When Jeremy Bentham devised his panopticon, a prison structure where a guard in a tower could see inside all the cells to encourage the inmates to believe they were always being watched, he may not have envisioned a future where CCTV surveillance was commonplace. Although society has not quite reached the stage of George Orwell’s 1984, the power of Bentham’s structure poses an interesting question: in a free society, who has the right to watch who?
One man took Shoalhaven City Council to court on the matter last year and on 2 May 2013, the Administrative Decisions Tribunal of New South Wales ordered the council to “refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice”, effectively forcing the council to cease operation of its CCTV network in the Nowra central business district.
Citizen Adam Bonner, identified as SF in the case, stated that the council had captured his image in contravention of the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’). Bonner’s case rested on three perceived breaches, including the unlawful recording of his image in a public place and its retention at Nowra Police Station, the notion that policing was a State responsibility hence the questionable involvement of the council in this act and, should the use of the cameras be found lawful, that recording images was not directly related to the council’s responsibilities and functions.
The council countered Bonner’s statement, arguing that local Government authorities had the right to develop local crime prevention plans and therefore also had the right to collect personal information, such as images of people, in order to implement these plans.
The tribunal found in favour of Bonner, essentially indicating that the council, although it had the right to operate the CCTV cameras for crime prevention, did not follow the correct procedures to do so and did not have exemptions related to surveillance that law enforcement bodies, such as the NSW Police, had.
Procedures related to the collection of personal information include:
1. Adequate notification, for example signage, that personal information is being collected and for what purpose;
2. That the information collected is relevant to that purpose, is not excessive and is accurate, up-to-date and complete; and
3. Reasonable security safeguards against loss, unauthorised access and misuse of the CCTV information.
Shoalhaven City Council failed on these three counts because not every camera had signage nearby both indicating the presence of the cameras and stating their purpose was to prevent crime; because the use of the CCTV footage was never actually used to prevent crime and the tribunal deemed the image quality so poor it could never be used for law enforcement; and because staff at Nowra Police Station could access the CCTV feed using a generic username and password, which meant there was no audit trail for who had access to the footage and whether they had proper training and authority to view it.
“While the council had authority to collect personal information using CCTV cameras operating in a public place, the council had not complied with the IPPs [Information Protection Principles] when collecting and storing the personal information,” wrote Avinesh Chand and Zac Chami of law firm Clayton Utz on the case.
Had Nowra Police Station been the organisation behind the system, Bonner may have had less of a case. As it turns out, the tribunal found an interesting segment of the law that received enough attention to enter NSW Parliament.
Not wrong for long
Following the tribunal’s finding, NSW Premier Barry O’Farrell pushed through urgent legislation on 17 May 2013 to provide councils with an exemption to the PPIP Act to allow local government similar powers to law enforcement agencies. O’Farrell commented, “The NSW government had no intention of allowing this tribunal decision to undermine police efforts to reduce crime on our streets. CCTV is a vital tool in the fight against crime.”
This differs from the perspective presented by Parliamentary Secretary for Justice David Clarke MLC, who, in November 2013 wrote on behalf of the Attorney General Greg Smith to Member for Wagga Daryl McGuire about the ‘limited evidence to support CCTV as an effective crime prevention tool’.
Clarke stated that the Crime Prevention Division did not fund CCTV projects for this reason. “While CCTV infrastructure has been shown in some environments to act as a deterrent to offending behaviour, the evidence is limited,” he wrote. “It is also important to note the prohibitive costs associated with installing, maintaining and actively monitoring an effective CCTV system with adequate coverage for the purpose of crime prevention.”
A twist in the tale
On 27 May 2013, Greens Upper House MP, David Shoebridge, gave notice of a disallowance motion to overturn the legislation. Shoebridge has urged the NSW Government to reinstate the privacy requirements with regard to collecting personal information via CCTV.
“If this motion is successful it will not prohibit councils from having CCTV, it will just mean they have to comply with requirements in the Privacy Act and have a basic level of competence in their operation,” he said. “Apparently the government thinks that even this moderate requirement is too onerous where increasing CCTV surveillance is concerned.”
Shoebridge echoed Clarke’s letter in noting that CCTV alone was not a solution to crime but, if used, should at least be ‘useful, fit for purpose and respect the privacy laws’.
Chand and Chami agree with these principles. “If a Government agency, local council or university want to use CCTV in a public place, it must make sure that it is using CCTV for lawful purposes. For NSW Government agency, local council or university, this means that it must be for lawful purposes directly related to the agency’s functions or activities and that the use of CCTV is reasonably necessary for those purposes. A NSW Government agency, local council or university must comply with all of the applicable IPPs as CCTV will usually capture images of individuals and therefore have privacy risks.”
It will be most interesting to see what now will unfold in NSW Parliament.