We need more accountability for phone taps to guard ciivil liberties

THE controversy over the tapping of the phones of departing Victorian deputy police commissioner Ken Jones, his wife and a Victorian ministerial staff member raises serious questions about the operation and accountability of Australia's phone tapping laws.

Phone taps in Australia are governed by federal legislation that has been in existence since 1979.

When the laws were introduced, privacy and civil liberties concerns were met with the assurance from federal government ministers that high-level judicial scrutiny would guard against misuse of the draconian new powers.

Through time that scrutiny has not been not particularly reassuring when telephone tap refusal figures are considered.

The most recent federal Attorney-General's Department annual report for 2009-10 on telephone taps shows 3589 phone taps were approved across Australia and only five requests were refused. In Victoria, no telephone applications made by either Victoria Police or the Office of Police Integrity were refused in the same period.

The entire process of the application, granting and day-to-day operations of phone taps is shrouded in secrecy.

Even when criminal defence lawyers try to test a phone tap validity in court they are met with police secrecy claims.

Phone tap applications across Australia are made in closed court with the only people allowed to be present being the sitting judge and the police lawyer. As a result, judges can have the wool pulled over their eyes and they are none the wiser. The only exception to this regime is Queensland.

There is no independent monitoring of how a telephone tap is actually used let alone whether, having regard to the high level of privacy intrusion that occurs during the currency of a tap, any useful criminal intelligence is being obtained.

The federal Ombudsman is able to inspect police phone tap documents to ensure proper records are being kept but the Ombudsman's powers are very limited.

And when it comes to police accessing phone call records there is no judicial involvement at all.

All that is required is a letter from a senior police officer to a phone company, which is then required to hand over to the police records of phone calls made from or to a particular telephone.

Recently, a Darwin journalist's phone call records were compulsorily seized by Northern Territory police without even so much as a magistrate's order being required.

This is effectively a totally unregulated procedure.

Greater accountability in the use of telephone taps and the burgeoning seizure of call charge records by police can be achieved by Victoria and all other states and territories adopting the Queensland system of the Public Interest Monitor.

Introduced in the mid 1990s by the conservative Borbidge government and continued by successive Queensland Labor governments, the PIM originally was used in relation to applications to Supreme Court judges for listening devices.

The background to the establishment of the PIM was a controversy similar to that now raging in Victoria over apparent misuse of listening devices by a Queensland law enforcement agency. Last year the PIM's role was extended to telephone taps.

The PIM and deputies are barristers in private practice. They cannot have a criminal law practice and are engaged part-time. Payment is on a sessional basis.

When Queensland law enforcement agencies are seeking a phone tap they must notify the PIM, who then appears before the judicial officer who hears the application.

Unlike Victoria and all other states where the phone tap application is one-sided, with only the police lawyer being present at the phone tap application, in Queensland the PIM appears against the police lawyer and can cross-examine the applicant police officer and make submissions to the judge about whether a phone tap should be issued and if so what conditions should apply.

Since its inception, the PIM has been welcomed by Queensland judges, many of whom were uneasy about the previous system. Queensland police have been working with the PIM for more than 15 years.

Phone taps came late to Queensland, having only been introduced in the past couple of years as the state government insisted that before phone tap powers were given to Queensland police and the Crime and Misconduct Commission, there must be a PIM role to guard against abuse.

The Howard government, prevailed on by the law enforcement community, would not agree to the PIM concept and it was only after Labor came to power that the federal government overrode law enforcement opposition and allowed Queensland to have a PIM role for phone taps.

The present Victorian telephone tap mess can be remedied by introducing a PIM role for phone taps.

There should be a similar PIM role in all other states and territories, including for federal law enforcement agencies.

The Queensland PIM has worked well for more than 15 years. It is an accountability measure that should be introduced Australia-wide.

Terry O'Gorman is president of the Australian Council for Civil Liberties and a criminal lawyer.