Tapping into controversy

03 March 2012 By Lawyers Weekly

Depending on your viewpoint, Queensland this month has either caught up with the rest of Australia in the war on crime, or slipped further down the path toward an Orwellian “Big…

Depending on your viewpoint, Queensland this month has either caught up with the rest of Australia in the war on crime, or slipped further down the path toward an Orwellian “Big Brother” state of eroding civil liberties.

After years of arguing with the Federal Government, the Queensland Government has announced that state law enforcement agencies will have telephone tapping powers, similar to those of other states.

The move is being touted by its advocates as a significant step forward in the battle against organised crime and outlaw bikie gangs — two of the principal targets identified by the State Government.


Officially, telephone intercept powers will also be able to be used for investigations into a range of serious crimes including homicides, armed hold-ups and drug crimes.

However, in the PR spin accompanying the announcement, what was not detailed was just how far these powers of interception will go. “Telephone tapping” goes beyond just fixed landlines. It includes wider telecommunications systems and includes calls and SMS messages on mobile phones, and eavesdropping on private emails.

The potential for abuse of these new powers and an erosion of civil liberties is enormous and tight controls and restraints need to be imposed on these new, untested powers.


A confirmation from the Queensland Police Minister’s office that emails, mobile phone calls and conventional telephone lines would be covered by the phone-tapping powers emphasises the importance of having each intercept application carefully overseen by the Queensland public’s watchdog, the Public Interest Monitor.

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The Queensland Public Interest Monitor — whose role it is to guard the rights of the public — was created under the Police Powers and Responsibilities Act 2000, to ensure that the police and Crime and Misconduct Commission (CMC) do not abuse the process of obtaining intercepts or covert search or surveillance warrants.

Queensland’s Public Interest Monitor is Colin Forrest, a Brisbane barrister who maintains a low public profile in his role as PIM. The public know little about him and he rarely comments on his watchdog role.

Queensland’s wish to involve the Public Interest Monitor in phone-tapping applications caused an impasse with the former Howard government, which rejected the idea. The Rudd Government has now agreed to the involvement of the PIM in the application process, prompting a PR barrage about how Queensland is getting tough on organised crime and bikie gangs.

Until now, Australian Federal Police have had the power to tap telephones in Queensland under federal legislation, but the Queensland Police and the CMC have been restricted. Houses and cars could be bugged, but not telephones.

Now that landlines, mobiles and emails are fair game, the phone tap powers at state police level will inevitably impact on how criminal defence cases could be run in future.

If the police are presenting taped conversations or intercepted emails as evidence, then defence lawyers will inevitably want to vigorously investigate whether the tapes or emails are genuine or have been edited or tampered with in any way. It’s going to complicate trials and, maybe, make some of them longer. It will probably also generate more appeals too.

The requirement for all phone tap requests to be vetted by the Public Interest Monitor is a positive move, to be welcomed, but you do wonder at the potential workload heaped upon this person, and how the PIM will cope, as law enforcement agencies go after the Mr Bigs of crime purportedly lurking in the Sunshine State.

One proviso we should insist upon is that the information provided to the PIM in support of phone tap or eavesdropping applications must also be made readily available to the defence in the event that evidence gathered forms part of a Crown case.


The activities of all parties involved in this process must be transparent — unlike some of the existing powers that the police have available to them (such as search powers with and without a warrant).

Transparency will guard against potential abuse. However, although the police minister has stated that the new powers will officially be used for investigations into serious crimes such as homicides, armed hold-ups, bikie gangs and drug crimes, unless rigidly controlled the powers also raise the spectre of the Queensland law enforcement agencies using phone taps for “fishing expeditions” against Queenslanders.

Indeed, there is much about the new laws which falls into the grey area of how it will affect civil liberties. Given phone tap and email eavesdropping powers, the police could well be able to listen in on private conversations between lawyers and their clients. No reassurances have been given that traditional areas of privilege and client confidentiality will be maintained.

Some of the questionable emails that often circulate around workplaces could also be fair game for snoopers. We simply don’t know and the government is not saying.

Above all, we need to avoid the spectre of giving the CMC and police the power to just tap phones in the hope of catching someone out. When you start chipping away at the public’s rights, you undermine the foundations of our civil liberties.

Once you have the police tapping phones, eavesdropping on emails and so on, the risk of these powers being extended is enormous. At the moment the phone taps may be restricted to homicides, armed hold-ups, bikie gangs and drug crimes, but once the powers are there it’s relatively easy for the government to extend them.

The Queensland Police Union has been stirring the pot for some years, arguing that organised crime networks specifically target Queensland because of the lack of surveillance powers in the state.

This is good PR “spin” for those wanting eavesdropping powers, but fails the test of reality. Phone taps have not won the war on drug crime in Melbourne or Sydney. It’s naïve to think that they will achieve that in Queensland either.

Another area of concern is that while the PIM’s role is to ensure that police applications for telephone tap and intercept applications are accountable, there does not seem to be anyone in place to impose any checks and balances on the policy makers.

Nor do we know whether information gleaned from intercepting our emails, mobile and fixed line telephones will be shared with other official agencies such as the Federal Police and the anti-terrorist bodies? Where does it all end?

Tight and transparent supervision of the process is essential and it’s inevitable that prosecutions stemming from intercepted information are going to be vigorously challenged in the courts.

Phone and email intercept powers in Queensland will complicate justice and we have to be on our guard that our civil liberty protections are not chipped away for political vote-catching purposes.

Jim Coburn is a partner with Brisbane- based national criminal defence law firm Ryan & Bosscher Lawyers.

Tapping into controversy
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