Law enforcement agencies from different nations often work together in gathering evidence for use in legal proceedings in cases where alleged criminal conduct cuts across national borders. However, in the case of search warrants, the rights of persons affected by internationalised actions do not have the same legal protections as under domestic law.
What is the general Australian legal framework?
Domestically, Australia’s foreign assistance in criminal law situations is regulated by the Mutual Assistance in Criminal Matters Act 1985 (Cth) (Mutual Assistance Act). Australia has bi-lateral treaties with many countries which formalise the nature of these relationships and what types of assistance may be provided between the countries. Where Australia has such a treaty with a foreign country, it is incorporated into Australian law through regulations to the Mutual Assistance Act – for example the Mutual Assistance in Criminal Matters (India) Regulations 2010 (Cth), which incorporates a treaty with India into Australian law.
International assistance or domestic law enforcement: what’s the difference?
As a starting point, there is actually much in common. In both cases it is generally a Judge or Magistrate that issues the warrant, which is executed by the police and for essentially the same purpose (the collection of information and/or evidence for the purpose of a criminal investigation).
The execution of a search warrant is a significant incursion into a person’s life and privacy. Accordingly, preservation of that person’s legal rights in the face of these actions is critical.
Domestic search warrants
In New South Wales, warrants are governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and its corresponding Regulations. When a warrant is issued under this legislative framework, the person to which the warrant relates has the legal right to attend the relevant Court registry and inspect a copy of the warrant and associated documentation. Although this right is subject to restrictions where disclosure of information may endanger a person’s safety or seriously compromise an investigation, affected persons are still entitled to make submissions to the Court about why those restrictions should be revoked.
These safeguards are important, as they ensure that any person faced with the intrusion of searches by law enforcement is able to properly examine the legal basis for this action.
Warrants issued as the result of mutual assistance requests
These laws (the Mutual Assistance Act and treaties) do not however contain the same types of safeguards.
The provisions in the Mutual Assistance Act regulating search warrants resulting from a request for assistance from a foreign government do not contain any express right to inspect the warrant and associated documents at a Court registry. Although the Mutual Assistance Act does require that a person subject to a search be shown a copy of the warrant at the time of it being carried out, this is far short of what is stipulated in New South Wales law for domestic search warrants.
A review of relevant mutual assistance treaties between Australia and other countries demonstrates that procedural rights of the individuals from whom information is sought are rarely, if ever, given prominence.
In cases where a warrant results from a foreign request to Australia for mutual assistance, there is a significant gap regarding the rights of a person subject to a search warrant to inspect it and associated documents.
No authorisation, no prohibition: so what is the legal position?
Understandably, when the law provides neither an express prohibition nor authorisation about the rights of a person to inspect a search warrant resulting from a mutual assistance request, the ultimate legal position is uncertain.
This is not to say that an affected person would necessarily be denied this opportunity, but there is a real risk of this eventuating.
There are however strong reasons why the law’s lack of specificity on this point should not operate to preclude persons examining warrants in such cases. First, the Mutual Assistance Act mandates the disclosure of a warrant at the time of its execution. Second, a rights based interpretation of the governing law may lead to the conclusion that, as there is no express intent to preclude or restrict the inspection of warrants, the right to do so for ordinary cases should be preserved for situations of mutual assistance.
Nevertheless, the most effective way to attain certainty on this point is legislative reform.