Melbourne is using pop-up police spy stations to find people breaking COVID rules – what does the law say?


Shutterstock

Rick Sarre, University of South Australia

CCTV cameras mounted on vans have recently been seen in public parks around Melbourne, ostensibly to nab anyone breaking lockdown rules. They are part of a joint initiative between several Melbourne councils, Victoria Police and the Commonwealth government.

Coming on the back of Victorian police arresting and charging a number of people for inciting others to break bans on public gatherings by protesting in the streets, there is likely to be widespread resentment to the presence of these mobile surveillance units.

Many people are already claiming the Victorian government has once again over-stepped the mark in its aggressive approach to suppressing COVID-19.

These mobile units are not new, though. They were introduced in 2018 to help combat crime. They are not cheap, either. The cost to purchase and operate four of the units has been estimated at $3.6 million.

But what are the laws around public surveillance of people going about their daily business or recreational activities outdoors?

Let me tackle this question by posing four related questions:

  • are the cameras legal?

  • are such surveillance tools effective?

  • are these measures acceptable in a vibrant democracy?

  • what protections should be put in place?




Read more:
Police and governments may increasingly adopt surveillance technologies in response to coronavirus fears


Are the cameras legal?

It needs to be stated at the outset the Constitution does not include any specific rights related to privacy. And the High Court suggested two decades ago that privacy was unlikely to be protected under common law.

The Victorian Charter of Human Rights, however, contains a provision that states people have the right not to have their

privacy unlawfully or arbitrarily interfered with.

But a lawfully installed camera designed to deter offending would not, on its face, defy the terms of the charter.

International law, too, provides some privacy protections. In 1991, Australia signed the International Covenant on Civil and Political Rights, which states

no one should be subjected to arbitrary or unlawful interference with his privacy.

However, Australian parliaments have introduced few laws to enshrine these protections. The legislation that has been enacted has largely been limited to curtailing the use of privately monitored listening and surveillance devices and preventing governments and big business from sharing citizens’ private information.

The Australian Law Reform Commission has issued clarion calls to extend these protections in recent years, but these efforts continue to gather dust.




Read more:
Lockdown returns: how far can coronavirus measures go before they infringe on human rights?


So, it should not be surprising that mobile CCTV cameras driven to and stationed in public places are perfectly legal.

Moreover, so-called “unmanned airborne vehicles” (UAVs), more commonly known as drones, are regularly deployed by police for surveillance purposes, too.

Both of these surveillance tools are backed by regulatory force at all three levels of government.

Police have been patrolling parks for weeks to ensure compliance with the Stage 4 lockdown regulations.
ERIK ANDERSON/AP

Are these surveillance tools effective?

Proponents of these mobile surveillance units argue the perceived risks to privacy and heavy investment are worth it, given the social disorder they prevent and the help they provide police in solving crimes.

However, there is much research now that casts doubt on this assumption.

In one study in 2009, for instance, CCTV cameras were only found to reduce crime by 16% overall (and by only 7% in city and town centres and public housing communities).

The efficacy of these surveillance units in a health emergency has yet to be proven. The cameras would seem to be most useful in providing police with information regarding who is using the parks, and perhaps providing something of a deterrent to those who might consider breaching lockdown restrictions, but not much more.

Are these measures acceptable?

Yes and no. On the one hand, there is no doubt people want the coronavirus restrictions to end. And if these units deter people from breaking lockdown rules, and this, in turn, helps bring the new case numbers down more quickly, people may accept the intrusion in their lives.

On the other hand, some are understandably alarmed at the increasing use of surveillance tools by authorities — dubbed “uberveillance” by sociologists.




Read more:
Pandemic policing needs to be done with the public’s trust, not confusion


Even advocates for civil liberties appear ambivalent about the curtailment of some basic rights during the pandemic.

Liberty Victoria President Julian Burnside, who has been a fierce defender of privacy rights, surprised many by telling The Age,

It all sounds pretty sensible to me. … We are in a war against the coronavirus, and when you’re in a war with anything, restrictions on your otherwise normal liberties are justifiable.

Liberty Victoria quickly sought to distance itself from the comments.

What protections should be put in place?

There is no doubt parliaments are the most appropriate bodies to determine the extent to which individuals can be subjected to lawful public surveillance.

Indeed, former High Court judge Michael Kirby argues the legislative arm of government needs to step up to the task of scrutinising emergency powers with more vigour.

Otherwise it simply becomes a tame servant of the executive, which is a common weakness of parliamentary democracies of the Westminster system.

But parliaments will only respond if citizens demand this of them, and there are very few signs of that at the moment.

In the meantime, there are a number of legal tweaks that should be undertaken to ensure the government’s spying on the public domain is appropriately measured:

  1. we need to ensure the images and other data that are collected by surveillance units are stored appropriately and discarded quickly when no longer needed

  2. we need to be able to hold police and other surveillance operators to account for any excesses in the manner in which images are gathered and shared

  3. there needs to be a new legal remedy in the event there is a serious invasion of privacy by the inappropriate use or disclosure of images collected by surveillance devices.

True, we have the Office of the Australian Information Commissioner constantly reminding governments of the concerns associated with threats to privacy.

But without civic push-back, little will change. Parliamentarians are unlikely to limit the powers of the executive to allow mobile surveillance units to be parked in public places unless it becomes politically unpopular. One can but wonder when this tipping point may be reached.The Conversation

Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South Australia

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Pandemic policing needs to be done with the public’s trust, not confusion


Darren Palmer, Deakin University

The law on what we can and can’t do during the coronavirus outbreak is changing on an almost hourly basis. Some of what is written now might be overtaken by the shifts in the pandemic powers of control.

But we need to make sure people have trust in any new powers given to authorities. These need to be clear to all, and applied consistently and transparently, which is not the case at the moment.

For example, over the weekend a Victorian teenager was fined A$1,652 for leaving home to go for a driving lesson with her mother. Police said their activities were “non-essential travel”.

The advice from New South Wales police at that time said such activities were fine in NSW. Victoria police have since withdrawn the fine.

But NSW Police Commissioner Mick Fuller told the ABC’s Fran Kelly that in NSW you cannot travel to your holiday home unless it is “essential”. Victorians are told they can head to their holiday homes over Easter as long as they otherwise maintain strict quarantining on arrival.




Read more:
Coronavirus has seriously tested our border security. Have we learned from our mistakes?


These are just two examples in two states of a broader underlying problem that Americans would deem unconstitutionally “void for vagueness”, a law invalid because it’s not sufficiently clear.

Calls for common sense do little to ease concerns that things are likely to worsen. The broad coronavirus containment and mitigation strategies might continue for many more months.

Remember the Fitzgerald inquiry

Perhaps we can learn from the landmark Fitzgerald inquiry into Queensland policing, more than three decades ago.




Read more:
Thirty years on, the Fitzgerald Inquiry still looms large over Queensland politics


The inquiry identified widespread systemic corruption in police, politics and civil society. This inquiry represented a change in police accountability.

There is another, lesser-known or appreciated aspect of the Fitzgerald inquiry. It emphasised that police must have the consent of the community: police have to ensure their practices generate trust that people will be treated fairly and police discretion will be used appropriately.

These are standard issues in the policing scholarship.

Pandemic policing raises many issues that cut to the core of policing by consent.

How policing resources are mobilised and the decision-making processes and practices on the ground are vital. Just look at the confused circumstances of the disembarkation of the Ruby Princess cruise ship in Sydney, which has been a key cause of the spread of COVID-19 in NSW and beyond.

The Australian Border Force, NSW health authorities and NSW police were variously blamed, so surely there needs to be a major investigation into network failure and specific responsibilities.

Police discretion needs to be fair

Everyday street policing is central to pandemic policing: when do police decide to intervene and ask someone their purpose for being out and about?

Vague legislative provisions are often the source of poor use of discretion by police. But the answer is not to be found in taking away any discretion, the hallmark of “zero-tolerance policing”.

There are many things that might be done, but a few simple ones come to mind.

Any legislation or regulation must be precisely drafted. This has not been happening and is causing confusion. Just look at the level of uncertainty in NSW, Queensland and Victoria.

We need clearly stated offences, clear lines of reasoning and a clear demarcation between preferred practice or guidance and regulated conduct.

For instance, what does staying in your own “area” for permitted out-of-home travel mean?

A discussion on ABC radio in Melbourne recently descended into callers chastising a man who thought he would like to travel to the beach for exercise well away from his residence. Live on air, he asked Victoria Police Chief Commissioner Graham Ashton if that was okay.

The chief commissioner didn’t say yes or no, he just called for “common sense”. But what would be reasonable and common sense – 1km, 2km, 5km or 10km, etc? Is driving to exercise allowed?

More than common sense

Common sense is not the way to ensure police discretion is going to be used appropriately, nor does it give the community confidence in the law. It might only be the odd case here and there at the moment causing confusion or consternation but it is changing daily.

Data on the use of this discretion must be recorded and made publicly available in close to real time. Equally important is the need to have data on policing activities.

Most jurisdictions have a crime statistics agency and these agencies should be given responsibility to collate data to identify who is being stopped, where, for what offence and with what outcomes. Report this every day as we do health data.

It does not need to be data on the final outcome that determines whether the fine is paid or challenged in the courts some months later. But it needs to reflect the immediate policing activities and it needs to be made public and in a timely manner.




Read more:
A matter of trust: coronavirus shows again why we value expertise when it comes to our health


As the pandemic continues, and it may get worse, pandemic policing might head in directions the broader population has never experienced.

So 30 years on from Fitzgerald, we need to reinforce the notion that policing by consent, with transparency and accountability, is vital.

If public support is to be maintained over the course of the pandemic we need to make sure we have legal clarity and a detailed understanding of what is being done in the name of the exception. Pandemic policing must have very real limits and robust, real-time accountability.The Conversation

Darren Palmer, Associate professor, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

INDIA: CHRISTIANS BREATHE EASIER AFTER ELECTIONS


How Hindu extremist BJP will respond to surprising defeat, though, remains to be seen.

NEW DELHI, May 21 (Compass Direct News) – Christians in India are heaving a sigh of relief after the rout of a Hindu nationalist party in national and state assembly elections in Orissa state, a scene of anti-Christian arson and carnage last year.

The ruling centrist party won a second term, but concerns over persecution of minorities remain.

A local centrist party, the Biju Janata Dal (BJD), took charge of the government of the eastern state of Orissa today, and tomorrow the new federal government led by Prime Minister Manmohan Singh will be sworn in, representing a second term for the United Progressive Alliance (UPA), led by the left-of-center Indian National Congress, commonly known as the Congress Party.

“The election result is a statement against the persecution of non-Hindus,” Vijay Simha, a senior journalist and political analyst, told Compass.

“There were a string of incidents against non-Hindus, which were principally enacted by right-wing outfits,” added Simha, who reported on anti-Christian violence in Kandhamal district of Orissa in August-September 2008. “Since the vote went against right-wing parties, the result is a strong rejection of extremist religious programs.”

John Dayal, secretary general of the All India Christian Council (AICC), said the Hindu nationalist Bharatiya Janata Party (BJP) was “defeated not by Christians or Muslims, but by secular Hindus.”

Over 80 percent of the more than 1 billion people in India are Hindu. Christians form around 2.3 percent of the population, and Muslims about 14 percent.

The Times of India on Saturday (May 16) quoted Rahul Gandhi, general secretary of the Congress Party, as saying that his party’s victory was a rejection of politics of caste and religion and acceptance of “clean and honest” policies symbolized by Prime Minister Singh.

“Internal criticisms within the BJP have brought out that it is losing popularity among youth as well as among the urban middle classes, two segments where it had been strong earlier and which represent the emergent India of the 21st century,” stated an editorial in the daily.

Crossroads

The BJP’s defeat at the national level is expected to compel the party to decide whether it turns to moderation in its ideology or more extremism in desperation.

“The BJP now faces a dilemma … Its appeal based on Hindutva [Hindu nationalism] and divisiveness stands rejected by the electorate,” wrote Prem Prakash of ANI news agency. “Where does the party go from here? … The party seems to be waiting for the RSS to provide answers for all this . . . The time has come for it to clearly define what kind of secularism it accepts or preaches.”

Hopes of Christians, however, abound.

“I am hoping that the BJP will learn that it does not pay to persecute minorities, and that civilized Hindus are disgusted with divisive antics of the RSS family,” said the AICC’s Dayal.

Father Dominic Emmanuel of the Delhi Catholic Archdiocese is also hopeful.

“Let’s hope that the new government would work harder to protect all minorities, particularly the constitutional guarantees with regard to religious freedom,” he said.

Father Babu Joseph of the Catholic Bishops Conference of India said, “The Indian Catholic bishops are confident that the Congress Party-led UPA government will keep its promises of safeguarding the country from communal and divisive forces and restore confidence among all sections of people, particularly among the religious minorities for providing a stable, secular and democratic government.”

Threats Continue

The defeat of the BJP, however, may not bring much respite to those facing persecution at the hands of Hindu nationalist groups.

“One would expect a lessening in persecution of Christians and other non-Hindus – however, extremist groups often step up activities to garner funds and patronage when they are on the retreat,” warned journalist Simha. “So, one could also see a rise in anti-minority activities.”

The BJP, which began ruling the federal government in 1998, was defeated by the Congress Party in 2004, which, too, was seen as a mandate against Hindu nationalism. Prime Minister Singh said during his swearing in ceremony in May 2004 that the mandate for the Congress-led UPA was for change and “strengthening the secular foundation of our republic.”

After the BJP’s defeat, however, Christian persecution did not stop. According to the Christian Legal Association, at least 165 anti-Christian attacks were reported in 2005, and over 130 in 2006. In 2007, the number of incidents rose to over 1,000, followed by the worst-ever year, 2008, for the Christian minority in India.

Forsaking its extremist ideology could also be difficult for the BJP because there was a leadership change in the Rashtriya Swayamsevak Sangh (RSS), a Hindu nationalist conglomerate and the parent organization of the BJP, a month before the elections. On March 21, Mohan Rao Bhagwat, formerly general secretary, was made the head of the RSS.

On March 22, The Hindu quoted an anonymous leader of the BJP as saying, “Mr. Bhagwat has clarity in ideology; he is a quick decision-maker; he takes everybody along; and he expects 100 per cent implementation of decisions.”

A day before his ascent to the top position, Bhagwat had sent a message to RSS workers across the country to come out in full force and “ensure 100 percent voting” in “the interest of Hindus” during this year’s elections, added the daily.

Further, after the BJP’s defeat in 2004, sections of the cadre of the RSS and affiliated groups broke away from the conglomerate as they felt the organization was too “moderate” to be able to establish a Hindu nation. Among the known Hindu splinter groups are the Abhinav Bharat (Pride of India), which operates mainly in the north-central state of Madhya Pradesh and the western state of Maharashtra, and the Sri Ram Sene (Army of Rama, a Hindu god), which recently became infamous for its violently misogynistic moral policing in the city of Mangalore, Karnataka.

Furthermore, there are pockets, especially in the central parts of the country and parts of Karnataka in the south, where the BJP remains a dominant party.

Embarrassing Defeat

Results of the general elections and state assembly polls in Orissa and the southern state of Andhra Pradesh, which were held simultaneously between April 16 and May 13, were declared on Saturday (May 16).

Of the 543 parliamentary constituencies, 262 went to the UPA. The National Democratic Alliance (NDA), led by the BJP, got 160, while the Third Front, a grouping of smaller and regional parties led by communists, bagged only 79.

The Congress Party alone won 206 seats, whereas the BJP’s count was 116 – a strong indication that a majority of the people in Hindu-majority India are against Hindu extremism.

The UPA has the support of 315 Members of Parliament, far higher than the 272 minimum needed to form government.

The embarrassing defeat for the BJP came as a surprise. Hoping to gain from its hardcore Hindu nationalist image, the BJP had made leader Narendra Modi, accused of organizing an anti-Muslim pogrom in the western state of Gujarat in 2002, its star campaigner.

Modi, chief minister of Gujarat, spoke in around 200 election rallies, out of which the party could win only 18 seats outside Gujarat.

In Orissa, where the BJP had openly supported the spate of attacks on Christians in Kandhamal district following the murder of a Hindu nationalist leader, Swami Laxmanananda Saraswati, by Maoists on Aug. 23, 2008, the party won not a single parliamentary seat – not even in Kandhamal.

The BJP candidate for the Kandhamal constituency, Ashok Sahu, contested from jail, as he was arrested on April 14 for making an inflammatory speech against Christians. Sahu hoped to gain the sympathy of Hindus by going to jail.

The BJP was sharing power with the ruling BJD in Orissa until March 17. The BJD broke up its 11-year-old alliance with the BJP over its role in the violence that lasted for over a month and killed more than 127 people and destroyed 315 villages, 4,640 houses, 252 churches and 13 educational institutions, besides rendering more than 50,000 homeless.

Even in the state assembly elections in Orissa, the BJP faced a debacle. Of the 147 seats, it won only seven. The BJD swept the polls with 109 seats. The Congress Party managed to get 27.

The seven assembly seats won by the BJP include two from Kandhamal district. The BJP’s Manoj Pradhan, who is facing 14 cases of rioting and murder in connection with the Kandhamal violence, won the G. Udayagiri assembly seat in Kandhamal. In the Balliguda assembly constituency, also in Kandhamal, BJP sitting legislator Karendra Majhi retained the seat. Both G. Udayagiri and Balliguda were at the epicenter of the last year’s violence.

Even in Andhra Pradesh state, where Hindu nationalist groups have launched numerous attacks on Christians in the last few years, the BJP had a poor showing. Of the 42 parliamentary seats, the Congress Party won 33. The BJP’s count was nil.

In assembly elections in Andhra Pradesh, the Congress Party won 158 of the 294 seats, gaining a majority to form the state government for another five-year term. The BJP did not get even one seat.

In the northern state of Uttarakhand, where the BJP is a ruling party, its count was zero. The Congress Party won all five parliamentary seats.

In Rajasthan state, also in the north, the BJP could win only four seats. The Congress Party, on the other hand, won 20. The BJP had passed an anti-conversion law in 2006 when it was a ruling party. The bill is yet to be signed by the state governor.

In the 2009 election, the BJP got 10 seats in the eastern state of Chhattisgarh, where the Congress Party got only one. In the northern state of Himachal Pradesh, the BJP won three of the four seats.

In the eastern state of Jharkhand, the BJP bagged eight seats, and the Congress Party only one. In Gujarat, the BJP’s tally was 15, whereas the Congress won 11. In Madhya Pradesh, the BJP won 16 and Congress 12.

Report from Compass Direct News