Showing posts with label police. Show all posts
Showing posts with label police. Show all posts

Wednesday 26 October 2016

This type of police surveillance will come as no surprise to Australian blogs which post on local and regional protests


CNN.com, 11 October 2016:

The ACLU of California reported that Geofeedia had been providing law enforcement with data -- including locations -- from the social media accounts of protestors. In response, it said Tuesday that Twitter, Facebook, and Instagram had cut off Geofeedia's access to their feeds.

The extent of law enforcement's social media surveillance was discovered through public records requests of 63 agencies in California, according to the ACLU of California. Emails obtained show the tools were used to monitor chatter around "the Ferguson situation," and that Geofeedia told California law enforcement agencies to find out how police in Baltimore used its tools to "stay one step ahead of rioters," after the death of Freddie Gray in police custody.

Geofeedia provided searchable data from public Instagram posts, troves of publicly shared information from Facebook (FBTech30) via the Topic Feed API, and public tweets. Information in Twitter, Facebook, and Instagram posts can be used to infer things like location, personal associations and religious affiliation.

The ACLU says Geofeedia and other social media surveillance tools can unfairly impact communities of color. Movements like #BlackLivesMatter began on social media, and Twitter, in particular, is used as a platform for organizing and amplifying protests.

"Communities of color rely on platforms to organize, to persuade, and to spread information," Matt Cagle, technology and civil liberties policy attorney at the ACLU of Northern California, told CNNMoney. "But here, the social networks left a side door open for surveillance by the police."

Law enforcement agencies invest thousands in the tools that aggregate and surveil conversation data --the Daily Dot reported that the Denver Police Department spent $30,000 on these types of tools in May. The ACLU launched an investigation in Denver in response to this report.

Based on information in the @ACLU's report, we are immediately suspending @Geofeedia's commercial access to Twitter data.
— Policy (@policy) October 11, 2016

In an email obtained by the ACLU of California through public records requests, Geofeedia claims "over 500 law enforcement and public safety agencies" use its services.

After the ACLU's report on Tuesday, Twitter tweeted that Geofeedia's access had been revoked.

"In addition to cutting off data access, the social networks should take additional steps to implement clear rules that prohibit the use of user data for surveillance, and oversight measures to ensure developers are not using the user data for surveillance," Cagle said.

The organization is joining with the Center for Media Justice and Color of Change to ask social media sites to commit to better protecting users engaged in political and social discourse.

Malkia Cyril, the executive director of the Center for Media Justice, said that people are using social media to expose human rights abuses, turning these platforms into modern day news outlets. However, the sites aren't not subject to the same kind of scrutiny or standards, she said.

"I wasn't surprised," Cyril told CNNMoney. "But I do think the average user should be shocked and dismayed at the scope and the scale of what the ACLU found."

Monday 22 August 2016

Five hours of alleged neglect in a Maitland Police cell and a woman lay dead

Maitland Police Station. Image: The Sydney Morning Herald

There is absolutely no excuse for any intoxicated person dying whilst in police custody.

The mother of four, a Wiradjuri woman, was placed in a cell alone at about 1am and checked on at 6am. [The Sydney Morning Herald, 16 August 2016]

If true, the reported five hour gap between security checks by a detention officer should be called for what it is – neglect of the safety and physical wellbeing of a vulnerable person.

Aboriginal Legal Service, excerpt from media release, 17 August 2016:

NSW legislation may need to be reviewed

Aboriginal Legal Service NSW/ACT (ALS) is concerned about the care of intoxicated persons in police holding cells following the tragic death of an Aboriginal woman in police cell custody on 19 July 2016.

Rebecca Maher, 36, died in police cell custody in Maitland Police Station following her detainment by police for apparent intoxification.

Although earlier reports suggested Rebecca Maher was arrested, police media reports state Rebecca Maher was detained for intoxification.

A police media statement says Ms Maher had ‘appeared intoxicated’ and was placed in a holding cell, and ‘about 6am the woman was found deceased.’

Gary Oliver, CEO of ALS says the legislation relating to the detention of intoxicated persons may need review.

“We understand Rebecca Maher had been held in a holding cell for some hours before she was found to be deceased.

“We have many questions about what happened that night, and that includes what continuing avenues the police took to find a responsible person as guided by the legislation, and during that time, what level of care was provided to Rebecca Maher during those 5-6 hours while held by police.

“Putting an intoxicated person into a cell places enormous responsibility on the police to carefully manage the health and welfare of that person until which time they do not appear to be intoxicated and can be released.

“Police notification using the ALS Custody Notification Service (CNS) applies if police have arrested a person for an alleged offence.

“Police are currently not required to call the CNS when they have detained someone who appears to be intoxicated for the sole purpose of their own welfare.

“Police however are required to do a number of other things, including giving the person an opportunity to contact a responsible person, or continually seeking to put the person into the care of a responsible person willing to undertake the care of the intoxicated person, such as a family member, a friend, a member of staff of a government or non-government organisation, or a facility providing welfare or alcohol or other drug rehabilitation services.

“If a responsible person cannot be found, or if the person is not willing to go into the care of the responsible person, or if it is impracticable to transport the person to a responsible person or to their home, police may hold the person at the Station as a temporary measure until that person is seen not to be intoxicated.

“Under the legislation, if the intoxicated person is kept at the station, they have to be kept in a separate part of the station, they are not to be detained in a cell unless it is necessary or impracticable to lock up the person elsewhere, and they have to be given food, drink, bedding and blankets, appropriate to their needs.

“The person must be released as soon as they stop being intoxicated, or appear to not be seriously affected.

“If an intoxicated person is held but not charged, under existing legislation, there is no requirement to call the CNS.

“This may well be a law reform issue. A vulnerable person in custody needs protection.

“A notification system such as the CNS can help trigger protective processes, such as health and welfare checks.

“However, the legislation already requires police to enact certain pathways to ensure the care of the intoxicated person.

“Did police enact those pathways?

“Does the legislation relating to the detention and notification of intoxicated persons need to be reviewed?

“These are some of our questions.

“It is the 25th anniversary of the Royal Commission into Aboriginal Deaths in Custody this year, and so many recommendations have still not been implemented, yet they remain astutely relevant.

“The lessons for the care of Aboriginal people in custody are already written. Let’s use them.”

 NSW Police Force, media release, 19 July 2016:

Critical incident - Maitland

A critical incident has been launched after a woman died while in custody at Maitland Police Station.
About 12.45am (Tuesday 19 July 2016), police located and detained a 36-year-old woman who appeared intoxicated, walking along Wollumbi Road, Cessnock.
The woman was transported by police to Maitland Police Station and placed in a holding cell.
About 6am the woman was found deceased.
A Critical Incident Team from Newcastle will now investigate all circumstances surrounding the incident.
That investigation will be subject to independent review.
All information will be provided to the Coroner who will determine the cause of death and make any findings about the events leading to the woman’s death.
The welfare of the police officers has been addressed and they are being supported.
The woman's family has been notified and our thoughts and condolences go out to the family.

Monday 23 May 2016

So who destroyed any credibility left to NBN Co. and the Australian Federal Police?


On 19 May 2016 it was reported that the Australian Federal Police (AFP) used warrants to search an electorate office occupied by former Communications Minister and current Shadow Minister for Defence Senator Stephen Conroy and the home of one of Shadow Minister for Communications Jason Clare’s staffers looking for evidence of a whistleblower involved in leaking NBN Co. documents, which outlined cost blowouts as well as planning and delivery failures in the rollout of Prime Minister Malcolm Bligh Turnbull’s faster, cheaper, sooner national broadband network.

The ABC sighted a warrant and reported that it named Labor Senator Stephen Conroy, staffers, technology bloggers, and four major media organisations including the ABC and that It required the people subject to the warrant to hand over all documents relating to those people and organisations.

A number of NBN employees were also interviewed in relation to this matter on 19 May according to the AFP.

This is a redacted copy of the letter sent to AFP Manager Crimes Operations after the raid on Conroy's Melbourne office and the Brunswick home of a Labor staffer:

So who was this mysterious civilian seconded assistantwho apparently snapped over 30 images of documents over which parliamentary privilege had been claimed and, sent them on to various employees of NBN Co?

An un-redacted screenshot was displayed on Twitter in the early evening of 20 May for those who missed the hint In The Australian the first time around:

On the same day this set tongues wagging on Twitter:


So the cat is allegedly out of the bag and it is rumoured that the man at the centre of the political furore at the end of Week Two of the federal election campaign is a former Frankston detective senior constable, former partner in a furniture business, former head of security at a casino and current works in security at NBN Co.

However, this rumour remains unconfirmed because neither Team Turnbull, NBN Co. nor the federal police are about to name names. Transparency and accountability are not concepts that would normally be associated with these three.

The AFP stated in a 20 May 2016 media release that the federal government and opposition were appropriately notified and advised of operational activity regarding this matter after it commenced yesterday.

The current Minister for Communications and Senator for Victoria Mitch Fifield has admitted that he knew about the complaint to the AFP and the subsequent investigation but denies knowing of the warrants or tipping off the media to the night raids.

Sky News reported that Malcolm Turnbull said he first became aware of the raids when notified by Justice Minister Michael Keenan on Thursday, after the minister had been briefed by the AFP chief.

To date Attorney-General George Brandis is not on the record as to what he knew.

As the raids on both Steven Conroy and one of two Labor staffers were filmed by mainstream media there remains a suspicion that a person within government or police circles told the media about the when and where of these searches (second raid seen in this video).

When it comes to the exact type and status of those documents allegedly improperly distributed by the AFP/”Mr.Steere”, one will have to wait and see what any post-federal election Senate inquiry on the parliamentary privilege claim reveals or if Labor makes a formal complaint to the Commonwealth Ombudsman or commences legal action.


UPDATE

First leaked 12 page document from NBN Co titled Overbuilding Optus and marked Commercial Confidential,second leaked 12 page power point presentation CTO Briefing: Fibre to the distribution point and marked Internal Use and Scale the Deployment Program – Fttx Design and Construction. Copy of NBN Corporate Plan 2013 not yet found.


The Register, 22 May 2016:

The staffer has been identified as Simon Lee-Steere, nbnTM's general manager for security investigations, although in the only public document (below) his name has been redacted…..
Later, in defense of the staffer's actions, nbnTM corporate communications executive Karina Keisler Tweeted that the company's staffer was acting with the authorisation, and under the instruction, of AFP officers.

Business Insider, 23 May 2016:

NBN Co has stood down two of its employees over alleged involvement in the leaking of documents which resulted in last week’s AFP raids on Labor offices.
A spokesperson for the company confirmed that two employees had been stood aside while the AFP investigation was taking place. NBN Co did not name the employees or wish to comment further.
This news follows a dramatic few days for the government and the NBN, after police raided the offices of Labor senator Stephen Conroy, the homes of Andy Byrne and Ryan Hamilton as well as two staffers of shadow communications minister Jason Clare…..
The Australian Federal Police no longer have access to seized documents after the Labor party claimed parliamentary privilege.
AFP commissioner Andrew Colvin confirmed that the documents seized have now been sealed, and can’t be accessed until the matter goes before the Senate….

Thursday 19 May 2016

Australian Federal Police and the Construction Forestry Mining and Energy Union (CFMEU) in 2016


The Australian Federal Police (AFP) are not covering themselves with glory in relation to one Australian union.......

This article in The Guardian on 16 April 2016 appears to indicate that, in subsequent interactions with Construction Forestry Mining and Energy Union (CFMEU), the Australian Federal Police did not forget that the union had successfully defended itself in court in 2015:

A complaint from the construction union to the commonwealth ombudsman paints an extraordinary picture of heavy-handed tactics by special police taskforces, including a police officer allegedly warning one unionist he knew his children’s names and what time he dropped them off to school.

The letter, sent by the Construction Forestry Mining and Energy Union (CFMEU) on Tuesday, complains that police repeatedly attempted to question witnesses without their lawyers present and, in one case, demanded a junior employee grant access to union headquarters during a raid without first showing her a warrant.

The union’s complaint alleges that when the Australian federal police searched the ACT branch’s headquarters on 25 August, one officer told the branch secretary Dean Hall, “I do know about your family things”, to explain how he knew his wife’s name.

“Like, I know your kids’ names and their ages and where they go to school and when you drop them off,” the officer is said to have told Hall. “What do you expect? I am profiling you.”

The union’s lawyer, Phillip Pasfield, told the ombudsman these alleged statements were intimidatory, unwarranted and designed to threaten Hall, who was “extremely upset” about the incident.

In December the Australian Capital Territory supreme court ruled that the raid was unlawful because police withheld information from the magistrate in order to get the warrant.

The CFMEU complained that the officer in charge of the raid told building industry participants that he would prefer to make workplace agreements with the Master Builders Association, not the CFMEU…..

The union claimed the AFP deliberately misled a Fairfax Media journalist by saying a CFMEU official had been “raided” on 2 December then changed its story to say the raid related to the official but was not a raid on his or her property. This was done to “destroy the reputation of the official involved”, it said.

In another incident, the CFMEU said the union police taskforce provided false information or failed to correct journalist Stephen Drill, who incorrectly reported Victoria police’s union taskforce Heracles had raided the CFMEU’s Victorian headquarters…..

While this report in The Guardian on 9 May 2016 raises serious concerns about the conduct of the federal police:
Union officials have launched an extraordinary attack on the Australian Federal Police, accusing the force of adopting an "unbalanced and aggressive" approach to union activities and executing the Turnbull government's union-busting ambitions.
Sparking a flare-up of simmering tensions this week, a Victorian union safety officer has become the subject of a criminal investigation after he tested the stability of a guard rail during a site visit and it immediately collapsed.
A letter from the AFP, seen by Fairfax Media, details the allegation of property damage against the Construction, Forestry, Mining and Energy Union's Peter Clarke. 
The union said the case was "bizarre" and added to serious concerns that police were responding to political pressure to become more heavily involved in industrial relations matters.
"This is a bizarre use of AFP resources that ought to be used to deal with the serious criminality that goes on in the community," union secretary Dave Noonan said.
"It's clear to us that senior officers of the Australian Federal Police are directing some kind of campaign against the union and its officials."
The case is the latest example of what the CFMEU claims is unjust, heavy-handed treatment of its members and officials in Victoria, the ACT and Queensland by the federal police. Slater & Gordon, the union's legal firm, has filed a formal complaint against the AFP with the Commonwealth Ombudsman.
Video footage of the alleged property damage incident shows Mr Clarke – a safety officer with the union's Victorian branch – approaching the guard rail during a safety inspection at a Canberra construction site in February. It appears to show him momentarily shaking the railing before a large section collapses.
Mr Clarke has been called in for interrogation over the incident.
"During the course of the investigation, Mr Clarke was identified as being responsible for damaging a guard rail at that location," AFP acting Commander Robert Wilson said in the letter.
"The allegation against Mr Clarke is property damage ... Police wish to speak to Mr Clarke in relation to the matter in the form of a record of interview."
The union said falls from heights were a leading cause of workplace injury and death, and every safety official was expected to check the stability of guard rails during site inspections. Statistics from Safe Work Australia shows the nation's construction industry accounts for almost 40 per cent of fall-related deaths.
"The fact that this rail was so flimsy it didn't survive a light shake shows it would have been completely ineffective in preventing a fall, and completely fails to comply with the relevant codes of practices," Mr Noonan said.
"Are our priorities saving workers on construction sites from getting killed, or trying to cover up for builders who cut corners on occupational health and safety and put workers' lives at risk?"
The Australian Federal Police said the investigation was ongoing and it would not be appropriate to comment.

CFMEU video footage of the alleged property damage:

The Guardian, 5 May 2016:

In separate proceedings, union official and rugby league great John Lomax will appear in the ACT Supreme Court on Friday against the AFP.

Mr Lomax was investigated and prosecuted for blackmail last year, with police alleging he attempted to force a Canberra painting company and its principal to sign a union enterprise bargaining agreement.

The prosecution was dropped in October. 

Now Mr Lomax is considering a malicious prosecution lawsuit. 

He and his lawyers declined to comment ahead of Friday's court appearance.

But CFMEU national construction secretary Dave Noonan, Mr Lomax's employer, said the former Canberra Raiders hardman's lawyers had been forced to seek a court order to access information about the investigation after requests to the federal police failed.

"The solicitors [who act for Mr Lomax] have sought various documents to ascertain whether or not our concern that there was a malicious element to the prosecution can be sustained," Mr Noonan said.

"Those documents have not been supplied.

"As the documents were not produced it's necessary to make an application in court for pre-trial discovery."

Mr Noonan said the contents of the documents would determine whether Mr Lomax would launch a malicious prosecution suit against the federal police.

"[Mr Lomax] was charged on a completely bogus charge, our QC said so at the time, they proceeded with the charge, they failed to provide any evidence to the court and the charges were dropped.

"If the AFP has got nothing to hide, why not provide the documents? If they acted in good faith, why not provide the documents?

"We think the proper thing for the AFP to do is to produce the documents."


ABC News reporting on the ACT arm of the Australian Federal Police on 22 March 2016:

A former staffer at the centre of an investigation into the office of Labor MLA Joy Burch has hit out at ACT police after it was announced the inquiry had been dropped.

Last year, allegations arose that Ms Burch's chief of staff, Maria Hawthorne, leaked sensitive details of conversations between the ACT Government and the chief of police about the conduct of officers on construction sites in Canberra, to the Construction, Forestry, Mining, Energy Union (CFMEU).

ACT Policing has announced no criminal charges would be laid but revealed that allegations also involved another former staff member.

Ms Hawthorne dismissed the allegations against her and other staff.

"ACT Policing's last-ditch attempt to implicate a second staff member should be seen for what it is – a desperate act of distraction," she said.

"The truly unprecedented event of the past three months has been an elected minister losing her job because of unfounded allegations by an unelected official."

BRIEF BACKGROUND

In this ACT Supreme Court judgment, Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police [2015] ACTSC 362 (2 December 2015), the Australian Federal Police are found to have abused process:

140. The fact that a second or subsequent warrant might be an abuse of process does not go to the question of the validity of any such warrant, but only if it is shown that the second warrant is actually issued for an ulterior or improper purpose or otherwise constitutes an abuse of process.


141. In my view, it could not be said, in this case, that the issue of the second warrant was an abuse of process. No prejudice to the plaintiff was identified that was outside the contemplation of the construction of the relevant provisions.

Relief

266. As I have found the seizure under the second warrant to be invalid because of the failure to disclose fully the circumstances that were required to be disclosed for the issuing officer, the learned Magistrate, to make a proper decision about whether to issue a warrant that is able to be executed after 9.00 pm, I have not found that any of the other complaints invalidated the search or the warrants.

267. In relation to the material obtained under that warrant, the material must be returned or destroyed.

268. In relation to the breaches that I have found, I have been asked to make declarations of non-compliance with the relevant sections.
269. The question of whether I had power to make declarations was not subject to any challenge by the first defendant, other than as to discretion. This is not a case such as Kennedy v Baker where such an issue arose. There is, in this Court, plenary power to make such declarations and I do not need to consider the jurisdiction further.

270. As to discretion, the only basis on which it was urged that I should not make any declaration is that a failure to do so would still leave a court, which was required to deal with any criminal proceedings on which any seized material is sought to be admitted, and which retained jurisdiction under s 138 of the Evidence Act, to deal with any impropriety or illegality then.

271. I accept that a court will be appropriately able to protect an accused’s interests in any such criminal proceeding by such means; see Phong v Attorney-General for the Commonwealth [2001] FCA 1241; (2001) 114 FCR 75. It seems to me, however, inappropriate to deprive such a court of my findings following what was a detailed hearing with not only affidavit evidence but cross-examination and oral submissions.

272. In the circumstances, I am prepared to make the declarations.

273. It seems to me that the plaintiff has had sufficient success to justify an order for costs. I shall permit the parties to seek another order but otherwise so order.

Friday 19 February 2016

A hint of what the Australian Federal Police know concerning the Ashby-Brough affair


What Senate Estimates tells us this month: 

* Liberal MP for Fisher Mal Brough has been formally interviewed by federal police at least once; 
* hundreds of thousands of emails, documents and images have been seized from the homes of Mal BroughJames Ashby, Karen Doane and elsewhere; 
* the official charge being considered is unauthorised disclosure1; 
* federal police have read “Ashbygate” by Ross Jones; 
* the Kingston Hotel in Canberra is well-known in Senate circles; and
* LNP Senator Ian Macdonald has no understanding of the Commonwealth Criminal Code.

SENATE LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE Estimates (Public) Tuesday, 9 February 2016:

[Labor, Victoria] Senator JACINTA COLLINS: I would like to ask some questions about the status of the AFP investigation into the theft of the official diary of the former Speaker of the House of Representatives. I appreciate the sensitivity of the matter, as the investigation obviously remains on foot, so I will be attempting to ask some fairly factual questions, but please let me know if you think it is inappropriate, given that the investigation is on foot. It has been reported publicly that the AFP raided the homes of Mr Brough, Mr Ashby and Karen Doane, looking for evidence in relation to the theft of the former Speaker's diary. Are those reports accurate?
[Australian Federal Police Commissioner] Mr Colvin: The way that you have characterised them, Senator, I guess is relevant to the investigation. We are making an investigation into the unauthorised disclosure of and access to the diary. I would draw a distinction between that and theft. I just want to be very careful about what we say.
Senator JACINTA COLLINS: Sure. So you do not think it is appropriate to discuss at this stage whether you have raided the homes of those people?
[Federal Attorney-General] Senator Brandis: Senator Collins, I think the point Mr Colvin was making to you is that there is no investigation into theft.
Senator JACINTA COLLINS: Okay. What language would you like to use, Mr Colvin?
Mr Colvin: We refer to it as unauthorised disclosure.
Senator JACINTA COLLINS: All right, we will use that language and I will ask the same question.
Mr Colvin: Yes. I am not trying to be picky on that.
Senator JACINTA COLLINS: That is fine.
Mr Colvin: In relation to matters that we have or have not done, some aspects of this investigation are already in the public arena, and I am happy to confirm matters that are in the public arena. But, to the extent that matters are not, it is not our normal course, as you would appreciate, to talk about what we may be doing. Deputy Commissioner Close has the details.
[Deputy Commissioner, Operations] Ms L Close: Senator, I can confirm that the search warrants were executed on premises for the three people that you have just mentioned.
Senator COLLINS: Are there any other search warrants that are fitting in with Mr Colvin's point and that are a matter of the public record?
Ms L Close: No, there are none on the public record.
Senator COLLINS: Am I correct in concluding that you do not want to discuss any that may have occurred but are not on the public record?
Ms L Close: That is correct.
Senator COLLINS: Okay. What is the current status of the investigation into Mr Brough's conduct?
Ms L Close: The investigation continues. As you can understand, we are relying heavily on electronic records, which we have obtained from various entities. Because of the complex nature of this matter we have also had to obtain legal opinion in respect of search warrants and other avenues of inquiry. Just to demonstrate, some of the investigation time frames are quite lengthy, because we have recovered, to date, in excess of 7,600 emails, 141,000 documents, 116,000-plus images and thousands of email attachments. That just highlights for you the extent of the investigation we are undertaking. 
Senator COLLINS: Are you able to tell me when you expect to be able to finalise the investigation?
Ms L Close: No.
Senator COLLINS: Does all that material you just referred to cover the book Ashbygate?
Ms L Close: No.
Mr Colvin: No.
Senator COLLINS: What are the possible outcomes of the investigation? What will happen when you conclude all of that work?
Ms L Close: We then make an assessment as to whether we believe there is sufficient evidence beyond reasonable doubt to have a prima facie case to put to the Commonwealth Director of Public Prosecutions. The Commonwealth DPP will then make a determination of whether there are any charges to be laid in respect of any people.
Senator COLLINS: And at this point in time you are not able to advise me of the time frame on which you think you will conclude your review of the material?
Ms L Close: Not at this point, no. 
Mr Colvin: Further to that, there are aspects of all investigations, and this one is no different, that are out of the control of the organisation. We are in the hands of processes, and sometimes individuals, that mean that we cannot give you a time frame with any degree of certainty.
Senator COLLINS: Mr Brough has remarked that he is willing to be interviewed by the AFP in relation to the criminal accusations that have been made against him. Has that interview occurred?
Ms L Close: We have spoken to Mr Brough, and that is on public record.
Senator COLLINS: When was that, and where did the interview occur?
Mr Colvin: I think in fairness to Mr Brough, if he wishes to make some of that material public then he may do that. We have not said that publicly and I do not think it is appropriate. We would not normally make that public. That is a matter for Mr Brough, if he wishes to.
Senator COLLINS: When you say, though, that you have spoken to Mr Brough, is that what would be regarded as an interview? Or have you a need for further interview?
Ms L Close: It really will depend on the analysis of all the material that I outlined to you earlier as to whether we need another interview or not.
Senator JACINTA COLLINS: Okay, but in terms of you looking at all the material before you, it was not just simply a preliminary discussion.
Ms L Close: We have had preliminary discussions—
[Nationals, Queensland] Senator O'SULLIVAN: Chair, could I just raise a point of order? I am struggling to see the relevance of this in the context of estimates. I would understand if the senator were pursuing details about the cost of these investigations, the volume of resources and the like. But we have quite literally hundreds of investigations underway at the moment that would have a political interest, and the trade movement and the like. We could spend the next week here examining the AFP's involvement. I just do not understand the relevance, and I would like you just to consider it and perhaps rule on it.
[LNP Queensland, Senator Ian Macdonald] CHAIR: It is relevant to the expenditure on wages and equipment.
Senator O'SULLIVAN: Well, if the questions were that, I would understand that, but that is not—
CHAIR: Well, that is not how they are being used, I guess, but I would allow it at this time.
Senator Brandis: I think the point is that Mr Colvin and Deputy Commissioner Close have made it clear that they cannot go beyond that which is on the public record, and that which is on the public record is already on the public record. So, I just wonder what it profits us to ask questions to which we already know the answer, since only matters to which we do already know the answers are appropriate objects of inquiry.
CHAIR: It is really up to the senator to use her time in whatever way she seems fit. As you say, even if the information is already there, if the senator wants to keep asking the same questions and gets the same answer, that is really up to her.
Senator JACINTA COLLINS: Thank you.
Mr Colvin: In answer to your question: I do not wish to discuss investigational strategies. Whether we decide to re-speak to Mr Brough in a formal or informal capacity, they are all matters that my investigators will make a judgement on depending on where the investigation takes them, and it is not something I wish to discuss openly.
Senator JACINTA COLLINS: No, and that was not really the point of my question. I was simply seeking to establish whether we were both talking about an interview, which is what Mr Brough had referred to, as opposed to some preliminary conversation to establishment.
Mr Colvin: I will leave that for Mr Brough to talk about, not us.
Senator JACINTA COLLINS: It has been reported that Mr Ashby has offered to provide the AFP with a copy of the document which he says proves that Wyatt Roy instructed him to steal the former Speaker's official diary. For example on 1 December—
Senator O'SULLIVAN: That is an emotively embedded question when the commissioner has made it very clear to you that there is no investigation on foot regarding theft. At least keep your language in accordance with the fact that have been presented to you in the evidence.
Senator JACINTA COLLINS: I suggest you go back to the buffet.
CHAIR: You have made your point of order on that one.
Senator Brandis: Mr Chairman, on the same point, if I may—and I know Senator Collins is a serial offender here—but if words are to be attributed to someone then the precise words they use, not a paraphrase of them, has to be put to the witness. On numerous occasions, in this forum and in the chamber, it has been discovered after Senator Collins has put a paraphrase of words to a senator or a witness that what she has put to the senator or the witness was not an accurate rendering of what they said.
Senator JACINTA COLLINS: That is simply untrue.
Senator Brandis: On numerous occasions I have caught you out doing this.
Senator JACINTA COLLINS: No, that is untrue. On numerous occasions you have practised malapropism, because you do not know how to apply words that you think are big and attractive. Senator Brandis: If you are going to attribute words which bear a very, very important insinuation against somebody's reputation then in fairness both to the witness and to the person whom you are trying to smear—
Senator JACINTA COLLINS: 'Smear' now? Stop imputing improper motives.
Senator Brandis: please put the direct speech to the witness or not at all.
Senator JACINTA COLLINS: Your behaviour is outrageous. I really do not know how Mr Turnbull puts up with you.
CHAIR: A point of order was raised and I am ruling on it. There is no point of order—
Senator JACINTA COLLINS: No, there is not. That is right.
CHAIR: but I am sure Commissioner Colvin will take the warning and will, himself, be cautious in how he answers the questions, as he always is, of course.
[Labor, Tasmania] Senator BILYK: It is all very draining now.
Senator JACINTA COLLINS: I mentioned that it had been reported and I was about, if I had been given one extra moment of oxygen, to quote that report. If Senator Brandis wants to take issue with the quotation he is encouraged to take issue with the ABC.
Senator Brandis: Then you will be kind enough to provide us with the source from which you are quoting.
CHAIR: The ABC.
Senator JACINTA COLLINS: Certainly, which I just did.
CHAIR: That is a reliable source. We can all rest assured now that this will be accurate.
Senator JACINTA COLLINS: On 1 December last year the ABC reported that: Mr Ashby has also claimed today that Assistant Minister for Innovation Wyatt Roy advised him to copy Mr Slipper's diary. CHAIR: And the question is?
Senator JACINTA COLLINS: No, I am going to go through the full quote, because I do not want to— Senator Brandis: Are you reading from the report or are you reading from words attributed in direct speech to Mr Ashby?
Senator JACINTA COLLINS: I am about to go to words directly attributed to Mr Ashby now, in The Australian newspaper.
Senator Brandis: In direct speech?
Senator JACINTA COLLINS: Yes.
Senator O'SULLIVAN: Chair, can we have a copy of this while this is happening so we can keep it in context and so we can follow the senator's efforts here?
Senator JACINTA COLLINS: Sure. In quotation of Mr Ashby: "Wyatt said he didn't really know how to advise me and said he wanted to speak with Christopher Pyne," Mr Ashby told The Australian newspaper. Again in quotation of Mr Ashby: "He then called me back and I went and saw him in his office and he presented me a sheet of paper with instructions of what I should do, and one of the first steps was to get a copy of the office diary." Still in quotation: 'That is how I came to be printing off a copy of the digital diary. It was evidence in my case.' That is the end of the quote. This is still from the ABC, though: Mr Ashby confirmed the quotes on Macquarie Radio this morning and said the sheet of paper would have Mr Roy's fingerprints on it. Finally, referring to Mr Ashby: 'And Wyatt's never denied giving me any assistance in the beginning,' he said. Following that public reporting, has Mr Ashby provided a copy of this set of written instructions to the AFP?
Mr Colvin: I am not aware of that particular report. I know it is not necessarily relevant to your question, I just think it would be very unwise for me to give an indication to the committee while this matter is still ongoing. That is directly relevant to the ongoing nature of the investigation, and it is just not something I am prepared to talk about publicly.
Senator O'SULLIVAN: Hear, hear.
Senator JACINTA COLLINS: I appreciate that. Senator O'Sullivan, maybe you were still down at the King O when I started these questions—
Senator O'SULLIVAN: You do not know where I was, and your comments are offensive and you should keep them to yourself.
Senator JACINTA COLLINS: We do know where you were.
CHAIR: Senator Collins, that is an offensive comment on a Senate colleague. I will not ask you to withdraw—
Senator O'SULLIVAN: For the record, I was not at the Kingston Hotel.
CHAIR: You do not have to say where you were.
Senator O'SULLIVAN: No, but I am just sick of this.
CHAIR: You should desist from that, though, because otherwise people will say you are always permanently drunk, Senator Collins, and that does not get us anywhere.
Senator JACINTA COLLINS: They are welcome to say that. It would not have much credibility.
CHAIR: Well what you are saying about Senate colleagues does not have much credibility either.
Senator JACINTA COLLINS: The issue is that I said at the outset of this discussion, and Mr Colvin remembers that because of the response he just made—
CHAIR: You made a snide comment to another senator, which should not happen. Go on with your question.
Senator JACINTA COLLINS: If you defended me as adequately as you are now him, obviously people would not feel encouraged to respond to poor behaviour. I understand that Mr Colvin does not want to respond to that question, and I accept his explanation of that. My next question—
Senator Brandis: I think Mr Colvin said it would not be appropriate to respond.
Senator JACINTA COLLINS: Yes, and I said that I accept that.
Senator Brandis: You said that he said he did not want to respond.
Senator JACINTA COLLINS: Will you stop being such a pedant? Seriously.
Senator Brandis: I think there is a difference.
Senator JACINTA COLLINS: It is very late at night, and your behaviour is very draining.
Senator Brandis: There is no reluctance on the part of these witnesses to respond to questions to which they feel they can respond appropriately. When the commissioner of the Australian Federal Police says that it is not a question to which he can appropriately respond, then that is the ground on which the question has not been answered—not because he does not want to provide the committee with all the information he appropriately can.
Senator JACINTA COLLINS: Senator Brandis, no one implying any differently. You are just making this tedious.
CHAIR: Let us move on. Your time has finished, but we can come back to you, Senator Collins. I will go to Senator O'Sullivan, but, before I do, as part of Senator O'Sullivan's time, could I just ask if the offence being considered or investigated is unauthorised disclosure? Is that right?
Mr Colvin: The circumstances that we are investigating is the unauthorised disclosure of the former speaker's diary. The offence that we may end up considering as the most appropriate—if we even get to that point—is still to be determined.
CHAIR: It is what?
Mr Colvin: It is still to be determined. We have a range of—
CHAIR: There is no technical offence of unauthorised disclosure, is there? That is not a criminal offence.
Mr Colvin: There are offences of unauthorised disclosure.
CHAIR: Where do they rate in the scale of offences? Are they like murder? Terrorism? Rape? Robbery?
Mr Colvin: Chair, that is very difficult for me to answer, because it depends upon the circumstances—for example, are there aggravated circumstances. All offences have penalties that the court can impose, and, clearly, unauthorised disclosure has a very different penalty to what a terrorism offence would.
CHAIR: There was a lot of discussion earlier about the cost and your resources and all this, and I was absolutely gobsmacked to hear Ms Close say that you have investigated thousands and thousands of emails and documents. I can well appreciate the questions on the use of your resources, when you are clearly involved in a huge amount of effort. Is someone, or are several people, going through every one of those emails, every one of those documents, with a magnifying glass, considering each aspect?
Ms L Close: Yes, we have investigators looking at every document that we have seized in relation to this matter.
CHAIR: That would be a very time-consuming exercise, I take it.
Ms L Close: Yes.
CHAIR: For something that I would have thought—and you can tell me I am wrong—in the course of criminal activities that the AFP look at would rank pretty low: unauthorised disclosure.
Mr Colvin: There are a few things there to consider. One is: the court will make determinations in terms of penalty of what gravity of offence the court may consider if somebody is convicted. But there are broader considerations for the AFP than just the penalty of the offence. It is the circumstances and the public interest in the matter. I am probably better off just leaving it at that.
Senator Brandis: I think, if I do not misunderstand what is being said, that it is actually not the offence of unauthorised disclosure; it is the offence of procuring another person to have unauthorised access. I do not think it is being suggested that Mr Brough himself had unauthorised access. I think it is being suggested by some that Mr Brough encouraged somebody else to have unauthorised access.
CHAIR: That would take it to being an even lesser matter, but I take Commissioner Colvin's point and will not pursue that. I hesitate to ask for this on notice, but can someone tell me the penalties that have been imposed on the last successful convictions for procuring someone to have unauthorised disclosure?
[Australian Greens, Tasmania] Senator McKim interjecting—
CHAIR: It is wasting resources, is my point, when we are dealing with criminals, thugs, rapists, murderers, and we have the AFP looking through hundreds of thousands of documents and emails for an offence which, even on conviction, I guess would get a good behaviour bond or something. That would be my experience of how lenient the courts are these days. How difficult would it be to get me some examples of the last time someone was convicted for procuring someone else to make an unauthorised disclosure? Would that be difficult to find?
Ms L Close: I am not aware of the last matter where a person was convicted, so we will have to take that on notice and do some research.
CHAIR: I do not want you to do too much research, because I for one appreciate that you have far more important things to do. But if it is easy to get the last couple of times there were convictions—if there have ever been any in the history of the Criminal Code of the Commonwealth—I would be interested to see when they were, what the penalty was and how many there were. With that, I will pass to Senator O'Sullivan.


3.91       Section 70 of the Crimes Act is the only provision remaining in pt VI of the Crimes Act.[125] A version of s 70 was included in the original Crimes Act in 1914, and was based on a provision of the Criminal Code Act 1899 (Qld).[126] This original version of s 70 was repealed and replaced in 1960 to extend the prohibition on the unauthorised disclosure of information by Commonwealth officers to include former Commonwealth officers.[127] While minor amendments have been made to s 70 on three occasions since 1960,[128] the substance of the provision has not changed since that time.

3.92       The effect of s 70 is to apply criminal sanctions to the breach of secrecy obligations by public officials.[129] Section 70 provides that:

(1)  A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

(2)  A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence....

What kind of information is protected?

3.100   Section 70 of the Crimes Act makes it an offence for a Commonwealth officer to disclose ‘any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer’. On its face, s 70 could apply to the disclosure of any information regardless of its nature or sensitivity.

An example of conviction for unauthorised disclosure: R v Scerba (No 2) [2015] ACTSC 359 (5 November 2015)

Decision:
1.                   Michael Scerba be convicted of unauthorised disclosure of information by a Commonwealth officer.
2.                   Michael Scerba be sentenced to twelve months imprisonment to commence today, 5 November 2015.
3.                   On 4 February 2016, after serving three months imprisonment, and upon giving security in the sum of $500, Michael Scerba be released on the condition that he be of good behaviour for a period of two years.
4.                   Pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon application of the Director of Public Prosecutions, the following items, seized by members of the AFP during the execution of a search warrant at [redacted], Richardson in the ACT on 21 October 2012, be forfeited to the Commonwealth:
a.                   All hard drives contained in the black ‘ANTEC’ computer tower (item no 001 recorded on property seizure record A228052); and
b.                  5 x shards/pieces of compact disc (item no MS/ET/45 recorded on property seizure record A228055)