Noel Ashby phone tap data 'fed to government'

HOW far did secret pay negotiations picked up by OPI phone intercepts travel?

ON the morning of July 24, 2007, in the level-three conference room at Victoria's Office of Police Integrity, then deputy director of the anti-corruption body Graham Ashton led a key meeting of his investigators in the top-secret Operation Diana.

Operation Diana had been tapping the telephones of an assistant commissioner of police, Noel Ashby, for the previous seven weeks. It was time to review themes emerging from hundreds of hours of intercepts of office gossip, political speculation and police work.

Operation Diana was so confidential that even Christine Nixon, then chief commissioner of Victoria Police and Ashby's boss, and then deputy commissioner Simon Overland would subsequently say they did not know about it or its target, Ashby, until being briefed in September 2007.

To this day, Ashby does not know why the OPI obtained warrants to tap his telephones.

But the taps were producing a wealth of information; Ashby spoke often on his telephone and had a range of well-placed political contacts. The secret intelligence from the taps was supposed to remain highly protected. Under the Telecommunications (Interception and Access) Act, it is a serious criminal offence to disclose information from the taps unless it is for a narrowly defined "permitted purpose".

But Ashby and union boss Paul Mullett, former secretary of the Police Association, now firmly believe some of the information gleaned by the OPI from the taps found its way to the government. They suspect, though cannot prove, that some of the information may have even found its way back to them just weeks after the OPI's July 24 meeting through Nixon herself.

Many things discussed by Ashby on his telephone were acutely sensitive at a political level for Victoria's Labor government during the handover by premier Steve Bracks to John Brumby, who was sworn in on July 30, 2007.

There were hundreds of intercepts. But as the relatively small number of transcripts released by the OPI shows, Ashby was speaking regularly, and candidly, to Labor MPs, their political chiefs of staff and the feared union boss Mullett about the crucial enterprise bargaining process Victoria Police and Mullett were negotiating. Any escalation of tensions during the enterprise bargaining over the terms and conditions for more than 11,000 of Mullett's members could see police called to massive protest marches. Mullett, a tough negotiator, might order a withdrawal of police services if he did not get his way.

He was threatening to take these actions in some of his calls, which were tapped from August 21. The political damage could be immense. Accurate intelligence about the enterprise bargaining, and the police union's strategies, was very important to Victoria's Labor government.

Ashby and Mullett now say they have no doubt that intelligence from the taps on their telephones was passed, unlawfully, back to the political wing.

"I'm saying that information from the telephone taps done has gone to the government. There is now no question in my mind the government had the knowledge of it," Ashby told The Australian yesterday.

Until The Australian's disclosures about the outcome of Overland's decision to pass on secret intelligence from a telephone tap to kill or smother a potentially embarrassing story about himself from being broadcast on Radio 3AW's Rumour File, in August 2007, the idea that information from taps would also have been passed to the Brumby government had not been raised or pursued.

It is the elephant in the room, the spectre of political skulduggery that, if true, could spell trouble for Brumby.

If any political apparatchiks received intelligence from telephone taps, the questions over Operation Briars and Operation Diana will move to another level.

Mullett said yesterday he had suspected it for some time.

In the key OPI meeting with Ashton were senior officer John Nolan and investigators John Kapetanovski, Sharon Kerrison and Joshua Bernshaw. An OPI internal case log report states the meeting was held to "review call sequences of importance and conversation themes/threads required for briefs".

The case log documents that there were six "issues of immediate focus arising from the meeting". The third of those, the result of the taps on Ashby's telephones, was described as: "Leak of VicPol corporate information to TPA (the police union) - Vehicles, Higher Ed, EB (Enterprise Bargaining) etc." Put simply, the OPI's taps indicated to the OPI's investigators that Ashby was telling Mullett too much.

A fortnight later, on August 9, Nixon was attending a conference in Brisbane. Terry Moran, then the top public servant in Victoria (and now head of Prime Minister and Cabinet for Kevin Rudd), was also in Brisbane. There is no suggestion of wrongdoing by Moran.

Nixon, according to phone intercepts obtained by The Australian, made an unusual and concerned telephone call from Queensland on August 9 to Stephen Linnell, the then Victoria Police media director, in which she was reported by Linnell to have told him that Ashby was leaking the government's strategy to Mullett.

The OPI did not publicly release the transcript of Linnell's subsequent call that evening to Ashby, but the OPI's documented summary of the call has been reviewed by The Australian.

The OPI's summary states: "Moran is up in Brisbane with her and CCP (Chief Commissioner of Police) has been told that Noel has been meeting with Paul Mullett and telling him what our strategy is. Linnell told her that he finds that hard to believe as Noel doesn't know what their strategy is - he is the spokesperson.

"Linnell has defended (Ashby) as he's the spokesperson but he only runs off what VicPol tell him. Linnell tells (Ashby) that someone in government is having a crack at him - be careful with Foley (Martin Foley, now a Labor parliamentarian, then the chief of staff to the police minister). Linnell doesn't trust him. (Ashby) says he doesn't trust Foley either and he has been careful."

Ashby was closely involved in the enterprise bargaining because he had been Nixon's surprise appointee as Victoria Police spokesman for it in early May, after returning from an operation and a month's leave. "My brief was to keep the police union on side through Mullett to ensure there were no public shows of disaffection like street marches on Parliament House, or withdrawing their services illegally and being fined under the Howard government's Work Choices legislation," Ashby said yesterday. "If it went bad, there would have been a war between police and the new Brumby government."

After being tipped off by Linnell's call to him on the evening of August 9, Ashby telephoned Mullett and, as the transcript of their intercepted conversation shows, related the call that Nixon had made to Linnell.

Ashby said that Nixon was "wound up like a top" in her call to Linnell. The intercept transcript shows that Ashby stated in his call to Mullett: "She said, 'Ashby is informing Mullett about our strategy'. And Linnell said, 'Bullshit'. He said, 'I don't know the strategy, Ashby doesn't know the strategy, and that's probably good, but he doesn't, and he's been trying to find out the strategy but has been unable'. And she said, 'Yes, he came and saw me yesterday and said he was going to have a coffee with Paul and to see if he could find the strategy, and we're going to touch bases again'."

Later in the conversation, Mullett said: "I'm just wondering how Moran would pick something up like that. He wouldn't."

Ashby: "Would he? Would he?"

Mullett: "Unless - unless - unless, um, you know, Foley's loosely said that you and I have got a strong relationship in front of Moran, and Moran's then conveyed that to Nixon, and of course it becomes Chinese whispers at that point."

Ashby: "Yeah, well, it is Chinese whispers. I reckon that's what it is."

Graham Ashton, now the most senior non-sworn employee of Victoria Police, following his transition from the OPI to Victoria Police late last year, was cross-examined on September 5 last year by Ashby's barrister, Phillip Priest QC, during Ashby's committal proceedings. Priest: "Did the OPI ever provide information intercepted by virtue of telephone intercepts to any person, in connection with this case, other than in accordance with the (Telecommunications Intercept and Access Act)?"

Ashton: "No"

Priest: "Did the OPI ever communicate information derived via telephone intercepts to any person connected with the state government?"

Ashton: "I don't believe so, no."

Moran, now Secretary of the Department of Prime Minister and Cabinet, did not return The Australian's calls. A spokeswoman for Nixon said she was on holidays overseas and would not be available until next week.

The police-OPI taps on the telephones of Mullett and his delegate, Peter Lalor, also produced a wealth of intelligence on their tactics during negotiations.

All of Mullett's conversations with police union delegates, union lawyers and union negotiators involved in the industrial relations were recorded covertly from August 21, 2007.

All of Lalor's conversations had been recorded covertly since early 2007.

"It's my belief that sensitive communications between myself and others was being communicated to the Brumby government," Mullett said yesterday.