Chapter 8 - Government response to the Committee's inquiry into entry and search provisions in Commonwealth legislation
Introduction
8.1
During the 39th Parliament, the Committee undertook an
inquiry into entry and search provisions in Commonwealth legislation. The
Committee tabled its findings in its Fourth Report of 2000 on 6 April 2000. The conduct of the inquiry and findings of the Committee are detailed in The
Work of the Committee during the 39th Parliament November 1998 –
October 2001.[1]At the time that that report was finalised the Government had not yet
tabled its response to the Committee’s Fourth Report of 2000, thus its
inclusion in this report.
8.2
The Government tabled its response to the Committee’s Fourth
Report of 2000: Entry and Search Provisions in Commonwealth Legislation on 27 November 2003.[2]
The Government response indicated that entry and search powers were considered
to be a vital tool for ensuring the effective administration of government schemes
and compliance with the law, but that it was ‘equally important that such
provisions be framed to ensure that private rights are protected and powers are
exercised properly.’[3]
8.3
The response noted that policy on entry and search powers formed
part of the Commonwealth’s criminal law policy, which had been informed by the
views of the Scrutiny of Bills Committee over many years. Guidelines setting
out the policy had been developed in mid 1999 and were being reviewed at the
time that the Government response was tabled.
8.4
The Committee made 16 recommendations in its report. Each
recommendation, along with a summary of the Government’s response, is provided
below.
Recommendations 1 & 6
The Committee recommends that all entry and search provisions in
legislation including bills should have to conform with a set of fundamental principles
rather than long-standing practice. These principles should be enshrined in
stand-alone legislation based on the principles set out in this Report. This
legislation should take as its starting point the search warrant provisions set
out in the Crimes Act 1914 (Cth).[4]
The Committee recommends that all existing entry and search
provisions in legislation, including those contained in regulations, be
reviewed and amended by 1 July 2001 to ensure that they conform with the
principles set out in Chapter 1 of this Report.[5]
8.5
The Government did not accept these recommendations, arguing that
most agencies’ powers were formulated to operate as a cohesive and integrated
whole, recognising varying enforcement contexts, and that the enactment of
‘non-derogable, model standards in legislation would not take into account the
diversity of situations that entry and search powers are used to address’.[6]
The response provided a number of examples to demonstrate the need for
flexibility to achieve the different objectives of regulatory and enforcement
legislation.
Recommendation 2
The Committee recommends that the entry and search powers
available to the Australian Federal Police [AFP] under the Crimes Act 1914
(Cth) should constitute the ‘high-water mark’ for such powers generally.
By law, the powers of entry and search available to any other agency, person or
organisation may be less than these, but should only exceed the powers
available to the Australian Federal Police in exceptional and critical circumstances.[7]
8.6
The Government agreed that the entry and search powers available
to the AFP under the Crimes Act 1914 (Cth) should constitute the ‘high
water mark’ for search powers generally, but noted that ‘agencies operate under
different conditions, and perform different functions, so there will be
occasions when particular entry provisions need not conform with the standard
approach in every respect.’[8]
For example, the Government response argued that the AFP does not have
monitoring warrant/audit powers:
Commonwealth criminal law policy provides that where search
powers are sought, not for the investigation of specific offences but to
monitor compliance with legislative requirements, a ‘monitoring warrant’ regime
should be employed. The creation of criminal offences simply to ‘draw in’ the
AFP and its search powers is generally deemed to be an inappropriate
alternative to monitoring powers.
The Crimes Act 1914 is inappropriate to operate as model
legislation for agencies where there is a need to monitor/audit compliance with
statutory obligations in circumstances where no offence will be suspected.
Monitoring warrant powers are more limited than search warrant
powers in some respects (for example, they do not permit seizure), but broader
than search warrant powers in other respects (for example, the issue of a
warrant does not depend on evidence that an offence has been committed). These
distinctions are consistent with the differing objectives of monitoring/audit
powers and search warrants. [9]
Recommendation 3
The Committee recommends that each agency, person or
organisation which exercises powers of entry and search under legislation
should maintain a centralised record of all occasions on which those powers are
exercised, and should report annually to the Parliament on the exercise of
those powers.[10]
8.7
While agreeing that appropriate records should be kept of the
exercise of entry and search powers, the Government did not accept the need for
centralised records or annual reports to the Parliament, asserting that they
would not add to the current regime. The Government argued that, if there was a
question about the validity of a warrant or its execution, then ‘the courts can
examine that question when it arises and hold that the warrant was not valid
and/or its execution was improper.’[11]
Recommendation 4
The Committee recommends that the principles set out in Chapter
1 of this Report should apply to both government and non-government agencies,
persons and bodies which seek to enter and search premises by virtue of
statutory authorisation.[12]
8.8
As outlined in paragraph 8.5, the Government did not agree that each
of the principles identified by the Committee should apply to all entry and search
powers, however, they did agree that private persons or bodies should be subject
to the same policy strictures on search powers that apply to Government bodies.
The Government response emphasised that entry powers should generally only be
conferred on Government employees, who are subject to a wide range of
accountability mechanisms. It recognised, however, that there may be instances
where it is necessary to empower non-government employees with entry and search
powers and outlined the types of measures that could be put in place to ensure
appropriate and adequate accountability where this occurs. The Government
response concluded that ‘while the Government agrees in principle that
non-government agencies should be subject to scrutiny measures that apply to Government
bodies, it does not agree to enshrining this principle in legislation’. [13]
Recommendation 5
The Committee recommends that the right of entry provisions in
the Workplace Relations Act 1996 should conform with the principles set
out in Chapter 1 of this Report.[14]
8.9
The Government did not accept this recommendation, noting that
the Workplace Relations Act 1996 confers powers of entry on four
categories of persons: officers and employees of trade unions to whom a permit
has been issued; inspectors appointed by the Minister; Authorised Officers
appointed by the Employment Advocate; and the Industrial Registrar. The
Government response advised that the ‘Government considers that the same
principles should not apply to entry of premises by both trade union officials
and government officials’[15]
and went on to detail some of the safeguards governing entry to premises by
union officials.
8.10
In respect of entry powers conferred on non-union officials under
the Workplace Relations Act 1996, the Government indicated that it did
not consider that entry to premises only by consent or warrant was appropriate:
The majority of entries by inspectors and Authorised Officers
are to follow up on confidential unofficial complaints or formal claims, to
make inquiries, provide information and deal with claims and complaints,
generally through voluntary compliance. If a warrant requirement were to be
introduced, it is anticipated that this would significantly impair the ability
of inspectors and Authorised Officers to efficiently investigate and resolve
claims. Resources would have to be diverted from investigation and compliance
work to the task of obtaining warrants. The requirement to obtain warrants
would delay the resolution of investigations, increase costs and reduce the
number of entries by Authorised Officers and inspectors.[16]
Recommendation 7
As a priority, the Committee recommends that all entry and
search powers that go beyond the entry powers in the Crimes Act, including the
powers exercisable by the Australian Taxation Office, the Department of
Immigration and Multicultural Affairs, the Australian Transaction Reports and
Analysis Centre, the Australian Security Intelligence Organisation and the
Minister for Defence under the Defence (Areas Control) Regulations, should be
reviewed and amended so that they are consistent with the principles set out in
Chapter 1 of this Report.[17]
8.11
The Government reiterated its concern about the application of
the principles identified by the Committee and the achievement of consistency
across Commonwealth legislation ‘at the expense of the effectiveness of
existing regimes, which have in many instances been formulated based on
functional and operational necessities of different agencies.’[18]
However, the Government advised the Committee that the merits of undertaking a
review at an agency level had been recognised by some agencies. For example,
the Department of Immigration and Multicultural and Indigenous Affairs
undertook to conduct a review of its existing search and entry provisions and the
Government agreed that the power of the Minister administering the Defence
(Areas Control) Regulations 1989, to authorise a person to enter on to land
or premises to ascertain whether the regulations were being complied with,
should be reviewed.[19]
Recommendation 8
The Committee recommends that the Commonwealth Ombudsman
undertake a regular, random “sample audit” of the exercise by the ATO [Australian
Tax Office] of its entry and search powers to ensure that those powers have
been exercised appropriately.[20]
8.12
The Government accepted this recommendation in principle, noting
that the Ombudsman is an independent statutory office-holder and can initiate
an examination of the way in which the Australian Taxation Office, or any other
agency within its jurisdiction, exercises their powers of entry and search. The
response noted, however, that the Government is not able to direct the
Commonwealth Ombudsman to undertake particular investigations.[21]
Recommendation 9
The Committee recommends that the procedure that is applicable
in Victoria and in some other jurisdictions be followed where, after execution,
a warrant is returned to the court which issued it.[22]
8.13
The Government did not accept this recommendation. While agreeing
that warrants should be ‘properly and fairly exercised’ the Government did not
consider that returning the warrant to the court which issued it would add to
the current regime whereby an issuing officer is required to retain a copy of
the application for a warrant and a copy of the warrant itself. The Government
response also argued that:
...it is uncertain whether the return of a search warrant to the
issuing officer or court would provide any additional protection or safeguards
in relation to its execution. If an issue arises in relation to the execution
of a warrant and the seizure of evidence, it is likely to arise in the context
of a prosecution as part of the defence case. In that context the lawfulness of
actions taken are reviewed in order to determine the admissibility of evidence.
The court would determine whether the warrant had been lawfully executed and
the evidence obtained is indeed admissible.[23]
Recommendation 10
The Committee recommends that, unless there are exceptional
circumstances involving clear physical danger, all occupiers of premises which
are to be entered and searched should be given a written document setting out
in plain words their rights and responsibilities in relation to the search.
Occupiers should be informed that the proposed entry and search is either for
the purpose of monitoring compliance with a statute, or for the purpose of
enforcement or gaining evidence and possible prosecution, but not for both
purposes.[24]
8.14
The Government accepted this recommendation in principle, noting
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.’[25]
The Government did not, however, see any reason to distinguish between a search
warrant, monitoring warrant and search authorised by consent.
8.15
The Government response also indicated that, in cases where entry
and search was part of an established ongoing program of inspections to ensure
compliance with legislation, such as occupational health and safety or
transport safety, the Government considered that requirements to provide
occupiers with written advice on their rights and responsibilities were
excessive. The response emphasised that these programs involve thousands of
routine inspections annually and that ‘persons in the industry understand the
purpose of the visits is to conduct regulatory inspection rather than criminal
investigations.’[26]
Recommendation 11
Where search and entry powers are used by an investigative
authority, the Committee recommends that:
- those who are being investigated should have an ongoing right to
be informed of the current status of those investigations; and
- where an investigation has been concluded with no charges laid,
those who have been investigated should have the right to be informed of this
fact immediately; the right to have all seized material returned to them; and
the right to compensation for any property damage and damage to reputation.[27]
8.16
The Government accepted this recommendation in part, agreeing
that:
- individuals should be informed as soon as practicable when
proceedings are unlikely to be brought against them on the basis of existing
evidence; and
- those who have been investigated should have all seized material
returned to them (excluding unlawful items such as narcotics).
8.17
The Government did not, however, support the Committee’s
recommendation that those under investigation have an ongoing right to be
informed about the current status of the investigation, citing the High Court
in the case of NCSC v News Corporation Ltd:
It is the very nature of an investigation that the investigator
proceeds to gather relevant information from as wide a range of sources as
possible without the suspect looking over his shoulder all the time to see how
the inquiry is going. For an investigator to disclose his hand prematurely will
not only alert the suspect to the progress of the investigation but may well
close off other sources of inquiry... [28]
8.18
The response also cited a similar case in the United Kingdom
where the court stated that it would be ‘contrary to the public interest to
supply information which might enable a suspected fraudster to interfere with
witnesses or destroy documents before the investigation was completed’.[29]
8.19
Similarly, the Government did not support the Committee’s
recommendation that, where an investigation has been concluded with no charges
laid, those who have been investigated should have the right to compensation
for any property damage and damage to reputation, arguing that:
- such a right may hinder the effective exercise of entry and
search powers and the conduct of investigations, as investigators are likely to
feel constrained in their activities; and
- a failure to prosecute should not imply that the exercise of entry
and search was inappropriate.
8.20
The Government indicated that it believed that the issue of a
right to compensation for any property damage and damage to reputation was a
civil matter that would be best dealt with under the principles governing
tortious liability.[30]
Recommendation 12
The Committee recommends 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.[31]
8.21
The Government accepted that Commonwealth agencies that exercise
entry and search powers should have appropriate best practice training
procedures and internal controls in place. The Government advised the Committee
that the Commonwealth Director of Public Prosecutions’ Search Warrants
Manual is available to interested agencies.[32]
Recommendation 13
The Committee further recommends that, where practical, all
executions of warrants are video-taped or tape-recorded, and that where the
person is a suspect, a verbal caution is given and tape recorded.[33]
8.22
The Government accepted this recommendation in part, advising the
Committee that, while it is common practice for the execution of search
warrants to be video-taped or audio-taped, and for still photographs to be
taken for evidential purposes, the Government did not consider it appropriate
to impose this obligation on all agencies and in all circumstances. The
Government response noted that, under section 23F of the Crimes Act 1914, a
verbal caution is required to be given to a person suspected of committing a
Commonwealth offence.[34]
Recommendation 14
The Committee recommends that the Attorney-General implement a
system enabling courts to hear challenges to warrants in camera, or in a way which
does not lead to prejudicial publicity for the person challenging the warrant.[35]
8.23
The Government did not accept this recommendation, noting that
Australian courts have the power to make orders to protect parties from
publicity if they consider it appropriate and asserting that there was ‘no
demonstrated need to change existing law.’[36]
Recommendation 15
The Committee recommends that the Attorney-General and the
Minister for Justice and Customs examine the amendments to the Crimes Act
1914 proposed by the AFP, and the amendments to the Customs Act 1901 proposed
by the Australian Customs Service, and introduce legislation to implement those
amendments. [37]
8.24
The Government accepted this recommendation, advising that
amendments to the Customs Act 1901, giving effect to the Committee’s
recommendation, were included in the Customs Legislation Amendment (Criminal
Sanctions & Other Measures) Act 2000 and that similar amendments would
be considered when the Crimes Act 1914 was next amended.[38]
Recommendation 16
While aware that covert searches might make law enforcement
easier, the risks are such that the Committee is opposed to recommending such
searches.[39]
8.25
The Government noted the Committee’s position in respect to
covert searches and advised that this issue remained under consideration.[40]
Chris Ellison
Chair
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