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Covert search powers breach rights

Covert search powers breach rights

Proposed new police powers to conduct covert searches without a citizen's knowledge impact on the rights of people in New South Wales to be free from arbitrary interferences with their privacy…

Proposed new police powers to conduct covert searches without a citizen's knowledge impact on the rights of people in New South Wales to be free from arbitrary interferences with their privacy and home, said the Australian Human Rights Commission (AHRC) in a submission last Wednesday.

The Law Enforcement (Powers and Responsibilities) Amendment (Search Power) Bill 2009 is currently being considered by the Legislative Council with the AHRC calling for it to be rejected.

The AHRC claims there is insufficient evidence to justify the "extraordinary additional powers" being extended to investigate other types of crime, which so far exist only under the Terrorism (Police Powers) Act 2002 (NSW).

"The risk of premature notification spoiling investigations was cited as the chief reason for introducing covert search warrants. No examples of concrete cases where the existing scheme had led to such failures were provided; only one hypothetical example was used," said President Catherine Branson QC in her submission.

Further, the bill proposes that notice to the occupier that a search of their home has been conducted can be postponed if a judge is satisfied there is reasonable grounds.

"The commission is concerned that the delayed notification will mean individuals whose houses have been searched will not be able to challenge searches that are unreasonable, not based on proper grounds, or are excessive- because, in some cases, they will not know that a search has occurred for three years," said Branson.

While a key safeguard of the bill is identified as judicial oversight, the commission is also concerned that judges' independence could be undermined. The commission points to a proposed section where a source who provides information to support a covert warrant being issued can be kept confidential if their safety will be jeopardised.

"This may make it difficult for judges to assess the reliability of the information. Given that the information will only be disclosed to an eligible judge in private hearings, the need for this precaution is unclear," said Branson.

- Sarah Sharples

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