Legislative Council: Private Members Business
April 13, 2016
SURVEILLANCE DEVICES (ANIMAL WELFARE) AMENDMENT BILL
Introduction and First Reading
The Hon. T.A. FRANKS (16:24): Obtained leave and introduced a bill for an act to amend the Surveillance Devices Act 2016. Read a first time.
Second Reading The Hon. T.A. FRANKS (16:24): I move:
That this bill be now read a second time.
This bill seeks to amend the as yet to be implemented Surveillance Devices Bill 2016. When the Surveillance Devices Bill 2015 was both introduced and debated, it was done with some thought given to ensuring that animal welfare was seen as in the public interest, and the history was that previous incarnations of attempts at legislation to regulate surveillance devices, with particular reference to the broadcast of materials that those surveillance devices captured, had been seen to be detrimental to exposing acts of animal cruelty in this state.
When the Attorney announced the Surveillance Devices Bill 2015, he went to great pains to assure the community that that particular piece of legislation was not, in fact, in any way an ag-gag bill or in any way detrimental to animal welfare abuses being exposed. He did so by including in that legislation references to animal welfare being in the public interest and also by providing in that section that the RSPCA would be exempt from the general prohibition against knowingly using, communicating or publishing material obtained through the use of a surveillance device in the public interest without an order from a judge.
At the time, the Law Society and, to the surprise of many, the RSPCA opposed the idea that the RSPCA should be the arbiter of what was in the public interest when it came to animal welfare. Quite simply, on a practical level, the RSPCA should never be the only arbiter of what is in the public interest when it comes to animal welfare, and certainly they pointed out that they neither wanted that position nor asked for that position from the Attorney, and certainly they were very surprised with the announcement of the Surveillance Devices Bill 2015 by the Attorney that they had such special dispensation given to them within that piece of legislation.
Some in this place and in the other place did not believe that animal welfare was in the public interest; indeed, many went on record decrying the rise of surveillance devices being used to expose acts of animal cruelty. They pointed to examples of drones being used and invasions of private property being undertaken. At the time, those speeches certainly did not pay due heed to the laws of trespass that exist as protections against such behaviour, and they were not relevant to the Surveillance Devices Bill in itself. However, they did give comfort to those in our community who would prefer to never see abuses of animal welfare exposed, not because they no longer exist but because they would prefer the public not to know.
The Law Society was most concerned about the Surveillance Devices Bill 2015, even with these special dispensations given with the wording that animal welfare was to be seen as in the public interest and that the RSPCA was to be the arbiter. They noted in their submission to that legislation that they had grave concerns that in the future exposure of animal cruelty would not be possible by programs that would be well known to people in this place, and indeed well known to our community, such as the Four Corners program on live baiting in the greyhound industry. In paragraph 19 of their submission to the Surveillance Devices Bill 2015, the Law Society went on to make a particular note in a section entitled 'Ag-gag laws' that:
The Society does not support 'ag-gag' laws. 'Ag-gag' is a term that originated in America and is used to describe legislation that attempts to stifle public awareness and discourse in respect of animal welfare and environmental protection in agribusiness. The Society is of the view that section 10 of the bill, if passed, has the potential to have a harmful effect on animal welfare in Australia.
The society goes on to note a range of other measures where they had not seen a need for such laws and, certainly, the society does not support ag-gag laws. Yet, even with these provisions in the previous bill, as I say, noting that animal welfare was to be in the public interest and giving the RSPCA that special dispensation, the Law Society raised grave concerns about the impact of the bill. In the course of the hurly-burly of the debate, animal welfare and the role of the RSPCA was treated somewhat contentiously.
Certainly, there was a division of opinion, but those on the government side continually assured constituents who contacted them that the legislation would ensure that animal welfare was in the public interest. Pieces of correspondence from no lesser persons than both the Attorney General and the Premier himself to these constituents explained that their legislation would indeed provide for exemptions included in the bill to ensure that the RSPCA was given an exemption and, indeed, to ensure that animal welfare was to be treated in the public interest.
What the government members did not reveal to these constituents who contacted them was that, in the pressure from the opposition to remove the reference to animal welfare and the RSPCA, the government threw the baby out with the bathwater. In deleting the provisions that the RSPCA had neither requested nor were in a position to enact, they also deleted the entirety of that section that outlined that animal welfare was to be treated in the public interest.
I raised this in the third reading debate on the Surveillance Devices Bill 2015 and urged and pleaded with government members not to throw that baby out with the bathwater, to ensure that, while the RSPCA provision was to be deleted, they kept in that provision that animal welfare was to be seen in the public interest. Government members did not listen to those pleas and the bill went through with the deletion not only of the provisions for the RSPCA but also the deliberate deletion of the section that had provided that animal welfare would be seen as being in the public interest in the surveillance devices legislation.
This government has recently launched Labor for Animals and the co-conveners of that group, Nat Cook, the member for Fisher, and Lee Odenwalder, the member for Little Para, no doubt may be concerned to learn that their party has recently acted in this way to ensure that animal welfare is not to be seen in the public interest under the surveillance devices legislation. I would hope that those two members at the very least and, certainly, all of the members of the Labor for Animals group might pay attention to this particular bill and, indeed, support its passage.
I would point them to the Law Society advice on this bill I introduce today. I gave the Law Society an advance copy of the legislation I have today introduced into the parliament and I would hope that members would familiarise themselves with it. In point 5, the society notes:
The Society supports endeavours to further the interests of animal welfare through appropriate legislative reform. The Society refers to its submission in relation to the Surveillance Devices Bill 2015 and in particular paragraphs 9 and 10 of said submission.
Point 6 states:
The common law recognises that issues regarding animal welfare are firmly entrenched in the public interest. However, the courts have historically held the view that the concept of the 'public interest' cannot be exhaustively defined and must be flexible so as to alter along with the norms of society as it progresses.
Point 7 states:
The proposed amendments do as follows:
7.1 specifically provide for 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
7.2 creates a rebuttable presumption that the use of a listening device or optical surveillance device to obtain information or material relating to issues of animal welfare will be in the public interest.
Point 8 states:
The effect of the amendments is specifically to include issues of animal welfare within the ambit of the term
Point 9 states:
Rebuttable presumptions or deeming provisions are legislative tools commonly employed to facilitate proof of certain facts resulting in prima facie evidence of those facts in the absence of evidence to the contrary.
Point 10 states:
In light of the common law recognition that issues regarding animal welfare are matters of and in the public interest, the publication of material that records and relates to issues of animal welfare is prima facie likely to be in the public interest.
Point 11 states:
When considered in the context of the Act as a whole it is an appropriate matter to be made the subject of a rebuttable presumption.
Point 12 states:
Accordingly, the Society is of the view that there is merit in the inclusion of a rebuttable presumption which reflects the common law position.
Point 13 states:
The presumption is not a conclusive presumption and can be rebutted by proof that, on the balance of probabilities, the use of the relevant recording device to obtain material or information relating to issues of animal welfare is not in the public interest. This is an important statutory safeguard designed to ensure that the presumption does not give rise to unfairness or any miscarriage of justice.
I note and thank the Law Society for providing that information. I also note that within the community the societal norms have evolved to a point where most people in the community believe that animal welfare is something that is in the public interest and the exposure of animal cruelty through surveillance devices has played a very key role. This applies particularly with animals because animals are, of course, voiceless. They cannot speak on their own behalf and they rely on others to advocate for them.
Surveillance devices and the exposure of animal cruelty on programs such as Four Corners give rise to that voice. The community response to that voice shows the opinion of the community at large. People have been horrified by the exposure of live baiting in the greyhound industry in the documentary Making a killing. It has led to inquiries in four other states. It has led to an industry called on to prove its social licence, to justify its social licence and to change its ways.
Yet for over a decade these allegations about live baiting were being made in parliaments across this country—and I note the work of my colleague in the New South Wales Greens MLC, Dr John Kaye, and his tireless efforts to expose cruelty in the greyhound industry—but they were never heeded and they were often not believed. The power of the footage obtained through the Four Corners program and working with animal advocates showed without a shadow of doubt that there was a problem, that improper dealings were happening and that the greyhound industry could not be believed. That is just one of many examples of the exposure of animal cruelty going on in our nation.
I believe that the Labor government acted in error when it did not correct its mistake in agreeing to the opposition's amendments to the government's own bill. They announced the Surveillance Devices Bill 2015 in a way that assured the public that animal welfare would be protected and seen to be in the public interest. They wrote to their constituents, who raised their concerns during the course of the debate, assuring them that the Labor Party would ensure that animal welfare was in the public interest.
Quite simply, this bill ensures that, with the addition of those words, the Surveillance Devices Act will view animal welfare as being in the public interest. It is a position held by the majority in the community, it was ostensibly a position held by the majority in this parliament in their communications with their constituents, and it should be that the position is upheld when this issue comes to a vote. With those few words, I commend the bill to the council.
Debate adjourned on motion of Hon. S.G. Wade.
Legislative Council Wednesday 2nd of November 2016
Second reading speech & final debate.
SURVEILLANCE DEVICES (ANIMAL WELFARE) AMENDMENT BILL
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:
Franks, T.A. (teller)
Brokenshire, R.L. (teller)
Second reading thus negatived.