Normative Bases

While the Bill aims to enhance law enforcement capabilities, several measures raise concerns regarding potential infringements on human rights, particularly the rights to liberty, privacy, and a fair trial, which are fundamental to a democratic society. The Explanatory Memorandum itself acknowledges that certain measures may limit human rights, arguing they are “reasonable, necessary and proportionate” [Explanatory Memorandum page 5]. However, the proportionality of these limitations should be critically examined.

The extension of sunset dates for network activity, data disruption, and account takeover warrants prolongs powers that permit covert collection of information and intelligence. These warrants significantly intrude on personal privacy, and while safeguards are in place, any extension of such intrusive powers should be viewed with caution in a democratic context [Explanatory Memorandum page 8, 9]. The continued reliance on these broad surveillance powers may discourage legitimate use of online services by individuals concerned about government access to private data, potentially chilling freedom of expression online [Explanatory Memorandum page 12].

New powers for police officers to enter premises and use reasonable force when executing extradition arrest warrants, while argued to be consistent with existing powers, introduce a significant expansion of authority that could lead to arbitrary interference with privacy and potentially excessive use of force. Although safeguards are mentioned, the inherent risks associated with such powers in a democratic society warrant a more restrictive approach [Explanatory Memorandum page 18, 19, 22]. The potential for physical and mental suffering from disproportionate force is a serious concern, even with guidelines in place, as the section states officers “must not use more force, or subject the other person to greater indignity, than is necessary and reasonable to effect the arrest or prevent escape” [Explanatory Memorandum page 19]. The interpretation and application of “necessary and reasonable” can be subjective and difficult to independently verify.

Furthermore, the amendments relating to evidentiary certificates in drug offence prosecutions, while aimed at efficiency, could potentially impact a defendant's right to a fair trial. While the certificates provide prima facie evidence, shifting the burden of proof even partially onto the defendant to rebut such evidence could weaken their ability to contest the prosecution's case, particularly if they lack resources [Explanatory Memorandum page 41, 150]. The mixture-weight approach for drug quantities, while streamlining prosecutions, may also lead to disproportionately severe penalties for individuals possessing mixtures with low pure drug content, as liability is based on total weight [Explanatory Memorandum page 48, 167]. This could lead to outcomes that are not truly reflective of the actual harm caused or the offender's intent [Judgment].

The amendments in Schedule 5, while presented as merely an administrative update of agency names (Victorian Inspectorate to Integrity Oversight Victoria), could subtly broaden the scope or perceived authority of surveillance bodies. Even seemingly minor legislative changes to oversight bodies should be scrutinised to ensure they do not inadvertently weaken accountability or oversight mechanisms [Explanatory Memorandum page 4, 67, Judgment]. The risk of mission creep or unintended consequences, even from administrative changes, warrants careful consideration in a system where public trust in democratic institutions is paramount.

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