With oversight lost, overhaul is needed

WE need to fix the problems with the abuse by secret agencies in obtaining secret warrants for telephone intercepts, listening devices and search warrants.

In fact, there is no supervision for the use of these warrants. They are signed by judicial or administrative officers and are never refused. Worse still, the affidavits provided by the agency in support of the warrants are never made public.

The circus the Victoria Police and Office of Police Integrity has descended to following the most recent bout of conspiracy and counter-claims would be comical if it wasn't a disaster for the integrity of the executive arm of government in Victoria.

Lost in the narrative about the wreck that is policing in Victoria is one sign of a system that is broken and abused. In 2009-10, the Victorian police and OPI applied for 424 phone-tap warrants. They succeed in 424 applications.

Any process that affects people's rights and institutional integrity of government and results in a 424-to-zip scoreboard is a sham. No independent judgment is applied to the process. Cut-and-paste hearsay affidavits alleging suspicion of serious criminal behaviour are met with a template answer: yes.

Phone-tapping can be a desirable practice, but tokenistic safeguards that purport to provide a check against executive abuse are always appalling.

Changes are needed to provide real checks against the type of overzealous and malicious use of phone taps alleged against the Victorian police and OPI.

Phone intercepts don't simply undermine the privacy of the targets, but more importantly curtail the privilege against self-incrimination and threaten the confidentiality of government communications at all levels -- including cabinet deliberations -- undermining the public interest immunity privilege.

Reports suggest one of the targets of the current wave of intercepts was a senior adviser to the Deputy Premier. If this is true, it is likely the Deputy Premier has also been recorded. His conversations would have potentially involved high-level government matters. There is a strong chance that deliberations involving the Premier have now been disclosed and to people whose jobs are the subject of cabinet deliberations.

Clearly a solution is necessary. This must be framed against the context of the failures of the current system.

There are two key proven ingredients to preventing abuses: transparency and accountability. Both are non-existent in relation to the phone intercept process. Permission to tap phones is obtained in a secret hearing; the information (on affidavit) supporting the application is never disclosed and there is no legal remedy to people whose phones were wrongly intercepted.

The High Court in International Finance Trust Company Limited v NSW Crime Commission recently held that the process of ex-parte secret hearings is so unfair that it is incompatible with the judicial function. Such proceedings can't be avoided in phone tap applications -- informing the target of the application would obviously undermine the probe.

But the only way to inject some fairness is to ensure that all such hearings are contested. The government needs to appoint an independent legal official who contradicts and opposes all intercept applications (a contradictor) to bring a level of rigour into the inquiry.

Additionally, all people who were the subject of taps need to be informed of this fact after the relevant investigation. At that time, they need to be provided with the content of the application used to obtain the necessary permission.

Further, all affidavits in support of warrants must be made available and admissible in court proceedings, subject to the usual rules of public interest immunity.

Finally, the government must legislate for remedies to be available to individuals who had their phones intercepted without appropriate cause.

Peter Faris QC, a senior criminal lawyer, is the former head of the National Crime Authority

Mirko Bagaric is professor of law at Deakin University