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Legislative Council 14162 LEGISLATIVE COUNCIL Wednesday 1 April 2009 __________ The President (The Hon. Peter Thomas Primrose) took the chair at 11.00 a.m. The President read the Prayers. BIOFUEL (ETHANOL CONTENT) AMENDMENT BILL 2009 Message received from the Legislative Assembly agreeing to the Legislative Council's amendments. BUSINESS OF THE HOUSE Formal Business Notices of Motions Private Members' Business item No. 193 outside the Order of Precedence objected to as being taken as formal business. TABLED PAPERS NOT ORDERED TO BE PRINTED The Hon. John Robertson tabled, pursuant to Standing Order 59, a list of all papers tabled in the previous month and not ordered to be printed. The following paper was ordered to be printed: Government's response to report No. 36 of the Standing Committee on Law and Justice, entitled "Review of the Exercise of the Functions of the Motor Accidents Authority and the Motor Accidents Council: Ninth Report", tabled on 1 September 2008. COMMITTEE ON THE OFFICE OF THE OMBUDSMAN AND THE POLICE INTEGRITY COMMISSION Report: Report on an Inquiry into the Early Intervention Systems in the NSW Police Force Report: Report on the Ninth General Meeting with the Inspector of the Police Integrity Commission The Hon. Linda Voltz, on behalf of the Chair, tabled a report entitled "Report on an Inquiry into the Early Intervention Systems in the NSW Police Force: Together with Study Tour Report, Transcript of Proceedings and Minutes of Meetings", dated March 2009. The Hon. Linda Voltz, on behalf of the Chair, also tabled a report entitled "Report on the Ninth General Meeting with the Inspector of the Police Integrity Commission: Together with Answers to Questions on Notice, Transcript of Evidence and Minutes of Proceedings", dated March 2009 Ordered to be printed on motion by the Hon. Linda Voltz. The Hon. LYNDA VOLTZ [11.03 a.m.]: I move: That the House take note of the reports. Debate adjourned on motion by the Hon. Linda Voltz and set down as an order of the day for a future day. BUSINESS OF THE HOUSE Withdrawal of Business Private Members' Business item No. 153 outside the Order of Precedence withdrawn by Ms Lee Rhiannon. 1 April 2009 LEGISLATIVE COUNCIL 14163 BUSINESS OF THE HOUSE Postponement of Business Business of the House Notices of Motions Nos 1 to 4 postponed by the Hon. Tony Kelly. Government Business Orders of the Day Nos 1 and 2 postponed by the Hon. Tony Kelly. SURVEILLANCE DEVICES AMENDMENT (VALIDATION) BILL 2009 Second Reading The Hon. PENNY SHARPE (Parliamentary Secretary) [11.09 a.m.], on behalf of the Hon. John Hatzistergos: I move: That this bill be now read a second time. I seek leave to have the second reading speech incorporated in Hansard. Leave granted. The Government is pleased to introduce the Surveillance Devices Amendment (Validation) Bill 2009. This very brief bill remedies a technical defect in certain warrants issued under the former Listening Devices Act 1984 by a Supreme Court judge during the period immediately before she was declared an eligible judge by the Attorney General. Before its repeal by the Surveillance Devices Act 2007, the Listening Devices Act 1984 prohibited the use of listening devices to record private conversations—except in circumstances set out in the Act—without the use of a warrant granted by an eligible judge. An eligible judge was a judge of the Supreme Court who had consented to being involved in the grant of warrants and in respect of whom a declaration was in force declaring the judge to be an eligible judge for the purposes of that Act. The object of this bill is to amend the Surveillance Devices Act 2007 to validate certain warrants purporting to have been granted between 3 March 2008 and 7 March 2008 under the 1984 Act by an eligible judge when the judge concerned had given the requisite consent but in respect of whom a declaration was not yet in force. The validation puts beyond doubt the use of listening devices pursuant to the warrants granted in that period and ensures that evidence obtained under them by the use of the listening devices will not be inadmissible solely on the ground of any technical invalidity. It is not appropriate to go into specifics as to the prosecutions affected by the invalid warrants. In the interests of certainty, the Government proposes to remedy the technical defect in the affected warrants by a legislative amendment. This bill makes a very specific amendment to the principal Act, which confines its effect to the warrants issued by one judge during a specific period. It does not validate any other warrants on any other grounds, or seek in any way to enlarge generally the scope to issue warrants or the bases on which they may be valid. In addition, it does not validate the warrants in issue in any respect other than that relating to the fact that the judge had consented but not yet been declared eligible. There is no suggestion that the technical invalidity in any way affected the level of scrutiny given to the warrant applications or the ultimate decision to grant them. Nor is there any suggestion that the applications were not made in good faith, or anything other than the mistaken belief that the judge was an eligible judge for the purposes of the Act. I commend the bill to the House. The Hon. JOHN AJAKA [11.10 a.m.]: The Surveillance Devices Amendment (Validation) Bill 2009 effects a very specific amendment to the Surveillance Devices Act 2007 in order to validate certain warrants that were issued by a Supreme Court judge prior to that judge having been declared an eligible judge for the purposes of the superseded Listening Devices Act 1984. The Opposition does not oppose the bill. The bill seeks to remedy a technical defect in certain warrants purportedly granted pursuant to the Listening Devices Act 1984 in the period between 3 March and 7 March 2008. During this period a Supreme Court judge gave the requisite consent to the issuance of certain warrants acting in the mistaken belief that she had been declared an eligible judge. The overview of the bill states: The validation puts beyond doubt the use of listening devices pursuant to the warrants and ensures that evidence obtained by the use of the listening devices will not be inadmissible solely on the ground of any technical invalidity. This is a technical amendment only. Its effect is confined to the warrants issued by a particular judge over a specified period. Any valid objection to a warrant issued during the relevant period will not otherwise be affected. The validation is necessary to ensure that prosecutions based on evidence obtained pursuant to the 14164 LEGISLATIVE COUNCIL 1 April 2009 warrant are neither prejudiced nor subject to technical objection based on the fact that the issuing judge was not an eligible judge within the meaning of the relevant Act. As previously stated, the Opposition does not oppose the bill. Reverend the Hon. FRED NILE [11.12 a.m.]: The Christian Democratic Party supports the Surveillance Devices Amendment (Validation) Bill 2009. This bill deals with a technicality. It is important that the bill is passed otherwise a challenge could be made to warrants issued by a judge, who is obviously a qualified judge but who did not have the authority as an eligible judge to issue warrants under the Surveillance Devices Act 2007. The amendment is necessary to legalise those cases where warrants were authorised by the judge. Therefore, we support the bill. Ms LEE RHIANNON [11.13 a.m.]: The Surveillance Devices Amendment (Validation) Bill 2009 seeks to validate retrospectively a series of warrants for listening devices purported to have been granted by an eligible Supreme Court judge over a four-day period, from 3 March to 7 March 2008. The problem appears to be that the Supreme Court judge who granted the surveillance device warrants had not been formally declared an eligible judge for the purposes of granting warrants. Mr Barry Collier in the agreement in principle speech in the Legislative Assembly explained this away as a technical oversight, assuring the Parliament that the technical invalidity in no way affected the level of scrutiny given to the warrant applications. The bill appears to be correcting a purely administrative error and the Greens are reluctant to oppose the bill. However, I am suspicious when such bills are rushed through Parliament. We have been told that it is not appropriate to go into the specifics as to the prosecutions affected by invalid warrants. The Government is asking members to valid retrospectively surveillance devices that are in fact invalid, so I would have thought more information would be supplied in the debate. What matters does this bill apply to and how many are there? I understand that it may concern five separate warrants. There has been some speculation in the media about this, but nothing has been said in Parliament. The Government has an unfortunate habit of rushing emergency bills through Parliament at break-neck speed. I acknowledge that the Greens have had no representations from concerned groups but I am reluctant to say that it automatically means there are no objections. More likely, it means that the bill is being rushed through Parliament so quickly that few people in the community know of its existence. This is no way to run a democracy—especially when dealing with covert surveillance devices, which, by their nature, interfere with people's rights to privacy. The Parliament has a responsibility to strike a balance in these matters and to ensure that sufficient safeguards are in place to protect the privacy of individuals against arbitrary interference.
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