31 May 2015


One of the rationales advanced by Australian law enforcement bodies in calling for warrantless access to telecommunication and other personal information has been that judges and magistrates are too restrictive in approving warrants.

In submissions to law reform inquiries and testimony to parliamentary committees I have questioned such assertions, commenting that independent supervision is necessary and appropriate and that there is no evidence that the courts are being obstructive or dilatory. Put simply, we should be aware of confusing bureaucratic convenience with the accountability that is foundational in a liberal democratic society.

Today's SMH features an article that goes some way to substantiating my criticism. (There's been no comprehensive study of the number of surveillance warrants sought across the Australian jurisdictions, the time taken to process applications and percentage of refusals.)

The SMH states
NSW courts have refused less than 2 per cent of police applications for secret recordings, reigniting claims judges are "rubber stamping" privacy intrusion, new data shows. 
Only six out of 363 applications for surveillance device warrants were rejected in the first half of 2014. This was an increase from no refusals, out of 878 applications, in the prior 12 months. 
"The very low rate of refusals suggests either that applications for surveillance device warrants by NSW police are consistently of an almost perfect standard, or that the process of approval lacks rigour," said shadow NSW attorney-general Paul Lynch. "In light of evidence recently in the Legislative Council, this is of great concern. There needs to be a proper review of this process." 
An upper house inquiry into Ombudsman Bruce Barbour's handling of the police bugging police scandal found at least one application for a listening device warrant didn't fulfill the grounds to justify recording the private conversations of 46 people. 
The Inspector of the Police Integrity Commission, David Levine, told the inquiry that as a judge he never refused a warrant, and instead "looked to see if there is someone named in this warrant who is named as 'M.Mouse ' or 'D.Duck' ''. 
The inquiry urged the Baird government to review the system for granting warrants, and consider establishing an independent office to test the veracity of surveillance device applications by police. 
Queensland has a Public Interest Monitor who can appear in court to test the validity of police applications. 
The Ombudsman's latest report on the use of the Surveillance Devices Act found police were systemically failing to destroy recordings that weren't needed for criminal investigations, in breach of the Act. Instead, they were being archived.