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Tuesday, 1 February 1994
Page: 80

Mr PYNE (10.16 p.m.) —The Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1993 implements many of the recommendations that the Commonwealth Law Reform Commission has made since it was asked in 1975 to inquire into legislative means of safeguarding individual rights and liberties in relation to the investigation of Commonwealth offences. It updates provisions for obtaining and executing search warrants, stopping and searching conveyances, arrests, personal searches, taking and destroying of fingerprints, holding identification parades and other procedures for identification. The bill is also designed to remove the secrecy surrounding the manner in which these powers can be exercised, so the powers of police and the rights of individuals in the areas of police investigation covered by the bill are available to the public.

  The Liberal and National parties support the bill. However, we believe that some elements of this legislation deserve further consideration. The Law Society of New South Wales and the Law Council of Australia have both raised significant matters stemming from the bill. For that reason, we have moved an amendment that the bill be referred to the House of Representatives Standing Committee on Legal and Constitutional Affairs for further discussion. I want to place on record tonight some of the concerns of both the New South Wales Law Society and the Law Council. I want to discuss three specific sections of the bill: proposed section 3E(2), that gives police the power to seek a search warrant to search an individual person; proposed section 3U, that creates an offence of failure to supply a name and address; and proposed section 3ZA, that gives police the power to enter premises without a warrant to arrest.

  At the moment, there is no legislative or Commonwealth power to stop and search a person before arrest. Proposed section 3E(2) will give police the power to detain a person to be searched. The New South Wales Law Society quotes from a 1975 Australian Law Reform Commission recommendation that there be a power to stop and search:

. . . where there are reasonable grounds to suspect that there may be found:

(a) an offensive weapon

(b)something which is the fruit of a serious offence (punishable by more than 6 months imprisonment), the means by which it was committed, or material evidence to prove its commission.

The society repeats its warning:

. . . any misuse of this power, for the purposes of harassment of citizens innocently going about their business, would be eminently well suited to disciplinary action.

Existing police powers entitle officers to carry out a search as an adjunct to arrest. As the society says, the proposed new power gives police the right to search a person without committing themselves to arrest or charge. This could contain serious potential for harassment. The society concludes its remarks on this matter with the comment:

If sufficient information was available to ground a warrant for a personal search it would seem to follow inevitably that the police ought have some grounds upon which to validly arrest a person.

Proposed section 3U, the requirement to furnish a name and address to constables, was tackled in some detail in the 1975 report, which again raised questions of harassment. The commission acknowledged that such a power could discriminate against the underprivileged, especially Aboriginal Australians. Section 3 of the 1914 Crimes Act defines `constable' to include a member of a state or territory police force. As the law society observes, the New South Wales police, who do not have such a power, have managed well enough in the past. The Law Society goes on to say:

The legislation proposes that the penalty provided be a fine, not jail. This is no protection against a custodial sentence; many disadvantaged citizens are unable to pay a fine and will eventually find themselves cutting out the fine in a police cell or jail.

Even though the penalty be only a fine police will nonetheless have power of arrest in order to initiate the prosecution for the offence. This creates a power of arrest where there should be none; why should the police have the power to arrest a person who might be only an eye witness who wishes to keep private the fact that he or she was at a particular place at a particular time?

The Law Society's final comment on this matter states:

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.

The final part of the bill I will discuss tonight is proposed section 3Z(a) which deals with powers to enter premises without a warrant to arrest suspected offenders. The New South Wales Law Society observes:

This clause permits police to enter private premises without a warrant and without any court oversight. The legislative basis for the entry of police is that they are seeking to make an arrest. Police have long sought such a power as a sort of legislative extension of the idea of pursuing a fugitive into premises.

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 is 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.

The society also points out that proposed section 3Z(a) may violate article 17 of the International Covenant on Civil and Political Rights, which provides:

17(1)No-one shall be subject to arbitrary or unlawful interference with his privacy, home, family or correspondence . . .

17(2)Everyone has the right to the protection of the law against such interference or attacks.

Under the bill, the police have the power to search the premises at which the arrested person is arrested for evidence in plain view. The legislation reiterates the common law power which police have to search an arrested person. However, when someone is not arrested, the bill is silent on the power police may have to detain persons on the premises and to search and seize persons and the contents of the premises. If the common law rules apply, they should be included for clarity in the legislation.

  I have not repeated these comments out of any libertarian bent or a fondness for police bashing. Law societies are not known for offering gratuitous advice. Rather, I believe that these matters highlight some serious deficiencies in the bill which violate its spirit. The explanatory memorandum to the bill states:

The Bill is designed to make public the powers of police and the rights of individuals in the important areas of police investigation with which it deals. The unavailability of the details is incompatible with modern concepts of open administration and access to justice.

This intention is in the best spirit of progressive, liberal minded legislation. The ambiguities in the bill seem to cut across this and so, while we support this legislation, these matters must be given further consideration.