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Tuesday, 30 November 2004
Page: 67

Senator GREIG (4:50 PM) —I move Democrat amendment (28):

(28) Clause 35, page 38 (lines 12 and 13), omit “, not being a manner that involves the destruction of that information”.

This amendment applies to the consequential orders that can be made by a judge or AAT member who does not give approval to an emergency authorisation. Clause 35(5) currently provides that a judge or AAT member in those circumstances may order that any information from or relating to the exercise of powers under the emergency authorisation be dealt with in a specific manner, not being a manner that involves the destruction of that information. It is important to remember that we are talking about information obtained from the use of a surveillance device which has not been approved by a judge or AAT member—in other words, the judge or AAT member has concluded that the situation did not warrant the emergency authorisation.

The emergency authorisation mechanism has been included in the bill to address situations of genuine urgency, not as a general alternative to obtaining a judicial warrant. The requirement for emergency authorisations to be subsequently approved by a judge or AAT member is a vital safeguard against any potential abuse of this power. We Democrats feel that, where evidence has been obtained pursuant to an emergency authorisation which has not been approved, a judge or AAT member should have the discretion to order that the evidence be destroyed. It is highly unlikely that such evidence would be admissible in any criminal proceedings, and in that case there is a strong argument that the wrongfully obtained evidence should be destroyed. Our amendment does not require the evidence to be destroyed. However, it does give the judge or AAT member the discretion to order the destruction of material, if that is appropriate in the circumstances. This was an issue that was expressly referred to in the discussion paper produced by the joint working group, which was established by the Standing Committee of Attorneys-General and the Australasian Police Ministers Council to prepare model legislation.

The joint working group argued that investing a judge or AAT member with the power to order the destruction of records would provide `an additional safeguard if the law enforcement agency obtains material that falls outside the ... approval.' For that reason we Democrats believe that this amendment is an important one which should help to guard against the use of wrongfully obtained evidence. It is consistent with the views of the joint working group and for those reasons I think the committee should give it consideration.