WARRANT POWERS AND PROCEDURES · LEGAL PROFESSIONAL PRIVILEGE ... of warrant applications granted,...

V I C T O R I A N P A R L I A M E N T L A W R E F O R M C O M M I T T E E

W A R R A N T P O W E R S A N D P R O C E D U R E S

D I S C U S S I O N P A P E R

J U L Y 2 0 0 4

Parliament of Victoria Australia

Law Reform Committee

Warrant Powers and Procedures

ISBN - 0 7313 5398 6

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M A K I N G A S U B M I S S I O N T O T H E I N Q U I R Y

You are invited to make comments and submissions on issues relevant to the Inquiry into Warrant Powers and Procedures, including but not limited to the issues raised in this Discussion Paper.

Closing date for submissions — 1 October 2004

Anyone can make a submission or comment. It is not necessary to have legal or any other special qualifications. The Committee is keen to hear from all those who have something to say about warrant powers and procedures.

The Committee asks individuals and agencies that made preliminary submissions to this inquiry to expand on them when responding to the Discussion Paper. The Committee also welcomes submissions from individuals and agencies who had input into the 2002 Inquiry into Entry, Search, Seizure and Questioning by Authorised Persons but asks them to limit submissions to information that was not provided to that inquiry, unless responding to that inquiry’s conclusions.

A submission may be as short or as long as you like. It may contain facts, opinions, arguments or recommendations. It may cover all the points in the terms of reference or only some of them, depending on what interests you. Supporting documents may be attached.

Written comments and submissions should be sent to—

Inquiry into Warrant Powers and Procedures The Executive Officer Victorian Parliament Law Reform Committee Level 8, 35 Spring Street MELBOURNE 3000

Phone: (03) 9651 3644 Fax: (03) 9651 3674 Email: [email protected]

Submissions by email are encouraged. A separate signed authentication should be forwarded to the Committee. Hardcopy submissions should be accompanied by an electronic disk version if possible.

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Public Hearings - The Committee will also hold public hearings at which oral submissions and evidence can be given. The dates of public hearings will be advertised in The Age newspaper and on our website at http://www.parliament.vic.gov.au/lawreform/

Confidentiality - All submissions are treated as public documents, unless confidentiality is requested. If you want your submission to be kept confidential, please say so clearly at the top or in a covering note. Say why you want it to be kept confidential. If you want part of the submission to be confidential, please put that part on a separate page(s). If you have concerns about confidentiality, please discuss with the Executive Officer before you make the submission. The Committee intends to place submissions on its website.

Parliamentary Privilege – All submissions received and statements made at public hearings are protected by parliamentary privilege.

If you have any questions about this Discussion Paper, please contact the Committee at the above address.

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C O M M I T T E E M E M B E R S H I P

C H A I R

M r R o b H u d s o n , M L A

D E P U T Y C H A I R

M r N o e l M a u g h a n , M L A

M E M B E R S

H o n A n d r e w B r i d e s o n , M L C

H o n R i c h a r d D a l l a - R i v a , M L C

M s D i a n n e H a d d e n , M L C

M s D y m p n a B e a r d , M L A

M r T o n y L u p t o n , M L A

S T A F F E X E C U T I V E O F F I C E R

M s M e r r i n M a s o n

R E S E A R C H O F F I C E R S

M r J o n C i n a

O F F I C E M A N A G E R

M s J a i m e C o o k

R E S E A R C H A S S I S T A N C E

M s R e b e c c a S t e i n b e r g ( u n t i l 3 1 M a y 2 0 0 4 )

M s H a n n a h M c H a r d y ( f r o m 3 1 M a y 2 0 0 4 )

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F U N C T I O N S O F T H E C O M M I T T E E

Parliamentary Committees Act 2003

Act No. 110/2003

12. Law Reform Committee

(1) The functions of the Law Reform Committee are, if so required or permitted under this Act, to inquire into, consider and report to the Parliament on any proposal, matter or thing concerned with—

(a) legal, constitutional or parliamentary reform;

(b) the administration of justice;

(c) law reform.

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T E R M S O F R E F E R E N C E

Inquiry into Warrant Powers and Procedures

Referred by the Governor in Council on 3 June 2003

The Governor in Council, under section 12 of the Parliamentary Committees Act 2003, requests that the Law Reform Committee of Parliament inquire into, consider and report to Parliament on:

1. Victoria's existing warrant powers and procedures, including arrest warrants, warrants to seize property and search warrants; and

2. whether the existing laws should be amended, and in what way, having particular regard to the need to promote fairness, consistency and efficiency.

The Committee is required to report to Parliament by the last day of the autumn 2005 sittings.

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T A B L E O F C O N T E N T S

QUESTIONS ...................................................................................................................................... xi

1. INTRODUCTION............................................................................................................................. 1 THE PURPOSE AND LAYOUT OF THIS DISCUSSION PAPER ..........................................................................2

2. BACKGROUND TO THE INQUIRY .................................................................................................. 5 THE TERMS OF REFERENCE ........................................................................................................................5 THE INQUIRY IN CONTEXT..........................................................................................................................5

INQUIRY INTO THE POWERS OF ENTRY, SEARCH, SEIZURE AND QUESTIONING BY AUTHORISED PERSONS.................................................................................................................................................5 DEPARTMENT OF JUSTICE REVIEWS .......................................................................................................6

THE ATTORNEY GENERAL’S JUSTICE STATEMENT ............................................................................6 REVIEW OF INFRINGEMENT NOTICES .................................................................................................7 REVIEW OF SHERIFF’S OFFICE............................................................................................................7

3. THE CONDUCT OF THE INQUIRY.................................................................................................. 9 THE COMMITTEE’S APPROACH...................................................................................................................9

IDENTIFYING WARRANT POWERS AND PROCEDURES .............................................................................9 WARRANT PROVISIONS.......................................................................................................................9 WARRANT-LIKE POWERS ..................................................................................................................10 COMMENTS ON THE INSPECTORS' POWERS INQUIRY ........................................................................11

CATEGORISING WARRANT PROVISIONS...............................................................................................12 STAGES OF THE INQUIRY...........................................................................................................................13

CONSULTATION....................................................................................................................................13 REPORT.................................................................................................................................................14

4. OVERVIEW OF WARRANTS ........................................................................................................ 15 TERMINOLOGY..........................................................................................................................................15 WHAT ARE WARRANTS?............................................................................................................................15 A SAFEGUARD TO REGULATE COMPETING INTERESTS..............................................................................16 WARRANTS IN PRACTICE ..........................................................................................................................17

5. GUIDING PRINCIPLES ................................................................................................................. 19 FAIRNESS ..................................................................................................................................................19 CONSISTENCY ...........................................................................................................................................22 EFFICIENCY...............................................................................................................................................23

6. GENERAL QUESTIONS ................................................................................................................ 25 FRAGMENTATION......................................................................................................................................25 CREATION: THE AVAILABILITY AND ORGANISATION OF WARRANT POWERS ...........................................26

AVAILABILITY - WHEN IS A WARRANT POWER APPROPRIATE ..............................................................26

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POWERS ............................................................................................................................................28 CRITERIA ..........................................................................................................................................28

THE ORGANISATION OF WARRANT PROVISIONS ...................................................................................28 CONTROL: THE REGULATION OF WARRANT POWERS................................................................................29

THE WARRANT TERMS..........................................................................................................................29 WARRANT MANAGEMENT ....................................................................................................................35 APPLICATION FOR WARRANTS .............................................................................................................35 ISSUE OF WARRANTS ............................................................................................................................36

GENERAL ..........................................................................................................................................36 REPORTING REQUIREMENT AND RECORD-KEEPING..........................................................................37

EXECUTION OF WARRANTS ..................................................................................................................39 TRAINING..........................................................................................................................................40

OTHER FORMS OF CONTROL .................................................................................................................41 INTERNAL PRACTICES OF AGENCIES WITH WARRANT POWERS ........................................................41 ACCOUNTABILITY MECHANISMS - ABUSE OF WARRANT POWERS ....................................................41 LEGAL PROFESSIONAL PRIVILEGE ....................................................................................................45 PRIVACY CONSIDERATIONS ..............................................................................................................48

7. QUESTIONS RELATING TO SPECIFIC WARRANT PROVISIONS..................................................... 51 WARRANTS RELATING TO THE INVESTIGATION, PREVENTION OR PROSECUTION OF CRIMINAL OFFENCES..................................................................................................................................................................51

ARREST.................................................................................................................................................51 SEARCH ................................................................................................................................................53

CONDUCT OF SEARCHES ...................................................................................................................53 ITEMS NOT SPECIFIED IN THE WARRANT...........................................................................................58 SEIZED PROPERTY TO BE BROUGHT BEFORE ISSUING AUTHORITY ...................................................59

SURVEILLANCE.....................................................................................................................................60 WARRANTS RELATING TO THE ENFORCEMENT OF PROCEEDINGS.............................................................61

POWERS OF THE SHERIFF ......................................................................................................................62 GENERAL ..........................................................................................................................................62 REAL ESTATE ....................................................................................................................................62

PENALTY ENFORCEMENT WARRANTS ..................................................................................................63 OVERVIEW OF THE PERIN PROCESS.................................................................................................63 CONCERNS ........................................................................................................................................64

WARRANTS RELATING TO MONITORING COMPLIANCE WITH LEGISLATION..............................................66 WARRANTS RELATING TO THE PROTECTION OF VULNERABLE GROUPS ...................................................68

MENTAL HEALTH ACT 1986 ................................................................................................................68 CHILDREN AND YOUNG PERSONS ACT 1989 .......................................................................................69 GUARDIANSHIP AND ADMINISTRATION ACT 1986 ..............................................................................71

SECTION 26 WARRANTS....................................................................................................................71 SECTION 27 WARRANTS....................................................................................................................71

APPENDIX 1. VICTORIAN LEGISLATION CONTAINING WARRANT POWERS AND PROVISIONS... 73

APPENDIX 2. MAGISTRATES’ COURT ACT 1989 - GENERAL REQUIREMENTS FOR WARRANTS . 77

APPENDIX 3. PRINCIPLES FROM THE INSPECTORS' POWERS REPORT......................................... 81

APPENDIX 4. SUBMISSIONS AND COMMENTS................................................................................ 88 PRELIMINARY SUBMISSIONS AND COMMENTS ..........................................................................................89 OTHER INPUT ............................................................................................................................................90

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Q U E S T I O N S

Question 1. Why is the particular warrant power and procedure needed? What is its purpose?

Question 2. Can the power be justified and is it proportionate to need? Is it the least intrusive measure necessary to carry out the purposes for which the warrant is granted?

Question 3. Has past practice shown a need for the full extent of the powers granted?

Question 4. Do the powers and the way in which they are exercised take account of the different circumstances of diverse groups within the community?

Question 5. Is the exercise of the warrant provisions subject to effective oversight?

Question 6. Have both the powers and the exercise of the powers been recently and regularly evaluated to determine their ongoing appropriateness?

Question 7. What remedies exist for people dissatisfied with the powers, procedures or their exercise?

Question 8. What is the effect of inconsistencies in the warrant provisions and what advantages would greater consistency achieve?

Question 9. How can greater consistency be achieved? Would a set of principles or guidelines for Victorian legislation be desirable and effective?

Question 10. Where legislation seeks to grant powers which do not comply with the guidelines (if these are developed), what procedure/s would be appropriate for seeking to justify broader powers?

Question 11. What internal and external constraints limit the efficiency of particular warrant powers?

Question 12. Are reforms necessary to improve efficiency? What reforms would achieve this?

Question 13. How could such reforms be most efficiently implemented?

Question 14. What powers should and should not be subject to warrant? Are there situations where respectively, it should not and should be necessary to obtain a warrant to exercise such powers?

Question 15. If criteria are developed for drafting purposes to determine whether a power can be exercised with or without a warrant, what should those criteria be?

Question 16. Are there any other considerations that are relevant to the determination of whether a warrant power is necessary?

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Question 17. Could a general Warrants Act or Acts for Victoria help improve the consistency and effectiveness of warrant powers?

Question 18. What impact would such an Act or Acts have on the Magistrates’ Court Act 1989, particularly Schedule 7 on PERIN procedures?

Question 19. What other related legislative reforms might improve the operation of warrants?

Question 20. Are or should Victorian agencies be subject to guidelines similar to those used by the Commonwealth Attorney-General?

Question 21. Could model warrant provisions improve the fairness, consistency and efficiency of warrant powers and procedures? What minimum protections should they contain?

Question 22. Among agencies that possess warrant powers, are there any that are not justified by the functions of the agencies?

Question 23. What internal procedures are used to determine whether an agency should make an application for a warrant? To what extent can these procedures be standardised?

Question 24. What minimum requirements should the process of applying for warrants include? To what extent can these be standardised?

Question 25. What criteria and standard of proof should be satisfied before a warrant can be issued? To what extent can these be made consistent across all warrants?

Question 26. What conditions should warrants include in their terms? To what extent can these be standardised?

Question 27. What principles should govern the recording of information about the use of warrant provisions? What information should be recorded? What are the likely resource implications of such requirements?

Question 28. What information is available about the number of warrants applied for and issued? Which agencies keep records? Why do other agencies not do so?

Question 29. For those agencies which do keep records, please provide details of the number of warrant applications granted, refused, reheard with additional supporting evidence or otherwise disposed of.

Question 30. For those agencies and individuals who have experience of the Magistrates’ Court register, have there been any changes to the operation of the register since the publication of the Inspectors’ Powers Report?

Question 31. Should the reporting requirement be subject to oversight? What would be the most appropriate way to achieve this?

Question 32. Are entry and search warrant powers exercised with notice and during reasonable hours wherever possible?

Question 33. Are instances of entry and search without consent recorded on video or audio tape? If not, would it be possible and desirable to do so?

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Question 34. How effective are these controls in ensuring that warrants are executed in the least intrusive manner? Is there a need for standardised rules?

Question 35. Is there a need for additional rules?

Question 36. What training do agencies and individuals with warrant powers receive, regarding warrant powers and procedures, particularly execution and the treatment of ethnically and linguistically diverse and disadvantaged members of the community? How often is this training conducted? Is it mandatory?

Question 37. Is there a need for standardised training? How should such standards be developed, implemented and reviewed? Would an independent training body be appropriate?

Question 38. What other reforms to existing training procedures are appropriate?

Question 39. What internal practices, procedures and guidelines concerning warrant powers and procedures exist among agencies with warrant powers? What issues do they cover? How and how regularly are they reviewed?

Question 40. Is the use of warrant powers regularly reviewed internally?

Question 41. What complaints procedures are there?

Question 42. How often do abuses occur? What are they?

Question 43. Is there provision for external review of the powers and the agencies’ use of them?

Question 44. How effectively do existing accountability measures function? Is there a need for greater accountability? If so, is it based on systemic deficiencies or isolated incidents?

Question 45. Is there a need for a separate body to provide coherent oversight of warrant provisions?

Question 46. What reforms would improve accountability?

Question 47. How are questions of legal professional privilege dealt with by agencies that have warrant powers?

Question 48. Is there a need for a specific definition or modification of the privilege within particular acts?

Question 49. Has the protocol proved appropriate for protecting legal professional privilege?

Question 50. Have analogous protocols been adopted by other agencies with relevant warrant powers?

Question 51. How has the Information Privacy Act 2000 affected agencies’ warrant-related activities?

Question 52. What systems or guidelines (if any) are in place to ensure that authorised officers comply with the Privacy Information Act 2000?

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Question 53. Is there a need for reform of the Privacy Information Act 2000 to satisfy legitimate law enforcement imperatives, or of warrant powers and procedures to satisfy legitimate privacy imperatives?

Question 54. Is codification of the requirements for lawful arrest desirable?

Question 55. Is there a need for changes to police standing orders or procedures in the police manual concerning the arrest of vulnerable and disadvantaged people? What changes are appropriate?

Question 56. What training do police undergo to assist them in their dealings with culturally and linguistically diverse groups within the community?

Question 57. What issues and concerns exist in relation to procedures for the execution of search and seizure warrants?

Question 58. How common are allegations of improper police procedures? What evidence is there of such allegations?

Question 59. How is property seized in breach of procedures dealt with by the courts? Is this satisfactory?

Question 60. Should supporting affidavits and statements be made available to the defendant and counsel? Under what conditions?

Question 61. What principles should govern inadvertent discovery and what sanctions should apply where those principles are breached?

Question 62. How widespread is the practice of ignoring the s465 requirement to take seized items before the Magistrates’ Court?

Question 63. How has this practice been addressed? How should it be addressed?

Question 64. Are there circumstances in which the requirement should not apply?

Question 65. How could abuses of surveillance warrants be measured and curtailed without undermining legitimate law enforcement purposes?

Question 66. What sort of assessment and monitoring would be appropriate?

Question 67. What other accountability mechanisms are suitable to reduce the potential for abuse?

Question 68. Is there a need for a definition of ‘‘private conversation’?

Question 69. How can the present arrangements be improved? Should the sheriff have the power to execute a warrant to seize property against a judgment debtor’s interest in real estate rather than the judgment creditor being required to comply with the provisions of s.112 of the Magistrates’ Court Act 1989?

Question 70. What data are recorded concerning penalty enforcement warrants? How many were applied for/issued/executed? Where warrants were executed, how were the cases disposed of?

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Question 71. How does the capacity of the PERIN system compare to its workload? How does the system respond to the increase in referrals?

Question 72. What is the impact of the enforcement review program? Is there a need to reform it? What reforms would be appropriate?

Question 73. What other reforms to the PERIN system would be appropriate?

Question 74. Is there a need for changes to laws or procedures governing police actions in this sector to improve the operation of the legislation? What reforms would be appropriate?

Question 75. What training do police receive to assist agencies acting under the Mental Health Act 1986?

Question 76. Is there a need to reform legislation governing warrants in this area? If so, what reforms would be appropriate?

Question 77. What training is provided to child protection workers concerning the availability and use of warrant powers under the Act? How might understanding be improved? Are there any agreed procedures between child protection agencies and the children’s court?

Question 78. Is there a need to reform police procedures in this area? If so, what reforms are appropriate?

Question 79. What options exist for providing services to transport children and young people under warrants?

Question 80. How much of an impact do these problems have on the Public Advocate’s capacity to fulfil its functions? How could they be addressed? Is there a need for improved training of ambulance or police personnel, or better co-ordination between the agencies involved in the execution of the warrants?

Question 81. Should s 27 of the Guardianship and Administration Act 1986 be amended to remove the disability requirement and /or to provide for written VCAT orders?

Question 82. What other reforms may be required?

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1 . I N T R O D U C T I O N

As instruments that authorise the police and other agencies to enforce laws, warrants are one of the most basic and frequently-used tools of the justice system. In 2002-2003, the Victorian Sheriff’s Office alone processed over 400 000 warrants.1 The scope for their application is as broad as society is diverse.2 As such, it is imperative that they operate to further the goals of the justice system, and that the powers and procedures that govern their use are regularly assessed to ensure that they are efficiently and effectively capable of, and in fact are, fulfilling their function. Concerns expressed from a number of sectors of the community indicate that such an assessment is overdue, and that warrant powers and procedures are in need of review and reform.

Among the concerns expressed is the view that warrant powers and procedures are scattered throughout many different pieces of legislation and the common law, and consequently lack coherent guiding principles as to their purpose, application and enforcement. The ad hoc development of warrant powers on both State and Commonwealth levels make it difficult to ensure that an appropriate balance between fairness and effectiveness is maintained, and that sufficient checks and balances exist to safeguard civil liberties. Issues such as in what circumstances a warrant is necessary and how their use is monitored need to be considered in a systematic and co-ordinated manner.

The referral of this inquiry to the Committee is also timely given the recent intense focus on law and order issues, both locally and globally. Controversy in Victoria over police corruption and organised crime murders have resulted in proposals to create new warrant powers for the Ombudsman,3 which has in turn raised concerns about their appropriateness.4 At the same time, countries throughout the world have increased the powers of law enforcement agencies, including those relating to warrants, in response to fears of radical acts of violence. Concerns exist as to whether appropriate consideration and evaluation has preceded the adoption of such measures and whether there are sufficient checks and balances in place to prevent their misuse.

1 Department of Justice, Annual Report 2002-2003, 61. 2 Compare for example, International War Crimes Tribunals Act 1995 (Cth) s 10 authorising the issue of an arrest warrant against individuals accused of war crimes with the Chinese Medicine Registration Act 2000 ss 88-91, which governs the use of search warrants to regulate the activities of Chinese medical or herbal practitioners. 3 See Ombudsman Legislation (Police Ombudsman) Act 2004; Office of the Premier, Ombudsman to receive additional funds and resources, 3 June 2004. 4 For example, Kirsty Simpson, Jason Dowling, ‘Police warned over Ombudsman’s powers’, Sunday Age, 20 June 2004, 3.


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The Committee stresses that its inquiry is not causally related to either of these broader phenomena. However, it notes that both situations underline the importance of appropriately considered and calibrated responses to complex and urgent issues of public policy, and recognises that some of the issues in each case are relevant to this inquiry. Where members of the community wish to make submissions that deal with these matters, the Committee asks that their comments are limited to warrant powers and procedures, in accordance with the terms of reference.

The Purpose and Layout of this Discussion Paper

This Discussion Paper is intended primarily to assist agencies and members of the community who wish to make a submission to the inquiry. To achieve this, the Discussion Paper will:

• explain the background to the inquiry, by outlining the terms of reference and the context for the inquiry (Section Two);

• explain how the Committee will conduct the inquiry, by outlining the approach the Committee has adopted and the different stages of the inquiry (Section Three);

• provide background information on warrant powers and provisions (Section Four); and

• raise issues ripe for review concerning warrant powers and procedures that the Committee is aware of, by considering the principles in the terms of reference and posing questions about the operation of current warrant provisions and possible reforms. The questions firstly address the principles of fairness, consistency and efficiency (Section Five), then general issues common to all warrant provisions (Section Six), and finally specific warrant powers and procedures (Section Seven).

Save for the decisions and proposals concerning the methodology of the inquiry, the Committee has not reached any conclusions about the issues raised in this Discussion Paper. Accordingly, the Discussion Paper does not favour any particular option or options canvassed here. This is because the Committee considers it important to hear and consider the views of all interested persons before formulating any conclusions.

Some of the questions overlap. This is deliberate and is intended to address different groups in the community and provide different ways of approaching the issues in the Discussion Paper.

The Discussion Paper is not intended to limit or confine submissions to those questions raised in it. The limits of the inquiry are defined by the terms of reference, and contributors should view the Discussion Paper as indicative of the relevant issues rather than exhaustive.

Introduction

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The Discussion Paper is also intended more broadly to be read as a guide by anyone interested in the inquiry but not wishing to make a submission.

The Discussion Paper is also available on the Committee’s website, accessible at http://www.parliament.vic.gov.au/lawreform/Warrant/MainWarrant.htm


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2 . B A C K G R O U N D T O T H E I N Q U I R Y

The Terms of Reference

The Committee received the terms of reference on 3 June 2003. They request the Committee to investigate warrants with only two limitations, namely that they should be Victoria’s powers or procedures and that they should be current. The Committee interprets the specification of “arrest warrants, warrants to seize property and search warrants” as including, but not limiting the inquiry to, those types of warrants. Therefore, the Committee will also consider other types of warrants, although it notes that the terms of reference do not provide any indication of which ones might be included. Some more general guidance is provided by the direction to have “particular regard to the need to promote fairness, consistency and efficiency”. These principles are considered below in the section on “Guiding Principles.”

The Inquiry in Context

This inquiry is part of a larger program of review and reform of various aspects of the Victorian justice system. As an aid to understanding the warrants inquiry, the Committee will briefly outline relevant parts of this program and how they relate to the inquiry.

INQUIRY INTO THE POWERS OF ENTRY, SEARCH, SEIZURE AND

QUESTIONING BY AUTHORISED PERSONS (INSPECTORS’ POWERS INQUIRY)

The Law Reform Committee formed during the 54th Parliament conducted an inquiry into the Powers of Entry, Search, Seizure and Questioning by Authorised Persons, for broadly similar reasons that led to the current inquiry. Some warrant powers and procedures, exercised by persons other than police, were reviewed as part of that inquiry. That Committee’s report (Inspectors’ Powers Report), tabled in 2002, highlighted inconsistencies and a lack of transparency among the search, seizure and related powers conferred on authorised persons for the purposes of monitoring


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compliance with legislation/licensing regimes and investigating, and in some cases prosecuting, breaches thereof.5

Of particular relevance to this inquiry is the fact that some authorised persons require a warrant to exercise their powers, while others do not. One of the Committee’s conclusions in its report was that “differences between similar Acts are more the result of historical accidents than of policy decisions”.6 To address this and other shortcomings in the regime of inspectors’ powers, the Committee recommended a more structured approach to the twin goals of monitoring compliance with legislation and investigating offences.

Clearly, the report and its findings have implications for the scope of this inquiry. These are discussed below in the section on “The Committee’s Approach”.

DEPARTMENT OF JUSTICE REVIEWS

THE ATTORNEY GENERAL’S JUSTICE STATEMENT

In May 2004, the Attorney General released the Justice Statement, a ten year program to modernise the justice system and reinforce the protection of individual rights.7 Several of its proposals are relevant to this inquiry, most notably:

• the planned review and replacement of the Crimes Act 1958 and the Bail Act 1977;

• the reviews of criminal procedure and of the effectiveness of infringement notices;

• improvements to Victorian courts’ access to and use of information technology;

• the intention to undertake a consultation on how best to protect human rights and obligations in Victoria; and

• the commitment to “adopt a multi-disciplinary approach to [disadvantaged people]… who are caught up in a cycle of offending and punishment”8

Clearly, the implementation of this program will necessitate a review of the warrant powers and procedures relevant to each particular aspect of the justice system. The Committee is keen to 5 Victorian Parliament Law Reform Committee, Powers of Entry, Search, Seizure and Questioning by Authorised Persons (‘Inspectors’ Powers Report’), available on the Committee’s website, at http://www.parliament.vic.gov.au/lawreform/Search%20&%20Seizure%20Information/Main.html. 6 Ibid 245. 7 The Attorney-General's Justice Statement: New directions for the Victorian Justice System 2004-2014 (‘Attorney-General’s Justice Statement’), available on the Department of Justice website, at http://www.justice.vic.gov.au/. 8 Ibid 15, 59.

Background to the Inquiry

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ensure communication between parties involved in the various reviews to encourage the most efficient use of resources and to ensure that recommendations are consistent and able to be implemented. Therefore the Committee considers it particularly important that agencies involved in the Department’s reviews have input into this inquiry.

REVIEW OF INFRINGEMENT NOTICES

The Committee is aware that the Department of Justice has already commenced the review of the use of infringement notices. Such notices are used as an alternative to prosecution for a range of minor offences such as speeding, parking and public transport offences. Issues under review include the types of summary offences which are suitable for infringement notice offences, available penalties and alternative approaches to cases involving particular groups of people who attract a disproportionate amount of notices and fines, such as the homeless, people with a mental, intellectual or physical disability or an addiction. The Committee is particularly concerned about the experiences of these and other disadvantaged groups in relation to warrant powers and procedures. This is discussed in more detail in Section Seven of the Discussion Paper.

REVIEW OF SHERIFF’S OFFICE

In addition, the government is proposing to review the law relating to the operations of the Sheriff in Victoria with a view to consolidating and standardising legislation and powers. According to the Department of Justice’s most recent annual report, the proposed Act “should result in greater effectiveness and efficiencies in the enforcement of court orders and warrants.”9

9 Department of Justice, Annual Report 2002-2003, 61.


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3 . T H E C O N D U C T O F T H E I N Q U I R Y

The Committee’s Approach

The purpose of the inquiry is to review warrant powers and procedures to ensure their fairness, consistency and efficiency. The Committee will achieve this by identifying warrant provisions, categorising them according to their purpose and analysing them against those three principles.

In this part of the Discussion Paper, the Committee outlines the process of identifying and categorising warrant provisions. The Committee discusses fairness, consistency and efficiency and questions that flow from those principles in Section Five.

IDENTIFYING WARRANT POWERS AND PROCEDURES

The Committee has reviewed warrant provisions and warrant-like powers. The latter group, although not technically warrant powers or procedures, have the same effect as warrants, such as authorising detention,10entry or search,11 and are found in common law12 and legislation.13 The Committee therefore considered that to exclude them absolutely from the inquiry would be to make an artificial distinction.

WARRANT PROVISIONS

There are many warrant powers in Victoria: the Committee’s preliminary research for this inquiry has identified more than 140 warrant provisions, contained in 92 Acts, that cover criminal and civil law, health, welfare and related issues and legislative regulation. These statutes are detailed

10 For example Victoria Racing Club Act 1871 s 22, which authorises, without warrant, the seizure and detention of a person committing an offence under the Act; Crimes Act 1958 s 458 authorises the arrest without warrant of a person in certain circumstances, such as being found committing an offence, or escaping from legal custody. 11 For example, the Coroners Act 1985 ss 26, 41, which respectively authorise entry, search and seizure in connection with coronial investigations of deaths and fires; Children’s Services Act s 38, authorising entry and search on reasonable suspicion of the commission of an offence against the Act. 12 Common law is an unwritten body of law derived from cases decided by courts rather than from statutes passed by the legislature (Parliament). 13 For a general overview of common law and statutory powers, see Richard Fox, Victorian Criminal Procedure 2002 (2002), 98-103, 106 (arrest), 118-120, 125-126 (search and seizure); Tronc, Crawford and Smith, Search and Seizure in Australia and New Zealand (1996) 1-38, 47-52.


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in Appendix 1. That list is not necessarily exhaustive given the range and number of legislative provisions involved. The Committee therefore welcomes comments regarding additional or alternative warrant provisions that it has not identified.

An analogous exploration of Commonwealth statutes is merited as many Commonwealth provisions are applicable in Victoria, either specifically in its courts or more generally on Victorian territory by Commonwealth agents. The Committee has accordingly identified 441 provisions in 127 Commonwealth Acts.

The Committee’s challenge is to ensure that its review is comprehensive without becoming unwieldy. It is beyond the resources of the Committee to examine in detail all of the provisions identified. Moreover, Commonwealth laws are more appropriately reviewed by Commonwealth bodies. The Committee therefore proposes to give priority in this inquiry to the most significant Victorian warrant provisions. Commonwealth provisions will be included only in so far as they may be relevant for comparative purposes or as offering options for reform. Once again, the Committee welcomes comments or suggestions in relation to this proposal, in particular whether particular Commonwealth powers are so critical that excluding them would impact on the value of the Committee’s final report.

How wil l the Committee determine the most signif icant provisions?

In considering which powers and procedures to give priority to, the Committee will have regard to:

• the frequency of use of a provision;

• concerns arising from the application of a provision; and

• cases that do not meet these two criteria but which are nevertheless of particular concern, such as the use of warrants in relation to vulnerable groups.

Later in this Discussion Paper, within the analysis of the various categories of warrant powers and procedures, the Committee discusses the provisions that it considers meet these criteria, based on initial consultations with stakeholders and its own research. The Committee invites stakeholders to propose additional or alternative provisions for its consideration.

WARRANT-LIKE POWERS

The Committee has compiled a non-exhaustive list of 150 such provisions in Victorian legislation. In some cases these powers address situations where it is impractical to seek and obtain a warrant,

The Conduct of the Inquiry

11

such as emergencies14 or other relatively urgent circumstances, for example the availability of a power of arrest to police or citizens who witness an offence being committed.15 Other powers authorise entry, search, seizure, detention or questioning, or a combination of those activities, in ordinary circumstances.

The Committee proposes to consider warrant-like powers only in so far as they are relevant to its discussion of when it is appropriate to make the operation of a particular power subject to a requirement to obtain a warrant. This issue is discussed in Section 6.

COMMENTS ON THE INSPECTORS’ POWERS INQUIRY

Overlapping scope

The Committee notes that the Inspectors’ Powers Inquiry was limited to particular types of warrants and warrant-like powers available to particular classes of individuals and agencies, and that the inquiry did not address in depth important issues relevant to warrant powers, such as the reasonable grounds requirement that must be satisfied before many warrants can be issued.16 The Committee’s process for identifying the most significant warrant provisions will not exclude powers on the basis of who may exercise them. Accordingly, this inquiry will include three areas that were explicitly excluded from the Inspectors’ Powers Report, namely powers available to: members of the police; the Sheriff’s Office; and agencies as part of their mandate to protect children and other vulnerable persons.17 The Committee will only consider warrants available to authorised persons where they are determined to be among the most significant warrant provisions and the Inspectors’ Powers Report does not provide sufficient or appropriate guidance on a particular issue that they raise.

Relevant analysis

The current inquiry will be greatly assisted by the work undertaken during the Inspectors’ Powers Inquiry. Relevant discussions, submissions and conclusions from that inquiry will be considered

14 For example, the Terrorism (Community Protection) Act 2003 ss 16-21 empower senior police officers who reasonably believe that a “terrorist attack” has or may have occurred and produced biological, chemical or radiological contamination to authorise the forcible movement, detention and decontamination of affected people; the Surveillance Devices Act 1999 ss 26-27 allows senior officers to authorise surveillance in situations of imminent serious threat, where the use of a surveillance device is immediately necessary and warranted and where it is not practicable to apply for a warrant. 15 Crimes Act 1958 s 458 (1). 16 Inspectors’ Powers Report above n5, 170-171, although the Committee notes that the Report did discuss the seizure of items not specified on a warrant, at 191-197. 17 For details of these exclusions from the Inspectors’ Powers Inquiry, see Inspectors’ Powers Report above n5, 12-13.


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by the Committee, which will seek updated information from stakeholders where appropriate, for example in relation to the registering of warrants under s57 of the Magistrates’ Court Act 198918 and the operation of the after-hours services of the Court.19 The Committee will also consider reactions to relevant recommendations in the report, particularly the extent to which the recommendations have been implemented.

CATEGORISING WARRANT PROVISIONS

There are a number of ways to analyse powers as diverse as the ones under consideration here. An obvious one is to consider warrants by what they authorise, such as search, arrest, and /or seizure. The Committee feels that this approach is not efficient, however, as many search warrants authorise seizure and, implicitly or explicitly, arrest or detention,20 while many arrest warrants authorise search, and thus an analysis based on the various different powers conferred by warrants would involve potentially confusing repetition.21

Another method is to consider warrants according to whether they operate in a criminal or civil jurisdiction. Again, the Committee feels that this distinction is of limited use as many of the issues the Committee will consider relate to the way in which the provisions operate rather than the character of the law governing them, notwithstanding that the classification of a matter as criminal or civil has an important effect on how it is handled by the justice system.

The Committee feels that the operation of warrants is, or should be, directly related to the purpose for which they are available and therefore proposes to structure its analysis based on the underlying objectives of warrant provisions. To minimise repetition, the Committee will consider common issues together. This leads the Committee to propose five categories:

1. general issues common to warrants;

2. warrants relating to the investigation or prevention of criminal offences;

3. warrants relating to the enforcement of proceedings;

4. warrants relating to monitoring compliance with legislation; and 18 Ibid 166-167. 19 Ibid 167-168. 20 “An arrest warrant issued in Victoria automatically includes the authority to break, enter and search any place in which the person named or described in the warrant is suspected to be found”, Richard Fox, Victorian Criminal Procedure 2002 (2002), 121, citing, Magistrates’ Court Act 1989 s 64(1). 21 The Committee notes that this approach was used in the Inspectors’ Powers Report, but considers that it is nevertheless unsuited to this Inquiry. Whereas the powers of authorised persons under review there had limited purposes (monitoring compliance with and investigating breaches of the law), warrant powers and the agencies that can issue and execute them have a considerably broader range of purposes and characters.

The Conduct of the Inquiry

13

5. warrants relating to the protection of vulnerable groups.

Once again, the Committee welcomes any comments on this proposed methodology.

Stages of the Inquiry

CONSULTATION

Preliminary research revealed a large and disparate range of subjects potentially within the terms of the inquiry. As an aid to identifying the major topics of concern, the Committee decided to undertake preliminary consultations with a number of stakeholders selected because of their level of practical knowledge of warrant procedures. The Committee wrote to 39 stakeholders and received substantive comments from 18, as well as informal comments from a number of other stakeholders. These responses have greatly assisted the Committee in developing a proposed structure for the inquiry’s analytical framework and the preparation of this Discussion Paper.

The Discussion Paper is being distributed among a wide range of stakeholders selected to represent a cross section of the community. After receiving any submissions prompted by the Discussion Paper, the Committee will invite witnesses to attend public hearings, currently scheduled for October 2004.

The Committee’s chief aim during the consultation stages of the inquiry is to provide an opportunity for all members of the community who have experiences of warrant powers and procedures to have input into its deliberations, to ensure that the Committee is informed by the widest range of views as it considers its conclusions. The Committee is, however, conscious that it has limited access to certain parts of the community, and that the law reform process can be remote, complex, technical or intimidating for sections of the community. Accordingly, the Committee invites comment on other mechanisms, such as focus groups, that might be used to obtain such views. The Committee would also like to hear from individuals and groups who deal with warrants on a regular basis about whether they would find it more convenient to make their views on existing powers and procedures known through collective meetings or feedback sessions rather than through written submissions.


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REPORT

Once these consultation stages are complete, the Committee will draft its report. The final report will be tabled in the Victorian Parliament. The Government is required to respond to the Committee’s recommendations within six months of the tabling date.22

22 Parliamentary Committees Act 2003 s 36.

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4 . O V E R V I E W O F W A R R A N T S

Terminology

Warrants play a role in the operation of the justice system, the financial sector,23 the system of military ranks24 and certain administrative functions of the executive.25 The Committee will limit its inquiry to warrants as they operate in the justice system.

The Committee considers that all the warrants it has identified in its research to date serve a law enforcement function, in the broadest sense. For that reason, the Committee will use the term “justice system” to include individuals, agencies and entities that have involvement with warrant powers and procedures.

The Committee understands the phrase “powers and procedures” in the terms of reference to refer respectively to the substantive law governing warrants and to the practical operation of such law. Throughout this Discussion Paper, the Committee uses “powers” and “provisions” interchangeably with these terms.

What are warrants?

There is no mystery about the word ‘warrant’: it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal.26

A writ or order issued by some authority, empowering a police or other officer to make an arrest, search premises or carry out some other action relating to the administration of justice.27

The theme common to all warrants, whatever their application, is the concept of authorisation. Warrants are an instrument that permits the person or entity to whom they are issued to do something or act in a way that would be unlawful but for that permission.

23 Australian Stock Exchange glossary, at http://www.asx.com.au/glossary/Glossary.shtm. 24 “Military Organisation and Structure”, on Australian War Memorial site, at http://www.awm.gov.au/atwar/structure/rank.htm. 25 “Warrants”, in Encyclopaedia Britannica, at http://99.1911encyclopedia.org/W/WA/WARRANT.htm. 26 Lord Wilberforce, IRC v Rossminster Ltd [1980] AC 952, 1000. 27 The New Shorter Oxford English Dictionary (1993), 3626.


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Warrants can be issued to arrest, remand, search, seize property, imprison, enforce penalty infringement notices28, conduct surveillance,29 carry out forensic procedures,30 enable protective measures for children and young people,31 examine mental health32 and facilitate the operation of the guardianship system.33

A safeguard to regulate competing interests

The requirement of a warrant is a practical safeguard which both common law and statute provide against arbitrary interference with the personal liberty and property of the individual. The state official wishing to seize a person or his or her property must swear on oath before an independent judicial officer as to the need for that interference. The law will scrutinise warrants carefully, both as to the validity of their issue and the power they confer.34

This quote reflects the role of warrants in upholding fundamental principles of the rule of law: that citizen’s rights should not be limited by the state, except where it is in the public interest to do so; and that such limitations should be transparent, imposed by an entity that is independent of the state and in circumstances that afford citizens the right to challenge such limitations. Put differently, the requirement to seek and possess a warrant illustrates:

“the balance between two competing public interests. There is a public interest in the effective administration of justice and government. However, there is also a public interest in preserving people’s dignity and protecting them from arbitrary invasions of their property and privacy… Neither of these interests can be insisted on to the exclusion of the other, and proper and fair laws which authorise the entering and searching of premises can only be made where the right balance is struck between these two interests.”35

Although the Senate Standing Committee limited its concern in its Report that the quote above is taken from to entry, search and seizure powers, the principle of balancing competing public interests is central to the operation of the entire justice system, including the parts of it that deal with warrants. The Committee therefore applies the Standing Committee’s views to powers beyond entry, search and seizure provisions.

The Standing Committee developed the theme further:

In principle, the community should prevent the taking of any untoward and arbitrary action, whether taken for a public or private purpose. This is a principle which … rests on the belief that

28 Magistrates' Court Act 1989 ss 57, 61, 68, 73, 75, 79, 82B. 29 Surveillance Devices Act 1999 s 13. 30 Crimes Act 1958 ss 464T(9), 464X, 464ZFA. 31Children and Young Persons Act 1989 ss 69(1)(b), 70(3), 72(7), 79(5), 80(3)-(4), 80(5)-(6), 95(3)-(4), 98(4), 110(2A), 111(3)-(4) and 265(1). These warrants are described in Section Seven of this Discussion Paper. 32 Mental Health Act 1986 ss 11. These warrants are described in Section Seven of this Discussion Paper. 33 Guardianship and Public Administration Act 1986 ss 26, 27. These warrants are described in Section Seven of this Discussion Paper. 34 Challenge Plastics Pty Ltd v The Collector of Customs for the State of Victoria (1993) 42 FCR 397, 405. 35 Senate Standing Committee for the Scrutiny of Bills, Entry and Search Provisions in Commonwealth Legislation, Fourth Report of 2000 (6 April 2000) (‘Senate Report’) 67.

Overview of Warrants

17

no individual or organisation should be allowed to take an arbitrary action which will adversely affect another – whether that person or group or organisation operates in a public or private capacity.

Laws which authorise entry and search [and other actions permissible under warrant] should preserve and foster civil life. They should ensure that the community is fair, free and secure. Their aim should be the wellbeing of, and equity for, each and every member of the community.36

The “wellbeing and equity” of the community has been protected by common law, in a long line of cases dating back to 1604:37

courts strive to balance the competing interests of the citizen to the inviolability of his home…and of the state to prevent the commission of crime and to obtain evidence in aid of the prosecution of offenders.38

Warrants in practice

The power to issue warrants is now conferred by statute,39 although common law still plays an important role in qualifying the powers conferred by warrants and the procedures for applying for and executing them.40

The person or entity who seeks to have the act done typically applies to a court or other authority empowered to issue the warrant, presenting evidence to satisfy the applicable standard for the issue of the warrant. To issue a valid warrant, the authority hearing the application must comply with one or more of several requirements, common ones being that s/he is reasonably satisfied that the evidence supporting the request justifies the warrant, and the inclusion of certain information on the warrant. Many warrants include additional obligations and restrictions on the individual or agency empowered to execute them, such as limits on how long the warrant remains valid41 and a requirement to submit a report on the execution of the warrant to the issuing authority.42

Having thus outlined what warrant powers are, the Committee will now turn to describing the principles that will guide its conduct of the inquiry.

36 Ibid 68. 37 For a discussion of the original case, Semayne v Gresham (1604) 77 ER 194, and the subsequent gradual qualification of protections in respect of entry, search and seizure powers see Tronc, Crawford and Smith, above n13, 1-8. 38 Crowley v Murphy (1981) 52 FLR 123, 141. 39 Magistrates' Court Act 1989 ss 57-59; Crimes Act 1958 s 457. 40 On search and seizure, see Tronc, Crawford and Smith, above n13, 1-8; Ian Freckleton, ‘Criminal Procedure’, Search and Seizure, 2-5537, 2-5544-5545; see Fox, above n, 98-107 for common law regulation of arrest and bail. 41 For example, Surveillance Devices Act 1999 s 18(1)(b)(viii) (90 days or sooner if revoked); Prostitution Control Act 1994 s 61L(3)(d) (28 days); Firearms Act 1996 s 146(3)(f) (7 days). 42 For example, Confiscation Act 1997 s 89; Drugs, Poisons and Controlled Substances Act 1981 s81(4)(b); Associations Incorporation Act 1981 s 37P.


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5 . G U I D I N G P R I N C I P L E S

The Committee is requested in paragraph two of the terms of reference to have particular regard to the need to promote fairness, consistency and efficiency when considering whether and how warrant provisions should be reformed. In this section, the Committee outlines these principles and poses some questions that flow from them. As the principles are fundamentally linked –consistency is an element of fairness, and attitudes and approaches to both can influence the efficiency of laws and actions - the questions overlap. Moreover, some of the questions are adapted from the Discussion Paper on the Powers of Entry, Search, Seizure and Questioning by Authorised Persons (Inspectors’ Powers Discussion Paper) prepared by the Law Reform Committee of the 54th Parliament, as that inquiry’s terms of reference explicitly included fairness and consistency and implicitly incorporated efficiency.43

Fairness

…fairness itself is rarely defined, and thus appears vague and elusive… While the concept is multi-layered and often contextually specific, it is arguable that it is one of the few values that provide a unifying force in a community.44

People have no difficulty in perceiving what is just once they have a particular context in which to assess fairness - ‘once a set of facts is advanced, fairness or what is fair becomes much less elusive’.45

One legal philosopher offered this definition:

A practice will strike the parties as fair if none feels that, by participating in it, they or any of the others are taken advantage of, or forced to give in to claims which they do not regard as legitimate.46

The determination of whether a particular provision or action is fair depends on balancing “the state’s interest in suppressing crime and prohibited conduct for … the preservation of a peaceful

43 The terms of reference mention “the purpose, effectiveness, fairness and consistency of provisions in Victorian legislation…”. 44 Richard Fox, On-the-Spot Fines and Civic Compliance (2003) Volume 2, 48-49. 45 E W. Thomas, Fairness and certainty in adjudication: formalism v substantialism, Otago Law Review 9(3), 459, quoted in Fox, above n44, 49. 46 John Rawls, ‘Justice as Fairness’ (April 1958) 67 The Philosophical Review 164 quoted in Fox, above n44, 34.


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and ordered community” with “the need to maintain respect for the dignity, privacy and human rights of individuals [that] protect citizens from arbitrary, irregular, illegal or excessive invasion of their liberties by police, prosecuting authorities, or judicial procedures.”47

These human rights are reflected in the codification of minimum standards of fairness in international and domestic law. These protections cover substantive and procedural elements of fairness.48 The former refers to the “reasonableness of the actual law being enforced”.49 The procedural aspect of fairness is commonly described as due process and “involves the operation of proper and fair laws to control the actions of investigating and monitoring authorities”,50 or the:

retention of core safeguards such as specific accusations, a known process, an opportunity to be heard or make submissions in one’s defence, proportionate penalties, and rights of appeal to correct obvious legal errors.51

The International Covenant on Civil and Political Rights, although not directly enforceable in Australia,52 includes guarantees of equality before the law and to freedom from discrimination,53 torture or cruel, inhumane or degrading treatment or punishment54, protection against arbitrary or unlawful arrest, detention,55 interference with privacy, family or home,56 and a right of legal protection against such attacks. In Australian law, safeguards form an “extensive matrix of rules, standards and presumptions that require fairness”, such as the requirement that charges be clearly defined, the right to an independent and impartial hearing before a tribunal established by law and to be represented by counsel.57

The courts have established minimum guidelines for the issue of warrants, governing the duty of judicial officers and what the warrant must contain:

• when approached to issue a warrant, a justice must act as an independent authority, exercising his or her own judgment and not automatically accepting the informant’s claim;

47 Fox, above n44, 49. 48 For a more general discussion of elements of fairness and procedural fairness, see Australian Law Reform Commission, Principled Regulation: Civil and Administrative Penalties in Australian Federal Regulation, Report 95 (1995) chapters 14-15. 49 Ibid. 50 Senate Report above n35, 67. 51 Fox, above n44, 49. 52 Except perhaps in the Australian Capital Territory, see Human Rights Act 2004 (ACT). 53 International Covenant on Civil and Political Rights G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 Article 26. 1966, Article 26 54 Ibid Article 7. 55 Ibid Article 9(1). 56 Ibid Article 17. 57 Fox, above n44, 49.

Guiding Principles

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• a justice has a discretion which s/he must exercise judicially – to enable this discretion to be properly exercised, the informant must put forward adequate sworn evidence;

• the warrant itself must clearly state the findings of the justice;

• as a corollary of the power of seizure, a particular offence must be specified, both in the information and in the warrant – this is so even where the statute simply uses the words “any offence” and makes no clear reference to a need to specify a particular offence;

• the warrant must not authorise the seizure of things in general, or things which are related to offences in general, but should only authorise the seizure of things by reference to the specified offence;

• the warrant may be struck down for going beyond the requirements of the occasion in the authority to search; and

• the time for execution of the warrant must be strictly adhered to.58

The Magistrates’ Court Act 1989 contains a set of general requirements that warrants must conform to. These provisions are listed in Appendix 2 to this Discussion Paper.

The courts have also ruled that ambiguities on a warrant will be resolved in favour of the citizen.59

The existence of these rights thus acts as a constraint on the exercise of power by the state and its agents. Yet their effect may be to “thwart the pursuit of legitimate [law enforcement] goal[s]”60 if they are not interpreted in the context of the public interest in having effective mechanisms to address activities and events that harm the community. It follows from this that the determination of whether warrant powers and procedures strike that appropriate balance between the public interest and individual rights depends on whether they are proportional to the gravity of the need they are designed to address –whether the provisions fall short of, match, or exceed the “level of harm they are intended to combat”.61

When commenting on particular warrants, the Committee asks those making submissions to consider the following questions.

Question 1. Why is the particular warrant power and procedure needed? What is its purpose?

58R v Tillet (1969) 14 FLR 101, 108, quoted in Tronc, Crawford and Smith, above n13. 59IRC v Rossminster Ltd [1980] 1 All ER 80, discussed in Tronc, Crawford and Smith, above n13. 60 Department of Justice Legal Policy Unit, Submission no 26 to the Inspectors’ Powers Inquiry, 4-5. 61 Inspectors’ Powers Report, above n5, 20.


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Question 2. Can the power be justified and is it proportionate to need? Is it the least intrusive measure necessary to carry out the purposes for which the warrant is granted?

Question 3. Has past practice shown a need for the full extent of the powers granted?

Question 4. Do the powers and the way in which they are exercised take account of the different circumstances of diverse groups within the community?

Question 5. Is the exercise of the warrant provisions subject to effective oversight?

Question 6. Have both the powers and the exercise of the powers been recently and regularly evaluated to determine their ongoing appropriateness?

Question 7. What remedies exist for people dissatisfied with the powers, procedures or their exercise?

Consistency

The public interest in promoting consistency across warrant powers and procedures flows from the expectation that “people should be able to know their rights and responsibilities.”62 In other words, it should be reasonably easy for individuals and agencies who issue, execute and are subject to warrants to discover what they are entitled to and must do. Provisions that are inconsistent without good cause frustrate that expectation.

Consistency “refers to the effect and application of provisions, rather than merely consistency in their wording”.63 Indeed, it is not the same as uniformity. The law should be sufficiently flexible to take account of the varying goals and needs of the state in regulating different areas of activity. Therefore, a key factor affecting any evaluation of the degree of consistency is the purpose of particular provisions. The preceding questions related to fairness canvass the issue of purpose.

62 Department of Justice Legal Policy Unit above n60, 8. 63 Senate Report, above n35, 92.

Guiding Principles

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The Committee invites comments on the consistency of Victoria’s warrant powers and procedures, both within Victoria and compared to Australian and international jurisdictions.

Question 8. What is the effect of inconsistencies in the warrant provisions and what advantages would greater consistency achieve?

Question 9. How can greater consistency be achieved? Would a set of principles or guidelines for Victorian legislation be desirable and effective?

Question 10. Where legislation seeks to grant powers which do not comply with the guidelines (if these are developed), what procedure/s would be appropriate for seeking to justify broader powers?

Efficiency

An entity is efficient if it is able to achieve its objectives with the minimum amount of effort or resources. 64 In the context of the justice system, efficiency is relevant both to the broad public interest goals and to the individual rights that the justice system serves and upholds.

As indicated above in the discussion of fairness, the justice system is expected to effectively prevent and respond to harm within the community that it forms a part of. It performs these functions by monitoring the community’s compliance with applicable laws, dealing with alleged breaches, conducting hearings, enforcing judgements and overseeing a framework of protective support for certain sections of the community. The measure of the system’s efficiency is the extent to which it can carry out these roles in a timely way and according to law: it should be able to preserve the integrity of the community as a whole; and individual citizens who encounter the justice system have a reasonable expectation that the system will respond to their needs expeditiously (if not necessarily favourably).

The justice system’s ability to meet this expectation is, however, limited by the resources available to the community, which are finite and which the state must allocate to what are effectively infinite needs. As a result, whether the justice system operates efficiently depends on the circumstances of each case –the minimum amount of necessary effort or resources will vary across different situations.

Moreover, the efficiency of the justice system is subject to internal and external constraints that go beyond individual cases. Internal constraints, such as inadequate accountability and training 64 The New Shorter Oxford English Dictionary (1993) 787.


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practices, may limit the efficiency of its officers, and procedures, and consequently its institutions. External constraints tend to affect the perception and performance of the system as a whole. They may be logistical, such as limited funding and availability of suitably qualified personnel. Yet the constraints may also be structural, in the sense that a system that must continually balance the rights and interests of competing community interests is unlikely to be regarded by the whole community as efficiently addressing those claims. Put differently, such a system is unlikely to be able to please every section of the community.

These constraints are related -training must be funded and suitably trained personnel can have a positive impact on attitudes toward the justice system- but also operate independently of each other in many circumstances.

Warrant powers and procedures are subject to both internal and external constraints. For example, several respondents to the scoping questions expressed concern about the training and accountability of individuals who grant and execute warrants, while other comments revealed competing interests in several aspects of warrant provisions.65

Question 11. What internal and external constraints limit the efficiency of particular warrant powers?

Question 12. Are reforms necessary to improve efficiency? What reforms would achieve this?

Question 13. How could such reforms be most efficiently implemented?

65 For example, the comments of Victoria Police and the Police Association on, respectively, accountability and the electronic collection of evidence are the opposite of observations made by the Victorian Aboriginal Legal Service, Victoria Legal Aid and Brian Walters S.C.

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6 . G E N E R A L Q U E S T I O N S

As discussed in Section Three, the Committee proposes to consider warrants according to five categories. The first deals with themes that generally have implications for all warrants and is explored in this section. The remaining four categories relate to specific uses of warrants - the investigation or prevention of criminal offences, the enforcement of proceedings, monitoring compliance with legislation and the protection of vulnerable groups- and are dealt with in Section Seven.

In this part of the Discussion Paper, the Committee identifies issues that are relevant to all of the warrants that fall within its scope in this inquiry and poses questions that arise from them. The Committee considers these matters in three parts: fragmentation; creation; and control of warrant provisions.

Parts of this section are based on the responses the Committee received to its scoping questions.66

Fragmentation

The Committee received comments highlighting the fragmented state of the current law on warrants. One submission67 pointed to the division of powers between the Magistrates’ Court Act 1989 and the Crimes Act 1958. The former contains general provisions in a single place,68 while the provisions in the Crimes Act 1958 are found in different sections, generally organised by offence rather than procedure.69 The same submission noted that gaps in legislation, for example, regarding what constitutes a lawful arrest and the temporal validity of warrants, made it necessary to rely on common law powers, which increases the potential for uncertainty and inconsistency in the application of the law.

Similarly, comments by the Office of the Public Prosecutor identified a number of legislative ambiguities and gaps, including:

66 The Committee is particularly grateful to Dr. Steven Tudor, of the School of Law and Legal Studies at La Trobe University, for his suggestions. 67 Preliminary submission, Dr. Chris Corns. 68 Magistrates' Court Act 1989 ss 57-82F (Division 3). 69 Crimes Act 1958 ss92 (stolen goods), 340-345 (extra-territorial offences), 415 (witnesses), 464T(9), 464X, 464ZFA (all for forensic procedures), 465 (search and seizure in relation to indictable offences), 470 (search for female unlawfully detained for immoral purposes).


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• a dearth of statutory procedure governing the withdrawal of warrants;

• the use of bench warrants in situations where legislative provisions are inappropriate, such as the unsuitability of the s66 Magistrates’ Court Act 1989 absconder warrants in cases where accused abscond during trial or before sentencing (s66 requires that accused have not appeared and plead to an indictment or presentment);

• a lack of clear definitions for “at large” used in relation to absconders in s66 of the Magistrates’ Court Act 1989, and “reasonable expenses” used in relation to witnesses in s415 of the Crimes Act 1958.

In general, OPP has overcome these difficulties by developing organisational practices, procedures and warrants. OPP notes that while it has no significant practical concerns about that approach, it feels that a statutory basis for all warrants would be more appropriate.

This state of fragmentation is a product of the ad hoc way in which warrant powers have developed in response to particular needs.70 While the Magistrates’ Court Act 1989 does contain standards for warrants issued under its authority and many other Acts refer back to that legislation, Victoria nevertheless lacks a coherent set of principles and resulting procedures to govern the creation and control of all warrant provisions.

Creation: the availability and organisation of warrant powers

AVAILABILITY - WHEN IS A WARRANT POWER APPROPRIATE

One of the problems identified in the Inspectors’ Powers Report was the inconsistency of availability of warrant powers. Some Acts required authorised persons to obtain a warrant to exercise their powers, while others contained within themselves the authority to exercise particular powers. In its conclusions, the Law Reform Committee of the 54th Parliament suggested a more structured approach:

powers exercised for the purpose of investigating suspected offences potentially have a greater impact on the privacy and liberty of individuals and should therefore generally require inspectors to obtain a search warrant which functions as an extra layer of protection for those subject to coercive powers.71

Two of the Committee’s recommendations in particular are relevant to this inquiry, namely:

70 For example, the Crimes Act 1958 has apparently been amended over 1500 times. Attorney-General's Justice Statement, above n7, 26. 71 Inspectors’ Powers Report, above n5,50.

General Questions

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That as a matter of general principle, warrants be required for the investigation of suspected offences and for entry into residential premises [and]

That, as a matter of general principle, warrants not be required for the monitoring of compliance with primary legislation or in responding to genuine and clearly defined emergencies [provided that safeguards recommended in the Report are followed].72

The Committee also considered the adoption of standard principles and provisions and consulted the Office of the Chief Parliamentary Counsel (OCPC) about the effects of legislating to that effect. OCPC advised that guidelines should be enshrined in legislation to avoid legislative drafters from different agencies undermining standard provisions. The Committee therefore recommended:

That authorised persons’ powers of entry, search, seizure, questioning and the power to require the production of documents conform with the set of principles set out in Chapter 2 [of the report].73

That those principles relevant to determining the content of legislation be contained in stand-alone legislation.

That those principles relevant to the policy and procedure of agencies be developed into a set of procedural guidelines by each agency and that these guidelines be assessed by the standards unit to ensure consistency across agencies wherever possible.74

In its response to the Committee’s Report, the Government stated that it would consider the question of when it is appropriate for warrants to be required for the exercise of inspection powers,75 and that it supported in principle the development of standard guidelines and procedures. It also agreed to consider stand-alone legislation to enact such principles.76

The Committee again notes the limited scope of that Report but considers that its findings on this issue and the Government Response are central to this inquiry. An important means of achieving the Committee’s goals of promoting fairness, consistency and efficiency is to encourage consistency among agencies when they decide what powers are necessary to achieve a particular purpose and how such powers should be exercised. The Committee will therefore consider which powers are subject to warrants and the criteria that influence decisions about whether to require warrants.

72 Recommendations 71 and 72, ibid, 259. 73 As an aid to stakeholders, these principles are listed in Appendix 3 to this Discussion Paper. 74 Recommendations 77-79, ibid 276. 75 Government Response to the Victorian Parliament Law Reform Committee, The Powers of Entry, Search, Seizure and Questioning by Authorised Person (2002) (‘Government Response’) 18-19. 76 Ibid, 20.


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POWERS

Question 14. What powers should and should not be subject to warrant? Are there situations where respectively, i t should not and should be necessary to obtain a warrant to exercise such powers?

CRITERIA

Question 15. If criteria are developed for drafting purposes to determine whether a power can be exercised with or without a warrant, what should those criteria be?

Question 16. Are there any other considerations that are relevant to the determination of whether a warrant power is necessary?

THE ORGANISATION OF WARRANT PROVISIONS

Several preliminary submissions received by the Committee for this inquiry recommended consolidating warrant provisions that are currently “scattered over a number of different Acts”,77 to “provide greater consistency, certainty, simplicity”.78 Options include a single warrants Act, perhaps with sections dealing with different warrants and a default set of provisions for any that would otherwise fall outside its scope; or a series of Acts governing different warrants, similar to the Search Warrants Act 1985 (NSW).

The Inspectors’ Powers Report considered this issue in relation to the narrower area of search warrants available to authorised persons. It recommended that the Government consider how to enhance the clarity and consistency of such warrants and called on it to pay particular attention to the Search Warrants Act 1985 (NSW).79 In its response, the Government committed to “giving further consideration as to whether any legislative reforms might improve the operation of search warrants”.80 In this inquiry, the Committee intends to revisit the New South Wales Act and the experiences of agencies affected by its provisions.

Question 17. Could a general Warrants Act or Acts for Victoria help improve the consistency and effectiveness of warrant powers?

77 Preliminary submission, Dr. Steven Tudor. 78 Preliminary submission, Dr. Chris Corns. 79 Inspectors’ Powers Report, above n5, 169-170. 80 Government Response above n75, 14.

General Questions

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Question 18. What impact would such an Act or Acts have on the Magistrates’ Court Act 1989, particularly Schedule 7 on PERIN procedures?

Question 19. What other related legislative reforms might improve the operation of warrants?

Control: the regulation of warrant powers

In addition to themselves being a form of control on the exercise of state power, warrant provisions are subject to various controls, which operate at the application, issue and execution stages of the life of the warrant. These are outlined in this part of the Discussion Paper. Before doing so, however, the Committee considers two general controls: the warrant terms; and administrative management of warrants.

THE WARRANT TERMS

The warrants themselves incorporate several controls in their terms, such as limitations on who can issue and execute them, at what times, in what manner and what action is required after execution.81 The Committee notes that warrant provisions lack consistency, for example in relation to human rights protections and temporal validity.82 The Committee therefore invites comments on the desirability of standardising warrant provisions.

One option is the adoption of model warrant provisions that could be used when drafting new powers and amending existing ones. Any model would need to combine a minimum level of human rights protections with sufficient flexibility to make such provisions suitable for the range of purposes that warrants currently serve.

The Committee notes that this issue was addressed in the Inspectors’ Powers Report and includes relevant portions here to assist stakeholders, noting that the report was limited to search, seizure, questioning and detention powers exercisable by authorised persons.

The Law Reform Committee of the 54th Parliament recommended that search warrant provisions at a minimum require announcement before entry and the provision of a copy of the warrant to the occupier of the premises being searched; and

that statutes conferring coercive powers… contain other common protections, including:

81 For example the warrants contained in Forms 2, 8, 11-15 of the Magistrates' Court General Regulations 2000 and Schedule 5 of the Crimes Act 1958, and the requirements contained in Magistrates’ Court Act 1989 ss 57-82F. 82 Refer to the legislation detailed above n41 for examples of different time limits on warrants.


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• exactly what the search warrant must cover

• a sun-set clause on warrant validity

• procedures for dealing with disputed seizures

• time limits for the return of material seized83

The Government supported these recommendations in principle and stated that it would consider the best approach to implementing them.84

The Commonwealth Senate Scrutiny of Bills Committee also considered model provisions during its inquiry into search and entry provisions. It noted that the Commonwealth Attorney-General had sought consistency among relevant provisions by developing a set of guidelines that included “de facto model provisions which are used to assist in the drafting of new provisions”.85 Since the Senate Committee’s Report, the Attorney-General has revised and reissued the guidelines.86 Many of these updated principles are relevant to this inquiry and are quoted below to assist stakeholders in formulating their submissions:

83 Inspectors’ Powers Report, above n5, 173. 84 Government Response above n75, 14. 85 Senate Report, above n35, 93-95. 86 Minister for Justice and Customs, A Guide To Framing Commonwealth Offences, Civil Penalties And Enforcement Powers (February 2004).

General Questions

31

9. ENTRY, SEARCH AND SEIZURE 9.1 Entry powers generally […]

Entry requisites

There must be a proper basis for entry

Principle: Legislation should only authorise entry to premises under warrant or by consent, or in a limited range of other circumstances such as a condition of a licence.

Discussion: An occupier of premises is entitled to decide who may enter the premises unless some other consideration overrides that right. A warrant is the most common mechanism for authorising entry to premises.

[…]

9.4 Entry under force of law Notification of entry

Occupier required to be given warrant and informed of rights

Principle: Provisions allowing entry and search of premises without consent should require that the occupier be given a copy of any warrant and be informed, in writing if practicable, of his / her rights and responsibilities. These requirements should only be able to be waived in very limited circumstances, eg where there are reasonable grounds to believe compliance would endanger a person's safety.

[…]

Use of force

Reasonable force may be used to execute warrant

Principle: Legislation should allow an authorised officer to use reasonable force to execute a warrant. Where legislation provides that an authorised officer may obtain assistance to enter premises and execute powers under warrant, the person assisting should be authorised to use force against 'things' but not 'persons'.

[…] Use of force against persons should be confined to those with a high level of training, and not to persons merely playing an assisting role. […]

9.5 Warrants obtained by telephone Principle: Where legislation provides for the issue of a warrant to enter premises, it is usually desirable to allow for the issue of a warrant by telephone. Section 3R of the Crimes Act provides a model for the framing of telephone warrant provisions.


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Discussion: The issuing of warrants by telephone allows a warrant to be obtained urgently in circumstances where it is not practical to obtain a warrant in person, eg in a remote locality. […]

9.6 Seizure under warrant

Seizure by warrant, with interim power to secure if necessary

Principle: Seizure should only be allowed under a warrant, even if entry and search without warrant are permitted. Where entry is allowed without warrant, the legislation may provide that items may be secured, pending a warrant application.

Discussion: Seizure is a significant coercive power and the Commonwealth has consistently taken the approach that it should require authorisation under warrant.

[…]

9.7 Warrants - who should issue?

Warrants issued by magistrates in a personal capacity

Principle: The power to issue warrants to enter and search premises should normally be conferred on State and Territory magistrates acting in their personal capacity.

Discussion: The Commonwealth has taken the view that Ministers, Justices of the Peace and departmental officers should not have warrant issuing powers. The greater independence of magistrates and the fact they are not responsible for enforcement outcomes ensures appropriate rigor in the warrant issuing process.

Providing that a magistrate is acting in a personal capacity ensures there is no prospect for conflict between judicial and non-judicial functions. A separate provision to this effect is not needed where a power or function relates to a criminal matter, because this is covered by a general provision in section 4AAA of the Crimes Act.

Monitoring warrant issuing powers should be accompanied by a provision stating that a magistrate acts in a personal capacity in issuing a warrant. Monitoring can be carried out for both civil penalty contraventions and criminal offences.

[…] 9.8 Powers in subordinate legislation

Entry, search and seizure powers in subordinate legislation must be justified

Principle: Entry, search and seizure powers should generally be contained in an Act rather than subordinate legislation.

[…]

General Questions

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9.9 Search warrants (offences) Crimes Act model

Search warrant powers follow the Crimes Act model

Principle: The search warrant provisions of Part 1AA of the Crimes Act, which are applicable to police, define the outer limits of the powers and the minimum limitations and obligations that should apply to search warrant powers.

Discussion: Part 1AA reflects the benchmark that Parliament has accepted for the powers necessary for the investigation of Commonwealth offences by police, including the most serious Commonwealth offences.

Relevant safeguards and limitations built into Part 1AA are as follows.

Magistrates to issue warrants

Magistrate: Where persons other than police officers will be authorised to execute a search warrant, the power to issue the warrant should only be conferred on magistrates. This accords with the position of the Scrutiny of Bills Committee (Report on the 38th Parliament, June 1999, page 35).

Applicant is to execute warrant

Applicant: The class of officers who are empowered to apply for a warrant should be the same class of officers who can execute a warrant.

Time limits for execution of warrants

Time Limits: The times of the day and night, and the period for which the warrant remains in force, should be specified and justified.

Magistrate issues warrant if objective test satisfied

Granting: The warrant should be required to show on its face that the magistrate was satisfied by information on oath or affirmation that proper grounds existed for issuing the warrant. Those grounds should be that there were reasonable grounds to suspect that, in the premises named in the warrant, there were the things described in the warrant which would afford evidence of a Commonwealth offence identified in the warrant. The warrant need not identify the suspected offender. The 'things' to be searched for need not be itemised or specifically described but the thing or class of things must be required to be delimited with reasonable certainty.

Powers authorized under warrant to be set out, including seizure

Powers: The legislation should spell out the powers that may be exercised under a warrant. These might include the power to seize anything the authorised officer believes on reasonable grounds may be evidence of an offence. The issuing officers should be empowered to authorise the

exercise of some or all of those powers under a given warrant. The warrant should spell out the powers authorised under it.


34

Retention of seized material limited to 60 days, but may be extended

Retention: Generally, an upper limit of 60 days should attach to the retention of seized items, with the possibility of extension of that period in appropriate cases. A longer period should not be specified unless it is clearly justified.

[…] 9.10 Monitoring warrants (audit) Suitability

Monitoring warrants are employed in appropriate contexts

Principle: Where search powers are sought, not for the investigation of specific offences, but to monitor compliance with legislative requirements, a 'monitoring warrant' regime should be employed.

Discussion: Provision for the grant of monitoring warrants is appropriate where: there is a need to monitor compliance with legislation in circumstances where no offence will be suspected, and entry to relevant premises will sometimes be refused.

Monitoring warrant - established model followed

Monitoring warrant - follow the established model

Principle: A set of principles for framing monitoring warrant provisions has been followed in Commonwealth legislation for a number of years. This has been designed to ensure a broad range of powers is available to facilitate effective monitoring, without raising concerns about improper use of these powers. This approach should continue to be followed unless there are clear reasons for departure.

[…]

Magistrates to issue monitoring warrants

Magistrate: Only a magistrate should be empowered to issue a monitoring warrant.

Grounds - access reasonably necessary for monitoring

Prerequisites: A magistrate should be empowered to issue a monitoring warrant where he or she is satisfied that it is reasonably necessary for an authorised officer to have access to the premises to monitor compliance with the relevant legislation.

Premises to be specified, may include conveyances

Premises / Conveyances: The warrant should specify premises to which it authorises entry. Powers to enter vehicles, vessels or aircraft should be subject to the same grounds as powers to enter premises. It may be appropriate to define premises to include vehicles, vessels and aircraft.

General Questions

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Powers to enter and search, plus others where necessary

Powers: The powers exercisable under a monitoring warrant should include the power to enter premises, and to search for relevant records. Additional powers (eg to take samples) should be included as necessary.

Power to secure pending issue of warrant allowing seizure

Securing: Where an authorised officer has reasonable grounds to believe that evidence of an offence would be lost, destroyed or tampered with by the time a search warrant was obtained there should be a power to secure the evidence pending an application for a search/seizure warrant.

[…]

Question 20. Are or should Victorian agencies be subject to guidelines similar to those used by the Commonwealth Attorney-General?

Question 21. Could model warrant provisions improve the fairness, consistency and efficiency of warrant powers and procedures? What minimum protections should they contain?

WARRANT MANAGEMENT

Here the Committee is concerned with measures to record and track warrants through the cycle of application, issue or refusal to issue, successful or unsuccessful execution, follow-up action, recall or cancellation or expiry.87 The importance of this issue was highlighted by a submission received by the Committee that described situations in which multiple warrants issued against the same person are “lost in the system”.88

APPLICATION FOR WARRANTS

Accepting that fundamental rights of individuals are affected whenever a warrant is granted, it is imperative that careful consideration and scrutiny is carried out before a warrant is granted.89

The application process offers an opportunity for scrutiny of the claim that a warrant is required in a particular case. This is achieved through the requirement that an agency seeking a warrant must

87 Under the Magistrates’ Court Act 1958 s 58(2), certain warrants become null and void if not executed within 5 years of issue. A new warrant can be issued under s 58(3). 88 Preliminary submission, Youthlaw. 89 Preliminary submission, Victoria Legal Aid.


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present to an independent review (usually a judge or other court officer)90 evidence in support of its application.91 The resulting review of the agency’s decision to exercise its warrant powers has the potential to prevent abuse of powers before individual rights are affected by the agency’s actions.

Question 22. Among agencies that possess warrant powers, are there any that are not justified by the functions of the agencies?

Question 23. What internal procedures are used to determine whether an agency should make an application for a warrant? To what extent can these procedures be standardised?

Question 24. What minimum requirements should the process of applying for warrants include? To what extent can these be standardised?

ISSUE OF WARRANTS

GENERAL

Once a decision has been made whether or not to issue a warrant, the various terms and conditions that can be imposed by an issuing authority on a warrant act as a further limit on the power of the applying agency. These are typically intended to allow the agency sufficient latitude to fulfil its law enforcement functions while not unduly curtailing individual rights. Thus warrants are generally required to include specific information, such as the premises to be searched, types of property to be seized. Many warrants also include an obligation on the executing agency to provide the issuing authority with a report on the execution of the warrant.92

In relation to the issuing of warrants, Victoria Legal Aid reported that it has witnessed a lack of consistent levels of scrutiny of warrant applications among Victorian magistrates, suggesting that due to caseloads, magistrates in rural areas conducted less rigorous evaluations of requests for warrants than magistrates based in metropolitan areas, with Melbourne being the most rigorous

90 Magistrates’ Court Act 1989 s 57(7). Some warrants can be issued by other officers or entities, for example Coroners Act 1985 s 46(4); Melbourne and Metropolitan Board of Works Act 1958 s 107. 91 For example, Magistrates’ Court Act 1989 ss 61(2), 75(2); Crimes Act 1958 s 465(1). Some Acts permit application by telephone: Australian Crime Commission (State Provisions) Act 2003 s 30; Confiscation Act 1997 s 81; Surveillance Devices Act 1999 s 16; Terrorism (Community Protection) Act 2003 s 10. 92 For example, Confiscation Act 1997 s 89; Drugs, Poisons and Controlled Substances Act 1981 s 81(4)(b); Associations Incorporation Act 1981 s 37P; Surveillance Devices Act 1999 s 30K; Legal Practice Act 1996 s 196; Terrorism (Community Protection) Act 2003 s 11.

General Questions

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location.93 The Victorian Aboriginal Legal Service referred to anecdotal evidence indicating that some magistrates “rubber stamp warrants.”94

Question 25. What criteria and standard of proof should be satisfied before a warrant can be issued? To what extent can these be made consistent across all warrants?

Question 26. What conditions should warrants include in their terms? To what extent can these be standardised?

REPORTING REQUIREMENT AND RECORD-KEEPING

A basic way of monitoring warrant powers is to require the agencies that have those powers to keep records of, and make reports on, their use.

A requirement that agencies report their entry and search activities to Parliament is an effective way of ensuring that records are kept and that the process is open and available to public scrutiny and comment. When personal and property rights are potentially restricted by legislative provisions in the public interest it is arguable that the public should know of the extent to which such provisions are exercised.95

The Committee agrees with this comment. By making actions transparent, recording and reporting play an important role in making processes and actions accountable.

In its report on entry and search powers, the Commonwealth Senate Scrutiny of Bills Committee recommended that:

“each agency which exercises entry and search powers should maintain a centralised record of all occasions on which those powers are exercised, and should report annually to the Parliament on the exercise of those powers.”96

In Victoria, s 57(1) of the Magistrates' Court Act 1989 requires that warrants must be entered in that Court’s register. In its submission to the Inspectors’ Powers Inquiry, the Court stated that the register includes details of the results of the searches authorised by each warrant, and that no record is kept of unexecuted searches.97 The Inspectors’ Powers Report concluded that the register “could function as an important independent record of the exercise of …powers under warrant” and therefore recommended that its functionality be increased to enable more detailed tracking of 93 Comments, Victoria Legal Aid. 94 Preliminary submission, Victorian Aboriginal Legal Service. 95 Victorian Parliament Law Reform Committee, The Powers of Entry, Search, Seizure, Questioning and Detention by Authorised Persons, Discussion Paper (October 2001) 25. 96 Senate Report above n35, 80. 97 Magistrates’ Court Victoria submission no 43 to the Inspectors’ Powers Inquiry, 2.


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issued warrants.98 The Committee will seek advice from the Court as to whether any changes have been made in the operation of the register.

Question 27. What principles should govern the recording of information about the use of warrant provisions? What information should be recorded? What are the likely resource implications of such requirements?

Question 28. What information is available about the number of warrants applied for and issued? Which agencies keep records? Why do other agencies not do so?

Question 29. For those agencies which do keep records, please provide details of the number of warrant applications granted, refused, reheard with additional supporting evidence or otherwise disposed of.

Question 30. For those agencies and individuals who have experience of the Magistrates’ Court register, have there been any changes to the operation of the register since the publication of the Inspectors’ Powers Report?

Gregory Connellan, a barrister who has had extensive practical experience of warrant powers, commented that the application and issuing stages generally provide sufficient oversight of agencies seeking warrants. However, he suggested that the reporting requirement could usefully be subjected to an ongoing audit as a way of reducing the possibility of the Court “rubber stamping” the execution reports or of applicants coming to regard the reporting requirement as less important over time. 99 This could be useful in determining whether issuing authority staff are in fact able to perform effective oversight of the aspects of warrant powers covered in such reports. In this regard, the Committee notes the comment of former Commonwealth Minister for Justice Duncan Kerr that “it can hardly be expected that busy court staff will really provide effective scrutiny for the results of searches.” 100

Barrister Brian Walters S.C. commented:

98 Inspectors’ Powers Report above n5, 170. 99 Comments, Gregory Connellan. Mr. Connellan is the President of Liberty Victoria but his comments were made in his individual capacity. 100 Letter from Duncan Kerr, Commonwealth Minister for Justice, to Senator Barney Cooney, Chair of the Senate Standing Committee on Legal and Constitutional Affairs, quoted as Appendix 3 of Report by Senate Standing Committee on Legal and Constitutional Affairs, Crimes (Search Warrants and Powers of Arrest Bill) Amendment Bill 1993, (February 1994), 184.

General Questions

39

Of particular structural concern is that those who authorize the issue of warrants should be made aware of the outcome of the process – right through to the ultimate disposition of prosecutions. There have been many examples (particularly in relation to the drug squad, for example) of warrants being obtained by false statements to the issuing authority, but the issuing authority (at one stage, for example, Federal Court judges for telephone intercept warrants) never hearing of the outcome of such cases, and not being aware that evidence relied on in support of the application for a warrant had just been rejected by a court. A comprehensive approach to the use of warrant powers which takes account of Federal/State relations as well as the implications for interaction between the executive and the courts is needed.101

Question 31. Should the reporting requirement be subject to oversight? What would be the most appropriate way to achieve this?

EXECUTION OF WARRANTS

The execution of warrants is subject to a number of potential controls, mostly applicable to the various search and seizure warrants available in Victoria. These include requirements to enforce the warrant during particular hours,102 on notice,103 after allowing an opportunity for entry by consent (announcement before entry), by recording the enforcement, issuing receipts and/or providing copies of seized items.104

Question 32. Are entry and search warrant powers exercised with notice and during reasonable hours wherever possible?

Question 33. Are instances of entry and search without consent recorded on video or audio tape? If not, would it be possible and desirable to do so?

Question 34. How effective are these controls in ensuring that warrants are executed in the least intrusive manner? Is there a need for standardised rules?

Question 35. Is there a need for additional rules?

101 Preliminary submission, Brian Walters S.C. Mr. Walters is a Vice-President of Liberty Victoria but his submission was made in his individual capacity. 102 A warrant executed outside the time expressly permitted is invalid, Myer Stores Ltd v Soo [1991] 2VR 597. Some warrants may be executed “at any time”, for example those issued under the Fisheries Act 1995 s 103. 103 For example, by serving an occupiers notice setting out the occupier’s rights and responsibilities, Confiscation Act 1997 s 83. 104 For example Chiropractors Registration Act 1982 s 85; Chinese Medicine Practitioners Act 2000 ss 89-91; Fundraising Appeals Act 1998 ss 50-52; Introduction Agents Act 1997 ss 46-49.


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TRAINING

Several stakeholders identified deficiencies in training provided to individuals who execute warrants. They noted an absence of training standards, insufficient education about warrant execution procedures and a lack of attention to the particular needs of culturally and linguistically diverse, or disadvantaged, community groups. More generally, one academic commentator with expertise in criminology and police studies recently questioned the training and research capacities of the police force and called for a national review of police training and education.105

The Law Reform Committee of the 54th Parliament considered the question of training in some depth, concluding that:

The Committee is of the view that the selection and training of authorised officers is a vital component of the effectiveness, consistency and fairness of the use of those powers. Accordingly, the Committee believes that Acts should provide that persons should not be authorised under the legislation until they have received appropriate training. In addition, to ensure that agencies provide ongoing training to their inspectors, the retention of authorisation as an inspector should be contingent upon approved programs of in-service and other ongoing training.

While the Committee received valuable evidence from the agencies and other organisations on training issues, it is concerned that there is currently no objective way of evaluating training programs to ensure that they meet certain minimum standards. The Committee is also aware that the issue of training cannot be appropriately dealt with in legislation.

Accordingly, the Committee believes a body which could evaluate current programs and set minimum standards for inspector training and other matters outlined elsewhere in this Report would be a valuable component of any law reform strategy in the area of inspectors’ powers.106

The Government agreed in principle with these findings but felt that training standards would be more effectively determined and monitored by individual Ministers.107

Question 36. What training do agencies and individuals with warrant powers receive, regarding warrant powers and procedures, particularly execution and the treatment of ethnically and linguistically diverse and disadvantaged members of the community? How often is this training conducted? Is it mandatory?

Question 37. Is there a need for standardised training? How should such standards be developed, implemented and reviewed? Would an independent training body be appropriate?

105 Darren Palmer (lecturer in criminology, police studies, Deakin University Faculty of Arts), ‘The police profession needs urgent review’, The Age, 21 June 2004. 106 Inspectors’ Powers Report above n5, 107. 107 Government Response above n75, 9.

General Questions

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Question 38. What other reforms to existing training procedures are appropriate?

OTHER FORMS OF CONTROL

The Committee has identified four other areas that play a role in regulating warrant provisions. These are the internal practices of agencies with warrant powers, accountability mechanisms for dealing with abuse of warrant powers, legal professional privilege and privacy legislation.

INTERNAL PRACTICES OF AGENCIES WITH WARRANT POWERS

One of the key conclusions of this Report is that non-legislative internal practices of the agencies administering the powers can be just as important as the legislative provisions themselves. Factors such as the selection and training of authorised officers, complaints mechanisms and the “enforcement philosophy” (such as whether authorised officers attempt to effect compliance through education and co-operation or by resorting to their coercive powers) can have a significant impact on questions of fairness, effectiveness and consistency of the powers. 108

Question 39. What internal practices, procedures and guidelines concerning warrant powers and procedures exist among agencies with warrant powers? What issues do they cover? How and how regularly are they reviewed?

ACCOUNTABILITY MECHANISMS - ABUSE OF WARRANT POWERS

Abuses of power are inevitable where human beings are given power. Abuses of warrant powers may range from intentionally executing the warrant outside authorised hours to damaging property or assaulting individuals who are the subject of the warrant. Perhaps that is one reason why a fundamental principle of the rule of law is that those who exercise power on behalf of a public interest should be required to account for their actions. A number of mechanisms exist to provide that accountability. Five types in particular are relevant to situations where it is alleged that warrant provisions have been abused: challenges to the admissibility of evidence; agencies’ internal disciplinary procedures; the Ombudsman; civil remedies; and criminal investigation.

Challenges to the admissibil i ty of evidence

Individuals who are subjected to prosecution as a result of the execution of a warrant may be able to contest the admissibility of evidence against them if it was obtained in violation of the terms of the warrant.

108 Inspectors’ Powers Report above n5, 16.


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The mere fact that evidence was obtained unlawfully or by unfair means does not, in itself, automatically mean that the evidence must be rejected. Rather the trial judge possesses a discretion either to admit or reject this evidence. In exercising discretion, the judge is required to weight up the competing public interests, the first being protecting the citizen from unlawful or unfair treatment on the part of those concerned in the administration of criminal justice, and, secondly, ensuring that offenders are brought to justice.109

Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.110

A later case suggested five factors that affect the exercise of that discretion:

• Whether those involved in obtaining the evidence consciously engage in unfair or unlawful conduct;

• The strength of the evidence;

• How easily the law might have been complied with to procure the evidence;

• The nature of the offence charged; and

• In respect of breaches of statutory powers, to what extent the legislature intended to narrow the power available to the law enforcement agency.111

This issue is particularly relevant to the seizure of evidence not included on the warrant, which is discussed in Section 7 of this Discussion Paper.

Evidence may also be challenged in situations where the legality of an arrest is at issue.112 The failure of police to caution the accused properly following arrest, or to comply with relevant police instructions, does not automatically lead to the exclusion of any later admission or confession from evidence at any subsequent trial.113 Section 464A(3) Crimes Act 1958 and ss 23A-23W Crimes Act 1914 (Cth) require police to inform suspects whom they detain of their right to silence and their right to communicate with others. These and other legislative safeguards, such as the requirement to tape record any confessions, reflect concerns about police tactics used to obtain statements from arrestees. Thus, material unlawfully obtained, such as answers to questions made after persistent and intimidating police questioning when the defendant has clearly indicated an intention not answer, may be excluded from evidence.114 However, the courts retain residual discretion to admit evidence in violation of statutory requirements.115

109 Tronc, Crawford and Smith, above n13, 329. 110 R v Ireland (1970) 44 ALJR 263, Barwick CJ. 111 Bunning v Cross (1978) 141 CLR 54, discussed in Tronc, Crawford and Smith, above n13, 329-330. For more detailed discussion of these factors, see ibid, 330-333. 112 Information in this paragraph is taken from Fox above n13, 99 and cases referred to therein. 113 Van Der Meer (1988) 62 ALJR 656, 659. 114 Jukow (1994) 76 A Crim R 253. 115 Fox above n13, 99.

General Questions

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Internal disciplinary procedures/complaints mechanisms

These are typically the first option for members of the community with a complaint about the actions of an agency or its staff.

One example is Victoria Police’s complaints system, which has a number of components. A Customer Assistance Unit receives complaints and aims “to speedily and effectively resolve minor complaints and to investigate serious complaints.” A second element is the Public Incidence Resolution mechanism, established by Victoria Police in 1997 to manage simple complaints that do not merit a time-consuming, resource-intensive comprehensive investigation by the Ethical Standards Department. The system uses local staff to liaise between complainant and staff and endeavours to resolve the incident within “a matter of days.”116 Its work is checked by the Police Ombudsman.117 The Police Ethical Standards Unit deals with more serious complaints. Its Complaint Investigation Division is responsible for “all investigations of serious misconduct and criminality. The division actively manages and investigates specified operational incidents, including police use of firearms, pursuits, serious collisions, deaths in custody and other incidents likely to result in public concern.”118

The complaints system operates in conjunction with detailed procedures for the investigation allegations against and conduct of disciplinary action against members of the police force. These provisions are contained in the Police Regulation Act 1958 and the Police Manual.119

The Ombudsman

Established in 1973, the Ombudsman is empowered to:

• “enquire into or investigate any administrative action taken in any Government Department or Public Statutory Body to which this Act applies or by any member of staff of a municipal council”;120

• to monitor compliance with certain legislative provisions;121

• to investigate certain complaints against police. “The Ombudsman investigates some of the complaints lodged with him, but refers most of them to the police for enquiry or investigation. He independently reviews the police investigation of all complaints, where

116 Victoria Police, Public Incidence Resolution, at http://www.police.vic.gov.au/showContentPage.cfm?contentPageId=2318 117 Ibid. 118 Victoria Police, Ethical Standards Unit, at http://www.police.vic.gov.au/showcontentpage.cfm?contentpageid=2320. 119 Police Regulation Act 1958 ss 69-81; Victoria Police, Victoria Police Manual, Instructions 211-2, 1 March 2004, 211-3, 211-4, 11 July 2003. 120 Ombudsman Act 1973 s 13(1). 121 Ibid, ss 13(2AAA), (2AA), (2AB), (2A).


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necessary instructing the police to take further action, or investigating further himself. He provides written responses to those complaints lodged with him. The Ombudsman also independently reviews all internally generated police internal investigations of serious misconduct of police members.”122 Since June 2004, the Ombudsman has been able to initiate investigations into the conduct of members of the police or “the policies, practices or procedures of the force”.123

The Ombudsman has no jurisdiction over the legislature or the judiciary.124

Civil remedies

Complainants may be able to sue the individuals, and/or their employers, who they allege are responsible for violating their rights as a result of an abuse of warrant powers although, where an individual acts beyond their power, the agency will deny responsibility for the act.125

Criminal investigations

Another response to alleged abuses of warrant powers is to pursue a criminal investigation and prosecution of the individuals allegedly responsible. It follows that, in abusing their powers, the individuals involved must have also committed an offence and that evidence is thought to be available to make a prosecution viable.

Although these mechanisms provide a theoretical safety net for redressing violations of individual rights, a recent Victorian case illustrates the gaps in this system. Victorian courts found that police officers had assaulted a number of individuals in the course of executing a warrant against them. The courts awarded damages against some of the police officers concerned but one officer’s declaration of bankruptcy has reportedly made the parts of the judgement relating to his victim unenforceable.126 Moreover, the officers were reportedly not sanctioned by disciplinary proceedings, and were not subjected to a criminal investigation.127

Question 40. Is the use of warrant powers regularly reviewed internally?

Question 41. What complaints procedures are there?

122 Victorian Ombudsman, History and Functions of the Office of the Ombudsman, at http://www.ombudsman.vic.gov.au/. 123 Police Regulation Act 1958 s 86NA(1). 124 Ombudsman Act 1973 s 13(3). 125 State of Victoria v Hovarth [2002] VSCA 177. 126 Fergus Shiel, ‘No money and no justice for woman bashed in raid on home’, The Age, 29 June 2004, 5. 127 Ibid.

General Questions

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Question 42. How often do abuses occur? What are they?

Question 43. Is there provision for external review of the powers and the agencies’ use of them?

Question 44. How effectively do existing accountability measures function? Is there a need for greater accountability? If so, is it based on systemic deficiencies or isolated incidents?

Question 45. Is there a need for a separate body to provide coherent oversight of warrant provisions?

Question 46. What reforms would improve accountability?

LEGAL PROFESSIONAL PRIVILEGE

Legal professional privilege was considered at some length in relation to warrants authorising entry, search and seizure in the Inspectors’ Powers Inquiry and both the discussion paper and final report contained succinct descriptions of the principle and its relevance. For that reason, the Committee includes relevant extracts here.

The principle of legal professional privilege establishes that certain communications between lawyers and their clients are privileged from disclosure.30 In general, privileged communications are those “confidential communications between solicitor and client made for the purpose of advice or for use in existing or anticipated litigation.” 31

Legal professional privilege is a basic common law right and not simply a rule of evidence. This means that lawyers and their clients can potentially rely on the privilege to resist producing documents in an investigation as well as during any subsequent trial.32 Importantly, it also means that the principle cannot be abrogated by a statutory provision unless Parliament clearly expresses an intention to do so.33 …[T]here are indications in the case law that Courts may find that any legal professional privilege in the documents sought may be abrogated even when statutory provisions contain no express statement to this effect.34


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However, a recent High Court case held that “legal professional privilege is a right that will not be taken to have been abolished by legislative provisions except by express language or clear and unmistakable implication.”128

The law relating to the types of communications which are protected by the privilege is complex.[129…] For the purposes of this Discussion Paper it is important to note the existence of this privilege as a potential “check” on the power of agencies to seize or require the production of documents. It is also important to be aware of the potential limits on the ability of lawyers and their clients to rely on the privilege.

No protection at the time of entry and seizure in Victoria

In Victoria (unlike the other States), legal practitioners and their clients cannot generally rely on the privilege to resist the production of documents at the time of entry and search. Ian Freckelton summarises the Victorian position as follows:

“Under s 465 of the Crimes Act 1958 (Vic) and most other Victorian search and seizure powers … documents which are subject to a claim for legal professional privilege can be seized but must be carried before a justice to be dealt with according to law. The difference in approach arises because under Victorian search and seizure powers anything seized must be brought before the justice without delay. It is at this time, rather than at the point of execution, that the claim for legal professional privilege must be dealt with. If there is any doubt as to the proper application of the law the justice must give the claimant the privilege or the police officer the opportunity to obtain a ruling from the Supreme Court before disposing of the documents …”35

Statutory provisions

In contrast to the privilege against self-incrimination, which is frequently referred to in Victorian legislation, legal professional privilege is only occasionally mentioned in Acts containing the power to seize documents. In cases where no mention of the privilege is made, the common law relating to privileged communications will apply. However, some Acts do specifically refer to the privilege. Some simply state that legal professional privilege is available.37 Others specify who is entitled to rely on the privilege (generally limited to legal practitioners) and define some of the limits of the privilege38

30 G E Dal Pont: “Lawyers’ Professional Responsibility in Australia and New Zealand,” Second Edition, LBC Information Services p. 275. 128 ACCC v Daniels Corp International Pty Ltd (2001) 108 FCR 123. 129 For a discussion of some of the case law, see Inspectors’ Powers Report above n5, 145-151.

General Questions

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31 O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR at 22 per Mason J (quoted on page 275 of G E Dal Pont).

32 Baker v Campbell (1983) 153 CLR 52.

33 Freckleton, Ian (editor): “Criminal law Investigation and procedure Victoria,” LBC Information Services, 2000, p. 2-5605.

34 See Corporate Affairs Commission (NSW) v Yuill (1991) 4 ACSR 624 and discussion in Brett Bolton: “Compelling Production of Documents to the ASC” Queensland Law Society Journal, June 1995, pp 235-6. See, also more recently, the case of ACCC v Daniels Corporation International Pty Ltd [2001] FCA 244 and, in particular, the six general propositions developed by Wilcox J.

35 Freckelton, (cited above at note 33), p. 2-5605.

[36 Omitted]

37 For example: section 88 of the Nurses Act 1993.

38 For example where the practitioner must comply with the order to produce documents to the extent that he or she is able to without disclosing the privileged communications and where they must furnish in writing the name and address of the person to whom or by or on behalf of whom the communication was made and sufficient particulars to identify the document. See, for instance, section 37N of the Associations Incorporation Act 1981.130

The Inspectors’ Powers Report concluded that “the judicial interpretation of legal professional privilege in the inspectors’ powers context is inconsistent and confusing.”131 The report recommended that the application of the principle be clarified in statutes containing inspectors’ powers and that agencies have a protocol for the seizure of documents over which the privilege is claimed.

Consistent with its terms of reference, the Inspectors’ Power inquiry limited its consideration of legal professional privilege to search and seizure warrants. In this inquiry, the Committee will also consider the application of the principle in relation to surveillance warrants.

Question 47. How are questions of legal professional privilege dealt with by agencies that have warrant powers?

Question 48. Is there a need for a specific definition or modification of the privilege within particular Acts?

The Law Reform Committee of the 54th Parliament also heard evidence about a protocol agreed between Victoria Police, the Victorian Bar Council and the Law Institute in an effort to protect legal professional privilege. Under the protocol, if a claim for privilege is made in respect of documents during a search, the documents are sealed and taken to court where the privilege is

130 Inspectors’ Powers Discussion Paper above n95, 35-38. 131 Inspectors’ Powers Report above n5, 149.


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litigated.132 Witnesses opinions differed as to the effectiveness of the protocol.133 The Committee is interested to hear views about the operation of the protocol, particularly in the period since the Inspectors’ Powers Report was issued (May 2002).

The Committee also notes that the Victoria Police Manual requires that members of the police force planning a search where legal professional privilege is likely to arise must seek advice from specialist units within the police force before seeking a warrant for the search.134

Question 49. Has the protocol proved appropriate for protecting legal professional privilege?

Question 50. Have analogous protocols been adopted by other agencies with relevant warrant powers?

PRIVACY CONSIDERATIONS

The Information Privacy Act 2000 protects individuals’ privacy135 –of the body, home, belongings, from surveillance and eavesdropping and of information- and requires the State and private entities that contract with it to comply with Information Privacy Principles.136 These standards govern the collection, use, disclosure, quality, security, accessibility, anonymity and transfer of personal information. The Act recognises that the protections it codifies may be incompatible with legitimate law enforcement activities and may thereby frustrate the latter. Accordingly, the Act exempts “law enforcement agencies” from compliance with some of the Principles, if an agency:

believes that on reasonable grounds that the non-compliance is necessary—

(a) for the purposes of one or more of its, or any other law enforcement agency's, law enforcement functions or activities; or

(b) for the enforcement of laws relating to the confiscation of the proceeds of crime; or

(c) in connection with the conduct of proceedings commenced, or about to be commenced, in any court or tribunal; or

132 Evidence of Felicity Hampel S.C. to the Inspectors’ Powers Inquiry, quoted in Inspectors’ Powers Report above n5, 150. 133 A witness who appeared on behalf of the Law Institute stated that in practice, a preliminary evaluation of the privilege claim is often made during the search. Evidence of Danny Holding, quoted in ibid. 134 Victoria Police, Victoria Police Manual, Instruction 105-2, Searches of Properties, 1 March 2004, paragraph 5.7. 135 For information about the definition, background and implications of privacy and privacy law, see Kate Foord, Victorian Law Reform Commission, Defining Privacy (2002). 136 Information Privacy Act 2000 Schedule 1.

General Questions

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(d) in the case of the police force of Victoria, for the purposes of its community policing functions.137

Law enforcement agencies are defined in the Act and include police, other agencies responsible for the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of law attracting sanctions and other agencies that execute warrants and other court or tribunal orders.138

This definition would appear to include most if not all of the agencies who have warrant powers.

In his submissions to the Inspectors’ Powers Inquiry, the Privacy Commissioner suggested that video and audio recording of entry and search of premises raise serious concerns about invasions of the privacy of individuals whose premises and belongings are the subject of the recordings.

More generally, the Commissioner suggested a number of questions for agencies to consider as part of their assessment of existing or proposed powers of entry, search, seizure or questioning, with the aim of developing procedures that would appropriately balance privacy and law enforcement priorities.139

Question 51. How has the Information Privacy Act 2000 affected agencies’ warrant-related activities?

Question 52. What systems or guidelines (if any) are in place to ensure that authorised officers comply with the Privacy Information Act 2000?

In preliminary comments to the inquiry, Victoria Police indicated that privacy concerns affect its capacity to execute warrants:

Privacy laws to a degree prevent government agencies from exchanging information and this reduces the ability of law enforcement agencies from [sic] identifying persons named in outstanding warrants.140

Question 53. Is there a need for reform of the Information Privacy Act 2000 to satisfy legitimate law enforcement imperatives, or of warrant powers and procedures to satisfy legitimate privacy imperatives?

137 Ibid s 13. 138 Ibid s 3. 139 The questions are reproduced in the Inspectors’ Powers Report above n5, p156-157. They are not included here as they cover issues already dealt with in this Discussion Paper. 140 Preliminary submission, Victoria Police.


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7 . Q U E S T I O N S R E L A T I N G T O S P E C I F I C W A R R A N T P R O V I S I O N S

As noted, the Committee received a number of preliminary comments in response to the scoping questions it sent out at the beginning of the inquiry. Issues raised by them that have not been covered in the preceding sections are discussed here, to indicate to stakeholders the sorts of specific issues that the Committee is interested in. Comments are organised in accordance with the underlying purpose of the warrants relevant to each situation. These purposes are the investigation, prevention or prosecution of criminal offences, the enforcement of proceedings, monitoring compliance with legislation and the protection of vulnerable groups.

At this stage, the Committee will not provide a more detailed discussion of the law relevant to each area. Given the diversity of subject matter, the Committee’s research is continuing. Relevant analysis will be included in the final report of the inquiry.

Warrants relating to the investigation, prevention or prosecution of criminal offences

Here the Committee organises issues by type of warrant: arrest; search and seizure; and surveillance. The Committee invites observations on stakeholders’ comments, as well as submissions on any other aspect of warrants relating to criminal offences.

ARREST

The Committee received few comments on warrants of arrest, mostly concerned with elements of procedure.

Senior law lecturer Dr Chris Corns noted that common law principles are the sole source of authority for what conditions must be satisfied for an arrest to be valid. He recommended that these conditions should be codified to “provide greater certainty and uniformity in approach”.141

141 Preliminary submission, Dr Chris Corns. See also Tronc, Crawford and Smith above n13, 101-108.


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The Committee considers it important to provide an overview of these common law principles.142 The method of executing an arrest is the same whether the arrest is at common law, under statute, with or without a warrant, or by private citizen or police. There is no fixed formula. The words or conduct must convey to the person arrested that he or she is no longer free to leave and must continue to submit to such restrictions on his or her liberty.143 The arrested person is entitled to know the charge or suspicion that justifies the arrest, unless he or she “must know” the general nature of the alleged offence.144 An arrest that is unlawful because of failure to communicate its basis can become lawful as soon as the justification is provided.145

Reasonable force may be used to execute an arrest, although “all necessary and reasonable force” can be used to prevent an unlawful arrest.146 A person who resists arrest does not commit an offence if he or she reasonably believes that the person executing the arrest is not a police officer.147

If the legal requirements of arrest are not complied with, the person arresting is generally civilly liable for false imprisonment.148

Question 54. Is codification of the requirements for lawful arrest desirable?

The Victorian Aboriginal Legal Service (VALS) made a number of comments about police attitudes towards Koorie people. Fundamentally, VALS is concerned about “what appears to be an unwritten law or culture in the police force” that gives priority to the number of arrests over the respect and protection of individual rights. VALS encourages the police to inform it about outstanding warrants of arrest so that it may facilitate surrender of the individuals concerned. However, it claims that police are inconsistent in communicating the existence of warrants and that surrender arrangements are frustrated by police arresting defendants during unrelated stop-and-searches. This affords greater potential for confrontational situations to develop between individuals subject to warrants and the police, and consequential additional interaction with the justice system.

Another claim is anecdotal evidence that:

police hold on to warrants to arrest until the end of the working week, and then execute them late Friday afternoon. The result is that some Koorie people are locked up in police cells over the weekend until the court can deal with their matter.149

142 This section is taken from Richard Fox’s discussion “Executing an Arrest”, Fox above n13, 106-107. 143 Inwood [1973]1 WLR 647. 144 Crimes Act (Cth) 1914, ss3ZD(1)-3ZD(2). 145 Kulynycz [1971] 1 QB 367. 146 Ibid. 147 Reynhoudt (1962) 107 CLR 381; Kenlin v Gardiner [1967] 2 QB 510. 148 Christie v Leachinsky [1947] AC 573; Myer Stores Ltd. v Soo [1991] VR 597.

Questions Relating to Specific Warrant Provisions

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Question 55. Is there a need for changes to police standing orders or procedures in the Police Manual concerning the arrest of vulnerable and disadvantaged people? What changes are appropriate?

Question 56. What training do police undergo to assist them in their dealings with culturally and linguistically diverse groups within the community?

SEARCH

The Committee received the most comments about search and seizure warrants and invites more detailed submissions on these.

CONDUCT OF SEARCHES

Two organisations expressed concern about police procedures for executing search warrants, including alleged excessive use of force.150 One of the organisations cited anecdotal evidence that searches were conducted in breach of procedures in the Police Manual. 151

The Police Manual sets out a framework for searches and seizures conducted by the police. An extensive set of instructions governs searches of property, and includes detailed requirements for the authorisation, planning, conduct and follow up of searches. The Committee includes relevant portions of the instructions below as an aid to stakeholders.

Victoria Police Manual Instruction 105-2 Searches of properties 1. Policy • Searches of properties must be conducted according to specific warrants, authorities, statutory or common law powers. Unless exceptional circumstances exist, a specific warrant authorising entry must be taken out for all planned property searches. • To determine whether a search of property is required police members must establish: – reasonable grounds for believing that the search is necessary. – that any force used is necessary and not disproportionate to the objective sought to be achieved. • Each search of property must be classified as a level one, two or three search. The level will determine the planning and expertise required and the procedures to be adopted in the execution of the entry and search. The decision must be the safest and most appropriate in the circumstances. [...] 3. Definitions […] Search of property - a thorough examination of a property including premises and or land to: • arrest a suspect or offender

149 Preliminary submission, Victorian Aboriginal Legal Service. 150 Preliminary submissions, Youthlaw, VALS. 151 Preliminary submission, VALS.


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• secure evidence or seize property in compliance with legislative requirements • recover stolen property or • protect the life or safety of any person. […] 5. Planning searches of properties 5.1 Documentation Minimum requirements – every property search must be planned and documented except where emergency action is deemed immediately necessary to save life. […] Warrant – authority to enter will normally be by virtue of Warrant to Search and or Arrest. Unless exceptional circumstances exist, a warrant for entry must be taken out in all planned operations. 5.2 Preliminary planning Reconnaissance – must be undertaken: • to assist in the development of an effective plan of operation, where possible • for all operations assessed at search level two or three unless exceptional circumstances exist. Surveillance - reconnaissance should be followed up with surveillance. 5.3 Preparation of the Operation Order 5.3.1 Considerations In addition to any other requirements, Operation Orders for a property search must consider: • operational safety principles • legal authorities • thorough risk assessment • reasonable foreseeable contingencies • method of entry • withdrawal or disengagement strategy. […] 6. Procedure for search approval […] 6.4 Officer’s considerations Before granting approval to carry out a property search, the authorising Officer must ensure that: • there are reasonable grounds for the search and that conducting a search is the most appropriate option • the issue of a warrant or authority (where applicable) is appropriate • a risk assessment has been conducted and that the search level proposed is appropriate […] • all relevant documentation is completed and checked [...] The authorising Officer must decide whether an Officer should participate in the execution of the search. 6.5 Recording of Officer’s decision • Record the search level, any specific instructions to be applied and whether an Operation Order is required on both copies of the Form 707. • After approval the Officer must return the original Form 707 to the informant and enter details of the approval in their Official Diary and the Patrol Duty Return […]. • Record the reasons for non-approvals. 6.6 Time limit of Officer’s approval Approved searches must be conducted within seven days of the Officer’s approval. If not conducted within that period reapply for approval. It is not necessary to take out another warrant unless the court has withdrawn the first. 6.7 Unexecuted search warrants When a warrant is not executed: • make a notation on the reverse of the warrant and return it to the issuing court [...] 7. Obtaining a search warrant 7.1 Warrant preparation


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Complete the relevant Search Warrant form. Use the Form 710 if a form has not been prescribed by statute. 7.2 Obtaining the warrant Division 3, Magistrates’ Court Act determines the rules applicable to obtaining search warrants. The warrant must be authorised by the specific provisions of another Act. 8. Action prior to executing the search 8.1 Record details in Search Register Ensure all relevant details are recorded in the Search Register. […] 8.3 Briefing • Prior to a search, the Forward Commander must brief police members on the details of the operation […] • All police members must be given specific responsibilities for the search. • The Entry Team Leader must ensure entry team personnel are separately briefed. 9. Conducting a property search 9.1 Entry of premises Police members must: • introduce and identify themselves as police and explain their purpose • use the minimum amount of force, where force is required • cause the least amount of damage necessary in the course of the entry and search • not unduly restrict the movement of occupants of searched premises • request admission before entry is forced, unless there are sound reasons for not doing so (which the Operation Order must include). Note that the warrant under the Firearms Act 1996 requires that a request for admission must be made, except in certain circumstances. 9.2 Forward Commander’s responsibilities The Forward Commander: • must supervise execution of the search • must continually reassess the operation to ensure that: – operational safety principles are followed – the level of response is appropriate – any use of force is minimal – the operational objective is maintained • may consider withdrawing or not committing their members, where an unforseen change in circumstances occurs. […] 9.4 Service of warrant on owner or occupier Serving occupier’s copy of warrant - where applicable, the Forward Commander must ensure that the occupier’s copy of the warrant or authority is served on the owner, occupier or person believed to be in charge of the premises at the first opportunity after entry. If no one is present to receive the occupier’s copy, file it with the execution copy, pending any request from the owner or occupier. Endorsement of execution copy - the execution copy of a warrant must be endorsed with: • the name and address of the person on whom the copy was served • a description of the person on whom the copy was served, if they refuse to supply their particulars • the name, rank and number of the police member effecting execution • details of the execution and the description of any property seized (or attach a list). Acknowledgment of no damage or injury - where a search has not caused damage or injury, request the owner/occupier (if present) to acknowledge this on the rear of the warrant (if applicable) prior to leaving the search scene. If they refuse to sign, follow instructions for damage to property, see section 11.1. 9.5 Security of persons Police members must not place items over the heads of suspects, occupiers, or offenders after entry. 9.6 Searches of persons • Powers to search persons exist under the provisions of various warrants to search. Any personal search undertaken by a warrant must be strictly in accordance with the warrant. Although the warrant may confer a power to search a person, comply with VPM 105-1 in all cases.


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• Where a warrant to conduct a property search permits the searching of persons there is no requirement at law to establish that reasonable grounds for the searching of each such person must be established, provided that the legislation itself is silent on the issue. 9.7 Security of premises In all cases after the search is completed, the Forward Commander must ensure the security of the premises. See VPM 103-11. 9.8 Handling of seized property Handle seized property in accordance with VPM 114-4. 9.9 Errors when conducting searches Where an error occurs, call an Officer or Divisional Patrol Manager to the location who must take steps to alleviate any trauma or damage incurred. […] 11. Action after search 11.1 Property damage Reporting procedure – where damage has occurred during entry or search of the property: • Forward Commander must contact an Officer or Divisional Patrol Manager before leaving the property • any damage must be photographed • Officer or Divisional Patrol Manager must: – attend the property and inspect the damage – where practicable, discuss the matter with the owner or occupier – submit a report to the Divisional Manager in whose Division the search occurred. Reimbursement for damage - owners or occupiers may claim restitution for any loss or damage caused to property by police members due to actions undertaken in the course of duty. Process claims according to VPM 202-5. 11.2 Injury and trauma General – the Forward Commander or Officer present, must: • arrange appropriate first aid or medical care to any injured parties • facilitate the assessment of injuries on advice from a FMO • notify Ethical Standards Division according to VPM 210-1. Psychological counselling – • police members – where a member requires counselling, contact the on-call psychologist via a PCC • other persons – the psychologist will arrange for appropriate referral for affected witnesses if necessary. 11.3 Notification after search The Forward Commander must: • notify the: – Divisional Patrol Manager or a PCC – authorising Officer of the results of the search. • endorse the execution section of the original Form 707 • forward any appropriate Field Contact Reports […] • submit any required Use of Force Forms. See VPM 101-4. 11.4 Debriefings Conduct debriefings according to VPM 104-4. 11.5 Executed Search Warrants Following execution of the warrant, the ‘Execution Copy’ must be: • endorsed with the execution date • copied for inclusion in the brief • returned to the issuing court. This should occur after the seized property has been taken before a court and a Magistrate has issued instructions in relation to disposal or retention of the property. […] 12. Further instruction for specific search warrants


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12.1 Assisting other agencies in executing a warrant Police may assist other agencies with the execution of a warrant but only in any of the following circumstances: • the execution of the warrant is part of an approved joint investigation/operation • legislation specifically requires that the warrant be executed by a member of the police force • police attend to prevent a breach of the peace (see section 12.2.2). 12.2 Breach of the peace 12.2.1 Power to prevent a breach of the peace Common law provides for the prevention of a breach of the peace. Police have power to take reasonable action to prevent breaches of the peace, including the power of entry to premises and use of force. There is no arrest power for breach of the peace, however, ss. 458 and 459, Crimes Act provide necessary powers of arrest where appropriate. See further details regarding breach of the peace in VPM 107-3. 12.2.2 Request for assistance Where a statutory body, other government department or law enforcement agency requests police attendance to prevent a breach of the peace the following apply: • A Sub-officer must approve police assistance. Where uncertainty exists seek advice from a supervisor or manager. • Attending police: – should be in uniform, unless exceptional circumstances exist – must inform all parties that the purpose of police attendance is to prevent a breach of the peace – must remain impartial and not participate or assist in the execution of the warrant. 12.3 Crimes Act Warrants Search for and seizure of evidence (s.465) – can only be issued on the information, on oath, of a Senior Sergeant or above. Entry and search (s.459A) – although this section allows a general power of entry for arrest, members should seek the issue of an appropriate warrant where the circumstances come within warrant provisions. Stolen goods (s.92(1)) – see section 12.4. […] 12.4 Officer’s authority to search for stolen goods • Entry into premises should normally be by a Warrant to Search and/or Arrest. Unless exceptional circumstances exist, a warrant authorising entry must be taken out for all planned operations. • An Officer's Authority does not afford the same protection or authority as a warrant and must only be used in the most urgent of circumstances. In all other circumstances an appropriate warrant should be used. • The procedure for application and execution of a Warrant to Search is to be followed. […]

In respect of searches of people, the Police Manual contains various directions, including that police members should inform persons to be searched of the reasons for the search; record details of the search; as far as possible, conduct the search in the presence of at least one other police member; be of the same sex as the person to be searched; and not remove from a person being searched any property that is not suspected of being stolen.152

The Manual requires that persons under 17 “must be accompanied by a parent or guardian, or an independent third party during a search, unless urgent or serious circumstances exist” and that “intellectually or mentally impaired persons” must likewise be accompanied by an independent third party in the absence of urgent or serious circumstances.153

152 Victoria Police, Victoria Police Manual, Instruction 105-1, Searches of Persons, 1 March 2004, paragraph 5.1. 153 Ibid, paragraph 7.3.


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The Committee has already highlighted the remedies available for breaches of procedures and refers readers to that discussion, under “Accountability mechanisms - abuse of warrant powers” on pages 41-45.

Question 57. What issues and concerns exist in relation to procedures for the execution of search and seizure warrants?

Question 58. How common are allegations of improper police procedures? What evidence is there to support such allegations?

Question 59. How is property seized in breach of procedures dealt with by the courts? Is this satisfactory?

Another submission highlighted the difficulty of ascertaining whether a search was conducted within the terms of the warrant authorising it, because the police affidavits in support of the application for the warrant are not disclosed to the defendant or their counsel.154

Question 60. Should supporting affidavits and statements be made available to the defendant and counsel? Under what conditions?

ITEMS NOT SPECIFIED IN THE WARRANT

The issue of how to deal with the seizure during searches of items that are not included in the warrant was considered in the Inspectors’ Powers Report:

The question as to whether authorised persons can seize property or undertake other investigation activity which is not directly covered by the warrant goes to the heart of the question as to just how much protection warrant provisions really offer. If items can be seized which do not fall within the scope of the relevant warrant, how can warrants be said to be “a practical safeguard which both common law and statute provide against arbitrary interference with the personal liberty and property of the individual”?155

Several stakeholders noted that the law is unclear about the existence of and controls on powers to seize evidence discovered during the search that is unrelated to the warrant.156 It was noted that there are no clear sanctions for exceeding the scope of the warrant.157

154 Preliminary submission, Michael McNamara. 155 Inspectors’ Powers Report above n5, 192, quoting Challenge Plastics Pty Ltd v The Collector of Customs for the State of Victoria (1993) 42 FCR 397 . 156 Preliminary submissions, Dr. Chris Corns, Dr. Steven Tudor, Brian Walters S.C., Victorian Legal Aid. 157 Preliminary submission, Victoria Legal Aid.


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These comments echo the conclusions of the Law Reform Committee of the 54th Parliament, which considered the issue during the Inspectors’ Powers inquiry, although the analysis was of course restricted to authorised persons. The Committee noted that some statutes allowed very limited seizure of items not specified in the warrant but found that the common law was unclear about permissible seizures outside the terms of the warrant.158

The situation is clearer in respect of members of police forces: legislative developments have “progressively overtaken the case authorities to ensure the lawfulness of police seizures”.159 Similarly, in relation to searches during or following arrests:

“whenever police are authorised to arrest a person for an indictable offence, whether with or without a warrant, they may at the time of the arrest and as an incident of it, seize all documents or articles found on the arrested person or under his or her control that they have reasonable grounds for believing are material evidence to prove the commission of a crime.160

Question 61. What principles should govern inadvertent discovery and what sanctions should apply where those principles are breached?

In the absence of such statutory authorisation, generally at common law if property is seized that is not subject to a warrant, the seizure results in a trespass,161 which may provide grounds for seeking one of the remedies identified by the Committee under “Accountability mechanisms - abuse of warrant powers”, on pages 41-45.

SEIZED PROPERTY TO BE BROUGHT BEFORE ISSUING AUTHORITY

Search warrants issued under s465, Crimes Act 1958 (Vic) require that seized items be brought before the Magistrates’ Court after being seized…The rationale is that the warrant authorises the police merely to seize and not to retain the items specified in the warrant. Returning items to the Magistrates’ Court is thus one way for the Court to monitor the lawfulness of the execution of the warrant.162

A number of stakeholders echo legal commentator Professor Richard Fox in claiming that the police act illegally by failing to fulfil this requirement.163

However, Victoria Police and the Police Association argue that the requirement causes delays. Moreover, Victoria Police considered that in most cases, the requirement “adds no value to the process of law enforcement or investigation of offences”, while noting at the same time that

158 The Committee considered some of the relevant case law in Inspectors’ Powers Report above n5, 193-195. 159 Tronc, Crawford and Smith above n13, 205. 160 Fox above n13, 125, citing Field v Sullivan [1923] VLR 70. 161 Tronc, Crawford and Smith above n13, 204 and cases referred to therein. 162 Preliminary submission, Dr. Steven Tudor. 163 Fox above n13, 122; preliminary submissions, Dr Chris Corns, Dr. Steven Tudor.


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magistrates deal with seized property inconsistently. The Police Manual stipulates that members of the police dealing with property seized under warrant should:

• Comply with any specific instructions of the warrant.

• Anything seized under the warrant must be brought before the Magistrates’ Court without delay and without interference (s. 78(1)(b)(ii) Magistrates’ Court Act). Exceptions are where:

o it is impractical or dangerous, instead invite the Magistrate to the location where the property is (s. 5(2) Magistrates’ Court Act)

o the property is bulky or cumbersome (s. 78(5) Magistrates’ Court Act).

• In the interests of justice the court may direct that property seized under warrant be returned to its owner, subject to any conditions (s. 78(6) Magistrates’ Court Act).164

Question 62. How widespread is the practice of ignoring the s465 requirement to take seized items before the Magistrates’ Court?

Question 63. How has this practice been addressed? How should it be addressed?

Question 64. Are there circumstances in which the requirement should not apply?

SURVEILLANCE

Barrister Brian Walters S.C. commented that:

All warrant powers have problems at present, but amongst the most open to abuse are the surveillance device warrants, which are proliferating in number and which produce an enormous amount of product, management of which is a logistical problem. The issuing authority will never be in a position to hear all the product of such a warrant. Legal professional privilege is almost impossible to protect. The huge product generated can also make the prosecution process almost impossibly unwieldy. Misuse of this product can occur, and the benefit must be weighed against the disadvantages. The justification required for the issue of such warrants should be tightened.165

Barrister Felicity Hampel S.C. noted that surveillance warrant powers and procedures are not as transparent as other warrant powers. She pointed out that there is no requirement to report the number of warrants obtained or how many were executed and that there is neither an evaluation of

164 Victoria Police, Victoria Police Manual, Instruction 114-4 Exhibits and Seized Property, 11 July 2003, paragraph 5.1.1. 165 Preliminary submission, Brian Walters S.C.


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whether the intrusiveness of the warrant was justified nor any independent monitoring of the use of surveillance warrants. She identified a “pressing need to assess the system in order to find out whether surveillance warrant powers are being abused, and if so the nature and extent of such abuse.”166

On the other hand, the Police Association considered it important to enhance present powers available for the seizure of evidence through electronic means.167

Another barrister, Mark Dean S.C., considered that it is not clear what a warrant authorises to be recorded through surveillance, or what constitutes a private conversation for the purposes of a breach of the Surveillance Devices Act 1999. Mr. Dean noted that this issue arises most often in commercial contexts.168

Question 65. How could abuses of surveillance warrants be measured and curtailed without undermining legitimate law enforcement purposes?

Question 66. What sort of assessment and monitoring would be appropriate?

Question 67. What other accountability mechanisms are suitable to reduce the potential for abuse?

Question 68. Is there a need for a definition of ‘private conversation’?

Warrants relating to the enforcement of proceedings

Comments here concerned civil warrants issued under the Magistrates’ Court Act 1989, various rules of civil procedure and the Judgement Debt Recovery Act 1984, as well as Penalty Enforcement Warrants issued pursuant to PERIN provisions of the Magistrates’ Court Act 1989. Most of the issues raised concern the powers and procedures of the Sheriff, who is authorised under various Acts to execute many of the warrants concerned.169

166 Preliminary comments, Felicity Hampel S.C. 167 Preliminary submission, Police Association. 168 Preliminary submission, Mark Dean S.C. 169 See for example, Magistrates’ Court Act 1989 ss 73, 82; Supreme Court Act 1986 s 115.


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POWERS OF THE SHERIFF

Stakeholders raised the following issues:

GENERAL

• the desirability and possibility of increasing the consistency of powers and procedures between Victorian and other States;

• the efficiency of the Sheriff’s Office in executing civil warrants, and whether civil warrants issued by judgment creditors are accorded the same priority as other warrants executed by the Sheriff ;

• the existence, operation and impact of rules governing the priority in which civil warrants are executed;

• the Sheriff’s powers of seizure, particularly as curtailed by s.27 of the Judgment Debt Recovery Act 1984;

• the desirability and possibility of giving the Sheriff a power of entry on civil warrants;

• The application of the Bail Act 1977 applies to civil warrants of apprehension.170

The Committee invites detailed comments on these matters.

REAL ESTATE

One stakeholder considers that the existing system in relation to warrants concerning real estate “is unwieldy, costly to a judgement creditor and in great need of reform.”171

Question 69. How can the present arrangements be improved? Should the Sheriff have the power to execute a warrant to seize property against a judgment debtor’s interest in real estate rather than the judgment creditor being required to comply with the provisions of s.112 of the Magistrates’ Court Act 1989?

170 Preliminary submission, Law Institute of Victoria, Litigation Section. 171 Submission No. 1, Andrew P. Melville.


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PENALTY ENFORCEMENT WARRANTS

OVERVIEW OF THE PERIN PROCESS

Numerous agencies may issue infringement notices in relation to specified offences,172 instead of requiring alleged offenders to appear in court. If the penalty is not paid within a prescribed period, usually 28 days, enforcement procedures contained in Schedule 7 of the Magistrates’ Court Act 1989 take effect. A courtesy reminder letter is sent to the offender, granting a further 28 days to pay the fine.173 If no payment is made in response, the agency that issued the notice registers it with the PERIN (Penalty Enforcement by Registration of Infringement Notice) court174, which is an administrative, rather than judicial, ‘chamber’ of the Magistrates’ Court. The court first issues an enforcement notice requiring payment.175 If the penalty remains unpaid 28 days from the date of the order, the court must issue a penalty enforcement warrant for execution by the sheriff, police and other authorised persons.176 Under the warrant, authorised persons demand payment and provide the person in default with notice of their rights. If payment has still not been made seven days later, they are authorised to seize the personal property of the person in default to satisfy the penalty,177 or to arrest them if there are no assets to seize. Arrested individuals are brought before the Magistrates’ Court which may discharge the fine, imprison the defaulter at the rate of one day per $100 owing, order community service, or adjourn the matter.

Various opportunities exist for individuals who have defaulted on penalties to challenge the infringement process, such as requesting that the matter be referred to open court for hearing. Alternatively, the Sheriff’s Office and the Magistrates’ Court manage an Enforcement Review Program that identifies individuals in special circumstances for the purposes of seeking revocation of penalties. The Program aims to “provide a means by which the needs of a particular group of disadvantaged people may be addressed by the justice system”. Special circumstances are “generally considered to include people who have experienced severe social dysfunction, homelessness, diagnosed mental illness, an intellectual disability, an acquired brain injury or a severe physical handicap”.178

20% of fines registered with the PERIN court are paid before a warrant is issued. However, in the vast majority of cases -80%- a penalty enforcement warrant is issued.179

172 Approximately 50 Acts authorise the use of infringement notices. See Fox above n44, Annex A. The notices cover some 1250 offences: conversation with Mark Haladjian, Senior Deputy Registrar, PERIN Court (Melbourne, 21 July 2004). 173 Magistrates’ Court Act 1989 Schedule 7 s 3. 174 Ibid, Schedule 7 s 4. 175 Ibid, Schedule 7 s 5. 176 Ibid, Schedule 7 s 8. Penalty enforcement warrants are authorised by s 82B of the Act. 177 Ibid, Schedule 7,s 8(3). Although property can only be removed from its location in particular circumstances. 178 Magistrates’ Court of Victoria, Annual Report 1 July 2002 - 30 June 2003, 56. 179 Conversation with Enforcement Management Unit, Department of Justice (Melbourne, 20 July 2004).


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The PERIN system is said to:

offer… several benefits. It saves people the time and expense of going to court on matters they do not wish to contest while preserving their right to do so if they wish. No prosecutorial action is required in the cases in which the penalty is paid and, as a consequence, agencies are saved the prohibitive cost of prosecuting large volumes of cases. The diversion of minor cases out of the main court system frees up Magistrates and court staff to focus on the more serious criminal cases. The procedures also lend themselves to the cost saving advantages of automation, computerisation and timely processing. The result is efficient, cost-effective enforcement of compliance with road safety rules, local parking by-laws and other instances where on-the-spot fines can be issued.180

The number of unpaid infringement notices registered with the PERIN court rose by 134% between 1990-91 and 2002-03, from 377 500 to 883 000. Between 2001-02 and 2002-03 alone, the number rose by 33%181 In the same period, the number of offences that are subject to PERIN procedures are said to have risen considerably.182 Approximately 1250 offences are currently subject to PERIN proceedings. However, prior to the publication of this Discussion Paper the Committee was not able to obtain statistics for earlier years that would facilitate a comparison.

Regardless of any comparative rise in eligible offences, the rapid increases in registrations of unpaid notices make effective oversight of the agencies involved in the PERIN system critical, both to protect the rights of individuals subject to PERIN procedures and to monitor the system’s capacity to meet its goals.

CONCERNS

Preliminary comments received by the Committee highlighted concerns about the impact of the PERIN system on certain sections of the community, particularly people who are homeless, illiterate, from non-English speaking backgrounds, or in financial hardship. For example, the Victorian Aboriginal Legal Service pointed out that its clients who are subject to penalty enforcement warrants are often arrested or subjected to summons, as the 7 day payment period does not allow sufficient time to raise funds to pay the penalty and defaulters are often unaware of the possibility of converting a penalty into community work.183 VALS suggests improving education about the PERIN process and considering additional warnings for disadvantaged groups.

Similar problems were identified by the Youth Affairs Council of Victoria, which suggested that many young people’s relative mobility and general lack of connection to and understanding of

180 Department of Justice, PERIN Court Overview, available at www.justice.vic.gov.au. 181 Department of Justice, Annual Report 2002-2003, 61 The increase is attributed to increased availability of infringement notices for particular offences and targeted enforcement by the Government and Victoria Police. Ibid. 182 Conversation with Enforcement Management Unit, above n179. 183 Preliminary submission, Victorian Aboriginal Legal Service.


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legal processes necessitated a more flexible and innovative approach to penalty enforcement.184

As this Discussion Paper was being finalised, the West Heidelberg Community Legal Service issued a discussion paper on the PERIN process.185 That paper focuses on the efficiency, effectiveness, fairness and complexity of the system and proposes reforms to improve the experiences of disadvantaged people.

The report states that the PERIN system “works for most people” and acknowledges the efforts of the Enforcement Review Program. However, the report concludes that the PERIN court may nevertheless not deal fairly with people who are poor, homeless, sick, mentally ill, illiterate or from non-English speaking backgrounds. Such people who are subject to infringement notices can be affected in the following ways:

• they may not receive the notices because they do not have a fixed address;

• they may not be able to pay the fine and the costs involved in enforcing the infringement notice, particularly as the option to pay by instalments is only available after the fine is registered with the PERIN court;

• they may not understand the process or that their original action would result in a fine.

The report makes 19 recommendations for reform, including:

• common legislation to govern all aspects of infringements;

• a cap on maximum amount of penalties;

• increased availability of payment-by-instalment options and longer period to pay fines;

• automatic revocation of fines where offender income is below a certain level;

• discretion for officers that issue fines to give a warning;

• increasing the range of special circumstances that fall under the Enforcement Review Program to include homelessness, chronic alcohol, substance or gambling addiction and severe financial hardship; and

• the production of simplified, plain English and other language versions of infringement notices and forms.186

As many of these issues are relevant to this inquiry, the Committee invites stakeholders to include in their submissions to this inquiry any relevant comments on that discussion paper’s findings and proposed reforms.

184 Comments, Youth Affairs Council of Victoria. 185 West Heidelberg Community Legal Service, The PERIN Court: A Discussion Paper, July 2004. 186 Ibid; West Heidelberg Community Legal Centre, Second Report: Discussion Paper on the PERIN Court, July 2004.


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Question 70. What data are recorded concerning penalty enforcement warrants? How many were applied for/issued/executed? Where warrants were executed, how were the cases disposed of?

Question 71. How does the capacity of the PERIN system compare to its workload? How does the system respond to the increase in referrals?

Question 72. What is the impact of the Enforcement Review Program? Is there a need to reform it? What reforms would be appropriate?

Question 73. What other reforms to the PERIN system would be appropriate?

Warrants relating to monitoring compliance with legislation

In Section Three of this Discussion Paper, the Committee noted that warrants that enable monitoring of compliance with legislation or other regulatory regimes were scrutinised in the Inspectors’ Powers Inquiry. The Committee’s preliminary research for this inquiry and consultations did not reveal any concerns that either do not fall within the general themes outlined in the preceding section (such as the knowledge standard to be satisfied before a warrant can be issued, and training procedures), or have not already been dealt with in the Inspectors’ Powers Report.

To recap, the Inspectors’ Powers Inquiry considered the following issues relevant to warrant powers:

• as a matter of principle, warrants should be required for the investigation of offences and for entry into residential premises;187

• warrants should generally not be required where the action being contemplated is for the purposes of monitoring legislation or a licensing regime;188

• warrants (as a way of exercising coercive powers) should conform with the set of principles set outlined Chapter 2 of the Inspectors’ Powers Report;189

187 Inspectors’ Powers Report above n5, 259. 188 Ibid. 189 Ibid, 276.


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• search warrants should contain protections including announcement before entry and a requirement to give a copy of the warrant to occupiers;190

• legislative provisions should contain protections including what the warrant must cover, a sun-set clause on warrant validity, procedures for dealing with disputed seizures, time limits for the return of seized material;191

• all agencies should develop written enforcement philosophies to govern their use of warrant powers (as a way of exercising their coercive powers), such philosophies to be as transparent and well-publicised as possible;192

• authorised officers should be properly trained in the execution of warrants;193

• agencies should maintain records of and report on the use and operation of their inspectors’ warrant powers (as part of general recording and reporting requirements recommended in respect of coercive powers),194 such reporting to include annual reports to Parliament in accordance with guidelines to be developed by the Government;195

• agencies should be statutorily required to have internal complaints mechanisms, which should conform to standards that the Government should develop;196

• a general lack of clarity and transparency among search warrant provisions in Victorian legislation, which might be addressed through a full listing of such provisions in the Magistrates’ Court Act 1989 or the passage of new legislation modelled on the Search Warrants Act 1985 (NSW);197

• powers authorising entry, search, seizure, questioning and the production of documents should only be contained in primary legislation;198

• the need for agencies to develop and implement protocols for the seizure of documents over which legal professional privilege is claimed;199

With these qualifications in mind, the Committee invites stakeholders to suggest matters for its consideration.

190 Ibid, 173. 191 Ibid. 192 Ibid, 90. 193 Ibid, 166. 194 Ibid, 167. 195 Ibid, 126. 196 Ibid, 121. 197 Ibid, 170. 198 Ibid, 114. 199 Ibid, 152.


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Warrants relating to the protection of vulnerable groups

This part of the Discussion Paper is concerned with warrants whose purpose is to protect the welfare of vulnerable members of the community. For the purposes of this Discussion Paper, the Committee defines such individuals as being any person who lacks or may lack the capacity to care for themselves, such as children, young people and people with a mental or intellectual disability.

The Committee received preliminary comments about the provisions of three Acts and invites comments on them and any other relevant matters. The Committee is particularly interested in receiving submissions on appropriate approaches to warrant powers and procedures in the sorts of special circumstances described below.

MENTAL HEALTH ACT 1986

The Mental Health Legal Centre queried the procedures used to return individuals to secure custody following the revocation of community treatment orders under s14(4) of the Mental Health Act 1986. Of particular concern was the role that police play in assisting the Crisis Assessment Teams that manage such situations.200 It was suggested that police involvement can often increase tension and trauma for clients due to police practices that are felt to place insufficient emphasis on conflict avoidance, and that the Crisis Assessment Team relies on the police too often, without a considered and realistic evaluation of the potential threat that the client poses. More generally, it was felt that appropriate personnel are not always present when warrants are executed on people with mental health illnesses.

The Act also makes provision for a special warrant authorising the police and a medical practitioner to visit and examine a person who, it is reasonably believed, “appears to be mentally ill and is because of mental illness incapable of caring for herself or himself”.201

Question 74. Is there a need for changes to laws or procedures governing police actions in this sector to improve the operation of the legislation? What reforms would be appropriate?

Question 75. What training do police receive to assist agencies acting under the Mental Health Act 1986?

200 Preliminary submission, Mental Health Legal Centre. 201 Mental Health Act 1986 s 11.


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CHILDREN AND YOUNG PERSONS ACT 1989

The Committee was advised of warrant issues that arise regularly in respect of children who are the subject of protection interventions pursuant to the Act.

The Children’s Court is empowered by the Act to issue safe custody warrants in the following eleven circumstances:202

Children and Young Persons Act 1989

Pre-conditions for Issue of a Warrant

1 S.69(1)(B) Protection

A child is in need of protection and it is inappropriate to proceed by notice.

2 S.70(3) Protection by Notice

Proceedings have been taken by notice in respect of a child said to be in need of protection and the child does not appear before the Court in compliance with the notice.

3 S.72(7) Irreconcilable Differences (IRD) Application

The child does not appear before the Court for the hearing of an IRD application.

4 S.79(5) Variation of Interim Accommodation Order (IAO)

An application has been made by notice for the variation of an interim accommodation order and the child does not appear before the Court in compliance with the notice. 80(3): Proceedings have been taken by notice alleging breach of an IAO or a condition thereof and the child does not appear before the Court in compliance with the notice.

5 S.80(3) S.80(4) Breach of IAO

80(4): A protective intervener is satisfied there has been a breach of an IAO or a condition thereof and it is inappropriate to proceed by notice. 80A(5): Application has been made by notice for a new IAO and the child does not appear before the Court in compliance with the notice.

6 S.80A(5) S.80A(6) Application for new IAO 80A(6): On an application for a new IAO, a protective intervener is

satisfied it is inappropriate to proceed by notice. 95(3): Proceedings have been taken by notice alleging breach of a supervision order and the child does not appear before the Court in compliance with the notice.

7 S.95(3) S.95(4) Breach of Supervision Order

95(4): The Secretary is satisfied there has been a breach of an supervision order and it is inappropriate to proceed by notice. 98(4)+95(3): Proceedings have been taken by notice alleging breach of a supervised custody order and the child does not appear before the Court in compliance with the notice.

8 S.98(4) Breach of Supervised Custody Order

98(4)+95(5): The Secretary is satisfied there has been a breach of a supervised custody order and it is inappropriate to proceed by notice.

9 S.110(2A) Failure to Appear Interim Protection Order (IPO)

A child does not appear before the Court at the time specified in the IPO or at any time specified in a notice caused by the Court to be served on the parent/carer and the child (if aged 12 or more). 111(3): Proceedings have been taken by notice alleging breach of IPO and child does not appear before Court in compliance with the notice.

10 S.111(3) S.111(4) Breach of IPO 111(4): The Secretary is satisfied there has been a breach of an IPO

and it is inappropriate to proceed by notice. 11 S.265(1)

Failure to Comply

A judicial officer is satisfied that: (aa) an undertaking under s.25(1A) has not been complied with; or (a) a child is absent without lawful authority or excuse from the place in which he or she was placed under an IAO, a custody to third party order, a supervised custody order or by the Secretary under s.124 or from the lawful custody of a member of the police force; or

202 This table is taken from Children’s Court of Victoria, Research materials – Child Protection, Part 5.23, available at http://www.childrenscourt.vic.gov.au.


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(b) a child or parent/carer is refusing to comply with a lawful direction of the Secretary under s.124 as to the placement of the child.

These warrants authorise the police to break, enter and search any place where the child who is the subject of the intervention is suspected to be and to take him or her into safe custody. The Court issued 735 such warrants in 2000-01 and 868 in 2001-02.

The Court, Victoria Police and the Department of Human Services have agreed procedures for the transmission and registering of safe custody warrants. Warrants that remain unexecuted for one month are returned to the Court for cancellation.203

Comments received by the Committee focused on four concerns:

• the repeated issuing of warrants for children who constantly abscond from protective placements; 204

• a lack of understanding among child protection workers concerning the scope and use of the warrants;

• the effectiveness of police procedures for the execution of these warrants; and

• the use of Victoria Police to transport children under the warrants where there is no other transport available.205

The Committee welcomes more detailed information and responses on each of these issues.

Question 76. Is there a need to reform legislation governing warrants in this area? If so, what reforms would be appropriate?

Question 77. What training is provided to child protection workers concerning the availability and use of warrant powers under the Act? How might understanding be improved? Are there any agreed procedures between child protection agencies and the Children’s Court?

Question 78. Is there a need to reform police procedures in this area? If so, what reforms are appropriate?

203 Ibid. 204 Preliminary submission, Youthlaw. 205 Comments, Judge Jennifer Coate, President, Children’s Court of Victoria.


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Question 79. What options exist for providing services to transport children and young people under warrants?

GUARDIANSHIP AND ADMINISTRATION ACT 1986

The Office of the Public Advocate is a statutory office with the power to investigate problems and use special authority to make enquiries on behalf of people with a disability where there are fears for their safety or concerns about their interests.206

The Public Advocate deals with two warrant powers under the Act, under sections 26 and 27.

SECTION 26 WARRANTS

Section 26 warrants authorise the enforcement of guardianship orders and usually involve ambulance and police assistance. There were 48 such warrants issued in the year to May 2004. A protocol between the Public Advocate and the Melbourne Ambulance Service facilitates co-operation, although the Public Advocate notes that difficulties arise when trying to synchronise presence of the police, the ambulance and the client to execute the warrant. Another problem is that ambulance drivers are occasionally reluctant to transport clients against their wishes.

SECTION 27 WARRANTS

Warrants issued under section 27 enable the Public Advocate firstly “to enter premises to prepare a report to VCAT, and [secondly] on the basis of that report, to move a person for assessment and placement prior to a hearing for the appointment of a guardian.”207 The Committee notes that only four section 27 warrants were issued in the year to May 2004, but nevertheless considers this type of warrant to be significant because of its function in relation to the welfare and protection of vulnerable people.

Section 27 requires that warrants can only be issued in respect of persons who have a disability.208 The Public Advocate notes that:

It is often difficult to meet this requirement as the person is refusing any involvement with any service to establish their needs. It would be better if it were only necessary to establish that the applicant for the order has a reasonable belief that the person has a disability.209

206 What is the Office of the Public Advocate, available at http://www.publicadvocate.vic.gov.au/CA256A76007E8265/All/9AA1604A8F658E65CA256C1D00173681?OpenDocument. 207 Preliminary submission, Office of the Public Advocate. 208 Section 3 of the Act defines disability as “intellectual impairment, mental disorder, brain injury, physical disability or dementia”. 209 Ibid.


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Other difficulties arise as a result of the procedure for executing section 27 warrants and because of the rarity of the warrant. Assessment reports pursuant to the warrant are usually provided to VCAT by telephone. Where the report evidences a need for placement and assessment of the client, VCAT issues oral orders. The lack of written authorisation can delay implementation as it becomes necessary to explain the authority to ambulance and police personnel. Similarly, the low number of orders issued necessitates Public Advocate staff “educating the police and ambulance driver about the orders, why the orders are made and what is hoped to be achieved by making of the orders.”210

Question 80. How much of an impact do these problems have on the Public Advocate’s capacity to fulfil i ts functions? How could they be addressed? Is there a need for improved training of ambulance or police personnel, or better co-ordination between the agencies involved in the execution of the warrants?

Question 81. Should s27 of the Guardianship and Administration Act 1986 be amended to remove the disability requirement and /or to provide for written VCAT orders?

Question 82. What other reforms may be required?

210 Ibid.

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A P P E N D I X 1 . V I C T O R I A N L E G I S L A T I O N C O N T A I N I N G

W A R R A N T P O W E R S A N D P R O V I S I O N S

1. Accident Compensation Act 1985

2. Agricultural Industry Development Act 1990

3. Alcoholics and Drug-dependent Persons Act 1968

4. Associations Incorporation Act 1981

5. Australian Crime Commission (State Provisions) Act 2003

6. Building Act 1993

7. Business Franchise (Tobacco) Act 1974

8. Casino Control Act 1991

9. Catchment and Land Protection Act 1994

10. Children and Young Persons Act 1989

11. Children's Services Act 1996

12. Chinese Medicine Registration Act 2000

13. Chiropractors Registration Act 1996

14. Classification (Publications, Films and Computer Games) (Enforcement) Act 1995

15. Club Keno Act 1993

16. Control of Weapons Act 1990

17. Confiscation Act 1997

18. Co-operatives Act 1996

19. Coroners Act 1985

20. Credit (Administration) Act 1984

21. Crimes (Family Violence) Act 1987


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22. Crimes Act 1958

23. Dental Practice Act 1999

24. Domestic (Feral and Nuisance) Animals Act 1994

25. Drugs, Poisons and Controlled Substances Act 1981

26. Electricity Industry Act 2000

27. Electricity Safety Act 1998

28. Fair Trading Act 1999

29. Firearms Act 1996

30. First Home Owner Grant Act 2000

31. Fisheries Act 1995

32. Flora and Fauna Guarantee Act 1988

33. Forests Act 1958

34. Fundraising Appeals Act 1998

35. Gaming and Betting Act 1994

36. Gaming Machine Control Act 1991

37. Gaming No. 2 Act 1997

38. Gas Industry Act 2001

39. Gas Safety Act 1997

40. Health Services Act 1988

41. Heritage Act 1995

42. Imprisonment of Fraudulent Debtors Act 1958

43. Infertility Treatment Act 1995

44. Interactive Gaming (Player Protection) Act 1999

45. Introduction Agents Act 1997

46. Judgment Debt Recovery Act 1984

47. Land Act 1958

Appendix 1 – Victorian Legislation Containing Warrant Powers and Provisions

75

48. Landlord and Tenant Act 1958

49. Legal Practice Act 1996

50. Liquor Control Reform Act 1998

51. Livestock Disease Control Act 1994

52. Lotteries Gaming and Betting Act 1966

53. Magistrates' Court Act 1989

54. Maintenance Act 1965

55. Medical Practice Act 1994

56. Melbourne and Metropolitan Board of Works Act 1958

57. Mental Health Act 1986

58. Motor Car Traders Act 1986

59. Optometrists Registration Act 1996

60. Osteopaths Registration Act 1996

61. Petroleum (Submerged Lands) Act 1982

62. Petroleum Act 1998

63. Physiotherapists Registration Act 1998

64. Planning and Environment Act 1987

65. Plant Health and Plant Products Act 1995

66. Podiatrists Registration Act 1997

67. Police Regulation Act 1958

68. Prostitution Control Act 1994

69. Psychologists Registration Act 2000

70. Public Lotteries Act 2000

71. Residential Tenancies Act 1997

72. Road Safety Act 1986

73. Seafood Safety Act 2003


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74. Seamen's Act 1958

75. Second-Hand Dealers and Pawnbrokers Act 1989

76. Sentencing Act 1991

77. Sports Event Ticketing (Fair Access) Act 2002

78. Summary Offences Act 1966

79. Surveillance Devices Act 1999

80. Taxation Administration Act 1997

81. Terrorism (Community Protection) Act 2003

82. The Metropolitan Gas Company's Act 1878

83. Therapeutic Goods (Victoria) Act 1994

84. Tobacco Act 1987

85. Trade Measurement (Administration) Act 1995

86. Transport Act 1983

87. Travel Agents Act 1986

88. Unlawful Assemblies and Processions Act 1958

89. Utility Meters (Metrological Controls) Act 2002

90. Veterinary Practice Act 1997

91. Victorian Civil and Administrative Tribunal Act 1998

92. Wildlife Act 1975

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A P P E N D I X 2 . M A G I S T R A T E S ’ C O U R T A C T 1 9 8 9 -

G E N E R A L R E Q U I R E M E N T S F O R W A R R A N T S

Version No. 099 Magistrates' Court Act 1989

Act No. 51/1989 Version incorporating amendments as at 1 July 2004

[…]

[Endnote text omitted]

Division 3—Warrants

Subdivision 1—General

57. Warrants (1) The following warrants may be issued—

(a) warrant to arrest;

(b) remand warrant;

(c) search warrant;

(d) warrant to seize property;

(e) warrant to imprison;

(f) warrant to detain in a youth training centre;

(g) penalty enforcement warrant.

(2) The person issuing a warrant must cause the prescribed particulars of the warrant to be entered in the register.

(3) A warrant must name or otherwise describe the person or property against whom or which it is issued.

(4) All warrants, other than a search warrant, may be issued by a registrar or a magistrate.

S.57(1)(g) inserted by No.33/1994 s.9(1).


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(5) A search warrant may only be issued by a magistrate.

(6) Remand warrants may be issued by a bail justice.

(7) A judge of the Supreme Court or judge of the County Court may exercise any power conferred on a magistrate by or under this Act with respect to the issue, recall or cancellation of a warrant or duplicate copy of a warrant.

(8) A warrant must be executed by the use of a copy of the warrant, known as the execution copy, or by the use of a copy of the execution copy, including a copy transmitted by facsimile machine.

(9) The execution copy of a warrant must be in writing and must be signed or otherwise authenticated by the person issuing it.

(10) An execution copy of a warrant must be returned, when executed, to the Court.

58. Recall and cancellation of warrant (1) A warrant issued by a registrar, magistrate or bail

justice may be recalled and cancelled by—

(a) that registrar, magistrate or bail justice; or

(b) if issued by a registrar, the registrar for the time being at the venue of the Court at which it was issued or except in the case of a warrant issued under clause 8(1) of Schedule 7, any other registrar; or

(c) a magistrate.

(1A) If a warrant has been recalled and cancelled under sub-section (1), a fresh warrant may be issued for the same purpose as that for which the recalled warrant was issued.

(2) A warrant to imprison or detain in a youth training centre for non-payment of a fine (whether issued before or after the commencement of this section) or a penalty enforcement warrant is null and void if it has not been executed within the period of 5 years after a warrant of that type was first issued against the person named in the warrant for the purpose specified in the warrant.

(2A) If a warrant referred to in sub-section (2) becomes null and void under that sub-section, the fine in respect of which it was issued, together with any associated fees and costs, ceases to be enforceable or recoverable if no part of the fine had been paid before the date on which the warrant became null and void.

s. 58

S.58(1)(b) amended by No.44/1997 s.29.

S.58(1A) inserted by No.70/1996 s.4.

S.58(2) amended by Nos 33/1994 s.9(2), 70/1996 s.5(1).

S.58(2A) inserted by No.70/1996 s.5(2).

s. 59

Appendix 2 – Magistrates’ Court Act 1989 – General Requirements for Warrants

79

(3) Nothing in sub-section (2) or (2A) prevents the issue, with the leave of the Court, of a fresh warrant for the same purpose as that for which a warrant that has become null and void under sub-section (2) was issued.

(4) Despite sub-section (2), if under sub-section (3) a fresh warrant is issued, the fine in respect of which it was issued, together with any associated fees and costs, again becomes enforceable or recoverable as if there had been no cessation.

59. Duplicate warrants (1) If the execution copy of a warrant issued by a registrar,

magistrate or bail justice is lost or destroyed before it is executed, a registrar or magistrate may issue a duplicate execution copy if satisfied by evidence on oath or by affidavit of the loss or destruction of the execution copy of the warrant.

(2) A duplicate execution copy must bear on its face the word "Duplicate" and may be executed in all respects as if it were the execution copy of the warrant.

(3) When a duplicate execution copy of a warrant is issued, the execution copy of the warrant becomes null and void and must, if located, be returned to the principal registrar.

(4) If a person is in a prison, a police gaol or a youth training centre in accordance with a warrant which has been executed and the execution copy of the warrant is lost or destroyed, a registrar or magistrate may issue a duplicate execution copy if satisfied by evidence on oath or by affidavit of the loss or destruction of the execution copy.

(5) A duplicate execution copy issued under sub-section (4) is sufficient authority for the person in whose legal custody the person is to keep the person in the prison, police gaol or youth training centre until the end of the term specified in the warrant.

60. Effect of defect or error in certain warrants (1) A warrant to imprison, a warrant to detain in a youth

training centre, a remand warrant, a warrant to seize property or a penalty enforcement warrant is not void only because of a defect or error in it if there is a valid order supporting it.

(2) A person acting under a warrant to seize property or a penalty enforcement warrant is not to be taken to be a trespasser from the beginning only because of a defect or error in it.

S.58(3) amended by No.70/1996 s.5(3).

S.58(4) inserted by No. 70/1996 s. 5(4).

s. 60

S.59(5) amended by No.45/2001 s. 43(a)(i)(ii).

S.60(1) amended by No.33/1994 s.9(3).

S.60(2) amended by No.33/1994 s.9(4).


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A P P E N D I X 3 . P R I N C I P L E S F R O M T H E

I N S P E C T O R S ’ P O W E R S R E P O R T

CHAPTER TWO - GENERAL PRINCIPLES The [Law Reform Committee of the 54th Parliament] considered that an important outcome of this Report would be the development of a set of general principles which would apply to all coercive powers the Report considers. […] Some of the principles are directed towards the amendment of legislation and are therefore intended for the consideration of legislative drafters; others are more relevant to the agencies’ development of internal procedures such as training. [T]he principles adopted by the Committee mainly relate to warrant / consent provisions and the protections associated with the powers. Several of the principles also appear as recommendations in the course of this Report. It was not possible to consider all principles in the same amount of depth. Accordingly, some of the principles are merely listed here. In drafting these principles, the Committee has drawn particularly on the Senate Report and the written submission by the Legal Policy Unit of the Department of Justice. Legal Policy, whose submission discussed and added to the principles developed by the Senate Committee, noted that the principles provided for only limited inspectors’ powers but that they could be varied if the agency could show good cause for doing so. It submitted that the principles should be seen as general guiding principles rather than as rigid rules: [“]It is important to note at the outset that the principles are generally cast as providing for a relatively limited regime of inspectors’ powers. This is based on the principle that the State should be parsimonious when giving itself powers to interfere with the privacy and liberty of its citizens. However, it is envisaged that, where an agency can provide good reasons for a wider or more intrusive range of powers in certain circumstances, the principles can be departed from or varied. That is to say, Legal Policy’s suggested principles form a default basis in the absence of good reasons for greater powers. Moreover, as guiding principles, the principles do not purport to provide detailed rules to govern all circumstances, but are mostly cast at a relatively general level of basic principles. It is envisaged that the principles that may ultimately be decided upon will be intended primarily to govern the formulation and amendment of relevant legislation. It is also envisaged that such principles may also help in the formulation of the appropriate “ethos” that should attend the exercise of inspectors’ powers.[“]1

The Committee is strongly of the opinion that the State should be parsimonious when giving itself powers, as stated by Legal Policy. The Committee also agrees with the comments of Legal Policy that the principles should be seen as guiding principles rather than as detailed rules to govern all circumstances. However, based on its research and evidence the Committee does sometimes make more specific recommendations.


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Principles governing the grant of powers • the State should exercise extreme restraint when giving itself powers to interfere with the privacy and liberty of its citizens; • people have a fundamental right to their dignity, to their privacy, to the integrity of their person, to their reputation, to the security of their residence and any other premises, and to respect as a member of a civil society;2

• no person, group or body should intrude on these rights without good cause;3

• such intrusion is warranted only in specific circumstances where the public interest is objectively served and, even where warranted, no intrusion should take place without due process;4

• powers of entry, search, seizure and questioning and the right to request the production of documents are clearly intrusive, and those who seek such powers should demonstrate the need for them before they are granted, and must remain in a position to justify their retention;5

• when granting powers of entry, search, seizure, questioning and the right to request the production of documents, Parliament should do so expressly, and through primary, not subordinate, legislation;6

• in considering whether to grant powers of entry, search, seizure, questioning and the right to request the production of documents, Parliament should take into account the purpose of the powers and the object to be achieved as well as the degree of intrusion involved, and the proportion between the two – in the light of that proportion, Parliament should decide whether or not to grant the power and, if the power is granted, Parliament should determine the conditions to apply to the grant and to the execution of the power in specific cases;7

• Where the powers of inspectors are comparable to the powers of police such as when they are investigating suspected offences their power should be no greater than the police powers contained in the Victorian Crimes Act 1958. • the powers of entry, search, seizure, questioning and the right to require the production of documents should only be conferred for the purposes of: - monitoring compliance with legislation; - investigating a suspected offence under the Act; - responding to genuine and clearly defined emergencies. • Victorian Acts conferring powers of entry, search, seizure, questioning and the right to require the production of documents should: - clearly state the purpose of each provision which confers powers on authorised persons; and - contain separate provisions for each identified purpose. • Legislation conferring inspection powers should specify the powers exercisable by and the obligations upon the officials carrying out the action as well as the rights, liabilities and obligations of persons who are subject to such action.8

• Agencies should develop an enforcement philosophy as a written document and ensure that their enforcement philosophies are as transparent and well publicised as possible, preferably by means of publication and distribution among those affected by the legislation. • Agencies must develop internal procedures for compliance with the Information Privacy Act 2000, the Health Records Act 2001 and for respecting other dimensions of privacy. Principles governing the authorisation of entry and search Warrant Provisions • Except in genuine and clearly identified emergency situations, warrants should generally be required where the purpose of the entry and search is the investigation of a suspected offence or for entry into residential premises.

Appendix 3 – Principles from the Inspectors’ Powers Report

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• To ensure transparency, fairness and consistency Statutes containing search warrant provisions should always contain the protections including, but not limited to: - announcement before entry; - that a copy of the warrant is to be given to the occupier; - exactly what matters the search warrant must cover; - a sun-set clause; - procedures for dealing with disputed seizures; and - time limits for the return of material seized. • The power to issue warrants should only be conferred on judicial officers. Justices of the Peace should not have this power, nor should a Minister or Departmental officer.9

Principles relevant to judicial officers in the issue of warrants (as set out in Tillett’s case)10

• When approached to issue a warrant, a judicial officer should act as an independent authority, exercising his or her own judgment and not automatically accepting the applicant’s claim. • The judicial officer has a discretion which should be exercised judicially. To enable the proper exercise of that discretion, the applicant should put forward adequate sworn evidence. • The warrant itself should clearly state the findings of the judicial officer. • Where the proposed inspection relates to a suspected offence, a particular offence should be specified, both in the application for the warrant and in the warrant, even where the statute simply uses the words “any offence” and makes no clear reference to a need to specify an offence. • A warrant should not authorise the seizure of things in general, or things which are related to offences in general, but only the seizure of things by reference to the specified offence. • A warrant may be struck down by a superior court for going beyond the requirements of the occasion. • The time for execution of a warrant must be strictly adhered to. • All warrants, whether executed or not, should be returned to the court of issue. Principles relating to provisions for the purpose of monitoring compliance • Warrants should not be required where the purpose of entry and search is to monitor compliance under a licensing Act or to respond to genuine and clearly defined emergencies. • Licensing Acts should contain the following requirements: - inspectors’ powers and the occupier’s rights should be clearly explained in writing to prospective licensees at the time of entering into any licence; - where, following use of the powers for monitoring purposes, the inspector has reasonable grounds for suspecting that an offence has been committed, the inspector should be required to obtain a warrant for any subsequent searches. Consent provisions • Consent provisions should make it clear that consent must be genuine and ongoing and should impose no penalty or disadvantage if an occupier fails to cooperate in the search or subsequently withdraws consent.11

• To ensure that an occupier’s consent is genuine and informed, consent provisions in legislation should contain the safeguards contained in section 119(2) of the Fair Trading Act 1999. Principles governing the choice of people on whom the power is to be conferred • Acts conferring powers on inspectors should always refer to the authorisation process for inspectors or cross-reference to the relevant Act which does. Such authorisation provisions should be as specific as possible. In particular: - legislation must not confer inspectors’ powers on a recipient categorised merely as a member of a particular Department or organisation.12

- Agencies must have appropriate selection and training systems in place.


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- Agencies must have clear qualification and educational standards for the hiring of inspectors. - Inspection powers must be conferred only on those officials who have completed appropriate training.13

- Inspectors must not be formally authorised until they have received appropriate training. - Satisfactory completion of in-service training and refresher programs must be compulsory for the retention of authorisation. - inspectors’ powers must not be conferred on a particular recipient simply because it is the most economically or administratively advantageous option.14

• Acts should contain a provision requiring inspectors to produce identification automatically. • Acts should require inspectors to automatically produce a card setting out their name or identifying number, title, the agency employing them as well as information on the relevant complaints mechanism. • Persons should not be found guilty of obstructing an inspector unless, as soon as practicable under the circumstances, the inspector has clearly identified him or herself and warned the person that a failure or refusal to comply could constitute an offence. Principles governing the manner in which the power to enter and search is exercised • the powers of entry, search, seizure, questioning and to require the production of documents should be carried out in a manner consistent with human dignity and property rights;15

• as a general rule, inspectors’ powers should be exercised during reasonable hours and on reasonable notice, unless this would defeat the legitimate purpose to be achieved by the exercise;16

• Where the use of inspectors’ powers is likely to involve force or physical interference with people and their property, it is preferable that this power be exercised only by, or with the assistance of, police officers. • Acts should contain police assistance provisions which specify that inspectors may seek assistance if they are obstructed or believe on reasonable grounds that they will be obstructed in the exercise of their functions. • Agencies should develop formalised systems for reporting suspected offences not related to the legislation administered by the agency to other Victorian and Federal agencies including the Victorian and Federal Police. • Acts should contain provisions which make it an offence to obstruct or impersonate authorised persons. Principles ensuring the protection of interests of persons subject to inspection17

• Persons who are to be questioned by an inspector should, prior to such questioning, have their rights and obligations explained to them.18

• In particular, inspectors must comply with the requirements of section 464 of the Crimes Act 1958 and this obligation should be enshrined in legislation. The privilege against self-incrimination The Committee considers that the following principles should be reflected in all legislation containing inspectors’ powers:19

• Legislation should specifically preserve the privilege against self-incrimination in relation to questioning with any exclusions clearly identified. This should be done by specific reference to the privilege rather than by reference to the term “reasonable excuse.” • persons who are to be questioned by an inspector should, prior to such questioning, have their right to rely on the privilege against self-incrimination explained to them.20

• without limiting the generality of the above, individuals should not be able to rely on the privilege to avoid giving a name and address where the legislation gives the inspector the power to ask for these details.


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The privilege in relation to documents • a person who has been asked by an inspector to produce a document or other item should not be able to rely on the privilege against self incrimination unless the production of the document would “require the person to identify, locate, reveal the whereabouts of, or explain the contents of, the document or item.”21

• in particular, the privilege should not allow natural persons to refuse or fail to produce documents which the person is required to keep pursuant to legislation. • persons who have exercised their right to rely on the privilege should not have that fact used in evidence against them in any subsequent criminal proceeding.22

• documents in relation to which privilege is claimed should be carried before a justice to be dealt with according to law and the privilege should be argued before that justice.23

Abrogation of the privilege against self-incrimination • The privilege against self-incrimination may be abrogated only where: - it has been shown to be absolutely necessary for the adequate functioning of the relevant law; and - any answers given or documents or items produced are not admissible in evidence in any subsequent criminal proceeding, except where false answers are given. 24

Legal professional privilege • The application of legal professional privilege (whether it applies or is abrogated) should be clarified in statutes containing inspectors’ powers. • Agencies should ensure that they have a protocol in place for the seizure of documents over which legal professional privilege is claimed. Principles governing associated powers to detain and arrest • Any power to detain and / or arrest persons without warrant should only be conferred on inspectors where: - it is absolutely necessary for the adequate carrying out of other duties which are themselves absolutely necessary for the adequate operation of the relevant law;25 and - the relevant law is aimed at preventing a serious harm and the power to arrest is proportional to that harm. • Any power to detain or arrest persons which is conferred on inspectors should be clearly specified in the relevant legislation and should be clearly delimited in terms of its activating conditions and its scope.26

• Any arrest without warrant should only be effected by an inspector where the inspector reasonably suspects that the person arrested has committed an offence, and for one of the following purposes: - to ensure the appearance of the person before a court, where the inspector reasonably believes that the person would not otherwise so appear; or - for the safety and welfare of the public, where the inspector reasonably believes that the public would otherwise be at risk.27

• Where practicable, police assistance should be obtained to effect an arrest. • Any person arrested by an inspector should be delivered to the police or taken to a court to be dealt with according to law within a reasonable time.28

• Any person who has been arrested by an inspector should be informed of his or her rights and obligations. In particular, inspectors should comply with the relevant requirements of section 464 of the Crimes Act 1958. Any refusal to answer questions or otherwise co-operate should not be used in evidence against the person in any subsequent criminal proceedings.29

• No person should be detained by an inspector without arrest, except for the specific purposes of demanding a name and address, and verification information where this is authorised by the Act.30


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Reporting requirements • Agencies should collect and maintain records of figures of usage of the inspectors’ powers they administer. • Agencies should be required to report annually to Parliament preferably as part of their Annual Report in relation to the use of inspectors’ powers and complaints received. Complaints Mechanisms • Legislation should contain a requirement to set up an effective and transparent complaints mechanism. Principles relating to seizure of items31

Legislation conferring a power to seize documents or other articles should provide: • that any material seized be itemised; • that the occupier and any others affected be entitled to a copy of that itemised list and copies of any other business or personal records seized; • that the occupier and others affected be entitled to receive copies of any video or audio recordings made, or transcripts of those recordings, within 7 days; • a procedure for dealing with disputed seizures; and • a time limit for the return of the material seized. 1 Department of Justice, Legal Policy, submission no. 26, p. 2. 2 Senate Standing Committee for the Scrutiny of Bills, Entry and Search Provisions in Commonwealth Legislation, Fourth Report of 2000 (6 April 2000), p. 49. 3 Ibid. 4 Ibid. 5 Ibid with minor amendments to take account of the broader scope of the current terms of reference. 6 Ibid with minor amendments to take account of the broader scope of the current terms of reference. 7 Ibid with minor amendments to take account of the broader scope of the current terms of reference. 8 Principle suggested by Legal Policy, Department of Justice, submission no. 26, p. 12, adapting a Senate Committee principle. 9 Senate Report, above note 2, p. 50. 10 All these principles are taken directly from the submission of Legal Policy, Department of Justice, submission no. 26, and are derived from the Senate Report principles (but with amendments and additions.) One principle relating to monitoring warrants has been left out. 11 Similar to principle in Senate Report, above note 2, p. 50. 12 Based on Senate Committee principle, Senate Report, above note 2, p. 51. 13 Department of Justice, Legal Policy, submission no. 26, p. 16 (based on Senate Committee principles). 14 Senate Report, above note 2, p. 51. 15 Ibid, p. 52. 16 Ibid. 17 Legal Policy drafted a number of new principles in recognition of the fact that the provision of documents and particularly questioning involve more active co-operation on the part of the occupier than do entry, search and seizure provisions. See: Department of Justice, Legal Policy, submission no. 26, p. 3, p. 26. 18 Ibid, p. 27. 19 These principles draw heavily on the submission of Legal Policy, Department of Justice, submission no. 26. 20 Ibid, p. 27. 21 Ibid. 22 Ibid. 23 Ibid, p. 30. 24 Ibid. p. 30. 25 Ibid, p. 36. 26 Ibid. 27 Legal Policy, Department of Justice, submission no. 26, p. 36. 28 Ibid. 29 Developed from principle of Legal Policy, Department of Justice, submission no. 26, p. 37.


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30 Legal Policy notes that “this principle seeks to tightly delimit the circumstances in which a person may be detained without arrest by an inspector. Because simple detention, unlike arrest, does not entail bringing the person before a court, it is essential that any power to detain be very strictly limited, with immediate release being the presumed goal:” Department of Justice, Legal Policy, submission no. 26, p.37. 31 These principles are taken verbatim from the Senate Report, above note 2, p. 53.


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A P P E N D I X 4 . S U B M I S S I O N S A N D C O M M E N T S

Preliminary submissions and comments

The following individuals and organisations made written submissions in response to the Committee’s scoping questions that were sent out in May 2004. Individuals listed overleaf provided additional helpful comments.

Preliminary submissions

Name and position Organisation

Bruce Gardner Legal Policy Advisor

Office of Public Prosecutions

Sarah Nicholson Director

Youthlaw

Michael McNamara Solicitor

N/A

Greg Carroll Assistant Ombudsman

Ombudsman Victoria

Paul Mullet Secretary

Police Association of Victoria

Rob White Chairman, Litigation Lawyers Section

Law Institute of Victoria

Dr. Steven Tudor Lecturer

La Trobe University, School of Law and Legal Studies

Brian Walters SC Barrister

Vice-president, Liberty Victoria (comments submitted in individual capacity)

Christine Nixon APM Chief Commissioner

Victoria Police

Victor Stojcevski Senior Policy and Research Officer

Victoria Legal Aid

Mark E. Dean SC Barrister

N/A


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Greta Jubb Research Officer

Victorian Aboriginal Legal Service

Dr Chris Corns Senior Lecturer

La Trobe University, School of Law and Legal Studies

Philip Grano Legal Officer

Office of the Public Advocate

Comments

Name Organisation Felicity Hampel SC Barrister

N/A

Gregory Connellan Barrister

President, Liberty Victoria (comments submitted in individual capacity)

Paula Grogan Policy Officer

Youth Affairs Council of Victoria

Catherine Tobin Acting Assistant Director, Criminal Law

Department of Justice, Legal Policy

Kate Lawrence Community Lawyer

Mental Health Legal Centre

Judge Jennifer Coate President

Children’s Court of Victoria

Other Input

The Committee received one submission in response to the initial advertisement of the inquiry terms of reference in March 2004.

Submission No. Name Organisation 1 Andrew P Melville

Solicitor Andrew P Melville Legal Practitioner

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