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Tuesday, 30 November 2004
Page: 15

Senator ELLISON (Minister for Justice and Customs) (1:16 PM) —I thank those senators who have contributed to the debate on the Surveillance Devices Bill 2004 which is a very important one for both law enforcement and security agencies in this country. The bill, of course, implements the model electronics surveillance bill developed by the Commonwealth-state joint working group on cross-border investigations. I think that was referred to by Senator Ludwig in his earlier contribution to the debate.

The bill is therefore part of a national scheme to provide consistent legislation across the different Australian jurisdictions, though a number of changes or additions have been made to the model bill to suit the unique requirements of the Commonwealth. The bill provides for a comprehensive regime governing the use of surveillance devices at the Commonwealth level. The range of devices now includes optical surveillance devices, data surveillance devices and tracking devices along with listening devices. The range of offences has been broadened to include any offence with a penalty of at least three years imprisonment, as well as several specified offences. For the first time, the bill provides a proper framework for conducting extraterritorial surveillance. The bill also creates a stringent accountability regime and empowers the Commonwealth Ombudsman to check law enforcement agencies' compliance and to report through the Attorney-General to the parliament.

The bill before us today differs from the bill when it was first introduced in the previous session of parliament in March of this year. It was amended to respond to three of the six recommendations made by the Senate Legal and Constitutional Legislation Committee. The bill now provides that the period within which an emergency authorisation must be brought before a judge or an Administrative Appeals Tribunal member for approval be 48 hours rather than two business days. This was mentioned in recommendation 1 of the Senate committee report.

It also provides 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 Australian Federal Police or the Australian Crime Commission to sue the Commonwealth. This is the product of recommendation 4 of the Senate committee. It also puts in place 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. This was as a result of recommendation 5 of the Senate committee report.

As I have mentioned, three of those recommendations were accepted. The remaining three were not adopted and those are as follows. Recommendation 2, which recommended that the Ombudsman be required to review records of all use, including warrantless use, of optical surveillance devices such as binoculars, cameras and others, was rejected because the bill already substantively does this. Clause 55 requires the Ombudsman to inspect all records to ensure compliance with the bill, and paragraphs 52(e) to 52(h) require that records be kept regarding all, including warrantless, surveillance device use. This recommendation it was thought was accordingly unnecessary. Any further record-keeping requirements would have been an onerous imposition on police operational capabilities.

Recommendation 3 of the Senate report recommended that both the bill and the Telecommunications (Interception) Act be amended to ensure that circumstances in which similar kinds of surveillance devices may be used are clearly described and that limitations on their respective use are also clear. This was rejected. It is not possible to make the situation more clear than it already is without harming the technological neutrality of both laws. As it stands, the Telecommunications (Interception) Act 1979 in its passage makes any interception of a communication over a telecommunications network an offence unless done with a warrant. The Surveillance Devices Bill 2004 states that nothing in this bill authorises anything for which a telecommunications interception warrant is required.

Recommendation 6 of the Senate committee report dealt with the destruction requirements in the bill and it recommended that those requirements be brought into line with the Telecommunications (Interception) Act. The government believes this was based on a misinterpretation of the Ombudsman's input to that committee. The provisions of this bill are already substantively in line with the destruction regime under the Telecommunications (Interception) Act with the exception of the new provision which responds to the Commonwealth's fifth recommendation. The Ombudsman was referring to a proposal about destruction requirements made by a member of the committee. It was this suggestion which was not in line with the T(I) Act, not the bill itself. I would thank the committee for its useful work in relation to this and acknowledge, of course, that it has a great workload and this has been one of many bills that it has reported on.

This bill also contains several other changes that have been made since it was first introduced in March this year. Aside from changes, which I have just outlined, made in response to the Senate committee's report, the bill now enables additional state law enforcement agencies—such as the Independent Commission Against Corruption of New South Wales and other similar anticorruption agencies—to obtain a surveillance device warrant for the investigation of Commonwealth offences, putting their powers in line with those available to the police forces of each state and territory. The definition of a `recovery order' has also been expanded beyond a reference to an order made under section 67U of the Family Law Act to include a warrant for the apprehension of a child under the Family Law (Child Abduction Convention) Regulations 1986. This widens the definition to cover orders made by courts other than the Family Court.

Furthermore, since the introduction of the bill in March provisions have been made which include child sex tourism as an offence for which an emergency authorisation can be sought where it is necessary to prevent the loss of evidence relevant to the investigation of such an offence. Of course, with recent events dealing with child pornography and prosecutions relating to child sex tourism, this has become an increasingly important area for law enforcement.

There were a number of other minor changes made in a bill that was introduced in June this year. I note that this bill differs in two respects from the version that was introduced into the parliament in June. Firstly, it complies with the new requirements of the Legislative Instruments Act 2003. That is a technical amendment. Secondly, it adds a new provision which prevents minor defects in warrants from rendering a warrant and any evidence gathered under it invalid. This provision is modelled on an equivalent provision in the Telecommunications (Interception) Act. While the new provision will maintain the admissibility of evidence obtained under a warrant or authorisation containing a minor procedural defect or irregularity, it will not protect warrants with substantial defects from being declared invalid. Obviously, it is not good public policy for a minor defect in a warrant to have the effect that it could be ruled as inadmissible evidence and result in the failure of a prosecution. As I have stated, this does not change the situation where there are substantial defects.

The bill will provide law enforcement agencies at the Commonwealth, state and territory level with important tools that will enable real progress to be made in the war against serious crime, while at the same time it puts in place a stringent accountability regime. I note that the Democrats have a number of amendments to be moved in the committee stage. I think it best that we deal with those in turn on the arguments presented by the Democrats. I commend this bill to the Senate and thank senators for their contributions.

Question agreed to.

Bill read a second time.