Submission: Covert Search Warrants (2009)
Legal
Covert Search Warrants
18 March 2009
Our Ref: HRU
18 March 2009
The Hon John Hatzistergos
MP
Attorney-General
Parliament House,
Macquarie Street,
Sydney NSW
2000
And by email: office@hatzistergos.minister.nsw.gov.au
The Hon Mr Greg Smith MP
Shadow Attorney-General
Suite 303,
Level 3,
51 Rawson Street,
EPPING NSW 2121
And by email: epping@parliament.nsw.gov.au
Dear Sirs,
Covert Search Warrants
I write to express the Australian Human Rights Commission’s concern
with the Law Enforcement (Powers and Responsibilities) Amendment (Search Powers)
Bill 2009 (NSW) (the Bill). The Bill, if enacted, would significantly extend the
power of police to conduct covert searches.
The Commission understands that the Bill is before the Legislative Council
next week. The Commission has not had time to prepare detailed submissions on
the Bill but wishes to provide you with the following summary submissions.
The Commission recommends against the passing of this Bill. The Commission
believes that the Bill fails properly to balance the legitimate interests of the
state in preventing crime and the human rights of people in NSW to be free from
arbitrary interferences with their privacy and home.
Alternatively, if the Bill is to be passed, the Commission urges Parliament
to give consideration to amending the Bill to reflect the concerns set out
below.
The Commission has 4 major concerns with the Bill:
-
It is not clear that there is sufficient evidence to justify these
extraordinary additional powers. -
The delayed notification scheme disproportionately impacts a person’s
right to privacy and home. -
The grounds for applying and granting covert search warrants have been
drafted so broadly as to give rise to the potential for arbitrary interference
with privacy and home. -
The safeguards contained within the Bill are insufficient and in particular
may diminish the capacity for appropriate judicial
oversight.
Background
The Bill seeks to authorise the issuing of entry and search warrants that are
intended to be executed without the occupier’s knowledge (covert search
warrants). A covert search warrant will authorise the entry and search of a
premises, using such force as is
necessary,[1] to seize,
substitute,[2] copy, photograph and
record things. Covert search warrants will also authorise the impersonation of
another person, as well as the doing of anything reasonable for the purposes of
concealment.[3] Under proposed s 75A
(1)(c), computers and similar devices may be removed for up to 7 working days,
or longer on application, for examination.
The covert search warrants will be available to investigate indictable crimes
carrying a sentence of 7 years imprisonment or more that involve certain
offences such as the destruction of property, violence causing grievous bodily
harm, organised theft, or the possession, manufacture or cultivation of drugs or
prohibited plants such as
cannabis.[4]
The right to privacy and home
Article 17 of the ICCPR prohibits both unlawful and arbitrary interferences
with (amongst other things) a person’s privacy and home. Every invasion of
the ‘home’ that occurs without the consent of the individual
affected represents interference.[5] ‘Home’ includes the place where a person resides or carries out his
or her usual occupation regardless of legal title.
Covert search warrants that authorise the entry and search of peoples’
homes without their knowledge necessarily interfere with the right to privacy
and home. The Commission agrees that the investigation and detection of serious
crime is a legitimate purpose for which an individual’s right to privacy
and home might be impinged upon. However, it is necessary that any interference
is justified and proportionate to avoid arbitrariness.
For example, in the case of Rojas Garc`a v
Colombia,[7] the UN Human Rights
Committee found that an intrusion with the right to the home under Article 17 of
the ICCPR was arbitrary even if it was in accordance with domestic law where the
need for the intrusion into privacy was not justified.
Lack of evidence justifying the need for covert search warrants
The Commission is concerned that extraordinary police powers, so far existing
only under the Terrorism (Police Powers) Act 2002 (NSW) (NSW Terrorism
Act), are being extended into the investigation of other types of crime without
a solid evidentiary basis being demonstrated. The Commission calls upon
Parliament to consider whether the additional powers contained within the Bill
are necessary and whether there are less restrictive means for achieving the
same benefits to the investigation of crime.
It is unclear what evidence the government has relied upon in justifying the
need for extending the powers available for search warrants under the Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW). In the Agreement
in Principle Speech by the Member for Miranda, the risk of premature
notification spoiling investigations was cited as the chief reason for
introducing covert search warrants. No examples of concrete cases where the
existing scheme had led to such failures were provided; only one hypothetical
example was used. Further, certain offences giving rise to the issue of covert
search warrants are not likely to involve lengthy organisation or preparatory
processes. It is therefore unclear why covert warrants would be necessary for
the investigation and prosecution of such offences. Examples include violence
causing grievous bodily harm and acts of sexual
assault.[8] The definition of
‘serious offences’ should be amended to ensure there is also an
element of organisation, long-term planning or lengthy preparation or
manufacturing involved in the commission of the crime.
Although the proposed powers are said to be based on existing Commonwealth
provisions, the Commonwealth has not enacted a similar scheme. The powers
proposed by the Bill go far beyond the powers available to the police under the Crimes Act 1914.
The search warrants scheme under the Crimes Act 1914 (Cth) includes
specific rights for occupiers subject to entry and search warrants. These
include the right to be given details of the
warrant,[9] the right to be
present,[10] and the right to receipts
for things seized.[11] While a
lapsed Commonwealth Bill[12] contained a scheme for ‘delayed notification warrants’ in relation
to offences punishable by 10 years imprisonment, that Bill was not enacted.
Significantly, the safeguards available in that scheme were superior to those
contained within this Bill. These are discussed further below.
Search of homes without the occupier’s knowledge
The European Court of Human Rights has stressed the importance of ensuring
that people are given enough information about searches of their homes to
‘enable them to identify, prevent and challenge any
abuse’.[13] Denial of the
ability to challenge abuse may lead to a finding of disproportionality between
the legitimate aims pursued by the searches and the means deployed to achieve
that aim.
Under proposed section 67A, notice of execution of the warrant on the
occupier may be postponed for a potential total period of up to 3 years if the
issuing judge is satisfied that there are reasonable grounds for the
postponement. There must be exceptional grounds to justify a postponement of
notice longer than 18 months.[14]
Covert search warrants will also authorise the covert entry into adjoining
premises[15] and notice to the
occupier of the adjoining premises may be dispensed with altogether by the
eligible judge issuing the covert search
warrant.[16]
The Commission is concerned that the delayed notification will mean
individuals whose houses have been searched will not be able to challenge
searches that are unreasonable, not based on proper grounds, or are
excessive[17] – because, in
some cases, they will not know that a search has occurred for 3 years. This is
particularly important given some or all of the individuals residing in the
premises may not be involved in any criminal activity.
Should the Bill proceed through Parliament, the Commission recommends that
notice be given to the occupier of the subject premises within 6 months, unless
there are exceptional grounds for justifying a postponement for a longer period,
up to a total of 12 months.
The Commission is also concerned that schedule 2 of the Bill proposes to
dispense with the need to keep receipts of thing seized in the case of covert
search warrants. In the case of delayed notice, it is even more important than
in other cases that detailed records are kept and made available to individuals
so that they can monitor the scope of the search when they eventually learn of
it. The Commission notes that the model proposed by the lapsed Commonwealth Bill
expressly required the occupier’s notice to include a description of all
things seized.[18] The Commission
recommends that similar amendments be made to the present Bill should it proceed
through Parliament.
Broad grounds for applying for and granting covert search warrants
Covert searches will not be a proportionate interference with the right to
privacy and home if the information that is sought could reasonably be obtained
by less intrusive means.[19]
Should Parliament proceed with the Bill, the Commission recommends that the
Bill be amended to ensure the powers are available only where:
-
there is a legitimate purpose; and
-
there are no other less restrictive means of achieving the same end.
Under proposed s 62(1)(b), the application must address particulars
of the grounds on which the application is being based, including (without
limitation) the nature of the searchable offence or other offence involved. The
Commission considers that s62(1)(b) should be amended so that applications
specifically include the reasons why a search must be carried out covertly. This
should include canvassing other less restrictive means and why these would not
be suitable in the particular circumstances of the case.
Further, under proposed s63(1A), it will be an offence knowingly to give
false and misleading information when making an application. However, this
threshold is quite high given the low evidentiary burden required to ground an
application. The Commission supports the Legislation Review Committee’s
recommendation that a penalty for being reckless or negligent regarding the
truthfulness or accuracy of the information given be included in the
scheme.[20]
Under the provisions of the Bill, to apply for a covert search warrant an
applicant need only:
- ‘suspect on reasonable grounds’ that there, or within 10 days
will be, in or on the premises a thing of a kind connected with the offence. - Consider that it is necessary for the entry and search of those premises to
be conducted without the knowledge of any occupier of the
premises.[21]
Given the
extraordinary nature of the powers, the Commission considers these criteria
should be tightened so that an officer must not merely suspect but must have a
‘reasonable belief’ that there will be a thing of the kind connected
with the offence in or on the premises. Further, the following additional
criteria should be included:
- evidence that one or more relevant offences have been, are being, are about
to be or are likely to be committed; - that the sight or retrieval of the thing should substantially assist the
investigation of the crime.
These additional criteria were used in
the model proposed by the lapsed Commonwealth
Bill.[22]
Under proposed s62(4), the issuing judge must consider a range of matters
when determining whether there are reasonable grounds to issue a covert search
warrant. These include:
- the extent to which it is necessary for the entry and search of those
premises to be conducted without the knowledge of any occupier of the
premises; - the nature and gravity of the searchable offence in respect of which the
application is made; and - the extent to which the privacy of a person who is not believed to be
knowingly concerned in the commission of the searchable offence is likely to be
affected if the warrant is issued.
If Parliament proceeds with the
Bill, the Commission strongly urges that proposed s 62 be amended to ensure
that an issuing judge:
- is satisfied that the information could not be obtained through alternative
less restrictive means. - is satisfied that the exercise of the powers under the warrant will assist
the prevention of, or investigation into, the relevant offences to which the
application for the warrant relates. - is satisfied that there is no practicable way to enter the subject premises
or conceal the investigation without entering the adjoining premises. - considers the outcome of any previous application for a covert search
warrant in respect of the subject premises. - is satisfied that there is likely to be a thing of the kind connected with
the offence in or at the subject premises
Except for the criteria in
relation to adjoining premises, additional criteria similar to these were used
in the model proposed by the lapsed Commonwealth Bill. Further under the
proposed Commonwealth scheme, eligible judges must record in the warrant that he
or she is satisfied as to the matters to be made out in the application and has
had regard to the matters that must be considered when determining whether to
grant the warrant.[23] A similar
requirement should be included in this Bill should it proceed.
Oversight of the scheme
If Parliament does enact the Bill, it is essential that the safeguards in
place are effective in limiting intrusions on a person’s right to privacy
and the home. The Commission notes that the Bill provides some safeguards,
including:
- reporting to the issuing officer within 10 days after the execution of the
warrant or the expiry of the
warrant;[24] - annual reporting by the Ombudsman and the relevant agencies on the operation
of the Act and exercise of the powers
respectively;[25] and - limiting the ability to apply for a covert search warrant to authorised
police officers with the rank of Superintendent or above or authorised personnel
from the Police Integrity Commission or the New South Wales
Commission.[26]
In
relation to these safeguards, the Commission notes that the model proposed by
the Commonwealth Bill included the additional safeguard of keeping a register of
delayed notification warrants.[27] The Commission recommends that such a register be kept under the scheme proposed
by the Bill. Similar to the scheme proposed by the Commonwealth Bill, this
register could be inspected by the Ombudsman required to report on compliance
with the provisions every 6
months.[28]
A key plank of the safeguards offered by the Bill is the oversight by the
judiciary, including that an issuing judge must consider the privacy of innocent
persons when determining whether to grant or refuse the covert search warrant.
In relation to this safeguard, the Commission believes that the scheme proposed
by the Bill may undermine the capacity for independent oversight by the
judiciary in at least three ways.
First, proposed s 65(1A) requires issuing judges to record instances when he
or she refuses to issue covert search warrants, including ‘all relevant
particulars of the grounds the eligible issuing officer has relied on to justify the refusal to issue the warrant’ (emphasis added).
The Commission is concerned that the wording of this provision suggests that
warrants should be granted unless circumstances exist which justify refusal.
This is not consistent with the scheme of the Bill which requires judges to be
satisfied that reasonable grounds exist for issuing a covert warrant.
Second, proposed s 46B(6) expressly permits the Attorney-General to amend or
revoke a declaration that a Supreme Court judge is an ‘eligible
judge’ for the purposes of issuing covert search warrants. The Commission
believes that revocation of a declaration should only be possible where a Judge
has withdrawn his or her consent under s 46B as there would otherwise be
potential for interference with the independence of the judiciary in its role of
overseeing the exercise of these extraordinary powers.
Third, under proposed s 62(6), an applicant is not required to disclose the
identity of a person from whom information was obtained if the applicant is
satisfied that to do so might jeopardize the safety of the person. This may make
it difficult for Judges to assess the reliability of the information. Given that
the information will only be disclosed to an eligible judge in private
hearings,[29] the need for this
precaution is unclear.
Together these provisions may diminish the capacity of Judges effectively to
oversee the scheme and weaken the level of oversight offered by the Bill. This
heightens the potential for arbitrary interference with the right to privacy and
home.
Conclusion
The Commission is concerned that there does not appear to be sufficient
evidence to justify the expansion of police powers as provided for by the Bill.
It is also concerned that the safeguards included in the Bill are inadequate and
may prove ineffective to guard against arbitrary interferences with the right to
privacy and home.
For these reasons, the Commission strongly urges the Parliament to reconsider
the merits of this Bill.
Should the Bill proceed, the Commission recommends significantly
strengthening the safeguards it contains to ensure any interference with the
right to the home and privacy is justified and proportionate.
Please do not hesitate to contact me or my office should you require further
information or assistance.
Yours sincerely,
Catherine Branson QC
President
[1] Section 70 of the principal
Act.
[2] Proposed s
49(2).
[3] Proposed s 47A(2).
[4] Proposed s 46A.
[5] M Nowak, U.N Covenant on
Civil and Political Rights CCPR Commentary (2nd ed, 2005), p382,
[12].
6 Ibid, p 400,
[43].
[7] No 687/1996, [2.1] and
[10.3.].
[8] See the proposed
definition of ‘serious offence’ in proposed s
46A(2).
[9] Crimes Act 1914 (Cth), s3H.
[10] Crimes Act
1914 (Cth), s3P.
[11] Crimes Act 1914 (Cth),
s3Q.
[12] Crimes Legislation
Amendment (National Investigative Powers and Witness Protection) Bill
2006.
[13] Van Rossem v
Belgium Application no. 41872/98. See English version of registry summary on http://www.echr.coe.int/Eng/Press/2004/Dec/ChamberjudgmentVanRossemvBelgium91204.htm#_ftn2 (viewed 18 March 2009).
[14] See
proposed s 67A(3).
[15] Proposed
s 47A(2)(b).
[16] Proposed s
67B(4).
[17] Trimbole v Onley 56 FLR 321.
[18] Crimes
Legislation Amendment (National Investigative Powers and Witness Protection)
Bill 2006, proposed s3sQ.
[19] See the United Kingdom Government’s human rights analysis of covert
surveillance legislation on http://security.honmeoffice.gov.uk/ripa/legislation/protecting-human-rights/ (viewed 16 March 2009).
[20] Legislative Review Committee’s Digest, No 2 – 10 March 2009,
40.
[21] Proposed s 46C(2)
provides that this is the basis for the authorisation to apply for a covert
search warrant. Proposed s 47 (3)(a) provides that this is the basis for the
application to the eligible Judge for the issue of a covert search warrant.
[22] See proposed s 3SE(1) of
the Crimes Legislation Amendment (National Investigative Powers and Witness
Protection) Bill 2006.
[23] See
proposed s 3SJ of the Crimes Legislation Amendment (National Investigative
Powers and Witness Protection) Bill
2006.
[24] Proposed s 74A.
[25] Amended s 242 of the
Principal Act provides for the Ombudsman to monitor the operation of provisions
of the Act relating to covert search warrants and to make a yearly report to the
Attorney General and the Minister for Police. Proposed s 242A requires the
Commissioner of Police, the Commissioner for the New South Wales Crime
Commission and the Commissioner for the Police Integrity Commission to each
report annually on the exercise of the covert search warrant
powers.
[26] Proposed ss 46C and
47(3).
[27] See proposed s3SW of
the Crimes Legislation Amendment (National Investigative Powers and Witness
Protection) Bill 2006.
[28] See
proposed s3SZF of the Crimes Legislation Amendment (National Investigative
Powers and Witness Protection) Bill 2006.
[29] Proposed s 76B.