The Guardian 8 August, 2007
The Howard Government will be out to ramp up its police state powers this week when the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill comes before the Senate. The legislation — with its so-called "sneak and peak" powers — was introduced into Parliament last year and again seeks to strip away civil rights safeguards built up over centuries under the pretext of defending the public against terrorism.
The latest bill would give the Australian Federal Police (AFP) and agencies like ASIO and the Australian Crime Commission (ACC) the power to:
Carry out secret searches of private premises and plant surveillance devices without notifying the individuals involved for 18 months or, perhaps, indefinitely
Secretly seize and copy documents without notification for potentially indefinite periods
Give law enforcement officers and civilian informants authorisation to engage in unlawful conduct with impunity during "controlled operations" against organisations or individuals.
At present, police and security agencies are obliged to notify members of the public of their intention to search their premises at the time of the search or as soon as possible afterwards. "Controlled operations" involve agents using false identities to conduct investigations. The legislation proposes less oversight of these activities.
Foreign Minister Alexander Downer says the bill strikes a "balance" between protecting civil rights and preventing terrorist attacks. Justice Minister David Johnston was so enthusiastic about the new powers that he appeared to think they would cut the judiciary out of the spooking process altogether:
"The risk of having a broad network of people involved in, knowing about, and being aware of these operations prior to them, and during them being carried out, is unacceptable in the Government’s perspective," he told ABC Radio last week.
Later the same day, he was back on message. "The Government certainly has no concerns about ‘leaking’ of details of warrants by judges or AAT (Administrative Appeals Tribunal) members," he said.
Opposition, both mild and firm
The Opposition will propose a couple of amendments; one to ensure that the laws would only be applied to cases involving terrorism or major crime and another for a review in three or five years. As it stands, such a review would be due in 10 years. Kevin Rudd wants a briefing on the issues involved.
The bill has few other friends. The Australian Democrats and the Greens want it dumped. Australian Greens Senator Kerry Nettle argues that no more powers should be given to the AFP until after an inquiry is conducted into the scandalous treatment of Dr Mohamed Haneef. Cameron Murphy, from the Council of Civil Liberties, agrees:
"These powers are excessive, they’re an invasion of privacy and we simply can’t trust the police to use these powers appropriately given the debacle that was the Dr Mohamed Haneef case."
Law Council of Australia President Tim Bugg also sees potential for abuse of the new powers and dismisses the Commonwealth’s "me too" argument that they out to have the extra spooking capacity because the states already have it:
"Police already have a broad array of extraordinary powers, many of them introduced in recent years. If they are not working and police really are so impotent in the face of ever expanding threats, then perhaps we need an extensive review of policing before we trade away fundamental rights in favour of increased powers."
These are not good times for the voices of reason, however. NSW Premier Morris Iemma recently launched his own grab for still more "anti-terror" legislation. It will now be a specific offence to supply or take part in the supply of explosives. Discretion about the number of times bail applications in cases of serious crime can be considered will be taken off judges and set down in law. Police will be able to take non-intimate DNA samples such as hair from anyone arrested for any reason. In recent times, NSW Police have been granted stop and search powers under the APEC Meeting (Police Powers) Act within some city blocks, which have been designated the "APEC Precinct".
In a recent 5-2 decision, judges on the High Court upheld the Commonwealth’s use of the Constitution’s defence powers to issue interim control orders against Jack Thomas.
Dissenting judge Michael Kirby argued the Commonwealth’s application of the defence powers to combat terrorism was too broad and that it invited the danger that one day the military could intrude into civilian affairs. He also lamented that judicial opinion had turned so far that the 1951 legislation seeking to ban the Communist Party of Australia — quashed at that time — might be deemed valid in the current circumstances.