From: gbayley at ausmac.net (Grant Bayley)
Subject: Australia becomes a police state [serious]

[As far as I'm concerned, we should be taking this one off-list, and if
you want to, I'm happy to continue it there...]

On Fri, 6 Dec 2002, Silvio Cesare wrote:

> > Umm.  Not to rain on your Indymedia-inspired parade, Silvio, but have
> > you read the legislation, or any of the discussions in parliament
> > surrounding it?  Or have you only read the hyperbolic predictions of doom
> > that Indymedia agitators have made?  The single key point that seems to
> > be missing in Indymedia forums postings as of early this morning when I
> > last checked is that these powers are only intended to be invoked in
> > the event of a terrorist attack on the State.  Not for random
> > harrassment of random ethnic groups, raids on J Random Hacker, or raids
> > on political agitators.  Nor will graphing the local courthouse cause
> > these laws to be invoked.
> >
> > Please, read the legislation itself, and the parliamentary discussion,
> > then comment.
>
> [ everyone should read at least the direct discussion of the legislation,
>   the replies in parliment later are optional reading.. because it
>   states the obvious of a police state that we now live in. ]
>
> As per your request -->
>
> "
>        As defined, terrorism are those acts intended to intimidate the
>        government or the public and involving serious injury or danger to
>        people, serious damage to property, or serious interference with
>        an electronic system. Legitimate, non-violent protest cannot
>        trigger the proposed powers.
> "
>
> "
>        In cases where none of these officers are available, an officer
>        above the rank of superintendent, being a police senior executive
>        position, may authorise the use of the powers. This succession
>        planning will guard against a situation where the terrorist attack
>        targets or isolates the most senior ranks of NSW police.
> "

Example scenario:

A hijacked aircraft is flown into Governor Macquarie Tower in the middle
of Sydney.  The Premier, the Police Minister, the Police Commissioner all
lose their lives in the attack, as well as a number of other senior
members of the executive branch of Government and senior ranking Police
officers.  It is clear that in this scenario, the normal processes of law
must be upheld despite the loss of such key figures in the executive
branch of Government.

It is under such dire circumstances that these laws are intended to be
invoked.  I'm not sure how the statement above regarding "succession
planning where the terrorist attack targets or isolates the most senior
ranks of NSW Police" could be any clearer than it is.  Or to try and drag
this back somewhere towards a business paradigm - this is the business
continuity plan for law and order in NSW in the event of a crisis of
national significance.

> "
>        Clause 7 sets out what the powers are for. They are to permit
>        police to:
>
>    Find a particular person--a target person;
>
>    Find a particular vehicle or a vehicle of a particular kind--a target
>        vehicle, and
>
>    To prevent a terrorist act in a particular area--a target area.

Perhaps you'd prefer it if the Police were not empowered to do this?

Where would we be then?

Somewhere like Indonesia, where law enforcement and the military show
various signs of being an entrepreneurial occupation?

>    They may also be used to target specific premises, when a person or
>    place authorisation permits.
>    These different purposes recognise the range of possible scenarios.
>    Police might receive a warning that a particular type of vehicle will
>    be involved in a terrorist attack.
>    Or the information may be that a particular area is the target,
>    without telling us who or how it will be attacked.
>    The authorisation provisions are sufficiently flexible to allow
>    persons to be described--a photo or a drawing may be used for this
>    purpose.

I'd be interested to hear your alternative suggestions on how such
situations might be addressed.  Perhaps law enforcement shold just ignore
the warnings and let everyone go about their business?

>    The target area provisions extend to persons or vehicles about to
>    enter the target area, or persons and vehicles that have recently left
>    the area.

This is forensics 101.  Seal the area.  Prevent anyone from contaminating
it, or removing evidence of a crime.

> "
>    Clause 17 gives officers the power to stop and search a person if the
>    officer suspects on reasonable grounds the person is a target person,
>    the person is in a target vehicle or is in a target area.
>    Search powers may also be used in connection with persons found in
>    suspicious circumstances in the company of a target person.get,
>    The search may be a frisk search (running the hands over the outside
>    of a person's clothing), an ordinary search (jackets, hats, gloves,
>    shoes may be removed and examined) or it may be a strip search in very
>    limited circumstances.
>    Frisk searches and ordinary searches will generally be enough too
>    determine if the person is carrying a bomb or a gun for example.  left
>    A strip search is much more intrusive and will only be permitted if
>    Clause 18 permits a police officer to stop and search a vehicle, and
>    anything in or on the vehicle, if the officer suspects on reasonable
>    grounds the vehicle is the target of the authorisation, a person in
>    the vehicle is a target, or the vehicle is in a target area.
>    Clause 19 permits an officer to enter and search premises if the
>    officer suspects on reasonable grounds a target person is inside, a
>    target vehicle is inside or if the premises are in a target area.
>    Clause 20 permits an officer to seize and detain any item the officer
>    suspects could be used or could have been used to commit a terrorist
>    act.
>    The Government acknowledges the range of items seized could be broad.
>    This is because a terrorist attack could be made in many ways--with
>    firearms, explosives, gases or liquids.
>    It is appropriate that any article that an officer suspects should be
>    able to be seized for further assessment.
> "

This is still within the context of a terrorist attack having occurred.

Perhaps a suicide bomber in the middle of Pitt St Mall in Sydney.  Perhaps
law enforcement should simply allow people to go about their business and
just wait for the next suicide bomber to strike.  After all, we might hurt
someone's feelings if we checked that lumpy package strapped to their body
on their way into a crowded bar, or into the crowd of rescue workers
cleaning up the bodies from the first explosion.

Again, I'd be interested in hearing alternative approaches to dealing with
the potential for people carring weapons etc etc.

> "
>    Clause 22 makes it an offence without reasonable excuse to hinder an
>    officer exercising these powers--the maximum penalty is 100 penalty
>    units or 2 years imprisonment, or both.

Do you have a problem with this?

>    Clause 23 requires officers to identify themselves and give the reason
>    why they are exercising one of these powers, as soon as is reasonably
>    practical before or after exercising a power under the act. The
>    reasonably practical test is an important one--if police are trying to
>    manage hundreds of people after a terrorist incident, they may not be
>    able to provide this information in every case.
> "
>
> [ 2 years imprisment.. yet its not mandatory to identify yourself as
>   "police" -->

I can't say I agree with you here.  Which bit of "requires officers to
identify themselves and give reason why they are exercising one of these
powers, as soon as is reasonably practical before or after exercising a
power under the act" is unclear?

The comment below it is simply a reflection on reality.  If an officer is
tasked with exercising one of these powers on (quite literally) hundreds
of people at a time (for example, preventing residents from re-entering
an area in which a terrorist act has taken place), can you expect the
Police officer to tell each person individually, and make sure they have
understood it?

> "
>    Part 4 of the Bill permits members of law enforcement agencies of
>    other Australian jurisdictions to be authorised to use the powers.
>    This recognises that in an emergency situation, we want to maximise
>    our capacity to respond to a terrorist incident, especially in the
>    area of scarce resources such as specialist search units. Such an
>    officer ultimately remains under the command and control of his or her
>    home law enforcement agency.
> "

In the event of a major incident in which the senior ranks of the NSW
Police are targeted or isolated from their subordinates, it may be in the
national interest for law enforcement agencies from other jurisdictions to
take over these senior roles temporarily.

Again, this is simple continuity planning, and is predicated on some
pretty serious circumstances having occurred before being invoked.

> > It makes no sense to do otherwise, surely?
>
> The terrorist laws also apply to "serious inteference with an electronic
> system" - so computing "crimes" are now formalized as being involved
> as a primary terrorist problem.

At a Commonwealth level, such electronic interference was already covered
in the Cybercrime Act, 2001 (proposed long before September 11th, but
passed after it).  NSW's own Crimes Act amendment from the same year also
covers electronic interference.  Both pieces of legislation have been
extensively covered elsewhere.

Would you assert that, for example, deliberately bringing down the call
routing capabilities of a phone network such as Telstra in the midst of
such a crisis should not be dealt with as a "primary terrorist problem"?
If not, how should it be dealt with in the midst of such a crisis?

> > I'm still not sure why this is on full-disclosure, though...
> >
> > Grant
> >
>
> Lets listen to some politicions -->
>
> "
>    The Hon. RICHARD JONES [9.12 p.m.]: Indeed, we are moving inexorably
>    towards a police state, and the New South Wales Minister for Police
>    would be very happy if that were to happen. He is the worst Minister
>    for Police that I have encountered in more than 15 years in this
>    Parliament. He is a very aggressive man who should not be in the
>    position of Minister for Police. His appointment shows the danger of

[snip]

>    restrained, removed or otherwise affected by proceedings in the nature
>    of prohibition or mandamus. These are extraordinary powers--quite
>    extraordinary. We must remember that many Australians died for freedom
>    in this country, yet it is proposed that in an instant we should allow
>    those freedoms to be frittered away in this House.
>    The limitation of clause 13 is exacerbated by clause 29, which
>
> ...
> "
>
> ^^ goes on for a while.. check it out yourself.

Oh, I have.  Lots of good opinions and discussion.

But ultimately this legislation passed, and I'm sure we're in agreement
that having passed, we both hope that circumstances never arise whereby
the powers provided to law enforcement in this legislation need to be
invoked.

Grant

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