LEGISLATIVE REVIEW COMMITTEE: SURVEILLANCE DEVICES

The Hon. G.A. KANDELAARS (16:30): I move:

That the report of the committee on issues relating to surveillance devices be noted.

On 5 September 2012, the Attorney-General the Hon. John Rau MP introduced the Surveillance Devices Bill 2012 into the other place. On 19 September 2012, the bill was transmitted to the Legislative Council. The purpose of the bill was to facilitate the use of surveillance devices by law enforcement agencies during cross-border investigations. The bill also proposed to regulate the use of surveillance devices by individuals generally and to recognise the advancements that have been made in relation to surveillance device technology. This was achieved through the regulation of a wider range of devices compared to the range of devices that are currently regulated by the Listening and Surveillance Devices Act 1972.

On 21 February 2013, in light of amendments proposed to the bill, the Legislative Review Committee was directed to inquire and report into the legislative amendments required to address several important issues. Those issues were: firstly, the need to protect a person's individual privacy from covert use of surveillance devices; secondly, the circumstances in which persons should be able to covertly use a surveillance device in order to protect their lawful interests; thirdly, the circumstances in which it may be in the public interest for a person to covertly use a surveillance device; and finally, the circumstances in which communication or publication of information or material derived from the covert use of surveillance devices should be permitted.

The committee received 11 written submissions and heard oral evidence from 12 witnesses during the inquiry. The submissions received by the committee concentrated on the anticipated impact of the bill on the use of surveillance devices by private individuals, the media and the private investigation industry. The key issues that were raised in the submissions and in the evidence received during the inquiry related to the fact that the bill did not reintroduce the current lawful interest or public interest exceptions that presently allow a person to covertly use a listening device during a private conversation, it did not include a broad lawful interest or public interest exception to allow a person to covertly use an optical surveillance device and it did not contain an exception to allow a person to communicate or publish information or material derived from the use of a surveillance device when it is used in a manner which contravenes the bill if the communication or publication was for the protection of the person's lawful interest or in the public interest.

The committee therefore investigated and heard evidence that related to the interpretation and application of the lawful and public interest exceptions, as they were found in the current act. The committee was informed that courts had declined to concisely define the expressions, stating that they are best left to be applied on a case-by-case basis and evaluated in relation to the particular facts and circumstances.

However, the committee was informed that courts have indicated that they are more likely to find that the covert use of surveillance devices will come within the lawful interest exception if the conversations relate to a serious crime, or a serious allegation of a serious crime, or resisting an allegation. Similarly, the covert use of listening devices may come within the public interest exception if the conversation relates to the commission of a serious offence. The committee also considered the current legal framework surrounding privacy protection and how it may be used to protect an individual from harm arising from covert surveillance. This led the committee to conclude that both the common law and information privacy laws have limitations in their ability to protect individual privacy from covert surveillance. The committee also considered how many other Australian jurisdictions regulate surveillance devices.

Overall, the submissions and evidence received served to highlight the tension between harms and/or benefits arising from covert surveillance. Many of the submissions concentrated on the negative impact that covert surveillance can have on individual privacy. Conversely, the benefits of covert surveillance were stated as including the enforcement of laws and ensuring individuals' safety, particularly in situations involving domestic violence.

In light of the terms of reference and the evidence received, the committee made 12 recommendations. The first was that, in the context of the Australian Law Reform Commission's current inquiry into serious invasions of privacy, the Attorney-General considers developing legislation aimed at providing further remedies to persons who have had their privacy interests affected by the covert use of surveillance devices. The basis of this recommendation was the fact that the committee considers that the current privacy laws are limited in their ability to protect individual privacy from covert surveillance.

In relation to the covert use of surveillance devices during private conversations, the committee recommends that individuals should be able to covertly use surveillance devices during private conversations to which they are a party in order to protect their lawful interests. The committee considers that such an exception is important as it would allow individuals to covertly use a surveillance device in situations in which, as an example, they may be a victim of domestic violence.

The committee recognises that harm will often arise when material obtained from covert surveillance is used in a certain manner. The committee therefore recommends that an individual should be prohibited from communicating or publishing information or material derived from the covert use of surveillance devices when used by an individual to protect their lawful interests except if the communication or publication of the information or material is made to a member of South Australia Police, or is in connection with a criminal offence, or is made in the course of or for the purpose of legal proceedings, or is made in connection with a situation involving violence to a person, or an imminent threat of violence to a person.

In relation to covert surveillance and the public interest, the committee is of the view that there is a distinction between matters that are in the public interest and matters that merely interest the public. That is a very important point. As I said, there is a distinction between matters that are in the public interest and matters that are merely of interest to the public. It is for these reasons that the committee considers that the public interest exception should be drawn narrowly, so as not to undermine the protection that the bill aims to provide against the harms arising from the use of covert surveillance.

The committee therefore recommends the bill should be amended to allow an individual to covertly use the surveillance device if the circumstances are so serious and the matter is of such urgency that the use of the device is in the public interest. The committee recommends that as a safeguard the bill be amended to prohibit a person from communicating, publishing or allowing access to information or material derived from the covert use of surveillance devices in the public interest unless they obtain an order from a judicial authority.

Turning to the issue of covert surveillance and the private investigation industry, the committee considers that the detection of insurance fraud arguably represents the most significant use of covert surveillance by licensed private investigators. The committee recognises that evidence relating to whether or not an individual has a legitimate insurance claim may be of public interest, but may also serve to protect a person's lawful interests.

The committee therefore recommends that licensed agents should be able to covertly use the surveillance device in the public interest and/or in order to protect a person's lawful interest when undertaking investigation work for insurers. The committee recommends that as a safeguard this should be dependent upon the agent having obtained an authorisation to conduct covert surveillance from the relevant licensing authority.

The committee also recommends that a code of practice should be developed in order to assist licensed agents to determine the circumstances in which covert use of a surveillance device may be in the public interest and/or may serve to protect an individual's lawful interests. The committee recommends that a licensed agent should be able to give information or material derived from the covert use of surveillance devices to insurers when that licensed agent is contracted to undertake covert surveillance on the insurer's behalf.

As a safeguard, the committee recommends that a range of penalties should apply to licensed agents for the misuse of information or material derived from covert use of a surveillance device. Furthermore, the licensed agent should be required to comply with record keeping, reporting, documentation inspection and documentation destruction as required.

Finally, the committee recommends that the relevant clauses of the bill, which regulate surveillance for the purpose of law enforcement, should be passed in their current form. Before I conclude my remarks, I indicate to the council that I have had discussions with the Attorney-General, the Hon. John Rau, and he has indicated that he has instructed parliamentary counsel to draft amendments to the Surveillance Devices Bill 2012 in line with the majority report of the committee. He hopes these amendments will be available for this council's consideration shortly.

In conclusion, on behalf of the committee I thank all those who made submissions and gave evidence to the inquiry. I thank the members of the committee: the Hon. John Darley MLC, the Hon. Stephen Wade MLC, Mr Lee Odenwalder MP, member for Little Para, Ms Isobel Redmond MP, member for Heysen, and Ms Gay Thomson MP, member for Reynell. I also thank the staff of the committee who did an excellent job—Mr Adam Crichton and Mrs Jennifer Fitzgerald—and for their work in relation to this report. I commend the report to the council.

The Hon. S.G. WADE (16:45): I rise briefly also to support the motion of the Hon. Gerry Kandelaars that the report be noted. I, too, join him in thanking Adam Crichton and Jennifer Fitzgerald for the sterling support they gave to the committee throughout this inquiry, and I also commend him as chairman for the way the committee went about its task.

To me this report may well be an example of what we might aspire parliamentary committees and the Legislative Council to do in the future. It was not a direct referral of a bill, but was a referral of the issues in relation to a bill. In areas where a range of interests are involved, often the chamber is not the best place to receive and digest evidence. I think committees often lend themselves well.

I know the committee would hope to have had the report back in the hands of the council earlier, but along with the Hon. Gerry Kandelaars and the Attorney-General it is my hope that we will be able to consider the amendments coming out of the committee's report before the house rises at the end of this year. In that context I humbly submit to the council that the amendments that will come forward will enhance the bill, and this is a good example of legislative practice.

Debate adjourned on motion of Hon. Carmel Zollo.