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Tuesday, 1 February 1994
Page: 73


Mr SLIPPER (9.37 p.m.) —I am pleased to rise in the House to support the contribution made by my colleague the honourable member for Banks (Mr Melham) and the earlier contribution made by the honourable member for Tangney (Mr Williams). An ounce of prevention is better than a ton of cure and so often we find under varying governments legislation being sent through the parliament which is later on found to not be what everyone thought it was. The parliament far too often is used as a sausage machine.

  Although, as has been pointed out earlier, this legislation has had a gestation period of some 18 years, I think when it becomes obvious to both sides of the House and to the community at large that there are very serious concerns about a piece of legislation, the Minister for Justice (Mr Kerr) ought to take these concerns on notice and consider very seriously either letting the legislation lie on the table or, better still, sending it off to the House of Representatives Standing Committee on Legal and Constitutional Affairs.

  Like the honourable member for Banks and the honourable member for Tangney, I am a member of that committee. When I was elected to this House in March of last year and appointed to that committee, I did not really know what to expect. Having attended quite a few meetings, I have been genuinely impressed by the bipartisan manner in which matters coming before that committee are dealt with.

  We all have political views and we will never always agree on everything. Certainly in our committee we do not always agree on everything. However, I endorse the comments made by the honourable member for Banks about the committee's value and that it is one of the very best committees of this House.

  It is also clear that if we do not refer this piece of legislation to our committee it will go to a committee in the other place. I have no objection to legislation being considered by Senate committees. Senate committees have been responsible for the tempering of legislation which, in many cases, would otherwise have been quite disastrous. If we are to make this place operate properly, we ought to use our committee system. We ought not to abrogate our responsibility by allowing a Senate committee to take on the responsibility of considering the concerns raised by the people who wrote to the honourable member for Banks and the concerns raised by the Law Council of Australia and the Law Society of New South Wales.

  The minister is on notice from a wide group of respected people who have no political axe to grind that there are some problems with this legislation. The opposition is endeavouring to participate in this debate with the right motives. We do not seek to embarrass the minister or the government on this matter, although we will certainly seek to embarrass the government on other matters. We see this as being a very important bill which has come before the parliament.

  We are not suggesting that the government has brought the bill before the House motivated in the wrong way. However, we are pointing out very clearly that the House now has notice that this legislation could be flawed in some way. The opposition is not opposing the legislation, but we very strongly support the amendment moved by the honourable member for Tangney, which was quite generously supported by the honourable member for Banks. It ought to be placed on the record that the honourable member for Banks indicated that if it does come to a division he certainly will not be crossing the floor to join us, although we would be very happy to have him.

  A number of matters require consideration. I hope that the committee will be given the opportunity to talk about them and, hopefully, to remove the concerns raised by the people who have contacted members of this place, such as the people who wrote to the honourable member for Banks, the Law Society of New South Wales, the Law Council of Australia and so many other private practitioners and members of the community.

  In the time remaining to me, I will highlight a few of the concerns of the Law Society of New South Wales. I respect the society for the views it puts forward. It does not have any particular axe to grind, it is not a political pressure group representing any political party, but it is a group of people who have expertise in this area and who have raised genuine concerns about some items contained in the legislation.

  The aims of this bill are to amend the Crimes Act 1914 and to insert a new part 1AA dealing with the issuing and execution of search warrants for the search of premises and persons; the seizure of evidential material; the stopping and searching of vehicles; the power of arrest without warrant—that is, citizens arrest—the issuing of warrants for arrest; the conduct of body searches; legal professional privilege; the taking of identification materials; and the conduct of identification procedures. The bill also seeks to repeal the current sections of the act which deal with search warrants and powers of arrest.

  The honourable member for Tangney pointed out the very long history of this legislation. Its immediate genesis can be traced to the Review of Criminal Law Committee that was set up in 1987 by the then Attorney-General, the Hon. Lionel Bowen, and chaired by the Rt. Hon. Sir Harry Gibbs, a former Chief Justice of Australia. The membership of the committee included the Hon. Mr Justice Watson and Mr Menzies.

  The government has taken on board most of the recommendations of the committee and produced this piece of legislation. Most people in the House would agree that Sir Harry Gibbs is one of the finest jurists, lawyers and judges this country has ever produced. If Sir Harry Gibbs comes forward and recommends certain things, I for one will take them on board and consider them very seriously. That is why I hope the government abandons its republican push. I see the Minister for Justice (Mr Kerr) nodding his head, hopefully in an affirmative way.

  Sir Harry Gibbs has pointed out that an Australian republic could well be an Australian dictatorship. I mention that in passing to indicate the quality of the advice issued by Sir Harry Gibbs on so many occasions. He is a man who understands the law and our constitution. He understands the benefits to the Australian people of the stability that we have had since 1901.

  Similarly, having been a judge of the Queensland Supreme Court, a judge of the High Court of Australia and the Chief Justice of this country, his appointment as chairman of this committee was very suitable. But the fact that Sir Harry Gibbs and the other people comprising this committee brought forward these recommendations does not mean that we ought not to refer the bill, which emanates from those recommendations, to a standing committee of this place.

  The review committee released its fourth interim report, which dealt largely with the law in relation to search warrants, in November 1990. In June 1991, the fifth interim report was released, including a review of the law in relation to arrest and related matters. Recommendations were made to modernise the Commonwealth criminal law using modern technology while seeking to balance law enforcement and individual rights and freedoms. The recommendations of the review committee pertaining to search warrants and powers of arrest made in its fourth and fifth interim reports are implemented in the bill that we are presently discussing and which we are hoping, with the minister's concurrence, to send off to the committee.

  I will summarise the main provisions of the bill. Proposed sections 3E and 3R of the bill provide a detailed legislative base for the issuing and execution of search warrants in relation to Commonwealth offences. Proposed section 3C allows for a warrant to be issued only by a magistrate, a justice of the peace or other person employed in a state or territory court who is authorised to issue search warrants. This was a review committee recommendation. The committee thought that problems, such as the unavailability of magistrates in remote areas, could be dealt with by enabling warrants to be obtained from magistrates by phone.

  The Law Council discussion paper has suggested that warrants only be issued by magistrates as a general rule except in exceptional circumstances. This point requires further consideration. An investigation of this issue could reveal that the public may be better served if magistrates were only the issuing officers. The need to include justices of the peace as issuing officers can be avoided if warrants are obtained by telephone or facsimile. The use of electronic methods for this purpose has been provided for in this bill.

  Proposed section 3E, which outlines when search warrants may be issued, has also drawn concerns from the Law Society of New South Wales. Proposed section 3E(2) states:

An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.

The Law Society of New South Wales has raised the point that the existing powers of police entitle police officers to carry out a search as an adjunct to arrest, whereas the proposed new power entitles police to search a person without committing themselves to arrest or charge.

  This proposed change contains serious potential for harassment and concerns in the area of civil liberties. The Law Council discussion paper made similar observations, noting that police already have a right to arrest upon suspicion. It seems as though this ought to be the minimum consideration upon which a person should be personally searched.

  It is important that the observations of the Law Council and the Law Society of New South Wales be given serious consideration. The minister can back down without losing face by referring this legislation to the committee.

  Another major provision of the bill—proposed section 3E(4)—has been highlighted in the Law Council discussion paper. This proposed section deals with the listing of issues to be identified on the warrant, including the nature of the evidential material being sought, the name of the executing officer and the period for which the warrant is in force.

  The Law Council raises the issue of flexibility in relation to this clause, questioning the requirement that the warrant ought to be addressed to a named constable. If this suggests that warrants ought to go only to a particular constable, instead of to a group of officers named on the warrant, then this, in the Law Council's view, could be remarkably restrictive. This could be easily solved. It has been suggested that the warrant be directed to a number of nominated police officers to give improved flexibility to the warrant during its period of existence. This is another matter which the House of Representatives Standing Committee on Legal and Constitutional Affairs could appropriately investigate.

  The Crimes (Search Warrants and Powers of Arrest) Amendment Bill also deals with extra-territorial warrants, allowing the issue of a warrant in relation to premises or a person in an external territory if there are special circumstances, or anywhere within Australia if the person's whereabouts cannot be predicted. Proposed section 3Q allows an application for a warrant to be made by telephone, facsimile or other electronic means and it allows the warrant to be granted in an urgent case. A warrant issued under these circumstances cannot remain in force for more than 48 hours.

  Provisions detailed in relation to the execution of search warrants in the proposed legislation include that the executing officer must announce that he or she is authorised to enter the premises unless it is believed that immediate entry is required to ensure the safety of the person; that the officer may obtain assistance and use such force against persons or things as is necessary and reasonable under the circumstances; and that, if the person is on the premises, the officer must show the person the warrant.

  The bill introduces provisions relating to arrests and identification procedures which provide additional requirements to be complied with. Proposed section 3U, for example, allows for a constable to request the name and address of a person whose name is unknown, if the constable considers that the person can assist in inquiries. A person must not refuse to answer and a person must not give a false answer.

  Again, the New South Wales Law Society has raised concerns by suggesting that such a power could discriminate against the underprivileged. This government postures as the party of the underprivileged. The New South Wales Law Society considers that the proposed amendment provides a serious risk that the new power could be used as a weapon of harassment. In its response, the society said:

There is no justification for the introduction of this additional police power. The potential for mischief on the part of police which would be created by its introduction is far greater than any advantage it might serve.

Further provisions of the bill enable a constable to arrest a person without a warrant if the constable believes on reasonable grounds that the person has committed or is committing an offence and proceeding by summons would not ensure appearance in court or prevent the repetition or continuation of that offence.

  The rights of a private person to make an arrest without warrant are retained under proposed section 3Y; however, a citizen can make an arrest only if he or she believes the other person has committed or is committing an indictable offence. Previously, the old citizens arrest meant that any citizen could arrest another allegedly committing a breach of the peace. That created enthusiastic action by zealous people. Obviously, some people overdid it. That is a very sensible amendment included in the legislation. It is appropriate to water down the citizens arrest rights.

  In relation to proposed section 3ZA, which deals with the power to enter premises to arrest an offender, the Law Society of New South Wales claims that the clause permits police to enter private premises without a warrant. The Law Society stated:

The existence of such a power would be an encouragement to police to refrain from taking out a search warrant and to enter private premises (including the home of an innocent householder) without benefit of warrant on the excuse that they are in the process of making an arrest. Existing laws permit police to search premises and to seize and take away any items which might lead to a charge or might be evidence for a charge (so the proposed amendments give police the same powers as a search warrant would do if an arrest was made). The significant difference (apart from the inconvenience that getting a search warrant from a justice could entail) is that there is no judicial returnability of a warrant and no requirement to inform a judicial officer that the warrant resulted in the discovery or otherwise of material promised.

A further concern raised by the Law Society of New South Wales relates to proposed section 3ZT, which deals with the court of summary jurisdiction permitting a thing to be retained. It is suggested that the clause be amended to ensure that reasonable attempts are made to notify the person from whom the goods were seized or the owner of them before an application to retain the thing is made, unless a constable satisfies the court that notification is inappropriate.

  Very briefly, I would like to highlight and reiterate these concerns of the Law Society of New South Wales and the Law Council of Australia. They relate to whether the issuing officer should be only a magistrate or a justice of the peace as well, which is dealt with in proposed section 3C; whether the police should be given the power to seek a search warrant to search an individual person, which is dealt with in proposed section 3E(2); whether a warrant should be directed to a number of nominated police officers, rather than the limitation of just two, as in the bill, which is dealt with in proposed section 3E(4)(d); whether failure to supply name and address to police should be an offence, which is dealt with in proposed section 3U; whether police should have the power to enter premises without a warrant to arrest, which is dealt with in proposed section 3ZA; and whether a reasonable attempt should be made to notify the relevant parties of an application to continue to hold seized goods, which is dealt with in proposed section 3ZT(1).

  As previously mentioned, the aim of this bill is to implement the recommendations of the review of Commonwealth criminal law and to make reforms relating to search, arrest and related matters for the investigation of Commonwealth offences. We on this side of the House, through the shadow Attorney-General, the honourable member for Tangney (Mr Williams), have recommended very strongly that this bill be sent off to the House of Representatives Standing Committee on Legal and Constitutional Affairs.

  Our view has been supported by the Law Society of New South Wales, the Law Council of Australia and many interest groups who have contacted members of this place. I know the minister has replied to some of those concerns and has endeavoured to allay some of those concerns. But the simple fact of the matter is that there is in relation to this bill an ongoing concern in the community. This government has the opportunity to remedy a problem before it occurs. It is not a question of the government being defeated in this place; it is not a question of the government losing face; it is not a question of the minister being seen to not be in control of his portfolio. It relates to the responsibility of this House, this parliament and this government to ensure that the legislation which passes through is good legislation which is needed by the people of Australia. I urge the government to accept the amendment moved by the honourable member for Tangney and supported by the honourable member for Banks and everyone on this side of the chamber.