In June 2005 the NSW Government introduced legislation that would allow the police to conduct covert searches into people's homes, and they would not need to notify the occupiers for 6 months. What's more the Terrorism Legislation Amendment (Warrants) Bill 2005 would also allow the police to have access to a person's home in order to search through their neighbour's home.
AMCRAN felt that this was a cause of concern as it would unduly infringe people's right to privacy and raised our concerns with to a number of cross-benchers.
Re: Terrorism Legislation Amendment (Warrants) Bill 2005
We wish to raise serious concerns regarding a Bill that is currently before the NSW Legislative Council – the Terrorism Legislation Amendment (Warrants) Bill (2005) (‘the Bill’). We write to you in the hope that you may defend the civil rights of the people of New South Wales.
The Australian Muslim Civil Rights Advocacy Network (AMCRAN) is a network of volunteers dedicated to presenting an Islamic perspective on civil rights issues in Australia. It does so by drawing on the rich civil rights heritage of the Islamic faith. It actively participates in law reform and policy work, including legislative reform through submissions to government bodies, political lobbying, grassroots community education, and communication with and through the media. It collaborates with both Muslim and non-Muslim organisations to achieve its goals.
For the record, AMCRAN is opposed to terrorism in all its forms, and unequivocally believes that the killing of innocent people is immoral and entirely inconsistent with Islamic teachings. However, protection from a perceived terrorist threat should never be justification for the withdrawal of our civil rights.
We are opposed to the Bill on a number of grounds. Firstly, unlike the federal legislation of a similar nature, where numerous inquiries and committees saw to its introduction, no opportunity has been given to the public to contribute to the debate over the introduction of this Bill.
Secondly, the granting of covert search powers to the NSW police by the Bill is not only a gross infringement of the person’s civil liberties but also a violation of their right to privacy. In its present form, the Bill grants to the police the power to enter into a person’s home without their permission, and record evidence, seize items, and even replace them with substitutes. While the power would only be triggered by the suspicion that a terrorist act has been, is being, or is likely to be committed, the likely wider use of the power is a concern. In effect, the Bill would allow the Police to search the premises of someone who admittedly has not been involved in any planning of any terrorist act by any measure, save for perhaps some link with certain people, however casually.
AMCRAN is further concerned that the powers would allow for the covert intrusion on the premises of an innocent occupier, and even a neighour. One of the most important principles of both Western and Islamic cultures, indeed, of civil society, is that “A man’s home is his castle”, and that unless there are strong reasons to the contrary, a person’s home must not be entered by government representatives of any kind except in very specific circumstances and always with the presence and knowledge of the person. To allow police to enter a person’s home without their knowledge undermines the sanctity of that principle.
Even if this legislation were to be passed, it is severely flawed, in particular, there are only weak safeguards in place. There are no mechanisms for the person who has a covert warrant issued against them to appeal, even after the fact. Furthermore, there may be a delay of up to 18 months, possibly longer, before the person even finds out about the intrusion into their privacy. Weak safeguards become susceptible to corruption – for example, by planting evidence in the house; and it is fair to say that the NSW Police have not been immune to corruption in the past.
At the core of the problem is that NSW Police in executing such warrants are behaving in an intelligence-gathering capacity rather than a law enforcement capacity. These two capacities are important to separate – and that is why the functions and duties of ASIO and the Australian Federal Police are distinguished. The types of legal safeguards one puts in place are affected.
For example, the Inspector-General of Intelligence and Security (IGIS) oversees the work of ASIO and similar intelligence-gathering organisations. There is no equivalent for the NSW Police; and the Ombudsman by comparison has very limited powers to oversee the actual execution of the warrants, while the IGIS can actually sit in on ASIO questioning. The Bill only grants minimal review powers to the Ombudsman.
The idea of the police essentially being turned into burglars going on “sneak-and-peek” missions is extremely problematic. There are practical issues to be considered; for example, the safety of the police officers and those whose homes are being searched. Consider for example, what would happen if the police mistakenly thought the home was empty, but a resident who was sleeping in the house woke up, heard noises, grabbed a kitchen knife and stabbed whom he thought was an intruder?
Some members of the community already have a fear of ASIO and the police, whether rational or otherwise. In this climate of fear and suspicion, the introduction of covert powers designed to allow the police to now intrude into their homes also will only serve to feed the paranoia. It would be irresponsible to allow such laws to be passed.
We are therefore opposed to this legislation, and we have great difficulty imagining a scenario where the police could not use their existing powers to achieve the same ends.
Finally, AMCRAN is concerned about the proposed extension of the period of authorisation of the use of a listening device if the offence is a ‘terrorism offence’ as defined in the Commonwealth Criminal Code. The breadth of the offences has been criticised by AMCRAN as well as a number of academics, commentators, civil rights advocates and community legal centres. We argue that ASIO already has the power to use listening devices. We do not believe that a case has been made out for the necessity of these powers being granted to the Police. Neither has the case been made out for the period of the use be extended to 90 days, which, as the NSW Law Reform Commission has pointed out before in its Report 98 (2001) - Surveillance: an interim report, would “weaken the high degree of accountability which covert surveillance requires and which a shorter time frame secures”.
We believe that the Bill must be opposed. Indeed it would be irresponsible to allow such laws to be passed. It is not acceptable that the so-called war on terror is used to justify an abandonment of rationality in the law-making process, without such new proposals being calmly weighed in terms of necessity, proportionality, reasonableness, or effectiveness.
If the Bill were to be passed, at the very least we believe that the following amendments must be made to the Bill:
- Putting more safeguards in place, such as giving the Ombudsman more power to investigate the application of these laws, and allowing people searched in such a manner to make appeals through the courts to challenge the validity of the original search.
- Removing the clauses allowing entry through a neighbour’s home.
- Limiting what the police officers can do under the warrant, eg, only to gather tangible evidence and conduct searches (e.g. take photographs or reproduce material) without having the ability to take or replace tangible items.
- Ensuring that the person is informed within 30 days, not six months, of the execution of the warrant, with no possibility of extension.
- Having an independent observer (such as a representative of the Ombudsman) accompany the officers on the search to ensure that no improprieties occur during the search.
We urge you to work together with your colleagues to prevent this legislation from being passed, or at least to put in place more appropriate measures to ensure the civil rights of all citizens of New South Wales are protected.
Dr Waleed Kadous
The Bill was assented to on 27 June 2005. The text of the amended Terrorism (Police Powers) Act 2002 is available here.