Chauvel Charles: Search and Surveillance Bill — In Committee 
Chauvel Charles: Search and Surveillance Bill — In Committee 
[Volume:678;Page:970] 
CHARLES CHAUVEL (Labour) 
: 
 I want to start by saying that when the current legal regime applicable to search and surveillance is compared with the regime that is set out in Part 3 then what the Minister of Justice says is right. This is a much better regime. It does call as she correctly described for approval prior to the fact and that will be judicial approval. This is the element that was missing in the matter that was decided by the Supreme Court late last year. It is a shame Parliament did not manage to get this regime in place prior to that decision but the reality is we are getting it in place now and that is something that I think we should all be reasonably pleased about. 
The matters that I particularly wanted to draw attention to in this part and I would be grateful if the Minister would have a think about these are first of all the typescript amendment in the name of my colleague David Parker which would continue the process that each of the three Labour typescript amendments have started which is to mainstream the protections that appear in the Search and Surveillance Bill by applying them to the Serious Fraud Office. 
In respect of this part of the bill the way in which that would occur is that clause 69 would be applied to the Serious Fraud Office because the Director of the Serious Fraud Office would be for the purposes of the Act an enforcement officer who would be entitled to apply for a production order. So just as we have begun to build in or attempted to build in the Serious Fraud Office right from the beginning in the interpretation clause so that exercise continues in a necessary clause in respect of this part. 
 The other matter that I want to draw the Committee’s attention to is one that was referred to by the Minister in her introductory remarks. It might also be interesting to hear from a member of the Justice and Electoral Committee on this because it relates to the regime that would be set up by clauses 57 through to 61 the declaratory orders provisions. On my reading of the reported-back bill what was originally proposed was a residual warrants regime. So a law enforcement agency would have to obtain a residual warrant if it wanted to obtain evidence relating to an offence and the agency wanted to use a device technique procedure or activity that might constitute an intrusion into the reasonable expectation of privacy of any person. All that has been struck out by the select committee and it has been replaced with this declaratory orders regime. 
I have some concerns about the way in which this might operate in practice. What would happen is as the Minister has said if there is a new type of device that law enforcement agencies want to use they can go to a judge and seek effectively an opinion about the propriety of the use of that device. But there are some fish-hooks I think in the regime as it is set out. The application will be made to a judge. A judge is defined now in this legislation as either a High Court judge or a District Court judge. It is expressly provided in clause 57(2) that “A declaratory order is advisory in character and does not affect the jurisdiction of any court to determine whether the activity that was the subject of the order”—of the court—“was reasonable and lawful.” That is going to put a District Court in some difficulty I imagine if on some previous occasion an opinion—advisory only but none the less from a higher court such as the High Court—has been obtained. If the High Court purports to give one of these advisory opinions in circumstances that are very similar to those that then come before a District Court it is difficult to imagine circumstances in which the District Court is going to be able to feel free to depart from the views that were expressed on the earlier occasion. 
The other concern about the declaratory orders is really that it is a novel procedure. We have a declaratory judgments procedure in our Judicature Act at the moment whereby on a set of existing facts it is possible to go to the court and ask for the law to be declared on those facts. But they are real facts not hypotheticals which seems to be the situation that this regime contemplates. We have never put our courts in the position of having to decide on hypotheticals put to them by a law enforcement agency. Our courts generally decide contentious litigation based on real-world facts. Where in the adversarial model does the evidence to contest what is put up by the enforcement officer come from in this envisaged regime? How does the court undergo an adversarial process in order to come to the view that is envisaged it would by this procedure? Why on earth would we not just do what we expect agencies to do at the moment? They get an opinion from the Solicitor-General the Crown Law Office or on occasion a Crown solicitor on the legality of a proposed method of surveillance and they proceed on the basis of that opinion. 
I think we are putting the courts in an odd position where we say the courts can pass an advisory view—and it is expressed to be just an advisory view—yet we are not clear in the legislation about any procedure that would have to be engaged in by the courts particularly where the “hearing the other side” practice would come from. We say that they would be advisory only so presumably in real-world facts that came before the court that were very similar to the theoretical position that was put to the court the court would still be free to come to a different view. If that is the case what is the utility of this procedure is it likely to ever be used and what sort of comfort is it likely to be able to give enforcement agencies in the ultimate analysis? 
Those are the particular concerns that I wanted to raise about this part. I commend the amendments in David Parker’s name. I think the general regime that the part sets out is a great improvement as far as protections for our people from potentially unlawful search and surveillance is concerned but I do wonder whether the declaratory orders regime is in the end going to be worth the paper it is written on.