Page 707 - Week 02 - Thursday, 25 February 2010
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I am sure no member of this Assembly would deny that protecting society against crime is an important public interest or that the use of surveillance technology has proven to be an effective tool to detect and prevent serious organised crime. These sentiments are echoed in the final report of the Wood royal commission, which considered that the use of electronic surveillance was the single most important factor in achieving a breakthrough in its investigations.
The use of electronic surveillance can be seen to have a number of advantages, including: obtaining evidence that provided a compelling, incontrovertible and contemporaneous record of criminal activity; the removal of the incentive to engage in process corruption; the opportunity to effect an arrest while a crime is in the planning stage, thereby lessening the risks to lives and property; and overall efficiencies in the investigation of corruption offences and other forms of criminality that are covert, sophisticated and difficult to detect by conventional methods, particularly where those involved are aware of policing methods, are conscious of visual surveillance and employ countersurveillance techniques.
Of course, especially in a human rights jurisdiction such as the ACT, these advantages and police powers must be balanced against the rights of the individual, particularly the right to privacy and the right to a fair trial. Section 13 of the Human Rights Act 2004, which is based on the right to privacy reflected in article 17 of the International Covenant on Civil and Political Rights, states that everyone has the right not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily.
I would like to assure the Assembly that in drafting the model laws the joint working group gave careful consideration to the right to privacy and included a number of important safeguards and accountability measures to ensure the use of surveillance devices is restrained and not abused.
It is not the government’s intention that this bill will authorise law enforcement officers to listen into the private conversations of anyone they feel like. Instead, this bill provides for strict legal and operational control of surveillance devices. This is in keeping with established human rights jurisprudence in this area, an analysis of which is set out in the explanatory statement that accompanies the bill.
A clear example of these controls is the set of criteria which must exist for a law enforcement officer to make an application for a surveillance device warrant. Firstly, the officer must suspect or believe on reasonable grounds that a relevant offence has been, is being, is about to be or is likely to be committed. The bill defines a relevant offence as an offence against an ACT law that is punishable by imprisonment of three years or more, or an offence against an ACT law that is prescribed under regulation. Examples of such offences include serious drug offences, possession of prohibited firearms and administration of justice offences.
The second criterion is that the law enforcement officer must believe or suspect on reasonable grounds that an investigation into an offence is being, will be or is likely to be conducted in the ACT wholly, in the ACT and in one or more participating jurisdictions, or in one or more participating jurisdictions.
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