Technology Renders Search and Seizure Laws Outdated

The Clerk of the Senate, Harry Evans, says laws concerning search and seizures may need to be adjusted in the wake of controversial raids on the electoral offices of One Nation Senator Len Harris and former Liberal Senator Winston Crane.

And Democrats Senator Andrew Murray says the issue of police using warrants to sweep up much more than necessary for the purpose of the warrant, including computers, hard drives and discs, is a huge problem that affects ordinary citizens as much as parliamentarians and is likely to get worse.

Evans told the Senate Finance and Public Administration Legislation Committee that Senate departments had been forced to incur substantial costs in investigating what material was subject to parliamentary privilege and what was subject to a police warrant after the raids.

And he says the Senate privileges committee has been pursuing the question of guidelines agreed between the law enforcement authorities and the Presiding Officers to make sure that searches of senators’ premises do not abuse parliamentary privilege.

But he says while it is possible the government should be looking at changing the law to somehow cope with material stored in computers, this would likely prove to be extremely difficult.

When police raided Senator Len Harris's electoral office on November 27, 2001 as part of an investigation into fraud claims, they searched the office and seized the office's computers, one of which belonged to the Commonwealth of Australia. Yet the police eventually handed back to Harris everything they had taken from the computers.

The Queensland police have since found themselves the subject of two inquiries by the powerful Senate privileges committee, while a former head of the federal Attorney-General's Department spent a year studying tens of thousands of documents seized by the police from Harris's office (concluding that not one of them was covered by the search warrant).

“In the case of Senator Harris, as you know, the neutral third party, having gone through the documents, discovered that none of them were within the terms of the warrant,” Evans told the committee. “None of the documents were authorized for seizure under the warrant. That must happen with other searches time and again. How often do searches sweep up a great collection of documents with nothing to do with the search warrant but which the law enforcement agencies are then able to go through at their leisure and see what else they might find in there? It is a big problem,” he says.

The investigation into Senator Crane's use of charter flights began in 1998. Although Crane claimed three fake documents relating to journeys he never took or claimed money for were given to the press in December 2001, he resigned last year after he was relegated to the unwinnable fourth position on the WA Senate ticket in the federal election.

Senator Murray told the committee it seemed search and entry provisions, which were designed in the era of paper, were now being used in an electronic age and have consequences which affect parliamentarians’ duties, their staff and the functioning of their offices.

“In my view, it erodes the very protections which are at the heart of parliamentary privilege. If we do not look after our own we cannot expect somebody else to do it. That is why I am asking whether people who understand more about these things than I do are trying to come up with a view as to how search and entry in electronic equipment can be better designed and managed.”

Evans told the committee the Presiding Officers and Clerks had their thinking caps on concerning the type of safeguards that might be instituted.

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