Legislative Council
November 2, 2016

second reading speech


Adjourned debate on second reading.

(Continued from 13 April 2016.)

The Hon. J.M.A. LENSINK ( 20:39 :05 ): I rise to make some remarks on the second reading of this bill. The bill seeks to amend the Surveillance Devices Act, which was dealt with by the parliament last year. Among other things, that act provided for the prohibition of a person knowingly using, communicating or publishing information or material derived from the use of a surveillance device. This was in relation to privacy concerns. There are exceptions to this, such as if the use, communication or publication is made by media organisations and if the use, communication or publication is in the public interest.

The bill before us amends that particular piece of legislation, and I note that there were clauses in the substantive act last year which provided a specific exemption to the general rule that such information or material relating to issues of animal welfare that is used, communicated to, or published by the RSPCA was to be treated as being in the public interest. The Law Society and the RSPCA themselves opposed this exemption at the time, I think, on the grounds of, among other things, resourcing. So, there were amendments to delete that reference, which the Liberal Party, at the time, supported.

This particular bill proposes to do two things. Firstly, to provide an exemption from the prohibition in section 10 of the act upon the use, communication or publication of information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used in the public interest if the information or material relates to issues of animal welfare; and secondly, creates a rebuttal presumption that the use of a listening device or optical surveillance device to obtain information or material relating to issues of animal welfare is in the public interest.

I do not think there is any disagreement among honourable members that animal welfare concerns are certainly in the public interest. I think there are probably disagreements about the means by which that is recognised in legislation. On that note, the Law Society submission of 8 April, which the mover of this bill has referred to, I think provides some qualified support for the bill in relation to the rebuttal, but I think is ambiguous, probably because it—with due respect to lawyers, they are often not as black and white as some of us are—notes that the common law recognises that issues regarding animal welfare are firmly entrenched in the public interest and that the courts have historically held the view that the concept of public interest cannot be exhaustively defined and must be flexible so that it would alter with the norms of society as it progresses.

On that front, the issues that we have seen exposed, particularly through Four Corners, would certainly have met that test. I have also received correspondence directly from the RSPCA. In their opening paragraph they state that they support the bill moved by the Hon. Tammy Franks. The second sentence says, and I quote:

B y defining animal welfare specifically as being in the public interest, this bill will prevent the Surveillance Devices Act 2016 from effectively operating as an ag-gag piece of legislation.

I disagree with that particular legal interpretation of the RSPCA. Certainly, I believe the interpretation of the Law Society to be the correct one, and the Liberal Party will therefore not be supporting the bill—sympathetic as we are—but we do not think the amendments to the act are necessary to genuinely protect animal welfare interests.

The Hon. K.L. VINCENT ( 20:43 :39 ): Dignity for Disability does support the bill. I will not make a particularly lengthy contribution, as I think I explained most of our reasons last time a similar bill was before us. I would say that—given that we have just had a Melbourne Cup, which I think was the first Melbourne Cup in, I think I am correct in saying, three years where no deaths of horses were reported—I think there is significant interest in animal welfare.

I can also, in my mind at least, draw parallels between the recent focus that we have had, in no small part thanks to Dignity for Disability, on elder abuse and the discussion around whether or not it is in the public interest to have camera surveillance in aged care homes due to some abuse that has happened there. I think if we are interested in using camera and surveillance devices to protect human welfare then we should be interested in clarifying that they can be used to protect animal welfare as well. So, we will be supporting the bill.

The Hon. J.M. GAZZOLA ( 20:44 :52 ): The government opposes the bill for a number of reasons. Firstly, the provisions that exist in the Surveillance Devices Act are sufficient and the act provides exceptions on the grounds of public interest and lawful interest, and further, provides exceptions for media organisations. The government is confident that the act will protect an individual's right to privacy whilst allowing matters that are in the public interest to be aired. Secondly, the bill does not define animal welfare nor does it define the phrase 'issues relating to animal welfare'. The scope of this potentially wideranging exception to the general laws protecting people and organisations from covert surveillance is therefore left unbounded.

Finally, this issue has been extensively canvassed during the debate of the three surveillance devices bills that have been presented to the Legislative Council over the years. The issues surrounding animal welfare have been comprehensively debated. The Legislative Council was in favour of leaving the definition of public interest as a broad concept rather than limiting its scope by attempting to define it. It is premature to amend an act when it is not even in operation, let alone tried in practice. This bill seeks to unnecessarily redebate a position already determined by the parliament.

The Hon. T.A. FRANKS ( 20:46 :18 ): I rise to thank members for their contributions tonight, which I believe have been quite illuminating. I thank the Hon. Michelle Lensink on behalf of the Liberal Party, who noted that the Law Society had not found that this was indeed an ag-gag bill, in effect. With the Surveillance Devices Act, the original Law Society advice on the bill that the government put up that has become the act, actually stated:

20. A g-gag laws have been the subject of criticism interstate and overseas. Ag-gag laws seek to ' gag ' animal advocates, employees, whistleblowers and the media from making public evidence of animal cruelty. There is a concern that ag-gag laws seek to suppress transparency of animal treatment and that cruelty should be criminalised rather than whistle blowing.

21. We have been unable to find any laws in any of the States or Territories in Australia that reflect the types of laws proposed by section 10 of the Bill.

That is, the previous government bill that is now the act. It continues:

Similarly, we have been unable to find any laws like those proposed by the B ill in New Zealand, Canada or the United Kingdom.

22. It is the view of the Society that section 10 of the Bill—

I note, now the act—

is in actuality an ag-gag law. Whilst the Bill was meant to address, inter alia, changes in technology and cross-border recognition of warrants, section 10 is about targeting undercover investigations into animal cruelty. Our view is somewhat supported by the various comments made by members of Parliament including the Attorney General during the debate of this Bill.

23. We note the Attorney General's statement in the House of Assembly on 15 October 2015 that there is no protection for farmers from animal activists.

Footnote 9 states that was said by the member for Enfield in the other place. The Law Society continues:

That is untrue. There are a myriad of laws that protect citizens from intruders such as laws that address trespass. Similarly, defamation laws provide a remedy to those who are of the view that their reputation has been tarnished as a consequence of unfair reporting of their practices.

I note also that in correspondence from the Premier to constituents who have raised concerns about this bill and the act that the government is seeking to unleash on our state, the Premier has responded to one constituent thanking them for their correspondence with regard to my private members' bill we debate today, and states:

The Government believes that animal welfare issues are public interest issues and rightly deserve publicity. The proposed legislation does not seek to specifically restrict the filming of animal cruelty, and several exemptions have been included to ensure that legitimate public interest issues are not adversely impacted by the Bill. Similar legislation has been in place in other States and Territories for several years without adverse consequences.

I ask the Premier: did he read the Law Society advice on the government bill? The government bill, according to the Law Society back in 2015, in their advice of 26 November of that year, signed off by Rocco Perrotta, stated that they had not been able to find any similar laws in New Zealand, Canada, the United Kingdom or, indeed, any other state or territory of this nation.

So, the Premier certainly seems to be misled about this bill. I think the Liberals have the wrong end of the stick on this bill. What I would say is that at least the Liberals have been consistent on this issue. The Liberal Party federally supports ag-gag. The Labor Party federally opposes ag‑gag, but here in South Australia, not only does the South Australian Labor Party not oppose ag-gag, but they introduce laws that are ag-gag laws! It is ludicrous and it absolutely defies the rhetoric they take to the public, to their constituencies and to elections.

I thank the Hon. John Gazzola for his valiant effort to put lipstick on this pig, but pigs certainly are far more preferable than the government's position on this particular bill. It is ludicrous that a government spokesperson in this place would come and say that animal welfare has not been defined in my private member's bill. My private member's bill simply puts the original government words that sought to protect animal welfare and define it as 'in the public interest' in that government legislation back into the government act before it takes operation and becomes the first ag-gag law to take operation in this nation. If the government was not happy with the definition of 'animal welfare', perhaps somebody should have raised it in caucus when the Attorney-General first put his government bill through that process.

I thank the Hon. Kelly Vincent from Dignity for Disability for her support. I certainly also thank those many people who have contributed to a campaign on this bill. This was a private member's bill that sought to give Labor a second chance—a second chance to correct their mistake, to prove that it was not an accident that they are introducing an ag-gag law—but by their votes tonight, they will prove that there was no accident. They have not done an accidental ag-gag law: they have done a deliberate, calculated ag-gag law, the first in our nation.

Animals Australia certainly have campaigned on this issue. It would be of no surprise that Animals Australia and other groups have been involved in exposing cruelty—cruelty against animals who have no voice. We are heavily reliant on the technologies of our mobile phones, of undercover cameras, of photos taken to expose that cruelty against those who have no voice to tell us what is happening to them. That is why this bill is so important.

So, I thank Animals Australia for running a campaign with postcards to the Premier at their stall at the Royal Agricultural Show. At the Royal Agricultural Show, we had many thousands of signatures on a postcard that was sent to the Premier. I have been dropping them off to his office, and I got a big bunch more today, and I know there are many more coming through from the Mount Gambier show from just last week.

Voiceless, who ran an online email campaign, had 3,500 people send 105,000 emails to members of this place and the other place—105,000 emails on this issue. That should tell you that people care about this, even if the Labor Party does not. I also thank those volunteers, Animals Rights for South Australia, members of the AWAG group of the Greens party and individual volunteers who have gone out to shopping centres, who have stood in Rundle Mall, and who have spoken and knocked on doors and said to people, 'Did you know that the Labor government is bringing in an ag-gag law?' and almost without exception people have been shocked, surprised and signed.

That will continue. We will not be giving up on this issue. It is to our shame that South Australia will be the first state to have an ag-gag law, and it is to Labor's shame that it will be a Labor government that brings it in. It is no wonder that, at their state convention last weekend, they approved a group called 'Labor for Animals'. It is like 'Labor for Refugees' and 'Rainbow Labor', and all those other groups they have because their party fails in those areas.

Right now, you are failing the animals and your side group will not really save you come the next election, because people care about this issue in increasing numbers and we will make sure that you will not be given another second chance when they go to the ballot box. They will not be giving you any second chances on this issue.

You have failed your party, you have stood against the federal policy, and you have, I think, brought shame on your own constituencies today. As I say, the Liberals have long stood for ag-gag laws; it is no surprise that they are going to oppose this bill, but Labor should be ashamed of themselves.

The council divided on the second reading:

Ayes: 4

Noes: 14

Majority: 10


Darley, J.A.

Franks, T.A. (teller)

Parnell, M.C.

Vincent, K.L.




Brokenshire, R.L. (teller)

Dawkins, J.S.L.

Gago, G.E.

Gazzola, J.M.

Hood, D.G.E.

Lee, J.S.

Lensink, J.M.A.

Lucas, R.I.

Maher, K.J.

Malinauskas, P.

McLachlan, A.L.

Ngo, T.T.

Ridgway, D.W.

Stephens, T.J.



Second reading thus negatived.

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