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Issue # 1402      11 March 2009

Secret police searches, secret evidence and presumption of guilt

The NSW government wants to empower state police to conduct secret searches, in cases allegedly involving murder, drugs, and other offences.

The searches would have to be approved by a Supreme Court judge, who has to merely “consider” the occupant’s privacy. Police officers could “do anything that (they consider) is reasonable” to carry out the search.

Police would have seven days to examine data taken from computers (federal terrorists laws currently only allow three days). They would not have to notify the occupant that a search had been carried out until six months later, or in exceptional circumstances for three years. The legislation does not require the involvement of a public interest monitor.

The NSW Labor government has carried out secret searches for many years. However, in 2007 the Supreme Court ruled that a secret search of a children’s author home had been unlawful, so the government decided to introduce the new legislation.

Joe Catanzatiti, President of the Law Society of NSW, commented: “The requirement for notice of an intended search is an important safeguard and in its absence the potential for abuse is extreme. (It) seriously undermines the balance between the state’s right to investigate and prosecute crime and the rights of individuals to carry out their proper business and lives without intrusion by the state.”

Secret police, Australia wide

Steve Blanks, Secretary of the NSW Council for Civil Liberties, stated last week that the NSW secret search laws constituted an extension of anti-terrorist powers, and demonstrated the need for an Australian bill of human rights.

That statement has been echoed by others, in light of a decision by the High Court to accept secret evidence from the South Australian Police, in a liquor licence application case. The applicant’s only criminal record consists of traffic offences. However, in a previous hearing he had been denied a licence on the basis of secret police evidence which he was not allowed to see or contest, even though, as one senior barrister has claimed, judges alone do not have the resources to test such evidence.

The decision sets a dangerous legal precedent. Draconian state and federal anti-terrorism laws, which were introduced by the Howard government and have not been removed by the current Rudd government, already violate the UN Declaration of Human Rights, which states that everyone is entitled to a fair and public hearing by an independent and impartial tribunal. However, under South Australian law, for example, suspects can be held in jail for up to 14 days.

Moreover, as Terry O’Gorman, national president of the Australian Council for Civil Liberties, has pointed out, even in terrorism cases, defence lawyers are entitled to see the prosecution’s evidence. Cameron Murphy, President of the NSW Council for Civil Liberties, asked: “Why would the NSW Police need more power in dealing with ordinary criminals than the Federal Police does in dealing with terrorists? Ultimately, in my view, it’s going to lead to more police corruption.”

The decision also appears to involve a presumption of guilt, rather than innocence. As Cameron Murphy commented: “This is Alice in wonderland stuff. You have the verdict then you have the trial.”

Prove our evidence is wrong

In a final and very nasty twist to this story, the federal government intends to introduce legislation under which evidence from foreign sources would be automatically accepted by a court dealing with Commonwealth criminal cases, unless the accused could prove the evidence was false, rather than the prosecution having to prove it was genuine.

The proposed new rules of evidence, which are opposed by the Law Council of Australia, the Law Society of NSW and the NSW Council of Civil Liberties, would be similar to those used in the notorious Guantanamo Bay Military Commissions.

Because the new rules relate only to evidence from foreign sources, a different criteria would apply to their acceptance rather than evidence from local sources. As the NSW Council for Civil Liberties has pointed out, a file note from a Zimbabwe business would be easier to get into evidence than a statement from a major Australian bank.

Stephen Blanks commented: “Nowhere else in the world are similar rules of evidence currently operating. The government routinely rejects as unreliable documents from asylum seekers demonstrating the dangers they face in their own countries, but insists that similar material can now be admissible in Commonwealth criminal prosecutions.

“If these new rules were in effect in 2007 … Dr Haneef … (arrested as a terrorist suspect and subsequently proved innocent) would have had to disprove questionable foreign evidence … making it much harder for him to win his freedom.

“The changes are the latest in a long line of oppressive laws, claimed to be justified by the fight against terrorism, that have seriously infringed on hard-won civil liberties.”

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