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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-29 Daily Xml
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SURVEILLANCE DEVICES BILL

Second Reading

Adjourned debate on second reading.

(Continued from 27 November 2012.)

The Hon. D.G.E. HOOD (16:41): I rise to give the Family First position on the Surveillance Devices Bill, which responds to a need to bring our laws up to date in conformity with interstate legislation. Since criminals do not respect state borders, uniform legislation is required to deal with them. There are several aspects of this bill that cause me significant concern. These concerns arise from the drafting of the bill, which fails to take account of several important points:

restrictions on the use of listening devices by ordinary people in order to record conversations to protect their lawful interests;

restrictions on the use of listening devices by licensed investigation agents to record conversations on behalf of clients;

different rules for the use of portable listening devices for parties to a conversation where one party is the owner or occupier of the building in which the conversation takes place (there is no reason for this difference, as I see it);

significant restrictions on the ability of investigation agents to take video film of persons claiming workers compensation or damages for personal injury, which of course has been one of the main tools used by these people up to now; and

the expansion of situations in which wrongfully obtained surveillance material may be published.

Essentially, my concern is that the present law is appropriate with respect to these matters and that change is not warranted. These points have nothing to do with warrants or cross-border policing issues, which are probably intended to be the main point of the bill. I might say that Family First supports that part of the bill.

There are new restrictions on the use of listening devices, in particular. This is presently regulated by the Listening and Surveillance Devices Act 1972, and I refer to the relevant sections so that the restrictions can be understood. The present section 7 provides that there are three situations where a person—that is, not a police officer—may use a listening device. These are: first, in the course of the duty of that person; secondly, in the public interest; or, thirdly, for the protection of the lawful interests of that person.

The bill now before us does not refer to the first category, that is, in the course of the duty of that person. Thus, acting in the course of duty, typically their work, of itself cannot be a justification for using a listening device under this bill. There are two other categories listed in this bill, but in each case a listening device may only be used if the party using the device is the victim of an offence alleged to have been previously committed by another party to that conversation. This is a very significant new restriction.

Under the present act, if a person believes that their rights may be infringed they can secretly record a conversation. One example, which I am told actually occurred, was at a handover between the separated parents of a child and occurred at a police station. The mother wanted a recording of what she said to the father so that he could not misrepresent it later and therefore used a covert recording device. The child was handed over to the mother but later went outside and was tugging at the mother's arm, saying that he wanted to go with his dad. The father then said to the child from the car, 'If she doesn't let go of your hand, smack her in the mouth, okay.'

The issue was later dealt with in the court and the recording, of course, was most important to verify what conversation actually took place. In fact, there was no need for this point to be disputed in court as the recording was brought to the attention of the lawyer for the father before a hearing took place. So, obviously, this is an instance where the recording was very useful in establishing what actually happened.

I am conscious that there may well be differing views about this situation. Do we want such conversations to be recorded covertly or not? This is not an easy question. However, I would say that, in the circumstance that I have just outlined, the recording was appropriate and, indeed, very useful. My view is that it is appropriate to record conversations to protect a lawful interest in some circumstances even though no offence has been committed or was anticipated. I emphasise that the use or publication of the recording is a separate question, and I will speak about that in a moment.

Similarly, if you are expecting that another person may threaten or blackmail you in a conversation, or make a statement with a fraudulent effect, it may be reasonable to record the conversation to protect your interests. At present you can do this under the current law, but under this bill you will not be able to, because no offence has already been committed. The bill requires amendment, in my view, so that the existing law continues on this very important point, although I would not necessarily see the need to permit all recording in the course of duty as the present law allows. This issue needs further investigation.

I will say a few words about the removal of the justification of acting in the course of so-called duty in this bill. A person who feels the need to protect his or her lawful interest may engage a licensed investigation agent to do the recording for them instead of doing it themselves. At present, the 'in the course of duty' exemption allows that the licensed investigation agent is acting in the course of duty and that is why it is allowed. For the purposes of this bill, the licensed investigation agent will not be the victim of any alleged offence. The person engaging him or her would be such a victim under this bill.

So under the bill a victim can himself do the recording, but he cannot engage a licensed investigation agent to do it for him. I am not aware of any reason for this change. In consequence, I consider that this bill in this regard is inadequate and needs further examination. Perhaps the exemption of acting in the course of duty is presently too wide, since it would appear to justify a licensed investigation agent recording a private conversation for a client who would not have been justified in doing it themselves. However, the exemption is needed in general terms to protect an agent who acts for a client who would be justified himself in making such a recording.

The bill also has a conundrum concerning the placing of listening devices in premises. It makes sense to provide that it is unlawful to secretly install a listening device in a building or vehicle used or occupied by someone else. Under the bill, owners or occupiers have a special privilege where they can install or use listening devices for the protection of their lawful interests.

This includes the use of portable listening devices as well as fixed devices, but another person who would be equally justified in using a portable listening device to protect their lawful interest in the same conversation is not entitled to do so, simply because that person is not the occupier of the premises in which the conversation takes place. That does not seem right.

There is no reason why the owner or occupier of a building should be able to use a listening device, including a portable recorder, to record a conversation, when another party to the conversation in the exact same location and equivalent position cannot. The difficulty arises because owners and occupiers have special privileges about the use of listening devices that are denied to others under this bill. There is no reason for this distinction in relation to the use of portable readers as far as I can see.

The other matter of concern is about the visual surveillance devices and the circumstances when they may or may not be used. Although visual surveillance devices, in other words cameras, are mentioned in the current Listening and Surveillance Devices Act 1972, there are virtually no restrictions on their use. It follows that the clauses of this bill that relate to what are now called 'optical surveillance devices' are new. There are significant restrictions and I can see that some of the consequences of them are inappropriate, in my view.

As members would be aware, it is common for investigation agents to film people who are claiming damages for personal injury or workers compensation benefits. While some might see this as an unnecessary invasion of privacy, I think the majority accept that this is valid means of checking the voracity of complaints of disability and restriction in movement, and the associated compensation eligibility.

Of necessity, such filming must be done covertly, and the investigator must follow the subject where he or she goes, whether it is in the street, the local supermarket or simply walking in the country, whatever it may be. The particular provision that brings about this change is in clause 5(1)(a), which makes it an offence to enter premises, the definition of which includes land, and to use a camera to take photographs or movie film without the expressed or implied consent of the owner or occupier of the premises.

Indeed, there is no provision limiting the definition of 'premises' to privately owned premises, so it is possible that publicly owned open spaces, such as schoolyards and parks, are within the definition of these premises. If that is so, there are several questions in each case as to whether the government or other public body has given implied consent for the investigation agent to follow someone into the schoolyard or park at that particular time of day for the purpose of filming that person. Laws should always be clear, but I believe that this bill in this regard, and the others I have mentioned, falls short of clarity on these matters.

Under the present law, in this situation there is no issue. This makes sense because the real concern is for the protection of the person being filmed, not for the protection of the owner of the land. Under the present law, video film, or digital film as it may be these days, can be taken of a person who then can be followed into a supermarket or across a paddock in the country or a vacant suburban block, or whatever it is, but this will no longer be allowed under this bill unless the landowner or occupier gives express or implied consent.

It is a question that requires answering—whether a supermarket owner gives implied consent to an investigator to enter their supermarket when the only reason for entry is the filming of a person which is entirely unrelated to the supermarket business that is operated at that place. It would be a serious offence for an investigation agent to film in these circumstances if consent were not implied. The situation is clearer if the investigator followed a person across a paddock in the country to obtain film. No permission from the owner of the paddock could be implied.

It follows that an investigation agent who follows a subject into an empty paddock, for example on a farm, may be committing a serious offence under this bill. The same would apply if the filming were done from the paddock or from a vacant block of land as a convenient covert location. It may well follow that, if the investigator committed a serious offence to obtain the film, the film might not be admissible as evidence, even if the film obtained was important evidence as to the truth in the particular matter. There appears to be no reason for this new restriction, as far as I can tell. The question of whether to film or not to film has nothing to do with the landowner. The bill is not correct in this regard, I believe, and again requires further investigation.

Clause 8 of the bill deals with the publication of material derived from the use of surveillance devices in contravention of the law and corresponds with section 5 of the existing act. Strangely, the permissive provisions of clause 8 are wider than the existing law. They include a provision that illegally obtained material may be published 'in the course of duty'. This appears to mean that an investigator who illegally obtains a video or sound recording may publish it with impunity if he or she is carrying out instructions of his or her client.

Whilst the obtaining is illegal, the publication is not. This is, indeed, a strange result. In my view there should be a broader range of situations where recordings may be made but very tightly controlled situations where illegally obtained material may be used at all and certainly published. The consequence of this should be that a person may make a covert recording of the conversation to protect his or her lawful interests, but if it happens that there is no relevant statement made the recording should not be used or published, even though the recording was lawful. The line of reasoning in this is not explained in the bill.

My conclusion is that this bill does need major revision. There are a variety of ways in which suitable amendments could be drafted, and for that reason I am sure that we will deal with this in the coming financial year. In its present terms, we would be unable to support the bill, although we do support the objectives of an update in the warrant provisions, the addition of controls on tracking devices and data surveillance devices, and improved cross-border provisions.

The bill, essentially, has two parts: that is, aiding the police in the work they do and then what I might call 'everything else'. I think the part that aids police, if you like, appears to be pretty acceptable to us, but certainly the other aspects of the bill, as I have outlined in my contribution today, need very substantial revision. We are happy to support this bill at the second reading, but it would need substantial improvement for us to support the third reading.

The Hon. K.L. VINCENT (16:53): I wish to put on the record my deep reservations concerning this bill before us. One of my major concerns with the bill relates to the issue of consent and, in particular, the issue of implied consent. The issue arises several times throughout the bill, particularly when outlining when a private citizen is permitted to make use of an audio or video recording device or a tracking device. I am of the very firm opinion that it is not a sufficiently high standard in relation to an invasion of privacy of this magnitude.

I feel strongly that such devices should only be able to be used with explicitly expressed consent. Efforts have been made to allay these concerns, with examples such as the implied consent of a shopper who passively accepts that their activities will be recorded while in a place of business as part of the owner's efforts to combat shoplifting. This seems to be a fair enough example, and it accords well with the other provisions of the bill. However, the open-ended language employed leaves open a number of other issues.

I hold grave concerns about how this legislation, as currently framed, would operate in our modern technologically advanced and advancing society. Could a young person be taken to implicitly consent to a parent secretly recording them or tracking them through a device implanted in their car, or software installed on a mobile phone, for example? What about one spouse recording or tracking the other, or perhaps an employer using this technology in relation to their employees?

Given recent advances in smart phones and other mobile devices, the implications extend even wider, with the potential for private companies to collect information about individuals on the basis of implied consent or artificial consent obtained through complicated and confusing end user licence agreements. Beyond these concerns about the bill as it relates to private citizens, I have significant and far-reaching concerns regarding the broad and sweeping powers conferred on law enforcement.

While I recognise there is a need to put in place emergency provisions, I believe these provisions go too far. The fact is that an emergency authority can be in place for up to two days, collecting information without the courts having any oversight regarding the exercise of powers or the opportunity to consider the merits of an application.

Under those circumstances it is alarming that the bill offers no indication of whether or not a court's refusal to confirm an authority renders inadmissible the information gathered in those first 48 hours, while in that two-day period the police are authorised, without the oversight of the courts, to force entry into business premises, vehicles and people's homes and install surveillance devices.

Now, under the circumstances where these emergency authorities are brought into play, these sorts of powers are perhaps called for—perhaps—but the bill permits these sort of invasive actions in situations quite far removed from such serious offending. Through its interaction with other legislation, the bill raises the prospect that these kinds of powers could be used in relation to relatively minor summary offences and even in relation to unexplained wealth proceedings, where offending is purely hypothetical.

Given these very serious questions that exist regarding the issue of consent, the apparently overly generous powers given to police in relation to relatively minor offending, the concerning aspects of the emergency authority provisions, and the many other concerns that have been raised by the public, the media and my parliamentary colleges, I do not support the passage of the bill in its current form.

I am of the firm belief that the bill should be referred to a select committee, as the Hon. Mr Wade has suggested in his contingent motion, and that these issues can be and should be thoroughly examined. I understand that the government is also proposing to refer parts of the bill to a committee and to substantially amend other parts, though as yet I have not had the opportunity to read and consider those particular amendments.

Debated adjourned on motion of Hon. Mrs Zollo.

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