Four expert QLS committees have come together to provide feedback on proposed reforms of Queensland’s civil surveillance laws.
The State Government is considering the recommendations into a report it commissioned from the Queensland Law Reform Commission (QLRC) in 2018, reviewing laws relating to civil surveillance and the protection of privacy against the backdrop of current and emerging technologies.
Queensland’s current regulation, the Invasion of Privacy Act 1971 (IoP Act) covers the use of listening devices in limited circumstances only, placing it in danger of being surpassed by ever-evolving surveillance technology, falling short of expectations from an increasingly concerned community, and falling behind other states and territories.
In April 2023, the Department of Justice and Attorney General released the Civil surveillance reforms consultation paper to guide consultation on a staged approach to implementing the recommendations within the QRLC report.
The first measure being considered is criminal prohibitions on the use of surveillance devices and technologies. The community was asked to give feedback on the best way to achieve a balance between benefiting community safety at home and in the workplace, and limiting their potential for harm, such as theft, stalking, harassment, and commercial espionage.
The prohibitions would also become another tool used to combat domestic and family violence in the digital sphere, by criminalising surveillance behaviour that amounts to serious stalking and coercive control. The reforms would recognise the boom in perpetrators misusing technology through electronic or digital monitoring, tracking devices placed on vehicles, surveillance on mobile phones, and the installation of hidden cameras.
The QLS submission was compiled with input from the experts comprising the Human Rights and Public Law Committee, the Privacy, Data, Technology and Intellectual Property Law Committee, the Domestic and Family Violence Committee, and the Industrial Law Committee.
In its response, QLS recognised the importance of ensuring Queensland’s surveillance legislation is kept in step with the rapidly evolving technological landscape and affords adequate safeguards against unjustifiable invasions of privacy.
“Given that surveillance devices are ubiquitous in both civil and workplace environments, the introduction of criminal prohibitions must be approached with caution to avoid potentially criminalising common and otherwise appropriate use of these technologies,” it states.
Some QLS members suggested the criminal prohibitions around tracking individuals in domestic violence situations, recording third parties, or publishing private materials, may be better placed in the Criminal Code.
The submission says that it is unclear how the proposed criminal prohibitions would sit alongside other legislative reform, and “strongly urges further consideration be given to the best and most effective legislative instrument for criminal prohibitions of surveillance devices, coupled with analysis of the potential justice impacts”.
The society also suggested a specific exception might be necessary for victims who make a recording of a domestic violence incident as evidence, to avoid criminalising this behaviour and providing perpetrators with another avenue of manipulation and control.
QLS also supported the proposed requirement that each owner or person in lawful control of a vehicle or a computer must consent to the installation or activation of a tracking or data surveillance device, especially in circumstances where an abusive partner owns the device or vehicle and uses it to monitor the other party.
The submission points to concerns the timing is premature, given the significant reforms proposed as part of the Federal review of the Privacy Act 1988, and the QLRC’s second review into workplace surveillance.
Some members queried whether the establishment of a proposed Surveillance Device Commission was a good use of scarce resources, while others shared the view there was merit in exploring the capability of current state and federal regulatory agencies and departments to deliver its functions.
Concerns were also raised a staged approach would result in “the piecemeal introduction of complex legislation,” suggesting instead a transition period sufficient to allow all sectors to prepare for the reforms.
Read the full QLS submission here.