Speech on Adjournment – Tasmania Police Surveillance Practices

Mr President

I rise on adjournment to raise a serious current issue in relation to public confidence in the surveillance practices of the Tasmania Police and the administration of justice in this state.

The matter concerns the actions of Tasmania Police whilst undertaking an investigation into solicitor, Jeffrey Thompson, who at the time of being charged with Pervert the Course of Justice offences in August 2017, was working on matters related to the Sue Neill-Fraser case.

The actions taken by Tasmania Police in a surveillance operation relating to this matter have been identified as illegal, have significant implications in relation to breach of privacy and legal professional privilege.

Further, they are apparently an example of systemic failures and lack of compliance over time, have not yet been investigated, nor has an appropriately independent and comprehensive form of investigation been proposed by the Government.

This situation is entirely unsatisfactory, and jeopardises public confidence in the administration of justice in this state.

On 16 June 2017 Police utilised a warrant under the Police Powers (Surveillance Devices) Act 2006, issued by a Magistrate, to tape a meeting in a visitors’ meeting room in the Risdon Prison between Mr Thompson and a potential witness.

On 8 August 2017, Mr Thompson’s home was the subject of a search warrant and on 16 August 2017 he had charges laid against him.

Five years later, on 8 August 2022, after various court proceedings, the DPP decided not to pursue the charges against Mr Thompson.

After the Crown announced that it was not proceeding, Justice Brett of the Tasmanian Supreme Court released a decision on 25 August 2022.

His Honour found that the warrant was invalid on its face due to a serious defect.

The outcome of the decision was that it came to light that Tasmania Police had a listening device and an optical surveillance device running in the visitors’ room of the Risdon prison from 15 June to 17 August 2017.

In that period of just over two months, the room was used by numerous people, including members of the legal profession meeting with their incarcerated clients.

Mr President, this is a shocking invasion of privacy particularly when one considers the breach of legal professional privilege.

However, we must also ask – is the Jeff Thompson matter just the tip of the iceberg?

Mr President, we recognise the necessity of treating state surveillance of citizens with the utmost rigour and accountability.

The Second Reading Speech for the Listening Devices Bill 1990 stated

“It is the Government’s view that electronic surveillance is the greatest of all invasions of privacy”.

It was further stated

“It is the Government’s strong view that the practice of surveillance is incompatible with freedom of expression, freedom of thought and the important principles to which a free society must adhere”.

Add to this, the importance of respecting and enforcing legal professional privilege, and there is no room for complacency.

Mr President, understandably, there have been several calls for an Inquiry into the Jeff Thompson surveillance matter, including by local lawyers and their representative bodies.

The matter has received local and national media attention, including in legal circles.

It is readily apparent that a comprehensive, independent inquiry is the only way we can, with confidence, obtain answers to the myriad of questions that arise on this matter.

While I have pages of questions relating to this matter, I will mention here just a few:

• How was a warrant issued without a proper consideration of the extent to which the privacy of any person, including lawyers and their clients, was likely to be affected?
• How can such a serious violation of privacy and legal professional privilege have been allowed to occur over a 2-month period?
• Was the “protected information” obtained under this operation kept secure and was there compliance in this regard with the Surveillance Devices Act?
• Was the information quarantined when it was realised that conversations outside the scope of the warrant had been recorded and possibly monitored?
• Was the Tasmanian Ombudsman, as the inspection entity, notified of the breach?
• When did the Crown become aware of the invalidity of the warrant?
• What are the Tasmania Police procedures related to such matters, and why are they totally absent from the 477 page publicly available Tasmanian Police Manual?
• Why was the warrant not discontinued as required under s.16 of the Act when it became apparent that the warrant was no longer necessary?
• As required by s.29 of the Act, was a report made to the issuing Magistrate within the time stated in the warrant about the period during which the device was used and the names, if known, of any person whose conversations or activities were overheard, recorded, monitored, listened to or observed by the use of the device?

Mr President, this matter requires our urgent attention.

Of great concern is the fact that, as devices were left running for over 2 months at Risdon Prison, the material being monitored could be watched in real time by investigators on a computer in a room which was apparently only protected by a passcode.

There were said to be “at least” 5 investigators in that investigation team.

There were another 5 persons in the technical services unit.

Mr President, I am also highly concerned that this illegal surveillance activity and breach of privacy only came to light five years after it occurred.

It did not come to light through legislated reporting and accountability mechanisms, but through a protracted legal proceeding against an individual, which was later dropped by the state, but not before inflicting much damage on that individual.

What confidence can this chamber and the Tasmanian people have that similar warrants haven’t been authorised for use in prison visitor rooms previously or since this operation?

Justice Brett commented in his decision this year:

The evidence which was presented fell far short of satisfying me that police had any significant insight into these problems and their importance, nor that anything has been done since to address similar situations … There has been nothing presented to me in this case which would indicate that this or any other consideration has resulted in a more rigorous and careful approach to the protection of privileged conversations during covert investigations than that which took place in this case.

Mr President, we simply cannot allow these comments to fall on deaf ears, or to be brushed aside with a ‘nothing to see here’ attitude.

We must examine and question how effective are the accountability and oversight mechanisms that apply in Tasmania.

How effective have been the annual inspections and reports by the Ombudsman’s office into the use of surveillance devices? 

The reports are extremely brief and compare unfavourably to similar interstate reports.

How effective have been the reports by the Commissioner of Police to the relevant Ministers?

They too appear bereft of useful detail.

Perhaps it is time for more targeted and specific accountability mechanisms to be considered here in Tasmania, such as the Public Interest Monitor or Surveillance Devices Commissioner as in NSW, Victoria and Queensland, or the requirement for authorisation for a warrant to be from a senior officer, as in other states?

Mr President, since this matter came to light last month, Commissioner Hine has stated that this was a “technical” breach of legislation.

But I put it to you, Mr President, this was far more than a technical breach.

It involved the violation of a fundamental right to privacy of an unknown number of persons including the recording of legally privileged conversations.

I note that Commissioner Hine stated he welcomed an independent examination of the matter and welcomed any opportunity to ensure the transparency and accountability of the Tasmania Police.

Commissioner Hine announced on 31 August 2022 that there would be an “independent review” by former Solicitor-General Michael O’Farrell SC to “ensure that appropriate processes have been followed”.

This is Tasmania Police commissioning its own review of identified illegal activities and failures of process.

On the face of it, this is highly unsatisfactory.

• Who will determine, and what would be, the Terms of Reference of this proposed review?
• What public visibility and transparency will be attached to this proposed review?
• What formal powers would Mr O’Farrell have by which to acquire necessary documents, recordings and the like?
• Or will Mr O’Farrell only get access to materials Tasmania Police choose to provide to him?

Mr President, I also believe there is a question of perceived conflict of interest in relation to this Tas Police-commissioned proposed review.

In 2017, at the time of this gross breach of privacy by Tasmania Police, Mr O’Farrell was the Tasmanian Solicitor-General and in that role, was advising government agencies, such as Tasmania Police.

In fact, around that same time, Mr O’Farrell made his positive views on the capacity and processes of Tasmania Police quite clear.

Shortly after a meeting at which Robert Richter personally presented a confidential investigation dossier relating to the Sue Neill Fraser case to the then-Premier, the then-Acting Attorney-General and then-Solicitor General Mr O’Farrell, Mr O’Farrell sent a letter dated 16 May 2017 to psychologist and film maker, Eve Ash, stating that:

Any suggestion that Tasmania Police are somehow incapable of investigating matters of this nature is entirely rejected. The State has every confidence in Tasmania Police and its ability to investigate the matters raised in the report.

It was less than a month later that the warrant to bug Thompson in Risdon Prison was sought by Police and the two-month surveillance occurred.

Given this, we cannot avoid the perception of a conflict of interest in the proposed review by Mr O’Farrell, which renders this an inappropriate option for a credible inquiry.

Mr President, I call for Mr O’Farrell to step aside now from the inappropriate Tas Police-commissioned review, in the interests of confidence in the administration of justice in this state.

In making this call, I intend no reflection on Mr O’Farrell personally or professionally, but make it rather on the basis of the inescapable perception of a conflict of interest and the impossibility that it can be seen as appropriately independent in the eyes of the Tasmanian public or this Parliament.

Mr President, we have now seen a broader context of failings by Tasmania Police come to light courtesy of the Commonwealth Ombudsman.

Recent reports from the Commonwealth Ombudsman alert us to concerning transgressions by Tas Police in relation to stored communications and telecommunications data, which includes emails, text messages, images and metadata.

Tasmania has been singled out as the Case Study for a poor compliance culture in Commonwealth Ombudsman reports and has punched well above its weight when it comes to receiving adverse comment and recommendations for reform.

I refer members of this House to the article on this topic published yesterday by the CEO of Civil Liberties Australia, which you will find on that organisation’s website.

Mr President, we also have to ask ourselves, where is the Attorney-General in all this mess?

Her role as first law officer with primary responsibility for the administration of justice in this state, not to mention that she is responsible for administering the relevant legislation in this matter, places responsibility for an appropriate response from the State Government squarely on her shoulders.

Why is the Attorney-General not guaranteeing accountability and establishing a truly independent inquiry into the use of electronic surveillance by police in this Tasmania?

For that matter, why has the Police Minister not taken necessary steps in the interests of transparency and accountability to ensure an appropriately arms-length investigation or review?

Mr President, I believe we are left with only one credible and appropriate option to restore public confidence.

An independent inquiry commissioned by the Government to be undertaken genuinely at arms-length and with an appropriately comprehensive terms of reference to fully address the scope of this issue.

A Commission of Inquiry would be the most appropriate model for this work, as it would have sufficient powers to investigate, including calling for documents and holding hearings.

But, given one Commission of Inquiry already in progress in this state, I anticipate there would be reluctance from the Government to establish a second.

However, this should not mean that we turn a blind eye or provide an unacceptably lesser response to this identified illegal practice and evidence of systemic failures within Tas Police.

Another appropriate option available to the Government is to establish an inquiry to be undertaken by someone such as a respected retired interstate Judge who has no connection with Tasmania and with no pre-existing connections to Tasmania Police or the Jeff Thompson or Sue Neill-Fraser matters.

In the absence of a Commission of Inquiry, this is the only option that will serve to deliver full confidence to the Tasmanian people that the identified systemic and illegal practices of Tas Police are thoroughly investigated, and the legislative basis and reporting and accountability mechanisms are examined.

Mr President, to assist the Government, I propose the following Terms of Reference for a comprehensive and genuinely independent Inquiry:

Potential Terms of Reference:

To inquire into the practices of Tasmania Police in:

A. seeking warrants for the use of covert surveillance under the Listening Devices Act 1991 and the Police Powers (Surveillance Devices) Act 2005 (“the Acts”);

B. executing such warrants;

C. internal police oversight of the seeking and execution of such warrants, compliance with reporting mechanisms under the Acts, and other oversight mechanisms —

in particular, without limiting the scope of the inquiry, what the Tasmanian Government should do to:

1. better protect confidentiality, privacy, and privileges recognised in Part 10 of the Evidence Act 2001;
2. achieve best practice in the seeking and execution of such warrants, and oversight of the same;
3. eliminate or reduce conflict and duplication between statutory provisions under different Acts of Parliament governing the use of covert surveillance methods, in particular by the repeal of existing Acts and the enactment of a single Act of Parliament;
4. Investigate the enactment of specific statutory mechanisms to require notification to members of the public who have been the subject of improper or illegal covert surveillance methods, and recourse for the same.

The Inquiry is directed to make any recommendations arising out of its inquiry process that it considers appropriate, including recommendations about any policy, legislative, administrative or structural reforms.

 

Mr President, any inquiry Terms of Reference which falls short in its scope of what I have outlined here will be insufficient, and risks the perception of compromised accountability.

As a matter of urgency, a truly independent Inquiry must be established into electronic surveillance by Tasmania Police to ensure ongoing trust and confidence in the Tasmania Police and the administration of justice in this state.

Mr President, my thanks to Members for their attention to this matter and I await a response from the Government.