Can you video police in Australia during a roadside stop? | Auto Expert John Cadogan

According to the NSW Police Force Media Handbook:

"Members of the public have the right to take photographs or film police officers which are observable from a public space or from a privately owned place with the consent of the owner or 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.

The Surveillance Devices Act 2007 regulates the use of listening devices. Specifically it’s illegal to eavesdrop on or record private conversations.

During a traffic stop, it’s debatable whether or not you’re in a private conversation.

The Surveillance Devices Act says it’s legal to record a conversation if you’re a party to it (as you are during a traffic stop) provided it’s:

"reasonably necessary for the protection of the lawful interest of that principal party [ie - you]"

Or if:

"the recording is not made for the purpose of communicating or publishing the conversation or a report of it to persons who are not parties to the conversation"

Of course, all this recording is not much good if all you do is make a recording of you dumping yourself right in it. That’s not going to help.
According to LY Lawyers - you might recall I interviewed the practice’s principal Adam Ly a few months back:

"Courts recognize that recording police activities is legal.

"Many police officers and citizens in Australia believe that as soon as a police officer tells you to do or not to do something that it is an order. However, police can only order citizens to do something (or not) based on the current laws in effect.

"If you are approached by the police while recording them, you should calmly explain what you are doing and state you have a legal right to do so.

So here’s the top 10 things I suggest you do in this situation:

One: Try really hard not to be a dick. Instead, play it completely straight. Call him ‘officer’ and don’t swear. Ps and Qs.

Two: Be respectful, but don’t make any admissions. Police are very good at extracting admissions, which will definitely be used against you. Don’t make any.

Three: The best way not to make admissions is not to answer questions. Do you know why I’ve stopped you? Officer, I respectfully decline to answer your questions during this interview.

Four: You are not required to incriminate yourself. Procuring the evidence that you did it: that’s his job, not yours.

Five: Don’t use your phone. I know - it’s there. It’ll do that. It’s a perfect option, seemingly. Except, here in Shitsville it’s actually illegal to touch your phone while driving and technically you might still be driving while stopped at the roadside, and that might be a traffic offence.
Use a point and shoot camera or a GoPro - there’s no similar prohibition on touching one of those.

Six: Press record before you do anything else. It’s a stressful situation. So easy to forget. Grab your camera, power up, hit record and prepare to say nothing with extreme politeness.

Seven: If he tells you to stop filming, calmly say something like: Officer, respectfully, according to your media handbook, I am entitled to film you in the course of your duty and I decline to turn the camera off.

If he tells you this is a breach of the Surveillance Devices Act: Calmly say that you’re in a public place and you are recording to protect your lawful interests as allowed under the act.

This is substantially different to saying: I don’t trust you. You’re all lying pricks. Go to buggery. At least the words are quite different. You’re playing ‘thinks and says’. Thinks: ‘Piss off idiot - this is my right.’ Says: ‘Respectfully I’m going to decline your request to stop filming.’ This game helps a lot in marriage and the workplace.

Eight: Comply with all lawful directives. Licence, breath test. All of that. Definitely comply.

Nine: Keep the camera in plain sight - don’t do any covert recording, and don’t hinder the officer in the conduct of his duty.

Ten: If he grabs the camera, arrests you, whatever, don’t resist, remain absolutely polite and respectful. However, clearly and unequivocally do not consent to any request to search of the vehicle or your person. Let the lawyers sort that one out.

The bottom line is: Record the traffic stop at all costs. Be tremendously polite, in inverse proportion to how you’d like to act and what you’d really like to say. This is a game - you might as well be good at it.

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