Monthly Archives: February 2015

Crime Commission to give evidence on disrupting illegal online activity

The ability of government agencies to disrupt the operation of illegal online services has proven to be a useful tool for Australian law enforcement to prevent harm to the Australian community caused by serious and organised crime, according to the Australian Crime Commission (ACC).

On Wednesday morning, the House Standing Committee on Communications will hear evidence from the ACC at its third public hearing for its inquiry into the use of the Telecommunications Act 1997.

The ACC is a strong advocate of maintaining section 313 of the Act, which gives powers to some agencies to disrupt illegal online activity, and also supports improvements in transparency and accountability in the use of the section.

In its submission, the ACC said that balancing transparency, accountability and law enforcement effectiveness can be achieved by creating a regime that is proportional to the threat posed by serious and organised crime.

Committee Chairman Jane Prentice said, “Striking a balance between freedom and protection is the essence of democratic government. The scale and nature of criminal activity online demanded a response from governments and law enforcement agencies. Nonetheless, agencies must be accountable for the use of the powers they are granted, and those powers must be proportional to the threat.”

Mrs Prentice noted that the Committee would be examining those issues to ensure that the use of the powers conferred under section 313 was appropriate, proportionate and subject to effective accountability.

Details of the hearing are as follows:
Date:  Wednesday, 25 February 2015
Time:  8:00 am
Venue:  Committee Room 1R3, Parliament House, Canberra

Further information on the Inquiry, including the full terms of reference and how to prepare a submission can be obtained from the Committee’s website at www.aph.gov.au/section313 or from the Secretariat on (02) 6277 2352.

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Henry Sapiecha

Attorney-general shouldn’t be allowed to alter what data is stored within the new metadata retention proposal, says Mark Dreyfus

Shadow Attorney-General Mark Dreyfus says the data to be stored under the government's data retention scheme should be defined in legislation.

Shadow Attorney-General Mark Dreyfus says the data to be stored under the government’s data retention scheme should be defined in legislation. Photo: Sasha Woolley

It should not be up to the attorney-general of the day to decide what data is kept under the federal government’s proposed mandatory data retention scheme, shadow attorney-general Mark Dreyfus QC says.

Speaking on Radio National on Tuesday morning about the proposed bill to force telecommunications companies to store customer email, internet and phone metadata for two years, Mr Dreyfus said he didn’t accept the the data set should be subject to change at the whim of the attorney-general of the day, without parliamentary oversight.

At present, phone call data retained under the scheme would include who you have called, who has called you, the start and finish time of the call, and the duration – but not the content. The IP address allocated to your internet connection would also be stored so that agencies can trace back those who breach laws.

The government’s proposal defines the data to be stored in regulation rather than legislation, meaning the data set can be changed at any time, without Parliament having to vote on it.

“[The ability to change the data set at any time without Parliament is] one of the matters that many submitters have raised [in hearings by the parliamentary joint committee on intelligence and security],” Mr Dreyfus said, referring to the powerful committee he is on that is looking at whether any changes are needed to the the data retention bill, which Prime Minister Tony Abbott wants passed by March 19.

Following its passage, telcos will have two years to comply with it.

“[The submitters have] said that the law itself should contain the list of the data which telecommunications companies are going to be forced to keep in future,” Mr Dreyfus said.

“It’s not something that should be left to regulations,” he added.

“People should be able to read the law and see clearly what it is that the companies are going to be forced to keep.”

The PJCIS committee is set to release its report by February 27, which is likely to contain a number of recommendations to amend the bill, which the Abbott government will need to consider.

PJCIS committee members are now debating what recommendations, if any, to include in their report to government. If the Coalition-dominated committee can’t agree on unanimous recommendations, there could be a dissenting minority report from Labor.

It’s understood the reason Labor has decided to accept the argument of having the data set in legislation rather than in the regulation of the bill because the Federal Parliament can, in a worst-case scenario, change the data set with an amendment that would take eight weeks at most to introduce if a change was proposed during the Parliament’s winter break.

“There’s no rational argument for not setting it out in the bill right at the outset,” a Labor source said, referring to the fact a draft data set has still not been finalised.

“We don’t accept that technology is changing at the speed they’re suggesting [that would require the attorney-general to change it when it suited him or her],” they said.

Mr Dreyfus’ comments on Radio National come following the release of a letter the Opposition Leader Bill Shorten sent to Prime Minister Tony Abbott, accusing Mr Abbott of politicising the issue of national security.

Mr Abbott had earlier written to Mr Shorten urging Labor to pass the proposed bill by March.

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Henry Sapiecha

AFP must admit to its ‘big mistake’ leading to Bali Nine executions,barrister says

Facing death: Andrew Chan and Myuran Sukumaran.

Facing death: Andrew Chan and Myuran Sukumaran. Photo: AP

The Australian Federal Police must take the blame for the two Bali Nine ringleaders being on death row and do everything to save them, a lawyer close to the case says.

Bob Myers, a barrister and family friend of Bali Nine drug courier Scott Rush, tipped off the AFP in 2005 about the attempted heroin run from Bali to Australia. He said he now feels “betrayed”.

The AFP assured him they would approach Rush before he left the country, he said. Instead, the AFP relayed the names, dates of birth and passport numbers of the Bali Nine members to Indonesian authorities, triggering their arrests.

'Betrayed': The Bali Nine.

Now, Bali Nine ringleaders Andrew Chan, 31, and Myuran Sukumaran, 33, face death by firing squad this month.

“I am really urging … the AFP to stand up and say, ‘Look, this was our fault, we had no authority to do it’,” Mr Myers said on ABC’s Radio National.

“They should be coming out now and saying, ‘We’ve made an enormous mistake’.”

He said the AFP was well aware of the Bali drug conspiracy and could have arrested the drug mules upon their return to Australia.

“They were both misleading and deceptive. They acted as though this was something Indonesia had done all on its own accord, they were terribly concerned about it and going to do everything they could to ensure none of the nine ever faced the death penalty,” he said.

“And it was just all lies, lies and deception.”

Mr Myers said a guideline was in place at the time of the drug plot that stopped authorities from co-operating with requests from other countries in cases that could expose an Australian to the death penalty.

“But here, there wasn’t cooperation at the request of the Indonesian authorities. This was voluntary giving of information to Indonesia,” he said.

“That’s the loophole. It was so close to illegal activity.”

The guideline has since been changed.

Mr Myers said it was time for the AFP to break its decade of silence, publicly admit to its mistakes, and do its utmost to save the lives of Chan and Sukumaran – both widely reported to be reformed and rehabilitated at Kerobokan prison.

“It sickens me to think that the very organisation charged with our protection, the AFP … we should be able to go to them and say, ‘I’m in strife here, can you give me a hand?’ That’s their job, that’s what they’re there for,” he said.

“And to think they can betray nine young Australians in the way they did is really just outrageous.”

An AFP spokesman said the agency changed its guidelines for dealing with such cases in January 2009.

It must now consider relevant factors before sharing intelligence that is likely to see an Australian prosecuted for offences that carry the death penalty.

“Ministerial approval is required in any case in which a person has been arrested or detained for, charged with, or convicted of an offence which carries the death penalty,” the spokesman said in a statement.

The new guidelines also mean the AFP must report to the minister annually on the nature and number of cases in which police assistance is provided in potential death penalty cases

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Henry Sapiecha

Showdown looms as Ombudsman claims immunity to avoid answering questions into massive police inquiry

Standing by top cops: Premier Mike Baird.

Standing by top cops: Premier Mike Baird.

A showdown between the NSW Ombudsman Bruce Barbour and a parliamentary committee is set for Tuesday, with Mr Barbour claiming public interest immunity to avoid answering questions on secret details of his massive inquiry into police.

A test of wills is likely, with politicans insisting they have the right to demand answers from Mr Barbour, who was issued a summons to appear.

“The upper house has had consistent and repeated advice that claims for public interest immunity do not defeat the powers of Parliament,” said the committee’s deputy chairman, Greens MP David Shoebridge.

“Clearly these are matters that are appropriate to consider, but they do not limit the committees powers to seek answers

Police Commissioner Andrew Scipione’s appearance has meanwhile been delayed until Wednesday, to allow him to view allegations made in a confidential submission by former commander of internal affairs Malcolm Brammer.

Mr Barbour wrote to the committee last week, warning any evidence he gave “has significant potential to be corrosive of confidence in my report”.

Operation Prospect had generated 1 million pages of information, 70 hearing days, examined 2322 pages of affadavits paragraph by paragraph, and would provide a final report to parliament in June, Mr Barbour said.

“I have reached no conclusions and made no findings about the alleged conduct,” he wrote.

The parliamentary inquiry could tip off people who are yet to be approached, he claimed.

His letter revealed Commissioner Scipione’s conduct has come under investigation, and has been the subject of private hearings, after allegations he improperly interfered in an investigation, and had made misleading media statements.

Mr Barbour said he wanted to clear up public misconceptions, and said a mistake on an affidavit wasn’t of itself a criminal act, it needed to be wilfully false. He flagged he is considering whether “criminal charges of this nature will be made”.

Right to silence: NSW Ombudsman Bruce Barbour.

Right to silence: NSW Ombudsman Bruce Barbour.

On Friday, Deputy Commissioner Catherine Burn denied she was responsible, as team leader, for incorrect affidavits being used to obtain warrants for listening devices without evidence.

Mr Barbour’s letter acknowledged the harrowing mental health toll among police caused by the bugging operation and prolonged investigations.

Some witnesses suffer “severe mental health problems” and became “very distressed by having to give evidence”.

At least eight witnesses had a mental health condition. Four witnesses provided medical reports indicating they were too unwell to give evidence, of whom two were excused.

Of the two forced to give evidence, one was excused mid-hearing when they began “experiencing difficulties”, while the other was later excused from further attendance.

Mr Barbour said it was legitimate for his office to investigate the leaking of 20,000 pages of confidential police material, including 61 separate documents, some of which were given to the media.

He wrote that unlike whistleblowers who approached his office directly, these persons wouldn’t be protected by the Public Interest Disclosure Act.

Premier Mike Baird said on Saturday “some of the events we have seen are disturbing” but he would “wait until we get all the facts on the table”.

Police minister Stuart Ayres said: “There’s no doubt that having the senior echelons of the NSW police force play out disputes on TV screens is not comfortable for anyone.”

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Henry Sapiecha

Secret police taskforce followed journalist: Inquiry targets bugging, whistleblowing and covers-ups

"Completely gobsmacked": Journalist Neil Mercer.

“Completely gobsmacked”: Journalist Neil Mercer. Photo: Daniel Munoz

As the state’s top police officer prepares to take the stand at a sensational police bugging inquiry next week, questions have emerged about his possible role in a shadowy taskforce set up with the intention of spying on a journalist.

On September 9, 2012, Fairfax reporter Neil Mercer published explosive details in The Sun-Herald about Strike Force Emblems, a long-buried internal police report into Operation Mascot, an anti-corruption surveillance exercise that controversially involved the secret bugging of more than 100 police officers and civilians on the back of suspect warrants and allegations.

It can now be revealed that nine days after the story was published, the force’s professional standards command launched Strike Force Jooriland to monitor the veteran reporter and hunt down the police whistleblower leaking critical information to him.

When NSW Police Commissioner Andrew Scipione appears before the parliamentary committee on Wednesday, he is likely to be grilled on how the operation came to be approved.

Mercer had remained oblivious to Jooriland until last Friday when he appeared as a witness before the inquiry.

“I am completely gobsmacked,” he said on Saturday, adding: “You’re exposing allegations of serious wrongdoing and criminal offences. Their response is, let’s shoot the messenger and then screw the whistleblower.”

MEAA chief executive officer Paul Murphy also expressed alarm, stating: “The professionalism of a journalist and the ethical responsibility to protect confidential sources needs to be respected at all times, regardless of the type of inquiry.”

As Mercer was left to nervously dwell on the nature – and extent – of the surveillance, biggest questions surround the broader roles in the bugging affair played by Commissioner Scipione and NSW Deputy Police Commissioner Catherine Burn – who at one stage was an acting commander of the special crime and internal affairs unit (SCIA).

“We can’t comment on matters that are currently the subject of an investigation by the Ombudsman,” said a police spokesman when asked who had triggered the hunt.

On Friday, the inquiry heard explosive allegations about a mass cover-up that blanketed the police corruption investigation, Operation Mascot, which ran between 1999-2001.

Deputy Commissioner Nick Kaldas was a central target of the surveillance operation, which he testified had ruined the careers of many officers and triggered a suicide.

Ms Burn had been a senior officer within the operation which at one stage, was commanded by current Commissioner Scipione. The hearing heard that some affidavits presented to NSW Supreme Court judges had contained no information to justify surveillance, and some content was false. It emerged that during the operation, Ms Burn’s unit had secured a warrant to bug Mr Kaldas and his family – despite no evidence of any wrongdoing.

Against the wishes of the NSW government, the inquiry was established last year in response to complaints about the amount of time taken by NSW Ombudsman Bruce Barbour to investigate the scandal. On Friday, Mr Kaldas launched a scathing attack on Mr Barbour, about his treatment. “We, the police, could not treat criminals this way and neither should we,” he said.

Mercer had earlier published details of the secret Emblems report which showed Ms Burn had come under investigation, following a string of complaints relating to the investigation. While the report stated there was no evidence to bring criminal or disciplinary charges against her, it noted inquiries into those complaints had hit a wall after access to crucial documents and witnesses was repeatedly denied. It was also revealed that in November 2001, Commissioner Scipione, then commander of SCIA, had been warned some officers within the branch were concerned about the legality of the telephone taps and the release of “fictitious information” to gain listening devices. The inquiry resumes on Tuesday.
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Henry Sapiecha