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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-11-17 Daily Xml
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Surveillance Devices Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 October 2015.)

The Hon. A.L. McLACHLAN (17:57): I rise to set out the Liberal Party's position in respect of this bill. When reading this bill for the first time, I recalled the quote of Edward V. Long which is as follows:

Modern Americans are so exposed, peered at, inquired about, and spied upon as to be increasingly without privacy—members of a naked society and denizens of a goldfish bowl.

This bill seeks to set out some parameters around the privacy of the individual in certain circumstances. Privacy is an important public interest, but it is not the only public interest. Indeed, there are other competing public interests, in particular the freedom of expression and the broader public interest. This bill seeks to balance those competing interests and seeks to find an accommodation between all three.

The bill has a number of components. One key component is advancing various powers of our law enforcement agencies in relation to surveillance. The Liberal Party does not seek any amendment at this stage to those provisions and has in the previous iterations expressed its support for those provisions in that form.

Where the many different versions of this bill which have come before this chamber and the other place have attracted controversy has been in respect of the prohibition in relation to the use or maintenance of an optical surveillance device and the particular anxiety in the community for those who have a particular interest in animal cruelty to be able to expose the maltreatment or mistreatment of animals. At the time of the debate in the other place, the Liberal Party had not received the submissions of the RSPCA and Free TV. I will touch upon those submissions a bit later.

As I indicated, the Liberal Party is in general agreement with the provisions in relation to the law enforcement. The first of those is cross-border recognition of surveillance device warrants. The second is to allow urgent warrant applications, for example where there is an imminent risk of violence to a person or substantial damage to property, to be granted by a senior police officer instead of a judge. The third is to provide for remote applications to allow for instances where the physical remoteness makes it impractical to make a warrant application. The fourth is the provision of a specified person warrant, which allows for warrants for surveillance on specific people instead of warrants on a particular place. As I said, we do not seek to challenge those provisions.

The bill also goes on to prohibit the installation, use or maintenance of a listening device to overhear, record, monitor or listen to a private conversation, except where all principal parties to the conversation provide their consent. There are exemptions, where such a listening device is authorised for law enforcement authorities and for security and investigation agents. A further exemption exists where the use of the device is reasonably necessary for the protection of the lawful interests of that person, or where the installation, use or maintenance of a listening device is in the public interest.

The installation, use or maintenance of an optical surveillance device is subject to similar restrictions and exemptions. The bill prohibits the installation, use or maintenance of an optical surveillance device on or in premises to record visually or observe the carrying on of a private activity without the express or implied consent of each party to the activity. The bill also prohibits trespass onto premises or interference with premises to install, use or maintain an optical surveillance device to capture private activity.

Like listening devices, there are exceptions for law enforcement authorities for security and investigation agents. A further exemption exists where the use of the device is reasonably necessary for the protection of the lawful interests of that person, or where the installation, use or maintenance of an optical surveillance device is in the public interest.

The bill goes on to prohibit the use, communication or publication of information or material derived from the use of a listening or optical surveillance device. It creates an offence for the use, communication or publication of information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used to protect the lawful interests of a person. There are exceptions to this prohibition, which include for investigative or court-related purposes, by a media organisation (defined as an organisation that is licensed or authorised under a law of the commonwealth to engage in broadcasting or datacasting), or in accordance with the order of a judge.

The bill provides an important further exemption to the general rule that there must be a court order for a media organisation, information or material that is used, communicated or published to such a media organisation, the Royal Society for the Protection of Animals (the RSPCA), where issues of animal welfare are concerned and information or material that relates to issues of animal welfare that is used, communicated or published to the RSPCA.

It is the public interest test in relation to the media on which there has been a submission from Free TV. Free TV wrote to the Hon. John Rau, Deputy Premier, on 16 October 2015. The letter was signed, 'Yours sincerely' by Julie Flynn, the CEO. I will not read into Hansard the terms of that letter, but I seek from the government in its summing up of the second reading debate a response to the concerns raised in that letter. I also refer to a letter addressed to the Hon. John Rau, Deputy Premier and Attorney-General, dated 22 October 2015 and signed 'Kindest regards, Tim Vasudeva', the CEO of RSPCA.

I also seek from the government at the summing up of the second reading debate a response to the concerns raised by the RSPCA. In particular the RSPCA has expressed concerns that it has been named in the bill, and it has concerns that it will not have the resources to cope with being supplied with what it anticipates will be large amounts of new media in relation to the cruelty of animals, and finds that the test in the bill may be difficult for them to make appropriate assessments whether to publish or utilise the material.

Both submissions are significant from the perspective that the government was thought to accommodate both these parties with this drafting of the bill, and this is why I ask the government to pay care and attention to the responses in summing up the bill. With those comments I will conclude my remarks on the second reading.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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