Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)Schedule 5 - Listening device warrants
The purpose of this Schedule is to amend the Customs Act 1901 and the Australian Federal Police Act 1979 to permit the issue of a warrant authorising the use of a listening device in respect of a particular item. Existing provisions in these Acts for the use of listening devices permit a warrant to be sought authorising their use in respect of a particular person or particular premises.
The Supreme Court of Victoria recently held in
R v Nicholas
(Unreported
[2000] VSCA 49
) that a warrant identifying a person only by reference to their anticipated collection of a particular item did not sufficiently identify a particular person, and therefore was not authorised by the Customs Act warrant provisions. The proposed new provisions will redress the effects of this decision by expressly permitting a warrant to be sought authorising the use of a listening device in respect of a particular item.
Australian Federal Police Act 1979
This Item amends subsection 12G(1) to provide that a member of the Australian Federal Police may apply for a warrant authorising the use of a listening device in relation to a particular item. The proposed amendment responds to the decision of the Victorian Court of Criminal Appeal in
R v Nicholas
(Unreported
[2000] VSCA 49
). In that decision, the court held that a warrant describing a person by reference to his or her anticipated collection of a particular item, did not sufficiently describe a particular person, and was therefore not authorised by the relevant warrant provisions contained in the
Customs Act 1901
.
The proposed amendment addresses the similar warrant scheme in the Australian Federal Police Act to ensure that a warrant may be sought authorising the use of a listening device in relation to an item where it is not possible to identify a particular person.
The Item also proposes headings for subsections 12G(1), (2) and (4) to assist with the interpretation and application of the provisions.
This Item proposes new subsections 12G(5A) and (5B) to empower a Judge or nominated AAT member to issue a warrant authorising the use of a listening device to listen to or record words spoken by or to any person while the person is in the vicinity of the item. Proposed paragraph 12G(5A)(b) requires that the Judge or AAT member be satisfied of specified matters (these are the same as those specified in relation to a warrant authorising the use of a listening device in relation to a particular person or premises, save one additional matter).
Proposed subparagraph 12G(5A)(b)(iv) requires the Judge or AAT member to also be satisfied that some or all of the information sought to be obtained could not appropriately be obtained by using a listening device authorised to be used in respect of a particular person or premises. This additional requirement is intended to ensure that a warrant in respect of a particular item can only be granted where a warrant in relation to a particular person or premises could not be employed to the same effect.
This Item amends subsection 12G(6) to include a reference to the matters to which a Judge or AAT member must have regard in considering an application for a warrant in respect of a particular item. The amendment is consequential to the amendments proposed by Items 1 and 2 empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.
The Item also proposes a heading for subsection 12G(6) to assist with the interpretation and application of the provision.
This Item amends paragraph 12G(6)(b) consequential on the amendments proposed by Items 1 and 2 empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.
This Item amends subsection 12G(7) consequential to the amendments at Items 1 and 2 empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.
The Item also proposes headings for subsections 12G(8), (9), (10) and (11) to assist with the interpretation and application of the provisions.
This Item amends paragraph 12G(7)(a) of the AFP Act. Under subsection 12G(7) of the AFP Act, a Judge or nominated Administrative Appeals Tribunal member is to have regard to certain matters before issuing a listening device. These matters include the impact on a persons privacy in relation to the the person or premises in respect of which the use of the device would be authorised. The proposed amendment clarifies that privacy considerations are to be taken into account where the issuing of a listening device warrant is in respect of an item, as they are in respect of persons and premises.
This Item amends paragraph 12G(7)(c) consequential to the amendments at Items 1 and 2 empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.
This Item amends section 12H consequential to the amendments at Items 1 and 2 empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.
Customs Act 1901
This Item amends section 219B to permit members of the Australian Federal Police and the National Crime Authority to apply for a warrant authorising the use of a listening device in relation to a particular item. The proposed amendment responds to the decision of the Victorian Court of Criminal Appeal in
R v Nicholas
(Unreported
[2000] VSCA 49
). In that decision, the Court held that a warrant describing a person by reference to their anticipated collection of a particular item did not sufficiently describe a particular person, and was therefore not authorised by subsection 219B(5).
This Item proposes new subsections 219B(8A) to (8E) empowering a Judge or nominated AAT member to issue a warrant authorising the use of a listening device to listen to, or record words spoken by or to, any person while the person is in the vicinity of the item. The new subsections replicate the elements of existing subsection 219B(7) and 219B(8). The different drafting style employed as between the existing provisions and the new provisions is not intended to imply any difference in the application or use of the provisions, save to the extent of the inclusion of the requirement at paragraph 219B(8B)(c) that the Judge or AAT member be satisfied that some or all of the information sought to be obtained could not appropriately be obtained by using a listening device authorised to be used in respect of a particular person or premises. This additional paragraph is intended to ensure that a warrant in respect of a particular item can only be granted where a warrant in relation to a particular person or premises could not be employed to the same effect.
This Item also proposes headings for the subsections of section 219B to assist with the interpretation and application of the provision.
This Item amends section 219C consequential to the amendments to section 219B (see Item 8) empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.