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:

  1. It is not clear that there is sufficient evidence to justify these extraordinary additional powers.

  2. The delayed notification scheme disproportionately impacts a person’s right to privacy and home.

  3. 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.

  4. 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:

  1. there is a legitimate purpose; and

  2. 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].
6Ibid, 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.