Media Release – Privacy Rights in Danger

Independent Member for Nelson Meg Webb said today the State is moving in the wrong direction when it comes to protecting the privacy rights of Tasmanians.

“With another damning Commonwealth Ombudsman report, legislation is set to be debated in Parliament this week to expand the discretionary powers of the police to use and share data,” Ms Webb said.

“Attempts to provide more discretion in Police use and disclosure of data is particularly concerning given the Commonwealth Ombudsman’s damning report tabled in Federal Parliament on March 7.

“Disturbingly, the report found access to telecommunications data stored by Tasmania Police couldn’t be restricted so was available to all Tasmania Police members with access to the system. On top of that there was no audit capability and no records to indicate whether Tasmania Police used or disclosed telecommunications data accessible to all members.”

Ms Webb said the Commonwealth Ombudsman has been highly critical of Tasmania Police in annual reports for the past 5 years.

“In some instances, the Ombudsman presented Tasmania Police as a case study for a lack of a compliance culture.”

Ms Webb said the proposed amendments to Tasmanian surveillance devices laws currently before Parliament were put forward in the fall out of the Jeff Thompson case, after Tasmania Police embarrassingly established a soft-touch review with a Terms of Reference not compliant with current laws.

 “We know that in the Jeff Thompson case, the continuous recording of conversations outside the scope of a warrant was a shocking invasion of privacy and breach of legal professional privilege. Tasmania Police hastily organised a soft touch review which would fail to examine compliance with the Act or police policy and procedure or investigate any misconduct or even interview the police involved.”

Ms Webb said proposed amendments currently before Parliament seek to interfere with the important protections afforded to electronic surveillance materials.

“The review as planned is so light-on it doesn’t meet the threshold for disclosing protected information. The Government is attempting to lower the bar and lessen protections for Tasmanians.

“These changes are entirely unnecessary. Instead, the Terms of Reference for the review should be beefed up to an investigation into possible misconduct by Tasmania Police – that was the appropriate scope for this review in the first place, it is already allowed under the Act with no need to water down protections.

“This review must answer key questions: What use was made of the recordings in the Thompson matter? What other private and privileged conversations may have been monitored, recorded or listened to? What use has been made of sensitive telecommunications data? Has there been compliance with the law or misconduct?

“Proposed amendments need to be scrutinised very carefully, our rights of privacy adequately protected, and a proper and independent Inquiry conducted into Tasmania Police and the broader issue of electronic surveillance.”

Link: Final-Commonwealth-Ombudsman-2021-22-Annual-Report-Stored-Communications-and-Telecommunications-Data.pdf) – see pp.40-42

Background notes:

• Jeff Thompson was a lawyer assisting with aspects of the Sue Neill-Fraser case whose criminal charges did not proceed when the Supreme Court found in 2022 that the warrant used for electronic surveillance of a prison meeting in 2017 was invalid. A listening device and optical surveillance devices were left in a professional meeting room and continuously recorded for a period of 2 months undoubtedly capturing a range of privileged conversations. There was also the capability to monitor any conversations in real time from an investigation room at the police station.
• TasPol established a ‘targeted review’ to be conducted by Michael O’Farrell SC, who had been the Solicitor General at the time the illegal surveillance occurred. Terms of Reference for the review were tabled in Parliament.
• Meg Webb made a speech to Parliament on the issue on 27 September 2022
• Meg Webb wrote to the Premier on 6 October 2022 asking for reassurances that was what was being proposed in the Terms of Reference (ToR) for the review tabled in Parliament was lawful in that the provision of “protected information” to Mr O’Farrell appeared to be unlawful.
• On 10 November 2022, Tasmania Police acknowledged that the ToR were flawed and that a legislative amendment was required. The Bill is currently before Parliament with consequent delays to the review (which was originally meant to have been completed by the end of 2022).
• Police have constantly maintained that there is “Nothing to see here” and that all is well in relation to compliance and accountability. The Terms of Reference even prejudged the outcome of the review by stating that other conversations captured over that two month period were not listened to or retained by Tasmania Police.
• In the period around the Jeff Thompson matter in 2017 (where Tasmania Police claimed all recordings unrelated to Mr Thompson had been destroyed) it was found by the Commonwealth Ombudsman that there were 53 instances of destruction related non-compliance and that none of those failures had been disclosed to the inspection entity.
• None of these deficiencies or failure to comply with Commonwealth law were reported in the Tasmania Police annual reports. It is an open question as to whether the Police Minister was advised of these concerning failures of non-compliance.

See more of Meg’s media releases.