IEEE Technology and Society Magazine - Summer 2014 - 42

organizations and individuals are
used to imposing surveillance on
others but are little-used to having
others impose it on them. Contrary
to the optimistic view expressed
in [5], however, the powerful have
considerable capacity to avoid
being monitored.

Relevant Australian Laws
This section establishes a basis for
policy discussions, by providing a
brief survey of Australian law that
does or may relate to PoVS. The
analysis was undertaken based on
a mix of primary sources and readily-accessible and apparently credible secondary sources. Sources of
particular value are [15] and [4].
The analysis commences with a
consideration of how laws relating
to private property affect access to it,
and the use of PoVS devices while

land (i.e., owners or lessees) have
a general right to prevent others from being on, or doing acts
on, their land, even if an area
is freely accessible to the public. That right exists for the nine
Australian Crowns, as it does for
any other owner. So government
property requires no special legislation to create such a right. However, based on that law alone, the
right may need to be exercised,
by declaring that filming on the
property is not permitted, and to
be effective the declaration may
need to be communicated. It is far
from clear whether Australian law
prevents the use of recordings that
were obtained without permission
or in violation of a denial of consent or an instruction not to do so.
The rights attaching to real estate
in Australia do not generally extend

Across Australian States and
Territories, visual surveillance
in public places appears not to
be subject to general prohibitions,
except under a small number
of circumstances.
on private property. The focus is on
observation and capture of images,
video, and audio, with space-limitations precluding much attention
being paid to subsequent use, disclosure, and publication. The article then
identifies extant legislation whose
specific purpose is to preclude some
uses of surveillance devices and/or to
authorize some other uses. The focus
is then switched to the rather different provisions applying in public
places. A further sub-section reviews
laws that are designed to prevent
sousveillance, or that have the effect
of doing so.
PoVS in Private Places
under Australian common law
regarding real property, including
leasehold, the lawful occupiers of
42

to preventing photos from being
taken from outside the property.
Australian government agencies
and corporations sometimes act
as though the law precludes such
photography, but they are seldom
able to quote any legal authority.
There are some specific laws, however, such as that requiring authority to use a camera for commercial
purposes in designated parts of
the Sydney Harbor Foreshores
(such as around the Opera House),
under regulation 4(1)(b). In the
case of military establishments,
the Defence Act (Cth) is relevant,
incl. s.82. In the case of Commonwealth property more generally, the
Crimes Act s.89 applies.
In various jurisdictions, statutes create specific authorizations

and prohibitions relating to the
use of visual surveillance devices
on private property. The Surveillance Devices Act (Cth) includes
provisions that over-ride the rights
of real property owners and permit agencies to use a surveillance
device on their land. The term
"surveillance device" includes a
data surveillance device, a listening device, an optical surveillance
device, a tracking device, and any
combination of them.
under ss. 1-27, any of a number
of law enforcement agencies can
apply for a warrant from a judge
or Administrative Appeals Tribunal member of their choice, from
a select panel (as distinct from the
agency having to take its chance
as to who the duty judge might
be). However, under ss. 28-36, the
agency may in emergencies issue
its own non-judicial warrants. This
is subject to weak ex post facto controls. Warrantless surveillance is also
authorized by ss. 37-40, under various circumstances, such as listening
to or recording a conversation to
which a law enforcement officer is a
party. under s. 37, entry to premises
requires a warrant, but subjecting
activities to surveillance from outside the premises does not. under
ss. 44-48, the surveillance activity
can be not only surreptitious, but the
fact that it was undertaken can be
subsequently suppressed.
The Act's purpose is to authorize
activities by Commonwealth law
enforcement agencies. It appears to
be silent about uses by people other
than law enforcement officers, and
hence does not appear to affect the
use of PoVS technologies by other
organizations and individuals.
In the six Australian States and
two Territories, there have been
two waves of legislation in relation to surveillance devices, and
the situation differs greatly between
jurisdictions. Four States have Surveillance Devices legislation, three
passed over a decade ago and one
more recently: Western Australia
(1998) Victoria (1999), the Northern

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