Thursday 24 May 2012 - Budget Estimates - Legal and Constitutional Committee

AFP

Senator LUDLAM: I do not have a great deal for the AFP, so I will be quick. You tabled a document for me-I think on notice-on your investigation into WikiLeaks. Commissioner, you put in your advice to Mr Wilkins, which by the time it got to me was just a black rectangle with your logo on top of it.
Mr Negus : Senator, to be fair, I think there were a couple of paragraphs-certainly in what I have seen that was sent to you. There was an introductory paragraph and a concluding paragraph but there was not much in between.
Senator LUDLAM: There was a great deal of black ink in between. So, given that that was a bit of a waste of paper and time, what can you tell the committee about the AFP's engagement on the matter of WikiLeaks and Julian Assange? I am not going, obviously to operational matters-heaven forbid!-but what resources do you currently have dedicated to any investigation or surveillance?
Mr Negus : We have none.
Senator LUDLAM: None? Zero?
Mr Negus : Zero.
Senator LUDLAM: You would probably be aware that last night our time the UK Supreme Court indicated that it will be bring down a judgement on 30 May. Does that change your standing or status at all?
Mr Negus : No, it does not.
Senator LUDLAM: If an Australian citizen overseas is threatened with assassination, do you have any formal role at all, or do your officers or agencies or powers need to be formally invoked by, for example, the foreign affairs department?
Mr Negus : It would depend on, obviously, the circumstances, but broadly no, we would not have a role except to provide support to the Department of Foreign Affairs and Trade who would provide some consular support or if the law enforcement agency in that particular country sought out support to conduct inquiries in this country.
Senator LUDLAM: If an Australian citizen is threatened with extrajudicial killing overseas, of your own motion you do not-
Mr Negus : We do not have the powers to go and operate anywhere else in the world without the invite of the host country.
Senator LUDLAM: I did invite ASIS to present in Foreign Affairs, Defence and Trade later in the session and they have declined, which is interesting, so I will not be able to put that question to them. Are you in a position-not obviously to put people on a plane and fly to another country-if an Australian citizen is threatened with assassination overseas, are you on your own motion able to do any domestic investigation or activate any of your intelligence gathering facilities here in Australia?
Mr Negus : It would take something to be referred to us in that regard. Assassination, murder-it is a difficult one to talk about without knowing the specific circumstances of the event. If something were referred to us we would certainly work with our international partners. With any issue which raises the concern about the safety of any person anywhere in the world but particularly an Australian citizen, we would do what we could to alert our international partners. We have liaison officers placed in various countries around the world but, again, we have no powers to investigate or to do anything; we can only raise that alert and convey that material to the appropriate authorities.
Senator LUDLAM: It still sounds like you have got to await a referral from Foreign Affairs though. Can I confirm for the record that: you have not actually received a referral to do anything in particular from the Minister for Foreign Affairs regarding the repeated threats of assassination by senior American military officials and civilian political figures against Julian Assange,?
Mr Negus : No, we have not.
Senator LUDLAM: Thank you for confirming that. You did provide, as far as I am aware, completely unredacted and with no black felt marker at all, the forms that Australian Federal Police officers need to fill in to obtain access to information under the Telecommunications (Interception and Access) Act 1979. You have provided us with those four blank forms, and I greatly appreciate that.
Mr Negus : We do try to help where we can, but obviously the ones that we do redact need redacting.
Senator LUDLAM: Have these been modified in any form or are these exactly as they would come off the printer if I wanted one of them?
Mr Negus : I think it has sample or something written across as a watermark; that is the only change.
Senator LUDLAM: If I fill one of these out, it will presumably-
Mr Negus : I am afraid I am not authorised to give you the material, but you can fill one out.
Senator LUDLAM: Do your officers have to fill out one of these per request, or could you fill out one of these for twenty requests?
Mr Negus : I am sure it is per request. In one investigation there could be multiples. Again, it is some time since operationally I have been in a position to fill out one of these forms but-
Senator LUDLAM: Mr Drennan can take it if he likes. What I am trying to work out is: 23,000 times the AFP has applied for one of these wire intercepts. The last figures we have got accurate information for is 2010-11 financial year I think. Are there 23,000 bits of paper like this in a filing cabinet somewhere, or can you fill them out as a job lot?
Mr Drennan : I might just clarify that these are requests for call charge records; they are not warrants.
Senator LUDLAM: That is correct.
Mr Drennan : We can put more than one on there but, invariably, we do not put an enormous amount on there. Under the request and the authorisation, you can put a number of phone numbers on there and request the call charge records in regard to those.
Senator LUDLAM: What is the maximum number of requests you could make on a single piece of paper? Is it just by convention or is it written down somewhere?
Mr Drennan : There is nothing which says it is a number or above or below. It is what is a reasonable amount that could go on there with regard to the investigations being conducted.
Mr Negus : To give you a bit more direction, each of these would be uploaded into our case management database, so each specific one would relate to a specific investigation. If an investigator had five investigations on, they would not necessarily write them all down on the same piece of paper. I suspect-and I will get some confirmation-that it would be each investigation. If there happen to be two or three numbers the person was after for the same reason, investigating the same offence, then that could be contained within the one document, obviously. That would be uploaded electronically into our case management system.
Senator LUDLAM: Can you talk us through why there are four separate forms. Obviously, these did not come with an explanatory memorandum. Can you explain what the purpose of the four different flavours is.
Mr Negus : I will get Assistant Commissioner Ramzi Jabbour to the table and he can perhaps explain that to you.
Mr Jabbour : As the Commissioner said, it largely depends on the offence. So, depending on the individual case and the nature of the investigation, a form would be completed with the specific service that we are seeking the information on. It may be that one form is completed for three or four services. It may be that one form is completed for simply one service, with the appropriate offence recorded. A separate form would then be created for a different service and so on. We would not typically confuse the matter and have several services pertaining to several different investigations on the one form.
Senator LUDLAM: Of the four different kinds then, can you just very quickly explain them-because I am aware that time is pretty short. 'Historical seek request' relates to a Telstra MOU or a Telstra system in particular?
Mr Jabbour : Yes.
Senator LUDLAM: Who is a 'historical subscriber request' for?
Mr Jabbour : Again, it would depend on the service provider. So it is not a particular form for one particular service provider. It would depend on the service of interest and the service provider that is relevant to that particular service.
Senator LUDLAM: And the other two, I guess, are self-explanatory. I will leave that be. I notice the reference to PROMIS on each form, which I understand is 'Police Real Time Online Management Information System'. There was reporting that on 1 March a former AFP officer, Mr Warren Tamplin, was charged with illegally accessing that database base. What has the AFP done since then to address the deficiencies in security that this case revealed, given that there are tens of thousands of records of ordinary people on this database?
Mr Wood : Senator, I can respond to that. In relation to Tamplin himself, of course we terminated his employment. We prosecuted him through the courts and he was convicted. In terms of our response, both in terms of reinforcing existing requirements as well as introducing new requirements, there are about a dozen points here that I am happy to go through that are specifically as a result of the Tamplin matter.
Senator LUDLAM: We are short of time. Are you able to table that piece of paper or a version that you would be happy to table?
Mr Wood : I can do that.
Senator LUDLAM: Thank you. Can you tell us what frustrations are experienced by the AFP-now that we understand a little bit more about how you obtain this kind of telecommunications data-with current surveillance in telecommunications interception warrant processes for more serious offences. How is the system currently not working for you?
Mr Negus : I think 'frustration' is probably too strong a word. There are obviously improvements that could be made to this but we also understand that there need to be checks and balances in place for what are quite intrusive powers that the AFP are afforded, as are other law enforcement agencies. Whilst you use the term 'frustration', I think the AFP accept that there needs to be significant judicial and AAT oversight for the warrants to be issued. The complex nature of the Ombudsman's inspection of the way we store material, the regular routines that we have to comply with we understand as being required under the act. So there is not a great deal of frustration other than understanding that it is certainly a serious matter.
Senator LUDLAM: Does the system work reasonably, though?
Mr Negus : It works. But it can always be-
Senator LUDLAM: How would you make it work better? That is what I am trying to get to.
Mr Negus : It is about refinement. And one of the things that we need to remember is that the world has changed a lot since the telephone interceptions act was written in 1979. So it was written over 33 years ago. I do not think anyone in 1979 could have foreseen the nature of the way technology has advanced and the way that criminals communicate with each other. The frustration for us is more around the fact that we think criminals are utilising technology in a way that goes outside what we can actually do and intercept properly with the appropriate oversight. It is a matter of making sure that the TI act keeps up with that, and I am sure that it does in the current way.
Mr Gaughan : You would probably be aware that the Attorney-General has just written to the Parliamentary Joint Committee on Intelligence and Security in relation to the Telecommunications Act and a review thereof-
Senator LUDLAM: That is exactly where this is heading.
Assistant Commissioner Gaughan : That is before that committee now. Our concerns, as well as the concerns of our other law enforcement partners in the intelligence community, have been raised with that committee as appropriate.
Senator LUDLAM: Did the AFP see a draft have input to the draft terms of reference that were circulated to the committee?
Assistant Commissioner Gaughan : That is probably best answered by the department and Mr McDonald is probably best placed to answer that.
Mr McDonald : Yes.