This article is more than 5 years old

This article is more than 5 years old

Federal police will gain the power to secretly search a terrorism suspect’s home, enter through an innocent neighbour’s property and impersonate people, without having to notify the subjects of the warrant for six months or more.



A coalition of Australian media companies, in a submission published on Wednesday, argued an associated two-year jail term for unauthorised disclosure of information about such searches could further erode press freedom.

The Law Council and civil libertarians also told the Senate inquiry into the laws that the proposed the six-month waiting period for notification should be shortened.

The delayed notification search warrant provisions are part of the Abbott government’s second national security bill, which aims to make it easier to detain and prosecute terrorism suspects and investigate such offences.

Currently, the Crime Act requires an officer carrying out a search warrant to provide a copy of the warrant to the occupier and to allow that person to observe the search.

The counter-terrorism bill’s explanatory notes said the changes would allow the Australian Federal Police (AFP) “to conduct searches of a warrant premises without the occupier‘s knowledge and without notifying the occupier of the premises at the time the warrant is executed”.

“Notice of the search will be required to be given to the occupier of a searched premise at a later date, generally within six months,” the explanatory notes said.

This notification deadline can be extended for up to six months at a time up to a limit of 18 months, at which point further delays would require ministerial approval.

Officers would have “the power to impersonate a person where reasonably necessary to execute the warrant”.

“This is intended to be utilised to allay the suspicion of other residents of the area,” the explanatory notes said.

“In addition, the executing officer or a person assisting is empowered to leave a warrant premise temporarily and subsequently re-enter to continue the execution of the warrant in certain instances where, for example, the occupier returns home and the covert nature of the warrant is at risk.

“The executing officer or a person assisting is also able to enter the main premise via an adjoining premises, if this is expressly specified in the warrant, where it is required to avoid comprising the prevention or investigation of the relevant offences. This power is limited to accessing the warrant premise and does not allow for the search and seizure of things in that adjoining premise.”

The government said the measure would be used in limited operational situations but it was “critical to enable covert investigation of terrorism offences”.

It could only be used in dealing with commonwealth terrorism offences with a maximum penalty of at least seven years in jail.

The laws are currently being considered by the bipartisan joint committee on intelligence and security, ahead of parliamentary debate later this month.

They are the second tranche of national security changes, after the passage of a first bill expanding the powers of Australian spy agencies and criminalising publication of information about special intelligence operations.

A coalition of media groups – including AAP, ABC, APN, ASTRA, Bauer Media, Commercial Radio Australia, Fairfax Media, FreeTV, MEAA, News Corp Australia, SBS, The Newspaper Works and West Australian News – raised concern about an offence in the second bill which also criminalises disclosures.

Under section “3ZZHA”, people could face a two-year jail term for disclosures relating to an application for a delayed notification search warrant or the execution of such a warrant.

There are exemptions to this offence, including for the purposes of legal proceedings, for the performance of official duties, or if the disclosure occurs after the occupiers of the premises have been officially notified.

The media groups said the section “would see journalists jailed for undertaking and discharging their legitimate role in our modern democratic society – reporting in the public interest”.

“Such an approach is untenable,” the submission said.

The media groups called for the disclosure provision to be removed from the legislation, or alternatively insertion of an exemption for a news report that was in the public interest.

The Law Council of Australia questioned the delayed notification warrant proposal, saying law enforcement agencies already had significant powers to combat serious crime.

“Such a scheme would constitute a substantial departure from the ordinary search warrant scheme, which ensures that a person whose premises are searched is aware of the basis and the authority for the search, and is a position to challenge or make a complaint about the issue of the warrant and/or its method of execution,” the council said in a submission.

“A covert warrant denies those individuals with the greatest interest in ensuring that the issue and execution occurs strictly in accordance with the law this ability.”

The council suggested a number of amendments, including a shorter wait before warrant targets were notified, but acknowledged such a scheme was recommended by the former independent national security legislation monitor, Bret Walker SC.

It said the bill already included important safeguards such as authorisation by an independent issuing officer: a federal or supreme court judge or an administrative appeals tribunal member. The legislation also set detailed reporting requirements including annual reports to be tabled in parliament.

In a separate submission, civil liberties councils across Australia said they were concerned the scheme involved “a significant departure from established principles” and argued notification should occur no later than 90 days.

The AFP said in its own submission that regimes for delayed notification search warrants or covert searches were “in place in NSW, Queensland, Victoria, WA and the Northern Territory, as well as Canada, the UK and the United States of America”.

The proposal would allow the AFP “to identify and collect information about other suspects involved in terrorist activity, the proposed location of and methodology for any planned attack, and the means of communication among suspects”.

“In addition, the proposed … regime would give the AFP the opportunity to identify and decipher any encryption techniques a suspect may be using to protect electronic communications,” the AFP submission said.

“The ability to examine and potentially overcome these techniques without the knowledge of the suspect would facilitate the ongoing lawful monitoring of communications while preserving evidential material.”