Bills

Surveillance Devices Bill

Committee Stage

In committee.

The Hon. J.A. DARLEY: I rise to speak on the Surveillance Devices Bill 2014.

The Hon. S.G. WADE: On a point of order, Mr President, if we are in committee, I wonder why you are in your chair.

The PRESIDENT: Are we in committee on this?

The Hon. J.S.L. Dawkins: Yes, we are!

The PRESIDENT: Well, you better save your speech for clause 1, mate.

The Hon. J.A. DARLEY: Mr Chairman, I rise to speak on this debate—

The CHAIR: Wait a minute, the Hon. Mr Darley, we are just getting the—

The Hon. S.G. Wade: He's got the call—he's allowed to speak.

The CHAIR: Let me worry about that, the Hon. Mr Wade. He will speak—we've got some administrative things here, which have nothing to do with you, so just cool it. There are 39 clauses and four schedules. I will go to clause 1. The Hon. Mr Darley.

Clause 1.

The Hon. J.A. DARLEY: I rise to speak on the Surveillance Devices Bill 2014. The bill is essentially the same as that first introduced by the government in 2012, and it incorporates amendments moved by the government when the bill was debated at the end of the last sitting session. At the outset I wish to place on the record that my position with respect to the bill remains unchanged, that is, whilst I am willing to consider those changes that relate to police powers, I will not support other measures dealing with the use of surveillance devices, particularly as they relate to the publication by media outlets on matters in the public interest. I stand to be corrected, but I understand that is also the position of the opposition and most, if not all, crossbenchers in this place.

Most honourable members would have by now met with or received correspondence from Free TV Australia, who have been lobbying extensively against the proposed measures on behalf of commercial free-to-air television licensees. The organisation has been doing so because of the far-reaching consequences the bill will have on the ability of media outlets to report on matters in the public interest.

Free TV's main objections to the bill revolve around three key issues: first, the broad scope of the definition of 'surveillance devices' and the fact that the definition covers all cameras and recording devices, not just those that are hidden or covert; the requirement for judicial approval before publishing material that has been acquired using a surveillance device in the public interest; and, the limitations on communication and publication of material acquired for the purposes of lawful interests.

As highlighted by Free TV, there is no question that the use of listening or camera devices, and the subsequent publication by broadcasters, often advances that interest. The media have been able to expose countless stories that have resulted in positive outcomes. In its submission Free TV points to a number of examples where broadcasters have advanced the public interest through the use of material obtained by covert listening devices or cameras.

As outlined by the Hon. Tammy Franks yesterday, these examples include: animal cruelty at abattoirs; puppy farms; illegal immigration scams; unhealthy and unhygienic practices in nail salons and restaurants; instances of reckless driving; the use of mobile phones while driving; offensive and threatening behaviour by neighbours; assaults; dodgy dealings by used car salespersons; people stealing from charity bins; uncovering stolen credit card operations—the list goes on.

In some cases these stories have resulted in significant outcomes including the exposure of illegal and unethical behaviour, criminal prosecutions and convictions, remedies for victims, the closure of unethical businesses, changes to legislation, public warnings, education and disciplinary action. Without the media it is questionable whether some of these matters would have otherwise resulted in these outcomes. It is also extremely questionable whether some of these stories would have ever seen the light of day.

As highlighted by Free TV Australia, the breadth of the definitions in the bill is extremely problematic. Clause 9(2) provides that a person must not knowingly use communicate or publish information or material that is derived from the use of a listening device or an optical surveillance device in circumstances where the device was used in the public interest except in accordance with an order of the judge under this division. These provisions are intended to apply to all individuals including media organisations and to all material derived from the use of listening or optical surveillance devices.

It is not limited for instance to information obtained through the use of hidden or covert means. Just imagine the situation under the proposed bill where we have broadcasters queuing up each day outside the courts seeking judicial approval before running with a story that includes material obtained through the use of a camera or listening device. It will not be limited to programs such as Today Tonight which, coincidently, is responsible for exposing so many stories that are of public concern but will extend to our news programs, our radio programs, our newspaper journalists, other investigative journalists—it will apply across the board.

Aside from the obvious impracticalities of the situation, little regard appears to have been given to the fact that our courts' resources are already extremely overstretched. Then there is the whole issue of freedom of the press and impeding on the community's right to information over matters in the public interest. As if the current freedom of information application process was not bad enough, the government is moving more and more towards a situation of freedom from information and freedom from the right to know.

That is just the media's concerns. Andrea Madeley, on behalf of Voice of Industrial Death, has raised concerns about the potential impacts the bill will have on the welfare of employees. From VOID's perspective, the far-reaching implications of the bill could create unintended consequences that are both devastating and unnecessary for employees and their families. As such, the organisation, which does such a tremendous amount of work assisting the families of employees who have been injured or killed, and advocating for change, stands against the bill in its current form.

The RSPCA has also indicated its opposition to a number of measures in the bill highlighting that it is essential 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 organisation makes the point that relying solely on criminal prosecutions to stop animal suffering is limited in its effectiveness due to the limited scope of individual cases and the time it takes for matters to be processed through the judicial system. It concludes that prohibiting the acquisition and publication of material obtained in the public interest would have an adverse impact on the welfare of animals.

My office has also received numerous phone calls and emails from constituents opposing the bill on the basis of the catastrophic effects it will have on animal welfare. Lastly, I am sure I am not the only one who has also been made aware, anecdotally, of our police advising individuals to use recording devices to substantiate reports that they have made against offending businesses or persons. In fact, I think our local Today Tonight producers would also agree that people are often told by the police that the provision of such recordings is often the only leg they have to stand on in terms of any legal remedy.

I would like to clarify one other point that has been raised over and over again by the Attorney-General in the other place, that is, that the bill should be supported because it is in line with the recommendations of the Legislative Review Committee of which I am a member. I think the Attorney is fully aware that that is not the case.

The bill goes well beyond the scope of what was envisaged and it does not reflect the intent of the recommendations of the committee. I just want to flag that because I do not think that this argument is a valid justification for supporting the bill. I think it is no secret that the government caved last time it tried to push ahead with this bill because there was an election looming. The government should have caved because it was bad law, not because it did not want to upset media outlets.

Our community relies heavily on the media for exposing matters that are in the public interest. It plays a pivotal role in raising public awareness on important issues. For those reasons I urge the government to support measures that will be put forward aimed at splitting this bill so that those uncontentious matters dealing with the police surveillance operations are able to be passed separately, and to consider other appropriate amendments. If this is not agreed to I will be opposing the bill in its entirety.

Progress reported; committee to sit again.