SURVEILLANCE DEVICES BILL
29/11/2012
The Hon. K.L. VINCENT (16:53): I wish to put on the record my deep reservations concerning this bill before us. One of my major concerns with the bill relates to the issue of consent and, in particular, the issue of implied consent. The issue arises several times throughout the bill, particularly when outlining when a private citizen is permitted to make use of an audio or video recording device or a tracking device. I am of the very firm opinion that it is not a sufficiently high standard in relation to an invasion of privacy of this magnitude.
I feel strongly that such devices should only be able to be used with explicitly expressed consent. Efforts have been made to allay these concerns, with examples such as the implied consent of a shopper who passively accepts that their activities will be recorded while in a place of business as part of the owner’s efforts to combat shoplifting. This seems to be a fair enough example, and it accords well with the other provisions of the bill. However, the open-ended language employed leaves open a number of other issues.
I hold grave concerns about how this legislation, as currently framed, would operate in our modern technologically advanced and advancing society. Could a young person be taken to implicitly consent to a parent secretly recording them or tracking them through a device implanted in their car, or software installed on a mobile phone, for example? What about one spouse recording or tracking the other, or perhaps an employer using this technology in relation to their employees?
Given recent advances in smart phones and other mobile devices, the implications extend even wider, with the potential for private companies to collect information about individuals on the basis of implied consent or artificial consent obtained through complicated and confusing end user licence agreements. Beyond these concerns about the bill as it relates to private citizens, I have significant and far-reaching concerns regarding the broad and sweeping powers conferred on law enforcement.
While I recognise there is a need to put in place emergency provisions, I believe these provisions go too far. The fact is that an emergency authority can be in place for up to two days, collecting information without the courts having any oversight regarding the exercise of powers or the opportunity to consider the merits of an application.
Under those circumstances it is alarming that the bill offers no indication of whether or not a court’s refusal to confirm an authority renders inadmissible the information gathered in those first 48 hours, while in that two-day period the police are authorised, without the oversight of the courts, to force entry into business premises, vehicles and people’s homes and install surveillance devices.
Now, under the circumstances where these emergency authorities are brought into play, these sorts of powers are perhaps called for—perhaps—but the bill permits these sort of invasive actions in situations quite far removed from such serious offending. Through its interaction with other legislation, the bill raises the prospect that these kinds of powers could be used in relation to relatively minor summary offences and even in relation to unexplained wealth proceedings, where offending is purely hypothetical.
Given these very serious questions that exist regarding the issue of consent, the apparently overly generous powers given to police in relation to relatively minor offending, the concerning aspects of the emergency authority provisions, and the many other concerns that have been raised by the public, the media and my parliamentary colleges, I do not support the passage of the bill in its current form.
I am of the firm belief that the bill should be referred to a select committee, as the Hon. Mr Wade has suggested in his contingent motion, and that these issues can be and should be thoroughly examined. I understand that the government is also proposing to refer parts of the bill to a committee and to substantially amend other parts, though as yet I have not had the opportunity to read and consider those particular amendments.
