SURVEILLANCE DEVICES BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. I.K. HUNTER (Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (18:22): I move:

That this bill be now read a second time.

I seek leave to have the second reading speech and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

On 5 April, 2002, the Council of Australian Governments COAG) held a special meeting on Terrorism and Multi-Jurisdictional Crime. One outcome of that meeting was that Leaders agreed: To legislate through model laws for all jurisdictions and mutual recognition for a national set of powers for cross-border investigations covering controlled operations and assumed identities legislation; electronic surveillance devices; and witness anonymity. Legislation to be settled within 12 months.

The task of developing these model laws was given to a task force known as the national Joint Working Group (JWG) established by the then Ministerial Councils (the Standing Committee of Attorneys-General and the Australian Police Ministers Council) and consisting of representatives of both bodies. The JWG published a Discussion Paper in February, 2003 that discussed and presented draft legislation on all 4 topics and received 19 submissions nationally. A Final Report was published in November, 2003.

The first 3 topics were dealt with in this State by what has become the Criminal Investigation (Covert Operations) Act 2009. So far as the subject of electronic surveillance was concerned, no national agreement was reached on a model domestic law and so the agreed model related only to cross-border recognition. For as long as that was so, there was no urgency in progressing the issue and no obvious benefit in having 1 Act for domestic law and another for cross-border recognition. However, by 2009, police had taken the view that the existing legislation was due for a general overhaul. The last amendments were made by the Listening Devices (Miscellaneous) Amendment Act 1998.

The point for present purposes is that more than 10 years has passed since the Listening and Surveillance Devices Act 1972 was revisited, and much has changed, not least developments in electronic surveillance, and methods of intruding into privacy, since then.

The Bill contains the recommended provisions allowing for the cross-border recognition of surveillance device warrants. So far as South Australia is concerned, that means that the law of this State will regard as validly issued those surveillance device warrants of a corresponding Australian jurisdiction declared by regulation. It is up to those other Australian jurisdictions to pass laws recognising our warrants for the purposes of the law of their State. This is nationally regarded as important for the often stated and obviously true reason that criminals do not respect State and Territory borders. The measure is a target in, for example, the National Organised Crime Response Plan.

In addition, a review of the existing Act, in close consultation with South Australia Police (SAPol), has resulted in extensive proposals for amendments. These are:

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. In practice, the Supreme Court rosters judges for this purpose. No doubt it is a nuisance for everyone. SAPol says that the process takes about 2 hours, during which, of course, nothing can be done. The alternative is to allow emergency authorisation for urgent situations to be made by a senior police officer. Many Australian jurisdictions have this procedure and it is part of the JWG model which has been accepted by the Commonwealth. The Bill proposes a similar procedure including, notably, a requirement that police seek judicial confirmation of the emergency authority within 2 business days after the emergency authority is granted.

The Commonwealth provisions dealing with urgent or emergency warrant applications restrict the procedure to certain kinds of offences. The list is: where an imminent risk of serious violence to a person or substantial damage to property exists; and the use of a surveillance device is immediately necessary for the purpose of dealing with that risk; and the circumstances are so serious and the matter is of such urgency that the use of a surveillance device is warranted; and it is not practicable in the circumstances to apply for a surveillance device warrant. This is followed. However, neither current South Australian law nor Commonwealth law allows for explicit emergency authorisation for serious drug offences and this defect will be remedied with similar pre-conditions.

New technology means that a tracking device can be attached to a vehicle in a public place or a place under the control of police (such as a yard for keeping seized vehicles). This will sometimes have to be done in a hurry before the vehicle gets away. In these circumstances, attaching such a surveillance device will be permitted by obtaining a surveillance device (tracking) warrant from the chief officer so long as the device is non-intrusive. Other Australian legislation deals with this situation in different ways. There is no national consistency. The police will be allowed to use subterfuge to get the device attached unnoticed. For example, the police might temporarily move the car so as to attach the device out of the public eye.

The general ability to use a listening device to record a private conversation if it is in the course of duty of the person, in the public interest or for the protection of the lawful interests of that person in the current section 7(1)(b) of the Act is too broad and ill-defined. It is unsuited to the threats to personal privacy posed by the technological realities of the 21st Century. It has been eliminated and more specific and targeted allowances made for lawful use of all kinds of devices.

The JWG model contains special provision for 'remote applications' to deal with instances where physical remoteness means that it is impractical to make a warrant application in person. The Commonwealth legislation adopts the model. This is a common-sense exception to the usual requirement that a warrant be sought by personal application.

The JWG model contains provision for 'specified person warrants'. The point of this is to allow 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. That makes sense and the Bill contains provisions designed to allow for this expedient.

Material obtained by use of listening or surveillance devices installed pursuant to a warrant is prohibited from being communicated or published unless it falls within one of the exceptions in section 6AB of the current Act. Obviously, material must be used for the purposes of a criminal investigation and that remains and will remain by far the most common use of the material. But, these days, law enforcement has tools available to it that move beyond the simple arena of the criminal justice system. The Government can and will pursue criminals through civil legislative remedies such as those contained in the Criminal Assets Confiscation Act 2005, Serious and Organised Crime (Control) Act 2008 and the Serious and Organised Crime (Unexplained Wealth) Act 2009 and the product must be made available for these crime-fighting purposes.

The judges of the Supreme Court (who are the issuing authorities under the current Act) have interpreted the current Act so that all people authorised to exercise powers under the warrant are specified in the warrant. SAPol argues that the specification of SAPol personnel in the warrant poses potential security risks - risk 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 names scheme is in the Bill. The 'holder of the key' is not specified in the Bill - it will be up to the court to determine how it will deal with the matter.

There are other more minor changes proposed. All are consistent with the JWG model.

The Bill authorises the use of a surveillance device on specified premises; in or on a specified object or class of object; or, in respect of the conversations, activities or location of a specified person or a person whose identity is unknown.

The definition of 'premises' is expanded in line to include land; and a building or vehicle (includes an aircraft or vessel); and a part of a building or vehicle; and any place, whether built on or not.

The definition of 'surveillance device' is amended to mean a data surveillance device; a listening device; an optical surveillance device; or a tracking device; or a device that is a combination of any 2 or more of the above devices; or a device of a kind prescribed by regulations.

The regulation of data surveillance devices; listening devices, optical surveillance devices, and tracking devices, is broadly similar in form. However, following representations that have been made, it should be made clear that the Bill in no way permits as lawful the filming or surveillance of people in toilets or similar places, whether by local government or otherwise. The Bill cannot be read in isolation. Laws against indecent filming already exist and will be strengthened by the imminent introduction into this Parliament of a Bill that has been the subject of wide public consultation and that deals with humiliating and degrading images.

Extensive oversight and reporting provisions are proposed in order to safeguard the public interest as best as can be managed without jeopardising criminal investigations and other sensitive information. In particular, there has been no watering down of current requirements.

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

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause sets out definitions of words and phrases used for the purposes of this measure.

Part 2—Regulation of installation, use and maintenance of surveillance devices

Division 1—Installation, use and maintenance of surveillance devices

4—Listening devices

Subclause (1) provides that, subject to this clause, it is an offence if a person knowingly installs, uses or causes to be used, or maintains, a listening device—

to overhear, record, monitor or listen to a private conversation to which the person is not a party; or

to record a private conversation to which the person is a party.

The maximum penalty for such an offence is $75,000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.

Subclause (2) provides that a party to a private conversation may, however, use a listening device to record the conversation—

if all principal parties to the conversation consent (expressly or impliedly) to the device being so used; or

if—

the party to the conversation using the device is the victim of an offence alleged to have been committed by another party to the conversation; and

the use of the device is for the protection of the lawful interests of that person or in the public interest.

Subclause (3) sets out other situations in which subclause (1) does not apply.

5—Optical surveillance devices

Subclause (1) provides that, subject to this clause, it is an offence for a person to knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other thing, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves either or both of the following:

entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle;

interference with the premises, vehicle or thing without the express or implied consent of the person having lawful possession or lawful control of the premises, vehicle or thing.

Subclause (2) sets out the situations in which subclause (1) does not apply.

The maximum penalty for an offence against this provision is $75,000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.

6—Tracking devices

Subclause (1) provides that, subject to this clause, it is an offence for a person to knowingly install, use or maintain a tracking device to determine the geographical location of—

a person, without the express or implied consent of that person; or

a vehicle or thing, without the express or implied consent of the owner or a person in lawful possession or control, of that vehicle or thing.

Subclause (2) sets out the situations in which subclause (1) does not apply.

The maximum penalty for an offence against this provision is $75,000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.

7—Data surveillance devices

Subclause (1) provides that, subject to this clause, it is an offence for a person to knowingly install, use or maintain a data surveillance device to access, track, monitor or record the input of information into, or the output of information from, or information stored in, a computer without the express or implied consent of the owner, or person with lawful control or management, of the computer.

Subclause (2) sets out the situations in which subclause (1) does not apply.

The maximum penalty for an offence against this provision is $75,000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.

Division 2—Prohibition on communication or publication

8—Prohibition on communication or publication

Subclause (1) provides that a person must not knowingly use, communicate or publish information or material derived from the use (whether by that person or another person) of a surveillance device in contravention of this Part.

The maximum penalty for an offence against this provision is $75,000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.

Subclause (2) provides that the prohibition does not prevent the use, communication or publication of information or material derived from the use of a surveillance device in contravention of this Part—

to a person who was a party to the conversation or activity to which the information or material relates; or

with the consent of each party to the conversation or activity to which the information or material relates; or

for the purposes of a relevant investigation or relevant action or proceeding relating to that contravention of this Part or a contravention of this section involving the communication or publication of that information or material; or

in the course of proceedings for an offence against this measure; or

otherwise in the course of duty or as required by law.

Part 3—Surveillance device warrants and surveillance device (emergency) authorities

Division 1—Surveillance device (tracking) warrants

9—Application of Division

This clause provides that this Division applies if, for the purposes of the investigation of a matter by an investigating agency, the agency requires the authority—

to install on a vehicle or thing situated in a public place, or in the lawful custody of the agency, 1 or more tracking devices; and

to use those devices.

10—Application procedure

This clause sets out the application procedure for the issue, variation or renewal of a surveillance device (tracking) warrant by an officer of an investigating agency to the chief officer of the agency.

11—Surveillance device (tracking) warrant

This clause sets out the grounds on which the chief officer of a law enforcement agency to whom application is made to issue a surveillance device (tracking) warrant and specifies the information that must be set out in the warrant.

Subject to any conditions or limitations specified in the warrant—

a warrant authorising the use (in a public place or elsewhere) of a tracking device in respect of the geographical location of a specified person or a person whose specific identity is unknown who, according to the terms of the warrant, is suspected on reasonable grounds of having committed, or being likely to commit, a serious offence will be taken to authorise interference with any vehicle or thing situated in a public place, or in the lawful custody of the relevant investigating agency, as reasonably required to install, use, maintain or retrieve the device for that purpose; and

a warrant authorising (whether under the terms of the warrant or by force of the preceding paragraph) interference with any vehicle or thing in a public place, or in the lawful custody of the relevant investigating agency, will be taken to authorise the use of reasonable force or subterfuge for that purpose; and

the powers conferred by the warrant may be exercised by the responsible officer or under the authority of the responsible officer at any time and with such assistance as is necessary.

Division 2—Surveillance device (general) warrants

12—Application of Division

This clause provides that this Division applies if, for the purposes of the investigation of a matter by an investigating agency, the agency requires the authority to do any or all of the following:

to use 1 or more types of surveillance device (including a tracking device);

to enter or interfere with any premises for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices;

to interfere with any vehicle or thing for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices.

13—Usual application procedure

This clause sets out the application procedure for the issue, variation or renewal of a surveillance device (general) warrant by an officer of an investigating agency to a judge of the Supreme Court. Subject to clause 14, an application must be made by providing the judge with a written application and by appearing personally before the judge. The clause sets out the information that must be specified in the application and provides that the application must be accompanied by an affidavit verifying the application.

14—Remote application procedure

This clause sets out the procedure for a remote application for a surveillance device (general) warrant if it is impracticable in the circumstances to make an application according to the procedure set out in clause 13. In those circumstances, an application for the issue, variation or renewal of a surveillance device (general) warrant may be made by fax, email, telephone or other electronic means. This clause sets out the procedure to be followed in relation to any such application.

15—Surveillance device (general) warrant

This clause provides that a judge may issue a surveillance device (general) warrant on application if satisfied that there are in the circumstances reasonable grounds for so doing. The clause sets out other matters that must be specified in the warrant, including that the warrant may specify a code name rather than a real name if satisfied that the disclosure of a person's name in the warrant may endanger a person's safety. Subject to any conditions or limitations specified in the warrant—

a warrant authorising the use of a surveillance device in respect of the conversations, activities or geographical location of a specified person, or a person whose identity is unknown, who, according to the terms of the warrant, is suspected on reasonable grounds of having committed, or being likely to commit, a serious offence will be taken to authorise—

entry to or interference with any premises, vehicle or thing as reasonably required to install, use, maintain or retrieve the device for that purpose; and

the use of the device on or about the body of the person; and

a warrant authorising (whether under the terms of the warrant or by force of paragraph (a)(i)) entry to or interference with any premises, vehicle or thing will be taken to authorise—

the use of reasonable force or subterfuge for that purpose; and

any action reasonably required to be taken in respect of a vehicle or thing for the purpose of installing, using, maintaining or retrieving a surveillance device to which the warrant relates; and

the extraction and use of electricity for that purpose or for the use of the surveillance device to which the warrant relates; and

a warrant authorising entry to specified premises will be taken to authorise non-forcible passage through adjoining or nearby premises (but not through the interior of any building or structure) as reasonably required for the purpose of gaining entry to those specified premises; and

the powers conferred by the warrant may be exercised by the responsible officer or under the authority of the responsible officer at any time and with such assistance as is necessary.

Division 3—Surveillance device (emergency) authorities

16—Application procedure

This clause sets out the procedure for an officer of an investigating agency to make an application (in person, in writing or by fax, email, telephone or other means of communication) to the chief officer of the agency for a surveillance device (emergency) authority in relation to the use of a surveillance device. The clause sets out the grounds and circumstances on which such an application may be made.

17—Surveillance device (emergency) authority

This clause provides that the chief officer of a law enforcement agency to whom an application is made may, if satisfied that there are, in the circumstances of the case, reasonable grounds to do so, grant a surveillance device (emergency) authority in relation to the use of a surveillance device authorising the officer to do 1 or more of the following (according to its terms):

the use of 1 or more types of surveillance device;

entry to or interference with any premises as reasonably required for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices;

interference with any vehicle or thing as reasonably required for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices.

The clause sets out the matters that must be specified in the surveillance device (emergency) authority, including any conditions and limitations on the authority. The powers that may be authorised under a surveillance device (emergency) authority are similar to the powers that may be authorised by a surveillance device warrant.

18—Application for confirmation of surveillance device (emergency) authority etc

This clause provides that the chief officer of a law enforcement agency must, within 2 business days after granting an emergency authorisation, make an application (by personal appearance following the lodging of a written application) to a judge for approval of the granting of, and the exercise of powers under, the emergency authorisation. Any such application must not be heard in open court.

19—Confirmation of surveillance device (emergency) authority etc

On hearing an application under clause 18, the judge—

must—

if satisfied that the granting of the surveillance device (emergency) authority, and the exercise of powers under the authority, was justified in the circumstances, confirm the authority and the exercise of those powers; and

cancel the surveillance device (emergency) authority; and

if a surveillance device (general) warrant is sought and the judge is satisfied that there are reasonable grounds to issue a warrant in the circumstances—issue a surveillance device (general) warrant;

may, if not satisfied that the circumstances justified the granting of the surveillance device (emergency) authority, make 1 or more of the following orders:

an order that the use of the surveillance device cease;

an order that, subject to any conditions the judge thinks fit, the device be retrieved;

an order that any information obtained from or relating to the exercise of powers under the authority, or any record of that information, be dealt with in the way specified in the order;

any other order as the judge thinks fit.

If a judge confirms a surveillance device (emergency) authority, and the exercise of powers under the authority, evidence obtained through the exercise of those powers is not inadmissible in any proceedings merely because the evidence was obtained before the authority was confirmed.

Division 4—Recognition of corresponding warrants and authorities

20—Corresponding warrants

This clause provides that a corresponding warrant may be executed in this State in accordance with its terms as if it were a surveillance device (tracking) warrant or surveillance device (general) device warrant (as the case may be) issued under this measure.

21—Corresponding emergency authorities

This clause provides that a corresponding emergency authorisation authorises the use of a surveillance device in accordance with its terms in this State, as if it were a surveillance device (emergency) authority granted under this measure unless the judge has ordered, under a provision of a corresponding law, that the use of a surveillance device under the corresponding emergency authority cease.

Division 5—Miscellaneous

22—Management of records relating to surveillance device warrants etc

The chief officer of an investigating agency by whom a surveillance device (tracking) warrant is issued, or a surveillance device (emergency) authority is granted, must cause the application and the warrant or authority (and any copy of the warrant or authority) to be managed in accordance with the regulations.

A judge by whom a surveillance device (general) warrant is issued, varied or renewed must cause each of the following to be managed in accordance with the rules of the Supreme Court:

the application;

the warrant (and any duplicate or copy of the warrant) as issued, varied or renewed;

any code name specified in the warrant;

the affidavit verifying the application.

23—Limitations on use of information or material derived under this Part

A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a surveillance device under an authority under this Part except—

to a person who was a party to the conversation or activity to which the information or material relates; or

with the consent of each party to the conversation or activity to which the information or material relates; or

for the purposes of a relevant investigation; or

for the purposes of a relevant action or proceeding; or

otherwise in the course of duty or as required by law; or

if the information or material has been taken or received in public as evidence in a relevant action or proceeding.

The maximum penalty for an offence against this provision is $75,000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.

Part 4—Register, reports and records

24—Interpretation

This clause defines the class of persons to whom this Part applies.

25—Register

This clause provides that the chief officer of an investigating agency (other than the ACC) must keep a register of warrants and authorities issued to the agency under this measure and specifies the information that must be contained in the register.

26—Reports and records

This clause makes provision for the reports that must be given to the Minister by the chief officer of an investigating agency (other than the ACC) in relation to surveillance device warrants issued to officers of the agency under this measure and the uses and outcomes relating to such warrants.

27—Control by investigating agencies of certain records, information and material

This clause provides that the chief officer of an investigating agency must keep certain records and information relating to warrants and authorities under this measure, and control, manage access to, and destroy any such records, information and material, in accordance with the regulations.

28—Inspection of records

This clause provides that the review agency for an investigating agency may, at any time, and must, at least once in each period of 6 months, inspect the records of the agency for the purpose of ascertaining the extent of compliance with this measure. The review agency must, not later than 2 months after the completion of any such inspection, provide the Minister with a written report on the inspection.

29—Powers of review agency

This clause sets out the powers of a review agency for an investigating agency for the purposes of carrying out an inspection under this Division. Under this clause, it is an offence (the penalty for which is $15,000 or imprisonment for 3 years) to refuse or fail to comply with a requirement of the review agency under this clause, or to hinder or give false or misleading information to the review agency.

Part 5—Miscellaneous

30—Offence to wrongfully disclose information

This clause provides that it is an offence for a person to knowingly communicate or publish information or material about a surveillance device warrant or surveillance device (emergency) authority except—

as required to do so under this measure; or

for the purposes of a relevant investigation; or

for the purposes of a relevant action or proceeding; or

in the course of proceedings for an offence against this measure; or

otherwise in the course of duty or as required by law.

The maximum penalty for an offence against this provision is a fine of $50,000 for a body corporate or, in the case of a natural person, a fine of $10,000 or imprisonment for 2 years.

31—Delegation

This clause provides that the chief officer of an investigating agency may only delegate his or her functions under this measure to a senior officer (as defined in the clause).

32—Possession etc of declared surveillance device

This clause provides for a mechanism by which the Minister may, by notice in the Gazette, declare that this clause applies to a surveillance device or a surveillance device of a class or kind specified in the notice. A person is prohibited from having in his or her possession, custody or control any such declared surveillance device (the penalty for which is, for a body corporate, a fine of $50,000 and, for a natural person, $10,000 or imprisonment for 2 years) without the consent of the Minister.

33—Power to seize surveillance devices etc

This clause provides that, if an officer of an investigating agency suspects on reasonable grounds that—

a person has possession, custody or control of a declared surveillance device without the consent of the Minister; or

any other offence against this measure has been, is being or is about to be committed with respect to a surveillance device or information derived from the use of a surveillance device,

the officer may seize the device or a record of the information.

34—Imputing conduct to bodies corporate

Subclause (1) provides that, for the purposes of this measure, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.

If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subclause (1) had the relevant knowledge, intention or recklessness.

If, for an offence against this measure, mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subclause (1) made that mistake of fact.

35—Evidence

This clause makes provision for evidence in proceedings for offences in the usual terms.

36—Forfeiture of surveillance devices

This clause makes provision for the forfeiture of surveillance devices in the case of a conviction of an offence against this measure.

37—Regulations

This clause provides that the Governor may make regulations for the purposes of this measure.

Schedule 1—Related amendments, repeal and transitional provisions

This Schedule makes related and consequential amendments to the Criminal Investigation (Covert Operations) Act 2009 and the Director of Public Prosecutions Act 1991; repeals the Listening and Surveillance Devices Act 1972; and makes provision for transitional arrangements consequent on the repeal of that Act and the enactment of this measure.

Debate adjourned on motion of Hon. J.M.A. Lensink.