Chapter 3 - Legislative developments
Introduction
3.1
The second paragraph of the terms of reference requires the Committee
to review:
The fairness, purpose, effectiveness and consistency of entry
and search provisions in Commonwealth legislation made since the Committee
tabled its Fourth Report of 2000
3.2
In undertaking this review, the Committee has adopted the same
definitions of these terms as it used in its original report. The Committee
sees a connection between the purpose of entry and search provisions and the
need for consistency, or otherwise, of such provisions across comparable
agencies. Similarly, the Committee considers that fairness and effectiveness
are essentially matters of administration. The Committee has therefore
considered the provisions made for the administration and review of entry and
search powers.
3.3
The Committee has not set out to duplicate its ongoing
consideration of legislation at the time of its introduction into Parliament.
For the most part, the Committee has reviewed its commentary on particular bills
in its Alert Digests and Reports to identify examples of issues that have emerged
since it tabled its original report.
The purpose and consistency of entry and search provisions
3.4
Since its original report, the Committee has considered a number
of bills containing entry and search provisions. These have included provisions
intended to enable the gathering of evidence of an offence, such as the powers
in the Border Protection Legislation Amendment (Deterrence of Illegal Foreign
Fishing) Bill 2005, and those intended to enable the monitoring of compliance
with a statute, such as powers in the Water Efficiency Labelling and
Standards Act 2005.
3.5
The Committee considers that the scope of any particular entry
and search power ought to be influenced by the nature of the objectives
pursued. The extent of the power conferred should be determined only after all
the outcomes likely to flow from the grant of the power have been considered
and balanced against each other. In this context, the Committee welcomes the consultative
processes instituted by the A/G's Department for the development of provisions
dealing with offences, civil penalties and enforcement. The Committee has
therefore been interested to note the extent to which the bills it considers
appear to have benefited from this process.
3.6
As noted in the original report, the Committee considers it is
important that entry and search provisions should be as consistent as
practicable across all comparable agencies which exercise those powers. The Committee
considers that all such provisions should accord with a common set of
guidelines, unless compelling reasons are advanced to justify a departure from
them. As noted in Chapter 2, the Committee considers that the release of the Guide
represents a significant and positive step toward achieving this.
3.7
However, while the Committee considers that consistency is an
important guiding principle, the Committee does not view it as absolute. The Committee
recognises that in certain circumstances there may be a need to deviate from
the accepted principles set out in the Guide. In these circumstances, the Committee
expects that the explanatory memorandum to a bill will set out a clear
explanation of the extent to which the principles in the Guide were considered
in the formulation of the provisions and the reasons why, in the particular
circumstances, a departure from these principles is justified. Unfortunately, the
Committee notes that this expectation has not always been met.
Power to stop, detain and search
people, vehicles and vessels
3.8
The Committee has considered a number of statutes which give law
enforcement officers and others powers to stop, detain and search people,
vehicles and vessels without a warrant. In many cases, these amendments
represent a significant expansion of the powers previously available under the
relevant legislation. Regrettably, the Committee notes that in most cases the
proposed amendments were accompanied by limited explanation as to why the
powers were necessary in the particular circumstances. In most cases, the
justifications offered related to national security.
3.9
Relevant legislation considered by the Committee in this context
included: the Australian Protective Service Amendment Act 2003, the
Aviation Transport Security Act 2003, the Fisheries Legislation
Amendment (High Seas Fishing Activities and Other Matters) Act 2003, the
Customs Legislation Amendment (Airport, Port and Cargo Security) Act 2004 and
the Maritime Transport Security Act 2003.
3.10
The Australian Protective Service Amendment Act 2003 conferred
additional powers on protective service officers undertaking security functions
to request personal identification details and information; to stop and detain certain
persons for security purposes and to seize things found during such a search. The
bill was amended during its passage to insert a requirement that a person shall
not be detained for longer than is reasonably necessary for a search to be
conducted.
3.11
Prior to the enactment of those provisions, protective service
officers had the power to arrest people without warrant and search them, and
things in their control, when the officer was performing protective security
duties under a range of statutes. The arrest power could only be exercised if
the protective service officer believed on reasonable grounds that the person
was committing an offence mentioned in section 13 of the Protective
Service Act and that arresting them was necessary, for instance, to ensure that
they appeared in court or to stop them from continuing to commit an offence.
3.12
The Committee expressed concern that the Act provided for people
to be searched without a warrant being obtained and without being arrested.
While there appear to be limitations on the exercise of the powers, the
explanatory memorandum offered limited justification for these expanded powers,
stating simply that:
They will provide protective service officers with greater
flexibility in suspicious circumstances where the exercise of the arrest power
is not immediately necessary, but where it is necessary to act quickly to
ensure the security of a person or place that is being protected is not
compromised.
3.13
The Australian Security Intelligence Organisation Legislation
Amendment (Terrorism) Act 2003 also expanded the powers available to the ASIO
to question and detain persons under the Australian Security Intelligence Act
1979. Prior to these amendments, ASIO had no power to question and detain
persons. ASIO could ask people to speak to it voluntarily and it had extensive intelligence
gathering powers to intercept telecommunications, use listening and tracking
devices, remotely access computers, enter and search premises and examine
postal articles. Such powers could only be used under the authority of a
warrant sought by the Director-General of Security and signed by the
Attorney-General.
3.14
The amendments sought to provide for the detention and
questioning, under warrant sought by the Director-General of Security and
signed by the Attorney-General, of adults who may have information relating to
terrorism and of minors aged between 16 and 18 years of age. Among other
things, the Committee was particularly concerned about the power to detain persons,
not suspected of committing any offence, for the purpose of obtaining
intelligence.
3.15
The Committee commented that:
These provisions seem to suggest that there is no need for
anyone involved in seeking or issuing such a warrant to form a reasonable
belief that the relevant person has committed any office. Indeed that person is
to be detained for the purpose of collecting intelligence, not for the purpose
of having an offence investigated. A person might be detained, apparently for a
number of consecutive periods of 48 hours, simply because he or she may be able
to provide information about, for example, the possible future commission of an
offence.[1]
3.16
The Committee also expressed concern at the justification offered
for this expansion of powers:
In his Second Reading Speech, the Attorney-General justifies
these provisions on the basis that it is "necessary to enhance the powers
of ASIO to investigate terrorism offences." While terrorism provides
obvious law enforcement challenges, these provisions allow what is, in effect,
a new basis for detaining people who need not themselves be suspects and, in
any event, are being detained for intelligence gathering rather than
investigatory purposes.[2]
3.17
The Minister responded in detail, explaining that while there was
no known specific threat to Australia, its profile as a terrorist target has
risen and these powers were necessary to help ASIO uncover information before a
terrorist offence is perpetrated so that it can be prevented.[3]
While the bill was amended during its passage, the Committee concluded that the
provisions, even after amendment, might have an adverse impact on personal rights
and liberties. The Committee left it for the Senate to decide whether such
breaches are acceptable when weighed against the policy objectives of the bill.
3.18
The Committee considers that the justification for the expansion
of intrusive enforcement and investigatory powers should not be considered to
be self-evident, no matter how beneficial such powers might be in a national
security context. The Committee expects that the development of such
legislation is preceded by careful consideration of all practicable avenues
balanced against consideration of the implications for individual rights and
liberties. This consideration should be included in the explanatory memorandum
to any legislative proposal in appropriate detail, together with the
justification for any deviation from accepted principle, to assist the
Parliament in its consideration of the merit of the proposed legislation.
Personal searches
3.19
The Committee has considered a number of recent statutes which have
given law enforcement officers, and others, powers to conduct personal searches,
including strip searches, again without a warrant.
3.20
Paragraph 11.3 of the Guide advises 'any proposal for new powers
to search persons, whether in the form of a frisk, ordinary or strip search,
should have strong justification.'[4]
However, the Committee notes that on a number of occasions no such 'strong
justification' has been provided, and it has been necessary for the Committee
to seek an explanation from the relevant Minister. Where justification is
provided, it is generally either related to national security or to an apparent
precedent for similar powers in other legislation.
National security
3.21
The trigger for the exercise of these powers is generally
derived from the unauthorised presence of a person or persons in a
security-controlled area. An example is the Customs Legislation Amendment
(Airport, Port and Cargo Security) Act 2004. Section 219ZJD of that Act
would permit a Customs officer to conduct either a frisk search or an ordinary
search of a person whom the officer has detained on suspicion of having
committed a serious offence against a law of the Commonwealth. The Committee
noted that no justification was advanced in the Second Reading Speech to the
Act and that the explanatory memorandum advised only that the 'search and
seizure powers set out in this section are similar to the powers that are
conferred on protective service officers'.[5]
3.22
The Minister advised that the purpose of the powers is to protect
Customs officers and prevent the destruction of evidence when a person is
suspected of having committed a serious Commonwealth offence, is the subject of
a Commonwealth arrest warrant, or is on bail where a condition of the bail is
that a person not depart Australia. The Minister also advised that Customs
officers already have broad personal search powers under the Customs Act
1901 and receive extensive training in relation to this aspect of their
operational activity.[6]
The Committee noted that its consideration of the bill would have been assisted
by the inclusion of this explanation in the explanatory memorandum. The Committee
also stated that it continues to have concerns with personal search provisions
as they may be considered to trespass on personal rights and liberties.
Precedent as a justification for
extension of powers
3.23
The Committee has noted a trend in which powers of detention and
search without a warrant in earlier bills are used as a precedent for modelling
subsequent legislation, but often without the same degree of rigour. The Committee
considers that these are significant and intrusive powers and should only be
conferred in exceptional and specific circumstances. The Committee does not
believe that precedent alone is sufficient reason for pursuing a practice,
particularly if the practice is tainted or flawed. The Committee expects that
proposals for the inclusion of such powers in legislation should be accompanied
by detailed explanation and justification in the explanatory memorandum and
also by appropriate safeguards.
3.24
For example, the Committee has considered a number of bills which
have sought to extend existing enforcement powers to encompass detention and
search powers similar to those in the Migration Act 1958. The Committee
is concerned that while these subsequent provisions mirror the provisions of
the earlier Act, they often also mirror weaknesses in the earlier Act (upon
which the Committee expressed concern), or fail to include appropriate
safeguards to ameliorate the risks identified by the Committee in commenting on
that earlier legislation.
3.25
In a number of cases, the Committee has expressed concern at an
apparent lack of rigour in the framing of such powers and at the inadequacy of
the justification for such powers provided in the explanatory memorandum to
each bill. Relevant legislation includes: the Border Protection Legislation
Amendment Bill 1999,[7]
the Migration Legislation Amendment (Immigration Detainees) Bill 2001, the
Migration Legislation Amendment (Immigration Detainees) Bill (No. 2) 2001, the
Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing)
Bill 2005,[8]
and the Environment and Heritage Legislation Amendment (No. 1) Bill 2006.[9]
3.26
The Migration Legislation Amendment (Immigration Detainees) Bill
2001 proposed a series of provisions including the ability for an authorised
officer, without warrant, to conduct a strip search of a detainee to determine
whether that detainee possesses a weapon or other thing capable of being used
to inflict bodily injury or facilitate escape. The Committee expressed concern
at the use of provisions in the Crimes Act 1914 which authorise police
officers to search people under arrest as a model for conferring such powers on
persons other than police officers in relation to persons in immigration
detention. The Committee sought a briefing on the provisions of the bill. On 21 June 2001, the bill was amended in the House of Representatives and a number of
provisions of concern to the Committee were removed from the bill. These were
subsequently included in the Migration Legislation Amendment (Immigration
Detainees) Bill (No. 2) 2001.
3.27
In considering that subsequent bill, the Committee reiterated its
earlier concerns, but noted that the changes made to the provisions previously
introduced had provided greater safeguards in relation to the authorisation and
conduct of strip searches. The Committee also noted that a Draft Protocol
for Strip Search of Immigration Detainees had been developed and agreed
between the then Minister for Immigration and Multicultural Affairs and the
Attorney-General. The Draft Protocol set out the principles and essential
operating guidelines for those who authorise a strip search, those who conduct
it, and those who are subject to it. The Committee also noted that the Draft
protocol was expected to be incorporated into written directions issued
pursuant to section 499 of the Migration Act.
3.28
In responding to the Committee's concerns the Minister advised
that further amendments were to be made to the bill including requiring a
search of an immigration detainee who is at least 10 years old but under 18
years to be authorised by a magistrate and to clarify the basis on which an
officer might form a suspicion on reasonable grounds that there is a weapon
hidden on, or about, a detainee. The Minister also advised that pursuant to
section 499, the Draft Protocol would be tabled in Parliament and that the
Protocol would contain provisions requiring the tabling of a statement twice
per year providing summary information on the number of strip searches. These
additional safeguards, together with the Draft Protocol tempered the Committee's
concerns in relation to this bill.
3.29
Since the passage of that bill, the Committee has considered
other bills which have included search powers closely modelled on those in the
Migration Act. The Border Protection Legislation Amendment (Deterrence of
Illegal Fishing) Bill 2005 inserted similar provisions in the Fisheries
Management Act 1991 and the Torres Strait Fisheries Act 1984.
However, the Committee was concerned that these bills were not accompanied by a
clear justification for the extension of the powers and did not follow the
model of providing for operational guidelines or for Parliamentary scrutiny of
those guidelines.
3.30
More recently, the Environment and Heritage Legislation Amendment
(No. 1) Bill 2006 has sought to include similar provisions in the Environment
Protection and Biodiversity Conservation Act 1999. In considering this
bill, the Committee expressed concern at the lack of justification for applying
personal search provisions, including provision for strip searches, without a
warrant, within the context of the Environment Protection Act. In tabling the Committee's
report, the Chair of the Committee stated that '[t]o borrow exceptional powers
from another regulatory context and seek to apply them without due rigour or
detailed justification in a different regulatory context is simply not
sustainable'.[10]
The Committee was concerned to note the Minister for the Environment and
Heritage's response in which he stated that:
it is considered highly unlikely that it would ever be necessary
to conduct strip searches of environment detainees. I understand that under the
powers in the Migration Act no adult has been strip searched since January 2003
and no minor has ever been strip searched.[11]
3.31
The Committee considers that powers to detain, search or strip
search an individual are significant and intrusive and should only be conferred
in exceptional and specific circumstances where there is a demonstrated need
for such powers. The Committee considers that where such powers are deemed
necessary, a detailed explanation and justification for their use should be
included in the explanatory memorandum to the bill and appropriate safeguards
should be provided for, both within the legislation itself and within guides
and/or protocols. Desirably, such guides or protocols should be provided for
in the legislation, promulgated by way of Ministerial direction and tabled in
both Houses of the Parliament. In addition, the Committee considers that
guidelines and protocols for such powers should contain provisions that require
the tabling of an annual statement providing summary information on the number
of strip searches.
Reduction of judicial oversight
3.32
The Committee has raised concerns in relation to a number of
bills containing powers to detain and search people without warrant. One of the
Committee's concerns is the reduction in judicial oversight of the use of
sensitive and intrusive powers prior to their use, often combined with a
restriction upon subsequent judicial oversight through a prohibition on
instituting legal proceedings.
3.33
Provision for search without warrant is often justified on the
basis of the difficulty of obtaining a warrant urgently in circumstances where
it is impractical to obtain a warrant in person, such as in a remote locality
or at sea. The Committee notes, for example, the statement in the Government
response that:
The Government does not support the principle that the power to
issue warrants to enter and search premises should only be conferred on
judicial officers. The delay that is often involved in contacting and
consulting with a judicial officer in order to obtain a search warrant is
unacceptable in situations where DIMIA officers require a warrant as a matter
of urgency to assist in apprehending an illegal migrant believed to be at a
particular residence.[12]
3.34
The Committee notes that some bills have made provision for high
level authorisation in the case of 'strip searches', at Secretary or Deputy
Secretary level or equivalent[13].
However, the Committee remains concerned where the use of such intrusive powers
is not subject to judicial oversight. In this context, the Committee endorses
the advice in the Guide that in such circumstances, provision should be made
for the issue of a warrant by telephone and that section 3R of the Crimes Act
should be used as a model[14].
Recommendation 1
3.35
The Committee recommends that the Guide be amended to advise that
the justification for entry and search powers in general, and for those
conferring the power to conduct personal searches in particular, should be
clearly set out in the explanatory memorandum to the bill.
Recommendation 2
The Committee also recommends that the Guide be amended to advise
that the justification for entry and search powers, particularly the power to
conduct personal searches, should address the need for such powers in the
particular circumstances and should not rely on precedent alone.
Recommendation 3
The Committee further recommends that entry and search without a
warrant should only be authorised in very exceptional circumstances and only
after avenues for obtaining a warrant by telephone or electronic means have proved
absolutely impractical in the particular circumstances. In such circumstances,
senior executive authorisation for the exercise of such powers should be
required together with appropriate reporting requirements. The Guide should be
amended to reflect this.
The administration and review of entry and search powers
3.36
As mentioned earlier, the Committee considers that the fairness
and effectiveness of entry and search powers is largely a question of
administration. In its original report the Committee commented that:
A provision may be fair in its terms, but administered in an
unfair manner. Or a provision may be 'unfair' in its terms, but administered by
the relevant agency in a way that renders it 'fair'.[15]
3.37
The Committee notes that the Guide provides a clear statement of Commonwealth
policy in relation to the implementation of entry and search powers. It provides
guidance in relation to the appointment, qualifications and accountability of
officers authorised to administer such powers, identification requirements, the
notification of rights of occupiers, the use of force and the seizure of
materials. The Committee also notes the clarification provided in the Government's
response in relation to a number of these matters. Generally speaking, most of
the legislation considered by the Committee in the course of this inquiry has
accorded with the principles currently expressed in the Guide. However, the Committee
remains concerned about what it considers to be three key areas in the
administration of entry and search powers, which are inconsistently addressed
in legislative proposals:
- accountability measures for non-government employees and
agencies;
- advice of rights and obligations to occupiers prior to search;
and
- training procedures and other internal controls.
Accountability measures for
non-government employees and agencies
3.38
The Committee endorses the Government's view that entry powers
should generally only be conferred on government employees on the ground that
such officers are subject to a wide range of accountability mechanisms. The Committee
accepts that in certain circumstances it may be necessary to confer such powers
on non-government employees, for example, where specialist expertise is
required. The Committee endorses the Government's view that:
the empowerment of non-government officials to exercise search
and entry powers should be strictly limited to cases of necessity. Necessity
would be assessed by the Attorney-General's Department on a case by case basis
when it is consulted about requests for a grant of search and entry powers in
accordance with Government policy.[16]
3.39
The Committee has expressed concern in the past that coercive and
intrusive powers should only be conferred on appropriately qualified persons.
The Committee welcomes the Government's statement that appointment procedures
may be set down in legislation and that in the case of non-government employees
or agencies certain limitations should be applied to the authority to apply for
search warrants. Similarly, the Committee welcomes the Government's suggestion
that the exercise of entry and search powers be 'legislatively restricted by
limiting the exercise of search and entry powers by such non-government
employees to instances where, for example, their expertise would be required.
Recommendation 4
3.40
The Committee recommends that the Guide be updated to include the
statement of principle and practice set out in the Government's response and to
also include advice that the justification for the empowerment of
non-government employees in particular circumstances should be set out in the
explanatory memorandum to the bill. Similarly, the justification for any
deviation from these principles and practice should also be set out in the
explanatory memorandum, for the benefit of the Parliament and the public.
Advice of statutory rights to
occupiers
3.41
In its original report, the Committee stated that the occupier of
premises which are to be entered and searched should be given a copy of any
relevant warrant and informed in writing, or if that is impractical, informed
orally, of his or her rights and responsibilities under the relevant
legislation. The Committee also stated that this requirement should be waived
only where circumstances are critical, or where an official is threatened with
violence or where it is absolutely impractical to follow them.[17]
3.42
The Customs Brokers & Forwarders Council of Australia
contends that a need still exists ‘to ensure appropriate information is
provided to the occupier, in plain words not reconstituted legal text, as to
rights and responsibilities in relation to any monitoring activity ... undertaken
by a regulatory agency with or without the occupier’s consent.’ In its
submission, the CBFCA cites particularly a need for a statement of purpose –
that is, whether the activity is for ‘monitoring compliance, for the purpose of
enforcement or for gaining evidence for a possible prosecution’. The CBFCA
submits that this should be a ‘clear statement of purpose rather than a broad
notification to enable ‘fishing’ expeditions.’ The CBFCA notes that, in its
experience, occupiers are ‘in many instances loath to exercise [their] rights
for fear of alienating the regulatory agency in terms of future compliance
activity.[18]
3.43
The Committee welcomes the Government's response to that report which
states that:
The policy on such matters has been changed to require that an occupier
be informed in writing or, if that is impractical, informed orally, of his or
her rights and responsibilities in relation to the search. There is no reason
to distinguish in the context of this proposal between a search warrant,
monitoring warrant and search authorised by consent. The statement of rights
and responsibilities that are suitable for communication to an occupier in
plain language should be drawn from the legislation itself ...[19]
3.44
The Committee notes that these principles are reflected in the
Guide and received evidence from agencies in during the inquiry which indicates
that steps have been taken to address this issue. For example, the ACS
indicated to the Committee that its practice is to maintain a clear distinction
between powers used to monitor compliance and those used to investigate an
offence. It also indicated that, when entering and searching premises, ‘Customs
provides written and verbal information to occupiers about its powers and their
rights and obligations.[20]
3.45
AQIS noted in its submission that it has instituted a new
practice of providing occupiers with an information sheet when officers enter
premises under a search warrant.[21]
AQIS provided the Committee with a copy of an information sheet that authorised
officers hand to occupiers prior to entering under warrant. The Committee notes
that in this case the occupier is asked to endorse receipt of the information
sheet. The Committee sees this innovation for AQIS as a positive step. Although
the information sheet largely contains legislative provisions, these are drafted
and presented in plain language.
3.46
The Committee welcomes the change in government policy in this
area and the examples of revised policy and practice. In particular, the
Committee notes the provisions of the Trade Practices Legislation Amendment
Bill (No.1) 2005. This bill proposed a new scheme of search and entry powers
for the Australian Competition and Consumer Commission (ACCC). It provides that
entry on to premises must be either by consent or warrant, that ACCC staff
members exercising search and seizure powers must have suitable qualifications
and experience and that they must carry identity cards at all times. By
contrast, the previous regime enabled the ACCC to authorise a staff member to
enter premises, inspect documents and make copies if there was a suspected
contravention of the Trade Practices Act. A warrant was not necessary for the
exercise of these powers, though the ACCC could only exercise them if it
believed that the person possessing or controlling the document may have
contravened the Act.
3.47
However, the Committee notes that there appears to be some
unevenness of application of the principles in the Government response and the
Guide in the drafting of entry provisions. The Committee has commented on a
number of bills which have not required the occupier to be informed of their
rights in writing or for the occupier to be provided with a copy of the
warrant.
3.48
In some cases the Committee has noted that provision has been
made for the occupier to be provided with a copy of a warrant on request. For
example, in commenting on the Families, Community Services and Indigenous
Affairs and Veterans' Affairs Legislation Amendment (2006 Budget Measures) Bill
2006, the Committee noted that no provision appeared to have been made for the
occupier to be advised of his or her rights under the legislation and the bill
requires an authorised officer to make a copy of the warrant available only if
the occupier of the premises, or another person who apparently represents the
occupier, is present at the premises[22].
3.49
In responding to the Committee's concerns, the Minister stated
that:
A warrant to enter premises and search for and seize evidence of
offences provides a reasonably clear indication to an occupier of their rights
and obligations in regard to that entry, search and seizure. From a practical
point of view officers would certainly be instructed to provide sufficient
advice to an occupier of premises in regard to their rights and obligations
under the warrant to facilitate the execution of the warrant. I believe that
the provision of a copy of the warrant to an occupier is a suitable way to
provide that person with information in regard to their rights and obligations
in regard to the execution of the warrant. Obviously, an occupier is always
able to seek his or her own legal advice in regard to these issues.
3.50
The Committee noted in the case of this bill that the authorised
officer was only required to make a copy of the warrant available if the
occupier of the premises, or another person who apparently represents the
occupier, is present at the premises.[23]
The Committee does not consider that provisions such as these adequately
satisfy the Committee's expectations or the Government's stated policy in
relation to advising individuals of their rights and obligations in relation to
the exercise of entry, search and seizure powers. The Committee's expectation
is that legislative provision should be made for an authorised officer to
produce his or her identity card prior to entry, and for the occupier of the
premises to be provided with a clear statement of his or her rights and
obligations in relation to the exercising of the warrant, preferably in
writing, together with a copy of the warrant.
3.51
Where the text of legislation is clear in setting out rights and
responsibilities, the Committee accepts that it may appropriately form the
basis of the information provided to occupiers. However, the Committee does not
accept that the information should merely reproduce legislative provisions
which are particularly complex or lengthy. The Committee notes the
recommendation of the Australian Law Reform Commission (ALRC), in its 95th
Report, Principled Regulation that, ‘When regulators develop publicly
available guidelines (however named) in the absence of a legislative requirement
to do so, these guidelines should ... be drafted in plain English’.[24]
3.52
The Committee also accepts that consideration must be given to
the range of languages in which this information might be required and that
this might vary from case to case. The Committee received evidence from DIMIA
that information sheets in relation to search warrants under section 251 of the
Migration Act are translated into 15 languages. Given the work of this
Department, this appears particularly apt.[25]
Recommendation 5
3.53
The Committee recommends that where legislation provides for
entry and search of premises, legislative provision should also be made for an
authorised officer to identify him or herself prior to execution of a warrant
and for the occupier of the premises to be provided with written advice, in
plain language, prior to execution of a search under the warrant. Such
requirements should only be waived in exceptional circumstances, such as the
exercise of covert search powers authorised under a warrant.
Recommendation 6
3.54
The Committee further recommends that the advice in the Guide be revised
to more clearly reflect the requirements referred to in Recommendation 5.
Best practice training procedures
and other internal controls
3.55
As noted in paragraph 3.38, the Committee considers legislative
provision for the protection of individual rights is an important element in
effecting fairness in entry and search powers. However, the Committee
recognises that there are limitations on the extent to which legislative
provisions can guide the exercise of such powers. Achieving fairness in the
execution of such powers depends significantly on the training and guidance
provided to the officers executing the powers. In its original report, the Committee
recommended that:
all agencies which exercise powers of entry and search should
introduce best practice training procedures and other internal controls to
ensure that the exercise of those powers is as fair as possible and should set
out the appropriate procedures and scope for the exercise of these powers in
enforcement and compliance manuals.[26]
3.56
The Committee notes that the Government accepts that
'appropriate best practice training procedures and internal controls should be
in place in Commonwealth agencies that exercise search and entry powers.'[27]
The Government response also notes that the Commonwealth Director of Public
Prosecution's (DPP) Search Warrants Manual is available free of charge to
interested Commonwealth agencies.
3.57
The Committee received evidence from a number of agencies
regarding their own internal guidelines and training procedures. ASIC, DIMIA, Australian
Customs Service (ACS) and the AFP provided evidence about their training
procedures and internal manuals and guidelines. These agencies use a range of
manuals and internal instructions to guide their operations, including the DPP Search
Warrant Manual. DIMIA stated that it had issued a 'comprehensive instruction'
on entry, search and seizure together with operational guidelines and has
introduced a training program which includes a focus on 'entry type issues'.
DIMIA also stated that it had been working closely with the Ombudsman in a
review of its warrant issue and administration processes. [28]
3.58
The ACS also indicated that it has a series of internal manuals
that cover the range of its operational business which describe the operation
of relevant legislation, policies and procedures. These manuals are updated
each time that the legislation is amended. The ACS explained that some of the
manuals were confidential while others were publicly available.[29]
The ACS has also reviewed its training procedures. In evidence before the Committee
the ACS stated that it works closely with the AFP in training Customs Officers.
Face to face training is followed up with on-the-job assessment of competencies
prior to the issue of a certificate. The ACS indicated that ACS officers must
be trained before they are authorised to have monitoring powers issued to them.[30]
3.59
Given the intrusive nature of entry, search and seizure powers,
the Committee would prefer to see provision in the primary legislation for the
formulation of training procedures and guidelines for the execution of such
powers and considers that these guidelines should be published except where
there are good reasons to the contrary. The Committee considers that the
approach set out in the ALRC's Report No. 95, Principled Regulation, could
provide a useful basis for the development and dissemination of such
guidelines. The ALRC recommended that:
when regulators develop publicly available guidelines (however
named) in the absence of a legislative requirement to do so, these guidelines
should:
- be drafted in plain English;
- include a statement that they are
not legally binding or justiciable;
- be published in electronic format
on the regulator's website and in hard copy;
- if appropriate, be published using
a systematic method that is accessible to both the regulator's staff and the
regulated community;
- clearly indicate they are current
and operative guidelines; and
- to the extent practicable, be
developed in consultation with the regulated community.[31]
3.60
On occasion, Ministers have drawn the development of guidelines
and protocols in relation to entry and search powers to the attention of the Committee.
For example, as noted in paragraph 3.28, in responding to the Committee's
concerns in relation to the Migration Legislation Amendment (Immigration
Detainees) Bill, the Minister advised the Committee of the existence of a Draft
Protocol for Strip Search of Immigration Detainees which had been developed in
consultation with the Attorney-General and which would be tabled, pursuant to
s.499 of the Migration Act, thus allowing for a degree of parliamentary
scrutiny[32].
3.61
The Committee considers that external scrutiny by the Parliament,
and by agencies such as the Ombudsman and Australian National Audit Office (ANAO)
is an important element in establishing the extent to which training practices
and operational procedures can be said to be best practice. The Committee
received evidence from a number of agencies which indicated that there was a
degree of external scrutiny in relation to some internal practices. The
submission from the Commonwealth Ombudsman’s Office attached a copy of the
Ombudsman’s finding in relation to an own motion investigation of the exercise
of entry and search powers by the ATO. The report of the Ombudsman’s findings
notes that the investigation was prompted by the Committee’s concerns that ‘the
ATO’s powers are anomalous ... not withstanding the procedural limitations which
the ATO has imposed on itself, it is a matter of concern that there is no
independent oversight of the use of a power which is expressed in such broad
terms.’[33]
3.62
However, the Committee noted from evidence received during the
inquiry that for the most part scrutiny of operational procedures is internal
scrutiny, with agencies reviewing their own procedures and outcomes. While the
Committee notes the commitment of a number of agencies to procedural review, it
would prefer that as far as possible legislative provision is made for the development
of guidelines and for such guidelines to be tabled in Parliament and published
on the agency’s website. The Committee notes that some agencies also maintain
confidential manuals and guidelines in relation to certain procedures. The
Committee considers that this practice should be limited to specific and
exceptional circumstances.
Recommendation 7
3.63
The Committee recommends that the Guide be revised to
require legislative provision for the development of guidelines for the
implementation of entry, search and seizure powers. Other than in specific
exceptional circumstances, such guidelines should be tabled in both houses of
Parliament and published on the agency’s website.
Review of need for powers
3.64
The Committee is concerned by statements by Ministers and
agencies that certain significant and intrusive powers, even though they will
rarely be required, have been introduced as measures of last resort. The
Committee has commented earlier on a tendency among agencies to make ambit
claims in relation to the range of powers required. The Committee reiterates
its expectation that each legislative proposal for the extension of search and
entry powers to any given agency will be considered on its merit and that
appropriate justification for the extension of the powers in the particular
circumstances will be included in the explanatory memorandum to the bill.
3.65
In addition to this, the Committee considers that it is incumbent
upon Ministers and agencies to regularly review the powers at their disposal,
their use and the ongoing need for them and to report this information to the
Parliament annually.
3.66
In this context, the Committee also notes the submission of the
LCA that entry and search powers should be routinely monitored and that a
register of the exercise of any such powers should be maintained by an
appropriate agency.[34]
More specifically, the Customs and International Transactions Committee of the
LCA's Business Law Section recommended that there be:
[A] regular review of the exercise of search and seizure powers,
whether pursuant to a warrant or otherwise. This should be conducted by the
ANAO no later than once in every 12 months. This should be conducted by way of
Public Inquiry with representations sought from all interested parties.
3.67
The Committee considers that there is merit in the establishment
of a register of entry, search and seizure powers. Desirably, such a register
would include such powers in both Commonwealth and State and Territory
legislation. The establishment of such a register would facilitate regular
review of which agencies are exercising such powers, with what frequency and in
what particular circumstances.
3.68
In addition to the establishment and maintenance of a register,
the Committee agrees that it is particularly important to monitor the application
and administration of such powers. In this context, the Committee notes the
submission of the Office of the Commonwealth Ombudsman in relation to the
Senate Legal and Constitutional Affairs Committee Inquiry into the Provisions
of the Families, Community Services and Indigenous Affairs and Veteran's
Affairs Legislation Amendment (2006 Budget Measures) Bill 2006, that a program
should be established to allow it to monitor the administration of the entry,
search and seizure provisions in that legislation for the first three years the
new powers were in operation. The Committee particularly notes the evidence of
the Acting Commonwealth Ombudsman that:
... regular monitoring by the Ombudsman of the use of the powers ...
would require records of the process to be kept for the issue of warrants and
other procedures, which would then be subject to audit and regular intervals.
This compliance monitoring could be done by the Ombudsman
undertaking an own-motion investigation that would examine regularly the way in
which the powers have been exercised. If there were significant and chronic
compliance problems, a move to a closer level of scrutiny through an
inspections regime might be justified.
3.69
The Committee considers that, if properly resourced, the
Ombudsman may be well placed to undertake monitoring of the practical
application of such powers on a wider scale across all Commonwealth
legislation, and that with the cooperation of State and Territory counterparts,
this monitoring could be extended to include similar powers in State and
Territory legislation. Such monitoring could extend to consideration of
guidelines for the application of such powers and relevant governance and
accountability frameworks. The Office of the Ombudsman could include the
findings of such monitoring in its regular report to Parliament.
Recommendation 8
3.70 The Committee recommends that the Commonwealth Ombudsman
evaluate the feasibility of establishing a register of entry, search and
seizure powers in Commonwealth legislation and the ongoing monitoring and audit
of the application of such powers.
Recommendation 9
3.71
As an interim measure, the Committee recommends that all
new proposals for entry, search and seizure powers include legislative
provision for regular reports to Parliament in relation to the agency’s use of the
powers and the continued need for them.
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