Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COUNTER-TERRORISM AND OTHER LEGISLATION AMENDMENT BILL 2023
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM
AAT Administrative Appeals Tribunal
AAT Act Administrative Appeals Tribunal Act 1975
ADJR Act Administrative Decisions (Judicial Review) Act 1977
AFP Australian Federal Police
AFP Act Australian Federal Police Act 1979
Bill, the Counter-Terrorism and Other Legislation Amendment Bill
2023
Crimes Act Crimes Act 1914
Criminal Code Criminal Code Act 1995
Evidence Act Evidence Act 1995
Judiciary Act Judiciary Act 1903
Legislation Act Legislation Act 2003
NSI Act National Security Information (Criminal and Civil
Proceedings) Act 2004
Ombudsman Act Ombudsman Act 1976
PJCIS Parliamentary Joint Committee on Intelligence and Security
PJCIS AFP Powers Review Parliamentary Joint Committee on Intelligence and Security,
Review of police powers in relation to terrorism, the control
order regime, the preventative detention order regime and the
continuing detention order regime (Report 2021)
2
AMENDMENTS TO THE COUNTER-TERRORISM AND OTHER LEGISLATION
AMENDMENT BILL 2023
(Government)
GENERAL OUTLINE
1. The purpose of these amendments to the Counter-Terrorism and Other Legislation
Amendment Bill ('the Bill') is to amend the Crimes Act 1914 (Crimes Act) to
establish an administrative scheme which would require a police officer to apply to
an assessment officer for a post-entry warrant as soon as practicable after exercising,
or purporting to exercise, powers under section 3UEA of the Crimes Act (emergency
entry without a warrant).
2. By offering a considered and informed review of subsection 3UEA(1) police powers
by an appropriately skilled assessment officer, post-entry warrants are a critical
safeguard against the inappropriate use or purported use of the emergency powers in
section 3UEA and, in turn, provide confidence to both police and the public that
these powers are being used appropriately. While the scheme does not affect the
validity of the exercise of any powers under subsection 3UEA of the Crimes Act, the
scheme would provide affected individuals with notice that the police may not have
used the powers in accordance with the legislation. It may also better inform law
enforcement agencies about the appropriate use of these emergency powers.
3. These amendments implement Recommendation 6 of the Parliamentary Joint
Committee on Intelligence and Security's Review of police powers in relation to
terrorism, the control order regime, the preventative detention order regime and the
continuing detention order regime (AFP Powers Review).1
FINANCIAL IMPACT
4. The amendments of this Bill would have no financial impact on Government
expenditure or revenue.
1 Parliamentary Joint Committee on Intelligence and Security, Review of police powers in relation to terrorism,
the control order regime, the preventative detention order regime and the continuing detention order regime
(Report 2021) 30.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Counter-Terrorism and Other Legislation Amendment Bill 2023
1. The amendments to the Counter-Terrorism and Other Legislation Amendment Bill
(the Bill) are compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bill
2. The purpose of these amendments to the Counter-Terrorism and Other Legislation
Amendment Bill ('the Bill') is to amend the Crimes Act 1914 (Crimes Act) to
establish an administrative scheme which would require a police officer to apply to
an assessment officer for a post-entry warrant as soon as practicable after exercising,
or purporting to exercise, powers under section 3UEA of the Crimes Act (emergency
entry without a warrant).
3. By offering a considered and informed review of section 3UEA police powers by an
appropriately skilled assessment officer, post-entry warrants are a critical safeguard
against the inappropriate use or purported use of the emergency powers in section
3UEA and, in turn, provide confidence to both police and the public that these
powers are being used appropriately. While the scheme does not affect the validity of
the exercise of any powers under subsection 3UEA of the Crimes Act, the scheme
would provide affected individuals with notice that the police may not have used the
powers in accordance with the legislation. It may also better inform law enforcement
agencies about the appropriate use of these emergency powers.
4. These amendments implement Recommendation 6 of the Parliamentary Joint
Committee on Intelligence and Security's Review of police powers in relation to
terrorism, the control order regime, the preventative detention order regime and the
continuing detention order regime (AFP Powers Review).2
Human rights implications
5. These amendments would engage the following human rights:
• the right to an effective remedy in Article 2(3) of the International Covenant
on Civil and Political Rights (ICCPR), and
• the right to protection from arbitrary and unlawful interferences in Article 17
of the ICCPR.
Right to an effective remedy in Article 2(3) of the ICCPR
6. Article 2(3) of the ICCPR protects the right to an effective remedy for rights and
freedoms recognised by the ICCPR, including the right to have such a remedy
2 Parliamentary Joint Committee on Intelligence and Security, Review of police powers in relation to terrorism,
the control order regime, the preventative detention order regime and the continuing detention order regime
(Report 2021) 30.
4
determined by a competent judicial, administrative or legislative authority, or by any
other competent authority provided for by the legal system of the State.
7. The amendments would establish an administrative review scheme to ensure the
emergency powers in section 3UEA are being exercised appropriately. The
post-entry warrant scheme would promote Article 2(3). While the scheme does not
affect the validity of the exercise of any powers under subsection 3UEA of the
Crimes Act, the scheme would provide affected individuals with notice that the
police may not have used the powers in accordance with the legislation. Further the
scheme requires the assessment officer that has refused to issue a post-entry warrant
to notify affected individuals about any rights they may have to make a complaint to
the Commonwealth Ombudsman or take a civil or other action.
Right to protection from arbitrary and unlawful interferences in Article 17 of the ICCPR
8. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with his or her privacy, family, home or correspondence, nor to
unlawful attacks on his or her honour and reputation, and that everyone has the right
to the protection of the law against such interference or attacks.
9. The amendments would promote the right to protection from arbitrary and unlawful
interference with one's privacy or home, by imposing a positive obligation on a
police officer to make an application for a post-entry warrant where the police officer
has exercised, or purported to exercise, powers under section 3UEA.
10. If an assessment officer refuses to issue a post-entry warrant, the assessment officer
would be required to provide written notice to the owners and/or occupiers affected
by the exercise of the powers. Further, this written notice must also contain
information about any right the person may have to make a complaint to the
Commonwealth Ombudsman under the Ombudsman Act 1976 (Ombudsman Act), or
take civil or other action in relation to the entry to the premises or the exercise of
powers, or purported exercise, of powers under section 3UEA.
5
NOTES ON AMENDMENTS
Amendment 1: Schedule 1, page 3 (line 4) Prescribed security zones and other matters
heading
1. Amendment 1 would omit the heading 'Crimes Act 1914' and substitute with a new
heading 'Part 1 - Prescribed security zones and other matters Crimes Act 1914'.
Amendment 2: Schedule 1, page 6 (after line 10)
Part 2 - Post-entry warrants
Crimes Act 1914
Item 11 - Section 3UA
2. This item would insert a definition of the term 'assessment officer' into section 3UA
of the Crimes Act, and provide that this term has the meaning provided in new
subsection 3UJC(1), explained below.
3. This item would also insert a definition of the term 'nominated AAT member' into
section 3UA of the Crimes Act, and define it as a person in relation to whom a
nomination is in force under section 3UJE.
4. This item would also insert a definition of the term 'post-entry warrant' into
section 3UA of the Crimes Act, and provide that this term has the meaning provided
in new subsection 3UEB(1), explained below.
Item 12 - After section 3UEA
5. Item 12 would, after section 3UEA, insert new section 3UEB into the Crimes Act.
New section 3UEB would establish the new 'post-entry warrant' scheme.
6. New section 3UEB is intended to implement Recommendation 6 of the PJCIS AFP
Powers Review.3 Recommendation 6 recommended that the powers permitting
emergency entry to premises without warrant, in limited circumstances, be amended
to require an ex post facto warrant to be obtained as soon as possible following the
use of the warrantless entry powers.
7. New section 3UEB is intended to strengthen oversight of the exercise of existing
police powers in subsection 3UEA(1) of the Crimes Act. Post-entry warrants would
be a critical safeguard against the inappropriate use, or purported use, of the
emergency powers in subsection 3UEA(1) and, in turn, provide confidence to both
police and the public that these powers are being used appropriately. New section
3UEB would also ensure additional transparency of circumstances where the police
officer may not have used the powers in accordance with the legislation, and that a
person's legal rights may have been infringed, by providing that notice of a decision
must be given to affected individuals, including owner or occupiers of the relevant
3 Parliamentary Joint Committee on Intelligence and Security, Review of police powers in relation to terrorism,
the control order regime, the preventative detention order regime and the continuing detention order regime
(Report 2021) 30.
6
premises. It may also better inform law enforcement agencies about the appropriate
use of these emergency powers.
Requirement to apply for a post-entry warrant
8. New subsection 3UEB(1) would require a police officer who has entered premises
under, or purportedly under, subsection 3UEA(1), to apply for a post-entry warrant in
relation to the exercise of powers under subsection 3UEA(1) of the Crimes Act.
9. New paragraph 3UEB(1)(a) would require the police officer to apply to an assessment
officer for a post-entry warrant in relation to the entry to the premises. It is
appropriate that the police officer who exercised, or purportedly exercised, subsection
3UEA(1) powers would make the application, given the information that must be
provided to the assessment officer in support of their decision to issue a post-entry
warrant (see proposed new subsection 3UEB(2)).
10. New paragraph 3UEB(1)(b) would require that the police officer apply as soon as
practicable after the exercise, or purported exercise, of powers under section 3UEA in
relation to the premises. The requirement for the application to be made 'as soon as
practicable' following the exercise of the powers would balance the need to ensure the
warrant is sought promptly, with the practical challenges of seeking a warrant during
an emergency where there is a serious and imminent threat to a person's life, health or
safety.
11. New subsection 3UEB(2) would stipulate the requirements for an application for a
post-entry warrant. The listed matters would ensure the assessment officer has
information needed, in an appropriate format, to properly consider whether the
emergency powers were appropriately exercised by the police officer.
12. New paragraph 3UEB(2)(a) would require the application to be made in writing. This
requirement would ensure there is a record of the application, and would assist the
assessment officer's due consideration of the application. It is appropriate and feasible
to require the application to be made in writing despite an emergency having given
rise to the purported use of the powers. A police officer is only required to apply for
the warrant 'as soon as practicable' which would provide the police officer with the
flexibility to address any emergency matters and prepare the application thereafter.
13. New paragraph 3UEB(2)(b) would require the application to set out the grounds, and
nature of related matters, on which the police officer held the suspicion in relation to
the requisite matters for the exercise of the emergency powers outlined in
paragraphs 3UEA(1)(a) and (b) of the Crimes Act.
14. In order for the assessment officer to make an informed decision about whether a
warrant should be made in relation to the entry on the premises, it is critical that a
police officer provide information to explain their suspicion that the matter in
paragraphs 3UEA(1)(a) and (b) of the Crimes Act existed. This information would
include, why the police officer suspected it was necessary to search a premises or
seize a thing in order to prevent that thing from being used in connection with a
terrorism offence (see paragraph 3UEA(1)(a)), and why the police officer suspected
there was a serious or imminent threat to a person's life, health or safety (see
paragraph 3UEA(1)(b)).
7
15. New paragraph 3UEB(2)(c) would require the application to state whether the police
officer is:
• a member of the Australian Federal Police (AFP)
(new subparagraph 3UEB(2)(c)(i)),
• a special member as defined in the Australian Federal Police Act 1979 (AFP
Act) (new subparagraph 3UEB(2)(c)(ii)), or
• a member, however described, of a police force of a State or Territory
(new subparagraph 3UEB(2)(c)(iii)).
16. This requirement would enable the assessment officer to confirm that the person was
a police officer within the meaning of section 3UA, and could therefore exercise
powers under section 3UEA. Additionally, this requirement would also assist the
assessment officer to give effect to their obligations to notify either the Commissioner
of the Australian Federal Police (see new paragraph 3UEB(12)(b)) or a Commissioner
of Police of the relevant State or Territory police force (see new paragraph
3UEB(12)(c)) in relation to the decision to issue or not issue a post-entry warrant.
17. For the purposes of new paragraph 3UEB(2)(c)(i), a member of the AFP has the
meaning in the AFP Act. Section 4 of the AFP Act defines a member of the AFP as
the Commissioner of Police, Deputy Commissioner of Police, and an AFP employee
in respect of whom a declaration under section 40B of that Act is in force. Section
40B empowers the Commissioner to declare an AFP employee to be a member of the
AFP if the Commissioner is satisfied that person meets the competency and
qualification requirements set out in section 40C of that Act.
18. For the purposes of new subparagraph 3UEB(2)(c)(ii), a special member has the
meaning given in the AFP Act. A special member is a person appointed under section
40E of that Act, and has powers or duties expressly conferred or imposed by the Act
or instrument of the special member's appointment.
19. The inclusion of 'however described' in new subparagraph 3UEB(2)(c)(iii) is
intended to ensure members of a police force of a State or Territory are captured,
regardless of how legislation of a State or Territory defines a member of the
respective police force.
20. New paragraph 3UEB(2)(d) would require that if the police officer is a member,
however described, of a police force of a State or Territory, that the application
identify the relevant state or territory. This requirement would assist the assessment
officer to confirm the person is a member of a State or Territory police force, and
could therefore exercise powers under section 3UEA. Additionally, it will also assist
the assessment officer to give effect to their notification obligations in accordance
with new subsections 3UEB(10) and (11).
21. New paragraph 3UEB(2)(e) would require the application state the police officer's
name, rank, identification number (however described) and police station (if
applicable and necessary). This requirement would assist the assessment officer in
identifying the police officer, including to meet the notification requirements in
subsections 3UEB(2)(10) and (11). The inclusion of 'if applicable and necessary'
8
recognises that the police officer's station would not be applicable where a police
officer is not stationed at a police station, and may not be necessary to support
identification.
22. New paragraph 3UEB(2)(f) would require the application state the police officer's
contact details. These contact details must include details of how the assessment
officer may give to the police officer any request for information or documents under
subsection 3UEB(4) (new subparagraph 3UEB(2)(f)(i)); and the post-entry warrant or
a notice of refusal to issue the warrant (new subparagraph 3UEB(2)(f)(ii)). This
requirement is intended to facilitate the assessment officer obtaining additional
information and documents efficiently, and to ensure the police officer can be notified
of the post-entry warrant or notice of refusal to issue the warrant in a timely manner.
As this provision is intended to facilitate the transfer of written documents, it would
be appropriate for the contact details to include an email address and/or a postal
address.
23. New paragraph 3UEB(2)(g) would require that if the police officer is a member of the
Australian Federal Police (new subparagraph 3UEB(2)(c)(i)), or a special member
within the meaning of the AFP Act (new subparagraph 3UEB(2)(c)(ii)), the
application must include details of how the assessment officer may give to the
Commissioner the post-entry warrant or a notice of refusal to issue the warrant.
Inclusion of this information in the application would assist the assessment officer to
give effect to their notification obligations in accordance with new subsections
3UEB(10) and (11). The contact details to be included must facilitate the provision of
written documents, and as such, it would be appropriate for the contact details to
include an email address and/or a postal address.
24. New paragraph 3UEB(2)(h) would require that if the police officer is a member,
however described, of a police force of a State or Territory mentioned in
subparagraph 3UEB(2)(c)(iii), the application must include details of how the
assessment officer may give to the Commissioner of Police in the police force of the
relevant State or Territory, or a person holding equivalent rank, the post-entry warrant
or a notice of refusal to issue the warrant. Inclusion of this information in the
application would assist the assessment officer to give effect to their notification
obligations in accordance with new subsections 3UEB(10) and (11). The contact
details to be included must facilitate the provision of written documents, and as such,
it would be appropriate for the contact details to include an email address and/or a
postal address.
25. New paragraph 3UEB(2)(i) would require that the application include any information
that is known to the police officer (new subparagraph 3UEB(2)(i)(i)) and that the
police officer considers may assist the assessment officer to give, to any current or
former owners or occupiers of the premises affected by the exercise, or purported
exercise, of the powers under section 3UEA, the post-entry warrant or notice of
refusal to issue a warrant (new subparagraph 3UEB(2)(i)(ii)). Information that would
be captured by this section could include, if known, contact details for the current or
former owners or occupiers, and how they were impacted upon by the use of the
powers. The provision of this information would assist the assessment officer to
provide affected persons with a copy of the post-entry warrant or notice of refusal to
issue a warrant.
9
26. New paragraph 3UEB(2)(i) does not require a police officer to actively search for
contact details or information that may be relevant, but would require information
already known to be provided, if they consider it may assist the assessment officer in
performing their role per subparagraph 3UEB(2)(i)(ii).
27. New paragraph 3UEB(2)(j) would require the application to set out the date, time and
place of entry. This information would assist the assessment officer to understand the
context in which the powers have been used. The requirement for the police officer to
include the time and date in the application would also assure the assessment officer
that the application has been made as soon as practicable after the use of
section 3UEA powers.
28. New paragraph 3UEB(2)(k) would require the application set out any other
information, and be accompanied by any documents, the police officer considers
relevant to the application. This paragraph is intended to ensure that all other relevant
information that has not been otherwise captured by subsection 3UEB(2) will be
provided to the assessment officer to support their consideration as to whether to
issue, or refuse to issue, the post-entry warrant.
29. New subsection 3UEB(3) would require that the information in the application must
be sworn or affirmed by the police officer. The purpose of this subsection is to ensure
the information provided to the police officer is true and correct.
Requiring further information or documents
30. New subsection 3UEB(4) would provide that the assessment officer may request, in
writing, that the police officer provide further information or documents relating to
the application, and that the police officer do so in a particular way. This subsection is
intended to ensure the assessment officer has the ability to seek further information or
documents to enable the assessment officer to make an informed decision. The
subsection would also ensure the assessment officer has discretion to stipulate process
requirements so information or documents can be provided in an effective and
efficient manner.
31. New subsection 3UEB(5) would specify that if the police officer is unable to provide
some or all of the further information or documents requested, the police officer must,
within a reasonable period of time, notify the assessment officer of the information or
documents that cannot be provided (new paragraph 3UEB(5)(a)); and the reasons why
the information or documents cannot be provided (new paragraph 3UEB(5)(b)). The
purpose of this subsection is to ensure the assessment officer is notified that the police
officer cannot provide the information or documents within a reasonable period, so
the assessment officer can either seek alternative information to supplement the
application or otherwise determine that no further information can be obtained
relating to their information request.
32. New subsection 3UEB(6) would provide that if the assessment officer is notified in
accordance with subsection 3UEB(5) that some or all of the further information or
documents requested cannot be provided, the assessment officer must (unless there is
a reason not to) continue to consider the application despite having not received the
further information or documents. This subsection is intended to ensure that an
assessment officer, upon notice that no additional information relating to their
10
information request can be provided, will continue to make a decision on whether to
issue a post-entry warrant. A failure to proceed to a decision about the issue of a post-
entry warrant, because of a lack of information, would negate the purpose of the
scheme. An assessment officer may determine that they are not satisfied, on the
balance of probabilities, that in entering the premises the police officer suspected, on
reasonable grounds, the matters mentioned in paragraphs 3UEA(1)(a) and (b) because
they did not have the required information to conclude that the police officer had
acted consistently with the law.
Issue of warrant
33. New subsection 3UEB(7) would require the assessment officer to decide whether to
issue a post-entry warrant under new paragraph 3UEB(7)(a), or otherwise refuse to
issue the post-entry warrant under new paragraph 3UEB(7)(b).
34. New paragraph 3UEB(7)(a) provides that a post-entry warrant can be issued if, and
only if, the assessment officer is satisfied on the balance of probabilities, that in
entering the premises the police officer suspected, on reasonable grounds, the matters
mentioned in paragraphs 3UEA(1)(a) and (b). That is, the assessment officer would
need to be satisfied that the police officer suspected, on reasonable grounds, that it
was necessary to exercise a power under subsection 3UEA(2) (being search and
seizure powers) in order to prevent a thing that is on the premises from being used in
connection with a terrorism offence (see paragraph 3UEA(1)(a)) and that it was
necessary to exercise the power without the authority of a search warrant because
there was a serious and imminent threat to a person's life, health or safety (see
paragraph 3UEA(1)(b)).
35. The assessment officer is not required to consider the use of any other section 3UEA
powers, such as the power for police officers to use such force against persons or
things (see subsection 3UEB(6)), to issue a post-entry warrant. The assessment
officer's consideration is to be limited to a consideration of whether the entry
occurred consistent with subsection 3UEA(1).
36. The balance of probabilities standard would require an assessment officer to be
satisfied that it was more likely than not that the powers were exercised in accordance
with paragraphs 3UEA(1)(a) and (b). This standard of proof strikes a balance between
ensuring that the assessment officer has a reasonable degree of certainty about
compliance with the legislative requirements to exercise powers in accordance with
paragraphs 3UEA(1)(a) and (b), without imposing an unnecessary burden on the
assessment officer to be certain as to the police officer's suspicion.
37. New paragraph 3UEB(7)(b) provides that if the assessment officer is otherwise not
satisfied, on the balance of probabilities, that in entering the premises the police
officer suspected, on reasonable grounds, the matters mentioned in paragraphs
3UEA(1)(a) and (b), they must refuse to issue the post-entry warrant. An assessment
officer may determine they are unable to issue a warrant because they do not have
adequate information to reach this conclusion, or otherwise determine that this
threshold was not met based on the information provided.
38. New subsection 3UEB(8) would clarify that the issue of, or refusal to issue, a post-
entry warrant does not affect whether or not the exercise, or purported exercise, of
11
powers under section 3UEA was valid. As the post-entry warrant scheme is
administrative in nature, the assessment officer does not have the power to determine
whether section 3UEA had been complied with, and instead provides a review of the
use of subsection 3UEA(1) powers through the issue of, or refusal to issue, a post-
entry warrant. The court retains the exclusive ability to make a legal determination as
to whether section 3UEA was complied with.
39. New subsection 3UEA(8) would also include a statutory note acknowledging that
section 138 of the Evidence Act 1995 (Evidence Act) may apply to evidence obtained
as a result of the exercise, or purported exercise, of powers under section 3UEA. If a
court considered such a search was not authorised under section 3UEA and that the
evidence was therefore unlawfully obtained, subsection 138(1) would operate such
that the evidence would not to be admitted unless the Court determines the
desirability of admitting the evidence outweighs the undesirability of admitting
evidence that has been obtained in the way in which the evidence was obtained.
40. The issue or refusal to issue a warrant may provide police officers and prosecutors
with early indications about the admissibility of evidence obtained from the use of
section 3UEA powers as the failure to be issued a post-entry warrant may indicate,
but not determine, that evidence was collected improperly and may be inadmissible.
Content of warrant
41. New subsection 3UEB(9) would stipulate the matters to be included in the post-entry
warrant, if issued.
42. New paragraph 3UEB(9)(a) would require the post-entry warrant to include the
information required by paragraphs 3UEB(2)(c), (d), (e) and (j), being information as
to:
• whether the police officer is a member of the AFP, a special member or a
member of a State or Territory police force (paragraph 3UEB(2)(c)),
• if the police officer is a member of a State or Territory police force, however
described - the relevant State or Territory (paragraph 3UEB(2)(d)),
• the police officer's name, rank, identification number (however described) and
police station (if applicable) (paragraph 3UEB(2)(e)), and
• the time, date and place of the entry (paragraph 3UEB(2)(j)).
43. New paragraph 3UEB(9)(b) would require the post-entry warrant include a statement
of reasons for issuing the warrant. This paragraph would ensure there is a record
explaining why the assessment officer considered the requirements in new paragraph
3UEB(7)(a) have been satisfied. A statement of reasons for the issue of the warrant
would provide confidence to both police and the affected parties that these emergency
powers are being used appropriately.
44. New paragraph 3UEB(9)(c) would require the warrant to include a statement
confirming the warrant has been issued under section 3UEB. This would demonstrate
what authority the assessment officer had to issue a post-entry warrant.
12
Notification requirements
45. New subsection 3UEB(10) would provide that if the assessment officer issues a
post-entry warrant, the assessment officer must give a copy of the warrant to the
persons mentioned in subsection 3UEB(12) (listed below) as soon as reasonably
practicable after issuing the warrant. Notice of the issue of a warrant to persons
mentioned in subsection 3UEB(12) would provide confidence to both police and the
affected members of the public that these emergency powers are being used
appropriately. The inclusion of 'as soon as reasonably practicable' would ensure that
relevant persons are notified in a timely manner.
46. New subsection 3UEB(11) would set out the steps the assessment officer must take if
the assessment officer refuses to issue the post-entry warrant.
47. New paragraph 3UEB(11)(a) would require the assessment officer to give written
notice of the refusal to the persons mentioned in subsection 3UEB(12) (listed below)
as soon as reasonably practicable after refusing to issue the warrant. Notice of the
refusal to issue a warrant to affected persons would provide for additional
transparency of possible circumstances where the police may have not used the
powers in accordance with the legislation, such that individuals affected by the use, or
purported use, of section 3UEA powers could consider whether they wish to make a
complaint to an oversight body or pursue civil or other action. It may also better
inform law enforcement agencies about the appropriate use of these emergency
powers. The inclusion of 'as soon as reasonably practicable' would ensure that
relevant persons are notified within a timely manner.
48. New paragraph 3UEB(11)(b) would require the assessment officer to include a
written statement of reasons for refusing to issue the warrant. This paragraph would
require the assessment officer to make a written record of their reasons for deciding to
not issue a post-entry warrant, which may include details on what evidence they relied
on to make this decision and why they considered the criteria provided for at new
paragraph 3UEB(7)(a) was not satisfied.
49. New paragraph 3UEB(11)(c) would require that the assessment officer, in the case of
a notice given to a person mentioned in paragraph 3UEB(12)(d) (affected current or
former owners or occupiers of the premises), include in the notice of refusal
information about any rights they may have to make a complaint to the
Commonwealth Ombudsman under the Ombudsman Act (new subparagraph
3UEB(11)(c)(i)), or take civil or other action (new subparagraph 3UEB(11)(c)(ii)), in
relation to the entry to the premises or the exercise, or purported exercise, of powers
under section 3UEA. Nothing in this provision prevents the assessment officer from
notifying the relevant individuals of any other right or relevant matter. For instance, in
addition to making a complaint to the Commonwealth Ombudsman, the person may
also have the right to make a complaint directly to the AFP.
50. Although the assessment officer's refusal to issue a warrant does not impact on the
legal validity of the exercise or purported exercise of subsection 3UEA(1) powers,
new paragraph 3UEB(11)(c) would provide affected individuals with information
about their options to address possible legal infringements on their rights.
13
51. New subsection 3UEB(12) would list the relevant persons for the purposes of
subsections 3UEB(10) and (11) as the following:
• the police officer (new paragraph 3UEB(12)(a))
• if the police officer is a member of the AFP or a special member - the
Commissioner (new paragraph 3UEB(12)(b))
• if the police member is a member, however described, of a police force of a
State or Territory - the Commissioner of Police in that police force or person
holding equivalent rank (new paragraph 3UEB(12)(c)), and
• any current or former owners or occupiers of the premises whom the
assessment officer consider to have been affected by the exercise, or purported
exercise, of the powers under section 3UEA in relation to the premises (new
subparagraph 3UEB(12)(d)(i)); and to whom the assessment officer considers
it is practicable to give the post-entry warrant or notice of refusal (new
subparagraph 3UEB(12)(d)(ii)).
52. The purpose of new paragraph 3UEB(12)(a) is to ensure that the police officer is
notified of the outcome of their application. It is appropriate for the police officer who
entered the premises under, or purportedly under, subsection 3UEA(1), to be provided
with the post-entry warrant related to that entry, or otherwise notified of the refusal to
be issued the warrant, as they were required to seek the warrant in relation to their
entry to the premises. Provision of the post-entry warrant would provide confidence to
the police officer that they used these emergency powers appropriately. If the
assessment officer refused to issue the post-entry warrant, provision of the notice of
refusal would inform the police officer that they may not have used the powers in
accordance with the legislation, and complaints, or further civil or other action may
follow.
53. The purpose of new paragraphs 3UEB(12)(b)) and 3UEB(12)(c) is to ensure that the
relevant Federal, State or Territory Commissioner of the police force is notified of the
outcome of the application for a post-entry warrant. Although it is likely the applicant
police officer would inform their relevant police force about the outcome of the
application, the use of these emergency powers is a matter of significance, which
would appropriately necessitate the relevant Commissioner, however described, being
informed. Notification of the relevant Commissioner, however described, as to the
issue of a post-entry warrant would serve to provide confidence to the police
Commissioner that police officers in their police force used these emergency powers
appropriately. If the assessment officer refused to issue the post-entry warrants,
provision of the notice of refusal would inform the Commissioner that police officers
in their police force may have inappropriately used these emergency powers, and
complaints or further civil or other action, including against the police force, may
follow. Notice would also enable the Commissioner to consider whether other action
is necessary, for example, working within their police force to better educate police
officers about the appropriate use of these powers, to avoid any future inappropriate
use of the subsection 3UEA(1) powers.
14
54. The purpose of new paragraph 3UEB(12)(d) is to ensure that any current or former
owners or occupiers of the premises affected by the exercise of section 3UEA powers
and to whom it is practicable to notify are notified of the outcome of the application
for a post-entry warrant. Notification of the affected individuals as to the issue of a
post-entry warrant would serve to provide these individuals, and the broader public,
with confidence that police officers used these emergency powers appropriately. If the
assessment officer refused to issue the post-entry warrant, provision of the notice of
refusal would inform the affected individuals that the police may not have used the
powers in accordance with the legislation. The additional information about their
options to address possible legal infringements of their rights (see paragraph
3UEB(11)(c)) would also provide affected individuals with the knowledge necessary
to take further action.
Protection of information
55. New subsection 3UEB(13) would clarify that despite the requirement for the
assessment officer to provide reasons for issuing or refusing to issue the post-entry
warrant under subsections 3UEB(9) and (11), the information must not include
information that is likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings) Act 2004). The
purpose of this subsection is to ensure that national security information is not
publicly released. An assessment officer has an overarching obligation to not disclose
information that is likely to prejudice national security, regardless of their obligation
to include a statement of reasons in a post-entry warrant or a notice of refusal.
Item 13 - At the end of subsection 3UJB(2)
56. Item 13 would expand the list of matters which must be included in the annual report
on the exercise of powers under Division 3A of Part IAA, by amending
subsection 3UJB(2). The additional matters to report would include:
• the number of applications made by AFP police officers under section 3UEB
for post-entry warrants (new paragraph 3UJB(2)(e)),
• the number of post-entry warrants issued under section 3UEB in response to
the applications made by AFP police officers (new paragraph 3UJB(2)(f)), and
• the number of refusals to issue a post-entry warrant under section 3UEB in
response to applications made by AFP police officers
(new paragraph 3UJB(2)(g)).
57. This annual reporting requirement would further strengthen the oversight and
transparency currently provided by the existing reporting obligations in relation to the
use of the extraordinary and intrusive powers in section 3UEA.
58. The annual reporting obligations are limited to AFP police officer (within the
meaning of the Australian Federal Police Act 1979) applications, and the number of
refusals to issue a post-entry warrant in relation to AFP police officer applications, as
the Minister is not responsible for reporting in relation to State or Territory police
forces. Nothing in this provision would prevent relevant State and Territory police
forces from voluntarily reporting on the matters in new paragraphs 3UJB(2)(e)-(g).
15
Item 14 - After Subdivision CA of Division 3A of Part IAA
59. This item would insert new Subdivision CB - Matters relating to post-entry warrants.
This new subdivision relates to assessment officers that can issue post-entry warrants.
60. New section 3UJC would set out criteria for being appointed an assessment officer,
and in what capacity the assessment officer exercises their powers provided for under
section 3UEB.
61. New paragraph 3UJC(1)(a) would provide that an 'assessment officer' is a person
who is a Judge of the Federal Court of Australia, or a Judge of the Supreme Court of a
State or Territory (new subparagraph 3UJC(1)(a)(i)). A consent under
new subsection 3UJD(1), and a declaration by the Minister under
new subsection 3UJD(2), must also be in force in relation to those individuals
(new subparagraph 3UJC(1)(a)(ii)). New paragraph 3UJC(1)(b) would provide that an
assessment officer is also a nominated AAT member.
62. It is appropriate that certain Judges of superior courts and nominated AAT members
are responsible for determining whether a post-entry warrant should be issued, noting
the extraordinary and intrusive nature of section 3UEA powers. Judges and nominated
AAT members are eminent persons with expertise and experience making decisions
on complex issues.
63. New subsection 3UJC(2) would provide that a function or power conferred by
Division 3A, including the ability to issue a post-entry warrant, is conferred on a
Judge in a personal capacity, and not as a court or member of a court. As the
post-entry warrants scheme is administrative in nature, it is appropriate a Judge acts in
their personal capacity (that is, exercising their powers persona designata).
64. New subsection 3UJC(3) would clarify that a Judge has, in relation to the
performance or exercise of a function or power conferred on an assessment officer by
Division 3A of Part IAA, the same protection and immunity as if the Judge were
performing that function, or exercising that power, as, or as a member of, a court
(being the court of which the Judge is a member). The extension of protections and
immunities to the Judge's functions reflect the complexities of issuing a post-entry
warrant and would be necessary to enable a Judge to issue post-entry warrants in their
personal capacity.
65. New section 3UJD would establish processes for obtaining the consent of a Judge and
the making of a declaration by the Minister for the Judge to be an assessment officer.
66. New subsection 3UJD(1) would provide that a Judge of the Federal Court of
Australia, or the Supreme Court of a State or Territory may, by writing, consent to be
declared an assessment officer by the Minister administering the Judiciary Act under
subsection 3UJD(2). The consent requirement would enable Judges to choose whether
they wish to be declared an assessment officer by the Minister.
67. New subsection 3UJD(2) would specify that the Minister administering the Judiciary
Act may, by writing, declare a Judge in relation to whom a consent under
subsection 3UJD(1) is in force, to be an assessment officer for the purposes of
Division 3A of Part IAA.
16
68. New subsection 3UJD(3) would clarify that a consent or declaration under
section 3UJD is administrative in nature and is not a legislative instrument for the
purposes of the Legislation Act 2003. This subsection is included for the avoidance of
doubt as to the nature of a consent or declaration under this section.
69. New section 3UJE would establish the process for appointing selected AAT members
as an assessment officer. Subsection 3UJE(1) would provide that the Minister
administering the Administrative Appeals Tribunal Act 1975 (the AAT Minister) may,
by writing, nominate a person who holds an appointment as a Deputy President or
full-time senior member of the AAT to issue post-entry warrants and perform related
functions.
70. New subsection 3UJE(2) would specify that despite subsection 3UJE(1), the AAT
Minister must not nominate a person who holds appointment as a full-time senior
member of the Tribunal unless specified circumstances exist. These circumstances
include where the person has been enrolled as a legal practitioner of the High Court,
or any other federal court or of the Supreme Court of a State or of the Australian
Capital Territory (new paragraph 3UJE(2)(a)); or the person has been enrolled for not
less than 5 years (new paragraph 3UJE(2)(b)). The Northern Territory is covered by
the reference to State, as defined in subsection 3(1) of the Crimes Act.
71. New subsection 3UJE(3) would provide that a nomination ceases to be in force if the
nominated AAT member ceases to hold an appointment described in subsection
3UJE(1) (new paragraph 3UJE(3)(a)), or the AAT Minister, by writing, withdraws the
nomination (new paragraph 3UJE(3)(b)).
Item 15 - Subsection 3UK(1)
72. Item 15 would insert '3UEB or' before '3UF' in subsection 3UK(1). This would have
the effect of excluding new section 3UEB from section 3UK. Section 3UK has the
effect of preventing the exercise or performance of duties under Division 3A after the
sunsetting date.
73. In effect, the exclusion would require a police officer who has entered premises
under, or purportedly under, subsection 3UEA(1) prior to the sunsetting date to apply
for a post-entry warrant, including after the sunsetting date in subsection 3UK(1). The
purpose of this item is to ensure that sunsetting does not prevent the otherwise
appropriate process of applying for and obtaining a post-entry warrant.
Item 16 - Application - post-entry warrants
74. Item 16 would ensure that new section 3UEB applies in relation to an entry to
premises that occurs after the commencement of this item. This item would ensure
there is not a retrospective requirement for a police officer to make an application for
a post-entry warrant, where it was not a requirement at the time the police officer
exercised, or purported to exercise, powers under section 3UEA.
17
Index]
[Search]
[Download]
[Bill]
[Help]