Page 2395 - Week 09 - Thursday, 17 September 1992
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I am not convinced that there might not be unintended consequences of those provisions. They seem to me to be fairly broad, but they do reflect what is happening in other jurisdictions. As such, I think that we can assume that some anomalies that have not been corrected in other jurisdictions also have not been picked up in this Bill. If that is the case, then presumably those anomalies will not be occurring with any great regularity and can be overcome with simple amendments in the course of time. Madam Speaker, as I indicated at the outset, this is an important piece of legislation. We support it. We believe that it will provide a significant level of protection to the citizens of the ACT. We commend the Bill to the house.
MS ELLIS (10.47): Madam Speaker, the Bill's underlying philosophy will enhance the privacy rights of all ACT citizens by imposing strict controls on the use of listening devices. Eavesdropping and the covert taping of private conversations should not be tolerated in any society, and this piece of legislation safeguards a citizen's right to freedom of speech and thought without fear of being listened to or recorded. This is achieved in the legislation by prohibiting the use of listening devices by persons, whether or not they are a party to the private conversation, unless, among other things, consent has been given by the persons who are involved in the private conversation.
Some concern has been expressed by the Australian Capital Territory Council of Social Service, ACTCOSS, that this legislation will have the converse effect in terms of restricting the use of listening devices by private citizens who may be threatened by the police and need to obtain evidence of such intimidation or harassment by recording the conversation covertly. This is simply inaccurate and a misrepresentation of the legislation. The intent of the legislation is to deter private citizens from using listening devices on other citizens. It was never the intention to curb ACT citizens' rights to their detriment, and allowances are made in the legislation to record a conversation if, among other things, it is considered by the person to be in his or her lawful interest.
The scenario painted by Dr Tomlinson in his letter would not occur, as a person who was initially charged for breaching the legislation would need to produce the illegal recording as evidence under the legislation. It would be quite clear to the Director of Public Prosecutions that the tape recorder had been used in legitimate circumstances, that is, to protect the person's lawful interests. The matter, therefore, would be unlikely to be pursued any further by the prosecutor.
One of the most significant provisions in the legislation prohibits the communication or publication of a record of a private conversation without consent by the people participating in the private conversation. This provision ensures that a person's privacy is not further intruded upon by the potential damage that can be caused by the further dissemination of the illegally taped conversation by such means as a transcript or via the media. This legislation is primarily modelled on the New South Wales Listening Devices Act 1984 but excludes regulating the police, which, for ACT purposes, is covered under the Australian Federal Police Act 1979 as amended by the Law and Justice Legislation (Amendment) Act 1989. I believe that the Listening Devices Bill 1992 is a progressive piece of legislation which advocates the important principles regarding every citizen's right to privacy to which a free society must adhere.
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