Monday, June 6, 2011

More police secrecy

OPI evidence on phone tapping will never be seen

THE evidence in an Office of Police Integrity affidavit understood to have been used to justify taps on the telephones of former Victorian deputy police commissioner Ken Jones and his wife will never be disclosed.

Senior lawyers told The Weekend Australian this meant career-threatening allegations lacking in substance and motivated by malice were easily "sexed up" to persuade a relatively junior judicial officer to permit telephone taps.

The inability of an oversight body in Victoria to independently test allegations in the secret affidavit material means those making the claims cannot be held accountable for exaggerating.

A former OPI officer has told how "speculative" and misleading innuendo would be dressed up as factual intelligence in affidavits presented to a member of the Administrative Appeals Tribunal to obtain telephone tap permission.

Senior Victorian lawyer Phillip Priest QC said a "public interest immunity" shield made it impossible for any person whose telephone was tapped to show that the supporting allegations were questionable, and to test whether there was ever any foundation for the tap.

The warrant that was granted when former assistant commissioner Noel Ashby's telephones and those of his wife and children were tapped by the OPI states he was suspected of "bribery and corruption".

But there were no bribery allegations made in subsequent public hearings and investigations. There were no charges of corruption after Mr Ashby's career and reputation had been destroyed.

Mr Priest said the reported tapping of the telephones of Sir Ken had "uncanny echoes" of the Ashby case. In a legal memorandum at the time, Mr Priest called the OPI's conduct corrupt.

"There should have been a judicial inquiry into the Ashby case," he said yesterday. "As a result of these most recent events, I think the strength of that call must surely gain momentum."

Mr Priest, who successfully defended Mr Ashby, said that with affidavits for telephone taps "the real problem is the potential for abuse, because nobody is able to get access to the material".

"There is a lack of accountability, and the secrecy creates the potential for the abuse," he said.

"They can put whatever they like in an affidavit and nobody else can ever see it -- there is nobody on the other side to question it.

"When we cross-examined one of the OPI officers about the allegations with Ashby, we heard there was no evidence of bribery, and the alleged corruption turned out to be an association with (police union chief) Paul Mullett.

"There needs to be much better oversight. The courts should have the power to look at the affidavits in support of warrants for telephone taps. Recent events have shown we need a royal commission or a judicial inquiry."

Queensland criminal lawyer Terry O'Gorman, who heads the Australian Council for Civil Liberties, said there were only 26 refusals out of more than 10,000 telephone tap applications granted to police and anti-corruption organisations across Australia in the past three years.

"Members of the AAT and judges are used to make respectable a regime where telephone taps are granted 99.9 per cent of the time," he said.

"These applications and the affidavits that support them are just taken for granted in situations where there is no judicial supervision and no contrary input, and this means nobody is watching what the police and the anti-corruption bodies are doing.

"It is very difficult to vet the affidavits when only one side is presented. Every time lawyers try to obtain the allegations, the police and prosecutors chime in unison 'public interest immunity'."

Mr O'Gorman described public interest immunity over telephone taps as "an effective veil they hide behind, and which too many judicial officers go along with".


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