George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

The government will be opposing this amendment. Senator Leyonhjelm makes the reasonable point that delayed notification search warrants are an unusual mechanism. He goes on to say—by analogy with the treatment of control orders and preventative detention orders—that they, too, ought to be sunsetted. But, Senator Leyonhjelm, there are gradations of exceptionalism, as it were, in these powers. Control orders and preventative detention orders are very, very unusual powers. As I keep saying, they ought to be—and have been—used extremely rarely. Delayed notification search warrants are somewhat less unusual. They are a standard feature of the criminal justice system of most states and territories, and have been so for a number of years.

Delayed notification search warrants are needed, and perhaps I might take the opportunity to explain the rationale for introducing this measure with the bill. Delayed notification search warrants are needed to enable the Australian Federal Police to investigate and prevent serious terrorism. They strengthen the legislative framework for Commonwealth investigations into terrorist threats. Under current Commonwealth search warrant provisions in the Crimes Act, the occupier of premises to be searched must be given a copy of the warrant if they are present, which means that a search cannot occur without the occupier being made aware that the search is taking place. That is the standard situation with the execution of a search warrant, of course. However, sometimes it is necessary—particularly in terrorism investigations—to keep the fact that a search has been conducted under warrant confidential. Keeping the existence of an investigation relating to terrorism offences confidential can be critical to their success, particularly when the investigation involves multiple suspects or multiple terrorist cells, or is conducted over an extended period of time.

Let me give an example of what I mean. Let us say that the Australian Federal Police were aware of a series of groups who were networked within a capital city, or perhaps between different capital cities, and they wished to carry out a search of the premises of one of the individuals who was a member of that network. If the standard procedure of the execution of a search warrant were to be observed, then the police would have to notify that suspect of the fact that they were conducting a search of his premises, and there would be nothing to stop that suspect then alerting other members of his network that they might imminently be the subject of a search warrant as well or of some other form of investigation. That could potentially substantially defeat the benefit of the investigation by denying the authorities the benefit of surprise. By the way, it is for that reason, Senator Leyonhjelm, that delayed notification search warrants are pretty much a standard feature now of investigation into various types of organised crime, for example, carried out by state and territory police forces. That is their rationale, and I am sure that you can understand that rationale.

The option of delayed notification search warrants will, therefore, enable AFP officers to conduct investigations without a suspect being aware of their interest, providing a significant tactical advantage in an appropriate case. It will avoid suspects taking steps to avoid detection, relocate their operations or relocate and destroy evidence. It will also avoid suspects notifying their associates of police interests in their activities, as in the example that I gave you.

The types of terrorism activities that could be investigated under this scheme may be—and very often are—sophisticated networks involved in financing terrorism, recruiting for a terrorist organisation and providing training for terrorist acts. Delayed notification search warrants will increase the opportunity for successful investigations of terrorism offences and enhance the ability of the AFP to gather information about planned operations with a view to preventing a terrorism offence from being committed.

Senator Leyonhjelm, I think that in explaining to you the rationale for having, in appropriate circumstances, a delayed notification scheme for search warrants I have also explained to you why it is not appropriate that it be sunsetted. The investigative need for such a capability is not something that is going to diminish over time. We have sunsetted control orders and we have sunsetted preventative detention orders—the most unusual tool in the apparatus—because we hope that maybe the day will come that orders of that kind will no longer be needed. For as long as criminals act in networks, for as long as criminals act covertly and for as long as criminals—not necessarily terrorists—act in a sophisticated manner, the need on occasions to be able to conduct a search of one member of that network without alerting other members of that network to the fact that they have been sprung is not going to go away. I think as a matter of common sense, Senator Leyonhjelm, you would see that. That is why, in the government's view and in the committee's view, it is not appropriate that a mechanism of this kind be sunsetted.