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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Bills

Surveillance Devices Bill

Committee Stage

In committee.

Clause 1.

The Hon. G.E. GAGO: The Hon. Tammy Franks raised a couple of questions during her second reading contribution for which I have answers, and I indicated that I would take time at clause 1 to provide those answers. In relation to the Hon. Tammy Franks's question about the provision of evidence where the public interest test, as it currently stands, has failed and whether there has been evidence of policy failure, there is a significant need to reform this very out of date area of legislation. The government receives correspondence from members of the public about security cameras that are pointed towards adjacent properties, sometimes intentionally or unintentionally, depending on whether neighbourhood disputes are involved or not.

In relation to the Hon. Tammy Franks' question about the scope of the definition of 'media organisation', the government has proposed amendments to the definition of 'media organisation' and will enable those that would not fall within the scope to be included in regulation if the government is of the opinion that they are legitimate media organisations. Furthermore, the definition was never intended to cover all areas of the industry. Organisations that do not fall within the scope of the definition will still be able to apply for a judicial order.

In relation to the Hon. Tammy Franks' question about consultation with various industry groups, the government did not consult with these groups prior to the introduction of the 2015 bill but has considered their concerns in this and previous iterations of the bill. These matters have been considered for many years. Like animal welfare groups and other interest groups, industrial organisations will be able to use the various methods provided in the bill to communicate and publish information that is in the public interest.

In relation to the Hon. Tammy Franks' question about what model the government has based this bill on, I have been advised the government has based this bill on several interstate acts as well as included its own provisions that it considers appropriate. The bill is considered by the government to be an appropriate middle ground between interstate acts that are both more or less restrictive in nature. Examples include those in New South Wales, Victoria and Western Australia, and in those states the act appears to work, I am advised, without any significant issues.

The Hon. K.L. VINCENT: I indicate very briefly that Dignity for Disability also has significant concerns about the current drafting of this bill, particularly the requirement to get a court order to pass a public interest test. We have a question about how this would affect not only animal welfare organisations but, say, individual workers in a residential care setting—in an aged care home, for example—or even at a disability service provider where abuse is often not uncovered until a particular individual films it. If you need any examples of this, look at the Yooralla case in Victoria or even the Winterbourne View case in the UK where a journalist got a job undercover as a disability support worker and, with a secret camera, uncovered horrific abuse which led to the shutting down of that particular home. So, we have significant concerns about what this could lead to and, for that reason, we will support the Greens' amendment.

The Hon. A.L. McLACHLAN: I thought I might quickly outline the plan of attack from the Liberal Party's perspective. The Liberal Party will be pursuing its amendments. We understand and are thankful that the government is agreeing to support our amendments Nos 2, 3, 4 and 5. We will be supporting the government's amendments in relation to the removal of the RSPCA. The government and the Liberal opposition have not come to a meeting of minds in relation to clause 3 and the definition of 'media', and we will have that debate in this committee stage.

I flag to the committee that I may be seeking to move a motion to recommit back to clause 3, depending on the outcome of the committee, potentially to enable more time for parties and members of the Legislative Council and the relevant ministers in the other place to potentially come to some sort of agreement. Otherwise, obviously the bill will ultimately have to pass.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. G.E. GAGO: I move:

Amendment No 1 [EmpHESkills–1]—

Page 5, lines 26 and 27 [clause 3(1), definition of media organisation, (b)]—Delete paragraph (b) and substitute:

(b) any other organisation prescribed by the regulations;

This amendment addresses concerns raised by the opposition and media groups that there will be some media organisations which do not fall within the definition of the clause as it is currently written. By allowing organisations to be prescribed by a regulation the government will be able to include genuine media organisations.

The Hon. A.L. McLACHLAN: The legislative mechanism to be moved by the government and proposed by the Attorney, of course, is that by regulation a list of relevant media organisations will be incorporated, effectively, by reference through the regulations. It is our understanding from those bodies that have made representations to us that this is unacceptable to them at this stage.

We have proposed a different amendment which we will come to which has, obviously, a broader definition within the act. So, at this point in time the Liberal Party's view is that it would prefer to have a definition of 'media organisation' rather than a list incorporated by regulations. Accordingly, I now move:

Amendment No 1 [McLachlan–1]—

Page 5, lines 21 to 27 [clause 3(1), definition of media organisation]—Delete the definition of media organisation and substitute 'media organisation means an organisation whose activities consist of or include the collection, preparation for dissemination or dissemination of the following material for the purpose of making it available to the public:

(a) material having the character of news, current affairs, information or a documentary;

(b) material consisting of commentary or opinion on, or analysis of, news, current affairs, information or a documentary;

Our definition is broader than the definition that is currently in the bill. So, the question for members of the chamber is what is the scope of what they want to define as 'media'.

Certain media organisations complain and have submitted to us that they do not come within, necessarily, the definition that is set out in the original drafting of the bill as tabled by the government. This is broader and is taken from the commonwealth Privacy Act, and is expansive, and would include the capture of anyone that is in modern media and modern contribution to the internet, as we would understand its drafting.

There have been some counterarguments expressed that the 'new media', if I could call it that, should not be included. So, the debate we are having is: should it be restricted to particular media, and the government say, 'Yes, those which are recognised'—and I should say probably traditional media—and whether it should extend to new media where people are making contributions to discussion groups, for example, on the internet. Also, this broader definition captures material which would be delivered to traditional media.

We are really debating on this clause the dividing line between what is media; and the government says 'traditional media'. Because of the representations made to them, they have sought to allay concerns of particular industry groups by saying that they will consider a list incorporated by regulation, which is why they have moved their amendment. At this point in time, our position is that we consider a broader definition of media.

It really depends on your personal heuristics, where you view who should be an actor under this bill when it is enacted, and if you take the narrow view because you wish restricted, then you would probably seek a narrower definition. If you are minded, as we are at the moment, that more individuals or organisations should be included then you would perhaps side towards the position of the opposition. I will not speak on behalf of the Greens, but there is a further view, of course, of an even more broader approach.

The Hon. T.A. FRANKS: I would like to put on record that, yes, the Greens do have an amendment in this clause but first I would like to note that the opposition has indicated that they will probably seek to recommit this clause. The Greens welcome that approach, and we call on the government to explain to the chamber how we can trust them to get this right in the regulations when they could not get it right in the bill itself. Why did they leave the West Australian newspaper out? Why they leave The Guardian online out of their original definition? Why did they leave Yahoo7? Those three organisations are well recognised, reputable media organisations. Can the government clarify whether or not InDaily complied with the previous definition?

The Hon. G.E. GAGO: The government rises to oppose this amendment. We believe that the amendments we have filed in terms of the way we propose to deal with this through regulation more than adequately deal with this issue, and the amendment proposed by the Hon. Andrew McLachlan is just far too broad and we do not support that. For instance, I have been advised that anyone who is a blogger could describe themselves as media and would be able to have access through the Hon. Andrew McLachlan's amendment. Clearly the government does not believe that all bloggers, just by virtue of the fact that they blog, should have right to be considered to be media.

With the issue Hon. Tammy Franks raises, the government in its first consideration of these matters made a decision to have a narrow group of media eligible to apply, and that is why some of these other organisations were left off. It has now gone away, listened to what people have said, reconsidered its position and has now come forward with a compromise position, that is, to use regulation to allow any genuine media outlet to have access to this. We believe we have done the right thing, we have listened to the concerns of people and we have made provisions and compromises accordingly.

The Hon. T.A. FRANKS: Can the government explain why they left out the West Australian, Yahoo7, The Guardian online and possibly InDaily, and confirm whether or not InDaily did or did not fall within their previous definition, noting that their previous definition actually covered many hundreds of media organisations, many of which would equate to quite localised, very small operations.

The Hon. G.E. GAGO: I have already answered the question and that is that when we first looked at it we looked at a much narrower range and made a selection accordingly.

The Hon. D.G.E. HOOD: I thank the Hon. Mr McLachlan for explaining his amendment. As he explained it was my understanding of it, but I thank him for that. I am inclined to support the Hon. Mr McLachlan's amendment, the reason being that, in an age of expanding media, it will be increasingly difficult under regulation to nominate each individual organisation that is considered. The onus, as I understand it, under the government's amendment, is for them to apply, but they may not know that they need to apply, which is the problem with it. As it stands I am open to negotiation on this. To be honest, I am probably not completely convinced by the Hon. Mr McLachlan's amendment either, but I think it provides the best way forward at this point. We may end up recommitting, as the Hon. Mr McLachlan has indicated, in which case there may be agreement between the government and the opposition, but as it stands I will support his amendment.

The Hon. G.E. GAGO: The government is prepared to make the assurance that it will make it publicly known that this exemption is available for genuine media outlets.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–1]—

Page 5, lines 21 to 27 [clause 3(1), definition of media organisation]—Delete the definition of media organisation

This amendment seeks to delete the definition of 'media organisation'. It does so because if consequential amendments, the removal of clauses 9, 10 and 11 in amendments 20, 21 and 22, were to be successful we could simply be reverting to the status quo. We have a system at the moment where the public interest is served, where we have a robust and healthy fourth and fifth estate, and the system is not broken. We are still not convinced of why Attorney-General Rau is seeking to fix and possibly bugger up something that works perfectly well at present.

In doing so, I indicate obviously the Greens have grave concerns about the government's foray into this area. We have already seen, in the first raft of debate in this, the government miss quite legitimate, quite well-known media organisations such as Yahoo7, one of the biggest media organisations in the country. We have grave concerns about whether the government will get it right in regulations, and we know it is difficult for regulations to then have parliamentary scrutiny.

The government has not been able to get this bill right without the upper house having a look at it and without feedback from its constituents. We note that the feedback from some constituents from Free TV, from the RSPCA, may have been listened to by the Attorney-General, but it certainly was not heard, it certainly was not acted upon and, indeed, he acted contrary to their requests.

We of the Greens believe, as I say, that the system is working perfectly well. When I first looked at this issue a week ago, I had similar amendments to those that the Hon. Andrew McLachlan puts this week but they were actually the second best option. The first best option is simply to leave the system as it is. It is not broken, let's not try and fix something and possibly bugger it up.

So the Greens will support the Liberal amendments today. We welcome a reopening of this clause and a recommittal of this clause. We look forward to the government providing further information about how they will approach this issue. We do not understand why the government simply did not use the Commonwealth Privacy Act in the first place—it is a commonwealth act, it has been well consulted on—rather than trying to create their own definition which has already been shown to have massive holes in it.

With those few words, we look forward to further information being forthcoming from government about how they will define media organisations, and how they will ensure that they get it right in regulations since they could not get it right in this legislation.

The Hon. D.G.E. HOOD: I will not prolong matters but I think another issue with the government's proposal is—and correct me if I am wrong, but I understand that the mechanism for this chamber or for the other chamber would be to disallow the regulation should either house disagree with the government's listing of an individual or group of proposed media organisations.

The problem with that, according to my understanding, is that it would potentially knock out others as well that the chamber did not agree with. It is a blunt instrument is my point. So I think it creates a difficult situation. I think the government is on the right track of expanding those included, but I do not think the instrument being chosen is reliable or efficient enough, frankly.

The Hon. J.A. DARLEY: I will be supporting the Liberal amendment.

The Hon. G.E. GAGO: The government rises to oppose the Hon. Tammy Franks' amendment, and we consider this to really be a test clause for her further amendments because they are all sort of related. The amendment and many other of the consequential amendments proposed by the Hon. Tammy Franks are opposed on the basis that they radically alter the effect of the bill. These amendments would seek to remove several clauses of the bill and provide a limitation to the public interest and lawful interest tests for the communication or publication of information and material derived from surveillance devices.

The government believes that these clauses are necessary to ensure that information and material derived from surveillance devices and, in particular, footage of private activities, is communicated and published in a responsible manner. An individual has a right to privacy that must be balanced against a broader public interest matter. The best way to do this is by requiring some form of oversight and in this case it is judicial oversight to the process of publishing material that is often obtained covertly. Given the enormous damage that can result to an individual's life and reputation when such material is published, it is only just that they are afforded some measure of protection.

The CHAIR: If there are no further speakers, there are three amendments here all doing various things so if you are supporting the government's amendment I will put the question that all words down to and including paragraph (a) of the definition of media organisation stand as printed. If you support that, you support the government's amendment.

The Hon. Ms Gago's amendment negatived.

The CHAIR: I will put the question—these are both amendments from the Hon. Mr McLachlan and the Hon. Ms Franks—that the remaining words in the definition of media organisation stand as printed.

The Hon. T.A. FRANKS: To clarify, I only moved my first amendment because the other two reflect the same as the Hon. Andrew McLachlan's, so I did not bother to move them.

The CHAIR: Yes, there will be a further step. If you support the Hon. Mr McLachlan and the Hon. Ms Franks you need to vote against this.

Question—that the remaining words in the definition of media organisation stand as printed—negatived.

The CHAIR: The question now is that the new definition of media organisation as proposed to be inserted by the Hon. Mr McLachlan be so inserted.

The Hon. Mr McLachlan's amendment carried.

The Hon. A.L. McLACHLAN: I move:

Amendment No 2 [McLachlan–1]—

Page 6, lines 27 to 29 [clause 3(1), definition of private activity, (a)]—

Delete '(but does not include an activity carried on in circumstances in which the person ought reasonably to expect that it may be observed by some other person); or' and substitute:

, but does not include—

(i) an activity carried on in a public place; or

(ii) an activity carried on or in premises or a vehicle if the activity can be readily observed from a public place; or

(iii) an activity carried on in any other circumstances in which the person ought reasonably to expect that it may be observed by some other person; or

Amendments Nos 2, 3, 4 and 5, standing in my name—even though I appreciate we are only on amendment No. 2—relate to refining some of the definitions and also relate to some of the applications of the act but they are supported by the government, as indicated by the Leader of the Government in this chamber.

The Hon. G.E. GAGO: The government supports all three amendments.

The Hon. T.A. FRANKS: I have a question for the government as to why its definition defined a private activity as an activity carried on by only one person. Does the government not believe that a private activity can be carried on by more than one person?

The Hon. G.E. GAGO: You need to go to paragraph (b), one paragraph below that. Paragraph (a) deals with issues to do with one person and (b) more than one.

The Hon. T.A. FRANKS: Why did the government feel it needed to define a private activity in (a) as carried on by only one person? What is the nature of something being carried on simply by one person that denotes it as somehow private: why did the government choose that definition? Why did it insert that clause into its legislation? I would just like the government to give us an explanation as to what the history was, given there was a lack of consultation on this bill.

An honourable member interjecting:

The CHAIR: Order!

The Hon. G.E. GAGO: I am advised that we included paragraph (a) to clarify that private matters may only involve one person. The 2014 bill lacked that clarity. It only talked about more than one person, so it could have been argued that if only one person was involved it may not have been captured. To ensure that it was, it was dealt with in paragraph (a).

Amendment carried.

The Hon. A.L. McLACHLAN: I move:

Amendment No 3 [McLachlan–1]—

Page 6, lines 32 to 35 [clause 3(1), definition of private activity, (b)]—

Delete '(but does not include an activity carried on in circumstances in which all parties to the activity ought reasonably to expect that it may be observed by a person who is not a party to the activity);' and substitute 'but does not include—'

(i) an activity carried on in a public place; or

(ii) an activity carried on or in premises or a vehicle if the activity can be readily observed from a public place; or

(iii) an activity carried on in any other circumstances in which a party to the activity ought reasonably to expect that it may be observed by a person who is not a party to the activity;

Amendment carried; clause as amended passed.

Clause 4.

The Hon. T.A. FRANKS: I move:

Amendment No 4 [Franks–1]—

Page 9, line 28 to line 35 [clause 4(1)]—Delete subclause (1) and substitute:

(1) Subject to this Act, a person must not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not the person is a party to the conversation, without the consent, express or implied, of the parties to that conversation.

Maximum penalty:

(a) in the case of a body corporate—$75,000;

(b) in the case of a natural person—$15,000 or imprisonment for 3 years.

(d) a corresponding surveillance device (emergency) authority.

This amendment seeks to replace the proposed prohibition with a more simplified offence and excludes situations in which the consent of the parties to the conversation has in fact been provided. Use of the word 'intentionally' requires an element of deliberateness which is more appropriate for offences and avoids application to inadvertent acts.

I note that amendments Nos 4, 5 and 6 of mine follow on from this. What I would say is that this was advice from Free TV Australia and its legal team. They advised the Greens, and I believe other members, including the Attorney-General, that the language we have included in this amendment is more appropriate to cover the field.

The Hon. G.E. GAGO: The government opposes this amendment, for the reason that it has already been put on the record.

The Hon. A.L. McLACHLAN: The Liberal Party will not be supporting this amendment.

Amendment negatived.

The Hon. T.A. FRANKS: I move:

Amendment No 7 [Franks–1]—

Page 11, line 14 [clause 4(3)]—Delete 'from subsection (1) that applies under subsection (2) or section 6' and substitute 'under this section that applies'

This amendment removes the reference to clause 6, as that is no longer needed if the public interest is inserted into specific clauses as proposed. The clause still seeks to ensure that an exemption applies to a person in relation to the installation, use or maintenance of a listening device for the purposes of the investigation of a matter by an investigating agency. It extends to another person who for the purposes of the investigation installs or maintains that advice. Again, this has been put to us by Free TV Australia.

The Hon. G.E. GAGO: The government opposes this amendment for the reasons already outlined.

The Hon. A.L. McLACHLAN: The Liberal Party will be opposing this amendment.

Amendment negatived; clause passed.

Clause 5.

The Hon. T.A. FRANKS: I move:

Amendment No 9 [Franks–1]—

Page 11, line 22 [clause 5(1)]—Delete 'section and section 6, a person must not knowingly' and substitute 'Act, a person must not intentionally'

This deletes the term 'a person must not knowingly' and substitutes 'a person must not intentionally'. Again on advice from the legal team at Free TV Australia, this amendment deletes that word 'knowingly' and substitutes it with 'intentionally', as it is more appropriate for an offence under the act to require intention as an element. Amendments Nos 9, 10 and 11 match this amendment and are consequential.

The Hon. G.E. GAGO: The government opposes this amendment. We believe that it narrows the clause and will only serve to provide a technical loophole for people to exploit.

The Hon. A.L. McLACHLAN: The Liberal Party opposes the amendment.

Amendment negatived.

The CHAIR: Amendments Nos 10 and 11 would be consequential?

The Hon. T.A. FRANKS: Yes.

The CHAIR: We now have amendment No. 1 [Franks-1] clause 5. Is it consequential, by any chance?

The Hon. T.A. FRANKS: My understanding is that it is consequential.

Clause passed.

Clause 6.

The Hon. A.L. McLACHLAN: I move:

Amendment No 4 [McLachlan–1]—

Page 9, line 28 [clause 4(1)]—Delete 'knowingly'

Amendment No 5 [McLachlan–1]—

Page 9, after line 35—After subclause (1) insert:

(1a) It is a defence to a charge of an offence against subsection (1) to prove the defendant did not knowingly use a listening device to record the private conversation to which the defendant was or was not a party.

Example—

The recording of the private conversation took place accidentally or in circumstances where the defendant did not know that conversations were being recorded.

The amendments are supported by the government, as indicated in the government's summing up of the second reading debate. The existing exemption contained in clause 6(1) allows for the use of a listening device wherein the public interest only applies to a party to the private conversation. The proposed amendment removes this requirement and permits the exemption to be applied to anyone who uses a listening device to overhear, record, monitor or listen to a private conversation if the use is in the public interest.

The Hon. G.E. GAGO: The government supports the amendments.

Amendments carried; clause as amended passed.

Clause 7.

The CHAIR: Amendment No. 17, the Hon. Ms Franks?

The Hon. T.A. FRANKS: This one certainly is consequential.

Clause passed.

Clause 8.

The CHAIR: Amendment No. 18 [Franks-1]. Is this consequential?

The Hon. T.A. FRANKS: This one is obviously consequential.

Clause passed.

Clause 9.

The Hon. T.A. FRANKS: The Greens can see the writing on the wall that the Labor government and the Liberal opposition have indeed come to an arrangement on this bill. I indicate that I will be seeking to divide on the issue of whether or not we keep the definition of animal welfare within this bill and will not be moving the other amendments. I note that I do not actually have a current amendment specifically, but I will be seeking to delete all words after animal welfare where the Liberal opposition and the government have sought to remove the reference to the RSPCA.

Clause passed.

Clause 10.

The Hon. G.E. GAGO: I move:

Amendment No 1 [EmpHESkills–2]—

Page 16, line 10 [clause 10(2)(b)]—Delete '; or'

Amendment No 2 [EmpHESkills–2]—

Page 16, lines 11 to 15 (inclusive) [clause 10(2)(c) and (d)]—Delete paragraphs (c) and (d)

Amendment No 3 [EmpHESkills–2]—

Page 16, lines 16 to 18 [clause 10(3)]—Delete subclause (3)

These amendments are part of a series of amendments that will remove the RSPCA as the exempted organisation to the requirement for a judicial order to publish in the public interest. This has been done at the RSPCA's request for material and information that relates to issues of animal welfare. One will still be able to provide such material to a media organisation or apply for a judicial order.

The Hon. A.L. McLACHLAN: I would like to indicate the Liberal opposition's support for these amendments of the government.

The Hon. T.A. FRANKS: As I indicated, given the agreement that has been made between the Liberal opposition and the government on this matter more broadly, and the Greens do in fact support the removal of the reference to the RSPCA, which of course the RSPCA never requested, never desired and never supported. However, I move to retain the words in paragraph (c) in this clause 'the information or material relates to issues of animal welfare' and then insert a full stop before the reference to the RSPCA, and I indicate I will divide on that.

The CHAIR: Did you move some words then, Ms Franks?

The Hon. T.A. FRANKS: Yes, I did move some words, Mr Chair. I apologise for not circulating an amendment in written form. However, this is retaining the government's original language of: '(c) the information or material relates to issues of animal welfare' and then stopping it before the reference to the RSPCA. I would think that the government had no problem with the reference ensuring that this was not an ag-gag bill, ensuring the protection of animal welfare issues, but indeed respecting the will of the RSPCA not to be the arbiter of what could or could not be published or broadcast.

The CHAIR: We just need to get some formal words here at the moment.

The Hon. T.A. FRANKS: My learned colleague advises me it is possibly a semi-colon, not a full stop.

The CHAIR: This is a test case for the government's amendments and for the Hon. Ms Franks' amendments. We are going to put amendment No. 1 from the minister: clause 10, page 16, line 10, to delete '; or'. The government will agree to that and the Hon. Ms Franks will oppose it.

The committee divided on the Hon. Ms Gago's amendment No. 1:

Ayes 13

Noes 4

Majority 9

AYES
Dawkins, J.S.L. Gago, G.E. (teller) Gazzola, J.M.
Hood, D.G.E. Hunter, I.K. Kandelaars, G.A.
Lee, J.S. Lucas, R.I. McLachlan, A.L.
Ngo, T.T. Ridgway, D.W. Stephens, T.J.
Wade, S.G.
NOES
Darley, J.A. Franks, T.A. (teller) Parnell, M.C.
Vincent, K.L.

The Hon. Ms Gago's amendments Nos 2 and 3 carried.

Clause 10 as amended passed.

Clause 11.

The CHAIR: One last amendment: Amendment No 22 [Franks-1].

The Hon. T.A. FRANKS: This is consequential; the test has been made. The Greens will not be moving this amendment.

Clause passed.

Remaining clauses (12 to 41), schedule and title passed.

Bill reported with amendment.

Recommittal

The Hon. A.L. McLACHLAN (11:57): Mr President, as I flagged in clause 1 of committee, I move:

That the bill be recommitted in respect of clause 3.

My reasoning, as I set out in committee, was that there are still some discussions going on, and perhaps there can be a meeting of minds between the government and the opposition.

Motion carried.

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) (11:58): I move:

That the bill be recommitted on the next day of sitting.

Motion carried.

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