SA Surveillance Devices Bill Draws a Negative

The South Australia Surveillance Devices Bill 2014 (No 13 of 2014) (the Bill) introduced into the Legislative Council on 5 June 2014 was, as had been predicted in the media, last month negatived at its third reading in the Legislative Council on 23 September 2014.

Essentially, the Bill is reported to have failed because the proposed amendments would have made it an offence to publish footage, audio or data collected without permission, unless a court deemed it in the public interest. For example, such could have applied to and included footage, audio or data taken or gathered inside abattoirs or on unsafe work sites and, as it was reported, Liberal and cross-bench MPs kept to their demands that the Government remove the requirement for "court approval" or see the Bill defeated.

Overview of the Bill

As introduced into the Legislative Council, the Bill contained recommended provisions allowing for the cross-border recognition of surveillance device warrants. Additionally, the Bill proposed extensive amendments resulting from a review of the existing surveillance legislation as follows:

• Allowing emergency authorisation of warrants in urgent situations to be made by a senior police officer, as is already the cases in other Australian jurisdictions, with the requirement that police seek judicial confirmation of the emergency warrant within two business days after the emergency warrant was granted;
• Currently emergency warrants applications are restricted to certain kinds of offences, but neither current South Australian law nor Commonwealth law allows for explicit emergency authorisation for serious drug offences, a defect the proposed law would change;
• Permitting the use of tracking devices on vehicles, in certain circumstances, without a warrant so long as it is non-intrusive and so long as it does not draw power from the vehicle;
• More specific and targeted allowances made for lawful use of listening devices;
• Special provision for "remote applications" to deal with instances where physical remoteness means it is impractical to make a warrant application;
• Specified person warrants to allow a warrant to be brought for the surveillance of a specific person, wherever he or she may be, instead of the usual warrant allowing the surveillance of a particular place;
• Extension of the use of material obtained by the use of listening or surveillance devices installed pursuant to a warrant beyond criminal investigation to include the pursuit of criminals through civil legislative remedies, such as those contained in the Criminal Assets Confiscation Act 2005, Serious and Organised Crime (Control) Act 2008, and the Serious and Organised Crime (Unexplained Wealth) Act 2009; and
• Changes with respect to all people authorised to exercise powers under the warrant being specified in the warrant to prevent the potential security risks of retribution from targets of the warrants.

The Bill also:

• authorised the use of a surveillance device on specified premises or on a specified object or class of object or in respect of the conversations, activities or location of a specified person or a person whose identity is unknown;
• expanded the definition of premises to include land and a building or vehicle (includes an aircraft or vessel) and a part of a building or vehicle and any place, whether built on or not; and
• amended the definition of surveillance device to mean a data surveillance device, a listening device, an optical surveillance device or a tracking device or a device that is a combination of any two or more of the above devices or a device of a kind prescribed by regulations.

The Debate Over the Bill

The Attorney-General Mr John Rau (the AG) is reported as saying that the Bill was intended to bring South Australia's laws into line with new technologies and give police greater ability to track criminals, using GPS devices or phone taps, and that:

The opposition justice spokeswoman is reported as saying that Liberal, independent and minor party MPs supported the new police powers but wanted the other restrictions; namely, the public interest requirement, eased.

The opposition called on the AG to effectively split the Bill in order to give the police the surveillance powers that they had called for while Parliament could continue to debate the public interest requirement and other issues.

The AG is reported as saying the Government would not split the Bill: “. . . because it would create a disconnect between the rules for police and everyone else”. On the public interest requirement the AG is reported as saying that:

The Bill was also strongly opposed by the SA Greens and animal activists who saw it as banning the installation and use of surveillance devices and making it illegal to use, communicate, or publicise any information or images gathered through surveillance. They argue that while the Bill did not specifically mention agricultural facilities or factory farming, the proposed Bill was similar to "Ag-gag laws" already in force in the USA.

The Law Society of South Australia also had called for changes to the Bill so as to protect the freedom of the press, with the President-elect of the Law Society reported as saying they had “. . . significant concerns that the law would limit the ability of journalists . . . to report on matters that are in the public interest”.

What Next

The negatived Bill now represents the second thwarted attempt by the South Australian Government to have this legislation passed, a previous Bill in 2012 having lapsed when the South Australian election was called. It will be interesting to see if the Government decides to try a third time or relaxes the public interest requirement which has drawn the resistance of the opposition and independents in the Legislative Council.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

• Surveillance Devices Bill 2014 (No. 13 of 2014) and supporting materials as reported in the TimeBase LawOne Service.
• South Australian Surveillance Devices Bill faces defeat in Parliament unless changes are made (The Advertiser - July 2014)
• Ag-gag law defeated in Australia (Changing Times Blog)
• Surveillance Devices Bill - 02.07.14 (Tammy Franks MLC Greens SA Blog)