Surveillance technologies

9.89 Surveillance involves the monitoring of a person, place or object to obtain certain information or to alter or control the behaviour of the subject of the surveillance.[188] Surveillance can be covert or overt, and can be conducted by a variety of individuals, agencies or organisations for different reasons. For example, surveillance can be conducted by law enforcement agencies to prevent or investigate crime, by media organisations to obtain commercially valuable information, or by individuals to monitor the activities of family members. The practice of surveillance is antithetical to privacy because the goal of surveillance is to ‘pierce the privacy shield’.[189] While surveillance is said to be ‘at least as old as recorded history’,[190] developments in surveillance technology and the increased availability of this technology pose significant risks to privacy.

9.90 In ALRC 22, the ALRC considered the use of listening devices. It concluded that, as a general principle, an individual’s private communications should not be monitored without his or her consent.[191] Accordingly, it recommended that legislation prohibit the use of listening devices for non-consensual or secret surveillance,[192] with some exceptions for the use of listening devices for law enforcement purposes and for ‘participant monitoring’.[193]

9.91 In ALRC 22, the use of optical surveillance devices was also considered. The ALRC noted that the ‘growth and increased sophistication of modern technological surveillance devices make it imperative that some legislative control be imposed on their use for optical surveillance’.[194] The ALRC concluded that there should be no regulation of optical surveillance in public places—where individuals could expect to be observed—but recommended that the use of optical surveillance devices to observe people who would otherwise reasonably expect to be safe from observation be prohibited.[195] The ALRC recommended that there should be exceptions to the general prohibition on optical surveillance in private places, such as an exception for the use of an optical surveillance device by a person for the purpose of observing what, on reasonable grounds, appeared to be the commission of an offence, and an exception for the use of an optical surveillance device for law enforcement purposes.[196]

9.92 There are infinite innovations in the design of surveillance technologies. Some surveillance technologies, such as Closed Circuit Television (CCTV), can be combined with software that operates automatically to detect certain matters of interest.[197] For example, CCTV surveillance systems can be used in combination with character recognition technologies to enable automatic number plate recognition. Automatic number plate recognition systems extract the text of number plates from visual images of cars for a number of purposes, such as to compare them to records of stolen vehicles and unregistered cars.[198] Intelligent software can reduce the need for live monitoring of surveillance systems and reduce costs associated with recording irrelevant activity.[199]

9.93 The use of surveillance devices by federal law enforcement officers is regulated by the Surveillance Devices Act 2004 (Cth). A surveillance device is defined as ‘a data surveillance device, a listening device, an optical surveillance device or a tracking device’, a device that is a combination of any two or more of these types of devices, or a device prescribed by regulations.[200] Generally, federal law enforcement officers must obtain a warrant to use a surveillance device. In certain circumstances, however, a surveillance device can be used without a warrant if use of the device does not involve entry onto premises, or interference with any vehicle or thing, without permission.[201] In addition, a listening device can be used without a warrant if an officer is participating in the conversation.[202] The use of surveillance devices by the Australian Security Intelligence Organisation is regulated by the Australian Security Intelligence Organisation Act 1979 (Cth), while the intelligence gathering functions of the Australian Secret Intelligence Service and the Defence Signals Directorate are set out in the Intelligence Services Act 2001 (Cth).

9.94 The handling of personal information obtained by the use of surveillance devices is generally regulated by the Privacy Act when the use of the device involves the collection of personal information for inclusion in a record. As noted in Chapter 1, the Victorian Law Reform Commission is currently examining surveillance in public places as part of a larger inquiry into privacy. It is anticipated that the recommendations resulting from this inquiry will be considered by the Standing Committee of Attorneys-General. In Chapter 73, the ALRC discusses access to and interception of information under the Telecommunications (Interception and Access) Act 1979 (Cth).

[188] R Clarke, Have We Learnt to Love Big Brother? (2005) Australian National University <www.anu.edu.au/people/Roger.Clarke/DV/DV2005.html> at 30 April 2008.

[189] New South Wales Law Reform Commission, Surveillance: An Interim Report, Report 98 (2001), [1.5].

[190] Ibid, [1.18].

[191] Australian Law Reform Commission, Privacy, ALRC 22 (1983), [1122].

[192] Ibid, Recs 28, 30.

[193] Ibid, Recs 29, 40–50. Participant monitoring can occur: when a party to a private conversation uses a listening device to record the conversation without the consent of the other party; and when a party to a private conversation uses a listening device to transmit the conversation to someone who is not a party. Australian Law Reform Commission, Privacy, ALRC 22 (1983), [1127].

[194] Australian Law Reform Commission, Privacy, ALRC 22 (1983), [1187].

[195] Ibid, Recs 52, 53.

[196] Ibid, Recs 53, 54.

[197] Council of Australian Governments, A National Approach to Closed Circuit Television (2006), 18.

[198] See, eg, T Holding (Victorian Minister for Police and Emergency Services), ‘Government to Keep Eye on Number Plate Trial’ (Press Release, 16 March 2005).

[199] Council of Australian Governments, A National Approach to Closed Circuit Television (2006), 18.

[200]Surveillance Devices Act 2004 (Cth) s 6(1).

[201] Ibid ss 37–39.

[202] Ibid s 38.