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SURVEILLANCE DEVICES BILL
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25 March 1999
Second Reading
WADE
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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.
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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.