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Tuesday, 30 November 2004
Page: 61


Senator BARTLETT (Leader of the Australian Democrats) (4:26 PM) —by leave—I move Democrats amendments (12), (13), (20) to (22) and (26) on sheet 4360:

(12) Clause 17, page 19 (after line 13), after subparagraph (1)(b)(vi), insert:

(via) if the warrant authorises the use of a surveillance device on premises, and access to the premises involves entry onto adjoining or other premises—details of the premises onto which entry is authorised for that purpose; and

(vib) whether the warrant authorises the use of force; and

(13) Clause 18, page 21 (after line 8), after subclause (2), insert:

(2A) For the avoidance of doubt:

(a) a warrant does not authorise entry onto premises unless it specifically authorises entry onto premises and contains details of the premises, or a description of the kind of premises, onto which entry is authorised; and

(b) a warrant does not authorise the use of force unless it specifically authorises the use of force.

(20) Clause 25, page 28 (line 5), at the end of subparagraph (1)(b)(iv), add “, including any adjoining or other premises onto which entry is authorised for the purpose of accessing the premises or object from which the surveillance device is to be retrieved”.

(21) Clause 25, page 28 (after line 5), after subparagraph (1)(b)(iv), insert:

(iva) whether the warrant authorises the use of force; and

(22) Clause 26, page 29 (after line 8), after subclause (1), insert:

(1A) For the avoidance of doubt:

(a) a warrant does not authorise entry onto premises unless it specifically authorises entry onto premises and contains details of the premises, or a description of the kind of premises, onto which entry is authorised; and

(b) a warrant does not authorise the use of force unless it specifically authorises the use of force.

(26) Clause 32, page 34 (after line 3), after subclause (1), insert:

(1A) For the avoidance of doubt:

(a) an emergency authorisation does not authorise entry onto premises unless it specifically authorises entry onto premises and contains details of the premises, or a description of the kind of premises, onto which entry is authorised; and

(b) an emergency authorisation does not authorise the use of force unless it specifically authorises the use of force.

These amendments seek to place some limitations on the use of force and of entry to premises for the purpose of installing, using and maintaining surveillance devices. Like the use of surveillance devices generally, which is highly intrusive, gaining entry to private premises and the use of force are highly intrusive practices. In its current form the Surveillance Devices Bill 2004 provides that a warrant authorises the entry, by force if necessary, to the premises and to other specified premises adjoining or providing access to the premises. In other words, the police—acting under a warrant—are able to forcibly enter the premises of law-abiding Australians simply because those people might live next door to someone who is suspected of a criminal offence. The Democrats believe that the privacy and rights of law-abiding Australians should be protected to the greatest extent possible. The very significant intrusions permitted by this bill are said by the government to be justified by the overriding need to bring to justice those who commit serious criminal offences. Accordingly, in our view the intrusions permitted by the bill should as far as possible be targeted at those who commit such offences.

We believe that issues such as the use of force and entry to premises are issues which a judge or AAT member authorising a warrant should be required to turn his or her mind to. A requirement in the legislation that warrants should expressly authorise the use of force and specify each premises onto which entry is permitted will ensure that judicial officials who grant warrants will need to consider whether in each case the use of force and/or entry to premises is strictly necessary in order to install, use, maintain or retrieve a surveillance device. It may be that in some cases there is a less intrusive means by which the surveillance device can be installed and used, and in those cases the warrant should not authorise the use of force. It is that area that these Democrat amendments seek to address. In summary, they will provide that the use of force and entry to premises are not permitted unless they are expressly authorised in the warrant. In addition, they will put beyond any doubt that all premises to which entry is authorised must be specified in the warrant.