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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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SURVEILLANCE DEVICES BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I understand that consideration of clause 1 of this bill is likely to be longer than normal because of the intervening events. The bill was tabled in the House of Assembly on 5 September 2012—basically, 15 months ago—and I will explain its journey since then.

I remind the committee that the bill basically provides for cross-border protection of recognition of police surveillance operations, improvement in the process for police to access surveillance equipment, and more stringent regulation of the way citizens use surveillance devices. It is that last aspect that has drawn the most attention in the consideration of the bill. The law enforcement-related aspects were as a result of a series of interjurisdiction working groups, and throughout this process they have not been significantly controversial.

The third aspect—the aspect in terms of the regulation of the way citizens use surveillance—has been controversial. It really highlights the balancing of privacy concerns with the concerns for the capacity of citizens to both freedom of speech and protection of their lawful interests. The bill itself is not explicitly focused on privacy, but of course, historically, the control of listening devices and the expansion by this bill in relation to other surveillance devices reflects the desire of parliaments in the past and this parliament to make sure that the use of surveillance devices does not inappropriately infringe on people's privacy.

The motivation of the bill in that regard was testified to by the Attorney-General when he appeared before the Legislative Review Committee in the middle of this year. He specifically saw this bill in the context of the evolving debate on privacy. In recent weeks, the Australian Law Reform Commission has issued an issues paper on serious invasions of privacy, and the Legislative Review Committee adverted to that report in both its report and recommendations.

I now return to the history of the bill. The bill passed the House of Assembly on 20 September 2012—three sitting days after the opposition had been briefed on the bill. To facilitate community consultation and parliamentary consideration, the Liberal Party sought a select committee of the Legislative Council to consider the bill, and by November the government had agreed to a parliamentary committee process.

On 30 January, I received a letter from the Attorney-General proposing amendments to the bill and the amendments were filed that day. The Legislative Review Committee, in the hearing on 7 August 2013, learnt more of the origins of these amendments when Mr Peter Campbell, a partner at Kelly & Co, and a leading Adelaide media lawyer, appeared before the committee. As a member of the committee, I asked Mr Campbell:

In your submission, if I can quote it, your previous submission to the Attorney-General's Department in respect of the draft bill, on page 6, says:

'As a result of...submissions made by other parties, e.g. FreeTV, it was proposed by the AGD to make amendments to the Draft Bill to address a number of issues raised in this letter (including by way of the reinstatement of the public/lawful interest exceptions).'

My question to Mr Campbell went on to say:

Could I just clarify: has the government agreed to insert the public/lawful interest elements back into the bill?

Mr Campbell, in his response to that question, said:

Yes. What had happened was that there were discussions along the lines that we are having, I suppose, at the moment, and there were meetings with the Attorney-General and with his advisers. What was put back to us was a version of the bill which reinstates lawful interest and public interest on the basis that it was considered appropriate that those matters come back in, because, as I said before, the main purpose of the amendment was aimed at ensuring there was a greater power in the hands of investigative authorities, and perhaps some of the consequences were unintended to prevent other people being able to have some lawful use of surveillance devices.

The public debate that took place, particularly at the end of 2012 and particularly on the program of Leon Byner, on FIVEaa, highlighted the range of contexts in which private citizens use surveillance devices to protect their lawful interests. Following that debate, by late January 2013, the government had agreed a set of amendments with the industry to put back public interest and lawful interest.

The Legislative Review Committee met through 2013 and received submissions from a range of stakeholders, and the committee reported on 13 November 2013. The majority report sought to support the reintroduction of lawful interests. Recommendation 2 states:

The Surveillance Devices Bill 2012 be amended to allow a party to a private conversation to covertly use a surveillance device in order to protect their lawful interests.

The committee had a number of other recommendations, particularly in relation to proposed changes to the regulation of investigation agents, and also it had a proposal for the partial reinstatement of the public interest test; that is reflected in recommendations 4 and 5. The government response was offered to me in a letter dated 13 November from the Attorney-General, which reads:

I refer to the report of the Legislative Review Committee on its inquiry into the Surveillance Devices Bill 2012.

I have read the report and its recommendations. I have instructed Parliamentary Counsel to draw up amendments to the Bill to implement the recommendations of the Committee. I write to give you notice that I intend to move as fast as possible to file these amendments with a view to bringing on the debate and passing the Bill in the remaining days of sitting.

I interpose at this point to say that my understanding is that those government amendments are yet to be filed, even though we are, as the Attorney-General adverts, in the final days of sitting. The letter goes on:

Consistent with that intention, I seek the indulgence of the Legislative Council to so far suspend standing orders as to allow the opening up of the Security and Investigation Agents Bill. Should that not be possible, I intend to proceed with the amendments to the Surveillance Devices Bill 2012 in any event.

Again, I interpose to say that my discussions with the Attorney indicate that, having explored that option, he has decided to pursue the security investigation agents amendments at a later date. The letter goes on:

I also want to give notice that the amendments proposed to the Bill will contain two further proposals that have been brought to my attention. Firstly, it is a hardy perennial that constituents write to me or their local member (or both) to complain of the use of surveillance cameras by their neighbours to invade their privacy and the privacy of their homes. I intend to deal with this.

Second, it has been brought to my attention by the Department of Planning, Transport and Infrastructure that it uses, or intends to use, certain devices to control traffic that might technically count as tracking devices under the Bill but that, nevertheless, do not constitute any invasion of privacy. It may be that the only way to deal with this is by regulatory exemption.

I trust that we can now move the Bill through its remaining stages once the amendments have been filed.

Yours sincerely,

John Rau.

By way of footnote to the letter, it certainly is the opposition's intention to facilitate consideration in the remaining days of sitting. We are yet to see the government amendments. We have filed amendments this morning, so we appreciate that members will not be in the position to consider them today, but I see no reason why consideration of this bill cannot be concluded this week.

To return to the journey, if you like, the majority report of course did require significant drafting by the government to incorporate them into a set of amendments to present to this house. As the Attorney indicated, he wants to take the opportunity to deal with neighbourhood privacy, if you like, and also some transport department issues but, as of today, the government amendments are not available.

The committee report was tabled in the middle of the last sitting period and the level of angst has been quite striking, particularly from the media in relation to the recommendations of the report. I and other members of the opposition have received either directly, jointly or severally representations from the following media outlets: the ABC, the APN News & Media, ASTRA Subscription Television Australia, Commercial Radio Australia, Fairfax Media, Free TV, Media Entertainment and Arts Alliance, News Corporation Australia, SBS and Sky News. The concerns of these media outlets focus on three recommendations of the report—recommendations 3, 4 and 5. To summarise their concerns, I will quote Free TV which expresses it this way:

Taken together these recommendations would effectively prohibit the media from acquiring and communicating surveillance device material where there is a public interest. This is not an approach which recognises the role of the media in the '5th estate', and the need for a free flow of information to the community on matters of public concern.

In particular, recommendation 3 related to the circumstances in which a person could communicate material obtained through the covert use of a surveillance device.

Not every stakeholder commented on every recommendation but I think it would be fair to summarise their views as that they regarded this recommendation as very narrow. On its face, a person would not be able to tell a friend or a family member, a member of parliament or a government authority including the ICAC, excluding only the police in relation to criminal matters. If an individual's lawful interests are being infringed by a government agency, they may not feel confident in engaging with another government representative. Free TV asserts that:

...material acquired by an individual for the purposes of protecting their lawful interests should be allowed to be communicated or published if there is a public interest in doing so...In many cases, the publication of material by the media and subsequent public attention improves the situation of the individual whose lawful interests are jeopardised, and encourages other individuals in similar situations to act to protect their own interests.

Another recommendation that raised concern was recommendation 4. Recommendation 4 says that the Surveillance Devices Bill should be amended to allow an individual to covertly use a surveillance device if the circumstances are so serious and urgent that the use of the device is in the public interest.

I should mention at this point that a surveillance device in the context of the bill could include anything from a television camera or an iPhone to a windscreen-mounted video camera. Its use is covert if it is not used with consent, explicit or implicit. In terms of those devices, let's pause and think of the range of people who might be caught.

Obviously, the media outlets are particularly concerned about their employees using television cameras for news gathering, but I am also concerned about the impact on ordinary members of the public using an iPhone, an iPad, or a whole range of devices—for that matter, a camera with perhaps a filming capacity to record events of everyday life. This legislation is written so broadly that it would criminalise a whole range of activities.

The view of the committee was that we could rely on prosecuting authorities to prosecute wisely but, in my view, it is incumbent on us as politicians to draft legislation that is clear on its face and does not overreach, that the legislation in itself can attempt to balance the interests of our citizens and not simply rely on prosecuting authorities. If the committee's approach were taken to its logical conclusion, we would simply be as a parliament issuing broad instructions to government agencies and authorities and leaving it to them to do what is reasonable.

We as a parliament have a responsibility to put in place legal frameworks that are clearly understood, if nothing else so that members of the public, media outlets and so on can undertake their day-to-day operations without fearing whether or not a prosecuting authority may take umbrage at what they are doing and act against them. In relation to this recommendation, News Corporation, for example, stated:

...a public interest exemption will be subject to discretionary judgement, and is likely inaccessible. The effect of such is that news gathering is stifled due to the subjective and restrictive nature of the public interest exception. We do not support such vague and nebulous concepts which undermine freedom of communication.

The third of the recommendations which media organisations have objected to is recommendation 5, which proposes that 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.

Even where a surveillance device is used in the public interest in a serious and urgent situation, the recommendation suggests that communication or publication should be prohibited unless a judge has given their approval, even if it is serious or urgent. In relation to this recommendation, Free TV asserts:

In all practicality, a system that provides for pre-approval of surveillance activities effectively operates to prevent them taking place.

Further on, they say:

We strongly oppose the introduction of such a system in South Australia. It would be a serious diminution of the media's existing capacity to report matters of public concern to the community in a timely way.

I was remiss in my comments, in that I did not declare that I submitted a dissenting report which specifically focused on the issues of public interest. Perhaps the best way to express it is to quote it; it is not long. My minority report states:

I agree with the Committee that South Australian law has limitations and the protection of individual privacy from covert surveillance

However, consistent with recommendation 1, I consider that legislation aimed at providing further remedies to persons who have privacy interests affected by the covert use of a surveillance device without their consent should draw on the work of the Australian Law Reform Commission's current inquiry into Serious Invasions of Privacy.

Section 7 of the current Act allows a party to a private conversation to use a listening device and publish the material without the consent of the other parties, if it is in the public interest.

The Committee proposes that to use the surveillance device, it needs to be only in the public interest, but the circumstances need to be 'serious and urgent'. I think that that is too vague a test and is too likely to discourage information gathering which is in the public interest.

The Committee proposes that the law be drawn wide, with narrow exceptions, and that we should rely on prosecutorial discretion to excuse minor actions, such as children using a mobile phone to film a friend.

I consider that the law is more likely to foster good practice if it is drawn more narrowly, is more readily understandable and enforceable.

In my view surveillance should be allowed where it is in the public interest.

I do not support pre-approval of the use of surveillance devices in the public interest as it is likely to damage legitimate information gathering. However, I consider that pre-approval of publication of surveillance material should be further considered.

Any regime proposed to restrict the use of surveillance devices and the publication of material from these devices needs to be practical and enforceable.

With the benefit of the bill, with the majority report and the minority report, the opposition has considered its position on this bill and, following a meeting yesterday, I have filed a set of amendments. In the opposition's view, the government bill and the committee majority report take the legislative controls on surveillance devices to support privacy too far. In our view, such an unfocused protection of privacy could have a negative impact, not only on the freedom of the press but also the rights of citizen generally.

The opposition has filed amendments which seek to restore the protection of lawful and public interests and they are based on the amendments that the government itself agreed with media stakeholders in January. We have taken the opportunity to enhance those amendments and I humbly look forward to the contribution of members so that we can perhaps enhance those and other amendments that might be filed with a view to the parliament having the best bill possible.

I propose now, if I may, to put some questions on notice. I appreciate that normally I might raise some of these at the clause stage but I think considering that we only have three sitting days left, it might delay the consideration of the committee stage. If the government is agreeable, I will place those on the record now.

In relation to tracking devices (clause 6), I ask two questions. On 16 January 2013 the Rundle Mall Management Authority announced it would be investigating the use of technology to track the mobile phones of people in the mall to chart traffic, target dead spots and alert shoppers to discounts and sales. The tracking apparently did not require the consent of patrons. Would such marketing be illegal under the provisions contained in this bill? Secondly, I refer back to the Attorney-General's letter of 13 November in which he said it had been brought to his attention that the Department of Planning, Transport and Infrastructure uses or intends to use certain devices to control traffic that might come under this bill. What tracking device is the Attorney-General referring to?

I also understand that there are devices operating in New South Wales in relation to the transport authorities tracking traffic movements by the use of number plate recognition technology. I would be interested to know the government's view on whether that form of technology would come under this legislation. I also question whether the point-to-point speed cameras might also come under this legislation. One of the challenging aspects of surveillance is that in a rapidly developing technological environment it is difficult for legislation to be both broad enough to accommodate emerging technologies but also to avoid stifling what are healthy developments in community services. In relation to clause 7, subclause (1) provides:

Subject to this section, a person must not knowingly install, use or maintain a data surveillance device to access, track, monitor or record the input of information into, the output of information from, or information stored in, a computer without the express or implied consent of the owner, or person with lawful control or management, of the computer.

'Data surveillance device' is defined in the bill as:

(a) a program or device capable of being used to access, track, monitor or record the input of information into, or the output of information from, a computer; and

(b) any associated equipment (if any);

I ask whether website cookies would collect information about the identity and behaviour of the user to improve the experience of site users, and that they are used by most websites. Would the provision effectively mean that any website that installed a cookie on a person's computer without their consent be committing an offence?

I ask how many South Australian government websites currently use cookies. Is the minister aware, for example, that the Department of Primary Industries and Regions apparently uses cookies? Would the government effectively be undertaking activities which would be illegal if they were undertaken by the private sector? Websites such as Google often record the IP of the computer address to locate a person by region and to customise search responses. Such activity may well be illegal under these provisions, unless consent is specifically given. Has the government consulted with technology providers such as Google in relation to the impact of those provisions and, if so, what was the response?

I note that The Advertiser newspaper recently launched a new website that retains information on its users to restrict and customise access to content each time a person visits the site. I also wonder if that information, too, would technically be in breach of this provision. The definition of 'data surveillance device' is very broad. For example, it talks about a device being capable of being used to access information on a computer. I ask whether that effectively criminalises, with a potential penalty of three years' imprisonment, any unauthorised access by a person of another person's computer, and what issues that might raise for parents or for employers and, for that matter, potentially criminalising relatively minor behaviour of one student to another student. With those comments at clause 1, I thank the council for its indulgence and conclude my remarks.

Progress reported; committee to sit again.

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