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STANDING COMMITTEE FOR THE SCRUTINY OF BILLS
Entry, search and seizure provisions in Commonwealth legislation
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STANDING COMMITTEE FOR THE SCRUTINY OF BILLS
Entry, search and seizure provisions in Commonwealth legislation
Federal Agent Phelan
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STANDING COMMITTEE FOR THE SCRUTINY OF BILLS
(Senate-Friday, 11 March 2005)
GRAHAM, Ms Irene
WALKER, Mr Douglas James,
PHILLIPSON, Mr Gregory Mark,
GRAY, Mr Robin Michael,
McMAHON, Mr Vincent,
PHELAN, Federal Agent Michael
Federal Agent Phelan
WHOWELL, Mr Peter
GRANT, Mrs Marion Estelle
JANECZKO, Mr Richard
WHITEHOUSE, Ms Anna Kirstin
MACAULAY, Ms Louise Anne
Content WindowSTANDING COMMITTEE FOR THE SCRUTINY OF BILLS - 11/03/2005 - Entry, search and seizure provisions in Commonwealth legislation
CHAIR —I welcome Federal Agent Michael Phelan and Mr Peter Whowell of the Australian Federal Police. Do either of you have some opening comments to make on your submission?
Federal Agent Phelan —Yes, I have a short statement to read out. Thank you for inviting the AFP to appear before the committee today. While the AFP obtains its powers of entry and search from a range of Commonwealth statutes, depending on the offence under investigation, it primarily exercises the powers available in the Crimes Act 1914. The government response to your previous report on entry, search and seizure provisions in Commonwealth legislation, which is the focus of this inquiry, clearly articulates the strict requirements the AFP must follow when exercising those powers. Our submission to this inquiry last year focused on the entry and search provisions in Commonwealth legislation created since your report in the year 2000, and on additional powers which the AFP believed its operational experience demonstrated a need for the government to consider the case for. I would like to take this opportunity to briefly update the committee on developments in the area of powers created since your report of 2000 before taking any questions you may have.
On search and seizure powers for the AFP Protective Services officers, the search and seizure powers under the Australian Protective Service Amendment Act, referred to in the AFP submission to the inquiry, have been replicated in the Australian Federal Police Act 1979, and took effect in July last year when the Australian Protective Service Act was repealed. Also in our submission we made reference to the Surveillance Devices Bill, and the committee would be aware that the Surveillance Devices Act 2004 received royal assent and commenced on 15 December last year. The Surveillance Devices Act 2004 implements the electronic surveillance model bill developed by the Commonwealth-state joint working group on cross-border investigations for the Commonwealth. It is part of a national scheme to provide consistent legislation across Australian jurisdictions. The act does not affect the existing system for telecommunications interception, regulated by the Telecommunications (Interception) Act. The act replaces the listening device provisions of the AFP act and Customs Act 1901 for the investigation of Commonwealth offences and state offences with a federal aspect. It retains them as part of the transitional provisions for the investigation of offences against the laws of the ACT. The act establishes a comprehensive regime for the use of optical surveillance devices, data surveillance devices, tracking devices and listening devices by the AFP, ACC and state and territory law enforcement agencies for the investigation of Commonwealth offences, and for the AFP and ACC in the investigation of state offences with a federal aspect.
CHAIR —Thank you. Our view of legislatures is that they have to approve changes to law. You would not have to be Einstein to say that in the last three or four years we have seen extension of powers for intelligence and law enforcement bodies, either as a reaction to events of increased threat of terrorism or to the advances in technology that the law always has to try to keep pace with and always trails behind. And, possibly, there is just a degree of incremental creep coming in. We have all these agencies with their increased powers, which we approve, but we always wonder whether there is sufficient scrutiny of the exercise of those powers. I detect in most of the agencies, not unreasonably, just a bit of a reluctance to tick off on increased scrutiny, because no-one likes anyone looking over their shoulder. Has the AFP, more broadly, thought about this problem? Every time it seeks increased powers, does it ever look at how they will be scrutinised to make sure there is no abuse—other than saying, ‘Our internal procedures, discipline and ethos will guarantee it’? We know that is what it mostly does, but occasionally it does not. It is a very broad question.
Federal Agent Phelan —The best answer to that question is to look at the way the Australian Federal Police do it. We have been using search and entry powers for a long time—they are a bread and butter part of the law enforcement agency, with the purpose of gathering evidence. Over a long period of time we have developed some very stringent procedures and internal scrutiny where increased powers, particularly in the area of search, seizure and entry, are concerned.
To answer your question directly, there is a concurrent regime of scrutiny that applies to the increased powers that particularly the AFP has received since 11 September 2001. Our increased powers, particularly in the area of controlled operations and telephone intercept material, for example, are also scrutinised externally by the Commonwealth Ombudsman. The recent enactment of the surveillance devices legislation is also oversighted by the Commonwealth Ombudsman’s office, requiring reports and so on. To that end, any of the new powers that have come in have also come under an existing regime of accountability and scrutiny, which the AFP works within and is quite comfortable to work within.
CHAIR —Are you convinced that the general ethos of your officers is that they are comfortable with scrutiny and it is not a burden placed upon them that they just have to bear?
Federal Agent Phelan —In terms of the external scrutiny, no. It is part and parcel of our business. At the end of the day, we are about accountability and prosecuting criminals and putting them before the court. So, for us, there is always that added judicial scrutiny when these instruments eventually appear before court, whether it be evidence obtained on search warrant, by telephone intercept or through the use of controlled operations. So, apart from internal scrutiny, there is always external scrutiny through organisations such as the Commonwealth Ombudsman.
There is ultimately judicial scrutiny of the way in which we have gone about our business. Procedural breaches occur there, and they have the potential to render evidence inadmissible. That, for us, is a very large risk—and we do not want to take that risk. In mitigation, when new pieces of legislation for the AFP are enacted, at exactly the same time we promulgate a set of internal guidelines to the whole of the organisation by our internal email system and place them on our internal hub or intra-web system. So each of the members are well and truly aware of their powers and their responsibilities in terms of accountability for those instruments.
CHAIR —We have been looking at one of the issues to do with technology—that is a warrant to seize electronic data which is fairly broad and so the whole hard drive is seized; you probably do not know in advance what is there. Some information may be relevant to the warrant but much of it may not be, which raises the question of how that information is protected properly. That is the first part. Secondly, is there any way of restricting warrants further back?
We can give an example, because it has already been put down in the parliament. It has the added complication of parliamentary privilege, so you do not need to concern yourself with that. A hard drive was seized and there were thousands and thousands of documents, and we had to determine whether these documents were covered by privilege. Just to save time and money for everyone, we also got the QC we employed to see whether they were within the warrant or not. As it turned out, not one document was within the warrant. That is only an example, but I wonder how often this is happening—that a warrant is given to seize electronic data and 100 per cent or 99 per cent of the massive amount of data is not relevant to the warrant—and what we can do about it.
Federal Agent Phelan —To put that in perspective, a number of options are available to us. When you go into premises with a validly issued search warrant and find a computer, for example, that warrant gives you the authority to see what is on it—in the first instance, to find out whether or not there is any relevant material. If there is relevant material and it falls within the scope of the warrant, we will seize the hard disk and take it back. If we get to premises and have the authority under the warrant to seize a hard disk but cannot see what is there because it has security encryption or the like whereby we cannot get into it at that time, we take the hard disk away and image it, as a matter of practice, and then look to see what is there. Obviously we do not want any material that is on there that is not relevant to the warrant. For written documents, as you would appreciate, if they are out of files and have no probative or evidentiary value, we return them. When it comes to electronic equipment, that becomes a little problematic.
At the moment, what we do is extract the material that is relevant. We have to look at everything to see if it is relevant and falls within the scope of the warrant, and extract the material that we require—that is what is given in evidence. But the actual hard disk itself is kept, because it is the hard disk that is the primary evidence. It is difficult, as you could appreciate, to give the hard disk back, because if we had to go to a court of competent jurisdiction they may ask, ‘Where is your primary document?’ The primary document is the hard disk.
CHAIR —My next question is purely voyeuristic; I do not know if it is relevant to our inquiry. If you find other information there, not relevant to the warrant but of a criminal nature, does that entitle you to seek a new warrant to seize that material?
Federal Agent Phelan —Generally speaking, under the general provisions, if something is within the scope of the warrant in the first place—if you are there lawfully and you find something else in relation to another criminal activity—you can seize that material anyway under the existing provisions of the warrant. That would be fine. You would not have to seek an additional warrant. You cannot get a search warrant to search the Australian Federal Police premises. Remember, the search warrant is to actually enter and search the premises to obtain the evidence. We already have possession of the evidence, so getting a warrant to enter is not necessary at all.
CHAIR —You mentioned in your introduction that the stored communications surveillance devices legislation went through and was given royal assent in December. Have those sorts of powers been used this year by the AFP, and how is it performing as a piece of legislation to assist you?
Federal Agent Phelan —It is performing well. I could take on notice exactly how many times we have used the legislation.
CHAIR —No, I do not want to know.
Federal Agent Phelan —It is working well, particularly the provisions that require senior executive officers to be able to authorise the placing of a tracking device, for example, where there is no intrusion onto property or into vehicles. That seems to be working well, as well as getting judicial warrants for intrusion into premises or vehicles. Of course, we have not yet had our first report on that to parliament.
Federal Agent Phelan —I do not know off the top of my head, but they might be every 12 months.
Mr Whowell —I think they are.
Federal Agent Phelan — Normally they are every 12 months. With controlled operations they are certainly once every 12 months, so I would imagine it would be in the same cycle but I am not quite sure.
CHAIR —I think prior to that the Cybercrime Act was passed. Are you aware of any difficulty in executing warrants or otherwise exercising powers under that act?
Federal Agent Phelan —Certainly there were initial problems with accessing stored communications. You would go onto the premises and use the person’s broadband get into their accounts, but now it gives us the ability to access information that is there but not stored; what they have got access to but not what is on the ISP. We would need a separate warrant to be able to go and do that. We have not had any problems with that so far.
CHAIR —So have occupiers raised objections?
Federal Agent Phelan —Not that I am aware of.
CHAIR —Can we move on to the protocols covering the execution of search warrants and the seizure of material. What practices or procedures exist to support the execution of search warrants and associated seizure provisions? All we are talking about is guidelines, manuals, codes of conduct or agency procedures.
Federal Agent Phelan —Of course there is the Director of Public Prosecutions search warrant manual that we would use to assist us to draft and that also has general provisions in relation to the law on search warrants. Internally, we have guidelines and policies that are promulgated throughout the whole of the organisation, that are accessible to everybody and that dictate levels of safety for search warrants, what we are to do with the property, how it is to be stored, how it is to be recorded and all those sorts of things to maintain the chain of custody and the continuity of that evidence, to preserve that evidence and also to protect the rights of the individual. That includes that, once material is seized pursuant to a warrant, if it is not relevant it goes automatically back to the person who owns the material.
CHAIR —What sort of indication do you give to an occupier who a warrant is issued against as to their rights?
Federal Agent Phelan —With every search warrant there is a requirement under the act for us to give them their set of rights under the act and exactly what is available to them in terms of what they are able to get—a receipt for the property. There are a number of provisions contained within the Crimes Act and we actually give the occupier a written notice as to exactly what their entitlements are under the act.
CHAIR —Are the various procedures and manuals publicly available or are they an internal working document?
Federal Agent Phelan —They are an internal document and, essentially, they are evolving documents as well. So as new circumstances dictate, as technology moves on, as the legislation changes, we are continually updating those documents.
Senator MASON —What are your benchmarks for best practice?
Federal Agent Phelan —I suppose the benchmark for best practice is the legislation itself; that is what we base it on as the highest point. Then in terms of best practice, there is the judicial scrutiny that comes from the search warrants and what would come out of cases where search warrants have been executed and they have had some sort of scrutiny before the courts. If the court makes comments, for example, what we learn as a result gets moved into the guidelines.
Senator MASON —External scrutiny—that is the court’s internal scrutiny, obviously, within the AFP itself?
Federal Agent Phelan —Within the AFP.
Senator MASON —Do you at any stage compare how you operate in this context with overseas agencies? Is that done, or is that voyeuristic as well?
Federal Agent Phelan —Not as a matter of course. We are quite happy with the procedures we have.
Senator MASON —I was just wondering.
Federal Agent Phelan —In my experience—and I have worked overseas myself—at the end of the day I think we have a very good regime here. It is not only a very good guideline regime that talks about the regulatory functions but it also brings in those other aspects like the safety of the officers, the safety of the premises and things like that. Here we are talking about search warrants for things like drugs with clandestine laboratories and precursor chemicals and all those sorts of things. A search warrant on a bank is totally different from a search warrant on a clandestine laboratory, and the guidelines cover the full gamut of what we need to take into account when exercising the police powers that are available to us.
The extra level of scrutiny that we have always is the internal investigations regime of the AFP of complaints under the Australian Federal Police Act, which of course means that any member of the public can complain about police conduct on any matter whatsoever. Every complaint under that act has the scrutiny of the Commonwealth Ombudsman as well. Quite often, if it involves search and seizure, the Commonwealth Ombudsman will pass comment in relation to those procedures and that comes back to us and, if necessary, we will alter the guidelines accordingly. So these things are not written in stone.
Senator MASON —And you report to parliament ultimately as well, I suppose, so there is parliamentary scrutiny of a sort.
Federal Agent Phelan —Absolutely.
CHAIR —You also have to assist some other agencies with their search and seizure powers which are not always identical in procedure to yours. Do you have to go and learn their procedures before you assist them in some of these circumstances?
Federal Agent Phelan —If we are executing warrants on their behalf under the Crimes Act 1914, we will follow our procedures to do that because effectively we are the ones executing the search warrants on their behalf. We do not abrogate our reporting responsibilities or internal guidelines for that. The only thing that is a little bit different is that on occasion, if they request it, the actual evidence that is seized is handed to the agency upon whose behalf we are acting for them to look after basically as de facto custody for us, because they have to do their investigation if it is not for us. For example, the Health Insurance Commission may be doing an investigation that the AFP is not but we will exercise the powers on their behalf, seize the material according to our procedures and policies and then hand the material to them. Then when it comes back we acquit it through our own register system.
CHAIR —I think in your document of a year ago you only make two more territorial demands. One is delayed notification search warrants and the other is notices to produce. Would you like to explain to the committee what your view is on those and explain to us what your aims are?
Federal Agent Phelan —Perhaps, first of all, in relation to notices to produce, because I think that is a little less complex, as I alluded to earlier on, the gambit for which we get search warrants can be wide-ranging, all the way from hard entry search warrants on premises where people have firearms to what we would call friendly warrants on, say, financial institutions and utilities—Telstra and so on—where we can obtain information. Those utility type agencies want some sort of judicial authority to be able to hand the material over so they have protected themselves primarily from privacy provisions and also, indeed, I suppose, civil action, if that were ever contemplated by the person mentioned in the material.
It has been my experience over nearly 20 years in this organisation that the only reason we have to get those types of warrants—the ones we call friendly warrants—is because they require it to cover themselves against those types of civil actions. It is not as if they do not want to hand over the material. The amount of time it takes to put together search warrants and so on can sometimes be detrimental to an investigation. When you are putting together a search warrant you need to satisfy the magistrate fully. You cannot just do enough to satisfy them to give you the warrant; you have to give them all of the material. That can indeed take a long time to put together and it can be very long and laborious to read.
However, when these things can be done internally—and we would advocate that only the commissioner delegating that power down to, say, a senior executive officer at the rank of commander or above should be able to issue those notices to produce—then the banks, financial institutions and utilities would be more than happy to comply with that, and we do not have to go through a very onerous regime to be able to obtain that information. Similar provisions exist within the Proceeds of Crime Act 2002 where we obtain that information from financial institutions—
CHAIR —That does not help here—leapfrogging does not help.
Federal Agent Phelan —Yes, I understand.
CHAIR —Pointing to where it exists somewhere else does not help. Just on that point—and it is a reasonable case you make—do you have statistics on how many friendly warrants you seek a year? Do you have statistics on whether you have any rejection rate? Before you come forward with this proposal I am sure it would be enhanced if you could say, ‘We put in for 400 friendly warrants, as we define it, and they were all granted’ rather than saying that 60 were not. Then we would want to know why those 60 were not granted when they would be automatically done on a notice to proceed or produce.
Federal Agent Phelan —I understand that. I may be able to get that material. It might be very hard to extract.
CHAIR —It may be hard—I can see that. Now I am asking for your overall impression, which we will not hold you to if the statistics are at variance.
Federal Agent Phelan —My overall impression is that extremely few friendly warrants would have been knocked back by magistrates who issue those warrants. I would say it would be a very small percentage that has been knocked back. I would also say that, in most investigations we would do, the majority of search warrants in those major investigations would involve friendly warrants. Of all of the investigations that we would do, there would normally be only a couple of hard warrants, for want of a better word, for when you are going into target premises to actually gather evidence, normally at the culmination of an investigation. But, throughout the investigation, there is cause to obtain material along the way a lot more times than in that one search.
CHAIR —So, if they were erroneously executed, you would not mind that the person adversely affected gets compensation, I suppose—that is, for those that are rejected or where there are flawed processes in the notice to produce?
Federal Agent Phelan —We would also say that the senior executive officers of the AFP issuing those notices to produce would also look at those notices themselves and may knock them back. We can look at a regime that is similar, which is where we have authority to do controlled operations. Senior executive officers have rejected applications for controlled operations put forward by members of the organisation based on insufficient evidence, and they are reported in the annual report. So it is not ‘tick and flick’ by any means.
CHAIR —That is good. What about delayed notification search warrants? You indicated that there is a slightly tougher issue.
Federal Agent Phelan —It is a bit tougher. In the regime that exists at the moment, we have to notify an occupier of a search warrant and it can potentially hinder ongoing investigations. I think in our submission we highlighted the situation of a planned terrorism act, for example. We may not have enough evidence to actually charge somebody, but we know something might be on the premises—there may be a map of a target that might be blown up or of something they will do some sort of terrorist act to. We might want to get in there, look and see what is in there and what they are actually planning. Then we might want to be able to monitor them, continue the investigation further down the track to see what is going on and actually gather enough evidence on either the whole conspiracy or other players that we do not otherwise involve. If we go in there to find out what is in there, under the current legislation we have to let someone know that we were there.
CHAIR —So this is to gather evidence rather than intelligence? There is quite a difference.
Federal Agent Phelan —That is right. At the end of the day if we know there is a map, that is evidence. Ultimately it will be evidence but we would say that we would not want to seize it at that point in time. We might want to take photographs of it but we would not want to alert them that we were on to them. That is just one example on the terrorism front. There are other examples particularly to do with narcotics or something like that, because it is not always that the Australian Federal Police have control of the substance. If, for example, illicit drugs were not detected at the barrier but through our own information through informants and we have identified that it is at a certain location, it is sometimes extremely handy to know exactly what we are dealing with, how much, where it is and all those sorts of things. We can get that by entering the premises but not necessarily seizing it—although indeed we could seize it and substitute it, for example—while not alerting the occupiers of the premises that we are on to their importation or criminal venture, because there may be other players in the venture that have not yet come to light for us who will not come to light until later on down the track through electronic surveillance or physical surveillance or even some foot-slogging detective work through documentation and so on. So there are occasions when actually letting people know we are doing search warrants will affect the investigation, so as a matter of course we do not do search warrants for that purpose because we could be potentially jeopardising our own investigations. The fact that we are not doing search warrants on these places when we perhaps should be can indeed sometimes lose us evidence or valuable information that may flow from the evidence that we know is on the premises. So it does put us in a situation that if we had that authority—and we would want scrutiny of that afterwards; that would be no problem—in that way we could at least delay the notifications to the occupiers until such time as it would be operationally safe to be able to do so, not that we would never do it.
Senator MASON —Chair, I do not have any questions except to reiterate the general concern reflected in your opening question—and you really put this very well—that, over at least the last 10 years with technology, the threat of terrorism and incrementalism, this committee—and I suspect the Senate, and the parliament as a whole—is concerned that agencies of the executive be held to account. That is the nub of it. All the evidence before us, including the evidence earlier today, reflects that concern. We have to be sure that agencies are held to account and that there are measures to hold them to account.
CHAIR —It is really a two-edged sword, though. It is not that there is a lack of trust. I find that when you put in accountability mechanisms the behaviour rises to meet the accountability mechanisms, so the accountability mechanisms are not necessarily there to run witch-hunts against anyone. We know for a fact that an intensive Senate estimates committee process means public servants—as they have told me—think twice about doing something, because that particular body may bring them to account one day. That is the point we are making. For every action there will be a reaction and provided it is in balance it should be good. Thank you, witnesses, for coming today. We appreciate your evidence.