Expansion of the global surveillance grid was dealt a major blow in Australia last week after a legal challenge by an individual against the State of New South Wales brought about a landmark ruling.
A local resident opposed to the introduction of CCTV cameras successfully proved that public surveillance carried out by his city council not only broke Australia’s privacy laws, but also did nothing to prevent crime – the supposed reason for its installation.
This important ruling effectively challenges the legality of public space CCTV in New South Wales and sets a highly significant precedent with far-reaching consequences across the State and potential implications for the rest of Australia.
The legal decision announced on 2nd May 2013 by an Administrative Decisions Tribunal for the State of New South Wales ruled that:
“The Council is to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice;[and]
“The Council is to render a written apology to the Applicant for the breaches, and advise him of the steps to be taken by the Council to remove the possibility of similar breaches in the future.”
The tribunal also ruled that “the expert evidence suggests that CCTV does little to prevent crime,” and that “the Council has not demonstrated that filming people in the Nowra CBD is reasonably necessary to prevent crime.” It also found that “since the Council’s CCTV program was implemented, crime has increased in the Nowra CBD in the categories of assaults, break and enters and malicious damage.”
Full details of the adjudication can be found here.
As a result of this landmark ruling, cameras installed in the city of Nowra, New South Wales have been switched off while the local authority, Shoalhaven City Council and the State government of New South Wales consider their next move.
Adam Bonner, the man who took the council to court, is not a lawyer or a seasoned campaigner, but a local farmer who simply acted on his principles, as he explains:
“For many years, even before I started this whole action back in 2009, I had always believed in a free and fair society that a person should have to consent to have their personal information collected and stored by the state.”
“There is also something very unsavoury about a society that puts more value on seeking retribution and revenge from the 4-5 per cent who offend, than on protecting the privacy and civil liberties of the 95-96 per cent who do not.”
“They should be able to walk the street without having their personal information collected. People should be allowed to have their anonymity.”
So after reading in a local newspaper in 2009 that his city council had been awarded a federal grant to install cameras in the Central Business District of Nowra (Nowra CBD) he took them to court under Australia’s Privacy and Personal Information Protection Act (PPIP Act). An extraordinary two-year legal battle ensued, the details of which make interesting reading here.
Mr Bonner proved to be a formidable and tenacious opponent. He researched and prepared the case himself, and representing himself in court he called expert witnesses to give evidence in support of his arguments and cross-examined both council officials and police officers. He used expert evidence to show that crime in the area had actually increased since the cameras were installed and also pointed to a British Home Office review of 22 studies from Britain and the US that found CCTV “had little or no effect on crime in public transport and city centre settings.” Therefore, he argued, the cameras invade his and everyone’s basic right to privacy for nothing, because CCTV does not reduce crime. The tribunal unequivocally agreed that he had proven his case.
Throughout the protracted legal battle Mr Bonner, a full time poultry egg farmer, wrote letters to local newspapers, organised a petition, issued press releases and gave media interviews while also bringing his case to the attention of fellow campaigners in other countries including the No CCTV campaign group in the UK and the International Working Group on Video Surveillance (IWGVS).
Commending Mr Bonner for his conduct throughout the case, the court acknowledged that “No criticism can be levelled at the applicant in regard to the time taken in concluding the matter. He has been pursuing his rights under the PPIP Act since the Council commenced testing the system.”
Speaking after the decision, Adam Bonner was calm and gracious in his victory, quietly explaining in this video interview what the verdict means for his and other councils in New South Wales:
“It puts other councils on notice because it says to them that if they’re going to spend large sums of ratepayers’ money and taxpayers’ money they need to take notice of the privacy legislation. […]
“This council has been selling these cameras to the community and in other areas of New South Wales as well, and I think councils need to come clean and the evidence both here and internationally is very clear: these cameras do not assist with crime prevention and that was obvious in the evidence submitted to the Administrative Decision Tribunal.”
Last Thursday’s ruling represents a major blow to the expansion of CCTV in Australian towns and cities. The decision has angered local, State and federal authorities, who may have wrongly assumed that the ‘little guy’ could not possibly take down Big Brother in what may have seemed like a David and Goliath-type battle. But succeed he did, fair and square. This is the first time it has been acknowledged that installing council surveillance cameras in the street to film you as you go about your daily business is NOT an effective crime prevention tool – but it IS an invasion of privacy and an erosion of civil liberties.
Within hours of the decision, NSW Premier Barry O’Farrell rushed to defend and protect the very surveillance that Mr Bonner had just proven to be unlawful, rather than the citizens’ rights being infringed by it. Premier O’Farrell is fuming at the prospect that freedom-loving citizens inspired by Mr Bonner’s victory might stop the surveillance state in its tracks, and is now falling over himself to pledge his undying support for CCTV, even if it means he has to ‘change the law’.
So is this how the law works? If the government is shown to be breaking the law it simply re-writes the law? And since the government makes the law, whatever it does will always be ‘legal’? The law should be based on, and have at its core, the essence of what is right and wrong. Instead we have ‘legislation’, comprised of ‘statutory instruments’ and ‘regulations’ designed by governments to grant citizens ‘rights’ that can be ‘qualified’ or changed at any time the governments sees fit – or so Mr O’Farrell believes.
Now we see that the gloves are off and the State government considers no holds barred. O’Farrell and his ilk are prepared to fight dirty to get their way. After all, they know best, surely? By May 7 the government was at pains to tell the media that the tribunal verdict was but a “legal glitch” to be ironed out; not, they suggest, a victory for Adam Bonner and everyone’s civil liberties, but merely a ‘loophole’ that must be closed immediately.
The New South Wales Government claims it is already drafting exemptions to the Privacy Act to ensure that nothing will interfere with the ‘rights’ of local councils to needlessly video innocent people in the street on behalf of the police and ensure the continued promotion and expansion of CCTV cameras in public places, as O’Farrell explains:
“Today the Attorney General has provided me with his advice. It’s that the decision of Friday has exposed a loophole in the state’s privacy legislation. But I can announce that today that loophole will be fixed.”
But first the NSW Premier will have to convince the Australian Privacy Commissioner, Dr Elizabeth Coombs, who according to an article in Government News ‘has effectively put her state’s local government on notice and said that the ADT’s decision “is significant as there will be potential implications for councils across the state,” and that councils must comply with existing Information Protection Principles,” Dr Coombs said, adding that her office was “examining the decision in close detail to better understand the findings and what they mean for the NSW public sector.”
The NSW Privacy Commissioner said her office was also working with the NSW Department of Attorney General and Justice “to provide advice on the principles of the Privacy and Personal Information Protection Act” and these related to CCTV.”
So it remains to be seen what will happen in the days and weeks ahead, but the ADT’s ruling has shaken the State government, and their response to this situation will be just as significant as the verdict that prompted it.
Meanwhile, biased media reporting has described Mr Bonner as “unrepentant” and politicians like Mr O’Farrell, far from offering any sort of apology (which the court ordered) are busy demonising Mr Bonner and suggesting that he will be to blame for any crime that happens in the area – as if the absence of cameras is the cause of crime. “Whether tomorrow or this week, if something occurs that involves an assault on a person, the community outrage will be understandable given this decision,” said O’Farrell.
In all of this one thing seems clear: Adam Bonner’s well deserved legal victory and the patient, fair and reasonable manner in which it was achieved has shown up the NSW State government and revealed its true colours. Mr Bonner, local farmer, campaigner and advocate for privacy and freedom has put his government to shame, and how it responds will reveal much about freedom in Australia today and in the future.
In a beautiful touch of irony, the ruling that prompted such political backlash was made during Australia’s Privacy Awareness Week, an annual initiative of the Asia Pacific Privacy Authorities forum (APPA) to promote awareness of privacy issues and the importance of the protection of personal information. Let’s hope that awareness of the importance of these issues lasts long after Premier O’Farrell and his misguided machinations are forgotten.