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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Surveillance Devices Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 November 2015.)

The Hon. T.A. FRANKS (21:37): I rise on behalf of the Greens to speak on the Surveillance Devices Bill 2015. Of course, it is not the first time that we have seen a bill in this territory before, not only in the other place but in this council. That is no surprise when you read the rationale for the introduction of this Surveillance Devices Bill 2015. In the words of both the minister in this place and the Attorney-General in the other place:

On 5 April, 2002, the Council of Australian Governments (COAG) held a special meeting on Terrorism and Multi-Jurisdictional Crime. One outcome of that meeting was that Leaders agreed:

To legislate through model laws for all jurisdictions and mutual recognition for a national set of powers for cross-border investigations covering controlled operations and assumed identities legislation; electronic surveillance devices; and witness anonymity. Legislation to be settled within 12 months.

The task of developing these model laws was then given to a task force known as the national Joint Working Group (JWG) established by then Ministerial Councils (the Standing Committee of Attorneys-General and the Australian Police Ministers Council) and consisting of representatives of both bodies. The JWG published a Discussion Paper in February 2003 that discussed and presented draft legislation on all four topics (controlled operations and assumed identities legislation, witness anonymity, and electronic surveillance devices) and received 19 submissions nationally. A Final Report was published in November 2003.

Over 10 years later, this government decided to actually bring legislation in this area to the parliament, but it was far broader than that recommendation from the 2002 COAG. Rather than simply addressing the police powers around surveillance devices, the legislation we have before us is the broadest in the country and goes much further than the recommendations did back in 2002.

We have been told time and time again by the Attorney-General, in the last three incarnations of the bill, that this is an urgent matter. I would suggest that if it was an urgent matter then perhaps it should have been done in 2003 or 2004. Apparently, for a decade we were just fine without this legislation, then suddenly it became an urgent matter. Not only that, we had to legislate not just for the recommendations around the police powers but in areas that have been described by the Law Society in its submission to the current bill as ag-gag laws that curtail the ability of the media to do its job.

I will go straight to the Law Society's submission on this particular bill. This was received by members, I believe, on 26 November 2015 (that is the date that mine was dated) and was addressed to the Hon. John Rau MP, Deputy Premier and Attorney-General. The Law Society submission on the Surveillance Devices Bill 2015 refers to the current bill, but notes the history of the bill and notes that it has previously made a submission to the Hon. Gail Gago on the previous version of the bill (the Surveillance Devices Bill 2014) on 4 July 2014 and attaches a copy for information.

The amendments that were made during the consideration of the 2014 bill by parliament, which addressed some of the Law Society's concerns, particularly to recognise that the use of a surveillance device in some circumstance can serve a legitimate and beneficial purpose, have been maintained in this bill. However, the society maintains its opposition to the issue of tracking and surveillance warrants by anybody except the Supreme Court and is particularly concerned at the prospect of information obtained by police with respect to an unconfirmed surveillance device being used as evidence. The Law Society goes on to say:

We see no proper reason why the Supreme Court should not continue to authorise the use of surveillance devices. It is a big jump for significant intrusions into privacy to go from being vested in the Supreme Court to the police. If, contrary to our submission, there is support for the Supreme Court to be divested of this function, we suggest that judicial oversight remain but be vested in the District Court or, at the very least, the Magistrates Court.

I note that in the previous incarnation of the bill we had a briefing from the police, as crossbenchers and opposition members, and I asked SAPOL whether or not it had asked for powers more broadly than those afforded to police in this legislation and its previous iterations. I was informed by the SAPOL officers who gave us that briefing that they had had no discussions with government calling for the broadening of the legislation beyond the police powers of this bill.

I note that the opposition has indicated support for the police powers of the bill and that in previous private members' bill debate on this matter and in previous government bill debate on this matter the police powers of the bill have not been found wanting for support, in fact they have been overwhelmingly supported, and certainly the numbers are there for those.

What I want to draw council members attention to tonight is the grave concerns that not just the Law Society holds, but indeed the Greens and other members of civil society hold about the broader powers within this bill. The Law Society goes on to say:

The most significant difference in substance between the Bill and the 2014 version appears to be the RSPCA exemption from the general prohibition against knowingly using, communicating or publishing material obtained through the use of a surveillance device in the public interest without an order from a judge. The Society's submission will, therefore, concentrate on this issue and matters related to it.

The Law Society focuses on that matter of the government's intent to accord the RSPCA special powers in an effort, I believe, to address concerns rightly raised with the government that this was an ag-gag bill.

The RSPCA themselves were somewhat surprised to find that they were afforded these special powers in the bill, and I know that I spoke at a rally just days after the CEO of the RSPCA of South Australia discovered that the RSPCA of South Australia were afforded these special powers in this legislation, and he went to great lengths at that particular rally to distance himself from those special powers and to reject them.

That public speech that day has been followed up with correspondence to the Hon. John Rau, Deputy Premier and Attorney-General, and I draw members' attention to some words. The first of these communications I will refer to was dated 22 October 2015, and the letter from the CEO, Tim Vasudeva, to the Attorney-General reads:

I note that we expressed serious concerns in relation to proposals contained within the 2014 Bill to change the prevailing public interest exemption which exists within the Listening and Surveillance Devices Act 1972.

We maintained then (and maintain now) that the prevailing provisions of the Listening and Surveillance Devices Act 1972 as they relate to recording and publication of matters which are in the public interest are appropriate and we do not support the proposed amendments to the existing public interest exemption.

So, these are the people who have been afforded the special powers and privileges in this bill by the government, by the Attorney-General, without consultation, saying to the government, 'Hang on, we don't want these powers, and in fact we think your bill is erroneous.' The letter goes on to say:

While we note the need to update the legislation to deal with advances in technology and devices capable of recording both audio and video, we do not believe this requires any associated change to the public interest test.

In addition, I had advised in my 27 August 2014 correspondence that RSPCA South Australia did not consider it appropriate that we be allocated a legislated role which equated to that of an arbiter of what is or what is not in the public interest.

So that puts paid to the theory that perhaps the Attorney-General was under a misapprehension that the RSPCA might welcome this move. In fact, they had made it very clear to him in 2014 that they did not want these special powers that he has brought forward within this legislation, and he went ahead and did it despite the fact that they told him that they had opposed it.

I believe it was a convenient narrative to present that the RSPCA was being afforded these special provisions in this particular incarnation of the Surveillance Devices Bill to silence the voices of those who had expressed their concerns that this was an ag-gag bill. Those voices certainly have not been silenced, and I am sure that members are aware of some of the correspondence coming from various animal advocates, including Voiceless and many others, not just the RSPCA. The RSPCA goes on to say:

Despite this, we note that the current draft of the Bill effectively allocates just such a role to the RSPCA South Australia. We are unsure why no consultation has taken place with us prior to tabling the proposed amendments as contained in the 2015 Bill.

Currently, matters of genuine public interest may be published by any interested party. Under the proposed amendments, media organisations and RSPCA South Australia would be the only bodies who would not require a court order to publish material in the public interest. This will create serious issues on a number of fronts:

Firstly, the courts system is already overcrowded and under-resourced.

I would think of all people in this state the Attorney-General would be mindful of this. The RSPCA letter goes on:

The current public interest test has not created any significant volume of case load for the courts, however the new proposals will almost certainly do exactly that as people would be forced to pre-emptively seek the approval of the courts in order to alert the community to matters of public significance.

Secondly, the proposals will create an unfair burden on poorly-resourced organisations or individuals who have access to material which is genuinely in the public interest but who cannot afford to pursue court approval. Matters of genuine public interest should not be adversely affected by the financial capacity of individuals or organisations endeavouring to do the right thing when it comes to these issues.

Thirdly, a significant volume of material recorded by individuals and organisations which they believe to be in the public interest are likely to be forwarded to media organisations and/or RSPCA South Australia. It will then be incumbent upon media organisations and RSPCA South Australia to review this significant volume of material on a daily basis and determine what, if any, represents information which represents matters of public interest. It is not our role to review or publish such material.

While there may be a presumption that media organisations will invariably publish matters referred to them of significant public concern, the presumption here is that these organisations will be able to cope with the volume of material likely to be referred to them by people and organisations hoping their information will be published. We do not believe this will be the case, and the proposals increase the likelihood that matters of genuine public interest may be overlooked simply because the media organisation is overwhelmed by material, or matters in question may not be seen as fitting with the priorities of specific media organisations, as opposed to them being considered on the basis of benefit to the community at large.

In relation to the approach taken with this draft Bill and the apparent determination to weaken the existing public interest provisions, we would question the public policy imperative which actually requires the introduction of these amendments.

We are not aware of any significant issues with the existing public interest test. If it were failing in its intended purpose, no doubt there would be a significant volume of matters before the courts where recordings, or publication of recordings, were alleged not to have been in the public interest. We are not aware of such developments.

My first question to the government is: could it provide evidence where the public interest test as it currently stands has failed the South Australian community? And I do not want to hear one more time about the Duchess of Cambridge sunbaking topless in France. It is irrelevant to South Australia. Indeed, in that case, they sought an injunction, which was upheld. It does not apply here. I would like South Australian examples to be provided by this government to justify why it is so arbitrarily, it seems, broadening and changing these particular laws without consultation and without any obvious imperative. The RSPCA goes on to say:

Accordingly, as we are unaware of any genuine issues which exist in relation to the current application of the public interest test and in the absence of any compelling evidence being presented by the South Australian government which would demonstrate that the current public interest provisions are ineffective, we are not supportive of the proposed amendments in this area.

Public advocacy and publication of material genuinely in the public interest under the existing legislation has played an extremely important role in exposing the exploitation of vulnerable and at-risk members of our community, including:

the elderly;

children;

members of the indigenous community;

the financially disadvantaged;

people experiencing mental health problems; and

animals.

We believe that the proposed amendments will significantly weaken the public interest protections that currently exist to support these vulnerable groups, including the capacity for related matters of public interest to be brought to light and debated by the community.

Kind regards,

Tim Vasudeva, CEO, RSPCA South Australia

This is the organisation which is included specifically in the government bill. This organisation rejects these powers and also raises concerns about curtailing the ability to publish or broadcast material in the public interest, not just for themselves but across the broader media and citizen journalist community.

I note that the RSPCA has been in conversation with Free TV on this matter. Free TV would be known to members as being quite strongly opposed to previous incarnations of this bill. Indeed, I would say that they are quite strongly opposed to this incarnation of the bill. Certainly Free TV have made their views known to myself and, I believe, to other members of this place. In their correspondence to the Hon. John Rau, Deputy Premier and Attorney-General, on 16 October 2015, they made that quite clear. They say in that correspondence:

Whilst some of our concerns previously raised in relation to the 2014 Bill have been addressed, we have very serious concerns about the Bill and its impact on the media in South Australia, and significant amendment is required.

Our view remains that there is no need to amend the current legislation. There is no evidence of policy failure under the Surveillance Devices Act 1974.

My question to the government again is: where is the evidence of policy failure under the current legislation? The Free TV correspondence goes on to request that members of parliament, who have also been circulated this letter that was sent to the Attorney-General, consider deletions or significant amendments to ensure that public interest is served for South Australians and that the very important work that the media does as the fourth estate, and online media as the fifth estate does as part of civil society, continues to flourish.

Interestingly, the definition of 'media organisation' that the government has employed does not draw on relevant federal acts. Of concern, I believe, Free TV Australia points out that the bill contains a definition for media organisation, which this government has put forward in legislation knowing it would be controversial, which is limited to:

…licensed or authorised broadcasters/datacasters, a constituent body of the Australian Press Council or a body which is authorised under Commonwealth law to engage in publishing.

This definition does not encompass all facets of the media, particularly the ever-growing and legitimate online social media forms of media and freelance journalists. Free TV points out that this legislation would not recognise as a media organisation Yahoo7—hardly a fringe dweller.

My next question to the government is: does the government have a particular problem with Yahoo7 and why does their definition not encompass them? In glancing at the Australian Press Council constituency, I noticed that InDaily is not contained within that, and I cannot see how InDaily complies with the government's definition of media organisation. My further question to the government is: can they explain how InDaily will be treated by this bill and whether or not they will be recognised as a media organisation?

Free TV has also advocated that, for example, The Guardian Australia will not be recognised under this bill as a media organisation as it is not a constituent body of the Australian Press Council. Also, The West Australian newspaper is not a member of the Australian Press Council, but it is a member of the Independent Media Council, which has a similar function. My further question to the government is: why did they not include references to the Independent Media Council? How did they come to draft the definition of 'media organisation' that they put forward in this legislation?

I ask also why they are discriminating against the Labor Herald, given they are a Labor government? I would have thought they would want to support their own media outlet but, if they could clarify whether or not the Labor Herald falls within their definition, that would be of use. If the government could in fact provide a list of all the media organisations that do comply with their legislation, that would be helpful.

I am happy, if required, to provide them with a copy of the Australian Press Council constituency, which is easily accessible on the web, and they can cross-reference there to see which of them is particularly South Australian—but of course the media does not know borders in this day and age, and South Australia may indeed expose illegality, corruption or cruelty online well beyond South Australian borders. Can the government give some explanation as to how they came to draft the particular description that they did and why they have chosen to exclude those media outlets that I have raised so far? Free TV goes on to state:

If the definition were to remain as it is, many well-established and entirely genuine providers of news and current affairs would be unable to utilise the exceptions in the Bill, despite the fact that they may have legitimate interest in relying on such exceptions, particularly the public interest exceptions. The dissemination of important news stories and information would thus be inappropriately restricted.

The Free TV submission goes on to say:

No changes have been made to the definitions of 'optical surveillance device' and 'listening devices' as they appeared on the 2014 Bill—the definitions still focus on the capacity as opposed to the use of such devices. Consequently, all cameras, filming equipment and recording devices, which most people carry around in the form of their smartphones or tablets, are caught by these definitions.

Free TV goes on to say:

The definition of 'premises' is the same as in the 2014 Bill: the definition does not limit the offence provisions in this bill.

New to the Bill is the definition of 'private activity'. While we accept that given the broad range of activities to which the definition will need to apply, the reasonableness test is too uncertain in that there is no yardstick to discern what is a private activity vis-a-vis a public activity.

The definition leaves open the possibility that activities which take place in public places may nevertheless be private activities; when that is coupled with the requirement to obtain a person's consent (as described below) and the broad definition of 'optical surveillance device', an onerous burden is placed, not just on the media, but on any person using such devices to obtain the consent of persons recorded, including inadvertently. For example, it would be absurd for a person using a recording device to record a friend or family member in a public place, such as Rundle Mall, to inquire with every person who is incidentally captured in that recording whether that person consents to being recorded. Requiring the consent of every person captured in the recording in circumstances where that is not feasible means the provision has no utility.

Another issue is whether the fact that an activity occurs on private land is enough to render an activity private for the purposes of the definition. In the absence of the owner of private land, a person would be left to determine whether any activity occurring on that land is private by reference to inanimate objects such as the height of a fence, the transparency of a fence, signs, whether doors on sheds or other buildings are open or closed and whether the activities appear to be occurring behind buildings or other objects so as to obscure them from passers-by. The application of the definition in such circumstances would simply produce too uncertain a result for any person attempting to comply with the legislation.

The parameters of private activity should be confined and made clearer. An exemption for inadvertent or incidental surveillance (as appears elsewhere) should also be included in the bill.

The submission goes on to cover optical surveillance devices and notes that:

Subclause 5(1) of the 2014 Bill prohibited the use or installation of optical surveillance devices which involved unlawful entry or unlawful interference with land, a vehicle or any other thing to record a person's activity. Subclause 5(2) of the bill limits that prohibition to the recording or observation of a 'private activity' and includes a further requirement to obtain the consent of the parties to the private activity.

Subclause 5(2) of the 2014 Bill prohibited the use of optical surveillance devices on a person's premises, a vehicle or any other thing to record an activity, except in two circumstances: where the activity was carried out predominantly on/within:

(a) the person's own premises or vehicle; or

(b) a public place.

Subclause 5(1) of the Bill has removed those two exceptions such that that prohibition applies regardless of the location of the activity and whether that person has lawful possession or control of the premises, vehicle or thing.

At first glance, the 'private activity' criterion appears to narrow the ambit of the prohibitions against the use of optical surveillance devices in subclauses 5(1) and (2); however, the requirement that the person using the device obtain the consent of persons captured by that recording (i.e. parties to the private activity), coupled with the uncertainty of what constitutes a 'private activity', counteracts any limiting effect the criteria may have.

The inclusion of this criterion inhibits the capacity of the media to publish material in the public interest (i.e. material which uncovers illegal, unscrupulous, unethical or antisocial behaviour) which can result, and often has resulted, in changes to laws, criminal convictions, public warnings and disciplining of public officers.

Free TV then goes on to address the public interest exception with regard to the media and states, as did the RSPCA:

There is no evidence, nor is there any suggestion, that the media is not acting in the public interest when, on occasion, surveillance devices are used during the course of reporting the news or presenting current affairs programmes. Further, there are legal avenues already available to persons aggrieved or affected by the use of surveillance devices. We believe that the current regime in the Listening and Surveillance Devices Act 1972 (SA) is adequate to deal with the use of surveillance devices and that no legislative changes are required.

Bearing that in mind, the public interest exception contained in clause 6 of the Bill is too narrow—it applies only to the use of a listening or optical surveillance device by a party to the private conversation/private activity.

The scope of that exception means that it cannot be utilised by the media unless the person representing the media in a given scenario is a participant in/to the private conversation/activity. In the case of a news reporter, to fit within the exception, the reporter would need to be participating in whatever activity they are recording. Such an act may not accord with the practice of many journalists, as many journalists may simply observe an activity as opposed to actually participating in the activity. This demonstrates the exception does not contemplate or take into account how the media operates.

If it is intended that a person recording an activity will be considered to be a party to that activity simply because of their act of recording the activity, that should be made clear.

More specifically, for the purposes of subclause 6(2)(a) it is unclear whether a person recording an activity not involving a person (eg animals or machinery) is a party to that activity simply because of their act of recording the activity. If the answer to that proposition is no, then the person wanting to record the scene would need to determine whether the absent person may reasonably be taken to have indicated that they do not wish such activities to be observed. In such circumstances, an assessment would need to be made by reference to non-human factors such as the state of the premises (eg the height of the fence or the use of signs) which may not conclusively determine whether the activity is private or not and which, once again, would produce too uncertain a result for any person attempting to comply with the legislation.

Such issues highlight the impracticalities which persons wishing to make use of the public interest exemption in clause 6 may face.

I note on this that there have been cases where we could look into the crystal ball of the Rau world of how the public interest test will be observed, and that is where injunctions have been taken out on media organisations who have attempted to expose behaviours in the public interest. The example I will draw members' attention to is that of Conroy's abattoirs. In 2001, Channel 7 was contacted by a whistleblower who was employed at the Port Pirie abattoir. He had attempted to raise concerns of illegal use of marijuana in the workplace, breaches of health and safety laws and quarantine requirements by fellow workers but had been rebuffed. He offered to take a hidden camera into the quarantine area to prove his allegations.

He did so on three occasions and each time the workers were smoking marijuana, and drinking and eating in an area where signs indicated such conduct was prohibited. On one occasion, a supervisor entered to warn the workers to avoid this behaviour on a particular day where there was a scheduled AQIS inspection. The footage also showed that workers who had been smoking marijuana were not complying with health requirements on the abattoir floor. Channel 7 contacted the abattoir owners who refused to comment. The promotion for the investigative report showed some of the covert footage and raised concerns about public health dangers. After the promotion aired, an injunction was sought by Conroy's on the basis that the material was defamatory of the owners and would affect the viability of the company, particularly as an exporter.

The District Court initially granted an injunction because of the possible commercial impact the broadcast would have and as they considered that they did not have enough evidence before them to say that the activities were a danger to public health. The only way to defeat the injunction was to go to trial. This took four years and resulted in an 11-week trial which ran over nine months.

Save for one issue—that is where the owners had turned a blind eye to the unsafe practice—the trial judge found in favour of Channel 7 and overturned the injunction. He found that the meatworkers smoking marijuana was a safety risk to the workers, as well as putting the health of South Australian members of the public at risk. However, the entire process cost Channel 7 many hundreds of thousands of dollars and delayed the broadcast of the important investigative report for several years.

The trial took four years and cost many hundreds of thousands of dollars. This is serving the public interest in Rau world. I do not want to live in Rau world. I would like to live in the world that we currently live in where the public interest is currently served, does not clog up our courts, and works perfectly well. It is not broken; I am not sure why, in Rau world, we need to fix it.

In the meantime, of course, Conroy's had several listeria outbreaks, and one man died from eating infected Conroy's products. Conroy's were then also fined on a number of occasions for breaches of food safety codes. This is an example of how this legislation will affect the work of media serving the public interest in our state. In that case, many hundreds of thousands of dollars were expended, many years were taken and, not to put too fine a point on it, lives were lost.

The legislation that we have before us certainly has been controversial in the past. In previous presentations to this council on this bill, I have raised the concerns of the union movement and those who represent workers in this state. Grave concerns have previously been expressed by Voices of Industrial Death, by the Maritime Union of Australia and by the CFMEU of South Australia about this legislation and the impact it will have on the ability to expose illegality, cruelty, corruption and things that are not serving workers. I ask the government: has it consulted with those groups that I previously raised in this debate as having concerns with the previous incarnations of the bill? They have put it on the public record that previously they did not support the direction that the government had taken.

The Law Society bells the cat on this bill. It was introduced as somehow the souped-up new model that would fix the problems that had thwarted its passage through this place in previous years, with the government proudly boasting that it was not an ag-gag bill. The Law Society, for one, states in its submission that it does not support ag-gag laws and notes that ag-gag is a term that originated in America and is used to describe legislation that attempts to stifle public awareness and discourse in respect of animal welfare and environmental protection in agribusiness.

The Law Society, in its submission to the Attorney—and circulated to all of us as members of parliament—stated that it is of the view that section 10 of the bill, if passed, has the potential to have a harmful effect on animal welfare in Australia. It goes on to state that:

It is the view of the Society that section 10 of the Bill is in actuality an ag-gag law. Whilst the Bill was meant to address, inter alia, changes in technology and cross-border recognition of warrants, section 10 is about targeting undercover investigations into animal cruelty. Our view is somewhat supported by the various comments made by the members of Parliament including the Attorney-General during the debate of this Bill.

The Law Society submission continues:

We note the Attorney-General's statement in the House of Assembly on 15 October 2015 that there is no protection for farmers from animal activists. That is untrue. There are a myriad of laws that protect citizens from intruders such as laws that address trespass. Similarly, defamation laws provide a remedy to those who are of the view that their reputation is being tarnished as a consequence of unfair reporting of their practices.

The Law Society goes on also to say:

We have been unable to find any laws in any of the States or Territories in Australia that reflect the types of laws proposed by [section 10 of] the Bill. Similarly, we have been unable to find any laws like those proposed by the Bill in New Zealand, Canada or the United Kingdom.

So my final question to the government, because I will have many questions when we get to the committee stage of this bill, is: on what model has the government based this bill outside of the police powers part of the bill? Where is the proposed reversing of the public interest test, put forward by this bill and seeking to be legislated, working?

In what jurisdiction can we look at this model and ensure that, unlike that case in South Australia where Conroy's took out an injunction, this will not see media organisations and other legitimate bodies having to go through the courts in incredibly lengthy proceedings and expensive costs to themselves both in terms of their capacity and, of course, their finances and indeed putting lives at risk in the long term? How does this bill work in any other jurisdiction, or is it just a fiction of Rau world? I would like an answer to those questions before we proceed beyond clause 1.

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) (22:16): I believe that that finalises the second reading contributions. I will just briefly outline that I intend to do a second reading response and put some of the answers to questions and comments that the Hon. Andrew McLachlan made in his second reading contribution on the record now. I understand that the Hon. Tammy Franks has raised some questions in her second reading contribution. I have indicated that at clause 1 of the committee stage, which I will make an order for the next day of sitting, we will deal with those issues. I intend to adjourn until the next day of sitting after I have completed this second reading contribution summary.

I thank honourable members for their second reading contributions. The Surveillance Devices Bill 2015 is an important measure to overhaul and bring up to date with modern technologies the law dealing with electronic surveillance. There is a need to amend the current Listening Devices Act 1972, as, amongst other things, it provides no regulation of protection against the use of optical surveillance devices or data tracking devices.

The bill is a result of extensive consultation that has taken place over a number of years. The government has listened to the debate and concerns that have been expressed about the various iterations of the bill in the past years. The government has responded to the resistance expressed to the proposed amendments in previous years, with concessions in the 2015 bill to appropriately address the concerns of the opposition and other parties to the legislation.

I thank the opposition at this point in time for their constructive approach and support. It is clear that the bill strikes a balance between the competing interests of an individual's right to privacy with broader public interest concerns. The bill also reviews and expands the powers of law enforcement agencies in relation to surveillance. I am pleased that the proposed amendments made by the bill for law enforcement purposes appear to be without contention.

The Hon. Andrew McLachlan has raised in debate concerns expressed about the bill by Free TV and the RSPCA, and I think the Hon. Tammy Franks also raised concerns around those issues. Free TV has queried the scope of public interest exception contained in the bill. The bill provides that it is an offence to use, communicate or publish information or material derived from the use of the surveillance device in circumstances where the device was used in the public interest, except in accordance with the order of a judge.

In response to the concerns raised about the public interest exception in the 2014 bill, the 2015 bill provides an exception to the general rule requiring an order of the judge for media organisations and the RSPCA. Free TV argues that the bill should include a general public interest exemption for the use, communication or publication of material derived in the public interest. It claims the exemption from an order of a judge should be at large and not limited to media organisations or the RSPCA.

It is their view that the media organisations and the RSPCA are not the only bodies with an interest in disseminating material in the public interest. The requirement of a judicial order where material is sought to be used, communicated or published in the public interest provides a safeguard against the dissemination of material that can cause irrevocable harm or damage to an individual or organisation where there is not a legitimate public interest in the material being placed in the public arena.

The exemption provided to media organisations and the RSPCA is one of the concessions made by the government when introducing the 2015 bill. It acknowledges that certain outlets and organisations have ethical and professional obligations to use the published materials in a responsible and appropriate fashion and removes the precondition of a judicial imprimatur for those organisations. It balances the competing interests of an individual's right to privacy and larger conflicts of public interest.

Free TV asserts that the definition of 'media organisation' in the bill is too narrow. In response, there must be some regulation of who can avail themselves of an exemption from a judicial order. The exemption is not intended to apply to any individual with a website or blog who claims to be a media organisation. The definition of a media organisation in the bill was designed carefully to strike an appropriate balance between individual rights and public interest.

The government has listened to concerns expressed and is willing to compromise. It will propose an amendment to allow genuine media organisations to apply to the government to be listed in regulations. This will ensure that legitimate media organisations that are not covered by the scope of the bill, including The Guardian Australia, Yahoo7 and The West Australian newspaper, will be able to apply to be included as an exempt organisation.

The requirement of a judicial order is not an onerous one, particularly when weighed against the damage that can flow from the irresponsible and careless use of surveillance material and the legal consequences that can follow. It is a requirement that is enacted in the Western Australian legislation, seemingly without issue, and while Free TV claims that there should be a public interest exemption at large, such a claim appears to have little regard to the terms of the provision that provides an exemption for judicial order not only for media organisations but for information or material that is used, communicated or published to such media organisations from another party.

There is no intention to hinder or stymie the free flow of information in the public arena; rather, the bill safeguards how that information can be used and disseminated. Free TV is of the view that there are organisations other than the RSPCA that have a legitimate interest in being able to use material that is captured by surveillance devices in the public interest. The RSPCA has indicated that it does not wish to be allocated a legislative role in being exempt from the requirement of a judicial order to publish material captured in the public interest.

The RSPCA argues that the public interest exemption contained in the current legislation is sufficient and requires no amendment. As a result of consultations with the RSPCA, the government will propose an amendment to delete the specific statutory exemption. Free TV states that the installation, use or maintenance of a listening or optical surveillance device in the public interest should extend beyond those who are party to private activity. Such an argument fails to recognise that the exemption is directed towards the surveillance of private activities that are not intended to be observed beyond those who are party to the activity. Where third parties become involved, the notion of an activity being a private one becomes questionable.

Similarly, Free TV argues against the reasonableness test being imported into the definition of private activity, claiming it is too uncertain to test to permit compliance with legislation. The definition of private activity in the bill is consistent with other jurisdictions. However, the reasonableness test is one that is commonly used throughout statute and common law and will allow for the development of a test that reflects community standards.

What amounts to a private activity will necessarily be a matter of fact to be determined in the circumstances of a particular case. Like many aspects of the law, a common-sense approach is required but, again, the government is willing to compromise in the interests of moving the business on in a sensible and defensible way.

The amendments in this area proposed by the Hon. Andrew McLachlan accord with the principle and will be supported. Free TV is also of the view that there should be a public interest exemption to material derived from the use of surveillance devices by law enforcement authorities prior to such material reaching the public domain, for example, prior to material being tendered as evidence in court proceedings. Plainly, the public interest in protecting the covert activities and investigations of law enforcement agencies should be paramount and weigh against such exemptions for surveillance material captured and used for law enforcement purposes.

I can advise that the government has paid careful attention to the concerns that have been agitated in previous years to the reforms proposed by the bill. The bill addresses these concerns in significant ways. Together with the amendments proposed by the Hon. Andrew McLachlan and the government, the bill will occupy a sensible middle ground, and long sought and overdue reform in many areas, we hope, will be advanced. I therefore commend the bill to the house and look forward to its swift passage.

The ACTING PRESIDENT (Hon. T.T. Ngo): The question is that the bill be read a second time. The ayes have it.

An honourable member: Divide!

The ACTING PRESIDENT (Hon. T.T. Ngo): There is only one voice for the noes, so you cannot divide.

Bill read a second time.

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