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Wednesday, 17 April 1985
Page: 1175


Senator GARETH EVANS (Minister for Resources and Energy)(6.16) —by leave-I intend to move, on behalf of the Government, a series of amendments that have been circulated. I do so in order to accommodate the concerns expressed by the Senate Standing Committee for the Scrutiny of Bills. The particular matters in issue relate to the search warrant provisions of the Bill. The legislation, as presently drafted, circulated and dealt with in this House of Representatives gives certain powers of entry, search and seizure to police officers when executing a warrant for the apprehension of a fugitive. If the police officer has reasonable grounds for suspecting that there may be upon any land or upon or in any premises, vessel, aircraft or vehicle evidence in relation to the offences for which extradition has been sought or any property which has been acquired as a result of such offences he may enter that land, premises and so on and search for and seize such evidence. The Senate Committee looked at these provisions as they are now drafted and drew the conclusion that as presently drafted they may trespass unduly on personal rights and liberties. The Committee argued that the right to enter and search buildings and property is usually accompanied by a requirement that a warrant specifically directed to such action be obtained beforehand. The Government has considered this and takes the view that there is merit in the Senate Committee's comments and that that ought to be accommodated in the series of amendments which have been circulated and which I will move.

Clause 37 of the Criminal Investigation Bill 1981, which was in turn based upon the report of the Law Reform Commission of 1975 may, I suppose, be regarded as representing modern thinking in this area. It is the general substance of those provisions in that earlier draft legislative exercise which is incorporated in the amendments which I shall move. The collection of amendments still replace the existing provisions with provisions that a police officer in arresting a fugitive may only search the person and the clothing of the fugitive and property under his immediate control for evidence relevant to the extradition, crimes or property acquired as a result of those crimes. Any such evidence or property discovered may then be seized. The key is that, if there is to be any additional search of land, buildings and so on and any seizure of property or evidence flowing from that, that may only be undertaken pursuant to a warrant properly issued, in accordance with the procedures as set out, by a magistrate. Accordingly, I ask that the group of amendments to accommodate those concerns be accepted by the Committee. I formally move:

(1) page 5, lines 38 to 44, and page 6, lines 1 to 13, clause 9, leave out paragraph (b).

(2) page 6, after clause 9, insert the following new clause:

''9A. After section 14 of the Principal Act the following sections are inserted:

Searches after apprehension

'14A (1) A Police Officer who apprehends a person pursuant to a warrant issued under section 14 may search the person or the clothing that the person is wearing, and any property under the control of the person, if the Police Officer has reasonable grounds for suspecting that there is concealed, on, or in the clothing of, the person or in that property, any article, including a sum of money-

(a) that may be material as evidence in proving an offence to which the requisition for the surrender of the person relates; or

(b) that has been acquired by the person as a result of such an offence.

'(2) Sub-section (1) does not authorize a Police Officer to remove, or to require the person to remove, any of the clothing that the person is wearing.

'(3) A Police Officer may seize any article found as a result of a search in accordance with sub-section (1) and may retain any article so seized pending any direction from the Attorney-General as to the manner in which the article is to be dealt with.

'(4) The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by law.

'(5) In this section, ''Police Officer'' means a member or special member of the Australian Federal Police or a member of the Police Force of a State or Territory.

Search warrants

'14B. (1) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for suspecting that there may be upon any land, or upon or in any premises, vessel, aircraft or vehicle, any article, including a sum of money, that may be material as evidence in proving an offence to which the requisition for the surrender of a person relates or that has been acquired by a person as a result of such an offence, and the information sets out those grounds, the Magistrate may issue a search warrant in accordance with the appropriate form prescribed for the purposes of this sub-section authorizing a Police Officer named in the warrant, with such assistance as the Police Officer thinks necessary, and if necessary by force-

(a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle;

(b) to search the land, premises, vessel, aircraft or vehicle for any such article; and

(c) to seize any such article found upon the land or upon or in the premises, vessel, aircraft or vehicle.

'(2) A Magistrate shall not issue a warrant under sub-section (1) unless-

(a) the informant or some other person has given to the Magistrate, either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and

(b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.

'(3) There shall be stated in a warrant issued under this section-

(a) a statement of the purpose for which the warrant is issued, which shall include a reference to the nature of the offence in relation to which the entry and search are authorized;

(b) whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night;

(c) a description of the kind of articles authorized to be seized; and

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

'(4) If, in the course of searching in accordance with a warrant issued under this section, for an article, including a sum of money, that may be material as evidence in proving an offence or has been acquired as a result of an offence, being an article of a kind specified in the warrant, a Police Officer finds any article, including a sum of money, that the Police Officer believes on reasonable grounds to be connected with the offence, although not of a kind specified in the warrant, and the Police Officer believes on reasonable grounds that it is necessary to seize that article in order to prevent its concealment, loss or destruction, the warrant shall be deemed to authorize the Police Officer to seize the article.

'(5) Where a Police Officer seizes an article found as a result of a search in accordance with this section, the Police Officer may retain the article pending any direction from the Attorney-General as to the manner in which the article is to be dealt with.

'(6) In this section, ''Police Officer'' has the same meaning as in section 14A.'.''.

(3) Page 12, lines 4 to 22, clause 16, leave out the clause, insert the following clause:

''16. After section 25 of the Principal Act the following sections are inserted:

Searches after apprehension

'25A. (1) A Police Officer who apprehends a person pursuant to a warrant issued under section 24 or 25 may search the person or the clothing that the person is wearing, and any property under the control of the person, if the Police Officer has reasonable grounds for suspecting that there is concealed, on, or in the clothing of, the person or in that property, any article, including a sum of money-

(a) that may be material as evidence in proving an offence in respect of which the warrant was issued; or

(b) that has been acquired by the person as a result of such an offence.

'(2) Sub-section (1) does not authorize a Police Officer to remove, or to require the person to remove, any of the clothing that the person is wearing.

'(3) A Police Officer may seize any article found as a result of a search in accordance with sub-section (1) and may retain any article so seized pending any direction from the Attorney-General as to the manner in which the article is to be dealt with.

'(4) The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by law.

'(5) In this section, ''Police Officer'' means a member or special member of the Australian Federal Police or a member of the Police Force of a State or Territory.

Search warrants

'25B. (1) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for suspecting that there may be upon any land, or upon or in any premises, vessel, aircraft or vehicle, any article, including a sum of money, that may be material as evidence in proving an offence in respect of which a warrant for the apprehension of a person was issued under section 24 or 25 or that has been acquired by a person as a result of such an offence, and the information sets out those grounds, the Magistrate may issue a search warrant in accordance with the appropriate form prescribed for the purposes of this sub-section authorizing a Police Officer named in the warrant, with such assistance as the Police Officer thinks necessary, and if necessary by force-

(a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle;

(b) to search the land, premises, vessel, aircraft or vehicle for any such article; and

(c) to seize any such article found upon the land or upon or in the premises, vessel, aircraft or vehicle.

'(2) A Magistrate shall not issue a warrant under sub-section (1) unless-

(a) the informant or some other person has given to the Magistrate, either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and

(b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.

'(3) There shall be stated in a warrant issued under this section-

(a) a statement of the purpose for which the warrant is issued, which shall include a reference to the nature of the offence in relation to which the entry and search are authorized;

(b) whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night;

(c) a description of the kind of articles authorized to be seized; and

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

'(4) If, in the course of searching in accordance with a warrant issued under this section, for an article, including a sum of money, that may be material as evidence in proving an offence or has been acquired as a result of an offence, being an article of a kind specified in the warrant, a Police Officer finds any article, including a sum of money, that the Police Officer believes on reasonable grounds to be connected with the offence, although not of a kind specified in the warrant, and the Police Officer believes on reasonable grounds that it is necessary to seize that article in order to prevent its concealment, loss or destruction, the warrant shall be deemed to authorize the Police Officer to seize that article.

'(5) Where a Police Officer seizes an article found as a result of a search in accordance with this section, the Police Officer may retain the article pending any direction from the Attorney-General as to the manner in which the article is to be dealt with.

'(6) In this section, ''Police Officer'' has the same meaning as in section 25A.'.''.

Amendments agreed to.

Bill, as amended, agreed to.

EXTRADITION (FOREIGN STATES) AMENDMENT BILL 1985

The Bill.