Law on Police Using Body Worn Cameras in NSW

Poppy Morandin.

The Attorney General, Mark Speakman has rejected calls to require police to hand over body-worn video footage.

NSW Greens MLC David Shoebridge wrote to Mr Speakman in February of last year regarding the difficulty encountered by individuals seeking to obtain footage that they themselves are featured on.

The effect of the current legislation means that in the event a party wants to make a complaint against police, it is often hard to get the footage that may form the basis of their claim.

“We most recently followed up this with the Attorney after it was brought to us by a constituent because it was a direct obstacle to justice in their case. It’s an issue we have raised concerns about since the cameras were rolled out.” explained Mr Shoebridge.

“The idea that police are freely able to record members of the public who then cannot obtain copies of those recording to mount their own defence or for other reasons is plainly absurd. It is a policy designed to protect police, not protect the public.” he continued.

Natalie Ward, Parliamentary Secretary to the Attorney General responded on his behalf, nearly a year after the original correspondence.

“In the case of police body-worn video, there is a general prohibition on the disclosure of this information under the Surveillance Devices Act 2007, with limited and strictly defined exceptions. This prohibition is considered appropriate given the sensitive nature of the information.” detailed Mrs Ward.

“The existence of this general prohibition on disclosure will be a relevant public interest consideration against disclosure.” she continued.

“The response from the Parliamentary Secretary seeks to uphold the status quo on not releasing the footage without engaging with the obstacle to justice that this poses in the specific case mentioned and more generally. People should have the right to gain access to any police video of them unless there are compelling security reasons to prevent its release.” proposed Shoebridge.

Reactions to the response online included: “what public interest against disclosure? The point of having these cameras is to encourage accountability on both sides. The lack of transparency is really saying ‘we don’t want scrutiny of our officers, because they are afraid of the repercussions and public backlash’– which is not in the public interest itself.”

Mrs Ward furthermore referenced a recent statutory review of the police body worn video provisions of the Surveillance Devices Act 2007.

However, Shoebridge contended that the review: “focuses heavily on how the rollout of cameras impacted on police, not on the broader public.” 

“Part 5.3 of the report details the concerns raised by almost all the organisations who made submissions (except the police force) regarding the release of footage. It is also of note that the broader public were not consulted as part of this review – our experience is that when people request and are refused access to this information, they are extremely surprised and frustrated.” he continued.

These organisations include the Aboriginal Legal Service (ALS), Redfern Legal Centre (RLC) and the Law Society of NSW.

“Several stakeholders observed that there are no clear provisions governing public access to body-worn video footage, in particular for complainants of police misconduct, as opposed to complainants in court proceedings, to whom relevant footage is provided as part of the Brief of Evidence.” the review summarised.

“ALS and RLC submitted that access to footage is routinely denied to complainants of police misconduct…inequality of access to police body-worn footage contributes to the power imbalance between complainants and investigators and leads to dissatisfaction with complaint outcomes.” it detailed.

The Law Society noted that: “its members report that recordings are not always provided to the defence and in some cases a subpoena must be obtained in order to access the footage.”

However, the inquiry ultimately decided to recommend no changes to current guidelines.

There are numerous suggestions for reform from interested bodies, including to require activation at when officers are in a public place, or during encounters with members of the public.

The ALS and RLC stated that this may create a reduction in excessive use of force and ‘camera bias’, arising from the fact that encounters are recorded from the perspective of the officer.

“All the policy settings around body-worn cameras serve to protect police and provide no minimal protections or transparency for members of the public. This includes the discretion by police of when they turn on the cameras right through to people not being able to access the footage captured of them.” commented Shoebridge.

Law on Police Using Body Worn Cameras in NSW

Pursuant to section 12(1) of the Government Information (Public Access) Act 2009 (NSW), there is a general public interest in favour of the disclosure of government information.

However, ‘secrecy provisions’ of section 14 state that this presumption may be overridden if it would contravene another Act that prohibits disclosure.

The use of body-worn video (BWV) cameras and the footage created is governed by the Surveillance Devices Act 2007 (NSW) (the Act) which treats BWV recordings as ‘protected information’.

Pursuant to section 40(2) of the Act, penalties of up to 7 years imprisonment apply to those who use, communicate, or publish protected information whilst intending to or being reckless as to whether it may endanger the health or safety of any person, or prejudice the effective investigation into an offence.

The use of body cameras by police is authorised by section 50A, which prescribes that officers can use the devices:

• If they are acting in the execution of their duty,
• If the use of the camera is overt (e.g., they advise members of the public they are being recorded), and
• If they are recording a private conversation, the police officer is in uniform or has provided evidence that they are a police officer to each party to the private conversation.

However, section 50A(3) allows recordings which are inadvertent, unexpected, or incidental.

The decision to use a body camera is discretionary, meaning that police decide whether and when to turn it on, even if a member of the public requests that an encounter be filmed.

Furthermore, police can record private conversations they have with others whether or not all parties consent to the recording.

Standard Operating Procedure prescribes that officers, in making the decision to activate recording, will consider factors such as safety and protection, the need to capture evidence, accountability, and community expectations.

Section 40 of the Act outlines the only situations in which the footage is meant to be used, including:

• Evidence in court;
• Investigations (including complaints against police);
• As training material for police; or
• As otherwise allowed by regulations.

Where footage is to be used to support a charge police may offer the accused and/or their legal representative an opportunity to view the content.

This should be offered before the date of first court mention and/or before entry of a not guilty plea.

If the opportunity is accepted, viewing is to be facilitated under police supervision.

If the footage is not provided by police, they can be subject to requests for the release of information through legal process such as subpoena.

Questions? Call our friendly experienced criminal lawyers Sydney branch today.

Print