In a recent report, the Australian National Audit Office (ANAO) detailed “significant shortcomings” in the management by the Department of Immigration and Border Protection of contracts for security and welfare services on Manus Island and Nauru.
One shortcoming identified by the ANAO was that video records and reports of incidents provided by the department and their service providers between 2013 and 2016 were not always able to be reconciled.“… the controller of digital data, when subjected to public scrutiny, can arrogate to itself the power to determine what to release and what to hold on to.”
“There were records of incidents which noted that video existed of an incident, but no corresponding video,” the ANAO audit stated. Also, “there were gaps in the recording of incidents”.
According to the audit, Wilson Security held almost eight terabytes of digital records. But it provided only two terabytes of data to the ANAO. Its explanation was that “the majority of the footage was unrelated to incidents or investigations within the centre”.
It should be a matter of concern that the controller of digital data, when subjected to public scrutiny, can arrogate to itself the power to determine what to release and what to hold on to. But before exploring this potential weakness in accountability, let me take a step back and examine the legal environment in which these issues arise.
Who owns the digital data recorded and uploaded by CCTV operators?
Unless there are contractual stipulations to the contrary, all footage belongs to the organisation (public or private) that owns the equipment, along with anyone who by contract is specified to share that ownership.
Most often, a broader distribution of these images and data happens without any difficulty. Organisations (such as local councils) and private individuals who have any footage that will help police track down a suspect are usually only too willing to hand over that evidence. An example would be tracing the movements of assailants and their victims.
But when that footage is embarrassing to its owners, especially when the material becomes subject to private legal proceedings, accessibility tightens up considerably.
For example, in February 2006 rock band Powderfinger’s Ian Haug was ejected from Jupiters Casino and was injured in an ensuing scuffle. He sued the casino, alleging that its security staff had used excessive force in causing his injuries.
To prepare the case against the casino, Haug’s solicitors sought CCTV footage from Jupiters. It refused, saying that the digital records were private.
The Queensland Court of Appeal agreed. Any order that Jupiters hand over these records in such a case, it said, would compromise the casino’s proper functioning.
In contrast, in 2013 the Victorian Civil and Administrative Tribunal (VCAT) granted access to CCTV footage recorded at the Caulfield racecourse to a person considering legal action against the police who had been deployed there. On balance, said the VCAT, such disclosure was not unreasonable so long as it was used solely for the purposes of legal action and was not more widely distributed.
Public versus private
What about footage that is filmed in a public facility? Again, the law engages in a balancing act. In Horrocks v Department of Justice, the VCAT was asked by a prisoner to order the release of footage that, he alleged, captured an assault on him. The VCAT refused to make the order, citing the unreasonableness of making available, without restriction, a permanent record of the image and identity of the relevant correctional officers.
Government departments do not, however, always get their own way. The determination of the Office of the Australian Information Commissioner in the case of “BZ” and Department of Immigration and Border Protection illustrates that government-run facilities may be subject to disclosure orders in appropriate circumstances.
In this case, the applicant sought CCTV footage of his treatment at the hands of an employee at the Villawood Immigration Detention Centre. The commissioner found that it was not unreasonable for the department to release edited footage of the incident to the applicant to allow him to advance his legal claim for compensation.
So where does this leave the “disappeared” six terabytes of digital data that Wilson Security withheld from the ANAO? The legal issue is somewhat blurred by the fact that the company that the government contracted to run its offshore detention centres, Transfield Services, sub-contracted its security obligations to Wilson Security.
Wilson’s first allegiance, contractually, is to Transfield, not the government. Assuming that contractual maze is negotiable, any party interested in pursuing the missing footage would not only need to establish a legal interest in it, but also jump the next legal hurdle of proving, on balance and without seeing the material, that it was not unreasonable for the department to track it down and then open it up to scrutiny.
Interested parties are unlikely to be supported in any such endeavour by the minister, who would see this as little more than a political “fishing” exercise.
Simply stated: don’t expect to see the footage from the missing six terabytes any time soon.
Dr Rick Sarre is Professor of Law, University of South Australia
This article was first published by The Conversation.