Surveillance Devices Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 10 February 2016.)

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments be agreed to.

I will be very brief about this. This matter has been around and around the parliamentary mulberry bush for a very long time, and, whilst it has returned to us in a slightly less perfect form than that in which it was originally conceived, it is nonetheless better than leaving all things undone. Accordingly, the amendments are accepted.

Ms CHAPMAN: I would like to place on the record my appreciation to those in the other place who have presented to us amendments in two areas. This is a bill which needed to come before the parliament to contemporise how we deal with ensuring privacy from not just the audio surveillance but, obviously, from pictorial presentation, and to understand that we are now living in a much more advanced technological world. So, it was necessary for us to update the Listening and Surveillance Devices Act to ensure that we accommodated that. We also needed to ensure that the police had at their disposal legislation which was modern to accommodate the fact that they also needed to carry out their duties in the modern world.

At all material times over the last three or four years we have said, from this side of the house, that modernising the act for the purpose of amendments for the police was consented to. This bill has taken a long time because of other reasons, not because of that. I think every party agreed that the updating in relation to the amendments for the police were with the support of everyone, and it is disappointing to our side of the house that the government was not prepared to, as it were, excise those aspects to enable them to be promoted and passed. I am not aware that the Police Commissioner has given any indication that the efforts of his force were impeded by not having these advances, but, nevertheless, that is disappointing.

In relation to the amendments specifically, there were two areas that needed to be resolved given that the government had presented a new model of how we approach these matters, that is, balancing public interest with privacy. In our view, the government had gone too far by narrowing the definition of 'media organisations' and also from not having the definitive provision as to what was 'private activity', and both of these issues are remedied by the amendments that are before us. Secondly, the government also took the view that, in trying to broker a resolution of the impasses on this bill, it was prepared to put in some exemption clauses just to cover the media and also the RSPCA, because they have both been representatives of each of these industries and organisations and very vocal during the development of this legislation and the discussion and debate around the bill.

That was, I suggest, really a cheap way of trying to resolve this matter: 'Well, look, we've got the noisiest people. We're just going to give them an exemption clause and everything can go through.' As it turned out, even those industries and associations remained vehement in their opposition to approaching it in that manner.

During the course of those discussions late last year, the government did accede and I thank them for, at least in the end, agreeing to resubmit the bill in the Legislative Council, to make amendments to clause 3 and to ensure that we have consistency with the definition that applies under the commonwealth Privacy Act of 'media organisation' which, I would hope, will at least provide some consistency for any of the legal and judicial officers who have to interpret this in the future and help them in their deliberations.

Secondly, I would like to place on the record my appreciation to personnel: Ms Clare O'Neil, Director of Free TV Australia; Georgia-Kate Schubert, Head of Policy and Government Affairs at News Corp; Peter Campbell, a partner of HWL Ebsworth Lawyers; Rocco Perotta, who was then president of the Law Society of South Australia; Tim Vasudeva, who is the Chief Executive Officer of the RSPCA; Mr Frank Filosi, General Manager of Channel 10; Mr Sean O'Brien, who is the Managing Director of Channel 9; and the executive representatives from Channel 7 at that time, namely, Mr Tony Davison, Mr Graham Archer and Mr Terry Plane.

These people gave valuable advice and I appreciate that throughout the time. To the extent of trying to make this legislation more effective so that we do not end up with our court system being absolutely overloaded with applications, thankfully—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: The Attorney might laugh at that, but let's face it, we have crumbling courts as it is; they hardly have room for more unnecessary applications. I also wish to thank the advisers to the Attorney who were prompt in their provision of briefings and in the communications through the negotiation of the matter.

I do not think I could go so far as to say that the Attorney was as forthcoming in that regard, but nevertheless, he was not obstructive in the end and was duly cooperative. Certainly I wish to convey that to his staff. It does help to deal with these matters efficiently when that level of communication and, I think, respectful dialogue is undertaken. With those few words, I look forward to the passage of the bill.

Mr KNOLL: I rise today to place on the record very quickly my pleasure at the fact that this bill is being passed today. I have long thought it was a great idea for a number of reasons. First, the issue of cross-jurisdictional warrants for police is quite important and the modernisation in that area has long been asked for. In fact, I think it is over a decade since it was suggested through a COAG process. It is great that we can finally get our act together on that.

Division 2 of the bill talks about publication of materials. There has certainly been a lot of debate around that, as there should be, but division 1 is the part that excites me most. To somebody who very much believes in a right to privacy in a world that is increasingly taking that privacy away, division 1 of the bill is extremely important in ensuring and, in a sense, protecting that privacy, so that people can feel safe and so that private activities they undertake are protected from being listened to and recorded in a multitude of ways.

Regardless of the publication side of the bill, I think division 1 is a fantastic thing and puts in place that de facto right to privacy through this piece of legislation and also, where people break the law in this regard, there certainly will be remedies to that. I am very excited to see the passage of this bill, and I am very much looking forward to the third reading.

The Hon. J.R. RAU: I thank the members who have contributed and worked on this legislation. I would also like to acknowledge my staff, as the deputy leader has acknowledged, particularly Peter, who has devoted his life to this project almost 24 hours a day, seven days a week for as long as I can recall. It is a fantastic day for him, because today an enormous burden is lifted from his shoulders, and he is going to be a very happy young man.

As I said at the beginning, I think all of us as members of parliament really need to think very, very seriously about the matter that the member for Schubert mentioned in his brief remarks, that is, the balance between the privacy of the individual and an increasingly technologically advanced and intrusive world and the role of law enforcement in interfering with that and, on the other hand, the right of busybodies to interfere with that for commercial gain. I would make the point that quite obviously there is a substantial difference between what is in the public interest and what is of interest to the public.

If we have a proper definition of 'in the public interest' and it does not include matters which are simply 'of interest to the public', then I guess that is not a bad outcome. I personally will be watching this very carefully, because anybody, any sort of busybody, using technology to intrude in other people's personal affairs and then use that intrusion as a way of either titillating an audience or making money, or both, is not a legitimate activity. As I said, I will be watching this very carefully.

In respect of the media organisation, the definition that has been given is one that does concern me. Again, I make it clear that I am accepting this, because I want this to go through and I think it is worth giving it a try, but I do make the point that this legislation is not meant, at least in my mind, to enable any Tom, Dick or Harry, who consider themselves to be a home broadcaster or a 'citizen journalist', to go around doing whatever they like with the reputation of anybody else or the private information or whatever of anybody else on the grounds that they consider themselves to be an artiste, or a journalist, or a social commentator, or some form of Übermensch who has the right to go around commenting on everybody because they feel like it.

Hopefully, the definition we have got here does not let that sort of cohort of individuals into the relatively protected world of the definition of media organisation. Again, I will be keeping an eye on that. I do add, again: I am confident this is not the end of this issue about privacy for this parliament. Hopefully, today we see the end of this bill for a period of time—a long period I hope—where we do not need to disturb it again. I think all of us need to think about the very, very intrusive nature of—

Ms Chapman interjecting:

The Hon. J.R. RAU: Well, I am waiting for the moment in time—

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, but this is a fascinating thing. I will just say this. George Orwell's little commentary about the English language does warrant reading. It is a short passage but he does talk about how words actually become lies. It is a great little passage, and I ask everybody to look at it. It also gives you five simple tips as to how to construct good English, and the fifth one is do anything to ignore the first four rather than do something that is appalling. Anyway, that is by the bye.

The point is that some people who talk about privacy, perversely enough, are actually speaking about something which is contrary to the public interest, and even private interest. You find this in government. The pursuit of 'privacy' sometimes means that government does not provide the best service it can for its citizens, because elements of government—

Mr Duluk: Not this government, anyway.

The Hon. J.R. RAU: That was a chortling one, wasn't it? Very quick.

The CHAIR: We need to report.

The Hon. J.R. RAU: I am done now. I am very happy.

Motion carried.

Sitting extended beyond 17:00 on motion of Hon. J.R. Rau.