Will COVID-19 Police Powers Creep Into Permanency, Just Like Terrorism Laws?

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COVID-19 Justice

The global spread of COVID-19 is hardly the first pandemic the species has faced. Probably the best known is the Black Death that spread through Europe, Asia and northern Africa in the 1300s. The chief measures to combat it were the same being taken now: quarantine and social isolation.

The current COVID-19 prevention measures have been enacted into law, under the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020. This was signed off on by NSW health minister Brad Hazzard at 10.20 pm on 30 March, while most of us were contemplating sleep.

The order contains two prohibitions now enforceable by NSW police. The first entails not being allowed outdoors with more than one other person outside of your immediate household. The second is a ban on being out in public without a reasonable excuse.

These temporary laws can result in steep penalties: either a fine of $1,000 for individuals who don’t comply, or if arrested and subsequently appearing before the courts, it can result in being sentenced to six months prison and/or a fine of $11,000.

But, the comforting aspect to these new draconian police powers is that there’s a sunset clause, meaning that there’s a specified date when they no longer apply. So, according to Hazzard’s health order, the new prohibitions expire on 29 June 2020.

Of course, that’s unless they’re extended, and perhaps even built upon, as has been the case nationwide with antiterrorism laws.

Curbing terror, eroding rights

Since the New York September 11 2001 attacks and the October 2002 Bali bombings, Australian governments of all creeds and levels, have been trigger happy when it comes to passing laws to prevent and punish terrorism, which have incidentally also eroded the freedoms of every one of us.

These antiterrorism laws were a reaction to a perceived threat, but as UNSW Law Professor George Williams has pointed out, unlike far reaching measures that were passed during wartime and ceased to apply in peace time, counterterrorism laws “have a sense of permanence now attached to them”.

As of mid-March, successive Australian governments had passed a total of 85 pieces of antiterrorism legislation at the federal level, and there were another five bills on the boiler. While state governments have been quite keen in curtailing terror violence and civil liberties in a similar manner.

These laws were a response to turn of the century events. Yet, right now, two decades later, lawmakers continue to build upon this antiterror edifice to the point that following the AFP press raids, an article claiming Australia has become a creeping surveillance state was plausible.

A case in point

The month after the Bali bombings killed 88 Australians, then NSW premier Bob Carr introduced the Terrorism (Police Powers) Act 2002 (NSW) (the Act). And while the basis of this legislation was permanent, some of its provisions that were set to expire have simply continued on.

The Act conferred police with search powers that apply to a particular person, vehicle, or a premises within a target area to prevent an anticipated terrorist act. The premier of the time acknowledged that these were special powers, which involved the police minister signing off on their use.

Then, three years later, the Iemma government passed an amendment to the Act, which inserted the preventative detention order regime. It marked a much more extreme departure from your regular garden-variety criminal laws.

Preventative detention orders allow police to arrest and detain a person over the age of 16 years old for the period of 14 days without charge based solely on a reasonable suspicion that the suspect is planning to carry out a terrorist act.

Implementing similar laws was agreed to by all state premiers, territory chief ministers and then PM John Howard at a September 2005 COAG meeting. However, the federal government’s adoption only permitted a 48 hour period of detention, due to constitutional constraints.

Tightening the screw

In 2005, as preventative detention orders were ushered in, a sunset clause was added under section 26ZS of the Act, providing that these laws would be withdrawn in 2015. However, in that year, the regime was extended for three more years. While today, the laws apply until 16 December 2021.

And not only have NSW authorities repeatedly seen fit to keep these laws on the books, but in May 2016, the Baird government passed a further amendment to the Act, which introduced an even more draconian type of order, known as an investigative detention order.

These orders can see a person as young as 14 detained for up to 14 days without concrete evidence. And while a preventative detention order only allows for very limited questioning of a suspect, investigative detention allows for up to 16 hours of questioning a day.

And the sun never sets on the ability of NSW police to carry out investigative detention.

A distortion of intent

The warnings that Australia’s ever-growing antiterrorism framework could be turned upon its own non-terrorist citizens are often dismissed as the cries of paranoid ratbags. However, they’re nothing of the sort.

Take the metadata retention laws. Passed ostensibly to deal with terrorists, the regime came into force in October 2015. And by January the following year, it was revealed that 60 government agencies with nothing to do with intelligence or law enforcement had utilised the metadata laws.

While another instance of terror laws turned on citizens, involves the warrant served during the AFP raid on the Sydney ABC offices last June.

It allowed AFP agents to “add, copy, delete or alter” information on ABC journalists’ computers: a measure created by the Assistance and Access Bill 2018 (Cth), which is a piece of legislation apparently enacted to deal with terrorist threats.

It’s happened before

So, what does this all mean in regard to the increasing NSW police powers gained during the COVID-19 pandemic?

Well, the state government could easily argue in the wake of the crisis that scientists predict more of these pandemics are likely, and in order to be ready to guard against them, these new powers should be incorporated permanently into law, so police can pull them out of their hat when needed.

And then it would be up to how these laws could be interpreted and applied – whether that be on a community-wide health emergency or perhaps it could relate to a certain area where people were ordered to stay inside or better still, how about enforcing the laws on a particular group of people.

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

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