Tasmanian Parliament quietly tables terms of reference for police investigation

As Crikey reported last month, among the inadequate responses to revelations that Tasmania Police had illegally bugged Risdon Prison, potentially recording a number of confidential discussions between lawyers and their clients, was an “independent review” by former solicitor-general Michael O’Farrell SC, but with then-unknown terms of reference (ToR).

The review’s ToR were quietly tabled in Tasmania’s Parliament last week. The lack of fanfare accompanying the ToR, which had been eagerly sought by a number of politicians and organisations, was surprising — after all, they were supposed to confirm the robustness of the independent review process that Tasmania Police had initiated, and which the Tasmanian Integrity Commission had speculatively endorsed despite the ToR then not existing.

The almost sullen embarrassment with which the ToR were tabled was explained by the contents. The ToR appear to confine O’Farrell to reviewing the warrants issued since January 1 2012 relating to the use of surveillance devices in prisons, but not the way in which police acted on the warrant, or the scope of the evidence obtained as a result.

For ToR intended to ensure transparency and accountability, they are strangely narrow. An examination of the warrants themselves is unlikely to be enlightening in the absence of both an examination of the evidence so obtained, and consideration of the way the warrants were executed: these were the very issues in the case of lawyer Jeffrey Ian Thompson, who was targeted by Tasmania Police’s initial bugging operation while he was working with his then-client Susan Neill-Fraser.

Also curious was the decision to confine the ToR to warrants issued in relation to prison facilities. After all, most privileged communications do not in fact occur in a custodial setting. While the fact of the custodial setting was a novel point of interest in the Thompson matter, it was not itself a decisive factor in the issues of illegality as found by the court. By confining the ToR in this way, it is quite possible that a number of worthy instances for independent review will be ignored.

Perhaps most curious however was the fact that none of the ToR will address the chief point of concern arising in the Thompson case: did the police listen to and make use of the privileged communications that would have been captured as a result of its egregious conduct? The public only has Tasmania Police’s claim that this did not occur.

So far, newly appointed Minister for Police Felix Ellis does not seem to be prepared to stand up to the police’s command hierarchy and to insist on more expansive ToR. Of course, issues such as this that have bearing on the trifling matters of the rule of law and the administration of justice ought to attract the interest of the attorney-general, but so far A-G Elise Archer is cultivating a public state of pristine disinterest.

The opportunity for the opposition and crossbench members of the Tasmanian Parliament to hold the government to account on these matters is available.