The terms of reference for an inquiry into the unlawful use of surveillance devices in Risdon Prison downplay any wrongdoing by Tasmania Police involved in the operation, reports David Killick in the Hobart Mercury today (Sept. 30, 2022).
“The terms of reference tabled in Parliament on Thursday, contain a lengthy section labelled background/context, which makes it clear that the police only listened to one conversation, it was not subject to legal professional privilege, nothing they recorded unlawfully was retained and they took immediate steps to right their wrongs,” writes Killick.
The Clayton’s terms of reference will do nothing to allay fears expressed earlier that the review, to be conducted by former Solicitor-General Michael O’Farrell SC, who in 2017, while acting in that role, expressed confidence in Tasmania Police and its ability to investigate matters in the Neill-Fraser case, will not be free of bias.
The review follows the DPP dropping 5-year old charges of pervert the course of justice against solicitor Jeff Thompson when Justice Brett found the surveillance had been illegally obtained.
“My ruling of 28 March 2022 established that the recording of the conversation was obtained in contravention of an Australian law, in particular s 5 of the Listening Devices Act 1991. That conclusion followed from my determination that the warrant which had purportedly been issued by a magistrate under the Police Powers (Surveillance Devices) Act 2006, upon which police relied to authorise the recording of the conversation by surveillance device and which would have brought the recording within an exception to the application of s 5, is invalid on its face.”
The review will involve consideration of all surveillance device warrants issued to Tasmania police officers since 1 January 2012 which authorised the installation and use of a surveillance device in prison. It will consider the adequacy of information included in the applications for those warrants and compliance with any conditions or limitations imposed on the warrants. Mr O’Farrell will be requested to identify any improvements which could be made in applications for the issue of surveillance device warrants or the execution of such warrants to mitigate the risk of capturing private conversations unrelated to the investigation in respect of which a warrant is sought and to prevent access to or retention of any such conversations.
The review and report are to be finalised by 31 December 2022 and will be tabled in Parliament.
# Reference to the TV ad for the non-alcoholic Clayton’s made famous by its sales message, ‘Claytons – the drink you have when you’re not having a drink’