New secret search powers in NSW

March 29, 2009

New laws have been passed in the NSW parliament that allow police to conduct secret searches of people's homes, including the examination of computers. The new laws build on anti-terrorism legislation, but the new powers are for crimes as minor as growing a few cannabis plants.

Surveillance teams can monitor your home in your absence to make sure you don't come home and unexpectedly stumble upon the police officers.

You don't have to be told about the secret search for up to three years after it has happened. Your next door neighbour — whose property may have been broken into to gain access — need never be told.

This differs from the usual procedure where an occupant can be present at the time of the search, be able to examine the details of the search warrant and must be given a receipt for items taken.

A coalition of human rights groups wrote to the Sydney Morning Herald on March 23, saying that the new laws were introduced "without public consultation and debate and is being pushed rapidly through the Parliament".

One of the signatories, the prestigious International Commission of Jurists, has just released its international report on how counterterrorism-like laws are now being used for ordinary criminal activity.

If there is no independent person present during a police search, there is the danger of a corrupt officer planting incriminating evidence to be "discovered" during a raid the next day.

Under the new law, searches no longer have to be done by specialist counterterrorism police. The most inexperienced police officer will be able to creep around your home.

ALP parliamentary secretary, Barry Collier, said in a March 4 speech introducing the bill to the legislative assembly, that the new laws contain numerous "safeguards" and were aimed at organised crime.

"These are tough new policing powers, and the government has therefore taken care to ensure that the scheme is appropriately restricted and accompanied by strict judicial oversight and comprehensive safeguards. Covert search warrants will be available only in connection with certain serious offences [punishable by seven years imprisonment or more] and may be authorised only by a Supreme Court judge," he said.

Collier also said that the Ombudsman's office would supervise the new scheme.

Mark Polden, a lawyer with the Public Interest Advocacy Centre, responded in the March 23 SMH: "The Premier, Nathan Rees, was quick to identify members of organised crime syndicates and drug traffickers as some of those whose premises could be searched without their knowledge.

"This is clever semantics: the bill says crime is organised if it is done more than once and involves more than one person — hardly what we think of as organised crime — and its reach extends to minor personal drug cultivation, well below the trafficable quantity," Polden said.

In his speech to parliament, Collier didn't say that it was the NSW Attorney-General, John Hatzistergos, who will be able choose the judge most likely to approve warrants.

He also didn't elaborate on the less-than-brilliant role of the Ombudsman's office when it comes to monitoring the use of legislation. The same office has failed to utter a single critical word in public about the infamous policing of the Sydney APEC protest in 2007.

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