Caripis v Victoria Police (Health and Privacy) [2012] VCAT 1472

1. Ms Caripis attended a climate change protest at Hazelwood power station on 10 October 2010. Victoria Police filmed and took photographs of the event and retains those images. Ms Caripis complains that the retention of images of her is an interference with her privacy. She contends that the relevant provisions of the Information Privacy Act 2000 read as they must be with the Charter of Human Rights and Responsibilities Act 2006 require that the images of her be destroyed or permanently de-identified. Further she contends that the Public Records Act 1973 does not prohibit destruction or de-identification of the images and that their retention is unlawful under the Charter.
2. Victoria Police have collected no other information about Ms Caripis, not even her name. They maintain that the retention of the images is not an interference with her privacy or any right under the Charter, that they are required by the Public Records Act to preserve the records in question and that the Tribunal has no jurisdiction to consider the issue of unlawfulness under the Charter.
3. At the hearing, Ms Caripis, who had provided a statement, gave evidence and was cross examined. For the Respondent, Senior Sergeant David Watson and Superintendent Therese Walsh, who had also provided statements, gave evidence and were cross examined.

1. Senior Sergeant Watson's uncontested evidence was that over 90% of Victoria's power is generated by power stations in the Latrobe Valley. Most of that power is generated by the four large coal-fired power stations - Hazelwood, Yallourn, Loy Yang A and Loy Yang B. It is a matter of common knowledge that those in our community concerned about climate change see brown coal power stations as major contributors to climate change.
2. The protest in October 2010 was not an isolated incident:
   • Sergeant Watson said in his statement that there are regular incidents involving environmental protesters at power stations or related sites in the Latrobe Valley and police are called when they involve unlawful activity such as trespass to private property.
   • Sergeant Watson described one such incident - a protest in May 2009 at Hazelwood, during which 14 people scaled the perimeter fence and seven chained themselves to machinery.
   • In September 2009, as also stated in Sergeant Watson's uncontested evidence, there was a mass protest at Hazelwood attended by 500 protesters. On that occasion police arrested about 22 people for trespass and one person was charged with (and later found guilty of) assaulting police.
3. In short it was not contested that large coal-fired power stations have been the target of protest action and it is common knowledge that many in our community continue to regard climate change as a very important issue.
4. Superintendent Walsh said in her statement that "effective police management in the Latrobe Valley must involve support for the power stations to conduct their business". This was the general context in which Victoria Police collected and retains the information which is the subject of this dispute.

1. The Complainant Ms Caripis is a member of the Switch Off Hazelwood collective which organized the protest on 10 October 2010.
2. The protest was endorsed by a number of environment groups and formed part of an "International Day of Climate Action" which had been organised by the international organisation 350.0rg.
3. The Collective (according to an extract from its newsletter attached to Ms Caripis' statement) advertised the protest to its members including the following words "There'll be a professional photographer provided by 350.0rg to get some shots of our action and send them out around the world,..." This paragraph followed one describing the plan for a demonstration of a "human solar thermal power station". Similarly, the material from Friends of the Earth said "Photo Opportunity: Hundreds of protesters each using large home-made reflectors will focus the light of clean energy on a ten meter power tower" and "Photos and videos from thousands of simultaneous events across the planet will be available for the media at 350.0rg/media".
4. The evidence from both parties was that the protest was a peaceful and good-natured event with no unlawful activity and no arrests. Senior Sergeant Watson's uncontested evidence was that three police officers took a total of 70 minutes video footage and seven still photographs. In addition, 124 minutes of aerial video footage was taken from a police helicopter. All this footage is retained by Victoria Police.
5. It was not in dispute that no other information was collected about Ms Caripis. But for her bringing this proceeding, the Respondent has no record connecting the images with her name or any other personal information concerning her. The Respondent's evidence (given by Senior Sergeant Watson) was that the footage is held on a disk in a locked cupboard at the "Morwell Crime Desk".
6. Ms Caripis appears in four segments of the ground level video footage. The total time when her image is visible is less than 20 seconds. I watched the four short segments which were produced by the Respondent. In one of them, while someone who knows Ms Caripis and is looking for her might recognise her figure, her face is not identifiable. In another, half of her face appears in profile for perhaps less than one second as the camera pans across a group. In a third, the camera pans across faces directly in front of it and Ms Caripis waves at the camera and appears to speak. In the fourth, the camera seems to zoom in on a group near Ms Caripis, but not on her directly although again her face is clearly visible for a few seconds.

The Information Privacy Act, the Charter of Human Rights and Responsibilities Act and the Public Records Act

1. Under s. 14 of the Information Privacy Act 2006 (IP Act), an act or practice of an organisation is an interference with the privacy of an individual only if it is contrary to or inconsistent with an Information Privacy Principle (IPP). The IPPs are set out in a schedule to the IP Act. Section 16 of the IP Act provides that an organisation must not do an act or engage in a practice which is contrary to an IPP "in respect of personal information collected, held, managed, used, disclosed or transferred by it".
2. Ms Caripis complained to the Privacy Commissioner (as section 25 of the IP Act permits) that the retention of images of her was an interference with her privacy. The Commissioner referred her complaint to the Tribunal as required by section 29 of the IP Act. The detail of those provisions is not relevant to the issues in this proceeding.
3. VCAT's jurisdiction to hear the complaint appears in section 39 of the IP Act, which provides that the Tribunal may hear a complaint referred to it under section 29.
4. It was common ground that the images of Ms Caripis are "personal information" as defined in the IP Act. Ms Caripis complains that retention of the images of her is contrary to IPP 4.2, which provides:

"4.2 An organisation must take reasonable steps to destroy or permanently de-identify personal information if it is no longer needed for any purpose."

1. Section 6(1) of the IP Act is also relevant. It provides:

"(1) If a provision made by or under this Act is inconsistent with a provision made by or under any other Act that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect".

1. Section 19 of the Public Records Act 1973 provides that it is an offence to damage or destroy a public record unlawfully and that destruction in accord with a standard established under section 12 of that Act is lawful. Because of section 6 of the IP Act, section 19 of the Public Records Act would prevail if there were any inconsistency between it and IPP4.2. For an example where this was applied I was referred to the Tribunal's decision in Bergman v Department of Justice [2012] VCAT 363 where Judge Harbison said at 54: "As the images are public records, destruction or de-identification of the images pursuant to IPP 4.2 is subject to any retention requirements under the Public Records Act.".
2. Accordingly, the only lawful means of destroying or altering the records which are the subject of this dispute would be pursuant to one of the standards established under section 12. The Public Records Act does not compel destruction however, whereas the IPP 4.2 may do so (if not overridden by some other Act).
3. Section 32 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) relevantly provides:

"(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision."

1. The human rights referred to are those set out in Part 2 of the Charter. Relevantly they include the following:

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with;

1. (1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds,..

16. (1) Every person has the right of peaceful assembly.

(2) Every person has the right to freedom of association with others..."

1. Part 2 of the Charter also contains section 7 which provides for limitations on the human rights set out in that part. Section 7 provides:

" (1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(b) the importance of the purpose of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person."

1. Sections 38 and 39 of the Charter are also relevant and I will return to them.

1. IPP 4.2 requires the Respondent to destroy or de-identify the images of Ms Caripis if they are "no longer needed for any purpose". So it is necessary to consider the purposes for which the Respondent claims they are needed.
2. The Respondent's evidence at the hearing was that the protest footage was being retained for a number of reasons: intelligence, planning and briefing for further protests, evidence in case a complaint is made against police and because the Public Records Act 1973 requires it.
3. Superintendent Walsh said (in her statement dated 27 June 2012) that the footage was being retained as "potentially useful intelligence". She also said, when speaking of the reasons for gathering intelligence:

"Footage of this kind can be useful in identifying protesters who engage in unlawful activity at other protests. It can also assist police to understand the organisation of a protest and the tactics used by the group and by individual protesters. This kind of intelligence is also used in the risk management process by assisting police and other agencies to assess the threat level of the event and other similar events".

1. When asked about her statement that the footage was only "potentially useful" intelligence, she said it may be relevant in future to know who attended so as to observe "who is with who, who is part of which group". Sergeant Watson also said (in his statement dated 15 June 2012) that the footage "could potentially provide insights and ...could be useful in identifying protesters who engage in unlawful activity in future protests". In re-examination he added that footage such as this helps to identify the tactics used by particular persons and groups.
2. There was no evidence about how mere images which are not accompanied by any information about the names of the persons depicted could be used as intelligence. Superintendent Walsh said that assessment of the intelligence value of information is not her area of expertise and she did not know whether it had been examined by the group of officers who have responsibility for assessing intelligence and she did not know why they were not giving evidence. She said that risk assessment is within her area of responsibility. She added that even footage of a peaceful protest is relevant to risk assessment but that the footage had not so far been examined for the purposes of risk assessment. The Superintendent also said "the climate in which I work is so affected by climate change that all information is potentially relevant".
3. Considering all the evidence and given the context in which the footage was collected and the likelihood of other protests in the Latrobe Valley, I was satisfied that the Respondent needs to retain the footage for the purposes of intelligence, in the sense that it may be useful in future. There was no evidence that the Respondent has any particular interest in retaining the images of Ms Caripis herself any more than any other person in the crowd.
4. Both Superintendent Walsh and Senior Sergeant Watson gave evidence that the footage was being retained for review of the police management of the 2010 protest and planning for future protests and "briefing members before similar protests". Superintendent Walsh said in her statement that the footage was retained "for briefing purposes in the event of future protests at Hazelwood and other power stations. I am very confident that there will be further climate change protest activity in the Latrobe Valley, focusing on coal fired power stations. The footage will be of use to Victoria Police in preparing for and responding to those protests".
5. Superintendent Walsh said that footage of the 2009 mass protest had been used in the briefing and planning session which prepared police for the 2010 protest. She said this was invaluable to her in learning about the site in a fuller way than mere aerial shots of the protest would do. She said that even footage of people standing around (as shown in the segments where Ms Caripis appears) could be useful to show how a peaceful protest looks. She agreed it would be possible to have a briefing for police without such segments, but maintained that all information was potentially useful in preparing for other protests.
6. Superintendent Walsh and Senior Sergeant Watson have prepared and participated in such planning and briefing in the past, so their evidence about the usefulness of the footage was highly relevant. Superintendent Walsh said that viewing footage of a previous protest taken at ground level helped her to become familiar with the site and the way the crowd moved. I was satisfied in the light of this evidence that the footage is needed for the purpose of planning for future protests and briefing police in preparation for those protests. It is not needed in the sense of being absolutely essential, but needed in the sense that it is reasonably required for that purpose and will be useful for that purpose.
7. Senior Sergeant Watson said in his statement that the footage was being retained in case a complaint is made about police conduct at the protest. He agreed in cross examination that it is only remotely possible anyone will now complain about police conduct. At this point, almost two years after the event, it is indeed unlikely that a complaint will be made and I was not satisfied that the footage is now needed for this purpose.
8. The Complainant contended that the Respondent's reasons for retaining the footage have changed over time and referred to correspondence from Senior Sergeant Watson following the protest. I accepted the evidence of Senior Sergeant Watson that the reasons have not changed over time. He said that his reasons for not mentioning the use of the information for planning and intelligence purposes in his correspondence with the Complainant and those representing her was that he was addressing only the issues raised in their correspondence and I accepted that evidence. He had not been asked to set out all the reasons why the Respondent was retaining the images.
9. Both of the respondent's witnesses gave as a further reason for retaining the footage the need to comply with the Public Records Act 1973. I will return to that issue.

1. Ms Caripis complained that retention of the images of her is an interference with her privacy. She contended that IPP 4.2, when interpreted as required by section 32 of the Charter "in a way that is compatible with human rights" meant that the images must be destroyed or de-identified. She said this was because IPP 4.2 must be read "compatibly" with her rights, so that "needed for any purpose" meant "indispensable for a reasonable purpose".
2. It was common ground that section 32 of the Charter requires the interpretation of IPP 4.2, in a way that is compatible with human rights, so far as it is possible to do so consistently with its purpose. Following the decision of the High Court in Momcilovic v R 2011 HCA 34, the law is unclear as to whether the interpretative task imposed by section 32 involves the application of section 7(2).
3. In Slaveski v Smith [2012] VSCA 25, the Court of Appeal summarised the effect of Momcilovic thus:

"20 The operation of ss 32(1) and 7(2) was recently considered by the High Court in Momcilovic v R. So far as s 32(1) was concerned, French CJ, Crennan and Kiefel JJ and Gummow J, Hayne J and Bell J each held in separate judgments that s 32(1) does not require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of Parliament in enacting the provision, but in effect requires the court to discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction essayed in Project Blue Sky Inc v Australian Broadcasting Authority.

21 Their Honours did not achieve the same degree of consensus as to the effect of s 7(2). The Court of Appeal in Momcilovic held that the interpretative task under s 32 does not involve the application of s 7(2), which needs to be considered only for the purposes of making a declaration of inconsistent interpretation under s 36. In the High Court, French CJ, Crennan and Kiefel JJ concluded that s 7(2) 'cannot inform the interpretative process which s 32(1) mandates' but is engaged only when and if 'the statutory provision under consideration imposes a limit on its enjoyment'. '[I]t cannot be interpreted into the content of the rights and freedoms set out in the Charter'. In contrast, Gummow, Hayne and Bell JJ held that s 7(2) does inform the interpretative task to the extent that it will usually be appropriate for a court first to consider whether under s 7(2) there is scope for a justified limitation of the right in issue. It followed, as Gummow J put it, that '[s]ection 32(1) is directed to the interpretation of statutory provisions in a way which is compatible with the human right in question, as identified and described in Part 2, including, where it has been engaged, s 7(2). Heydon J observed that, if s 7(2) were valid, it would inform the interpretative task, but his Honour held that both s 7(2) and s 32(1) were invalid.

22 Hayne and Heydon JJ both dissented with respect to the final orders and Heydon J also dissented on the question of whether the appeal should be allowed. It is unnecessary to decide whether, in these circumstances, the Court of Appeal is bound to follow its own decision in Momcilovic unless satisfied that it is clearly wrong."

1. In Noone v Operation Smile [2012] VSCA 91, Nettle JA (in the minority) expressed a view, but the other judges considered it unnecessary to decide the point. His view was as follows:

"142 There being no majority view as to the operation of s 7(2), one must deal with the point in the way that one thinks to be correct. (Great Western Railway Co v Owners of SS Mostyn 1928 AC 57, 53; Federation Insurance Ltd v Wasson [1987] HCA 34; (1987) 163 CLR 303,314). This Court held in Momcilovic that s 7(2) is to be considered only after the statutory provision in question has been interpreted in accordance with s 32(1). In my view it is appropriate to adhere to that approach until and unless the High Court determines that it is incorrect. (Green v R (2011)283 ALR 1, 23-24 [82] - [87] (Heydon J))".

1. The complainant submitted that applying the above view, the Tribunal should first interpret IPP 4.2 "in a way compatible with human rights", without applying section 7(2) to the interpretation. The Respondent on the other hand submitted that section 32 would apply so that IPP4.2 be given a meaning compatible with human rights only if (applying section 7(2))in its ordinary meaning it appeared to limit a human right in a way not demonstrably justifiable. I had some difficulty with the former approach, as the tribunal's sole task in this issue is to interpret IPP 4.2. The Tribunal is bound by section 32 and if section 7(2) is not part of the interpretative task imposed by it, then there may not be a mechanism for recognising the necessary limitation of some charter rights. As Bell J said in Momcilovic at 682:

"However, if s 7(2) does not inform the interpretive function, there is no mechanism for the court in interpreting statutory provisions in a rights compatible way to recognise the need for rights to be read together. As the Centre's submission noted, some Charter rights are subject to express limitations. Consideration of whether a statutory provision is compatible with the right of freedom of expression must require determination of whether any apparent limitation is a reasonably necessary limitation within s 15(3) of the Charter. It is a task that may be thought to be of the same character as the determination of whether an apparent limitation on the right of peaceful assembly is demonstrably justified within s 7(2).

683 The Victorian Attorney-General's submission that the question of justification in s 7(2) is part of, and inseparable from, the process of determining whether a possible interpretation of a statutory provision is compatible with human rights should be accepted. It is a construction that recognises the central place of s 7 in the statutory scheme and requires the court to give effect to the Charter's recognition that rights are not absolute and may need to be balanced against one another.".

1. Further, it is possible to read the decision of the High Court in Momcilovic as indicating that a majority of the Court were of the view that section 7(2) is part of the interpretative task required by section 32. Ultimately however, it was unnecessary for me to decide which of these two approaches the Tribunal should take in applying section 32 to interpret IPP 4.2. An examination of the jurisprudence about the relevant rights indicated that section 7(2) had no part to play because the ordinary meaning of IPP 4.2 was compatible with the relevant rights.
2. The ordinary meaning of IPP 4.2 is to be arrived at by construing it in the light of the language and purpose of the statute, applying the relevant canons of statutory construction. This was explained in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] and [78].
3. There was nothing in the IP Act itself and I was not referred to any canon of construction (other section 32) which indicated that "needed" should be narrowly read as "indispensable". The ordinary meaning of "needed" is that the item in question is "useful" or "required" not that it is indispensable. A person may be said to need a meal but still be able to survive without one.
4. The ordinary meaning of "any purpose" must also be established by reference to the context where it occurs. The IP Act does not require that the purpose for retention in IPP 4.2 be the same as or related to the primary purposes of collection. This is clear by comparing IPP 4.2 to IPP 2.1(a). The latter permits the use and disclosure of personal information for a secondary purpose only if it is related to the primary purpose of collection and is to be reasonably expected. No such constraint is put upon the retention of collected information. As the Respondent's counsel submitted, this interpretation is consistent with the Privacy Commissioner's Guidelines to the Information Privacy Principles, Edition 3, November 2011, [4-92] - [4-94].
5. The Respondent suggested that consistent with the scope, purpose and subject matter of the IP Act, the term "any purpose" for retention in IPP 4.2 should be limited only to the primary purpose of collection and purposes for which personal information may be used or disclosed, as set out in IPP 2.1. I agree that is the most coherent way to read the legislation. The purposes in IPP 2.1 include the following:

"(d) the organisation reasonably believes that the use or disclosure is necessary to lessen or prevent-

(ii) a serious threat to public health, public safety, or public welfare; or

(e) the organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities; or

(f) the use or disclosure is required or authorised by or under law; or

(g) the organisation reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by or on behalf of a law enforcement agency-

(i) the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction;".

1. The purposes for which I have found the protest footage is retained, namely planning and briefing in the event of future protests, intelligence and compliance with the Public Records Act 1973 all fall within the purposes described in IPP 2.1 to which I have referred.
2. The ordinary meaning of IPP 4.2 is that personal information must be destroyed or permanently de-identified if it is no longer useful or required for a purpose contemplated by IPP 2.1.
3. Turning then to the jurisprudence, is this ordinary meaning compatible with the relevant human rights?

Whether the ordinary meaning of IPP 4.2 is compatible with the Complainant's rights

1. The Complainant submitted that the relevant human rights are the right to privacy in s 13(a) of the Charter, the right to freedom of expression in s 15 and the right to peaceful assembly in s 16.

1. The parties each referred to cases from Europe and the United Kingdom concerning Article 8 of the European Convention on Human Rights , which (relevantly) provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

1. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or... for the prevention of disorder or crime... or for the protection of the rights and freedoms of others."

1. The Complainant referred to Von Hannover v Germany (no. 2) [2012] ECHR 228, in which the ECtHR held that protection of one's image was a part of the right to privacy. However, it was relevant that the case concerned publication of photographs taken without the individual's consent. It was quite different to the circumstances of the present case.
2. The Respondent relied upon Friedl v Austria, European Court of Human Rights, 26 January 1995. The protagonist in that case had been part of a sit-in to draw attention to homelessness in Vienna. The police took photographs and video footage. The Commission found no violation of human rights:

"49. In the present case, the Commission has noted the following elements: first, there was no intrusion into the "inner circle" of the applicant's private life in the sense that the authorities entered his home and took the photographs there; secondly, the photographs related to a public incident, namely a manifestation of several persons in a public place, in which the applicant was voluntarily taking part; and thirdly, they were solely taken for the purposes, on 17 February 1988, of recording the character of the manifestation and the actual situation at the place in question, e.g. the sanitary conditions, and, on 19 February 1988, of recording the conduct of the participants in the manifestation in view of ensuing investigation proceedings for offences against the Road Traffic Regulations.

1. In this context, the Commission attaches weight to the assurances given by the respondent Government according to which the individual persons on the photographs taken remained anonymous in that no names were noted down, the personal data recorded and photographs taken were not entered into a data processing system, and no action was taken to identify the persons photographed on that occasion by means of data processing.

1. Bearing these factors in mind, the Commission finds that the taking of photographs of the applicant and their retention do not amount to an interference with his right to respect for his private life within the meaning of Article 8 para. 1."

1. A relevant similarity between Friedl and the present case is that no other data about the protagonist had been retained.
2. In Peck v The United Kingdom (2003) 36EHRR 41, as the Complainant pointed out, the ECtHR said (at [59]) that although the monitoring of an individual in a public place does not as such give rise to an interference with the individual's private life, "the recording of the data and the systematic or permanent nature of the record may give rise to such considerations". In the present case, there was nothing systematic about the recording of images of the Complainant and unlike the protagonist in Peck she was aware that the occasion would be photographed. No other data besides her image was recorded.
3. While the record created here is potentially a permanent one, the difference between the present case and one like Peck is that people participating in the protest attended by the Complainant invited the taking and publication of photographs, which are by nature permanent. Once photographs are published, anyone may see and copy them. In the course of the Complainant's evidence, she said that at one point after either the 2009 protest or the 2010 (both of which she attended) photographs of the events on Facebook included a "tag" of her name, which she later removed.
4. In S and Marper v United Kingdom [2008] ECHR 1581, which concerned the retention by police of DNA samples and fingerprints, the ECtHR said (citations omitted)

"67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden). The subsequent use of the stored information has no bearing on that finding (Amann v. Switzerland). However, in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained (see, mutatis mutandis, Friedl, cited above and Peck v. the United Kingdom, cited above)."

1. The Court concluded in that case that retention of DNA and fingerprints in the circumstances (where they had been obtained after an arrest and charges had not proceeded to trial) was an interference with the private lives of the persons concerned. The circumstances - including the type of data, the amount of information obtainable from it and that fact that it was associated with the names of the persons concerned - distinguish it from the present case.
2. In Wood v Commissioner of Police of the Metropolis [2009] EWCA Civ414, the United Kingdom Supreme Court of Judicature Court of Appeal found that the Appellant's right to privacy was interfered with when police took photographs of him leaving an Annual General Meeting of a company which was the target of a campaign by an organisation of which the Appellant was a member. The Court referred to the circumstances in which the photographs were taken

"45. ...The Metropolitan Police, visibly and with no obvious cause, chose to take and keep photographs of an individual going about his lawful business in the streets of London. This action is a good deal more than the snapping of the shutter. The police are a State authority. And as I have said, the appellant could not and did not know why they were doing it and what use they might make of the pictures.

1. In these circumstances I would hold that Article 8 is engaged. On the particular facts the police action, unexplained at the time it happened and carrying as it did the implication that the images would be kept and used, is a sufficient intrusion by the State into the individual's own space, his integrity, as to amount to a prima facie violation of Article 8(1). It attains a sufficient level of seriousness and in the circumstances the appellant enjoyed a reasonable expectation that his privacy would not be thus invaded. Moreover I consider with respect that this conclusion is supported by the judgment of the Strasbourg court in Marper. It will be recalled that the first sentence of paragraph 67 reads...."
2. In addition to these useful comments, the Respondent directed the Tribunal's attention to the following analysis by Laws LJ in that case (at [22]):

"This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by Article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications. First, the alleged threat or assault to the individual's personal autonomy must (if Article 8 is to be engaged) attain "a certain level of seriousness". Secondly, the touchstone for Article 8(1)'s engagement is whether the claimant enjoys on the facts a "reasonable expectation of privacy" (in any of the senses of privacy accepted in the cases). Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of Article 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the State pursuant to Article 8(2). I shall say a little in turn about these three antidotes to the overblown use of Article 8."

"We can see, then, that while an individual's personal autonomy makes him the master of all those facts about his own identity of which the cases speak, his ownership of them depends by law on there being a reasonable expectation in the particular case that his privacy will be respected. This may operate as a factor limiting the scope of the Article 8 right."

1. The seriousness of the threat to privacy and the reasonableness of expecting privacy in the circumstances are relevant in the present case. The Complainant agreed in cross-examination that many people took photographs of the 2010 protest and uploaded them to social media and that there is still an extensive gallery on the website "Flickr". She said she had not checked whether her image appeared amongst them. She agreed also that while she was surprised by the number of police at the protest she was not surprised that media and police took film and photographs of the event. This, together with her knowledge that others could retain and publish the photographs (obvious from her familiarity with the advertisements about the protest) and her knowledge that 350.0rg intended to publish photographs, indicate that the Complainant could not have had a reasonable expectation of privacy in relation to the taking, publication or retention of photographs.
2. Further, the facts that the segments containing images of the Complainant do not focus on her, that her face is only identifiable in two very short segments (out of 70 minutes) panning across the crowd and that no other information about her, not even her name, was recorded or retained, indicate that the retention of photographs in this case lacks the level of seriousness which would engage her right to privacy. The circumstances were such that the taking of photographs was to be expected, was even encouraged and the evidence is that many were taken and a number of images from the event, depicting members of the crowd, possibly even the Complainant, are still publicly displayed.
3. In Catt v The Commissioner of Police of the Metropolis [2012] EWHC 147, Mr Catt complained about the collection and retention of data concerning his attendance at various protests. He was 87 years old and of good character. However, he was closely associated with a group called "Smash EDO" which was campaigning against a US arms trading company and had been responsible for "serious persistent criminality and posing a significant public order problem" (para 64).
4. Gross LJ analysed the situation in the terms set out above by Laws LJ in Wood and decided that the compilation and retention of reports about Mr Catt's very public activities did not engage (or infringe) his right to privacy.
5. The Complainant's counsel sought to distinguish Catt from the present case, emphasising that it was the existence of the Smash EDO campaign which most influenced that decision. My reading of the decision of Gross LJ (see 39 to 46) was that the public nature of Mr Catt's activities was also important in leading to the conclusion that his right to privacy was not affected by the gathering and retention of information about him.
6. The present case does not involve an ongoing organised campaign like "Smash EDO". However, it does involve an identifiable place or set of places (the brown coal power stations in the Latrobe Valley, of which Hazelwood is one) and the strong likelihood of further protests there. Hazelwood has been the subject of protests in the past and is likely to be so again, according to the evidence of Superintendent Walsh and Senor Sergeant Watson - neither of which I had any reason to doubt.
7. Accordingly, the circumstances in this case are more like those in Catt than those in Wood, so that retention of the images of the Complainant authorised (or rather not prohibited) by IPP 4.2 in its ordinary meaning, and for the purposes which I have found fall within that meaning, remains consistent with her right to privacy.

1. It was submitted for the Complainant that the right to participate in a peaceful non-violent protest exemplifies the rights to freedom of expression (section 15 of the Charter) and peaceful assembly (section16). That seems absolutely correct to me.
2. Ms Caripis's evidence was that while she continues to engage in activities like the Hazelwood protest and has attended 6 or 7 rallies since then, she has been conscious of people taking photographs and has made an effort to avoid being photographed. She is more conscious of where she stands and considers her privacy now when she attends such events. She is concerned and unsettled by the retention of images of her.
3. Ms Caripis's counsel referred to Segerstedt-Wiberg and Ors v Sweden [2006] ECHR 597 in which the storage of personal data about affiliations and activities was held to be an interference with the rights to freedom of expression and peaceful assembly. That case concerned the extensive collection of data over many years and (by definition) the data included the names of the persons concerned. This case is very different. Without the present proceeding, the Respondent would have no means of putting the Complainant's name to the face on the footage. I accepted the Complainant's evidence that she has been made more self-conscious by knowing that the police retain images of her, but I was satisfied this knowledge has not prevented her from participating in similar protest events.
4. Ms Caripis's counsel referred to the chilling effect which public surveillance and particularly police surveillance has been held to have on the exercise of the rights to freedom of expression and peaceful assembly.
5. Ms Caripis said in her statement that she was disturbed by the Respondent's suggestion that the footage is required for "intelligence" purposes in case of future protests. While the footage taken that day includes her, there are only brief glimpses in 70 minutes of footage so I was not persuaded in the circumstances that the Complainant had any reasonable grounds for feeling that the Respondent is focussed on her or her activities.
6. In United Macedonian Organisation Ilinden v Bulgaria (No2) [2011] ECHR 1723, a "chilling effect" was described in relation to bans and restrictions on the conduct of rallies and arrests and seizure of materials at those rallies. These acts of the authorities did not impede the holding of protests, but had a chilling effect on them. I was not persuaded that Ms Caripis's increased self-consciousness was like that chilling effect. It was not clear to me that the retention of images of her has changed the way she exercises her rights. What she described was more like a change in the way she feels about exercising her rights.
7. In Wood, the chilling effect on the exercise of lawful rights was described in relation to the deployment of police and their intrusive behaviour in following and questioning Mr Wood (at 92). In the present case, it is the retention rather than the taking of photographs which is complained of and I was not persuaded that the cases are so similar that I ought to see the retention of the images as having the same sort of chilling effect.
8. In summary, I was not persuaded that retention of the images, in circumstances where many photographs were taken by all sorts of people that day, where some of those still appear on public websites and where the Respondent has no other data about the Complainant, not even her name, was inconsistent with the exercise of her rights to freedom of expression and peaceful assembly.
9. Therefore, within the ordinary meaning of IPP4.2, consistent with its purpose and interpreting it in the light of the relevant human rights, IPP 4.2 is compatible with those rights. That ordinary meaning allows the Respondent to retain the images for the purposes it has claimed, since they fall within IPP 2.1.

The requirements of the Public Records Act

1. Section 12 of the Public Records Act 1973 provides for the establishment of standards for "the efficient management of public records" including their disposal. Disposal or destruction of public records is unlawful under section 19 unless it occurs in accord with a standard established under section 12.
2. PROS 10/13 (Disposal Standards) established under section 12 some general standards. It allows (in paragraph 2.5.1) for disposal by "normal administrative practice" of working papers, drafts, extra c pies and similar records. The protest footage does not fall within the description in 2.5.1. PROS 10/13, as a subordinate instrument under a statute, must be interpreted in accord with section 32 of the Charter. However, it is not open to the Tribunal to change the meaning of the words in the course of that task.
3. PROS 05/02 established under section 12 applied to retention and disposal of documents for Victoria Police from 25 May 2005. It was apparently replaced by PROS 10/14 established on 22 December 2010, although I am not aware of the mechanism for revoking the former PROS. It was common ground that it is the applicable standard.
4. The Complainant contended that the protest footage fell within class 1.1.5 or class 1.1.6 of PROS 10/14, which allow for destruction when use is completed.
5. The Respondent contended that the footage fell within class 1.8.5 or 1.8.6 or possibly within class 10.2.1, which have much longer retention periods. The five classes of record raised by the parties are set out in the following table as they appear in PROS 10/14, with the prescribed disposal action in each case.

Evidence obtained through surveillance devices and telephone intercepts

Destroy when required in accordance with the relevant governing legislation

Records of evidence gathered during the investigation of crimes that are not incorporated into briefs of evidence. Includes audio visual records such as in car recordings, station and cell recordings and recordings of interviews

Records documenting ongoing assessment of the severity of threats made or considered to be posed by persons or groups including religious, ideological and issue related groups in relation to public order or an event

Records documenting non-ongoing (one-off) assessments of the severity of threats relating to events. Includes threat assessments for planned events such as sporting, cultural or political events or planned protests.

Records documenting the planned Police response to events such as demonstrations, State funerals and annual sporting events and visits of prominent persons such as persons of public office. Includes operation orders, threat assessments, briefings and plans for Police presence and Police tactics including contingency plans. Also includes records of liaison with event organisers, pre event briefings, deployment and post event reviews.

1. The disposal action prescribed for class 1.1.5 refers to governing legislation. This indicates that class 1.1.5 is intended to include only material gathered in accord with legislation such as the Surveillance Devices Act 1999 or the relevant telecommunications legislation. None of that legislation applied to the protest footage. Since there was no relevant legislation, the footage does not fall within class 1.1.5.
2. Class 1.1.6, apparently corresponds to class 1.3.5 of the former PROS 05/02, which is described thus:

"Description: Master Recordings: Unedited, Not Required as Evidence Refers to original high quality masters or original recordings which may have been migrated (unedited). Disposal action: Temporary Destroy 3 months after decision made not to proceed or when operational/administrative use is concluded Example of Records: In Car Recordings Station and Cell Recordings Interviews "

1. Senior Sergeant Watson, in his letter of 17 November 2010 to the Complainant's representatives, mentioned PROS 05/02 and referred apparently to class 1.3.5, mentioning the need to retain unedited recordings for 3 months after administrative use was concluded.
2. The Complainant contended that PROS 1.1.6 must apply to the protest footage because (amongst other things) it corresponds to 1.3.5 and the letter had relied on it. Senior Sergeant Watson 's later letter of 24 January 2011 (which followed the establishment of PROS 10/14), again replying to the Complainant's representatives, mentioned that no decision had been made about the use of the footage and also referred to PROS 10/14, indicating that the records could be retained for seven years.
3. The Respondent's position in this proceeding is not confined to that taken by Senior Sergeant Watson in his letters. The Respondent is not confined to reliance on 1.3.5 or its equivalent or to the unspecified class in PROS 10/14 mentioned in the Sergeant's later letter. The question for the Tribunal is whether any class in PROS 10/14 which would permit disposal or alteration of the records applies to the footage.
4. According to Senior Sergeant Watson's evidence, the footage was collected for the following purposes: as evidence in the event of charges of unlawful activity; as evidence in the event of a complaint against police; to review the police response and for use in future planning and briefing and as intelligence. As I have already said, I accepted that evidence despite the fact that the last two purposes listed had not been included in the letters to the Complainants representatives in 2010 and 2011.
5. The protest footage does not fall within the description in 1.1.6 because it was not gathered during the investigation of a crime but only for use in case a crime was committed - which did not occur. I note that the wording of PROS 05/02 class 1.3.5 may well have covered this footage, but 1.1.6 does not. It is not open to the Tribunal to alter the plain meaning of the words.
6. Victoria Police contended that the footage was described by 1.8.5 or 1.8.6. Each of those classes refers to "records documenting assessment" of threat in relation to public order, an event or a planned protest.
7. Superintendent Walsh gave evidence that she considered the footage documented assessments. However, that is her opinion and she is not an expert in the classification of documents. Looking at the plain meaning of the words, video footage of the event is not an assessment in my view. That word implies some weighing and consideration of material, whereas the footage is itself the raw material which may need to be assessed. While it may be useful in conducting an assessment of threat, it is not itself an assessment. That is the plain meaning of the words. Even taking section 32 of the Charter in to account, the Tribunal has no power to change the effect of that plain meaning.
8. Of all the classes of documents referred to by the parties, class 10.2.1 best describes the protest footage. It is a record of part of the "planned police response" to the protest. It depicts the deployment of police.
9. If the protest footage does not fall within any class of document described in PROS 10/14 or some other standard set under section 12 of the Public Records Act, then there is no authority for it to be disposed of or destroyed and section 19 would apply to prohibit any such action. In my view however, class 10.2.1 applies. That is the plain meaning of the words as I read them. Accordingly the only authority given to the Respondent to dispose of or alter the records is the standard in class 10.2.1, which permits disposal after 7 years. The requirements of the Public Records Act 1973 prevail over IPP 4.2, but even if they did not, IPP 4.2 does not require the destruction or alteration of the protest footage, as I have already found.

1. Sections 38 and 39 of the Charter relevantly provide:

"38. (1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

39. (1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter."

1. The Complainant contended that under section 39 of the Charter she is entitled to relief on the ground that the Respondent's retention of the protest footage is unlawful (that is, incompatible with her human rights) as described in section 38 of the Charter.
2. The Respondent maintained that the Tribunal has no jurisdiction to consider charter unlawfulness in this case. The Respondent referred to section 14 of the IP Act. That section provides that an act is an interference with a person's privacy only if it is inconsistent with an IPP and not otherwise. The Respondent contended that this leaves no room for a ground of Charter unlawfulness to be added to the complaint.
3. Section 39(1) permits the addition of a further ground of Charter unlawfulness to an existing claim of unlawfulness. It is arguable that a complaint that an act was an interference with privacy is a complaint that the act was unlawful, so that a Charter ground may be added to it.
4. The Respondent also relied upon Director of Housing v Sudi [2011] VSCA 266 to argue that since VCAT has no judicial review jurisdiction it has no power to review the lawfulness of the Respondent's actions under section 38. Certainly the Tribunal has no judicial review jurisdiction. However, I agree with the Complainant that the Tribunal would not be venturing into the realm of judicial review in considering whether the Respondent's retention of the images of the Complainant was unlawful under the Charter. In Sudi, Justice Weinberg said at [281]- [282].

"In my opinion, s39(1) cannot be invoked as the source of VCAT's power to engage in collateral review on Charter grounds. There are two reasons for this. First, as is plain, the section does not confer upon VCAT any power of judicial review. Secondly, the section does not expand any power of collateral review that VCAT might have under ordinary common law principles...

Indeed, it can be argued that the legislative intention disclosed by s 39 is that Charter unlawfulness can be relied upon as a ground in - and only in - a proceeding the object of which is to seek 'relief or remedy in respect of an act or decision of a public authority on the ground that...[it] was unlawful'. That would, by definition, confine such relief to a direct challenge before VCAT, and would exclude any possibility of collateral review."

1. In Sudi, the Director's decision to bring the proceeding was not a matter which the Tribunal could review because the decision was collateral to the proceeding itself. In the present case, the Respondent's decision to retain the images of the Complainant is being directly considered by the Tribunal. The lawfulness of that retention is under review because it is said to be "unlawful" under section 14 of the IP Act.
2. I have already concluded that the Complainant's human rights are not engaged (or interfered with) by the retention of the protest footage. Therefore, while I consider that the question of Charter unlawfulness is within the Tribunal's jurisdiction, it follows from my earlier conclusions that no charter unlawfulness arises from retention of the footage. Further, given that the Public Records Act 1973 requires retention of the footage, the Respondent could not reasonably have made a different decision.

1. The Complainant has not established that the retention of the protest footage including images of her is an interference with her privacy under the Information Privacy Act 2006 Act and the complaint is dismissed.