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Thursday, 4 October 1984
Page: 1287

Senator DURACK(9.43) —We are resuming debate on the Telecommunications (Interception) Amendment Bill (No. 2) 1984 which has been introduced by the Attorney-General (Senator Gareth Evans) to make some small but very important amendments to the Telecommunications Interception Act which governs the power to tap telephones in this country. I think it is generally known as the Interception Act, and I will refer to it in that shorthand description during this debate. As is well know by now, due to the discussion that there has been about this subject, it is illegal to tap telephones in this country, apart from certain exceptions, unless a warrant has been obtained for that purpose. Only in certain cases can a warrant be granted for that purpose; firstly, in the interests of security, and secondly, in respect of investigations into major drug offences.

There are some very strong provisions in the legislation concerning the use which may be made of the intelligence information obtained from the interception of telephone conversations, and that applies whether that interception has been obtained legally or illegally. Therefore situations arise from time to time when the stringent provisions of that legislation may require moderation. We had some examples last year where special legislation had to be passed through this Parliament on, I think, two occasions in regard to investigations being conducted in New South Wales, in the course of which material which had been obtained quite legally under warrant by the Australian Federal Police could not, under the existing provision of the Act, be conveyed to the bodies conducting those investigations. We passed legislation to enable that to be done.

This legislation from the Government is of that character in that it enables information which is in the possession of the Director of Public Prosecutions, and which came into his possession in his role as Special Prosecutor under the Special Prosecutors Act, to be made available to two other inquiries which, under the existing provisions of the Interception Act, it would not be legally possible for Mr Temby to hand over to those two inquiries-one being the Royal Commission being conducted by Mr Justice Stewart into the Mr Asia drug syndicate , and the other being the Judicial Commissioner of Public Complaints, recently appointed in New South Wales.

The Opposition has no difficulty whatsoever with the proposals in this legislation. We believe that it is quite appropriate that the material which is held by Mr Temby should be made available for the purposes of both those inquiries, and therefore we support the measure. However, the major matter which this legislation refers to, and the major concern of the Opposition, is of a wider character than the nature of this legislation itself. This is because of the particular material which is held by Mr Temby which, as I said, came into his possession because of his appointment as Special Prosecutor by the Attorney- General in February of this year. I refer to the great deal of material which has become known and indeed become notorious as the Age tapes. As I have said, this material, which has been widely publicised and has been the subject of a great deal of controversy and widespread concern in the community, purports to be in the form of tape cassettes or in the form of documents purporting to be transcripts of other tapes. All this material purports to be, as I said, the recordings either of the tapes themselves, taped by audio method, or a documentary form of recordings of telephone conversations which had been made over a period. We know that some of this material was made available to the National Times at the end of last year and that all the material in question- there are something like over 500 pages-was made available to the Age newspaper either at the end of last year or earlier this year and parts of it were published by the Age early in February of this year.

A great debate has been raging as to the provenance of this material. Just how did it come into existence? Is it genuine material or is it all a gigantic hoax? If it were actually recorded, is it authentic in the sense that it is a true record of actual telephone conversations that took place? Is it the record of the conversations of the people it purports to be a record of and how did it come about that these recordings were made and these transcripts brought into existence? Who was responsible for doing it and where were these recordings made ? We assume that they are perfectly genuine productions. They purport to be genuine records, they were presented by the Age and by the National Times as genuine in the sense that they are not hoaxes and that they are authentic recordings in the sense that they fully and accurately record the conversations that they purport to record of a number of people over a period. We are told that these recordings are largely concerned about criminal activities of one sort or another.

Some peripheral conversations have been recorded because in any process of telephone tapping a whole lot of incidental information may be picked up. That is one of the major reasons why it is illegal to tap telephones in this country in the interests of people's privacy. There have been only a limited number of occasions when telephones have been tapped for purposes of criminal investigation in this country. Whether it might be justified to widen those grounds is another matter, and a matter of great concern, but it is not an issue at this point.

There is in this material allegedly a great deal of relevant information, of criminal intelligence about organised crime and the numbers of people engaged in it, as well as other peripheral matters which are not relevant for consideration tonight, but which have been the subject of other debates and other decisions in this chamber. As I have said, none of these is relevant to the matter we are debating tonight.

When this material was obtained by the Age, the editor of that paper handed it over to the Attorney-General who, in my view, acted perfectly correctly at the time in getting a police report on it.

Senator Gareth Evans —Thank you.

Senator DURACK —I have never said anything else, Senator. 'At the time' I stress , and qualify it to that extent. Having had a police report on it, the Attorney- General again acted quite correctly in respect of the matters we are now discussing by referring the material to a special prosecutor. I have been critical about the fact that the matter was referred to a special prosecutor who was about to become the Director of Public Prosecutions, but that is an incidental and separate issue. It was a very appropriate matter for referral to a special prosecutor because it raised unique and very serious questions. Certainly it justified some special action.

The Special Prosecutor, Mr Temby, was appointed to do the job and he has reported to the Government and Parliament in accordance with the Act under which he was appointed. His report has been tabled in this Senate and we have had the opportunity to study it. The report itself is disappointing in the sense that Mr Temby has not been able to get to the bottom of these matters at all. He says that apparently there have been, as far as he can ascertain, some police investigations and some police action in regard to some of the matters referred, but he has not been able to obtain any clear information about the actual origin of the material, who made it, why it was made or whether it is, in fact, a recording of actual telephone conversations. There is a fairly clear thread through Mr Temby's report that he has, in fact, a prima facie belief that there is something behind all this and that it is certainly not a hoax, although he does not actually put it in that way. But what he does say in a very disturbing aspect of his report is this-and I quote from paragraph 31:

The matter could be taken further by the materials generally being referred to somebody or person having coercive powers. Mr Justice Stewart as Royal Commissioner has those powers. So does the Senate Select Committee. If only to avoid duplication of effort, my recommendation is that the matter be left as it is until the Judge and the Committee have completed their respective tasks.

In giving some effect to that view the Government has proposed that the material be sent to Mr Justice Stewart in his capacity as Royal Commissioner investigating the Mr Asia syndicate. The terms of reference that Mr Justice Stewart has in relation to the Mr Asia syndicate are only concerned with one aspect of the mass of material known as the Age tapes. Although Mr Justice Stewart will be obliged to ascertain the authenticity of the material insofar as it refers to him, his brief does not extend to the whole gamut of allegations, suspicions, innuendo or whatever, which may arise from the mass of this material .

The Senate Select Committee on the Conduct of a Judge, which had the brief of looking at this material from the same point of view-that of determining its authenticity as well as other matters-was able to take the question a little further than Mr Temby had been able to do. In paragraph 39 of the report the Committee had this to say:

The Committee took evidence from the person who supplied the material to The Age newspaper.

So that was a distinct advantage that the Committee had over Mr Temby. The report continues:

That evidence, which was not available to Mr Temby, was to the effect that the materials were composed by officers of the New South Wales Police Force as part of operations of surveillance of persons believed to be associated with criminal activities. It appears that the police selected certain persons as 'targets' for this surveillance, and that the records of conversations were intended for the purpose of gathering intelligence which would facilitate the further investigations of criminal activities. It was said that the tape recordings were obtained by means of devices, operated by police officers, which intercepted and recorded telephone conversations, and that the purported transcripts and summaries were composed by police officers as they listened to such tape recordings.

It goes on to a matter which is perhaps not relevant to my case at the moment, and that states:

In order to reach firm conclusions as to the source of the materials, however, the Committee would have to obtain admissions by the police officers who actually took part in the interception and recording of telephone conversations and who composed the transcripts and summaries. The evidence available to the Committee sufficiently indicated that such admissions have not been forthcoming and all efforts by the Committee to pursue such admissions produced no useful results.

It should be said, in fairness to the Committee, that for the purposes of its inquiry it was able to make other inquiries that enabled it to come to its conclusions without having to pursue that question any further than it did as described in those paragraphs of its report.

So the position is that we are still left up in the air as to this problem of the Age tapes. Maybe Mr Justice Stewart will clarify it to some extent, but again he has a limited interest in it. As a result of that advice from the Senate Committee, we are now clearly confronted with some very disturbing and serious questions indeed. It has been revealed in the evidence the Committee received from a person who would appear to have had quite a lot of knowledge about the matter that this material was the result of a major exercise conducted over quite a long period by officers of the New South Wales Police. In fact, there is some reference in Mr Temby's report to this and to some payments apparently made by the Australian Federal Police at one point to maintain this facility. These very serious questions need to be properly investigated.

It has been the view of the Opposition from the word go that we needed a thorough investigation of what may be very important material and that there were very good reasons to believe-not just suspicions but reasons which have been supported by the Senate Committee report-that these Age tape materials may well be genuine. I do not say it can be established that the actual recordings clearly are authentic in the sense that they are a continuous record of conversations actually taking place, made as they took place, but there is now evidence in a general sense that these Age tapes are certainly not a hoax. A genuine exercise conducted by a major police force in Australia in recent years obtained extensive information in relation to serious criminal activities by persons in Australia over quite some time. Apparently the exercise was conducted in a way which was widely known in criminal investigation circles in this country and which must have been known at least in some political circles in New South Wales because of the volume of material and the people who may have been engaged in its collection.

This is a matter of quite unique character and a problem of quite unique proportions which has been presented to the Government and, I believe, to this Parliament. Many possible breaches of Commonwealth laws are involved. The Attorney-General and the Government have always concentrated on the breaches of the Telecommunications (Interception) Act that may well have occurred. We do not really know at this stage whether there have been breaches of that act, but there seems good reason to believe that there probably have been. Certainly there is enough suspicion to form a basis for proper inquiries to be made about that. Breaches of many other Commonwealth and State laws have been suggested-I put it no higher than that-sufficiently strongly to require serious investigation of this material. The Opposition has never been satisfied that such an investigation, uniquely directed to this material itself, has been made. Certainly peripheral investigation has been made by the Senate Committee and peripheral investigation will be made by Mr Justice Stewart or perhaps by the Commissioner for Public Complaints. However, there has been no broad, in depth investigation by a body such as a royal commission with adequate powers to investigate these matters. That is the reason why I move on behalf of the Opposition the following amendment to the second reading motion:

At end of motion, add ', but the Senate calls upon the Government to establish a Royal Commission with terms of reference to investigate and report upon:

(a) the origins of the tapes and documents, the subject of the Bill;

(b) the authenticity of the information contained in and upon the said tapes and documents;

(c) whether such information reveals any offences against laws of the Commonwealth;

(d) whether, arising from such information, any criminal charges should be laid ;

(e) whether any action has already been taken by any law enforcement agency arising out of the said information; and

(f) whether any immunities should be granted to any person to enable the Royal Commission fully to investigate the above matters'.

Some serious questions have arisen because it has been placed on the public record by people who are alleged to know about these matters that in fact a lot of the intelligence obtained from this exercise has been directly used not just in criminal investigations but even in prosecutions. We ought to know to what extent this material has been used in that way. Furthermore-again it is on the public record-it has been said that there is a great deal more of this material. Indeed, there have been threats that if proper action is not taken a whole lot more of this material will be put on the public record, I suppose in the way some of it has already been put on the public record.

It is totally unsatisfactory for matters of this kind to become available and be made the subject of public debate in this country in this way. The only appropriate way, as the Opposition has contended and as the Leader of the Opposition, Mr Peacock, suggested in another place as long ago as March, is to establish a royal commission. At that stage we did not take it any further because the matter had been referred to Mr Temby and there was some view that perhaps Mr Temby would be able to get to the bottom of it. As I have said, Mr Temby has said, in his report, tabled in this Parliament only a few weeks ago, that he cannot take it further but that it would have to be referred to a person with the necessary coercive powers. The Opposition believes that this is the proper course that should be taken now, and clearly it should be taken in view of the findings of Mr Temby, in view of the further evidence that was obtained by the Senate Committee in the course of its investigations, and in view of the information that has been made public in one form or another about this material . The suggestions are, in view of the information contained in the appendix to Mr Temby's report as to the knowledge of the Australian Federal Police in regard to at least some of this material, that further material is available.

We in the Opposition believe that this is a very serious matter which probably goes to the heart of at least some organised crime in this country. We do not know the extent to which it points to it, but there is every indication that this material may well uncover a great mine of information in relation to organised crime in this country. It is certainly a very special problem, a unique one. It is the sort of problem that is quite appropriately dealt with in a manner on its own, a discreet manner, by a body such as a royal commission. Despite the investigations of the Senate Committee and despite what Mr Justice Stewart may find, the material is of such importance and extent-it deals with matters of such serious consequence to the Australian community-that it justifies the establishment of a royal commission to fully penetrate the full facts relating to this material.