Hansard debates

                           SURVEILLANCE DEVICES BILL
                                 Second reading

  Mrs WADE (Attorney-General) -- I move:
That this bill be now read a second time.
The  Listening  Devices  Act 1969 provides  significant  protection  to  private
conversations  from  eavesdropping.  It prohibits anyone who is not a party to a
conversation from  listening  to or recording  that conversation. The  act  also
prohibits  the communication or  publication  of records  or  reports of private
conversations, except in limited circumstances.

Since the Listening Devices Act  was passed, the use of video cameras has become
very widespread. The  fact   that the  Listening   Devices Act  only   regulates
listening devices and not optical  surveillance  devices  produces  an  anomaly.
Currently, private conversations may not be recorded and communicated by others,
but private activities may be. At present, there  is no limitation on the use of
video cameras or tracking devices. A video camera may be used to video a private
activity, which may then be  published  and  communicated freely, as long as the
sound is turned off.
For example, a retailer may install a video camera in a change room to watch and
record  the activities of  customers without legal sanction. That video material
may  then be  published freely  by the retailer. This sort  of activity  will no
longer  be  allowed under this  bill.  In an  era  of increasingly sophisticated
technology, it is necessary to enact this bill to protect individuals' privacy.

This bill will  bring the regulation of  optical surveillance devices into  line
with  the regulation of  listening  devices. Just as  the  Listening Devices Act
regulated listening  devices  in  1969, the  time  has  come to  regulate  other
surveillance devices in the same way.
The use of listening devices has been regulated in Victoria since 1969. The bill
takes the  basic  model for the regulation of listening devices in the Listening
Devices Act 1969 and applies it to a broader range  of surveillance devices. The
bill establishes  a general prohibition  on optical surveillance devices used to
observe and record private activities; listening devices 
used to listen to and record private conversations; and tracking devices used to
track people and objects.

 Page 192


The bill also prohibits the use of  data  surveillance  devices  by  the  police
without a  warrant or without the consent  of the person in control of the data.
The bill provides penalties of up to two years imprisonment or a maximum fine of
$24 000 or both for breaches of these prohibitions.
The bill  also restricts the publication or communication of  records or reports
of private conversations and activities  gained using surveillance devices. This
includes publication or communication by participants without the consent of all
the parties to the conversation or activity. The Listening Devices Act restricts
the circumstances in which recordings of  private conversations may be published
to others, protecting the privacy of private conversations. The bill will extend
this protection to  video  recordings of private  activities. The bill  provides
substantial penalties for breaches of this prohibition.

While   the  bill  extends  the  protection  of  privacy   afforded  to  private
conversations to private activity, law  enforcement officers have been given the
power  to   use   surveillance  devices  to   fight  serious  crime.   In  these
circumstances, the  bill also ensures stringent safeguards to protect individual
privacy. This bill  achieves  an  appropriate  balance,  and  provides stringent
safeguards for the protection of privacy.
The  bill prohibits the use  of surveillance devices to  intrude on individuals'
privacy except in exceptional circumstances. Surveillance devices may be used by
law enforcement officers for investigating suspected serious criminal  activity.
Surveillance devices are most useful in  fighting organised crime. In many major
drug cases surveillance devices provide key evidence in prosecutions. Crime that
is difficult to  uncover,  such as organised  child  pornography rings,  can  be
exposed using surveillance devices.

A law enforcement officer may only  apply for  a warrant  to use  a surveillance
device if the applicant suspects or believes that an offence has been, is being,
is about  to  be  or is likely to  be  committed, and the use  of  the device is
necessary  to  investigate the offence  or  to gather evidence  of  the offence.
Before  a court may issue a  warrant, it must balance the  nature and gravity of
the  offence with the extent to which  the  privacy of a person is likely to  be
affected.
When law enforcement officers wish to use a  surveillance  device  to  record or
observe  a private  activity;  listen to or  record  a private conversation;  or
monitor the input or output of information to or from  a computer, they may only
do  so pursuant  to  a  warrant  issued  by  the Supreme  Court or  an emergency
authorisation  under  the  bill. This  is  an  important measure  to  ensure the
accountability of law enforcement officers proposing to use surveillance devices
and to ensure that surveillance devices are used appropriately.

A warrant to track a person or object may be issued by the Magistrates Court, as
tracking devices are less intrusive than other types of surveillance devices.
These  requirements will ensure  the  protection of  privacy  by requiring  that
warrants allowing  the  use  of surveillance  devices  are only issued  when  an
appropriate  balance is determined by  the courts between  the benefits of using
the device and the potential invasion of privacy.
There are a number  of  stringent  safeguards  in  the  bill to protect people's
privacy.  Once a surveillance device has been used pursuant to  a  warrant,  the
user must report back to court on the use  of the surveillance device, adding  a
further measure  of accountability.  Any  evidence gathered  using  surveillance
devices must be destroyed if  it is  not needed  to investigate  or prosecute an
offence. The responsible minister must  report annually to Parliament on the use
of surveillance devices pursuant to the bill.

In certain  limited circumstances, for instance during a kidnapping  or a siege,
the police force or the National Crime Authority may issue its own officers with
an emergency authorisation to  use  a surveillance device. This may only be done
where an imminent threat of serious  violence  to a person or substantial damage
to  property exists, or a serious drug offence  is  being  committed.  A  police
officer who  receives an emergency authorisation  must report to court within 72
hours of being granted the emergency authorisation. This will ensure  that there
is appropriate independent supervision of the use of these powers.
Finally,  the  bill  compels  law  enforcement  bodies  to  destroy  potentially
sensitive information gained using surveillance devices when the  information is
not needed. It  is an offence not to destroy surveillance evidence when required
to do so under the act.

The  bill provides stringent safeguards to protect individuals' privacy ensuring
that  Victoria is a safe  place to live. The bill  will extend the protection of
private conversations currently  offered by the  Listening Devices Act and  will
protect private activities from intrusion.
I commend the bill to the house.
Debate adjourned on motion of Mr HULLS (Niddrie).
Debate adjourned until Thursday, 8 April.