More powers, fewer rights


The spread of coercive powers (in Australia) means the civil and legal rights you take for granted may not be as secure as you think, writes John Watson.


THEY can compel you to hand over evidence. You can be forced to answer questions in secret hearings and then prohibited from telling anyone about it. You may not be a suspect, but if you fail to comply you risk a long spell in jail.


These are coercive powers. Who has them? A surprisingly long list of federal and state agencies do.


Among the most powerful is the Australian Crime Commission, which made headlines with its report on doping and criminal links to sport. Chief executive John Lawler says the ACC used its ''full suite of powers'' for this, including more than 30 coercive interrogations in secret.

So why aren't any prosecutions under way? ''The purpose of such an operation is not to make arrests,'' Lawler told a Senate estimates hearing after the report's release this month. ''The purpose is to understand the threat, risk and vulnerabilities [in sport].''

Malcolm Stewart, vice-president of the Rule of Law Institute of Australia, says the commission is ''the most secretive body in Australia'' after the spy agencies. Yet, he says, it released a report based on incomplete investigations and untested intelligence. ''I can only describe that report as a smear on sport in Australia.''


The question some people are asking is whether the results of the ACC investigation justify the use of coercive powers, such as denying someone the right to silence.


In the last parliamentary sitting year, another eight Commonwealth acts were passed that nullify that right, according to the Institute of Public Affairs.

Stewart says rule of law principles are not adhered to as much as they have been in the past. ''You see this massive spread of powers governments are giving themselves.''


How draconian are Australia's security laws? Stewart is blunt: ''We are the worst in the [Western] world.''


The Rule of Law Institute was set up in 2009 in response to the growth of agencies' powers ''in what we thought was an uncontrolled way'', Stewart says.

For example, he says, at one time state agencies had to prove a person was guilty before they could take punitive action. Now, in many circumstances, that person must prove they have not done anything wrong.


The reversal of the onus of proof began with the Tax Office and has spread to employment and unfair dismissal laws, occupational health, ''unexplained wealth'' seizure powers, and anti-discrimination legislation.


Chris Berg, an IPA research fellow, says: ''Regulators have just been thrown these extra powers that used to be the purview of law-enforcement agencies - powers that are often greater than police have.''


As coercive powers spread, the integrity of the rule of law is being discussed more frequently in legal circles. In several cases, the judiciary has ruled against measures that offend the rule of law, such as new laws on bikie gangs that restrict freedom of association and movement.


These laws have elements of the control orders adopted as anti-terrorism measures in Britain in 2005. Britain is bound by the European Convention on Human Rights and had to repeal the law. In Australia, such measures spread, ''with no protections as apply in the UK'', says Stewart. ''In the US, too, you have a much greater focus through the Bill of Rights on explicit legal rights.'' US agencies, for instance, are constitutionally bound to show probable cause to get search warrants.


As early as 2000, a Senate report found several Australian agencies had greater entry-and-search powers than the federal police. In 2001, the September 11 atrocities triggered a rush to boost the powers of security and law-enforcement agencies. Federal and state parliaments have passed about 50 anti-terrorist laws, the Law Council of Australia estimates.


ASIO, in particular, was transformed from a pure intelligence agency to one that can detain and interrogate anyone in secret. Some of its powers have rarely or never been used. Because of the risks of abuse, says Stewart, ''If powers have been used in circumstances that were not intended or if they simply have not been used, they should simply be removed.''


Similarly, organised crime and gangland violence have been invoked to justify having state crime and corruption commissions with the powers of a royal commission.


Joe Catanzariti, president of the Law Council of Australia, says it has long been concerned by the impact of coercive powers, especially when not limited to the most serious and complex cases. And many agencies' powers have little to do with terrorism or organised crime.


A 2008 Administrative Review Council inquiry into six federal agencies' coercive powers notes those agencies are responsible for revenue collecting (Tax Office), revenue spending (Centrelink and Medicare) and corporate regulation (Australian Securities and Investments Commission, the Australian Prudential Regulation Authority and the Australian Competition and Consumer Commission).


Other federal bodies with coercive powers include the Commonwealth Director of Public Prosecutions, the Australian Commission for Law Enforcement Integrity, the Commonwealth Ombudsman, and the Immigration Department.


The Howard government's Australian Building and Construction Commission had great power over industry workers, while the ACC's powers were extended to indigenous violence and child abuse. Even the Human Rights and Equal Opportunity Commission has some coercive powers, as does the new Clean Energy Regulator.


In Victoria, roughly one person a week has given evidence in secret hearings before the Chief Examiner (an independent office created in 2004 during gangland wars). Police can trigger the compulsory process by satisfying the Supreme Court other approaches have been exhausted.

Although admissions cannot be used directly in court, the use of leads that result is a grey area. The power to jail those who remain silent and then bring them back for questioning under threat of more jail time has been used.


Other state agencies with coercive powers include Victoria's Office of Police Integrity and its successor, the anti-corruption commission (IBAC), the Victorian Ombudsman and the Auditor-General.


Another development is the widespread sharing of information obtained by coercive means. New changes in the law allow the ACC to share its intelligence with police forces, customs, state crime commissions, government departments and private companies.


Civil Liberties Australia opposed the changes, describing the ACC as Australia's answer to the FBI and CIA, whose ''history of abuse'' sounded the alarm on sharing secret intelligence.


But others, such as Australian Olympic Committee chief John Coates, believe the Australian Sports Anti-Doping Authority's access to intelligence does not go far enough and want ASADA to be able to compel witnesses to give evidence.


Adding to civil libertarians' concerns is the lack of checks and balances on coercive powers. Their use does not even necessarily require court approval. The crime commission's board, for instance, authorises its use of special powers.


In 2002, as the ACC was being set up, the former chairman of the National Crime Authority, John Broome, warned a parliamentary committee the new governance structure institutionalised the ability of police to draw on ''fishing expeditions'' for intelligence and evidence.


The ACC board is chaired by the Australian Federal Police head and includes state and territory police chiefs whose own forces cannot compel suspects and witnesses to co-operate. The rest of the 15 board members lead agencies with coercive powers: the ASIC chairperson, the ASIO director-general of security, the ATO commissioner, customs chief executive and crime commission chief (a non-voting member). Every one, except for the secretary of the Attorney-General's Department, has an interest in the material turned up by coercive powers.


Civil liberties and legal groups say coercive powers are becoming a regular tool, which is eroding the common law right to remain silent.


Federal surveillance laws are even used by local councils, which have access to residents' mobile phone records over matters as trifling as unregistered pets, and Australia Post, which made 772 metadata requests in three years to June last year. The requests are self-authorised.


''There's no bureaucracy that doesn't want more powers,'' Berg says.


Coercive powers are rarely reduced, he says, and the more agencies have them, the greater the risks of abuse, especially when they are independent agencies cut off from traditional lines of ministerial and parliamentary responsibility. Stewart says it's hard to assess the uses of the powers, which are neglected in most agencies' annual reports. Even when abuses come to light, the righting of wrongs is rarely adequate. Secrecy provisions applied to an inquiry into the wrongful detention of Indian doctor Mohamed Haneef for 12 days in 2007 meant the exact roles of the AFP and federal DPP were never made public.


Just over two years ago, the Australian National Audit Office found that, in every one of 113 audited cases, Centrelink breached government investigation standards to extract information from people.


Actor Paul Hogan's battle with the Tax Office triggered a dawn raid on his financial adviser's home by 10 armed AFP officers. Hogan was barred from leaving the country when he was not charged with any offence.


Only in response to parliamentary questions on notice did the then Australian Building and Construction Commission admit it had relied on 203 defective notices to attend compulsory interviews, thus unlawfully forcing 203 workers to appear before it to give evidence in secret and without legal representation.


Corporate regulator ASIC can also compel people to answer questions under oath in private hearings in which rules of evidence and privilege against self-incrimination may not apply. In late 2010, then ASIC chairman Tony D'Aloisio confirmed in Senate estimates that coercive powers had been used 18,625 times in three years. Only then, in return for greater wire-tapping powers and access to phone records, did ASIC agree to improve its annual reporting.


ASIC's record is patchy when it comes under scrutiny. In one case, the judges even questioned the regulator's motives for its vigorous pursuit of Andrew Forrest's mining company Fortescue.


As Berg observes, the chipping away at the rule of law is happening at both ends of the ideological spectrum: a case can be made to control union thuggery as easily as for corporate skulduggery.


''The real worry is that governments are able to paint various sectors as obvious bad guys,'' he says. The public forgets the rule of law serves to ''protect the innocent''.


Stewart also blames political ''auctions over law and order'' for fuelling the growth of an ''incredible swath of legislation in this country''.


Berg says the ACC report has been ''a bit of a wake-up call to a lot of people'' and he hopes the ''extraordinarily aggressive intrusion on the liberties of sportspeople'' may be a turning point.


Might the spread of coercive powers now get more attention, or even be halted? ''We know that powers do get rolled back, but first there has to be substantial public pressure on politicians to do so,'' Berg says.


John Watson is a senior writer.

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