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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-26 Daily Xml
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SURVEILLANCE DEVICES BILL

Committee Stage

In committee (resumed on motion).

Clause 1.

The Hon. G.E. GAGO: Given some of the comments made during the second reading and on clause 1, I would like to take this opportunity to put some further comments at this stage. My intention is to not proceed any further with the committee stage today.

The bill deals with the very difficult area of law and social policy which is attended by partisans on a number of sides of the debate with firmly held positions on matters of belief. The place to start is the old proposition that what is not prohibited may be freely done and, until the 1970s, there was no concentration on the prohibition of a tax on privacy by listening or other surveillance devices, in most part because technology did not enable us to do it. As a matter of interest, there was an old common law non-technological criminal offence of eavesdropping but not much attention was paid to that.

When the original Listening Devices Act 1972 was passed, it was passed with a very light hand—in part, I suspect, because the implications and rapid development of technology were not and could not be anticipated and value was placed on the freedom to do what could not be justified to be prohibited. The result was that some groups, professions and people became accustomed to, basically, doing what they wanted.

Things have changed. There has been technological change and nearly everyone now possesses a surveillance device in their pocket. Hacking of computers is commonplace, every mobile phone has a tracking device, CCTV is becoming commonplace and, in short, invasions of personal privacy, or the potential to do so, are becoming more and more common. It is, therefore, unsurprising that interest in the protection of privacy is also rapidly increasing. As a consequence, there is often a collision between those who have an interest in invading privacy and those who have an equal or perhaps greater interest in protecting it. There is no easy way of reconciling the difference. Notwithstanding the difficulties facing us as policymakers, this does not mean that we should not try and it does not mean that this parliament should be paralysed by the vehemence of conflicting interests.

The government is grateful for the efforts of the Legislative Review Committee and has happily cooperated with it. It is a pity that the opposition has ultimately decided it does not agree with the work of this committee. At this point, it is useful to clarify a statement made by the Hon. Stephen Wade during his contribution on the bill. The Hon. Stephen Wade referred to the amendments filed by the government in January this year and implied that the origin of these amendments was due to the government's discussions with media organisations. This implication is false and displays a remarkably different view of the recent history on the part of the Hon. Stephen Wade than that held by the Attorney-General.

The Hon. Stephen Wade referred to a letter by the Attorney-General dated 29 January 2013. That letter enclosed a copy of government amendments together with a copy of draft terms of reference for the Legislative Review Committee. The letter enclosed both documents because the letter invited the opposition to consider both documents as a package. The proposal put to the opposition, which was later confirmed during subsequent conversations between the Attorney-General's office and the Hon. Stephen Wade, was the government would move the amendments if the opposition then agreed to pass the bill and refer the terms of reference to the Legislative Review Committee.

This proposal was to achieve two things. The first was to secure passage of the bill through parliament, albeit in a form not entirely supported by the government. The second was to ensure the Legislative Review Committee be tasked with investigating the vexed issue of the use of surveillance devices by media and private citizens so that amendments to the act on these issues could be progressed when the committee delivered its report.

Ultimately, the opposition advised the Attorney-General that it preferred for the Legislative Review Committee to review these issues first so that any amendments could be progressed in relation to this bill rather than a separate bill. This had the consequence of delaying the progress of the bill until this week. Therefore, the assertion by the Hon. Stephen Wade, that the government was in some way content with the January amendments and that the amendments were prepared in partnership with media organisations, is quite simply incorrect. The amendments were at all times part of a proposal put to the opposition that was ultimately rejected by the Hon. Stephen Wade.

Returning now to the report of the Legislative Review Committee, the government has largely accepted the recommendations of the committee with a few minor additions of its own. The government amendments were filed today, and I understand members have received a copy of those amendments, together with an explanatory letter. Further detail will be provided during the committee stage, but it is useful to briefly set out how the government has approached the relevant recommendations during this reply.

Recommendation 1 is accepted but does not require any amendment to the bill at this stage. Recommendation 2 is accepted and contained in amendment No. 5 of the government's amendments. Recommendation 3 is accepted with one variation. Amendment No. 14 contains this recommendation, but also provides that a person may communicate or publish information derived from the 'lawful interest' use of a surveillance device if the person obtains an order of a judge. This addresses the concerns of various stakeholders that recommendation 3 unduly limited the ability to use information obtained through a 'lawful interest' use of a device.

Recommendation 4 is accepted with the amendment recommended by the Hon. Stephen Wade in his dissenting report. The Hon. Stephen Wade is concerned that the words 'serious and urgent' are unduly restrictive. The Hon. Stephen Wade will be pleased to note that amendments Nos 5 and 10 implement recommendation 4 without reference to the words 'serious and urgent'. Recommendation 5 is accepted and implemented via amendment No. 14.

Recommendations 6 to 11 relate to the use of surveillance devices by investigation agents. The committee has rightly commented on the bill's ability to significantly limit the work of investigation agents in South Australia. The government has decided that it will not proceed with the detailed amendments to the Security and Investigation Industry Act 1995 at this stage as there has been insufficient time for the detailed consultation that is necessary, but it has instead put forward amendments Nos 6 and 9 in order to ensure that the work of investigation agents will not be unduly restricted by the passage of this bill.

Finally, the government accepts recommendation 12, which states that parts 3, 4 and 5 of this bill pass without amendment. The Hon. Stephen Wade has placed a number of questions on record and I will obtain further advice and respond to those at further stages of the committee.

Turning the Hon. Stephen Wade's amendments, at amendment No. 2 the Hon. Stephen Wade seeks to exclude 'electronic news gathering video cameras' from the ambit of the legislation entirely. The government rejects this proposal. This would mean that an 'electronic news gathering video camera' could be used without any limitations whatsoever. It is entirely appropriate that the use of an optical surveillance device in private premises be justified on the basis that the owner of the premises consents to such use, or that the use is in the lawful interest of the user, or is in the public interest. A complete free pass is unjustifiable.

The remainder of the Hon. Stephen Wade's amendments is either included in the government's amendments or not required if the government amendments are supported by this place. With those few words, I seek leave to have progress reported.

Progress reported; committee to sit again.

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