New police powers – to search your home in secret

Police powers continue expanding: soon ordinary constables in NSW will be able to search your home secretly while you’re out. Oh, and they’ll be able to search your neighour’s house, too. Lawyer Mark Polden explains how it’s the new way police do business in a terror-fied Australia.

Secret home searches by police spread wider

By Mark Polden*

The upper house of the NSW Parliament is expected to consider a law to allow police to enter in secret and search the homes of those suspected of committing crimes. The bill was pushed through the lower house this month (March 2009) and, assuming it passes, will allow general duties police to use covert search warrants to investigate a range of ordinary criminal offences, which can be heard by a jury and are punishable by seven or more years in prison.

Not only suspected offenders and those suspected of helping them are covered – so are the neighbours.

Such intrusive and easily abused powers are currently limited to terrorism-related investigations, and can be used only by the NSW Police Counter-Terrorism Co-ordination Command and the NSW Crime Commission.

Some of the offences covered by the laws are undoubtedly serious, including homicide and kidnapping. But under the new regime, covert warrants can also be used to investigate such minor offences as damage to property – even unintentional damage – caused during a public disturbance. If the NSW Government was prepared to debate the bill publicly, it might use the Cronulla riots as justification. It might use the 1970s Springbok tour, the 1960s Vietnam moratorium marches, or even the waterfront dispute.

Or perhaps, as the Police Commissioner, Andrew Scipione, said during the APEC lock-down in September 2007, this is just the way we do business in NSW now. If that is so, police in NSW will soon be able to enter adjoining properties secretly, including those belonging to neighbours who have nothing to do with the investigation. They will be able to impersonate other people to get themselves in the door.

They will be allowed to conceal that they have paid a secret visit, for up to three years. What comfort to know that three years on, the occupier is entitled to a letter in the mail saying the family home was subjected to a secret and entirely legal break-and-enter by the constabulary. Either that, or that they were conned into opening the door by an undercover cop.

The NSW Premier, Nathan Rees, was quick to identify members of organised crime syndicates and drug traffickers as some of those whose premises could be searched without their knowledge. This is clever semantics: the bill says crime is organised if it is done more than once and involves more than one person – hardly what we think of as organised crime – and its reach extends to minor personal drug cultivation, well below the trafficable quantity.

On one view, the bill appears to be little more than a clumsy overreaction to a setback police suffered in May 2007, when the covert execution of search warrants relating to an alleged drug importation went horribly wrong. The affidavit relied upon to issue the warrants was sworn by Mark Standen, then assistant director, investigations, with the NSW Crime Commission, now himself facing serious drug importation charges.

In the Supreme Court, Justice Peter Hall held that although the warrants were validly granted, their covert execution was unlawful. He noted Justice Michael Kirby’s remarks in an earlier case: that protecting individuals’ privacy against the arbitrary use “of the great power of entry and search” is critical.

By applying the investigative techniques of counter-terrorism to ordinary criminal offences, the bill strips away that protection. In this, NSW merely follows the Commonwealth’s lead. In 2005, anti-terrorism legislation introduced the power to obtain documents from innocent third parties relating to a “serious offence”, which it went on to define as any federal offence punishable by imprisonment for two years or more, other than a serious terrorism offence.

These developments follow a familiar pattern: when the US introduced a law authorising the use of covert warrants in the wake of 11 September 2001 under the Patriot Act, it was not restricted to terrorism, but applied to any federal offence.

Some may argue that the bill provides adequate protection, because police seeking covert warrants will have to apply to a Supreme Court judge. But only judges who agree to be nominated and are approved in writing by the NSW Attorney-General will be declared “eligible”, and the Attorney-General will be able to revoke a judge’s eligibility at the stroke of a pen. As a result, the bill risks chipping away at public faith that the administration of justice is free from the taint of executive interference.

Again, there is a precedent for this in the Commonwealth’s anti-terrorism laws. They introduced a similar mechanism of appointment for those authorised to issue continued preventive detention orders: the ones which allow a detained husband to tell his wife that he is safe, but forbid him from saying anything further. Even the Commonwealth did not give the federal Attorney-General power to revoke an appointment at will.

The risk that long-standing rights and protection will leach out of the general law, under the influence of anti-terrorism arguments, was not unforeseen. When introducing covert search warrant provisions to NSW for the first time in 2005, the then NSW Attorney-General, Bob Debus (now federal Minister for Home Affairs), reassured Parliament they were not intended for general policing, because general criminal activity as opposed to terrorism had never sought mass-killing, widespread destruction, or wholesale disruption of society. Debus observed that law enforcement agencies already had a wide array of investigative powers.

While Queensland and Victoria have legislation authorising covert warrants, the power is limited in Victoria to terrorism offences, and Queensland has a public interest monitor. There are no such limits, checks or balances in the NSW bill. Its cumbersome title, the Law Enforcement (Powers and Responsibilities) Amendment (Search Powers) Bill, is a misnomer: it is long on power, but short on responsibility.

*  Mark Polden is a lawyer and associate of the Public Interest Advocacy Centre. This article first appeared in the SMH: http://www.smh.com.au/opinion/secret-searches-spreading-too-far-20090 322-95kb.htm

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