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Tuesday, 30 November 2004
Page: 63

Senator LUDWIG (4:32 PM) —As I understand it, Democrat amendment (12) would add two matters to the list of matters that a surveillance device warrant must contain. The first is details of any additional premises such as adjoining premises or those which are contiguous onto which entry may be required to access the premises on which the surveillance device will be used. The second is whether the warrant authorises the use of force. In relation to the first matter, we note that clause 18(2) of the bill provides that a warrant authorises the entry onto specified premises adjoining or providing access to the primary premises and, furthermore, clause 18(5) provides that if the premises belong to a person who is not the subject of the investigation, the eligible authority may not authorise interference with these premises unless satisfied that that is necessary. We think that the provisions in the bill address that first amendment in any event.

In relation to the second matter, we note the bill provides for limited use of force if necessary to enter premises or to install maintenance or retrieve surveillance devices or enhance equipment. It does not authorise force to be applied to a person. That seems to be the import of the statute; the bill seems clear. Indeed, such force would not make sense in a covert surveillance operation or in many other circumstances where there is surveillance. It may of course not be possible for a law enforcement agency or eligible authority to know in advance whether force would be needed to enter a property or install a device. Of course, because of the way legislation is sometimes proposed, that is always difficult to ascertain from an operational sense. Some of the matters, as I think I have alluded to earlier in this debate, go to operational issues. Although I can understand the direction from which the Democrats are coming, it is a matter that has to be left to the law enforcement agencies which have proper protocols and procedures to ensure that they do these things according to the rule book and according to the legislation as well. For those reasons the opposition cannot support the amendment.

In relation to a proposed amendment, we are concerned that a 30-day bar on fresh warrants is arbitrary and that it could in fact prejudice investigations. The bill provides that an eligible authority considering a warrant application must take into account any previous warrants, and we believe this existing provision is appropriate. For those reasons we do not think that amendment is appropriate in this instance. Democrat amendments (20), (21) and (22) are equivalent to amendments (12) and (13) except that they apply to retrieval warrants for retrieving a surveillance device. For the reasons given earlier, we are similarly not prepared to support them. Amendment (26) relates to the emergency authorisation equivalent of earlier amendments relating to warrants and retrieval warrants. For the same reasons I have articulated, we are not minded to support it.

Question negatived.