Surveillance Devices Bill 2007



About this Item
SpeakersSmith Mr Greg; Paluzzano Mrs Karyn; Campbell Mr David; Assistant-Speaker (Ms Alison Megarrity)
BusinessBill, Division, Message, Agreement in Principle, Consideration in Detail, Passing of the Bill, Motion


SURVEILLANCE DEVICES BILL 2007
Page: 3970

Agreement in Principle

Debate resumed from 6 November 2007.

Mr GREG SMITH (Epping) [8.31 p.m.]: I lead for the Opposition in relation to the Surveillance Devices Bill 2007. The Opposition does not oppose the bill, although we will seek to move amendments in this House and the upper House. The bill replaces the Listening Devices Act 1984 and will expand the application of the legislation so that it applies to three other categories of surveillance devices, including data surveillance devices, optical surveillance devices and tracking devices. It is said that the bill implements national model legislation that was developed by a joint working group of the Standing Committee of Attorneys-General and Australian Police Ministers Council on National Investigation Powers. It is noted that similar amendments have been made in the legislation of other States and Territories, some commencing in 1998—in Western Australia—as well as in Victoria, the Northern Territory, South Australia and in Commonwealth legislation. The Minister for Police stated:

      Serious crimes like murder, terrorism, drug manufacture and importation make it essential that our law enforcement agencies have every possible tool at their disposal to make their investigations and prosecutions as successful as possible.
The Opposition certainly agrees with that proposition. Two of the three new categories of surveillance devices, namely optical surveillance devices and tracking devices, have been used for many years. The sophistication of those devices has improved rapidly in recent years. Both have involved breaches of privacy, and defence lawyers have raised issues of unlawful trespass in the past, sometimes successfully. All four methods of surveillance—data surveillance devices, listening devices, optical surveillance devices and tracking devices—together with physical surveillance can be of great assistance to law enforcement authorities in investigating serious crimes.

The clauses of the bill reflect, in part, changes in social policy and attitudes. The Listening Devices Act 1984 tightened up the provisions of its precursor, the Listening Devices Act 1969. It is clear that this tightening up largely reflected the annoyance experienced by members of the Wran Government, particularly the Premier, towards the existence of and publicity given to the Age tapes, as they were called. The report of the Royal Commission of Inquiry into Alleged Telephone Interceptions, known as the Age tapes royal commission, was presided over by Mr Justice Donald Stewart. For many years, some members of the NSW Police Bureau of Criminal Intelligence had, in conjunction with members of the Australian Federal Police, illegally taped telephone conversations of prominent citizens, suspected criminals, politicians, judges, lawyers and businessmen. They also used listening devices to bug conversations between some of them.

That taping was done with a claimed good motive, prompted by the restrictive policies previously in place regarding telephone intercepts that authorised intercepting only for Customs Act drug offences and national security inquiries. Until the mid-1980s the Australian Federal Police commissioner would allow such material to be used for intelligence purposes only, not as evidence in court. In 1984 debate on both sides of the House on the Listening Devices Bill emphasised the need to protect privacy, with the only significant exceptions being when a warrant to install and use listening devices was granted by a Supreme Court judge with requirements that, firstly, copies of details concerning the proposed warrant were required to be served on the Attorney General, who delegated that function to the Solicitor General.

The Attorney could be represented at the hearing of the application in chambers and given an opportunity to be heard in relation to the granting of the warrant. On occasions a Solicitor-General has appeared in a judge's chambers and opposed warrant applications. The second requirement was that the court be later notified of the retrieval of the device. The third requirement was that a report be submitted to the court and to the Attorney General concerning the use of the listening device and its retrieval. Part 3 of the Listening Devices Act 1984 made evidence obtained illegally generally admissible. The Act imposed a stricter standard on that type of evidence than that imposed on other illegally obtained evidence. In contrast, the Surveillance Devices Bill 2007 is silent on admissibility, except concerning emergency use of a surveillance device. The question of admissibility of illegally or improperly obtained evidence will be decided by courts applying the provisions of the Evidence Act 1995, particularly section 132. Issues in relation to listening devices will be treated like any other evidence that may well have been unlawfully or unfairly obtained.

The bill makes three other important changes. Firstly, the bill provides that warrants can authorise the use of a surveillance device to gather evidence for Commonwealth offences and offences against the laws of other States and Territories. That is a good provision, and it emphasises that organised criminals do not recognise jurisdictional borders. Secondly, the bill provides that surveillance devices may be used in an emergency without warrant where there are reasonable grounds to believe that an imminent threat of serious violence, or substantial damage to property, or a serious narcotics offence will be committed. A law enforcement officer is required to apply to an eligible judge for approval within five days of the use of the device without a warrant. That is in contrast to the Listening Devices Act 1984, which allows for telephone or radio applications to be made for a warrant to last 24 hours in urgent cases and, where necessary, documents have to be supplied within 24 hours of the radio or telephone application.

Thirdly, the bill will allow for warrants for serious crime for up to 90 days. The Listening Devices Act 1984 allows judges to grant warrants for up to 90 days, but for terrorist offences only. Currently warrants for other serious offences are limited by the Listening Devices Act 1984 to 21 days. The Listening Devices Act 1984 was long overdue for a major overhaul to allow monitoring of other surveillance methods and the bill is generally consistent with the enactments made by the Commonwealth and other jurisdictions. Also, provisions of the Evidence Act 1995 are sufficient to ensure that evidence obtained unlawfully or unfairly is properly dealt with. I refer to the recent decision in Em v The Queen (2007) HCA 46, decided on 4 October 2007.

The provisions allowing coverage for Commonwealth and interstate offences are sensible. As I have said, organised crime ignores jurisdictional boundaries. The Opposition has some arguments against certain provisions of the bill. No case has been made out for such a lengthy extension of the maximum available time for a warrant. Provisions made for the unique offences surrounding terrorism have already been arguably abused, and this goes against the wider ambit of the bill.

I note a decision of Justice Adams made in the last week or so that has led to the Commonwealth Director of Public Prosecutions not proceeding any further in a Commonwealth prosecution on terrorist charges. The court should maintain its independent scrutiny. We submit that the surveillance device warrant period should remain 21 days lest powers be abused. I am not saying that hardworking and honest police, who comprise the vast majority of police in this State, would abuse those powers, but there have been cases in the past where irregularities have been discovered and the courts have rejected evidence even where a warrant has been granted.

In recent years the New South Wales Crime Commission may have abused listening device powers when it obtained a warrant with hundreds of targets, including journalists and police—something that attracted considerable publicity. The five-day emergency period does not appear justified. Victoria allows two days and the Commonwealth allows three days. The Opposition asserts that two days should allow sufficient time to prepare documentation to obtain the necessary judge's approval. Accordingly, I foreshadow an amendment to reduce the maximum period of the surveillance device warrant from 90 days to 21 days and a further amendment to reduce the emergency period from five business days to two business days. Otherwise, the Opposition does not oppose the bill.

Mrs KARYN PALUZZANO (Penrith) [8.41 p.m.]: I speak in support of the Surveillance Devices Bill 2007, which is designed to replace the Listening Devices Act 1984 with a more modern and regulatory scheme for law enforcement surveillance devices. The bill is based on national model laws that so far Queensland, Victoria and Tasmania have implemented. The new laws will allow surveillance warrants to be used by police and other law enforcement bodies in cross-border operations with participating jurisdictions. This will mean that law enforcement officers will be able to obtain one warrant for a range of new devices, with the warrant applying in New South Wales and neighbouring States.

The scheme requires law enforcement agencies to apply to the Supreme Court for a warrant to use listening devices, optical surveillance devices and data surveillance devices, and to the Local Court to use tracking devices. These laws represent the biggest ever shake-up of surveillance laws in New South Wales law enforcement history. It will give police the tools they need to target serious crime, with appropriate oversight by the courts. Crime syndicates are becoming smarter and technology is becoming more advanced.

The New South Wales Government is committed to giving our law enforcement officers the power they need to stay ahead of the game. These new laws regulate the installation, use, maintenance and retrieval of surveillance devices; establish procedures to obtain warrants for emergency authorisations for surveillance devices; create offences relating to the improper installation or use of surveillance devices; and impose requirements for the secure storage of records, and reporting to Parliament.

The duration of a warrant will be extended from 21 days to 90 days. This will cut red tape for hardworking law enforcement officers, who will not have to continually reapply during long-running investigations. Also, they will not have to obtain additional warrants if an operation takes them outside New South Wales. The bill will also allow for remote application by phone or fax where it is not practical to make the application in person. Police, the Police Integrity Commission, the Independent Commission Against Corruption and the New South Wales Crime Commission will be able to use the warrants. These new laws reflect emerging technology used by our law enforcement bodies to fight serious crimes like terrorism. They will further add to this the operational needs of police by allowing them to covertly install, monitor and retrieve a range of devices.

Today I attended the awards ceremony of the National Medal, the Police Medal and the Regional Commander's Citation for Penrith Local Area Command, St Marys Local Area Command, Blue Mountains Local Area Command and Hawkesbury Local Area Command. Ben Feszczuk, Penrith local area commander, was the host for the day. A number of people received the National Medal and the Police Medal and clasp. One person was awarded for 30 years service, while some had 20 years service and others had 10 years service. I commend those officers who received the Regional Commander's Citation for a number of operations in the local area commands. I congratulate all the officers who were present today. It gave me pleasure to represent the Minister for Police and to support front-line services. This bill will support front-line police in New South Wales and I commend it to the House.

Mr DAVID CAMPBELL (Keira—Minister for Police, and Minister for the Illawarra) [8.46 p.m.], in reply: I thank the member for Penrith for her contribution to this debate and her support for the bill. I thank her also for her well-known support for the hardworking police in the Penrith Local Area Command in particular, but also across the greater western suburbs of Sydney. I acknowledge the contribution of the member for Epping, who led for the Opposition. Unfortunately, he reinforced the lack of support for modern-day policing by the New South Wales Opposition and lack of support for hardworking police in difficult circumstances. It demonstrates again the Opposition's lack of support for New South Wales police.

The Government will oppose the foreshadowed amendments because they are not consistent nationally and they are not consistent with putting in place contemporary rules and legislation. With respect to warrant time frames being extended from 21 days to 90 days, the period of 90 days is in line with modern laws. I note that the Standing Committee of Attorneys-General and the Australasian Police Ministers Council Joint Working Group on National Investigative Powers looked into this issue. The working group found that the 90-day period was consistent with existing legislation in Victoria, the Northern Territory, Western Australia and South Australia and was consistent with the duration of interception warrants issued under the Commonwealth Telecommunications (Interception) Act 1979.

Again I note that the New South Wales Government's legislation is consistent with the Commonwealth and most other State jurisdictions while the New South Wales Opposition is out of step. The working group concluded that the 90-day period achieved an appropriate balance between the operational needs of law enforcement in having enough time to covertly install, monitor and retrieve the surveillance device and the need for periodic judicial scrutiny of the use of surveillance devices. Page 407 of the report of the working group states:
      There were three submissions on the duration of surveillance device warrants all supporting the maximum 90-day period.

The report states that those submissions were from the International Commission of Jurists, the New South Wales Police Force and the New South Wales Council for Civil Liberties. That is right—the New South Wales Council for Civil Liberties supports a 90-day period for warrants to remain in force. Turning to the issue of emergency authorisations, the model laws provide for a period of two days and the New South Wales Government's proposal is for a period of five days. Clause 33 requires law enforcement agencies to apply to an eligible judge for retrospective approval to use a surveillance device without a warrant no later than five days after the surveillance device is used.

While the model laws allow for a period of only two days, the Government determined that a five-day period would more appropriately accommodate the operational needs of law enforcement agencies and support front-line police in New South Wales. The five-day period strikes an appropriate balance between preserving existing emergency powers under the Listening Devices Act and observing the underlying policy of the model laws. I will refer to this issue in more detail as I think it is important. Only in limited circumstances will law enforcement officers be able to use a surveillance device without a surveillance device warrant. The limited circumstances include situations that involve an imminent threat of serious personal violence, substantial damage to property or a serious narcotics offence being committed when the use of the device is necessary immediately for the purpose of dealing with that threat.

This scheme is based on a combination of the model laws and existing provisions in the Listening Devices Act. Again, the amendment proposed by the Opposition would hamstring New South Wales police as they go about protecting people from serious personal violence, preventing substantial damage to property or preventing serious narcotics offences from being committed. So there are restrictions. If information is obtained using a surveillance device in an emergency situation that is subsequently not judicially approved, it will be a matter for the court to determine admissibility in accordance with section 138 of the Evidence Act. The bill also contains provisions for the use of the device to cease and to be retrieved if an emergency warrant is not granted. Whether or not the application is approved, the court has the discretion to make orders about the information obtained from the use of the device or from records of that information. That would empower the court to order the destruction of the material if it were appropriate. So there are some important safeguards to that limited use.

I have said on a couple of occasions that this will obviously support the efforts of front-line law enforcement officers in New South Wales. This bill replaces the Listening Devices Act 1984 with a more modern regulatory scheme for law enforcement surveillance devices. The bill implements the Government's commitment to enhancing measures for dealing with multi-jurisdictional crime and terrorism. The bill is based on the model legislation drafted by the Standing Committee of Attorneys-General and the Australasian Police Members Council joint working group on national investigation powers. The scheme will govern the use of four types of surveillance devices: listening devices used to monitor or record sound; optical surveillance devices used to record or monitor images; data surveillance devices used to record the data input or output of a computer; and tracking devices used to monitor the geographical location of targets.

The scheme will also allow for the extra geographical operation of New South Wales warrants once the legislation has been recognised as corresponding law by other Australian jurisdictions, which means that a warrant issued in New South Wales will authorise the use of devices in other participating jurisdictions. The bill also establishes a thorough monitoring and oversight regime that is commensurate with the nature of this type of investigation power. I commend the bill to the House.

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.

Consideration in detail requested by Mr Greg Smith.

Consideration in Detail

Clauses 1 to 19 agreed to.

Mr GREG SMITH (Epping) [8.56 p.m.], by leave: I move Opposition amendments Nos 1 to 3 in globo:

No. 1 Page 19, clause 20 (1) (b) (ix), line 17. Omit "90 days". Insert instead "21 days".

No. 2 Page 22, clause 22 (1) (a), line 19. Omit "90 days". Insert instead "21 days".

No. 3 Page 25, clause 28 (1) (b) (v), line 30. Omit "90 days". Insert instead "21 days".

It has been suggested that a group of police Ministers and Attorneys General got together about six or seven years ago and said that 90 days would be a more suitable period for warrants to remain in force, but that ignores the fact that this legislation involves a massive breach of privacy and that previous legislation has been misused on occasions. I refer to the case of Barbaro in which Mr Justice Dowd issued warrants and Mr Justice O'Keefe ruled that one of the warrants was invalid. In other cases warrants have been found to have been invalid after an original warrant was issued and an application had been made for the warrant to be rolled over, as it were.

Apart from former police Ministers I am probably the only member of this Parliament who has been involved in drafting affidavits for, and obtaining listening device warrants from, Supreme Court judges. I did so when I worked for the Independent Commission Against Corruption as counsel assisting in the Operation Milloo investigation. In that case we made an effective use of listening devices, particularly in the area of gaming infringements, but it was tightly controlled. From my attendance in judges' chambers and matters of that sort I observed that judges took their work very seriously and that they were careful to ensure the further information that was given to them was sufficient to continue the warrant. On occasions they did not continue a warrant.

A period of 90 days is a very long time for the continuation of any warrant. Generally listening device warrants are effective only if surveillance police back them up, and as surveillance police are needed all over the place they are in short supply everywhere. If this Government wants to continue these warrants for 90 days because it might be able to get back to them, much of that period would be ineffective. Sometimes warrants are continued for a period of 21 days, or for shorter periods. Not every police officer that is involved in an investigation is operational; some police officers are involved in intelligence. Those people could update warrants using lawyers from the police service who had made the applications and there is no reason why that could not be done every 21 days.

It is better to have people checking these warrants because on occasions errors are made and abuse can creep in. The Government wants to continue these warrants for 90 days so that abuse can creep into the system. It is too long a period for such warrants and discipline will slacken. If people have to do things quickly they are much more likely to do them. I was reminded recently of a sexual offender who was due to be released from jail, but unfortunately the Government left it until the last week to make the necessary application. It had six months within which to do so but it left it to the last week. I admit that we have all learned a lesson from that, but in the first instance the judge would not allow that fellow to be released and it took the expense of an appeal and other matters to get him back under control.

Establishing a long period allows abuses to creep in. The New South Wales Police Force does a wonderful job, working together with police task forces, the New South Wales Crime Commission, the Australian Crime Commission and the Federal police. But all those forces have had problems over the years. Some of those problems have shown the misuse of telephone intercepts and listening devices. After all, the Age tapes royal commission arose from great abuse on the part of New South Wales and Federal police and, I understand, other State police, because they were frustrated. This is one of the reasons why the legislation was tight in 1984, and it should remain to some extent tight.

It has been suggested that the Opposition is putting up some sort of obstruction to the legislation and creating more red tape. Who introduced the Law Enforcement (Powers and Responsibilities) Act, which brought in more red tape than we have ever had in this State before? The Carr Government introduced that legislation, putting in enormous amounts of red tape and restrictions. There were problems with continuity and other problems with keeping records, so the Carr Government brought in the red tape. What has happened since? Now we are starting to whittle away. Police are saying, "There is too much red tape."

Police now have the ridiculous criminal infringement notices starting to apply to serious crimes. That is being rubbished by the community. Indeed, the community is outraged. For the Minister to suggest that he represents the goodwill of New South Wales, that anything he says about police must be right, and that he will allow police to do anything they like, is overstepping the mark. The Coalition also represents the people of this State, and we will make sure that proper scrutiny is kept in legislation. That is why we seek to change the period to 21 days, which can be from time to time reviewed in a proper way so that the judge is satisfied that it is appropriate to keep bugging someone.

Mr DAVID CAMPBELL (Keira—Minister for Police, and Minister for the Illawarra) [9.02 p.m.]: The member for Epping clearly identified that what is proposed by way of his amendments will require more red tape. As he sought to defend himself, he condemned himself, because this is something that will require more red tape. It will mean that Supreme Court judges, rather than hearing criminal cases, will be tied up shuffling paper. Once again I point out that two of the three groups that have made submissions to the joint working group of the Standing Committee of Attorneys-General and the Australasian Police Ministers Council and who said that we should extend the period from 21 days to 90 days were the International Commission of Jurists and the New South Wales Council for Civil Liberties. The fact that the New South Wales Council for Civil Liberties made that submission blows out of the water all the arguments we have heard from members opposite.

It is also wrong for the member for Epping to assume that there will be no oversight of the use of the device during the 90 days. Clause 24 makes that very clear, and there will also be significant oversight by the Ombudsman. Further with regard to oversight, compliance and monitoring, the new laws will establish a thorough monitoring and oversight regime, including reports to the Attorney General and to the issuing judge on the execution of the warrant; statistical reporting to the Parliament by the Attorney General; requirements for record keeping; inspection and audit of records by the Ombudsman; and Ombudsman reports to Parliament.

The protected information provisions in the bill will ensure that information obtained pursuant to a warrant or emergency authorisation is subject to tight controls. Strong penalties will apply to the unlawful communication or publication of such information, including imprisonment for up to seven years. By any measure there is oversight and by any measure there is support. As we have seen from the comments of the Opposition, the amendments do not take account of evolving, emerging or current technology, and will simply add to the burden of red tape in the system. For those reasons the Government opposes the amendments.

Mr GREG SMITH (Epping) [9.05 p.m.]: I wish to respond to the Minister's comments. The suggestion that the Ombudsman will supervise the warrants when they are operating is simply absurd. There is no way police will allow the Ombudsman into the investigation while it is being conducted. These operations are run confidentially. Even the Minister might not be told what is happening, nor other members of the Police Force. That is how these operations usually run: they keep it tight within the operation. Any supervision that takes place happens much later—perhaps six months later, perhaps even a year later. The Ombudsman does not look at one operation at a time; he looks at the whole lot. Once a year he does an audit. That is what he does with the telephone intercept material as well.

I am not impressed by the Minister's comment that the Council for Civil Liberties may approve the 90-day period. I have not seen it. I do not disbelieve the Minister: he is, I am sure, a truthful man. But I do not know the circumstances in which the Council for Civil Liberties allowed that; I do not know whether it was limited to terrorism. That is all the council has sought permission for in the past, to extend the period to cover terrorism. One could make a different case for terrorism than for ordinary crimes. Crime is serious whatever it is, and the type of crime that is monitored by this sort of legislation is undoubtedly serious crime. We should not waste the time of the operation and the surveillance officers on minor matters. They are serious matters, and there are a lot of serious matters and we only have a certain number of police officers to deal with them.

Some police will want to allow the 90 days to run. Then we get into competition about who gets the surveillance. Different squads fight against each other, someone has to arbitrate, and then the surveillance is limited to a couple of weeks, so much of the 90 days is wasted. It is better to have the short, sharp 21 days, with the judge reviewing the warrant and everyone considering, "Is it worth the expenditure, is it worth the resources to keep going on this, or do we just give them carte blanche: they can investigate into the future for years?"

Question—That the amendments be agreed to—put.

The House divided.
Ayes, 34
Mr Aplin
Mr Baird
Mr Baumann
Ms Berejiklian
Mr Cansdell
Mr Constance
Mr Debnam
Mr Draper
Mr Fraser
Ms Goward
Mrs Hancock
Mr Hartcher
Ms Hodgkinson
Mr Kerr
Mr Merton
Mr Oakeshott
Mr O'Dea
Mr O'Farrell
Mr Page
Mr Piccoli
Mr Provest
Mr Richardson
Mr Roberts
Mrs Skinner
Mr Smith
Mr Souris
Mr Stokes
Mr Stoner
Mr J. H. Turner
Mr R. W. Turner
Mr J. D. Williams
Mr R. C. Williams

Tellers,
Mr George
Mr Maguire

Noes, 48
Mr Amery
Ms Andrews
Mr Aquilina
Ms Beamer
Mr Borger
Mr Brown
Ms Burney
Ms Burton
Mr Campbell
Mr Collier
Mr Coombs
Mr Corrigan
Mr Costa
Mr Daley
Ms D'Amore
Mrs Fardell
Ms Gadiel
Mr Gibson
Mr Greene
Mr Harris
Ms Hay
Mr Hickey
Ms Hornery
Ms Judge
Ms Keneally
Mr Khoshaba
Mr Koperberg
Mr Lynch
Mr McBride
Dr McDonald
Ms McKay
Mr McLeay
Ms McMahon
Mr Morris
Mrs Paluzzano
Mr Pearce
Mrs Perry
Mr Rees
Mr Sartor
Mr Shearan
Mr Stewart
Ms Tebbutt
Mr Terenzini
Mr Tripodi
Mr West
Mr Whan


Tellers,
Mr Ashton
Mr Martin

Question resolved in the negative.

Amendments negatived.

Clause 20 agreed to.

Clause 21 agreed to.

Clause 22 agreed to.

Clauses 23 to 27 agreed to.

Clause 28 agreed to.

Clauses 29 to 32 agreed to.

Mr GREG SMITH (Epping) [9.15 p.m.], by leave: I move Opposition amendments Nos. 4 and 5 in globo:

No. 4 Page 29, clause 33 (1), line 18. Omit "5 business days". Insert instead "2 business days".

No. 5 Page 29, clause 33 (2), line 23. Omit "5 business days". Insert instead "2 business days".

In moving these amendments I suggest the Government is trying to justify its actions by what happened in the committee. The fact is that it is not. This Government is seeking a five-day period of amnesty.

ASSISTANT-SPEAKER (Ms Alison Megarrity): Order! I am having trouble hearing the member for Epping, and Hansard also may be having difficulty.

Mr GREG SMITH: I will speak up. To suggest that the five-day amnesty is the result of the work of the committee is absurd. Section 28 (1) of the Victorian Surveillance Devices Act 1999 states "Within 2 business days after giving an emergency authorisation, a senior officer (or another person on his or her behalf) must apply to a Supreme Court judge for approval of the exercise of powers under the emergency authorisation." Our bill specifies five business days after which a police officer must apply for approval, and subsections 14 (6) and (7) of the Commonwealth legislation talk about three days—that is, 72 hours.

ASSISTANT-SPEAKER (Ms Alison Megarrity): Order! I ask members leaving the Chamber to do so quietly so that the member for Epping can be heard.

Mr GREG SMITH: Our police are defending us and keeping us safe, as well as doing all those other good things. This bill gives the police a five-day period when they do not need any authorisation whatsoever for what is said to be an emergency. I am sure good honest police would do so only in an emergency but, unfortunately, every now and then along comes a policeman who does the wrong thing. That is why we have the Police Integrity Commission. I am sure the Minister would not disagree with the findings of the Police Integrity Commission from time to time when it weeds out the bad eggs in the Police Force. Unfortunately, that is why we must have controls. A period of two days is enough before approval must be sought for the exercise of powers under the emergency authorisation.

When I said that things can go wrong, I refer to the case of Ex parte NSW Police Service; Re: Listening Devices Act 1984, a decision of the Supreme Court on 19 June 2003. That was a case where the police service sought a warrant so that a listening device could be held close to the handset of the telephone to be used by two complainants at the relevant police station in order to listen to and record conversations between them on the one hand and a named person, the suspect, on the other, as well as other unnamed persons. The conversations would be so crafted as to endeavour to elicit admissions from the suspect. The application related to offences of indecent assault alleged to have been committed between 1973 and 1975 respectively. That is over 30 years ago. Justice O'Keefe, who decided this case and rejected the application for a warrant, referred to section 16 (2) (d) of the Listening Devices Act that calls for a consideration of the evidentiary value of any evidence sought to be obtained. He said:
      That involves a judgment by a judge to whom the application is made. My judgment is that it could well be that a trial judge could reject evidence of the kind sought to be obtained in consequence of the warrant in the present circumstances on a number of bases. One would be that it could be unfairly prejudicial with the meanings of sections 135 and 137 of the Evidence Act another perhaps that it was unfairly obtained; perhaps yet another that the complainants, when using the phone, would be doing so in a manner akin to agents for, or surrogates of, the police, without the giving of the warning that the police would have to give were they to question the suspect directly.

      There is no limit as to the time of day or night at which the phone call or phone calls that is/are to be recorded could be made. They may be made at times that are quite inopportune for, or unfair to, a suspect. In this regard it should be remembered that the law exists to protect all, and that those who may ultimately be found to be guilty are entitled to the same due process and proper consideration as those who may be innocent.

      There is in my opinion a substantial basis on which it can be said that the evidentiary value of any evidence obtained by use of a listening device in the circumstances contemplated in the present application could be low. It could be nil, in the event that a judge exercised the discretion conferred by section 135 or act under the mandate in section 137 to reject the evidence. In this regard it should be remembered that it will be evidence that will be sought to be tendered in a criminal proceeding.

      Section 137 of the Evidence Act mandates the court to reject evidence adduced by the Crown Prosecutor if its probative value is outweighed by unfair prejudice to a defendant. Use of the listening device in the manner contemplated could be regarded as unfair and the evidence characterised in the same way.
Justice O'Keefe did not grant the warrant. I wonder whether the Minister has considered these sorts of cases when he says the Government wants to allow five days for police to have this unchecked and uncontrolled leeway to use listening devices in any way they wish. I very much doubt it! Does the Minister have the knowledge of what happens in these investigations? Has the Minister been out on the street and watched what police do?

Mr Andrew Fraser: He is not even listening to you.

Mr GREG SMITH: He is not listening because he is not interested in knowing what police actually do.

Mr Andrew Fraser: Put a listening device on him.

Mr GREG SMITH: I am sure you would get a very interesting conversation out of it too. It is for that reason that I submit we should reject the five days and stick to two days as the other States of Victoria and I think South Australia have done—the Commonwealth has gone to three days. There will be plenty of ambit for the police to use these emergency situations. They do not need the extra three days.

Mr DAVID CAMPBELL (Keira—Minister for Police, and Minister for the Illawarra) [9.24 p.m.]: I listened quite closely to much of the contribution by the member for Epping, which demonstrates once again the stark difference between the Opposition and the Government. The member for Epping was babbling on about something that happened over 28 years ago. The Government is talking about contemporary legislation. It is now 2007, almost 2008, and we are looking to the future. That is what this is all about.

Another part of the contribution by the member for Epping referred to the Police Integrity Commission. The Government demonstrated strong leadership in that area by establishing the Police Integrity Commission and is proud of that achievement. The Government's intention is to show leadership on this particular issue and make sure there is opportunity for a contemporary piece of legislation. We want to make sure that there is the opportunity for police to have access in emergency circumstances to listening devices for up to five days and then to get a retrospective warrant to approve it. It is about being contemporary for 2007 and beyond, rather than looking back over our shoulder to the mid-70s as we heard from the member opposite. The Iemma Government has backed the New South Wales Police Force in its fight against crime within our community. Not only have we given our police force more officers than ever before but we have also backed them with more resources, tougher laws and the underlying support they need to drive down crime in our community. The Government will continue to back them with more powers, as we propose to do in this legislation. It is in the context of backing the hard-working front-line police officers and law enforcement officers of this State that the Government will vote against the amendment as proposed by the Opposition.

Mr GREG SMITH (Epping) [9.25 p.m.]: The Minister obviously was not listening to the case I referred to. It was a 2003 decision referring to an investigation by police into serious sexual assaults that occurred over 23 or 25 years ago. We would not say those assaults are not important. In fact, there are many such prosecutions and investigations into what they call historical sexual assaults. These assaults have to be investigated because the victims of those crimes have suppressed the hurt for many years and often the only way they have to heal is to come out and complain this has happened. I have great respect for those people. I do not blame the police for seeking a warrant but it may have been the evidence would be harder to obtain because of such old offences. The problem is the Government is allowing the police to do what they like and in a sense that was what was happening in the case I referred to. The police wanted to use a warrant and the judge was referred to an earlier failed application from another judge that he was never given the details of—that is another problem that can sometimes exist. I suggest the Minister has a look at that case so he is better advised when he receives submissions from police wanting to change the laws.

I have great respect for the good police in what they do but every now and then a bad one creeps in and misuses power, and that spoils it for everyone. It spoils it for the citizens of this State who want to be protected against emergencies. There is no reason why the police of this State cannot act as quickly as the police of Victoria or the Federal police in getting their act together and placing their documents before a judge.

Question—That the amendments be agreed to—put.

The House divided.
Ayes, 34
Mr Aplin
Mr Baird
Mr Baumann
Ms Berejiklian
Mr Cansdell
Mr Constance
Mr Debnam
Mr Draper
Mr Fraser
Ms Goward
Mrs Hancock
Mr Hartcher
Ms Hodgkinson
Mr Kerr
Mr Merton
Mr Oakeshott
Mr O'Dea
Mr O'Farrell
Mr Page
Mr Piccoli
Mr Provest
Mr Richardson
Mr Roberts
Mrs Skinner
Mr Smith
Mr Souris
Mr Stokes
Mr Stoner
Mr J. H. Turner
Mr R. W. Turner
Mr J. D. Williams
Mr R. C. Williams

Tellers,
Mr George
Mr Maguire

Noes, 49
Mr Amery
Ms Andrews
Mr Aquilina
Ms Beamer
Mr Borger
Mr Brown
Ms Burney
Ms Burton
Mr Campbell
Mr Collier
Mr Coombs
Mr Corrigan
Mr Costa
Mr Daley
Ms D'Amore
Mrs Fardell
Ms Firth
Ms Gadiel
Mr Gibson
Mr Greene
Mr Harris
Ms Hay
Mr Hickey
Ms Hornery
Ms Judge
Ms Keneally
Mr Khoshaba
Mr Koperberg
Mr Lynch
Mr McBride
Dr McDonald
Ms McKay
Mr McLeay
Ms McMahon
Mr Morris
Mrs Paluzzano
Mr Pearce
Mrs Perry
Mr Rees
Mr Sartor
Mr Shearan
Mr Stewart
Ms Tebbutt
Mr Terenzini
Mr Tripodi
Mr West
Mr Whan

Tellers,
Mr Ashton
Mr Martin
Question resolved in the negative.

Amendments negatived.

Clause 33 agreed to.

Clauses 34 to 63

Schedules 1 and 2 agreed to.

Consideration in detail concluded.

Passing of the Bill

Motion by Mr David Campbell agreed to:
      That this bill be now passed.

Bill passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.