TERRORISM LAWS JUST THE THIN END OF THE WEDGE AS BAD OLD DAYS RETURN

Richard Ackland
September 24, 2010 - 3:00AM

In the good old days of policing, those bullnecked old thumpers knew how to get their man. Accused were verballed, evidence planted and fishing expeditions mounted.

Police powers were pretty wide and all those smart, overweight cops who hung around Chinese restaurants into the late afternoon could sidestep the rules and regs without too much strife. Bribery was rife, evidence and witnesses ''disappeared'', and if material facts were not distorted, they were withheld. ''Scrumdowns'', where cops would collude to present a unified story, were the order of the day. The royal commission into the NSW police was supposed to have changed all that. What happened after Justice Jim Wood reported his findings and recommendations in 1997 was a system of ''policing by law''. Procedures were tightened by which police power was supposed to be exercised.

What's been happening in recent times is the surreptitious unstitching of ''policing by law'' and a return to powers that are ill-defined and lightly supervised. This is a direct consequence of the war on terrorism.

The NSW government has been doing its brave bit to make us all safe from terrorism. In fact the Attorney-General, John Hatzistergos, announced this month his government ''has made counterterrorism a top priority''. To that end, the use of covert search warrants under the Terrorism (Police Powers) Act will be extended, even though these special warrants have only been applied for five times and granted three times.

This act was NSW's response to the attacks of September 11, 2001, and the covert warrants power was supposed to expire on September 13. It will be kept alive and kicking for three more years.

Special powers under this law come into being whenever a senior police officer has ''reasonable grounds'' for thinking there might be a terrorist attack in the ''near future''. An authorisation is then given by the minister for police, although in some circumstances, if he's busy at a sauna or fund-raiser with property developers, the authorisation can happen without the say-so of the minister.

Previously the requirement was for an ''imminent'' terrorist attack but that's gone out the window. The authorisation cannot be challenged in court, although the High Court may have put a hole in that with a recent judgment that state governments cannot remove all jurisdiction of the supreme courts over administrative decisions (Kirk's case).

The special powers allow the police to do pretty much whatever they like - all on the basis of a suspicion, waved through by the minister. Accountability comes in the form of a report from the commissioner of police to his minister or the attorney-general. The powers are wide and the procedures under which the police to exercise them are flaky. We're edging back to the pre-Wood model of policing.

Covert warrants can be issued by ''eligible'' Supreme Court judges if the police have a reasonable suspicion that terrorists are up to no good.

Property and possessions can be searched without the knowledge of the affected parties. There is no requirement for an imminent threat, and the occupiers of searched property need not be suspected of anything. And while they're at it, if the police find anything ''connected'' to a serious offence they can seize it, even though it has nothing to do with terrorism. Perfectly innocent citizens about whom the police have no suspicions can have their premises covertly entered and searched, in order for the police to access adjoining properties.

The Law Society of NSW has said the covert search warrant scheme ''seriously undermines'' the balance between the state's right to investigate crime and the right of individuals to go about their affairs without fear of intrusion.

More troubling is the way these laws slide into areas that have nothing to do with terrorism. For example, special police powers were extended to ''threats of large-scale public disorder'' - the Cronulla riots.

Other search powers that came into effect last year took covert searches beyond the realms of terrorist-related activities. In fact, they apply to any potential offence that carries a maximum term of imprisonment of seven years or more. That includes offences as terrifying as destroying equipment belonging to a mine.

Nicola McGarrity, a terrorism law specialist at the University of NSW, wrote that once extraordinary measures are accepted in the terrorism context it is inevitable they'll be applied to less serious matters. Consequently, police don't actually get to ''abuse'' their powers because they are simply given more of them.

The police and the legislature are in a dance of endless collusion. A classic example was the World Youth Day powers that police then insisted were necessary to direct people to cease ''annoying'' and ''inconveniencing'' pilgrims. The Federal Court had little trouble finding this was an absurdity.

An earlier instance of power overreach was the response to a police officer being stabbed in 1998. New legislation allowed police ''on reasonable grounds'' to stop and search anyone for weapons. The following year the ombudsman found that only one in five searches produced a knife.

The police have become an enormous paramilitary force: special black uniforms bedecked with an overabundance of weaponry, massive vehicles emblazoned with Orwellian signs that say ''Riot and Public Order Squad'' in the hands of menacing personnel. It all looks like we citizens are an enemy to be relentlessly fought.

justinian@lawpress.com.au



This story was found at: http://www.theage.com.au/opinion/politics/terrorism-laws-just-the-thin-end-of-the-wedge-as-bad-old-days-return-20100923-15oqk.html