Alternative forums for complaints about surveillance

Recommendation 14–8 State and territory governments should give jurisdiction to appropriate courts and tribunals to hear complaints about the installation and use of surveillance devices that can monitor neighbours on residential property.

14.90 The ALRC recommends that jurisdiction be conferred on appropriate courts and tribunals to allow residential neighbours’ disputes about the use of surveillance devices to be heard by appropriate courts and tribunals. A number of submissions to this Inquiry have raised concerns regarding CCTV cameras, installed for security in homes and offices that may also record the activities of neighbours. A low cost option for resolving disputes about surveillance devices is desirable, particularly where prosecution under surveillance legislation is inappropriate, undesirable or unsuccessful. While such a dispute might also be settled by one neighbour seeking an injunction against the other under the law of nuisance, as in Raciti v Hughes,[88] such a process involves proceedings in superior courts. It would be desirable for a lower cost forum to be made available.

14.91 Courts and tribunals—such as the ACT Civil and Administrative Tribunal (ACAT); the NSW Land and Environment Court (LEC); the Queensland Planning and Environment Court (QPEC); the State Administrative Tribunal of Western Australia (SAT); and the Victorian Civil and Administrative Tribunal (VCAT)—have jurisdiction to hear a wide range of civil disputes and disputes relating to planning and development,[89] as well as disputes between neighbours.[90]

14.92 Many of the types of disputes that may currently be heard in these tribunals involve an element of privacy, and in particular the protection of privacy in disputes between neighbours. For example, in Walnut Tree Development v Hepburn SC[91] the VCAT required that additional fencing be included in a development plan in order to enhance the privacy of a neighbouring building. In Des Forges v Kangaroo Point Residents Association, the QPEC set aside development approval for three residential towers because ‘insufficient regard has been paid to the actual intensity of the development, to boundary clearances, separation, privacy and the consequential effects on views’.[92] In Meriton v Sydney City Council,[93] the NSW LEC found that a building proposal would not have an unacceptable impact on privacy because of the particular angle of its windows. In Szann v Council of the City of Sydney,[94] the NSW LEC dismissed an appeal against a council decision rejecting the use of two security cameras with the ability to pan and zoom, noting that a fixed lens camera would have provided adequate surveillance. In Szann, the Court observed that:

The presence of the dome camera, high on the rear elevation immediately adjacent to the shared boundary, is a menacing panoptic mechanism, positioned to give the neighbours the impression of being constantly observed in their own, private rear courtyard. Any camera, where the lens is visible from an adjoining property or the public domain, gives the perception that you are under surveillance, regardless of whether ‘privacy masks’ are enabled to veil unwanted zones, because you cannot see whether a privacy mask is enabled by looking at the camera. The barrel camera body of the fixed lens camera provides an assurance than when you are not in front of the cone view of the lens, you are not under surveillance.[95]

14.93 In the Discussion Paper, the ALRC asked whether local councils should be empowered to regulate the installation and use of surveillance devices by private individuals. Stakeholders were generally not supportive of local councils holding such a power. Concerns expressed in submissions included:

  • inconsistency and fragmentation of surveillance laws;[96]

  • weakening of ‘strong national standards’ of surveillance device regulation;[97]

  • a risk of over-regulation, such as restrictions placed on photography during public events at public beaches;[98] and

  • the limited experience of local council officers in regulating surveillance.[99]

14.94 Noting these concerns about the regulation of surveillance devices by local councils, the ALRC considers that there remains a benefit in having complaints about certain types of surveillance dealt with in forums that may provide resolution with less cost, less time, and less impact on parties.

14.95 The ALRC also considers that the resolution of neighbourhood disputes about surveillance device in courts and tribunals would avoid the concerns expressed by stakeholders about local council regulation:

  • courts and tribunals operate at the state and territory level, ensuring consistency at that level—these powers would not be to the exclusion of the Commonwealth surveillance legislation;

  • over-regulation of the type envisaged by stakeholders would be limited, since the powers would be limited to residential neighbour disputes and provided for under legislation; and

  • courts and tribunals have existing experience in dealing with privacy issues in the context of neighbour disputes.