Surveillance Devices Bill

Committee Stage

In committee.

(Continued from 3 July 2014.)

Clause 1.

The Hon. T.A. FRANKS: I will start with answers to the questions that I put on record in the second reading speech.

The Hon. S.G. WADE: What the Hon. Tammy Franks is saying is that she is going to put questions but they are the same ones that she put at the second reading.

The Hon. T.A. FRANKS: No, I am not saying they are the same ones. I am saying I will first get answers to the questions that I put on notice in the second reading speech. I asked these questions in my second reading speech as well so the government should be very well prepared for these. My first question was—

The Hon. G.E. GAGO: I do not need you to repeat questions you have already put on the record.

The Hon. T.A. FRANKS: So I am waiting for the answers to the questions that I put on the record in my second reading speech on 1 July.

The Hon. G.E. GAGO: They are coming but my understanding was that there were additional questions to be put on the record today—new questions. I was informed that a member wanted to do that and I have made time available.

The Hon. T.A. FRANKS: My understanding of the process of parliament is that when one puts questions on the record in the second reading speech, indeed, usually they are responded to in the summary that the government gives before we move to the committee stage. I am waiting for the answers to those questions that I put on the record on 1 July in this place before we proceed to the further questions that I have.

The CHAIR: Obviously there is a misunderstanding. The honourable minister.

The Hon. G.E. GAGO: I indicated that the answers to those questions are coming and they will be provided. They are not available for today but I was advised there were additional new questions that were not raised during the second reading that a member wanted an opportunity to put on the record today. I am making that available. There is no point putting the same questions. We already have those questions from the past. Are there any new or additional questions or are we going to pack up and go home?

The CHAIR: The Hon. Mr Wade, do you have questions?

The Hon. T.A. FRANKS: I do actually have further questions; I was just expecting an answer to my previous questions that I first raised with the minister on 1 July in this place.

The CHAIR: If you have questions, Hon. Ms Franks.

The Hon. T.A. FRANKS: I will ask the minister, where in this bill are there provisions that would stymie cyberstalking?

The Hon. G.E. GAGO: We will take it on notice.

The Hon. T.A. FRANKS: Which groups who represent farmers called for the provisions of this bill to be brought before this parliament? Which farming groups communicated with the government prior to this bill being introduced?

The Hon. G.E. GAGO: I am advised that no farming group called for it.

The Hon. T.A. FRANKS: Why, then, did the government indicate in its second reading speech that farming groups have called for some of the provisions in this bill?

The Hon. G.E. GAGO: I am advised that we received correspondence after the introduction of the bill from farmers' groups about concerns with the use of drones.

The Hon. S.G. WADE: In relation to the amendments that I understand have been tabled, who has the government consulted about the proposed amendments?

The Hon. G.E. GAGO: I am advised that we have not.

The Hon. T.A. FRANKS: Did the minister mislead this council when she indicated that farmers' groups had called for this Surveillance Devices Bill to be presented to this parliament in its current form, then, in the second reading speech?

The Hon. G.E. GAGO: I do not believe so, and I have given the information as accurately as I possibly can. I will double-check the record and, if there is anything that is inconsistent, I will make sure that I correct the record. I have given the best advice that I have received.

The Hon. S.G. WADE: At the second reading stage of the bill the minister said:

Media interests wanted no change to anything. People wanted to be able to secretly record telephone calls with their ex-spouses. Privacy interests wanted to restrict invasions of privacy by covert recording generally.

This is the part of the quote that I particularly want to reference:

These positions, strongly held, were not and are not reconcilable.

I remind the council that that statement was made in early May. Considering that the minister has now tabled amendments which the government claims will reconcile its position with the media, why did it hold the view at the beginning of May that these positions are irreconcilable and now is trying to reconcile them?

The Hon. G.E. GAGO: I am advised that the quote the member read was not limited to just the media. It was a general position in relation to general interests. For instance, it also included matters relating to private investigators. What we are trying to do with this amendment is address the particular issues of the media versus general interests.

The Hon. S.G. WADE: I accept the minister’s point, and that is indeed my understanding too, that I had picked up the quote part way through the paragraph, not to be misleading but to highlight the fact that the media interests were purported to be irreconcilable. Considering that the minister is coming to the chamber with some renewed hope that where reconciliation was not possible, reconciliation is now possible in relation to media interests, has the government changed its view in relation to other sectors: that other sectors may in fact now be reconcilable when they were not a month ago?

The Hon. G.E. GAGO: We are of the view, or we hope, that the reconciliation proposed by the Legislative Review Committee will do the job, and we have put those provisions into the bill.

The Hon. S.G. WADE: I will perhaps explore that more in the committee stage. I just make the point that the second reading explanation at the beginning of May for the new bill, if you like, the bill introduced in the 53^rd parliament, included a number of aspects of the Legislative Review Committee report. The minister, in her second reading explanation, explained why some aspects of the Legislative Review Committee report were not picked up. If I remember rightly, the Hon. Gerry Kandelaars heavily referenced in his second reading contribution how the government’s bill picked up the Legislative Review Committee report.

So it is my view that the accommodation, if you like, of the Legislative Review Committee report had already been done—the fact that the government is now finding the prospect of reconciliation when it did not see it a month ago. Considering that the minister has had a wave of hope for reconciliation, would it not have made sense to test the prospects of reconciliation by engaging media organisations on the draft amendments?

The Hon. G.E. GAGO: I will have to take that question on notice. The staff from the AG’s office made those arrangements. I am not familiar with the details of them, but we can find out and bring that information back.

The Hon. S.G. WADE: I thank the minister for that answer. If I could also ask that when she consults the Attorney-General’s office that they might also explain on what basis does the office or the Attorney-General not hold out hope that where reconciliation is now possible with the media, it is not possible with people who are advocating for animal welfare, with people in relation to—

The Hon. T.A. Franks: Workers’ rights.

The Hon. S.G. WADE: —workers’ rights, etc.

The Hon. G.E. GAGO: There is a difference between hope and expectation but, anyway, we will do our best.

The Hon. S.G. WADE: I accept the minister’s comments. I just would have thought that the Labor Party would have actually put more effort into exploring the prospects for protecting workers’ rights in the face of a maritime union letter and letters from the Voice of Industrial Death when rather it seems to be more focused on news media outlets.

The Hon. G.E. GAGO: I think that is a comment.

The Hon. S.G. WADE: Yes, take it as a comment.

The CHAIR: The Hon. Ms Franks.

The Hon. T.A. FRANKS: With regard to the amendments that the government has tabled trying to address some of the concerns that have been raised regarding media organisations, would the Labor Herald come under the definition of ‘media organisation’ under this bill if it is amended as you have proposed?

The Hon. G.E. GAGO: We will have to find out. We do not know how it is registered, but we will find out and bring back an answer.

The Hon. S.G. WADE: I would ask the minister how many offenders does the government expect will be caught under these provisions?

The Hon. G.E. GAGO: How many?

The Hon. S.G. WADE: Offenders. How many offences are expected to be committed in relation to these provisions?

The Hon. G.E. GAGO: We do not have the answer for that and we do not believe there is an answer at this point in time.

The Hon. S.G. WADE: I take it, therefore, there is no estimate of the revenue that would be expected to be collected from the penalties and no budget allocation for the enforcement of the laws?

The Hon. G.E. GAGO: Not as far as we know.

The Hon. T.A. FRANKS: What conversations have been undertaken with the police minister and, indeed, SAPOL about enforcement and monitoring of breaches of this act, should it be passed by the parliament?

The Hon. G.E. GAGO: I do not have that detail. Those arrangements would have been done through the AG's office and I am happy to take that on notice and bring back a response.

The Hon. T.A. FRANKS: With regard to the need for this particular piece of legislation, what prosecutions have been undertaken in this area in the past 10 years for violations that the bill before us now seems to seek to redress? Is this a systemic problem, or have there been only one or two examples of violations of people's privacy by media or other organisations?

The Hon. G.E. GAGO: That information is likely to be available through the Office of Crime Statistics and I am happy to attempt to find that information and bring it back.

The Hon. S.G. WADE: In relation to the information the media is going to seek from the Office of Crime Statistics, I appreciate that it is not, shall we say, strictly related to this bill, but as a member of this council I would be interested to know whether, since the parliament passed the legislation in relation to humiliating and degrading images, there had been any charges and/or prosecutions in relation to them and what number of those had been successful. I am pretty sure it is not directly relevant but I think it is indicative of the sorts of matters that would be pursued under this legislation.

The Hon. G.E. GAGO: I note that The Advertiser reported from police incident reports on the number of humiliating and degrading images in the paper today, but other than that I am happy to take that on notice and bring back a response.

The Hon. T.A. FRANKS: With regard to the recent royal visit there was footage of, and it was not undertaken in this state but had it been undertaken in this state, I think it is the Duchess of Cornwall—

The Hon. S.G. Wade: Cambridge.

The Hon. T.A. FRANKS: Cambridge, the Duchess of Cambridge—thank you; I knew that I was going to get that bit wrong—playing with her son in what she believed to be a private retreat. Would this legislation cover that particular photojournalist who took that footage and then also the publications that chose to publish it, had those activities been undertaken in South Australia? Indeed, if the footage had been taken elsewhere but then published in this state, what would the situation be in that case?

The Hon. G.E. GAGO: The determination on whether or not an image is captured is dealt with in clause 5, which goes through a list of issues that would need to be considered in determining whether or not it would be captured. They are things like whether it involved entry into a premises or vehicle without express or implied consent, interference with the premises, vehicle or thing without express or implied consent, etc. A number of those issues would need to be considered to determine whether or not that particular image would be captured.

The Hon. T.A. FRANKS: Had that image included one of the members of the royal family sunbaking topless, would it have been covered by this bill or, indeed, another provision under South Australian law?

The Hon. G.E. GAGO: I think I have already answered the question, really. It does not matter whether or not the image is topless. What matters is those criteria that I have alluded to in clause 5, which relate to how a determination is made as to whether or not it is captured. They are outlined in clause 5.

The Hon. T.A. FRANKS: Does the minister accept that this parliament has already passed legislation that deals with humiliating and degrading images? Therefore, in fact, it is quite relevant whether or not this bill covers those areas and is specifically seeking to redress that problem, if you like. Indeed, what does this bill add to the debate on that sort of footage, if we have already covered it with the humiliating and degrading images legislation?

The Hon. G.E. GAGO: The emphasis of this particular bill is quite different to that of the Summary Offences Act, which deals with humiliating and degrading images, as the honourable member refers to. That act goes to issues of decency. This bill goes to issues of surveillance, which captures a different group of potential images. As I said, the criteria for whether an image is captured under this bill are outlined in clause 5.

The Hon. T.A. FRANKS: Can the minister explain, then, why the Attorney-General on radio repeatedly used the example of royal family members sunbaking nude to justify this legislation?

The Hon. G.E. GAGO: That is a matter for the Attorney-General.

The Hon. S.G. WADE: In terms of the penalties, to continue the line of questioning of the Hon. Tammy Franks, I presume that the photographs in the case that the Hon. Tammy Franks is referring to would be in relation to clause 5(1) and the penalties there are, in the case of a body corporate, $75,000, and in the case of a natural person, $15,000 or imprisonment for three years. I accept the minister's answer that the focus here is on the use of a device. Could the minister explain whether the subject of the use would be relevant in determining the penalty that might be imposed?

The Hon. G.E. GAGO: I have been advised that sentencing in relation to penalty deals with considering relevant facts that relate to the objectives of punishment and the objectives of punishment could include, for instance, deterrents. If a court in its deliberations determined that it was necessary, for instance, to deter paparazzi from certain behaviour then it would be relevant, so the case would need to determine the various elements.

The Hon. S.G. WADE: The minister is highlighting there a case where, if you like, the nature of the defendant was relevant to the deterrent relevance of the penalty to be imposed. Would the minister think that the nature of the subject material, e.g. whether or not the Duchess of Cambridge was—

The Hon. T.A. Franks: According to John Rau it is the Duchess of Cornwall, that is what he cited.

The Hon. S.G. WADE: Okay, why don't we say a celebrity—whether a celebrity was dressed or undressed, would be relevant in sentencing?

The Hon. G.E. GAGO: I am advised that it is impossible to give a specific answer, that the court considers the facts of the situation and makes determinations on a case-by-case basis, so there is not a general view, if you like, or position.

The Hon. S.G. WADE: That may be all the answer I need which is that the state of the subject would be relevant to the sentencing under this act. It could be relevant so, in other words, it is not implicitly irrelevant; that is all I am seeking to establish. Could I ask on what basis this penalty regime was established and what precedent we have used for deciding what is the appropriate level of penalty for this legislation?

The Hon. G.E. GAGO: I am advised that this was determined by carefully looking up what the maximum penalty was for a minor indictable range, so that is above two years and below five years. What we have pitched it at is three, as you can see, and then parliamentary counsel, I am advised, have a type of formula, if you like, where they match the fine to an imprisonment time.

The Hon. S.G. WADE: Considering that, as I understand the Hon. Tammy Franks' questioning, the offence in clause 5(1) is committed whether or not there is any, shall we say, offensive element—it is just a use—and the maximum penalty is imprisonment for three years, yet under the Summary Offences Act, humiliating or degrading filming has to be offensive (it has to involve humiliating or degrading filming) and similarly, indecent filming has to, by its nature, involve not just the use of a device but has to involve an offensive element, how does the government justify the optical and surveillance devices maximum imprisonment penalty being three years for an optical surveillance device, yet for humiliating and degrading filming it can be one year or two years?

It is not until you get to indecent filming, and only then in the case of a minor, that you can exceed this level. It then becomes four years, but indecent filming in relation to a non-minor is two years, less than this. Why is it more offensive to use a device than it is to use a device to produce offensive images?

The Hon. G.E. GAGO: There are two ways of looking at this. Firstly, there is a general proposition that there is in fact no objective way of comparing offences with other offences. There is no established standard to provide clear directional guidelines. It is done via a matter of subjective opinion. The second aspect is that in general terms we are regulating invasions of privacy. Some are minor and some are major. So we are actually looking at, if you like, a double whammy: indecent filming plus invasion of privacy. It is two-pronged approach and therefore considered to be potentially more serious.

The Hon. T.A. FRANKS: Is the minister saying that the current legislation around humiliating and degrading imagery does not cover that situation?

The Hon. G.E. GAGO: No, of course I am not. I have already answered that question as to the difference between the legislation and the different types of things that each captures. I have already answered that.

The Hon. S.G. WADE: When the minister in the conclusion to her answer suggested that we are dealing with cases here that are potentially more serious, was she suggesting that the government intends that the use provisions for optical surveillance devices are more serious than humiliating or degrading images (I presume that is not what she was trying to imply), or is she trying to suggest rather that the Surveillance Devices Bill offences would be pursued at the same time that humiliating or degrading images offences would be being pursued?

The Hon. G.E. GAGO: I am suggesting that there are conceivable circumstances in which these offences are more serious than humiliating and degrading images. The example I have been given is that which underpinned the legislation involving humiliating and degrading images, which in fact did not involve sex but involved the image of a person being king hit. It is incorrect to be considering that it really only just pertains to sexually explicit images.

The Hon. T.A. FRANKS: When we were given briefings in this parliament with regard to that legislation about humiliating and degrading images, we were actually given the examples of people being bullied in schools and being beaten up. It was not necessarily a given that there was a sexual aspect to those offences. So, I do not understand the point the minister is trying to make when she points to an example of somebody being king hit.

The Hon. S.G. WADE: To amplify that comment, in section 26A of the Summary Offences Act, humiliating or degrading acts, includes an assault or other act of violence against a person.

The Hon. G.E. Gago interjecting:

The Hon. T.A. FRANKS: A final question for the moment, because I am eagerly awaiting the answers to the previous questions before we proceed. First, we would like to know when the questions we have previously asked will have an answer provided to this council. Secondly, with regard to the publication of materials that might fall foul of this bill, if that publication is to be undertaken by a newsagency or an activist agency that is based overseas, what power will this legislation have in those cases? I draw attention to a recent case that involved New South Wales and an abuse of animals there. In fact, they took it to an international agency to publish so that it could be released in Australia through an international website. Will those situations be caught by this legislation?

The Hon. G.E. GAGO: In relation to the question about when you will receive the answers—as soon as possible. In relation to the issue of overseas agencies, I am advised that the provisions to do with jurisdiction over criminal offences, whether they are interstate or overseas, are dealt with in the Criminal Law Consolidation Act and we think it is around section 5.

Progress reported; committee to sit again.