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Telephone Tapping [1987] Reform 128 ruled in another case that the origi­ These are but wild and whirling words, nal meaning of the words used in the my lord. Constitution had to be taken. The case to which he was referring was Shakespeare, Hamlet Webster’s case. (In re Webster [1975] 49 ALJR 205) This case turned on A recent issue of Reform carried a the meaning of sub-section 44(v) which story about the recommendations of makes any person having ‘any direct the Joint Select Committee of the Aus­ or indirect pecuniary interest in any tralian Parliament on the Telecommu­ agreement with the Public Service of nications (Interceptions) Amendment the Commonwealth’ incapable of being Act 1986 ([1987] Reform 21). The Bill chosen or sitting as a member or sena­ was assented to on 5 June 1987. Po­ tor (subject to some exceptions). Bar- lice phone-tapping powers will be ex­ wick CJ interpreted this section nar­ tended considerably when the legisla­ rowly in holding that its scope was con­ tion is proclaimed. fined to the purpose of the 18th century statute from which it was derived. This purpose was to ‘secure the freedom and new phone-tapping powers. The Bill makes provision for a phone tap­ independence of parliament from the Crown and its influence’ (per Barwick ping agency to be set up within the Australian Federal Police. It will act CJ 208). The 17th century statute was not, according to Barwick CJ, intended on behalf of the States, the New South to prevent a conflict of interest and Wales Drug Crime Commission and the duty on the part of members who had National Crime Authority. a pecuniary interest in a government At present, interception of a tele­ contract. Barwick CJ came to this view phone communication may only be car­ despite the use of the words ‘pecuniary ried out by the Australian Security In­ interest’ which did not appear in the telligence Organisation in relation to 18th century statute, and the intention national security or by the Australian of the founding fathers gleaned from Federal Police in relation to a narcotics the convention debates that the sub­ offence. section was intended to prevent such a conflict. He stated that the provision Under the Bill, the power to inter­ ‘however vestigial, must be enforced’ cept is extended in relation to offences and decided on the facts that Senator to include Webster should not be disqualified. • murder * * * • kidnapping • a narcotics offence telephone tapping • an offence for which the punish­ ment is imprisonment for life or a These words hereafter they tormentors maximum period not less than 7 be! years where the conduct of the of­ Shakespeare, Richard II fender constitutes [1987] Reform 129 — a risk to life or serious per­ in 1985, Professor Colin Howard, Mel­ sonal injury bourne University law professor said: — serious property damage that There is little object in providing traffic includes a risk of personal in­ police with fast cars if they had to get jury or risk to personal safety a warrant from a magistrate every time they needed to exceed the speed limit. — trafficking in narcotics — serious fraud (Sydney Morning Herald, 19 June 1985) — serious loss to Common­ wealth revenue A contrary opinion was expressed by former Royal Commissioner Frank and in all cases the offence of being a Costigan QC who told a Joint Parlia­ party to such an offence. The safeguard mentary Committee on the National of obtaining a warrant remains. Crime Authority that telephone tap­ The Opposition’s legal spokesman, ping was less effective against organ­ Mr Spender, is reported to have said ised crime than had previously been the telephone tapping Bill was wel­ thought. He was against extending come, but overdue. (The Age, 1 May telephone tapping powers to State po­ 1987) lice (Sydney Morning Herald, 3 June 1985) . community attitudes. Community support for broader telephone tapping However the Stewart Royal Com­ powers for law enforcement agencies is mission into alleged widespread illegal strong, but has not gone unchallenged. phone tapping by New South Wales Police between 1976 and 1984 found In a recent editorial: ‘Telephones that the wealth of evidence produced and the Law’ the Australian (4 May about organised crime justified greatly 1987) said: extending powers for police to tap tele­ If we ever hope to control crime then phones (Sydney Morning Herald 2 May law-enforcement bodies must be al­ 1986) . lowed to tap telephones in an effort to gain evidence of those people they be­ The Stewart Commission reported lieve to be breaking the law! The Commission is satisfied that in a number of cases convictions would A poll conducted in 1985 found never have occurred if the use of un­ overwhelming community support for lawful telephone interceptions had not State police powers to tap telephones exposed the pending commission of an in the fight against drug offences. The offence or revealed the identity of an of­ Age (24 June 1985) conducted an fender. Australia-wide poll and found 67% of (quoted in The Age, 1 July 1987) the community in favour of State po­ lice being given telephone tapping pow­ The Age included the following ers in relation to drug-related crimes. paragraph in an edited extract of a re­ However this was subject to the pro­ cently released book on the so called viso that prior judicial approval be ob­ ‘Age tapes’, — Big Shots edited by Bob tained. Bottom (Sun Books) Not everyone sees the need for such The great tragedy of the illegal New a proviso. Commenting on NSW po­ South Wales police tapes and tran­ lice tapes of telephone conversations scripts was that most of the originals [1987] Reform 130 were destroyed. It is no exaggeration transmit a radio signal to receiving sta­ to suggest that more criminals might tions before the call enters the normal have been put behind bars if more of Telecom network. the material still existed. A call to and from a mobile telephone is virtually a radio broadcast . The the states. New South Wales present mobile-telephone system uses Premier, Barrie Unsworth, and Po­ 180 transmitting channels which are se­ lice Ministers around Australia have lected at random for each call by the expressed opposition to a single na­ system . Full security with mo­ tional interception agency within the bile telephones is not expected until the Australian Federal Police. They 1990’s when a digital system will be in­ have called for each State force to troduced. be granted independent phone-tapping (Canberra Times, 24 March 1987) powers (SMH 6 December 1986 and 8 April 1987). tapping in the U S. Concern in the Federal Opposition legal spokes­ United States about telephone tapping man, Mr John Spender, also favours culminated in President Reagan issuing giving these powers to the State police. a national security directive in 1984 or­ dering special protection for all impor­ He is reported in the Canberra Times tant government communications (21 November 1986) as having said cen­ tralisation of telephone-tapping powers The National Security Agency (NSA) is a ‘cumbersome and unnecessary bu­ is responding with a new generation of reaucratic hazard’. telephone terminals that will provide secure point to point communications cryptic calls. Telephone tapping for less than $2 000 per station . is a sensitive issue for politicians. A Under Mr Reagan’s directive, the Pen­ well publicised taped telephone conver­ tagon, arms contractors and banks do­ sation between Victorian Opposition ing business with the Federal Reserve Leader, Mr Kennett with federal Lib­ will have to adopt the NSA’s security eral MP, Mr Andrew Peacock in March telephones and coding techniques. has led to increased caution on the part (The Economist, 17 May 1986) of politicians, especially in the use of car phones. However the US Government wants One politician is reported to have similar protections for US industries. said from now on all his personal calls The Economist also reported the grow­ will be kept ‘a bit cryptic’. An­ ing US trend for companies to encrypt other suggested anyone intercepting his telephone calls. This is done by digitis­ phone calls would receive ‘a gobful of ing voice signals then rearranging the teenage chat’. pattern of digits in random order using a computer. mobile phones. The devices avail­ able for eavesdropping range from the the invasion of privacy. Speaking simple and inexpensive to sophisticated recently at the National Press Club in models. Few countries endeavour to Canberra, the NSW Court of Appeal control the trade in devices. Mobile President, Justice Michael Kirby said phones axe particularly susceptible to eavesdropping. Telecom warns mobile Few citizens in positions of responsibil­ phone users that they should exercise ity today act on the assumption that caution when using them because they [1987] Reform 131 their telephones are not ‘bugged* by by the rights of the community to pro­ public, or by private, snoops. tect itself? It suggested a solution to the problem. A Privacy Commissioner (The Australian, 25 June 1987) should be appointed to the Equal Op­ portunity and Human Rights Commis­ sion. One of the functions of the Pri­ Justice Kirby warned against in­ vacy Commissioner would be to con­ creasing invasions of privacy. He said ciliate and resolve disputes over con­ legal checks available to stop invasions flicting interests where privacy was in­ of privacy were inadequate and there volved. The Privacy Commissioner was no remedy to redress any intrusion would also monitor privacy invasive ac­ (The Australian, 25 June 1987). tivity and technological advances that Justice Kirby’s warnings about in­ might interfere with privacy; fix stan­ vasions of privacy go unheeded in dards and publish guidelines; educate some quarters.
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