2nd Reading Speech
21 November 2018
The Hon. ADAM SEARLE (16:49): I lead for the Labor Opposition in debate on the Surveillance Devices Amendment (Statutory Review) Bill 2018, which is cognate with the Terrorism (Police Powers) Amendment (Statutory Review) Bill 2018 and the Road Transport Amendment (National Facial Biometric Matching Capability) Bill 2018. The Opposition does not oppose these bills but has concerns about the Road Transport Amendment (National Facial Biometric Matching Capability) Bill 2018. I note that each bill could have stood on its own. Having spent the past years under-utilising and mismanaging the work flow in this Chamber, the Government is now in a flurry of activity lumping together as cognate a range of bills that do not warrant that treatment.
The objects of the Surveillance Devices Amendment (Statutory Review) Bill 2018 include appointing a Surveillance Devices Commissioner and inserting an objects provision in the Surveillance Devices Act. In addition, the bill aims to make consistent the information that is required to be in a warrant, the information that is required to be in the application for the warrant and the information that is required to be provided to the Attorney General about the application for the warrant. The bill also aims to require an applicant to include in the application known information adverse to the application and to require an applicant to identify persons who may be incidentally recorded by the surveillance device. I will shortly come to reasons why that is so important.
The bill is presented as responding to the statutory review of the Surveillance Devices Act and the report of the Ombudsman on Operation Prospect. The review of the Surveillance Devices Act is dated October 2018 and was tabled on the day that notice was given of the bill. In July 2015, the shadow Attorneyissued a media release saying that the statutory review was then three years overdue. Its tabling in 2018 makes it six years overdue. This rivals the delay in the review of the Defamation Act. The Opposition has often said that this Government’s legislative agenda reminds us of watching grass grow. Its process for statutory review is perhaps even slower than that. Some of the recommendations from the statutory review have forced their way into this bill. Recommendation 3 about optical devices, for example, is in schedule 1 . Recommendation 2 seems to be dealt with in schedule 2 to the bill. I note that not all the recommendations of the delayed review have been implemented in the bill.
The other report relating to this bill and surveillance devices is the report of the Ombudsman on Operation Prospect. The matters that provoked that inquiry and report have been notorious for many years and have attracted considerable attention, including two inquiries of the upper House, both of which I sat upon, as well as the enormous Ombudsman’s inquiry. All of that activity dwarfed the original police operation that was the subject of those inquiries. As a member of the parliamentary oversight committee on the Office of the Ombudsman, the Police Integrity Commission and, subsequently, the Law Enforcement Conduct Commission [LECC], these are matters that have been of considerable interest to myself as well as the shadow Attorney. We remain outraged that a former police commissioner indicated that a 100-name warrant was necessary because of a police function that apparently did not occur. The circumstances of that to me remain shrouded in mystery.
The Ombudsman’s report recommended the establishment of a public interest monitor similar to the Queensland and Victorian models for applications for surveillance devices and telephone intercept warrants. The Operation Prospect process revealed long-term systemic problems with the issuing of warrants for listening devices. The Ombudsman’s recommendation was to establish a public interest monitor in New South Wales. The parliamentary inquiry made a similar recommendation for an Office of Independent Council, I think, to act as contradictor on warrant applications. Of course, this proposal does not approach the contours of that recommendation by the parliamentary inquiry but, nevertheless, this is an improvement on the status quo.
Given that many more warrants are granted in New South Wales than in any other State, it is, in the Ombudsman’s word, “imperative” that New South Wales has an effective regime in place for checking that adequate safeguards are in place. The safeguard of the Attorney General’s role has been in place for some time and, in the Ombudsman’s assessment, it has been ineffective. Merely improving that in a minor way was not adequate. As the Ombudsman said, “Without systemic reforms, the weaknesses evident in NSW’s current safeguards are likely to persist …”. The focus of the Ombudsman is on fixing up the front end of the warrant process.
The Government’s response to recommendations 25 to 30 in volume 5 of the Ombudsman’s report is to create a position known as the Surveillance Devices Commissioner. This is a public service position that requires a legal qualification. New section 51B permits the Attorney General to delegate functions under parts 3 and 5 of the principal Act to a number of positions including the Surveillance Devices Commissioner. This delegation power seems to be the origin of the commissioner’s powers. In his second reading speech the Attorney General specified what the commissioner will do. The commissioner will receive advanced notice of applications for warrants with all the information that will be given to the judicial officer, assess whether the application is procedurally compliant, work with agencies to remedy inefficiencies before they are lodged, have the right to be heard by the judicial officer in relation to issuing a warrant, and receive reports about the use of the device.
The commissioner will prepare an annual report to be contained in the department’s annual report setting out the number of applications made, withdrawn and refused, and the number of applications in which the commissioner was heard. I pause to indicate that these are heavy burdens to place on any person—but particularly a public servant—who is not an independent statutory officer or independent of Executive Government. I hope in any recruitment to the role that the Government is realistic in the levels of skills and qualifications that will truly be required for the proper and effective discharge of the role.
Much of what the Surveillance Devices Commissioner will do is similar to the recommendations of the Ombudsman and has an echo of the recommendations made by one of the parliamentary inquiries upon which I sat. There are, however, some significant variations. I ask the Government to explain in reply why the recommendations have been departed from. The bill does not extend the role of the commissioner to deal with telephone intercept warrants, for example, as was recommended by the Ombudsman and, I think, the parliamentary inquiry. There does not seem to be an explicit acknowledgement of the entitlement of the commissioner to ask questions before the judicial officer of any person giving information in relation to the operation. The reporting provisions in the bill are not as wide as those recommended by the Ombudsman. In particular, the commissioner’s reports would seem to be merely numerical, with recommendation 30 of the Ombudsman also extended to reporting information about the hearings where there was intervention to raise issues and question applicant witnesses.
The other issue that should be explained to the Parliament deals with the role of the Attorney General. The Ombudsman’s proposals seem to envisage the Attorney General retaining a role, with the public interest monitor having a separate role. The bill before the House seems to replace the role of the AttorneyGeneral with that of the commissioner, which sidesteps recommendation 28. It would seem to the Opposition to be appropriate to have some explanation of thatplaced upon the record. The issue of the commissioner is the most important in the bill, although other provisions should be noted, many of which reflect the Ombudsman’s recommendations.
A new objects clause is provided with a reference to a privacy focus, consistent with recommendation 34. Recommendation 17 is amended, specifying the information to be included in the warrant. An affidavit must support the application and it should identify those who may be incidentally recorded by the device. Of course, that was one of the notorious aspects of Operation Prospect and was subject to a recommendation by the Ombudsman and, I think, the parliamentary inquiry. The affidavit will have to include any information known to the applicant that is adverse to the application.
I now deal with the second of the cognate bills: the Terrorism (Police Powers) Amendment (Statutory Review) Bill 2018. The object of the bill is to give effect to the recommendations of a statutory review by amending the Terrorism (Police Powers) Act. The review was tabled on 7 June this year following a report of a review by the Ombudsman tabled in June 2017. The statutory review followed, pursuant to section 36 of the principal Act. This was the sixth statutory review of the Act. The review covers the period from 2015 to 2018, during which time a number of amendments were made to the principal legislation. The review confirmed that part 2AAA powers and part 2AA powers have never been used and part 2A powers have not been used since 2014. The review states:
SURVEILLANCE DEVICES AMENDMENT (STATUTORY REVIEW) BILL 2018
TERRORISM (POLICE POWERS) AMENDMENT (STATUTORY REVIEW) BILL 2018
ROAD TRANSPORT AMENDMENT (NATIONAL FACIAL BIOMETRIC MATCHING CAPABILITY) BILL 2018
For a range of different reasons, the rare use of these powers is a positive thing. Schedule 1  to the bill continues the part 2A scheme for three years; that is, the “sunsetting” will be deferred for three more years. The Ombudsman’s report to which I referred earlier recommended that part 2A be allowed to lapse on 16 December 2018. That part deals especially with preventative detention orders and prohibited contact orders. In the foreword to his report, the then acting Ombudsman Professor McMillan argued that part 2AA powers introduced in 2016 effectively made the part 2A powers redundant. Accordingly, part 2A should be allowed to lapse. That being the case, whether they lapse is perhaps not of great importance. The fact that they are not utilised in one sense may be a case for their continuation. One is hardly able to argue that they are being overused or used inappropriately if they are not being used at all. The Opposition supports the bill as it is drafted.
Schedule 1  notes that the safeguards of part 15 of the Law Enforcement (Powers and Responsibilities) Act apply to part 2, division 3 of the principal Act, in accordance with recommendation 2 of the statutory review. Section 23 is amended so that the current two‑stage warning required to be given by police to a person concerning part 2 powers is reduced to a single warning. Annual reporting is improved in accordance with recommendations 3 and 4 to improve the gathering of statistics. Schedule 1  enables the Supreme Court to order that legal aid be provided to a terrorism suspect concerning proceedings related to the person’s investigative detention. Proposed new section 25MC requires suspects under investigative detention to be treated with humanity and respect for human dignity and not be subjected to cruel, inhumane and degrading treatment. Proposed new section 25MA requires police to inform a terrorism suspect in investigative detention of the right to contact a lawyer and the Law Enforcement Conduct Commission [LECC].
The Act is amended to allow police to take photographs or video recordings of a detainee to document an illness or injury. This seems to be necessary because the police believe the current ban on obtaining identification material from a detainee extends to cover that situation. This proposal was made to the review by the police. The Act is also amended to require the police to advise a detainee that contact with the detainee and others will be monitored. The provisions relating to personal searches under the Law Enforcement (Powers and Responsibilities) Act are applied to searches under the principal Act; that was also a recommendation of the statutory review. The bill increases the maximum limit from two hours to four hours for contact between a person under 18 or with impaired intellectual functioning and a parent and other person. Schedule 1  requires police to offer further assistance and information to such detainees.
There are also changes to the provision relating to the supply of information from police to the LECC, which has, of course, replaced the Ombudsman in overseeing this regime. In a previous review, the Ombudsman had reported that his oversight functions were hampered by his ability to access police information. This was caused by Commonwealth secrecy provisions and claims of public interest immunity by the police. The Ombudsman had called for the principal Act to be amended to make it consistent with the Ombudsman Act and the Law Enforcement Conduct Commission Act, which prevented public interest immunity claims in response to a requirement to provide information. The statutory review noted it was “concerning” that the Ombudsman could not form a comprehensive and informed view of the operation of the Act without access to key documents. On pages 57 to 58 the review stated:
Part 2A powers are extraordinary and depart from long-established principles on detention. NSW Parliament recognised this when the legislation was enacted by establishing a robust scrutiny function. The NSWPF and the LECC should work to address the issues identified by the Ombudsman.
The end result is schedule 1  and 1 , which require the police to provide the information to the LECC subject to conditions to prevent sensitive information being accessed or made public. There is also a limited capacity for redaction or withholding information. This is not quite what the Ombudsman requested in previous reports. The Opposition’s view is not to seek to amend the provisions at this stage but to see how they work and address any changes subsequently needed. If at a later point the LECC advises that they do not work adequately, the Opposition will reconsider its position. At the moment it does not oppose the bill and what is proposed in the bill is definitely an improvement on the current situation.
The third and final cognate bill is the Road Transport Amendment (National Facial Biometric Matching Capability) Bill 2018. The bill’s object is to amend the Road Transport Act. The amendments aim to authorise Roads and Maritime Services and certain other New South Wales government agencies to release photographs and associated information to the National Facial Biometric Matching Capability, to collect such material from that capability, and to keep and use those photographs or information for any lawful purpose in connection with the exercise of the agency’s functions. This capability is administered by the Commonwealth and stems from an Intergovernmental Agreement on Identity Matching Services entered into by the Commonwealth and the States and Territories in October 2017.
The challenge in the era of big data is to get the balance right between the availability of information for useful purposes and the protection of privacy. The Opposition does not think that this Government has got the balance right over the past eight years. As a consequence, the Opposition has introduced several private member’s bills during that period to try to do so. All of those proposed measures have been rejected by the Government. Most obviously, this bill should be accompanied by a regime of mandatory reporting of serious breaches of privacy by State agencies. Such a regime is good enough for the Federal Government but apparently not for the current State Government. We will have to await the election of a Labor Government in March 2019 for that to be remedied. As I said, Labor does not oppose the bills but it is cautious about the provisions in this bill particularly and proposes to look closely at how they are implemented and what, in fact, happens as a result of their adoption.
It is worth mentioning that in one of the innovations that we are trialling this year in this place, this bill was referred to the Standing Committee on Law and Justice. On 12 November that committee of this House reported on the bill; members should look at the report to be sensible of the concerns of stakeholders reflected in the report. During the short inquiry, the committee considered a number of concerns raised by stakeholders regarding the bill and the Commonwealth’s Identity‑matching Services Bill. That is because the Commonwealth legislation provides the overarching framework for the new biometric face‑matching services.
The committee noted concerns by stakeholders, including whether there are appropriate privacy safeguards in both bills; as I indicated, at a State level I do not think there is. There was also concern that the New South Wales Parliament is enacting its regime before the Federal regime is put in place. That does rather seem to be putting the cart before the horse. The NSW Council for Civil Liberties, Australian Lawyers for Human Rights and the Law Society of NSW have raised concerns with the present legislation, including that it facilitates the ability to provide information to local government and on government bodies and is inconsistent with the Intergovernmental Agreement on Identity Matching Services, which is the stated basis for the legislation. There is also concern that the legislation contains ineffective privacy safeguards and is seen by some as creating a virtual identity card. There is concern that it may facilitate profiling, which of course would be most unfortunate. Further, the Australian Lawyers for Human Rights have argued that the bill before the House should not be passed because it opens up citizens to additional and unwarranted government surveillance. Their submission to the committee stated:
The Federal bills exempt the Federal Government from normal operation of Australian privacy principles and allow individuals’ personal and sensitive information, including biometric data to be used for any purpose the Commonwealth may wish. The Federal bills do not respect privacy but enable surveillance and exploitation. NSW residents should not be made part of these arrangements.
Australian Lawyers for Human Rights were also concerned that under both the State and the Commonwealth bills data is able to be obtained for one purpose but used for other purposes. The Law Society, not a noted left-wing outfit, was also concerned about the scope and reach of the capability and the associated risks of unnecessary encroachment upon the privacy of citizens. The absence from the legislation of a comprehensive data management or privacy code, as it were, is a concern. A number of inquiry participants noted their unease that the incidental collection of certain biometric data could lead to the capability being used for racial profiling, which I think is a legitimate concern and should be addressed by the Government.
Stakeholders were, of course, united in the view that the facial matching capability for the purposes of law enforcement such as in the event of a terrorist attack or a siege situation is a sensible and important measure. Ultimately it is for those reasons and those considerations that the Opposition will not be opposing the legislation. But, as I said, we on this side are concerned about some of the matters that have been raised. The committee recommended that the Government should use the opportunity of the parliamentary debate on this bill to address the concerns raised by stakeholders. That has not yet happened. We earnestly hope that the Government will do so in reply before the bill passes this place.
In particular on page 16 of its report the committee recommends that the Government during the debate on the bill should address why the road transport bill is being considered before the Commonwealth legislation passes, why specific privacy safeguards are not included in the road transport bill and explain whether New South Wales will allow its agencies to enter into participation agreements with local government and also with non-government bodies. It is of course that possibility that raises serious concerns about how the data being collected will ultimately be applied. I think reasonable people will concede that the collection and use of this data for law enforcement and antiterrorism measures is fine but the danger of it being misused, leaked or used for other purposes is not. The Government should only be collecting the data on its citizens for the stated purposes—purposes directed to public safety and the like. With those comments, we on this side do not oppose the bills but we are concerned about the third of the cognate bills and hope the Government addresses those matters before we vote.