Legislative Council
The Hon. IAN GILFILLAN: I seek leave to make a brief explanation before asking
the Minister for Justice, representing Minister for Police, a question about the practice
of police taping telephone conversations.
Leave granted.
The Hon. IAN GILFILLAN: The Advertiser of 15 September (page 9) carried a
story headlined `Police phone tap claim'. The crux of the story was that it had been
alleged that a senior police officer had breached the Listening Devices Act by secretly
tape recording a conversation with a lawyer who was representing another police officer.
The Police Complaints Authority looked into the matter and concluded that no
breach of the law had taken place. However, the Law Society's Criminal Law Committee has
reviewed the case and come to a different conclusion. The committee was critical of the
Police Complaints Authority, and the Law Society in a letter of 3 July asked the
Attorney-General to review the matter. The matter was referred to the Director of Public
Prosecutions, who has in turn provided legal advice. I have received a copy of two letters
from the Director of Public Prosecutions on this matter. The first letter, addressed to
the President of the Law Society and dated 22 September, states:
I share the view of the Criminal Law Committee that the practice is illegal
(contrary to the Police Complaints Authority determination).
After reading this I wrote to the Director of Public Prosecu-tions asking him why he had
decided not to prosecute in this matter. In his reply received on Friday 23 October Mr
Paul Rofe revealed that he had changed his mind, and after considering a 1987 Crown Law
opinion he now considers that
`a telephone conversation conducted by a public official such as a police officer with
another person in the course of duty cannot be characterised as a private conversation for
the purposes of the Act'.
Mr Rofe, however, remains of the view that `the practice is not one that
should be followed by police'. He says that he has written to the Police Commissioner
asking him to issue a direction to all officers not to tape record covertly in these
situations. There is still the question of whether the practice of covertly taping phone
conversations is or has been an established practice within the Internal Investigations
Branch.
In my letter of 12 October I referred the DPP to a letter dated 29 July that was
written by the complainant to the Attorney-General. In that letter the complainant claims
that she has `documentary evidence which strongly suggests that the illegal taping and
transcribing of telephone conversations is an established practice within the Internal
Investigations Branch'. However, no-one from the DPP's office approached the complainant
to examine this documentary evidence. Mr Rofe, in his letter of 22 September, said that he
had no evidence apart from the matter under consideration that the practice was
widespread. In his later letter he says:
. . . it is now academic whether there was an established practice within the
Internal Investigation Branch. If there was, it may well have been legal, based on the
1987 advice. In any event, there is no longer such a practice.
I ask the Attorney, who in his own role may be able to answer at least part of the
question:
1. Did he, when referring the matter to the DPP, provide a copy of the complainant's
letter of 29 July in which that claim was made? If not, why not?
2. Will the Attorney ask the Police Minister to clarify whether this practice of
covertly taping telephone calls is or ever has been an established practice within the IIB
or any other branch of SAPOL?
3. If so, when did the practice cease?
4. Has the Commissioner of Police issued a directive to all officers not to tape
record covertly in these situations as requested by the DPP? If not, why not?
5. In view of the contrary opinions that have now been expressed by both the Law
Society and the DPP, will the Attorney review the Listening Devices Act to remove this
apparent ambiguity?
The Hon. K.T. GRIFFIN: I know that the honourable member has a special interest in
this and that the matter has been the subject of correspondence between him and I think
the DPP at least; but he has basically indicated the position in relation to the DPP in
the light of the Crown Solicitor's advice of 1987. That was advice by the then Ms
Catherine Branson as the Crown Solicitor (now Justice Branson of the Federal Court), and
there was a conclusion in that advice that taping a conversation other than a private
conversation was not permitted without the other party being aware of it and concurring in
that practice.
What the DPP did say is that he did not believe, notwith-standing that advice, that
it was an appropriate practice by the Internal Investigations Branch to tape telephone
conversations which in this case were of an official nature and not of a private nature.
My understanding is that that recommenda-tion has been put in place. However, the
questions which the honourable member raises require more detailed study, and I will give
that attention to them and bring back replies.
Read the Government's Reply: 27 November 1998
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