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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-11-27 Daily Xml
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LEGISLATIVE REVIEW COMMITTEE: SURVEILLANCE DEVICES

Mr ODENWALDER (Little Para) (12:48): I move:

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

On 5 September 2012 the Attorney-General introduced the Surveillances Devices Bill 2012 to the House of Assembly. On the 19th the bill was transmitted to the other place and 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.

In February 2013, in light of the amendments proposed by 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 privacy from the 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 persons to covertly use a surveillance device; and, finally, the circumstances in which the communication or publication of information or material derived from the covert use of a surveillance device 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; did not include a broad lawful interest or public interest exception to allow a person to covertly use an optical surveillance device; and 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 a 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 interest and public interest exceptions as they are found in the current act. The committee was informed that the courts have 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 the courts have indicated that they are more likely to find that the covert use of a listening device will come within the lawful interest exception if the conversation relates to a serious crime, an allegation of a serious crime, or to resisting an allegation. Similarly, that the covert use of a listening device 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 the harms 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 other Australian jurisdictions regulate surveillance devices.

Overall, the submissions and the evidence received served to highlight the tension between the harms and/or benefits arising from covert surveillance. Many of the submissions concentrated upon the negative impact that covert surveillance can have upon individual privacy. Conversely, the benefits of covert surveillance were stated as including the enforcement of laws and ensuring an individual's 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 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 their privacy interests affected by the covert use of a surveillance device. The basis for this recommendation was the fact that the committee considers that the 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 an individual should be able to covertly use a surveillance device during a private conversation 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 an individual to covertly use a listening device in a situation in which they are the victim of domestic violence. The committee recognises that harm will often arise when material obtained from covert surveillance is used in a certain matter.

The committee therefore recommends that an individual should be prohibited from communicating or publishing information or material derived from the covert use of a surveillance device when used by an individual to protect their lawful interests, except if the communication or publication of information or material: is made to a member of the South Australia Police and is in connection with a criminal offence; 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. It is for those reasons that the committee considers that a public interest exception should be drawn narrowly so as not to undermine the protection that the bill aimed to provide against the harms arising from covert surveillance.

The committee therefore recommends that the bill should be amended to allow an individual to covertly use a 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 a surveillance device 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 the evidence relating to whether or not an individual has a legitimate insurance claim may be both in the public interest and may also serve to protect a person's lawful interests. The committee therefore recommends that a licensed agent should be able to covertly use a 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 be developed in order to assist licensed agents to determine the circumstances in which the use of a surveillance device may be in the public interest or may serve to protect an individual's lawful interest.

The committee recommends that the licensed agent should then be able to give information or material derived from the covert use of a surveillance device to insurers when that licensed agent is contracted to undertake covert surveillance on the insurer's behalf. Finally, the committee recommends that the relevant clauses of the bill which regulate surveillance for the purposes of law enforcement be passed in the current form.

On behalf of the committee I would like to thank all those who made submissions and gave evidence to the inquiry. I thank the members of the committee: the Presiding Member the Hon. Gerry Kandelaars MLC, the Hon. John Darley MLC, the Hon. Stephen Wade MLC, the member for Heysen, and the member for Reynell. I also sincerely thank the committee staff, Mr Adam Crichton and Ms Jennifer Fitzgerald, for their work in relation to this report. I commend the report to the house.

Debate adjourned on motion of Mr Gardner.

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