Mr McCLELLAND (Barton) (1.36 p.m.) —I thank the Attorney for coming into the House and for his courtesy. I note that he did it the other night when the matter was not reached. I rise to speak on the Surveillance Devices Bill 2004, which was introduced into the House last Wednesday. The opposition examined the bill and requested a briefing from the government, which was provided. For that, we thank the Attorney and officers of his department for making themselves available. The opposition recognise the importance of this bill and will be giving it in-principle support at the second reading in the House. Because of the important subject matter of the bill and the need to strike a careful balance between giving our law enforcement authorities the tools they need to fight crime and ensuring that these are used appropriately and with due regard to Australians' privacy, we have referred the bill to the Senate Legal and Constitutional Committee—and, again, we note the government's cooperation in that respect. We look forward to the report of the committee and whether they have any recommendations for improvements to the bill.
The origin of this bill is resolution 15 of the Council of Australian Governments Leaders Summit on Terrorism and Multijurisdictional Crime in April 2002—a very important meeting indeed. That meeting called for a national set of powers for cross-border investigations covering, among other issues, the use of electronic surveillance devices. Following this resolution, a joint working group was established by the Standing Committee of Attorneys-General and the Australian Police Ministers Council. The joint working group developed model laws which were released for public comment in November 2003. This bill substantially implements those model laws but we understand there have been modifications in a number of areas. No doubt the Senate committee will be interested in obtaining community and professional feedback on these changes.
I should begin by observing that there is a need for legislation of this kind. Currently, the only Commonwealth legislation governing the use of surveillance devices by law enforcement authorities is division 2 of part II of the Australian Federal Police Act, which provides for warrants for listening devices. In addition, state and territory legislation governing surveillance devices has been undesirably fragmented. As the joint working group stated in its November 2003 report:
Currently, the law in each of these areas differs significantly between jurisdictions and there is no provision for recognition in one jurisdiction of authorisations or warrants issued in another jurisdiction. Where an investigation crosses State or Territory borders, the need to obtain separate authorities in each jurisdiction can result in delays, loss of evidence and other impediments to effective investigation. The creation of a national set of investigative powers is intended to facilitate seamless law enforcement across jurisdictions.
As I say, this was on the basis of the joint federal and state cooperation in recognising the need for these measures.
It is also important that we have Commonwealth legislation covering the full range of surveillance devices, including not only listening devices but also optical surveillance devices, data surveillance devices—which include equipment or programs used to monitor computer inputs and outputs—as well as tracking devices. These of course are becoming increasingly sophisticated with modern technology. I should note that the use of surveillance devices by our intelligence agencies is a separate issue, governed by other legislation, in particular the Australian Security Intelligence Organisation Act and the Intelligence Services Act. This bill does not affect the direct use of such devices by those agencies and is restricted to the use by law enforcement authorities, specifically: the Australian Federal Police, the Australian Crime Commission, and state or territory police investigating a Commonwealth related offence.
The bill enables these authorities to use surveillance devices where they have obtained a warrant from an eligible judge or AAT member. The circumstances in which warrants may be sought and issued are broadly comparable to those applying to telecommunications interception warrants and balance a range of factors including the gravity of the offence, the importance of the information sought, the availability of alternative methods of obtaining the information and the impact on privacy.
A surveillance device may be used without a warrant if an emergency authorisation has been obtained. Emergency authorisations may only be granted by authorising officers, who may be: a commissioner, deputy commissioner or authorised SES level employee of the Australian Federal Police; the chief executive officer or authorised senior executive service employee of the Australian Crime Commission; or a commissioner, assistant commissioner or superintendent of state or territory police force—very senior office holders, in other words. Emergency authorisations may only be granted where the use of the device is necessary in a number of criteria: to deal with an imminent risk of serious violence to a person, or substantial damage to property; to urgently recover a child subject to a Family Court recovery order; or to prevent the loss of evidence in an investigation of a specified serious offence, including terrorism, serious drug offences, treason, espionage and aggravated people smuggling.
If an emergency authorisation is granted, the authorising officer must apply within two business days for retrospective approval by an eligible judge or AAT member, who must in turn be legally qualified with five years experience. If the approval is not granted, additional restrictions on the use of the information come into operation, which I will address later. A surveillance device may also be used without a warrant or an emergency authorisation in the following circumstances: where it is an optical surveillance device and its use does not involve entry onto premises without permission or interfere without permission with any vehicle or thing, such as the observation of persons from a distance using binoculars or cameras; where it is used to record words spoken to a law enforcement officer or a group of persons including a law enforcement officer, such as a conversation with an undercover officer wearing a wire for the purpose of recording that conversation; or where it is a tracking device and its use does not involve entry into premises or the interior of a vehicle without permission and its use has been authorised by an authorised officer, which may be one of the people I mentioned earlier in the context of emergency authorisations. An example of that would be the placement of a tracking device on the exterior of a vehicle or vessel.
We note that these provisions for the use of surveillance devices without a warrant or emergency authorisation are modifications of the model laws released by the joint working group, and are said by the government to share the feature of being less intrusive forms of surveillance. We believe it is desirable to obtain some public input on these proposals through the Senate committee process, and no doubt that will be a point of interest.
The bill also enables the use of surveillance devices in the investigation of a range of matters, specifically for the investigation of Commonwealth offences which carry a maximum penalty of at least three years imprisonment; the investigation by the Australian Federal Police or the Australian Crime Commission of a state offence with a federal aspect which also meets the three-year threshold; the safe recovery of a child where the Family Court has issued a recovery order; the investigation of offences against the Fisheries Management Act 1991, such as the illegal fishing of Patagonian toothfish—and we note that this contemplates the use of tracking devices on illegal fishing vessels in remote waters; and, finally, the investigation of offences under the Financial Transactions Reports Act 1988 of failing to declare the import or export of money in excess of $A10,000 or operating an account with a cash dealer in a false name. This is included not because of the size of the potential penalty but because such transactions are often an indication of more serious underlying conduct, such as involvement in the illicit narcotics trade or, in worst case scenarios, the involvement of financing terrorist activities.
Similarly, we understand that this range of matters is broader than that proposed in the model laws, but we recognise that these are all serious law enforcement issues of concern to Australians and that the use of surveillance devices will assist considerably with investigations. The bill also allows surveillance devices to be used under warrant for the investigation of Commonwealth offences outside Australia, in accordance with international law. `Outside Australia' means in a foreign country or on a foreign registered vessel or aircraft that is in or above waters beyond Australia's territorial sea. In such circumstances, a warrant may only be issued if the surveillance has been agreed to be an appropriate consenting official of the relevant foreign country.
The requirement of agreement by a foreign official does not apply if Australia is exercising its jurisdiction in accordance with the United Nations Convention on the Law of the Sea—namely, the vessel is in Australia's contiguous zone and the offence being investigated relates to the customs, fiscal, immigration or sanitary laws of Australia, or if the vessel is in Australia's fishing zone and the offence being investigated is one of the specified offences under the Fisheries Management Act 1991.
As one would expect, the extraterritorial use of surveillance devices is peculiarly a matter for the Commonwealth and would not necessarily be dealt with in model laws developed with the states and territories. So, again, we recognise the need for some departure in this area.
The bill establishes a number of mechanisms to ensure the accountability of authorities using surveillance devices. We understand it was intended that these be broadly based on the mechanisms that have been included in the telecommunications interception regime. There are also restrictions on the use, recording, communication, publication and admission in evidence of information obtained from a surveillance device or relating to a surveillance device warrant or authorisation. In particular, where information has been obtained without a required warrant, authorisation or approval, it may not be used by the law enforcement authority in the investigation of an offence or the bringing of a prosecution, nor communicated to a foreign country under the Mutual Assistance in Criminal Matters Act. On the other hand, it may be communicated to an Australian intelligence agency if it relates to the functions of that agency and it can also be communicated for the purposes of investigating compliance with the Surveillance Devices Act or other laws such as the Privacy Act.
The bill introduces a number of safeguards, including imposing obligations on each relevant law enforcement authority to, firstly, keep secure, detailed records of applications, warrants, authorisations and the use of surveillance devices and information obtained therefrom and to maintain a register of these; secondly, in some circumstances, destroy information not required for a recognised purpose under the act; thirdly, report all warrants and authorisations to the Minister; fourthly, submit an annual report to the minister for tabling in parliament. The bill also provides for regular inspections of records by the Ombudsman and a half-yearly report by the Ombudsman to the minister.
Once again, the accountability regime is another area where the model laws have been modified. This is one of the most important parts of the bill, so it would not be surprising if it did become a focus of public feedback during the Senate committee inquiry. We expect that the committee will run a fine toothcomb over these provisions to determine whether there is room for improvement and the imposition of additional safeguards. For my part, I will be interested to hear what law enforcement agencies have to tell the committee about the training and protocols currently in place to enable officers on the ground to make an informed and appropriate judgment about when to choose to use a surveillance device over other methods of investigation. The extent of these non-legislative safeguards is, of course, relevant when determining what accountability mechanisms are required in the bill.
In conclusion, the opposition acknowledges the significance of this bill and is able to signal its in-principle support by voting for the bill at the second reading. I have indicated the areas where the bill departs substantially from the model laws and I believe that in these areas parliament's consideration of the bill will be assisted by community feedback through the Senate committee inquiry process. The challenge is to strike a balance between giving our law enforcement officers effective tools to fight crime and ensuring their appropriate use with regard to Australians' privacy. The opposition remains committed to working with the government to make sure we get this balance right.