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SURVEILLANCE DEVICES BILL
Second Reading

MR DAY (Darling Range - Minister for Police) [4.34 pm]: I move -

That the Bill be now read a second time.

Under current Western Australian law an important tool available to police and other law enforcement agencies in the fight against organised and serious crime is the use of listening devices authorised under the Listening Devices Act 1978. Primarily, the current legislation allows police officers to use listening devices to monitor and record conversations and use evidence gained thereby in criminal prosecutions.

In 1987 a committee was set up to review the Listening Devices Act with a view to legislative change. Several major problems were identified in that review and since. They are -

The Act has not kept pace with new technology - optical surveillance devices, such as video cameras, and tracking devices are not covered by the Act;
police are unable to enter premises to install devices in the absence of an express provision. This problem was highlighted in 1994 by the High Court's decision in Coco v R;
only the use and not the installation of an illegal device is penalised;
the penalties for unlawful use of devices are inadequate; and
the National Crime Authority cannot use listening devices.

The committee to review the Listening Devices Act recommended many changes to the Act. These changes have been incorporated into the Surveillance Devices Bill together with other provisions necessitated by new developments which have arisen since the committee submitted its report. For example, the reconstituted Anti-Corruption Commission has been given authority to use devices. The Bill follows extensive consultation. The need for this Bill did not escape the Government as it recognised that unless the legislation was carefully constructed undue intrusion into people's private lives could occur.

The basic form of the Bill is to prohibit covert and intrusive surveillance of private activities and private conversations by anyone except those sanctioned by judicial authority, and then only subject to certain conditions. Private activities and private conversations have been defined as those activities and conversations carried on in circumstances that may reasonably be taken to indicate that any of the parties desire it to be observed or listened to only by themselves. In that way, the Bill successfully balances the individual's right to privacy with the need for law enforcement officials to use intrusive methods to detect the commission of offences.

The Bill makes it clear that activities and conversations carried on in circumstances in which the parties should reasonably expect that they may be observed or overheard are not considered private. It is envisaged, generally, that activities carried on outside a building would not be considered private. For this reason, journalists and private investigators will be able to continue to undertake their lawful duties without fear of breaching the Act. Additionally, it is not intended to prevent law enforcement officers from using binoculars, telescopes and similar devices to observe suspected illegal covert activity in field situations; for example, fisheries officers who observe marron poachers at night on Wellington Dam. Even though the persons being observed are attempting to conceal their activity, such illegal fisher people should reasonably suspect that their activities may be observed.

Further, where a sign is present warning persons that their conversations may be taped, or that their activities may be filmed, these conversations and activities would not be considered private under the new legislation as parties could not then reasonably expect them to be so. For example, this allows police and prison officials to survey lock-ups and prison buildings, and shopkeepers to film their staff at work.

Surveillance devices are dealt with in three categories in the Bill: Listening devices, optical surveillance devices and tracking devices.

The Bill provides that it is an offence for a person to use a listening device to record a private conversation to which they are not a party and, if they are a party, it is an offence to record a conversation unless certain consent requirements are satisfied. Exemptions are provided for the police, the Anti-Corruption Commission and the National Crime Authority acting under warrant or emergency authorisation, officers acting under any Act of the Commonwealth and where a private activity is heard unintentionally.

The Bill also prohibits the use of optical surveillance devices to record or observe private activities to which the person is not a party. Where the person is a party to the activity, the Bill prohibits recording unless certain consent requirements are satisfied. Exemptions are again provided for the police, the Anti-Corruption Commission and the National Crime Authority acting under warrant or emergency authorisation, officers acting under any Act of the Commonwealth and where a private activity is seen unintentionally.

The Bill provides that a person must not use a tracking device to determine the geographical location of a person or object without consent. Exemptions are created for the police, the National Crime Authority and the Anti-Corruption Commission where acting under warrant or emergency authorisation, and officers acting under any Act of the Commonwealth.

Jurisdiction to grant warrants for surveillance devices is divided between magistrates and judges. Judges have jurisdiction over all surveillance devices, whereas magistrates have jurisdiction only with respect to tracking devices. Applications for warrants may be made by a member of the Police Service, an Anti-Corruption Commission officer or a member of the staff of the National Crime Authority. An application may be made to obtain a warrant on behalf of another law enforcement officer; for example, interstate police and the Fisheries Department.

A court may issue a warrant for a surveillance device only if it is satisfied that there are reasonable grounds for believing that an offence has been, or is likely to be, committed, and the use of the device would be likely to assist an investigation into that offence or suspected offence, or enable evidence to be obtained. The court must also consider a range of other matters, such as the nature of the offence, the extent to which the privacy of any person may be affected, the value of the information which may be obtained, and the public interest. There is provision in the Bill for authority to be given for the use of more than one type of device in a single warrant. To guard the privacy of individuals further, the Bill ensures that applications for warrants are not heard in open court and that records produced as a result of an application for a warrant cannot be disclosed, except by the direction of the court.

Warrants issued under the Bill will specify that where practicable the surveillance devices should be retrieved or rendered inoperable during the period the warrant is in force. In an emergency situation it may not be possible for police to obtain a warrant to use a surveillance device; for example, where police are faced with a siege situation or hostage crisis or where a drug offence is about to be committed. In such a case a very senior police officer, the chairman or any two members of the Anti-Corruption Commission or a person authorised for the purpose by the Chairperson of the National Crime Authority may give authorisation to use a device. If a person uses a surveillance device under an emergency authorisation, that person must deliver a report to a judge detailing the use of that device. The judge then has the power to order that records obtained by use of a surveillance device be brought before the court and may also direct that surveillance cease immediately.

The Bill creates offences and provides penalties for the unlawful use, installation or maintenance of surveillance devices; the unlawful communication or publication of private conversations or private activities; the possession of a surveillance device for unlawful use; the unlawful removal or retrieval of a surveillance device; and the failure to report the discovery of a surveillance device to the police.

In each case the penalties are the same - a $5 000 fine and imprisonment for 12 months in the case of an individual and a fine of $50 000 in the case of a corporation. In addition to the penalties provided, the court may order the forfeiture of surveillance devices used and records obtained by the use of a surveillance device. To assist with the enforcement of the prohibition against possession of a surveillance device for unlawful use, police have been given a power to search persons, premises and vehicles.

The Commissioner of Police and the chairperson of the National Crime Authority will be required to furnish annual reports to the Minister on the use of surveillance devices in this State. In the case of the Anti-Corruption Commission, reports will be furnished to the Attorney General. These reports will be tabled in Parliament.

Members of the Australian Federal Police, the Australian Security Intelligence Organisation and the Australian Customs Service have not been included within the scope of the Bill. In fact, a clause has been inserted to exclude these agencies so that, as a temporary measure, the status quo is maintained; that is, the commonwealth agencies will be afforded no powers under the Bill and will not be liable for any actions that constitute offences under it. The repeal of this clause will be considered after 12 months during which time it is anticipated that the Commonwealth Government will create legislation that complements the Bill. The obvious reason for considering the repeal of the clause is that it is desirable that all law enforcement officers operating within the State should be subject to the same constraints and prohibitions.

The Surveillance Devices Bill will greatly assist police and other law enforcement agencies in the detection and prosecution of offences through the use of surveillance devices. The Bill also provides restrictions on the use of surveillance devices in the interests of the privacy of citizens of this State. I commend the Bill to the House.

Debate adjourned, on motion by Mr Cunningham.