Extracted from House of Reps Hansard, 24 March 2004, pp. 26043-6|
SURVEILLANCE DEVICES BILL 2004
That this bill be now read a second time.
Let me say that I do not read any significance into the fact that the shadow minister has left when this piece of legislation is before us.
This bill deals with Australia's law enforcement personnel and the means by which they strive to stay ahead of criminals. Our police forces rely on a variety of tools to investigate, catch and prosecute criminal groups which are becoming ever more organised and sophisticated.
One increasingly important tool is the use of surveillance devices.
A surveillance device can be anything from an ordinary set of binoculars, a tiny microphone or camera hidden in a suspect's vehicle to a piece of software to capture the input of information to a computer.
The current surveillance device laws available to Commonwealth law enforcement are not up the job of 21st century policing.
This bill began as an initiative of the leaders summit on terrorism and multijurisdictional crime held on 5 April 2002.
A joint working group of Commonwealth, state and territory officials was established by the Standing Committee of Attorneys-General and the Australasian Police Ministers Council.
The joint working group developed comprehensive model laws for all Australian jurisdictions to improve the effectiveness of cross-border criminal investigations in the areas of controlled operations, assumed identities, protection of witness identity and electronic surveillance.
These model laws were released in a public discussion paper to solicit feedback from groups and individuals on the suitability of these proposed powers.
This bill implements the electronic surveillance model bill, tailoring it to the needs of the Commonwealth.
The Surveillance Devices Bill 2004 will enable the Commonwealth to consolidate and modernise its now somewhat outdated surveillance device laws and provide law enforcement agencies with access to the surveillance tools necessary to protect Australians and to investigate crime.
The bill allows officers of the Australian Federal Police, the Australian Crime Commission or a state or territory police force investigating a Commonwealth offence to use a greater range of surveillance devices.
The bill will allow for data surveillance devices, optical surveillance devices and tracking devices in addition to listening devices which are currently permitted.
To restrict Commonwealth law enforcement to the use of devices which are only capable of recording spoken words is simply not adequate in today's environment.
As criminal and terrorist groups make use of sophisticated technology, our police must be able to match and better them.
This bill does not prohibit the use of surveillance devices, but rather establishes a structured process for the use of surveillance devices, where such use would ordinarily be prohibited under a state or territory law.
The bill allows for a surveillance device warrant to be issued in relation to a wider range of offences.
The current listening device provisions allow for a warrant to be obtained only in respect of a very limited number of specified offences.
For example, the current listening device provisions make no reference to terrorism offences, people trafficking and child sex tourism.
This bill proposes that, in line with the electronic surveillance model bill, a surveillance device warrant will be available for any Commonwealth offence, or state offence with a federal aspect, which carries a maximum penalty of at least three years imprisonment.
This offence threshold ensures that an appropriate balance is struck between the public interest that law enforcement investigate serious offences and the privacy interests of individual Australians.
Two other types of offences are also specified as offences for which a warrant may be obtained.
These are offences against the Financial Transaction Reports Act 1989 which relate to the failure to declare the import or export of money in excess of $A10,000 and operating a bank account in a false name.
These are included because they are frequently indicative of more serious underlying criminal conduct.
Various offences against the Fisheries Management Act 1991 are also included to assist Australia in the logistically difficult task of protecting the fisheries resources in the Australian fishing zone.
This bill will also allow surveillance device warrants to be issued where a child recovery order has been issued by the Family Court to assist with the location and safe recovery of any child who is subject to an order.
Depending upon the type of device involved, the bill will require that either a warrant or a police authorisation be obtained.
Less intrusive surveillance may be carried out without a warrant.
There is nothing unusual about this.
Police, throughout our history and across jurisdictions, have engaged in certain types of surveillance without a warrant.
For example, this might include using a pair of binoculars to watch a group of terrorist suspects scout a location for a possible attack.
This is routine police work and it must not be subject to unnecessary restrictions which would destroy police effectiveness.
The power contained in this bill for police to conduct such surveillance is arguably not necessary; however, it has been included here to clarify the law on this issue-and, I suggest, for more abundant caution.
Importantly, the bill makes clear that, where police surveillance is more intrusive, a warrant or internal authorisation must be obtained.
For example, where optical surveillance involves entry upon private land, a full warrant would be needed to be issued either by a federal judge or a nominated Administrative Appeals Tribunal member.
Under this bill, tracking devices can also be used by law enforcement officers without a warrant but with the authorisation of a senior officer of their respective agency where it does not involve entry onto private land or interference with the interior of a vehicle.
An officer who may authorise the use of a tracking device must be at least a senior executive officer-or of superintendent rank in state or territory police forces-who has been authorised in writing by the commissioner.
An internal authorisation, rather than a full warrant, is permissible in these cases because of the lower level of intrusion involved.
The bill also permits emergency authorisations to be given by a senior executive officer of the law enforcement agency to a law enforcement officer for the use of a surveillance device in circumstances that are characterised by urgency.
The bill provides for three such situations: where there is an imminent threat of serious risk to a person or of substantial damage to property; to recover a child who is the subject of a recovery order; and, where there is a risk of loss of evidence in relation to important specified Commonwealth offences, including terrorism, serious drug offences, treason, espionage and aggravated people-smuggling.
The bill brings the extra-territorial use of surveillance devices into a legislative framework for the first time.
The technical expertise of Australian law enforcement, particularly the Australian Federal Police, has been used to great effect in this region and elsewhere in cooperation with foreign governments.
For example, Australian expertise in a variety of fields, in conjunction with the Indonesian police, was critically important to the investigation of the 2002 Bali bombings.
Where Australian law enforcement wish to use surveillance devices overseas, they will now need to do so subject to an Australian warrant which will bring this use under the record-keeping and reporting requirements of Australian law.
The bill sets out the requirements for permission from the relevant foreign governments and the limited circumstances in which extraterritorial surveillance can take place without such permission.
Generally speaking, the exceptions relate to the use of surveillance devices on foreign-flagged vessels in the waters around Australia.
These extraterritorial provisions will enable Australia to more effectively tackle crime beyond our shores and in particular will assist with the ecologically sustainable management of Commonwealth fisheries.
The extraterritorial use of surveillance devices will also complement the recently introduced extraterritorial offences that allow the AFP to investigate Commonwealth offences offshore with the permission of the foreign country.
These provisions are in accordance with international law.
In recognition of the privacy implications of this bill, the bill imposes a range of strong accountability measures.
The most intrusive types of surveillance must be subject to the scrutiny of a judge or an AAT member before the surveillance begins, or, in the case of an emergency authorisation, within two business days after the authorisation has been given.
The subsequent use, disclosure or communication of material gathered by, or relating to, a surveillance device is subject to stringent restrictions.
For example, it is an offence to communicate such material unless it is covered by one of the exemptions.
And record-keeping requirements will ensure that all documents relevant to surveillance device use under warrant or authorisation must be kept to establish a proper compliance paper-trail.
Chief officers of law enforcement agencies using Commonwealth warrants and authorisations must submit detailed reports both after a warrant or authorisation has expired and also annually.
The bill also imposes a duty on chief officers to destroy surveillance device material when it is not longer relevant to one of the permitted purposes in the bill.
The bill contains strong powers for the Commonwealth Ombudsman to inspect law enforcement agencies and their records.
The Ombudsman must report on a six-monthly basis to the Attorney-General, who in turn must table these reports in parliament.
Importantly, the Ombudsman has the power to compel law enforcement officers to answer questions and to produce relevant documents.
This bill will greatly increase the capacity of Australian law enforcement agencies to investigate serious offences, including terrorism, while maintaining appropriate respect for the privacy of all Australians.
I present the explanatory memorandum to the bill. I hope the bill can secure a prompt and speedy passage, and I commend it to the House.
Debate (on motion by Mr McClelland) adjourned.