Page 2400 - Week 06 - Thursday, 24 June 2010
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judicial officer rules that that emergency authorisation was not warranted, then any evidence gained in the course of that emergency authorisation is not available to the police. So there is a real check in the exercise of these powers. Police can get an emergency authorisation under the terms of the act but if the judicial officer says, “It just does not stack up; you should not have given that authorisation in the first place,” then any evidence obtained is completely unavailable to police. I think this is a very important check and it means the police themselves must exercise a high level of diligence, as we expect they will, in the exercise of these emergency powers.
The rationale for the use of the emergency procedure in these circumstances is that the risk of harm and damage is so great as to justify the use of a device without a court authorisation. Additionally, if an emergency authorisation is given, within two working days after giving an emergency authorisation, an application must be made to a judge for approval of the exercise of powers under the emergency authorisation. That is to say that the judge must ratify the decision made by the Chief Police Officer if the surveillance device is to remain in use.
As I have already indicated, a further safeguard is that, regardless of the method by which a warrant is obtained, the bill provides a broad discretionary power to judicial officers to make an order relation to how the information and records of information are to be dealt with. This broad discretionary power is intended to be used by judicial officers on a case-by-case basis, taking the individual circumstances of the case into account.
The appropriateness of powers included in part 3 of the bill, emergency authorisations, as well as in the model bill, was the subject of detailed consideration by the joint working group on national investigative powers November 2003 report. I agree that the emergency authorisation powers engage the right to privacy. I am of the view, however, that the very limited circumstances where they can be used and the safeguards in place following their use make them proportionate in all the circumstances.
Finally, I consider it is appropriate for the territory to be reluctant to deviate from the model bill in the manner proposed by Mr Rattenbury. As members will no doubt be aware, for a cross-border scheme to effectively operate, the legislation of other jurisdictions must be found to correspond. To deviate from the model bill in the ways that are being suggested would leave the territory out of step with other jurisdictions. The territory would be unable to justify a position where our provisions do not correspond with those of other jurisdictions. The very limited circumstances in which the emergency authorisation provisions operate, together with the safeguards requiring the application by a judicial officer, are, in my view, more than sufficient to meet human rights compatibility while still ensuring a nationally consistent response.
As we have already heard, the joint working group acknowledged that the scheme for the use of surveillance device laws was most likely to attract privacy considerations in implementation. As such, the joint working group gave careful consideration to this issue and, in particular, article 17 of the International Covenant on Civil and Political Rights relating to the right of privacy, which is reflected in section 12 of the ACT’s Human Rights Act. Consequently, a number of important safeguards and
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