Kerry Nettle (NSW, Australian Greens) Share this | Hansard source

Law and order auctions are a feature of state politics: Labor and Liberals compete on who can announce more funding for police and prisons and who can hand out tougher sentences or be stronger on tackling crime. It is never very edifying to watch party spokespeople compete to make the pages of the tabloid media in this way, and it certainly does not make good policy.

This inflationary dynamic of law and order policy in Australia has been accelerated by the declaration of the war on terrorism, and we are now seeing it migrate into the federal arena. Just as we saw with the Tampa, the government has tried to use national security and the pursuit of Dr Haneef as political tools to ramp up fear. The appalling debacle of this latest chapter in the government’s serial abuse of its extensive security powers should give pause to any further consideration of additional powers for security forces, but instead the government is pursuing further powers, an extension of powers, for the Australian Federal Police in the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 [2007].

Unfortunately—although it remains to be seen—this may be another instance in which the opposition joins the government and disappoints people in its lack of courage to oppose the erosion of our civil rights. We have seen in the past that new proposals from the government in relation to national security have been met with a resounding ‘me too!’ from the opposition. There is plenty of opportunity for this bipartisan assault on human rights when security agencies have a voracious appetite when it comes to requesting additional powers. The Law Council summarised the problem in this way in their submission to the Senate inquiry into this legislation, when they said:

... in recent years a culture has developed which has increasingly inhibited the type of detailed and robust debate which, in a healthy democracy, ought to precede any extension of Executive power or interference with previously entrenched rights and liberties.

5.        The pattern which has emerged is as follows:

          (a)           Typically, over objection and with reticence, extraordinary powers are granted to law enforcement agencies in order to meet what is asserted to be an extraordinary risk to the community. It is acknowledged that the exercise of those powers will involve an infringement of rights or invasion of privacy but is said to be justified by a countervailing threat to the community.

          (b)           Later, the law enforcement agency which has been the recipient of those powers reports that the powers have assisted greatly in combating crime. No one is in a position to argue whether the same result might have been achieved by a different method. No one, other than the law enforcement agency itself, is privy to detailed information about the day-to-day use of the power and its implications.

          (c)           Rights which are infringed in the process of exercising the power are largely invisible. This is both because those rights are regarded as ceasing to exist from the moment they are traded off in favour of more efficient law enforcement and because it is assumed that only a certain criminal class is materially affected.

The Australian Greens, however, believe it is the parliament’s responsibility to not only protect citizens from crime but also protect citizens from the overreaching powers of an unaccountable state and its agencies. We share the concerns of the Law Council of Australia, who are opposed to this never-ending parade of new powers for security agencies. Like the Law Council of Australia, we are opposed to this bill that is the latest step in the extension of such new powers. It is a question of balance and accountability, and there is no balance and accountability in this legislation. Amongst other things, this legislation: creates ‘sneak and peak’ warrants that enable police to search people’s homes without them knowing about it; extends the use of controlled operations in which undercover police and informants are able to break the law to potentially cover all Commonwealth offences; fails to provide independent and external approval processes for controlled operations; removes the role of AAT members in approving the continuation of controlled operations beyond three months; removes the maximum time limit on controlled operations; extends the protection from criminal and civil liabilities to civil informants who participate in controlled operations; reduces reporting requirements for controlled operations; extends powers for police confiscation of electronic equipment such as mobile phones, thereby avoiding the requirement to obtain a telecommunications interception warrant; and extends the coercive powers of the Australian Crime Commission.

The Greens are concerned about all these aspects of this bill. They increase powers without justification and they remove accountability and oversight of these powers. In particular, the introduction of the delayed notification warrants, or the ‘sneak and peak’ powers, is a major departure from basic civil rights. I want to focus my remarks on those aspects of the bill. For centuries, the English common law, based on Roman principles, held that a man’s home is his castle and that an infringement on a person’s property whether by the state or by individuals must have significant limits. This has its most well known expression in the United States Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The so-called ‘castle doctrine’ has also been an important part of Australia’s common law. This bill will violate that doctrine giving the Federal Police extraordinary new powers to secretly enter, search and even take things from people’s homes. This is an enormous encroachment on Australians’ civil rights and should not be supported by this parliament.

Currently, if an officer wants to search a person’s home or property, they must identify themselves to the occupier, give them a copy of the search warrant, allow them to observe the search and provide them with a receipt for anything confiscated under the warrant. These rights enable a person subject to the warrant to challenge the validity of the issuing or execution of the warrant and they enable a person to call a lawyer who can be present during a search. These rights are very important rights designed to ensure equality before the law and to provide protections from abuse of state power. They are a fundamental check and balance on our criminal justice system. But this bill throws those rights out the window and replaces them with a regime that would be familiar to anyone who had lived in East Germany or other totalitarian societies.

Schedule 2 of the bill introduces a new division into part IAA of the Crimes Act that sets out various powers of police, including those in relation to search warrants. The new division will create delayed notification search warrants, or covert search warrants, and an approval regime. These ‘sneak and peak’ powers will enable police to obtain a warrant to search premises covertly and seize or copy items without informing the occupier for up to six months or longer in certain circumstances. Such powers are a major intrusion on the privacy of citizens and their right to security in their home and property. Such powers should only be available in extraordinary circumstances and in a carefully circumscribed manner. The secrecy inherent in the powers means that the capacity of an individual who is subject to such a warrant has virtually no capacity to ensure that such powers are used lawfully and in justifiable circumstances. The government has made no attempt either in its second reading speech or in its explanatory memorandum to justify why such new powers are needed. As the Law Council say in their submission:

It is not enough to claim, without more, that it will greatly assist police. The removal of the need for warrants entirely would also achieve this aim. Likewise it is not enough to couch the proposed new provisions in the language of balance and to offer assurances by reference to accountability and oversight mechanisms.

The Law Council goes on—and the Greens agree:

As a first step, the agencies which seek the creation of this extraordinary power, must establish, in precise terms, the need for this covert warrant regime, and the public interest goal it serves. Only then can a proper discussion follow about whether the asserted need greatly outweighs the obvious and substantial risk to individual rights and whether that risk can be sufficiently safeguarded against with appropriate accountability mechanisms.

Security and police agencies already have a raft of powers to address serious crime, including terrorism. These include: controlled operations where undercover police and informants can engage in unlawful conduct; warrants to secretly enter property and install surveillance devices; tapping of telephones and other communication devices; and the coercive powers of the Australian Crime Commission to compel a person to provide self-incriminating evidence and the extensive powers of ASIO, including the capacity to secretly enter homes and property, and collect intelligence. Given these powers, it is incumbent on the government and police to explain why they think that these powers are inadequate for the job. To date they have not done so. Just because these powers, which in many cases also violate a person’s privacy, have been enacted is not a justification for further powers. Rather, they make the requirement for justification on the part of the government and police all the more compelling.

Where are the holes in these existing powers that make these ‘sneak and peek’ laws so necessary? Where is the evidence that criminals or terrorists are getting away because the powers in this bill do not currently exist? It is also not enough for the government to point to state laws in relation to covert search warrants that relate to terrorism offences that were introduced without justification by Labor state governments. The proposals in this bill go far beyond what is contained in state legislation.

Covert search warrants will be able to be issued in relation to a broad range of offences, including Commonwealth offences that carry penalties of 10 years imprisonment or more, state offences with a federal aspect that also carry 10 years and some terrorism offences and a scattering of other offences that carry less than 10 years, including threatening to cause harm to a public official or using the post to make threats. As the Law Council points out, this is a very broad list of offences, ranging from receiving stolen mail to selling a controlled plant to dishonestly receiving stolen Commonwealth property.

The government and the police have not explained what the rationale is for this hotchpotch of offences or why these powers are needed in each case to adequately investigate the commission of such offences. It seems that the approach has been to come up with the idea for this power and then collect up the greatest pool of offences that could underpin it, giving the police free rein.

A similar approach seems to be adopted in the bill in relation to the length of time for a covert search warrant. The existing warrants in division 2 of the Crimes Act are allowed a maximum duration of seven days. This bill will allow covert warrants to endure for 30 days. Once again, no explanation has been provided for why the length of time should increase fourfold.

Central to the Greens’ concerns regarding these ‘sneak and peek’ powers is the length of time before police are required to inform a person that their property has been searched. In fact, in certain circumstances the bill would allow police to delay informing a person indefinitely. In other words, police could secretly search a person’s home or property without ever informing them that they had done so. In the first instance, police who are issued with a covert search warrant are able to delay notification for up to six months. However, on application to a nominated member of the Administrative Appeals Tribunal or a judge, this can be extended twice for another six months. After 18 months, with the approval of the minister, a judge or a nominated member of the Administrative Appeals Tribunal can extend the delay even further.

If you accept that such covert warrants are necessary, how can such a length of time be justified? These warrants are not meant to be used for collecting intelligence but rather for the investigation of offences. The length of time of such warrants plus the allowable further delays mean that inevitably they will be used for intelligence-gathering and fishing expeditions rather than for the prosecution or prevention of offences. No guidance is provided to AAT members or judges about how to decide on extending a warrant, except that after 18 months exceptional circumstances must exist. The inference that one could draw, therefore, is that up to 18 months delay is almost automatic and certainly does not require any exceptional circumstances to exist. A further major flaw that has been identified by the Law Council is the lack of any requirement that a person be notified of the covert search warrant even if they have been charged with an offence.

In summary, the time frames involved seem designed to enable police to build a case against an individual without that individual having the capacity to challenge evidence or prepare for their defence. This is a fundamental attack on a person’s right to due process and a fair trial.

Before finishing my remarks, I want to mention a further two aspects of the bill in relation to covert search warrants—the ‘sneak and peek’ powers—which deserve the Senate’s attention. Legal professional privilege is essential to the rule of law. It underpins equality before the law and a person’s right to a fair trial. Currently, if a person’s home is searched by police, they are in a position to make a claim for legal professional privilege for documents or things that police attempt to seize. These documents are then not able to be examined by police until the issue of privilege has been resolved by a court. This regime of covert search warrants will ride roughshod over the principle and the practice of legal professional privilege. Police now will be able to confiscate documents, regardless of the privilege that might attach to some items, because a person or their lawyer will not be aware that the search has occurred or that the seizure of documents has occurred.

Another concerning feature of this bill relates to what are designated as ‘adjoining premises’, which are able to be entered for the purpose of entering the targeted property. An owner or occupier of an adjoining property is also subject to the same delay in notification as the subject of the warrant—that is, they may not be told for six, 12 or 18 months or more that the police secretly entered their property. Once again, this is a significant derogation from a citizen’s right to privacy and property that has not been justified by the government or by the police.

The Greens do not support these provisions or the others that I mentioned at the beginning of my remarks. The government had the opportunity to take on board the concerns of the Law Council and others about this bill, and it could have modified its provisions. In its present form the bill is unbalanced. It gives too much unaccountable power to law enforcement agencies, and it tramples on fundamental civil rights. Given the circumstances that we have seen in recent weeks in relation to the case against Dr Haneef, now is not the time to be giving these extraordinary new powers, which trample on some fundamental tenets of our civil liberties in this country, to the Australian Federal Police. Therefore the Greens will not be supporting this bill.