Page 2394 - Week 09 - Thursday, 17 September 1992
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The other matter, Madam Speaker, which has come to the Opposition's attention and which it intends to amend - I think I have already circulated the amendment to that effect - is subclause 7(1), which deals with the possession of records of unlawfully recorded private conversations. That provision reads:
A person shall not possess a record of a private conversation knowing that it has been obtained, directly or indirectly, by the use of a listening device in contravention of section 4.
As I said, that is an important back-up provision to clause 4. It needs to be in the Bill. What concerns the Opposition is that the penalty provided for a breach of that clause is the same as that for the original offence, that is, $20,000 or imprisonment for two years.
Consider the circumstances in which one would see that kind of offence invoked. Obviously, we are talking about situations, most often, where somebody like the person who intercepted the conversation in Victoria or the person who intercepted the so-called royal conversation in Britain obtained a copy of the conversation, took it to the media, gave it to a journalist and said, "How is this for a good scoop? You can get a lot of money by putting this in your paper or broadcasting this over your television network". Obviously, under this Bill, that journalist would have to say to that person, "Look, it is a great story; it is very interesting. But, unfortunately, under our new Listening Devices Act, I cannot use it. Thank you very much. I will put this away in my drawer. It was nice of you to send it to me, but I cannot do much with it".
It seems strange that we should be making the possession of that conversation, in a form which cannot be used under the Bill, as offensive to the law as the actual overhearing and recording of the conversation in the first place. That seems incongruous. I do not think that those offences are on a par, although the same penalty has been provided. I suspect that this is a lazy device to allow a person who gets caught with a recorded conversation to be treated as though they had recorded the conversation in the first place. That, I think, goes a little too far.
I concede that we should provide a penalty there, but I think that the chief offence is intercepting and recording the conversation. That is the thing that the Bill is designed to get at. Merely possessing a copy of a conversation, particularly in a format where it cannot be used - I am thinking particularly of something which is stuck in a journalist's drawer and which might come to light, for example, because of a police raid on that journalist's drawer - really is not in the same league and it should not have attached to it the same level of offence. The Opposition, accordingly, will be moving that the penalty in subclause 7(1) be reduced to $10,000 and imprisonment for one year, as an indication that we do not see those two offences as being of the same level of magnitude.
Madam Speaker, we believe that evidence obtained by the unlawful use of a listening device ought not generally be used in a court. That is one of the main protections that this Bill provides. Very often the reason that conversations are recorded in the present circumstances is for use in court proceedings, or as a precursor to court proceedings, to discourage a person from proceeding or to otherwise affect that other person's case in court. Often they are civil proceedings; sometimes they are criminal proceedings. For example, the police themselves now record conversations with accused people as a matter of course. That, of course, is permitted under this Bill. It will be allowed to continue, as it should be. That bar on the admissibility of evidence is very important.
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