Chapter 1 - Introduction

The role of the Committee

1.1       Determining the proper balance between private and public interests is a matter that confronts all spheres of government in Australia. Under contemporary legal and administrative structures this involves consideration of the form and content of the law, the manner in which it is administered and the manner in which conflicts under the law are resolved.

1.2       The Parliament must often consider the extent to which, in the public interest, private rights might be curtailed. The nature of the conflicting interests and the nature and extent of the intrusions and safeguards proposed should be explicitly considered by the Parliament in determining the final content of the law. The Senate Standing Committee for the Scrutiny of Bills was established to assist senators in considering such matters in legislative proposals (or 'bills') put before the chamber.

1.3       The Committee assesses bills against a set of accountability standards that focus on the effect of legislation on individual rights, liberties and obligations, and on maintaining proper safeguards in the delegation and exercise of legislative power. Where the Committee's terms of reference are attracted it may seek further information from the proposer of a bill. Any measure which appears to infringe upon these rights or liberties, or which appears to delegate legislative power inappropriately or allow it to be exercised without sufficient parliamentary oversight becomes the subject of a report of the Committee. In undertaking this task the Committee seeks to promote properly-informed decision making and improved legislative outcomes.

1.4       Generally, the Committee performs this role, bill by bill, in response to the legislation put forward by ministers and other senators and members, but occasionally the Committee will identify an area that invites deeper examination and seek a reference on the matter from the Senate. This enables the Committee to more broadly consider the principles involved in determining that area of the law, and also to look beyond the laws themselves to consider the manner in which they might be administered.[1]

1.5       In 1999 and 2000 the Committee undertook such an inquiry in relation to search and entry provisions in Commonwealth legislation. The current inquiry represents a follow-up to that original inquiry.

Background to the inquiry

1.6       On 10 December 1998, the Senate referred the following matter to the Committee for inquiry and report:

A review of the fairness, purpose, effectiveness and consistency of right of entry provisions in Commonwealth legislation authorising persons to enter and search premises.[2]

1.7       The Committee's report was tabled on 6 April 2000.[3]

1.8       The core of that report was a set of principles with which the Committee concluded any statutory provisions for entry and search should comply. These principles were derived from the evidence presented to the inquiry and various historical and legal sources, as well as from the Committee's experience in considering legislation presented to the Parliament. In particular, the Committee drew upon information provided by the Commonwealth Ombudsman, the Acting Privacy Commissioner and the Commonwealth Attorney-General's (A/G's) Department.

1.9       The principles start from a presumption that people have a fundamental right to their dignity, their privacy and the security of their residences and other premises, among other rights. Intrusion upon those rights is warranted only in specific circumstances where the public interest is objectively served and should not occur without due process. From those high level principles the Committee determined a range of others governing, for instance, the granting of powers to enter and search; the authorisation of entry and search; the extent of the power granted; the manner in which the power is exercised; and the provision of information to occupiers.

1.10         The Committee uses these principles in considering whether new entry, search and seizure provisions in legislation might infringe upon personal rights and liberties. The full list of principles is set out in Appendix II of this report.

1.11         In its original report the Committee made 16 recommendations that were intended to ensure that these principles applied in relation to all relevant Commonwealth legislation and to the exercise of powers under that legislation. In particular, the Committee recommended that the principles should be included in stand-alone legislation, with the powers available to the Australian Federal Police (AFP) under the Crimes Act 1914 being the 'high water mark' of entry and search powers. This would mean that agencies may have fewer powers than the AFP, but would not ordinarily have more. The Committee also recommended that existing entry and search provisions should be reviewed and amended to be consistent with the principles.

1.12         The Government response to the report was tabled in November 2003. In many respects the tone of the response was positive. It indicated, for instance, general approval of the principles the Committee had set out. However, of the 16 recommendations, the Government accepted (or accepted in principle) only five recommendations and partially accepted another four. One further recommendation was noted. The Government did not accept six of the recommendations, including key recommendations aimed at ensuring that the principles are applied consistently across all Commonwealth legislation.

1.13         As the Office of the Federal Privacy Commissioner summarised:

In short, there was agreement with the majority of the Report's principles but, the Government noted, the complexity and range of regulatory and enforcement functions required a flexibility that is incompatible with some of the Report's principles and recommendations.[4]

Conduct of the inquiry

1.14         In March 2004, the Committee sought and received from the Senate a reference for a follow-up inquiry, examining:

1. The Government's responses to the committee's Fourth Report of 2000: Entry and Search Provisions in Commonwealth Legislation and, in particular, whether there has been any resultant impact on the practices and drafting of entry and search provisions.
2. A review of the fairness, purpose, effectiveness and consistency of entry and search provisions in Commonwealth legislation made since the Committee tabled its Fourth Report of 2000 on 6 April 2000.
3. A review of the provisions in Commonwealth legislation that authorise the seizure of material and, in particular:
1. The extent and circumstances surrounding the taking of material that is not relevant to an investigation and the use and protection of such material; and
2. Whether the rights and liberties of individuals would be better protected by the development of protocols governing the seizure of material.

1.15         The Committee advertised the inquiry in the press and on its web page and invited submissions from a range of people and organisations, including those agencies that made submissions to the Committee's original inquiry. The Committee received 16 submissions. The Committee also received a briefing from officers of the A/G's Department and held a public hearing in Canberra on 11 March 2005. A list of submissions and witnesses is at Appendix I.

Acknowledgement

1.16         The Committee thanks those agencies and organisations that made submissions to this inquiry and those who appeared before the Committee to give evidence.

Notes on References

1.17         References in this report are to individual submissions as received by the Committee, not to a bound volume. References to the Committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

Structure of the report

1.18         In some ways this is an unusual reference – an inquiry into responses to a previous inquiry – but the Committee sees it as part of the continuing interplay between elements of the Parliament (the Committee, the Senate) and elements of the Executive (ministers, departments, departmental officers and legislative drafters). As with many other aspects of the Committee's work, the discussion here is about how to strike the right balance between competing interests while adhering to enduring fundamental principles.

1.19         In this report, the Committee does not intend to revisit the matters canvassed in the original report, except to the extent necessary to provide useful commentary on the Government response. The Committee considers that the principles outlined in that report remain a useful model for determining the balance between public and private interests where inherently intrusive powers of search and entry come into play. Certainly, the Committee will continue to refer to those principles where they are relevant to its consideration of new entry, search and seizure provisions. After the conclusion of this inquiry, the Committee may continue to pursue some of the recommendations which have not been accepted should the opportunity arise.

1.20         In this report, the Committee's focus is on the nature and impact of the responses to the Committee's original report and subsequent legislative and policy developments. The Committee is also interested in examining what improvements there have been in the level and quality of information available to the Parliament to assist in its consideration of relevant legislation. The report specifically considers recent developments in relation to provisions authorising the seizure of material that is unrelated to an investigation.

Chapter 2 - Government responses to the original report

1.21         The initial focus of this report is on the Government's responses to the Committee's original report and 'whether there has been any resultant impact on the practices and drafting of entry and search provisions'.

1.22         Chapter 2 of this report examines both the Government's formal response to the 2000 report and the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, issued by the Minister for Justice and Customs in February 2004 (the Guide). The Guide was forwarded to the Committee shortly after its publication and was formally put before the inquiry by the A/G's Department in its submissions.[5]

Chapter 3 – Legislative developments

1.23         The second paragraph of the terms of reference requires the Committee to extend its commentary on search and entry provisions to include bills considered by the Parliament since the 2000 report. Chapter 3 of this report contains a summary of such legislation and a discussion of the issues raised. In addition to its examination of each bill against its core terms of reference, the Committee examined the 'fairness, purpose, effectiveness and consistency of entry and search provisions of each bill.' The Committee acknowledges the assistance of the Parliamentary Library in preparing material for this chapter.

Chapter 4 – Seizure provisions

1.24           The final paragraph of the terms of reference more formally introduces the related topic of seizure of material. The Committee considered the seizure provisions in its earlier report, but takes this opportunity to make explicit the application of many of the general principles developed in that report to provisions authorising the seizure of material.

1.25         In Chapter 4, the Committee discusses some significant legislative developments introduced in response to emerging technologies affecting the scope and impact of seizure powers. These developments have taken the law of entry, search and seizure into new territory and warrant further examination. The Committee's attention is particularly drawn to the question of the seizure of 'material that is not relevant to an investigation and the use and protection of such material.' The Committee also considered the merits of developing protocols to govern the seizure of material.

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