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Government reforms search and surveillance powers

Government reforms search and surveillance powers


Justice Minister Annette King tabled the Search and Surveillance Powers Bill in Parliament today to promote the Government's fight against serious and organised crime.

"The bill introduces comprehensive reforms relating to law enforcement agencies exercising search and surveillance powers," she said. "The Law Commission has taken five years to produce the recommendations that form the core of this Bill, and the Government has taken some law enforcement powers even further.

"There are many problems with the existing law, with core police powers, many enacted more than 50 years ago, scattered around the statute book. The law has failed to keep pace with technology. One example is that existing legislation sanctioning the law enforcement use of interception and tracking devices is cumbersome and outdated, and silent about using visual surveillance devices."

Ms King said the Law Commission proposed a comprehensive codification of the powers of the police and other enforcement officers designed to strike a balance between facilitating effective law enforcement and protecting individual freedoms through strict controls and procedural requirements.

"The Government is satisfied the Bill provides that balance. The new package will help law enforcement agencies considerably, but will also offer fair protection to the public from the use of coercive police powers."

Ms King said significant changes included a consistent approach to the thresholds for obtaining search and surveillance warrants; reform of the law enforcement use of surveillance devices; more explicit powers to search computers and seize electronic data; and the availability of production and monitoring orders and examination orders for law enforcement agencies.

"The Law Commission described the present law as a mess. The Government's Search and Surveillance Powers Bill will fix this mess. The law will be brought together in a single generic statute so everyone will know where to find it."

Ms King thanked the Law Commission for its work, and said many other agencies had contributed much time and effort to the reforms.

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Questions and answers

What is "evidential material" that can be obtained through search or surveillance?

"Evidential material" will be any tangible or intangible items that are of relevance to the investigation of the specified offending.

What are the main changes proposed to applications for search warrants?

• Written applications will be able to be transmitted to the issuing officer electronically and oral applications will be possible in certain urgent circumstances.
• The requirements as to information to be included in an application for a search warrant will be specified in legislation.

What will be the standard for obtaining a search warrant?

Currently the threshold for obtaining a warrant varies between different search powers. The search and surveillance legislation will set out a single standard for all law enforcement search powers which will require enforcement officers to satisfy the issuing officer of the existence of two factors:
• reasonable grounds to suspect an offence has been, or is about to be, committed; and
• reasonable grounds to believe that the evidence sought is in the place to be searched.


Who will be able to issue search warrants?

At present a search warrant can be issued by Judges and by any Registrar, Deputy Registrar or Justice of the Peace regardless of their training or experience. Under the new legislation a search warrant will only be issued by Judges or authorised officers known as "issuing officers" (specially trained and appointed Registrars, Justices of the Peace and other appropriate qualified and experienced people). Issuing Officers will be available on a 24/7 basis.


What new powers are proposed for enforcement officers?

Several new provisions are proposed to complement existing law enforcement search powers. These include:
• A power for police officers to enter and search a place where they reasonably believe that evidential material relating to an offence punishable by 14 years' imprisonment or more will be found and where the delay caused by obtaining a warrant will result in the item being concealed, destroyed or impaired.
• A power for an enforcement officer to establish a crime scene and to give directions to people at the scene to ensure that evidential material is not concealed, destroyed or impaired while a search warrant is being obtained.
• A power for police and other enforcement officers carrying out searches of places or vehicles to detain a person who is at that place or vehicle or who arrives there during the search for a reasonable period while the search is undertaken to enable the officer to determine whether the person is connected with the offending being investigated.
• A power for an enforcement officer to copy any document or any part of it where that document may be lawfully seized;
• A power for an enforcement officer searching a place to take photographs or to record images or sounds in the place searched or of any thing found in the place searched where such photographs, images or recordings are reasonably believed to be relevant to any subsequent proceedings.


What protections and safeguards are proposed?

There are a number of protections and safeguards proposed which include:
• Enforcement officers carrying out a search of premises when the occupier is absent will be required to provide notification of the search (there is currently no statutory obligation to do so with most search powers).
• Where items are seized as a result of the exercise of a search power, an inventory of the property taken should be promptly prepared and provided to the person concerned.
• A procedure will be included in the search and surveillance legislation to deal with privileged or confidential material or communications to ensure that such material or communications are appropriately protected from disclosure where they are discovered in a search or by surveillance.
• The search and surveillance legislation will contain provisions to deal with items seized pursuant to a search power to ensure, amongst other things, they are retained for investigatory or evidential purposes, returned to the person entitled to possession at an appropriate time or disposed of where that is appropriate (such as where the item is unlawful).


What is a "consent search"?

Law enforcement officers often seek the consent of a person to conduct a search. At present, there is no clear guidance to either law enforcement officers or to members of the public as to what constitutes a valid consent search. The law will be amended to make clear that enforcement officers should first have a valid law enforcement reason for undertaking a consent search and that they should advise the person whose consent is sought of that reason for it, and of the fact that the person may refuse consent.


What is a "plain view" seizure?

It is where a police officer may seize evidence of an offence that comes into view in the course of the lawful exercise of a search power even though seizure of the item is not authorized by the search power. For example, a police officer executing a search warrant for controlled drugs comes across property stolen in a burglary. The existing law would not authorise the officer to seize that property.


What about searches of computers and seizures of electronic data?

While the general search and seizure regime will apply to computers and electronic data, a number of specific amendments and extensions to search powers will be made to account for the differences between searches for and seizures of electronic data compared to other types of searches and things searched for. These will include:
• Specific powers for enforcement officers to access and copy material held on computers or data storage devices.
• The current provisions requiring certain persons with possession, control or other knowledge of a computer or computer system to assist with a search of a computer will be extended and strengthened to ensure enforcement officers have reasonable access to data they are legally authorized to search for and seize.
• Enforcement officers will be permitted to remotely access computer data in certain limited circumstances.


How will search and surveillance legislation deal with surveillance powers?

Developments in technology have resulted in specialized surveillance equipment being available to law enforcement agencies to assist the investigation of increasingly complex offending. The government considers that law enforcement agencies should be able to take advantage of these developments if the use of the equipment is properly authorized and regulated. The search and surveillance legislation will contain a regime which will include the following features to deal with the use of surveillance devices by law enforcement agencies:
• Except in some urgent situations (where a surveillance device will be able to be used for up to 72 hours without a warrant) a warrant to use such device will generally be required.
• Warrants can only be issued by a District or High Court Judge.
• Warrants will have a maximum life of 60 days (although further subsequent applications will be possible).
• Warrants will authorise entry into premises and vehicles, if necessary, for the purposes of installing, maintaining or removing the surveillance device, and to use electricity to power the device.
• A warrant will not be necessary in certain circumstances such as where visual surveillance devices are used in public or in public parts of buildings, or where surveillance occurs by way of unaided visual observation or overhearing of people, things or activities.
• Where surveillance powers are exercised the enforcement officer will be required to report to a Judge who will have powers to deal with material obtained, to report to the Chief Executive of the relevant law enforcement agency, and to require the subject of the surveillance to be notified of the surveillance in certain circumstances.


What is a production order?

A production order will be available to law enforcement officers to assist investigation of any offence for which a search warrant could be obtained. Production orders will:
• Be issued by an issuing officer in the same manner as search warrants;
• Require the recipient to produce specified information or documents in their control that are evidential material relating to the offence being investigation either on a single occasion or on an on-going basis for a specified period;
• Will be available for a maximum period of 30 days;
• Be subject to the general framework (including procedural protections, immunities and other safeguards) proposed in respect of the application, issue and execution of search warrants.


What is an examination power?

An examination power is a power authorizing enforcement officers to require a person to answer questions. Such powers are not generally available to enforcement officers. Cabinet has decided that limited examination powers are required to assist the investigation of serious crime.


What are the two types of examination orders being made available?

• There will be a business context examination order that will be available to all police investigations and will apply to those in business relationships and providers of professional business services. These examinations will allow police to unravel complex financial dealings and business arrangements that may have been part of criminal behaviour.

• There will be a non-business context examination order that will be available to police investigations of organised crime or serious or complex fraud investigations. These examination orders will apply to social relationships and will be subject to greater restrictions than business context examination orders.


What safeguards are provided around the use of these powers?

• Examination orders will be court orders that are granted by an independent District or High Court Judge having received an appropriate application from police with the necessary justifications for the requested order.

• The Commissioner of Police (or an appropriate delegate) must approve all applications to the District or High Court for an examination order.

• Applications for non-business context examination orders can only be for the investigation of organised crime or serious/complex fraud, and must be personally approved by the Commissioner of Police and the Secretary for Justice.

• Before issuing an examination order the Judge will need to be satisfied, amongst other things, that it is reasonable for a compulsory examination to be conducted. The questions that enforcement officers will be able to ask will be limited to those that are relevant to the investigation of the suspected offending. The privilege against self-incrimination will also be available to any person who is questioned pursuant to an examination order.


What is the privilege against self-incrimination?

• The privilege against self-incrimination means that a person can refuse to provide specific information when that information is reasonably likely to lead to that person's criminal prosecution. The privilege does not apply in respect of pre-existing documents and cannot be claimed by corporations.


ENDS

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