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is that existing legislation sanctioning the law enforcement use of interception and tracking devices is cumbersome and outdated, and silent about using visual surveillance devices."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