Submission from the Australian Press Council to the NSW Law Reform Commission in response to its Report 98, Surveillance: An Interim Report.

July 2002 and 13 June 2003

Original submission - July 2002
Supplementary submission - June 2003

Introduction

The Australian Press Council is opposed to the introduction of any legislative regime for surveillance regulation along the lines suggested by the Law Reform Commission in the recommendations in Report 98. The commission has failed to establish a need for such wide-ranging and draconian legislation. These proposals would adversely affect the ability of the media to report and comment on matters of public interest and public concern.

The Council, which oversights the ethical standards within the print media, also administers the Print Media Privacy Standards under the Privacy Act (Cth). That Act exempts from its purview the journalism activities of media organisations which publicly subscribe to a privacy code. The Print Media Privacy Code, as well as the Council's Statement of Principles, regards as unethical the gathering of news by unfair or dishonest means or by the invasion of individual's privacy. By and large, the print media respect such provisions, as demonstrated by the low number of complaints received each year by the Council on such matters, fewer than 5% of complaints to it are about invasion of privacy and a very small proportion of these are about invasions by means of surveillance devices. Similarly, the most recently available statistics from the NSW Privacy Commissioner indicate that only 1.6% of complaints received by his office arise from intrusions by the media.

Polls and complaints overwhelmingly indicate that the public main concern with respect to privacy invasions is through the proliferation and cross-matching of databases. Yet the commission's recommendations specifically exclude such overt collection and matching of information on databases from the proposed purview of the surveillance legislation.

In the absence of a demonstrable need to reign in some perceived concerns with the operations of current legislation restricting the use of surveillance devices and the recently amended Commonwealth Privacy Act, which deals with many of the issues on the use, retention and dissemination of information obtained by means of privacy invasions, the Council does not understand the need for such wide-ranging and potentially dangerous provisions as proposed by the commission.

Definitions

The definitions provided in the recommendations are not only circular but dangerously vague. 'Surveillance' is defined as the 'use of a surveillance device' where there is a deliberate intention to monitor a person, group, place or object for the purpose of obtaining information, whether overt or covert, whether in a public or a private place. 'A surveillance device' is any instrument, apparatus or equipment used alone or in conjunction with other equipment 'to conduct surveillance'. This manages to provide complete circularity and no genuine definition. The proposals also define 'monitor' as to watch, record, collect (or enhance the ability to listen to, watch, record or collect) words, images, signals, data, movement, behaviour or activity.

Among the activities that such definitions would define as 'surveillance' would be any use of binoculars at sporting events or opera glasses in the theatre; the use of long-lens cameras to capture images of sporting events; the use of wide-angled shots of localities which might inadvertently include individuals or identifiable groups; the use of cameras (whether with long lenses or not) in public places; shooting wedding or Bar Mitzvah videos; any and all webcams; and a vast range of other activities, many of which would not be seen as remotely threatening to the privacy of individuals. In fact, on a 'black letter' reading of the definitions, the use of contact lenses, hearing aids and, even, cochlear implants could be seen as covert surveillance, even in public places.

The Council argues that the proposed definitions are circular and vague to the extent that they would bring into the purview of any such regulation of surveillance many activities which should not be so included.

Dangers to current media practice

The media perform a function vital to the operation of a free and democratic system. They provide information required by the public in order for it to exercise its functions in relation to the election and recall of governments and its oversight of the proper operation of the society. The media needs to be able freely and fairly to report, and comment on, possible threats to the society, whether political, social or economic. In fulfilling this role, the media need from time to time to gather information which other interests in the society want to keep secret. This occasionally involves the use of surveillance. The proposals in the commission's report pose a danger to current media practice including, but not confined to, restrictions on reporting and photography in public places.

The proposals would make uncertain the ability of the media, and others, to observe and report on the behaviour in public places of public figures. For example, photography of, say, members of the judiciary meeting with criminals at a race meeting, or of senior figures in a political party meeting surreptitiously for the purpose of conspiring with business people to concoct evidence against a rival politician. There is no doubt that the reporting of these matters would be clearly in the public interest. Were such activities to take place in the public arena, there is currently no restriction on such reporting, save the provisions of the Press Council's Principles and Privacy Code (and similar provisions in electronic media codes of practice), which ensure that the free press is a responsible press. Yet the proposals would require that the media, before undertaking such observation, even in public places, would need to embark on a complex and bureaucratic process to seek approval, or would need, post facto, to justify the actions to a court or some bureaucrat.

This would result in the intrusion of politicians, ombudsmans, Privacy Commissioners, judges and others into the news process, a development which is directly contrary to the interests of a free and responsible press. It also directly conflicts with the provisions of the Privacy Act (Cth) which recognises an exemption for media organisations in the journalistic role from the provisions of that Act. Requirements to justify their actions before or after public interest intrusions using surveillance devices, including the need to report in writing to the Attorney-General or the need to submit to searches by an inspecting authority, would further limit the ability of the media properly to fulfil its role as a provider of information to the public necessary for the proper function of a democratic society.

The requirements in the proposals would make much more difficult the use of surveillance to expose illegal or unethical conduct by directors of a public company, or by public officials, and provide the rich and powerful in our society with yet another weapon to use in their attempts to limit proper scrutiny of their actions.

Other concerns

While it has a general concern with the overall effects of the proposals, the Council is particularly concerned with a number of recommendations in the Report.

Recommendation 81 proposes a general prohibition on publication of material obtained by surveillance except in certain circumstances. The Council would argue that such blanket restrictions on a free press is contrary to the best interests of a free society and that publication of information in the public interest should always be permissible.

Recommendation 87 which mandates the destruction of material obtained by surveillance in a large number of situations is contrary to the interests of a free and responsible press which uses archival material as the basis of future stories. Similarly, it is contrary to the interests of those with an interest in writing the history of a society. The default position should always be that material be retained in archives, not destroyed.

Recommendation 92 gives powers to make a complaint to the Privacy Commissioner over a matter related to surveillance. This is again in direct conflict with the media exemption in the Commonwealth Privacy Act. Under that act, while the Privacy Standards are adhered to, the Privacy Commissioner has no power to review alleged media intrusions.

The underlying theoretical basis for the proposals is that personal privacy should be the paramount concern and surveillance can only be justified when there is a greater public benefit. The Council would argue that the public interest is the paramount concern in a large number of instances where surveillance is used by the press for the gathering of information. In such cases, the public interest in information relevant to the proper running of society must take precedence over the private rights to privacy, where those rights are being abused, and where illegal, unethical or dangerous conduct is being covered up. 'Public journalism' is the name given to a more active form of journalism that involves itself in public campaigns for the betterment of society. An article from the February 1997 APC News on this movement wass attached for information.

Conclusion

The report's recommendations would have the effect of making it more difficult for the media to inform the public on matters of public interest and concern. They would make the role of a free and responsible press more onerous and lead to the likelihood that unethical and illegal conduct would not be reported, to the detriment of the society. As they are recommendations addressing an issue where there is no demonstrable need for more draconian legislation, the Council would argue that they should not be proceeded with.

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Supplementary Submission - 13 June 2003

The Australian Press Council has made an earlier submission on the NSW Law Reform Commission's report on surveillance.

The Commission at its meeting with representatives of the Press Council and of other media organisations sought additional input from the Council on two major issues, which the Council has been considering. These issues were:

• The reasons for granting the media special status in the consideration of any new surveillance legislation; and
   
• The effect, if any, of a similarly phrased law in Western Australia has had on the activities of the media.

A media exemption

The Council again submits that, on the basis of the commission's report, and on the basis of the continued successful operation of extant surveillance devices legislation in NSW, there is no need for new surveillance legislation in NSW. However, the Council would add that, if the commission were to recommend such legislation, the proposal should contain a clear and unequivocal "media exemption" along the lines of that introduced into the Commonwealth Privacy Act by the Privacy (Private Sector) Amendment Bill 2000.

The reasons for such an exemption, which excludes from the purview of the Act, material gathered by media organisations in the course of their journalism activities, were given by the federal Attorney-General, the Hon Daryl Williams QC MP in his second reading speech to the Bill:

The media in Australia have a unique and important role in keeping the Australian public informed. In developing the Bill, the government has sought to achieve a balance between the public interest in allowing the free flow of information to the public through the media and the individual's right to privacy. In order to achieve this balance, the Bill does not apply to acts and practices of media organisations in the course of journalism.

A range of other provisions in the Bill also recognise the important role of the media in facilitating the free flow of information to the public.

The Council believes that this summarises the media's unique position. In a society, such as Australia, which has no express guarantee of free speech, or a free press, it is particularly important that legislation does not further restrict the ability of the press (already constricted by defamation, contempt and other laws) properly to report matters of public interest and concern.

Under the provisions of the Commonwealth Privacy Act, media organisations have to subscribe publicly to a set of standards on privacy practice. While a few companies, which combine print and electronic media, have developed their own code, the overwhelming majority of print media organisations subscribe to the Australian Press Council standards. Those standards, which were appended to the Council's earlier submission, underline the print media's commitment to self-regulation of their information gathering activities. Further legislative coercion is not required.

The Western Australian Surveillance Devices Act 1998

The Council has been discussing the remit and operation of the Western Australian surveillance law with its Western Australian affiliates. The offences created under this Act relate to installing, using or maintaining listening devices to record, monitor or listen to a private conversation, or optical surveillance devices visually to record or observe private activity or to attach, install, use or maintain a tracking device to determine the geographic location of a person or object. "Private activity" does not include an activity the parties ought reasonably expect may be observed; "private conversation" is defined similarly.

Therefore, there are immediately differences between the WA law, which deals with 'private' matters and the commission's proposals which deal with surveillance, either overt or covert, either in public or private.

In the WA Act, there is provision for devices to be used 'in the public interest' which is defined in the Act and a provision for use in urgent circumstances and in the public interest, which uses have to be subsequently reported to a judge.

According to local newspapers, the effect of the legislation on reporters and photographers has been 'intangible'. When investigating a story which has overwhelming public interest the Act's provisions have not altered the course of the investigation. To date, the Act has not prevented the publication of any photograph. The West Australian has made only one application for publication under provisions of the Act (in the case of the Kizon/Petrelis audio tapes, a private conversation of over-riding public interest. The court granted an order anabling publication of the transcript but also ordered that transcripts and tapes be sent to police.

While the provisions of the WA Act do not go as far as the commission's proposals for NSW, it is worth noting the words of The West Australian's deputy editor in regard to these audio tapes: "The need to make formal application to the court required significant expenditure on legal costs and delayed the publication of the story for several days."

It would appear that the WA Act is not a good parallel for the commission's proposals but, even in that less stringent form, the Act could have the capability of restricting the reporting of news through cost or time delays.

Lenah Meats

The Council notes that, since the passage of the WA Act, a High Court decision has changed the situation. In the Lenah Meats case, the Court held that the ABC was able to broadcast material gained through covert surveillance. In this case, the circumstances included the public interest in the material and the fact that the broadcaster was not itself responsible for any trespass or for the covert surveillance.

Charter of a free press

The Council draws to the commission's attention its recently adopted Charter for a Free Press in Australia, which is also appended. In particular it draws the commission's attention to principle 6. It does not believe that the commission has established in its report that the public interest would be better served by the restrictions on a free press proposed than it would be by a continuation of the current regime.

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See also
Index on privacy material
2001-2 Freedom of the Press Report- privacy
for the current state of the law: Press Law in Australia

Return to
Submissions list
Freedom of the Press overview

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