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senate vote 2014-10-28#6
Edited by
Luke Bacon
on
2014-10-29 13:36:10
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Title
Description
- This vote was to decide if [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm)’s second amendment should be part of this bill.
- David Leyonhjelm [summarised the amendment](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g191.1):
> This amendment introduces a sunset clause into the delayed notification warrants scheme similar to others which were recommended by the joint committee and accepted by the government in relation to control orders and preventive detention orders. It prevents a new delayed notification search warrant being issued after the sunset date. It does not prevent a warrant that was issued earlier being executed. This is appropriate in context because delayed notification search warrants expire 30 days after being issued. Also, after a warrant is executed, there remain a number of ongoing obligations, such as the requirement to eventually give notification. This, in my view, should remain in force as a protective measure. In other words, this introduces the same sunset provision that the government has already accepted in relation to control orders and preventive detention orders, and simply brings delayed notification warrants under the same system.- > This amendment introduces a sunset clause into the delayed notification warrants scheme similar to others which were recommended by the joint committee and accepted by the government in relation to control orders and preventive detention orders. It prevents a new delayed notification search warrant being issued after the sunset date. It does not prevent a warrant that was issued earlier being executed. This is appropriate in context because delayed notification search warrants expire 30 days after being issued. Also, after a warrant is executed, there remain a number of ongoing obligations, such as the requirement to eventually give notification. This, in my view, should remain in force as a protective measure. In other words, this introduces the same sunset provision that the government has already accepted in relation to control orders and preventive detention orders, and simply brings delayed notification warrants under the same system.
- Also see the vote over [David Leyonhjelm’s *first amendment* to the bill](https://theyvoteforyou.org.au/divisions/senate/2014-10-28/5).
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senate vote 2014-10-28#6
Edited by
Henare Degan
on
2014-10-29 13:25:59
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Title
Bills — Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; in Committee- Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - In Committee - David Leyonhjelm amendment 2
Description
<p class="speaker">David Leyonhjelm</p><p>by leave—I move amendment (2) on sheet 7597:</p><p class="italic">(2) Schedule 1, item 51, page 61 (after line 22), at the end of Division 9, add:</p>- [This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g191.1) was to decide if David Leyonhjelm's second amendment should be part of this bill.
<p class="italic">3ZZIC Sunset provision</p><p class="italic">     A delayed notification search warrant cannot be applied for or issued after the end of 7 September 2018.</p><p>This amendment introduces a sunset clause into the delayed notification warrants scheme similar to others which were recommended by the joint committee and accepted by the government in relation to control orders and preventive detention orders. It prevents a new delayed notification search warrant being issued after the sunset date. It does not prevent a warrant that was issued earlier being executed. This is appropriate in context because delayed notification search warrants expire 30 days after being issued. Also, after a warrant is executed, there remain a number of ongoing obligations, such as the requirement to eventually give notification. This, in my view, should remain in force as a protective measure. In other words, this introduces the same sunset provision that the government has already accepted in relation to control orders and preventive detention orders, and simply brings delayed notification warrants under the same system.</p> <p class="speaker">George Brandis</p><p>The government will be opposing this amendment. Senator Leyonhjelm makes the reasonable point that delayed notification search warrants are an unusual mechanism. He goes on to say—by analogy with the treatment of control orders and preventative detention orders—that they, too, ought to be sunsetted. But, Senator Leyonhjelm, there are gradations of exceptionalism, as it were, in these powers. Control orders and preventative detention orders are very, very unusual powers. As I keep saying, they ought to be—and have been—used extremely rarely. Delayed notification search warrants are somewhat less unusual. They are a standard feature of the criminal justice system of most states and territories, and have been so for a number of years.</p><p>Delayed notification search warrants are needed, and perhaps I might take the opportunity to explain the rationale for introducing this measure with the bill. Delayed notification search warrants are needed to enable the Australian Federal Police to investigate and prevent serious terrorism. They strengthen the legislative framework for Commonwealth investigations into terrorist threats. Under current Commonwealth search warrant provisions in the Crimes Act, the occupier of premises to be searched must be given a copy of the warrant if they are present, which means that a search cannot occur without the occupier being made aware that the search is taking place. That is the standard situation with the execution of a search warrant, of course. However, sometimes it is necessary—particularly in terrorism investigations—to keep the fact that a search has been conducted under warrant confidential. Keeping the existence of an investigation relating to terrorism offences confidential can be critical to their success, particularly when the investigation involves multiple suspects or multiple terrorist cells, or is conducted over an extended period of time.</p><p>Let me give an example of what I mean. Let us say that the Australian Federal Police were aware of a series of groups who were networked within a capital city, or perhaps between different capital cities, and they wished to carry out a search of the premises of one of the individuals who was a member of that network. If the standard procedure of the execution of a search warrant were to be observed, then the police would have to notify that suspect of the fact that they were conducting a search of his premises, and there would be nothing to stop that suspect then alerting other members of his network that they might imminently be the subject of a search warrant as well or of some other form of investigation. That could potentially substantially defeat the benefit of the investigation by denying the authorities the benefit of surprise. By the way, it is for that reason, Senator Leyonhjelm, that delayed notification search warrants are pretty much a standard feature now of investigation into various types of organised crime, for example, carried out by state and territory police forces. That is their rationale, and I am sure that you can understand that rationale.</p><p>The option of delayed notification search warrants will, therefore, enable AFP officers to conduct investigations without a suspect being aware of their interest, providing a significant tactical advantage in an appropriate case. It will avoid suspects taking steps to avoid detection, relocate their operations or relocate and destroy evidence. It will also avoid suspects notifying their associates of police interests in their activities, as in the example that I gave you.</p><p>The types of terrorism activities that could be investigated under this scheme may be—and very often are—sophisticated networks involved in financing terrorism, recruiting for a terrorist organisation and providing training for terrorist acts. Delayed notification search warrants will increase the opportunity for successful investigations of terrorism offences and enhance the ability of the AFP to gather information about planned operations with a view to preventing a terrorism offence from being committed.</p><p>Senator Leyonhjelm, I think that in explaining to you the rationale for having, in appropriate circumstances, a delayed notification scheme for search warrants I have also explained to you why it is not appropriate that it be sunsetted. The investigative need for such a capability is not something that is going to diminish over time. We have sunsetted control orders and we have sunsetted preventative detention orders—the most unusual tool in the apparatus—because we hope that maybe the day will come that orders of that kind will no longer be needed. For as long as criminals act in networks, for as long as criminals act covertly and for as long as criminals—not necessarily terrorists—act in a sophisticated manner, the need on occasions to be able to conduct a search of one member of that network without alerting other members of that network to the fact that they have been sprung is not going to go away. I think as a matter of common sense, Senator Leyonhjelm, you would see that. That is why, in the government's view and in the committee's view, it is not appropriate that a mechanism of this kind be sunsetted.</p> <p class="speaker">Jacinta Collins</p><p>Labor takes a different perspective to Senator Leyonhjelm on the delayed notification warrants scheme. Some of the powers conferred in this bill are clearly extraordinary, and, accordingly, are subject to sunsetting—sunsetting which Labor has brought back to just four years.</p><p>However, some parts of this bill are structural reforms. That is, enhancements to agency powers which are intended to be ongoing. The delayed notification warrant scheme is one such agency power. There is no need for this scheme to be sunsetted. This part of the bill brings the powers of the AFP into line with the other Australian police forces. I will quote from the Intelligence Committee again here:</p><p class="italic">While the Committee notes that delayed notification search warrants do represent a significant departure from the normal search warrant scheme provided for in the Crimes Act, it also notes that many other Australian police forces have access to similar, if not more intrusive, powers. Given the threat posed by terrorism and foreign fighters, the Committee considers it is appropriate that the AFP have access to these powers for serious terrorism offences.</p><p>Because we think that the balance has been struck on these issues in the Intelligence Committee's consideration, Labor opposes this amendment. The delayed notification warrant scheme is an important tool for the AFP in its counter-terrorism capacity.</p> <p class="speaker">David Leyonhjelm</p><p>I cannot help but remind the Attorney-General that we have dealt with criminals at a Commonwealth level now without delayed notification warrants since we have had Commonwealth criminal law. The trouble I have with this provision is not that delayed notification warrants might be needed under the current circumstances; I do not find the argument that we anticipate that it these will be needed for the indefinite future at all compelling. If it is anticipated that there will be an need for them in four years' time, they can be re-enacted.</p><p>If it is felt that preventative detention orders and control orders are serving a useful purpose—and the evidence suggests so far that that is not the case, but perhaps they will be shown to be serving a useful purpose—then they will also have to be re-enacted. There is nothing wrong with legislation that lapses unless it is felt that it is serving a useful purpose and therefore is justified and maintained. The assumption that we know what will be the circumstances relating to terrorism, or whatever else the law is intended to apply to, in years ahead cannot be made today. We do not know.</p><p>It is perfectly legitimate to argue on the one hand that delayed notification warrants can be justified. I am really not disagreeing with that, although I certainly will vote against the bill itself—but for other reasons. But to suggest that we can anticipate that this is going to be required indefinitely into the future is illogical. I would ask the Attorney-General to reconsider.</p> <p class="speaker">George Brandis</p><p>Senator Leyonhjelm, I am perplexed. I thought you were a libertarian. Yet the argument that we have just heard from you characterises you as the most rock-ribbed conservative; because if your argument were to be taken to its logical conclusion, we would never legislate for anything because we could never be completely certain about what might happen in the future. We would never reform the law and we would never have amended the Commonwealth Crimes Act since its first iteration in the first parliament 112 years ago.</p><p>The fact is that we, as legislators, have to make judgements about how to put the law in the best shape possible in various areas of public policy. When it comes to criminal law, it is possible to identify a gap—as there is here—in law enforcement techniques and capabilities and to say that because we have identified that gap, the law stands in need of reform not for a few years hence but because we have actually identified a gap that is not likely to go away.</p><p>I pose to you, Senator Leyonhjelm, once again, the rhetorical question: do you really think that we will ever see the day when some kinds of criminals—not just terrorists—will not operate in networks? Because I do not. If it is in the nature of criminal conduct that criminals, particularly sophisticated criminals, will operate in networks, then there is a rational argument for configuring our search warrant powers in such a way that the execution of the search warrant against one member of that network will not expose the operation so as to enable other members of that work to be tipped off to escape or to rid themselves evidentiary material that might be incriminating or would otherwise degrade the capability of the criminal investigation.</p><p>I think that is in the nature of sophisticated organised crime, including terrorist crime. Senator Leyonhjelm, if you think that those considerations are likely to disappear in four years' time, 10 years' time or ever, then I beg to disagree with you. This is a permanent reform to our law, the utility of which—with respect—is obvious.</p><p>The CHAIRMAN: The question is that amendment (2) on sheet 7597 be agreed to.</p>
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