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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-09-23 Daily Xml
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Surveillance Devices Bill

Committee Stage

In committee.

Clause 1.

The Hon. G.E. GAGO: I want to make a few general comments regarding clause 1 in relation to some of the second reading contributions. This bill came about by a long process of consideration and consultation. The Legislative Review Committee considered the issues addressed by it at length the last time the government attempted to legislate in this area. Compromises were sought regarding aspects of the original legislation, and the government has reacted to the concerns of the media by moving amendments specifically designed to exempt them from the provisions regarding prepublication approval and making it clear that only private activity is within the scope of the bill.

However, some in the community have simplistically called for a splitting of the bill, and the opposition has unfortunately rushed to oblige. If this bill is passed in the form suggested by the Hon. Stephen Wade, then the government believes such a bill will bring quite perverse outcomes. For instance, a person may feel free to install a camera on their roof that records children playing in their neighbour's backyard, but SA Police would need to apply for a warrant to film a suspected drug lab. Another example: having obtained that material they could feel free to publish it. SA Police, on the other hand, would need to apply for a court order first to distribute material obtained under a warrant.

A jealous boyfriend, for instance, could install software to read text messages or emails from his partner's phone. SA Police, on the other hand, would need to apply for a warrant to read a bikie gang member's message. A blogger could install a GPS tracking device on the car of every member of this place in order to write a piece on the work habits of MPs; however, SA Police would need to apply for a warrant to track a suspected organised crime leader.

A certain degree of mischief-making is something we have obviously come to expect from various members, particularly opposite us; however, it is quite simply irresponsible for those people who purport to be an alternative government in this state to abrogate the responsibility incumbent on all of us to pass laws for the betterment of society. If the Hon. Stephen Wade's amendment bill is successful, we believe it would create a perverse nonsense outcome whereby the general public would have more powers than SA Police. In fact, private investigators would have more powers than police. I think members need to think very carefully about how they deal with these matters.

The Hon. R.L. BROKENSHIRE: Given that the opposition just got an absolute whacking from the government over their irresponsibility and so on and so forth, I am interested in knowing which public servant wrote that, because I do not think that came from the minister; the minister was only the messenger. I will just put on the public record that that is an interesting angle for a public servant to be perceiving any member of parliament or any alternative government at all. If that was written by a public servant that is a disgrace, an absolute disgrace. Can the minister confirm whether that was written by a public servant or whether it was written by one of the government advisers?

The Hon. G.E. GAGO: The opinion that I have put on the record is that of the government. The government is outraged at the perverse consequences that the Hon. Stephen Wade's bill will result in and, as I have said, what it will result in is to give the general public more powers than those given to SA Police. SAPOL would have more powers if they commissioned private investigators.

The Hon. S.G. WADE: Point of order, Mr Chairman. In relation to the Notice Paper, I wondered whether my bill on listening devices had been brought on for debate or whether we are debating the government's surveillance devices bill.

The CHAIR: The minister is making comments as far as I can see. The minister.

The Hon. G.E. GAGO: At this point, I table some statistics that were requested by the Hon. Stephen Wade and the Hon. Tammy Franks on Office of Crime Statistics and Research in relation to listening and surveillance devices. They are tables, and they are quite comprehensive and too difficult to read into Hansard.

The Hon. R.L. BROKENSHIRE: I have a question for the minister based on her comments under clause 1. Family First has enormous empathy for the situation regarding the police, and I want to put that on the record. However, when it comes to organisations such as Animals Australia, the RSPCA and other organisations which deliberately target agriculture because they have an agenda which is not in the national or, indeed, international interests, this bill would go a long way toward stopping some of that, and for that I empathise with the government. The concern for us is around not giving Animals Australia the right to trespass and to come on to your property to take footage and often to manipulate that footage, or to send drones over farms or intensive animal husbandry facilities, and I know that this bill would go a long way in stopping that.

The deliberating point for Family First is to do with what has always been generally accepted throughout the community as a responsible situation when it comes to media, which sometimes do some surveillance with respect to putting things on the public record or for media reporting. I know that the Attorney-General, on behalf of the government, has been trying to work through an option. Can the minister advise the committee, in a straightforward way, before we get to clause 3 whether, within the overall context of clause 1, the amendment the government is putting up is supported by the media?

The Hon. G.E. GAGO: I am advised that if the honourable member looks at the government amendments Nos 4, 5 and 6, they are designed to exempt the media from requiring judicial approval to publish. However, in spite of that concession, the media still do not overall support the bill.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. G.E. GAGO: I move:

Amendment No 1 [EmpHESkills-1]—

Page 6, after line 17 [Clause 3(1)]—After the definition of principal party insert:

private activity means any activity carried on in circumstances that may reasonably be taken to indicate that at least 1 party to the activity desires it to be observed only by the other parties to the activity, but does not include an activity carried on in circumstances in which all parties to the activity ought reasonably to expect that it may be observed by a person who is not a party to the activity;

This amendment inserts a definition into the definitions section. The definition is the definition of the concept of 'private activity'. The purpose of the definition is the elaboration of the concept to insert it into the provisions that are producing controversy that regulate and prohibit certain uses of optical surveillance devices.

The amendments, in combination, are designed to make it clear that the prohibitions on the use of optical surveillance devices are designed to protect people's privacy, that is to say to prohibit the use of optical surveillance devices to intrude on the activity of private citizens when it is reasonably clear that at least one party to the activities desires it to be private, that is unobserved by the public at large.

The definition resembles closely the definition of 'private conversation' already in the bill that performs a similar function in relation to the regulation of listening devices. It is hard to know what could be fairer than this policy. People should be free from visual surveillance when it is clear, and it is reasonably clear, that their activities are meant to be, or are intended to be, private.

The Hon. S.G. WADE: The minister might reflect on whether this reflects a reasonableness test. I read it that it does not. It is not whether a person might reasonably in those circumstances expect that the activity be private, but that it may reasonably be taken that the person desires. It is not, if you like, a Clapham omnibus situation. I just want to clarify whether the government does see it as a reasonable person test.

The Hon. G.E. GAGO: I refer the member to the words 'circumstances that may reasonably be taken to indicate at least one party'.

The Hon. S.G. WADE: If you want to quote excerpts, let's go on and read that 'at least 1 party to the activity desires it to be observed'. Desire is not, if you like, a reasonableness test, and the test of a reasonable man does not require you to be in there. Looking from the outside, even abstracted by time, you could make a judgement. This seems to be suggesting that someone has to do something within the activity to indicate a desire.

The Hon. G.E. GAGO: Yes, I understand where the honourable member is coming from, but in relation to 'that may reasonably be taken' I think what you are getting at is who is to be taken. It would be the hypothetical observer.

The Hon. S.G. WADE: I am not sure if we have connected, but let me move on to the second part of that definition. The Hon. Tammy Franks and the Attorney-General, in another place, were particularly keen about royalty, and I notice the Attorney-General's appearance at Elizabeth. Thinking about royalty, royalty in the modern world can expect that wherever they go and whatever they do the paparazzi will be there. I just wonder what the impact of the second half of that definition might be. It says 'private activity':

…does not include an activity carried on in circumstances in which all parties to the activity ought reasonably to expect that it may be observed by a person who is not a party to the activity.

I do not follow the media enough to know the exact circumstances in which the Duchess of Cambridge was filmed which was the subject of the conversation between the Hon. Tammy Franks and the Attorney-General, but I appreciate it is a matter of degree. Certainly, inside Buckingham Palace there would be an expectation that they would not be observed, but in any place outside a royal residence I would have thought they would have felt quite vulnerable to paparazzi and that it is reasonable for them to expect that they may be observed and, therefore, celebrities of any ilk, royal or otherwise, might not have protection under the bill.

The Hon. G.E. GAGO: The honourable member is quite right: it is a matter of degrees and there are elements of judgement in that. For instance, you would expect that the royal family attending a public event in the public arena would be filmed. However, it would probably be reasonable to expect that the royal family on a private holiday should not be filmed. An example that has just been given to me is the wedding of Michael Douglas and, between us, we can't remember for the life of us who he married.

The Hon. J.M.A. LENSINK: Catherine Zeta-Jones.

The Hon. G.E. GAGO: Thank you. They sold their wedding rights to a magazine but OK! magazine hired a helicopter and flew overhead and took photographs of the wedding. That would be an example, clearly, of an invasion of privacy. He prosecuted OK! and won, apparently.

Amendment carried; clause as amended passed.

Clause 4 passed.

Clause 5.

The Hon. G.E. GAGO: I move:

Amendment No 2 [EmpHESkills–1]—

Page 11, line 11 [Clause 5(1)]—Delete 'an activity' and substitute: 'a private activity'

Amendment No 3 [EmpHESkills–1]—

Page 11, line 23 [Clause 5(2)]—Delete 'an activity' and substitute: 'a private activity'

These are consequential.

Amendments carried; clause as amended passed.

Clauses 6 to 8 passed.

Clause 9.

The Hon. G.E. GAGO: I move:

Amendment No 4 [EmpHESkills–1]—

Page 15, after line 4 [Clause 9(1)]—After paragraph (e) insert:

(ea) to a media organisation; or

Amendment No 5 [EmpHESkills–1]—

Page 15, lines 12 and 13 [Clause 9(2)]—Delete 'except in accordance with an order of a judge under this Division.' and substitute:

except—

(a) to a media organisation; or

(b) where the person is a media organisation and the use, communication or publishing of the material by that media organisation is in the public interest; or

(c) in accordance with an order of a judge under this Division.

Amendment No 6 [EmpHESkills–1]—

Page 15, after line 36—After subclause (4) insert:

(5) In this section—

media organisation means—

(a) an organisation that engages in broadcasting or datacasting pursuant to a licence under the Broadcasting Services Act 1992 of the Commonwealth or that is otherwise authorised under a law of the Commonwealth to engage in broadcasting; or

(b) an organisation that is a constituent body of the Australian Press Council or is authorised under a law of the Commonwealth to engage in publishing.

This is an amendment to clause 9 which deals with the regulation of the dissemination of information that has been gained by the use of a listening device or an optical surveillance device in reliance on the protection of the lawful interest of a person or the public interest. I cannot emphasise enough that this clause is the direct result of the exact adoption of the recommendations of the Legislative Review Committee that reported and recommended, as the committee will know, after extensive consultation with affected interests.

The effect of this amendment, which was not recommended by the Legislative Review Committee, is that the media, as defined, is, with some others, to be exempted from the requirement to seek judicial approval for the dissemination of that information. They take on the risk of unlawfulness. The media has demanded this exemption. Their allies in the opposition and on the crossbenches have agreed with them, and that is fine. The government has acceded to their request in the interests of getting some reform in this area of law.

The CHAIR: There are three amendments, minister. Do you want to put them all?

The Hon. G.E. GAGO: They are consequential, all three.

The Hon. R.L. BROKENSHIRE: I want to place on the public record the fact that the government has not come to see us about these amendments. That is probably to its detriment, because we actually do agree with a lot of this bill. This was a pivotal part of the amendments that I understood the government was going to put in, that would allegedly fix the anomalies with respect to the media and reporting in the public interest.

I appreciate the honesty of the minister in her answer, and the frankness and honesty of the adviser to the minister in the minister giving that answer, in as much as while this is an attempt by the government to make an amendment that may appease the media the minister, in her honesty in this place, tells us that the media is not appeased. Based on democratic processes that have been in existence with respect to the media for decades, unfortunately we will not be able to support this as appeasing the media. Therefore, from our point of view, it is to the detriment of the bill before the committee due of the fact that the government has not been able to appease the media.

Amendments carried; clause as amended passed.

Remaining clauses (10 to 39), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:48): I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes 5

Noes 12

Majority 7

AYES
Finnigan, B.V. Gago, G.E. (teller) Kandelaars, G.A.
Maher, K.J. Ngo, T.T.
NOES
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. Lensink, J.M.A. Lucas, R.I.
McLachlan, A.L. Parnell, M.C. Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G. (teller)
PAIRS
Gazzola, J.M. Franks, T.A. Hunter, I.K.
Lee, J.S.


Third reading thus negatived.

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