7 August 2003
This document is at http://www.privacy.org.au/Media/MR030807.html
Concerns have been expressed about the use of cameras in mobile phones resulting in invasions of privacy. Many uses of these devices are reasonable, but others are not. Does existing law cope, or do we need new law?
Optical surveillance, the recording of images, and the publication of images generally fall under State and Territory jurisdiction (at least where the act is performed by an individual, a business, or a State or Territory government agency). If an image becomes part of a collection held by a business, then it may become subject to the Commonwealth Privacy Act, and the purview of the Federal Privacy Commissioner.
To the extent that there are laws in place that set balances in relation to video-surveillance, those laws need to be checked to see whether they work in the new environment.
To date, 3 of the 8 States and Territories have enacted laws that regulate optical surveillance of what they refer to as 'private activities'. W.A., Victoria and N.T. have contemporary 'Surveillance Devices' statutes, whereas the other States only have 'Listening Devices' legislation. For further details, see below.
Questions must be asked of all State and Territory Attorneys-General, to find out what laws they think protect people's privacy in these circumstances.
This should lead to the recognition that privacy laws are needed that provide people with protections wherever they are, and especially where they have a reasonable expectation of not being observed. As with any other privacy right, the details of the protections should of course be balanced against other interests.
Generally, see the Foundation's web-page on Privacy Laws of the States and Territories of Australia
Western Australian Surveillance Devices Act 1998, s.6:
"a person shall not install, use, or maintain, or cause to be installed, used, or maintained, an optical surveillance device --
(a) to record visually or observe a private activity to which that person is not a party; or
(b) to record visually a private activity to which that person is a party".
Victorian Surveillance Devices Act 1999, s.7:
"a person must not knowingly install , use or maintain an optical surveillance device to record visually or observe a private activity to which the person is not a party , without the express or implied consent of each party to the activity".
Northern Territory Surveillance Devices Act 2000, ss.5-6:
"A person must not attach, install, use, maintain or retrieve a surveillance device [without consent - but the details are fairly complex]"
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Created: 7 August 2003
Last Amended: 7 August 2003
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