Page 2396 - Week 06 - Thursday, 24 June 2010
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That said, there will be two sets of key amendments that I will move later in the debate that will strengthen this legislation and strengthen the ACT’s protection of human rights. I would like to speak to those two sets of amendments now, in the context of this opening comment.
Our first set of amendments relates to the threshold test that must be satisfied before a surveillance device can be authorised for use. I understand the Attorney-General will take the threshold issue to the Standing Committee of Attorneys-General for discussion. I am somewhat disappointed that we are not going to be able to move these amendments through today, as I understand it, but I will outline the purpose of them anyway because I do want to put on the record my amendments and the reasons for them. They are important amendments that relate to the right to be free from arbitrary interference with privacy.
The proposed legislation would allow a surveillance device to be issued on the basis of a reasonable suspicion or belief that a crime is being planned. The police must show that, at the minimum, they are acting on a suspicion, before a judge can issue a warrant. It is an important test because, by its very nature, the surveillance will be highly intrusive and, if the police do their job well, the person being watched will never know.
Clearly, the use of surveillance devices engages the right to privacy as guaranteed by section 12 of our Human Rights Act. At the outset, I should say that the Greens agree with the principle that the invasion is warranted when balanced against the need to give police the tools to investigate crime. However, because of the way in which the right to privacy is quietly interfered with, without the knowledge of the person concerned, surveillance should only be authorised where there is strong and reliable evidence that a crime is being planned or about to be committed. Anything less inappropriately interferes with the right to privacy and allows for surveillance to take place based on weak evidence.
This raises the question of what is the most appropriate threshold test for authorising surveillance. The Greens’ position is that a higher threshold than the one proposed is warranted. The appropriate test is that there is a “reasonable belief”. If “suspicion” is retained in the test, this lowers the level of evidence required to support an application.
There is detailed case law to support the threshold that the Greens propose as well as the threshold that the government proposes. The debate today in the Assembly will not be advanced by detailed discussion of those various decisions. As is the case with many legal debates, there are valid arguments both ways and we could debate the legal theory for a very long time indeed.
In summary, however, the government cites case law from Europe that has found “suspicion” is a valid basis from which to justify the state’s intrusion on human rights. By contrast, the Greens have relied upon Canadian case law, as well as statute law from the United Kingdom and New Zealand, which all use the higher threshold test when interfering with the right to privacy.
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