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Tuesday, 30 November 2004
Page: 10


Senator GREIG (1:05 PM) —I also rise to speak to the Surveillance Devices Bill 2004, but we take a different approach. We Democrats have a different response in that we are strongly opposed to the legislation before us. The primary purpose of this bill is to establish a new regime for the use of surveillance devices within Australia. As the explanatory memorandum notes, the use of surveillance devices is currently governed by a fairly piecemeal combination of state and Commonwealth law and common-law principles. We Democrats accept that there is a need for new legislation. The current situation is unacceptable and may leave the rights of Australians exposed. Legislative clarification is required. Given the plethora of technological instruments that now exist to spy on people, this is not an easy area in which to legislate. However, even conceding these difficulties, we still believe the government has failed to produce anything near what we would argue would be a more appropriate bill. What we have before us, we feel, is a weak bill and a dangerous bill. It is weak because its provisions are loose, and dangerous because they have the potential to be too broadly interpreted.

The bill establishes a regime which enables law enforcement officers to use surveillance devices subject to warrants. For example, a warrant may be obtained for the purpose of investigating a Commonwealth crime which has a maximum penalty of at least three years. A subsequent warrant may be obtained to retrieve the surveillance device. Warrants are issued by a judge or an AAT member. However, in urgent circumstances, temporary authorisation may be obtained from a senior police officer pending the grant of a warrant.

Information obtained pursuant to a warrant or an emergency authorisation is classified as protected information and can only be used in certain circumstances. Significantly, warrants are not required in relation to the use of tracking devices or optical surveillance devices. Information obtained using these devices is therefore not subject to the same level of protection as information obtained under a warrant. In practice this means that the police will be able to make a video of a person without that person's knowledge and the use of that video will not be subject to the restrictions which apply to protected information. This is one of the particular concerns we Democrats have in relation to this bill.

But perhaps the more disturbing aspect of the bill is that it contains no general prohibition against the covert use of surveillance devices. In that respect it differs greatly from the regime established by the Telecommunications (Interception) Act. The lack of any general prohibition against covert surveillance leaves us with the situation where there are gaps and inconsistencies under the different pieces of state legislation. This means that in some states private detectives, private corporations and others may be able to legally monitor the activities of individuals if they do not breach any other law in the process. One of the most fundamental points that needs to be made in relation to this bill then is that it directly affects not just those individuals in relation to whom a warrant has been obtained but also the many other individuals with which that person interacts. Considering the number of people that each of us generally comes into contact with on a day-by-day basis, it is clear that at any given time a significant proportion of our Australian community is likely to be directly affected by the surveillance activities of our law enforcement agencies.

The broad drafting of this bill, as we see it, means, for example, that the police could obtain a warrant to install listening devices in a particular pub and then listen to many conversations that take place in that pub that have absolutely nothing to do with the particular offence they are investigating. Another issue of concern for us Democrats is that surveillance device warrants will automatically authorise the use of force—not just to enter the premises with respect to which the warrant has been issued but to enter adjoining premises if necessary. This means that the police could use force to enter a person's property purely for the purpose of accessing that person's neighbour's property.

The Democrats believe that the bill needs to be amended so that the use of force must be expressly authorised in a surveillance device warrant. We believe that this is something which a judge or AAT member granting a warrant should have to turn his or her mind to. We also feel that the warrant should expressly specify any premises which the police are authorised to enter. Again, we will be looking to move amendments to that effect during the committee stage.

It is very clear that one of the most invasive aspects of this bill is its potential to authorise the surveillance of hundreds, perhaps thousands, of Australians who are not suspected of any crime. This is particularly significant given the policy arguments advanced in support of the legislation. The government acknowledges that the use of surveillance devices is intrusive and infringes the right to privacy. However, it argues that this intrusion is justified in the case of those who commit serious criminal offences. What it fails to acknowledge is that the bill not only infringes the right to privacy of those who break the law but also infringes the privacy of thousands of other law-abiding Australians. Not only can their properties be broken into but their movements can be monitored and their conversations listened to—not just by the police but also by our intelligence agencies.

This brings me to the point that intelligence agencies are specifically excluded from the scope of this bill. While the Democrats acknowledge that there is already an established regime under the ASIO Act, we have long been critical of the lack of basic reporting requirements which apply to ASIO's surveillance activities. We simply do not accept that there is any legislative justification for excluding ASIO from the basic reporting requirements which apply to law enforcement agencies in relation to telecommunications interception and other surveillance activities.

As we have seen from the annual reports on the Telecommunications (Interception) Act, the government is well able to provide basic information regarding telecommunications interception activities, even in relation to the investigation of terrorism offences, without jeopardising national security in any way. Similarly, there are reporting requirements in the ASIO Act itself which relate to the new questioning and detention powers. We Democrats find it difficult to believe that ASIO can provide specific information in relation to individual cases of detention without jeopardising national security and yet is unable to provide general information on the exercise of its surveillance and telecommunications interception powers.

Moving to another concern in relation to this bill, the Democrats concur with the Law Council of Australia that the bill enables surveillance devices to be used to investigate too broad a range of offences. The bill provides that a surveillance device warrant may be obtained for the purpose of investigating a Commonwealth offence punishable by a maximum penalty of three years or more. We feel that that should be lifted to at least seven years. The infringement of personal privacy caused by surveillance devices is severe and should be restricted to limited circumstances. We do not believe that this level of infringement can be justified other than in relation to the most serious of criminal offences. Moreover, simply casually spying or eavesdropping on individuals suspected of criminal offences has the effect of violating their right to silence. Because they are unaware that law enforcement personnel are listening to their conversations, these individuals have no opportunity to exercise their right to silence.

The Democrats are also concerned that there appears to be no limit on the number of surveillance devices which may be used in relation to a single person at any one time. While a surveillance device warrant is required to specify the kind of surveillance device or devices proposed to be used, there is no requirement to specify the number of devices. Similarly, there is no ultimate time limit on how long a surveillance device warrant may remain in operation. While surveillance warrants of this nature may only be in force for a period not exceeding 90 days, it is possible to seek an extension for a further period not exceeding 90 days, and there is no limit on the number of extensions which may subsequently be sought. This means that it is possible for the actions and conversations of a single person to be constantly monitored by multiple surveillance devices for a period of, say, a couple of years. While I concede that this is unlikely given the requirement to satisfy a judge or AAT member every 90 days that that surveillance warrant is still justified, it is nevertheless possible under the provisions of the bill. We believe that ought to be remedied.

I would also like to draw attention to the provisions governing the granting of emergency authorisations. These provisions enable an application for an emergency authorisation to be made orally, in writing, or by telephone, fax, email or any other means of communication. This then creates the potential for a police officer to simply text message his or her superior officer and obtain immediate permission to use a surveillance device. Again, given the very intrusive nature of surveillance devices, we question whether this is an appropriate means of authorisation. However, we acknowledge that such an authorisation would need to be retrospectively approved by a judge or an AAT member.

What we believe is crucial is that, if authorisation is given verbally, by text message or in some other similar way, the senior law enforcement officer who gives that authorisation must write down the details of the authorisation as soon as possible after giving it. Having a written record of the authorisation will be vital to any court which may subsequently be required to determine the admissibility of evidence obtained pursuant to the emergency warrant.

In closing, the view of the Democrats is that the government should start again with this bill. We would advocate a redraft to address those areas that we and others in the community share strong concerns about, and the bill really should start from the premise that the use of surveillance devices should be prohibited and then subject to limited exemptions. The absence of such prohibitions from this bill is fatal to the Democrats' support. Finally, I seek leave of the chamber to have incorporated into Hansard the contribution to the second reading debate from my colleague Senator Stott Despoja who is currently on leave owing to travel restrictions. Party whips have been notified in advance.

Leave granted.