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Parliamentary Joint Committee on Intelligence and Security
26/09/2012
Potential reforms of national security legislation

SINGLETON, Mr Peter Francis, Commissioner, New South Wales Crime Commission

Committee met at 09:01 .

CHAIR ( Mr Byrne ): I declare open this public hearing of the Parliamentary Joint Committee on Intelligence and Security and its inquiry into potential reforms of the national security legislation. Today the committee will take evidence from the New South Wales Crime Commissioner, the Police Integrity Commission, the NSW Police Force, the AFP, the South Australia Police, Blueprint for Free Speech, the New South Wales Council for Civil Liberties, the Crime and Misconduct Commission Queensland and the Law Society of New South Wales Young Lawyers.

I welcome the representative of the New South Wales Crime Commissioner to the table. Although the committee does not require you to give evidence on oath, I remind you that this hearing is a legal proceeding of parliament and warrants the same respect as proceedings of the House and the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as contempt of parliament. The evidence given today will be recorded by Hansard and will attract parliamentary privilege.

I invite you to make some brief introductory remarks and then we can proceed to questions.

Mr Singleton : Thank you. The New South Wales Crime Commission is the body focused on organised crime investigations. It also does have some role in counterterrorist investigations and investigating other major crimes, such as murder, where ordinary police methods have been unable, or are unlikely, to resolve the matter.

The matters that I would wish to mention relate to telecommunications interception issues rather than national security issues, although there is, of course, an overlap because organised crime does pose some threats to national security and we do have a role in the counterterrorism area. There is, in the view of the Crime Commission, urgent and important reform needed to the telecommunications interception and access regime. In saying that, the law enforcement agencies—in particular, the Crime Commission—are not seeking any additional power beyond what they already have. Rather, they are seeking to avoid going backwards.

Our present capacity to engage in criminal investigations is going backwards rather quickly at the moment because of rapid technological and commercial changes which are making it more difficult to do what we used to be able to do. The current regime was enacted in 1979 and, in spite of a ramshackle collection of amendments since that time, it is still essentially an outdated regime. Since 1979 the ordinary telecommunication method has ceased being a landline telephone with a dial to another landline telephone via a monopoly agency called Telecom. We now have a vast new environment in which we are operating. That environment includes, soon, the National Broadband Network, a plethora of telecommunications carriers in place of the old Telecom and OTC and vastly new technologies. Back in 1979 the internet was not available to the public, mobile telephones were not available to the public, we did not have Skype, we did not have a range of smartphone applications and we did not have the modern forms of encryption.

Faced with these challenges, the question is whether the hitherto-accepted capacity of law enforcement agencies to engage in interception for proper purposes is to continue. Until now we have been able, with a warrant, to intercept the ordinary telecommunications that people who are suspected of serious crimes engage in over the telecommunications network. That is rapidly fading—the phrase that is sometimes used is 'going dark'—for various technological reasons, but there are also commercial reasons. Vital data that the law has required to be kept for in the order of seven years may no longer be available, unless legislative reform is engaged in. I will come back to that in a moment, because it appears to be one of the more contentious issues. But the basic point is that if the resources and the law applicable to law enforcement investigations do not catch up, we will go backwards. Not only does the law need to be reformed to accommodate the massive changes that have occurred in the last two decades, but it needs to be phrased in a way that will enable the massive changes of the next two decades to be accommodated as well.

Data retention is one issue that I gather is of concern. As I said, the current law effectively is that the data in question has to be retained for something in the order of seven years. What is now proposed is a change in the law that would require the retention of it for two years. Some of the detail of that is simply this: commercial practices have changed—

Mr RUDDOCK: If I may interrupt you there, what actually has to be kept now for seven years?

Mr Singleton : Material required for taxation purposes and legal purposes. I will not profess to be a tax or civil litigation expert, but the sort of thing I have in mind is this: telecommunications bill their customers and they have to pay tax on the revenue, and if there is a dispute with the customer, that can end up in litigation, which can be commenced, depending on the statute of limitations applicable for the customer, up to say six years—that is the traditional statute of limitations period for contract. The records that are kept that I have in mind are the billing records. This is vital intelligence. The telecommunications carriers have been keeping records of the phone calls and other communications that occur—from whom to whom, where they are, and when they occur—so that they have proper bases for dealing with their tax affairs and proper bases for dealing with any disputes with customers. These days they are increasingly moving to different billing arrangements—in particular, data plans, which simply require the customer to pay a fee for an amount of data flow through a smartphone. That means that the telecommunications companies are no longer finding it necessary, for tax or other legal reasons, to keep the more detailed information that is useful to law enforcement. It is in that sense that I am saying that the law has hitherto required the retention of this data, given the commercial practices of the past. But, because commercial practices are changing, if law enforcement agencies are to maintain their effectiveness in this area there will need to be legislative change.

Mr RUDDOCK: So it was not telecommunications interception legislation that required data to be kept for seven years.

Mr Singleton : That is right.

Mr RUDDOCK: It was an incidental requirement thought to be necessary for tax purposes.

Mr Singleton : That is right. It is a practical matter that I focus on, and that practical matter is that the data in question was being retained for many years. It has been very useful. But because of changed commercial practices it will not be available again.

CHAIR: Where in the TI Act does it say that the telcos are compelled to keep data for seven years?

Mr Singleton : It does not say that. As I was saying to Mr Ruddock, it comes up incidentally from other parts of the legal regime. If you have a dispute with a customer that might end up as a contractual case in a court, you may find it prudent to keep the evidence for six years.

I am not an expert, but if you face a taxation audit you need to keep records.

Mr RUDDOCK: I think it has been reduced.

Mr Singleton : I think it has. The traditional figure was seven and it may be down to five. My knowledge of tax comes as a small business person and a barrister in private practice, not as a telecommunications company, but the simple point that I wanted to make was that, instead of viewing this issue as one of whether we should go from zero retention to two years, the practical reality is we are going from retention of some years—five to seven—down to two years and there are legitimate public policy questions for parliament to consider as to whether that should happen. But that is what is really going to happen. It is not zero to two but a handful of years down to two in practice.

The question for parliament is to balance the different factors, and I wish in a moment to finally say something about the legitimate concerns for privacy and related matters, but I indicate the significance of this sort of data for criminal intelligence work. We are essentially a criminal intelligence agency. Our staff analyse vast amounts of data. It is like going through a haystack looking for a piece of hay. We often find it, put those bits of hay together and work things out. A number of major crimes such as murders have been resolved primarily in this way. It is a vital tool for organised crime and drug trafficking investigations because it tends to show the links and the patterns between the conspirators and these organisations tend to be engaged in ongoing conspiracies. But it also is vital to ensure that innocent people do not become the target of criminal investigation. One of the most significant uses we make of this call record data is to verify in advance whether a person suspected of serious criminal activity is indeed using the service. The overwhelming number of telephones that we tapped were subscribed in false names. We therefore do a careful analysis to see that the person we think is using it really is. Quite often a call record analysis will show that the person is indeed using the phone and sometimes it will show that the person is not, whereupon we will not apply for a warrant. We think that is an important part of protecting privacy. We do not seek a warrant—except in circumstances of urgency—without doing those checks first. It also helps to prevent investigations being focused upon people who do not warrant investigation. We have been able to demonstrate the innocence of people in the past: people who were suspected of murder and other crimes have been demonstrated to be innocent—not in the relevant area, for example—through call charge records, and we think that is an important protection.

Finally, there are legitimate concerns of privacy and the like nature to be considered. They can be met without also failing to meet the needs of law enforcement. They are not incompatible needs. Law enforcement does not need to trample all over the privacy of people. What is required, I respectfully urge, is an identification of precisely what law enforcement agencies need, then a precise identification of what the legitimate privacy concerns are and then what modifications to law enforcement needs are required in the light o privacy. With great respect, it is too easy to go with platitudes and sweeping statements like, 'We need stronger law enforcement.' That is not good enough. What is needed is a precise identification of what they need. Likewise, it is too easy to go with platitudes about, 'We need more privacy.' The data, the interception of phone calls and so on will undoubtedly occur, because I respectfully apprehend parliament will not abolish it altogether. The questions include who should be able to authorise what happens, to what use may be put the material that is obtained and what disclosure of that material may occur. No doubt there are other issues, but this is where there are needs for safeguards. I am not aware of any cases in which telecommunications material has been improperly leaked. No doubt it has happened, but my organisation is known for not leaking. A lot of material is gathered that is not needed for a criminal prosecution, but it is locked away and, in due course, it is destroyed. That which is needed in evidence ends up in court. Those are the appropriate safeguards.

I would say that there is at least one area of weakness in our current safeguards system, and it is with respect to auditing what we do. There are regular audits of the law enforcement agencies as to form—do we tick all the boxes? Are our applications in the correct format? Have we made the reports to the relevant authorities on time? There are no proper checks as to the truthfulness of affidavits that are put forward to get warrants, and no auditing of the substance of that kind of matter, and I draw that to your attention in case you wish to explore it. I am sorry that I have taken longer than I intended.

Mr RUDDOCK: I was just looking through the agenda for the committee. We have the New South Wales Crime Commission, the Police Integrity Commissioner, the New South Wales and South Australian police, and I ask myself, who is actually speaking for the New South Wales government in relation to the submission we have before us?

Mr Singleton : I do not understand the government as a whole to be sending, as it were, a global representative. There is a written submission from the government—I apprehend you have just referred to it—which constitutes the government's—

Mr RUDDOCK: The reason I ask the question is that there are matters raised in the paper that express some views about the matters that we are considering in relation to ASIO. I have some questions that I would want to ask, and I am not sure, in relation to this submission, to whom I direct them.

Mr Singleton : Nor am I, with respect. I would only be in a position to speak for the Crime Commission, not the government, and I am happy, of course, to give factual material on any matter within my knowledge. The paper represents the government position, which is a matter of government policy—I am not saying finalised policy—but it is the government position. I am here more in a technical capacity.

Mr RUDDOCK: I must say, I thought this submission was a very comprehensive and helpful submission, but I would still like to know who is going to speak to all of it so that we can question them.

Mr Singleton : Yes; it will not be me.

Mr RUDDOCK: Then let me go to what you have said. I was fascinated by the discussion that we had over the length of time that call data—it has another title—may be kept. Much of the argument we hear in relation to privacy is about proportionality, and the government seems to be focusing on a two-year period to require call data to be kept, modelled on a European standard. You seem to be suggesting that you may be losing capacity to interrogate data that is up to seven years old.

Mr Singleton : And longer.

Mr RUDDOCK: Now I ask, in terms of proportionality, is it one in 100 times in every case that you are investigating that you need to go beyond two years?

Mr Singleton : In almost all the homicide cases we would go beyond two years back, because almost all of the homicide cases are referred to us because ordinary police methods have already failed to resolve the matter completely. There are current homicide investigations which involve homicides that occurred less than two years ago, but the majority of them would have occurred more than two years before they are referred to us, and we will lose critical data for those investigations.

I am not saying that it should be more than two years, because that is a matter of policy-balancing interests.

Mr RUDDOCK: No, I meant you are speaking about what you as an organisation will require. We have to make a judgement about policy, but we cannot do it without evidence.

Mr Singleton : Precisely.

Mr RUDDOCK: And if those who think they might need it are not prepared to argue it, we have a problem.

Mr Singleton : I am prepared to argue that we need the data and that if the law does not provide for that there will be murders and other serious crimes that go unsolved. You then have to decide whether that is a fair balance. Our agency is somewhat different from virtually all of the other ones, because we have a charter which is not matched by any other agency precisely. The police, of course, investigate most murders and they do so immediately upon discovery of the crime. The ones that we do are the ones that are hard to solve. As I said, generally we do not get to them until after two years beyond the date of the crime, so we will lose vital data. There is no doubt about that and that needs to be taken into consideration.

With drug trafficking—and investigating it is our No. 1 activity—the two-year regime would not be hugely detrimental because most of the call-charge records that we obtain are current ones. The records cover what the suspected people are doing now and what have they been doing in the last six months, so we can see the patterns of their behaviour this year with a view to catching them in the act when they do it again shortly.

Mr RUDDOCK: I have no idea from the evidence given how important this is. You tell me that it relates to part of your work, so give me some idea as to what proportion of your work involves investigating unresolved murders as against other major criminal activity. Is it 10 per cent?

Mr Singleton : No, in the order—and of course this has to be a ballpark figure—of 30 to 40 per cent of our work.

Mr RUDDOCK: In relation to that work, I do not know how many unresolved matters that get referred a year that might involve. Is it a dozen?

Mr Singleton : We have about a dozen murder inquiries on average at the moment.

Mr RUDDOCK: Of that dozen for which you are able to interrogate this information, how many do you actually solve?

Mr Singleton : We have been solving murders at a rate of 60 to 70 per cent.

Mr RUDDOCK: With proportionality what we are looking at is your capacity to interrogate data for up to seven years or more to enable you to deal with a dozen unresolved murder cases a year. Because of your access to that information you are able to resolve 60 per cent of those cases.

Mr Singleton : That is approximately right. You should knock off a couple of points, because there will perhaps be one of those matters every two or three years where call-charge records are not significant.

Mr RUDDOCK: You think for privacy reasons some people would regard it as being good public policy that your organisation should not be able to resolve those murders.

Mr Singleton : So far as I can tell from the public debate, some people would argue for two-year or less retention, but perhaps they have not turned their mind to the detail that you are eliciting.

Senator FAULKNER: Does 'some people' include the Commonwealth Attorney-General's Department?

Mr Singleton : Yes.

Senator FAULKNER: The proposal for the two-year data retention scheme is contained in a paper produced by the Attorney-General's Department at the Commonwealth level, which I am sure you appreciate.

Mr Singleton : Yes, I am aware of that.

Senator FAULKNER: It is limited to these words: 'tailored data retention scheme for periods for up to two years for parts of a dataset, with specific time frames taking into account agency priorities, and privacy and cost impacts.' What you are saying to our committee is you do not support that proposal.

Mr Singleton : It would be better for our criminal investigations if the number were higher and there were more retention.

Senator FAULKNER: Yes, but the proposal at the moment is for a data retention scheme for up to two years. That is contained in the—

Mr Singleton : Yes.

Senator FAULKNER: Tell me if I have misinterpreted what you are saying. I have interpreted what you are saying as meaning that you do not support that proposal and that in fact you do support a scheme but for a substantially longer period of time than up to two years.

Mr Singleton : I support it and go further. I would not want to say, 'Don't do what the Commonwealth says.' I would suggest you would do more and have a longer period of retention.

Senator FAULKNER: I wondered, Mr Singleton, whether, having that viewpoint, you had had the opportunity of being able to provide input before the terms of reference for this committee were established—in other words, as this proposal was being developed. Has there been an opportunity for input from the New South Wales Crime Commission as the proposal was developed by the Attorney-General's Department?

Mr Singleton : There has been some opportunity for input. What the department was looking for was various bits of information and examples, not a full submission arguing the case.

Senator FAULKNER: But there would be an awareness of the New South Wales Crime Commission's concern—the concern that you express—about the proposed time period for such a scheme? Would the Attorney-General's Department or Commonwealth authorities in the broad have an understanding of your concerns in that area?

Mr Singleton : I am confident that they understand that we find two years to be, if you will, a bare minimum and that we think more is needed to maintain current capacity.

Senator FAULKNER: In relation to the proposal for the data retention scheme, I outlined the words that are contained in the discussion paper. Obviously very little detail is provided, as we appreciate. Since that time, the Attorney-General has kindly written to the committee. That letter has been made public, and it outlines more detail about the proposed data retention scheme. Before I ask one or two possible follow-up questions, I want to see whether you have had an opportunity to read that correspondence.

Mr Singleton : No, I have not.

Senator FAULKNER: Thank you for that answer. I think that as a result I will perhaps ask you this question. I think it is fair to say that, as the work of this committee has evolved, it has become much clearer that the proposal that we are examining is a data retention scheme in the strict definition of 'data retention' as opposed, if you like, to data preservation. In other words, it is metadata that is being proposed to be retained; it is not proposed that content of communications be preserved. I wondered if you had a view about that that you might care to share with the committee—whether you support a proposal. Understanding that there might be differences of views about time periods, do you accept the delineation between the retention of metadata, which is what is suggested, and the preservation of content?

Mr Singleton : Absolutely. It is a distinction, and it is a distinction that is very relevant to striking the balance between privacy and law enforcement and other interests, including commercial interests.

I know the carriers think that money will have to be spent on this but, if I could put them to one side, I think that from the public's point of view, or the point of view of many citizens, the idea that all phone calls would be tape-recorded and kept for a period in case they needed to be listened to later is a step way too far. Although it would help law enforcement, it is not something I think any law enforcement agency is asking to have.

There are many ways to classify things but there are perhaps three ways of classifying here. There is content such as telephone calls, which is at the top level, that requires the most privacy and the highest degree of scrutiny and a warrant before interception occurs. Then there is content such as short message services—text messages—which are short things, which of technological necessity will be retained for a short time and perhaps often will not be as private as spoken phone calls, although that may reflect my age. Then there is the metadata of which you speak, which, if I may draw an analogy, is a bit like a phone bill. I would think that many citizens would want far more privacy protections for the content of what they actually say on the telephone than for the contents of their phone bill. Privacy applies to both, but perhaps there is a need for a graded set of regulations that recognises the difference. I am certainly not arguing that telephone calls—people's spoken words—and analogous things should be recorded at all. There is room for a short period of retaining some content data like SMSs—that would be the highest and there may be some lower forms of data. Metadata is in a different category altogether, one would think, when trying to strike the balance.

Senator FAULKNER: You have given a detailed answer to my question, which I appreciate. But you accept a proposal, putting aside length of time, that for a data retention scheme it is appropriate that it be a metadata retention scheme as opposed to a content retention scheme?

Mr Singleton : I just want to be careful about my role as a witness. I am not here to advocate a public policy conclusion. I do not want my evidence to be construed as coming to a conclusion one way or the other because that is, with respect, parliament's role. With that qualification in mind, we would like to have some data retention of SMSs, but I do not press very hard for it because I can see powerful arguments on the other side.

Senator FAULKNER: Yes, but you do come before us and make a strong statement about the length of time.

Mr Singleton : I was talking about metadata when I was talking about all of that.

Senator FAULKNER: I am just trying to be absolutely clear, not about your status as a witness, but about the important evidence that you are giving to this committee.

Mr Singleton : The discussion I had with, in particular, Mr Ruddock about the use and the value of the data I was talking about and what you are calling the metadata.

Senator FAULKNER: But you would acknowledge that at the moment the proposal for a data retention scheme, which in the discussion paper is proposed to be up to two years—I hear your point about the length of time, but let us put that aside for the moment—places an obligation for the retention of metadata on certain entities and there is no obligation at the moment for them to retain such metadata, regardless of incidental requirements under legislation, which might be tax law or other legislation.

Mr Singleton : There is no obligation in the telecommunications regime to do that.

Senator FAULKNER: Correct.

Mr Singleton : It comes up elsewhere and, in some respects, they choose to keep the data for their own needs-or have chosen to do so in the past. Their commercial practices are changing and they are now choosing not to keep it, but some of those needs arise from tax and contract law issues.

Senator FAULKNER: But you certainly support the enactment of a new obligation in telecommunications legislation for the requirement for the retention of such metadata—that is what you have said to us—and the issue you raised with us specifically about that is the length of time.

Mr Singleton : Absolutely correct.

Senator STEPHENS: Mr Singleton, can I take you to some of the other proposals that are in the discussion paper, and one is the proposition for a single telecommunications interception warrant authorising multiple interception powers—do you have a view about that?

Mr Singleton : I think it is becoming increasingly necessary. There is a type of warrant that is presently available which goes in that direction called the named person warrant under section 46A of the current act. I should say I have a slightly distorted view, because we are dealing with organised crime figures who have international networks with technology experts working for them and that is perhaps different from some other agencies. Be that as it may, we are finding different technologies being used in sequence. For example—not a very good example of that—we have criminals who will walk around town with a pocket full of SIM cards. They will make one call, throw the SIM card away, make the next call and throw the SIM card away. Each of these is done on a different telecommunications service, and there is no way of knowing what services they are going to use. It would be impossible to get a warrant for the individual services because the person will use the service for one call only and throw the service away—the SIM card being the service.

The named person warrant allows us to do it for that person for all the services. There is also a thing called a device warrant. We had a warrant that caught this person, but he will not be the only one. What we are finding is there are now people using internet based technologies. There are all kinds of smartphone applications which allow for various communications. There is something called Skype, which is a kind of TV telephone which my children started using last week—I always leave the room; I certainly keep out of the picture, which is consistent with my job.

These technologies are moving so quickly that I support a one-warrant regime. There is a practical reason—there are many reasons—the amount of data that is now flowing through the system is huge. We do not have the resources to keep on top of it. If we were to tap onto somebody's broadband network, we would get movies and all kinds of stuff we do not want to watch—or at least I do not want my staff watching. I believe there is a proposal for attribute based warrants. The warrant can say you may intercept according to the following attributes, and it will be very useful to be able to say: you may intercept the emails coming and going through this facility but not the movies. That is very good for privacy, because law enforcement does not need to know what movies criminals are watching by and large; they need the emails with perhaps people in Thailand. We have got a job that relates to that country at the moment.

The single-warrant regime will introduce flexibility that is good for resourcing levels. It will enable privacy to be enhanced and has a better chance of keeping up with the technology.

Senator STEPHENS: How would you see a single warrant operating in the environment, say, an internet café?

Mr Singleton : It will depend on the ingenuity of those who are framing the individual warrants; but if it is known that a particular figure goes down to his or her local internet café on a regular basis to communicate with some cocaine trafficker overseas, one could get a warrant to intercept only that person's communications coming out of that café. Or one could get a warrant for that person's communications out of all of the internet cafes in the district. That is far preferable to intercepting the café, which could be done at the moment but it would of course pick up a vast number of other people's communications, which we do not want, and that would absorb resources and it would be unfair to all of those other customers. So the one warrant regime actually allows for much more precisely targeted interception on those who a tribunal member or judge is satisfied are properly investigated for serious crime.

Mr WILKIE: I have a follow-on question. Take the internet café scenario: don't you have to monitor everyone, ultimately, to identify the person of interest and then focus on that person?

Mr Singleton : Are you thinking prospectively, if there was a one warrant system?

Mr WILKIE: Yes.

Mr Singleton : Not necessarily. If the warrant is properly crafted, no. For example, you could identify the email addresses overseas with which your target is communicating and intercept only emails coming out of the internet café going to those email addresses. It might be a classification of email addresses, such as email addresses in the Americas. That would capture a few innocent people but it would be much more tightly focused on the suspected criminal in question. You would not have to, as you might have under old technology, intercept everything, have somebody listen or look and then say, 'We will quarantine that. That was not us.' The computer technology will enable us to latch upon IP addresses, Mac addresses, email addresses and just filter it out automatically rather than have staff members looking at that material at all.

Mr WILKIE: Although strictly speaking you would need to monitor—correct me if I am wrong—at least superficially, every communication to at least identify that address you have referred to?

Mr Singleton : I imagine that might be right. I am not particularly technical but I imagine that might be right. It is perhaps an improvement to have an automatic approach of culling things out rather than having people listening.

Mr WILKIE: Just to be sure, then, is the New South Wales Crime Commission calling for a seven-year retention of metadata?

Mr Singleton : I am not calling for a particular number. I am trying to explain that the longer the retention the greater the evidence that will be available to solve crimes. There is no magic threshold, like five years, where suddenly the value drops off. If there were some sine curve peak where it dropped off suddenly, or if there were noticeably a turning point, I would let you know. But I am not aware of one. The longer the better.

Mr WILKIE: I think your testimony is particularly helpful today, because so much of the discussion around this is to do with the terrorist threat. People have all these preconceived ideas about what the government is interested in, and I think it is very helpful for us all to understand that agencies like your own are out there every day investigating crime, solving murders and using this information. I have certainly found it a very useful reminder that this has got a very day-to-day practical application—what the government is considering.

You mentioned that there might be scope for better auditing if these sorts of reforms were to be implemented. Are there other safeguards that might be considered if these powers were to be expanded?

Mr Singleton : I am sure the answer is yes.

Mr WILKIE: Some witnesses have spoken about the Commonwealth Ombudsman, for example, having a greater role. What is the oversight of the New South Wales Crime Commission at the moment?

Mr Singleton : Specific to this topic, or more generally?

Mr WILKIE: More generally, please.

Mr Singleton : I will start with this and then go to the general. We are audited each year by the Commonwealth Ombudsman for compliance with the stored communications aspect of the legislation. We are monitored by the New South Wales Ombudsman for compliance with a number of other aspects. So the latter covers more territory than the former.

Presently, subject to the following scrutiny, that which applies generally to government agencies—Treasury, our ministry, the Auditor-General's Office in this state, and the Police Force if we are committing crimes and that sort of thing. We are also subject, generally, to the Ombudsman, and in certain circumstances to the Independent Commission against Corruption. But that is limited, because we also have the Police Integrity Commission, which is a body hitherto of comparable size and resources to our own, which is exclusively monitoring us in the New South Wales Police and conducts extensive investigations into us.

Mr WILKIE: So, if a member of the community is concerned at the commission's conduct, who would they go to currently?

Mr Singleton : Currently, of course, they could complain to me. If it was a matter of misconduct I would promptly refer it to the Police Integrity Commission and also take my own action. They can go directly to the Police Integrity Commission and make a complaint or a comment. Depending on the topic, they could validly go to the Ombudsman, the New South Wales Police, the Auditor-General and a variety of other agencies. Our most resourced and focused scrutiniser is the Police Integrity Commission, and most matters would go there. Even if it went elsewhere, I have to refer all matters that may concern misconduct to that body.

I should say that the New South Wales parliament—that is, the two chambers—have recently passed a new Crime Commission Act 2012. I understand it is due for Royal assent and will commence soon. Under that act we will also be subjected to an Inspector of the Crime Commission, whose exclusive responsibilities will be to audit our function and conduct investigations et cetera. We will also be subjected to the relevant parliamentary committee for the Ombudsman, the Police Integrity Commission and now ourselves. So we have more scrutiny arrangements than any other body in Australia, of which I am aware.

Mr WILKIE: Okay, why then did you suggest that more auditing might be warranted?

Mr Singleton : The area of concern is that the auditing at the moment, appropriate as it is—and I have to say, it is done well and it is done fairly by the two ombudsman's offices—focuses a lot on form and not often on the ultimate substance, and that is the honesty of affidavits used to obtain warrants. That is a very difficult topic, but there is no regime at the moment that effectively looks at that. It is very difficult to do. It would not be practical, I imagine, to have an agency which audited every affidavit that was ever put up, but I am suggesting that consideration could be given to allowing the Ombudsman, or another agency, to come into a law enforcement agency and say, 'I'd like to have a look at five affidavits; I'm going to scrutinise them and find out whether the evidence in them was true or complete'—or whatever. The approach of the Crime Commission is to put in a fair amount of detail. I have consulted with the Administrative Appeals Tribunal in Sydney, which issues most warrants for New South Wales agencies, as to their needs. I reformed the format and content of our affidavits. Part of the feedback I got was that our affidavits are about twice as long as other agencies', and that is a tedium for them. But we include not just that we suspect certain things, and we have heard certain things, but the corroboration that we have been able to find—and, perhaps most importantly, it is the policy of the Crime Commission to bring forth any material that would go against the decision that we are asking for. I am a lawyer—if you don't mind, keep that to yourself, for reputational reasons!—

CHAIR: You are on Hansard. I think that is going to be hard.

Mr Singleton : One of the principles of legal ethics is that if you are making an ex parte application to a judge—that is, an application where the other side is not there—you must disclose the full and fair picture of the situation and in particular draw the judge's attention to matters that the other side might want to put up if it had the opportunity. We apply that ethic to our applications for warrants; we think that is appropriate. But I am aware of a case where an investigation went on for in excess of two or three years with telephone interception occurring on a solicitor's telephone and at the end of that interception—assuming it has ended—not one call ended up being used in evidence in the relevant matter.

Legally, there is no such thing as a rollover warrant, although that jargon is often used. You get a warrant for 90 days or less. If you have finished your 90 days and you want to continue tapping the telephone you must go and get another warrant with another affidavit—you start almost from scratch—but you have to tell the tribunal member or federal judge what was the value of previous interceptions. I find it difficult to understand how a solicitor's telephone could be intercepted for two or three years or whatever the period may have been—I do not know what it was but it seems to have been a long time—and no evidence emerged. I do not know what was said to the tribunal member to keep rolling it over, to use the jargon; there is no scrutiny of those things. There may be a perfectly good explanation for why that happened, but I cannot have any confidence in that because there is no regime.

Mr RUDDOCK: Can I just pin you down on that. I am not familiar with criminal prosecutions, but if the evidence on which a person was prosecuted was derived from telephone intercepts, wouldn't the defence lawyer at least test if the warrant had not been properly sought and obtained in order to bring into question the evidence?

Mr Singleton : No. It is very difficult for defence lawyers to do that. I should say the example which I had in mind was not one that resulted in a criminal prosecution. It is one that resulted in public hearings of a public inquiry and the telephone tap material did not get tended in the public hearings, so it was a slightly different situation.

But if I may attend to your question: in a criminal trial the prosecution, if it wants to get an intercepted telephone call in evidence, say, before a jury, it must first tender the warrant to show that there was a lawful process and then it tenders the product, and that is all that is required. The defence may object to the tender of the warrant if it has a proper ground. If, on its face, the warrant is invalid then that piece of evidence is not going to get before the jury. There are limited other bases on which—

Mr RUDDOCK: But why couldn't they ask for the affidavits?

Mr Singleton : Because the law does not easily facilitate it.

Mr RUDDOCK: Does it suggest that they can't?

Mr Singleton : Yes, it does. Firstly, the affidavits will routinely and properly be the subject of a public interest immunity claim if subpoenaed, because affidavits contain the identity of informers, various police and other methods of inquiry that must not in the public interest be disclosed. But, beyond that, the courts have distinguished what can be done in the course of a criminal trial and what needs to be done only in the course of an administrative law proceeding to set aside a warrant.

If a warrant was obtained by fraud or on the basis of an application that was not a true application then it can be challenged in the criminal court because the criminal court will have jurisdiction to say: 'That is not a true warrant. I will not admit it into evidence.' But if there is an apparently true warrant and the real challenge is that the affidavit that got it was not good enough then the criminal court has no jurisdiction to judge that matter because it is the member of the Administrative Decisions Tribunal or the authorised federal judge who has the authority to decide whether the affidavit is good enough to warrant the issue of a warrant, not a criminal trial judge. The distinction is drawn in the 1995 High Court case of Ousley v The Queen. It is, with respect, a matter that requires some thinking about to get the dividing line between what can and cannot be done. But it is certainly not the case that defence lawyers are able, with any ease, to subpoena or otherwise obtain the affidavits which underlie a warrant application and it is not easy for them to challenge the validity of the warrant.

Mr RUDDOCK: I am looking at what you told me about the level of scrutiny of your organisation—and now a new inspector. It is almost, as my father used to describe it, a case of Chinese laundries—where everybody takes in each other's laundry. The number of investigations which are potentially there must raise some questions about the overall framework in which the supervision is occurring. The question arises: what is the extent of the evil we are endeavouring to identify? Are you suggesting to me that there needs to be a regime to independently test the evidence offered to secure a warrant—when that has been before a judge or an AAT member—and that you need to have all warrants subject to some further additional independent scrutiny?

Mr Singleton : No.

Mr RUDDOCK: Why we would go down that route?

Mr Singleton : I am not going that far. I am drawing attention to an issue for your consideration but I am not suggesting that all warrants should be—

Mr RUDDOCK: Are you giving me evidence that there is a major problem with evidence being adduced to obtain warrants—that it is flimsy and contrived?

Mr Singleton : No, I am certainly not. The affidavits that we prepare in support of applications for telecommunications—

Mr RUDDOCK: Yes, I heard you did it perfectly. I thought you were talking about other people's warrants.

Mr Singleton : I was referring to an example which has drawn my attention to the issue. But I think it is reasonable for the public to know what sort of scrutiny agencies impose upon themselves. In our agency, the deponent is often a police officer or, occasionally, a member of our staff. We actually put up two affidavits, one of a formal nature and one of a substantive nature, and I am referring to the latter. If a police officer does it, it is then reviewed by one of our intelligence analysts. It is then reviewed by an intelligence manager and it is then reviewed by one or, more usually, two lawyers. It is then taken up. The lawyers of course do not necessarily know what the facts are, but the police officer, the analyst and the intelligence manager are responsible for knowing what is going on and making sure these things are accurate. The lawyers are an additional level of scrutiny.

All I am saying is that I am aware of the possibility—and I am aware of one case where this may well have occurred—of affidavits lacking something and I am drawing attention to the fact that there is no auditing of it. I am certainly not saying that there is a significant issue here or a big problem. I would anticipate that, law enforcement agencies being populated with humans, there will be defective affidavits but that that will be a very small problem. But there is no audit regime. All I am suggesting is that perhaps a handful of affidavits a year could be examined. It would be a discipline on those who swear affidavits to know that the Ombudsman might choose their affidavit and say: 'Show me the underlying file. Show me the intelligence brief which has been translated into this affidavit. Let me see all of the material to see whether or not it was fairly done.'

Mr RUDDOCK: That was very helpful. I just want to ask you about encryption. Has your organisation experienced difficulty in pursuing inquiries because of encryption of data you would expect to be able to access?

Mr Singleton : Yes, save for the word 'expect'. High-grade encryption is very difficult to crack, and I would not expect to be able to crack some of that encryption in the foreseeable future. That is a technological problem, but it is certainly a big problem.

Mr RUDDOCK: And to what extent, in relation to your investigations, is that an issue?

Mr Singleton : It is an issue to a significant extent in the drug trafficking area, because there are international organised crime organisations that are using encryption technology, which is communicating with computer services in other countries. With respect, I do not want to go into detail publicly, but there is some very sophisticated technology being used by criminal organisations, and encryption is a part of it.

Mr RUDDOCK: So you would believe that in reviewing this legislation it is in the public interest, and proportionate, that encryption issues be addressed.

Mr Singleton : Absolutely. I understand that in some jurisdictions arrangements have been made with technology companies that decryption facilities be made available to government authorities. That will certainly be useful. There are two issues: there is encryption and there are internet protocols, or codes. Encryption is a far more difficult problem than codes. The codes are those computer programming type of things that allow devices to talk to one another. The problem we have there is that there is a vast number of them, and they are changing all the time. With the resources we have, it is very difficult to keep up with changing internet protocols. One of the solutions that has been aired is to establish a national interception agency which will do all of the interception and then feed the product to those who have a warrant to have it. This is a model that is partly in place in other jurisdictions. It will allow pooling of resources, and it will also have a number of safety advantages for privacy and otherwise.

CHAIR: Thank you very much. That concludes the questioning. If we have any further questions, our secretariat will write to you.

Mr Singleton : I will certainly be at your disposal. Thank you very much.