Tasmania’s O’Farrell Review – questions raised by MP

Andrew L. Urban

A series of probing questions have been placed on the Legislative Council Notice Paper about the already disgraced O’Farrell Review into illegal surveillance in Risdon prison, a fallout of the Sue Neill-Fraser case. 

On the eve of the last day of sitting in November 2022, Nelson MP Meg Webb (Ind), told wrongfulconvictionsreport.org “I’ve put them on the Notice Paper to ensure that there is some visibility of the issue across the summer break in Parliament, but there won’t be answers until we sit again in March.”

Two weeks earlier, Webb issued a press release revealing that she had earlier asked the Premier to confirm the O’Farrell Review into illegal Tasmania Police surveillance could be lawfully conducted.

Webb’s questions to the Honourable Leader of the Government on Notice Paper, awaiting answers:

In relation to Parliament having been advised on 10 November 2022 that the Terms of Reference for the O’Farrell review had been withdrawn as legislation did not allow for the Police to share protected information with Mr O’Farrell SC — Can the Government confirm:—

(1) Was Mr O’Farrell SC consulted on the original Terms of Reference dated 28 September 2022?

(2) (a) Was legal advice obtained in reference to the original Terms of Reference; and (b) if so, when, and from whom?

(3) On what date did the potential illegality of what was proposed by the Review regarding “protected information” become apparent?

(4) Who identified the potential for illegal conduct in the conduct of the Review?

(5) Were Tasmania Police made aware of my letter to the Premier dated 6 October 2022 querying and seeking reassurances regarding the legality of what was proposed?

(6) Following the handing down of the Jeff Thompson decision on 25 August 2022 and to date, has there been any provision of “protected information” to Mr O’Farrell SC, including but not limited to: (a) materials related to the Jeff Thompson matter such as the application for warrant, the affidavit of Constable Jago and the warrant; (b) materials related to the Sue Neill-Fraser matter; and (c) materials related to other relevant matters?

(7) If material has been provided to Mr O’Farrell: (a) when did he receive copies of the specific materials; and (b) has that material now been destroyed or returned to Police?

(8) Has any potential misconduct or breach of the legislation been notified to: (a) the Police Minister; (b) the Ombudsman, as the Inspection entity under the relevant Act; (c) the Integrity Commission; (d) the Attorney-General; or (e) any other authority?

(9) Will the Government state unequivocally that no other illegal behaviour regarding protected information obtained by the use of surveillance devices has occurred in Tasmania over the last 5 years?

Earlier, on 15 November 2022, Webb had also pursued the Government over the issue with a Question Without Notice:

I (Ms Webb) ask the Honourable Leader of the Government —

In light of the findings of Brett J in the Jeff Thompson matter and illegal surveillance by Tasmania Police in Risdon Prison, the evidence of Detective Sergeant Shane Sinnitt at the Sue Neill-Fraser leave to appeal application on 22 August 2018 (T 419-420) under cross-examination by Coates SC, identifies three instances of listening device evidence of conversations between Neill-Fraser and visitors at the prison. In relation to this device surveillance, can the government:

 Assure the public that this matter will be thoroughly scrutinised and reported on in the O’Farrell Review, including:

• Whether each and every of these conversations referred to was the subject of a valid warrant?
• Whether the warrant or warrants suffered from the same serious defect on its/their face as in the Jeff Thompson matter?
• Whether the warrant or warrants provide false assurance to the issuing Magistrate as seen in paras.18 and 19 of the Constable Jago affidavit as reported by Justice Brett in the Thompson matter at para.23?
• The terms and conditions of such warrants, including whether they recorded continuously for up to 90 days?
• Whether any of the conversations referred to in the Sinnitt evidence was caught as a result of the continuous recording of a listening device not covered by the relevant warrant or warrants?
• Whether any of the conversations recorded involved conversations between Ms Neill-Fraser and lawyers?
• Whether any of the conversations were subject to legal professional privilege?
• Whether any other privileged conversations at the visitor’s room at the women’s prison recorded as a result of these warrant/s?

• Assure the public that Tasmania Police acted lawfully and in accordance with all requirements of the Police Powers (Surveillance Devices) Act 2006 in relation to the Sue Neill-Fraser matter? For instance, were section 29 reports provided to the issuing Magistrate?

Responding, The Hon Felix Ellis MP, Minister for Police, Fire and Emergency Management wrote:

I will not pre-empt the findings of the Review to be undertaken by Mr O’Farrell SC in relation to this matter.

I note that the review will be in accordance with the Terms of Reference for the

Review, tabled in Parliament on 10 November 2022.

I trust that Mr O’Farrell SC will conduct a comprehensive review of the matter.

 I will table the findings in Parliament.