JACK WATERFORD. Why do crime-busters need ASIO-type powers?

Dec 11, 2018

The crimes are horrible, calling out to the heavens for vengeance, but no one, least of all the cops, has the faintest idea of their prevalence. Whether, thus, police tactics or methods are effective, or are having the slightest effect on the crimes is a matter of mere speculation. Even more indeed than questions of whether police actions against the supply or importation of illegal drugs have a discernible effect on the drug market (the answer is no). Statistics, even when they are not faked, as police statistics often are, do not show progress but activity.

But because sexual offences against children, here or abroad, are often in the news, including with the odd arrest Australians are given to understand that the AFP’s lonely vigil is of some account. It permits police officers to go into the problem of tackling wickedness, evil and vice with much the same zeal and assumed virtue as state police used, half a century ago, when they used to trap homosexuals in public lavatories.

Not that I expect that social attitudes to paedophiles will change, but the self-righteous glint in the eye of some of the modern crusaders sometimes seems to bear a remarkable resemblance to the dogmatic statements of leading cops as their men hunted down, shamed, punished and (frequently) blackmailed homosexuals, or were otherwise showing their disgust at their immorality by throwing them into the River Torrens.

The mission ennobles mad, bad, dubious and self-serving police marketing. The constant drumbeat for more police powers, with minimal accountability, causes the usual suspects to ask if they need or deserve them. Or whether they can be trusted with them. It has been centuries since such wet blankets have been able to be disabled by being accused of being in favour of murder, or drugs, or driving too fast on the road. Not even Peter Dutton, ex-cop turned commissar, does that about routine crime.

But the crusade against paedophilia and the sexual abuse of children retains a strong moral sting. That’s only because police forces, historically, seemed unaware of, perhaps uncaring about it. Before 1980, police activity in the field mostly seemed to involve covering up the crimes of clergymen and leading citizens. But it’s been a big thing over the past 20 years and then not because of anything that cops did, other than getting on the bandwagon, of victims complaining about historic abuse and the past indifference of those, including cops, who should have offered protection, but didn’t.

If fresh powers are wanted, one can be sure that the need for them to combat child abuse will be in the first sentence. No class of villains likely to have a constituency will be mentioned. Sooner or later, anyone questioning the case for such an extension of power will be accused of either being in favour of paedophilia, or of wanting to make police fight sexual abuse with both arms tied behind their backs.

The last week of parliament for 2018 began with a High Court judgment on an amazing scandal in Victoria. A notorious Melbourne criminal lawyer, known particularly for representing and consorting with famous criminals of the Underbelly wars, was a registered police informant even as she had been representing these criminals in court. She was sometimes wearing a wire. She gave her handlers detailed information about current crimes, including about the score or so of murders of the various drug lords, the movements of particular people, and general intelligence about what various players, including the notorious Tony Mokbel and Carl Williams were up to or thinking.

Some very senior cops were involved in “managing” this registered informant. Other cops of high rank, some who were to become commissioners were on the management committee or knew what was happening; just what they knew, and just why they did not perceive how criminally stupid they were is to be investigated by the royal commission. It was alleged by one newspaper that the barrister, known as Witness X or Informant 3838 was having an affair with one of her police handlers; at various times she was also having affairs with clients.

It is difficult to think of a more fundamental police impropriety in 230 years of recent Australian history. To be sure at times senior police and detectives in NSW were coordinating, licensing and taxing crime, as well as doing the odd murder, usually of crims but sometimes other cops, on commission. Bribery or blackmail of individual judges and magistrates has never been entirely unknown. But Victorian cops were completely perverting justice and criminal trials. They (and, probably ultimately prosecutors, unknowingly) were privy to defence tactics, and could plan accordingly.

Every Australian police force, including the AFP, has been accused, at some recent time or another of the improper gathering of evidence.

The barrister, (who later fell out with the police, sued them and settled out of court for $3 million) claims to have given evidence used in thousands of cases, involving hundreds of criminals – many of whom, murderer or drug lord or whatever, now have excellent chances of having their convictions quashed and of being released from jail. It may take years before the scandal works its way through the system.

The then head of the Victorian Broad Based Anti-Corruption Commission, retired Judge Murray Kellam, was scathing of the cops. So were Supreme Court justices, and ultimately the High Court. This was because Victoria’s DPP tried to avoid telling folk in jail about what their lawyer had been up to, for fear of the crooks killing their lawyer, a reasonable enough fear. But the courts held that the undoubted public interest in protection of an informant had to be balanced against a clear need to inform the victims and act. The more, given that the woman had been offered, but had refused, witness protection. (Kellam was, recently, the visiting acting ACT judge who conducted the Eastman trial.)

It would be hard to be sure that no such abuses have occurred elsewhere. The inquiry will be focused on Victoria only.

I doubt that such misbehaviour elsewhere ever reached the stage of having such grasses put on the formal payroll. I have known cases where lawyers, and other people in fiduciary relationships, have informed against their clients, arguing to themselves (sometimes after getting confident but dubious “ethical” advice) that duty of confidentiality to the client was overborne by their duty to public safety. In one case, such an informant applied for a share of reward money.

But some police have listened in to lawyer-client discussions and not stopped doing such once they were aware of the nature of the conversation. Whether with a legal intercept under warrant, that sort of eavesdropping is unlawful and improper, and could cause a mistrial.

The so-called Age Tapes affair began about 40 years ago, and ultimately led to High Court Justice Lionel Murphy being charged, but ultimately found not guilty of, attempting to pervert the course of justice. It started with an extensive (and quite illegal) program of systematic tapping by an official NSW Police unit of Sydney crooks, wide boys, lawyers and politicians, apparently to get intelligence on the networks of relationships that made Sydney tick. Some tapes were leaked to journalists. Once there was concerted interest in the sources of the tapes, police claim to have destroyed them.

Many of these tapes included privileged communications, even though there is no evidence that the intelligence of defence strategies reached investigating police or prosecutors. Likewise, a program of legal tapping by the Montague faction of the NSW cops against the Capulets seems to have included lawyer-client communications.

Every Australian police force, including the AFP, has been accused, at some recent time or another of the improper gathering of evidence, even if it did not involve invasion of client confidentiality. Only a few months ago, the High Court was scathing of impropriety by the AFP and the Australian Crime Commission. The ACC used its coercive powers (which deny a right to silence) to oblige an AFP investigation which was feeling frustrated because the accused were exercising the right to silence. The abuse of police and ACC power prevented the prosecution going ahead.

This week saw the enactment of legislation whereby security agencies (and police and anti-corruption agencies) will be able to decrypt coded messages, with the coerced help of bodies providing encryption and decryption services. ASIO and other agencies, including police, are claiming that powers they once had, say with phone taps, are now of little value, because terrorists and sophisticated criminals – yeah and paedophiles – are encrypting their messages, often as an integral part of the attraction of apps such as Whatsapp.

Some will remember that the ever-techie Malcolm Turnbull caused consternation some years ago when it was revealed that he was conversing by text with Cabinet colleagues by Whatsapp, rather than on official secure phones. He explained that his communications were perfectly secure (which they were, more or less, even if they were violating both the law and the spirit of laws about record keeping, freedom of information and the Archives Act.)

It was to be Turnbull who announced moves by which the computer industry would be made to hand over decoders, or put “backdoors” in technology, to again “level the playing field”

In August, a meeting between ministers from the Five Eyes Anglophone intelligence club (the US, Britain, Canada, Australia and New Zealand) claimed that intelligence gathering was increasingly “in the dark” or “going dark” because of increasing use of encryption by terrorists and criminals. The world was given to understand that if ASIO did not get the powers by Christmas, there would be a terrorist incident for which the Labor Opposition could be and would be blamed. Labor for once did not, initially at least, jump to the government’s agenda; it wanted checks and balances, but it surrendered on Thursday, in the dying minutes of the session.

One can understand the anxieties of ASIO and other bodies that skim electronic communications, such as the Australian Signals Directorate. Me suspects that the industry is not giving them codes or backdoors, but convenient and undetectable ways of becoming members of groups using codes to communicate with each other.

What was not clear was why, or how, cops should get a free ride into such technology for ordinary criminal investigations, simply because ASIO had made out a case for its needs. Police have never had a general right to intercept communications, particularly in the investigation of ordinary (non-terrorist) crimes. If they are to do it has been on warrants. But the fight against social security fraud, or bank robbery has never been fought by cops who at one stage were merrily reading enemy email or texts, until one day, the crooks woke up to them and began using encryption, even Whatsapp, to put the cops in the dark.

Sophisticated paedophiles use both the dark web and decryption technology to converse with each other. But they must more or less use conventional communications with young children, or cops pretending to be young children. (Years ago, some branches of the communist party were said to have more ASIO members than genuine communists. I wonder if chat lines have already reached an analogous situation.)

Some people argue that in the war against crime, as with the war against terror, police should have unlimited powers. This seems to be the instinct of Peter Dutton, who would also like judges and quasi-judges to reflect his sophisticated appreciation of how to fight criminals. After all, people with nothing to hide have nothing to fear. And, anyway, we can trust the cops. They are on our side, and are the thin blue line protecting us from anarchy or a Lord of the Flies-type collapse of society.

But Australian police have never been given a power they have not been soon shown to have abused. Most police failures to solve or prevent crime are not from lack of power or resources, but lack of will, incompetence, or poor organisation. The public is right to be cynical about whether cops or supervisory agencies effectively detect or prevent abuse of power.

Most major police scandals of recent decades found police management ignorant of or unwilling to tackle systemic corruption, and accountability agencies asleep at the wheel. The media and whistle-blowers have exposed most of the abuses – to the fury of police and government, ever thinking of fresh ways to criminalise, defeat or restrain critical journalism.

We can never know just quite the right “balance” between the public’s need for privacy and personal freedom, and the needs of cops in a national security state. But I am not convinced that the modern crisis of terrorism or potential invasion by boat people justifies our drift to a surveillance society, and a centralised and increasingly militarised law enforcement system, and the pathological secretiveness and obsession with control of the message. That the temperament of the minister so closely resembles that of his chief bureaucrat, Mike Pezzullo aggravates my doubts about any instinct for restraint.

Personally, I have always argued that the right balance is to be found by girding the tax commissioners with the same powers with which we vest ASIO and the AFP. People that governments listen to will let them know, loudly, when we have gone too far. Even spooks tend to agree that massive tax dodging, often by some of our leading citizen patriots is a more clear and present danger to national security than all the terrorists we have so far mustered. And that tax-dodging crimes are legion compared with those of the welfare “cheats” crucified just in case by robo-debt algorithms.

After a tax raid lawyers will descend to protect their client with umpteen claims of privilege. They will talk of Gestapo tactics, intolerable and oppressive abuses of power, personal freedom and a right to engage in spurious transactions having only the incidental effect of avoiding tax. Judges sit long on these matters and are astonishingly receptive to such claims.

And that, usually, is without prime ministers leaking secret testimony from ASIO chiefs. And without statutory officials and senior bureaucrats venturing into partisan political territory and highly political and contentious – even tendentious – controversies.

The government has now been shamed from its original wide ambit claim. Decryption can now be used only for crimes with jail sentences of more than three years. That includes the war against paedophiles, thank heavens. Thank God for that. But how will we know when that war has been won?

Jack Waterford is a former editor of The Canberra Times.

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