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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-04-13 Daily Xml
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Bills

Surveillance Devices (Animal Welfare) Amendment Bill

Introduction and First Reading

The Hon. T.A. FRANKS (16:24): Obtained leave and introduced a bill for an act to amend the Surveillance Devices Act 2016. Read a first time.

Second Reading

The Hon. T.A. FRANKS (16:24): I move:

That this bill be now read a second time.

This bill seeks to amend the as yet to be implemented Surveillance Devices Bill 2016. When the Surveillance Devices Bill 2015 was both introduced and debated, it was done with some thought given to ensuring that animal welfare was seen as in the public interest, and the history was that previous incarnations of attempts at legislation to regulate surveillance devices, with particular reference to the broadcast of materials that those surveillance devices captured, had been seen to be detrimental to exposing acts of animal cruelty in this state.

When the Attorney announced the Surveillance Devices Bill 2015, he went to great pains to assure the community that that particular piece of legislation was not, in fact, in any way an ag-gag bill or in any way detrimental to animal welfare abuses being exposed. He did so by including in that legislation references to animal welfare being in the public interest and also by providing in that section that the RSPCA would be exempt 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.

At the time, the Law Society and, to the surprise of many, the RSPCA opposed the idea that the RSPCA should be the arbiter of what was in the public interest when it came to animal welfare. Quite simply, on a practical level, the RSPCA should never be the only arbiter of what is in the public interest when it comes to animal welfare, and certainly they pointed out that they neither wanted that position nor asked for that position from the Attorney, and certainly they were very surprised with the announcement of the Surveillance Devices Bill 2015 by the Attorney that they had such special dispensation given to them within that piece of legislation.

Some in this place and in the other place did not believe that animal welfare was in the public interest; indeed, many went on record decrying the rise of surveillance devices being used to expose acts of animal cruelty. They pointed to examples of drones being used and invasions of private property being undertaken. At the time, those speeches certainly did not pay due heed to the laws of trespass that exist as protections against such behaviour, and they were not relevant to the Surveillance Devices Bill in itself. However, they did give comfort to those in our community who would prefer never to see abuses of animal welfare exposed, not because they no longer exist but because they would prefer the public not to know.

The Law Society was most concerned about the Surveillance Devices Bill 2015, even with these special dispensations given with the wording that animal welfare was to be seen as in the public interest and that the RSPCA was to be the arbiter. They noted in their submission to that legislation that they had grave concerns that in the future exposure of animal cruelty would not be possible by programs that would be well known to people in this place, and indeed well known to our community, such as the Four Corners program on live baiting in the greyhound industry. In paragraph 19 of their submission to the Surveillance Devices Bill 2015, in a section entitled 'Ag-gag laws' the Law Society went on to make a particular note that:

The Society does not support 'ag-gag' laws. '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 Society 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.

The society goes on to note a range of other measures where they had not seen a need for such laws and, certainly, the society does not support ag-gag laws. Yet, even with these provisions in the previous bill, as I say, noting that animal welfare was to be in the public interest and giving the RSPCA that special dispensation, the Law Society raised grave concerns about the impact of the bill. In the course of the hurly-burly of the debate, animal welfare and the role of the RSPCA was treated somewhat contentiously.

Certainly, there was a division of opinion, but those on the government side continually assured constituents who contacted them that the legislation would ensure that animal welfare was in the public interest. Pieces of correspondence from no lesser persons than both the Attorney-General and the Premier himself to these constituents explained that their legislation would indeed provide for exemptions included in the bill to ensure that the RSPCA was given an exemption and, indeed, to ensure that animal welfare was to be treated in the public interest.

What the government members did not reveal to these constituents who contacted them was that, in the pressure from the opposition to remove the reference to animal welfare and the RSPCA, the government threw the baby out with the bathwater. In deleting the provisions that the RSPCA had neither requested nor were in a position to enact, they also deleted the entirety of that section that outlined that animal welfare was to be treated in the public interest.

I raised this in the third reading debate on the Surveillance Devices Bill 2015 and urged and pleaded with government members not to throw that baby out with the bathwater, to ensure that, while the RSPCA provision was to be deleted, they kept in that provision that animal welfare was to be seen in the public interest. Government members did not listen to those pleas and the bill went through with the deletion not only of the provisions for the RSPCA but also the deliberate deletion of the section that had provided that animal welfare would be seen as being in the public interest in the surveillance devices legislation.

This government has recently launched Labor for Animals and the co-conveners of that group, Nat Cook, the member for Fisher, and Lee Odenwalder, the member for Little Para, no doubt may be concerned to learn that their party has recently acted in this way to ensure that animal welfare is not to be seen in the public interest under the surveillance devices legislation. I would hope that those two members at the very least and, certainly, all the members of the Labor for Animals group might pay attention to this particular bill and, indeed, support its passage.

I would point them to the Law Society advice on this bill I introduce today. I gave the Law Society an advance copy of the legislation I have today introduced into the parliament and I hope that members would familiarise themselves with it. In point 5, the society notes:

The Society supports endeavours to further the interests of animal welfare through appropriate legislative reform. The Society refers to its submission in relation to the Surveillance Devices Bill 2015 and in particular paragraphs 9 and 10 of said submission.

Point 6 states:

The common law recognises that issues regarding animal welfare are firmly entrenched in the public interest. However, the courts have historically held the view that the concept of the 'public interest' cannot be exhaustively defined and must be flexible so as to alter along with the norms of society as it progresses.

Point 7 states:

The proposed amendments do as follows:

7.1 specifically provide for an exemption from the prohibition in section 10 of the Act upon 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 in the public interest if the information or material relates to issues of animal welfare; and

7.2 creates a rebuttable presumption that the use of a listening device or optical surveillance device to obtain information or material relating to issues of animal welfare will be in the public interest.

Point 8 states:

The effect of the amendments is specifically to include issues of animal welfare within the ambit of the term 'public interest'.

Point 9 states:

Rebuttable presumptions or deeming provisions are legislative tools commonly employed to facilitate proof of certain facts resulting in prima facie evidence of those facts in the absence of evidence to the contrary.

Point 10 states:

In light of the common law recognition that issues regarding animal welfare are matters of and in the public interest, the publication of material that records and relates to issues of animal welfare is prima facie likely to be in the public interest.

Point 11 states:

When considered in the context of the Act as a whole it is an appropriate matter to be made the subject of a rebuttable presumption.

Point 12 states:

Accordingly, the Society is of the view that there is merit in the inclusion of a rebuttable presumption which reflects the common law position.

Point 13 states:

The presumption is not a conclusive presumption and can be rebutted by proof that, on the balance of probabilities, the use of the relevant recording device to obtain material or information relating to issues of animal welfare is not in the public interest. This is an important statutory safeguard designed to ensure that the presumption does not give rise to unfairness or any miscarriage of justice.

I note and thank the Law Society for providing that information. I also note that within the community the societal norms have evolved to a point where most people in the community believe that animal welfare is something that is in the public interest and that the exposure of animal cruelty through surveillance devices has played a very key role. This applies particularly with animals because animals are, of course, voiceless. They cannot speak on their own behalf and they rely on others to advocate for them.

Surveillance devices and the exposure of animal cruelty on programs such as Four Corners give rise to that voice. The community response to that voice shows the opinion of the community at large. People have been horrified by the exposure of live baiting in the greyhound industry in the documentary Making a Killing. It has led to inquiries in four other states. It has led to an industry called on to prove its social licence, to justify its social licence and to change its ways.

Yet for over a decade these allegations about live baiting were being made in parliaments across this country—and I note the work of my colleague in the New South Wales Greens MLC, Dr John Kaye, and his tireless efforts to expose cruelty in the greyhound industry—but they were never heeded and they were often not believed. The power of the footage obtained through the Four Corners program, and working with animal advocates, showed without a shadow of doubt that there was a problem, that improper dealings were happening and that the greyhound industry could not be believed. That is just one of many examples of the exposure of animal cruelty going on in our nation.

I believe that the Labor government acted in error when it did not correct its mistake in agreeing to the opposition's amendments to the government's own bill. They announced the Surveillance Devices Bill 2015 in a way that assured the public that animal welfare would be protected and seen to be in the public interest. They wrote to their constituents, who raised their concerns during the course of the debate, assuring them that the Labor Party would ensure that animal welfare was in the public interest.

Quite simply, this bill ensures that, with the addition of those words, the Surveillance Devices Act will view animal welfare as being in the public interest. It is a position held by the majority in the community, it was ostensibly a position held by the majority in this parliament in their communications with their constituents, and it should be that the position is upheld when this issue comes to a vote. With those few words, I commend the bill to the council.

Debate adjourned on motion of Hon. S.G. Wade.

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