Secrecy stymies watchdog in probe over bugging of deputy police chief

THE Ombudsman in Victoria lacks powers to properly investigate the alleged wrongful bugging of phones used by former deputy commissioner Ken Jones.

THE Ombudsman in Victoria lacks the legal power to properly investigate the alleged wrongful bugging of telephones used by former deputy commissioner Ken Jones, his wife and a ministerial adviser.

Strict secrecy provisions shielding telephone tap intercepts as well as confidential affidavits used to seek such taps mean the Ombudsman would be stymied in investigating claims that Victoria's Office of Police Integrity has grossly misused its powers against Sir Ken, according to senior lawyers.

Ombudsman George Brouwer's office confirmed to The Australian yesterday that "under commonwealth legislation the Victorian Ombudsman does not have access to telephone intercept material".

Phillip Priest QC, a leading Victorian criminal lawyer, and Mark Le Grand, a former deputy director of public prosecutions for the commonwealth, told The Australian that the state Ombudsman's jurisdiction to do a thorough probe was in grave doubt. They examined the relevant commonwealth and state legislation yesterday.

Concerns the Ombudsman's investigation is compromised come after Baillieu government assurances appropriate agencies are investigating the allegations.

The concerns yesterday raise more questions over how the scandal engulfing Victoria's police and anti-corruption bodies will be satisfactorily resolved. "The real question is whether the Ombudsman would even have jurisdiction to fully investigate the alleged improper use of telephone intercept powers in Victoria," Mr Le Grand said.

"There is a substantial query as to whether he has the relevant powers, the jurisdiction and the authorities to undertake an effective investigation into telephone tapping. For a proper investigation, you really have to be authorised to access this material, but Victoria's Ombudsman does not appear to have the power."

Mr Priest agreed: "It is far from clear that the Ombudsman has the power to obtain telephone intercept material on my reading of the relevant legislation."

The Australian asked the office of Mr Brouwer, who formerly headed the OPI, to explain what powers he would rely on "in a hypothetical case".

The Ombudsman has not confirmed it is investigating the OPI's alleged abuse of its capacity to tap telephones. The OPI, accused of tapping Sir Ken's phones and others after a secret complaint by Chief Commissioner Simon Overland, has said it launched its investigation into Sir Ken "in good faith". A spokeswoman for the Ombudsman acknowledged that while it could not obtain telephone intercept material it may "investigate related matters".

"There is a distinction between circumstances surrounding the obtaining of a warrant and the material arising from the use of that warrant," she said.

These circumstances are understood to include the motives of those seeking a warrant to tap the telephones in light of claims there has been a campaign to smear Sir Ken's reputation.

But the underlying affidavits used to obtain telephone taps are secret under "public interest immunity" and senior lawyers also doubt that the document could be obtained by the Ombudsman.