Surveillance Laws and Balancing Privacy Obligations South Australian Freight Council Inc (SAFC) October 2018

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1 South Australian Freight Council Inc (SAFC) October 2018 Presentation Name August 2012 Shane Sankey, Partner Wallmans Lawyers

2 2 State Legislation > Surveillance Devices Act 2007 (NSW) > Invasion of Privacy Act 1971 (Qld) > The Surveillance Devices Act 2016 (SA) > Listening Devices Act 1991 (Tas) > Surveillance Devices Act 1999 (Vic) > Surveillance Devices Act 1998 (WA) > Listening Devices Act 1992 (ACT) > Surveillance Devices Act (NT)

3 3 Federal Legislation Surveillance Devices Act 2004 (Cth) > provision for the use of surveillance devices by federal law enforcement officers > does not provide for offences applicable to general members of the public

4 4 The Surveillance Devices Act 2016 (SA) > Commenced December 2017 > In response to the ALRC 2014 Report

5 5 What is a Surveillance Device? The Surveillance Devices Act 2016 s3 > listening device > optical surveillance device > tracking device > data surveillance device > or (e) a device that is a combination of any of the devices referred to in a preceding paragraph; or > or (f) a device of a class or kind prescribed by the regulations

6 6

7 7 The Surveillance Devices Act 2016: Interpretation Listening device a) a device capable of being used to listen to or record a private conversation or words spoken to or by any person in private conversation (whether or not the device is also capable of operating as some other kind of surveillance device); and b) associated equipment (if any), but does not include c) a device being used to assist a person with impaired hearing to hear sounds ordinarily audible to the human ear; or a) a device, or device of a class or kind, excluded from the ambit of this definition by the regulations

8 8 The Surveillance Devices Act 2016: Interpretation Optical surveillance device (a) device capable of being used to observe or record visually (whether for still or moving pictures) a person, place or activity (b) associated equipment (if any), but does not include (c) spectacles, contact lenses or a similar device used by a person with impaired vision to lessen or overcome that impairment (d) telescopes, binoculars or similar devices (e) device of a class or kind, excluded from the ambit of this definition by the regulations

9 9 The Surveillance Devices Act 2016: Interpretation Tracking device (a) a device capable of being used to determine the geographical location of a person, vehicle or thing; and (b) associated equipment (if any), but does not include a device, or device of a class or kind, excluded from the ambit of this definition by the regulations; "vehicle" includes any vessel or aircraft.

10 10 The Surveillance Devices Regulations 2017: Interpretation 11 Tracking devices exemption prescribed circumstances (section 7 of Act) For the purposes of section 7(2)(c) of the Act, the following circumstances are prescribed: a) the Minister responsible for the administration of the Highways Act 1926 may install, use or maintain a tracking device for the purpose of measuring transport system performance; b) information obtained from the use of a tracking device under paragraph (a) must be de-identified so that the information is no longer about an identifiable person, vehicle or thing.

11 11 The Act at a Glance Prohibition Exception The Act creates a prohibition on the use & maintenance of surveillance devices; The Act then provides exceptions to the prohibition on the use & maintenance of surveillance devices; Enforcement Framework The Act provide a framework for enforcement with an array of offences, punishable by fines or imprisonment for up to 3 years.

12 12 The Act at a Glance Prohibition The Act creates a prohibition on the use & maintenance of surveillance devices under specified circumstances; > Listening device Section 6 > Optical surveillance device Section 5 > Tracking device Section 7 > Data surveillance device Section 8

13 13 The Act at a Glance Exception The Act then provides exceptions to the prohibition on the use & maintenance of surveillance devices Many and varied and included: > Consent (implied or otherwise) Section(s) 4, 5, 7 & 8 > Public Interest Exception Section 6 > Licenced and is performing a function Section(s) 4 & 5

14 14 The Act at a Glance Enforcement Framework The Act provide a framework for enforcement with an array of offences, punishable by fines or imprisonment for up to 3 years. > Maximum penalty: > (a) in the case of a body corporate $75 000; > (b) in the case of a natural person $ or imprisonment for 3 years.

15 15 Public Interest Exception Case Law > Channel Seven Perth Pty Ltd -v- "S" (A COMPANY) [2005] WASC 175, Le Miere J provides a detailed analysis of the concept of public interest. > Essentially involves weighing up of the public interest in not publishing- V public interest in maintaining the privacy of private conversations and activity. Public interest is an "illusive concept" [43] and that it involves making a value judgment about competing public interests in the circumstance.

16 16 Public Interest Exception Summary Likely Protect your safety or property where a legitimate treat exists. Unlikely Gain a commercial advantage generally Establish a lie or disprove an allegation Protect the best interest of a child Establish the committal of crime Gain an advantage in a civil proceeding Establish an accurate record of a conversation or event

17 17 Considerations Question Yes No Do you really need to use a device? Are you licensed to use the device? Is the purported use in the course of your duties and authorized under the law in which you are licensed? Is the use in the public Interest or for a lawful purpose or otherwise permitted by law Consider further Consider further Use it Use it Consider not using it Consider if an exception exists, if not, don t use it. Consider if an exception exists Don t use it

18 18 The Privacy Act 1988 (Privacy Act) Surveillance Devices

19 19 Nature of Information Collected The Privacy Act defines personal information as: Information or an opinion about an identified individual, or an individual who is reasonably identifiable: whether the information or opinion is true or not; and whether the information or opinion is recorded in a material form or not.

20 20 Sensitive information Types of Personal Information includes information or opinion about an individual s racial or ethnic origin, political opinion, religious beliefs, sexual orientation or criminal record, provided the information or opinion otherwise meets the definition of personal information Other types of personal information health information credit information employee record tax file number information

21 21 Further Consideration(s) > Are you caught by the Privacy Act Are you an APP entity? If so, are you collecting personal information within the meaning of the Act? > is the information reasonably necessary for, or directly related to, one or more of the entity's functions or activities? > If not, you have a problem > Has the information been collected by lawful and by fair means? > If not, you have a problem

22 22 Further Consideration(s) > If you are an APP entity and are collecting personal information, have you taken reasonable steps to ensure that the person is aware of: > the identity or the organisation and how to contact it > that a person can gain access to their information > the purposes for which the information is collected > other organisations to which the information will be disclosed > any laws that require information to be collected any consequences (if any) for the person if all, or part of the information is not provided. If not, you may have a problem

23 23 Further Consideration(s) > An APP entity that holds personal information about an individual can only disclose the information for a particular purpose for which it was collected, the primary purpose, unless an exception applies. > You need to be aware of the exceptions that apply.

24 24 Further Consideration(s) Policies & procedures in place to ensure: > Collection of information is lawful > use and disclosure of the information is lawful > Quality and security of the information > Access and correction of the information > Disposal or de-identification of the personal information when no longer required.

25 25 Privacy Amendment (Notifiable Data Breaches) Act 2017 Those that fail to notify face penalties including fines > Maximum penalty: > (a) in the case of an organization $1.8m; > (b) in the case of a natural person $360, Surveillance Devices

26 Shane Sankey Partner Wallmans Lawyers (08)