Legislative Council: Thursday, July 06, 2023


Statutes Amendment (Attorney-General's Portfolio) (No 4) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 June 2023.)

The Hon. E.S. BOURKE (17:27): This bill proposes to amend the Surveillance Devices Act 2016 and the Telecommunications (Interception) Act 2012 to update the definition of 'review agency' to reflect the appointment of the inspector under schedule 4 to the Independent Commission Against Corruption Act 2012 (ICAC Act).

The amendments to the Surveillance Devices Act 2016 and the Telecommunications (Interception) Act 2012 are critically necessary to ensure that review functions can continue. While the reviewer of ICAC has been replaced by the inspector, the 2021 ICAC Act amendments did not confer the review functions under the Surveillance Devices Act and the Telecommunications (Interception) Act on the inspector. Until this occurs, the inspector is unable to carry out these functions.

Under the Surveillance Devices Act and Telecommunications (Interception) Act, inspection by the review agency must be performed once in each period of six months. The last review period ended on 31 August 2022. As there will be at least one missed review period before the amendments are made, agreements have been included to require the inspector to undertake all reviews that have been missed since 31 August 2023 as part of the first review that occurs after the commencement of the amendments. I understand some amendments have been filed by the Attorney-General and I look forward to hearing more from him on these during the committee stage.

The Hon. J.M.A. LENSINK (17:30): I rise to indicate Liberal Party support for this particular bill, although I do note that the government has a series of amendments that remove several parts of it, so I will speak to the substantive bill before the government amendments are considered, which amends the Summary Offences Act, the Surveillance Devices Act and the Telecommunications (Interception) Act.

Clause 3 of the bill amends the Summary Offences Act to cause the police commissioner's annual report to include details regarding roadblock authorisations, which I understand are reported and tabled every three months. Clause 4 of the bill causes the police commissioner's annual report to include details regarding dangerous areas declarations, which similarly are currently reported and tabled every three months.

Clause 5 of the bill amends section 3 of the Surveillance Devices Act, in particular the definition of 'review agency' to delete the word 'reviewer' where it appears and substitute with 'Inspector'. The reference to 'Inspector' is a consequential amendment to changes to the Independent Commissioner Against Corruption Act, which has previously been amended through legislation in 2021. In relation to the Telecommunications (Interception) Act, clause 6 of the bill amends the definition of 'review agency', deleting 'reviewer' where it appears and substituting similarly with 'Inspector'.

The schedule of the bill would amend review provisions, which currently exist under the Surveillance Devices Act and the Telecommunications (Interception) Act, having the effect of delaying any review that has not been completed before the commencement of this bill, to instead be conducted as a part of the next review. My understanding is these are largely technical amendments and, as I have already indicated, we support this bill.

The Hon. R.A. SIMMS (17:32): I rise to indicate that the Greens are supportive of this bill with the amendments that the government is going to advance that remove the changes to reporting requirements regarding SAPOL. I do understand from the comments that the Attorney-General has made, that it was not the government's intention to reduce reporting requirements; however, naturally, members of the community I think have been concerned around the potential for changes to the reporting regime, particularly if those changes are being advanced for efficiency reasons. Indeed, I think the feedback from the Law Society reinforces that point.

I can understand that, particularly in the context where the government rushed through anti-protest laws with lightning speed in this parliament. I can understand why people might be concerned about process and wanted to make sure that there are appropriate safeguards in place. We will be supporting the other provisions of the bill that relate to the powers of the inspectorate. We are supportive of that, but the other changes relating to reporting of SAPOL we are not supportive of, and we welcome the fact that the government are going to be making some amendments. With that, I conclude my remarks.

The Hon. C. BONAROS (17:35): I rise on behalf of SA-Best to speak on the Statutes Amendment (Attorney-General's Portfolio) (No 4) Bill 2023. The bill, as has already been outlined, makes minor consequential amendments to the Surveillance Devices Act and the Telecommunications (Interception) Act to allow the inspector to undertake reviews previously conducted by the reviewer under the superseded ICAC Act.

It is our understanding, based on the briefings provided—which we did attend and listen to intently—that the reviewer has already ceased function. The transition provision will ensure there is no gap, allowing the inspector to undertake any missed reviews. I am afraid that is where the support would have ended today, had there not been some amendments on the table. I have seen that the Attorney has filed amendments but I say why waste a good speech, so here we go.

The bill does propose to amend reporting requirements concerning the use of police powers to establish roadblocks and declare dangerous areas under the Summary Offences Act. We have been told that the current reporting requirements are onerous and are better suited elsewhere. At present, the police commissioner has to report quarterly to the minister on the use of these powers, for tabling in parliament. The bill proposes to shift that reporting to the commissioner's annual report, which I believe is published each September following the previous calendar year.

We have gone back—with the limited resources that we have available to us as a crossbench party—and we have looked at those reports. They are one-pagers. There is nothing to them. There are no authorisations or declarations reported in the last five years that I have been able to find, or that my limited body of staff has been able to find. They might have taken 10 minutes to prepare. It is not entirely clear whose administrative relief we are talking about here, but I understand it has not come at the request of the commissioner.

It is certainly not lost on us that we are talking about the use of significant discretionary powers which may give rise to criminal liability if a person fails to comply, but I think it is important to highlight the important role that safeguards play. Safeguards of timely and transparent reporting are included in the legislation for very good reason. We are always very reluctant to diminish those safeguards, even in the face of a 10-minute timesaving exercise.

I would remind honourable members in this place that often with some of the concessions we get on the crossbench—after we have done all that hard work of trying to consult with stakeholders and appreciate their positions on a bill and any unintended consequences that we may not have been able to think of ourselves—we fight pretty hard to get those sorts of safeguards into legislation via amendments in the first place. I can think of lots of examples where I have tried to insert safeguards into legislation just like this, so when we do initially propose them they have a very important purpose. Just because there has not been any reporting, that does not mean they are any less important.

The Law Society—which we did get a paper from, and we did bother to read it—has said that their position is that mere administrative expediency is not a good enough reason to risk erosion of what is already a modest mechanism to ensure that a power of police, which has the capacity to limit personal freedom in some circumstances, is properly exercised. That submission, which we did bother to read, goes on to say that:

The significant discretionary powers conferred upon senior police officers by section 74B and 83B of the act need oversight on a regular basis. The discretionary powers are subject to criteria being met. The criteria is directed to ensuring that the powers are only exercised where justified by the need to promote public safety. The obligation to report details of their use and put the information before parliament is a key safeguard to ensuring these significant powers are only exercised in accordance with the statutory criteria.

That is from the submission that we did bother to request and read. This bill has reminded us of the importance of regular oversight, particularly when it comes to significant discretionary powers. I will say on that note that it is really important in the context of what the Law Society and other stakeholders, who we bothered to go out and consult with over this piece of legislation and who assisted us in understanding the importance of these safeguards, other legal experts in the community who have always given their time to all of us who have asked or bothered to ask for their opinions, have said: that we need to look at this holistically.

It is not just one measure we are talking about with these safeguards. It is when you look at this as a combined effort, when you look at the fact that, as I have said previously in this place, over 90 per cent of laws in this state now are made by regulation, when you look at the fact that we have safeguards being eroded from legislation, when you look at the fact that we have early commencement certificates and moves to get rid of early commencement, the requirement for early commencement certificates—when you look at all those things holistically, they all do one thing: they undermine the decision-making of parliament.

It is not necessarily that I do not agree that we are going off aimlessly printing off pieces of paper that say zero, zero, zero—no pun intended in that they are prepared by the police commissioner—but holistically, it makes a huge difference to the importance we put on these safeguards in the first place. I will not talk for hours on this.

Our objections and the objections of our colleagues on the crossbench are well documented in Hansard in relation to this issue as a whole. I had proposed an amendment to this bill that would have seen more reporting requirements, if anything, around our protest laws, but I am very grateful that the Attorney has seen to amend this bill to such an extent that we think it is okay. Basically, the only provisions left in the bill are those that we are all in agreement about, those which had caused the level of contention around safeguards appear to have been dealt with by way of amendment.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:42): I will speak briefly, and in doing so I will foreshadow the amendments that have been filed in my second reading summing-up. The effects of the amendments are effectively to delete that part of the bill that would have amended the reporting obligations of the Commissioner of Police in relation to sections 74B and 83B of the Summary Offences Act that would have allowed the commissioner to include the required information in the annual report rather than in quarterly reports to me.

Views have been expressed about these provisions. I think they are largely misguided, and I do not agree with those views. The quarterly reports provided to the Attorney-General are then tabled in parliament. In all the time I have been Attorney-General, it has come back as 'nil reports'. However, I do appreciate that concerns have been raised. Recognising that and that the remainder of the bill is important to continue to progress through the houses—I think it is worthy of not being held up by views that, although I do not agree with them, I know have been raised—we will essentially hive those off. I indicate that during the winter break we will consider those reporting requirements and the possibility of them being reinstated as this travels between the houses or in a different bill or even in a different manner.

For example, it could be that the reporting requirements are enlivened when there is a report, so you would not get nil reports every three months, but a report would be furnished only when there is something to report under there. That is an option that might be a middle ground that can find consensus. Having said that, I thank honourable members for their contributions on this bill, and I look forward to the second half of the bill that remains about the inspector and the telephone intercepts passing speedily.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

The Hon. K.J. MAHER: I move:

Amendment No 1 [AG–1]—

Page 2, line 9 [clause 2(2)]—Delete subclause (2)

I move the amendment for the reasons enunciated in my second reading.

The Hon. C. BONAROS: We support the amendment.

The Hon. J.M.A. LENSINK: The Liberal Party also supports the amendment.

Amendment carried.

The CHAIR: The Hon. Ms Bonaros, do you have an amendment?

The Hon. C. BONAROS: I will not be proceeding with my amendment.

The Hon. K.J. MAHER: I move:

Amendment No 2 [AG–1]—

Page 2, line 10—Delete the heading to Part 2

These are technical amendments. I am not sure they are necessarily consequential, but they are certainly related to and go to the same topic as the first amendment, as do amendments Nos 3, 4 and 5.

Amendment carried; clause as amended passed.

Clause 3 negatived.

Clause 4 negatived.

Remaining clauses (5 and 6) and schedule passed.

Long title.

The Hon. K.J. MAHER: I move:

Amendment No 5 [AG–1]—

Long Title—Delete 'the Summary Offences Act 1953,'

Amendment carried; long title as amended passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:50): I move:

That this bill be now read a third time.

Bill read a third time and passed.