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Tuesday, 5 June 1984
Page: 2551

Senator GARETH EVANS (Attorney-General)(9.36) —The amendments are a little more than consequential. The Australian Democrats' amendment No. (9) is to add a new sub-clause in relation to the search and seizure making it clear that where a warrant is properly issued and the person executing the warrant comes across something which he or she reasonably regards as constituting evidence of the commission of another offence, then there is a capacity to seize that particular thing even if it is outside the scope of the original warrant. Something about which the Government has been a little concerned is extending the scope of the seizure power in this way. However, on balance we can appreciate the kind of argument that has been traditionally advanced for such a slightly extended power, and we do not oppose it.

However, we do have a little more difficulty with amendment No. (10). I ask the Opposition to make sure that it fully appreciates what amendment No. (10) is all about. It is the proposed insertion of new sub-clause 6AA. I appreciate that it is broadly consistent with the recommendation of the Senate Standing Committee on Constitutional and Legal Affairs even though I think not expressly the subject of a particular Committee recommendation. What the proposal says is that , where something is seized pursuant to a properly executed search warrant, then that thing can not only be communicated or handed over to an appropriate law enforcement or prosecution agency for the purposes of the prosecution of a criminal offence or to an appropriate agency for the purposes of some piece of civil litigation, for example, a tax recovery; what we are now asked to approve is the handing over of such a thing to some other law enforcement agency, simply for criminal intelligence purposes or, as the amendment says:

. . . for the purpose of assisting in the investigation of criminal offences, where the Authority is satisfied that the thing is likely to be useful for that purpose.

Senator Chipp —That is unexceptionable, surely.

Senator GARETH EVANS —Can I just put the concern that we have about it? This is fair enough if things are advanced to the point that there is a criminal charge outstanding against someone for which that particular thing constitutes evidence ; fair enough equally where it is clearly relevant evidence in the context of a civil matter like a tax recovery and that civil matter is alive and well and actually being prosecuted. But what we are talking about here is the capacity to hand over, for intelligence purposes, in a way that is unlimited as to the duration of the period of time for which it can be retained by that Authority, something which merely may be useful for criminal investigation purposes. What we are talking about here, of course, is likely to be company records, matters, perhaps, of tangible evidence-some particular piece of equipment that might be seized as potentially aiding the Authority in its investigation of something or other-which may have a real monetary value or a real business value to the organisation in question. We are talking about just the open-ended capacity to hand it over.

I appreciate the reasons why this amendment has been moved. I can appreciate that the kind of people, companies and organisations that are likely to be on the receiving end of this kind of treatment are not such as to perhaps merit an awful lot of concern on our part. However, if one is applying basic civil liberty standards here, and if one does acknowledge that what is involved here is a deprivation of the use and enjoyment of property which might have a significant monetary value or some other real value to the organisation in question, I think there are grounds for concern about an open-ended power of this kind.

I have endeavoured to wrestle with ways in which the power might be narrowed in some respect. But, I confess that I have been unable to come up with any such formula. I think, although appreciating the force of this, that I have to indicate that this amendment is simply not acceptable to the Government.