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Article by Samaya Chanthaphavong | Published August 15, 2012
Lisa Caripis took Victoria Police to the Victorian Civil and Administrative Tribunal over their refusal to destroy surveillance footage of her taken at a peaceful protest in 2010. The hearing took place in mid-July. Right Now spoke to Lisa about the right to public protest, police surveillance and her feelings about the participating in the legal system.
Right Now: You recently had your VCAT hearing – can you tell us how you felt going into it?
Lisa Caripis: It’s funny; back at the directions hearing in February when the trial date was set for 17-18 July, it seemed so far away. But somehow, a couple of weeks out from the hearing, I felt taken by surprise and unprepared, even though I knew my legal team had it all under control and I had been in contact with my lawyer almost every week since February for one thing or another. (One lesson I will take from this experience is not to underestimate the amount of paperwork involved in legal proceedings!)
I think it’s very easy to get “cold feet” in these kinds of situations and wonder whether it’s all worth it. Getting nice messages of support made a huge difference.
So, the time immediately before the hearing was a little nerve-wracking. I think it’s very easy to get “cold feet” in these kinds of situations and wonder whether it’s all worth it. Getting nice messages of support made a huge difference.
I was also really fortunate to have a razor-sharp legal team – the Environment Defenders Office and two pro bono barristers. Knowing that my case was in capable hands was certainly reassuring as I walked into the Tribunal on the first morning of the hearing.
Are you able to provide a quick summary for our readers on the main themes and points argued on your behalf in the hearing?
I can’t comprehensively cover all arguments put forward by both sides (that would take two days!), but will aim to highlight some of the main points.
There are four segments of protest footage that the police have identified me in, which were screened at the start of the hearing. It was accepted by both sides that my image in that footage was my “personal information”, which is protected under information privacy law.
By law, the police have to “take reasonable steps” to de-identify or destroy personal information that is no longer needed for any purpose. We argued that this doesn’t mean they can retain it for any purpose – they can’t use the footage as a screen saver, for example. It must be a reasonable purpose, for example linked to the reasons for which the footage was collected.
We also argued that “need” does not mean “could be useful” or “potentially useful” – there needs to be some requirement or necessity. We argued that this would be an interpretation of the Information Privacy Act 2000 that was consistent with human rights.
I was just concerned about the fact that the police had argued that they could, and indeed were obliged to, hold on to footage taken of me, and other people like me, for fifty years.
Can you comment on the main themes and points argued by the Police in wanting to retain footage?
The Police put forward four reasons for needing to retain the footage without destroying the segments containing me and without obscuring my image.
First, they argued that the footage is needed as evidence in case someone makes a complaint about police conduct at the 2010 protest. Second, the police submitted that it could be used in planning and for briefing officers in the lead up to future protests. They also argued that they needed to hold on to it because of its potential intelligence value.
The police submitted that they have to keep the footage because the 10/14 Public Records Office Standard requires them to retain records that document an on-going, or alternatively a one-off, “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” – for fifty years (classes 1.8.5 and 1.8.6.). They argued the footage may also constitute a record documenting police response to major events, which must be held for seven years.
The Tribunal has reserved its decision to consider the submissions. It will be a matter of time, possibly months, before we know how this case will be resolved.
We had previously spoken about the importance of the Victorian Charter of Human Rights in relation to freedom of expression and the right to assembly as well as wanting to clarify the length of time Victorian Police can legitimately retain footage. Do you feel that you were able to adequately convey this to the Tribunal?
It will be interesting to see how the Tribunal deals with the arguments relating to the Charter of Human Rights.
Very few cases in Victoria have dealt with the right to privacy under the Charter in relation to surveillance. As a result, both sides made submissions to the Tribunal which relied on human rights cases from the United Kingdom and European Court of Human Rights. We argued that there is a relatively clear line of authority in our favour. It’s now up to the Tribunal to decide whether and how these decisions apply in this case.
The rights of freedom of expression and peaceful assembly were most recently argued in the Federal Court in the Occupy Melbourne case. The Court is yet to hand down its judgment in that case, so we’ll have to see whether it offers anything helpful.
I can see why people would give up on legal proceedings; you have to be quite determined to see them through.
Following on from above, was there a sense within the Tribunal that this was a “test” case for civil liberties or do you believe it was seen and dealt with as a case simply about procedural regularity in relation to footage retention?
I think it was pretty clear on all sides that this case brings novel questions to the Tribunal in a highly unsettled area of law with implications beyond my individual complaint. The Tribunal Member was very interested in all submissions. It’s certainly not the type of case that gets heard everyday!
Actively navigating through the legal system, on an untested issue such as this, did you have expectations as to what the hearing would or would not involve? Were your expectations met?
At the outset I didn’t realise that the law in this area was so unsettled. I was just concerned about the fact that the police had argued that they could, and indeed were obliged to, hold on to footage taken of me, and other people like me, for fifty years. It just did not seem right.
As we got closer to the hearing, I started to get a sense of the importance of the case for clarifying key aspects of privacy and human rights law. I think that realisation actually helped me go into the hearing somewhat more confidently: I knew that whatever the outcome, we’d at least have a better understanding of where the law stands on these issues.
I didn’t anticipate that so much time would be involved in the whole process. It’s been almost two years since the protest and six months since VCAT started hearing the matter. I can see why people would give up on legal proceedings; you have to be quite determined to see them through.
I also didn’t expect the experience to as isolating as it was at times. I was lucky that I had a great legal team and friends who did their best to back me up, but your resolve is definitely tested when you’re putting yourself out there in a case like this. Having the right support – legal, moral and financial – is vital.
In terms of the hearing itself, I was called to give evidence and be cross-examined almost as soon as the hearing started. That’s when the nerves set in. Despite making a couple of mistakes at the outset (like sitting down instead of standing when I had to take the oath – I clearly haven’t watched enough courtroom dramas), before I knew it, cross-examination was over and that was it for my involvement in the hearing.
On the whole, it’s definitely been worth sticking it out. The case has really resonated with a lot of people, and it’s thanks to groups like Right Now that it has been possible to get the message out there and get people talking about these issues.