Scott Ludlam (WA, Australian Greens) Share this | Hansard source

by leave—I move Greens amendments (30) and (31) on sheet 6181:

(30)  Schedule 4, item 4, page 39 (after line 24), after subsection 3UEA(1), insert:

     (1A)    If one or more police officers have entered premises in accordance with subsection (1), one of them must, within 24 hours after the entry, apply for a retrospective search warrant.

      (1B)    The regulations must prescribe the requirements to be met before an issuing officer issues a retrospective warrant.

      (1C)    If the issuing officer does not issue the warrant, then any evidence obtained under subsection (1) or (2) is inadmissible in proceedings against a person.

(31)  Schedule 4, page 40 (after line 29), after item 4, insert:

4A  Before section 3UF

Insert:

3UEB  Commissioner’s annual report to Minister

        (1)    As soon as practicable after 30 June in each year, the Commissioner of the Australian Federal Police must submit a report to the Minister setting out the details required by subsection (2) in relation to emergency entries to premises made by Australian Federal Police officers under subsection 3UEA(1) during the previous 12 months.

        (2)    The report must include the following details:

             (a)    the number of emergency entries that were made during the period to which the report relates;

             (b)    the number of applications for retrospective warrants that were made during the period to which the report relates;

             (c)    the number of applications for retrospective warrants that were refused by an issuing officer during the period to which the report relates;

             (d)    any other information prescribed for the purposes of this paragraph.

        (3)    The Commissioner must advise the Minister of any information in a report that, in the Commissioner’s opinion, should be excluded from the report before the report is laid before the Parliament because:

             (a)    the information, if made public, could reasonably be expected to:

                   (i)    endanger a person’s safety; or

                  (ii)    prejudice an investigation or prosecution; or

             (b)    making the information public would be contrary to the public interest for any other reason.

        (4)    The Minister must exclude information from a report if the Minister is satisfied on the advice of the Commissioner of any of the grounds set out in subsection (3) and must then cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

        (5)    A report must not disclose any information that identifies any person involved in an emergency entry or related operation or that is likely to lead to such a person being identified.

These are probably the simplest two amendments of this batch that I am putting forward tonight. A key concern that we have with the proposed bill is the Australian Federal Police’s power for warrantless searches in proposed section 3UEA. The provision as we read it permits AFP officers to enter premises in emergency circumstances in relation to a terrorist offence where they believe there may be a risk to the safety of the public. So far, so good. Yet again we support the need to protect the Australian public from the harms associated with terrorism, but we are concerned that the proposed provision is in breach of another of Australia’s international obligations. If the proposed provision is to remain, it should be subject to some safeguards. This is especially the case considering an AFP officer must merely have a suspicion rather than a belief before deciding to search a premise under the proposed provision. Furthermore, we were not satisfied during the committee process that the current process of being required to obtain a warrant is actually a burden in emergency circumstances, considering that a warrant may be obtained at very short notice by way of telephone or fax, but we have not sought to make amendments in that regard.

The Australian Greens are particularly concerned that the proposed provision may be in breach of article 17 of the ICCPR—there we are in breach again—which provides:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence …

The use of police warrants is obviously a means by which the right to privacy of those residing at the premise can be protected. Therefore, circumstances in which entry to a premise should be permitted without a warrant should be limited and subject to safeguards. I am amazed that I am probably about to find out that the government and the opposition find that controversial. The Australian Greens, therefore, propose a retrospective warrant procedure whereby a judicial officer would, subsequent to a search, be required to obtain an ex post facto search warrant. The requirement of such a search warrant ensures that the police are required to appear before the judiciary and satisfy the judiciary to the same standard that they would in the case of a normal search warrant application of their right to search the premises.

We also propose that, if an ex post facto search warrant is not granted, any evidence obtained during the search be inadmissible. Here we are again trespassing on several hundred years of legal precedent. A final safeguard we propose would be to include a requirement for the AFP to report every 12 months to parliament on the occasions in which emergency warrantless searches were conducted under section 3UEA and whether a warrant for such a search was subsequently provided by the judiciary. So we are not seeking to amend the nature of the warrantless searches or necessarily raise the bar for who can apply for one or on what ground. I suppose what we are thinking about here is the ticking bomb scenario where the police officer believes that something is going on in the premises, they do not have time to make the phone call to get the warrant, they go in and there is or there is not some kind of dangerous situation that they have been able to confront. That is all well and good, and we are not seeking to amend that. I do not know how often these sorts of things would be applied for, but there is the scenario. But I fail to see what exactly the minister will have to come up with or why the opposition would oppose an amendment as straightforward as requiring the officer to then go back and seek a post facto search warrant to explain why they acted the way they did. I will let the minister now explain why that is a controversial proposition.