Australia: Search Homes of "Suspicious" People

....police in this state will soon be able to enter adjoining properties
secretly, including those belonging to neighbours who have nothing to
do with the investigation. They will be able to impersonate other
people to get themselves in the door.

This week, the upper house of State Parliament is expected to consider
a law to allow police to enter in secret and search the homes of those
suspected of committing crimes. The bill was pushed through the lower
house this month and, assuming it passes, will allow general duties
police to use covert search warrants to investigate a range of ordinary
criminal offences, which can be heard by a jury and are punishable by
seven or more years in prison.

Not only suspected offenders and those suspected of helping them are covered - so are the neighbours.

Such intrusive and easily abused powers are currently limited to
terrorism-related investigations, and can be used only by the NSW
Police Counter-Terrorism Co-ordination Command and the NSW Crime
Commission.

Some of the offences covered by the laws are undoubtedly serious,
including homicide and kidnapping. But under the new regime, covert
warrants can also be used to investigate such minor offences as damage
to property - even unintentional damage - caused during a public
disturbance. If the Government was prepared to debate the bill
publicly, it might use the Cronulla riots as justification. It might
use the 1970s Springbok tour, the 1960s Vietnam moratorium marches, or
even the waterfront dispute.

Or perhaps, as the Police Commissioner, Andrew Scipione, said during
the APEC lock-down in September 2007, this is just the way we do
business in NSW now. If that is so, police in this state will soon be
able to enter adjoining properties secretly, including those belonging
to neighbours who have nothing to do with the investigation. They will
be able to impersonate other people to get themselves in the door.

They will be allowed to conceal that they have paid a secret visit, for
up to three years. What comfort to know that three years on, the
occupier is entitled to a letter in the mail saying the family home was
subjected to a secret and entirely legal break-and-enter by the
constabulary. Either that, or that they were conned into opening the
door by an undercover cop.

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.

On one view, the bill appears to be little more than a clumsy
overreaction to a setback police suffered in May 2007, when the covert
execution of search warrants relating to an alleged drug importation
went horribly wrong. The affidavit relied upon to issue the warrants
was sworn by Mark Standen, then assistant director, investigations,
with the NSW Crime Commission, now himself facing serious drug
importation charges.

In the Supreme Court, Justice Peter Hall held that although the
warrants were validly granted, their covert execution was unlawful. He
noted Justice Michael Kirby's remarks in an earlier case: that
protecting individuals' privacy against the arbitrary use "of the great
power of entry and search" is critical.

By applying the investigative techniques of counter-terrorism to
ordinary criminal offences, the bill strips away that protection. In
this, the state merely follows the Commonwealth's lead. In 2005,
anti-terrorism legislation introduced the power to obtain documents
from innocent third parties relating to a "serious offence", which it
went on to define as any federal offence punishable by imprisonment for
two years or more, other than a serious terrorism offence.

These developments follow a familiar pattern: when the US introduced a
law authorising the use of covert warrants in the wake of September 11
under the Patriot Act, it was not restricted to terrorism, but applied
to any federal offence.

Some may argue that the bill provides adequate protection, because
police seeking covert warrants will have to apply to a Supreme Court
judge. But only judges who agree to be nominated and are approved in
writing by the Attorney- General will be declared "eligible", and the
Attorney-General will be able to revoke a judge's eligibility at the
stroke of a pen. As a result, the bill risks chipping away at public
faith that the administration of justice is free from the taint of
executive interference.

Again, there is a precedent for this in the Commonwealth's
anti-terrorism laws. They introduced a similar mechanism of appointment
for those authorised to issue continued preventive detention orders:
the ones which allow a detained husband to tell his wife that he is
safe, but forbid him from saying anything further. Even the
Commonwealth did not give the Attorney-General power to revoke an
appointment at will.

The risk that long-standing rights and protection will leach out of the
general law, under the influence of anti-terrorism arguments, was not
unforeseen. When introducing covert search warrant provisions to NSW
for the first time in 2005, the then attorney-general, Bob Debus,
reassured Parliament they were not intended for general policing,
because general criminal activity as opposed to terrorism had never
sought mass-killing, widespread destruction, or wholesale disruption of
society. Debus observed that law enforcement agencies already had a
wide array of investigative powers.

While Queensland and Victoria have legislation authorising covert
warrants, the power is limited in Victoria to terrorism offences, and
Queensland has a public interest monitor. There are no such limits,
checks or balances in the NSW bill. Its cumbersome title, the Law
Enforcement (Powers and Responsibilities) Amendment (Search Powers)
Bill, is a misnomer: it is long on power, but short on responsibility.

Aeros wrote:We won't see this in the USA because its blatantly unconstitutional. Autralias government can get away with this however because their governmental framework is governed by British common law.

We will no doubt soon see this in Canada and the United States.