Linda Kirk (SA, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of Senator Ray, I present the 12th report of 2006 of the Standing Committee for the Scrutiny of Bills, Entry, search and seizure provisions in Commonwealth legislation, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

I seek leave to have my tabling statement incorporated in Hansard.

Leave granted.

The statement read as follows—

This Twelfth Report of 2006 by the Scrutiny of Bills Committee on entry, search and seizure provisions in Commonwealth Legislation is a follow-up to the Committee’s Fourth Report of 2000. The Committee took the unusual step of seeking a reference for a follow-up inquiry to allow it the opportunity to examine the nature and impact of the government responses to the Committee’s 2000 report.

The Government’s response to that original report was twofold. First, it tabled its formal response on 27 November 2003. This response was largely positive and indicated general support for the majority of the principles contained in the original report. However, of the Committee’s 16 recommendations, the Government accepted (or accepted in principle) only five recommendations and partially accepted a further four. The Government did not accept six of the recommendations, including key recommendations aimed at ensuring that the principles identified in the report are applied consistently across all Commonwealth legislation. The Government noted that the complexity and range of regulatory enforcement functions required a flexibility that is incompatible with some of the report’s principles and recommendations.

Second, in February 2004, the Minister for Justice and Customs published the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. This Guide consolidates policy, principles and precedent across the spectrum of offence, penalty and enforcement provisions, including entry, search and seizure.

The Committee welcomes the promulgation of this Guide as it signals a positive and constructive approach by the Government. The principles expressed in the Guide are largely consistent with those expressed by the Committee in its Fourth Report of 2000 and the Guide should provide a solid basis from which to achieve appropriate balance and consistency in framing entry, search and seizure powers.

The Committee’s long standing approach to entry, search and seizure provisions is based on the presumption that people have a fundamental right to their dignity, their privacy and the security of their residences and other premises, among other rights.

While the Committee considers that there is a public interest in the effective administration of justice and government, there is also a public interest in preserving people’s dignity and protecting them from arbitrary invasions of their property and privacy and from disruption to the functions of their businesses. Neither of these interests can be insisted on to the exclusion of the other. There is a need for balance.

The authority to enter and search premises, to detain and search individuals and to seize materials is essentially a creation of statute and should always be regarded as an exceptional power, to be granted by Parliament judiciously and to be exercised by executive agencies with restraint and appropriate supervision. The key question for Parliament is: “If there is justification for a power of this nature to be granted or exercised in these particular circumstances, what protection must follow?”

The Committee considers that the Guide has the potential to provide a solid basis for achieving an appropriate balance between these competing interests and explaining this for the benefit of the Parliament and the public, particularly in circumstances where there is a justified need to depart from the principles and framework expressed in the Guide. The Committee has found the Guide a useful tool in its assessment of legislative proposals and has made a number of recommendations as a result of this inquiry for the expansion and enhancement of the Guide.

This inquiry centred on 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. For the most part, the Committee noted a degree of conformity between such provisions and the framework set out in the Guide

However, the Committee noted a significant expansion in the range of agencies seeking to exercise powers of entry, search and seizure, often without a warrant, and has commented on the limited justification offered in a number of cases for the grant of such powers.

In particular, the Committee has noted the propensity for some agencies to seek to justify search and seizure powers simply on the basis of precedent or apparent consistency with other agencies. The Committee considers that all new legislative proposals should be judged on their own merits, based on careful assessment of the needs of the agency in the particular circumstances, balanced against the impact of the proposed powers on individual rights.

The Committee has recommended that the Guide be amended to require that the justification for entry and search powers, particularly the power to conduct personal searches, be clearly set out in the explanatory memorandum accompanying the bill. The Committee has also recommended that 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.

The Committee has expressed concern about the potential for technological developments to test the efficacy of existing protections, particularly in relation to the seizure of electronic data and covert access to stored communications.

The Committee considers that 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.

The Committee has recommended that the Guide be expanded to set out core principles governing the seizure of material, particularly material relevant to a different offence. The Committee has also recommended the inclusion of limitations on the subsequent use of seized material and has also recommended that legislative provision is made for the regular review of seized material and for the timely return or destruction of material not relevant to a particular investigation.

Finally, the Committee has recognised the important role of training and administrative and procedural guidelines in achieving fairness in the application of entry, search and seizure powers. While most of the legislation considered by the Committee in the course of this inquiry accords generally with the policy set out in the Guide, the Committee remains concerned at the degree of unevenness in the application of some of these principles. The Committee would prefer to see legislative provision for the formulation of training procedures and implementation guidelines and for these to be tabled in Parliament and published on the agency’s website. The Committee has suggested that the Guide be expanded to include the development of such guidelines and has raised the possibility of the establishment of a register of entry, search and seizure provisions to facilitate ongoing monitoring and audit of their use.

I commend the report to the chamber.

Question agreed to.