The nature and complexity of crime has changed markedly in recent years. So, too, has the scope of criminal investigation powers possessed by police and investigators.
Long gone are the days when, in the 18th century for instance, the only warrants that were available at common law were those issued for the search of stolen goods. Today, the powers possessed by investigators vary widely – from the right to arrest to the powers to listen to conversations and take intimate and non-intimate forensic samples from suspects. What many people may not know is that an intimate forensic sample under s 23WA(1) of the Crimes Act 1914 (Cth) extends as far as taking a sample of pubic hair from a person suspected of committing an indictable offence.
In response to the increasingly complex patterns of criminal activities and emerging forms of investigative technologies, much has also changed in the extent to which investigators are permitted to encroach on fundamental rights and freedoms of persons under investigation, including the right to privacy, the right to silence, the privilege against self-incrimination, the protection of property and the right to liberty. Investigative powers are potentially controversial because they often involve a clash between individual rights and the common good. In this changed environment of criminal investigation, the balance between individual rights and community safety is more complex than ever before. Nowhere is this more apparent than in the field of electronic surveillance, where the power to intercept telecommunications needs to be weighed against both privacy considerations and the gravity of suspected offences.
Greater powers have been granted to police and other investigators in light of new technologies and new types of crime. This demands a much greater need for police and investigators to give weight to individual rights and freedoms when exercising powers to use intrusive measures that abrogate or curtail those rights and freedoms.