From Fox News - iPhone can be turned into a bodycam to record police - Australian report

[Zenaan Harkness]

An Australian status update on recording police in public:


 Date: Thu, 4 Oct 2018 17:11:55 +1000 Subject: 10.3 Unofficial
 Recordings – Members of the Public

*NSW POLICE FORCE MEDIA POLICY 2016*

10.3 Unofficial Recordings – Members of the Public

There is widespread ability amongst members of the public to capture
photographs and video images on smart phones, tablets and other
recording devices. Police Officers should expect that their behaviour
will be recorded while in public places.

When in public places, particularly at the scene of an incident or
operation, be aware that people other than official media
representatives may record the presence, actions and words of Police
Officers for unofficial purposes.

Police Officer comments or behaviour, whether exemplary,
controversial or inappropriate may be streamed live or recorded and
later posted onto social media and then picked up by the traditional
media. Off-hand comments made to a passer-by may be recorded and
later repackaged by the media as an official police statement,
especially if it is controversial or discloses confidential
operational information.

Members of the public have the right to take photographs of or film
Police Officers, and incidents involving Police Officers, which are
observable from a public space, or from a privately owned place with
the consent of the owner/occupier.

Generally speaking, if a person takes photographs or videos Police
Officers, operations or incidents from a public space, Police do not
have the power to:

·  prevent the person from taking photographs or filming
·  confiscate photographic or filming equipment
·  delete images or recordings, or
·  request or order a person to delete images or recordings.

If Police Officers try to confiscate equipment or interfere with
members of the public to delete images or recordings, the officers
may be liable for prosecution for assault or trespass to the person
concerned.

Police may have powers to prevent a member of the public from taking
photographs or filming, or confiscate equipment or delete images,
only in certain limited circumstances such as:

·  where they have been given special powers under anti-terrorism
legislation, or
·  where taking photographs or filming images amounts to offensive
conduct under the Summary Offences Act 1988.

*RECORDING LAWS*
Surveillance Devices Act 2007
Section 7 - Prohibition on installation, use and maintenance of
listening devices
(1) A person must not knowingly install, use or cause to be used or
maintain a listening device:
  (a) to overhear, record, monitor or listen to a private
  conversation to which the person is not a party, or
  (b) to record a private conversation to which the person is a
  party.
(2) Subsection (1) does not apply to the following:
  (d) the use of a listening device to record a refusal to consent
  to the recording of an interview by a member of the NSW Police
  Force in connection with the commission of an offence by a person
  suspected of having committed the offence,
(3) Subsection (1) (b) does not apply to the use of a listening
device by a party to a private conversation if:
  (a) all of the principal parties to the conversation consent,
  expressly or impliedly, to the listening device being so used, or
  (b) a principal party to the conversation consents to the
  listening device being so used and the recording of the
  conversation:
    (i) is reasonably necessary for the protection of the lawful
    interests of that principal party, or
    (ii) is not made for the purpose of communicating or publishing
    the conversation, or a report of the conversation, to persons who
    are not parties to the conversation.


*ANALYSIS OF RECORDING LAWS*
A video camera held by a person cannot be construed as a listening
device under the meaning of this Act. When recording an incident with
police, it is not being used in any covert manner and is plainly
visible. Even if the video camera was being used covertly, this has
no relevance. If the video camera is being used in a public place,
this is a lawful activity.  There is no expectation of privacy in any
public place.

Furthermore, a conversation on the side of the road between a
motorist and a policeman is NOT a private conversation. Anybody in
the vicinity can listen to it, therefore recording the conversation
is lawful.

The principle is the same when television news crews video and audio
record incidents in public places, such as outside court houses. They
do not require consent from the people that they are filming or
recording.

Would any cops dare to arrest reporters and cameramen filming in
public places? Certainly not, because the cops could find themselves
on the wrong end of a very large lawsuit.

The press does not have any special dispensation or exemption to
record in public places and any member of the general public can
legally do the same.

Subsection (3) (i) clearly states that a person can record a
conversation between himself and a policeman if it is reasonably
necessary for the protection of the lawful interest of the principal
party - the person making the recording or another person making the
recording on his behalf.

Because the Act uses the word OR between clauses (i) and (ii) and not
AND, if the recording is made to protect the lawful interests of the
principal party, that person can legally divulge or publish the
conversation or video recording in any way, such as on the Internet.

*DRIVER'S LICENCE*
Motorists are required to carry a valid driver's licence whenever
they are driving. They are required to produce their licence on
demand from police.

*NSW ROAD TRANSPORT ACT - SECTION 175*
(1) An authorised officer may, in the execution of the officer’s
functions under the road transport legislation, require the driver or
rider of a vehicle or horse to do any or all of the following:
  (a) produce the driver’s relevant Australian driver licence (in the
  case of the driver of a motor vehicle),
  (b) state the driver’s or rider’s name,
  (c) state the driver’s or rider’s home address.
(2) A person must not:
  (a) refuse to comply with a requirement of an authorised officer
  under subsection (1), or
  (b) state a false name or home address.
Maximum penalty: 20 penalty units.

The relevant legislation uses the word "produce" and that does not
stipulate that the licence must be physically handed to police and in
fact the licence should not leave the driver's possession. The case
law example is Tremelling v Martin (1971) Crim LR 596 (QBD).

*DICTIONARY DEFINITIONS OF THE VERB "PRODUCE"*
·  Cambridge Dictionary - "To bring something out and show it."
·  Macmillan Dictionary - "To show or offer something so that it can
be examined."
·  Merriam Wesbster Dictionary - "To offer to view or notice."
·  Oxford Dictionary - "Show or provide (something) for
consideration, inspection."

So if a motorist is asked for his driver's licence by a cop, he
should hold it for the cop to see it, but not hand it to him. This
completely fulfils the requirement of Section 175 of the Road
Transport Act.

If the cop demands that you give the licence to him, you should
state, "Officer, Section 175 of the Road Transport Act states that I
am required to produce my licence to you on demand. This does not
mean that I must physically allow you to take it or that I should
surrender it at any time.  You may look at it and note the details
within a reasonable time. I am not required to surrender possession
of it to you."

*POLICE THUGGERY*
Former Federal Police officer Paul Gibbons assaulted by Gold Coast
Police and his iPhone forcibly unlocked.
https://www.youtube.com/watch?v=iDxxoz4GEDs&t=5s

Former NSW Police Assistant Commissioner Mark Murdoch
https://www.youtube.com/watch?v=Dy2uX11C2zs&t=52s

Cheers, Ziggy
Webmaster, Campaign Against Road Ripoffs
info at carr.org.au www.carr.org.au