors on: (a) the decision-making framework and procedures to be followed to photograph individuals and youth in public; and (b) storage and deletion procedures.