Kerry Nettle (NSW, Australian Greens) Share this | Hansard source

I spoke extensively on this matter in my speech on the second reading. This amendment, as Senator Stott Despoja outlined, is about removing the power of the Australian Federal Police to carry out secret searches in people’s homes, to confiscate their equipment, to plant listening devices and to access their computer equipment, all without those people ever knowing. As I explained in my speech, and as Senator Johnston has heard me explain before, our concern is that, if evidence is gathered as part of that covert search which is subsequently used against an individual in court, they will not be able to contest that evidence because they will not know that the search was carried out.

As I explained in my speech, currently the way in which warrants are issued is that you know someone is searching your home or your property and you are able to be there to check that they carry out the search properly. You get receipts for things that they take, and you are also able to have a lawyer present. What that means is that you are able to check to see that the search is carried out lawfully and properly. If the search is carried out covertly and you never know about it then, if evidence is gathered and brought into a court and used against you, you cannot contest the accuracy of the collection of that evidence or whether that evidence was collected legally, because you were not able to observe or be aware of the search or receive receipts for documents taken because you would not know that the search had been carried out.

As I said in my speech, the government’s rationale is that this is about evidence. The position I have put forward is that, given the delay in notification of the search warrant, it is inevitable that it will be used for intelligence. But, if I take the government’s rationale that it is for evidence, you would not be able to contest that evidence in a court if you were not aware of the way in which the search was carried out because you would not have been notified, you would not have had anyone present, you would not have had a lawyer able to observe the search and you would not have been able to access receipts for the process.

The amendment is about ensuring that there is not an abuse of the power to carry out the search. I am not saying that there will be an abuse; that is not what I am saying. I am just saying that this mechanism prevents you from being able to ensure that such a search is carried out properly. If evidence is gathered and is used against you in a court, you have the right to be able to ensure that that evidence was legally and properly collected. But this takes away your right to be able to ensure that evidence used against you in a court is appropriately collected. That is the concern that the Greens have in relation to this, and that is why we do not support giving these new ‘sneak and peek’ powers to the Australian Federal Police.

I dealt with the issue of the time delay in my speech on the second reading. It is an extraordinary length of time. If it is for evidence gathering in particular, I cannot see why you need six months extended to 12 months and then 18 months. And, with the approval of the minister, the extensions can continue. That might make sense if it were for intelligence gathering, but it is not. The government’s rationale is that it is for evidence gathering. Presumably, you are gathering evidence to use in the courts, so why such long delays?

It is interesting to compare it to the USA PATRIOT Act. In that act, at section 213, it says that such warrants are only able to be delayed for 90 days. What is being proposed here as the initial period of time before there is any requirement for notification is double what is in the USA PATRIOT Act. Then this legislation allows for further extensions to make it 12 months or 18 months and then, with the approval of the minister, to extend it beyond that. So it is quite extraordinary, even when compared with overseas examples such as the USA PATRIOT Act.

Where you give powers to the Federal Police to carry out a search of somebody’s home, there needs to be that accountability. Our concern is that this model for covert search warrants, the ‘sneak and peek’ powers for the AFP, does not allow you to have the oversight that you need, particularly if evidence is being gathered that is being used against you in your court case, because you cannot contest it. That is the concern that the Greens have, and that is why we strongly support this amendment. We are concerned, and I outlined this in my speech in the second reading debate, that the process outlined in the bill suggests that an 18-month delay in notifying anybody can be easily obtained. This goes to the matter of there not being guidelines for Administrative Appeals Tribunal members or judges on making a determination about when there are extraordinary circumstances and the delay in notification should be extended even further. That allows 18 months to become standard. Obviously there is an additional approval from the minister for a period beyond 18 months, so the length of time indicates to us that it is of concern. As I have said, that is far longer than is allowed in the United States, for example.