Agencies tapped for misuse of powers

TELEPHONE surveillance is more widely used and abused than ever.

IT is the silver bullet in the weaponry of Australia's various law enforcement agencies. The power to intercept private telephones - to permit the secret surveillance of citizens - is meant to give organised crime investigators and counter-terrorism agencies a special edge.

Their penetration is increasingly pervasive and cloaked in secrecy. Hundreds of mostly banal conversations are being secretly recorded even as you read this sentence. Some of the targets will be talking about the footy. Some may be plotting a serious assault or murder.

Attorney-General Robert McClelland's office quietly oversees the use of more than 3000 warrants every year to tap thousands more telephones under the federal Telecommunications (Interception and Access) Act for an average of at least 60 days, around the clock.

More agencies are receiving the vast tapping powers enshrined by the TIA Act - Queensland's Crime and Misconduct Commission is the most recent beneficiary, taking the number of agencies to 15 excluding ASIO - and tapping is increasingly routine.

It follows that more arrests, prosecutions and convictions should be achieved.

But something else is happening. The potency and efficiency of telephone tapping appears to be waning. Fewer criminals, corrupt cops and terrorists are being caught red-handed by their digitally recorded oratory.

For crime-fighting agencies wedded to intercepts the risk is a trend where more taps and greater powers equals fewer prosecutions and convictions.

One reason is that criminals and corrupt police, acutely and increasingly aware of the possibility that their telephones are being intercepted, take steps to avoid incriminating themselves.

Their heightened awareness is encouraged by the cavalier misuse of telephone taps.

It is misuse like the grandstanding of agencies such as the NSW Police Integrity Commission and Victoria's Office of Police Integrity in using office gossip and chit-chat from intercepts as salacious self-promotional marketing devices in public hearings.

Tim Carmody SC, a former head of Queensland's Crime Commission and a Family Court justice until his return to criminal law in 2008, tells Focus: "Telephone taps are like immunisation. The virus becomes aware of it and finds a way around it and then only the weak viruses are affected.

"Tapping should be a closely guarded secret but some agencies are using stuff in taps from low-level cases to add salaciousness and entertainment value to public hearings. They are dressing it up to get public attention.

"And that was always one of the great dangers and one of the arguments years ago when these powers were debated, that some agencies would abuse the powers and use them routinely. They should be reserved for organised and major crime at the level of those investigated by the Australian Crime Commission and its counterparts.

"Instead, some corruption agencies are giving criminals a head start. Smart criminals now assume their phones are intercepted. It is very counter-productive."

Carmody is critical of anti-corruption agencies that use private conversations of office gossip, swearing and sexual innuendo, with no relevance to a criminal matter or official wrongdoing, in public hearings. The strategy helps "sex up" mediocre investigations and persuade the gullible that the agency is making progress, but in the bigger picture it is a loser. It's like an aide-memoire to criminals all the time that says "don't use the phones".

In Brisbane this week at a cost of tens of thousands of dollars a day, the CMC held public hearings and played recordings from tapped telephone conversations (over objection from lawyers) in which Gold Coast police swore, talked about being drunk and throwing up in a police car,

and eating free burgers from McDonald's.

They smack of internal disciplinary issues remote from organised crime, raising the question why the CMC bothered. Fanfare from publicising near worthless taps such as these gives serious criminals a handy heads-up and a compelling reason to avoid using their own telephones.

Peter Moss QC, who oversees the NSW Police Integrity Commission, is one of the few statutory watchdogs to take a hard line to curb misuse of the silver bullet. The need for accountability, Moss says, recognises "that there is always a risk that an agency that is heavily committed to covert investigations, relies upon informants and possesses powers which are both coercive and of a kind which might involve substantial infringement of rights of privacy, may overstep the mark".

In a parliamentary hearing, Moss described his working relationship with the head of the PIC, John Pritchard, as civil, adding that "things do get a little heated sometimes".

Moss has been doing his job with fearless independence, rattling the PIC by highlighting the agency's bungles, beat-ups, probable breaches of the law and unfairness.

His most recent report, issued earlier this month, discloses that Moss has found the PIC has breached the law in its misuse of material from telephone taps.

He has sought advice from Commonwealth Director of Public Prosecutions Christopher Craigie SC on whether "proceedings should be commenced by the DPP against the commission or any officer thereof, and I am awaiting receipt of that advice".

This is a novel situation. In an era of "agency capture" in which the overseers of powerful agencies are more poodle than watchdog, one man in a part-time statutory role is foreshadowing prosecutions at one of Australia's most powerful law enforcement agencies, the PIC (which is effectively a standing royal commission), because of its misuse of product from telephone taps.

The findings by Moss began with a complaint from the NSW Police Association after the release of intercept material at PIC public hearings in 2007, featuring journalists talking to police, police talking to their partners and other civilians, and police talking to other police.

Most of it was puerile as evidence, but the content was disparaging and embarrassing to those tapped and those they were discussing. The formal complaint to Moss said in part: "Some of the content appeared a clumsy attempt to merely titillate or arouse the idle curiosity of the public."

The NSW Police Association's Peter Remfrey tells Focus: "Our complaints were largely directed at the inappropriate playing and distribution of the telephone taps where the material was not relevant at all to the investigation.

"It was salacious. It was entertainment. It was material designed in our view to get people's attention.

"Police recognise they have extraordinary powers and they are held to a greater accountability than other professions, but if you have an oversight body doing that role they have to demonstrate the behaviours they expect of the police they [oversee]."

As Moss makes clear in his report that followed his exhaustive investigation and review of legal cases, the principal purpose of the TIA Act "is the protection of private conversations from unjustified invasions of privacy".

Former High Court Chief Justice Murray Gleeson has summarised the TIA Act "to permit a certain form of intrusion upon privacy, but only subject to authorisation and to close control of the use that may be made of the resulting information".

The High Court has found that intercepts will inevitably capture the telephone conversations of many law-abiding citizens who "will have expressed themselves in a high expectation of privacy and confidentiality, about matters [that] are personal, potentially embarrassing, hurtful and destructive of relationships as well as banal and harmless".

Accordingly, the TIA Act has provisions to ensure a stringent control of the material and penalties when this is not observed. Moss determined that the PIC's use of the trivial telephone intercept material in its public hearings was not a permitted use and "could not, in my opinion, be justified on any basis".

His strong criticism of the PIC (which rejects the findings) included that it had acted contrary to the public interest, harmed reputations when there "never was a scintilla of evidence, not even an assertion of wrongdoing", damaged the working relationship between senior police, and undermined their standing in the eyes of junior officers.

Victoria's OPI, which broadcast many snippets of trivial office gossip (including the sexual preferences of a female officer) in its pursuit of former police union chief Paul Mullett and former assistant commissioner Noel Ashby, must be thankful Moss has no jurisdiction over the OPI.

Now that the genie is well and truly out of the bottle when it comes to telephone intercepts, the challenge for law enforcement agencies that have shot themselves in the foot is to demonstrate belated respect for their vast powers and the laws that are supposed to guide them.