Late last week the NT police contacted Darwin-based daily the NT News and asked the paper to reveal its sources of information about a specific leak from a serving officer in relation to a raid on the home of Darwin lord mayor Graham Sawyer.
Understandably, the NT News declined.
So far so good. The police would — or should — have known no journalist worth their salt would have complied with such a request. But the NT police have found loopholes in the laws that are supposed to regulate their access to private information. If the police can’t get the information they want by asking you for it, they will just walk around to your phone service provider and get them to report who you’ve spoken to and when — and you won’t know anything about it.
NT police have two pieces of legislation they can use to listen to your phone conversations or track your movements: the Surveillance Devices Act and the Telecommunications (Interception) Northern Territory Act both allow police to snoop on what you might regard as your private life. These laws concern the use of listening devices (bugs) on telephone lines for the purposes of monitoring conversations and other devices such as vehicle-tracking devices.
There are very good reasons why the police should have such powers — and why they should be tightly regulated. But it seems they take the view that regardless of the protections inherent in the law that where they suspect that a crime — any crime — has been committed they can ignore the spirit and letter of the law and access your phone records without your knowledge or consent.
In order to install a bug, the police need a warrant from a judicial officer — not always the most easily obtained authorisation.
McRoberts: … As I said to you we were obliged to investigate the allegation of a criminal offence. That is the only reason we checked the records. We checked the records for a very finite period to identify which police officer may have breached the Police Administration Act by use of confidential information … in this case a journalist’s phone records were interrogated for the purposes of a criminal investigation. It has nothing to do with limiting freedom of the press as has been suggested, it has nothing to do with trying to limit the number of police officers who provide commentary to journalists …
Compton: How often do you do this?
McRoberts: Not very often …
Compton: How often do you … how often in recent times have you accessed journalist’s phone records without them knowing about it?
McRoberts: Well I don’t know … well, if the investigation proceeds to criminal charges, you would know.
Compton: Can members of the government ask police to look at people’s phone records … what if the government was unhappy with someone and they put in a complaint … they say something is commercial-in-confidence, it embarrasses them and they put in a complaint … could police be investigating journalists’ records then and if they can how is that good for the democratic process?
McRoberts: Absolutely not … and this is a beat up… I’ve made it clear that if any body feels that their privacy has been breached or that police have acted inappropriately or contrary to the law, then the Ombudsman is in an independent position to investigate it. I’m happy to open up our entire process to a fair independent and objective examination.
Whether police would ever reveal to a court the original source — dubiously obtained phone records — of intelligence gained during the course of a criminal investigation remains to be tested. But, as NT Ombudsman Carolyn Richards pointed out to Crikey, there are some very real gaps in the law that the NT police appear to be taking full advantage of.
“Call charge records and access to them by NT police are not monitored by anybody under the NT Act or the Commonwealth Telecommunications (Interception and Access) Act. Police access call charge records by agreement with the carriers such as Telstra, Optus, Vodafone, etc,” she said. The only control is the Information Act and the Privacy Principles.
“There is no legislation preventing a tracking device being affixed to a vehicle if it is in a public place. The absence of provisions covering call charge records and use of them by law enforcement agencies (LEA) under the Telecommunications Interception Act leaves LEAs with no accountability or monitoring by the Ombudsman.
“The same comment applies to tracking devices under the Surveillance Devices Act. Any journalist could have a tracking device attached to his car for an indefinite period without his knowledge. The device would enable an LEA to know where the journalist went, who lived at every address he visited as the device is similar to a GPS . The device could be removed when the car was in a public place.
“In my opinion both of these lacunae in the legislation has the potential to allow abuse of the power and invasion of peoples privacy and the use of tracking devices and call charge records should be monitored and the legislation amended accordingly.”
Crikey asked Commissioner McRoberts several specific questions about whether they had accessed the phone records of any NT-based Crikey writers. The response was non-specific — “members of the community have a right to expect such details will remain confidential” and there’s “currently no intentions to amend the police authorisation process for accessing phone records in the Northern Territory”:
“Please be advised that the NT Police Ethical and Professional Standards Command does not disclose or divulge investigative tools used in the course of any of their criminal investigations (unless presented as evidence in court). The investigation recently under way was not about whistleblowing or a breach of media policy … It was, however, initiated as a result of an official complaint received following the illegal disclosure of confidential information by a police officer, the evidence for which was printed in an NT News article. This illegal disclosure was details from a confidential interview.”