David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Hansard source

The government does not accept amendment (30). This amendment would introduce an ex post facto warrant procedure in proposed section 3UEA of the Crimes Act. I understand this proposed amendment to have arisen out of a concern that a police officer may not be held accountable for their actions. The proposed Greens amendments are unnecessary to address this concern. The power cannot be exercised covertly and a seizure notice is required to be given to the owner of anything that is taken from the premises in accordance with existing section 3UF, which will be amended by this bill to also apply to the proposed new section 3UEA.

It is important to note that this power is not for general evidence gathering and, if in the course of searching the premises for the thing the police officer finds evidential material that does not present a serious and imminent threat to life, the police officer must secure the premises and obtain a search warrant in order to seize it. The use of the power will be scrutinised by the courts if criminal proceedings are initiated. Furthermore, if a person is concerned that the power is not exercised correctly, they will be able to lodge a complaint either directly with the AFP, with the Australian Commission for Law Enforcement Integrity or with the Commonwealth Ombudsman, who could also investigate the complaint.

The government also opposes Greens amendment (31). The government certainly believes there should be appropriate oversight of the AFP’s use of its powers but believes there are already mechanisms to ensure officers are accountable in their use of the powers. As for the exercise of other powers, the Australian Federal Police would set up mechanisms as part of its governance framework to ensure powers are exercised appropriately and that the grounds upon which they are exercised are recorded after the event. AFP internal accountability arrangements, including professional standards, are sufficient. Furthermore, the power is not covert. The government’s bill includes a notification requirement to the occupier of the premises. So a person could make a complaint to the Ombudsman if they were of the view that the power was misused. In addition the government is establishing a new parliamentary joint committee on law enforcement, which will further enhance the oversight of the Australian Federal Police.

Lastly, with respect to the senator’s remarks concerning the ICCPR, there are strict requirements. It is addressed to emergency situations where there is a threat to life and safety. These kinds of situations are regarded as legitimate exceptions to ICCPR obligations. The power is confined to the need to deal with the emergency situation; it is not a covert power and it is not a general search power.