• Sat. Oct 1st, 2022



County Court ruling on Body Worn Camera footage has shades of Kafka’s The Trial for Victorians

I had my own small experience of this recently, courtesy of a snap decision to retrieve my dog’s ball from the railway tracks near home. Next train: 12 minutes. Time spent dropping from platform to track, retrieving ball, and ascending from tracks to platform: five seconds. Cost: $413.

A pair of PSOs caught me in the act, and I couldn’t deny I was guilty as charged. But I could argue the charge ought not stand because the PSO who issued it blatantly lied by claiming (a) he wasn’t going to fine me and (b) he didn’t even have the power to do so. A minute later, he was scribbling away.

I was willing to risk some late fees to test the hypothesis that his deceit was a greater offence than my ball retrieval. Hell, there was a principle at stake. Or maybe I was just bored (it was the early weeks of lockdown; little did I know how much more boredom lay ahead).

No matter how firm or flimsy my case, I could only make it with the aid of the footage captured on his body camera, footage he assured me I could readily access. That was lie (c).

In May I wrote to Victoria Police seeking access in full, and paid my $29.60 fee.

In July, they wrote to say they had “confirmed the existence of body-worn camera (BWC) footage related to this incident”, but I would not be getting said footage because section 30D of the Surveillance Devices Act treats it as “protected information”. And releasing protected information is prohibited under section 38 of the same act.

I’m no lawyer, but that sounded a lot like “because we said so”.

I could appeal though, so I did.

Protective Services Officers have many of the powers of full police, including the right to film you.

Protective Services Officers have many of the powers of full police, including the right to film you. Credit:Jason South

In September I received the decision of the Office of the Victorian Information Commissioner. Again it was a no. But the FOI officer was obliged under the relevant act to find a new reason to reject my request, not merely parrot the previous one. She found it in the fact I had asked for the footage in full.

For good measure, she also reminded me such footage is “protected”, and that the “unauthorised disclosure of such information is an offence”.

But hang on: if she authorised the release of the footage then the footage’s release would no longer be unauthorised … right?

Again I could appeal, to VCAT this time.

Trust me, I considered it. But with the fine and penalty fees now approaching $600, my blood boiling, and my pursuit of this exercise in accountability taking up way too much time, I paid up.

Does my case matter? Not at all. But the principle certainly does.

Police and PSOs have the right to film you, and to use that footage (in edited form, if they wish) in prosecuting you. But you do not have the right to access that footage in your defence.

If police and PSOs have nothing to hide, there can be no justifiable reason to prevent the release of their body camera footage.

And if they do have something to hide – in cases of corruption or brutality or forced confessions, say – there is every reason, on the principle of justice for all, to compel them to release it.

Every reason, that is, except the law as it currently stands.

Email the author at kquinn@theage.com.au, or follow him on Facebook at karlquinnjournalist and on Twitter @karlkwin

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