ALRC proposes unified, technology-neutral surveillance laws

The Australian Law Reform Commission (ALRC) has released a discussion paper proposing a unified, technology-neutral approach to surveillance laws across different states and territories.

Types of surveillance technologies include listening devices, optical surveillance devices, data surveillance and tracking devices, drones and mobile devices, and wearable technologies.

“There is significant inconsistency between the laws with respect to the types of devices regulated and with respect to the offences, defences and exceptions,” the paper said.

For example, when it comes to exceptions for surveillance of a private conversation or activity, some jurisdictions provide an exception if all parties give consent, others provide an exception if only one party gives consent and is for the protection of a lawful interest of that party.

Other jurisdictions also provide exception if one party gives consent and is not shared with others not involved in the conversation, and others allow for surveillance if it’s in the public interest, the paper said.

“This inconsistency results in reduced privacy protections for individuals, and increased uncertainty and compliance burdens for organisations,” the paper said.

“The inconsistency with regard to this exception for participants means, for instance, that a journalist who records a conversation to which they are a party may have committed an offence in one jurisdiction, while the same recording would be permitted in another jurisdiction.”

The ALRC is also proposing a defence for journalists to carry out “responsible journalism” to protect freedom of speech. The ABC made a submission to the inquiry saying that a new statutory cause of action for serious invasion of privacy could threaten journalistic enquiry, artistic expression or open justice.

“For example, secret recording can be used by media organisations in investigative journalism, as well as in comedy and satire,” the ABC wrote in its submission.

“Journalists and media organisations should not be placed at risk of committing a criminal offence in carrying out legitimate journalistic activities. The ALRC has therefore proposed a ‘responsible journalism’ defence to surveillance device laws.

“This defence should be confined to responsible journalism involving the investigation of matters of public concern and importance, such as the exposure of corruption,” read the discussion paper.

In February, the ALRC took part in a round table discussion of the Standing Committee on Social Policy and Legal Affairs on the use of drones and invasion of privacy. Professor Barbara McDonald from the Australian Law Reform Commission said at the time that she received a number of submissions to an inquiry from people who have felt their privacy was invaded due to surveillance technologies and drones, particularly farmers.

Read: Privacy Act lacks sufficient protection against drone invasion. Read: Firefighting, mining sectors see future in drones.

The National Farmers’ Federation (NFF) made a submission to ALRC’s inquiry ‘Serious Invasions of Privacy in the Digital Era’, stating that Animal Liberation used surveillance technology to spy on a farm.

“As demonstrated by the ABC Landline program of 2 September 2013, the interpretation of the activities being filmed on the farm may also be misleading. In the TV program, Animal Liberation were concerned by hens at a free range egg farm not being outdoors,” the submission document said.

“However, when the ABC spoke with the owner, the hens were being wormed and this veterinary practice required them to be kept inside for a number of hours. The ABC later showed footage of the hens outside and the farmer has confirmed to the NSW Farmers that the camera crew returned in the afternoon to film this.

“The Landline program showed the farm owner talking to the Animal Liberation representatives asking them about what they were doing. NFF understands that approaching the drone operator to advise them they are trespassing is one aspect the police would consider when investigating an invasion of privacy. However, if only the drone is visible how it is possible to warn an inanimate object it is trespassing?”

The ALRC is proposing compensation for victims of unlawful surveillance for personal loss.

“While an individual who has been subjected to unlawful surveillance may gain some satisfaction from seeing the offender fined, and while the fine may dissuade the offender from conducting further unlawful surveillance in the future, the victim will generally not receive any compensation or other personal remedy.

“Victims’ compensation schemes are generally available only for serious physical crimes such as assault, robbery, or sexual assault, and surveillance is therefore unlikely to give rise to compensation under these schemes.

“Providing for compensation within the uniform surveillance device laws would ensure that uniform compensation mechanisms existed for victims of unlawful surveillance,” the report said.