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The NSW anti-terrorism Bill: freedom mortgaged to buy votes

By Ken Parish - posted Tuesday, 26 November 2002

The Terrorism (Police Powers) Bill 2002, rammed through the NSW Legislative Assembly by the Carr Labor government in a single day last week, is a frightening piece of legislation which seriously erodes basic democratic freedoms and protections (though within a limited scope). I'm prepared to accept that some such powers might be necessary to fight terrorism, but this Bill is largely devoid of the basic protections necessary to prevent abuses of power and preserve democratic freedoms.

The Bill allows police to authorise the searching of persons, premises (where they might contain a "target" person) and vehicles without needing to obtain a search warrant from a judge or magistrate (as would otherwise generally be required). The regime is not subject to any independent judicial oversight at all, and is effectively immune from subsequent legal challenge or review.

The Bill allows the NSW Police Commissioner or Deputy Commissioner (or any police officer over the rank of Inspector in their absence) to authorise any police officer to conduct searches without warrant, and without any need for a reasonable basis for suspicion in relation to the person searched, for up to 7 days (extendable to 14 days). The Commissioner's (or Inspector's) authorisation must be taken with the concurrence of the Police Minister (currently the thuggish Michael Costa), although the Minister's concurrence can be obtained later if he is unavailable. That is, no non-political, independent judicial or other oversight of the process is involved, contrary to universal principle in relation to searches and warrants until now.


The Bill requires a "particular" person to be described in the Commissioner's authorisation, or a "particular" kind of vehicle. However, it contains no requirement about the degree of specificity of description that is required. A Sydney Morning Herald article about the Bill quotes Police Minister Costa as saying that descriptions such as "anyone who attended a religious lecture carried out by a particular person" or "of Middle Eastern appearance" would not be sufficient to permit widespread searches.

"It would have to go further in the detailing of that person. It may well be 'a Middle Eastern person with a beard and identification scarring'."

Unfortunately, that isn't what the Bill says. It simply says that the description in the authorisation must relate to a "particular" person. How particular? Who knows. Even if Costa's interpretation is accepted, it imposes few if any effective limits on the scope of police powers. For example, if we take Costa's example, a decision by a police officer to search a person of Middle Eastern appearance without a beard or scarring would probably not be challengeable, because police could argue that (a) they were looking for the identification scarring; and (b) the person might have shaved off his beard!

The lack of effective limitations on police powers is emphasised by a wide range of provisions of the Bill. First, the Commissioner's authorisation decision and Ministerial concurrence under the Bill are effectively exempt from any form of judicial review (except, on the current state of High Court authority, where they can be proven not to be "bona fide") (clause 13).

Second, police officers may exercise powers under the legislation "whether or not the officer has been provided with or notified of the terms of the authorisation." (clause 14). Third, an officer may search a person if "the officer suspects on reasonable grounds that the person is the target of an authorisation (or the person is found in suspicious circumstances in the company of the target of the authorisation)" (clause 17). Fourth, clause 29 protects individual police officers from civil or criminal action where "(a) there was an irregularity or defect in the giving of the authorisation, or (b) the person who gave the authorisation lacked the jurisdiction to do so".

The Bill contains extensive provisions supposedly regulating the way in which searches must be conducted. However, on closer inspection these are mostly window-dressing. First, as I've already noted, police can't be sued or prosecuted for failing to follow the procedures laid down by the legislation. Second, several of the individual procedural safeguards for searches have escape provisions that make the protections effectively meaningless. For example, the protections concerning strip searches (Schedule 1) are rendered optional by use of the words "as far as is reasonably practicable in the circumstances". Schedule 1 also permits police to strip-search children between the ages of 10 and 18 without a warrant (which is disturbing enough in itself). There is an apparent safeguard that a parent or guardian must be present, but it too is made meaningless by saying that parental presence is not required if it is not "practicable". No guidance is given as to what "practicable" might mean.


The Bill also contains extensive provisions for making sure the search powers can be exercised effectively. For example, authorisation of the use of force, and provisions for seizing, retaining and ultimately disposing of things seized during a search.

Gary Sauer-Thompson has blogged in general terms about the NSW terrorism Bill:

"My argument is that the hidden goal of all this is that of maintaining power within the state. The new security powers are being developed at a national and state level to protect us citizens in the Australian nation-state from the threat and dangers of international terrorism now inside our homeland. It is also the case that it is the power of particular governments that is to be secured through the deployment of extraordinary measures. To put it bluntly: conservative governments are using the terrorist threat to national security as a way to retain power and to push through a right-wing political agenda."

I mostly agree with Gary's observations, assuming that the NSW Carr Labor government is one of the "conservative governments" to which he's referring. I suspect in Carr's case, however, that there is no "right-wing political agenda" beyond simply retaining power. The passage of the terrorism Bill allows Carr to strike a tough "law and order" stance and avoid being tagged by the Coalition as "soft on terrorism".

It isn't, however, a Tampa-style "wedge politics" strategy. Carr isn't aiming to divide the Coalition opposition, nor to paint Opposition Leader John Brogden as "soft on terrorism". In those senses it's quite unlike what the Howard government did to Kim Beazley in the lead-up to the last federal election. What the strategy does do potentially, however, is to allow Carr to take advantage of the same phenomenon from which John Howard benefited: in times of crisis and uncertainty, voters tend to stick with strong, stable, tried and true leadership. That is how Carr is seeking to paint himself, and he's prepared to sacrifice some basic civil liberties in the process.

One slightly puzzling question is how Carr managed to steer such draconian legislation through the NSW Labor Caucus and persuade Members usually known for standing up on civil liberties issues to keep quiet. Meredith Burgmann is one obvious example. I suspect that some sort of behind-the-scenes assurances must have been given, to the effect that the powers are only intended as symbolic "law and order" window-dressing. The Bill requires the Minister to report to Parliament each 12 months on whether the legislation is still necessary to meet an ongoing terrorist threat (clause 36). I suspect dissident members have been told that the legislation will be repealed or substantially amended once the election is out of the way. I can't think of any other credible explanation for the acquiescence of leftist members of Parliament to such draconian legislation. The trouble with such assurances, of course, is that they can always be reneged on if desired (as Paul Keating discovered after he relied on a secret assurance from Bob Hawke on an entirely different subject).

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About the Author

Ken Parish is a Darwin-based lawyer and former Labor member of the Northern Territory Legislative Assembly. He now teaches (mostly public law subjects) at Charles Darwin University, where he founded Australia's first fully online external law degree program. Ken is no longer associated with any political party, describing himself as a "committed sceptic".

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