Once again, our media has failed us when it comes to protecting our civil rights. Everyone talks about rights and responsibilities these days, but the media has vacated the field on insisting that governments be responsible for the protection of our liberties, rather than take advantage of fear to trample them under cover of the war on terrorism.

I noticed this sad development early this year when the federal government put out its proposed laws creating the criminal offence of “a terrorist act”. A bit of it looked like closing down leaks to the media in the public interest. We jumped up and down – stories, features, editorials – and the government backed down. We then fell virtually silent on the potential for the law to create terrorists of our union picketers and political protesters, and to give the police complete discretion as to whether to charge people under normal laws or under the new, draconian provisions.

I wrote extensively on this issue in Webdiary at the time, and noted that despite the media’s lack of interest in standing up for our citizens, as distinct from its own interests, grass roots action and the core beliefs of backbench Liberals prepared to listen to the evidence of lawyers and community groups in a Senate inquiry saved the day.

Now the NSW Labor government wants to go much further than the federal law. It will countenance no inquiry. In the two weeks since Bob Carr released his proposals for sweeping new police powers and demanded that the Upper House make them law this week without any inquiry or request for public input, the media has been virtually silent, again. The opposition has not participated in a debate to draw out the issues. It looks like a fait accompli.

Is it the climate of fear since September 11, a fear intensified since the Bali bombings? Is it the stifling, dysfunctional, state of public debate in NSW? Has the media decided that in dangerous times it is an arm of government – its role to demand and foster trust in government whatever its flaws and whatever the dangers of abuse of power?

The legal profession has also failed in its role as watchdog of a healthy relationship between the state and the citizen. I think its key failing is its refusal to move from the position it takes in normal times, when the profession’s role is to focus only on protecting liberties. The argument – with which I agree – is that in the long term, our civil liberties are what makes us a democracy, and that the checks and balances of democracy are essential to preserving it. The bottom line, the truth of which is proved over and over by history, is an absence of trust in government, any government, to not abuse unaccountable power.

A new position is required in these dangerous times. In my view, it is the duty of government to do all it can to prevent a terrorist attack on our soil. If it didn’t, and people were killed in an attack, government would have no defence.

Bob Carr has two arguments which are unanswerable in the current climate. He must act to protect our safety. The matter is urgent – the federal government has told us it fears a terrorist attack here over summer. So, protection and urgency are rational, unarguable, reasons for emergency powers for police to break into our homes and search us without reasonable cause and without warrants.

To actively engage in and influence the debate, lawyers would have to move from their not-at-any-price argument to the position that in these dangerous times, maximum safeguards must be built in to the suspension of our civil liberties, to ensure trust in government, unity in defence of our way of life, and surety that our liberties will return when the danger has passed.

I don’t see how a government could successfully answer a thoughtful case along these lines. There is absolutely no justification for Bob Carr wanting to exempt his government from any legal scrutiny of its exercise of the new powers, its refusal to countenance regular public reporting of the exercise of those powers or parliamentary monitoring of its operation, or a sunset clause to enable vigorous public debate on the merits of and detail of the new laws.

No such case is being put by the media, the legal profession, or the NSW Opposition.

Here is a piece I wrote for smh.come.au on Friday.

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Be warned; Carr’s terror law is an abuse of power

By Margo Kingston

November 29 2002

Unaccountable power always produces abuse of power. Abuse of power means innocent people get hurt. It means people lose more trust in the integrity and trust worthiness of their government, and that they come to fear it instead. The deliberate or careless fostering of fear within a fearful community facing a terrible threat to its collective security is the antithesis of leadership, and a recipe for the disintegration of our democracy.

We live in a time of national crisis, when our safety is threatened by terrorist attacks without warning. Often the first instinct of government in such circumstances is to grant itself more power and control over us and to sweep away the checks and balances which keep government honest. There are three main constraints on this.

The first is the official opposition. The second is the power of the courts – the arbiter of disputes between citizens and the State – to ensure that the State apparatus acts within the powers granted to it by the people through the parliament. The third is open, public discussion on the merits of increasing state power and the accountability expected for its exercise.

Bob Carr released his Terrorism (Police Powers) Bill 2002 last week. It is a profoundly shocking document. It lets the people of NSW down, it betrays our democracy, and it lays the foundation for State terror on innocent citizens.

Bob Carr solemnly asserts that he is deeply committed to our freedoms and liberties. If this is so, I ask: Why do you exempt the police minister from any accountability whatsoever – by the courts or anyone else – for the exercise by your police minister of the new powers you want to give him? If you were committed to the protection of our civil liberties while ensuring our safety from terrorist attacks, wouldn’t you want judicial oversight? Wouldn’t you want a citizen who believed he was wronged the right to test the validity of Mr Costa’s actions? Wouldn’t you want to be sure that the new police powers you insist are now necessary are properly exercised, and not abused?

Remember, this bill gives any police minister, at any time in the future, these powers. This is a fundamental structural change in the relationship between the citizen and the State. Neither Australia or NSW has a bill of rights. When rights and liberties are removed in NSW, there is no way back.

Mr Carr wants to give the police minister, for now the confrontational, controversial and openly divisive Michael Costa, the responsibility for authorising what are, in effect, serial states of emergency. Target areas, people, and objects can be declared, allowing police untrammeled power to break into your home or vehicle and search it, and to frisk or strip search you. Giving any minister this power, let alone one with Michael Costa’s record, is too awesome to also give him total immunity from scrutiny. It’s called absolute power.

Section 13 of Mr Carr’s bill states: “An authorisation (and any decision of the Police Minister under this part with respect to the authorisation) may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court, tribunal, body or person in any legal proceedings, or restrained, removed, or otherwise affected by proceedings in the nature of prohibition or mandamus.”

There it is, in black and white. Michael Costa can, quite literally, do what he likes. You have no redress. Mr Carr has knocked out the judiciary as a check on power. What of the NSW opposition?

I spoke to the shadow police minister, Andrew Tink, today. He said he would not “go down the road” of commenting on Mr Costa’s record as police minister, or his actions regarding protesters against the WTO two weeks ago. He opposed requiring an independent person to oversee the police. “In the terrorist situation there has to be someone exercising the powers.The police minister is the logical office holder to do it,” he said.

His only amendment in this regard will be to make the police minister subject to the jurisdiction of the Independent Commission Against Corruption. He is otherwise happy with Mr Costa’s immunity from accountability. He said the opposition had not decided whether or not to pass the bill if his amendment failed.

Not only does Mr Carr want unaccountable police powers put in place, he doesn’t want to give the public the right to know what’s happening under them. He wants secrecy, too, another subversion of a key mechanism to maintain our democracy, that of transparency and public debate.

There is no requirement under the bill to report to parliament or the people on what authorisations have occurred, what they involved, and the results of them. Mr Carr’s lack of good faith is also proved by the fact that he wants the bill rushed through parliament next week without ANY inquiry to allow public discussion and input, and with no sunset clause.

Given that emergency powers need to be rushed through, wouldn’t a Premier deeply committed to our liberties and freedoms order an immediate parliamentary or independent inquiry to report back so considered legislation could be passed to replace the emergency laws?

No. Mr Carr wants these police-state powers to remain on the books indefinitely. I asked Mr Tink why the opposition would let the bill pass without a sunset clause to allow an inquiry. “Because I believe we face an emergency terrorist threat,” he replied. I suggested that given this, there was no reason not to pass the bill as a temporary measure now, with a sunset clause. He said he was happy with section 36. It says: “The minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives”. (He is to table a report within a year of each years review.)

So, the police minister reviews himself and reports to parliament what he reckons.

Mr Tink believes this to be an appropriate way of ensuring that these emergency powers don’t stay on the books at the government’s convenience.

The opposition has bowed out of its democratic responsibilities.

We live in dangerous, frightening times. Emotions are high, prejudices aflame. There is deep division within our society on the correct approach to take to win the war on terror. The suspension of the citizen’s protection against abuse of State power may be necessary, but it is fraught with terrible dangers to the way of life we are fighting to preserve.

There are several, very basic ways to improve Mr Carr’s bill to ensure that our personal safety is protected without trashing our rights with impunity. The opposition, it seems, is too frightened to put them up or mount the case for them in the current climate. The lack of leadership in NSW has never been more obvious, or more dangerous for us all.