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Tuesday, 30 November 2004
Page: 6

Senator LUDWIG (12:49 PM) —I rise to speak on the Surveillance Devices Bill 2004. The bill has been the subject of a bipartisan report by the Senate Legal and Constitutional Legislation Committee, which recommended a number of amendments. We are pleased that the government has responded constructively to that report and that it will be moving a number of amendments in the committee stage which the opposition will be supporting.

The origin of this bill is resolution 15 of the Council of Australian Governments Leaders' Summit on Terrorism and Multi-Jurisdictional Crime in April 2002, which called for a national set of powers for cross-border investigations covering, among other issues, the use of electronic surveillance devices. Following this resolution, a joint working group was established by the Standing Committee of Attorneys-General and the Australasian Police Ministers Council. The joint working group developed model laws, which were released for public comment in November 2003. This bill substantially implements those model laws, although there has been modification in a number of areas.

I should begin by observing that the need for legislation of this kind is clearly obvious. Currently, the only Commonwealth laws governing the use of surveillance devices by law enforcement authorities are the Australian Federal Police Act and the Customs Act. In addition, though, state and territory legislation governing surveillance devices is undesirably fragmented. As the joint working group stated in its November 2003 report—and it is worth quoting from that report as the genesis of where we are today:

Currently, the law in each of these areas differs significantly between jurisdictions and there is no provision for recognition in one jurisdiction of authorisations or warrants issued in another jurisdiction. Where an investigation crosses State or Territory borders, the need to obtain separate authorities in each jurisdiction can result in delays, loss of evidence and other impediments to effective investigation. The creation of a national set of investigative powers is intended to facilitate seamless law enforcement across jurisdictions.

It is also important that we have Commonwealth legislation covering the full range of surveillance devices, including not only listening devices but also optical surveillance devices, data surveillance devices, equipment or programs used to monitor computer input and output, and of course tracking devices. The bill is restricted to the use of devices by law enforcement authorities, specifically the Australian Federal Police, the Australian Crime Commission and state or territory police investigating a Commonwealth offence. It enables these authorities to use surveillance devices where they have obtained a warrant from an eligible judge or Administrative Appeals Tribunal member.

The circumstances in which warrants may be sought and issued are broadly comparable to those applying to telecommunications interception warrants, and balance a range of factors including the gravity of the offence, the importance of the information sought, the availability of alternative methods of obtaining the information and the impact on privacy. A surveillance device may be used without a warrant if an emergency authorisation has been obtained. These may only be granted where the use of the device is demonstrably necessary to deal with a couple of issues: firstly, to deal with an imminent risk of serious violence to a person or substantial damage to property; secondly, to urgently recover a child subject to a Family Court recovery order; or, thirdly, to prevent the loss of evidence in an investigation of a specified serious offence, which includes those of terrorism, serious drug offences, treason, espionage and aggravated people-smuggling.

If an emergency authorisation is granted, the authorising officer must apply within two business days for retrospective approval by an eligible judge or AAT member. A surveillance device may be used without a warrant or an emergency authorisation in the following circumstances: where it is an optical surveillance device and its use does not involve entry onto premises without permission or interference without permission with any vehicle or thing, such as the observation of a person from a distance using binoculars or a camera; where it is used to record words spoken to a law enforcement officer or a group of persons including a law enforcement officer, such as a conversation with an undercover officer wearing a wire; and, lastly, where it is a tracking device and its use does not involve entry into premises or the interior of a vehicle without permission and its use has been authorised by an authorised officer. A clear example would be the placement of a tracking device on the exterior of a vehicle or vessel.

We note that these provisions for the use of surveillance devices without a warrant or emergency authorisation are modifications of the model laws released by the joint working group. They are said by the government to share the feature of being less intrusive forms of surveillance. The bill enables the use of surveillance devices in the investigation of a range of matters. It is worth going through some of those investigative matters. Specifically they relate to: firstly, the investigation of Commonwealth offences which carry a maximum penalty of at least three years imprisonment; secondly, the investigation by the Australian Federal Police or the ACC of a state offence with a federal aspect which also meets the three-year threshold; thirdly, the safe recovery of a child where the Family Court has issued a recovery order; and, fourthly, the investigation of offences against the Fisheries Management Act 1991, such as the illegal fishing of patagonian toothfish. We note that this contemplates the use of tracking devices on illegal fishing vessels in remote waters. I should add that surveillance devices may be used for the investigation of offences under the Financial Transaction Reports Act 1988, such as failing to declare the import or export of Australian currency in excess of $10,000 or operating an account with a cash dealer in a false name. We note that this is included because such transactions are often indicative of more serious underlying conduct.

We understand that this range of matters is broader than that proposed in the model laws but we recognise that these are all serious law enforcement issues of concern to Australians and that the use of surveillance devices will, in those circumstances, assist considerably with investigations following arrests. The bill also allows surveillance devices to be used under warrant for the investigation of Commonwealth offences outside Australia in accordance with international law. Outside Australia in this instance means in a foreign country or on a foreign-registered vessel or aircraft that is in or above waters beyond Australia's territorial seas. In such circumstances, though, a warrant may only be issued if the surveillance has been agreed to by an appropriate consenting official of the relevant foreign country. The requirement of agreement by a foreign official does not apply if Australia is exercising its jurisdiction in accordance with the United Nations Convention on the Law of the Sea. You can imagine this occurring in a number of circumstances—for example, if the vessel is in Australia's contiguous zone and the offence being investigated relates to customs, fiscal, immigration or sanitary laws of Australia; or if the vessel is in Australia's fishing zone and the offence being investigated is one of the specified offences under the Fisheries Management Act 1991. As one would expect, the extraterritorial use of surveillance devices is particularly a matter for the Commonwealth and would not necessarily be dealt with in a model law developed with the states and territories. So again we recognise the need for some departure in this area.

The bill establishes a number of mechanisms to ensure the accountability of authorities using surveillance devices. We understand it was intended that these be based broadly on the mechanisms in the telecommunications interception regime. In particular, where information has been obtained without the required warrant, authorisation or approval, it may not be used by law enforcement authorities in the investigation of an offence or the bringing of a prosecution nor communicated to a foreign country under the Mutual Assistance in Criminal Matters Act. On the other hand, it may be communicated to an Australian intelligence agency if it relates to the functions of that agency and it can be communicated for the purposes of investigating compliance with the provisions of the Surveillance Devices Bill when it becomes an act or with other laws such as the Privacy Act. The bill imposes obligations on each relevant law enforcement authority to maintain detailed records of applications, warrants, authorisations and the use of surveil1ance devices and information obtained therefrom. In some circumstances it imposes obligations to destroy information not required for a recognised purpose under the act. The bill also provides that regular reports must be made to the minister about all warrants and authorisations.

The bill introduced in the current parliament contains two new amendments that the opposition also supports. Of course this bill was introduced in the last parliament. However, due to time constraints, as I understand, in the legislative program, it failed to pass. The first of the amendments contained in the current bill is that minor defects in connection with a warrant or other authority will not void or vitiate a warrant. Clause 65(2) makes it clear that a reference to a defect or irregularity is one that is `other than a substantial defect or irregularity'. Clause 65 is consistent with section 75 of the Telecommunications (Interceptions) Act, which is colloquially called the T(I) Act, which has previously been supported by this Senate. Just as in the T(I) Act's savings provision, this amendment, clause 65(2) of the current bill, cannot protect a warrant containing a substantial defect in its issue or in its execution. The term `substantial' is not defined in the current bill. Some guidance may be obtained from the consideration of what constitutes a defect by going to the substance of a search warrant. A search warrant containing defects is not invalidated unless the defect affects the substance of the warrant in a material particular.

The second point of difference is technical and has regard to the fact that the Legislative Instruments Act will take effect from 1 January. The Legislative Instruments Act will require all new legislation to specify whether or not an instrument made under this act is legislative in character. The relevant clause provides that, whilst an instrument made under the current bill is not legislative in character, any regulations made in accordance with clause 66 of the current bill will be legislative instruments subject to the provisions of this act. Instruments made under the current bill that are not legislative instruments are things like instruments declaring federal judges to be eligible judges; records of emergency authorisations granted under the legislation; applications to eligible judges or nominated AAT members for approval of emergency authorisations; records of tracking device authorisations that are issued under the legislation; records that must be kept by law enforcement agencies about their applications for warrants, emergency authorisations and tracking device authorisations and the use of the information they may obtain; and the register of warrants, emergency authorisations and tracking device authorisations that must be kept by each law enforcement agency.

The Legislative Instruments Act has made it necessary to differentiate clearly between matters which are not legislative instruments and those that are. I suspect that not only will that now be a clear feature of speeches in second reading debates, where we try to say what is in and what is out, but also the government will carefully consider and watch to make sure that it can differentiate clearly between what is a regulation and within the reach of the Legislative Instruments Act and what is not clearly within the reach of the Legislative Instruments Act and therefore not a matter that needs to be dealt with in that manner.

In conclusion, the opposition acknowledges the significance of this bill and supports it being given a second reading. I will address the Senate committee report and the amendments resulting from it at the committee stage in due course. I think this is one of the matters of which I can speak with at least some knowledge, as I was a member of the Senate Legal and Constitutional Legislation Committee which dealt with the first Surveillance Devices Bill—it was not the Surveillance Devices Bill (No. 2) 2004, but we know that it only differs by two slight amendments. That committee report, which was handed down in May 2004, went through the background from which the bill arose and outlined some of the concerns and issues. The challenge, and I think the committee also drew much from this, was to strike a balance between giving our law enforcement officers effective tools to fight crime and ensuring their appropriate use with regard to Australians' privacy. The opposition remains committed to working with the government to make sure we get that balance right.