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Police Powers (Surveillance Devices) Amendment Bill 2022

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Tuesday, 9 May 2023

Tags: Legislation, Police

Dr WOODRUFF (Franklin) - Mr Deputy Speaker, I thank the minister for bringing this on. We have a range of questions in relation to this very short amendment bill before us. It is important to understand the seriousness of the issue before us today and the quite shocking revelations when they came out last year in 2022 where we came to understand that covert listening devices had been used at the Risdon Prison and they secretly recorded a conversation between a lawyer and a potential witness in a murder appeal.

These were installed unlawfully under an invalid warrant and they recorded the conversations in the prison meeting room at the RPDC over a period of two months, not just the conversation that was targeted by the warrant but all the other conversations that were held; privileged conversations between lawyers and their clients, as well as private conversations between inmates and people from service organisations such as Centrelink and other support organisations.

When Supreme Court judge, Michael Brett, gave his decisions for discharging the criminal case against the lawyer, Jeffrey Ian Thompson, on 8 August last year, it was because there were two counts of the course of justice being perverted, and it is pretty important to reflect on the fact that the case against the lawyer, Mr Thompson, was dropped after Justice Brett found that the evidence against him had not been legally obtained by Tasmania Police.

Effectively what happened then is that while Mr Thompson pleaded not guilty on both counts, he was due to stand trial and the case was dismissed, which effectively did not enable the state of Tasmania to mount the case they had been preparing to take. We of course make no comment about the case at hand, it is just that it was not able to progress.

There were five judgments that Justice Brett made. We found that in 2017 the devices were installed and were there over that two month period. Justice Brett found that an error had been made in the warrant issuing because it failed to properly specify the alleged offence in respect to which it was issued. There was a subsequent judgement where Justice Brett ruled the evidence obtained by police had to be excluded from the case because, in his view, the desirability of including it was outweighed by the importance of protecting the privacy of other lawyers and their clients in unrelated conversations.

Those conversations, although entirely unrelated to Mr Thompson's case, were protected by legal professional privilege, or were they? That is the question, Mr Deputy Speaker, because we are yet to understand what happened to the recordings, what was recorded, how the invalid warrant was obtained, what breakdowns in process occurred for that to happen and what happened with the recorded information, who accessed it or did not access it, where it was stored and where it is or is not still stored.

Protecting evidence and the collection of evidence is fundamental to the functioning of the justice system and the role of Tasmania Police in this and the failure to act according to due and proper process has had an impact, at least to some extent, on public confidence in how our criminal justice system is administered. Everyone would agree it was a grave error and it is in all of our interests to understand how this occurred because it was a loose action by Tasmania Police that we expect inadvertently undermined the effectiveness of justice in Tasmania, at least in one particular case and it caused that case to be inadmissible. That is why we need to have an arm's-length investigation to restore public confidence and the faith of the legal profession and their clients.

That brings me to the terms of reference and the inquiry that is waiting on this amendment bill to pass in order for it to proceed. I will get back to that, but the Greens are on the record of having some concerns about the fact that the inquiry, which will be undertaken by the Solicitor-General -

Ms Archer - Former.

Dr WOODRUFF - I beg your pardon, former Solicitor-General, is not sufficiently at arm's length and it would have been preferable in our view to have had a process that was entirely independent of Tasmania Police.

I want to put on the record that there is a much wider conversation here and it is about the public understanding and having a reasonable belief that the investigation that is undertaken will absolutely clear, once and for all, any questions about the issuing of warrants, the taping of information secretly and the manner in which that information is stored, held and accessed. It is incredibly important for people to have confidence. Every day we have more erosion of our faith in data collection and storage systems. It is really serious for people to have digital information misused and used to take our identity, to take our finances and to misrepresent us, but it is another matter if it would in any way influence the course of justice.

Justice Brett made the comment that he listened to the evidence provided by a technical services police officer and that person accepted that he had the capacity to turn the surveillance devices on and off - those that had been installed secretly in the RPDC meeting room - to prevent them recording except at times that were relevant to the investigation, but said they were left on in case technical issues arose or if there was insufficient time to get into the prison to access the equipment prior to a scheduled meeting. Justice Brett said he did not find that explanation 'persuasive' and said:

Police were always going to have significant notice of any relevant conversation and be able to gain risk-free covert access to the relevant room with the cooperation of the authorities.

He also said:

It is obvious that any meeting between Gleeson and any person of interest would need to be scheduled with prison authorities well in advance. I think it is far more probable the pressure of work simply meant that it was easier to leave the devices running than to switch them on and off before and after each relevant conversation.

Justice Brett concluded by saying:

The upshot was that there would have been many sensitive and privileged conversations between lawyers and their clients and perhaps other private conversations which were completely irrelevant to this investigation that were recorded.

This review of the use of surveillance devices in prisons needs to attend to questions, if that is the case, of resourcing. The question of the implication of Justice Brett's comments or the evidence that was provided that things were left on in the meeting room because of the lack of time to get access to the equipment prior to the meeting need to be challenged and investigated. Justice Brett concluded that was unlikely and implausible. We need to have a full investigation of the actual people and the decisions that were made, not just of the generalities about processes but the specific instance of what happened at the start and across that two-month period to be fully confident that the review has done its job.

The judge did note the mistake in the warrant had been inadvertent, that was his conclusion, with police believing they were acting lawfully and having made a genuine attempt to obtain the relevant lawful authorisation. He also accepted that police did not monitor or download other conversations although, in his words, clearly there was that potential.

Justice Brett accepted what the police said, but the review needs to investigate whether there was any monitoring or downloading of other conversations. That was evidence that was provided in that particular instance to Justice Brett. That needs to be checked. They are simply the words of the particular person who gave it. We need the evidence that that did not happen.

Justice Brett also said that the magistrate was not told the surveillance devices had been used to record continuously and in Justice Brett's words, that was a matter of significant concern. We need to know why that was not told to the magistrate. Why didn't that happen at that point? There needs to be an investigation of the use of that surveillance recording information and how it was used to attempt to mount a case which ultimately fell over because of the invalid warrant, to mount the prosecution's case.

There have been some concerns about the actual amendment bill before us and whether it is needed and whether it opens the door wider than is appropriate. I will make a couple of comments in relation to that. The Commonwealth Ombudsman released its annual report in March this year and was tabled in the federal parliament for the period July 2021 to June 2022, covering the records of the period before that which is July 2020 to June 2021. It covers the management of the agency access to stored communications across a period between 2018 and 2022, when the case came to court and this issue became public.

In the Ombudsman's report there are a couple of things which are relevant to the bill. The first, on page 9, is about the culture of compliance. They assessed compliance with the act against their inspection criteria and undertook a specific example for a specific case study of Tasmania Police improving compliance culture. They said:

Prior to our 2021-22 inspection period, Tasmania Police received three formal reports from our office regarding serious or repeat issues of non-compliance in the use of powers under chapter 3 and chapter 4 of the Act. Following our 2020-21 report Tasmania Police dedicated effort to improve stored communications and telecommunications data governance and address the previous recommendations, suggestions and better practice suggestions. On our 2021-22 inspection we found Tasmania Police had undertaken significant work to improve policies and guidance related to stored communications and telecommunications data, developed training that covered chapters 3 and 4 of the Act, and updated templates for applications and warrants. Tasmania Police sought advice from our office on proposed changes to their system, including improving that Tasmania Police's recording of authorised offices consideration of privacy, relevance and any other requirement, under chapter 4 of the Act. As a result, we made only one finding on this inspection relating to Tasmania Police's access to stored communications, stemming from a self-disclosure by the agency, which we believed the remedial action already undertaken would address for future inspections. The significant reduction in inspection findings in 2021-22 reflects the work of Tasmania Police in improving its stored communications and telecommunications data regimes.

Well, that is good news. It is clear from the tables throughout the Ombudsman's report that, on a number of other matters relating to the storage of stored communications and that the recommendations from the federal Ombudsman have gone down in the period of study, relative to the previous year. However, on page 40, use and disclosure record-keeping obligations: they describe the act's requirement for how information can be disclosed and prohibits the data to be used, or disclosed outside of these circumstances.

Once again, Tasmania Police becomes the pull-out box of note and unfortunately, they have found very serious failures in record use and disclosure by Tasmania Police. They said:

Over the previous two inspections we identified that Tasmania Police did not have clear procedures and guidelines for recording use and disclosure of telecommunications data as required under the Act. During our 2021-22 inspection Tasmania Police disclosed that telecommunications data stored on its systems is not able to be restricted to individuals, or teams, and there was no audit capability to be able to track which individuals have accessed specific records stored through the platform they were using. The primary repository for historic data returned from a carrier, once uploaded, was available to all Tasmania Police members with access to the system.

We also found there were no records to indicate whether Tasmania Police used or disclosed telecommunications data its members have access to. As such, we were unable to determine whether any use and disclosure that occurred was in the circumstances permitted under the Act. We recognise Tasmania Police is overhauling its governance framework for its use of chapter 4 powers. We suggest that Tasmania Police, as part of enhancing this governance framework, develop the procedures and guidelines for recording use and disclosure of telecommunications data. In response, Tasmania Police advised they have initiated modifications to their systems to enhance record-keeping, including the introduction of limitations on access to telecommunications data and recording of use and disclosure.

Mr Deputy Speaker, that was a long bit of information; but I submit that this review needs to look very closely at the Commonwealth Ombudsman annual report, just recently submitted, because it makes it very clear, at least on my reading, that in the period of this review, which is the 10 years from 2012 to 2022, in the majority of that time, if not all of that time, there would have been serious issues with the capacity for Tasmania Police to safeguard information in the system and make sure that it cannot be accessed widely. In fact, according to the Ombudsman, if the information - I do not know what part of the system - but they say very clearly that there is no way of auditing to track whether individuals have accessed specific records that have been stored and that information, when uploaded, was available to all Tasmania Police with access to the system.

We need to know what happened with the information from the two months of data that was illegally obtained; where it was stored; who had access to it; and how it may have been otherwise used. We are very concerned that the terms of reference as written 8 November last year, have the paragraph in the background context -:

Whilst the hard drive may have captured private conversations unrelated to the investigation and potentially conversations which were subject to legal professional privilege, they were not listened to or retained by Tasmania Police.

How can that statement be made, when the review has not been undertaken? There is clearly a problem there; there is clearly potential for prejudicing the outcomes, because it is prejudicing the sort of investigation that is going to be undertaken by the assumption that they were not listened to or retained by Tasmania Police. That is the point. That is what we need to determine, so that people can be confident that Tasmania Police would not in any way misuse information.

In saying this, I make no statement about whether Tasmania Police has done it or not. That is not the point. The point is we have to restore public confidence. It was a scandal and it was a grave breach, there is no doubt about that. In order to move on - and it sounds as though Tasmania Police has latterly become dragged kicking and screaming to where all the other states in Australia have already got to: which is looking at data stamping and recording, and having methods for determining who accesses data and at what time. That is a kind of minimum standard for data protection, and for evidence protection as well.

The question has been asked whether this bill goes more broadly than it should. We are comfortable that this is specifically targeted at the purposes of an inquiry or a review - the use of that protected information in a report in relation to an inquiry, review or investigation, and the use of that information and the publication of that information for the purposes of an inquiry and review that has been approved by the chief officer of the law enforcement agency.

However, we are concerned about the whole process of the review; and it would be in everybody's interests - especially Tasmania Police and the whole of the justice system - if we could have a clear, strong, warts-and-all assessment of what happened. It was in the past. It is possible to talk about the mistakes that were made; to look at what needs to change; to promise to make those changes; and show evidence and a timeline of action and the resources that we need to make sure it happens. That would be a good outcome; and if there was anybody who acted inappropriately, if there was any misconduct, for that to have a process within Tasmania Police that is appropriate to that action.

We strongly suggest that the issue of the data use and access systems, and the specific issues about the people who made the decisions, and understanding the detail about why those decisions were taken and why there was such a failure of process. Because, without that, we have already had one case dismissed because of evidence that was gathered from an invalid warrant. Nobody would want that to happen again. We certainly do not. If the minister is able to answer any of the questions that I have asked about those processes, I would appreciate it.

We will be supporting this legislation today, so that we can get on with the review - which is already now late. We would have thought that was something that would have been known earlier. But here we are, and I look forward to the minister's response.