By Katarzyna Basta & Ross Irish Blasé; members of the Technology and Law Committee of the Law Society
A van on the corner
I was walking down the Murray Street Mall a few weeks ago when I noticed a marked WA Police van parked next to Myer with a camera mounted and a laminated sign explaining that Live Facial Recognition (LFR) technology was in operation. Western Australia is now the first jurisdiction in the country to deploy live facial recognition technology in real time, in public, against a moving crowd, and the moment had arrived with a laminated sign.
What struck me was not just the presence of the technology, but the ease with which it seemed to be absorbed into the everyday. People glanced at the sign and kept walking, as though live biometric surveillance in a public mall were simply another feature of the urban landscape. That quiet normalisation is what made the moment feel significant.
The trial explained
The mechanics, as reported and as described by WA Police, appear straightforward. A marked van is stationed outside major events and in crowded public areas, comparing biometric data registered through live footage against an alert list of roughly 4,000 people: those with outstanding warrants, registered child sex offenders and missing persons. Non-matches are deleted immediately; a match triggers a human review before any officer acts. WA Police’s Privacy Impact Assessment (PIA) classifies this type of biometric data as PROTECTED, and each deployment requires Superintendent-level authorisation.
Commissioner Col Blanch has framed the technology as more protective of privacy than the CCTV network Western Australians already live under. Ordinary CCTV, he says, captures and stores images of everyone indefinitely, with no consistent oversight of who owns it or how long footage is kept, whereas the LFR system pixelates and discards everyone except those on the alert list. Privacy advocates take a different view.
Digital Rights Watch and Electronic Frontiers Australia have both condemned the rollout as a disproportionate expansion of police surveillance infrastructure, warning that it normalises the mass collection of biometric data from people who have done nothing more than walk past a van. Both views can be simultaneously correct, and that is the difficulty for anyone trying to assess this trial on legal grounds rather than instinct.
Several Australian state police forces already use facial recognition to analyse footage after the fact, matching a still image from a crime scene against a database. The WA trial is unique as it runs live: every face passing by the van is processed and compared in real time, rather than a single image being run through the system on request after an offence has already occurred. Retrospective use begins with a defined investigative question and a selected image: someone did something, and the system is asked whether this face matches that act.
Live deployment inverts the order entirely. It begins with an undefined crowd and treats mere presence in public as sufficient grounds to be processed, matched and, however briefly, judged. Nobody has to have done anything. Suspicion is no longer the reason the system looks at you; being watched is now simply what happens before anyone has established a reason.
Guilty unless proven otherwise
This is what people are objecting to. The trial’s supporters describe the alert list as narrow, limited to warrants, registered offenders and missing persons. But the alert list is not what passers-by are meaningfully compared with. It is simply what they are checked against, and every person who walks past the van is processed first and cleared second.
The presumption once attached to a person on a public street, that they are simply a person on a public street, has been quietly replaced by a presumption that must be actively discharged before a person is free to carry on as nobody in particular.
Ordinary policing has predominantly worked opposite. After a crime takes place, an officer forms a suspicion, and only then does a person become someone worth looking at closely. LFR reverses that sequence. Everyone is looked at closely first, and suspicion, where it arrives at all, arrives afterwards, generated by the system rather than formed by an officer.
To be cleared is not the same as never having been checked. Shoppers outside Myer were never accused but for a fraction of a second, each of them was treated as though they might have been, and a machine decided otherwise on their behalf.
Who answers for it
Part of what makes this shift easy to miss is that Western Australia had no general privacy statute of its own until the Privacy and Responsible Information Sharing Act 2024 (WA) which only commenced on 1 July this year, meaning that the trial ran for weeks beforehand and has since operated inside a framework barely older than the few weeks. It is also recognised that one of the risks in using AMD (Automated Decision Making) systems under IPP 10 of the PRIS Act may include coding errors, rule errors or oversimplification which lead to legal errors or incorrect decisions.
More private is not the same as private
Pixelating and discarding everyone except the listed people only relates to the LFR technology’s retention and disposal of information, which is different to its collection and use. Unlike LFR, CCTV only records an area and never identifies a shopper walking past a shopfront. The deletion is not innocence restored. It is innocence that was never actually in doubt and briefly treated as though it were. A system can be more private than the alternative and still be doing something the CCTV never did.
None of this makes WA Police’s trial unlawful, and nothing here suggests bad faith on the part of the officers running it. But a laminated sign cannot do the work of genuine public consent, and a PIA written by the agency being assessed is not independent oversight.
Oversimplifying the process could result in legal errors or incorrect decisions where an automated system materially assists an officer’s decision-making such as when data-matching. Perth residents walking through the CBD are, for the first time, required to be cleared before they are free to be nobody in particular. That is the change worth noticing.
Research by Monica Choi. This article was drafted by the authors with the assistance of AI tools.
