If a NSW Government agency, local council or university wants to use CCTV in a public place, it must make sure that it is using CCTV for lawful purposes directly related to the agency's functions or activities and that the use of CCTV is reasonably necessary for those purposes
Last week, the NSW Administrative Decisions Tribunal found that that the Shoalhaven City Council had contravened a number of Information Protection Principles (IPPs) set out in the Privacy and Personal Information Protection Act 1998 (NSW) when operating a CCTV surveillance program in the Nowra CBD (SF v Shoalhaven City Council  NSWADT 94).
The Administrative Decisions Tribunal (ADT) found that, in the particular circumstances of that case, 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 when collecting and storing the personal information.
Although the decision is under NSW law, there are broadly similar public sector privacy laws applying to local government in other States and Territories, and agencies and local government elsewhere should be reviewing their CCTV use to ensure it complies with their local laws.
The Council's CCTV surveillance program
Under a program operated by the Council, CCTV cameras installed in the Nowra CBD recorded images which were retained on a computer hard drive located at Nowra Police Station.
The cameras and computer equipment are owned and operated by the Council, however police officers at the Nowra Police Station are able to view live feed footage captured from the cameras. There are signs indicating the presence of CCTV camera coverage in the area where the cameras were located, although not all cameras had a sign near them.
The system, as designed, required the duty officer at the police station to enter a generic user name and password at the commencement of their shift in order to log into the "live feed" monitor, but evidence before the ADT suggested that this process had not been followed.
The ADT proceedings
The applicant, SF, did not consent to being subjected to CCTV surveillance and argued that the process was intrusive and coercive in nature. Following an unsuccessful application made to the Council for an internal review of the CCTV surveillance, SF commenced proceedings in the ADT under the Privacy Act seeking review of the Council's CCTV surveillance.
Does the Council have authority to collect personal information using CCTV cameras?
A preliminary issue arose in regard to whether the Council's use of the CCTV cameras to record images of members of the public in public places complied with section 8 of the Privacy Act that a public sector agency must not collect personal information unless:
- the information is collected for a lawful purpose that is directly related to a function or activity of the agency; and
- the collection of the information is reasonably necessary for that purpose.
The Council argued that local government authorities have an express statutory power to develop local crime prevention plans which make the provision for crime prevention and open space planning and management. The Council contended that it is authorised by statute to collect personal information in the implementation of its crime prevention plan, and that the use of the cameras is "reasonably necessary" for the effective implementation of the crime prevention plan.
The ADT agreed with the Council that section 24 of the Local Government Act 1993 (NSW) allows the Council to install and operate CCTV in public places for crime prevention reasons so long as it follows the process in the NSW Government Policy Statement and Guidelines for the Establishment and Implementation of Close Circuit Television (CCTV) in Public Places.
The ADT found that once it was established that the Council had authority to implement CCTV surveillance, then the other IPPs in the Privacy Act governed the Council's conduct in respect of the personal information collected by the CCTV cameras. The ADT noted that unlike the NSW Police, the Council does not have any broad exemptions from the IPPs.
Compliance with the IPPs
The ADT was satisfied that the Council had collected SF's personal information in the form of his image captured on cameras operating in the Nowra CBD under the Council's CCTV program. The information was stored on a computer located at Nowra Police Station and officers at the police station were able to view a live feed of data from the cameras.
While the ADT found that the Council's CCTV program was authorised, it found that that the Council was non-complaint with a number of IPPs:
- section 10 of the Privacy Act: the Council had not taken reasonable steps to ensure that the subject of the CCTV information collection was made aware of the implications for their privacy of the collection process, and of any protections that apply, before or at the time of collection. Not all the cameras had a sign near them to inform people that their images were being collected. The ADT said increased signage would make it more likely that more individuals would become aware that the cameras are in operation and that personal information is being collected;
- section 11 of the Privacy Act: the Council had not taken such steps as are reasonable in the circumstances (having regard to the purpose for which the information is collected) to ensure that the CCTV information that is collected is relevant to that purpose, is not excessive and is accurate, up to date and complete. The vast majority of the information collected under the Council's CCTV program was "collateral information" and not relevant to the "crime prevention" purpose. There was no suggestion that the Police made any use of the collected information for law enforcement purposes. The ADT also found that the images and footage of SF were of such poor quality that, in any event, the information would be of little assistance for law enforcement purposes, and was not complete;
- section 12(c) of the Privacy Act: the Council had not taken reasonable security safeguards against loss, unauthorised access and misuse of the CCTV information. The use of a generic password rather than an individual user name and password for each authorised user meant that there was no way of knowing who was using the live monitor at the Nowra Police Station. The ADT held that, at a minimum, compliance with section 12(c) would require appropriate training and monitoring of the use of individual user names and passwords to provide an audit trail of users of the system.
The ADT ordered that the Council refrain from any conduct or action in contravention of an IPP or privacy code of practice, and give SF a written apology for the IPP breaches and advise him of the Council's steps to remove the possibility of similar breaches in the future.
What does the ADT's decision mean for me?
- If a Government agency, local council or university wants 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. The CCTV Guidelines provides a policy framework and a set of underlying principles for agencies considering using CCTV;
- More generally, if CCTV is to be used in the workplace in NSW, the employer must comply with the Workplace Surveillance Act 2005 (NSW) which sets out the basis on which surveillance can be carried out. Similar laws exist in other States and Territories.
The NSW Premier has foreshadowed urgent legislation to put beyond doubt the ability of Councils to carry out CCTV surveillance for crime prevention purposes.
You might also be interested in...
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.