Sun never sets on Secret Empire

Politicians, at the urging of police, continue to entrench freedom-encroaching laws, originally sold to Australians as ’emergency’ only. It is surely time to start winding back some of the over-draconian measures put in place after 9/11, or for other ‘temporary’ reasons.

The Sun never sets on the Secret Empire

It has been nine years since extremists destroyed the World Trade Centre, killing more than 2000 innocent civilians. In those nine years, as part of the ‘War on Terror’, we’ve seen the passage of dozens of individual pieces of legislation which have stripped away rights and liberties we believed represent fundamental freedoms. In those frantic days following 11 September 2001 it was understandable that governments would overreact and would pass misguided laws. But three years passed and there were no attacks within Australia.

And so, when governments across Australia extended the reach of those laws in the middle of the decade, Australians were rightly concerned by the encroachment on the freedom from arbitrary arrest; the presumption of innocence; and the separation of powers between the police and judiciary. In response to our protests governments everywhere said: “We hear your concerns but don’t worry, these laws are only temporary. They will automatically end in x years”. ‘Sunset clauses’ – automatic repeal provisions – were used to assuage all our concerns. Measures such as ‘preventative’ detention for 14 days (detention without charge), control orders (restricting your liberty on police secret evidence) and covert search warrants were justified as necessary and temporary measures. To be undone in the near future. And, besides which, ‘if you have nothing to hide, you have nothing to fear’.

We should have known better.

Sunset clauses have been used by governments to shepherd intrusive legislation through parliaments on the mere promise that they will be reviewed later. Rarely has the legislation ever been repealed. In NSW alone, laws passed after the Cronulla riots (allowing for police searches in the absence of ‘reasonable suspicion’) were only ‘temporary’. They have since been cemented. Laws introduced specifically for the 2007 APEC conference (which saw the CBD of Sydney locked-down) were later made permanent. And now, the Terrorism (Police Powers) Act 2002 NSW), which allows police to obtain a cover search warrant are to be further extended.

What is a covert search warrant? Under section 27O of the Terrorism (Police Powers) Act 2002 a covert search warrant:

‘authorise(s) an eligible person to covertly enter and search premises, using such force as is necessary, to seize, substitute, detail, copy or break open such things in the course of executing the warrant…’

By allowing for ‘substitution’ a police officer can substitue an item in a premises with a bugged one – or disguise evidence of their intrusion.

‘So what?’ you might say ‘these are potential terrorists and, if you’ve got nothing to hide you’ve got nothing to fear’.

Well, under the current laws, you don’t have to be a suspect to have your home broken into. A covert search warrant also authorises the police:

‘to covertly enter adjoining premises’.

As such, if the police suspect that the young couple next door are involved in potentially criminal activities they can enter your house to access the suspects.

Many people try to excuse these laws, saying ‘Oh, but these are terrorists we are fighting. These laws are designed to catch the worst of the worst. A little sacrifice is understandable when so many lives could be at risk’.  Indeed, in justifying these measures when they were first introduced then Attorney-General for NSW Bob Debus (later federal Minister for Home Affairs) said, in the NSW Parliament:

‘the citizens of this State have a right to expect that their privacy will be protected from unjustified searches and interference from the State. Society recognises, however, that there are certain circumstances when an individual’s right to privacy must be weighed against the greater public interest in order to allow law enforcement agencies to uphold the law and prevent criminal activity, especially when many lives are potentially at stake… The powers set out in this Bill are not designed or intended to be used for general policing… These powers are extraordinary and have only been permitted with the strictest of safeguards.’1

So it was a promise: these laws would only be used for terrorism offences and would expire after a short period of time.

Sadly, this is another broken promise. In March 2009 the NSW Parliament passed the Law Enforcement (Powers and Responsibilities) Amendment (Search Powers) Bill 2009. This extended the use of covert search warrants to investigating ‘indictable offences carrying a prison term of five years or more.’

So these ‘extraordinary’ laws, which we were promised would not be used for ‘general policing’, can now be deployed against individuals manufacturing, cultivating or in possession of drugs, or those who commit violence with intent to cause grievance bodily harm, or who possess child pornography. Of course, it’s not just the suspects who bear the brunt of these laws – it is their innocent neighbours.

When politicians say a law is only temporary, we expect it to expire on its used-by date. If the law is to be restricted to the ‘worst of the worst’ we expect that it will not be used recklessly and against the public at large, and certainly not on innocent neighbours. We should feel at least equally outraged when we see politicians breaching our trust as we do when we read that a rugby league club has breached the salary cap rules. What faith can we place in legal  ‘safeguards’ when we cannot even trust that the laws will be used only when promised?

Rather than fighting terrorists, these covert search warrants allow for the state to invade your privacy and the sanctity of your family home to spy on someone next door, who may be a marijuana grower/smoker. It’s no longer enough to say that you’ve done nothing wrong so you have nothing to fear, you now need to know the criminal history of your neighbours…both sides.

The empire of secret policing in Australia keeps growing, and there is no end to its day in the sun.

• Tim Vines, Director and Media Spokesperson for Civil Liberties Australia