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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-02-21 Daily Xml
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SURVEILLANCE DEVICES

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (15:20): I move:

That the Legislative Review Committee inquire into and report on legislative amendments required to address the following issues—

1. The need to protect a person’s privacy from the use of surveillance devices against that person without consent;

2. The circumstances in which persons should have the right to protect their lawful interest through the use of surveillance devices against another person without that person’s consent;

3. The circumstances in which it may be in the public interest for persons to use a surveillance device against another person without that person’s consent; and

4. The circumstances in which the communication or publication of information or material derived from the covert use of a surveillance device should be permitted.

(For the purpose of these terms of reference, the term 'surveillance device' is to have the same meaning as prescribed in the Surveillance Devices Bill 2012.)

This referral to the Legislative Review Committee has arisen from the debate over the Surveillance Devices Bill 2012. The bill, if passed, would have repealed the Listening and Surveillance Devices Act 1972. This act is dated and in urgent need of updating. The act does not regulate any new types of surveillance devices such as data surveillance devices. The act is also unclear as to when it is appropriate for a member of the public to use surveillance devices on other members of the public without their consent.

The government sought to set out the circumstances in which it believed the covert use of surveillance devices by members of the public against members of the public was warranted and when it was not. These are complex policy issues. It has become clear during public debate on the Surveillance Devices Bill that many of the members of this place do not necessarily agree with the balance struck by the government. Given the complexity of the issues that part 2 of the bill is attempting to grapple with, the government has agreed that these issues ought to be referred to the Legislative Review Committee for further consideration rather than being dealt with via contested amendments on the floor of this chamber.

The terms of reference drafted by the government set out four issues for consideration by the committee. The first of those issues is the need to protect a person's privacy against the use of surveillance devices against that person without that person's consent. This is a complex issue, especially given that the majority of people now walk around with surveillance devices in their pockets. Should it be easier for members of the public to use surveillance devices covertly than it is for police? When is it appropriate for a private conversation to be recorded and distributed without the knowledge or consent of a party to that private conversation? These are all issues that the committee will obviously need to grapple with.

Another issue to be considered by the committee is the circumstances within which the covert use of surveillance devices may be justified as being in the public interest. There has been criticism of the bill's removal of the public interest defence, so the government has asked the committee to consider the term 'public interest' in detail. It is appropriate that the committee turn its mind to the circumstances in which it may be in the public interest to film, record or track another person without that person's consent, and when the distribution of that information obtained through the filming, recording or tracking may also be in the public interest.

I commend the terms of reference to members. The government looks forward to considering the report of the committee in due course and then progressing the Surveillance Devices Bill 2012 to completion.

The Hon. S.G. WADE (15:23): I rise to support the motion to refer surveillance issues raised by the Surveillance Devices Bill 2012 to the Legislative Review Committee. Members will recall that the need for this referral resulted from public concern about the bill. It was done in the context of a lack of consultation beyond the government. The consultation that the government undertook in relation to this motion was with the police and the Attorney-General's Department alone. There was no consultation with community.

For the minister in her comments to have suggested that concerns were limited to members of this chamber is not a fair representation. The fact of the matter is that there was extensive public debate about this, particularly on Leon Byner's program on FIVEaa. The bill itself is not being referred so that it can retain its place on the Notice Paper. This approach means that the reference to the bill is indirect, but the government and the opposition are in no doubt that the referral is made in the context of the bill and that the bill would not proceed while the reference is afoot.

In that context, I note the minister's comments that consideration of this bill by a parliamentary committee is more constructive than contested amendments in the chamber. Of course, every bill is different, and I certainly agree with the government and the minister that that approach is preferable in relation to this bill. It was the opposition's suggestion that it go to a select committee, which the government accepted. The government accepted a referral to a committee but preferred the Legislative Review Committee. The opposition accepted that alternative.

In that regard, I would like to take this opportunity to thank the Attorney-General and his office for their dialogue in developing the reference which is in the motion today. I note that this is a good example of how a referral to a select committee is not necessarily a matter of blocking by the opposition. With those comments, I support the motion.

Motion carried.

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