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CRIMES (SEARCH WARRANTS AND POWERS OF ARREST) AMENDMENT BILL 1993

Order of the day read for the consideration of the bill in committee of

the whole.

In the committee

Explanatory memorandum: The Minister for Family Services (Senator

Crowley) tabled a supplementary explanatory memorandum relating to the

Government amendments to be moved to the bill.

Clauses 1 to 3, taken together by leave, debated and agreed to.

Clause 4--

Senator Spindler moved the following amendment:

Clause 4, page 2, proposed subsection 3C(1), definition of "executing

officer", paragraph (c), lines 24 and 25, omit the paragraph.

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Senator Spindler moved the following amendments together by leave:

Clause 4, page 4, after proposed subsection 3E(3), insert the following

subsection:

""(3A) If the person applying for the warrant suspects that, in

executing the warrant, it will be necessary to make an entry without

announcement the person must state that suspicion and the grounds for

that suspicion, in the information.".

Clause 4, page 4, at end of proposed subsection 3E(4), add the following

word and paragraph:

"; and (g) whether the use of firearms may be necessary".

Clause 4, page 4, at end of proposed subsection 3E(4), add the following

word and paragraph:

"; and (h) whether it may be necessary to make entry without

announcement".

Debate ensued.

Question--That the amendments be agreed to--put and negatived.

Senator Spindler moved the following amendment:

Clause 4, page 4, after proposed subsection 3E(3), insert the following

subsection:

""(3B) If the person applying for the warrant has, at any time

previously, applied for a warrant relating to the same person or

premises the person must state particulars of those applications and

their outcome in the information.".

The Minister for Immigration and Ethnic Affairs (Senator Bolkus) moved

the following amendment to Senator Spindler's proposed amendment:

Proposed subsection 3E(3B), after "warrant" (first occurring), insert

"is a member or special member of the Australian Federal Police and".

Question--That Senator Bolkus' amendment to Senator Spindler's proposed

amendment be agreed to--put and passed.

Debate continued.

Question--That the amendment, as amended, be agreed to--put and passed.

Senator Spindler moved the following amendment:

Clause 4, page 8, after proposed section 3F, insert the following

section:

Execution of warrant to be tape recorded

""3FA. The executing officer must ensure that the execution of the

warrant is tape recorded from the time of entry upon the premises, or

if physical force is necessary to gain entry, from the time such force

is first applied.".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Senator Spindler moved the following amendment:

Clause 4, page 8, after proposed section 3F, insert the following

section:

Comment on things seized

""3FB. At the conclusion of a search, if it is the intention of the

executing officer or a constable assisting to seize any thing, the

executing officer or the constable must, with their consent, take any

person named in the warrant, or the occupier if that person is not

present, to the place where any thing to be seized was found, and

after a caution has been given, invite the person, or occupier, as the

case may be, to comment in respect of the finding of that thing in

that place.".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Senator Spindler moved the following amendment:

Clause 4, page 8, after proposed section 3H, insert the following

section:

Notice to occupier of premises entered pursuant to warrant

""3HA.(1) An issuing officer shall prepare and furnish an occupier's

notice to the person to whom the officer issues a search warrant.

"(2) An occupier's notice furnished in relation to a search warrant:

(a) must be in or to the effect of the prescribed form; and

(b) must specify:

(i) the name of the person who applied for the warrant; and

(ii) the name of the issuing officer who issued the warrant; and

(iii) the date and the time when the warrant was issued; and

(iv) the address or other description of the premises the

subject of the warrant; and

(c) must contain a summary of the nature of the warrant and the

powers conferred by the warrant; and

(d) must contain a clear statement of the occupier's rights under

this Part.

"(3) A person executing a search warrant must:

(a) upon entry into or onto the premises, or as soon as practicable

after that, serve the occupier's notice on a person who appears

to be an occupier of the premises and to be of or above the age

of 18 years; or

(b) if no such person is then present in or on the premises, serve

the occupier's notice on the occupier of the premises, either

personally or in such other manner as the issuing officer may

direct, as soon as practicable after executing the warrant.".

Debate ensued.

Senator Spindler, by leave, withdrew the amendment.

On the motion of Senator Bolkus the following amendment was debated and

agreed to:

Clause 4, page 9, proposed subsection 3K(3), line 27, omit "containing

electronically stored information".

Senator Spindler moved the following amendment:

Clause 4, page 12, after proposed section 3N, insert the following

section:

Receipts of seized things to be provided

""3NA. If a constable seizes any thing under a warrant relating to

premises a receipt must be provided to the occupier prior to the

removal of that thing from the premises, stating:

(i) a full description of the thing seized, including a report

of its condition; and

(ii) the name, rank and station of the constable; and

(iii) the signature of the constable.".

Debate ensued.

Senator Spindler, by leave, withdrew the amendment.

On the motion of Senator Bolkus the following amendment was agreed to:

Clause 4, page 12, after proposed section 3N, insert the following

sections:

Occupier entitled to be present during search

" "3NA.(1) If a warrant in relation to premises is being executed and

the occupier of the premises or another person who apparently

represents the occupier is present at the premises, the person is,

subject to Part 1C, entitled to observe the search being conducted.

"(2) The right to observe the search being conducted ceases if the

person impedes the search.

"(3) This section does not prevent 2 or more areas of the premises

being searched at the same time.

Receipts for things seized under warrant

"3NB.(1) If a thing is seized under a warrant or moved under

subsection 3K(2), the executing officer or a constable assisting must

provide a receipt for the thing.

"(2) If 2 or more things are seized or moved, they may be covered in

the one receipt.".

Senator Spindler moved the following amendment:

Clause 4, page 12, before proposed subsection 3P(1), insert the

following subsection:

""(1A) In this section, "issuing officer" means a magistrate.".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Senator Spindler moved the following amendments together by leave:

Clause 4, page 13, after proposed section 3P, insert the following

section:

Report to issuing officer on execution of warrant etc.

""3PA.(1) The person to whom a search warrant is issued must furnish a

report in writing to the issuing officer who issued the warrant:

(a) stating whether or not the warrant was executed; and

(b) if the warrant was executed--setting out briefly the result of

the execution of the warrant (including a brief description of

anything seized); and

(c) if the warrant was not executed--setting out briefly the reasons

why the warrant was not executed; and

(d) stating whether or not an occupier's notice under section 3HA

has been served in connection with the execution of the warrant;

and

(e) in the case of a telephone search warrant--containing a copy of

the form of search warrant and the form of occupier's notice if

those documents were not furnished to the person; and

(f) containing such other particulars as may be prescribed.

"(2) A report with respect to a search warrant must be made within 10

days after the execution of the warrant or the expiry of the warrant,

whichever first occurs.

"(3) Where the issuing officer who issued a search warrant has died,

has ceased to be an issuing officer or is absent, a report required to

be furnished to that officer under this section is to be furnished

instead to another issuing officer.".

Clause 4, page 13, after proposed section 3P, insert the following

section:

Report to issuing officer on execution of a search warrant

""3PB. A report to an issuing officer under section 3PA of this Part

shall be in or to the effect of the prescribed form.".

Clause 4, page 13, after proposed section 3P, insert the following

section:

Keeping and inspection of records

""3PC.(1) Where a search warrant is issued, the application for the

warrant, a copy of the occupier's notice and the report on the

execution of the warrant under section 3PA must be kept at such

location or locations as are prescribed.

"(2) Any record relating to a search warrant which is kept as

prescribed under subsection (1) may be destroyed at any time after the

expiration of 6 years after the issue of the warrant.

"(3) Any record relating to a search warrant which is kept under

subsection (1) may be inspected by the occupier of the premises to

which the warrant relates, or by some person on behalf of the

occupier, during prescribed hours.

"(4) As far as practicable, but not later than 1 January 1996,

prescribed details of each application for a search warrant under this

Part, each occupier's notice under section 3HA and each report under

3PA are to be electronically recorded in such a way as to make it

possible for issuing officers electronically to access, search and

print out those details when considering whether to issue a search

warrant.

"(5) Electronically recorded details under subsection (4) may be

destroyed at any time after the expiration of 6 years after the issue

of the warrant.".

Debate ensued.

Question--That the amendments be agreed to--put and negatived.

On the motion of Senator Spindler the following amendment was debated

and agreed to:

Clause 4, page 14, proposed subsection 3T(1), lines 32 and 33, omit "an

offence", substitute "an indictable offence".

On the motion of Senator Bolkus the following amendment was agreed to:

Clause 4, page 21, proposed subparagraph 3ZG(1)(f)(ii), lines 29 to 33,

omit the subparagraph, substitute the following subparagraph:

"(ii) must be conducted in the presence of a parent or guardian of

the person being searched or, if that is not acceptable to the

person, in the presence of another person (other than a

constable) who is capable of representing the interests of the

person and who, as far as is practicable in the circumstances,

is acceptable to the person; and".

Senator Spindler moved the following amendments together by leave:

Clause 4, page 22, proposed subsection 3ZH(1), line 20, omit "3ZI and

3ZJ", substitute "3ZHA, 3ZHB, 3ZI and 3ZJ".

Clause 4, page 22, proposed 3ZH(1), after definition of "identification

material", insert the following definition:

"informed consent" has the meaning given in section 3ZHA".

Clause 4, page 22, proposed paragraph 3ZH(3)(a), line 36, omit

"consents", substitute "gives his or her informed consent".

Clause 4, page 23, proposed paragraph 3ZH(9)(a), line 35, omit

"consents", substitute "gives his or her informed consent".

Clause 4, page 24, proposed paragraph 3ZH(9)(b), line 4, omit

"consents", substitute "gives his or her informed consent".

Debate ensued.

Question--That the amendments be agreed to--put and negatived.

On the motion of Senator Bolkus the following amendment was agreed to:

Clause 4, pages 23 and 24, proposed subsections 3ZH(8) and (9), line 26

(page 23) to line 4 (page 24), omit the subsections, substitute the

following subsections:

" "(8) The taking of identification material from a person who:

(a) is under 18; or

(b) is incapable of managing his or her affairs;

must be done in the presence of:

(c) a parent or guardian of the person; or

(d) if the parent or guardian of the person is not acceptable to the

person, another person (other than a constable) who is capable

of representing the interests of the person and who, as far as

is practicable in the circumstances, is acceptable to the

person.

"(9) Despite this section, identification material may be taken from a

person who:

(a) is not a suspect; and

(b) is under 10 or is incapable of managing his or her affairs;

if a court orders that the material be taken.

"(10) Despite this section, identification material may be taken from

a person who:

(a) is not a suspect; and

(b) is at least 10 but under 18; and

(c) is capable of managing his or her affairs;

if one of the following paragraphs applies:

(d) the person agrees in writing to the taking of the material and a

parent or guardian of the person also agrees in writing or, if a

parent or guardian is not acceptable to the person, another

person (other than a constable) who is capable of representing

the interests of the person and who, as far as is practicable in

the circumstances, is acceptable to the person also agrees in

writing;

(e) if:

(i) one of those persons agrees in writing to the taking of the

material but the other does not; and

(ii) a court orders that the material be taken.

"(11) In deciding whether to make such an order, the court must have

regard to the matters set out in subsection (7).

"(12) Despite this section, identification material may be taken from

a person who:

(a) is at least 18; and

(b) is capable of managing his or her affairs; and

(c) is not a suspect;

if the person consents in writing.".

Senator Spindler moved the following amendments together by leave:

Clause 4, page 24, after proposed section 3ZH, insert the following

section:

Meaning of informed consent by a suspect

""3ZHA.(1) A suspect gives informed consent to a request for

identification material if he or she consents to the request after a

constable referred to in subsection 3ZH(3) informs the suspect, in

language likely to be understood by the suspect:

(a) of the purpose for which the material is required; and

(b) of the offence of which the suspect is suspected; and

(c) that the material may be used in evidence in court; and

(d) that the suspect may refuse to give his or her

identificationmaterial.

"(2) Subject to subsection (3), the constable who informs a suspect of

the matters in subsection (1) must:

(a) tape record; or

(b) record in writing signed by the suspect;

the giving of that information and the suspect's responses, if any.

"(3) If a suspect is in custody in relation to an indictable offence,

the giving of information under subsection (1) and the suspect's

responses, if any, must be tape recorded.

"(4) If information and a suspect's responses are tape recorded in

accordance with this section, the constable giving the information

must give or send by post to the suspect or his or her legal

practitioner without charge:

(a) the tape recording or a copy of it within 7 days; and

(b) if a transcript of the tape recording is prepared, a copy of the

transcript.

"(5) If information and a suspect's responses are recorded in writing

in accordance with this section, the constable requesting the

identification material must give or cause to be given to the suspect

a copy of the signed record.".

Clause 4, page 24, after proposed section 3ZH, insert the following

section:

Meaning of informed consent by a person

""3ZHB.(1) A person who is not a suspect gives informed consent to a

request for identification material if he or she consents to the

request after a constable referred to in subsection 3ZH(3) informs the

person, in language likely to be understood by the person:

(a) of the purpose for which the material is required; and

(b) whether the material may be used in evidence in court; and

(c) that the person may refuse to give the material.

"(2) The constable who informs a person of the matters under

subsection (1) must:

(a) tape record; or

(b) record in writing signed by the person;

the giving of that information and the person's responses, if any.

"(3) If information and a person's responses are tape recorded in

accordance with this section, the constable giving the information

must give or send by post to the suspect or his or her legal

practitioner without charge:

(a) the tape recording or a copy of it within 7 days; and

(b) if a transcript of the tape recording is prepared, a copy of the

transcript.

"(4) If information and a person's responses are recorded in writing

in accordance with this section, the constable requesting the

identification material must give or cause to be given to the person a

copy of the signed record.

"(5) In this section, "person" includes a parent, guardian or other

capable person.".

Debate ensued.

Question--That the amendments be agreed to--put and negatived.

Senator Spindler moved the following amendment:

Clause 4, page 24, proposed subsection 3ZI(2), line 22, after "as soon

as practicable", insert "but within one month of the end of the period

in which an appeal may be lodged, or at the conclusion or withdrawal of

the appeal, whichever is the later,".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

On the motion of Senator Bolkus the following amendment was agreed to:

Clause 4, page 25, proposed subsection 3ZK(2), line 10, after

"subsection (3)", insert "and to section 3ZKA".

On the motion of Senator Spindler the following amendment was agreed to:

Clause 4, page 25, proposed subparagraph 3ZK(3)(b)(ii), lines 26 and 27,

omit the subparagraph.

On the motion of Senator Bolkus the following amendment was agreed to:

Clause 4, page 27, proposed subsection 3ZK(7), lines 17 to 20, omit the

subsection, substitute the following subsection:

"(7) The following questions are to be decided according to the common

law:

(a) whether or not evidence of a suspect having refused to take part

in an identification parade is admissible;

(b) if evidence of such a refusal is admissible, what inferences (if

any) may be drawn by a court or jury from the refusal;

(c) whether, after such a refusal, evidence of alternative methods

of identification is admissible.".

On the motion of Senator Bolkus the following amendments, taken together

by leave, were agreed to:

Clause 4, page 25, proposed paragraph 3ZK(3)(c), lines 28 to 30, omit

the paragraph, substitute the following paragraph:

"(c) in addition to any requirement under section 3ZKA, a legal

representative or other person of the suspect's choice may be

present while the person is deciding whether to take part in

the parade, and during the holding of the parade, if

arrangements for that person to be present can be made within a

reasonable time.".

Clause 4, page 27, after proposed section 3ZK, insert the following

section:

Identification parades for suspects under 18 etc.

" "3ZKA.(1) An identification parade must not be held for a suspect

who is under 10.

"(2) An identification parade must not be held for a suspect who is

incapable of managing his or her affairs unless a court orders that it

be held.

"(3) An identification parade must not be held for a suspect who:

(a) is at least 10 but under 18; and

(b) is capable of managing his or her affairs;

unless one of the following paragraphs applies:

(c) the suspect agrees to or requests in writing the holding of the

parade and a parent or guardian of the suspect agrees in writing

to the holding of the parade or, if the parent or guardian is

not acceptable to the suspect, another person (other than a

constable) who is capable of representing the interests of the

suspect and who, as far as is practicable in the circumstances,

is acceptable to the suspect agrees in writing to the holding of

the parade;

(d) if:

(i) one of those persons agrees in writing to the holding of the

parade but the other does not; and

(ii) a court orders that the parade be held.

"(4) In deciding whether to make such an order, the court must have

regard to:

(a) the seriousness of the offence; and

(b) the age or any disability of the person; and

(c) such other matters as the court thinks fit.

"(5) An identification parade for a suspect who is under 18 or is

incapable of managing his or her affairs must be held in the presence

of:

(a) a parent or guardian of the suspect; or

(b) if the parent or guardian is not acceptable to the suspect,

another person (other than a constable) who is capable of

representing the interests of the suspect and who, as far as is

practicable in the circumstances, is acceptable to the

suspect.".

Senator Spindler moved the following amendments, together by leave:

Clause 4, page 27, after paragraph 3ZL(2)(a), insert the following

paragraph:

"(aa) wherever practicable, a video recording must be made of the

constable showing the witness the photographs or pictures;".

Clause 4, page 28, at end of proposed paragraph 3ZL(2)(d), add "but it

must not be such as to suggest that the suspect was in police custody at

the time it was taken".

Debate ensued.

Question--That the amendments be agreed to--put and negatived.

On the motion of Senator Bolkus the following amendments, taken together

by leave, were agreed to:

Clause 4, page 28, proposed paragraph 3ZL(2)(g), lines 18 and 19, omit

the paragraph, substitute the following paragraph:

"(g) the constable must notify the suspect or his or her legal

representative in writing that a copy of the record is

available for the suspect;".

Clause 4, pages 29 and 30, proposed subsection 3ZN(2), line 36 (page 29)

to line 6 (page 30), omit the subsection, substitute the following

subsections:

" "(2) Subject to subsection (3), a constable must, if requested to do

so by a person who has been charged with an offence, provide the

person with the name of every person who, to the knowledge of the

constable, claims to have seen, at or about the time of the commission

of the offence, a person who is suspected of being involved in its

commission.

"(2A) If:

(a) a record of a description of a person is made under subsection

(1); and

(b) the person is charged with an offence to which the description

relates;

a constable must notify the person or his or her legal representative in

writing that a copy of the record, and of any other record of a

description that the constable knows about of a person who is suspected

of being involved in the commission of the offence, is available for the

person.".

Clause 4, page 30, proposed subsection 3ZN(3), line 11, omit "may

provide only the matter referred to in paragraph (2)(b)", substitute "is

not required to provide the name of the person".

Clause 4, page 30, proposed subsection 3ZP(1), line 18, omit "The

executing officer or a constable assisting", substitute "A constable".

Clause 4, page 30, proposed subsection 3ZP(2), line 23, omit "The

executing officer or a constable assisting", substitute "A constable".

Clause 4, page 30, proposed paragraph 3ZP(2)(a), lines 26 and 27, omit

"the executing officer and the constable assisting", substitute "a

constable".

On the motion of Senator Bolkus the following amendment was agreed to:

Clause 4, page 32, proposed subsection 3ZT(3), lines 15 and 16, omit the

subsection, substitute the following subsection:

" "(3) Before making the application, the constable must:

(a) take reasonable steps to discover who has an interest in the

retention of the thing; and

(b) if it is practicable to do so, notify each person who the

constable believes to have such an interest of the proposed

application.".

On the motion of Senator Spindler the following amendment was debated

and agreed to:

Clause 4, page 32, proposed section 3ZV, line 26, omit "including",

substitute "excluding".

Clause 4, as amended, agreed to.

Clauses 5 and 6, taken together by leave, agreed to.

Schedule--

Senator Spindler moved the following amendment:

Schedule, page 33, after amendments to the Commonwealth Places

(Application of Laws) Act 1970, insert the following heading and

amendment:

"Complaints (Australian Federal Police) Act 1981

"After section 31:

Insert the following section:

Compensation for misuse of search warrants and powers of arrest

"31A.(1) Where, after an investigation of a complaint under this Part

has been completed, the Ombudsman is of the opinion that the

complainant has suffered any loss or damage as a result of any failure

to comply with a requirement of Part 1AA of the Crimes Act 1914, the

Ombudsman must:

(a) determine whether, and if so, how much, monetary compensation is

reasonably necessary to remedy the loss or damage; and

(b) report that to the responsible Minister.

"(2) As soon as practicable after receipt of a report, the Minister

must pay the complainant the sum determined by the Ombudsman as if it

were a debt owed by the Commonwealth.'.".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Schedule agreed to.

Title agreed to.

Bill to be reported with amendments.

The Acting Deputy President (Senator Zakharov) resumed the Chair and the

Temporary Chairman of Committees (Senator McGauran) reported

accordingly.

On the motion of Senator Bolkus the report from the committee was

adopted and the bill read a third time.