IEEE Technology and Society Magazine - Summer 2014 - 45

but s.87D is very weak in this regard.
Further, the onus is nominally on
the individual policeman to justify
their actions, but there is an apparent lack of any real controls. The
repeal of the APEC-specific statute
can be interpreted as having been
a smokescreen for the embedment
of similar powers, but with general
applicability.
Various powers are also
asserted by law enforcement agencies to be available to them under
anti-terrorism laws. In one reported
case in Kings Cross in Sydney, concerning well-known identity Nick
Holmes a Court had his cameraenabled Blackberry confiscated
without apparent justification, and
reports on the case suggested that
previous instances had come to
light [10]. One possible authority is
the offence of resisting or hindering a police officer in the execution
of their duty, under s.546C of the
NSW Crimes Act 1900. A further
possibility is the Anti-Terrorism
Act (No. 2) 2005 - Schedule 5.
The plethora of anti-terrorism laws
passed since 2001 represent a veritable rat's nest of possibilities.

Prospects
This section briefly summarizes deficiencies in existing laws, and identifies
proposals for changes to Australian
laws that have been put forward by
law reform bodies, but ignored. A
framework for a more effective regulatory framework is suggested.
Deficiencies
The scatter of laws identified in the
previous section evidence a range
of deficiencies. It appears likely
that deficiencies of these kinds
exist in the regulatory framework
for PoVS in many jurisdictions.
A general concern is that few
jurisdictions have laws based on
deep analyses and calm consideration of the many competing interests. As outlined in the following
sub-section, for example, several
Australian law reform commissions have conducted studies, but

legislatures have shown little interest in their findings. The pace of
technological change has been
rapid, and this naturally poses
challenges for the law. However,
bureaucratic lawyers in many countries have sought to avoid performing the deep analyses necessary
to address the issues by inventing
a "technology-neutrality" mantra.
This rests on the pretext that law
can be blind to technology and still
be effective.
In many jurisdictions, laws have
been created to authorize some or all
law enforcement agencies to apply
PoVS technologies, frequently with
little evidence in support of the need
for the measures, without open
public debate prior to passage, and
creating excessive powers with inadequate controls. These deficiencies
have been particularly marked since
September 2001, with many legislatures continuing to pass in panic any
Bill that has the term "national security" associated with it.
Another important problem
is the difficulty for the public to
understand what laws exist, and
how they apply to the use of PoVS
technologies. Guidance is signally
lacking in relation both to use by
organizations, and to use by individuals against organizations.
Past Proposals for Change
In Australia, several Law reform
Commissions (LrCs) perform
studies and publish reports, which
are in most cases entirely ignored
by parliaments. In some cases,
specific recommendations may
be lifted out of context and implemented, and in others, weakened
versions may be enacted, sometimes many years after the recommendations were made. The
following LrC reports are known
to have been published:

IEEE TECHNOLOGY AND SOCIETY MAGAZINE

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over 30 years ago, the Australian Law reform Commission appears to have addressed
some aspects relevant to the
issues [1, around para. 1125].
SuMMEr 2014

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almost 20 years ago, the then
NSW Privacy Committee provided recommendations in
relation to surveillance in the
workplace [18]. This gave rise
to a statute in 1998, which was
replaced in 2005 by one of wider
scope but that is highly friendly
to employers and contains very
weak protections for employees.
in 2005, the Standing Committee of Attorneys-General
(SCAG) issued a Discussion
Paper relating to unauthorized
Photographs [19], and large
numbers of submissions were
made in response to it; but like
most SCAG "projects," nothing further happened after that.
in 2005, the NSW Law reform
Commission made recommendations in relation to both
Overt Surveillance (Appendix
1) and Covert Surveillance
(Appendix 2) [17].
in 2008, the Australian Law
reform Commission briefly
discussed surveillance, but
failed to make any recommendations [2]. However, recommendation 74-1 re a Statutory
Cause of Action lists as an
example of a serious invasion
of privacy: ... (b) where an
individual has been subjected
to unauthorized surveillance.
in 2010, the Victorian Law
reform Commission recommended a law and a set of guiding principles for the responsible
use of surveillance devices in
public places [21, Appendix 3].

A Normative Framework
A broad set of principles is needed
for the regulation of surveillance
of all kinds. One such set was
proposed in [6], and subsequently
applied specifically to visual surveillance [3].
The following are proposed as
the key requirements:
1) Justification. A clear explanation must be provided by the
proponents, showing why the
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Table of Contents for the Digital Edition of IEEE Technology and Society Magazine - Summer 2014