Page 2393 - Week 06 - Thursday, 24 June 2010
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On that simple analysis, inclusion of both would seem redundant. However, in either case, the issue is mitigated somewhat by the requirement that the officer demonstrate sufficient “reasonable grounds”. Further, the judicial officer would be required to be satisfied as to those “reasonable grounds”. Nonetheless, I acknowledge that a judicial officer would expect stronger grounds for a belief than for a suspicion.
Above that is the fact that the ACT is a human rights jurisdiction. This would suggest that the judicial officer considering a warrant application would need to consider the arguments for reasonable grounds in the light of that act. This in itself would raise the bar as to the reasonable grounds of suspicion. Indeed, the role of the Human Rights Act in the judicial officer’s assessment of a warrant application made on reasonable grounds of suspicion might well suggest that it should be made using a threshold somewhat higher than that of suspicion generally understood in jurisprudence.
This in itself might suggest that the inclusion of both terms in the threshold marker might in fact be justified as being an indicator of the range in which a judicial assessment can be made. The important thing here is that for this cross-jurisdictional cooperation to fight serious organised crime, there should be consistency in inter-jurisdictional legislation.
I noted earlier that the New South Wales legislation carries the threshold of “suspects or believes” and that the commonwealth carries “suspects” only. The Victorian legislation mirrors that in New South Wales in this aspect. Leaving aside the fact that the ACT is a human rights jurisdiction, I consider that the ACT’s legislation should, as far as possible, be consistent with similar interstate legislation.
For this reason, and subject to the caveat that I will be proposing an amendment to correct what appears to be a drafting inconsistency in this bill, I am happy that the drafted threshold sets suitable markers. Accordingly, the Canberra Liberals will not be supporting the amendments proposed by the Greens on this subject. Nonetheless, I have spoken with and written to the Attorney-General to ask him to take to SCAG the concerns about this that have been expressed so widely and will continue to be so expressed during this debate.
Clearly, national consistency as to an appropriate “reasonable grounds” threshold is necessary. This is demonstrated by international jurisprudence and the risk that the resultant interpretive variations can confuse the practical application of the law. Even the inconsistency that exists currently between the commonwealth legislation and that of the states and territories which I have identified earlier may create confusion, and this should be addressed.
This leads me to the apparent drafting inconsistency in the bill. The bill provides that an application can be made on reasonable grounds of suspicion, but the judicial officer considering the application must be satisfied that there are reasonable grounds for “suspicion or belief”. This inconsistency continues because, contrary to applications for warrants, applications for retrieval of warrants and for warrant extensions must be made on reasonable grounds of suspicion or belief with a corresponding test to be applied by the assessing judicial officer.
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