The consultation took place amid expressions of concern in several jurisdictions about intrusive behaviour by investigators for insurers and other finance sector entities, reflected in a recent commitment by the Financial Services Council that its members would not break the law. That commitment, although presumably heartfelt, needs to be read in conjunction with issues highlighted in the issues paper. For example, in particular jurisdictions protection against non-government surveillance is dependent on the type of surveillance device rather than inappropriate intrusion per se.
The consultation is likely to lead to statute reform in the Territory, potentially including amendment of the Listening Devices Act 1992 (ACT) and the workplace privacy statute. As the title suggests, the devices statute is limited; it does not cover optical, geospatial tracking and data access devices/applications. The Territory workplace privacy regime does not extend beyond workplaces. Weak coverage, alongside the absence of recognition of a statutory cause of action for serious invasions of privacy, means that some disregard of the privacy rights inherent in the Human Rights Act 2004 (ACT) and international privacy conventions will be inadequately addressed, if at all, under tort law and the Crimes Act 1900 (ACT).
The issues paper offers sensible recommendations, including establishment of a broad Surveillance Act, potential restriction of communication of the results of inadvertent observations made via drones and other devices, recognition of public interests on the basis of proportionality and necessity, and emphasis that the restriction of tracking should centre on principles rather than on specific devices/uses.
The consultation unfortunately lacks the courage of the Government’s stated human rights convictions, forgoing the opportunity to propose an effective Territory statutory cause of action for serious invasions of privacy, aka the ‘privacy tort’. It is a lost opportunity and a more forward-looking government, perhaps undistracted by the parochial concern with light rail that dominated the October election, might have explored a comprehensive privacy statute that would serve as a benchmark for law reform in other jurisdictions.
BRUCE BAER ARNOLD teaches law in the School of Law and Justice at the University of Canberra.