SURVEILLANCE DEVICES BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 September 2012.)

Ms CHAPMAN (Bragg) (12:00): I rise to speak on the Surveillance Devices Bill 2012, which was tabled by the Attorney-General just recently on 5 September. I will say that I am concerned at the expectation of the deliberation and passage of this bill by the government in listing it this week. If it were simply to review or add on to some of the legislation to support the COAG 2002 meetings on terrorism and multijurisdictional crime, of which there is one particular aspect, namely cross-border recognition of surveillance device warrants, then I would probably not have any great degree of criticism.

What is clear is that this bill is much more extensive. Indeed, the second reading explanation discloses that, while the bill amends the Listening and Surveillance Devices Act 1972 (and it has been more than 10 years since it has been revisited), significant developments in the electronic surveillance arena and the methods of intruding into privacy have occurred since then and so there needs to be some significant review of that. A much more comprehensive review has been undertaken with the follow-up of other issues that are quite independent, even though claimed to be consistent with the original intent of dealing with terrorism and multijurisdictional crime.

It concerns me that the government seems to take the view that this appears to be of no moment to them, that they want to press through these types of reviews without any significant consultation, and certainly to deprive the opposition and other members of this parliament of an opportunity to investigate the matter. Only yesterday, we were dealing with a bill that was drafted two years ago. When asked, 'Why did you drag the chain?' they say, 'Well, we want to give you an opportunity to consider these matters.'

Now, they have something drafted up, throw it to us and expect us to be able to deal with the matter in such a short time. In addition, the government chose to table the bill during the leave of the relevant policy officer and to have the briefing ultimately provided last Friday, when the police were not involved in the briefing and were not available, although they are the most significant agency that has been consulted and had apparently—according to the second reading explanation—sought the addition of a number of aspects for our consideration. It is brought on, we have no information really available from the single biggest contributor to the review, and we are expected to consider these matters in a vacuum, presumably with some expectation of support. Some of these may have some quite meritorious aspects. Let me identify, though, where that line is drawn.

In terms of the cross-border recognition of the surveillance device warrants, we already have law in this state recognising the use of surveillance device warrants, and this essentially is to give that recognition interstate. It is obviously up to other Australian jurisdictions to pass laws recognising our warrants for the purposes of the law in their state and this is nationally regarded as important. I do not think there will be any issue from the opposition on that: it is part of the National Organised Crime Response Plan.

However, that is where the line in the sand is drawn, for us. We then have, as disclosed in the second reading speech, a review of the act in consultation with the South Australian police and, as a result of that consultation, apparently, there are a number of other amendments. One is the power for urgent warrants to be issued. Under current law, an urgent warrant application is done by telephone or fax application to a Supreme Court judge at any time of the day or night. The Attorney in his second reading says, 'In practice, the Supreme Court rosters judges for this purpose,' and he says, 'No doubt, it is a nuisance for everyone.' The police have indicated this is a process that can take two hours, during which they claim nothing can be done.

In the absence of not one example of where there has been a prejudice to the proper investigation or prosecution of a particular case, nothing has been brought to us to justify the transfer of this responsibility, or the access to the warrants being issued by a senior police officer. Not one single example has been brought to us to satisfy us of that. No submission has been presented to us from the judiciary who say, 'This is no longer convenient to us.'

The Attorney suggests that it is a nuisance to everyone. Well, we have not heard from anyone who suggests it is a nuisance. In fact, we have Supreme Court judges who are paid to do a job and they are in a position independent of this parliament. They are not prosecuting or investigating parties—they are the judges—and they make decisions about whether a warrant issues. The issue of civil liberty, and the issue of protection of civil rights, is paramount. It is obviously why we have a separation of powers.

Yet, it puzzles me: I cannot understand why the Attorney-General should be so intent on bringing in a completely new regime of allowing senior police officers to issue urgent warrants when we have had no complaint from the judiciary who undertake this role. There is no suggestion that it is a nuisance to them. I do not know how often they are asked in the middle of the night to get out of bed in their pyjamas and go to the fax machine or pick up their iPhone, which I assume would be the immediate call from their associates to apprise them of the situation.

I just cannot understand how the government, the Attorney-General in this state, can come in, throw in a bill to tidy up some machinery matters and then go into a thorough examination of the Listening and Surveillance Devices Act 1972 and suggest that it now needs to have major areas of reform and we do not have any consultation. It is just bizarre, absolutely bizarre.

It is not the first time the government has tried to do it. We have had this under the guise of parole reform, where it seems that there is this great urgency for members of the police department to have this new role. So, we would want to be satisfied of a number of things before we consider that that would be an appropriate development.

Then we have the surveillance device (tracking) warrant. I do not know much about this. I have read what is in the second reading contribution. It may well be that we need to be able to provide for a new process with emergency authorisations for serious drug offences that need to be realigned with technology. Again, we do not have any other information on this. We then have restricting the circumstances when a listening device can be used to record a private conversation. I mean, where did that come from? Out of left field.

What about clarifying the impact of the bill on the ability of the private citizen to hold public authorities to account in being able to record conversations? We have a pretty clear law. It is a 1972 piece of legislation. It was reviewed 10 years ago. If the government were worried about legislation that is old, look at the Education Act 1972. There is a piece of 40-year-old legislation which government after government have promised to review and update and they still have not done it.

It is just extraordinary to me that suddenly there is an urgency that we need to be able to restrict the circumstances in which listening devices can be used. Let us have some examples, Mr Attorney, as to why it is necessary that we do this, what safeguards are in place and who on earth out there in the community has actually been asked about this as to the relevant stakeholders that I would have thought have a very significant involvement and want to have an involvement in this legislation.

Then, of course, we have remote applications. They, again, may be able to deal with instances where physical remoteness means that it is impractical to make a warrant application in person. We have had common-sense approaches to that type of difficulty for decades. I do not understand what the new problem is. In fact, with all the new technology we have, I cannot see why that cannot be improved. It may be that it is something that is being proposed in the bill that is adequate, but, again, we seem to have this whole process supplemented by regulation again, which we have not been privy to as to what should be happening.

These are not things that we just add in because it is convenient for someone or it is easier for different agencies. There has to be some justification that is presented to us here in the parliament as to why this should occur.

Then we have the specified persons warrant. This bill is to allow for a warrant to be brought for the surveillance of a specific person where he or she may be, instead of the usual warrant, allowing the surveillance of a particular place. Now, I note that the Attorney's second reading explanation refers to the judges of the Supreme Court having interpreted the current act so that all people authorised to exercise powers under the warrant are specified in the warrant.

Again, SA Police argues that the specification of SA Police personnel in the warrant poses potential security risks—risks of retribution from targets of the warrants—because of the intrusive nature of the work they perform. There has been extensive consultation with the previous chief justice on this issue. He agreed that an amendment to provide for a degree of anonymity was acceptable using a code on the warrant instead. The code name 'scheme' is in the bill. The holder of the key is not specific in the bill. It will be up to the court to determine how it will deal with the matter.

In one minute the Attorney seems to be quite happy for the court to be able to have some control over these issues and recognises—as the former chief justice had—that there may be a level of anonymity that would be important in the specific person warrants, but we need to have some particulars about where this has come from and why it is necessary to suddenly tack this onto this area of reform.

Then we have this bill allowing for the use of surveillance material beyond criminal investigations to civil legislative remedies, that is, the Criminal Assets Confiscation Act. I do not remember any of this issue being raised in that legislation when we have reviewed it several times. Again, we just rely, I think, on one paragraph from the second reading explanation on that, which gives us no real understanding about why this is necessary.

Then, for the specific users the bill is to provide for a degree of anonymity on specified users of the warrants through the use of a code, and that is really a follow-on from the comments I just made about the former chief justice's apparent contribution in advising the Attorney on what should be done in that regard.

I repeat at this point that it is impossible for the opposition or any member of this house to be fully appraised of what the consequences are, even inadvertent, of presenting legislation as comprehensive as this, which is far beyond what the opening statement of the second reading explanation suggests, namely, to fit in with the expectations that were determined at the original COAG meeting back in 2002.

To follow on from that, this is a major review of a piece of legislation which impinges on the direct civil liabilities of people in South Australia. To try to sneak in the transfer of issue of urgent warrants from judges to police officers, I think, is reprehensible. The government cannot keep coming in here expecting us to jump into line without the police department being available to give us a briefing on the urgency or the need for these reforms. They are far reaching and we are entitled to investigate these matters. Even the second reading explanation suggests to us that, apart from the police and a conversation with a former chief justice, there appears to have been absolutely no consultation with anybody on these amendments.

I find it extraordinary that we are expected to debate this bill without the government even having debated it, let alone having an opportunity to consider these matters. So, at this point, we cannot consent to the bill. Obviously, it is going to go through the house but the indecent haste and the government's expectation of us to fall into line is concerning. Let me make this point: in the penultimate paragraph of the second reading explanation the Attorney-General states:

The Bill also incorporates necessary provisions to take into account the needs of the Independent Commissioner Against Corruption.

Hello; we do not even have one yet. What are they? If they are legitimate and important aspects of whatever occurs with the ultimate appointment of an Independent Commissioner Against Corruption then we will look at them to accommodate that, of course we will, because members on this side of the house are very keen for the establishment of an ICAC, but it is still progressing through the parliament and whatever form is ultimately determined we will need to work with the government on any consequential amendments that are needed.

To expect us to line up with a bill suggesting that this is also to incorporate provisions to support the ICAC when we do not even have one, and there is no detail, even in this second reading explanation, as to what that is necessary for, is just extraordinary. That we are expected to both debate this bill and have any capacity to acquiesce, other than, as I say, the cross-border recognition, which probably should have happened some time ago, is something that I am not even sure has been advanced through other jurisdictions around the country. If it is to work it is one of those across-border recognition pieces of legislation which means that each of the jurisdictions need to come into the plan otherwise it is of little effect, but obviously that mutual recognition is important.

With those few words, I indicate that the opposition is still in the dark. We want to be able to have a briefing as soon as practicable with those who the government have relied on. The advice, particularly of SA Police, is the only one disclosed so far. We are happy to meet with the former chief justice, if he is available. He has given advice, apparently, on this matter. We would like the opportunity to consider other people with vested interests in this and their views as soon as we can and we will do that in between the houses.

Mr VENNING (Schubert) (12:19): I always try to get excited about legislation before the house. I had difficulty getting excited with this one, until such time as I got down to recommendation No. 7, but I will get there in a minute. This bill was introduced to this house on 5 September by the Attorney-General, who is here. The bill addresses a range of issues, and we do not have a problem with a lot of this, except for the lack of detail. The first issue is the cross-border recognition of surveillance device warrants, which needs to be spelt out in a little bit more detail. I do not know whether that is deliberately lacking in detail or whether there might be a security reason for the minister to put a bland comment like that there.

Urgent warrant applications—I think a briefing may be the way to solve some of these issues. If the minister feels there is any breach of security by revealing information on the public record, just say so. Currently, urgent warrant applications need prior approval of a Supreme Court judge. The bill proposes that authorisation by a senior police officer be confirmed within two business days (up to four calendar days). I think that is okay, but should the rank of that senior police officer not be stated? Does that mean senior sergeant, or does it mean a commissioned officer? It does not say. You expect us to pass legislation that really is lacking in detail.

More information is required on surveillance device (tracking) warrants. 'Restricting the circumstances when a listening device can be used to record a private conversation,' yes, that is a big call. I am neither for nor against that, but I do want the detail. I am concerned, though, to clarify the impact of the bill on the ability of a private citizen to hold public authorities to account. I think 'remote applications' is a positive, and I have no difficulty with that because I have a reasonable idea of what it means.

As to 'specified person warrants', the bill allows for a warrant to be brought for the surveillance of a specific person, wherever he or she may be, instead of the usual warrant allowing the surveillance of a particular place. I sort of understand that but, again, I would like to have a briefing where that is discussed.

Recommendation No. 7 really got me excited and it is why I am standing in my place. It says 'allowing use of surveillance material beyond criminal investigations', and that is what we thought it was all for and 'to civil legislative remedies (e.g. criminal assets confiscation)'. That really is an off-target activity and I think it is taking it into an area that is outside the content of this bill. If that is necessary, the Attorney-General needs to tell us why because I think that is fraught with danger.

Recommendation No. 8 relates to 'other specified users'. The bill provides for a degree of anonymity on specifying users of warrants through the use of a code. I have no problem with that. I also understand from discussions I had briefly with the member for Bragg and the shadow attorney-general that the law bodies have not provided their reviews as yet. Can the Attorney-General tell us what is the hurry with this? We do not even have an opinion here. I am not a lawyer: I am the opposite end of this and looking at it from a layperson's point of view. I am staggered as to how we can deal with this when we do not have an opinion from the law officers.

We note this bill, and I absolutely agree with the member for Bragg that we cannot agree with the government at this time. We want more detail and certainly a briefing to fill in these gaps that are there. I do not think I have seen a position paper—

Members interjecting:

Mr VENNING: While they have their discussion, I will finish mine. We certainly have some reaction, which is good. It is all good. We can fill in these gaps. I urge the government to postpone this legislation and bring it back. I cannot see any reason that we could not agree with this when all these queries are explained, maybe even with a minor amendment or two. I certainly support the member for Bragg and our position.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (12:24): I would just like to make a couple of remarks about this. We today have had a repetition of the usual conduct of the opposition. It is actually almost down pat now for every single bill. It starts off with a complaint about what happened at some moment in history. Sometimes it is a moment in the last century, sometimes we can be going back to Louis XV or something. That is usually the beginning and then we move on.

Mr Venning: John.

The Hon. J.R. RAU: Hang on, I am just giving you the set pattern. It is sort of fill in the blanks. The next bit is to say, 'It snuck up on us. We did not know anything about it.' The next thing is to say, 'It is terrible,' but with no particularisation as to what is terrible. Some of these are optional—add A or B or C, we did not get a briefing. What they do not add is they did not ask for a briefing because that might be a problem.

Ms Chapman: Excuse me?

The Hon. J.R. RAU: Where were you last Friday?

Ms Chapman: We had a briefing on Friday from the police.

The Hon. J.R. RAU: No, you weren't there.

Ms Chapman: Stephen Wade was there. I wasn't available.

The Hon. J.R. RAU: So, are you complaining now that you weren't available and that's our problem?

Ms Chapman: Well, it's so late; of course.

The Hon. J.R. RAU: Oh, for Godsakes—so late! Oh, it's so late! It's at the eleventh hour!

Members interjecting:

The ACTING SPEAKER (Hon. M.J. Wright): Order!

The Hon. J.R. RAU: I plead guilty—

Ms Chapman: Sneaky, underhanded—

The ACTING SPEAKER (Hon. M.J. Wright): Order!

The Hon. J.R. RAU: I plead guilty to the following offences relating to time: first of all, I introduced this bill on 5 September which, by my reckoning—what is today? Is it the 19^th?

Members interjecting:

The Hon. J.R. RAU: The 19^th. Would that be about six weeks ago? I plead guilty to having given them six weeks to read this. I plead guilty.

Members interjecting:

The Hon. J.R. RAU: Okay, two weeks. It doesn't matter. I plead guilty to two weeks. Secondly, we have not refused briefings to anybody: in fact, we offered them. As I understand it, Mr Wade and somebody else, not being the member for Bragg, received a briefing last week on Friday. If the member for Bragg could not be there, that is disappointing but never mind.

Anyway, I got distracted a bit. The interesting business about this is they then say that there are a lot of things wrong with this bill or, today, they have said, 'There are things wrong with it, but we do not know what they are,' which conjures up this sort of X-Files conspiracy theory, and, 'Between the houses, we will come up with some way of amending the legislation.'

Of course, this is what happens every single time. There is lots of huffing and puffing here. There are no amendments tabled in this house so that we can actually look at them and comment on them—never—because that would deny the savant in the other place an opportunity to be able to spring it on us at the last minute.

So, now we just have to sit back and wait. We do not know what their issues are—we have not got a clue. We just sit back and wait until, at a moment of his choosing, it is dropped in and, I can tell you, the moment of his choosing is usually just before the relevant matter is to come on. This thing has been on the agenda for the parliament. Nobody has been taken by surprise by this. That is a general sort of discussion about this. We do have a second reading speech which, hopefully, has been very informative.

Ms Chapman: Useless—absolutely useless.

The Hon. J.R. RAU: Thank you.

Ms Chapman: One-and-a-half pages—about as illuminating as a dead candle.

The ACTING SPEAKER (Hon. M.J. Wright): Order!

The Hon. J.R. RAU: The member for Schubert said that he would like a briefing. I do not recall the member for Schubert actually asking for a briefing but, if he did want one, I am happy to accommodate the member for Schubert. He can have a briefing. I am not sure if we can accommodate you whilst you are painting the bridge. You might have to come down and come to a different place, but we can manage you.

Mrs Geraghty interjecting:

The Hon. J.R. RAU: Actually, the member for Torrens raises a good point. I am not accusing the member for Schubert of any improper purpose in his remarks here, but I am informed that there is a chance that, if he were to paint the bridge, that might be a criminal offence. It might be; I do not know because I am not a policeman. It might be that his concern about this bill gets back to the fact that there may be a device on the bridge which records his conduct; I do not know. Anyway, we will wait and see.

Let me deal with the things specifically that have been raised, because there have been very few, but the member for Schubert, to give him his dues, did raise specific issues. Can I just explain cross-border stuff in general terms. South Australia Police, Victoria Police and New South Wales Police, and so on, have people of mutual interest, and these people do not just stay here in Adelaide, or stay in Sydney, or stay in Mildura.

Now, here is the issue. What happens if the police in Mildura are watching some bloke who was doing the wrong thing—he is growing dope, or he is doing something else—and they want to work out what he is doing, and they put some surveillance device on his vehicle, or whatever? He then drives across to Renmark or he goes across to Wentworth. What is the standing of that tracking device in my hypothetical example? Does it mean that the recording of his movements in Wentworth, for instance, are illegal because the device was not obtained by reference to a New South Wales similar piece of legislation?

The cross-border issue is to basically say that if the New South Wales police have validly got an order to track some person and that person crosses the South Australian state border, we as the South Australian authorities say, 'Well, because you're going to recognise our orders when they cross into your state, we'll recognise your orders when they cross into ours.' All that means is that the police across borders have an opportunity to track these characters when they move around—simple as that. So, you can sleep at night; that is not a problem.

As for the rest of this, I do not think anybody in this room would be surprised to hear that communications and electronic equipment have changed substantially over recent years. It is not unreasonable in those circumstances for us to be looking at a piece of legislation, which is basically all around the regulation of electronic surveillance equipment, and to say that this legislation needs to be reviewed. There needs to be some consideration of whether it is contemporary. There needs to be some consideration as to whether the legislation actually, because of changes in technology, enables police and law enforcement officers to do, in a practical sense, what they have to do, or whether it is rooted in technology which is now obsolete.

Ms Bedford: Grounded.

The Hon. J.R. RAU: Exactly; I beg your pardon—grounded in technology. There is nothing sinister or mysterious about this. This is an attempt to bring this legislation into contemporary times.

Ms Chapman: What's that got to do with urgent warrants? Explain the urgent warrants.

The Hon. J.R. RAU: I have been invited to explain urgent warrants. Urgent warrants—here's the thing. There are circumstances where police may be advised that a particular series of events is about to occur at some place, which involves criminal people, and they require, for operational reasons, to be able to get out there quickly and do what they have to do. If you want chapter and verse on this I think it is better it is not done in here, to be quite frank.

Ms Chapman: Well, give us the briefing with the police; that's what we've asked for.

The Hon. J.R. RAU: Where were you last Friday, by the way?

Ms Chapman: They weren't there, they are not available.

The Hon. J.R. RAU: Nor were you. Let us get back to it. Keep with me, it will be worth it in the end. For operational reasons, they require to be able to make a very quick decision about some sort of tracking of an individual. As I recall, and I am happy to be corrected (and I will be spoken to by wise counsel if I get this wrong), but my recollection is this: that even in those circumstances there is a provision for subsequent review by a court, and so the question is not whether a judge gets to have a look at the application for the warrant, the question is whether that review of the application occurs ahead of the installation of the device.

The safeguard for the public is this: if, when the judge hears it, and there has been one of these emergency device placements, the judge says that it should not have happened, the material that is obtained from that device is not admissible because it is not granted the protection of the act because it was not obtained under the protection of the act. As to the word 'admissible', note that I am not an expert on admissibility in criminal cases, but it is certainly not protected information by reason of having complied with the scheme of the act—more or less.

I think it is important for people in the room to get the idea about who some of these characters are we are dealing with. SAPOL has relatively limited resources. They have better things to do than follow the member for Schubert around on the off chance he might start painting a bridge one day. They are not interested in that, unfortunately. That is not what they are focused on. Believe it or not, SAPOL think people involved—

Mr Venning: Can I quote you?

The Hon. J.R. RAU: Well, you can. I am prepared to say that to the best of my knowledge you are not public enemy number one as far as SAPOL is concerned. I do not think that the commissioner has called a meeting of all his senior staff to make sure that you are apprehended when you approach that bridge. I do not believe that, but I do not know; I am not a confidante of the commissioner.

I think that the Commissioner of Police is looking for people who are causing serious trouble in our community—people who are dealing in drugs, people who are involved in organised crime, whether they have big beards or not, and people who do all sorts of things which really damage our community—that is what the commissioner is interested in. He is not interested in ordinary citizens going about their business lawfully. He does not have the time or the inclination or the interest. We could get very carried away about all these theoretical problems that come from this, but it has to be seen in the context of reality.

Between the houses—that magical, mystical place—we will arrange for the member for Bragg, the member for Schubert and any others of the merry band who wish to participate in the event to have a briefing. If you want SAPOL to be present at the briefing—

Ms Chapman: They are the only ones you talk to, apparently.

The Hon. J.R. RAU: Well, they are the ones who do it. That is their job, so of course we talk to them.

Ms Chapman: You didn't consult with anyone else.

The Hon. J.R. RAU: Who do you suggest I speak to about it—Don Corleone, so I can get the other point of view? Anyway, we are happy to talk to you folks, and I will do whatever I can to arrange for the police to be available and I am happy to allow you to discuss whatever you want to discuss with them and ask them whatever question you like. I am completely relaxed about it. Satisfy yourself as to what they are doing and ask them any question you like. I can tell you that officers of my department and SAPOL have been in discussions on this for 18 months at least, so there has been a great deal of time and effort spent in nutting out the detail of this legislation. It has not all been a matter of SAPOL sending us a wish list and we just tick yes, yes, yes. There has been a lot of discussion about this and a lot of effort put into it. Can I say in particular the effort of Matthew Goode in this has been extraordinary. He has been presented with a number of frustrations and difficulties, all of which he has overcome with great good humour.

I would urge people to have a good look at this. We will arrange appropriate briefings, but the member for Bragg throws up questions like, 'Who else have you talked to?' Well, the criminal community is going to find this unpleasant; I do not need to talk to them to work that out.

Ms Chapman: Why not?

The Hon. J.R. RAU: Can you give me their names and addresses and we will go and talk to them?

Ms Chapman: Try the Law Society—have you forgotten that they exist? Try the Bar Association. Try the civil liberties organisations.

The Hon. J.R. RAU: Actually, what we have discovered is—

Ms Chapman: Try the judiciary.

The ACTING SPEAKER (Hon. M.J. Wright): Order!

The Hon. J.R. RAU: The interesting thing is—and this is not what happened here; this is not why we are doing this, but it is an interesting thing. This is almost like an experiment. In this case, we have not sought extensive consultation with the Law Society or the Bar Association.

Ms Chapman: Or anybody.

The Hon. J.R. RAU: I accept that. No doubt they will make comment about this, and that is fine. We will listen to them. We thought this time, 'Wouldn't it be novel for the opposition to come up with their own view about this?' What they normally do is outsource their view to the Law Society—except if the Law Society agrees with us, in which case they disagree with them. If the Law Society disagrees with us, then that becomes the opposition's point of view.

I understand the opposition's point of view. I do not have any fear of them conversing with the police about this—or anybody else for that matter. I think this legislation has received a great deal of attention. It modernises the situation in respect of a very mobile area of technological advancement and also dovetails very well into a national scheme. Let us not forget that.

This is one instance where the idea of the national scheme does have an important role to play, because, let's face it, policing around Australia should be as integrated as possible. A lot of the driver for this comes from attempts by police at a national level to create harmonious arrangements between jurisdictions, which is obviously in the interests of all of us. With those few words, I will conclude my remarks.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (12:43): I move:

That this bill be now read a third time.

Bill read a third time and passed.