SURVEILLANCE DEVICES BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2012.)

The Hon. S.G. WADE (21:36): I rise to speak on the Surveillance Devices Bill 2012 and I remind honourable members that I have a contingent notice of motion which cannot be put until tomorrow, so I will be seeking the council's concurrence with not taking a second reading vote today because I have not had the opportunity to move that contingent motion yet.

Since this bill has been introduced, there has been increasing community, industry and media concern of the impacts of the controls on the use of listening devices by individuals and the media. It is fair to say that the main concern has focused on what I call the consumer aspects of the bill being part 2 of the legislation.

It is part of a pattern of legislative activity by this government that progressively has made this state much more secretive. From suppression orders to surveillance devices, from secretive ICAC hearings to criminal intelligence, the lack of reform on whistleblower laws, this government has consistently and steadily moved to increase the powers of the state and simultaneously undermine the rights of individuals and their ability to protect their lawful interests. It is a concerning trend that has taken away rights, and checks and balances, without increasing accountability. Such an approach reduces public confidence in the justice system and a free society and undermines confidence that laws are being implemented fairly.

Again, I am concerned that the government has tried to sneak through laws that undermine the capacity of private citizens and the media to uncover corruption. The bill, as it stands, takes away the rights of individuals in protecting their lawful interests. Under it, you will not be allowed to record a conversation you are a party to without the consent of the other party. The only exception is if you are a victim of an offence in which case you may well not know until afterwards. The government is saying that to protect your interests you must first break the law.

The opposition is concerned that the bill may significantly restrict investigative journalism and be a major barrier to the work of private investigators. We have been told by media that this bill 'could undermine genuine public interest news and current affairs reporting'. I understand the government has received the same advice.

My office has been contacted by a number of consumers who cite examples of where they would not have been able to protect their lawful interests and gather required evidence if they had been banned from making recordings as this bill proposes. They have also raised the power imbalance between those organisations that control the immediate premises where the meeting takes place.

For example, if a customer of an insurer negotiates with them at the insurance company's premises, the insurer would be able to make a recording but not the client unless they had the insurer's permission. I have also been made aware of instances where a parent has been able to substantiate their version of events and meetings with Families SA as a result of a recording made. Without that right to make the recording, the outcome may have been quite different.

The bill also proposes significant changes that would limit the ability to collect data information without the express or implied consent of a person. We live in an information economy, as the Hon. Gerry Kandelaars so ably reminded us last sitting week. The exchange of information is increasing at greater speeds and volumes than ever before. The bill appears to criminalise even basic data collection, such as the use of cookies and anonymous user information on web pages. This technology is increasingly complex and deserves close scrutiny about the practical impact it will have. A preliminary look at the bill suggests that it may well criminalise common programs such as Google, Facebook and, indeed, many of the websites of members in this place.

There are recurring themes. The government has once again failed to consult anyone outside of its own departments. Had it done so it would have heard the kind of feedback that my office has received over the past few months and had the opportunity to make changes to the proposed laws before they were introduced. Instead, the government has left the job of detailed consideration and consultation to this parliament and in particular to this council.

I note that the Attorney-General rushed this legislation through the House of Assembly in three sitting days. I consider that the best way forward is to put the bill to a select committee so that proper consultation can be undertaken and enhancements to the legislation considered. I remind the government that if it had done its job in the first instance and consulted on the bill and taken feedback on board, we may well have had a much better bill presented to the parliament in the first place.

I would indicate that the opposition is broadly comfortable with other aspects of the bill. These include: cross border recognition of police surveillance operations and the improvement of processes for police to access surveillance equipment. I understand that there are honourable members who are considering amendments to those other parts and we look forward to considering them in due course.

The government had earlier raised the possibility of splitting the contentious parts of the bill from the non-contentious parts to expedite the passage of the areas that have broad agreement. The opposition indicated to the government that we were positive and open to that approach, however, we are yet to hear further on the government's intention in that regard. Here we are at the later stages of the second reading and we are still to hear what the government's intention is.

We are now at the point where the bill requires further consideration by the parliament before it progresses further. To ensure that the community is adequately consulted on the bill and that the government provides adequate time for parliamentary consideration, I propose that the bill be referred to a select committee of the Legislative Council at the end of the second reading stage. In particular, I consider that the impact of the bill on individuals protecting their lawful interests and the impact on investigative journalism should be given consideration by a select committee.

I urge honourable members to consider the motion, I am happy to discuss it with them, and seek their support to refer the bill to a select committee to ensure it gets the attention it deserves.

Debate adjourned on motion of Hon. K.J. Maher.

At 21:44 the council adjourned until Wednesday 28 November 2012 at 11:30.