Peter A Clarke

The Victorian Police Force has a dreadful record when it comes to privacy.  Officers have misused the LEAP databases on multiple occasions (that we are aware of).  See my posts here.  They breached Dani Laidley’s privacy by taking pictures inside a police station.  See my posts here. It is a cultural problem that has not been properly, if at all, addressed over many years.

The latest privacy breach involving a member of the Victoria Police, Sam Hansen, using CCTV to monitor his partner, if that is the right descriptor.  Hansen received a diversion.  Given the nature of the offence and the breach of trust that is a good result for him but questionable as to whether it is the appropriate penalty.

There are also the civil issues.  Victoria Police use of surveillance, CCTV and personal data acquired from its use is covered by the Information Privacy Principles (IPPs) under the Privacy and Data Protection Act 2014.  There is an exemption  under Section 15 which permits non-compliance for legitimate law enforcement, criminal investigations, or covert surveillance functions. The Victorian Civil and Administrative Tribunal (VCAT) has jurisdiction regarding breach of the Act.  

It is very disappointing that VCAT’s decisions over the years have meant that recourse under the Privacy and Data Protection Act 2014 is difficult at the best of times.  VCAT has a very poor reputation in handling privacy cases and where claimants are successful, not often, the awards are miserly. Whenever possible it would be better to use Schedule 2 of the Privacy Act 1988, the statutory tort of serious invasion of privacy.

While all the facts in this case are not known what is known indicate there is a basis for bringing an action under this new tort.  The acts of Hansen were intentional.  Just because the CCTV may have been used in a public place that does not negate a person’s reasonable expectation of privacy and the harm is serious.  It is hard to see what public policy issues would support the misuse of this technology.