Surveillance Devices Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 September 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:04): The Surveillance Devices Bill 2015 is mark 3 of an attempt at surveillance device reform by the government and I am pleased to say that, whilst I do not think it is perfect, I think they have finally moved to the space of having sufficient amendment to the model that they were pursuing to attract the support of the opposition.

I have to say at the outset that the opposition's approach to how we should be managing the unfair, intrusive and inappropriate invasion of one's personal, private life by the recording now by other video surveillance rather than simply tape recordings is an issue of the modern age which we have to address. At the federal level, the Australian government has undertaken a very comprehensive review of privacy laws; at the state level we are still waiting for some publication of whatever they are doing, which seems to have been going on for a very long time. It is not an easy area to deal with but it is one which does need to be addressed.

Consistently through the passage of the debates under the Surveillance Devices Bill 2012 and the Surveillance Devices Bill 2014, there had been strong opposition and subsequently these bills failed as a result of it being exposed that the government's approach was simply not the appropriate way to remedy this situation and, as we expected, there was a comprehensive outcry, from members of the media particularly, who were faced with having to obtain court orders almost every day to reasonably publish information in their broadcasts.

The model presented by us on this side of the house was one consistent with current law relating to audio surveillance and the use of tape recordings, including the protections for legitimate purposes and having public interest tests. We took the view that that was the way to go. The government, however, in mark 3—that is the Surveillance Devices Bill 2015—has pursued its model but essentially made specific exemptions to apply for certain parties. It is not, as I say, the preferred model but it is one which at least achieves a reduction in the areas of concern.

I will come back to the representations that we have received on this matter to date and I will return to the primary focus of the bill which is to deal with the advancement of new technology and the need for legislation to keep up with those changes. The original Listening and Surveillance Devices Act 1972 could not and does not contemplate the raft of recording technologies available today and, as such, it cannot fulfil its original intent. The commentary in that regard was contributed to by other members of the opposition and I think we all agree to that extent the importance of it.

Various forms of the bill in use in other states—Victoria, New South Wales and Western Australia—have passed in recent years. The current bill provides for a number of other matters which are and have always been supported by the opposition. I will just summarise these as follows because, if there is any complaint about the delay in the utilisation and application of these new laws, it rests squarely with the government because at all material times we have indicated that we are prepared to advance the bill to cover these matters.

The first is cross-border recognition of surveillance device warrants. The second is to allow urgent warrant applications—for example, where there is an imminent risk of violence to a person or substantial damage to a property—to be made by a senior police officer instead of a judge. The third is to provide for remote applications to allow for instances where physical remoteness makes it impractical to make a warrant application. The fourth is the provision of 'specified person warrants', which allows for warrants for surveillance on specific people instead of warrants on a particular place.

The area of controversy and conflict is in the following—namely, the prohibition of a person from knowingly using, communicating or publishing information or material derived from the use of a surveillance device in circumstances where the device was used in the public interest, except in accordance with an order of a judge. Exceptions to this were provided where the device was used in the public interest, if:

(a) the use, communication or publication…is made to a media organisation; or

(b) the use, communication or publication…is made by a media organisation and the…material is in the public interest; or

(c) the information or material relates to issues of animal welfare and the use, communication or publication of the information or material is made to the RSPCA; or

(d) the use, communication or publication of such information or material is made by the RSPCA and…is in the public interest.

These two main categories which are exceptions to obtaining court orders largely are the media and the Royal Society for the Prevention of Cruelty to Animals. I will not traverse all the concerns that were raised and their genesis, in the environment particularly where the RSPCA had cited examples of gross cruelty to animals which they felt needed to be exposed and where they felt they needed some protection against being charged with an offence when they were acting in the interests of preventing cruelty towards animals.

The obligations of the RSPCA in respect of their contracted obligation to investigate, and in some cases prosecute, offences of cruelty towards animals are clearly important. Where it became a much greater issue was the expansion into the area of the individual who was concerned about the welfare of an animal which may be the subject of abuse or neglect and which was suffering, and the extent to which he or she would be prohibited from filming such circumstances and then knowingly using, communicating or publishing the same. Certainly, in recent times we have had complaints about that.

Then we have the area of people whom I would consider to be activists, and this is in the realm of those who, for example, oppose the husbandry of animals in an intensive agriculture environment, whether they are hens in sheds, pigs in extended undercover areas, locked in crates and the like. I will not go into the merits or otherwise of the view of the activists in this regard but, suffice to say, they were passionate about their cause and felt that it was their right and obligation to record where they could circumstances that would pursue their objective, namely, to shut down these industries.

I think it is fair to say that any right-minded person in the community accepts that the RSPCA, especially as they are the contracted party to investigate and prosecute cruelty towards animals or, as I say, neglect or abuse, should have that right and they should not be restricted in their recording of instances for the purposes of the successful investigations and prosecutions that they are vested with the responsibility of pursuing. As to the other two areas, that is, the ordinary person in the street who has a view about what they should be doing in this area, and particular activist groups, they do not have an area of protection under this new bill, and I think it is entirely appropriate that they do not.

Free TV is an organisation that could be fairly described as a peak body of national media operators. They presented a number of submissions during the many debates in this area of law reform and expressed their concern in the previous debates that the government had got it wrong, and clearly they wanted us to strongly oppose the bill in general terms for the reasons I have outlined. When we had a briefing from the government on this bill, there was an indication that there had been no response from the national media groups but, as was pointed out—namely, that there had been an exemption to deal with media organisations—it was anticipated that their objections will have been dealt with.

We are yet to receive the final submission from Free TV, which still represents their industry. My understanding, on the information provided to date, is that the media organisation representative group is still not happy with the terms of this bill. I have not received it in writing yet (it is not expected until at least tomorrow), but I think that they will still maintain that it is better that we progress in the orderly manner the opposition has recommended. However, they may well identify some small areas of reform that could enhance this corrupted model, and we will certainly have a look at those. They may not be helpful, they may not enhance the bill but, if they do, we will have a look at them once we receive them.

I indicate today that we will be supporting the bill in the House of Assembly. I have not heard from the RSPCA at all. My recollection from the government's briefing is that at least they had been spoken to. I have not seen any representation from them at this stage, but I expect, given that they have also been accommodated in the new amended bill, that if it is an objection it will only be minor. I am happy to go into committee on this or, alternatively, hear from the Attorney in his summing up in respect of the two matters that were raised. Some discussion was undertaken in the briefing on the other states that had passed the legislation.

As to an update in that regard, Victoria, we know, has legislation that can publish without consent. It has a public interest test. Also, there was some discussion about what was happening in New South Wales and Western Australia. So, we had sought a brief comparison of the other jurisdictions where there has now been the application of laws dealing with surveillance devices and also some comparison in respect of what is a private activity.

The detail that we got into during the discussion on the briefing included things such as: is it a private activity to undertake—for example, a display of nudity or intimate contact between people in the front yard of their house? In other words, could they expect to be excluded from or protected by this legislation? The answer to that was, 'Probably not.' If they conducted the same behaviour in the backyard of their house—this is a personal or private dwelling—could they be expected to have the protection of this legislation? The answer to that would be yes.

We always appreciate with legislation such as this that there is always going to be a fine line as to what is private activity and what is not; and, again, we would be looking to see that the government is going to ensure that there will be a responsible application of this. The answer to our concerns about whether it goes too far was responded to on the basis that there still has to be an element of knowingly publishing, communicating, etc., and that that element obviously has to be established, too, for the purposes of having any successful prosecution.

The situation that is going to be a grey area, if I can put it, is where there is a person who reasonably wants to protect their safety in their home—establishes lights or cameras around the perimeter of their home designed and targeted to keep surveillance within the property but does take in slightly across the border, or across the fence, into the neighbour's property, and inadvertently capturing the images of other activity, which those people involved would be reasonably entitled to keep private, particularly if there is some central point where there is some surveillance of the perimeters of the property and someone else views that.

It has been communicated, it has been published, it has been used, and to some degree would have to be accepted as knowingly going into that part of the person's property because of the sheer logistics of being able to ensure that the whole of the property is protected. So there are lots of instances where we are not entirely certain how it is going to work, but it is—

Ms Redmond interjecting:

Ms CHAPMAN: The member for Heysen says, 'Let's pass it, anyway.'

Ms Redmond: No. I said, 'We're going to pass it, anyway.' I am not saying, 'Let's pass it, anyway.'

Ms CHAPMAN: The member for Heysen said, 'We're going to pass it, anyway.' I make the point that, in the end, the opposition took the view that we needed to balance what is in the best interests of protecting the privacy of the population who expect and who are entitled to have some protection, and, in the absence of the government dealing with the introduction of privacy laws, we clearly do need to deal with it.

The other area is one which I think we should have some response from the government on, and that relates to how we are going to manage aerial photography which is currently undertaken by quite legitimate operators. Obviously, we have the people who take aerial photographs for the purposes of selling real estate, and that is commonly recorded and repeated in their advertising.

We have a number of companies who operate cameras in the sky, one of which is in the local Adelaide Hills area and I notice it had some publicity just recently. They provide for recreational drones to be used for the purposes of undertaking airborne photography. It seems to be a booming industry. Obviously we have a number of the unmanned aerial vehicles, or UAVs as they are called, sometimes called drones, which are used in industry, agriculture of course commonly, where they are sent out to check everything from water troughs and dams to dingo traps, to make life easier for those who deal with distance on a regular basis.

All of these are great innovations and the use of technology is important and we have to protect against those who might have some inadvertent, innocent, recording made and then inadvertently published. So we will look to see how that is going to go. I mention it particularly because it is not just the private sector that are involved in this. I note that even our own Department of Environment, Water and Natural Resources operates with the use of aerial photography. They frequently do that, of course, for their own investigations in respect of land clearance, for example, of native vegetation, for them as a regulatory body to ensure that there is compliance with our laws in the protection of the environment.

That is just one department that uses this modern technology to assist in the investigation, inspection and sometimes prosecution and provision of evidence for that purpose in their legitimate activities. So let's get it right. We hope with these amendments, given the pressing nature of having some protection, that this will help to resolve the situation. We will see. Obviously it is a matter about which we on this side of the house will remain alert. We would hope the government will act to ensure that their enforcement agencies will act responsibly. If they do not, clearly on notice we will be back here, but the government should be on notice that, if there is any significant error in this legislation which we have not been able to pick up, given the amount of work that has been done to monitor this, we may need to propose some amendment between the houses.

Mr KNOLL (Schubert) (16:28): I rise to support this bill, and in doing so I put on the record how important I think this piece of legislation is for South Australia. Putting aside what we consider to be the uncontroversial part of this bill—that is, the cross-border recognition of warrants which is something I understand the police have been asking for since 2002 and I understand that it was part of a COAG process potentially way back then—the fundamental primary focus of this bill centres on dealing with advances in technology and helping to redress the balance that currently exists between technological advances and people's right to privacy.

In 1972, when the Listening Devices Act was put in place, some of the myriad devices that we are talking about now simply did not exist. I am somebody who, whilst reasonably an open book and probably too honest at times, I also appreciate privacy, especially the privacy of my own backyard, especially after a couple of weekends ago when we put down some new lawn replacing some synthetic lawn, and my right to replace that synthetic lawn in privacy. I am extremely supportive of this bill on that basis.

It is not just physical technology. With the internet, we have seen vast amounts and permanent records of information about people. This will not be the last time that we deal with something of this magnitude or something of this nature because new technology is going to continually test us in where we find that balance between privacy and welcoming the new technologies that bring so much more joy and interconnectedness to our lives.

This bill is not something that is unique to South Australia. Surveillance devices legislation has been passed in New South Wales, Western Australia and Victoria. In the case of Victoria it was passed in 1999 by the then Kennett government. That piece of legislation is now out of date owing to the fact that they did not contemplate airborne devices or optical surveillance devices, and that piece of legislation was actually quite simple compared to what we are dealing with here. The Surveillance Devices Bill that is currently before us is a more complex piece of legislation.

Before I go through it, there are a number of examples in the media that I would like to highlight where this type of bill is important. I am going to take an example from Victoria first and the headline reads 'Topless neighbour's drone picture prompts call for privacy law overhaul'. It is a story from the Mornington Peninsula where a commercial drone was used by a real estate agent to film the top down view of the property and inadvertently it ended up, as I understand it, that on the sign was a picture of a lady in her backyard sunbathing topless. She obviously took great offence at having her nude image published. I will quote from a media article that says:

The Victorian Surveillance Devices Act dates back to 1999, meaning drones are not governed by any clear privacy protections.

I think that any normal, clear-thinking person would consider that a person should be able to conduct that kind of activity in their own backyard and, in fact, I think we should make no judgement on what somebody does in their own backyard and inside their own home unless it is illegal. On that basis, I think that enacting privacy provisions in the way we are looking to today gives people a sense of privacy that they probably already thought they had, but one that they should definitely have going forward.

The second example I have that is not necessarily, given that there was a court case involved, going to be considered illegal by this bill before us, is the saga of SA Pathology using covert surveillance camera equipment to essentially spy on their staff. I am looking here at a response from SA Health Chief Executive David Swan, who in a newspaper article said:

The cameras did not have the capability to record audio and therefore did not breach the Listening and Surveillance Devices Act 1972.

That statement suggests to me that, unless SA Pathology was seeking to do something in somebody's lawful interest, what they were doing should have reasonably been illegal. We have also had raised in this house questions about whether or not Correctional Services staff were tape-recorded without their knowledge during meetings.

However, I have something that I think would be captured by this legislation and that is an article that relates to a man who, whilst at his home in Millswood, was surprised to find that there was quite a large, obviously commercial, drone hovering over his property. It turns out that the drone was being used by Channel 7 as part of a home renovations reality TV program that they were filming and in the process of that was capturing footage of what otherwise was a private activity. Again, I think that the public's reaction to this was, 'Well, hang on. I would have thought that this would be illegal.' What we are attempting to do here today would hopefully, subject to court proceedings, make this kind of activity illegal.

I want to go through some of the bill and do so in the spirit of the new way that we are to ask questions of a little more general nature, in order for the Attorney-General, in his finite wisdom, potentially with the added wisdom of people who may have other knowledge of this legislation—

The DEPUTY SPEAKER: You are giving him notice of questions.

Mr KNOLL: —exactly right—to hopefully bring us back an answer, because I think there are a couple of scenarios we need to consider. The shadow attorney brought this question up before, but I think the application of this legislation is going to come down to what is defined as a private activity and, essentially, what is a public place, and they are two definitions that are provided for in the bill. Under 'private activity', it states:

(a) an activity carried on by only 1 person in circumstances that may reasonably be taken to indicate that the person does not desire it to be observed by any other person…or

(b) an activity carried on by more than 1 person in circumstances that may reasonably be taken to indicate that at least 1 party to the activity desires it to be observed only by the other parties to the activity…

It goes on to say a few other things but, essentially, I think that is a fairly reasonable definition of where we are at. The assumption should be that, unless you are doing something overt or explicitly out in the open, if it could be reasonably assumed that you were trying to do something that was private, then it is indeed private. I think that is a very worthwhile sentiment.

The bill goes on to explain what a public place is, and includes a place to which free access is permitted to the public, a place to which the public are admitted on payment of money, or a road, street, footway, court and a whole heap of other different, I suppose, road infrastructure and those types of things that would otherwise be considered public. What we are not attempting to do here is inadvertently make every 15 year old with a cell phone a criminal. That is something that I think we need to be mindful of in this bill, and it will very much come down to what constitutes a private activity and what constitutes a public place or, in the absence of it being a public place, what is a private place.

Certainly, the way that this bill is written in terms of place gives a definition of public place, and one would reasonably assume that, unless it is defined as a public place, everything else is considered private. Personally, I like that definition because that broadens as much as possible what is a private place and defines, as clearly as it can, what constitutes a public place.

Going to the most operative clauses of the bill, clause 5 provides that a person must not knowingly install, use or maintain an optical surveillance device or a listening surveillance device or a data surveillance device. At the moment, we are dealing with classes of devices, but I think they are broad enough because they deal in senses, obviously one being sight and one being hearing.

Hopefully, unless we are going to create a sixth sense, we will not necessarily need to update this legislation unless of course there is some sort of new technology, whether it be some sort of device that can read your mind or the like, so that we will have to come back and revisit this legislation. So, in the absence of new senses or some sort of third or fourth dimension being created, hopefully, what we are dealing with today will be comprehensive enough, but indeed it is very much incumbent on legislators to keep up to date with the latest technology.

This bill goes on to provide a series of exemptions. The first exemption is if the use of the device is reasonably necessary for the protection of the lawful interests of that person. I think that is extremely important, especially in some scenarios. I can envisage, for instance, domestic violence within the home, where the opportunity for somebody who is being abused to be able to record that abuse could hopefully then, through that, secure a conviction. I think that is extremely necessary.

I do not want to create too many examples in my head, but I can a see a number of times where that 'lawful interest' exemption is extremely important. Again, it gives rise to what could otherwise be confusion—and that is something we have to be very mindful of here—between what is lawful and unlawful. I suppose the point is that you take the material at the time that you believe it to be lawful, but one of the first questions is: what happens if you believe it to be lawful but, indeed, a court finds that it was not necessarily in the protection of your lawful interest? How is it that people who are trying to abide by the law do not necessarily achieve that outcome?

The second exemption relates to the public interest exemption—and this is the one that is, potentially, the most contentious—and the bill talks about 'if the use of a listening device', or optical surveillance device, whatever the case maybe, 'is in the public interest'. It is important in a free and open society that everyone has the opportunity to expose what they believe is in the public interest.

As somebody who has had cause over recent weeks to debate in my head what I believe is or is not in the public interest, and whether or not other people may consider activities to be in the public interest, this is something that is quite dear to my heart. Nevertheless, a public interest exemption exists, and I think it is important, but I do hope it is not used as an excuse because what may be interesting to the public should not always be considered in the public interest.

The bill goes on to talk about communication or publication of material in the public interest, and there is a provision there that it is only with the order of a judge that information in the public interest can be exposed. I do not necessarily see this clause as a bad thing. Why? Because for an individual who is not able to ascertain reasonably what is or is not in the public interest, instead of publishing it, and potentially being sued, they can go to a judge and get a judgement to know whether or not they potentially could be sued in the future.

That could lead to a better or a more considered process, when it comes to chucking things out in this sphere because, in the absence of judicial preapproval, we will see that damage will be done regardless of whether or not it turns out to be in the public interest, that you cannot unpublish something;, indeed, we have seen many instances where, even though people are eventually exonerated, damage has been done to their reputation.

Ms Redmond: Trashed.

Mr KNOLL: Yes, they have had their reputations trashed. I think this is very important. There is an exemption given to the media, and one of the main questions I have around this is if somebody collects material, and the act of collecting that material is illegal, and they hand it on to a media organisation who have an exemption from judicial preapproval and it is then published, and that media outlet is then challenged in court about whether or not it is in the public interest, at what point does the original act of collecting the material become illegal?

Indeed, if a media outlet is punished and we say, 'No, this wasn't in the public interest,' and judgement is found against them, does it mean that the person who supplied the material to them was committing an offence? If so, is there anything incumbent upon the media to identify who gave them that material, if they did not collect it themselves, in order to be able to prosecute that person? I would like to understand how that works.

There is also an exemption for the RSPCA, and this is new to this bill rather than the last bill. I am supportive of this because the debate last year became very centred upon animal activists trespassing and taking footage inside abattoirs and intensive farming operations. All those who sought to protect the privacy of farmers who were just going about their daily lives came together with the fact that it should not necessarily be up to the individual to decide whether or not there were instances of animal cruelty and that, even if footage was published more widely, the most appropriate authority to decide that is the RSPCA.

In giving this exemption, hopefully what will happen is that animal activists will be forced to hand over their material to a body that is already responsible for investigating claims of animal cruelty and, although this bill does not state it, I hope that the RSPCA would investigate those claims before they were to publish the material.

I do think it is a reasonable step, one where we can find that balance so that those who are committing acts of animal cruelty are investigated and brought to justice but legitimate farming enterprises do not have footage cut and sliced and overlaid with sounds that are quite clearly not part of the original footage and do not have doctored material out there in the public sphere again trashing their reputation unfairly, when it is very difficult to get that reputation back.

I am wholeheartedly in support of this bill. I do agree that it is not necessarily perfection, but in this space, given that we are dealing with new technology and new ways of doing things, there is going to be a level of uncertainty.

Like the shadow attorney, I too will suggest that, if there are any deficiencies on either side of the argument in this bill, we will be back to seek to change those things. I do believe it is a great step forward and something I have personally been supportive of for a long time. It is a positive step in grappling with instances in our ever-changing society that could not been contemplated in 1972 or even in the late eighties and early nineties.

With the advent of the internet and UAVs, drones, or whatever the member for Bragg called them earlier, out there in the public space, we need to find a balance so that citizens can go about their lives in peace and adhere to the fundamental libertarian ideal that everybody should be free to go about their daily lives unencumbered, except to the extent that they impact on other people's lives. I think this legislation is getting at the fact that, if you are conducting private activity in a private place, you can have a greater assurance that, where trespass laws find themselves to be inadequate, this law gives you further protection in order that you can be assured that you can live your life in relative peace.