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Barry Lane
6 August, 2007  
Senator Waffle explains

Plenty of double-talk from “Justice” Minister David Johnston as to whether judges will be required to approve warrants under his new crime and terror laws. Fortunately hacks in the media are on hand to clear-up the confusion

imageWhen Roper told Sir Thomas More in A Man for All Seasons that he would cut down all the laws in England to get at the devil, the wily lawyer said to him:

“And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – Man’s laws, not God’s – and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

You might have seen the chilling PBS Frontline documentary on SBS (July 31) Spying on the Home Front. Here’s the transcript and it’s also available for your viewing pleasure on the PBS website.

According to the program intro, reporter Hedrick Smith presents …

“new material on how the National Security Agency’s domestic surveillance program works and examines clashing viewpoints on whether the President has violated the Foreign Intelligence Surveillance Act (FISA) and infringed on constitutional protections. In another dramatic story, the program shows how the FBI vacuumed up records on 250,000 ordinary Americans who chose Las Vegas as the destination for their Christmas-New Year’s holiday, and the subsequent revelation that the FBI has misused National Security Letters to gather information. Probing such projects as Total Information Awareness, and its little known successors, Smith discloses that even former government intelligence officials now worry that the combination of new security threats, advances in communications technologies, and radical interpretations of presidential authority may be threatening the privacy of Americans.”

It’s apparent from the program and recent Congressional testimony from US Attorney General Alberto Gonzales and others that since 9/11 Dubya has had the chainsaw working 24/7 razing laws by way of Presidential decree to get at those terrorist devils.

It now appears likely that any electronically generated message to, from or through America during the last few years has been secretly monitored by at least the National Security Agency or the Federal Bureau of Investigation. As the Frontline program amply demonstrates – “we have the technology”.

Given that the High Court, with the exception of Justices Kirby and Hayne, has now given Little Johnnie and (Fabulous) Phil Ruddock the go-ahead to follow Bush’s lead Down Under, what are freedom loving people to do? (Here’s a handy summary of the findings in Thomas v Mowbray.)

The land of the free and the home of the brave has a vintage Bill of Rights, but in the hands of carefully selected judges it doesn’t amount to a hill of beans. I see from The New York Times that even the Democrats in the US are falling over themselves to be tougher on terror than Dubya. For our part, we have little (Sir Echo) Kevvie Rudd.

Frequently we are warned that people like David Hicks, (Jihad) Jack Thomas and Dr Mohamed Haneef are front-line warriors in the war on terror and they deserve everything they get. In particular, that is fanned by the boy wonder editors at the local scrubber Rupert dailies, all of which suits Little Johnnie and his mates to a tee.

But unlike the US of A, we still believe (sort of) in warrants – and only judges or “Eligible Issuing Officers”, as they are quaintly referred to in the anti-terror legislation, can issue warrants.

Even that fraying certainty came further unraveled last week. Minister for Justice and Customs (the former Kalgoorlie solicitor and law-firm colleague of Julian Grill), Senator David Johnston, was forced to clarify things last Wednesday (August 1).

This followed the simultaneous publication in The Age and The Sydney Morning Herald of a story that said proposed new “sneak and peek” search powers that would enable the AFP to get inside your homes, computers and other communication devices could be exercised without judges issuing interception warrants. In fact, the story said, the police could issue their own warrants.

imageThe newspapers reported that Minister Johnston (pic) said that the lack of judicial oversight was justified on the ground that a court or judicial officer might “leak” news of the warrant.

“I don’t want to impugn anyone, but the security of these operations has to be pristine.”

The reports were based on a clear conversation that Tom Allard, The Sydney Morning Herald’s national security editor, had with Johnston.

Sometime during that day (still August 1) Johnston spoke to ABC reporter Nick Grimm, and confirmed the reports in the Fairfax papers:

“What they (the AFP) have said to the government is, look, it would be better if we could have a six month late notification regime oversighted by the ombudsmen and the Inspector General such that we can go into premises, we can download computer information without warrant in circumstances where we will get a warrant once the operation is no longer compromisable [emphasis added] ...

“The risk of having a broad network of people involved in knowing about and being aware of these operations prior to them and during their being carried out is unacceptable in the government’s perspective.”

Have a look at the transcript or listen to the tape and make sure I’m not going mad.

Shortly afterwards the minister issued a “clarifying” media release retreating from the stories in the Fairfax papers and his own interview with Nick Grimm. He now said there was absolutely no intention of taking the authorising of warrants, even “delayed notification search warrants”, away from judges.

“Suggestions that warrants will be issued by police officers themselves under these amendments is simply not correct. Warrants can only be issued by selected judges or members of the Administrative Appeals Tribunal…

“The purpose of these warrants is to prevent compromising investigations by suspected criminals tipping off their co-conspirators. The government certainly has no concerns about ‘leaking’ of details of warrants by judges or AAT members. It has great faith in these officers and that is why they are the sources to authorise the warrants.

“These types of warrants are subject to greater oversight than any others due to the fact that the Ombudsman is automatically involved at various stages of the delayed notification process.”

Here’s the minister’s media release.

Later in that day’s PM program, presenter Mark Colvin sought to clarify the minister’s comments. Johnston said that his remarks would have been “crystal clear” to anyone who read the legislation. Colvin pointed out the warrants could be issued by a member of the Administrative Appeals Tribunal, not all of whom are judges – indeed some are old Liberal Party hacks.

Colvin: “Quite a number of them are ex or retired brigadiers rear-admirals, air vice-marshals and so forth, people who might be more inclined to go along with the security state, if you like. You can easily imagine a situation where police would go ‘opinion shopping’ as it were, looking for someone like that rather than a judge.”

Johnston: “Mark, that is a terribly cynical perspective to throw on a situation where we are dealing with 10-year or larger offences…”

On my reading of the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill it seems “crystal clear” that the only requirement for judges or AAT members to approve warrants are for these “delayed notification search warrants” – i.e. warrants that don’t have to be served on occupiers of premises for up to six months after they were executed.

Further, as an extra little safeguard the minister can “declare” who is an eligible judge or AAT member to issue these special warrants, and they will then act in a “personal” capacity, not in the capacity of a court.

Judicial warrants are not required for what are called “controlled operations” and assumed identities, i.e. false identities by a law enforcement or security officers. Those are merely authorised by a senior person at the AFP or the ACC.

So the confusion may be understandable, particularly when you have a minister of Johnston’s calibre doing the explaining.

Fortunately, all was clear to The Australian’s legal affairs man, Chris Merritt. He cut through all the fog to get us on the right track, declaring that Johnston, “is not proposing, nor has he ever proposed to sideline judges and give police a free hand”.

Why would the senator need a spin doctor on his staff when he’s got Merritt working for him at the Oz?

If judges refused to be parties to the government’s scare campaign then characters like the block-headed Johnston would be left up the proverbial creek. Why don’t all those “eligible issuing officers”, who put their hands up to be part of Little Johnnie’s war on terror, withdraw their names from the list of warrant-authorizers?

In doing so they would force the government to be accountable for its paranoia and fear-mongering. Sooner of later the Howard regime will be staring the devil in the eye, with nowhere to hide.