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Phone tapping into crime

By Michael Bosscher - posted Thursday, 31 May 2007


There are serious risks and some public confusion around State Government moves to give Queensland’s Crime and Misconduct Commission and police phone tapping powers.

There is enormous potential for civil liberties breaches and the planned new powers raise the spectre of the CMC and police using phone taps for “fishing expeditions” against Queenslanders.

It is also disquieting that the Queensland Government has been vague on how it plans to involve the state’s Public Interest Monitor in the phone- tap warrant approval process.

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Nor is it clear whether the new phone tap laws will cover all forms of telecommunications. Will the legislation - the Telecommunications Interception Bill 2007 - also include SMS messages on mobile phones, mobile phone calls and even emails, all of which could be regarded as a form of telecommunications?

I disagree with the whole concept of phone tap powers but the State Government wants to bring Queensland into line with the phone tapping powers of other states.

If they are going to do it then the authority approving these warrants should be a Supreme Court justice at a minimum.

The idea introduces the spectre of giving the CMC and police the power to just tap phones in the hope you catch someone out. When you start chipping away at the public’s rights, you undermine the foundations of our civil liberties.

There has been little, if any opportunity for public debate on this proposed law change. It was presented to the public as a fait accompli.

The public would have a right to be suspicious and have deep concerns when there is insufficient opportunity for them to have a say on decisions such as this.

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There are already federal laws in Australia which in certain circumstances give the police powers to tap phones. The current system is more than adequate. These proposed new powers take it much further.

Federal Attorney-General Phillip Ruddock made headlines when he questioned the role of the Public Interest Monitor in the Queensland move. In media reports he suggested the PIM would be the person approving or refusing phone tap requests, whereas in other states and territories it was the courts that approved or denied phone tap warrants.

Mr Ruddock wondered why Queensland Premier Peter Beattie did not have faith in the courts to play a similar role in Queensland and said it was unreasonable for Queensland to be the only state to insist that applications for warrants be vetted by the Public Interest Monitor.

Queensland Attorney-General Kerry Shine has been reported as saying that under the proposed new laws, phone taps will be dealt with by a court, with the Public Interest Monitor attending hearings to ensure individual rights are protected.

“Queensland legislation will require that law enforcement agencies must consult with the PIM about public interest considerations before applying for a (phone tap) warrant,” Mr Shine said.

Premier Peter Beattie weighed in, saying “We have repeatedly asked the Howard Government to amend the current federal Telecommunications (Interceptions) Act, to allow the Public Interest Monitor to provide (a safeguard for people’s privacy), but the Federal Attorney-General has refused to make the change.”

Unfortunately, nobody seems to have shared that information with the Federal Attorney-General, who, along with the public, believes the Public Interest Monitor’s role will be that of the person granting or refusing phone tap warrants. His public remarks drew a sharp retort from Premier Beattie, but smoke still obscures the issue, and the public remains pretty much in the dark as to what the phone intercept laws will let the CMC and police do.

The normally media-savvy Beattie Government has fumbled the ball on the phone tap issue. The State’s usually well-oiled publicity machine has all but ignored the subject, which has only added to the public’s confusion and unease.

Queenslanders know very little about the state’s Public Interest Monitor. I doubt whether many people could even name this person, who could soon have sweeping powers to allow a secret intrusion into our lives.

In 2005 Police Minister Judy Spence said the Public Interest Monitor was created under the Police Powers and Responsibilities Act 2000, to ensure Queensland had one of the most accountable and transparent police services in Australia.

The Public Interest Monitor, who is appointed for a three-year term, has a function to ensure the rights of the public are upheld when police apply for surveillance-type warrants. She said the PIM is already used for listening devices and surveillance warrant requests, and the State wants to extend this to phone tap warrant applications.

Obviously these applications are considered behind closed doors, with the state’s PR spin doctors saying phone tap powers are needed in the war on high-level and organised crime. The Police Minister regards “the activities of outlaw motorcycle gangs” as one of the targets of the new powers.

In my view, warrants for phone taps need to be considered by a Supreme Court justice at a minimum. There also needs to be some urgent clarification as to exactly what forms of telecommunications will be covered in these laws.

When the phone tap idea was floated last year it was planned to give the CMC and police the powers to “intercept communications”.

It suggests powers to intercept mail, mobile phone calls and SMS messages on your mobile, and your emails, all of which could be deemed to be “telecommunications”. Is that what is intended? At the very least we need urgent clarification.

I am not convinced by reassurances the public’s civil liberties would be protected through the Public Interest Monitor. The public’s rights will be safeguarded by a government- appointed overseer? It does not fill you with confidence.

The State Government is always on a crimebusters kick, but do they realise new phone tap powers for the police and CMC will also impact on how criminal defence cases could be run in future?

If the police are presenting taped conversations as evidence, then obviously we would need to vigorously investigate whether the tapes were genuine or had been edited or tampered with in any way. Modern technology allows easy manipulation of audio recordings, so the veracity of phone tap recordings, like any other prosecution evidence, are naturally going to be tested by the defence. It is going to complicate trials and maybe make some of them longer.

The phone tap furore highlights a wider issue of concern over the erosion of the public’s rights in Queensland.

A disturbing trend is developing whereby important civil rights are being eroded through law changes, brought in with little or no public input into the decision making process.

Every change should be thoroughly examined and publicly debated. It’s not just the individual law changes, it’s what they lead to as a whole. Queensland is not a police state, but unrestricted phone tapping certainly suggests that image.

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About the Author

Michael Bosscher is managing partner of Brisbane-based national criminal defence law firm Ryan & Bosscher Lawyers.

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