Page 2392 - Week 06 - Thursday, 24 June 2010
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and their duration is limited to a maximum of 90 days. Extension applications are permitted, which can be done more than once. Applications may only be made in relation to offences that attract imprisonment of three years or more. Emergency authorisations in limited circumstances can be given by the Chief Police Officer, by delegation to the Deputy Police Chief Officer or by certain other officers in the Australian Crime Commission.
There are offences for communicating or publishing information collected by surveillance devices except as authorised under the law. There are strict conditional, compliance, monitoring, accountability and reporting provisions, including giving the Ombudsman independent oversight and requiring enforcement agencies to report annually to the Attorney-General. In turn, the attorney is required to report to the Assembly. This is similar to requirements under the assumed identities legislation which the Assembly passed last year. The bill also contemplates the Australian Crime Commission, which will be able to operate in the ACT under both ACT and commonwealth law in national investigations.
Finally, the bill gives the court the discretion to admit or exclude evidence. The surveillance devices bill engages the Human Rights Act. The explanatory statement and the attorney’s presentation speech addressed this issue in some detail. Both the Human Rights and Discrimination Commissioner and Civil Liberties Australia have been prominent in the discussion on this issue.
The scrutiny of bills committee gave a preliminary but quite detailed assessment of the bill in its report No 20 of 15 March 2010, to which the Attorney-General has responded. A week later, in report No 21 of 22 March, the committee adopted the preliminary report and added further comments, including a response to the submission made by Civil Liberties Australia. Report 21 called on the Attorney-General to justify to the Assembly the emergency authorisations provisions on human rights grounds.
The Attorney-General provided a quite detailed response to the committee’s and the CLA’s comments, in addition to advising the committee of a response to a letter he had received from Mr Rattenbury, and I thank Mr Rattenbury for sharing with me his copy of this correspondence. Boiling it all down, there are two main issues of concern. The first is on the question of whether, in applying for a warrant, the required threshold of “suspects on reasonable grounds” is too low.
In some international jurisdictions, the threshold is set higher, at “suspects or believes on reasonable grounds” or even “believes on reasonable grounds”—that is, by excluding the word “suspects”—and therefore raising the bar. There is complex international jurisprudence about this issue. New South Wales legislation sets the threshold at “suspects” or “believes” and the commonwealth sets what could be considered a lower threshold of “suspects”.
One concern I have is in relation to the inclusion of both terms—that is, suspicion and belief—in the one threshold. My concern is supported by some of the commentary I have reviewed. This commentary suggests that if the two thresholds are in the one marker, it is probable that any officer applying for a warrant would approach the application from the lower point—that is, suspicion rather than belief.
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