SURVEILLANCE DEVICES BILL

Second Reading

Adjourned debate on second reading.

(Continued from 19 September 2012.)

The Hon. A. BRESSINGTON (17:40): I rise to speak to the Surveillance Devices Bill 2012. Prior to addressing my concerns with the bill, I must express my disappointment at the lack of consultation—again. Not for the first time, a bill with significant impact on our constituents has been introduced in another place by the Attorney-General without stakeholder or public consultation. In fact, during the briefing provided by the Attorney-General's office (for which I thank him), my office was informed that the Attorney-General had given very specific instructions not to consult more broadly. Only the police, who have obviously pushed for much of the bill, were engaged prior to this introduction.

Yet again, if it was not for members of the Legislative Council consulting stakeholders and informing the public more broadly, this bill would be debated in a vacuum, with little input on the impact it will have. Despite the Premier's promise of consultative government, we instead see the standard 'announce and defend' strategy the former premier was denounced for. True to this strategy, the Attorney-General has been on radio several times to defend the bill. Each time he has demonstrated that his knowledge of the bill is at best superficial.

Those who have been paying attention to the radio debate will know that one of the main issues with the bill is that the Attorney-General is seeking to remove the existing right to record a private conversation to protect your lawful interests. As I have detailed on radio, I am aware of several constituents who, in reliance of lawful interest exemption, have recorded their interactions with public servants and Families SA caseworkers. While many never have cause to later use the recording, some do.

In one case, a relatively young couple who had had their six children removed recorded their access visits and meetings with their caseworker, following accusations that they were unsettling their children and being abusive to Families SA staff. However, as they were able to demonstrate from the recordings, it was in fact the Families SA staff and contractors who were traumatising the children and making false allegations against the parents. This recording, I believe, assisted them in having their children returned to their care.

In some cases, professionals also rely on this exemption. As was pointed out in the submission to my office by the National Security Association of Australia, some investigators and security agents also work as process servers. Through experience, many have learnt that it is in their interests to record their interactions with those they are serving, given the propensity for them to become abusive, if not violent, and to falsely allege either that the document was not served or that the servers themselves were abusive.

While the current act permits them to record to protect their lawful interests, the bill as proposed, of course, does not. Instead, the bill narrows the lawful interests defence to all but the most limited of scenarios, in which the person recording a private conversation is the alleged victim of an offence committed by another party to the conversation. As stakeholders like the National Security Association of Australia and Free TV Australia pointed out, this exemption is so narrow that it is unworkable. From the briefing provided, it is my understanding that this narrow exemption has only been included in the bill at the request of the police who, in some cases, rely on recorded conversations between an alleged victim and the offender to bolster their case.

I had initially assumed that the police were behind the removal of the broader lawful interest defence. However, putting this question to them in a briefing, I was informed that this was being led by the Attorney-General himself and the police had (and I quote) 'no official opinion' on whether or not it should be retained. This being the case you would think that the Attorney-General would at least know what this bill proposes. However, as the Attorney-General revealed on radio, he believes that the bill maintains the ability to record a conversation to protect your lawful interest. Having been posed a scenario by Leon Byner on FIVEaa in which a person records a conversation fearing that the other party to the conversation may falsely accuse him or her, and then being asked 'What's wrong with that', the Attorney-General responded:

I think you'll find, Leon, that the draft bill says that if it is for the protection of yourself, it's okay.

Ignoring the fact that it is no longer a draft bill, given that it has been introduced, this is clearly wrong as the shadow attorney-general later rebutted.

Despite what the bill actually says, the Attorney-General himself clearly believes that, in such a scenario, our constituents would have the right to protect themselves. As such, one assumes the government will be supporting amendments to that effect. In addition to the lawful interest exemption, the existing act also provides for an exemption to the prohibition on recording a private conversation in the public interest which is relied upon by investigative journalists and others from the media.

Again, despite the bill removing this exemption, media networks were not given an opportunity to have any input prior to the bill being introduced. Since being notified by my office and the shadow attorney-general's, media networks including Channel 7, the ABC, and the industry body, Free TV, have all made submissions opposing the bill in its current form. They argue that without the ability to record private conversations in the public interest, legitimate journalists will potentially be prevented from exposing corruption, abuse of public office or other stories of genuine public interest. In a similar vein, Ms Sharon Mascall-Dare, a lecturer at the School of Communication, International Studies and Languages, at the University of South Australia, states in an email to my office:

The wording of the bill does not accommodate standard investigative practices as pursued by many investigative journalists.

She added:

It is not always the case that a person who is the victim of alleged conduct would be party to a conversation being filmed or recorded for bona fide investigative purposes. The law would effectively rule out all investigative work of the victim if the victim is not present party to the conversation. The wording shows a lack of understanding concerning how investigative journalists operate.

Whilst it is true that some other states have sought to place limitations on the use of private material recorded in the public interest, as Mr Peter Campbell from Kelly & Co. Lawyers states in his submission on behalf of Channel 7 Adelaide, the exception in the bill requiring the person recording to be the alleged victim of an offence by another party to the conversation is 'the most restrictive of all Australian jurisdictions'. The Attorney-General is yet to offer an explanation as to why he is seeking to curtail the ability of investigative journalists to do their job.

The only explanation he proffered in his introductory speech was that the terms 'lawful interest' and 'public interest' are poorly defined and open to various interpretations. I may have paid that argument serious regard if the bill did not retain those particular terms. In fact, the term 'lawful interest' is used three times across two clauses. Instead, my suspicion is that this government is seeking to limit its own exposure. Call me cynical.

Other stakeholders who will be severely impacted by the changes proposed in the bill are private investigators. Given that this bill seeks to significantly change the regulatory regime of surveillance devices, one would expect that the Attorney-General would have at least consulted with private investigators who legitimately use surveillance devices in their work. However, they, too, were ignored by the AG, leading to the Australian Institute of Professional Investigators, who were alerted to the bill by my office, to express in their submission their 'complete dissatisfaction that the bill was introduced without consultation with the private sector'.

Mr Jim Corbett, the President of AIPI, then expresses their concerns that the bill will have 'a significant impact on the ability of professional investigators to service their clients' needs'. As an example, Mr Corbett points to the prohibition on using an optical surveillance device on private property without the consent of the owner or occupier, stating that crucial evidence such as footage of an injury claimant working out in a gym would be inadmissible. As stated, the National Security Association of Australia, South Australian branch, has also sent a submission to my office, detailing its concerns with the bill.

In addition to the removal of the lawful interest exception, Mr Charles MacDonald, on behalf of the president of the NSAA, also points to the wording of the prohibition of GPS tracking devices and how this may prevent them detecting theft by clients' employees. Investigators currently use GPS trackers to track their vehicles with the consent of the owner but for the purpose of determining the geographical location of any given driver. A scenario was relayed by Mr MacDonald of an employee of a charity who was suspected of stealing donated goods by using a work van. The charity may engage an investigator to track the location of the van and, in doing so, prove that the employee is regularly making unscheduled stops at a private residence or warehouse.

In one such case, thousands of dollars worth of goods were later discovered to have been stolen. It is Mr MacDonald's concern that because the implicit purpose of the use of a GPS tracker is to track the driver, this would be prohibited under clause 6(1)(a) of the bill which states that it is an offence 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. If this is the case, it may be necessary for the owner to notify the driver of the intent to track the vehicle. As Mr MacDonald says in his letter, while this may deter the driver from further wrongdoing, it is unlikely to secure evidence for a prosecution.

Whilst these are the issues that have currently been raised with my office by this sector, AIPI has indicated that there are additional areas of concern with the bill which it is further consulting on with its members. This is understandable given that they first learnt of the bill a week or so after it was introduced. The majority of the bill deals with surveillance warrants available to law enforcement. While much of this mirrors the existing act and is to be supported, I have identified numerous issues that I feel require amendment.

The first relates to the definition of a serious offence, which the existing act defines as murder, kidnapping or a drug offence punishable by imprisonment for a period of at least seven years. Somewhat inexplicably, however, the bill seeks to redefine a serious offence to any offence which carries a maximum penalty of three years or more or any commercial drug offence. This is, at least to my memory, the lowest threshold of a serious offence that we have ever been asked to pass in this council.

Whilst warrants can be issued to investigate offences not meeting this threshold, in the briefing provided by the South Australia Police it was made clear that the police themselves could not foresee a case in which they would seek a surveillance warrant to investigate an offence that did not carry a maximum penalty of three years. In fact, it is my memory that the police indicated that to the best of their knowledge at the time they never had.

As such, it is my belief that the true intention of dropping the threshold of a serious offence is to ensure that the full powers available to the police on being granted a warrant are presumed to apply rather than the police having to convince a Supreme Court justice that they need such powers. This to my mind is an abuse of the Supreme Court's role in granting surveillance warrants and should not be permitted.

I also believe I have identified a flaw in the bill that would enable the police to avoid the Supreme Court entirely. The bill provides for the police to grant themselves emergency authorities, which grants the same extensive powers as a surveillance device (general) warrant. These emergency authorities are intended to enable the police to expedite the approval process in cases where seconds count. However, the bill provides that they must have the emergency authority confirmed by a Supreme Court justice within 48 hours of the authority being granted, but only if the authority is still in force.

If, however, the authority is cancelled because the powers are no longer needed, the bill seemingly does not require the authority to be confirmed. Having queried this at the police briefing, I was later sent an email by the Attorney-General's adviser, who stated that the evidence gathered could, and I quote, 'still be used by police as it was lawfully obtained.' This means that the police can issue themselves with an authority, gather evidence and use that evidence without the Supreme Court ever considering whether or not the authority was appropriately issued.

A sceptic could suggest that SAPOL would use an emergency authority if they believed that a justice may not grant a general surveillance warrant or if their application for a general surveillance warrant was rejected. Further, there is nothing to prevent the police from issuing an authority, then revoking it after 47 hours and, a couple of days later (or even the next day), issuing yet another authority.

Whilst the Supreme Court would no doubt look dimly on this, the bill seemingly permits it. I indicate to the council that I have had amendments drafted to require an emergency authority to be confirmed regardless of whether it is still in force, unless the powers authorised have not been exercised.

I also have concerns about the powers available to the police under the self-issued surveillance device (tracking) warrants, particularly the ability to steal a suspect's car, as was suggested by the Attorney-General in another place. Such powers, at least to my mind, should only be available to the police if granted by the Supreme Court, not by themselves.

In addition to these issues, the Law Society of South Australia in its submission to the bill, at the request of the Hon. Stephen Wade, also expressed its concerns with the removal of the judicial oversight of tracking warrants and emergency authority, the expanded use of intrusive powers by the police, and the drafting of several key provisions.

As I believe I have demonstrated, this bill has serious issues that will have a significant impact on our constituents and relevant stakeholders if not amended. Whilst I have some 16 amendments drafted to the bill, these will have to wait as I am aware that the Hon. Stephen Wade will be moving that this bill be sent to a select committee for consideration which I believe will have majority support. If this is so, at least this parliament will undertake the consultation that the Attorney-General failed to do, yet again.

Debate adjourned on motion of Hon. G.A. Kandelaars.