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Tuesday, 1 February 1994
Page: 66


Mr WILLIAMS (8.57 p.m.) —The genesis of the Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1993 has a long history. It really started with the report of the Australian Law Reform Commission in 1975 on criminal investigation. The report was a comprehensive one and it recommended that the Commonwealth enact a single piece of legislation governing the investigation of federal offences. In fact, a draft bill was appended to the report. I repeat that the year was 1975. This bill, having appeared in November last year, took just over 18 years to appear.

  The government of the day introduced a criminal investigation bill in 1977 but, although it was based on the ALRC report, it was not proceeded with. The next relevant event seems to have occurred in 1984 when the then Attorney-General appointed Justice Watson of the Family Court to conduct a review, the purpose of which was to examine the responsibility of consolidating and rationalising the criminal laws of the Commonwealth. He presented an initial report in 1986.

  In 1987 the then Attorney-General decided to extend the review and establish what has become known as the Gibbs committee, the committee to review the criminal law of the Commonwealth. The committee comprised the former Chief Justice of the High Court Sir Harry Gibbs, Justice Watson and Mr Menzies, a former Deputy Secretary to the Attorney-General's Department.

  The terms of reference of that committee were to review the Commonwealth legislation creating criminal offences with a view to recommending its scope and adequacy, and the extent to which offences might be consolidated and rationalised. The Gibbs committee produced two relevant reports: the fourth interim report in November 1990 and the fifth interim report in June 1991. Those reports recommended the modernisation of Commonwealth criminal law and sought to strike a balance between effective law enforcement and individual rights and freedoms. The committee relied extensively upon the 1975 ALRC report. This bill, to a considerable extent, seeks to implement the recommendations of the Gibbs committee in relation to search warrants and powers of arrest.

  It is relevant to set the bill against the background of the present law. To a large extent, persons enforcing Commonwealth criminal law or investigating allegations of offences against Commonwealth criminal law rely upon state legislation.

  Under the Judiciary Act, section 68, the laws of a state or territory respecting the arrest of offenders or persons charged with offences and the procedures for dealing with them, subject to certain provisions, apply. The effect of that is that a person, who may or may not be a Commonwealth officer, seeking to enforce Commonwealth criminal law will be relying largely upon state statutes, common law and decisions of courts concerning those state statutes. There are some provisions in the Commonwealth Crimes Act—they are not neatly collected but are spread throughout the act—which govern some aspects of the investigation of possible criminal offences and the arrest of offenders. However, in the main we are dealing with state statutes.

  It is necessary in another respect to understand the background against which this bill is brought. The investigation of offences is carried out by both state and Commonwealth law enforcement officers, but they are not in the luxurious position of being able to investigate a Commonwealth offence discretely as against a state offence. They may be investigating what appears to be a conspiracy under the Crimes Act of the Commonwealth. But a conspiracy under that act might be a conspiracy at common law where common law is applicable; it might be a conspiracy under a crimes act of a state or a criminal code of a state.

  An officer who exercises a power of arrest may be doing so without being able to articulate what the alleged offence is, although he may have a good general idea. He may be unable to articulate whether he is dealing with Commonwealth or state offences at the time. In the light of that, the Judiciary Act scheme under which state laws apply in Commonwealth situations has much to commend it. The act avoids duplication; it avoids the difficulty of an officer who has a Commonwealth offence in mind finding himself able to exercise only state powers relevant to a state offence; and it avoids the situation where a state officer with a Commonwealth offence in mind is unable to exercise Commonwealth powers which are not conferred upon him.

  I think it is surprising that in both the second reading speech and the explanatory memorandum there is a significant absence of explanation on how the Commonwealth and state regimes will relate subsequent to the passage of this bill. It is simple to say that a Commonwealth officer can exercise Commonwealth powers under the bill, when enacted, when he is investigating Commonwealth offences, but the life of a law enforcement officer is never so simple. A social security offence may involve common law or criminal code offences as alternatives; for example, stealing, forgery or false pretences.

  It must be noted that many other pieces of Commonwealth legislation also deal with aspects of the investigation of Commonwealth offences. In fact, there is a proliferation of regulatory powers in recent statutes, the number and the form of which are becoming a matter of some significant public concern. We are perhaps readily familiar with the coercive investigatory powers under the Corporations Law and its predecessors—the Income Tax Assessment Act and the Trade Practices Act—in the business context. Those statutes confer rights of entry, powers of seizure, and powers of interrogation in respect of which the right to silence is removed.

  A growing number of coercive powers incorporated in Commonwealth statutes relate to the provision of benefits. The social security legislation, including the veterans' entitlements legislation, is one major example of such provisions. In recent times a bill passed through this parliament relating to coercive powers in the health insurance area, and a bill in the current program relates to that area. The crimes bill must be set against the background of those pieces of legislation as well. While it is an issue for another day, the number and range of agencies with intrusive powers is a worry.

  The current Labor government, particularly ministers with responsibility for administering large departments, seems to be hell-bent on adding to the coercive powers of those departments in regulating the administration of benefits or the conduct of civilian activity. I hope that the Attorney-General (Mr Lavarch) and the Minister for Justice (Mr Kerr) will urge their colleagues to be cautious and endeavour to ensure that the other ministers limit the intrusions on citizens to a minimum. I regret to say that there is no real evidence that the Attorney-General and the Minister for Justice are exercising that responsibility.

  On the face of it, a codification of powers in relation to Commonwealth offences has much to commend it. Such codification, in the form of this bill, would be easily accessible by the people involved in law enforcement and in criminal investigation. If it were properly drafted, it could be readily understood and become reasonably well known by the public, who are most likely to be affected by it, and by the advisers of those members of the public.

  In so far as it was Commonwealth legislation, codification would ensure that uniform rights were accorded to citizens across the country. To achieve those goals, that process must be as simple as possible, it must avoid overlapping and duplication as much as possible and it should avoid as much as possible the necessity of distinguishing the powers under it from the powers under other laws. It is not readily apparent that this bill does those things.

  I am not in a position to say that this is the best possible bill, nor am I able to say that there are major failings in the respects that I have suggested need attention, but, for a start, there are some matters to which reference can be made. In the absence of a cooperative national legislative scheme dealing with search warrants, rights of seizure and the like—the matters dealt with in this bill—there will inevitably be differences between what this bill enacts and what is currently enacted in state and territory laws.

  At the beginning of my speech I posited the situation that one law enforcement officer might find himself or herself in the position of having to determine in the field whether a criminal offence—for example, a drug offence—that is about to be committed or is anticipated is a Commonwealth offence or a state offence. If it is a drug offence, it may not be readily apparent whether it is going to be an offence under the Customs Act of the Commonwealth or a state misuse of drugs act or equivalent legislation.

  This sort of situation is to be expected under the bill, except perhaps in one situation covered by the bill. That situation is where the power sought to be exercised by a law enforcement officer is arrest under warrant. Under proposed new section 3Z of the bill, the state laws and territory laws presently applicable will still apply by virtue of section 68 of the Judiciary Act. But that has to be qualified because the bill proposes to add an overlay of additional Commonwealth procedural requirements which will apply to Commonwealth offences.

  The other situation to which reference might be made in this context is proposed new section 3ZV, in which provision is made that, in relation to the taking of forensic samples, state and territory laws will expressly apply concurrently. Other than that, the intention appears to be that in respect of Commonwealth offences this bill will in effect cover the field. Therefore, an officer investigating or in some other way dealing with a Commonwealth offence or a possible Commonwealth offence will be bound to observe—and will have available to him or her—only the Commonwealth powers.

  When it comes to other Commonwealth powers dealing with matters covered in this bill, there is another issue. Under proposed new section 3D, it is provided that this part, which is the bulk of the bill, is not intended to limit or exclude the operation of another law of the Commonwealth relating to the search of persons or premises, or arrest and related matters, or the stopping, detaining or searching of conveyances, or the seizure of things. That obviously means that the provisions of other legislation under which coercive powers are given will operate concurrently. That will not present a simple picture. One of the principal objects, one would have thought, of a bill such as this—to have a simple code which would apply in as many situations as possible—will not be achieved.

  I observe that a last-minute amendment has been proposed. Given the nature of this bill, the fact that some significant amendments have been proposed is not quite alarming but it certainly rings alarm bells. If the bill has been in gestation for some 18 years and in some very short period prior to the initiation of the second reading debate significant amendments are circulated, one wonders whether every attention has been given to the bill. The significance of that should not be underestimated. There are reforms proposed in this bill which involve one of the most significant interfaces between the citizen and the government. It may even be the most significant in terms of the powers of government as against a citizen because it involves potential loss of liberty.

  We are talking here about dealings between the police and a possible or an alleged offender. It is here where the protection of the law is at its most vital to the citizen. It is also in this context that the police or other enforcement authority is most vulnerable to accusations of harassment, bullying, assault, theft and a range of other sins, omissions, misdemeanours and crimes. In that context, the codification of the rules relating to arrest, relating to search and relating to entry of premises and the like must be as near to perfect as can be achieved. In my humble view, there has not been adequate time for the public to scrutinise this bill.


Mr Kerr —Eleven years is a fair opportunity.


Mr WILLIAMS —One can suggest that the period available has been 18 years, but one knows that people do not focus upon potential legislation in the same way until they see a bill introduced. From the point of view of the public, there has not even been adequate time in relation to a bill as important as this for them to consider whether the bill does enact reports that they have previously seen and does take into account comments on the reports that were part of the genesis of this bill.

  It is of considerable significance, regrettably, that the bill was introduced at one of the busiest times of the parliamentary sittings—mid-November, just prior to the conclusion of the budget session, when public focus was largely on Mabo. To the extent that it was not, it was on a number of other bills that were at that stage being finalised in the parliament through the guillotine process in this House. Once parliament rose, we were into Christmas and the holiday season.

  In the main, the public interest groups which have the time, the inclination and the genuine interest in addressing this bill are volunteers. They are civil liberties groups; they are professional groups; they are academics. The input to this bill has been very small. I can put that down only to the fact that everybody has been on holidays. This bill is being debated on the first day that parliament resumes, which is a day before many schools return, and public focus just has not been addressing this legislation—or any other, much, for that matter.

  I suggest that the appropriate course of action in relation to this bill is that it ought either to be allowed to lie on the table for further time for public scrutiny or, preferably, be referred to the House of Representatives Standing Committee on Legal and Constitutional Affairs. That committee is as eminently qualified as any group within this House to undertake a proper review. I suggest that it could be done relatively quickly.

  The minister, like the Attorney-General, has been an active member of that committee in the past and knows its capacities well. The opposition is, in suggesting this, not in the least intending to seek to delay the bill for delay's sake. The anxiety instead is to ensure that the bill is the quality bill that is demanded in dealing with the interface between a citizen and the government, between the police and the alleged offender. That can be best done by ensuring that there is the maximum opportunity for review. I move:

  That all words after "That" be omitted with a view to substituting the following words: "whilst not declining to give the Bill a second reading, the Bill be referred to the Standing Committee on Legal and Constitutional Affairs for review".

The opposition would be happy to do whatever is within its power to ensure that any consideration by the Standing Committee on Legal and Constitutional Affairs is done as expeditiously as possible if there is a real need for this bill to be dealt with as it might otherwise be dealt with. If the motion is not successful, the opposition in the Senate will ensure that the matter is sent to the Senate Standing Committee on Legal and Constitutional Affairs for, hopefully, proper review. I would suggest, however, that the proper function of this House in relation to a bill like this which has the possibility of achieving bipartisan support is to have this matter reviewed by a committee of this House.

  Mr DEPUTY SPEAKER (Mr Andrew)—Is the amendment seconded?


Mr Slipper —I second the amendment.