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Tuesday, 30 November 2004
Page: 63


Senator ELLISON (Minister for Justice and Customs) (4:29 PM) —The government's position is that it opposes these amendments on the basis that the provisions that are proposed by the Democrats would make it impossible for law enforcement to carry out their duties under this legislation and other legislation. At present the warrant which authorises entry onto specified premises may also authorise entry to adjoining premises for the purpose of access to those premises. In this case the adjoining premises must be specified in the warrant. I refer to clause 18(2)(a)(ii). Democrat amendment (12) appears to be confined to warrants relating to premises but amendment (13) makes it clear that this amendment must also be intended to apply to warrants in relation to object and persons, even though no amendments to clauses 18(2)(b)(ii) and 18(2)(c)(ii) have been proposed. Democrat amendment (13) precludes entry onto premises unless this is specifically authorised by the warrant and the use of force is specifically authorised. It would appear that this amendment would contradict the statutory authority afforded in clauses 18(2)(b) and 18(2)(c). In the case of warrants relating to specified persons or objects, it would not usually be known which premises it would be necessary to enter to execute a warrant—that is, it is quite often the case that law enforcement officers will be presented with a situation on their arrival where flexibility is needed for them in order to carry out their relevant duties.

If this amendment were accepted, law enforcement officers would be unable to execute the warrant because the premises on which a vehicle, for instance, was sitting would not be specified in the warrant even though that vehicle was just one metre from the public footpath. To preserve flexibility the government believes that law enforcement officers must have reasonable powers of entry subject to the constraints imposed by the warrant. In relation to the use of force, a warrant at present allows the use of force if necessary to gain entry onto any premises on which entry is permitted. The reference to `if necessary' ensures that any use of force is proportional and constrained by the purposes of the warrant. It will, however, not usually be possible to know ahead of time whether force will be needed to gain entry. Again, this is another of those situations where law enforcement is presented with a set of circumstances upon its arrival. It is something that you cannot ascertain without signalling your shots and, in fact, alerting those people under investigation to what is happening. The government believes therefore that if these amendments were to be adopted, it would make the situation unworkable for law enforcement. I can see the reason the Democrats propose them but, at the end of the day, the government opposes these amendments for the stated reasons.