Surveillance Devices Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 June 2014.)

The Hon. S.G. WADE (15:43): I rise to make a second reading contribution on the Surveillance Devices Bill 2014. The bill was introduced into this place by the minister on 5 June. The council considered an earlier version of the bill in 2012. Since 2012, a lot has changed and also not a lot has changed. In terms of what has changed, for one, I am no longer the shadow attorney-general, I am representing the shadow attorney-general the member for Bragg in the other place. The government has advised the shadow attorney-general that it wishes to complete the second reading debate of this bill in the Legislative Council this week and to adjourn at the committee stage. I indicate that the opposition supports that approach.

In terms of what has not changed, not a lot has changed with this bill and the Liberal Party continues to hold grave concerns with it. The 2012 bill was tabled on 5 September 2012. The bill passed the House of Assembly on 20 September, three sitting days after the opposition received a briefing on the bill by the government. The bill was developed completely within government. The government failed to consult anybody outside its own departments. To facilitate community consultation and proper parliamentary consideration, the Liberal Party sought and received the support of this council to refer the bill to a committee. The bill was reviewed by the Legislative Review Committee.

The Liberal Party supports cross-border recognition of police surveillance operations and the enhancement of processes for police to use surveillance equipment. However, the bill also introduces more stringent regulation on the way that citizens can use surveillance devices, and we have significant concerns about those aspects. Since the 2012 bill was introduced, and since the 2014 bill has been introduced, there has been significant community, industry and media concern at the impacts of the control on the use of listening devices by individuals and the media, focusing on what I would call the consumer aspects of the bill.

From suppression orders to surveillance devices, from secretive ICAC hearings to criminal intelligence, this government has consistently and steadily moved to increase the power of the state and simultaneously undermine the rights of individuals and their ability to protect their lawful interests. As the Hon. Robert Brokenshire put it in Adelaidenow yesterday:

We've got to the point where it's just a secret state, it's a government-run state that doesn't want a Westminster system. Labor just wants a system where it can do whatever it wants. But we're not going to stand for that. It's showdown time.

The government's approach reduces public confidence in the justice system and a free society and undermines confidence that laws are being implemented fairly.

As I said, the opposition is concerned that the bill may significantly restrict investigative journalism, and in that regard we have had contact from media organisations who have expressed their concern at the bill. These include the AAP, the ABC, APN News and Media, Astra Subscription Television, Channel 7, Channel 10, Commercial Radio, Fairfax Media, Free TV, the Media, Entertainment and Arts Alliance, News Corp Australia, SBS and Sky News. The media has been joined by the RSPCA and dozens of citizens.

Ms Flynn from Free TV wrote in her letter to honourable members about the government's claims in relation to privacy. In that context she quoted from a recent statement from the Law Reform Commission. If I can quote from her letter quoting the commission, it reads:

Just last month, the Australian Law Reform Commission recognised the need for surveillance devices laws to include a public interest defence for responsible journalism, saying:

Some legitimate uses of surveillance devices by journalists may place journalists at risk of committing an offence under existing surveillance devices laws. Responsible journalism is an important public interest and should be protected. Journalists and media organisations should not be placed at risk of committing a criminal offence in carrying out legitimate journalistic activities. The ALRC has therefore proposed a 'responsible journalism' defence to surveillance device laws. This defence should be confined to responsible journalism including the investigation of matters of public concern and importance, such as the exposure of corruption.

As members would be aware, the Australian Law Reform Commission is currently engaged in a major inquiry in relation to the serious invasions of privacy, and I think its comments should be understood in that context. The government pontificates about its commitment to protecting privacy, but I hardly think this government has more credibility in pursuing an appropriate balanced approach on the protection of privacy than the Australian Law Reform Commission.

To touch on other aspects of the bill, it also proposes significant changes that would limit the ability for people to collect data without the express or implied consent of a person. The bill appears to criminalise relatively routine data collection, such as the use of cookies on web pages. The opposition looks forward to the contribution of other members on this bill and to working with them in committee to protect the interests of all South Australians.

The PRESIDENT: The Hon. Mr Ridgway.

The Hon. G.E. Gago: Don’t mind us.

The Hon. D.W. RIDGWAY (Leader of the Opposition) (15:50): Look, I am a busy man. As you know, I have got a lot on my plate at the moment.

The PRESIDENT: That's what I heard.

The Hon. D.W. RIDGWAY: That's right. I am a very busy person. Anyway, I am not complaining. In fact, as members in this place would know, I never complain: I just get on with the job. I will make a couple of brief comments in relation to this particular bill.

I will just relate an incident that happened on Christmas Day last year. We were in Melbourne for Christmas, and the people across the road said, 'Come across for an afternoon drink,' which of course to me on a hot day was a very pleasant thing to go and do.

The Hon. T.J. Stephens: You wouldn't normally.

The Hon. D.W. RIDGWAY: No, I wouldn't normally, but I was thirsty. The owner of the house we went to visit had bought himself a drone as a Christmas present, and I was quite surprised when he showed me this thing. He clipped his iPhone to the console. This thing hovered in the backyard, and he said, 'It will do that for a bit so it gets its GPS coordinates,' and then he flew it off down the street.

It looked into everybody's backyard. On his phone, as it is flying along, there are the neighbours—Bill, Mary and Tom—and then, eventually, it disappeared and lost radio contact. He said, 'Don't worry, it will come back because it has got its own GPS.' Anyway, within five or six minutes, we could hear it buzzing like a big bumblebee, and back it came and down it landed.

He downloaded the vision. It had descended into somebody else's backyard about 20 houses away and filmed straight in their back window. A family were having Christmas lunch. There was nothing in the vision that anybody would be offended by other than it was a massive invasion of these people's privacy.

So, from that day on, I have always been very concerned about these devices. This guy was quite wealthy. He thought it was just an interesting thing to buy. He had been playing with his kids earlier in the day. They were playing footy and he was flying it along the oval at their height, so he showed us that vision. It occurred to me then that we need some strict controls around these sorts of devices for people's privacy and also safety.

There is a reason I wanted to make these quick comments. I recently met with the pork industry. I know that, of course, a lot of us have had communications from the RSPCA. I am sure that the Hon. Tammy Franks will make a contribution shortly because I can see the camera waiting to film her, but I think it is important to acknowledge that the absolute majority, if not nearly all our intensive animal producers, take a lot of care and pride in looking after their livestock and attempt to make sure that they are always well cared for.

They are particularly concerned about poor treatment because, as you would know, Mr President, any animal, whether it is in an intensive situation like a piggery or out in the broadacre situation, the better their health, the better they are looked after, the warmer, the drier, the better fed they are, the more productive they are. I think the debate raging that animals are deliberately mistreated by these people is a bit of a nonsense at times because you simply do not get the production that you would expect to get from them.

The pork industry has raised a number of concerns with me and, internally, the Liberal Party are looking at some amendments. I just indicate that I do not intend to speak any further, but I am looking forward to having further discussions with the pork industry, and particularly the intensive animal industry, just to ensure that, on one hand, animals are not mistreated but also that people's privacy and the way they go about their daily business is not impacted on. With those few words, I look forward to the committee stage of the bill.

The Hon. T.A. FRANKS (15:54): I rise on behalf of the Greens to put our perspective on the record with regard to the Surveillance Devices Bill 2014. I do so noting that, in fact, this bill has, at this point, created somewhat of a range of interests. Indeed, a past incarnation of this legislation has been referred to the Legislative Review Committee where some matters were addressed in terms of the effect on individuals that were raised as concerns both by the opposition and members of the crossbench in the last debate. But what we have before us is a bill that I think seeks to crack the problem that is the size of a walnut with something that is the size of a sledgehammer. It is an overreaction.

While the Greens will support parts of this bill in terms of police powers with regard to surveillance devices, we raise grave concerns about the impact that this legislation would have in this state, a state that is already known as a secretive state and a secret state and whose government has a lack of transparency according to the analysis of, for example, freedom of information that is given to citizens and to the parliament of this state. Just last week, we saw yet another example of that with Channel 7's review of the laws around the country and South Australia, to our shame, ranked bottom of all the jurisdictions in Australia with regard to our freedom of information access in this state. But I digress.

This is a bill that was introduced by the minister in the past sitting week with the language that it had become the province of ideological warriors. They are not my words: they are the words of the government and the government raised that this bill had been opposed by vested interests in the media who sought no changes to the law whatsoever. I, and no doubt other members of this chamber, have been talking with various members of the media, and free-to-air TV and other mainstream media organisations have expressed grave concerns about the implications of this bill. Indeed, the argument that has been put is that it would probably put Today Tonight out of a job.

I am sure lots of members of parliament would really like to put Today Tonight out of a job and to shut down that TV program, but you cannot ignore the work that media does in exposing issues that are of public concern and are in the public interest. Those issues are wide and varied and examples that I and, I am sure, other members have been given, include animal cruelty exposed at abattoirs such as the mistreatment of turkeys at the Ingham plant in Tahmoor; odometers being wound back by used car salesmen, which led to a successful prosecution; people stealing from charity bins and selling the proceeds; footage exposing cruel and negligent conditions in a nursing home; a rodeo organiser mistreating an animal by demonstrating how to use an electric prod.

We have seen offensive and threatening behaviour by neighbours; a major investigation into drug use and quarantine infringements at a South Australian abattoir; a person promising jobs and visas as part of an illegal immigration scam; the failure of a pawn shop to conduct proper security checks on stolen goods; Frank Zappia, Cronulla Sharks ex-CEO, resigning after a secret tape recorded by a complainant reveals that he punched her in the eye and told a woman to spank him; unhealthy and unhygienic practices in nail salons; footage taken of taxi drivers who were driving unsafely and talking on their mobile phones, indeed breaking that law.

There have been a number of stories of course on puppy farms or puppy factories including footage of a puppy farm in the ACT breeding a banned breed and selling on the internet; workers from a construction site dumping pollutants on public land; solarium operators failing to conduct the appropriate skin checks or warn clients of the risks associated with solariums; uncovering a South Australian stolen credit card operation; salespeople misrepresenting the benefits of particular products, especially in relation to those that would heal or improve illnesses; footage of carwash employees taking money from cars that they were washing—stealing; and a dentist attempting to assault young female patients.

There you have it. We have exposed a range of criminal acts through programs such as Today Tonight and other mainstream and national broadcasters—the ABC and the SBS—and investigative journalism has a proud tradition in this area. Indeed, technologies in this day and age have made it more and more possible to expose wrongdoing.

I understand that it was the Channel 7 camera crew who were standing in Whitmore Square just before Christmas, I think it was (just over a year ago), when those two homeless men were beaten brutally and illegally. I shudder to think what would have happened had they not been there. Those two homeless men would have simply copped that beating and would have had no recourse. They would have made the complaint, as they did, to the police authorities, and they would have been ignored had they not had that video footage and, indeed, video footage that was taken by a Channel 7 camera operator who happened to be in the park at the time. The likelihood of that happening for most people who are treated in such a way and beaten up is quite minute

But in that case not only was that exposed, but I dare say that, under this legislation, that footage would never had seen the light of day. It would not have passed a public interest test, where it would have to have been taken to a court and, indeed, proven that it was in the public interest for people to know that those police officers had beaten those homeless men.

What we are talking about with this legislation is setting the cart before the horse, if you like; that is, setting up a system where people, to prove public interest, will have to go to the courts and will have to undertake extensive and expensive work to shed light on those areas that most need light shed on them: sexual harassment, criminal activity, scammers and, yes, abusive animal welfare. There is a range of areas here, and I am very surprised to see a Labor government doing something that would impinge on workers' rights in such a way.

I draw the attention of Labor members to the fact that Voice of Industrial Death has made a submission to this bill, and I will read from that in a moment. But hot off the presses, the Maritime Union of Australia (SA Branch) has just made a submission to my office, and I am happy to share it with all members not only here in Hansard but, of course, I will send this on to your emails. This letter from Jamie Newlyn, the branch secretary, draws to our attention that he is writing with regard to the Surveillance Devices Bill currently being debated. He says that the bill is still too broad in its context. He goes on to say:

The MUA are concerned that the Surveillance Devices Bill…will unintentionally capture workplace representatives, Health and Safety Representatives or concerned employees who may use smart phones or other recording devices to expose unsafe acts at work.

He goes on to say that an employee might expose themselves to criminal charges if they shoot footage using their mobile phone camera to expose a hazardous worksite, workplace bullying, harassment or other dishonest and unethical conduct in his or her workplace. To have the Maritime Union of Australia expressing concerns about this bill shows that it is not simply the adamantine animal activists who have concerns about this bill, and I quote those words used by the government in the second reading explanation.

Indeed, they spoke of farmers who really want this legislation. I ask the government which farmers made submissions or representations to the government asking for this Surveillance Devices Bill to be put to this parliament in this form? That is my first question. I also ask the government the following. Can it please give examples of where the current laws have been proven to be unworkable with regard to surveillance devices used by the media in this state in the past decade? What attempts at prosecution have been stymied?

Can the government also produce any examples of where the government claims that activism has crossed the boundaries and, indeed, why the current laws of trespass, for example, are not appropriate in those cases because, of course, the laws of trespass would apply to anyone who is being accused of jumping onto somebody's property or going onto their land? Those are longstanding laws we have in this state. I do not know whether having a mobile phone in your hand as you do it is going to make any difference to the fact that you are trespassing. If you are trespassing, surely that should be where we should focus our attention.

The unintended consequences of this bill have also been drawn to our attention by the RSPCA, and they again point to the examples of puppy farms and puppy factories, which this government purports to want to shut down.

I have a note to this government. Just on two years ago, there was a much-heralded example of a puppy factory that was exposed not too far from the metropolitan area. That footage was taken by what you would call animal activists and given to the RSPCA, which used that footage to call out to the community to take those animals and to care for them, to foster them, and nurse them back to health.

I ask the government, if this bill existed, would the RSPCA have been able to use that footage to call for the community to stand up for those puppies? Indeed, we would be blissfully unaware right now that that puppy factory existed in this state. I note that the minister has previously claimed in this place that there were not any puppy factories in South Australia so I am happy to see that we have proven that one wrong but not happy that we have puppy factories.

The thing is, we as a broader community will not know that we have these puppy factories unless we have the ability for people to expose these things. As I say, to shine a light into the dark corners that deserve to be lit. The RSPCA's CEO, Tim Vasudeva, has expressed grave concern about the impact of this bill. Indeed, he also concurs with the Law Society's concerns with this bill, that:

There is a lawful interest in using a surveillance device against another person without that person's consent where the use is proportionate and necessary to achieve some legitimate objective.

The Law Society of South Australia suggests that use of a surveillance device can in some circumstances serve a beneficial social purpose, and raises the issue of whether an individual or social benefit outweighs any detriment to an individual's privacy.

An example would be the use of surveillance devices in the course of investigative journalism where there is a substantial basis to believe that information of significant public importance may be gathered.

The RSPCA goes on to say more specifically that here in South Australia their concerns are that:

…animal welfare organisations maintain the right to publish content in the public interest, such as material representing acts of animal cruelty, abuse, suffering and neglect.

The Coalition for the Protection of Racehorses has also written to me and no doubt other members of this place, and they have pointed to undercover investigators from their organisation witnessing:

…horrific animal cruelty at a Melbourne knackery—where ex-racehorses were beaten over 50 times and shot in front of one another, and one horse was shot in the head, dragged by a tractor across concrete and gravel for 60 metres, and found to still be alive. The animal writhed around while his throat was slit, agonising until the last breath was taken four minutes later. This footage was provided in an official complaint to authorities…

and it would not have come to light had these investigators not documented that cruelty with the technology that is currently available to us. Indeed, we have moved on in this world and I think it is ironic that we debate this bill today in a place where, yes, as the Hon. David Ridgway noted, I am filming my own speech, but I do so because speeches in this place are not filmed. Unlike every other parliament in this country, we do not allow people to take photos in this place.

The Hon. G.E. Gago: Here we go.

The Hon. T.A. FRANKS: Yes, indeed, the minister recognises that there is a camera in this place. I point out to members that it is the only parliament in the country that does not broadcast its parliament, whether it is through the web or other means. How in the dark ages are we as a parliament in South Australia? We rest on our laurels of being the first place to have extended suffrage to women and many other proud achievements in which we have led the way, but we have rested on our laurels too long. We are stuck in the 20^th century and we are in the 21^st century.

But I digress and members get into a chatty debate that they probably would not do if we had the cameras running here all the time. In fact, I think we would find that our debates would probably be a little more decorous after the initial excitement and flurry of visual attention was lost.

I just want to draw members’ attention to the final submission that I will refer to today. No doubt you have all received phone calls and letters, as my office has done, from various organisations, but I draw members’ attention to a submission from the founder of Voice of Industrial Death (VOID), Andrea Madeley, who is well known to many of us here, who lost her son due to a workplace incident and who works with many who have lost loved ones in worksites. She raises workplace safety concerns with regard to the Surveillance Devices Bill 2014, stating:

…an employee would expose himself to criminal charges if he shot footage using his mobile phone camera to expose a hazardous worksite, workplace bullying, harassment or other dishonest and unethical conduct in his workplace.

The MUA, and I imagine any other unions that you might care to consult with, can see the relevance of this bill impinging on the work of protecting workers’ rights in this day and age. We know that a young woman, for example, who is sexually harassed in her workplace is very powerless, but if she has a phone in her pocket and she captures that, that gives her not only the power to take action but indeed to be believed, because she has the proof.

This bill, as I say, seeks to crack a problem that is a walnut with something the size of a sledgehammer; it goes too far. The Greens will support the police parts of this bill; we challenge this government to accept the will of this chamber and recognise that they have erred here. They have erred and they have stepped too far with their attempts to curtail what are legitimate and legal practices, whether they are done by an individual, whether they are done by a citizen journalist, or whether they are done by the mainstream media, to expose what deserves to be exposed.

With those few words, I will have many questions with clause 1, should we get there, and I certainly look forward to the government bringing back those examples of where the farmers and the animal activist community made representations to government about this bill.

The Hon. K.L. VINCENT (16:11): I take the floor to put on the record a few comments on behalf of Dignity for Disability on this issue, and indeed from a personal level as well as a proud member of the Adamantine Animal Activists Association of Australia. I do hope that when my past English teachers thumb through the Hansard to read this, as I know they will, they enjoy that shining piece of alliteration.

A number of the very grave concerns that I hold have already been placed on the record by other members, so I will not repeat them and my make comments quite brief. When this parliament last considered the bill in this place I raised a number of those concerns, and I am glad to see that some of them have been addressed since the bill has returned to us. Having said that, I of course continue to be concerned, as a number of my colleagues certainly appear to be, by the bill’s provisions regarding the publication of information gained through the use of surveillance devices.

Mr President, read together with the very broad definition of different classes of surveillance devices, Dignity for Disability finds it concerning that the passage of this bill in its current form would place an enormous burden upon individuals, small business owners, NGOs, the news media and the courts. I understand that there are a number of proposals to amend the bill being contemplated by members who share my concerns, and I will consider those amendments very seriously as they become available.

Dignity for Disability is of course highly supportive of the drive to achieve national harmonisation in this area in order to enhance cross-border efforts to combat serious and organised crime; however, we are unable to accept as a part of that process changes that we believe will have so serious an impact on civil liberties, press freedom and political communication. As other members have pointed out, there are many times when the use of such devices would be considered by the vast majority of the public to be completely legitimate and in the public interest.

In summary, I have grave concerns regarding the bill in its present form, but I will continue to support amendments to address the publication issues and the passage of an amended bill.

The Hon. G.A. KANDELAARS (16:14): I must say, I am somewhat surprised at the paranoia that seems to be driven by some in relation to this bill. I was chair of the Legislative Review Committee that did review this legislation, and we did it very thoroughly, and we did it for very good reason. One of the prime concerns was about the interest of privacy, and a very significant interest it is. There is a lot of paranoia around this and one of the things that we need to draw attention to is that this bill does have exemptions in it. One key exemption is a public interest test, and it says that that public interest test, before publication, is that a matter will actually require some judicial oversight.

It surprises me that I did not hear people object to division 3 of this bill. Division 3 essentially requires, in the case of law enforcement, a judicial review in terms of covert surveillance, or bugging. Let us call it bugging, because that is what it is. We are saying, 'Well, yes, there should be some form of test applied.' If somebody is going to bug somebody without their authority then there should be some form of test in that.

Let us come to some other issues. I hear that the media is highly concerned and that journalistic freedoms might be impinged. The committee did consider that, and considered it very seriously. One of the prime concerns here is that issue of public interest. Look at what has occurred in other places. Let us look at the UK and the Leveson inquiry. Where were the journalistic morals when that was going on? Where were the journalists' morals in that circumstance? They were quite at liberty to go and bug people's telephone messages. It did not concern them at all. They are now before the courts, and rightly so. If we are going to say that journalism in this country is not capable of doing the same thing, people have got rocks in their heads, to be quite frank.

There is a distinct difference between what might interest the public, which is a test that the committee seriously looked at, and the public interest. What we finally did say is that there should be some judicial oversight in terms of determining that public interest test. I think that is a very significant point, a point that is lost here, because this is about people bugging other people. It is about people's privacy. It is a point that is very, very important. I do not see people from the Greens or others standing up and complaining that if there are no controls then people's privacy is seriously at threat. Given the technology and the types of devices that I heard the Hon. David Ridgway talk about, how are you going to ensure your privacy? There is no way.

There is another point, because the act does have an exemption for protecting your legal rights. The act clearly has an exemption that says that you can protect your legal rights, and you can do that by bugging somebody. So, the issue that the Hon. Tammy Franks raised in terms of a poor woman who is being sexually harassed at work or wherever is certainly covered by that.

As I said, nobody is complaining about division 3 and expecting our law enforcement agencies to have to go through some test. What we are saying is that, for some reason, the media in this country does not have to perform any test. One telling point in the evidence given to the Legislative Review Committee was a question asked of the lawyer, from Kelly & Co (I cannot remember their name), representing the media. Asked how often the media have been prosecuted for breaching the public interest test—and there have been cases where they have breached it—the answer, sadly, was never. Never has there been a court case for a breach of privacy for breaching the public interest of an individual.

The Hon. S.G. Wade interjecting:

The Hon. G.A. KANDELAARS: There have never been prosecutions for a journalist breaching someone's privacy per se. There needs to be a serious look taken, within this bill, in relation to how we protect individuals against unlawful surveillance by bugging. That is the key point here. With due respect, the committee thought that the best way to do that was to say 'Alright, it will happen and people will seek to protect their legal interests, but before they go and publish they should be able to go off to a magistrate or a member of the judiciary and have that assessed for the public interest test.'

On another issue, people were saying that this puts us out of step with other states. That is not correct; in fact, some of the determination of the committee came about from evidence brought to it that similar provisions actually exist today in Western Australia and the Northern Territory. New South Wales also has some significant tests applied to people being bugged. So, as I said earlier, I am quite surprised at the paranoia that is being raised.

If we are saying that we do not trust our judiciary to make an assessment about private individuals and organisations bugging people, why do we trust it to do it for our law enforcement? That is my question, because that is not answered. No-one in this place is questioning division 3, which requires law enforcement to go through a process; no one is suggesting that should not occur, yet when it comes to a private individual we are saying that it is carte blanche, 'You can go and publish it.'

What right to privacy does an individual have? I have not heard the answer to that, and it is a serious question, given the types of technology we have today. Given the fact that a mobile phone is a tracking device, an optical surveillance device, and an audio surveillance device, I have not heard from people how we are going to protect an individual's privacy against covert surveillance. Until I hear that answer I will stick with the bill that the government is proposing.

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) (16:23): I do not believe there are any further second reading contributions on this bill. The bill has been to this place once before, and we seek to reintroduce it because we believe these are important changes for us to adopt in this state. A number of questions and issues have been raised during the second reading contributions, and I will seek to bring back answers and responses to those during the committee stage. I thank members for their contribution, and look forward to dealing with this bill through the committee stage.

Bill read a second time.