 Yes, well hello everyone. I'm talking today about the privacy implications of using drones in Australia. Now Australia is a signatory of an international covenant on civil and political rights which provides that as a signatory we are to provide in our domestic system adequate protection against interference with privacy which sounds all very grained but in actual fact it hasn't worked out quite to be so comprehensive. Privacy in Australia can be reflected in three respects the first of which is privacy of information and that in in fact is as far as we go from a government point of view in response to those obligations it's manifest in the Privacy Act again very grand sounding but all it does is prescribe a system which is called the APPs the Australian Privacy Principles which govern the collection of personal information and the use and disclosure of that information storage and so forth. Personal information has been defined as including images of someone information from which you can identify a person that includes there the video or photographs of them and so those laws apply to Commonwealth agencies so if you're a researcher working for a Commonwealth agency you'll be caught by those laws or a private organization with a turnover of three million dollars or more so there's going to be a lot of small private organizations where those laws have no application at all. If you're working as a researcher for a state agency then you'll be governed by the state laws and they mostly apply something called the IPPs the information privacy principles which also govern the use disclosure and storage of information similar to the APPs but not exactly the sign so some minor and technical differences there that perhaps may have some significance in practice. So when it comes to the other areas of law privacy of communications or something we might otherwise call privacy from surveillance and lastly personal privacy so they are the areas of privacy that we are concerning ourselves when we talk about the types of laws that govern privacy in Australia. Now if we look at personal privacy Australia is the only major common law country and the common law countries tend to be the Commonwealth countries that doesn't have a cause of action that protects privacy. Instead what happens in Australia is that we have to rely that is anyone that has the privacy invaded but would need to rely on the old common law causes of action so things like trespass to land or something called private nuisance. Now trespass to land is an unlawful interference with the land in the possession of another so that has its limitations. A drone that has flown outside the boundary line but which is still filming something happening on the property does not commit a trespass. If someone is only a visitor to the property maybe sunbathing in the backyard they would not have a cause of action for trespass because they're not in possession of the land. That's a notion of possession of land. The land extends only to the height of what's known as a reasonable user. So if the drone is flown at a height that is above that no trespass is committed. What is the height of a reasonable user? How long is a piece of string? It really depends on the circumstances. It would be certainly above roof level and some height beyond that and when it comes to disclosure there are these two types of intrusion when it comes to or invasion when it comes to the common law. We might think of it in terms of an unreasonable intrusion on someone's privacy and then a disclosure of any information that's gained as a result of that intrusion and those types of invasions may be intentional or unintentional. So it would be possible for example for a drone to unintentionally capture the image of someone but then for that information for some reason to be uploaded to YouTube which would be an intentional disclosure. It would be possible if we're looking at someone that's just bought a drone from a JB Hi-Fi to film the neighbor that would be an intentional intrusion and then to upload it to YouTube would be an intentional disclosure. So when it comes to disclosures the only action really in Australia is something called a breach of confidence. Our breach of confidence needs information with a quality of confidence. So that information to be obtained in circumstances importing an obligation of confidence and our use either actual or threatened. Now any sort of intimate activity might be regarded as having a quality of confidence and the fact that it can only be recorded using some sort of surreptitious means which might include flying a drone overhead would satisfy the second element but once that information gets in the public domain so by being uploaded to YouTube then really the confidence is lost. So very limited circumstances that someone can bring in action for breach of privacy under our common law. So trust is to land private use and the breach of confidence being the actions that someone may have available to them. When it comes to privacy from surveillance there are eight jurisdictions in Australia five of those Northern Territory, West Australia, South Australia, South Wales, Victoria they have now passed laws that govern optical surveillance devices that would cover cameras that amounted on drones. Whereas the other three Queensland ACT Tasmania really haven't stepped into the 21st century they've still got laws that only apply to audio devices and so flying a drone in any of those three jurisdictions is not going to be caught by the surveillance laws. And then when we look at the the other five places the laws there unfortunately are not uniform. And so to illustrate the differences I've just got some examples there for you. The top one there back in May this year May 2017 at Sydney a lady stepped out of the shower in her fifth floor apartment looked out the window and saw that she was being watched by a drone. Now the building I've got in the image there is only four stories tall but you can appreciate that in the old days then you might have an expected expectation that you would have privacy unless you were surrounded by buildings of a similar height and that's you kept curtains open. The image to the right there of the backyard you might see in the in the top right side of that image they've got a six foot four six foot tall fence in the old days that might have been expected to give you some expectation of privacy not so today if you fly a drone overhead and the last image there is and I should mention in April this year 2017 in Darwin there was a lady that came home from the gym went skinny dipping looked up and saw that she was being filmed by a drone. The last image at the bottom there is bushland it's possible to have an expectation of privacy even in a public place like that back in June 2012 there was an Austrian politician who stopped his car and ventured into the the deep woodlands with his partner and they're engaged in what was described as an explicit sexual encounter unfortunately he was doing that in front of a camera trap the things that are set up to monitor the activities of little fairy animals and the researchers they got a little bit more than what they expected. While that wasn't a drone case you can imagine that a research drone could just as equally as caught similarly images so let's set up something of a scorecard on how the surveillance laws in Australia might handle those various situations where we can put up there straight away the fact that in Queensland Tasmania the ACT with their laws only applying to listening devices that they would provide no prohibition on filming we can add to that you suffice surveillance laws even though they apply to video devices their laws only prohibit the use of a surveillance device on premises or in a vehicle where they've been placed there without the consent of the owner or the the occupier. By contrast WA and the Northern Territory prohibit the recording in each of those situations so the lady that went skinny dipping in her backyard pool in the Northern Territory would have had would have been able to invite the law there if she had known who the operator of the drone was and that's another issue besides all of these things is that unless you know the the owner or the operator of the drones might be very difficult to see any sort of records and finally for the other two states Victoria would only apply to the situation of the person stepping out of the shower in the apartment because their laws do not apply to anything occurring outside of a building and in South Australia their laws don't apply to anything happening in public so they would not apply to video filmed of the bushland the other difficulty for persons who have had their privacy invaded in all of these situations is that it's only a prohibition that criminal offence if the authorities take action there's no civil remedy for anyone who's had their privacy invaded there's no way that they can get a remedy in the form of compensation or something of that nature okay so because of those limitations in each of those places we have had five law reform commissions that have recommended that there should be at some time in the future a statutory cause of action enacted which provides a civil remedy for someone who's had their privacy invaded either in the form of an invasion an unreasonable invasion or a disclosure of their public facts their private facts to this day no government has acted on those recommendations we've had a House of Representatives inquiry into drones which has made a similar recommendation again nothing has come of that we currently have a Senate inquiry that's looking into the question of drones one of the issues they're going to be looking at is privacy so we will see what comes of that with their recommendations and what action government may or may not take so this is then a summary of of the situation with Australia's privacy laws that we did have this we do have this international obligation the most we've done is under the privacy act to provide laws governing the collection use disclosure of private information which applies to images but they only apply to Commonwealth agencies private agencies with a turnover of three million dollars or more state laws apply to state agencies common law doesn't provide much help in in the case of images that might be taken by drones there are surveillance devices laws in five Australian jurisdictions but they're inconsistent three Australian jurisdictions don't have any at all there have been these recommendations so it's a case of watch this space with those but to this day nothing's come of them and maybe nothing ever will and I've added there an article that I've written that says examine this this whole area so I've got there with the reference in case you'd like to look at the detail a little bit closer so there you have it that's the law of privacy as it applies to drones