No justification for enhanced police search powers

20 October 2009

The lessons of the Haneef case are being ignored, writes Dr Fleur Johns in an article co-authored by Matthew Kalyk, published in today's edition of The Canberra Times:

There is a certain irony that as Australia contemplates a human rights act designed to prevent discrimination and enshrine individual freedoms we are also being asked to consider a stripping of rights in relation to our national security legislation. Australia may be on the cusp of endowing its national police force with broad powers to enter and search a person's premises without a warrant in certain "emergency" terrorist situations. This new proposed power is only one of many amendments now being considered by Federal Attorney-General Robert McLelland and his department, with public consultation on the subject recently closing.

The proposed powers enable police to search premises in an emergency situation to prevent an imminent terrorist attack. The exemplary scenario provided by the Attorney-General's Department is where a police officer suspects a person to be harbouring explosives ready to be used in a terrorist attack. At first, this may sound reasonable, assuming such powers would only be used in the case of a true emergency. However, as the Haneef case demonstrated, anti-terrorism laws have a propensity to catch not only persons about to commit serious terrorist offences, but also innocents going about their daily lives. The pressures associated with a perceived terrorist threat all too readily cloud judgments and lend suspicions the force of fact.

According to John Clarke, QC, in his report on the Haneef case, the unfounded belief that Mohamed Haneef was probably involved in terrorism "coloured the entire investigation". Where this is the case, warrantless searches, alongside other powers, risk serious infringement of innocent persons' rights to liberty, security and dignity.

Mindful of such risks, the Clark report argued for mechanisms of judicial oversight operative in a counter-terrorist context to be strengthened rather than weakened. Judicial supervision, through the warrant process, is a tried and true way of balancing the competing public interests at stake in police investigations of serious crime. There is no evidence that well-tested warrant procedures are obstructing the effective investigation of terrorism.

The recent apprehension of terrorist suspects in Melbourne, for instance, was effected successfully using warrants, despite the suspected attack being described by the Victorian Police Commissioner as "imminent".

It is true that there are already state laws authorising warrantless searches, but no law establishes such broad or elastic grounds to search a person's home.

The NSW Law Enforcement (Powers and Responsibilities) Act 2002, for instance, vests police with warrantless search powers. They are, however, limited to searching a person or their vehicle, vessels and aircraft. and the limits on these powers are relatively tightly drawn.

In contrast, the provisions suggested by the Federal Attorney- General's Department are far too broad and do not offer any means of ensuring accountability for the exercise of powers they create.

First, an emergency need not actually exist for the power to arise. It will suffice if the police officer in question suspects on reasonable grounds that it exists.

Further, any officer may hold this suspicion, not only senior or experienced officers. Communities whose members are all too readily targets of terror-related suspicion will likely read these laws as eroding their protection from bias and unwarranted intrusion.

Second, the search is not limited to the prevention of a terrorist attack. Rather, it extends to the prevention of objects being used in any terrorist offence. Terrorist offences include offences such as financing terrorism or using a "thing" in connection with a terrorist attack. Therefore, practically any object usable in a terrorist offence anywhere - however insignificant or tangential the object and however remote the terrorist offence - may trigger the provisions, if it causes the requisite suspicions to be raised. Again, the Haneef case leaps to mind.

Third, there is no clear requirement that standard warrant procedure be judged ineffective for the purposes in question. The proposed law creates an impression that terrorist investigations should, as a matter of course, be treated by mechanisms outside the bounds of standard police procedure.

Finally, the proposed amendments do not provide for any ex post facto judicial review, whereby, after any exercise of the power, police officers would have to justify their actions before a judicial officer in the same way as if a warrant were being sought. The actions taken and the social costs of allowing them must be properly and impartially assessed.

These deficiencies in the proposed warrantless search laws should be of concern to police as much as to the general community. Police officers are poorly served by laws that provide loose guidance as to the circumstances in which they should be exercised.

Such laws could encourage excessive hesitancy as much as unjustified adventurism. They also risk involving police in costly litigation.

Ultimately, terrorist acts have two main purposes. First, they intend to cause devastation to civilian populations. Second, they intend to instil fear into a population that terrorist attacks are imminent at any moment.

Our federal police must be equipped to combat the first of these aims without pandering to the second.

Fleur Johns is Co-Director of the Sydney Centre for International Law (SCIL).

Matthew Kalyk is an Intern with the Centre.

Contact: Greg Sherington

Phone: +61 2 9351 0202

Email: 214a14171b3247263818290342000d7519354b2b052e29135f143f