Page 2399 - Week 06 - Thursday, 24 June 2010
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The bill defines “relevant offence” as an “offence against an ACT law that is punishable by imprisonment of three years or more or an offence against an ACT law that is prescribed under regulation”. The use of a surveillance device must be necessary for the purposes I have previously alluded to.
Much has been said about the threshold “reasonable suspicion” for the making of an application and whether it is the appropriate threshold or whether the threshold should be “reasonable belief”. The threshold that is used in the Crimes (Surveillance Devices) Bill 2010 is the same threshold as was used in the cross-border investigative powers for the law enforcement model bill for surveillance devices. As mentioned previously, consistency across jurisdictions is important. The Assembly already accepted that this is a reasonable threshold when it passed the cross-border investigative powers legislation.
The position that the government has taken on the bill is that it is the reasonableness of the threshold that is imperative. Threshold laws are currently being examined as part of the police powers review. The police powers review project steering committee is currently preparing a discussion paper which is scheduled for release later this month.
The discussion paper includes a section on considerations relating to the appropriate threshold for the issue of warrants. I have asked my department to consider all submissions received on this issue before a decision is made on the appropriate threshold. I believe that it is better to have a discussion on this threshold question in the broader context of police powers rather than revisiting this question in isolation.
Turning to the emergency authorisation powers contained in that bill, part 3 sets out that emergency authorisations for the use of a surveillance device are only available in limited circumstances, where it is not practicable in these circumstances to apply for a surveillance device warrant from a judicial officer, even by facsimile or telephone. These applications will, in the case of ACT Policing, be made to the Chief Police Officer. Circumstances for making such an application would be that no judicial officer was available. Given that a duty roster exists for judicial officers outside of business hours, the circumstances that give rise to the option of making such an application would be extremely limited and extremely unusual. This was always envisaged in the way the government drafted its bill.
Following from this then, the law enforcement officer must suspect or believe on reasonable grounds in the course of investigation that an imminent threat of serious violence to a person or substantial damage to property exists and the use of a surveillance device is immediately necessary for the purpose of dealing with that threat, and the circumstances are so serious and the matter is of such emergency that the use of a surveillance device is warranted. As members can see, these are extremely unusual and, I would argue, limited circumstances. The rationale for the use of the emergency procedure in these circumstances is that the risk of harm and damage is so great as to justify the use of the device without court authorisation.
But it is important to note in relation to this matter that, if the emergency authorisation is granted and then the matter comes before a judicial officer, as it must, and the
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