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- 9 December 2004
Law Enforcement (Powers and Responsibilities) Amendment (In-car Video Systems) Bill
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Page: 13734
Second Reading
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [8.04 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
I am pleased to introduce the Law Enforcement (Powers and Responsibilities) Amendment (In-car Video Systems) Bill 2004.
One of the Recommendations of Justice Wood of the Royal Commission into the NSW Police was that all dealings between police and citizens be electronically recorded.
The In-Car Video system (ICV) comprises both digital video and audio components capable of recording interactions between police and the community.
The significant benefits of ICV are that it enhances officer safety and provides an accurate independent witness to events, protecting both police and members of the public against unfounded allegations of improper conduct and behaviour.
Currently there is no prohibition on the recording of video images in NSW. However, recording conversations by means of a listening device is an offence under the Listening Devices Act 1984 unless both parties consent.
The bill therefore creates an exemption from the Listening Devices Act to enable police to use ICV to audio-record interactions with members of the public regardless of whether consent is given.
I would now like to describe the technical aspects of the ICV system. The system consists of two video cameras, a recorder, a monitor, a wireless microphone and control mechanisms to allow an audio and video recording to be made.
One camera is able to point forward, the other backwards. The monitor and control centre are mounted within easy reach of the driver's seat. A wireless microphone is worn on the lapel of an officer to allow the audio recording of events outside the car.
The ICV system commences recording automatically when the primary lights are turned on, the alert button is pressed or the radar is locked on. Additionally, the ICV system can be manually activated via the master switch or the remote microphone.
Approximately 350 highway patrol vehicles will be fitted with ICV with the rollout to be completed by mid 2005. ICV is not only limited to highway patrol officers but will extend to any police officer using a vehicle fitted with ICV.
ICV has been trialled in the Holroyd Local Area Command and the results are encouraging. There have been no negative comments from members of the public in relation to the use of ICV and since the pilot commenced there have been no complaints in relation to officer behaviour.
I would now like to take the opportunity to address the specific features of the bill.
Where highway patrol vehicles have been fitted with ICV it will be a requirement that ICV record any situation where that vehicle is pursuing or otherwise following another vehicle with the intention of stopping or detaining that vehicle. This would include traffic stops or situations where a highway patrol car is required to intercept a vehicle escaping from the scene of a crime.
Additionally, ICV will be used in situations where a vehicle has been pulled over and police are investigating an offence arising out of that stop. The offence may not necessarily be traffic related but may be, for example, drug related.
The use of ICV will also include Random Breath Testing where an officer is conducting such stops within the immediate vicinity of their police vehicle.
Any police officer, not just the driver of a particular police vehicle, will be able to utilise the ICV system.
Whilst the bill removes the necessity for consent to the audio recording this does not mean that the recording will be done in secret. Either immediately before recording of a conversation commences or as soon as practicable after recording has commenced police will be required to inform members of the public that their conversations are being audio recorded.
There will be no compulsion on individuals to answer police questions.
Once an officer arrests a person, the audio component of the ICV system must be turned off at the first reasonably practicable opportunity. The inclusion of the wording 'the first reasonably practicable opportunity' is intended to ensure police officers' safety. If an arrested person is violent towards police and has to be subdued then an officer must be able to contain that person before switching off the audio component of the ICV.
Similarly, if the arrested person is part of a group and police are continuing to exercise investigative or other powers in relation to that group or vehicle it will, under this bill, be permissible for both components of the ICV to continue recording as long as the arrested person is removed from the area that is being captured by the ICV.
It is important to understand that the use of the term 'arrest' in this bill, for example at section 108E, means the officer telling the person that they are under arrest and not just by the fact of the person's vehicle being pulled over or detained. This is the same position taken under Random Breath Testing legislation where the police officer's use of stop and Random Breath Testing powers does not constitute an arrest (until the person show positive).
A person is not under arrest merely because their vehicle has been pulled over and they are being audio and visually recorded by ICV. It is clearly intended that ICV be used to audio record the initial or 'front end' interaction between an officer and a member of the public.
Persons who have been recorded on ICV will be able to view the recordings at a police station.
Recorded events will be stored for a minimum of 2 years.
In conclusion this bill will ensure that police are able to audio record conversations via the use of ICV regardless of whether all parties to the conversation consent. The proposed legislative improvements will enhance officer safety and provide an accurate record of events capable of protecting both police and members of the public against unfounded allegations of improper conduct and behaviour. I commend this bill to the House.
The Hon. DAVID CLARKE [8.05 p.m.]: The Law Enforcement (Power and Responsibilities) Amendment (In-car Video System) Bill is not opposed by the Opposition, and I will not speak on it at length. The bill provides the legal basis for police vehicles to be fitted with the in-car video system, which consists of a digital video and audio components that will assist police in obtaining evidence relating to police pursuits by, among others, highway patrol officers. The bill flows from a recommendation made by the Wood Royal commission into the New South Wales Police that dealings between police and citizens should be recorded electronically.
The specific purpose of the bill is to amend the Law Enforcement (Powers and Responsibilities) Act 2002 to require the use of police in-car video equipment [ICV] when the police vehicle fitted with equipment is being used for police activities involving the following of a vehicle with the intention of stopping a vehicle, or involving a vehicle and the driver and occupant of a vehicle that has been stopped or detained by police; to require ICV equipment to be used to record any conversation the driver of the police vehicle has with a person who is the driver or occupant of a vehicle stopped or detained after informing the person that the conversation will be recorded, subject to the proviso that a conversation with the person is not to be recorded after the person is arrested; and to protect recordings made with ICV equipment from unauthorised or corrupt disclosure.
The bill is a step in the right direction. It will assist police in the discharge of their duties, and it will serve to give greater protection to members of the public. It will serve to protect both police and the public from allegations of improper conduct. It will assist in providing better evidence for court proceedings. It will assist in evidence for police pursuits. It will provide safety benefits to police, and it will provide anticorruption processes that will benefit the public. The bill creates an exception from the Listening Devices Act 1984 to enable police to use the new IVC system to audio record police dealings with members of the public regardless of whether consent is given. The IVC is a technically advanced system, which will bring significant improvement to this area of police work. It should have a major impact. The Minister for Police has announced that 344 highway patrol vehicles will operate with the system by the middle of 2005.
It is unfortunate that calls for the installation into police vehicles of video cameras have gone unheeded in New South Wales for 10 years, during which time the police and the public, whose interest in this area should be in alignment, could have received a great benefit. Be that as it may, we now have the legislation and it must be supported. Many other recommendations have been made over the years by appropriate bodies that also would assist the police highway patrol in their work. Some of these have been outlined elsewhere by the shadow Minister for Police, Peter Debnam. The Minister for Police now needs to turn his attention to these other pressing areas. All in all, the bill will be of significant benefit in the detection of crime, the provision of evidence and the protection of the rights of members of the public.
Ms LEE RHIANNON [8.08 p.m.]: The Greens have a number of concerns with the privacy aspects of the bill and we will move several amendments in Committee. To avoid any misunderstanding, I emphasise that our amendments will not knock out the substantial aspect of the bill, which is the videoing from a police vehicle. However, they will put in place privacy requirements. Our main concerns do not relate to the technical aspects of the capturing of footage with the in-car video system, nor the principle of using the system to record police interaction with the public. Our real concerns centre around the lack of thought given to how the footage would be stored, how it would be retrieved, for how long it would be kept and how the police department would manage the many potential misuses of the footage.
In his second reading speech the Minister referred to the way in which the in-car video system will protect both police and members of the public. I question how much consideration has been given to protecting the public's right to privacy. As I understand, the Government will not support my amendments. I would be interested to hear the Minister's comments on this point. It is very important that he share with us how the public's right to privacy will be protected. Currently, police enjoy huge exemptions to the State's privacy legislation via the grey areas created by their privacy exemptions for all but administrative and education purposes. This bill widens that grey area by failing to place limits on police use of this system. By not building proper restrictions into this bill the Government has left the people's right to privacy open to abuses, whether it was unintended or otherwise.
I get the feeling that this has been an oversight. It seems to be one of those pieces of legislation that the Government has put together hastily and the basics are not covered. The Greens amendments are an attempt to instil measures that will bring some clarity to the administration of this system and to try to restrict the potential misuses of this footage. We should acknowledge that the potential for misuse is very real. We have all seen enough examples of that ourselves. The bill should have specified more closely the ways that the footage could be used. However, accepting that the footage will be gathered, I have more important concerns about the way the footage will be stored and used.
Let us not get carried away with the idea that an audiovisual record will serve as irrefutable evidence. Video lies. It can distort the truth and it can be doctored. Let us not forget that a police officer can "accidentally" turn off the camera or step out of the frame of the video. Whatever the merits of gathering this footage, we strongly believe that once the footage is stored in a database its use should be limited to the monitoring of police. That is what we have been told is the main intent and there should be mechanisms in place to ensure that is the case. The Government's briefing implied that was the case, but the bill does not go far enough to make sure it is limited to that use. Once the footage is stored as digital media in a database, it can be searched and reused many years down the track for police purposes and for other unrelated and unintended purposes.
For example, an insurance company could seek to use the footage to try to prosecute someone. The Roads and Traffic Authority could use it to try to revoke a person's driver's licence. The footage could be used in civil proceedings against the police. It could be leaked to the media or sold to the media in years to come. Times change, and if these audiovisual records are permitted to languish in a police database, they could be used for strange purposes in years to come. One day you might find yourself in an episode of "Australia's Funniest Police Stop and Searches". The bill does not adequately address these potential other uses for the footage. The Greens amendment addresses citizens' rights to privacy. Our amendments ensure that audiovisual records are not used for any purpose other than for the monitoring of police and that the footage that is not used in any proceedings is destroyed after two years. If footage is used in police proceedings, it is reasonable to keep that footage. The Greens allow for that. However, if footage is recorded but never used, it seems reasonable that the footage is destroyed after a period of two years.
The other major privacy concern that is not spelt out in the bill is the way that citizens' names will be associated with these digital audiovisual files that will be stored in a police database. Let me give an example of what could happen. Mr Hatzistergos could be a passenger in a car that is pulled over by police. I do not believe Mr Hatzistergos would want that footage stored in a database with his name linked to it. When a police officer looks up "Mr Hatzistergos" in the database the footage pops up.
The Hon. John Hatzistergos: Why do you single me out?
Ms LEE RHIANNON: Because I thought that you might respond, as you have.
The Hon. John Hatzistergos: I know I am one of your favourites.
Ms LEE RHIANNON: Why do you assume you are one of my favourites?
The Hon. John Hatzistergos: I can see that.
Ms LEE RHIANNON: How can you assume these things?
The Hon. John Hatzistergos: It is a process of osmosis.
Ms LEE RHIANNON: You must not have listened in your biology lessons, because you are way off the mark when it comes to osmosis.
The Hon. John Hatzistergos: Did you actually put my name in your speech?
Ms LEE RHIANNON: Yes, I thought about it, quite a lot. It is a very good example.
The Hon. John Hatzistergos: It is a bit terrifying.
The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! I remind Ms Lee Rhiannon that she should address her comments to the Chair and not to individual members. Members should not interject to distract the member with the call.
The Hon. John Hatzistergos: I was provoked.
Reverend the Hon. Fred Nile: She is quoting his name all the time.
The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! The reference was in a hypothetical sense and, therefore, was not a breach of the standing orders. Ms Lee Rhiannon should ignore interjections.
Ms LEE RHIANNON: Thank you, Madam Deputy-Chair, for your ruling.
The Hon. John Hatzistergos: You could be in the car too.
Ms LEE RHIANNON: That is even more interesting—Mr Hatzistergos and Ms Rhiannon in a car together.
The Hon. John Hatzistergos: That is not likely.
Ms LEE RHIANNON: You are the one who suggested it, not me. Similarly, I do not think Mr Hatzistergos would want other government agencies down the track being able to access that record either. So the Greens amendment seeks to tighten up the rules governing whose details get associated with or linked to these files when they are stored in the database. I hope that other members will see that this bill is not straightforward, as the Opposition members hoped when it was debated in the Legislative Assembly on Tuesday. I urge members to recognise the serious privacy implications contained in this bill, to question the Government's motives for trying to push this bill through, to support the Greens' attempt to restrict the potential misuses of this footage and to better protect the public's rights to privacy. I emphasise again to members it is not about knocking out the in-car videos; it is about getting much-needed privacy requirements in place.
Reverend the Hon. FRED NILE [8.16 p.m.]: The Law Enforcement (Powers and Responsibilities) Amendment (In-car Video) Bill 2004 is a simple bill. It will require the use of police in-car video equipment when a police vehicle fitted with the equipment is being used for police activities involving the following of a vehicle with the intention of stopping the vehicle or involving a vehicle and the driver or occupant of a vehicle that has been stopped or detained by the police. This is a most important piece of legislation. I am looking at it from a completely opposite direction than the previous speaker. The provisions of the bill will provide protection to police, who have had many false accusations made against them. Investigation of such complaints involves many hours of time of the Ombudsman or other investigative bodies who finally decide that there is no basis for the complaint. This bill will short-circuit that complaints system by proving there is no evidence as a basis for the complaint.
One of my sons was a highway police officer. The highway police regularly had false complaints made against them by drivers they stopped for speeding and other offences. The offenders would reverse the situation and accuse the police officer of using bad language or being heavy-handed, trying to intimidate the police who were carrying out their duties. I see this technology as a very important process that will enable the police to carry out their duties fairly. Obviously, there is no way in which they can abuse their role, and I do not believe that the majority of police do. This bill will stop those frivolous and phoney complaints that are made against police officers.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.18 p.m.]: Justice Wood is highly respected in his quest to eradicate corruption from the police force. His recommendation to make all dealings with police transparent in that a record exists by the use of the best technology available is laudable. I note the comments of Reverend the Hon. Fred Nile that the use of in-car videos will protect police against false and malicious allegations.
I was interested in the interaction between Ms Lee Rhiannon and the Minister, who took offence at the example given that he may be in a car with somebody. Former Privacy Commissioner Chris Puplick told me that photographing vehicles going through traffic lights in Holland caused some concern because the shots were taken front-on, showing people in the front seat. This could lead to blackmail; for instance, a driver photographed with a female passenger who was not his wife could face dire consequences. However, Chris Puplick pointed out that people walking around the streets of Sydney, going in or out of buildings and railway stations, are photographed about 50 times a day. Face recognition software makes it possible to construct a pattern of someone's life, which increases the risk of blackmail.
The bill seeks to improve transparency and reduce corruption and false allegations by police or against police, but it is an invasion of privacy. People should be able to live their lives without fear of their every movement being monitored. People need not have committed a crime to be unwilling to have every aspect of their lives opened to scrutiny by outsiders, who may or may not have malicious intent. The foreshadowed amendments of the Greens stipulate how the video must be used and who must use it. I notice that a penalty has not been set for the use of video recordings. A recording that fell off the back of a truck or slipped onto the Internet by way of an email could do considerable harm.
The bill may solve transparency concerns, but if the technology undermines the privacy of individuals so that their every action is studied and judged by others, perhaps that is regrettable. I am not sure that the problems that the bill seeks to address justify this degree of technology. I understand that both sides of the House and some crossbenchers support the bill. Nonetheless, I have some misgivings about it.
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [8.23 p.m.], in reply: I thank honourable members for their contributions to the debate. Numerous objections to the bill have been outlined, but I shall deal with those in Committee. I commend the bill to the House.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 3 agreed to.
Ms LEE RHIANNON [8.25 p.m.], by leave: I move Greens amendments Nos 1 to 5 in globo:
No. 1 Page 3, schedule 1, proposed section 108A. Insert after line 11:
ICV recording means any recording of visual images or sound made pursuant to this Part and includes a copy of such a recording and any part of any such recording or copy.
No. 2 Page 5, schedule 1, proposed section 108E. Insert after line 7:
(4) The Commissioner of Police must ensure that any recording of a conversation between a police officer and a person that is made inadvertently or unexpectedly after the person's arrest is destroyed as soon as practicable.
No. 3 Page 5, schedule 1, proposed section 108G, lines 13-15. Omit all words on those lines. Insert instead:
108G Keeping and destruction of ICV recordings
The Commissioner of Police must ensure that each ICV recording:
(a) is kept for a period of 2 years after it is made, and
(b) is destroyed at the end of that 2 year period or (if it is being used at the end of that period) is destroyed once it is no longer being used.
No. 4 Page 5, schedule 1, proposed section 108H (2), lines 23-26. Omit all words on those lines.
No. 5 Page 5, schedule 1. Insert after line 31:
108I Privacy protection
(1) When an ICV recording is kept in a database, the recording must not be cross-referenced or otherwise linked in the database to the name of any person other than a police officer or the person who was the driver of the vehicle in connection with the stopping or detaining of which the recording was made.
(2) An ICV recording may be kept and used by NSW Police only for one or more of the following purposes:
(a) in connection with an investigation relating to or leading to criminal proceedings against any person,
(b) for the conduct of criminal proceedings against any person,
(c) in connection with an investigation of any conduct of a police officer,
(d) for the conduct of disciplinary proceedings against a police officer.
(3) The Commissioner of Police must ensure that an ICV recording is not released except:
(a) to a police officer or other member of NSW Police for the purpose of the exercise of official functions, or
(b) to the Police Integrity Commission, or
(c) for the purpose of the conduct of any criminal proceedings, or
(d) for the purpose of the conduct of any disciplinary proceedings against a police officer.
The Greens amendments will not jeopardise the use of in-car video systems but will ensure that the necessary privacy requirements are upheld. I say "necessary" because in the twenty-first century we have certain standards with respect to privacy. The amendments seek to deny government departments, government agencies, private companies and organisations from having access to the footage. The amendments provide that the footage should be destroyed after two years to prevent misuse of the footage, whether intended or unintended. The Greens believe that after two years the usefulness of the footage as a means to monitor interaction between police and the public is diminished. This does not include footage that has been used in any proceedings. The amendments seek to ensure that only the driver's name is linked to the footage.
Currently no limits have been set on how the records of footage can be linked to passengers or associates of the driver. The amendments provide that any footage taken inadvertently after arrest must be destroyed as soon as possible because the bill fails to deal with the storage of such footage. These safeguards are needed for the privacy of passengers, arrested persons and the community in general. I hope that all honourable members share the concerns of the Greens with respect to this bill. If the amendments do not receive Government support, one wonders about its agenda because these are not radical measures. They merely put in place some basic requirements without interfering with the intent of the bill, that is, in-car videoing. I hope that the Minister responds and does not cut short his response, as he did at the end of the second reading debate.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.27 p.m.]: I put on record my support for the amendments. Some limit should be placed on how long video footage is kept, who can use the footage and for what purpose. These are modest privacy requirements and I hope that the Government and the Opposition see their way clear to supporting them.
Reverend the Hon. FRED NILE [8.28 p.m.]: I have one concern about the amendments, that is, one is never sure what action a citizen may take over a period of time. Someone could make a complaint, the matter could be referred to the Ombudsman, but the evidence may have been destroyed. Flexibility is required in the maintenance of the records, which must be securely held, and unauthorised persons should be prevented from accessing those records.
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [8.29 p.m.]: The Government is unable to support any of these amendments. The Government rejects Greens amendment No. 1 for the reason that the wording is already located in proposed section 108H (2). This amendment, in conjunction with Greens amendment No. 4, merely seeks to move the definition of ICV recordings from its proper position under the section dealing with corrupt disclosure and the use of ICV recordings.
The Government rejects Greens amendment No. 2 for the reason that the inadvertent or unexpected recording of a conversation in the period between a person's arrest and the first reasonably practicable opportunity for the police officer to discontinue recording the conversation may provide critical evidence of a scuffle or another altercation. The inclusion of the wording "first reasonably practicable opportunity" in subsection 2 is intended to ensure the police officer's safety. If an arrested person is violent towards police and has to be subdued, then an officer must be able to contain that person before switching off the audio component of the ICV. To destroy the audio recordings of what could be heard of an assault against police would seem to prejudice officers in the execution of their duties. Conversely, it could destroy evidence supporting a complaint by a member of the public against a police officer.
In relation to Greens amendment No. 3, at a general level the evidentiary value of ICV recordings may not necessarily be known within two years from recording. The Government is happy with the bill as it stands in this respect. In relation to proposed Greens amendment No. 5, this is also unable to be supported by the Government. Existing mechanisms ensure ICV recordings are identified and stored by reference to the relevant police vehicle serial number only. The storage and use of ICV recordings in these circumstances is governed by the Privacy and Personal Information Protection Act 1988. The release of ICV recordings in these circumstances is already governed by this legislation.
The Hon. DAVID CLARKE [8.32 p.m.]: The Opposition will not support the amendments proposed by the Greens.
Ms LEE RHIANNON [8.32 p.m.]: I request that questions be put on my amendments seriatim.
Amendment No. 1 negatived.
Amendment No. 2 negatived.
Amendment No. 3 negatived.
Amendment No. 4 negatived.
Question—That amendment No. 5 be agreed to—put.
The House divided.
Ayes, 5
 | Dr Chesterfield-Evans
Mr Cohen
Ms Hale
Tellers,
Mr Breen
Ms Rhiannon | |
Noes, 24
Ms Burnswoods
Mr Catanzariti
Mr Clarke
Mr Colless
Mr Costa
Ms Cusack
Mrs Forsythe
Miss Gardiner
Mr Hatzistergos | Mr Jenkins
Mr Lynn
Reverend Dr Moyes
Reverend Nile
Mr Oldfield
Ms Parker
Mrs Pavey
Mr Pearce
Mr Roozendaal | Mr Tingle
Mr Tsang
Mr West
Dr Wong
Tellers,
Mr Harwin
Mr Primrose |
Question resolved in the negative.
Amendment No. 5 negatived.
Schedule 1 agreed to.
Title agreed to.
Bill reported from Committee without amendment and passed through remaining stages.
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