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The World Today - Worry at Govt excluding judges' supervision in proposed new policing laws
[This is the print version of story http://www.abc.net.au/worldtoday/content/2007/s1993897.htm]
The World Today - Wednesday, 1 August , 2007 12:20:00
Reporter: Tanya Nolan
ELEANOR HALL: A former Supreme Court judge says
he is outraged at the suggestion by the Federal Justice Minister that
judges cannot be trusted to administer the Howard Government's proposed
new police search powers.
The new laws - to be introduced into the Senate next week - would allow police and security agencies to secretly search people's homes and businesses, under a new type of warrant issued not by a judge but by the head of the police service.
The person being investigated would not be informed about the surveillance for at least six months. The Federal Government says the laws, which have been dubbed "sneak and peek powers", are necessary, but critics say the Government is demanding a huge level of public trust at a time when that's been diminished by the handling of the terrorism case against Dr Mohamed Haneef.
Tanya Nolan has our report.
TANYA NOLAN: In light of current events, it's hardly surprising that any proposed new laws to fight terrorism and other serious crime would be carefully questioned.
The spectacular collapse of the case against Dr Mohamed Haneef in what was a test case under the new terrorism laws has created a heightened level of scepticism over the system in place to investigate criminality.
But Justice and Customs Minister David Johnston says the failure of the Haneef case shows precisely why new laws are necessary.
DAVID JOHNSTON: Well, you've seen in the Haneef case a situation where phone calls have been received at a very, very important time during the inquiry. Now that is precisely an example of why we would want to use the powers.
TANYA NOLAN: Those powers include the use of "delayed notification warrants" to be issued by the head of the Federal Police or a security agency instead of a judge. And they would give investigating officers the right to use a false identity to enter and search a person's home or office, seize their computer or other communications equipment, and plant listening devices. That lack of judicial oversight has many in the legal fraternity worried.
Former Supreme Court judge, John Dowd, President of the International Commission of Jurists, says it leaves the system open to abuse.
JOHN DOWD: The justification for avoiding judicial oversight is that judges might leak. That's an absolute nonsense. The courts and judges don't leak on this sort of information and haven't for years on the hundreds of warrants issued every year.
TANYA NOLAN: The Minister argues, though, that there can be no room for risk when you have officers' lives in danger in undercover situations. So he's not even prepared to allow for a minimal risk.
JOHN DOWD: Well, I would've thought the police department itself has shown it's more likely to leak as the Haneef business has shown than judicial officers who do this everyday.
TANYA NOLAN: Senator Johnston maintains that any risk to undercover operations is unacceptable.
DAVID JOHNSTON: I believe that these laws are necessary to completely eliminate the risk of information flowing to the wrong hands and compromising and jeopardising the safety of these very dedicated and hard working officers.
TANYA NOLAN: But how would a judge compromise their safety?
DAVID JOHNSTON: Judges don't compromise the operation, and I don't want to be seen to be saying anything like that. Judges do not. But judges, in a court, are surrounded by an apparatus that seeks to facilitate them doing their duty.
The risk of having a broad network of people involved in knowing about and being aware of these operations prior to them and during them being carried out is unacceptable in the Government's perspective.
TANYA NOLAN: The other part of the proposed laws that has raised some worries is that the person being investigated wouldn't be notified for at least six months, and that could be extended for more than 18 months at the Government's discretion.
A Senate inquiry into the proposed new laws recommended earlier this year that they only apply to cases of terrorism. Senator Kerry Nettle says the Greens will be opposing the bill because the powers are far too broad.
KERRY NETTLE: That's one of the concerns that the Greens have, is that we're seeing yet again a piece of security legislation being brought in without the sort of justifications for its use that we think are appropriate and it has a very broad scope.
Now, we saw for example in the case of Dr Haneef - he was held for 12 days without charge. Now when the Government introduced that legislation, they told the Parliament that it would be extraordinary if somebody was held for more than 24 hours. And on the first time it was used, it was used to hold somebody for 12 days without charge.
TANYA NOLAN: The bill also provides immunity from prosecution to undercover officers and civilian informants, and for the first time, will allow foreign investigators to take part in operations using false identities.
Senator Johnston says these weapons are necessary in the arsenal of a modern police force.
(To David Johnston) You're asking the public to invest a lot of trust in the Government, the police, the security agencies, in light of the collapse of what has been a case in terrorism with the Mohamed Haneef charge, which ultimately collapsed due to bungling in that bureaucracy. That is a big level of trust that you're asking from the public. Do you think you're going to receive it?
DAVID JOHNSTON: The police always have a very high degree of trust vested in them, no matter what functions they perform. These powers are necessary. I believe police are very worthy of these powers.
TANYA NOLAN: During the senate inquiry, Labor supported the proposed laws but this morning had nothing to say about the matter.
ELEANOR HALL: Tanya Nolan reporting.
The new laws - to be introduced into the Senate next week - would allow police and security agencies to secretly search people's homes and businesses, under a new type of warrant issued not by a judge but by the head of the police service.
The person being investigated would not be informed about the surveillance for at least six months. The Federal Government says the laws, which have been dubbed "sneak and peek powers", are necessary, but critics say the Government is demanding a huge level of public trust at a time when that's been diminished by the handling of the terrorism case against Dr Mohamed Haneef.
Tanya Nolan has our report.
TANYA NOLAN: In light of current events, it's hardly surprising that any proposed new laws to fight terrorism and other serious crime would be carefully questioned.
The spectacular collapse of the case against Dr Mohamed Haneef in what was a test case under the new terrorism laws has created a heightened level of scepticism over the system in place to investigate criminality.
But Justice and Customs Minister David Johnston says the failure of the Haneef case shows precisely why new laws are necessary.
DAVID JOHNSTON: Well, you've seen in the Haneef case a situation where phone calls have been received at a very, very important time during the inquiry. Now that is precisely an example of why we would want to use the powers.
TANYA NOLAN: Those powers include the use of "delayed notification warrants" to be issued by the head of the Federal Police or a security agency instead of a judge. And they would give investigating officers the right to use a false identity to enter and search a person's home or office, seize their computer or other communications equipment, and plant listening devices. That lack of judicial oversight has many in the legal fraternity worried.
Former Supreme Court judge, John Dowd, President of the International Commission of Jurists, says it leaves the system open to abuse.
JOHN DOWD: The justification for avoiding judicial oversight is that judges might leak. That's an absolute nonsense. The courts and judges don't leak on this sort of information and haven't for years on the hundreds of warrants issued every year.
TANYA NOLAN: The Minister argues, though, that there can be no room for risk when you have officers' lives in danger in undercover situations. So he's not even prepared to allow for a minimal risk.
JOHN DOWD: Well, I would've thought the police department itself has shown it's more likely to leak as the Haneef business has shown than judicial officers who do this everyday.
TANYA NOLAN: Senator Johnston maintains that any risk to undercover operations is unacceptable.
DAVID JOHNSTON: I believe that these laws are necessary to completely eliminate the risk of information flowing to the wrong hands and compromising and jeopardising the safety of these very dedicated and hard working officers.
TANYA NOLAN: But how would a judge compromise their safety?
DAVID JOHNSTON: Judges don't compromise the operation, and I don't want to be seen to be saying anything like that. Judges do not. But judges, in a court, are surrounded by an apparatus that seeks to facilitate them doing their duty.
The risk of having a broad network of people involved in knowing about and being aware of these operations prior to them and during them being carried out is unacceptable in the Government's perspective.
TANYA NOLAN: The other part of the proposed laws that has raised some worries is that the person being investigated wouldn't be notified for at least six months, and that could be extended for more than 18 months at the Government's discretion.
A Senate inquiry into the proposed new laws recommended earlier this year that they only apply to cases of terrorism. Senator Kerry Nettle says the Greens will be opposing the bill because the powers are far too broad.
KERRY NETTLE: That's one of the concerns that the Greens have, is that we're seeing yet again a piece of security legislation being brought in without the sort of justifications for its use that we think are appropriate and it has a very broad scope.
Now, we saw for example in the case of Dr Haneef - he was held for 12 days without charge. Now when the Government introduced that legislation, they told the Parliament that it would be extraordinary if somebody was held for more than 24 hours. And on the first time it was used, it was used to hold somebody for 12 days without charge.
TANYA NOLAN: The bill also provides immunity from prosecution to undercover officers and civilian informants, and for the first time, will allow foreign investigators to take part in operations using false identities.
Senator Johnston says these weapons are necessary in the arsenal of a modern police force.
(To David Johnston) You're asking the public to invest a lot of trust in the Government, the police, the security agencies, in light of the collapse of what has been a case in terrorism with the Mohamed Haneef charge, which ultimately collapsed due to bungling in that bureaucracy. That is a big level of trust that you're asking from the public. Do you think you're going to receive it?
DAVID JOHNSTON: The police always have a very high degree of trust vested in them, no matter what functions they perform. These powers are necessary. I believe police are very worthy of these powers.
TANYA NOLAN: During the senate inquiry, Labor supported the proposed laws but this morning had nothing to say about the matter.
ELEANOR HALL: Tanya Nolan reporting.
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