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Thursday, 24 June 2004
Page: 31572


Mr RUDDOCK (Attorney-General) (5:17 PM) —by leave—I move:

That this bill be now read a second time.

First, I thank the House for its indulgence in relation to moving the motion at this time. I hope it will facilitate the progress of activity in this House and also secure passage of this measure which might otherwise have been delayed because of government amendments—sought, I might say, by the states and others, and which I am proposing in this measure—and by reintroducing a bill that has already been through the House in an amended form. Securing its passage may help in securing prompt passage elsewhere. There is some urgency associated with this matter, on which I will elaborate.

Australia's law enforcement agencies rely on a variety of law enforcement tools to catch and prosecute serious criminals.

One important tool is the use of surveillance devices, which could be anything from a hidden microphone to an ordinary video camera.

Today, however, the powers available to Commonwealth law enforcement for the use of such devices lag sadly behind what technology makes possible and what other jurisdictions permit.

This bill began as an initiative of the Leaders Summit on Terrorism and Multijurisdictional Crime, held on 5 April 2002.

A joint working group of Commonwealth, state and territory officials was established by the Standing Committee of Attorneys-General and the Australasian Police Ministers Council.

The joint working group developed comprehensive model laws for all Australian jurisdictions to improve the effectiveness of cross-border criminal investigations in the areas of controlled operations, assumed identities, protection of witness identity and electronic surveillance.

These model laws were released in a public discussion paper to solicit feedback from groups and individuals on the suitability of these proposed powers.

The Surveillance Devices Bill (No. 2) 2004 (the bill) implements the electronic surveillance model bill, tailoring it to the needs of the Commonwealth.

This bill differs in a number of respects from the Surveillance Devices Bill (No. 1) 2004, which is currently before the Senate, and is being introduced for the purposes of expediency so as to ensure that this important legislation is passed before the winter recess.

The bill will consolidate, expand and modernise the now somewhat outdated surveillance devices powers available to the Commonwealth and provide law enforcement agencies with access to the surveillance tools necessary to protect Australians and to investigate and stop crime.

The bill allows law enforcement officers of the Australian Federal Police, the Australian Crime Commission or a state or territory police force or other specified agencies investigating a Commonwealth offence to use a greater range of surveillance devices, including data surveillance devices, optical surveillance devices and tracking devices.

The bill also allows for a surveillance device warrant or authorisation to be issued in relation to a wider range of offences.

Surveillance device warrants may be issued under this bill, where a child recovery order has been issued by the Family Court to assist with the location and safe recovery of any child who is subject to an order.

The bill also permits emergency authorisations to be given by a senior executive officer of the law enforcement agency to a law enforcement officer for the use of a surveillance device in circumstances that are characterised by urgency.

The bill provides for three such situations: where there is an imminent threat of serious risk to a person or substantial damage to property, to recover a child who is the subject of a recovery order, and where there is a risk of the loss of evidence in relation to important specified Commonwealth offences, including terrorism, serious drug offences, treason, espionage and aggravated people smuggling.

In recognition of the privacy implications of this bill, the bill imposes a range of strong accountability measures.

The most intrusive types of surveillance must be subject to the scrutiny of a judge or AAT member be-fore the surveillance begins, or, in the case of an emergency authorisation, shortly after the authorisation has been given.

The subsequent use, disclosure or communication of material gathered by, or relating to, a surveillance de-vice is subject to stringent restrictions.

Record-keeping requirements ensure that documents relevant to surveillance devices must be kept to estab-lish compliance with the law.

Chief officers of law enforcement agencies using Commonwealth warrants and authorisations must submit detailed reports, both after a warrant or authorisation has expired and also annually.

The bill also imposes a duty on the chief officers to destroy surveillance device material when it is not longer relevant to one of the permitted purposes in the bill.

The role of the Commonwealth Ombudsman as an oversight body is reinforced by this bill. The Ombuds-man must report on a six-monthly basis to the Attorney-General who in turn must table these reports in parliament.

Importantly, the Ombudsman has the power to com-pel law enforcement officers to answer questions or produce relevant documents.

This bill will greatly increase the capacity of Austra-lian law enforcement agencies to investigate serious offences, including terrorism, while maintaining an appropriate respect for the privacy of all Australians.

This bill differs from the Surveillance Devices Bill 2004 in a number of important ways.

First, the bill provides for the inclusion of state law enforcement agencies, such as the New South Wales Crime Commission and the Western Austra-lian Corruption and Crime Commission, in addition to state and territory police forces who may obtain Commonwealth surveillance device warrants for the investigation of Commonwealth offences.

Second, the bill implements three of the recom-mendations of the Senate Legal and Constitutional Legislation Committee report to provide:

for a requirement that surveillance device material held for more than five years be destroyed unless the Chief Officer certifies that it is still needed for a permitted purpose;

that the period before which an emergency authorisation must be brought before a judge or AAT member for approval be reduced from `two business days' to `48 hours'; and

for a new civil remedies provision which allows those who have suffered loss or injury as a result of illegal use of a surveillance device by the AFP or ACC to sue the Commonwealth.

Third, the bill allows the Queensland Public Interest Monitor to have a role with respect to Commonwealth warrants that is consistent with its role regarding state warrants.

The bill also allows non-law enforcement officers to record conversations to which they are a party under the direction of a law enforcement officer. This means that an informant may wear a `wire' during a controlled operation.

Importantly, the bill allows for a recovery order issued by a court other than the Family Court or with respect to a child removed from another country to be the basis for a warrant or authorisation and adds child sex tourism offences as offences for which a `loss of evidence' emergency authorisation may be obtained.

Finally, the bill includes provisions designed to clarify and refine the operation of the surveillance device regime by:

allowing for the substitution of an officer primarily responsible for the execution of a warrant or authorisation;

making the definition of `state offence with a Federal aspect' consistent with other legislation;

improving the operation of tracking device authorisations;

marginally changing the definition of `appropriate consenting official' to make extra-territorial use of surveillance devices more feasible;

allowing the Commonwealth Ombudsman to dele-gate to equivalent state bodies which are not actually ombudsmen; and

giving the Commonwealth Ombudsman respon-sibility for the oversight of all ACC SD use, under either Commonwealth or state law.

I urge that this bill be passed as a matter of priority, as these are important investigatory tools that need to be made available to law enforcement officers as quickly as possible. I present an explanatory memorandum to the House.