Surveillance Devices Bills 2004

Last Updated: 9 Dec 2004

This Bill was passed, without amendment, by the Senate on 30 Nov 2004 and the House of Reps on 8 Dec 2004.

The Surveillance Devices Bill 2004 regulates the use of surveillance devices (data, optical, listening and tracking devices) by law enforcement agencies. However it also significantly widens the circumstances in which they can be used and the types that can be used.

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Brief Overview

The Bill seeks to regulate the use of data surveillance, optical surveillance, listening and tracking devices by the Australian Federal Police, the Australian Crime Commission and State/Territory police investigating Commonwealth offences.

It would significantly widen the existing range of offences for which surveillance devices can be used as part of an investigation, and the type of devices that can be used.

Detailed information about the Bill and related background information is available in the Bills Digest prepared and issued by the Parliamentary Library on 27 May 2004.

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EFA Commentary

This complex and lengthy Bill raises a number of serious issues in relation to the appropriate balance between individuals' privacy and freedom from surveillance and the legitimate needs of law enforcement agencies.

Nevertheless, the Bill was introduced into, and rushed through, the House of Representatives in just one week, and referred to a Senate Committee for inquiry during the same period as four other Federal Parliamentary Committees and government agencies had called for public submissions on various matters of concern to EFA.

By the time EFA was in a position to closely analyse the Bill, many of the issues of concern had already been raised in submissions made by Law Council of Australia, the Office of the Victorian Privacy Commissioner and the New South Wales Council for Civil Liberties Inc. to the Senate Committee inquiry.

EFA subsequently sent a submission to the Committee on 18 May 2004 raising an additional issue of major concern regarding the use of data surveillance devices.

As detailed in EFA's submission, EFA believes the Bill presents high potential for data surveillance devices to be used to avoid the need for a telecommunications interception warrant and is strongly opposed to enactment of the Bill without amendments to prevent this occurring.

In relation to the above matter the Committee said in its Report, among other things, that:

"3.49 The Committee takes the view that ambiguity in the application of this kind of legislation has the potential - however unintentional - to give rise to use of powers which would be proscribed under one statute but permitted under another, as in the example given by EFA.

Recommendation 3
3.50 The Committee recommends that the bill and the TI Act be amended to ensure that the circumstances in which similar kinds of surveillance devices are authorised, are clearly described, and that the limitations on their respective use are also clear."

Subsequently, the government introduced a revised Bill (Surveillance Devices Bill (No. 2) 2004) incorporating a few, not all, of the Committee's recommendations and this Bill was also passed by the House. Bill No. 2 does not address the issue referred to in Recommendation 3.

It was stated in the House by Senator McClelland (ALP) on 24 June 2004 that:

"The opposition supports these amendments, which in some instances give effect to the bipartisan recommendations of that Senate committee and, in others, respond to requests by the state and territory governments for amendments to the bill, as outlined by the Attorney-General. Where the amendments do not pick up specifically the recommendations of the Senate committee, the opposition is satisfied from discussions with officials of the Attorney-General's Department that the concerns of the committee are being met in other ways that are appropriate."

EFA is of the opinion that if officials of the Attorney-General's Department claim concerns are being met in other ways, the detail of such other ways should be made available to the Parliament and the public before, or at the same time as, proposed legislation is introduced into Parliament. The disagreement between the A-G's Department/Solicitor-General and the Australian Federal Police/Commonwealth Director of Public Prosecutions concerning the correct interpretation of the TI Act and the Crimes Act (which came to light during a Senate Committee inquiry in March 2004) is notable in relation to reliance on advice from a single government agency.

The concern raised by EFA and in the Committee's Recommendation No. 3 above regarding the SD Bill cannot be addressed in any way other than by amendment to legislation.

Furthermore, the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 will not resolve the issues referred to above. That Bill deals only with the issue of stored communications which is not the same issue as raised in EFA's submission on the Surveillance Devices Bill ("SD Bill").

The issue raised in EFA's submission on the SD Bill is, for example, whether when an individual is engaged in a live chat session (e.g. using Internet Relay Chat) whether law enforcement agencies are required to obtain a TI warrant or a data surveillance device warrant in order to lawfully intercept such highly transitory communications during transit.

While EFA supports the general intent of the SD Bill in regulating the use of surveillance devices by Federal LEAs, in EFA's view the provisions of the Bill go far beyond what is reasonable and appropriate. The Bill is heavily weighted towards granting the wishes of LEAs and therefore does not strike an appropriate balance between individuals' fundamental rights to privacy and freedom from intrusion and the legitimate needs of LEAs. The Bill requires a significant number of amendments before it would contain an appropriate balance, not only with regard to data surveillance devices, but also in relation to matters raised in other non-LEA submissions to the Committee inquiry.

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The Bills

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Senate Committee Inquiry

The Bill was referred to the Senate Legal and Constitutional Legislation Committee on 1 April for inquiry and report by 27 May 2004.

  • Committee web page: Inquiry into the Surveillance Devices Bill 2004
  • EFA Submission to the Inquiry, 18 May 2004
  • Other Submissions to the Inquiry
    (incl. Law Council of Australia, the Office of the Victorian Privacy Commissioner and the New South Wales Council for Civil Liberties Inc.).
  • Hansard Transcript of Committee hearing, 10 May 2004
    (Witnesses: Australian Crime Commission, Australian Federal Police, New South Wales Council for Civil Liberties, Office of the Victorian Privacy Commissioner, Attorney General's Department)
  • Committee Report and Recommendations, 27 May 2004.
    The Committee made the following recommendations:
    Recommendation 1
    The Committee recommends that the time allowed in clause 33 of the bill relating to emergency applications to a Judge or Member be amended from two working days to 48 hours.

    Recommendation 2
    3.43 The Committee recommends that the legislation be amended to include a requirement for the Ombudsman to review (along with warrant records) the records of the use of optical surveillance devices.

    Recommendation 3
    3.50 The Committee recommends that the bill and the TI Act be amended to ensure that the circumstances in which similar kinds of surveillance devices are authorised, are clearly described, and that the limitations on their respective use are also clear.

    [In relation to the above recommendation, the Committee said, among other things, that: " The Committee takes the view that ambiguity in the application of this kind of legislation has the potential - however unintentional - to give rise to use of powers which would be proscribed under one statute but permitted under another, as in the example given by EFA."]

    Recommendation 4
    3.69 The Committee recommends that the bill be reviewed with the states in order to add civil remedies to the appropriate legislation for those who are affected by misuse of the devices.

    Recommendation 5
    3.78 The Committee recommends that the legislation be amended to include a time limit for retention of material of five years, subject to the agency being required to provide justification - certified by the CEO - as to why the material is still needed.

    Recommendation 6
    3.79 The Committee also recommends that the destruction provisions in this bill concerning records kept be brought into line with the provisions contained in the TI legislation.

    Recommendation 7
    3.86 The Committee recommends that the bill be passed, subject to the recommendations set out above.

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Status of the Bill

24 March 2004: Bill introduced into the House of Representatives.

1 April 2004: Bill passed by the House of Representatives and referred to Senate Legal and Constitutional Legislation Committee for inquiry and report by 27 May 2004.

27 May 2004: Senate Committee Report issued.

24 June 2004: A revised Bill, Surveillance Devices Bill (No. 2) 2004, containing amendments addressing a few, not all, of the Committee's recommendations was introduced into the House of Representatives and passed on the same day.

30 July 2004: Bill No. 1 is in the Senate pending resumption of the second reading debate from 11 May 2004. Bill No. 2 had not yet been introduced into the Senate. (The Parliament has been in recess since 24 June until 3 August.)

Aug-Oct 2004: The Bill lapsed when Parliament was dissolved prior to the Federal election (held on 9 October) and was reintroduced after the election.

30 Nov 2004: The Bill was passed by Senate without amendment. (The Democrats sensibly opposed the Bill due to its many deficiencies. As stated by Senator Greig during the debate: "In closing, the view of the Democrats is that the government should start again with this bill. We would advocate a redraft to address those areas that we and others in the community share strong concerns about, and the bill really should start from the premise that the use of surveillance devices should be prohibited and then subject to limited exemptions. The absence of such prohibitions from this bill is fatal to the Democrats' support.")

8 Dec 2004: The Bill was passed by House of Reps without amendment.

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