Phone tappingsurveillance technology

It might also be argued that the criminal wiretaps, and much police crime in general, is implicitly encouraged by Australian courts. Illegally obtained evidence has been traditionally admissible in Australian courts at the discretion of the trial judge.

Whilst those who obtain such evidence remain liable to criminal prosecution, seldom, if ever, does this occur. Meanwhile the fruits of these acts are often accepted. Australian courts have traditionally taken a lenient attitude toward police illegality. Their failure to affirm the law more forcefully may thus be interpreted as a subtle if perhaps unintentional, invitation to police crime. With neither Telecom nor the Australian Federal Police inclined further to pursue the illegal wiretapping matters coming to their attention, the enterprise might have continued indefinitely.

But some of those involved in the illegal interceptions or with access to tapes and transcripts thereof saw an opportunity at the very least to discredit political enemies through selective disclosure of materials. Selectivity was indeed the principle. Although police were aware by means of an illegal intercept that a senior NSW detective had warned a suspected drug dealer, Robert Trimbole, to leave Australia as he would otherwise soon be arrested, no action was taken, lest the existence of illegal intercept operations be disclosed.

Trimbole left Australia seven days later. In , a small number of tape cassettes and pages of ostensible transcriptions of telephone conversations were given to the press. From the publication of The Age articles in February which disclosed existence of illegal telephone intercepts, public attention focused not on the question of criminal activity by the NSW Police, but rather on allegations of improper conduct on the part of Mr Justice Murphy of the High Court of Australia.

She recommended that state police be requested to co-operate with Federal police in any subsequent investigations, and that state police be disciplined should it be established that they were involved in any unlawful telephone interceptions. In September the Stewart Royal Commission of Inquiry into Drug Trafficking requested that the New South Wales police supply details of telephone interceptions conducted during the period January to June , including the names of those personnel who may have been involved in the operations.

A number of serving and retired officers were interviewed, all of whom denied any knowledge of the interception of telephone conversations. Fearing the eventual mobilisation of the Federal Police and the execution of a search warrant, officers of the Bureau of Criminal Intelligence and the Technical Survey Unit located and destroyed all tapes and transcripts in their possession, as well as the equipment used in the intercepts. Following the appointment of the Special Prosecutor, Superintendent Shepherd decided that the Technical Survey Unit would cease its interceptions immediately.

Past and present members of the Technical Survey Unit met on a number of occasions to co-ordinate their response to future investigations.

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According to the Stewart Royal Commission, on one occasion:. Shepherd addressed the meeting and suggested that the officers involved in such activity should deny any involvement when interviewed by the investigators of the Special Task Force. Those present agreed Australia a, p. Later in the year, some 50 past and present members of the Technical Survey Unit and the Bureau of Criminal Intelligence were told by Shepherd that they should deny involvement.

According to one BCI officer who was present, Shepherd used words to the effect that telephones were not intercepted, intercepts did not exist and no person in this room knows of the existence of any material. This meeting has not occurred Australia a, p. The wall of silence was maintained, at least initially.

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I am not aware of any police officers or public service member in New South Wales or elsewhere in Australia who has been involved in the obtaining of illegal taped telephone conversations or in the preparation of transcriptions from illegally obtained tape recorded conversations quoted in Australia a, p. A number of retired former members of the Bureau of Criminal Intelligence and Technical Survey Unit refused to be interviewed. Those who consented to interviews, and those currently serving police who were compelled to make statements, all denied any knowledge of telephone interceptions.

The Commonwealth Director of Public Prosecutions estimated that up to forty police officers gave false evidence to the Pry inquiry Jinks , p. Superintendent Pry's convoluted response to this state of affairs reflected something less than the zeal he might be expected to show in dealing with criminal suspects outside the police force. Pry recommended that:. In late November a firm of solicitors acting for a number of currently serving and retired NSW police officers, advised the Stewart Royal Commission that co-operation would be forthcoming if they received formal assurances they would not be prosecuted or face internal disciplinary action.

In an effort to induce police to overcome their reluctance to disclose any information about the illegal wiretapping program, Mr Justice Stewart recommended to the Attorney-General of Australia that potential witnesses be indemnified against prosecution. At first, the Director of Public Prosecutions disagreed, and opposed granting of indemnities, but the federal government was under some pressure to authenticate those materials which made the basis for allegations of improper judicial conduct. The federal and New South Wales governments finally agreed to shield the individual officers from prosecution which could result from their evidence to the Royal Commission.

The Commissioner of Police gave undertakings which contained immunities from internal disciplinary action as well. In March , the Governor General of Australia issued letters patent to Justice Stewart to inquire specifically into the alleged telephone interceptions. The Stewart Royal Commission produced a report in two volumes, the second of which remained confidential in order not to jeopardise the ongoing investigation of various criminal matters.

The report, at least the published volume of the report, is an unusual document. It provides a fascinating account of the history and methods of illegal telephone interceptions by NSW Police.

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On the one hand, it condemns the criminal conduct which it so carefully described:. Members of the NSW Police who were guilty of breaking the law over a period of years, refused to tell the truth about what they had done unless they were indemnified. Indeed not only did they refuse to co-operate with investigating authorities, but they deliberately and falsely denied knowledge of the illegal interceptions and covered up their illegal activities Police officers are sworn, however, to uphold the law - not just laws of which they approve.

There can be no justification for their having taken the law into their own hands Australia a, pp. That said, the Report goes to considerable length to extol the virtue of telephone interception as a technique of criminal investigation. Indeed, Mr Justice Stewart found the fruits of the illegal operation so valuable, that he recommended they be turned over to the National Crime Authority, of which he happened to be Chairman, for further analysis and investigation.

He went on to recommend that powers to intercept telecommunications be extended to state and territory police forces, as well as to the National Crime Authority. Meanwhile, allegations arose suggesting that Mr Justice Stewart was so impressed with some of the NSW police officers who gave evidence to the Royal Commission that they were offered positions with the National Crime Authority. The Chairman of the Joint Parliamentary Committee on the National Crime Authority 'recorded, on public policy grounds, the Committee's disquiet at the proposition of employing police who had received indemnities to give evidence before the Royal Commission' Australia b, p.

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The Stewart Report met with an enthusiastic reception from a number of quarters. The Attorney-General of Australia quickly introduced legislation to extend wiretap powers to state and territory police departments for all offences carrying prison terms of at least seven years. Although welcomed by state police associations generally, the idea was sufficiently controversial that the matter was referred to a Joint Select Committee of Federal Parliament. By the end of , the Committee was inclined to authorise some interceptions for the purpose of state investigations, but only by agents of the federal government and under extremely strict conditions.

The Committee concluded that whilst state and territory police forces and the National Crime Authority might have a need for information gleaned through telecommunications interception, the potential for abuse would be minimised if the intercepts were made on behalf of these agencies by a telecommunications interception unit within the Australian Federal Police, working through Telecom.

Under the Committee's recommendations, a warrant, issued by a judge of the Federal Court of Australia, would be necessary before any interception could be made. Warrants would be limited to circumstances where other investigative techniques had either been exhausted, or deemed in the circumstances to have been inappropriate. In addition, warrants would only be issued on reasonable grounds for suspecting that the nominated telephone service was being used by a person suspected of committing or conspiring to commit a specified serious offence, and that the interception would materially assist in the investigation.

The specified offences would be limited to murder, kidnapping and serious drug trafficking. Applications for warrants would identify the officer seeking the warrant, and would specify the time for which an interception is sought. Under the Committee's proposal, accountability of interceptions would be enhanced by regular and independent judicial auditing.

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Severe penalties would be imposed on offenders engaged in illegal interception and unlawful disclosure of information obtained from legal interceptions. The possession, importation, manufacture, sale or advertising of interception devices would be made illegal. It appeared that the criminal activities of Australian police were on the verge of being rewarded by the grant of increased powers. Whether this apparent success will tempt police to try their luck with other illegal methods remains to be seen. Meanwhile, illegal telephone interceptions by persons unknown continue to be discovered by Telecom authorities.

The Joint Select Committee reported that sixteen illegal interception devices had come to the attention of Telecom during the year. Seven of these were located in Queensland. A complaint arising from the initial cover-up of the illegal interceptions was lodged with the New South Wales Ombudsman against Mr Shepherd, who had since become Assistant Commissioner in charge of internal affairs.

Under New South Wales law, the Ombudsman was precluded from conducting investigations of police complaints in the first instance. Initial investigatory responsibility lay with the Commissioner of Police. In a letter to the Ombudsman dated 21 July , defending Mr Shepherd's unswerving dedication and integrity, the Commissioner urged that the Ombudsman consent to discontinuing the investigation. In August , the New South Wales Director of Public Prosecutions advised the state Attorney-General that the legally admissible evidence did not disclose an offence under state law. He did herald, however, the possibility of federal criminal charges. Mr Temby took pains to register his disapproval of the alleged misconduct:. I do not, however, consider that what was done by Mr Shepherd is in any way excusable.

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It is my strong view that disciplinary action should be taken against him if he in fact misled superior officers Jinks , p. The Commissioner of Police continued to seek the Ombudsman's consent to discontinue the investigation. He reaffirmed an intention stated in his July, letter:. It thus appeared that continued litigation with the Police Commissioner would have little useful effect. In November , the Acting Ombudsman consented, with some reluctance, to the discontinuance of the investigation. In a report to Parliament he observed:. Police officers who are the subject of Internal Affairs Branch investigations are required to answer questions truthfully.

In a concluding paragraph, the Acting Ombudsman referred to Assistant Commissioner Shepherd's current responsibilities:. The Assistant Commissioner Review is responsible for the investigation of unethical conduct by police.

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The officer who holds that position should be, and be seen to be, above reproach. If that is not the case ordinary police officers and members of the public might reasonably consider that there was a double standard. Those officers should not be left with the dangerous assumption that the end justifies the means Jinks , p. Elsewhere, other types of electronic surveillance continued, beyond the inclination of Australian governments to control. A Queensland solicitor claimed that an interview he had conducted with a client was recorded by police, transcribed, and presented to prosecuting authorities.

In September , a justice of the Supreme Court of Queensland described thd police conduct as 'reprehensible' Australia c, p. Go to top of page You are here Home Publications Australian studies in law, crime and justice Wayward governance : illegality and its control in the public sector.

Mr Justice Stewart, himself a former police officer and not generally unsympathetic to the police and their mission, was stern in his condemnation: By all current standards of justice and fairness it is clearly intolerable that persons may be brought to trial as a result of activity of police officers which is flagrantly in breach of the law.

In the words of the Stewart Royal Commission: The initial interception of the telephone conversations of Ryan was made because of conversations heard during the continued interception of the telephone conversations of Roy Bowers Cessna after his arrest on 14 March The Telecommunications Interception Act is both explicit and stern: 7 l A person shall not - intercept authorise, suffer or permit another person to intercept; or c do any act or thing that will enable him or another person to intercept a communication passing over a telecommunications system.

In introducing legislation which deliberately excluded the power from police and customs authorities to intercept telephone communications he said: Mr Speaker, eavesdropping is abhorrent to us as a people. During subsequent debate on the same legislation, a Liberal Senator stated the position of the Menzies government: This Government says that telephone tapping is abhorrent and is contrary to the character and will of the Australian people.

The potential for abuse of electronic surveillance was clear to another Liberal backbencher: To every fair-minded person in Australia, the idea of eavesdropping or listening in unknown to another's conversation is normally repugnant. In the words of one former commissioner: Well, this had been a practice before I became Commissioner and so far as I was aware it was being conducted without any complaint as far as any person was concerned Woods did not testify before the Stewart Royal Commission, but provided a sworn statement: He decided not to launch an investigation into the illegal activity because he concluded that there would be little likelihood of identifying NSW officers involved and because the public interest was better served by adopting the course which had been recommended to him.

According to the Stewart Royal Commission, on one occasion: Shepherd addressed the meeting and suggested that the officers involved in such activity should deny any involvement when interviewed by the investigators of the Special Task Force. On 29 March Shepherd wrote to the Head of the Special Task Force: I am not aware of any police officers or public service member in New South Wales or elsewhere in Australia who has been involved in the obtaining of illegal taped telephone conversations or in the preparation of transcriptions from illegally obtained tape recorded conversations quoted in Australia a, p.