Issue # 1405      1 April 2009

Secret searches, secret evidence

Australia slipping towards a police state

Peter Mac

The NSW government has used crimes allegedly carried out by members of bikie clubs to justify introducing laws that would strip the state’s citizens of their the civil rights.

Most bikie club members are not involved in crime. However, the new laws would give police the power to arrest any members for associating, if their club has been designated as a criminal organisation.

The government also proposes to designate organised crime (which it accuses the bikie clubs of committing) as crimes committed by more than one person on more than one occasion.

The logical conclusion is that members of any organisation designated as criminal could be arrested and jailed for speaking to one another. That’s certainly a recipe for a police state, and it has implications for all citizens. But there’s more.

It’s a secret

This week the NSW government proposes to introduce legislation to allow police to secretly enter and search the homes of people suspected of committing certain crimes, and even their neighbours’ homes.

Under these laws police would be entitled to impersonate other people in order to gain access to properties, and would not be obliged to reveal their covert activities for six months, or for three years in exceptional circumstances. According to Greens MP Sylvia Hale, in some cases residents of secretly-searched premises would not have to be notified at all.

Police would have to apply for search warrants, but only judges approved by the NSW Attorney-General would be eligible to issue them, and that approval could be withdrawn immediately.

At the moment police are only entitled to secretly “enter and search” in cases involving suspected terrorism, subject to approval of the state’s counter-terrorism unit and the Crime Commission. However, the new legislation would extend this to cover relatively minor crimes punishable by up to seven years imprisonment, such as property damage (even if unintentional) during a public disturbance. This would include political demonstrations, or major industrial actions such as the 1998 anti-Patrick wharfies’ dispute.

The legislation’s definition of organised crime – as crime carried out by more than one person and committed more than once – is so loose that it appears intended to threaten as great a sector of the public as possible with prosecution, rather than to protect them from crime.

It’s not just NSW

Under Commonwealth anti-terrorism laws introduced two years ago, federal police can seize documents held by totally innocent parties relating to federal offences punishable by two or more years in prison. People suspected of having knowledge of terrorist activities can be interrogated in secret. Secret evidence has been used extensively in immigration cases since 1996.

Queensland and Victoria already have covert search legislation, but in Queensland this applies only to suspected terrorism cases, and Victoria has a public interest monitor. NSW will have neither of these constraints, leaving its citizens with the lowest level of civil rights of any Australian state.

Other states have their own anti-civil rights legislation. South Australia recently gained approval from the Supreme and High Courts to present evidence in secret to a licensing court, thus preventing the licensing applicant from seeing or disputing the evidence against him.

The use of secret evidence opens the doors for gross abuse of the legal system, including the planting of evidence. As one US judge declared in 1950, secret evidence “provides a cloak for the malevolent, the misinformed, the meddlesome and the corrupt to play the role of informer, undetected and uncorrected.”

Acceptance of the South Australian court decision as a precedent for use in other legal jurisdictions, combined with the ability to carry out secret searches, would demolish rights of defendants since the abolition of the “Star Chamber” trials.

And Australia has no constitutional bill of rights to ensure this does not happen.

Anti-civil rights laws condemned

Last week an open letter condemning the proposed “secret search” laws was published by a group which included the International Commission of Jurists, Australian Lawyers for Human Rights, the NSW Council for Civil Liberties, the Sydney Centre for International Law, the Public Advocacy Centre and the NSW Combined Community Legal Centres Group.

They declared: “None of … our members were aware that the NSW government proposed such laws, or that such laws were considered necessary, or on what basis they were considered necessary. The way that it has been introduced without public consultation and debate and is being pushed rapidly through the Parliament demonstrates the very real, if not urgent need for consolidated human rights protection.”

Australia’s anti-terrorism laws began to be implemented in the lead up to the Sydney 2000 Olympics under the pretext of “security” and were bolstered in line with the passage of laws in the US which followed the 2001 attacks on the World Trade Centre and the Pentagon. Australia’s federal and state laws were promoted with fulsome assurances that they would never be abused or extended to cover lesser crimes, and that civil rights would always be protected.

The false arrest of Dr Mohamed Haneef in Queensland, the introduction of secret evidence laws in South Australia, and now the attempt to pass the NSW secret search legislation, have proved the hollowness of these assurances. The emergence of anti-civil rights legislation provides alarming evidence of a deliberate and cynical campaign to progressively strip Australian citizens of their civil rights. That campaign must be defeated.

Next article — Editorial - Time to rip off the Deputy Sheriff badge

Back to index page