CHAPTER 7
ENTRY, SEARCH AND SEIZURE PROVISIONS IN COMMONWEALTH LEGISLATION
Introduction
7.1
During the 41st Parliament, in addition to its
legislative scrutiny work, the Committee finalised an inquiry into entry,
search and seizure provisions in Commonwealth Legislation. This followed on
from the Committee’s inquiry into entry and search provisions, which was tabled
on 6 April 2000.[1]
7.2
In March 2004, the Committee sought and received from the Senate
a reference for a follow-up inquiry, examining:
-
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.
-
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.
-
A review
of the provisions in Commonwealth legislation that authorise the seizure of
material and, in particular:
-
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
- Whether
the rights and liberties of individuals would be better protected by the
development of protocols governing the seizure of material.[2]
Conduct of the inquiry
7.3
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 from a diverse range of organisations,
including Government departments, the Office of the Federal Privacy Commissioner,
the Law Council of Australia, the Clerk of the Senate, and the Australian
Computer Society Inc. The Committee also received a briefing from officers of
the Attorney-General’s Department and held a public hearing in Canberra on 11 March 2005.
7.4
The focus of the Committee’s Twelfth Report of 2006, was
on the nature and impact of the responses to the Committee’s original report on
Entry and Search Provisions in Commonwealth Legislation, and on subsequent
legislative and policy developments. The Committee also examined what improvements
there had been in the level and quality of information available to the
parliament to assist in its consideration of relevant legislation, and
developments in relation to provisions authorising the seizure of material that
was unrelated to an investigation.
Government responses to the Committee’s original report
7.5
The report summarised the Committee’s original recommendations
and the Government’s response to those recommendations. In particular, the
Committee noted that the Government did not agree with its recommendation that
the principles set out in Chapter 1 of its Fourth Report of 2000 should
be enshrined in legislation. In the absence of a commitment to develop stand
alone legislation, the Committee welcomed the promulgation of the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers, which
was issued by the Minister for Justice and Customs in February 2004 (the Guide).
7.6
The Committee noted from the submission from the Attorney-General’s
Department that:
The Guide seeks to consolidate policy, principles and precedent
relevant to the framing of Commonwealth offences, civil penalties and
enforcement provisions, including entry, search and seizure powers. It draws on
a broad range of source material, including:
- Model Criminal Code Reports
- Australian Law Reform Commission Reports
- Senate Scrutiny of Bills Committee material including ‘Alert
Digests’ and ‘Reports’, and
- Senate Regulations and Ordinance Committee material including ‘Annual
Reports’.[3]
7.7
The Committee expressed the view that, although the Guide
fell short of providing the Parliament with an opportunity to finally determine
the applicable general principles that should apply for entry, search and
seizure provisions, it did provide a means by which Parliament could measure
the approach taken in a particular bill against the general criminal law policy
applicable in the area. The Committee particularly welcomed the inclusion in
the Guide of commentary on the extant policy position from the Scrutiny
of Bills Committee and the Senate Regulations and Ordinances Committee, not
just in relation to entry and search provisions, but across the spectrum of the
criminal law provisions.
7.8
While noting that the Guide was neither binding nor
conclusive, the Committee, nevertheless, indicated that the promulgation of the
Guide, together with the consultative processes established between
sponsoring departments and the Criminal Justice Division of the
Attorney-General’s Department, ‘represent a significant step in the development
of a transparent and coherent criminal law and civil penalty policy framework.’[4]
The Committee concluded that the Guide ‘consolidates the Commonwealth’s
general policy on criminal law, promotes consistency in legislative drafting
and is a useful educative tool.’[5]
Legislative developments
7.9
The Committee reviewed search and entry provisions in bills that
had come before the parliament since its Fourth Report of 2000, assessing
them against both the Committee’s terms of reference, and the ‘fairness,
purpose, effectiveness and consistency of the entry and search provisions in
each bill.’ Among other things, the Committee concluded 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. Explanatory
memoranda should clearly demonstrate that careful consideration has been given
to all practicable avenues, balanced against consideration of the implications
for individual rights and liberties;
- any deviation from the accepted principles set out in the Guide
should be clearly justified in explanatory memoranda, to assist the Parliament
in its consideration of the merit of the proposed legislation; and
- 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. 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.
7.10
The Committee recommended 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.
-
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.
-
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.[6]
The administration and review of
entry and search powers
7.11
The Committee considered that the fairness and effectiveness of
entry and search provisions was essentially a matter of administration. While
acknowledging that most of the legislation considered by the Committee since
its Fourth Report of 2000 accorded with the principles in the Guide,
the Committee continued to express concern with three key areas in the
administration of entry and search powers, which were 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
7.12
The Committee endorsed 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. But the
Committee accepted that in certain circumstances, such as where specialist
expertise was required, it may be necessary to confer such powers on
non-government employees.
7.13
The Committee recommended that:
4. the Guide be
updated to include the statement of principle and practice set out in the
Government’s response [to the Committee’s Fourth Report of 2000] 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.[7]
Advice of statutory rights to occupiers
7.14
In its Fourth Report of 2000, 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’.[8]
7.15
The Committee welcomed the Government’s response to that report
which stated 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 ...[9]
7.16
The Committee noted that these principles were reflected in the Guide
and also received evidence from agencies during the inquiry which indicated
that steps had been taken to address this issue. Nevertheless, the Committee
cited recent bills that failed to adequately provide for the provision of
information to occupiers about their rights and obligations. The Committee
reiterated its position 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.
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.[10]
7.17
The Committee recommended that:
5. 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.
6. the advice
in the Guide be revised to more clearly reflect the requirements
referred to in Recommendation 5.[11]
Training procedures and other
internal controls
7.18
While the Committee considered that
legislative provision for the protection of individual rights was an important
element in effecting fairness in entry and search powers, it also stressed that
achieving fairness in the execution of such powers depended 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.[12]
7.19
Given the intrusive nature of entry, search and seizure powers,
the Committee advised that it would prefer to see provision made in the primary
legislation for the formulation of training procedures and guidelines for the
execution of such powers. The Committee also considered that such guidelines
should be published, except where there were good reasons to the contrary.
7.20
The Committee also considered that external scrutiny by the
Parliament, and by agencies such as the Ombudsman and Australian National Audit
Office, was an important element in establishing the extent to which training
practices and operational procedures could be said to be best practice. But
the Committee noted, from evidence received during the inquiry, that for the
most part scrutiny of operational procedures was internal scrutiny, with
agencies reviewing their own procedures and outcomes.
7.21
The Committee recommended that:
7. 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.[13]
Review of need for powers
7.22
In reviewing the legislation that had come before it since it
tabled its Fourth Report of 2000, the Committee also expressed concern at
statements by Ministers and agencies that certain significant and intrusive
powers, even though they would rarely be required, had been introduced as
measures of last resort.
7.23
The Committee reiterated its expectation that each legislative proposal
for the extension of search and entry powers to any given agency would be
considered on its merit, and that appropriate justification for the extension
of the powers in the particular circumstances would be included in the
explanatory memorandum to the bill.
7.24
In addition to this, the Committee considered that it was
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. The Committee considered that there was
merit in the establishment of a register of entry, search and seizure powers
and recommended that:
8. 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.
9. as an
interim measure...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.[14]
Seizure provisions
7.25
The Committee emphasised that seizure powers could not be
separated from the entry and search powers with which they were generally
exercised and that the principles set out in the Committee’s original report
should be considered to apply, where relevant, to provisions authorising the
exercise of powers of seizure. In particular, the Committee stressed that, where
the seizure of documents or other material represented a significant intrusion
upon personal rights, the same considerations should be taken into account as
apply in granting or exercising intrusive entry and search powers.
Seizure and parliamentary privilege
7.26
In its Fourth Report of 2000, the Committee recorded the
protections afforded against the seizure of documents that are subject to legal
professional privilege, but it did not give consideration to the seizure of
documents subject to parliamentary privilege.[15]
7.27
The Committee noted the advice from the Clerk of the Senate that:
Parliamentarians have no general immunity
against the entry of their premises or the inspection or seizure of their
documents under a search warrant or pursuant to a statutory authority...The law
of parliamentary privilege...makes the seizure of some categories of documents,
associated with proceedings in Parliament,...unlawful.[16]
7.28
The Committee further noted that the practice that had arisen in
the Senate was for any claim of immunity from seizure, due to parliamentary
privilege, to be determined by the Senate. That practice is supported by a
memorandum of understanding between the Presiding Officers and the Australian
Federal Police, which was tabled in the Senate on 9 March 2005.[17]
7.29
The Committee supported the proposal from the Clerk of the Senate,
that Commonwealth agencies with entry, search and seizure powers be advised:
...that there are categories of documents which are immune from
examination and seizure because of parliamentary privilege and that, in
exercising such powers, they should not gain access to those kinds of
documents. They could also be advised that, should a question of parliamentary
privilege arise in relation to documents, they should take steps to have the
question determined, along the lines of the procedures adopted by the Australian
Federal Police.[18]
7.30
The Committee saw this matter as one for the President of the
Senate and the Senate Committee of Privileges to progress.[19]
Seizure of material not relevant to
an investigation
7.31
The Committee did not generally note any concerns with the
exercise of ordinary powers of seizure pursuant to warrant, except in the case
of seizure of material not relevant to an investigation.
7.32
Generally speaking, in exercising powers of seizure under
warrant, an officer cannot go beyond what is properly authorised in the
warrant. The courts may also add a measure of fairness in these circumstances
by exercising their discretion to exclude evidence which has been improperly
seized. The Committee noted, however, that there are circumstances in which
material which is not relevant to an investigation might be seized,
specifically:
- seizure of material relevant to another matter; and
- the incidental seizure of material.
Seizure of material relevant to
another matter
7.33
The Committee noted that under a number of pieces of legislation,
officers were authorised to seize material relevant to an offence other than
that specified in the warrant. For example, officers from the then Department
of Immigration and Multicultural and Indigenous Affairs (DIMIA) told the
inquiry that the Migration Act allowed DIMIA officers, having entered premises
or boarded vessels under a warrant, to seize documents not related to the
warrant but which the officer reasonably believed to be evidence of an offence
under the Migration Act.[20]
7.34
The Committee expressed concern that it may not always be clear
under what authority material has been seized, particularly if that material
relates to a matter other than that listed in a warrant. The Committee
concluded that ‘for the benefit of authorised officers and the occupier of the
premises, it is important that the proper authority is established at the time
of seizure.’[21]
The Committee recommended that:
10. 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.[22]
Incidental seizure of material and
the impact of technology
7.35
The Committee noted that, as well as opening up a range of new
opportunities for criminals, technological developments offered new
opportunities in the areas of entry, search and seizure and, as a result, posed
significant challenges for the protection of rights. In particular, the
Committee noted that successive legislative amendments, in response to
technological developments in relation to the interception of
telecommunications, had widened the range of uses and disclosures of personal
communications, and significantly extended the scope for the seizure of
information incidental to the primary purpose of investigations.[23]
The incidental access to stored communications and to material related to other
parties not subject to an investigation, was also a matter of concern to the
Committee.[24]
7.36
The Committee endorsed the views of the Senate Legal and
Constitutional Committee, that stored communications should not be afforded any
less privacy than is afforded to real time communications.[25]
The Committee agreed that covert access to communications should be subject to
much tighter controls than overt access because covert access denies
individuals the opportunity to protect privileged information or to challenge
the grounds on which access has been granted. The Committee also agreed that
there should be legislative provision for reporting the use and effectiveness
of such warrants, equivalent to obligations for telecommunications interception
warrants.
7.37
The Committee recommended that:
11. 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.[26]
Protection and disposal of material
7.38
The Committee noted the practices
of a number of agencies in relation to seized material, including material that
may not be relevant to an investigation. These included secure storage,
limitations on who could access such material in the course of an investigation,
and maintenance of registers to track access to the material.
7.39
While acknowledging that most agencies
did tend to periodically review their holdings of seized material, and that the
Guide provided that generally an upper limit of 60 days should attach to
the retention of seized items, the Committee, nevertheless, indicated that it would
like to see the Guide revised to include specific reference to the
incidental seizure of material unrelated to a particular investigation.
7.40
In this regard, the Committee considered that it was important
that adequate legislative provision be made to require agencies to regularly
review their holdings of seized material, in light of its relevance to the
particular inquiry, and return or destroy information no longer required. Of
particular concern to the Committee was information accessed via stored
communications warrants. The Committee also considered it desirable that
limitations be placed on the use and derivative use that could be made of
certain material.
7.41
The Committee recommended that the Guide be amended to:
12. 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.
13. encourage
the inclusion of limitations on the use and derivative use of seized material
which is not relevant to a particular investigation.[27]
Merits of developing protocols
7.42
In considering whether the rights and liberties of individuals
would be better protected by the development of protocols governing the seizure
of material, the Committee concluded that, rather than seek to establish a
separate protocol, there was merit in expanding the Guide to include a
set of core principles, which could provide a framework for agencies to use in
developing their own operational guidelines. The Committee recommended that:
14. the
Attorney-General give consideration to the formulation of core principles
governing the seizure of material.[28]
7.43
At the end of the 41st Parliament, the Committee was
awaiting the Government’s response to its Twelfth Report of 2006.[29]
Senator Chris Ellison
Chair
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