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Friday, 5 October 1984
Page: 1307


Senator PETER RAE(11.01) —I indicated earlier, at the second reading stage, that I would be moving certain amendments in relation to the right of entry and search without warrant. I believe that I can speak only once on this legislation in Committee so I will deal with the amendments in a block. I do not wish to speak at great length on this but rather to develop a little further the comments which I made on the Bounty (Two-Stroke Engines) Bill 1984 on 14 June 1984. I gave a number of reasons for expressing some concern at the right of entry and search in circumstances where no warrant was obtained. I adopt the words I used at that time as part of the argument. I would like also to adopt some of the words used on 4 June 1969 by the then Leader of the Opposition, Senator Murphy, in debate on the Meat Chicken Levy Collection Bill. He said:

This great power of entry and search should not be allowed to grow by virtue of its introduction into Bill after Bill on primary production.

He referred to the fact that there has been a growth in the number of pimary production Bills containing this type of provision. He also made some other references, to which I referred in my speech in June this year. I refer also to the Law Reform Commission's Criminal Investigation Report (No. 2) dated 5 September 1975. In the chapter entitled 'Search, Surveillance and Entrapment', in paragraph 188 and following paragraphs, reference is made in some detail to the history of practice and law relating to search and seizure and even in relation to particular types of legislation. I refer to the Commission's recommendations because I believe they are important recommendations which ought to be read into the Hansard as part of what I believe will probably be a continuing debate. At paragraph 197 the report says:

The Commission's recommendation is, put shortly, that all searches and seizures be unlawful unless made pursuant either to a court order or warrant, or, if made without a warrant, in accordance with one of the following criteria:

(a) in response to circumstances of such seriousness and urgency as to require and justify immediate action without the authority of such an order or warrant;

(b) at the invitation, or with the consent, of the person occupying the premises or in charge of the vehicle in question, a signed acknowledgment being prima facie evidence that such an invitation was made or consent given, the absence of such acknowledgment being prima facie evidence that it was not; or (c ) pursuant to specifically designated statutory authority.

I pause to point out that this legislation would provide for that category (c) and it is to that category that the Law Reform Commission refers in paragraph 198, where it says:

What we mean to achieve by the above general provisions is the subject of more detailed exposition in the paragraphs which follow. In particular, we shall indicate the improvements that we think can be made in relation to the issuing of warrants and shall outline a proposal for the introduction of telephone search warrants. We shall indicate briefly why we think explicit provision in respect of searches by consent should be made and will also indicate the existing statutory authority in respect to search and seizure that ought to be preserved, and that which ought to be amended. As to the proposed category of warrantless searches described in (a) above, our view is that while the legislation should not attempt to state exhaustively the situation which could satisfy the standards of 'seriousness and urgency' there referred to, it is appropriate that three specific classes of 'urgent' searches be spelt out. These classes are:

(i) searches incident to arrest;

(ii) emergency searches necessary to prevent loss of evidence; and

(iii) searches of persons and vehicles suspected on reasonable grounds to be carrying any article which is an offensive weapon, or is either the fruit, instrument or material evidence of the commission of a serious offence.

Of these, we have dealt with (i) above and there is no need to repeat here what was there said; (ii) needs some explanation-

it is given following-

and (iii) perhaps needs some justification, which we offer below.

I commend paragraph 199 and the later paragraphs which set out the explanations. In particular, paragraphs 206 and 207, under the heading 'Searches Pursuant to Other Statutory Authority,' say:

It has already been explained and need not be repeated here why it is that the Commission has treated the powers of customs officers as being within its terms of reference and the powers of all other federal officers, apart from members of the Australia Police, as being outside them. Our recommendations so far as the search and seizure powers of customs officers are concerned are relatively straightforward. First, all references to general warrants should be repealed. They should be replaced by a power to search with a warrant obtained from a magistrate, and without warrant in circumstances of compelling need for immediate action, the power in both respects running parallel with that available to members of the Australia Police. In the particular white-collar- crime context of revenue frauds, there should be a specific power to search for and copy documents pursuant to warrant, similar to that contained in cl.263 (4) of the Corporations and Securities Industry Bill 1975.

Secondly, there are certain existing powers of search without warrant conferred by the Customs Act 1901-1974 which are perfectly appropriate in a border situation but which in terms are not so limited. The Commission's recommendation here is that the power to detain and search suspected persons, or vehicles, should be restricted in its application to 'customs areas', which would be defined to include ports, wharves, dock-side warehouses, customs halls, airport aprons and their environs. There may be a case, so far as personal searches within customs areas are concerned, for slightly extending the permissable scope of personal searches beyond the limits we specified in our discussion of this above. It may, for example, be not unreasonable to permit customs officers to engage, where they have reasonable grounds for suspicion, in a complete external search of the person of a suspect without calling in aid a medical practitioner. However we certainly could not countenance customs officers themselves engaging in any search of body cavities. Such a procedure should be carried out in the same way as has been recommended for police medical examinations above. So far as the general supervision of personal searches by customs officers is concerned , the present provision in s.196 of the Customs Act whereby a suspected person may require to be taken before a justice or the collector before he is searched should be amended by confirming the review power to a justice and requiring that the person be notified of his right of access to a justice before any such search is undertaken.

Paragraph 208 of the report then went on to refer to the third way in which Customs powers should be amended. I do not intend to read that paragraph because what I have done is to indicate that the view I am putting regarding the general operation of Customs, which was put forward by the Law Reform Commission in its criminal investigation report, is that the law in relation to the administration of Customs should be more limited and stronger in its requirement for the issue of a warrant. If that is so, how much stronger the argument is that in relation to bounties and excises there should be a requirement for the issue of a warrant before the right of entry and search.

I repeat the comments I made previously about the need to preserve some of the basic and fundamental rights in a free society. If it is not good enough for the community to allow the police, in the pursuit of major crime, including murder, a right of entry and search without warrant, then how does one justify the right of entry and search without warrant in the pursuit of the administration of bounty, be the bounty amount relatively large or, as it is in many cases, relatively small? I seek leave to move my amendments together.

Leave granted.


Senator PETER RAE —I move amendments to the Bounty (Electric Motors) Bill 1984 as follows:

(1) Page 2, clause 3, sub-clause (2), line 27, after, 'day' (second occurring), insert 'not later than 16 July 1986'.

(2) Page 16, clause 26, sub-clause (1), line 39, after ' reasonable times', insert ', with the consent of the occupier or in pursuance of a warrant issued under sub-section (1B)'.

(3) Page 17, clause 26, after sub-clause (1), insert the following new sub- clauses:

'(1A) An authorized officer may make application to a Justice for a warrant authorizing the authorized officer to enter the premises to which the application relates.

'(1B) If, on an application under sub-section (1A), the Justice is satisfied, by information on oath or affirmation, that it is reasonably necessary that the authorized officer should have access to the premises to which the application relates, the Justice may grant a warrant authorizing the authorized officer to enter the premises for the purpose of exercising the functions of an authorized officer under this section.

'(1C) A warrant granted under sub-section (1B) shall include-

(a) a statement of the purpose for which the warrant is issued;

(b) a description of the kind of things authorized to be inspected or copied or from which extracts may be taken; and

(c) a date, not being later than one month after the date of issue of the warrant, upon which the warrant ceases to have effect.'.

To the Bounty (Computers) Bill 1984 I move the following amendments:

(1) Page 19, clause 24, sub-clause (1), line 21, after 'reasonable times', insert ', with the consent of the occupier or in pursuance of a warrant issued under sub-section (1B)'.

(2) Page 19, clause 24, after sub-clause (1), insert the following new sub- clauses:

'(1A) An authorized officer may make application to a Justice for a warrant authorizing the authorized officer to enter the premises to which the application relates.

'(1B) If, on an application under sub-section (1A), the Justice is satisfied, by information on oath or affirmation, that it is reasonably necessary that the authorized officer should have access to the premises to which the application relates, the Justice may grant a warrant authorizing the authorized officer to enter the premises for the purpose of exercising the functions of an authorized officer under this section.

'(1C) A warrant granted under sub-section (1B) shall include- (a) a statement of the purpose for which the warrant is issued;

(b) a description of the kind of things authorized to be inspected or copied or from which extracts may be taken; and

(c) a date, not being later than one month after the date of issue of the warrant, upon which the warrant ceases to have effect.'.