By Julian Bajkowski
New South Wales Attorney General Greg Smith is under intense pressure to clarify to what degree local governments can now legally operate surveillance cameras in public spaces following a landmark decision on Friday in the state’s Administrative Decisions Tribunal that has left councils across the state demanding answers.
After a weekend that had Prime Minister Julia Gillard and NSW Premier Barry O’Farrell publicly come out swinging in support of councils’ use of CCTV systems, it is understood that a number local governments are now engaged in crisis talks over how to legally keep their surveillance camera systems operating.
The ADT’s decision has already prompted Shoalhaven City Council to turn off its security cameras in Nowra.
That move resulted from a successful legal challenge brought by a local privacy advocate who the Tribunal said had contended that it was “not lawful for the Council to collect personal information indiscriminately, in circumstances where a very small proportion of the collected information may be of assistance to the Police.”
Mr Smith’s office told Government News that it had requested “urgent advice” on the councils’ operation of CCTV and was waiting on the advice before considering its options.
A key issue the NSW government must grapple with is whether or not it can potentially force through an exemption under existing state privacy laws for councils that are now operating cameras to get them off what could be difficult legal hook.
A wide range of exemptions from privacy protections already exist for most state and federal government security and law enforcement agencies – however these do not automatically extend to councils that provide CCTV monitoring vision and evidence to police.
A critical question that has arisen in NSW councils’ use of CCTV is the difference between ‘law enforcement’ and crime prevention in terms of how the cameras are legally operated – and whether the system has been effective.
Although CCTV remains an overwhelmingly popular technology with authorities and increasingly the public on the basis it enhances public safety and reduces crime, there is still substantial debate among criminologists over whether there is sufficient evidence to merit such a perception.
New South Wales Privacy Commissioner, Dr Elizabeth Coombs has effectively put her state’s local government on notice and said that the ADT’s decision “is significant as there will be potential implications for councils across the state.”
“The decision confirms the submission made by my office highlighting the necessity for councils to comply with existing Information Protection Principles,” Dr Coombs said, adding that her office was “examining the decision in close detail to better understand the findings and what they mean for the NSW public sector.”
The NSW Privacy Commissioner said her office was also working with the NSW Department of Attorney General and Justice “to provide advice on the principles of the Privacy and Personal Information Protection Act” and these related to CCTV.
A big hiccup for councils in the NSW ADT’s decision is the observation that while police are broadly exempt from the state’s Privacy and Personal Information Protection Act and its Information Privacy Principles local governments are not.
“The question arises as to whether the evidence shows that the Council’s CCTV program is ‘crime prevention’ based or whether in practice the program is more appropriately described as ‘law enforcement’ in nature. The evidence requires consideration in order to enliven and interpret the meaning of the words in the statutory provisions.
“Once the Council has established the authority to implement CCTV programs, then the other IPPs in the PPIP Act govern the Council’s ‘conduct’ in respect of the personal information aligned with the operation of CCTV systems. Nothing in the lawful basis for the operation of CCTV provides an exemption from those other IPPs. Unlike NSW Police, the Council does not have any broad exemptions from the IPPs,” the ADT’s decision states.
At face value, those observations draw into question the degree to which local governments in NSW can collaborate with police in both the collection of evidence and how CCTV vision may potentially be used for other purposes.
While different states have differing laws governing privacy (a situation many businesses operating across state boundaries have complained about in terms of their compliance burden), regulators and agencies outside NSW are closely watching legal developments surrounding Shoalhaven for legal precedents that may affect them too.
“We’ll assess the decision very carefully for any implications,” Victoria’s Acting Privacy Commissioner and Commissioner for Law Enforcement Data Security, David Watts said.
In his statement ordering a review of the ADT’s decision, NSW Premier Barry O’Farrell cited the use of CCTV in Victoria to help police catch violent criminals.
“CCTV has proven essential in assisting police most recently in the brutal rape and murder of Melbourne woman Jill Meagher, Mr O’Farrell said.
“CCTV is a vital tool in the fight against crime and I am determined to ensure they remain so. I’ve asked the Attorney General to seek urgent advice on the implications and whether legislative amendments are required to validate the continued use of CCTV.
“I want to see these cameras switched back on in the Shoalhaven as soon as possible,” Mr O’Farrell said.
Australia’s peak privacy advocacy organisation, the Australian Privacy Foundation immediately welcomed the review of the Shoalhaven decision and urged that it include an objective assessment of the evidence available as to the effectiveness, or otherwise, of council CCTV deployments.
A key argument the Privacy Foundation has been making for many years is that the effectiveness, or otherwise, of CCTV systems in terms of evidence gathering and crime reduction needs to be tested so that limited money is most effectively deployed.
In a letter to Mr O’Farrell requesting the opportunity to contribute to the Shoalhaven review, APF board chairman Roger Clarke suggested there was now an opportunity to strike a balance in the public interest.
“It is common ground among all parties that some CCTV schemes, under particular circumstances, and supported by relevant resources on an ongoing basis, are valuable to society and justify their intrusiveness. However a great many schemes do not deliver, and this judgement represents a historical opportunity for a suitable balance to be achieved,” Mr Clarke said.
Delivery challenges in Nowra’s CCTV system are spelled out in abundance and detail in the ADT’s decision on Shoalhaven.
“In my view, the evidence is clear that the images and footage collected in relation to the Applicant are of such poor quality that, in any event, the information would be of little assistance for law enforcement purposes,” ADT Judicial Member Stephen Montgomery wrote in his decision.
“Because of the poor quality of the footage it cannot be said that the information collected is complete. A high proportion of the frames were omitted giving the false impression that the Applicant was skipping rather than walking.
Mr Montgomery’s assessment of evidence on whether Nowra’s CCTV system was effective in reducing crime was also critical.
“The expert evidence suggests that CCTV does little to prevent crime. The data available for the Nowra CBD suggests supports the Applicant’s argument that the Council has not demonstrated that filming people in the Nowra CBD is reasonably necessary to prevent crime.
“In fact, available data suggests that since the Council’s CCTV program was implemented crime has increased in the Nowra CBD in the categories of assaults, break and enters and malicious damage,” Mr Montgomery said.
In April Prime Minister Gillard announced the creation of a $40 million “National Crime Prevention Fund to be funded from confiscated proceeds of crime” to target “crime hot spots” through infrastructure like CCTV and improved street lighting.
Applications for the money opened to councils in the first week of May.
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