16. Surveillance - Approaches to regulation
Graham Greenleaf, with contributions by Nigel Waters, revised 14
= required reading
material added since the date of the class concerning this topic
'Surveillance' (whether covert or overt) is perhaps the broadest
organising concept in privacy law other than 'fair information practices' /
'information privacy principles' / 'data protection'. However, whereas many
jurisdictions have embraced general non-sectoral legislation based around sets
of IPPs, almost all legislation regulating surveillance is very narrow in its
focus, concentrating on such specific technologies or locations of the
surveillance. Examples of such focus are 'listening devices', 'CCTV',
'telecommunications interception', 'workplace surveillance', 'public places',
and 'email monitoring'.
In contrast, the NSW Law Reform Commission has proposed (December 2001) a
general Surveillance Act covering all forms of surveillance (except
telecommunications interception for constitutional reasons). The Hong Kong LRC
discussed a somewhat more limited, but still quite general surveillance law in
1996, and is due to report on this in 2002. Victoria has already enacted a
quite general Surveillance Devices Act 1999.
The main objectives of this Reading Guide are to consider:
Other forms of surveillance such as telecommunications
interception and workplace surveillance are also covered in other Reading Guides.
legislation covers telecommunications surveillance (interception), and through
the Privacy Act's IPPs provides a limited coverage of surveillance by
Commonwealth agencies ('unfair collection' etc), and surveillance of
Commonwealth employees. The NPPs will also have some effect on surveillance
generally ('unfair collection' etc) but not on employee surveillance.
information contained in employee records within Commonwealth Government
Departments and Agencies receives the same protection as other personal
information under the Privacy Act 1988, and is subject to the IPPs.
- The relative dangers of various forms of surveillance.
- The advantages and disadvantages of general regulation of surveillance
compared with technology-specific or context-specific forms of regulation.
- To obtain an overview of the various forms of existing surveillance
However, the Federal private sector privacy legislation has numerous
limitations and exemptions concerning employment privacy, and exempts most
workplaces in any event due to its exemption for small businesses. This has
made 'workplace surveillance' legislation at State level more important in
Australia than it might otherwise have been.
A near-complete exemption for private sector employee records is contained in
the Privacy Act 1988
s7(B)(3) which provides that an act done, or practice engaged in, by a
private sector organisation that is or was an employer of an individual, is
exempt from the Act if it is directly related to: (a) a current or former
employment relationship between the employer and the individual; and (b) an
employee record held by the organisation and relating to the individual.
It is important to note that this does not exempt all records arising in
workplace and naming employees: it only exempts 'employee records'.
One of the Commonwealth's justifications for this exemption was that existing
industrial laws provided sufficient protection for employee privacy. It
promised during the Bill's passage that this would be the subject of a review
and report which was due in mid-2002, but it has not occurred. It was a false
assertion and no doubt any report would show that.
The Federal Privacy Commissioner's Guidelines on Workplace Email, Web Browsing
and Privacy have no legal force, and it is questionable whether they consider
enough areas of law (eg the T(I) Act) to be a reliable guide.
Reading Guide 15. Workplace privacy issues for a more general discussion
about the application of privacy laws to the workplace, and examples of the
application of the Commonwealth IPPs to workplace issues.
NSW has legislation covering listening devices (only where the Commonwealth
T(I) Act does not apply) and covert workplace visual surveillance or employees,
and information privacy laws covering State employees. The following types of
surveillance are therefore not covered by NSW law (except incidentally by other
laws in some cases):
Law Reform Commission has proposed a more general surveillance law which would
cover all of these forms of surveillance with more uniform rules. See the
discussion below re the NSW LRC as to how 'surveillance' should be defined.
NSW has legislated, but only in relation to covert video surveillance.
Video Surveillance Act 1998 regulates covert video surveillance in
the workplace. An employer is not permitted to use covert surveillance unless
it is used to detect unlawful activity, the employer obtains a covert
surveillance authority from a magistrate and the surveillance is overseen by a
nominated licenced security operator. See the Guide by Privacy NSW (below) for
- Covert video surveillance anywhere outside the workplace, and within the
workplace of persons other than employees;
- Overt video surveillance in any setting;
- Visual surveillance which does not use video (eg photography, use of
- Surveillance which is not strictly 'visual' but close to it (eg X-ray,
- Any other forms of surveillance which do not involve audio (listening) or
visual surveillance technologies (eg vehicle tracking, 'web bugs'.
"Video surveillance" is defined to mean 'surveillance by a closed-circuit
television system or other electronic system for visual monitoring of
activities on premises or in any other place. '
There is little case law on the Act as yet; See:
Devices Act 1984 (NSW) is of limited scope, and is limited further by the
scope of the Telecommunications Interception Act 1979 (Cth).
& City Tattersalls Club  NSWIRComm 1093 - Failure of club to give
notice of video surveillance to employees - but legal issues not pursued as
employee is reinstated on other grounds.
in the work place (FindLaw Australia) - Discusses a number of unreported
decisions where the Act has been applied.
A "listening device" is defined (
to mean 'any instrument, apparatus, equipment or device capable of being used
to record or listen to a private conversation simultaneously with its taking
"Private conversation" is defined (s3) to mean 'any words spoken by one person
to another person or to other persons in circumstances that may reasonably be
taken to indicate that any of those persons desires the words to be listened
to only: (a) by themselves, or (b) by themselves and by some other person who
has the consent, express or implied, of all of those persons to do so'.
The general prohibition on the use of listening devices is found in
s5(1) which provides that a person shall not use, or cause to be used, a
listening device: (a) to record or listen to a private conversation to which
the person is not a party, or (b) to record a private conversation to which
the person is a party.
Exceptions to offences s5(1) are found in s5(2) for:
Prima facie s5(b) means that it is illegal to record a
conversation to which you are a party. There is a further exception in s5(3) to
the recording of a conversation where:
- (a) where a warrant has been granted under Part 4;
- (b) the use of a listening device pursuant to a warrant under the
Telecommunications (Interception) Act 1979 (Cth) or any other law of the
- (c) use where necessary to obtain evidence of 'an imminent threat of
serious violence to persons or of substantial damage to property', or a
serious narcotics offence (s5(4) then provides further protections);
- (d) unintentional overhearings ;
- (e) ' the use of a listening device to record a refusal to consent to the
recording of an interview by a member of the police force in connection with
the commission of an offence by a person suspected of having committed the
There are further
prohibitions on communication or publication of private conversations
unlawfully listened to (s6), and on communication or publication of records of
private conversations by parties thereto (s7), and even the possession of
record of private conversations (s8).
- all principal parties to the conversation consent to it being recorded; or
- one principal party to the conversation consents to it being recorded and
'the recording ... is reasonably necessary for the protection of the[ir] lawful
interests', or they do not record it for the purpose of communicating it to
anyone other than the other parties to the conversation.
The manufacture, supply etc of listening devices for unlawful use is also an
Evidence of a conversation (or evidence obtained as a direct result of it) is
inadmissible if the person giving evidence has only become aware of the
conversation as a result of a breach of the Act (
Part 4 provides for the issuing by a Judge of warrants authorising use of
listening devices in relation to prescribed offences (
Breaches of the act are offences, but the Act does not provide for any civil
There is a
substantial body of case law concerning the Act.
With recent developments of the law of breach of confidence, it is quite likely
that any use of a listening device to listen to a private conversation would
also constitute a breach of confidence.
Whether the use of a listening device would also constitute 'collection' (and
possibly an unfair means of collection) of personal data that comes within an
information privacy law will depend on factors such as (i) whether the law only
applies to information which is recorded or 'held' in some way; (ii) whether
the device is used to 'record'; and (iii) whether there is any exemption from
the information privacy law which applies.
NSW Law Reform Commission Report 98
Surveillance: an interim report in December 2001 Read at least the
The NSW government is reported to be considering introducing legislation based
on the Report, but has not yet made any official response to its
The Report contains a mind-numbing121 separate recommendations which cover
surveillance generally and involve a comprehensive Surveillance Act
(excepting telecommunications interception as that is a federal matter and
covered by the Telecommunications (Interception) Act 1979). For overt
surveillance, the recommended Act would require adherence to 'eight legislative
principles to be supplemented by codes of practice for those conducting a
significant amount of overt surveillance'.
For covert surveillance, 'the approval of an independent arbiter should have to
be obtained before any covert surveillance may occur' (or sometimes
retrospectively). A vital element is that failure to observe the overt
surveillance guidelines will constitute covert surveillance.
This legislation would be one of the most comprehensive surveillance codes
The NSWLRC's proposals have a very significant overlap with the 'National
Privacy Principles' in the Federal private sector legislation, particularly in
relation to the collection principles, but touching on most other NPPs such as
those dealing with use, disclosure and security.
The NSW LRC recommendations are summarised by them as follows (See
Executive Summary - footnotes omitted here):
"So far as overt surveillance is concerned, the Commission recommends that this
should be regulated flexibly, requiring adherence to eight legislative
principles to be supplemented by codes of practice for those conducting a
significant amount of overt surveillance. The principles are as follows:
1. Overt surveillance should not be used in such a way that it breaches an
individual's reasonable expectation of privacy.
2. Overt surveillance must only be undertaken for an acceptable purpose.
3. Overt surveillance must be conducted in a manner which is appropriate for
4. Notice provisions shall identify the surveillance user.
5. Surveillance users must be accountable for their surveillance devices and
the consequences of their use.
6. Surveillance users must ensure all aspects of their surveillance system
7. Material obtained through surveillance to be used in a fair manner and
only for the purpose obtained.
8. Material obtained through surveillance must be destroyed within a
Failure to comply with the principles would expose those conducting overt
surveillance to the threat of a civil action under the proposed surveillance
Since covert surveillance is conducted without the knowledge of the subject,
and is thereby more intrusive than surveillance conducted overtly, it should
be regulated more stringently. The Commission recommends that the approval of
an independent arbiter should have to be obtained before any covert
surveillance may occur under the proposed Surveillance Act. In circumstances
where such prior approval is not possible or practicable, it may, where
appropriate, be obtained retrospectively. The Commission has isolated three
main areas where covert surveillance may legitimately be conducted. Those are
law enforcement, in the course of employment, and in the public interest.
Covert surveillance by, or on behalf of, law enforcement officers should be
regulated by a warrants procedure similar to that currently operating in the
Listening Devices Act 1984 (NSW), with applications made to and warrants
issued by "eligible judges" in the courts system.
Covert surveillance by, or on behalf of, employers should be authorised by
members of the Industrial Relations Commission.16 Covert surveillance
conducted in the public interest by anyone other than law enforcement
officers or employers (or people acting on their behalf), must be authorised
by an appropriate issuing authority, being either members of a court or a
The proposed Surveillance Act should also specify measures to promote
accountability for the conduct of covert surveillance and the use of material
obtained as a result.18 Breach of the provisions of the proposed Surveillance
Act regarding covert surveillance would give rise to a criminal offence. In
addition, liability for a civil action resulting in damages or other
appropriate remedies may be incurred as a result of a breach of the Act."
The NSW Privacy Commissioner has released a Position Paper on the
recommendations for legislative reform set out in the NSW Law Reform Commission
Report 98 Surveillance: An Interim Report (December 2001) . As yet, the NSW
government has not announced its intentions in relation to the recommended
legislation, or the comments by Privacy NSW (General Editor)
The text of the summary by Privacy NSW of its Position Paper follows.
"Privacy NSW strongly supports the over-arching recommendations of the Law
Reform Commission Report 98 Surveillance: An Interim Report ("LRC
Report") in relation to the development of a comprehensive Surveillance Act
which is technology-neutral in its application. In developing the new Act, it
is critical to ensure that:
- the proper balance is struck between the public interest in the protection
of individuals' privacy on the one hand, and the public interest in law
enforcement and public safety on the other;
- the privacy principles already binding on State and local government in
NSW not be diminished in any way through any new legislation;
- there is consistency in the application of the privacy principles across
the public and private sectors unless there is a justifiable reason otherwise;
- that there are adequate and transparent oversight and accountability
provisions backed by legislative authority.
In relation to overt surveillance, Privacy NSW has made the following
- The visibility of the surveillance equipment itself ought not be
considered adequate; that is, without signs or other written/audio warnings,
the surveillance ought be considered `covert'.
- Surveillance always constitutes an interference with privacy rights.
Rather than the test proposed by the LRC -- whether the use of surveillance has
breached an individual's "reasonable expectation of privacy" - the real
question is whether that interference with privacy is warranted. This approach
would ensure that the onus of justifying the use of surveillance is placed upon
the surveillance user rather than the individual whose privacy has been
- Consequently, surveillance users should be able to justify that the
surveillance is for a lawful purpose, directly related to a lawful function of
that surveillance user, and the surveillance must be reasonably
necessary for the achievement of that purpose.
- The Act or regulations must make clear the appropriate standards with
respect to the storage and destruction of surveillance material, having given
due consideration to the competing interests of privacy protection and State
- There must be a specific principle which addresses disclosures to third
- The complaints and enforcement model established under the Health Records
& Information Privacy Act 2002 is the preferred option. Such a model allows
for complaints about public sector agencies to be dealt with through the
complaints mechanisms already established under the PPIP Act and establishes
Privacy NSW as the main complaints-handling body for the private
The LRC Report suggests that authorisation for covert surveillance can only be
given for the purposes of law enforcement, protecting the public interest and
employment-related investigations. In relation to covert surveillance, Privacy
NSW has made the following recommendations:
The very nature of covert surveillance
raises serious questions about unauthorised surveillance material, secondary
use, disclosure to subjects of covert surveillance, nature of such disclosure
and destruction of material gathered during surveillance.
- In relation to law enforcement activities, a covert surveillance authority
should only be issued for the enforcement of serious indictable offences, being
those with a maximum penalty of 7 years' imprisonment or more.
- Since the term `public interest' is one which is commonly misunderstood,
manipulated, or inconsistently applied, it is essential that the proposed Act
include a specific definition of the `public interest', which weighs
appropriately the public interest in the protection of privacy as a human right
against other interests.
- If an application is made under the grounds of `unlawful activity', the
employer must be required to establish that they have a legitimate interest in
preventing the behaviour, and that there is a sufficient explanation for
not involving NSW Police instead.
Privacy NSW therefore supports comprehensive legislation to regulate these
(Summary provided by Privacy NSW)
This material is for comparative purposes only.
Devices Act 1999 (Vic) - regulates the installation, use and maintenance
of surveillance devices. It also:
In general the Act prohibits the use of listening devices and
optical surveillance devices to record private conversation or activity without
the consent of each party involved. The Act also restricts the use of tracking
devices to record the location of a person/object without that person's
knowledge, and the use of data surveillance devices (by law enforcement
officers only) to monitor input and output from a computer without the person's
- Restricts the communication and publication of records of private
conversations and activities obtained through the use of surveillance devices;
- Establishes procedures for law enforcement officers to obtain warrants or
emergency authorisations for the installation and use of surveillance devices;
- Creates offences relating to the improper installation or use of
- Imposes requirements for the secure storage and destruction of records
obtained by law enforcement officers through the use of surveillance
The provision for monitoring input and output from a person's computer would
presumably cover the flow of email traffic - though this is not made explicit.
However, this provision only covers activities of law enforcement officers, and
so would have minimal impact on the workplace (except in investigations, where
law enforcement officers could monitor with authority of a warrant).
Victoria's Attorney-General gave a reference to its
Law Reform Commission in July 2001 to examine generally which other areas
of privacy protection which should be a priority (after the enactment of the
Surveillance Devices Act 1999 and the
Privacy Act 2000) .
In March 2002 this has been followed up by the announcement of a more specific
inquiry into workplace privacy and surveillance in public places. The
Commission will first consider whether current protection for all aspects
workers' privacy are adequate.
This material is for comparative purposes only.
- Hong Kong Law Reform Commission (HKLRC) consultation paper,
Privacy: Regulating Surveillance and the Interception of Communications
(1996) - A final Report has not yet issued on surveillance generally (it
has on telecommunications interception - see below) but is expected by the end
Regulating surveillance: Hong Kong's proposals, Part I (1996) 3 PLPR 56;
This article summarises the proposals in the 1996 consultation paper (above).
The main recommendations are described as follows:
- "an offence for a person to enter private premises as a trespasser with
intent to observe, overhear or obtain personal information therein. Regarding
the defence of consent of the lawful occupier, it was recognised that in
premises such as hotels and hospitals, the victim will be the licensee rather
than the owner. It is proposed that legal protection be extended accordingly. "
- "it is proposed that it also be an offence for a person to place, use or
service in, or remove from, private premises a sense enhancing, transmitting or
recording device without the consent of the lawful occupier. The definition of
'devices' is drawn broadly..,"
- "... the Committee does not propose that legal protection be extended to
licensees. This means that such complex issues as the legitimacy of workplace
and shop surveillance are not addressed in this context. "
- "... the Committee proposes that it be an offence for a person to place or
use a sense-enhancing, transmitting or recording device outside private
premises with the intention of monitoring, without the consent of the lawful
occupier, the activities of the occupant or of data held on the premises
relating directly or indirectly to the occupant."
- David Banisar
Hong Kong in Privacy & Human Rights 2000, Electronic Privacy
Information Center (EPIC)
- Mark Berthold
surveillance: Hong Kong's proposals - Part II (1996) 3 PLPR 74 - This
summarises the 1996 telecommunications interception proposals of the HKLRC.
- Hong Kong Law Reform Commission (HKLRC) Report
the intercept of Communications; From the summary on the site:
- "The Commission's 1996 report recommended that interception of
communications should be prohibited unless carried out pursuant to a warrant
granted by the court. The Commission considered that the existing law did not
provide sufficient protection against unlawful or arbitrary interference with
the individual's right to privacy and that a statutory framework was necessary."
- " The report recommended that it be an offence intentionally to intercept
or interfere with a telecommunication, a sealed postal packet or a transmission
by radio. Only the Administration and its law enforcement agencies should be
able to apply for a warrant authorising the interception of communications. In
order to keep the warrant system under review, the Commission recommended that
a judge of the Court of Appeal should be appointed to be the supervisory
authority. To increase public accountability, the supervisory authority should
be required to furnish an annual public report to the Legislative Council and a
confidential report to the Chief Executive."
Interception of Communications Ordinance - This Ordinance has not been
proclaimed and is based on a Private Member's Bill, not on the HKLRC Report