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

BAUER, Ms Anne Marie, Manager, Telecommunications Interception Unit, Police Integrity Commission

O'BRIEN, Ms Michelle Margaret, Commission Solicitor, Police Integrity Commission

[10:04]

CHAIR: I welcome representatives of the Police Integrity Commission.

Although the committee does not require you to give evidence on oath, I remind witnesses to this hearing that it 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 a 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 before we move onto questions.

Ms O'Brien : Thank you, I will make a very brief opening statement just to tell you a bit about who we are. The Police Integrity Commission was established in 1996 following the Wood Royal Commission into the New South Wales Police Service. The commission's primary function is to investigate corruption and misconduct by members of the New South Wales Police Service, now called New South Wales Police Force. The Hon. Bruce James QC has been the Commissioner since January this year. He is unable to appear today and has asked me to attend in his place

The range of activities investigated by the Police Integrity Commission is wide. Police officers investigated by the commission have in the past been convicted of a range of offences, including armed robbery, supplying prohibited drugs, breaking and entering and perverting the course of justice. In August last year, a former assistant director of the New South Wales crime commission was found guilty of conspiracy to import prohibited drugs, following an investigation by the Australian Federal Police. That matter led to the jurisdiction of the Police Integrity Commission being expanded to include oversight of the New South Wales Crime Commission.

Because the individuals investigated by the Police Integrity Commission are usually law enforcement officers they are conversant with investigative methodologies and are generally more difficult to investigate. As a result, the commission is particularly reliant on covert means of evidence gathering, such as telephone interception. The commission's submission to the committee's inquiry is concerned only with the telecommunications interception reference. The Police Integrity Commission must meet the same statutory thresholds and observe the same privacy requirements as the other interception agencies when applying for telephone interception warrants. All interception warrant applications are prepared at the commission's Sydney office. They are checked by a lawyer and thereafter they are reviewed by the commissioner himself before the warrant is sought. Once a warrant has been issued intercepted information can be used by the commission for the purpose of investigating criminal activity and for investigating officer misconduct. From time to time, the commission engages in joint investigations with other law enforcement agencies, both within and outside New South Wales. The commission has also provided staff and resources to assist Commonwealth counterterrorism operations.

Apart from the challenges which confront all interception agencies as a result of rapidly evolving technology, the commission is also keen to ensure that the telephone interception legislation is modernised to reflect the current law enforcement environment, where different agencies work together and need to be able to exchange intercepted information efficiently and use it effectively for the range of purposes authorised by the parliament. Thank you for the opportunity to make an opening statement.

Mr RUDDOCK: I note that your organisation participated in the preparation of the New South Wales submission and that you support it.

Ms O'Brien : Yes.

Mr RUDDOCK: We are still trying to find out who is going to speak to the New South Wales submission. Are you going to speak to it?

Ms O'Brien : I'm not. I can make some inquiries for you and let the committee know. It was my understanding that the government was aware that certain individual agencies had put their own submissions in and so it was happy that individual agencies were available to answer questions. I suspect it probably considers that representatives from individual agencies would be better placed to answer questions from the committee. I can certainly make a phone call during the break with someone from the panel that was responsible for the government's submission and let you know.

Mr RUDDOCK: For instance, the submission deals with issues relating to ASIO investigations and offers some suggestions, but I do not know who to ask.

Ms O'Brien : I can offer to make some inquiries that for you and suggest that someone comes along if there is time in your program today.

Mr RUDDOCK: It seemed to me that your submission was primarily about amendments that might enable information that you gather, or other integrity or investigatory bodies gather, to be shared. It is an interesting proposition, and obviously something that we would entertain. But I do not really get, from the submission, a great deal of information about the extent to which the information you receive is useful. I have no idea about the numbers of investigations that you undertake; the extent to which you access telecommunications data in its various forms—not just telephone intercepts but other metadata—the extent to which you use it; the extent to which the time that it is kept is useful; whether you are likely to be aided or hampered by some of the proposals in relation to those matters; and whether the rationalisation of the warrant procedures to cover broader communications mediums, rather than just telephones and search warrant methodology, is useful. You have not offered a view on any of that.

You have not said anything about whether your organisation is going, as others claim, dark, and whether the existing regime is now losing its usefulness—not because the law is inadequate but because the methodologies have changed. Do you have a view on any of those matters?

Ms O'Brien : I will just make a comment. The commission deliberately kept its submission brief, basically to avoid the risk of reinventing the wheel. As Commissioner James said in his covering letter, he does support the submission that was put on behalf of the government. This brief written submission that was made on behalf of the Police Integrity Commission alone was simply to highlight some particular aspects of the legislation that we would like looked at, that we were afraid might get overlooked in the broader scope of what you are being asked to inquire into.

Broadly, this commission supports the views that are being expressed by all the other law enforcement agencies in relation to the matters that you have raised. There is statistical information in relation to the extent to which we use interception and the other resources available to us under the telecommunications legislation. I am quite prepared to provide that sort of information to the committee. I think it would be better if it were done in writing than for me to try and give you some idea now.

Mr RUDDOCK: When I questioned the previous witness I was looking at the extent to which, for instance, access to metadata—I presume you are familiar with the term—beyond a two-year period may have been useful in relation to their inquiries. I am interested in whether his agency's situation is unique or whether there is like experience in others.

Ms O'Brien : I anticipate that every agency will tell you that there have been occasions in the past, and there will be occasions in the future, when they would have been assisted by call associated data that extended back past two years. My own agency has been involved in an investigation, in the past, where a police officer was accused of involvement in the disappearance of a young woman who is believed murdered, whose body has never been found. We sought call associated data in relation to the persons of interest in that matter. Because different carriers were involved, one carrier was able to give us some data; another carrier was not able to. That thwarted how far we could go in our investigation. That is a classic example of where there was no regime in place mandating the length of time they should have held records. So the success of investigation was thwarted, if you like.

Mr RUDDOCK: But in terms of proportionality, which is the argument that is put to us, one investigation involving a missing person and not being able to get access to that data, I guess, is not a big problem at all in terms of worrying that these investigations are thwarted.

Ms O'Brien : I cannot mount a strong case to you to extend it beyond two years. Two years is the period that has been on the table for a long time in terms of what would probably represent an appropriate striking of the balance. It is a time frame that the law enforcement agencies have had quite a long period to get used to, and I think it is generally accepted that it represents compromise between what we would like in an ideal world and what we will probably have to live with once all the processes and the machinations have been gone through.

Senator FAULKNER: It of course equates with what we have with what is called the European Union Data Protection Directive, and I think that is something of a model that law enforcement, intelligence and security agencies have been looking at. Would you accept that that is the case?

Ms O'Brien : Absolutely, and that is why I say the law enforcement agencies in Australia have been aware for a while that that is most likely to be the figure that is advanced as representing the acceptable compromise. This agency has not deliberately emphasised its desire to have a data retention regime in place for the future because, as Mr Singleton said, we are used to having access to core associated data because up until now carriers have always kept that sort of information for other reasons, and under the telecommunications interception legislation we have been able to lawfully access it. It would be a huge blow to law enforcement across the board if that sort of data was not available, because it is fundamental to every criminal investigation, particularly at the initial stages of an investigation.

Senator FAULKNER: But it is not available now, is it—there is no obligation on carriers to retain it. In a sense it may be available but there is no obligation for it to be retained.

Ms O'Brien : That is right. Under the telecommunications legislation there is no obligation for it to be retained, but it has been such a part of the landscape up to now that the system has worked, because the telecommunications legislation has imposed an obligation on carriers to provide it if they are furnished with the appropriate authority, and to date the carriers have provided it and it has been extremely useful to the agencies.

Senator FAULKNER: But if the systems worked, some might very reasonably ask why fiddle with it. It has worked—they are your words—so why change it?

Ms O'Brien : Because the landscape is changing and because it is not anticipated that carriers will continue to keep individual call charge records in relation to the services they provide to their clients in the same way that they have in the past.

Senator FAULKNER: Let us have a look at the example you shared with us earlier, which I thought was helpful because you mentioned that in order to proceed with a matter you were depending, effectively, on stored data from two carriers—one carrier had such stored data, which I assume you were able to access; one did not have such stored data. Let me ask you, in that case, was the issue whether the data was stored or did the issue relate to the time frame? So were you looking at stored data in a period beyond two years, or two years or less? That might be helpful for us to get a complete understanding of that example.

Ms O'Brien : It is a good example to demonstrate the problems. In that case, the time period we were looking at extended back beyond two years. Because the two telephone services we were interested in were subscribed to by customers who had taken up different plans, the carrier kept the data in relation to one plan and not in relation to the other plan. So it really came down to the sort of plan. Whilst I am not an expert in what telecommunications carriers are likely to do in the future, I understand that the nature of plans is anticipated to change so much that individual call data will not be provided to people for billing purposes in the future and so therefore that easy access that law enforcement has had to that information up until now might diminish in the future.

Senator FAULKNER: I think you are right to say it is an interesting example because, as I hear what you have just said to us, if we had enacted a two-year data retention scheme that issue would not have been addressed.

Ms O'Brien : It would not have helped us in that case.

Senator FAULKNER: It would not have helped you, yes.

Ms O'Brien : No, but it demonstrates that if there were a level playing field where we all knew that data had to be retained for the two years, regardless of the plan, at least we would know. As I said earlier, most law enforcement agencies would tell you ideally they would like more but they accept that a balance has to be struck.

Senator FAULKNER: Except that—this is hypothetical, obviously, and I do not like asking questions based on a hypothetical situation—if we had enacted a two-year data retention scheme then there would be an obligation on the second carrier to have such metadata stored for a two-year period, but there would be no suggestion that a carrier or any other entity would be prevented from storing data for a longer period.

Ms O'Brien : No, that would be a private matter for that organisation.

Senator FAULKNER: In the example that you give, you are going to two carriers. Clearly they have different policies in relation to the storage of data. This meant that one carrier was able to assist you with progressing inquiries about a matter; another, which obviously had different policies or practices, was not of assistance to you.

Ms O'Brien : You are speculating about whether an agency would be able to access data beyond the two-year period.

Senator FAULKNER: No, I am trying not to speculate. I am just using your example and coming back to the proposal that is before us which we are asked to give views on. Of course we can talk about the issue in the broad, and as part of that we can talk about the issue of proposed time limits. I suppose my point is just to say a change to the law, if it were to be contemplated in the form proposed in the Attorney-General's Department's discussion paper, would not have solved your problem.

Ms O'Brien : No.

Senator MARK BISHOP: There are two issues I want to pursue: your issue 1, communication of intercepted information between agencies, and issue 5, whether restrictions on communications in the act override statutory powers of PIC and similar anticorruption agencies. The terms of reference of this inquiry are extraordinarily wide—really in some respects too wide. They cover corruption, criminal misbehaviour, security concerns and, arguably, public sector corruption as well, at both police and non-police levels.

A range of the state agencies have been given by their state parliaments extraordinarily wide powers, in that some of the official corruption commissions and the like are essentially inquisitorial agencies. Rules of evidence do not apply, you cannot refuse to answer questions, lawyers are not permitted, and material can be provided in court that you are not aware of and not tested beforehand because they are essentially inquisitorial agencies.

Your issues 1 and 5 seek in their heart that information obtained lawfully by an agency in a particular jurisdiction, generally via very wide powers, can be provided to any and all other agencies around Australia. To me it seems that with the wide powers that are given by one state parliament to one agency the evidence and material it gains in its investigations, which may not be permitted and which may often be prohibited in other jurisdictions, can be passed on readily.

Is that a fair reading of the powers that you seek in your issue 1 and issue 5? Because, if it is, it is an extraordinarily long leap in the investigatory powers invested by one minor state, perhaps on the other side of the country, becoming the norm around intelligence, security, corruption in public sector agencies in this country.

Ms O'Brien : No. I think it is an ungenerous interpretation of what is proposed in the submission. The point that was being made in the submission is simply that agencies presently work together cooperatively a lot. There are a lot more agencies in the landscape than there were when the telephone interception legislation came in. Most of the agencies, state and federal, have provisions in their legislation that enable them to share information and intelligence with other agencies. That happens on a daily basis, as you would appreciate, and the point in this submission simply is that, under the telecommunications interception regime, it is difficult and laborious because of the restrictions built into the legislation. It is really just a freeing up of the architecture to enable exchange of information to take place in appropriate circumstances. We are just talking about exchange of information between agencies on a confidential basis.

Senator MARK BISHOP: No, it is not as simple and as minor as that, Ms O'Brien. The Western Australian official corruption agency has very wide inquisitorial powers and is not bound by the sorts of rules of evidence that might apply in other states. Information it gains from its investigations, whether they be of a public sector nature, a criminal nature or an official nature, can be readily passed to agencies in other states and in other jurisdictions where similar broad powers have not been granted by those state parliaments—that is, the powers of investigation are much wider in some states than in others. It seems to me that your issues 1 and 5, when read together, suggest a lowest common denominator approach to the exchange of information. If that is the case, then I would like to hear the argument as to why you should receive information in this state that your state parliament has not given to your investigatory agencies. You seek the benefits of results from other states where much wider powers have been given by their parliaments.

Ms O'Brien : If you are talking about telecommunications interception information, the Western Australian Corruption and Crime Commission has the power to intercept telephones and receive telecommunications information, so what is proposed in that example is not to give them anything that they do not already have the power to get themselves. Similarly, under the telecommunications interception act, they have the power to receive that information from other agencies. All of the agencies that this commission deals with have the power to intercept telephones themselves and to receive telecommunications information from other agencies. What we are talking about is just a removal of some of the obstacles that serve no purpose, because all of the agencies are already set up with the power; they have been trusted by the parliament to intercept telephones and use that material. We are just talking about trying to remove some of the roadblocks so that agencies can get on and do their work a little bit more efficiently.

Senator MARK BISHOP: Would you concede that some agencies in other states have wider investigatory and inquisitorial powers than in this state?

Ms O'Brien : No, I would not concede that. I am not sure what example you are talking about.

Senator MARK BISHOP: The inquisitorial powers?

Ms O'Brien : No, I would not concede that.

Senator MARK BISHOP: At all?

Senator FAULKNER: Excuse me for interrupting, Senator Bishop. Ms O'Brien, you used the word 'roadblock'. Some people interpret the roadblocks as safeguards. This is yet another thing. We have talked a lot in this committee about balance. Given the sorts of questions that Senator Bishop is asking you, I would be interested in whether you are balancing this issue of the roadblocks you perceive—I understand that; I have read your submission—with the necessity, the absolute requirement, in security legislation for appropriate and strong safeguards?

Ms O'Brien : It is clear if you have read the submission made by the commission that none of the issues addressed in this submission really go to national security questions. They are more about the mechanics of the legislation and how it is used by this commission on a day-to-day basis. The examples that are given in this submission are probably regarded as pretty mundane in the context of the sorts of issues you are grappling with in your inquiry, but the sort of thing that the submission is directed at is the example given, where it is apparent from some telephone interception material that the New South Wales Police might have that there is some misuse of that power or some police misconduct going on in relation to the way the involved police officers are handling that material. They ask the Police Integrity Commission to look into it, because we have powers to conduct inquiries and bring people in and ask them questions in a hearing. We do that. The concerns are made out. We want to give the police the results of our inquiry so that they can take appropriate action but the way the act is presently worded prevents us from passing our material back to the police service because embedded in it is that intercepted information which they gave us originally, and a strict reading of the legislation says, 'You can't pass that back to them because you are not the originating agency.' This means that we were not the intercepting agency.

Senator FAULKNER: I accept that. Your own submission is entitled 'Submission by Police Integrity Commission to Inquiry by PJCIS into Potential Reforms of National Security and TI Legislation', and Commissioner James makes very clear that the submission does reflect—and you have reinforced this—on the statutory functions of the commission. I think that is helpful from the committee's point of view, but it does not alter the point that I make about the balance that this committee—and, you would hope, whatever legislation is finally enacted by the parliament—has to get right; in other words, that the parliament also has to get right. This issue of balancing what you talk about as road blocks—and I appreciate that—and safeguards is a big challenge.

Getting the balance right between safety and security on the one hand and appropriate individual freedoms and liberties, which we all want to defend, is a massive challenge for this committee. Even in relation to the five specific issues that Senator Bishop raised, which are important to be drawn to the committee's attention, in the statutory functions of the Police Integrity Commission the issue is still before us of finding that balance. Mr Ruddock used the term earlier in the hearing of 'finding proportionality'. That is what we are about. Hence, I think these are important issues and that is why I raised the concept of road block versus safeguard.

Ms O'Brien : I accept all of that. Perhaps the use of a colloquial expression like 'road block'—

Senator FAULKNER: That is fair enough.

Ms O'Brien : diminishes the gravity of what we are talking about. To go back to Senator Bishop's example, my point simply is that what I am talking about here is exchange of intercepted information between agencies that already have the power to obtain it and receive it, and it is going to be information that will be received by another agency, which will then still be subject to all the restraints and restrictions in their own legislation and in the Commonwealth legislation as to the use that they can make of it.

CHAIR: That is the heart of the issue: some states have wider investigatory powers and obtain information which they can pass onto others. I am just not persuaded that anyone has made the case that, because a corruption commission or an agency in one state has significantly wider powers to obtain information, it should be readily passed onto agencies in other states where their own parliament has chosen not to give them those powers.

Ms O'Brien : I am not sure which powers you are referring to.

Senator MARK BISHOP: The powers that go to investigation, the powers where rules of evidence do not apply, the powers where lawyers are not permitted in to attend hearings—those sorts of powers.

Ms O'Brien : Yes, but my point is that, if one agency legitimately passes telephone interception material to another agency, they are still bound by the restrictions that apply in relation to their use of any material in their possession.

Senator MARK BISHOP: I understand that. We were having a discussion earlier on the distinction between two years and seven years. In terms of the role of the Police Integrity Commission, we know, from various royal commissions, that investigations can go over many, many years into allegations of misbehaviour by police officers at all sorts of levels. If the time limit for retention of data is reduced from seven years to two years, will that have any significant impact on lengthy inquiries and lengthy internal investigations that might go over many years, perhaps decades?

Ms O'Brien : Obviously it would have an impact if an inquiry were seeking to obtain information that went back beyond two years, but I am not aware of many internal investigations that go on for decades.

Senator MARK BISHOP: Of police officers? Is that handled by other agencies in this state?

Ms O'Brien : We investigate police officers in this state, but internal inquiries do not go on for 10 years or thereabouts, generally speaking.

Senator MARK BISHOP: So it is not an issue at all?

Ms O'Brien : Is what not an issue at all?

Senator MARK BISHOP: A reduction in the retention of the data from seven years to two years.

Ms O'Brien : I can only repeat what I said earlier, and that is that two years will be a compromise for law enforcement. If we have to live with two years, we will, but more would be preferable.

Senator MARK BISHOP: But I do not hear you saying it is a major problem.

Ms O'Brien : No. I cannot say it is a major problem.

Senator STEPHENS: The New South Wales government submission proposes that consideration should be given to replacing the requirement to destroy records which is currently in the Telecommunications (Interception and Access) Act with provisions that acknowledge that lawfully obtained information may be required to be lawfully retained for legitimate law enforcement purposes. When we talk about safeguards and proportionality, that really goes to the issue of public concern about trawling information in the hope that something might be there. What is the position of the PIC in regard to that consideration?

Ms O'Brien : I would readily acknowledge that the desirability of retaining material probably has a lot more relevance in an antiterrorism context. So far as the Police Integrity Commission is concerned, while certainly it is the case that names come up in different jobs over time, we could not mount a forceful argument for the need to retain material beyond the normal period when we are presently obliged to destroy it. So I think probably our work is distinguishable from the work of other agencies that would get more benefit from retention.

Senator STEPHENS: The second issue is the proposition that a telecommunications interception warrant would be extended from 90 days to six months. Do you have a view on that?

Ms O'Brien : I might defer to my TI manager for that one.

Ms Bauer : We see 90 days as adequate time with which to have an interception in place. It becomes quite laborious in terms of the capture of information, the storage of information, the handling of information. Six months would seem an extraneously long time in terms of the volume that we are now seeing coming through in the current regime. We have had to upgrade systems to account for the volume as it is now. To increase that time frame would become quite laborious for us in terms of maintenance of that information.

Senator STEPHENS: Do you see any circumstances with the other agencies that you are cooperating with where a six-month period might be more preferable?

Ms Bauer : That would depend on the individual agency. From our perspective, and I would pass back to Ms O'Brien, I do not see that for our agency but I cannot speak on behalf of other agencies in that situation.

Mr WILKIE: Ms O'Brien, has the Police Integrity Commissioner identified any abuse of the intercept powers by members of the New South Wales Police Force or do you have any reason to be concerned that warrants are being obtained unnecessarily?

Ms O'Brien : No, we have never identified a case that has given rise to that concern. There was one high profile matter that caused us to conduct an investigation in relation to some intercepted information that had been released by some police officers. As a result of that investigation we published a public report titled Operation Vail and we also sought advice from the Commonwealth Director of Public Prosecutions as to whether the police officers involved should be prosecuted for unlawfully releasing some telecommunications information. The advice of the Commonwealth DPP was that there should not be a prosecution.

Mr WILKIE: How recently was that, and, very briefly, what was the gist of the matter?

Ms O'Brien : It was quite some time ago and it arose from an incident involving the Bulldogs rugby league club at Coffs Harbour and the subsequent investigation into an allegation or rape. There was a complaint made back in Sydney that as a result of some interceptions in place as part of that investigation there had been some material come off the intercepts that was subsequently passed on by certain police to a member of the Bulldogs rugby league club. The PIC conducted an investigation into that allegation and published a report to parliament.

Mr WILKIE: Is it within the PIC's responsibilities to check on the issue of warrants, to do a spot check, to make sure that they are warranted?

Ms O'Brien : No, we do not do that as part of our functions in relation to oversight of the police.

Mr WILKIE: Who oversees you?

Ms O'Brien : We have an inspector and a parliamentary joint committee as well.

Mr RUDDOCK: Have you had any experience with the encryption of material you want to access?

Ms O'Brien : I do not think encryption has presented a major challenge for us at this stage. I do not know if Anne Marie wants to add anything?

Ms Bauer : On a daily basis we deal with the codifying of records, as Mr Singleton previously stated. Encryption is fast becoming an issue for us but probably not to the extent of other agencies. However, we certainly have experienced it. I can only anticipate that that will grow as technology improves.

Mr RUDDOCK: If I was looking at a proportion of your investigations that might be hampered by lack of decryption, what would that be?

Ms Bauer : I could not give you an exact figure. I could possibly provide you with figures at a later time, if you require them.

Mr RUDDOCK: I am more than happy for that.

Ms Bauer : Certainly, of the operations that we undertake, of which telecommunications interception is a party to, then, yes, it is certainly increasing. I can say that much.

Mr RUDDOCK: Well, I reaffirm my interest in exploring some of the issues that I raised earlier. If you can include some data in relation to encryption, that would be helpful as well.

Ms Bauer : We will put some figures together and provide them to the committee.

CHAIR: Thank you very much for your evidence. If we have any further inquiries our Secretary will write to you.

Proceedings suspended from 10:44 to 10:55