Activists occupy a strange place in the Australian psyche. Variously seen as trouble makers, noble defenders of democratic rights, misfits or idealists, they are often spoken of in pejorative rather than admiring terms, particularly by politicians. In early May 2013 the NSW Administrative Decisions Tribunal (ADT) bought down a finding that provided many a political chest-thumping opportunity.
The ADT found that Shoalhaven Citiy Council, a local council in NSW, had breached information protection principles and privacy codes of practice by its use of CCTV cameras. In anticipation of the tribunal's finding, which was delivered on 21 May, CCTV cameras were switched off in the CBD of Nowra, 160 kilometres south of Sydney.
The tribunal’s decision had its genesis in late 2009 when Adam Bonner, then a Shoalhaven resident, heard of council’s plans to install CCTV cameras. Bonner prefers to be called a privacy advocate rather than an anti-CCTV campaigner. He graduated from university with degrees in social work and arts and later completed a law diploma. But he didn’t practice. “In the end,” he told NM, “I didn’t have the balls for it. I didn’t think I could stand up in court and argue a case”.
In 2009 Bonner applied to council requesting an internal review of its CCTV systems operation. Council refused Bonner’s request on the grounds that the cameras had not been activated and so no personal information had been acquired. This turned out to be false. It took an application to the ADT to discover this and force council to conduct the review. These were early days in what Bonner believes to be an ongoing pattern of obfuscation by council.
After receiving the internal review in April 2010 Bonner was convinced council was breaching privacy legislation. With pro bono legal support he made a second application to the ADT. Right through to the hearing in November council maintained the footage collected was securely stored on a hard drive at the Nowra police station.
The hearing revealed that the footage had been “inadvertently deleted”, meaning the case could not proceed. “During this time council often accused me of wasting ratepayers money,” Bonner told NM, “yet through their incompetence a case that had proceeded for eight months was dismissed. How much ratepayers money did they waste?”
In preparing his third application to the ADT he had to summons council for footage and it took until June 2011 to lodge the application. He had expected more pro bono legal support but unexpectedly this wasn’t available. Now, headed for the major legal test he was suddenly on his own. “This was confronting my own demons,” Bonner says. “Did I now have the balls to stand in court and argue a case for something I personally believed in.” Fourteen years after graduating with a law diploma, it was time to put it to good use.
Bonner’s argument has four main elements. Policing and collection of evidence for prosecution is a state, not council, responsibility; secondly, while police are exempt from privacy and personal information legislation councils are not; thirdly, CCTV cameras do not meet council’s stated aim of being a crime prevention measure; and finally, the system used by Shoalhaven Council does not and can not comply with privacy legislation.
Three hearing days were held over May, June and August 2012. Bonner had to prepare for cross-examination of five council staff, two senior police officers and the installer of the cameras. He also had to bring in evidence in chief from two expert witnesses, a professor of criminology and a research professor in computer vision and image processing.
One of Bonner’s expert witnesses, Paul Wilson, provided evidence that “public CCTV, particularly in cities and town centres, has a statistically insignificant effect on crime reduction”. Other evidence was pretty damning to council’s position. A survey had shown the number of people who felt unsafe in the streets where the cameras had been installed had actually risen.
In 2011 there had been an increase in assaults, break and enter and malicious damage in the area covered by the cameras – although a decrease in street offences. Toward the end of the third hearing day Bonner started to believe it might go his way. There was still almost another nine months to wait before the ADT decision was handed down. Council lost on a number of the grounds that Bonner had contested. Two orders were made. Council was to refrain from any conduct or action that contravenes any information protection principles or privacy codes of practice, which meant turning off the cameras. And apologise to Bonner.
In the more than three years of his campaign Bonner was regularly subjected to attack and ridicule in the media led by local politicians. When the success of his legal action became known a furious response unfolded. A few high profile cases where CCTV has assisted police in solving serious crimes added impetus to claims that the cameras are essential. The local newspaper, the South Coast Register, showed it has a pretty low bar for acceptability of comment on its website although the moderator says they haven’t allowed the most personal of the attacks.
NSW Premier Barry O’Farrell quickly pledged to get the cameras turned back on. As the decision followed shortly after an announcement of $40 million in Commonwealth funding for local crime prevention measures, then-prime minister Julia Gillard had to add her concern. Searching for something to say, Shoalhaven mayor Joanna Gash – also the federal member for the area – said “the law seems to be making it extremely difficult for councils to help the community and police reduce crime”.
O’Farrell’s solution was to change the law. This took a couple of weeks during which the vitriol continued. The turning back on of the cameras was greeted with a sense of triumph. So does Bonner feel it was a waste of time?
Despite the ultimate outcome he’s a proud man and he’s faced his demons. The tribunal acknowledged his efforts representing himself against enormous odds. He’s disappointed the public perception that CCTVs aid crime prevention has gone untested. “There’s some consolation that the final decision to put the cameras back on was not made by learned judgement but by politicians unable to face public opinion,” he says. “Uninformed public opinion”.
And he will continue lobbying for his beliefs and principles which have carried him this far. One of the orders made by the ADT was that Shoalhaven City Council provide Bonner with a written apology. He’s still waiting.
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