Submission No. 16 - Attorney-General's Department


Parliamentary Joint Committee on the Australian Security Intelligence Organisation

Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999
Submissions

Submission No. 16 - Attorney-General's Department

Information and

Security Law Division

 

TO Grant Harrison FAX 62778412

OF Secretary to the Parliamentary Joint Committee on ASIO

PAGES 2 including this page DATE 4/05/99

FROM Norman Bowman FAX 02 6250 5985

Acting Principal Government Lawyer

Security Law & Justice Branch

EMAIL norman.bowman@ag.gov.au PHONE 02 6250 5427

 

Grant

I have been asked by the Committee secretariat for urgent advice on whether a search warrant issued under section 25 of the Australian Security Intelligence Organization Act 1979 (the ASIO Act) can be lawfully used more than once during the period that warrant is in effect. My short answer to this question is 'no'.

  1. Subsection 25(1) of the ASIO Act permits the Minister to authorise ASIO to do such of the specified acts and things as the Minister considers necessary including 'to enter the premises'. Subsection 25(3) states:

    2. A warrant under this section shall state whether entry under the warrant may be made at any time of the day or night or only during specified hours

  2. The usual situation is that a search warrant may be executed only once (Larsson v Cmr of Police (1988) 16 NSWLR 173; R v Adams [1980] 1QB 575). This general position may, however, be displaced by a contrary legislative intention. For example, it has been held that a statuatory provision permitting a constable to enter and search premises 'at any time or times' would allow those premises to be searched any number of times within the period a warrant was in effect (R v Adams [1980] 1QB 575). The additional words 'or times' were presumed to have been added for that purpose. In the case of subsection 25(3), however, no words have been used which express an intention by Parliament to permit entries and searches from time to time while a warrant remains in force.

  3. In Larsson v Cmr of Police (1988) 16 NSWLR 173, 180. Smart J quotes with approval the following extract from Discussion Paper No 4, Search Warrants, September 1987 of the Review of Commonwealth Criminal Law:

    4. 'should provision be made to ensure that the officer executing the warrant who leaves the premises for a short period is empowered to re-enter under the original warrant. Clearly, once execution of the warrant is completed, the officer should not be able to re-enter except under a fresh warrant.'

    I consider that a search warrant obtained pursuant to section 25 only authorises a single entry and search of the relevant premises.

  4. ASIO confirms that the Organization acts on the above interpretation of section 25.

  5. There is no relevent difference between the words of subsection 25(3) and the new paragraph 25(7)(b) in the Australian Security Intelligence Organisation Legislation Amendment Bill. The new provision would have the same effect as the present one in authorising a single entry and search.

  6. As previously indicated, the intention of the amendments in extending the maximum 'life' of a section 25 search warrant from 7 to 28 days is to allow ASIO more time in which to find an opportunity to enter the target premises once undetected. It is not intended to authorise ASIO to enter premises from time to time during that extended period.

 

Norman Bowman