We wish to acknowledge the hard work of colleagues in negotiating what has been an unusual report for this committee.
While not dissenting from the recommendations in this report, we are providing these additional comments because we think the Public Interest Advocate (PIA) regime should operate in more limited circumstances than envisaged in chapter three of this report.
Before discussing the PIA we wanted to make some observations about issuing of warrants
General observations on issuing of warrants.
An issue of increasingly frequent controversy before this committee is the question of the appropriate issuing authority for warrants. There are a wide range of agencies and circumstances which seek warrants to search, seize, watch, listen, copy, intercept, access, detain or arrest.
There is a growing view in some circles that an increasing number of warrants should be issued by superior court judges. There is also some interest from academic, media and legal circles in the very different regime now in operation in Britain.
While not expressing a concluded view on this issue, given that this report endorses the issuing of warrants by superior court judges, we do not wish this to be taken as necessarily endorsing this growing trend to more warrants being issued by serving judicial officers rather than other actors.
We think it is important that government develop a principled basis for the choice of issuing authorities in different circumstances.
As the combined submission from the Department of Home Affairs and Attorney-General’s Department noted “the requisite level of satisfaction that the issuing officer must reach to issue a search warrant does not vary or lessen simply because the officer holds a position other than that of a Judge.”
That statement is true but the mere fact that so many submissions supported the issuing of warrants by judicial officers suggests that that in some circles there is a view that the way the powers are exercised by judges will be substantially different and will ultimately lead to fewer warrants being issued.
The issuance of warrants is an exercise of executive power not judicial power.
Judges who are engaged in issuing warrants do so in their personal capacity not as part of their judicial role.
The increasing judicialisation of the warrant process may have a range of consequences.
There may be a loss of knowledge and experience especially in lower courts and the AAT where experience in the application of specific criteria to comparative factual circumstances builds up such that court officers and tribunal members become experts. Culture, discernment, knowledge and tradition may be lost in the transfer.
The balance may shift away from agencies towards those who are the subject of warrants, thereby weakening our security.
If overtime all warrants were to be issued by superior court judges then this may have consequences for the administration of justice, judicial work load and the ultimate constitutionality of the persona designata doctrine.
On the other hand the warrant process may become more legalistic and less familiar but may engender more public confidence.
Issuing Warrants, the media and the PIA
This inquiry, correctly in our view, makes a concession to media organisations and journalists recommending that warrants sought by law enforcement agencies, issued in matters relating to journalists and media organisations, should be issued by superior court judges.
This is a very significant safeguard for journalists and media organisations.
However, given the experience, standing and seniority of superior court judges (who are proposed to deal with warrants under the Crimes Act and Surveillance Devices Act and relevant provision of the Telecommunications (Interception and Access) Act ) augmenting such a process with the views of a second retired judicial officer or senior barrister acting as PIA may not be necessary. It may amount to the over judicialisation of such a process.
The situation is different where the issuing authority is the Attorney-General.
In Chapter 4, Part 4-1, Division 4C of the Telecommunications (Interception and Access) Act 1979 (TIA), the PIA plays a useful role in providing a submission to assist the Attorney-General in making a decision about whether to issue a Journalists Information Warrant (JIW). Just as the PIA assists the Attorney-General as issuing authority with JIW, so to the PIA can assist the Attorney-General as issuing authority in making a decision about whether to issue a warrant under the Telecommunications (Interception and Access) Act 1979 (sections 9-10) and under the Australian Security and Intelligence Organisation Act 1979 (sections 25, 25A, 26B and 27).
At present, there is potentially a major political sanction against an Attorney-General issuing a warrant under those provisions. That sanction is that any Attorney-General who issues such a warrant, if it is discovered, runs the risk that the media will apply an unprecedented level of criticism to them. The Attorney-General is also accountable to Parliament and risks parliamentary sanction.
Having a PIA produce a submission for the Attorney-General provides the public, the media and the Attorney-General with a level of comfort that matters have been properly considered before issuing a warrant involving journalists or media organisations.
Mr Julian Leeser MP
Mr Tim Wilson MP
Senator the Hon Eric Abetz