Mr GREG WARREN (Campbelltown) (15:39): I am delighted to make a short contribution to debate on the Surveillance Devices Amendment (Public Interest Exceptions) Bill 2026. Ultimately, the bill is the end result of the requirements of the agencies. I am delighted the Attorney General is present in the Chamber for this debate, having acted extremely diligently. The Government supports the bill in its current form because it is the result of very intense and thorough consultation with relevant agencies to make sure the legislation is fit for purpose, so that our agencies have the capacity and resources to do their jobs more effectively. It is in the interests of all members of this House to ensure that our agencies get what they need through legislation.
Specifically, the purpose of the bill is to introduce public interest exceptions into the Surveillance Devices Act 2007 to permit, firstly, the possession of illegally made and obtained surveillance device records and the communication of those records to investigative bodies, where a person has had no involvement in unlawfully making or obtaining the surveillance device records; and, secondly, the possession, use and disclosure of such records by investigative bodies in the exercise of their investigative functions, but only where the investigative body had no involvement in unlawfully making or obtaining the surveillance device record.
It is right for members of this House to ask why the provisions in the bill are required. Specifically, sections 11, 12 and 14 of the Surveillance Devices Act impose prohibitions on the possession and communication of surveillance device records obtained in contravention of part 2 of the Act. Currently, there is no exception under part 2 of the Surveillance Devices Act for a person who comes into possession of illegally obtained surveillance device records to lawfully possess those records and to communicate them where it is in the public interest, such as reporting crime, corruption, or other unlawful behaviour or wrongdoing to appropriate authorities, or for investigative and enforcement bodies to use such records for the purposes of their lawful functions.
The exceptions to the possession and communication offences in the Surveillance Devices Act are limited to narrow circumstances, such as in connection with proceedings for an offence under the Surveillance Devices Act. That hinders the ability of New South Wales investigative bodies to carry out their functions to investigate crime, corruption and other unlawful behaviour. In addition, it may deter a person acting in good faith, who comes into possession of a surveillance device record, unsolicited, from coming forward to provide the record to appropriate authorities due to the risk of prosecution under the Surveillance Devices Act. That is contrary to the public interest and is inconsistent with how other laws deal with evidence that is illegally obtained.
Under section 138 of the Evidence Act 1995, courts may receive evidence obtained in contravention of an Australian law where the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in contravention of the law. Under section 40 of the Public Interest Disclosures Act 2022, a public official who makes a public interest disclosure does not incur criminal or civil liability in relation to making the disclosure. Investigative bodies should be able to make use of illegally obtained surveillance device records for the purpose of an investigation where they were not involved in obtaining such records. For that reason, I commend the bill to the House.
