Chapter 5 - Conclusions and recommendations
Conclusions
5.1
In framing conclusions, it is often valuable to start at the
beginning. That is especially true in the case of entry, search and seizure
powers, as they are of a character which inspired the Senate in 1978 to move
towards establishing this Committee. The origins of the Senate Standing
Committee for the Scrutiny of Bills lie in the germ of an idea that the
parliament, in determining the content of statutory law, should consider the
impact those legislative provisions might have on individual rights and
liberties.[1]
5.2
Entry, search and seizure powers are particularly of a character
to attract the jurisdiction of legislative scrutiny committees because such
powers are almost exclusively the province of legislation, and the rights on
which they intrude are solidly based in the common law. The key questions,
however, are questions for the Parliament itself to answer, and again that
ethos is one which underlies the operations of the Committee.
5.3
The key questions are questions of balance and accountability. In
the case of legislative intrusions upon personal rights they may generally be
framed in simple terms: if there is justification for a power of this nature to
be granted or exercised, what protection must follow. The protections in this
case are all accountability mechanisms, for instance:
- judicial scrutiny through a warrants process, through review of
administrative actions and through the courts;
- administrative scrutiny through internal audits, implementation
of appropriate training and standards of performance for relevant personnel,
implementation of procedural and policy requirements in guidelines and manuals;
and
- parliamentary scrutiny of agencies' operations via reports to
Parliament.
5.4
The greatest protections lie in the final content of the law, and
that remains the responsibility of the Parliament itself. Accordingly, it is
for the Parliament to satisfy itself of the need for a particular power and to
determine what protection must attach to it. The principles espoused in the
original report, the policy outlined in the Guide and framework documents like
that proposed by the Privacy Commissioner serve the purpose of ensuring the
Parliament is properly informed and better able to make those decisions.
5.5
The original report espoused principles designed to enhance the purpose,
consistency and fairness of entry and search provisions. The Government has
indicated acceptance of a range of those principles, but has not embraced the
Committee's preferred approach to consistency – that of a legislated bench-mark.
Nevertheless, the Guide, together with the model provisions in the Crimes Act,
offer the potential for increased consistency, and provide a tool the Committee
and the Parliament can readily use to assess legislative proposals.
5.6
The status of the Guide as being representative of current
criminal law policy enhances its usefulness and the Committee welcomes the more
transparent approach that this offers. The Committee has suggested that the
Government consider the merits of extending the Guide, to include principles
governing the seizure of material relevant to a different offence and the
incidental seizure of material unrelated to a particular investigation.
5.7
One of the core principles in the original report is that proposers
of legislation must justify it, and it has been noted that explanatory
memoranda play a key role in setting out such justifications for new
legislation. The Committee considers that, where legislation departs
significantly from the principles espoused in the Guide or contains exceptional
provisions or is enacted in response to exceptional circumstances, the reasons
for this should be fully explained in the explanatory memoranda accompanying
the bill. The Committee considers this will be further enhanced if the
proposers are required to undertake periodic reviews and report to Parliament.
5.8
Similar considerations apply when circumstances evolve to alter
the impact of legislation, as is arguably the case with technological
convergence. Much attention has been given to ensuring that law enforcement and
security agencies are in a position to respond to and capitalise on new
technologies in their investigative and enforcement roles. The Committee has
noted much disquiet over the legislative responses to recent technological
developments. The Committee notes that many technological developments have the
potential to test existing protections, based as they often are on property
protection. Such protections may not be adequate to protect privacy rights in certain
circumstances, for example, where officers seize the hard drive of the servers
of an ISP and potentially affect the privacy of all of its customers. The
Parliament may need to turn its mind to such questions to keep pace with the
next generation of technologies.
5.9
In this context, the Committee notes that there can be a
temptation for the Government and its agencies, in proposing new laws, to reach
for an ambit position which may not be justified, simply by appealing to the
existence of a similar, but perhaps rarely used power, elsewhere. The Committee
considers that all new legislative proposals should be judged on their own
merits, based on a careful assessment of the needs of the agency in the
particular circumstances, balanced against the impact of the proposed powers on
individual rights. This analysis and justification for the proposed powers
should be set out in appropriate detail in the explanatory memorandum to the
bill, to assist the Parliament in its consideration of the legislative
proposal. The Committee will continue to play a role in providing the
Parliament with the information it needs to make properly informed decisions on
the content of legislative proposals, by seeking explanations and
justifications from proposing Ministers where these are not provided with the
bill.
5.10
The Committee has recognised the important role of administrative
and procedural guidelines in ensuring fairness and effectiveness. The Committee
notes that some administrative improvements proposed in the original report, such
as notifying occupiers of rights and enabling the taping of the exercise of
entry, search and seizure powers have been accepted by the Government and are
reflected in the Guide and the procedures of some agencies.
5.11
The Committee has recognised that the character of many such
guidelines as ‘internal documents’, together with limited reporting mechanisms,
results in less than adequate scrutiny of the use of these intrusive powers. The
Committee would prefer to see legislative provision for the formulation of
training procedures and implementation guidelines. The Committee also considers
that such guidelines should be tabled in parliament and published on the
agency's website, except in quite exceptional and specific circumstances.
5.12
The Committee has suggested that the Guide be expanded to provide
guidance on the development of such guidelines and has raised the possibility
of the establishment of a register of entry, search and seizure provisions to
facilitate the ongoing monitoring and audit of the exercise of such powers. The
Committee considers that this, together with regular reports from agencies,
would greatly assist the Parliament in its scrutiny and legislative roles.
5.13
As has been noted, Parliament and Ministers should give careful
consideration to the impact of legislative provisions on the rights of
individuals. This should be the case whether the legislation is new or old. The
Committee has previously recommended that existing legislation be reviewed to
meet new standards, and makes that comment again in respect of the policy
position set out in the Guide and in relation to the ongoing need for existing
entry, search and seizure provisions.
5.14
The Committee considers that the principles set out in its
original report together with the Government’s formal response and acceptance
of some of the recommendations in that original report provide a good basis for
this assessment. The Committee welcomes the reflection of many of these
principles in the Guide and considers that the promulgation of the Guide is a very
positive step towards achieving greater consistency and fairness in framing,
and ultimately in the application, of entry, search and seizure powers. The Committee
also notes that the Guide is to be regularly reviewed, and has made some
recommendations to assist in this. The Committee considers all relevant
legislative proposals against the framework established in the Guide and
expects that legislative proposals will conform broadly to the principles set
out in it. Where significant deviations from these principles are proposed, the
Committee expects that the explanatory memorandum will set out the
justification for this in appropriate detail.
Recommendations
5.15
The Committee makes the following recommendations:
Recommendation 1 (paragraph 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 (paragraph 3.35)
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 (paragraph 3.35)
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.
Recommendation 4 (paragraph 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.
Recommendation 5 (paragraph 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 himself 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 (paragraph 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.
Recommendation 7 (paragraph 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.
Recommendation 8 (paragraph 3.70)
5.16 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 (paragraph 3.71)
5.17
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.
Recommendation 10 (paragraph 4.32)
The Committee recommends that consideration be given to
expanding the Guide to set out the principles governing the seizure of material
relevant to a different offence, particularly an offence under a different
statute, to ensure that proper authority is provided and that proper provision
is made for the subsequent investigation and prosecution of offences.
Recommendation 11 (paragraph 4.55)
Covert access to stored communication should only be
permitted with a warrant and should only be accessible to core law enforcement
agencies. The subject of the warrant and the telecommunications services for
which access is being sought should be clearly identified in the application
for the warrant and on the warrant itself.
Recommendation 12 (paragraph 4.61)
The Committee recommends that the Guide be amended to
require that legislative provision be made for the regular review of seized
material and for the timely return or destruction of material not relevant to a
particular investigation.
Recommendation 13 (paragraph 4.62)
The Committee recommends that the Guide be amended to
encourage the inclusion of limitations on the use and derivative use of seized
material which is not relevant to a particular investigation.
Recommendation 14 (paragraph 4.67)
The Committee recommends that the Attorney-General give
consideration to the formulation of core principles governing the seizure of
material.
Robert Ray
Chair
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