ROYAL COMMISSION INTO WHETHER THERE HAS BEEN ANY CORRUPT OR CRIMINAL CONDUCT BY WESTERN AUSTRALIAN POLICE OFFICERS

COMMISSIONER: G.A. Kennedy AO QC

 Held at Perth on the 9th day of December, 2002

Counsel Assisting Mr K. Pettit SC

Appearances Mr A.J. Power.

 Ms M. Ridley.

 Mr M.R.H. Trowell QC.

Mr B.J. Singleton QC.

09/12/2002

5195

It was revealed in the media that a complaint was made against well known and high profile and Western Australian  footballer, Barry Cable, who was considered by football fans as a sort of football hero in Western Australia, so the general public would not want to believe that their sports hero, Barry Cable, could have alledgely committed serious child sexual abuses against a young girl who was a baby sitter for his children,  that allegedly went on  till she was a teenager  ..... at the same time it would be hard for the complainant to be believed .. ...
.... the other issue, which was part of the reason why the matter was brought up to in the hearings heard before Commissioner G. A Kennedy AO/QC,  into whether there were any corrupt or criminal conduct by Western Australian Police officer from the year 1985 onwards ... is whether senior police officers, or a particular senior police officer, who Barry Cable was friendly with, such as former Assistant Western Australian Police Commisoners David John Caporn and/or Bruce Brennan and/or other Werstern Australian Police Officers, had put wrongful, corrupt and/or  unlawful pressure  on other police officers in the Child Sexual Abuse Unit of the Western Australian Police, to stop any serious criminal investigation and/or charges laid against  well known  and high profile and Western Australian  footballer, Barry Cable, as a result of the serious complaints made aginst him for allegedly serious Child Sexual and Menal Abuse..... and further there the Western Australian Police Royal Commission was also inquiring into whether senior Western Australian Police Officer, such as former Assistant Western Australian Police Commisoners David John Caporn and/or Bruce Brennan and/or other Werstern Australian Police Officers, tried in one way or another to put pressure on representauves of the Western Australian Corruption Commission and/or the Western Australian Police Royal Commission. to stop any further investigation into these serious matters ... which if proven to have happened, would be clear evidence of serious  police corruptiom, wrongful behgaviour and/or illegal behaviour which could well result in the police officers concerned being removed from the Western Australian Police Force and/or criminal charges being laid against them...


On the evidence publicly available, there seems no doubt that the complainant against Barry Cable was very serious about the child sexual abuse allegations she said that Barry Cable committed against her ... also it seemed that at first the Child SExual Abuse Unit of the Western Australian Police Force, took such  child sexual abuse allegations serioiusly ..... however the end reseult is that the police investigation never progressed to having charges laid against well known and high profile and Western Australian  footballer, Barry Cable, who was considered by football fans as a sort of football hero in Western Australia...

The other serious issue involved here is the effect all this has on whether a child that has been mentally, sexually and/or physically abused in any way by an adult, andor someone who is responsible as a child care or social type worker, will be discourage form reporting any suppsected mental, sexual and/or physical abose againt a child when the person who is accused of being the abuser is a well know, well connected, powerful and/or high worth individual ....
... the mere fact that it seems that high level police connections of Barry Cable were able to make sure that these serious child sexual abuse alligations for not fully investigtaed and no criminal charges laid against t well known and high profile and Western Australian  footballer, Barry Cable, who was considered by football fans as a sort of football hero in Western Australia ..... will send a clear message to other possible complainants .... whether they be the person who was actually allegedly abused, and/or a  child care or social type worker .. that they are waisting their time trying to report suspected and/or alleged child sexual abuse when the allleged abuser is  a well know, well connected, powerful and/or high worth individual ....... 
The same has happen with the serious allegations of child sexual abuse by the late Jimmy Savil in the United Kingdom ... it was only till after the late JImmy Savil died that any of the  serious allegations of child sexual abuse by the late Jimmy Savil were taken seriously and were allowed to come to public light in the courts and media .. the issue with Jimmy Savil was that he was so well connected with people in high places, plus there have been serious allegations since the death of Jimmy Saville that some of Jimmy Savil's high level socila, media and business cvonnections were also involved with acts of serious  child sexual abuse  .. and in fact there are serious alligations that the late Jillmy Savill was also involved in helping to procure children for well connected high profile people in society for to use as Child Sexual Abuse Victims....

Shamed former Western Australian Assistant Police Commissioner David John Caporn,
whom the Western Australian Corruption and Crime Commission found that former Western Australian Assistant police Commissioner David John Caporn,
engaged in misconduct in writing the letter to the Police Prosecutor dated 17 June 1994 containing incorrect and misleading information...

Former Assistant Western Australian Police Commissioner David John Caporn was orginally a  Detective Sergeant and a member of the Major Crime Squad who worked on the Pamela Lawrence Homicide Investigation in May 1994, was appointed the head of the Macro Task Force in invvestigate the Caremeont Serial Killings, and became as high as an Assistant Commissioner of Police of Western Australia..... was being groopme dy his senior Freemason Brothers in the Western Australian Police Force to be the next Freemason Police Commissioner fo5r Western Australia ... untill things suddenly changed in the police career of the then Assistant Western Australian Police Commissioner David John Caporn .. the High Court of Australia  set aside the murder conviction of Andrew Mallard, on the grounds that the High Court of Australia felt that the then Assistant Western Australian Police Commissioner David John Caporn and other Western Australian Police Officers, and the Director of Western Australian Public Prosecutions including the prosecutor handling the Andrew Mallard presecution. Kenneth Paul Bates  did not present the full relavent evidence to the jury and in fact tampeted and malipualted the evidence to help obtain the murder conviction against Andrew Mallard  for the murder of Pamela Lawrence  ....
a subsequent inquiry into the case by the  Corruption and Crime Comisison for Western Australia supported the High Courts ruling....

CORRUPTION AND CRIME COMMISSION REPORT ON THE INQUIRY INTO ALLEGED MISCONDUCT BY PUBLIC OFFICERS IN CONNECTION WITH THE INVESTIGATION OF THE MURDER OF MRS PAMELA LAWRENCE, THE PROSECUTION AND APPEALS OF MR ANDREW MARK MALLARD, AND OTHER RELATED MATTERS ...

7 October 2008

ISBN: 978 0 9805050 6 1 -2008

This report and further information about the Corruption and Crime Commission can be found on the Commission Website at www.ccc.wa.gov.au.

Corruption and Crime Commission Postal Address PO Box 7667 Cloisters Square PERTH WA 6850

Telephone (08) 9215 4888 1800 809 000 (Toll Free for callers outside the Perth metropolitan area.)

Facsimile (08) 9215 4884 Email info@ccc.wa.gov.au Office Hours 8.30 a.m. to 5.00 p.m., Monday to Friday

[75] The Commission has formed a number of opinions as to misconduct and made a number of recommendations which are set out in Chapter 14 of the Report.

[76] The opinions as to misconduct may be summarised as follows.

1. That Det Sgt Caporn engaged in misconduct in writing the letter to the Police Prosecutor dated 17 June 1994 containing incorrect and misleading information.

2. That Det Sgt Shervill engaged in misconduct in requesting Mr Lynch to amend his reports by deleting all reference to the salt water testing. 3. That Det Sgt Shervill engaged in misconduct in bringing about the alterations to the statements of various witnesses without any reference to their earlier recollections.

4. That Det Sgt Caporn engaged in misconduct in bringing about the alterations to the statements of various witnesses without any reference to their earlier recollections.

5. That Det Sgt Shervill engaged in misconduct in making false entries in the Running Sheets relating to the amendments to the witnesses’ statements.

6. That Det Sgt Shervill engaged in misconduct in failing to disclose to the defence the original statements of the witnesses including Mr Lynch’s original report and details of the unsuccessful attempts to locate a weapon capable of inflicting wounds similar to those found on Mrs Lawrence. 7. That Mr Kenneth Bates engaged in misconduct in running the trial on the basis that a wrench as drawn by Andrew Mallard was the murder weapon,but, at the same time, failing to put Andrew Mallard’s drawing to Dr Cooke and asking whether the deceased’s injuries were consistent with the use of such an instrument.

8. That Mr Kenneth Bates engaged in misconduct in failing to disclose to the defence the pig’s head testing of the wrench or ensuring that it had been disclosed by the police.

[77] The recommendations are detailed below.

1. That the Commissioner of Police give consideration to the taking of disciplinary action against Assistant Commissioner Malcolm William Shervill and Assistant Commissioner David John Caporn.

2. That the Director of Public Prosecutions gives consideration to the taking of disciplinary action against Mr Kenneth Paul Bates.

3. That consideration is given by the Commissioner of Police to making special provision for the interviewing by investigating police of mentally ill suspects.

4. That whenever there is legislation, fresh authoritative case law, or DPP guidelines which relate to the conduct of criminal investigation or the admissibility of evidence in such cases, senior police officers affected by such matters be required to attend formal seminars or meetings at which they can be made familiar with such matters.

5. That whenever the police obtain advice from the Office of the Director of Public Prosecution such advice be furnished in writing setting out, at least, the material considered, the opinion and the grounds upon which such opinion is based; or in cases of urgency, a detailed contemporary note should be made, preferably by the DPP officer or his secretary, and also by the police, setting out the matters specified.

6. That Mr Andrew Mallard gives consideration to raising a complaint with the Legal Practitioners Complaints Committee (LPCC) regarding the conduct of the trial by Mr Bates. [Division 3 of the Legal Practice Act 2003 deals with complaints made about legal practitioners. Section 175(2) specifies who can make a complaint to the LPCC including the Attorney General, the Legal Practice Board, the Executive Director of the Law Society, any legal practitioner or any other person who has had a direct personal interest in the matter].

[78] Finally the Commission acknowledges the efforts and expertise of those persons who were instrumental in securing justice and vindication for Andrew Mallard, especially Ms Colleen Egan, journalist, Mr Quigley MLA, Mr Malcolm McCusker QC, and Clayton Utz, solicitors, who acted pro bono.

MR PETTIT: Now, your full name is Ann Maree Rial?---That's right.

MR PETTIT:  And you are a nursing administrator, I think?---  

 Ann Maree Rial: Nursing manager.

Nursing manager. And for several years I think you were a member of the board of the Police and Nurses Credit Union?

---A director.

A director?---That's correct. Yes.

And as at 1998, you had been a member of that - - you'd been a director for some years?---It's currently about 11 years, so at that stage it would have been about 7 or 8 years. 

MR PETTIT: Yes. I think during 1998, while a director, you were acquainted with Bruce Brennan, the deputy commissioner of police?---That's correct.

He too was a director?---That's right.

And the board, I think, met once a month?---Yes. Generally on the third Monday.

Third Monday of each month?---Normally, yes. There were times that that was slightly different, but that was the normal standard.

And at that stage as at 1998, Mr Brennan had been a member for some years?---The terms were 3 years. So I imagine - - I mean, he could have had - - that could have been his second term but at least one. He'd been there for at least 3 years at that stage.


Apart from your association with Mr Brennan through the board, through being a director, did you have any other relationship with Mr Brennan?---No, but through being a director we travelled together to New Zealand with other people, also to Canberra. We attended various other meetings and functions as a group.

I see. I might bring to your attention a list of names with codes attached to them. You may be aware that in these proceedings there are persons who are referred to as Q1  and Q2?---Yes.

So if you could refer to that list and use those codes instead of a name, if you need to?---Mm hm.

Referring to that list, you also knew the person who is Q1?--- That's correct.

And I think you knew Q1 because you and she had a mutual friend?---That's correct.

And that's Miss Johnston?---That's right.

Is it also true to say that through Miss Johnston, you were aware in 1998 that Q2 had made a complaint to the police about Q1?


 Ann Maree Rial: ---That's correct - - no, it was Q1 about Q2. I had it backwards, did I?---

Yes. I'm sorry?---

09/12/2002 RIAL, A.M. XN 5228 A2/3 POLICE 


Sorry. Yes. It wouldn't be the first occasion. There was an occasion, I think, on which - - perhaps you don't recall the date, but in 1998 at a meeting of the directors of the credit union - - -

Well, maybe - - all right. Okay.

Now, Ms Italiano you had known I think since coming into contact with her when she was

.09/12/2002 LINES, P.A. XXN 5315 A38/4

POLICE at the police driver training school?---

That's correct.

MR TROWELL: And that was in 1995-96. Is that right? ---

Correct. She was an instructor there?---

That's right.

What was your role there? Were you learning how to drive or - - ?---

I was - - I was a recruit at the time.

 You were a recruit. Do you recall interviewing Ms Italiano at the offices of the ACC in March of 1999?---

I certainly interviewed Cris Italiano. I haven't had the benefit of looking at either journals or anything else that was kept at the ACC so I can't be - -

Do you recall her being interviewed - - -

 .09/12/2002 LINES, P.A. XXN 5316 A39/2 POLICE

MR TROWELL: - - - her being interviewed at the offices of the ACC at some time in 1999?---

I would accept that it would be 1999. I can't recall the date.

Do you also accept that after that interview, you went with her to a coffee shop, the Merchant Coffee Shop?---

I certainly went for a coffee. Where it was, I - -

 Did you tell her that she should watch her back?---

Yes.

 Why did you tell her that?---

She was effectively blowing the whistle on some members of the WA Police Force, senior officers of the WA Police Force, and I thought it sound advice to give her.

And you have a clear recollection of having told her that?---

 Absolutely. Absolutely.

Well, that's not the recollection that you had when you last appeared before this Commission, because you told the Commissioner that you couldn't recall, but it sounded like something that you would say. What makes you now so definite about? "Absolutely", to use your word?---

Yeah. I - - I have the recollection of having that conversation. It certainly does sound like something I would say. Whether those are the words or not, and I think I made that clear, I was looking after Cris's best interests.

Why was your memory - - why is your memory better now than it was when you last appeared before this Commission in relation to saying those words?---

Not the words. Certainly the meaning, the "watch your back". Absolutely. I have no problem in accepting that I would say that. Right.

Let's get this straight. Let's get this straight. I asked you whether you'd used those words, whether you'd told her to watch her back.

You told me that you did, and I said,

 "Did you have a clear recollection of saying that?"

Your response,

"Absolutely."

When you last appeared before this Commission, your memory was less than perfect, because you said you couldn't recall saying that, but it may have been something that you might have said?---

Sounds like something I would have said. That's right

. Are you able to explain why there is a clear recollection now, but an imperfect recollection when you last appeared before the Commission?---

I'm sorry. It's semantics. It's - - she was told to mind herself. Whichever way you look at it, I was looking after Cris's interests. Do you agree that when you last appeared before this Commission, you couldn't recall whether you said those words or not?---It sounds like something I would say.

.09/12/2002 LINES, P.A. XXN 5317 A39/2 POLICE

MR TROWELL: Do you actually recall telling the Commissioner that you couldn't recall using those words?---What I said, I think my answer was, was it sounds like something I would say. Yes, but you couldn't recall specifically saying them?---I think I've said that today.

Well, so you agree with me? Do you now agree that you're saying that you do recall saying the words?---Not those words. I recall telling Cris to mind her back, watch her back, look after herself - -

All right. All right - -?--- - - whatever the words here. Okay. The Commissioner can make up his own mind?---

I'm sure he will. Why would you say that?---I think I've explained that already. She was blowing the whistle on high-ranking police officers.

All right?---There was no whistle-blower legislation in force in WA.

What did you think she had to fear?---

That's patently obvious, isn't it? High-ranking officers of the Police Force.

What did you think she had to fear?---Pressure being applied to her - -

Pressure being applied?--- - - losing her job over something that she's doing, blowing the whistle. It's the same sort of advice I would give to anybody that's taking the step of blowing the whistle.

Pressure being applied? Like pressure being applied to the ACC?---

Sorry, I think that's - - you're drawing a line there that doesn't agree. You asked me why I would say those words. That's why I've said those words.

So it was your belief at the time you told her to watch her back that there may well have been a danger that senior police officers may apply pressure?---

I think - -

 Pressure on her?---

No, I think you're twisting my words there.

Pressure - - Am I?--- - -

on her, certainly. Pressure on her, yes, all right.

 And you thought there was a prospect of that, did you?---

It's certainly something I thought worthy of guarding her against, yes.

And you thought that senior police officers were capable of applying that sort of pressure?---I

 think also the last time I .

09/12/2002 LINES, P.A. XXN 5318 A39/2

POLICE appeared before the Commission, we discussed whether I was aware of pressure having been applied in other cases. MR TROWELL: You thought - -?---You asked me a question, Mr Trowell, if you'll give me a chance to answer? Well, you tell me when you've finished the answer. You tell me?---And I made the Commission aware that I was aware of another circumstance where pressure had been applied to a particular officer, and it's a matter that the Commission is aware of already. I've finished, Mr Trowell. When you said those words, was it your opinion, based upon your experience of these types of matters, that senior police officers were capable of applying pressure to her?---That's a very general statement, but yes. From whom did you believe this pressure would come, or could come?---From whom? Yes?---The senior police officers that she was blowing the whistle on. Mr Brennan.

A1/1 POLICE AT 9.54 AM HEARING COMMENCED:

 COMMISSIONER: Yes, Mr Pettit?

MR PETTIT: Thank you, Commissioner. Commissioner, in September of this year the Royal Commission heard evidence in respect of some alleged interference by certain officers in an investigation being conducted in 1998 by the Child Abuse Unit, and that investigation arose from allegations by Q1. One of the allegations aired at the Royal Commission hearings was quite separate from that general issue. The separate issue was that some senior officers, or one or more senior officers, I should say, attended upon the Anti-Corruption Commission in order to bring pressure to bear upon that Commission in respect of its then current inquiry. The ACC's inquiry, of course, was, like the present, concerned with allegations of police interference and not with the issue of whether or not Q1's complaints were well founded. Commissioner, subsequent to those September hearings of the Royal Commission further allegations have been made of conversations relating to that separate issue; that is, the attendance of senior officers,
in particular Mr Bruce Brennan,

 Mr David Caporn
and
 Mr Kevin Looby,
 or any of them,
at the Anti-Corruption Commission, and it was thought preferable that those conversations be examined in public, as we now do. In addition though, quite separate from those matters, witness Ann Rial will be called to give evidence of a conversation - telephone conversation - she overheard in 1998. Before calling the first witness, Commissioner, can I take this opportunity to tender the documents relevant to these proceedings in accordance with a schedule of documents which I think, Commissioner, you have? That list of documents to be tendered includes all the documents or - - I'm sorry; included on that list is the documents that have previously been disclosed to all interested parties. At the same time as tendering those documents, Commissioner, can I also tender some call charge records which we've been able to obtain since the last hearings of these matters? The call charge records are those for the service of Mr McPhee, the solicitor for Q1 - - for Q2, and they relate to the dates 16th and 17th of November 1998. They are on the list which you have, Commissioner.
They are D1023157 - - Commissioner, they're on the list already, and the subscriber information which explains where those calls came from is D1023190. And I've provided copies of those for counsel. So, Commissioner, can - - the list that you have, Commissioner, also includes at its very end statements from witnesses Duzevich and Lines. They will be tendered later this morning. So with the exception of those documents - the .09/12/2002 5196 A1/1 POLICE statements of Duzevich and Lines - Commissioner, can I tender all the documents in accordance with that list?
 COMMISSIONER: Yes. The documents set out in the list commencing with the exhibit 794, memo from Italiano to Miller dated the 18th of August 1998, and then the public document D1012853 through to 1010
C. I'm sorry. That's the Duzevich one. 1009, statement of Paul Alan Lines, dated the 30th of October 2002, barcoded D1018542, should now be listed as the exhibits. 

MR PETTIT: Thank you, Commissioner. Just by way of explanation of the new documents - that is, the call charge records - I've provided counsel with a hard copy of those documents and also for yourself, Commissioner, and highlighted the relevant parts. C

OMMISSIONER: Yes.

MR PETTIT: In brief, those records show these things. They show a telephone call from Q2's home - - .09/12/2002 5227 A2/3 POLICE MR PETTIT: - - - from Q2's home to Mr McPhee's home at 6.29 on the 17th of November. Secondly, a call from Mr McPhee's home to the Child Abuse Unit at 6.47 am the same day. \

Thirdly, a second call from Mr McPhee's home, this time to police communications, also at 6.47, immediately after the previous call. Fourthly, a call from Mr McPhee's home to the Child Abuse Unit 3 minutes later at 6.50, and lastly, a call back to Mr McPhee's home from the Sexual Assault Unit 6 minutes after that. That's at 6.56. Generally, Commissioner, those records are in accordance with the evidence of Mr McPhee and of Detective Sergeant Miller, except perhaps as to the precise times. COMMISSIONER: Yes. Thank you.

MR PETTIT: I call Ann Rial.

COMMISSIONER: Yes. Could I have your full name, please?

MS RIAL: Ann Maree Rial. COMMISSIONER: Do you have any conscientious objection to taking an oath on the Bible? MS RIAL: No. COMMISSIONER: All right. Thank you. If you could take the Bible and read the oath out aloud, please? ANN MAREE RIAL sworn: COMMISSIONER: Thank you. Sit down, please.

MR PETTIT: Thank you, Commissioner.

EXAMINED BY MR PETTIT SC:

MR PETTIT: Now, your full name is Ann Maree Rial?---That's right. And you are a nursing administrator, I think?---Nursing manager. Nursing manager. And for several years I think you were a member of the board of the Police and Nurses Credit Union?---A director. A director?---That's correct. Yes. And as at 1998, you had been a member of that - - you'd been a director for some years?---It's currently about 11 years, so at that stage it would have been about 7 or 8 years. .09/12/2002 RIAL, A.M. XN 5228 A2/3 POLICE MR PETTIT: Yes. I think during 1998, while a director, you were acquainted with Bruce Brennan, the deputy commissioner of police?---That's correct. He too was a director?---That's right. And the board, I think, met once a month?---Yes. Generally on the third Monday. Third Monday of each month?---Normally, yes. There were times that that was slightly different, but that was the normal standard. And at that stage as at 1998, Mr Brennan had been a member for some years?---The terms were 3 years. So I imagine - - I mean, he could have had - - that could have been his second term but at least one. He'd been there for at least 3 years at that stage. Apart from your association with Mr Brennan through the board, through being a director, did you have any other relationship with Mr Brennan?---No, but through being a director we travelled together to New Zealand with other people, also to Canberra. We attended various other meetings and functions as a group. I see. I might bring to your attention a list of names with codes attached to them. You may be aware that in these proceedings there are persons who are referred to as Q1  and Q2?---Yes. So if you could refer to that list and use those codes instead of a name, if you need to?---Mm hm. Referring to that list, you also knew the person who is Q1?--- That's correct. And I think you knew Q1 because you and she had a mutual friend?---That's correct. And that's Miss Johnston?---That's right. Is it also true to say that through Miss Johnston, you were aware in 1998 that Q2 had made a complaint to the police about Q1?---That's correct - - no, it was Q1 about Q2. I had it backwards, did I?---Yes. I'm sorry?---Sorry. Yes. It wouldn't be the first occasion. There was an occasion, I think, on which - - perhaps you don't recall the date, but in 1998 at a meeting of the directors of the credit union - - -

.09/12/2002 RIAL, A.M. XN 5229 A3/4 POLICE

MR PETTIT: - - - the credit union when you and Mr Brennan together caught a lift, an elevator?---That's right. And there was a telephone call. Can you tell us now the nature - - or what you heard?---Bruce was chatting quite, you know, freely on the phone to a person. At that stage I had no idea who it was, but it was a - - it appeared to be very social. It was very friendly. It was a very familiar sort of conversation, one that I would've thought that I would've had with friends - not so much a colleague but someone that was close to me - and at the end of the call he actually told me it was Q2. Yes. Was anything discussed about arrangements?---Because I'm only hearing one side of the conversation it's a little difficult but the gist I got from the conversation is that they were going to meet socially in the very near future. Like, it was imminent. I don't think you've mentioned before that it was social, have you?---I don't know but that's the impression I got and it was something like drinks or something along those lines. Are you sure that it couldn't have been an arrangement to meet in Mr Brennan's office the following day or the day after? ---Because I'm only hearing one part of the conversation I can't tell you where the arrangement was to be but it didn't appear to have any firm lines. Like, it's not like there weren't arrangements being made, I wasn't hearing dates or venues, but it sounded like it was, "Yeah, sure", you know. Like, it was something that was very social, very laid back and comfortable. COMMISSIONER: In what respect was it said to be social? ---Just the terms - - you know, unfortunately because it was 4 years ago I can't give you, you know, exact wording but just the terms that were being expressed at the time. At that stage while the conversation was taking place I had no idea who he was talking to. It could've been his wife and it wouldn't have meant anything to me, but it's just at the end when he said to me, "That was Q2, that was a call from Q2" that I thought, "Oh." I automatically assumed that they were meeting to catch up and have a drink or something along those lines. MR PETTIT: You assumed that?---Yes. Now, you've mentioned a few things there. You've mentioned that you got the impression that they were catching up for drinks. Was drinks mentioned?---To be honest, I can't remember exact terms. I can only remember the impression I've got. .09/12/2002 RIAL, A.M. 5230 A3/4 POLICE MR PETTIT: You've been interviewed in respect of this previously by the Anti-Corruption Commission?---Yes. And I don't think you've ever mentioned before that drinks were mentioned during this conversation. Is that something that you have a recollection of or is it something you've assumed?---It's probably more an assumption but that's the feeling I got, that - - Well, we need to be fairly clear about this, Ms Rial? You got the impression that this was not a strictly business - - ? ---That's right. - - association. In other words, that the two participants in the conversation were on friendly terms?---That's right. But did you get the impression - - sorry, was there something you heard which would lead a person to believe that they were actually meeting socially as distinct from two persons friendly with each other who were meeting on a business matter? Could you say which one it was?---I thought it was - - I thought it was distinctly social. But as to the meeting, could you say - - is there something you can tell us now which led you to think it was a social meeting as distinct from a business meeting between two persons who happened to be friends or happened to be on friendly terms?---No, it was probably the terminology, the tone, the terminology. Unfortunately, I can't give you exact words because of the period of time that's elapsed but I just distinctly got the feeling that it was very social and I assumed it was, you know, an after works type - - - .

09/12/2002 RIAL, A.M. 5231

A4/2 POLICE WITNESS: - - - an after works type, you know, get together, and you know, have a drink or something. MR PETTIT: Have you been following these proceedings?---No, not really. You haven't read transcripts?---Bits and pieces in the paper; that's all. But, I mean, you never know how much of the press is correct. It's very hard to judge. You haven't read transcripts of the proceedings themselves?--- No. I mean, where would I get those from? I mean - - And as to the date of the meeting that was being arranged, was anything said which led you to believe it was on a particular day?---No, I got the impression it was soon, though. Like, it was something that was going to happen in the next day or so. It could have even been after the meeting. We normally - - I work night duty at Fremantle Hospital and we were accustomed to leaving about quarter past nine to half past nine at the very latest, so that I could get to work. So, you know, one would assume, you know, that was sort of late-ish to be meeting, but it was sort of either after that or next day. It was - - seemed to be very - - you know, something very close by. It could have been the next day or the day after?---Yes. Something soon. Do you recall whether Mr Brennan had made the telephone call himself - -?---No. - - or received a call - -?---He answered the call. At that stage, you knew who Q2 was?---No. I'd heard his name a few times, you know, through, you know, (...portion suppressed...) to and from work on. So, occasionally I'd say, oh, you know, "You're very fit" and (...suppressed...) and those sorts of things. And he'd told me about (...suppressed...) or whatever you like to call it. You had heard Mr Brennan mention Q2 previously?---Yes. More to other people than myself, but I'd overheard it. At board meetings?---Yes, it was - - there's usually - - we generally try to arrive a few minutes early and quite often people will say things like, you know, "What have you been doing over the weekend?" or, "What are you up to?" and in those sorts of terms his name had been mentioned. .09/12/2002 RIAL, A.M. XN 5232 A4/2 POLICE MR PETTIT: After overhearing the telephone call, you told someone else about it?---Not until some time later, when Cheryl Johnson was telling me that - - it sort of went something along the lines - I can't give you exact wording - because I work night duty, Cheryl said, "If you wake up and police are knocking on the door" or "Police are knocking on the door and you wake up, don't be startled. You know, I may be called to - -" she may be called to actually give an account of events in the past, to do with Q1's complaint. But in any event, you told Cheryl Johnson - -?---That's when I told Cheryl. And - -?---That I had heard this conversation and I believed that they had some sort of a mateship or friendship or - - And it was your intention, I suppose, that she - that is, Cheryl Johnson - pass that on to Q1?---I don't know if it - - I don't know if - - at the time, I can't remember if that was the intent, for her to pass it on, but I felt that - - that that could have been an issue. Purely because, you know, you - - we tend to believe and trust in the people that we know, and if you have developed a friendship or a bond with, you know, particular people, well naturally, you know, they'll be the people that you'll want to believe and support above the other person. Thank you. Nothing further, thank you, sir.

 COMMISSIONER: Yes. Thank you. Mr Trowell, do you have any questions?

MR TROWEL: Sir, I appear for Ms Italiano, if I could seek your leave in relation to that, sir, but I have no questions of this witness, sir. COMMISSIONER: Yes. Thank you. Leave is granted. NO CROSS-EXAMINATION BY MR TROWELL: COMMISSIONER: Yes, Ms Ridley? MS RIDLEY: Sir, my name is Ridley; I seek leave to appear for Inspector Looby. I have no questions of this witness. COMMISSIONER: Yes. Thank you.

NO CROSS-EXAMINATION BY MS RIDLEY:

COMMISSIONER: Mr Power?

MR POWER: May it please you, sir. I continue to appear for Mr Caporn, and I have no cross-examination. .09/12/2002 RIAL, A.M. XN 5233 A4/2 POLICE COMMISSIONER: Yes. NO CROSS-EXAMINATION BY MR POWER: COMMISSIONER: Thank you. You're released from further appearance under the summons. Thank you for your attendance.

WITNESS WITHDREW

 MR PETTIT: I call Shane Wilson.

COMMISSIONER: Yes? MR ROBBINS: May it please you, sir, the Commission - - I appear for Mr Hammond, sir, in relation to a summons to appear and give evidence directed to Mr Hammond, and also in relation, sir, to a notice to produce documents or other things. It occurred to us that in the chronology of this hearing, it might be of some advantage to counsel assisting if Mr Hammond were to be called sooner rather than later. Of course, we're in the Commission's hands, but I simply foreshadow that that might be of some benefit to the Commission generally. COMMISSIONER: Yes.

MR ROBBINS: May it please you.

 COMMISSIONER: Thank you. .

09/12/2002 RIAL, A.M. 5234

Jimmy Savile: timeline of his sexual abuse and its uncovering

Investigators now believe the late Top of the Pops host preyed on around 500 vulnerable victims as young as two years old
 
Jimmy Savile's most prolific perioid of sexual abuse was in the late 1960s and early 70s, according to police.

https://www.theguardian.com/media/2014/jun/26/jimmy-savile-sexual-abuse-timeline


It is now known that Jimmy Savile sexually abused hundreds of children and women at the height of his fame.

Investigators believe the late Top of the Pops host preyed on around 500 vulnerable victims as young as two years old at institutions including the BBC's broadcasting studios, 14 hospitals and 20 children's hospitals across England.

Since his death in October 2011, a string of official inquiries have been launched into his offending at hospitals, schools and the BBC.

Today an independent inquiry found that Savile abused 60 people, including at least 33 patients aged from five to 75, at Leeds general infirmary. Other hospitals have also released the results of their Savile investigations.

31 October 1926: Savile is born in Leeds, the youngest of seven children.

1955: The earliest incident of abuse recorded by the police. It took place in Manchester, where at the time he managed a dance hall.

1960: In one of a handful of example cases given by the police, a 10-year-old boy asked Savile for his autograph outside a hotel. Savile took the boy inside and seriously sexually assaulted him.

1 January 1964: Savile presents the first ever Top of the Pops for the BBC. He had previously been a DJ at Radio Luxembourg in 1958.

1965: Records show abuse started at the BBC, at Leeds general infirmary, where Savile was a long-term volunteer porter, and at Stoke Mandeville hospital, where he also volunteered.

1966: This was the start of what police have identified as Savile's peak period for abuse, which lasted a decade.

1970: Records show Savile started to abuse girls at Duncroft girls' school near Staines, Surrey, where he was a regular visitor.

1972: In another example of Savile's offences listed by police, he is recorded as groping a 12-year-old boy and his two female friends who were attending a recording of Top of the Pops.


1980s: At some point in the decade, a female victim is believed to have told the Metropolitan police she was assaulted in Savile's campervan in a BBC car park. The police file cannot be located and the investigating officer is now dead.

1990: Savile is knighted, also receiving a papal knighthood.

April 2000: In a TV documentary presented by Louis Theroux, Savile acknowledges the rumours about him being a paedophile, but denies it.

26 July 2006: Savile co-presents the final Top of the Pops, an occasion that gave rise to one of the allegations made to police.

March 2008: Savile begins legal proceedings against a newspaper that linked him to abuse at the Jersey children's home Haut de la Garenne.

2009: Savile is interviewed under caution by Surrey police investigating an alleged indecent assault at Duncroft school. The CPS advised there was insufficient evidence to take any further action. This was the year of the last offence recorded by the current investigation.

Police have given another example offence dating from this year in which a 43-year-old woman was sexually assaulted by Savile on a train journey between Leeds and London.

2011: the scandal breaks

29 October: Jimmy Savile dies.

Early November: A Newsnight investigation into Savile begins. Reporter Liz Mackean and researcher Hannah Livingston make contact with former Duncroft pupils

11 November: A BBC tribute programme is aired on BBC1 called Jimmy Savile: As It Happened.

1 December: The Newsnight editor Peter Rippon emails reporter Meirion Jones telling him to stop working on other elements of the investigation because it is not strong enough without confirmation of the CPS angle and saying that he (Rippon) will pull the editing.

Jones emails himself the "red flag email" in which he sets out what he sees as the consequences for the BBC if the story does not run.

5 December: Surrey police confirm that they investigated "a historic allegation of indecent assault ... alleged to have occurred at a children's home in Staines in the 1970s" and that they referred this to the CPS.

9 December: The CPS informs Jones it decided not to prosecute Savile because of lack of evidence and not because he was old or infirm.

Rippon and Jones meet and Jones tells Rippon that he accepts the decision that he is not to pursue the story any more.

2012
8 January: The Sunday Mirror reports that the Newsnight investigation was axed and refers to a clash with the Fix It tribute show.

9 February: Miles Goslett reports in the Oldie that Newsnight's Savile investigation was pulled because of the tribute programmes and that allegations were made about abuse on BBC premises. The article alleges that the BBC had information the police did not and that Mark Thompson knew of the report. Further stories follow in the Daily Telegraph and the Daily Mail.


7 September: The BBC receives a letter from ITV giving notice of the Exposure documentary on the Savile sex abuse allegations and posing questions.


3 October: The ITV Exposure programme on Savile is broadcast.

8 October: The BBC director-general George Entwistle appears on the Today programme. Mackean emails Entwistle to share her "disquiet" with "the handling of the Newsnight Savile story" and pointing out inaccuracy in an all-staff email.

Entwistle asks Ken MacQuarrie, BBC Scotland director, to investigate the circumstances in which the Newsnight investigation was dropped.

22 October: The Panorama special on the BBC and Savile is broadcast.

23 October: Entwistle appears before the Commons culture, media and sport select committee.

 George Entwistle after giving evidence to a Commons select committee over the Jimmy Savile scandal
 BBC director-general George Entwistle leaves Portcullis House after giving evidence to MPs. Photograph: Peter Macdiarmid/Getty Images
October: BBC asks Dame Janet Smith to investigate the culture and practices of the BBC in the decades that Savile worked there.

10 November: Entwistle resigns as director-general of the BBC.

2013
11 January: Scotland Yard labels Savile a "prolific, predatory" sex offender after its investigation reveals 214 criminal offences across 28 police forces, between 1955 and 2009. Its report, Giving Victims a Voice, found that 73% of his victims were children, and the allegations of abuse span 14 medical establishments.

2014
2 June: NSPCC research for BBC Panorama confirms there have been at least 500 reports of abuse by Savile.

26 June: Department of Health publishes the results of investigations by 28 medical establishments, including Leeds General infirmary and Broadmoor hospital. In Leeds, Savile abused 60 people including at least 33 patients aged from five to 75. At high-security Broadmoor hospital, the broadcaster abused at least five individuals, including two patients who were subjected to repeated assaults.

• Anyone needing support should contact the National Association for People Abused in Childhood (NAPAC) on 0808 801 0331
Since you’re here …

THE YELDHAM SCANDAL

http://www.bmartin.cc/dissent/documents/health/yeldham.html


The truth is appalling:- The Sydney Morning Herald stated on 12 Dec 1996 that "The truth is appalling. It appears that special branch were covering up for the judge for its own purposes.
We may never know if any of his judgments were tainted by improper influence, but the evidence suggests that he should never have been on the bench, never in a position of public honour and influence"

r. Yeldham is the retired New South Wales supreme court judge who made the controversial decision to grant hospital licenses to National Medical Enterprises' Australian subsidiary in 1993.
This was in spite of escalating exposures of its criminal conduct. National Medical Enterprises (NME) is now called Tenet Healthcare. Yeldham's out of court conduct indicates that he was at risk of improper influence .
 The relevant regulatory bodies in NSW were asked to investigate Yeldham's licensing decision.
They either refused or indicated that they were unable to do so.
Yeldham's Conduct

Mr. Yeldham's Suicide:-

Mr. Yeldham, a retired supreme court judge in New South Wales committed suicide when he was subpoenaed to appear before a Royal Commission inquiring into police corruption and the protection of paedophiles.
 The reason for this became apparent during evidence.
Mr. Yeldham's conduct:- Evidence subsequently given to the commission revealed that Yeldham was bisexual. A married man with a family he led a clandestine double life indulging in public exhibitionism (Sydney Morning Herald 12 Dec 96).
He was well known in the gay community. He frequented the homosexual beat where he purchased sexual favours from young men and schoolboys (Sydney Morning Herald 7 Dec 96).
 His conduct had been so public that at least 7 instances were described to the commission. He had been apprehended by police on several occasions over a period of 11 years.
While many knew of his conduct his wife, children and the public did not. The problem is not that he was gay but that his conduct in public was such that he placed himself at risk of blackmail or improper influence.
Police protection and the special branch:- Yeldham had been protected by the police. The "special branch" had been particularly protective. The special branch were called in by the regular police when Yeldham was apprehended.
They drove Yeldham home. Police records were lost or falsified to conceal what was happening. Police understood this was because Yeldham was "on side". He would make decisions favourable to the police.
The special branch were a section of the police whose duties include the security of the state and the protection of politicians.
They apparently kept files on large numbers of public figures and no one knows to whom they reported and to what use this information was put.
They seemed to be a law unto themselves. Special branch members who gave evidence to the Royal Commission had remarkably poor memories about any of these matters.
Police corruption in NSW has been a serious problem for many years.

Special Branch files:-

 The Sydney Morning Herald (7 December 1996, page 29) reports that special branch kept dossiers on eminent people in NSW and that this was outside their charter.
 The report indicates that soon after Neville Ireland became head of the special branch, he found five folders in a safe. "These contained dossiers on prominent and eminent people, in NSW including details of suspected and rumoured illegal behaviour".
The possession or collection of such material was outside the special branch's charter. Ireland confirmed that Yeldham was well known around the inner-city railway station toilets in the 1980's and 90's.
The Royal Commissioner Mr. Wood stated that Mr. Yeldham had by his conduct exposed himself to "blackmail or improper pressure". No attempt has yet been made to examine the decisions he took.


The Yeldham Licensing Decision - was it tenable?

Background:- Ron Williams in his book "Remission Impossible" predicted that Australian politicians would see the wealthy US megacorporations as the solution to Australia's health care problems.
He was very pessimistic as to the consequences.
 His predictions were given credibility when National Medical Enterprises (NME), the third largest and a very wealthy company in the USA purchased a cash strapped company Markalinga at the end of 1991.
 Markalinga was approaching bankruptcy. It owned 9 hospitals in NSW and Western Australia (WA).
 The name was later changed from Markalinga to Australian Medical Enterprises (AME).
NME, now renamed "Tenet Healthcare" is an example of the sort of company which Ron Williams was concerned about.
The unethical and criminal business practices which had made it so wealthy had been reported in the Australian press in October 1991.
The Foreign Review and Investment Board (FIRB) did not investigate these allegations before allowing the company into Australia. Shareholders were not provided with an analysis of the corporate business practices.
Politicians were strongly supportive.
Objections to licenses:- When AME applied for a the transfer of hospital licenses in NSW a human rights group lodged an objection on the basis of NME's business practices as revealed in the USA. After a very cursory investigation the NSW Department of Health accepted assurances given by AME over the information contained in documents in their possession.
 Licenses were granted. This was followed by an outcry when ABC television showed a documentary describing NME's practices in the USA.
 Others lodged objections, and private individuals supplied documents from the USA. These indicated the true extent of NME's business practices and the culture which supported it. NSW Health were persuaded
. They felt that they had been deceived and now commenced a much more thorough investigation.
Western Australia:- Western Australia had been supplied with the same documents as NSW Health.
They investigated and sent their minister a series of reports in February and March 1993.
These expressed the opinion that NME was a threat to the Australian health system and was not a fit and proper company to run hospitals in Australia. Many documents available at that time attested to the adverse consequences of NME's business expertise, expertise for which AME were paying NME $1 million a year. WA Health did not have the power to remove licenses.
They advised the minister in WA to set up a process with the power to deal with the problem.
The minister did not take this advice.
The new St. George's Hospital:- AME applied for a license to build the new St. George's Private Hospital in late 1992 or early 1993.
There were now additional objections and it is likely that Dr. Amos, a doctor and the director general of health shared the views of Western Australia. Dr. Amos was responsible for making the decision.
 Had he rejected licenses then NSW Health might have had to resist a legal challenge by this company. This would have been very costly as witnesses would have to be induced to come from the USA. The government would have had to fund this. The government were being lobbied by businessmen, area health authorities and sections of the medical profession who wanted the hospital. They did not have access or the time to read the bulky documents. Rejection of licenses might have resulted in the closure of several hospitals and the loss of jobs. Dr. Amos would not have had the support of his minister.

Appointment of Mr. Yeldham :-
Newspapers in Australia ran feature articles describing NME's conduct in March 1993. NME had not yet pleaded guilty to any of the charges laid against it in the USA.
 Dr. Amos stated publicly that he would not grant licenses until he was satisfied (Sydney Morning Herald 6 March 1993).
 The regulations did not specify any time limits and he indicated that he intended to delay the decision until the situation in the USA became clearer. He commenced a very thorough investigation and used the regulations to require NME and AME to disclose all the court actions and investigations they were facing. AME protested strongly.
There was a meeting with AME directors. Dr. Amos then "discovered" that he had a conflict of interest.
 He agreed to accept Mr. Yeldham, a retired judge as his delegate to make the decision.
Yeldham ignores NSW Health :- Mr. Yeldham immediately set about his task. NSW Health made a submission to him urging him to delay until the situation in the USA was clearer but he did not do so.
 He clearly intended to grant a license with conditions as soon as he could. Towards the end of June NSW Health were supplied with a large number of additional documents, many of which NME had not disclosed.
NSW Health now made a strong submission advising that the license application be rejected and advising against licenses on the basis that the proposed conditions could not be enforced.
The company's "lack of frankness and candour" in their dealings with health authorities indicated that they could not be trusted.
The rush to reach a decision:- Yeldham pressed ahead even after two NME appointed American directors resigned.
 Documents showing their involvement in NME's practices had been tabled in court in the USA. In addition hundreds of FBI agents raided NME's US offices and its hospitals across the country.
It was clear that criminal proceedings were planned. Yeldham entered into negotiations with AME who rewrote sections of his determination.
These effectively emasculated the conditions which he imposed on the license. Mr. Yeldham accepted these changes and signed his decision on 1 September 1993.
The inadequacy of the conditions:- Mr. Yeldham claimed that his conditions would shield AME from NME's influence. He claimed that they insulated AME from NME.
 By any reasonable criteria they did not do so and simply provided a formula to legitimise the existing situation.

Yeldham's conditions permitted NME's senior executive to continue to run the hospitals. They did not prevent this executive from introducing NME's business expertise under the terms of the $1 million a year agreement between NME and AME.

Subsequent exposures :- Only a month later in October 1993 it was revealed that while NME was negotiating with Mr. Yeldham, a Singapore doctor was describing under oath in court how the NME staff who were now running the hospitals in Australia, had attempted to trade patients with him. This mirrored NME's unethical and criminal conduct in the USA. It was also revealed that NME was negotiating a guilty plea in the USA to criminal activities involving the abuse of patients in over half of its hospitals.
We do not know whether Mr. Yeldham was advised of these developments of which NME was fully aware.
Worrying aspects:- If Yeldham was subjected to "improper influence" then it would explain his rush to make a decision before these matters became public and its lack of efficacy.
 Dr. Amos, who had a long and distinguished career resigned soon after Yeldham's decision and was awarded the Order of Australia. NSW authorities refused to review the Yeldham decision in the light of the additional information.
 AME backed away from its attempt to enter Victoria and Queensland when these states elected not to accept the Yeldham decision and to review the Yeldham material independently. They were supplied with all of the documents, including the information supplied to Yeldham and the information given and claims made by NME in their dealings with NSW. FIRB now stepped in to restrict NME's further purchases in Australia so forcing it to eventually sell its international operations.


Who knew of Yeldham's conduct?

The problem:- Mr. Yeldham took a controversial decision when he granted a hospital license against the advice of the NSW Health department. It can be argued that the decision to grant a license was untenable on the evidence in his possession and in the light of the submissions made by NSW Health Department and the WA Health Department. Furthermore his conditions were ineffective and could not possibly accomplish what he claimed.
They protected the company by legitimising the prevailing situation. Politicians, businessmen and sections of the medical profession all had a strong personal interest in the matter and wanted the license to be granted.
 Those who had examined the documents considered that NME posed a serious threat to the Australian Health system and to Australian patients. If the possibility that Yeldham was put under unreasonable pressure to make a decision favourable to the company when he granted licenses to Australian Medical Enterprises in 1993 is to be considered, then we must ask not only whether his decision was tenable but also who had access to information about Yeldham.


Knowledge by the legal profession:- 

Newspapers report that Mr. Yeldham's sexuality and conduct were known by the legal community in Sydney (Courier Mail 6 Dec 96). He is alleged to have unknowingly solicited a young lawyer who lodged a complaint.
 The matter was never prosecuted.
The judicial commission:- The NSW chief justice, Justice Murray Gleeson told the chairman of the Independent Commission Against Corruption (ICAC) in 1989 that a story about Yeldham had been around for years.
Apparently the previous chief justice Sir Lawrence Street was also aware of an account of Yeldham's conduct. He spoke to Yeldham and accepted Yeldham's assurance that this was a "malicious, unfounded rumour". Justice Gleeson was apparently told in 1989 about the more recent indiscretion but it was decided that this was a matter for ICAC rather than the judicial commission. Whether the judicial commission intervened is not known, but Yeldham took long service leave at this time and then retired from the supreme court (Sydney Morning Herald 7 Dec 96). He continued some legal activity, and his position and standing as a retired supreme court judge judge was used to give the decision credibility when he was asked to decide on a hospital license for AME in 1993.


The Independent Committee Against Corruption (ICAC):- 
For a period of nearly a year between 1989 and 1990 the ICAC in NSW investigated a complaint about Yeldham and conducted an inquiry into Yeldham's conduct.
The inquiry was abandoned because Yeldham had retired from the supreme court and the committee was not concerned with the sexual conduct of private individuals. (Sydney Morning Herald 18 Dec 1996).
 This matter was drawn to the attention of Mr. Temby, a previous judge when he became chairman of the ICAC in 1995.
He also accepted that Yeldham was a private individual.
 The ICAC reports to a special parliamentary committee. The ICAC would have had to justify the expense of this long but abandoned inquiry to this committee.
It is clear that a significant number of lawyers and parliamentarians would have been aware of these matters. It is difficult to believe that the cabinet did not know that the ICAC was investigating one of its supreme court judges and the reasons for this.
This was the same government who subsequently appointed or approved the delegation of the license decision to Yeldham.
Operation TAMBA:- During 1990 the ICAC mounted another investigation code named "Operation TAMBA".
 A report by Simon Davies (no longer on www) maintains that this was one of "the most extensive information corruption investigations anywhere in the world - - - - Systematic selling and swapping of personal information had become endemic and epidemic.
Bureaucrats, bankers, debt collectors and police would hold parties where personal information was swapped and contacts secured."
 The Assistant Commissioner of ICAC apparently labeled this the "Information Exchange Club". The report indicates that "it would be difficult to overstate how widespread the practice has been." "Criminal histories" were freely available,

 "This corrupt trade sometimes involved quite sinister purposes". "The bottom line of the trade is that it contributed to the corruption of public officials."
 It was "the public officials and the agents who were the main participants in the trade."
The trade would not have been possible were it not for the "direct involvement of the finance industry". The "corrupt conduct of banks" was noted.
 The extensive involvement of big business is described and it seemed that on the one hand the boardroom wanted to remain untouched, but on the other the response of management was "admiration or open praise". It appears that a "great volume of personal information came from police files"
The report also indicates that "all levels of local, state and federal government, ------- were all involved in the illicit trade".
It is clear from this report that information about the conduct of a person as prominent as a supreme court judge, a judge who had been apprehended in compromising situations on multiple occasions would fetch a good price.
 The 1996 inquiry into police corruption and paedophilia found that many documents relating to Yeldham's apprehension by the police simply disappeared. It is clear that information about Yeldham and quite possibly documents would very probably have been available to politicians, government departments and to the business community - at a price.

It is therefore likely that those wanting the approval of the license application either did have or could easily have obtained the information needed to influence Yeldham in his decision. We do not know if they did so.
Complaint to the Independent Commission Against Corruption

The truth is appalling:- The Sydney Morning Herald stated on 12 Dec 1996 that "The truth is appalling. It appears that special branch were covering up for the judge for its own purposes. We may never know if any of his judgments were tainted by improper influence, but the evidence suggests that he should never have been on the bench, never in a position of public honour and influence"

Complaint to the ICAC:- The Independent Commission Against Corruption (ICAC) was supplied with the relevant information relating to the Yeldham license determination and was asked to determine whether

1. those who selected Yeldham for the task were aware that he was at risk of "blackmail or improper pressure".
2. the decision he made in overriding the advice of the health department was a reasonable decision in the light of the information given to him
3. the decision to ignore advice from NSW Health that he should wait for the situation in the USA to clarify and to press ahead with the decision rapidly was because he had prior knowledge of the developing situation in the USA and Singapore.
4. any undue influence was exerted on Yeldham and if so by whom.
Outcome
1. The ICAC found that there was no evidence to support the complaint and declined to investigate. They did not address the question of whether their previous investigation created a conflict of interest for them.
Their previous decision not to investigate Yeldham had allowed him to continue to provide judicial services when it must have been clear to the ICAC that if the allegations were correct then Yeldham was at risk of improper influence.
2. The Judicial Commission which controls the conduct of the judiciary was also approached. It indicated that "the Judicial Commission has no jurisdiction over former judicial officers, and is required to dismiss a complaint if the person complained about is no longer a judicial officer."

Australian Judge David Yeldham - The suicide of Justice David Yeldham after his secret life had been revealed
http://loveforlife.com.au/content/08/05/28/australian-judge-david-yeldham-suicide-justice-david-yeldham-after-his-secret-life-

Australian Judge David Yeldham - The suicide of Justice David Yeldham after his secret life had been revealed

Wed, 05/28/2008 - 22:22 — Arthur Cristian
Australian Judge David Yeldham
Broadcast: 17/02/97

Courting Disaster

The suicide of Justice David Yeldham after his secret life had been revealed scandalized the judiciary.

There is evidence that the highest judicial officers in the state were made aware of his behavior in the late 1980s but failed to take effective action.
His practices, in the eyes of Sir Laurence Street, the former Chief Justice of the Supreme Court, made him unfit to hold his office.


Original Story.
Reporter: David Hardaker
Producer: Ian Altschwager
Research: Jacquelyn Hole
David Hardaker: They are among the highest in the land, with great powers and independence. But what happens if one of their number falls short of the public's demand for the highest of standards?
Peter Trebilco, Knox Grammarian 1938-46: When you're a Supreme Court judge and you get arrested or a district court judge or any other public figure, the damage to your reputation is absolute.
David Hardaker: How the private sexual life of Judge David Yeldham became public has exposed a judicial system which could not deal with a judge who left his court open to compromise.
Sir Laurence Street, Former Chief Justice NSW Supreme Court: I don't want to sit in judgement on the man. He's dead now. I feel he let me down. I wouldn't go beyond that and I'm sad, I'm disappointed.
David Hardaker: There's now new evidence that information on David Yeldham's activities went to the highest levels of Government.
Tonight on Four Corner's, the tragic double life of a man who betrayed the law and the unanswered questions he left behind.
Title: Courting Disaster
David Hardaker: The celebration of the new legal year -- a time when the might of the law comes before the majesty of the church. This ritual reminds those who uphold the law that theirs is an onerous duty -- that their special position of trust demands the highest standards of conduct. This year at Sydney's St James Anglican Church, those who demand the truth from others are being challenged to seek the truth about themselves.


Reverend Peter Hughes, St James Anglican Church: We may never commit an arrestable offence, but there are things we have thought or done or failed to do which often involuntarily rise to consciousness, stir up a sense of shame and even of guilt and remind us we are not paragons of virtue, we are not entirely what our well polished public image would suggest.


David Hardaker: Hanging over these proceedings is the memory of a late judicial colleague -- the former NSW Supreme Court Judge, David Yeldham, who lived a secret life of furtive sexual encounters with other men in public toilets.


Reverend Peter Hughes, St James Anglican Church: It's the gulf between our public image and our inner reality we know too well, which prompts the fear of exposure and a preference for the obscurity and anonymity of the shadows. Once exposed, it might for some be impossible to endure or survive the public humiliation.


David Hardaker: The exposure of the truth which David Yeldham kept hidden for so long led him to suicide. And his life of deceit has revealed serious flaws in the system of judicial accountability.


John Basten QC, Barrister: I think one has to have a structure which allows for public accountability, otherwise these concerns are raised, complaints are made. But there's no mechanism which allows the public to be reassured that judges do perform their work well and with propriety, or if they don't, that they can be properly dealt with.


David Hardaker: By the Supreme Court's own standards, David Yeldham should not have been one of their number, not because he was secretly homosexual but because he played out his homosexuality in the most public and high-risk way. He broke the law while sitting as a judge, opened himself to compromise and risked bringing the Supreme Court into disrepute.


Sir Laurence Street, Former Chief Justice NSW Supreme Court: I believe that he was a man of such intellectual integrity that if he were confronted with the fact that look David, this is just something you can't continue to remain on the bench when you're from time to time seized by this devil, if you like, which drives you down to this sort of conduct, I think he would have recognised it. But it was conduct which is incompatible with judicial office, in my view.


David Hardaker: The exposure of a judge unfit for office came not from the judiciary but in State Parliament.
Franca Arena, NSW Upper House Member [in Parliament]: What about former Supreme Court judge, David Albert Yeldham -- was he or was he not interviewed?
David Hardaker: A NSW Upper House member, Franca Arena, was concerned that the NSW Royal Commission into Police had gone easy on the judge in its paedophile inquiry.
Franca Arena, NSW Upper House Member: Only saying that this is one example of a person who appears to have been given preferential treatment.
David Hardaker: Her action came at time when paedophilia was under intense public scrutiny, with constant allegations at the NSW Royal Commission of men who'd cheated the law for years. In this climate David Yeldham, the distinguished former judge, was forced into an extraordinary public denial.
David Yeldham, Former High Court Judge: But if it was construed as meaning I'm a paedophile, well then I strongly deny that and I hate paedophilia, I always have. I've never been one and I'm never going to be one.
David Hardaker: No credible evidence has emerged that the judge was a paedophile, but four days after the public allegations, the loving husband and grandfather committed suicide. The NSW Royal Commission has since heard evidence that David Yeldham engaged in indecent behaviour in public toilets, both as a judge and at other times of his life, and that when he was caught by police, he lied his way out of it.
John Basten QC, Barrister:
Q: If he was a witness in his own court, how would he go down?
A: Well one hopes he would go down. One hopes he would not be accepted as a witness. But the difficulty is, of course, that in the circumstances, his conduct was conduct which was known to police officers, and he himself was required to judge the credibility and the performance of police officers from time to time in his court. That's why it gives rise to concerns for the public.
Q: What of the argument, though, that his judgements weren't affected by being in this position?
A: The trouble with that is that we will never know, and public appearances of justice are as important as its substance. And if there are concerns that there may have been influence, those have to be cleared.
David Hardaker: Raised in Sydney, the son of a doctor, David Yeldham was sent to board at the prestigious Knox Grammar school on Sydney's North Shore. In the war years, when David Yeldham attended, the boys were imbued with the values of hard work and discipline, as one old classmate recalls.
Peter Trebilco, Knox Grammarian 1938-46: I joined the school, I think, 14 years after it was opened and it was based on the fairly traditional English Public School model. And we were expected to behave with courtesy towards other people and not to be a nuisance to anyone. The values were those of the Presbyterian Church -- there's no possible doubt about that, and middle class.
David Hardaker: Virile Agitur is the old school motto -- do the manly thing -- and that's what David Yeldham did. He was a member of the First XV Rugby team, an officer cadet and Captain of the School. He was an achiever -- and there, sharing the schoolboy struggle and strife was Peter Trebilco, the school vice captain.
Peter Trebilco, Knox Grammarian 1938-46: He was always a man I felt very comfortable with. He was -- he had quite a serious speech impediment when he first hit the upper school, and like most of the things in his life, he overcame that, so much so that he won the oration prize in his last year at school. And that's a big jump, I think, for anyone. And being successful, I think, was very important to David. But he was also very shy -- he kept himself very much to himself really. He was a private man, I think that's a proper word.


David Hardaker: Peter Trebilco and David Yeldham shared much in their years together. Armed with their leaving certificates, they left to take on the world but their lives would take radically different paths. Peter Trebilco came to terms early in life with his desire to have sex with men. The old Knox boy is now an icon of Sydney's gay community -- a survivor of less hospitable times.
Peter Trebilco, Knox Grammarian 1938-46: For men of my generation, there was an incredible amount of opprobrium associated with any allegation that you had indulged in any form of male-to-male sex. Whether it was true or not, whether you were acquitted or convicted, your reputation would be permanently damaged, if not ruined, and that's the sort of pressure that men of David's calibre always had to deal with.
David Hardaker: For those at the centre of Sydney's gay community, sex no longer needs to be hidden. But it was a different story when men of Peter Trebilco's generation were looking for partners.
Peter Trebilco, Knox Grammarian 1938-49: One did what are called beats. These are railway stations, public conveniences, parks, and there you met men and you had remarkably anonymous and quick sex, and then put that to one side, that was a part of your life, that for that day was now closed and you went back to whatever else it was that you wanted to do.
Q: And what stage in your life did you...?
A: I started doing that at the age of 11.
David Hardaker: While Peter Trebilco was living a fully homosexual life by the mid 1950s, David Yeldham, the ambitious young solicitor was moving towards the traditional trappings of marriage and family. But it's alleged that as early as 1956, while in his late 20s, David Yeldham was seeking sex in a railway station.
Dr Garry Dowsett, Department of Sociology, Macquarie University, NSW: A railway station is a place where a lot of people travel through each day. There's a lot of trade in a railway station. Railway stations have been known as places for these kinds of sexual encounters, and are today, known that that's possible. It's because there's a large number of people going through, it's possible to find a private space for a very short period of time.
Trevor Richey, Former NSW Senior Transit Police Officer: You'd go to the urinal to go to the toilet and .people'd stand beside you, some of them'd look you up and down and smile at you. Doing the job I've done, I've found out, you know, you make up your mind what they were after. You'd often see a couple of male persons in the cubicles performing sex acts, oral sex and mutual masturbation -- it's things like that. I wouldn't like my son to go into railway toilets and have these sort of actions put upon him.
David Hardaker: The man who says he had sex with David Yeldham in 1956 was then aged 18. He says Yeldham picked him up at St James railway station and from there the two men walked up to the solicitor's rooms, where Yeldham paid 10 shillings to have sex. The two men then saw each other off and on for 10 years.
The young solicitor was taking an enormous risk. Before 1984, homosexual acts were illegal, punishable, at the time, by up to 14 years jail. But Yeldham was also placing his fortunes in the hands of a pretty unreliable character. Before his encounter with Yeldham, the 18-year-old prostitute had been charged and acquitted of paedophilia offences. He later spent time in jail on separate crimes and is now facing more paedophilia charges. But this it wasn't the first time that David Yeldham had run the risk.
Peter Trebilco, Knox Grammarian 1938-46: Quite casually, never deliberately, I would see David here and there. And I saw him in areas where I knew what I was doing there.
Q: These are beats?
A: And I have reason to believe, but I have absolutely no evidence that that's why he was there also.
Q: What period are we talking about here?
A: From his -- well, I was -- I would think 1947, 1948 onwards. Every so often - and this was just a matter of convenience, I think. We never discussed it ever, because one of the things about the beat culture, if there is such a thing, is absolute anonymity is essential.


David Hardaker: As David Yeldham moved from solicitor to barrister through the 1950s and '60s, there was an ever present threat to any man doing a beat.


Peter Trebilco, Knox Grammarian 1938-46: It was very dangerous, not for the reasons that it's presently dangerous, which are the bashing crowd that have been around now since the middle '80s. No, it was dangerous because of police entrapment. Police officers did try and appear to offer inducements for sexual favours for a man, and then, when any response was made at all, would immediately arrest. And I would think that most men who did the beat would at least have been arrested once. They may never have been convicted, but they would have been arrested at least once. And when you're a Supreme Court judge and you get arrested, or a District Court judge or any other public figure, the damage to your profession is absolute.


David Hardaker: In 1974, David Yeldham was appointed a judge of NSW's highest court, the Supreme Court. But his lifestyle didn't change.


Four Corners has learnt that in the late 1970s, Judge Yeldham approached a now prominent member of Sydney's Bar in toilets at Wynyard Railway, in the centre of Sydney's business district. But the barrister decided not to report the incident. Then, in 1980 a police officer saw the judge acting suspiciously around Wynyard toilets and filed a report to his superiors. Rumour began to spread.


Richard Cobden, Barrister: Legal circles are very gossipy circles, and obviously when gay lawyers do get together, they sort of tend to say oh have you heard such-and-such-a-judge is gay or so-and-so is gay? So I've heard for years -- I couldn't put a number on many years, that there was a Supreme Court judge who was gay and his name was David Yeldham.
Q: For 20 years, 10 years, five years?
A: Maybe 10. Maybe 15.
Q: How well known do you think it was around the Bar?
A: Well the Bar's a pretty gossipy place, and so I'd be very surprised if that wasn't widely known, I'd have to say.


David Hardaker: 1980 was the year it all threatened to unravel for David Yeldham.
Allegations about the judge went to the highest levels of the NSW judicial system. Not only did the then Chief Justice of the Supreme Court hear the rumour, but as we'll see, there's new evidence that the then Attorney-General of the State also knew of allegations. Ultimately though, there was no accountability because there was no system to find the truth.


After 15 years, accounts are confused about how the then Chief Justice of the Supreme Court, Sir Laurence Street, came to hear talk about his brother judge. It's also unclear how much information Sir Laurence had to act on. Retired from the bench, Sir Laurence is now hazy on some detail. He's recalled that a Sydney barrister was the source of the Yeldham rumour. The barrister had heard a story from police that the judge had been picked up by the Vice Squad at Wynyard toilets, but that he hadn't been charged. Sir Laurence called on the barrister to tell him what he knew.


Sir Laurence Street, Former Chief Justice, NSW Supreme Court: See I was concerned, really, to -- with -- there were two alternatives -- either the rumour was true or it was false. In my previous position -- and I say it quite frankly, was that it was false, but it might have been true. But I wanted to have it checked out because if it were false, then it would be a serious case of contempt of court -- scandalising the court.
Q: Because the police are putting about such a rumour?
A: Yes. So I wanted to have the rumour tracked down.


David Hardaker: The barrister checked around his old police mates but was unable to shed any more light on the story. So, Sir Laurence called David Yeldham to put the rumour directly to him.


Sir Laurence Street, Former Chief Justice, NSW Supreme Court: I got a report back negating substance in the rumours, saying that there were no -- there was nothing that had been illicited that could be reported to me. So at that stage, I discussed it with the judge. He denied it. We discussed the likelihood that this was some police officer who may have been harshly dealt with by the judge with spreading some false malicious rumour. It was a totally isolated event and it didn't loom large in my calendar of activities.
Q: Did you think it was possible to ring the Police Commissioner to have it checked out?
A: No. That would put him in a -- one of the best ways to give wide exposure of the rumour, which may well have been unfounded.


David Hardaker: Judge Yeldham had elected to place his interests above the reputation of the Supreme Court.


Sir Laurence Street, Former Chief Justice, NSW Supreme Court:
Q: Do you feel any sense of betrayal that he wasn't candid with you when you confronted him with the rumour?
A: I don't want to sit in judgement on the man. He's dead now. I feel he let me down. I wouldn't go beyond that and I'm sad, I'm disappointed, I might have been able to help to avoid some of the tragedy that followed if he'd been candid with me.
Q: Do you feel that he let down the Court as an institution?
A: Yes, yes.
Q: But it must upset you since you...
A: It does, it does. Anything that touched the court touched me personally.


David Hardaker: The Street family is the country's most powerful legal dynasty, Sir Laurence's father and grandfather preceding him as Chief Justice. Last year, though, the former custodian of the State's highest court found himself on the other side of the Bench when he was called to give evidence at the NSW Royal Commission. Sir Laurence told the Commission his recollection that he probably heard of the Yeldham rumour through talk around the Sydney Bar. But the Yeldham rumour was more than mere barristers' gossip.


Four Corners has learnt that the NSW Attorney-General of the day, Frank Walker, also heard information on the judge. Walker says he asked that it be conveyed to Sir Laurence by his Department head, Trevor Haines.


Sir Laurence Street, Former Chief Justice, NSW Supreme Court: It may be that he mentioned it to me and not the Attorney. It may be the Attorney was the source of it. And they may have independently mentioned it or passed the rumour onto me.
Q: So you accept the then Attorney-General's memory...
A: Oh if he has a recollection, I wouldn't quarrel with that, but as I say it does -- it fits in -- it fills in a missing piece of the jigsaw in that I have no recollection at all. Notwithstanding being prompted by his recollection -- I have no recollection of how the rumour came to me. And that seems to be the pretty obvious way in which I came to be aware of it.


David Hardaker: But the Royal Commission didn't hear that story and it didn't raise with Sir Laurence the prospect that the Attorney-General might have known. The Commission also left unchallenged Sir Laurence's assertion that he spoke to no-one about his meeting with Yeldham. I didn't mention it to a soul, Sir Laurence said, I'm quite certain of that. The Royal Commission has been left with the impression that no other senior law officer knew that the Chief Justice had confronted a brother judge. Now, though, Sir Laurence is prepared to concede otherwise.


Sir Laurence Street:
Q: Would you accept now that you might have discussed that with Attorney-General Walker?
A: It's possible that I rang him back and said look I've had it checked out and it's -- the rumour doesn't -- is unfounded and the judge denies it. It's quite possible but..
Q: Would you concede now, then, that your account to the Royal Commission might have been incomplete?
A: Oh. no, no. What I was intending to convey was that I had not myself furthered the rumour in any way.
Q: It's just that you're so certain in your Royal Commission evidence that you spoke to no-one other than Yeldham about this.
A: Yes.
Q: So....
A: Well that may have been a defect in my memory. I still have no recollection, I still -- if I'm asked did you speak to anybody, I would still say no.


David Hardaker: But there's more to the Walker story. The former Attorney-General recalls that the information he received had come from a mother who said Yeldham made an indecent approach to her 11-year-old son at Wynyard toilets. She was angered the police wouldn't act. According to Walker she made a complaint to the Department. Walker says he asked that the complaint be conveyed to Sir Laurence, but Sir Laurence says he has no recollection of it being put to him.


Sir Laurence Street, Former Chief Justice, NSW Supreme Court: And would have thought that if there were, in the Department, a complaint from a mother of a boy, there'd be no question of my having some under-cover operation to check out a rumour.


David Hardaker: The former head of the NSW Attorney-General's department, Trevor Haines denies he spoke to Sir Laurence about the incident or that his department received any complaint of the kind suggested by Walker. As well, the Department has told us it has no record of the complaint. However, Frank Walker's recollection raises important questions because if his memory of the detail is correct, the incident should have been thoroughly investigated. But, as yet, his version hasn't been publicly tested at the Wood Royal Commission.


Despite the near exposure of his secret life, David Yeldham was still drawn to the railway stations. And while, after 1984, sex between consenting male adults was legal, it was still against the law to have sex in a public toilet.


Peter Trebilco, Knox Grammarian 1938-46:
Q: Why would he place so much on the line by continuing to do that?
A: I can't answer for him. I know that in my case -- and I can speak about this, is that the sexual drive is very, very important and you learn the rules of doing the beat very quickly. And you always remember to apply them, and so consequently you can continue, with some fortune, to live this double life.
Q: What do you get out of doing the beats?
A: I think it's not just the sex. In fact I know some people who will go to a beat just to see if they can still attract another man and if they can they'll go home perfectly happy. But there's a vast amount of excitement. There is -- there used to be -- there still is -- danger associated with this -- and the man you think is interested may not be and he may be very offended and become violent. He may be a police officer.
Q: Much of an adrenalin rush?
A: Oh yes. Yes. Very definitely. Very definitely indeed.


David Hardaker: By the mid 1980s, Yeldham faced other pressures with the judiciary coming under scrutiny like never before. A crooked Chief Magistrate and claims of corruption against a High Court judge and a NSW District Court judge -- both later acquitted -- meant scandal was in the air. The NSW Government reacted in 1986 by introducing a Judicial Commission to investigate complaints against judges. Later came the Independent Commission Against Corruption, which could investigate also the judiciary. Still, Judge Yeldham did the beats.


Trevor Ritchie, Former NSW Senior Transit Police Officer:
Q: Is he well known around the railway stations?
A: From my knowledge he was, yes.
Q: For how long?
A: Probably nine or 10 years now.
Q: So this would be going back to the mid '80s?
A: Possibly back that far.


David Hardaker: Declaring he'd had enough of life on the bench, David Yeldham announced in June 1988 that he would retire in 18 months. But within months, Yeldham, still sitting on the Supreme Court, was picked up by the police at Central Railway Station toilets. This incident would again expose the system of judicial accountability as utterly ineffective in the case of David Yeldham -- despite all the new reforms. The ICAC and the Judicial Commission would ultimately take no effective action. First, though, the police.


According to evidence at the NSW Royal Commission, transit police observed Judge Yeldham in a cubicle with another man for 90 seconds. When the men emerged, the police took them in for questioning. Yeldham's first response was to show his judge's identification. Then he lied to the police, explaining he'd felt sick, rushed into the toilet and found another man had followed him in. The other man told an equally improbable story. In the end, the police decided reluctantly to let them go. Trevor Richey didn't arrest David Yeldham, but he's familiar with the law.


Trevor Richey, Former NSW Senior Transit Police Officer: Well, with the way the law is now with the Summary offences, it'd be pretty hard to prove anything in a court of law for conflicting stories. Nine times out of 10, they don't want to go to the court anyhow, so in that sort of scenario you're just better off asking them to leave the station and not to come back.


David Hardaker: Whatever the merits of the police case, it didn't help that a judge was involved because, as Trevor Richey attests, it's part of police culture that taking on a VIP can be a damaging career move.


Trevor Richey, Former NSW Senior Transit Police Officer: There is pressure on the basic uniformed officer, yes, not to charge. Rather than charge, you had it over to someone higher up -- Special Branch or someone like that, and allow them to deal with it, and they usually take it over from there.
Q: Why would you feel that your career could be under threat?
A: Well, I mean, they've only drop words -- only got to drop words in higher places and any promotion you went for wouldn't be favourably looked at then.


David Hardaker: The Central incident might have remained buried, but a year later the ICAC received a complaint, alleging Yeldham was given preferential treatment by the police. The ICAC interviewed the police involved but found no evidence of a cover-up. They also ruled that they couldn't investigate the judge because his behaviour did not fit the ICAC's definition of corruption. The then Commissioner Ian Temby can't speak about the decision because of secrecy rules.


However, Four Corners has interviewed a man who's account of the Central railway incident of 1988 differs sharply from accounts which have been given to the ICAC and the NSW Royal Commission. His first-hand account suggests Judge Yeldham had a contact in the police who came to his rescue when he was brought in. The man now believes that that contact was from the NSW Police Special Branch. The man has declined to appear on camera and his words are being spoken by an actor.


Reconstruction of Witness: So I looked down and I saw the judge speaking to someone on the phone and I basically said what the fuck's going on here? And the arresting officer come over and he said look, look, it's OK, it's OK -- he's a judge, he's a judge, you know, don't worry about it, it's OK, he's a judge. And I said I don't give a fuck who he is mate, I mean, what's he doing on the phone -- he's got the same rights as anyone else, why's he getting a phone call? He's not meant to get a phone call until after he's charged. He said look it's OK it's OK, he's a judge.
Q: How long do you think the judge was on the phone?
A: Probably two minutes, maybe a little bit more, maybe a little bit less.
Q: Do you know who he was calling?
A: I had no idea.


David Hardaker: The witness says no police made a telephone call -- only the judge and within 10 - 15 minutes a car arrived at the station.


Reconstruction of Witness: So a couple of fellas come through the door, you know, plain-clothes detective-looking, they identified themselves -- they had badges. I'm pretty sure one of them was a sergeant or that sort of rank. And I remember realising well, you know, the brass is here, you know, I've got to keep my nose right out of this thing.


And they've pulled the arresting officer aside um spoke to him, spoke to the judge, spoke to the judge's friend shall we say. Basically spoke to everyone. And then the detectives or whatever they were, well Special branch fellas, in hindsight, they said look don't worry about this fellas, we'll work it out the judge is going to come with us. Basically same old story -- we weren't here, this didn't happen, let's just leave it at that, OK, we'll do all the paperwork, we'll look after it. And they went within minutes.
Q: And you have no doubt that Judge Yeldham left in the company of these plain-clothes officers?
A: No doubt whatsoever, no doubt at all. No, the officers jumped in the front seat and the good judge got in the back seat and they drove off down the ramp.


David Hardaker: When this incident came before the Wood Royal Commission, there was no mention that plain-clothes police officers had intervened. But one transit policeman said he'd been told by a senior officer that Judge Yeldham was a known cat or homosexual and was on-side.


John Basten QC, Barrister: I think the serious concern arising out of what the Royal Commission has been told, is probably that a judge in Mr Yeldham's position did not himself appreciate that he was in a difficult situation. Immediately the police were concerned with his conduct and immediately they became aware of his status, and apparently offered lenient responses because he was a judge. Once that situation had arisen, he was compromised, and he should have known it.


Ian Temby, Commission Independent Commission Against Corruption: [Archive 1989] I recognise that the notion that you don't dob in a mate's part of Australian culture. On the other hand, the sort of practices we're interested in are very gravely against the public interest -- they do harm to all of us.


David Hardaker: But there's more to the ICAC story. Within weeks of receiving the original complaint about police protection of the judge, Commissioner Ian Temby, now an Acting Supreme Court judge, met with the Chief Justice and President of the Judicial Commission, Murray Gleeson.


The new Chief Justice was about to hear a story about David Yeldham and an incident in a public toilet. But this wasn't news to the Chief Justice. According to notes made by Temby, the Chief Justice replied that that had gone around the Sydney Bar three years ago. As it turned out, Temby's was a new story and although Gleeson wanted to know more, Temby wouldn't go into detail. The two men agreed that the ICAC should handle it -- why? Well, the Judicial Commission had no power to investigate a retired judge and by late 1989, David Yeldham was only a month away from leaving the bench.
John Basten QC, Barrister: I don't believe that any conduct which occurs whilst a judge is in office should be immune from investigation, and the public confidence in the conduct of the judiciary demands that. But judges also retire from judicial office, but not necessarily from public life. It's very frequent that judges are reappointed after retirement, either as acting judges in the same court, or as Royal Commissioners, or various other functions in which their prior role as a judge has been instrumental in them being appointed to the new position.
Q: So, why though, is that a problem?
A: If they have been improper conduct - if there has been improper conduct in the past, the public should know about it and if it's something which would have prevented their reappointment, then the Minister or whoever is responsible for making the appointment should know about it.
David Hardaker: The Yeldham incident has highlighted the shortcomings of the Judicial Commission. It was created as an independent body to inquire into complaints about judges, but it seems almost designed not to find the truth. A Judge can retire and avoid public scrutiny of his behaviour. As well, the Commission must wait until it receives a detailed written complaint before it can act. John Basten QC says it should be able to investigate rumour of the kind which surrounded David Yeldham.
John Basten QC, Barrister: You have to make enquiries. You have to talk to the people who have heard the rumour, see if there is any detail and if there is detail, then you check out any corroborative sources and you speak to the person who is alleged to have misconducted themselves.
Q: This may involve contacting the Police Department?
A: Yes, it may.
Q: Could that not, though, fan an unfounded rumour?
A: The danger of fanning a rumour is always present in any police investigation, including of public officials in any walk of life. One has to work with as much discretion as possible. And obviously the enquiries will be discreet until they are clearly established. But that is a risk that one has to take.
David Hardaker: In the end, the two bodies which could investigate a judge were prevented by their own rules from investigating Judge Yeldham. It meant Yeldham retired with all entitlements, including a Government-funded pension.
David Yeldham, Former High Court Judge: The system of justice at the moment is a farce.
David Hardaker: In retirement, David Yeldham continued his involvement with the law, in this interview campaigning to abolish the use of unsworn statements in sexual assault cases. And with the mantle of a retired Supreme Court judge, he continued to carry out public duties. He received work from his old court, acting as a referee in commercial disputes. He conducted arbitration's for Government departments. And he was appointed an Assistant Commissioner at the Gyles Royal Commission into the NSW Building industry.
John Basten QC, Barrister:
Q: Does it concern you that after leaving the Bench, Mr Yeldham acted as a Royal Commissioner?
A: I think the concern is that his conduct, if it were known at that stage, had not been the subject of appropriate inquiry and investigation, the Royal Commission that he was involved in -- with had very little or nothing at all to do with the police. So in that sense there was no problem, I would have thought, but he might equally in retirement, have been appointed as Assistant Commissioner with the ICAC, or even with the Wood Royal Commission, which in -- was investigating police misconduct. Now those appointments would have been quite inappropriate for someone, if the rumours which we now know of, were true. And the fact that they were not investigated, simply because he retired as a judge, is a cause for grave concern.


David Hardaker: It's now known that in his retirement -- and before he was made an assistant Royal Commissioner, Yeldham was again caught -- this time in his old haunt of Wynyard where it was alleged he masturbated on the stairs. According to evidence at the NSW Royal Commission, again the Police Special Branch intervened and protected him from prosecution.
Franca Arena, NSW Upper House Member: [In parliament] What about former Supreme Court judge, David Albert Yeldham -- was he or was he not interviewed?
David Hardaker: Right to the end, as his secret life began to unravel, David Yeldham tried to get away with it again. He tried to bluff his way through one last time when questioned in camera at the Wood Royal Commission. I'm bisexual, let's face it, he said. He admitted he lived with the fear of blackmail while a judge, saying I realised it was a possibility, but it never happened and I suppose I was lucky, I just didn't think too much about it. Finally he admitted to an indecent act on the stairs at Wynyard, but said he regarded it as relatively minor.
Within hours of making his partial admission, he gassed himself in his car at home, leaving a distraught brother to defend a life even he didn't fully know.
Peter Yeldham: He lived by the law, he was a very good servant of the law, and the law, to my mind, in the end seemed to let him down.
David Hardaker: There were two services for David Yeldham -- the first, for friends and family was held at his beloved Knox school. The oration was given by the Governor-General of Australia and former High court judge, Sir William Deane who'd been through university with the young Yeldham. And there, anonymously, stood Peter Trebilco.
Peter Trebilco, Knox Grammarian 1938-46: And we were waiting and then it was time for the family, the mourners -- the principal mourners to arrive, and we all stood up and waited and then we all sat down. And the first lesson was read by the Governor-General of Australia. And I said to my friend, that's the noise of the establishment closing ranks.


David Hardaker: At St James Church, the legal profession gathered to pay its last respects to a man they were only just beginning to know.
Sir Laurence Street to Minister: It was a beautiful service.
Sir Laurence Street: I think if it -- there's was one lesson I've learnt from the Yeldham situation, is that one never really knows anybody 100 per cent throughout, and simply that's human nature.
David Hardaker: This month the gay and lesbian community celebrated its coming out at the launch of the Mardi Gras. But to the end, David Yeldham was trapped by the strictures of his times.
No-one knows if David Yeldham and his judgements were compromised -- and that is the dilemma facing the judicial system. Forced to live a lie while demanding the truth of others, he was driven to jeopardise the standing of the State's Highest Court and betray the trust of every person who appeared before him.


Link to this article: http://www.abc.net.au/4corners/stories/s72790.htm
Holding judgement- NSW Police Royal Wood Commission
http://www.smh.com.au/news/national/holding-judgement/2007/06/08/1181089328815.html
June 9, 2007
Page 1 of 5 
It took up 451 hearing days, heard from 902 public witnesses and cost an estimated $64 million. Malcolm Brown reports on the Wood royal commission, 10 years on.
It began on June 15, 1995, when an unnamed Annandale detective jumped to his death from the seventh floor of a building, apparently through fear of the Wood royal commission. The detective's suicide was followed by those of Ray Jenkins, a dog trainer (July 10), and Inspector Robert Tait, the acting patrol commander at Narrabri (March 29, 1996). Nineteen days later a former Wollongong alderman, Brian Tobin, gassed himself.
On May 8 the same year, Peter Foretic gassed himself the day after giving evidence about pedophilia. On September 23, Detective Senior Constable Wayne Johnson shot himself and his estranged wife after being adversely named in the royal commission. On November 4, David Yeldham, a retired judge about to face the royal commission on questions of sexual impropriety, killed himself. A month later Danny Caines, a plumber and police confidant, committed suicide at Forster, on the North Coast.
Altogether, 12 people enmeshed in the Wood royal commission took their own lives. Scores of others were so profoundly affected by proceedings that their supporters and families believe it shortened their lives. A former detective, Greg Jensen, suffered a recurrence of the stomach cancer that ultimately ended his life, while another former detective, Ray McDougall, who faced the threat that commission investigators might expose his extramarital affair if he did not co-operate, succumbed to motor neurone disease.
There is no doubt that the Royal Commission into the NSW Police Service, headed by the Supreme Court judge James Wood, purged the force of a rollcall of rotters. A total of 284 police officers were adversely named, 46 briefs of evidence were sent to the Director of Public Prosecutions and by 2001 nine officers had pleaded guilty to corruption offences and three not guilty. Seven police officers received jail sentences, including the former Gosford drug squad chief Wayne Eade and a former chief of detectives, Graham "Chook" Fowler.
Several high-profile police ended their careers in disgrace, including Ray Donaldson, an assistant commissioner, whose contract was not renewed, and Bob Lysaught, the commissioner's chief of staff, whose contract was torn up. Charges against 14 officers were dismissed because of irregularities in search warrants and their execution.
That left the question of what to do with police who were on the nose but who could not be brought to account by normal means. The solution was the creation of section 181B of the Police Service Act, under which the police commissioner could dismiss an officer on the basis of what had come out of the royal commission. Section 181D allowed the police commissioner to serve an officer with a notice indicating that he "does not have confidence in the police officer's suitability to continue as a police officer". The officer could show cause as to why he should be retained, and if dismissed could appeal to the Industrial Relations Tribunal.
In the wake of the two legislative changes, 380 officers were targeted for dismissal or internal investigation. By March 1998, 19 police officers had been dismissed under section 181B and three under 181D. Another had been dismissed under a separate provision of the act, 14 had resigned, four had been medically discharged and 15 had been given performance warning notices. Others were under consideration, and as the Police Integrity Commission - a legacy of the royal commission which became a permanent watchdog - has demonstrated, even officers who had been corrupt many years before were not necessarily in the clear.
The former independent MP John Hatton, who was instrumental in setting up the royal commission, said he thought the Police Integrity Commission was the royal commission's "greatest achievement". The Child Protection Enforcement Agency, which launched a purge of sex offenders, is another positive legacy of the royal commission.
But 10 years on, was the exercise worth it?
To some there were considerable benefits. Some appalling malpractice - known as "process" or "noble cause" corruption - prompted Wood to wonder at one point about the quality of a lot of police evidence he had accepted over the years.
Despite this, many officers still believe the royal commission was too puritanical. They  claim the investigators, not able to grapple with the really big issues, jumped on anything they could: "They had to have runs on the board," says Michael McGann, who as a policeman in 1984 participated in the so-called Kareela Cat Burglar case, in which police used mace on an unco-operative thief and sex offender. To some critics this treatment did no serious harm and only required a word of caution. But under the spotlight of the royal commission 12 years later, it ended the careers of high-flying police such as John Garvey, Brian Harding and Steve York.
A decade later, Harding works in corporate security but insists that the real sting was that the investigators had fabricated evidence. When that finally came out, he says, the group received a confidential settlement, but it did little to redress the feelings of outrage.
Another former policeman, Dr Michael Kennedy, says the commission was a political response to the police commissioner, Tony Lauer, bringing about the downfall of the then police minister, Ted Pickering.
The attorney-general, ministry and judiciary took little responsibility for the state of the force, Kennedy says, while the responsibility of the police rank-and-file grew to "the size of a Pacific driftnet". "I don't think the royal commission contributed anything to the reform process except to provide a template for double standards," he says.
"Chook Fowler put $200 into his pocket from Louis Bayeh. Chook was a lazy, good-for-nothing drunk. But he was put into the same category as Ray Williams and HIH."
McGann says that against the string of petty corrupt activities uncovered, "you have to look at what the government did and did not do with gambling and vice, over the decades. There have been direct links to Parliament for 50 or 60 years. That is hypocrisy."
The critics' view is that the royal commission has left a demoralised police force, tarnished and rudderless, with limited operational effectiveness and the problem of corruption unsolved. Seven police officers have taken their lives since 2001, including two this year.
"It highlights the fact that the structure no longer takes in the needs of the NSW police force," says Mike Gallacher, the Opposition police spokesman, and a former internal affairs police officer.
Gallacher believes, as does the NSW Police Commissioner, Ken Moroney, that the tentacles of corruption no longer spread to embrace entire squads or larger units. But it does not prevent low-level incidents of corruption and there are continuing nests of corruption.
In its most recent report, the Police Integrity Commission said it had undertaken 21 major investigations in 2005-06. These dealt with extortion, theft, unauthorised disclosure of confidential government information and perverting the course of justice, police brutality and the handling of $250,000 stolen from automatic teller machines. The then police integrity commissioner, Terry Griffin, said there had been 51 investigations in the 12 months, compared with 44 in 2004-05, and the 1141 written complaints represented a 15 per cent increase.
Moroney says all these reports are disappointing, but one of the significant statistics was the number of police who were reporting on other police. "You go back a decade and the number of informants who were police was 5 to 10 per cent," he says. "In the Ombudsman's last report, that figure was 49 per cent."
The mechanism for dealing with internal complaints has been expedited: "I have not been afraid to use a section 181D notice," Moroney says.
He believes there is a different mentality in the force. A video of the royal commission had been shown at a recent reunion dinner of the old criminal investigation branch. "It is part of our history. But the interesting thing is that when Chookie came onto the screen, everyone booed. That was a signal to the Fowlers and the Eades that those found to have acted corruptly would not be accepted."
However, Moroney accepts that corruption is not a thing of the past. "In the contemporary period, there are huge monies to be made from the illicit drug environment. You are talking in some cases of millions of dollars. It is the greatest menace in society today. And the greatest menace to officers is drug money. That is why rotation of officers out of specialist squads on a regular basis is important."
Taking over as commissioner five years ago, he had brought a low-key "Uncle Ken" influence, sorely needed, and had had to balance the principles of police accountability against the public demand for law and order, and the task has been awkward.
A senior counsel told the Herald this week that the focus on integrity, scrutiny of professional standards and attacks by defence lawyers meant that talented police prepared to do the dirty work were deterred. "In the old days the best and the brightest went into plain-clothes," he said. "But when the police perceive that when they have to go the extra yard [to get convictions], they are crucified - 'Why should I go to plain-clothes when I can just get some uniform job with a 12-hour shift, and a second job?"'
Clive Small, a former assistant commissioner who set up crime agencies and established the child protection unit, says that after so many detectives were disgraced in the royal commission, the police force sought to take the spotlight off detectives and put more of the onus of responsibility for crime control onto local area commands. Crime agencies had a continual battle to keep up to strength. Regionalising responsibility for crime control reflected a lack of understanding. "A lot of crime spreads through the metropolitan area, across the state and across the nation," he says.
Kennedy, now a university lecturer, says the "business model" approach is incompatible with good police work. "We cannot expect police to behave like they are in the private sector, where competence is measured in terms of productivity," he says.
Kennedy attended the recent CIB reunion dinner and sat at a table with former drug squad detectives who remained friends of Wayne Eade. He takes issue with Moroney's claim that people at the dinner made catcalls when Fowler came on screen. "No one supported Chook," he says. "But the animosity of the crowd was directed straight at Justice Wood and his commission."
Clive Small, who was also at the dinner, says: "I think it is really a matter of interpretation who they were booing. There were things the royal commission did not take care about. There was a lot of collateral damage. And the implementation [of its recommendations] has been pretty ordinary."
CRUSADER WHO MADE THE CALL
http://www.smh.com.au/news/national/holding-judgement/2007/06/08/1181089328815.html?page=
JOHN HATTON well remembers the audience on May 11, 1994, when he made his speech calling for a royal commission into the NSW Police Service. MPs were listening, of course, but it was a gallery above him, packed with the "top brass of the police force - the commissioner himself, the deputy commissioner, superintendents - they were an intimidating force on the Parliament".
"They thought they could stare down the Labor Party support for my motion," Hatton, now retired, says. "It was probably the best indicator of the way in which the police force thought they could control the agenda."
Hatton won the day, putting paid to a claim by then police commissioner, Tony Lauer, that "systemic corruption" was "a figment of the political imagination". Hearings started on November 24, 1994, and Justice James Wood delivered his final report on August 26, 1997.
Ten years later, Hatton believes he was vindicated. He says Wood was "the right man" to head the commission and the recruitment of interstate police was crucial, along with the decision to use phone taps and surveillance.
The 11 volumes of material Hatton gave the royal commission had been accumulated over 14 years, he says, from the time he had first spoken up. He had received information on illegal gambling, drug trafficking and police involvement with the mafia.
There had been earlier moves to address police corruption, including inquiries by the Independent Commission Against Corruption, but these had only scratched the surface. "I can remember on one occasion I reported a death threat which had to do with the McKay murder in Griffith and 48 hours later the bloke who had given the information was threatened by a shotgun at his door in Queensland," Hatton says.
The royal commission came into being because Hatton and other independent MPs held the balance of power in Parliament. The Labor Party may have had high public motives, but also saw a chance to attack the Fahey government. Labor stipulated that an inquiry into police protection of pedophiles, previously in the hands of the ICAC, become part of the royal commission.
The process of gathering information was helped greatly by Trevor Haken, a detective who became an informer and covert investigator as part of a deal to avoid being prosecuted himself.
Hatton says Haken's entry was "out of the blue". Though useful, in the long term it had had a detrimental effect on the fight against corruption. Living in fear and watching his back, Haken had provided "the greatest disincentive for someone coming forward to finger corruption in the system".
Malcolm Brown

Ghost of Special Branch lurks: commission

http://www.smh.com.au/articles/2007/10/25/1192941243070.html

Sydney Morning Herald - Malcolm Brown - October 26, 2007

THE NSW police counter-terrorism body is in danger of slipping into the same sleaziness and political manipulation as predecessor bodies such as Special Branch, the NSW Police Integrity Commission has warned.

The spectre of a secretive law enforcement body keeping tabs on sexual misconduct by politicians and compiling "dirt files" should not be discounted, despite the priority of counter-terrorism work, the commission said in its annual report to Parliament yesterday. The integrity commission, created after the police royal commission in 1997, investigates police misconduct and recommends procedures to prevent or minimise it.

The Police Integrity Commissioner, John Pritchard, said problems that arose with Special Branch - such as gathering information and maintaining files on people who posed no threat of politically motivated violence - were likely to arise again.

The Special Branch had a long and colourful history, being surrounded by suspicion in the Ananda Marga saga, in which three members of the sect were found guilty of conspiracy to murder after the Hilton hotel bombing in 1978. They were later pardoned. Special Branch was wound up in 1997, after evidence at the police royal commission that members had abused their authority, such as covering up the sexual misconduct of a then Supreme Court judge, and misusing the informant system.

Mr Pritchard said the command had all the functions, including documentation, which had been such a problem area for Special Branch. "Overall, the commission [considers] that, like officers from any command, officers who work with [the counter-terrorism command] face a range of integrity risks."

Many risks, such as unauthorised release or misuse of confidential information, or improper associations, were common to other commands. But some other activities posed special risks.

The integrity commission recommended police impose "some form of monitoring that directly focuses on minimising the potential for inappropriate targeting and retention of inappropriate information that may be perceived as 'dirt files'."

In 2006-07 the police force strengthened its ability to detect unlawful drug use by police, including testing for anabolic steroids and recall-to-duty provisions for police to allow random drug testing.

During 2006-07 the integrity commission opened 55 investigations, including 17 serious ones, and concluded 25 investigations. These included the investigation of alleged police misconduct over the removal of blood from a hospital after the car accident by the then Justice Jeff Shaw, in which ultimately there was no prosecution.

Three police officers have been dismissed, and three others were being considered for removal under the Police Act. The commission has referred two others to the police force for consideration of removal.

Bad old days

 Special Branch was disbanded in 1997 after it was shown to have abused its authority.

 Its officers covered up a judge's sexual misconduct and misused informants.

Some of its functions have been absorbed into the counter-terrorism unit.

Headline_ Special Treatment NSW Special Branch for Criminal Activities by prominent people such as Justice David Yeldham

https://www.newspapers.com/newspage/120650800/

December 7, 1996 - A Publisher Extra Newspaper

The Sydney Morning Herald from Sydney, New South Wales · Page 160

Publication:The Sydney Morning Herald i

Location:Sydney, New South Wales

Issue Date:Saturday, December 7, 1996

Page: Page 160

New South Wales Law Reform Commission Report 98 Surveillance: an interim report

February 2001

New South Wales. Law Reform Commission. Sydney 2001 ISSN 1030-0244 (Report)

http://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-98.pdf

New South Wales Law Reform Commission Report 98 Surveillance: an interim report

February 2001

New South Wales. Law Reform Commission. Sydney 2001 ISSN 1030-0244 (Report)

National Library of Australia Cataloguing-in-publication entry New South Wales. Law Reform Commission. Surveillance: an interim report. Bibliography Includes index ISBN 0 7313 0448 9 1. Electronic surveillance – New South Wales. 2. Electronics in criminal investigation – New South Wales. 3. Privacy, Right of – New South Wales. I. Title. (Series : Report (New South Wales. Law Reform Commission) ; 98). 345.94052

New South Wales Law Reform Commission To the Honourable Bob Debus MLC Attorney General for New South Wales Dear Attorney Surveillance: an interim report We make this interim Report pursuant to the reference to this Commission dated 2 July 1996. His Honour Judge Jack Goldring Commissioner-in-Charge The Hon Justice Michael Adams Professor Reg Graycar Vice President Iain Ross February 2001

Contents Terms of reference............................................................................. x Participants ........................................................................................xi

Executive summary...........................................................................xii

The Commission’s recommendations............................................ xviii

 PART ONE: PRELIMINARY AND DEFINITIONAL ISSUES ... 1 1. INTRODUCTION........................................................................... 3

BACKGROUND TO THIS REFERENCE ........................................... 4 PRIVACY ........................................................................................... 4

What we think of as privacy ............................................................... 5

 A “right” of privacy?............................................................................ 7

 An expectation of privacy................................................................. 10 SURVEILLANCE.............................................................................. 11 Origins.............................................................................................. 14

USES OF SURVEILLANCE DEVICES ............................................ 18

Law enforcement ............................................................................. 19

Public safety and crowd control ....................................................... 20

 Protection of personal safety and private property .......................... 21

Media interests................................................................................. 21

Employer interests ........................................................................... 22

EXISTING REGULATION OF SURVEILLANCE.............................. 22

New South Wales ............................................................................ 22 Commonwealth ................................................................................ 23

Other Australian states and territories ............................................. 25

The common law.............................................................................. 26

The LDA is outdated ........................................................................ 32

THE STRUCTURE OF THIS PAPER .............................................. 33 2.

 FRAMEWORK FOR A NEW SURVEILLANCE LAW................. 35

THE COMMISSION’S APPROACH ................................................. 37

Privacy and surveillance .................................................................. 37

SCOPE OF THE PROPOSED LEGISLATION ................................ 39 Background...................................................................................... 40

 Restricting the type of device........................................................... 43

Restricting the type of activity covered ............................................ 46

 Restricting who may conduct surveillance ....................................... 51 Definitions ........................................................................................ 53

What activity is covered by the definitions?......................................58

What is not covered?........................................................................70

 Data surveillance..............................................................................73

 REGULATION OF OVERT AND COVERT SURVEILLANCE .........78

Overt surveillance.............................................................................78

Covert surveillance...........................................................................84

The “employment context”................................................................94 Conclusion........................................................................................98

PART TWO: OVERT SURVEILLANCE............................... 101 3.

OVERT SURVEILLANCE: ISSUES ..........................................103 INTRODUCTION ............................................................................104

WAYS OF “SEEING” ......................................................................105

 PURPOSES OF OVERT SURVEILLANCE....................................106

Protection of people and property ..................................................107

 Protection of the public interest ......................................................109

Collection of material for news and entertainment .........................114

Workplace surveillance...................................................................114

 PROBLEMS WITH USING OVERT SURVEILLANCE ...................118 Privacy............................................................................................118

Social justice ..................................................................................135

 Performance monitoring .................................................................138

THE EFFICACY OF OVERT SURVEILLANCE..............................141

THE FUTURE OF OVERT SURVEILLANCE .................................143

VIEWS CONTAINED IN SUBMISSIONS .......................................148 REGULATION ................................................................................150

How overt surveillance is regulated................................................150

 Self-regulation ................................................................................151

Advantages of self-regulation.........................................................151

Shortcomings of self-regulation......................................................152

Recent examples in other privacy-sensitive areas .........................156 4.

 OVERT SURVEILLANCE: RECOMMENDATIONS..................161

FINDING A BALANCE....................................................................162

Protecting the rights of all parties ...................................................162

 Weighing up the interests...............................................................165

A legislative response.....................................................................167

A SCHEME OF REGULATION ......................................................167

Self-regulation or legislation? .........................................................168

ELEMENTS OF PROPOSED LEGISLATION ................................173

The requirement to give notice ...................................................... 173

The surveillance user..................................................................... 175

Codes of practice ........................................................................... 176

Overt surveillance principles .......................................................... 179 PRINCIPLE 1 ................................................................................. 180

PRINCIPLE 2 ................................................................................. 182

PRINCIPLE 3 ................................................................................. 183

PRINCIPLE 4 ................................................................................. 184

PRINCIPLE 5 ................................................................................. 185

Public sector .................................................................................. 186

 PRINCIPLE 6 ................................................................................. 188 Staff................................................................................................ 188

Surveillance material...................................................................... 190

PRINCIPLE 7 ................................................................................. 191

PRINCIPLE 8 ................................................................................. 192

THE PRIVACY COMMISSIONER’S ROLE.................................... 193 Powers ........................................................................................... 193

THE EMPLOYMENT CONTEXT.................................................... 196

Codes of practice ........................................................................... 197

Performance monitoring................................................................. 198

PART THREE: COVERT SURVEILLANCE ........................ 201 5.

COVERT SURVEILLANCE BY LAW ENFORCEMENT OFFICERS .......................................... 203 INTRODUCTION............................................................................ 204

LISTENING DEVICES ACT 1984 (NSW) ...................................... 206

THE PROPOSED SURVEILLANCE ACT ...................................... 209

Who may apply for a warrant ......................................................... 209

 Offences for which a warrant may be sought................................. 211

Who should issue a warrant........................................................... 215

Grounds for determining whether a warrant may be granted......... 219

What a warrant should authorise ................................................... 220

Naming the persons who may use the device ............................... 231

Term of the warrant........................................................................ 235

 Contents of the warrant and the application for a warrant ............. 238

Single warrant to authorise the use of more than one device....... 244

Retrieval of a surveillance device after the expiry of the warrant... 246

Emergency warrants ...................................................................... 248

6. COVERT SURVEILLANCE IN THE PUBLIC INTEREST .........251

WHAT IS THE “PUBLIC INTEREST”? ...........................................253

The media and the public interest ..................................................256

Private investigators and the public interest...................................261

 Private rights and the public interest ..............................................262

THE AUTHORISATION PROCESS ...............................................264

The Western Australian Act............................................................266

The issuing authority ......................................................................269

Factors to consider in issuing a public interest authorisation .........271

What an authorisation should specify.............................................273

 Retrospective authorisation............................................................276

Public Interest Monitor....................................................................277 7.

 COVERT SURVEILLANCE IN EMPLOYMENT ........................281

THE USE OF SURVEILLANCE BY EMPLOYERS.........................282

Purpose of surveillance ..................................................................282

Types of surveillance......................................................................283

Objections to covert surveillance....................................................286

THE CURRENT REGULATORY FRAMEWORK ...........................287

The Workplace Video Surveillance Act 1998 (NSW)......................288

 Industrial relations legislation .........................................................291

Employment contracts....................................................................294

ADEQUACY OF CURRENT FRAMEWORK ..................................295

 OPTIONS FOR REFORM ..............................................................297

A similar expectation of privacy?....................................................297

Third parties....................................................................................298

REGULATION OF COVERT SURVEILLANCE..............................299

Permitted purpose ..........................................................................300

Covert performance monitoring......................................................303

Covert surveillance in toilets, change rooms and meal rooms ......304

The issuing authority ......................................................................306

The application ...............................................................................307

Granting a covert surveillance authorisation in the employment context..................................................................   …………………….308

 Contents of the authorisation..........................................................310

 Retrospective authorisation............................................................312

Warrants issued retrospectively..................................................... 249

PART FOUR: MECHANISMS FOR ENSURING ACCOUNTABILITY ......................................................... 313 8.
 ACCOUNTABILITY FOR COVERT SURVEILLANCE ............. 315
INTRODUCTION............................................................................ 316

REPORTING MEASURES FOR COVERT SURVEILLANCE....... 316

REPORTING TO THE ATTORNEY GENERAL............................. 317

 Reporting before a warrant has been issued ................................. 317

Reporting the results of surveillance pursuant to a warrant........... 320

REPORTING TO THE ISSUING AUTHORITY .............................. 326

RECORD-KEEPING AND INSPECTION....................................... 328

ANNUAL REPORT BY THE ATTORNEY GENERAL.................... 335

Reporting requirements in the LDA................................................ 335

Reporting provisions in comparable legislation.............................. 337

Submissions and response............................................................ 339 Conclusion ..................................................................................... 342

NOTIFYING THE SUBJECT OF SURVEILLANCE........................ 347

The current law .............................................................................. 347

 Alternative approaches .................................................................. 348

Submissions and response............................................................ 352 Conclusion ..................................................................................... 354 9.

DEALINGS WITH COVERT SURVEILLANCE INFORMATION  。。。。359

PUBLICATION AND COMMUNICATION OF INFORMATION OBTAINED BY THE CONDUCT OF SURVEILLANCE............. 。。。。。。。。。。。。。。。。。360

The law in other Australian jurisdictions......................................... 362 Conclusion ..................................................................................... 364

THE USE OF ILLEGALLY OBTAINED SURVEILLANCE MATERIAL AS EVIDENCE IN LEGAL PROCEEDINGS........... 369

 General admission of illegally obtained evidence .......................... 370

Discretion to exclude evidence ...................................................... 371

 Exclusionary rule............................................................................ 376
Conclusion ..................................................................................... 379

 INCIDENTALLY OBTAINED EVIDENCE....................................... 381
 Conclusion ..................................................................................... 382

PRE-TRIAL DISCLOSURE OF SURVEILLANCE EVIDENCE ...... 384

SUPPRESSING THE PUBLICATION OF SURVEILLANCE EVIDENCE.......... 387

A test for the use of the power to issue suppression orders ......... 391

The power to suppress names as well as evidence ...................... 393

The extent of the application of the power ..................................... 394

SECURITY AND STORAGE OF COVERT SURVEILLANCE MATERIAL.....................................................396
 DESTRUCTION OF SURVEILLANCE INFORMATION .................398

 The law in other Australian jurisdictions .........................................401

The law in foreign jurisdictions .......................................................403

Submissions and Response...........................................................404
Conclusion......................................................................................408 10.

BREACHES OF THE SURVEILLANCE ACT.......................413
 OVERVIEW ....................................................................................414

 Codes of practice............................................................................416

 CRIMINAL OFFENCES AND CIVIL BREACHES...........................417

Overt surveillance...........................................................................417

Covert surveillance.........................................................................418

Workplace surveillance...................................................................420

 COMPLAINTS AND REVIEW PROCEDURES ..............................423

 Overt surveillance...........................................................................423

Covert surveillance.........................................................................432

Workplace surveillance...................................................................434

SANCTIONS AND REMEDIES ......................................................440

Overt surveillance...........................................................................440

Covert surveillance.........................................................................449

Workplace surveillance...................................................................450

APPENDICIES APPENDIX A: Justice Adam’s dissent on participant monitoring...453

APPENDIX B: Submissions............................................................457

 TABLE OF LEGISLATION..............................................................459

 TABLE OF CASES.........................................................................478
BIBLIOGRAPHY.............................................................................483
INDEX.............................................................................................495

Terms of reference In a letter to the Chairperson of the New South Wales Law Reform Commission dated 2 July 1996, the Attorney General, the Hon J W Shaw QC, MLC, required the Commission to inquire into and report on the following matters: • the current scope and operation of the Listening Devices Act 1984 (NSW); • the need to regulate the use of visual surveillance equipment; and • any related matter. In undertaking this review the Commission should have regard to: • the protection of the privacy of the individual; • the views and interests of users of surveillance technology, including law enforcement agencies, private investigators, and owners of private premises, such as banks, service stations and shops; and • the use of surveillance technology in public places. In making this reference the Attorney draws the Commission's attention to the Government's proposals for the introduction of privacy and data protection legislation and to the current review of the issue of the regulation of workplace visual surveillance being conducted by the Department of Industrial Relations.

Participants Pursuant to s 12A of the Law Reform Commission Act 1967 (NSW) the Chairperson of the Commission constituted a Division for the purpose of conducting the reference. The members of the Division are: The Hon Justice Michael Adams His Honour Judge Jack Goldring* Professor Reg Graycar Vice President Iain Ross (* denotes Commissioner-in-Charge) Officers of the Commission Executive Director Mr Peter Hennessy Legal Research and Writing Ms Gillian Ferguson Ms Catherine Gray Ms Donna Hayward Mr Ani Luzung Ms Judy Maynard Research Assistance Ms Laurie Berg Ms Tamara Pallos Ms Kaye Sato Librarian Ms Dita Kruze Desktop Publishing Ms Rebecca Young Administrative Assistance Ms Wendy Stokoe

EXECUTIVE SUMMARY The term “surveillance” is a colourful one, often giving rise to exotic images involving hidden microphones, telephoto lenses and perhaps even elaborate spy rings. Two of the many preconceptions people may have concerning surveillance, fostered largely by action/science fiction films and novels, are that it is conducted only with expensive, highly technical equipment, and happens only to people involved in criminal or other underworld activity. Increasingly, however, what was once the realm of science fiction is becoming fact. The technological boom in recent times, coinciding with the development and growth of the internet and e-mail systems, has made surveillance equipment more affordable and available than ever before. All of us, at some time in our lives, are affected by surveillance. Most people are familiar with day-to-day surveillance: they are subject to it in banks, at service stations, on railway platforms. These particular examples are of the unconcealed use of visual surveillance equipment, most commonly by means of a closed circuit television (CCTV) system. Surveillance today, however, can take forms which many would find surprising, and may be carried out, enhanced or recorded by a staggering array of devices, such as: s  binoculars and telescopes; s  listening devices or “bugs”; s  video cameras; s  audio-visual devices; s  computers; s  tracking devices; s  biometric identification systems, which use personal characteristics (such as retina or fingerprints, palm verification, voice and facial recognition, and signature verification) to verify identity; and

s  various technologies (such as x-ray imaging) developed to detect concealed weapons.1 Surveillance is conducted routinely by law enforcement officers, private investigators, employers, the media, and private individuals, for diverse purposes: crime prevention and detection, protection of private property, the performance of employees and investigating matters of public interest, to name but a few. Despite the range of surveillance equipment and the myriad ways in which it may be used, there is currently very little in the way of legislative regulation of surveillance: only the general covert use of listening devices,2 and the covert use of video surveillance in the workplace,3 has received any specific legislative recognition in New South Wales.4 There is no existing regulation of overt surveillance. While surveillance is often legitimate and beneficial, it is also open to abuse and may present a significant intrusion into personal privacy. The Commission is of the view that, in recommending a broad-based system of regulation for surveillance, personal privacy should be the paramount concern. Intrusions into it by way of surveillance may sometimes be necessary, but should be supported by clear rules and only occur when justified as being for the greater public benefit. The recommendations in this Report would, if implemented, provide New South Wales with an extremely comprehensive system of surveillance regulation. The Commission recommends the introduction of a new Surveillance Act which, among other things, would replace the Listening Devices Act 1984 (NSW) and the Workplace Video Surveillance Act 1998 (NSW). In making its recommendations, the Commission takes the approach that, in order to be optimally effective, any new legislation designed to 1.

govern surveillance should be as broad in scope as the nature of surveillance itself. The legislation should not be device specific to ensure that the law is not outpaced by technological developments. As a result, any device used to conduct surveillance (according to the definition recommended by the Commission) would be caught by the terms of the proposed Act. Surveillance should be defined as: the use of a surveillance device in circumstances where there is a deliberate intention to monitor a person, a group of people, a place or an object for the purpose of obtaining information about a person who is the subject of the surveillance.5 The Commission is of the view that the broad approach reflected by this definition avoids the arbitrary gaps and anomalies that characterise existing surveillance laws, and extends privacy protection to as wide a range of activity as reasonably possible. The Commission’s recommended regime includes surveillance conducted overtly (ie with the knowledge of the person being monitored) or covertly. It covers surveillance regardless of where it is conducted (both public and private places are covered,6 as well as the workplace7), or who it is conducted by (law enforcement officers, employers, private investigators, the media, and any person conducting surveillance in the public interest are all included in the proposed legislative regime). The Commission’s recommended regime will also cover aspects of internet and e-mail surveillance8 and data surveillance.9 Under the Commission’s recommendations, surveillance should be considered to be overt where adequate notice is given to the subject prior to, or simultaneously with, the occurrence of the surveillance. Notice would be proven where there are clearly visible signs or other warnings, such as audio announcements etc, that are widely understood and indicate that surveillance is, or may be, occurring.10 Where surveillance of employees is conducted by an employer, the Commission recommends that an additional notice requirement should apply in order for the surveillance to be considered overt, due to the added rights and responsibilities inherent in the employer/employee relationship.11 Surveillance conducted in circumstances that do not meet these notice requirements would be considered to be covert. So far as overt surveillance is concerned, the Commission recommends that this should be regulated flexibly, requiring adherence to eight legislative principles to be supplemented by codes of practice for those conducting a significant amount of overt surveillance. The principles are as follows: 1. Overt surveillance should not be used in such a way that it breaches an individual’s reasonable expectation of privacy. 2. Overt surveillance must only be undertaken for an acceptable purpose. 3. Overt surveillance must be conducted in a manner which is appropriate for purpose. 4. Notice provisions shall identify the surveillance user.

5. Surveillance users must be accountable for their surveillance devices and the consequences of their use. 6. Surveillance users must ensure all aspects of their surveillance system are secure. 7. Material obtained through surveillance to be used in a fair manner and only for the purpose obtained. 8. Material obtained through surveillance must be destroyed within a specified period.12 Failure to comply with the principles would expose those conducting overt surveillance to the threat of a civil action under the proposed surveillance legislation.13 Since covert surveillance is conducted without the knowledge of the subject, and is thereby more intrusive than surveillance conducted overtly, it should be regulated more stringently. The Commission recommends that the approval of an independent arbiter should have to be obtained before any covert surveillance may occur under the proposed Surveillance Act. In circumstances where such prior approval is not possible or practicable, it may, where appropriate, be obtained retrospectively. The Commission has isolated three main areas where covert surveillance may legitimately be conducted. Those are law enforcement, in the course of employment, and in the public interest.14 s  Covert surveillance by, or on behalf of, law enforcement officers should be regulated by a warrants procedure similar to that currently operating in the Listening Devices Act 1984 (NSW), with applications made to and warrants issued by “eligible judges” in the courts system.15

s  Covert surveillance by, or on behalf of, employers should be authorised by members of the Industrial Relations Commission.16 s  Covert surveillance conducted in the public interest by anyone other than law enforcement officers or employers (or people acting on their behalf), must be authorised by an appropriate issuing authority, being either members of a court or a tribunal.17 The proposed Surveillance Act should also specify measures to promote accountability for the conduct of covert surveillance and the use of material obtained as a result.18 Breach of the provisions of the proposed Surveillance Act regarding covert surveillance would give rise to a criminal offence. In addition, liability for a civil action resulting in damages or other appropriate remedies may be incurred as a result of a breach of the Act.19

See ch 1 for more details of the nature, type, uses and origins of surveillance.

2. Listening Devices Act 1984 (NSW).

3. Workplace Video Surveillance Act 1998 (NSW).

4. See para 1.36-1.58 for a discussion of the current statutory and common law regulation of surveillance in New South Wales and other jurisdictions.

5. The term “monitoring” for the purpose of the Commission’s recommended definition includes “listening to, watching, recording, or collecting (or enhancing the ability to listen to, watch, record or collect) words, images, signals, data, movement, behaviour or activity”: see para 2.37-2.39.

6. See para 2.20-2.27 for a discussion of the public/private distinction. A private place also includes a private home: see para 2.51-2.55.

7. Although the Commission refrains from using the term “workplace”, preferring “employment” or “employment context”, as this emphasises that it is the relationship between the employer and employee that is the significant factor in determining the type of regulation that should apply, rather than the physical location of the workplace: see para 2.108-2.113 and ch 7

8. The recommendations concerning internet and e-mail surveillance are discussed at para 2.43-2.50. 9. The recommendations concerning data surveillance are discussed at para 2.68-2.76.

10. See para 2.78-2.79.

11. That is, that all employees must be notified in writing at least 14 days prior to the commencement of the surveillance: see para 2.80-2.82.

12. See ch 4 for more details of the regulation of overt surveillance.

13. See ch 10.

14. While the Commission acknowledges that covert surveillance conducted by, or on behalf of, law enforcement officers and employers has a public interest element, the term “public interest” is used in this context to refer to covert surveillance which can be justified in any circumstance outside law enforcement and employment: see ch 6.

15. See ch 5.

16. See ch 7.

17. See ch 6.

18. See ch 8 and 9.

19. See ch 10.

THE COMMISSION’S RECOMMENDATIONS Part One:

 Preliminary and Definitional Issues Chapter Two Recommendation 1 (page 55)

The proposed Surveillance Act should define “surveillance device” to mean any instrument, apparatus or equipment used either alone, or in conjunction with other equipment, which is being used to conduct surveillance.

 Recommendation 2 (page 58)

 The proposed Surveillance Act should define “surveillance” as the use of a surveillance device in circumstances where there is a deliberate intention to monitor a person, a group of people, a place or an object for the purpose of obtaining information about a person who is the subject of the surveillance.

Recommendation 3 (page 58)

The proposed Surveillance Act should define “monitor” (as used in the definition of surveillance) as listening to, watching, recording, or collecting (or enhancing the ability to listen to, watch, record or collect) words, images, signals, data, movement, behaviour or activity.

Recommendation 4 (page 71)

The proposed Surveillance Act should exempt from its scope surveillance conducted under a Commonwealth law.

Recommendation 5 (page 72)

The proposed Surveillance Act should regulate all surveillance activity within its scope, unless other New South Wales laws specifically exempt the operation of the surveillance legislation.

Recommendation 6 (page 76)

The random or overt collection, retrieval and matching of information on computer databases should be excluded from the scope of the proposed Surveillance Act.

Recommendation 7 (page 76)

 The covert use of a surveillance device to monitor data relating to particular individuals or groups, as it is entered into a technology system or stored on a database, should be regulated under the proposed Surveillance Act. Recommendation 8 (page 78) Data surveillance of employees conducted by employers, either overtly or covertly, should be regulated by the proposed Surveillance Act.

Recommendation 9 (page 79)

 The proposed Surveillance Act should define overt surveillance to be surveillance which occurs in circumstances where adequate notice of the surveillance has been given prior to, or simultaneously with, the occurrence of the surveillance.

Recommendation 10 (page 80)

For the purpose of Recommendation 9, adequate notice is proven to be given through any of the following or similar means: • signs which are clearly visible and widely understood (for example, by people from non-English speaking backgrounds and people with a disability); or • other warnings of the type of surveillance occurring, such as audio announcements or written notification (where practicable); and • surveillance equipment which is clearly visible and recognisable.

Recommendation 11 (page 81)

 Surveillance in the employment context should be considered overt if employees are provided with written notification of the intended surveillance at least 14 days (or, if the employer has obtained the consent of the employee to a lesser period of notice, that period) prior to its commencement. In the case of new employees, where surveillance has already commenced, surveillance in the employment context would be considered overt if they are provided with written notification of the surveillance at the time when an offer of employment is made.

Recommendation 12 (page 82)

 For the purposes of overt surveillance in employment, written notice should contain the following information: (a) the location of the surveillance; (b) the nature and capacity of the surveillance devices; (c) whether the surveillance will be continuous and, if not, the hours of operation; (d) the purpose of the surveillance; and (e) the person responsible for the conduct of the surveillance.

Recommendation 13 (page 85)

Any surveillance conducted in circumstances that fail to satisfy the notice requirements for overt surveillance should be considered to be covert for the purposes of the proposed Surveillance Act.

Recommendation 14 (page 94)

The proposed Surveillance Act should not contain participant monitoring provisions with regard to covert surveillance. Covert surveillance should be permitted only when justified and authorised in particular circumstances, regardless of whether the monitoring is conducted by a party or an outsider.

Recommendation 15 (page 96)

 In the proposed Surveillance Act, employment specific provisions should apply: (a) when an employer is undertaking surveillance of an employee on work premises; or (b) when an employer is undertaking surveillance of an employee not on work premises but for an employmentrelated purpose.

 Recommendation 16 (page 98)

 “Employer” and “employee” should be defined in the proposed Surveillance Act by reference to a contract of employment or apprenticeship, to which both are parties.

Part Two: Overt Surveillance Chapter 4 Recommendation 17 (page 172)

The use of overt surveillance otherwise than in accordance with the proposed Surveillance Act, should be unlawful. This will entail compliance with the overt surveillance principles (see paragraph 4.38 and following).

 Recommendation 18 (page 174)

In certain cases specified in the proposed Surveillance Act, surveillance will be regarded as overt, notwithstanding the absence of notification to potential surveillance subjects.

Recommendation 19 (page 178)

“Relevant surveillance users” (defined in the proposed Surveillance Act according to criteria such as the number of devices operated) should be required to formulate and act in accordance with a code of practice consistent with the overt surveillance principles. A relevant surveillance user should make its code available for perusal by any member of the public subjected to its surveillance.

Recommendation 20 (page 186)

 All public sector surveillance users, as well as all “relevant surveillance users” operating within the private sector, should maintain a register containing details of the number, types and locations of all their overt surveillance devices, together with any other details from time to time required by the Privacy Commissioner. Such registers should be available for inspection by the Privacy Commissioner at any time.

Recommendation 21 (page 189)

 Staff operating equipment in control rooms (or in similar circumstances) with which to conduct overt surveillance, should be licensed in accordance with the Security Industry Act 1997 (NSW). The Security Industry Act 1997 (NSW) should be amended to provide that “security activity” is defined as including the monitoring or operating of a surveillance device or system. Part Three: Covert Surveillance Chapter 5

Recommendation 22 (page 206)

 Law enforcement officers should be required to obtain a warrant in order to carry out covert surveillance. The provisions of the proposed Surveillance Act regulating covert surveillance by law enforcement officers should be based on Part 4 of the Listening Devices Act 1984 (NSW).

Recommendation 23 (page 211)

“Law enforcement officer” should be defined in the proposed Surveillance Act to include the Australian Federal Police, State and Territory police, the Australian Security Intelligence Organisation, the Independent Commission Against Corruption, the National Crime Authority, the NSW Crime Commission, Royal Commissions and the Police Integrity Commission. It should also include any office holder specifically empowered to enforce a particular law.

 Recommendation 24 (page 214)

 The proposed Surveillance Act should allow an application for a warrant to be made with respect to any offence.

Recommendation 25 (page 218)

 The proposed Surveillance Act should empower the Attorney General to declare Supreme Court judges as “eligible judges” for the purpose of deciding applications for surveillance warrants. The proposed Surveillance Act should also authorise the Attorney General to nominate District Court judges and Magistrates as “eligible judicial officers” who may exercise the functions of an “eligible judge”.

Recommendation 26 (page 220)

 In determining whether a warrant should be granted, the eligible judge should have regard to: • the nature of the offence in respect of which the warrant is sought; • the extent to which the privacy of any person is likely to be affected; • whether other investigative procedures have been tried but have failed; or other investigative procedures are unlikely to succeed or likely to be too dangerous to adopt in the particular case; or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative techniques; • the evidentiary value of any evidence sought to be obtained; and • any previous warrant sought or granted in connection with the same offence.

 Recommendation 27 (page 222)

 “Premises” should be defined in the proposed Surveillance Act to include any object, thing or place where the eligible judge, in the exercise of his or her discretion, authorises a device to be installed.

Recommendation 28 (page 224)

 The eligible judge should have the discretion to issue a warrant permitting surveillance of a particular person or thing without reference to specific premises if the applicant satisfies the eligible judge that such a warrant is justified in the particular circumstances, subject to any conditions which the eligible judge deems fit to impose.

 Recommendation 29 (page 225)

 The proposed Surveillance Act should contain a provision similar to section 16(3) of the LDA, expressly authorising entry by the warrant-holder onto authorised premises for the purpose of installation and retrieval of the surveillance device, notwithstanding that such entry might otherwise be unlawful.

 Recommendation 30 (page 226)

An eligible judge should have the power to authorise the warrantholder to enter upon any other premises as may be necessary for the purpose of gaining access to the premises where the surveillance device is to be installed and retrieved, notwithstanding that such entry might otherwise be unlawful.

Recommendation 31 (page 228)

An eligible judge should have the power to authorise entry to the relevant premises to enable the warrant-holder to repair, test, maintain, move and replace the surveillance device after it was installed, nothwithstanding that such entry might otherwise be unlawful.

Recommendation 32 (page 228)

If the warrant-holder exercises an authority given under the warrant to move a device to premises not specified in the warrant, the warrant-holder must report the move to the eligible judge as soon as reasonably practicable.

 Recommendation 33 (page 230)

 The eligible judge should have the power to authorise the warrant-holder to employ all reasonable means, not including force against a person, necessary in order to gain entry to premises where the surveillance devices are to be installed, retrieved, repaired, tested, moved, maintained or replaced, as well as other premises where the warrant-holder has been authorised to enter for those purposes, whether or not the means employed would otherwise amount to damage or trespass to property.

Recommendation 34 (page 231)

The proposed Surveillance Act should empower the eligible judge to authorise the use of electricity connected to the premises to power the surveillance device. 

Recommendation 35 (page 234)

 The person primarily responsible for the execution of the warrant should be named in the warrant. The eligible judge should have the power to authorise that person to seek whatever assistance is necessary to execute the warrant.

Recommendation 36 (page 235)

 The proposed Surveillance Act should contain a provision similar to section 20A(1) of the LDA permitting the use of assumed names or code names in a warrant.

 Recommendation 37 (page 235)

 The names of all persons who were involved in executing the warrant should be provided to the eligible judge as soon as reasonably practicable after the completion of the surveillance.

Recommendation 38 (page 238)

The period for which a warrant can be in force should be 30 days. Further warrants, each for a maximum period of 30 days, should be able to be applied for in respect of the same offence upon lodgement of a new application.

Recommendation 39 (page 239)

The warrant should specify: (a) the offence in respect of which the warrant is granted; (b) where practicable, the name of any person who is to be the subject of surveillance; (c) the period (being a period not exceeding 30 days) during which the warrant is in force; (d) the name of the person primarily responsible for the execution of the warrant; (e) the premises on which the surveillance device(s) are to be installed or used, except in cases where the eligible judge has determined that it is justified not to specify the premises; (f) the type(s) of surveillance device(s) to be used;

(g) any conditions subject to which the premises may be entered, or the surveillance device(s) may be used pursuant to the warrant; (h) any conditions subject to which any information obtained as a result of the surveillance may be used, released or published; and (i) the time within which the person authorised to use the surveillance device(s) pursuant to the warrant is required to report to the eligible judge and the Attorney General.

Recommendation 40 (page 240)

 Where a warrant authorises the installation of one or more surveillance devices, the eligible judge should have the power to authorise: (a) the retrieval of the surveillance device; (b) the repair, testing, movement, maintenance and/or replacement of the surveillance device; (c) entry onto the premises where the surveillance device is installed, and onto other premises, for the purpose of installation, retrieval, repair, testing, movement and/or replacement of the surveillance device; (d) the person executing the warrant to employ such means as is necessary and reasonable for the purpose of executing the warrant, not including force against a person; (e) the warrant-holder to seek whatever assistance is necessary to execute the warrant; and (f) the use of electricity to power the surveillance device(s). The eligible judge should also have the power to order retrieval of a surveillance device.

Recommendation 41 (page 243)

Except where the proposed Surveillance Act allows an application to be made by telephone or radio, applications for a covert surveillance warrant should be in writing supported by an affidavit attesting to the following: • the name of the person or organisation requesting the warrant and the name of any person acting, or making an application, on behalf of an organisation; • the names of all persons who will be involved in the execution of the warrant, or their codenames and the reasons for the use of codenames, and whether the assistance of other persons in the execution of the warrant is likely to be required; • if known, the identity of the person who will be the subject of the surveillance; • a general description of all surveillance devices intended to be used; • where the surveillance device will be installed and used, or, if it is not possible to nominate an exact location, why this is so; • the length of time (not exceeding 30 days) for which the applicant seeks that the warrant be in force; • details of any previous warrants sought or granted in connection with the same offence; and • evidence in support of the matters to which the legislation requires that the eligible judge, in determining the application, shall have regard.

Recommendation 42 (page 244)

 In the case of applications made by telephone or radio, the applicant should furnish the eligible judge, either orally or in writing as the eligible judge may direct, all the information which a written application is required to contain.

Recommendation 43 (page 244)

The eligible judge should have the discretion to require information in addition to that which is prescribed by the legislation, if it is deemed necessary to determining the application.

Recommendation 44 (page 246)

 The proposed Surveillance Act should permit one warrant to be issued authorising the use of more than one surveillance device, or a surveillance device which has more that one kind of function, provided that the warrant specify all devices which will be used in the law enforcement operation.

Recommendation 45 (page 248)

 The eligible judge should have the power to authorise or order retrieval of a device.

Recommendation 46 (page 248)

 If a device is capable of continuing to transmit information after the expiry of the warrant, then the warrant-holder must obtain permission from the eligible judge not to retrieve it. Recommendation 47 (page 249) The proposed Surveillance Act should contain a provision similar to section 18 of the LDA, but should include complaint by facsimile or other electronic means as methods by which an application for a warrant can be made under the proposed section.

Recommendation 48 (page 250) The proposed Surveillance Act should enable warrants to be applied for within 24 hours of the surveillance taking place and issued retrospectively to law enforcement officers where: • evidence of an offence is obtained by covert surveillance incidentally during the investigation, pursuant to a warrant, of another offence; or • it was not possible or practicable to obtain a warrant before conducting or continuing covert surveillance of an offence without prejudicing the investigation or endangering the officers or other parties involved. Chapter 6

Recommendation 49 (page 263)

 The proposed Surveillance Act should permit covert surveillance to be conducted in the public interest only when it is judged to be justified by an appropriate issuing authority. The proposed Surveillance Act should provide that anyone, apart from: • an employer in the course of an employment relationship; • a law enforcement officer in the course of his or her duty; or • anyone acting on behalf of an employer or a law enforcement officer in the above circumstances, may apply for authorisation to conduct covert surveillance in the public interest. This should include journalists, media organisations, private investigators and any other person.

Recommendation 50 (page 263)

The term “public interest” should be interpreted broadly by the issuing authority, and may include private rights and interests where appropriate.

Recommendation 51 (page 264)

 The Privacy Commissioner should develop guidelines to assist the issuing authority to determine the types of circumstances which may give rise to significant public interest concerns (see paragraph 6.11).

Recommendation 52 (page 271)

 The appropriate authority for issuing authorisations to conduct covert surveillance in the public interest should be either “eligible judges” or members of a tribunal such as the Administrative Decisions Tribunal. Regardless of which forum is considered to be most appropriate, the authorisation process should be accessible, affordable, expeditious and impartial.

Recommendation 53 (page 272)

 The proposed Surveillance Act should require an application for an authorisation to conduct covert surveillance in the public interest to contain information similar to an application for a warrant made by a law enforcement officer (see Recommendation 41).

 Recommendation 54 (page 272)

 In determining whether to grant an authorisation to conduct covert surveillance in the public interest, the issuing authority should have regard to: • the nature of the issue in respect of which the authorisation is sought; • the public interest (or interests) arising from the circumstances; • the extent to which the privacy of any person is likely to be affected;whether measures other than covert surveillance have been used or may be more effective; • the intended use of any information obtained as a result; and • whether the public interest (or interests) involved justifies the displacement of individual privacy in the circumstances.

 Recommendation 55 (page 275)

The proposed Surveillance Act should provide that an authorisation permitting covert surveillance in the public interest may specify: • the circumstances in respect of which the authorisation is granted; • where practicable, the name of any person who is to be the subject of surveillance; • the various public interests considered; • the period (being a period not exceeding 30 days) during which the authorisation may be in force; • that the surveillance device(s) may be repaired, tested, moved, maintained, replaced and/or retrieved during the duration of the authorisation; • the name(s) of the person(s) who may use the surveillance device(s), or who may repair, test, move, maintain, replace or retrieve the surveillance device(s), pursuant to the authorisation; • if practicable, the premises on which the surveillance device(s) are to be installed or used; • that entry onto premises for the purpose of installing, repairing, testing, moving, replacing or retrieving the surveillance device(s) is permitted, provided no trespass is committed; • the type(s) and number of surveillance device(s) to be used; • any conditions subject to which the surveillance device(s) may be used pursuant to the authorisation; any conditions subject to which any information obtained as a result of the use of the surveillance device(s) may be used, released or published; and • the time within which the person authorised to use the surveillance device(s) pursuant to the authorisation is required to report to the issuing authority and the Attorney General (see recommendation 68). An authorisation permitting covert surveillance in the public interest may enable the use of more than one device. Recommendation 56 (page 277) Covert surveillance in the public interest must be authorised by the appropriate body prior to the surveillance being conducted. Where such prior authorisation is not possible or practicable, it may be obtained retrospectively (preferably within 24 hours) following the conclusion of the surveillance. Chapter 7 Recommendation 57 (page 299) Surveillance in the employment context should be addressed as part of the general framework proposed by the Commission, with the creation of employment specific provisions where necessary. Recommendation 58 (page 303) An employer is only entitled to obtain a covert surveillance authorisation if: (a) unlawful activity on work premises is reasonably suspected; (b) employment-related unlawful activity is reasonably suspected; or (c) serious misconduct justifying summary dismissal is reasonably suspected.

Recommendation 59 (page 304)

 There should continue to be an express prohibition on the use of covert surveillance by employers for the purpose of monitoring employee performance. Recommendation 60 (page 305) Covert surveillance of employees by employers in toilets, showers and change rooms should be prohibited.

 Recommendation 61 (page 306)

When considering an application by an employer for a covert surveillance authorisation that will involve surveillance in recreational or meal rooms, regard must be had to the employees’ heightened expectation of privacy.

Recommendation 62 (page 307)

Applications by employers for covert surveillance authorisations should be determined by an Industrial Magistrate or a Judicial Member of the Industrial Relations Commission.

Recommendation 63 (page 308)

The current provisions governing an application by an employer for a covert surveillance authority should be continued. Accordingly, an application by an employer for a covert surveillance authorisation must be in writing, supported by an affidavit, and contain the following information: (a) the grounds the employer or employer’s representative has for suspecting that a particular employee is or employees are involved in unlawful activity or serious misconduct; (b) whether other managerial or investigative procedures have been undertaken to detect the unlawful activity or serious misconduct and if so, what was the outcome;  (c) who and what will regularly or ordinarily be in view of the cameras; (d) the dates and times during which the covert surveillance is proposed to be conducted; and (e) the licensed security operator who will oversee the conduct of the covert surveillance operation. The issuing authority should have the power to seek further information.

Recommendation 64 (page 310

) In determining whether to grant an authorisation to conduct covert surveillance in the employment context, the issuing authority must have regard to: (a) the matters listed in the application; (b) the extent to which the privacy of an employee or employees is likely to be affected; and (c) the extent to which the privacy of a third party or third parties is likely to be affected. When considering an application by an employer for a covert surveillance authorisation that will involve surveillance in recreational or meal rooms, the issuing authority must have regard to the employees’ heightened expectation of privacy. The issuing authority must be satisfied that the application shows that reasonable grounds exist to justify its issue.

 Recommendation 65 (page 311)

 An authorisation permitting covert surveillance in the employment context should specify: (a) the purpose for which the authorisation is granted; (b) the licensed security operator who is to oversee the conduct of the surveillance; (c) where practicable, the name of any person who is to be the subject of surveillance; (d) the period (being a period not exceeding 30 days) during which the authorisation may be in force; (e) that the surveillance device(s) may be repaired, tested, moved, maintained, replaced and/or retrieved during the period that the authorisation is in force; (f) if practicable, the premises on which the surveillance device(s) are to be installed or used; (g) the type(s) and number of surveillance device(s) to be used; (h) any conditions on the use of the surveillance device(s); (i) any conditions on the use, release or publication of any information obtained as a result of the use of the surveillance device(s); and (j) the time within which the person authorised to use the surveillance device(s) is required to report to the issuing authority and the Attorney General.

 Recommendation 66 (page 312)

 Where covert surveillance in an employment context is commenced prior to obtaining authorisation, the employer must apply for authorisation as soon as practicable following the commencement. An application for retrospective authorisation must specify why covert surveillance was commenced prior to obtaining an authorisation.

Part Four: Mechanisms for Ensuring Accountability Chapter 8 Recommendation 67 (page 320) The proposed Surveillance Act should not require an applicant for a warrant or authorisation to notify the Attorney General of the application, subject to the following: • the issuing authority must notify the Attorney General when an application raises an issue of legal professional privilege; and • the issuing authority may notify the Attorney General or any other person of an application, if the issuing authority deems it appropriate to do so in the circumstances.

 Recommendation 68 (page 325)

The proposed Surveillance Act should require every holder of a warrant or public interest authorisation or employment authorisation to make a report in writing to the Attorney General stating whether or not the surveillance device was used pursuant to the warrant or authorisation. The report should be made within the period specified in the warrant or authorisation, with provision for the Attorney General to approve an extension. If the surveillance device was used, the report should include the following information: (a) the name, if known, of any person whose private conversation or activity was recorded by the use of the surveillance device; (b) the period during which the surveillance device was used; (c) particulars of the types of premises in which the surveillance device was installed or the place where any device was used; (d) particulars of the general use made or to be made of any evidence or information obtained from the use of the device; (e) particulars of any previous use of a surveillance device with respect to the same offence or activity subject of the warrant or authorisation; (f) the type of surveillance device(s) used; (g) details of any conditions placed by the issuing authority on the exercise of the warrant or authorisation and whether or not those conditions were complied with; (h) the number of, and reasons for, any warrant or authorisation renewals; (i) whether the device was retrieved and, if not, the reasons why it was not retrieved; and (j) any other information requested by the Attorney General. In the case of surveillance conducted pursuant to a retrospective warrant or authorisation, the report should include, in addition to all the information specified above, information containing the particulars of the circumstances on which a retrospective warrant or authorisation application was based. Failure to comply with these requirements should constitute an offence.

 Recommendation 69 (page 327)

 The proposed Surveillance Act should require holders of warrants or public interest authorisations or employment authorisations to report to the issuing authority within the period specified in the warrant or authorisation, with provision for the issuing authority to approve an extension. The report should contain the same information required in the report to the Attorney General. Failure to comply with this requirement should constitute an offence.

Recommendation 70 (page 327)

 The proposed Surveillance Act should provide that the registry of the issuing authority should forward annually to the Attorney General such information about applications for warrants or authorisations as it deems appropriate, including: (a) the number of applications received, granted or refused, and the reasons for refusal; (b) the number of renewal applications received, granted or refused, and the reasons for refusal; (c) the number of retrospective warrants granted or refused, and the reasons for refusal; and (d) any discrepancies the court may have noticed between the affidavit supporting a warrant application and the information provided by the warrant holder concerning the results of the surveillance.

 Recommendation 71 (page 328)

The proposed Surveillance Act should provide that the issuing authority: • may direct that any record of evidence or information obtained by the use of the surveillance device to which the report relates be brought before it; • may keep such record in its custody; and • may make an order that the evidence or information may be made available to such persons or organisations as the issuing authority directs.

Recommendation 72 (page 331)

The proposed Surveillance Act should provide that all law enforcement agencies, private individuals and organisations authorised to apply for either warrants or authorisations, should keep records pertaining to the use of surveillance devices. The records should include:

(a)    each application for warrants or authorisations; (b) a statement as to the result of the application; (c) the warrant or authorisation issued to the person or organisation; (d) copies of the reports on the warrant to the Attorney General and to the issuing authority; (e) particulars of each use by the person or organisation of the information obtained by the use of a surveillance device(s); (f) particulars of each occasion when the information was communicated to a person or organisation, not being a warrant-holder or authorisation-holder; (g) particulars of each occasion when, to the knowledge of the person or an officer of the agency or organisation, the information was given in evidence in legal proceedings; (h) details of instances when the activities of persons other than those named in warrants or authorisations were recorded; (i) particulars of all cases when surveillance devices were used without a warrant or authorisation, including details of the subjects, dates, times and places of the surveillance, the persons who used the devices and the reasons for their use; (j) particulars of persons whose private activities were monitored or recorded by the use of surveillance devices, but against whom no criminal proceedings had been instituted or were likely to be instituted; and (k) particulars of the destruction of the information in compliance with the provisions concerning destruction.

(b)   Recommendation 73 (page 332) The proposed Surveillance Act should provide that the inspecting authority (the Privacy Commissioner or Ombudsman) should be required to: (a) inspect the records of the relevant law enforcement agencies and private individuals or organisations for the purpose of ascertaining: • the accuracy of the entries in the records; • the extent of compliance with the requirements of the proposed surveillance legislation including, but not limited to, those concerning the use, communication or publication of surveillance information, storage and security of information, destruction of information; and • whether notice should be given to a subject of the surveillance; (b) report to the Attorney General about the result of inspections; and (c) do anything incidental or instrumental to the performance of any of the preceding functions. Recommendation 74 (page 333) The proposed Surveillance Act should provide that the inspecting authority may, at any time, inspect the records of the relevant agencies, organisations or individuals to ascertain compliance with the proposed Surveillance Act. The inspecting authority should inspect records of law enforcement agencies at least once during each financial year. Recommendation 75 (page 333) The proposed Surveillance Act should provide that the inspecting authority may, at any time, report the results of the inspection to the Attorney General and shall do so at least once a year and whenever requested to do so by the Attorney General.

(c)    Recommendation 76 (page 334) The proposed Surveillance Act should give the inspecting authority the power to: (a) enter, at any reasonable time, premises occupied by any relevant agency, organisation or individual, provided reasonable notice is given; (b) have full and free access, at reasonable times, to their records; (c) make copies of, and take extracts from, their records; and (d) require any person to give such information as the inspecting authority considers relevant to the inspection. Recommendation 77 (page 334) The proposed Surveillance Act should provide that the communication of surveillance information: • to the inspecting authority for purposes of inspection of records; and • by the inspecting authority to the Attorney General for purposes of complying with the reporting requirements should be exempted from the general prohibition on the communication or publication of surveillance information. The inspecting authority should ensure that the privacy of individuals to whom the surveillance information relates be respected at all times. Recommendation 78 (page 334) The office of the inspecting authority should be given sufficient resources to enable it to discharge effectively its duties under the proposed Surveillance Act.

(d)   Recommendation 79 (page 344) The proposed Surveillance Act should require the Attorney General to include, whenever possible, the following information in the annual report to Parliament: with respect to warrants for the use of surveillance devices: (a) the total number of applications for warrants, including the number of radio, telephone, facsimile or other electronic applications, which organisations made the requests and the number of applications that were granted, refused or withdrawn; (b) the number of applications for retrospective warrants, by whom they were made and the number of those that were granted, refused or withdrawn; (c) the number and type of offences for which warrants were issued, and the number of warrants issued for each type of offence; (d) the number of each type of surveillance device used; (e) the average period of time each warrant was in force; (f) the number of renewal applications received, granted, refused or withdrawn; (g) the number of warrants authorising the installation of devices in premises, an indication of the type of premises where devices were installed and the number of warrants authorising surveillance of a particular individual; (h) the number of warrant applications requesting entry to premises and the number of warrants granted, refused or withdrawn; (i) the number of warrants issued specifying conditions or restrictions and the type of conditions or restrictions applied; (j) the number of devices not removed following the completion of surveillance and the reasons why the devices were not removed;

(e)   (k) the general use to which information obtained pursuant to surveillance devices has been put, including the number of arrests, prosecutions and convictions in which the information was used; and (l) the annual cost of the covert use of surveillance devices by the different law enforcement agencies; with respect to public interest authorisations for the use of surveillance devices: (a) the total number of applications for public interest authorisations, including the number of radio, telephone, facsimile and other electronic applications, the types of organisations that made the requests and the number of applications that were granted, refused or withdrawn; (b) the number of applications for retrospective authorisations and the number of those that were granted, refused or withdrawn; (c) the number of each type of surveillance device used; (d) the average period of time each authorisation was in force; (e) the number of renewal applications received, granted, refused or withdrawn; (f) the number of authorisations issued specifying conditions or restrictions, and the type of conditions or restrictions applied; (g) the number of devices not removed following the completion of surveillance and the reasons why the devices were not removed; and (h) the general use to which information obtained pursuant to the surveillance has been put; with respect to employment authorisations for the use of surveillance devices: (a) the total number of applications for employment authorisations, including the number of radio, telephone, facsimile and other electronic applications and the number of applications that were granted, refused or withdrawn; (b) the number of applications for retrospective authorisations and the number of those that were granted, refused or withdrawn; (c) the number of each type of surveillance device used; (d) the average period of time each authorisation was in force; (e) the number of renewal applications received, granted, refused or withdrawn; (f) the number of authorisations issued specifying conditions or restrictions, and the type of conditions or restrictions applied; (g) the number of devices not removed following the completion of surveillance and the reasons why the devices were not removed; and (h) the general use to which information obtained pursuant to the surveillance has been put; and generally: (i) the extent of compliance with the requirements of the proposed Surveillance Act including, but not limited to, those concerning the keeping and inspection of records, the use, communication or publication of surveillance information, storage and security of information and destruction of information; (j) the number of notifications to the subject of the surveillance; (k) a general account of the extent to which “incidental” information is obtained and used, including, for example, information relating to the commission of an offence by a person not identified in the warrant or authorisation was obtained as a result of the authorised use of a surveillance device; (l) details of breaches of the proposed Surveillance Act, including actions taken, such as criminal, civil or disciplinary proceedings; (m) any changes to the proposed Surveillance Act during the year in review; (n) comparative statistics from previous years; and (o) any general comments on the operation of the proposed Surveillance Act.

Recommendation 80 (page 356)

 The proposed Surveillance Act should provide that where a surveillance device has been used to record the private conversation or activity of a person, the issuing authority may: • direct the person or organisation which used the device to supply to the subject of the surveillance, within a period specified by the issuing authority, such information regarding the use of the device as the issuing authority may specify, including details about the surveillance such as the date, time, place and type of devices used; • upon motion, make available to the subject for inspection such portions of the recorded private conversation or activity, applications for the warrant or authorisation and the warrant or authorisation as the issuing authority determines to be in the interest of justice; and • either upon the recommendation of the inspection authority or on its own motion, direct that notice is required to be given, if satisfied that notice is necessary under the circumstances. Theissuing authority must give the person or organisation who will be required to give notice an opportunity to be heard on the matter. Failure to comply with a direction to give notice should constitute an offence.

Chapter 9

 Recommendation 81 (page 367) The proposed Surveillance Act should contain a general prohibition on the publication or communication of all information obtained as a result of the conduct of surveillance, whether the surveillance has been authorised or not, subject to the following exceptions. The prohibition should not apply where the communication or publication of the information is made:

by a law enforcement officer: • to another law enforcement officer for the purpose of investigating or prosecuting an offence; • to the DPP or other prosecuting officer for the purpose of prosecuting an offence; or • is otherwise made in the performance of his or her duty; (b) in the course of, or for the purposes of, legal proceedings, including proceedings for the prosecution of offences, bail proceedings and those involving confiscation or forfeiture of property in relation to an offence; (c) in the course of, or for the purposes of, investigations or criminal, civil or disciplinary proceedings related to any violation of the proposed Surveillance Act; (d) in the belief based on reasonable grounds that it was necessary in connection with an imminent threat of serious violence to persons, or of substantial damage to property; (e) with the consent of all of the parties to the conversation or activity. Breach of this provision should be an offence.

Recommendation 82 (page 369)

The proposed Surveillance Act should provide that when a public interest or employment authorisation is made, the order must specify the purposes for which the information obtained though the conduct of surveillance may be used and the circumstances under which the information may be published or communicated. Breach of the terms of the authorisation should constitute an offence. The proposed Surveillance Act should provide that the issuing authority may authorise, at the completion of the surveillance, the use of information obtained by the surveillance for a purpose other than that specified in the authorisation.

Recommendation 83 (page 380) The admission of evidence obtained in violation of the proposed Surveillance Act should be governed by the Evidence Act 1995 (NSW) and the general law on evidence. Recommendation 84 (page 383) The proposed Surveillance Act should provide that where a private conversation or activity has inadvertently or unexpectedly come to the knowledge of a person as a result of the conduct of surveillance pursuant to a warrant or authorisation: (a) evidence of the conversation or activity; and (b) evidence obtained as a consequence of the conversation or activity may be given by that person in any criminal proceedings even if the warrant or authorisation was not issued for the purpose of allowing that evidence to be obtained. This should be subject to the proviso that such evidence will not be admissible if the application upon which the warrant or authorisation was granted was not, in the opinion of the court, made in good faith. Recommendation 85 (page 396) The proposed Surveillance Act should provide that any court, in any proceedings where evidence obtained through the conduct of surveillance is relevant or admitted in evidence, has the power to suppress the publication of reports of any part of the proceedings, where such publication would create a substantial risk of prejudice to the administration of justice, either generally, or in relation to specific proceedings (including the proceedings in which the order is made). The power should apply in both civil and criminal proceedings and should extend to suppression of publication of the evidence as well as material which would lead to the identification of parties and witnesses involved in proceedings before the court. Breach of a suppression order should constitute a criminal offence.

Recommendation 86 (page 398)

 The proposed Surveillance Act should provide that a person who has obtained material through the conduct of surveillance must ensure that the material and all copies, extracts, summaries or reports of it must be kept in a secure place that is not accessible to people who are not entitled to deal with it. Breach of this requirement should be an offence.

Recommendation 87 (page 409)

The proposed Surveillance Act should provide that every person who obtains information through the conduct of surveillance is required to destroy the information and any record of it as soon as it appears that none of the information directly or indirectly relates to the commission of an offence. The proposed Surveillance Act should also provide that every person who obtains information through the conduct of surveillance that relates wholly or partly to the commission of an offence is required to destroy the information and any record of it as soon as it appears that no investigations or proceedings will be taken in which the information would be likely to be relevant. The requirements in these provisions should apply in all cases where information is obtained through the conduct of surveillance, whether the surveillance is authorised or not. These provisions should be subject to three provisos: (1) The information should not be destroyed if the person who obtained it is notified that it may be required in criminal, civil, administrative or disciplinary proceedings in connection with the breach of the proposed Surveillance Act. In such case, the information should be destroyed as soon as the proceedings are terminated or it becomes clear that none of them will proceed.

(2) Where the information was gathered under the authority of a public interest or employment authorisation, the information and every record of it should be destroyed as soon as it appears that: • the material is not likely to be relevant or useful to the purpose for which the authorisation was issued; or • the purpose for which the authorisation was issued has been accomplished. (3) A person who was the subject of surveillance need not destroy the information about him or her obtained as a result of the surveillance and which is in his or her possession unless the information affects or concerns another person. Information obtained through the conduct of surveillance should not be retained for a period of more than 5 years, unless it remains relevant as provided in the preceding paragraphs. Where information is stored for such length of time, the relevant organisation should conduct periodic reviews to confirm that the justification for its retention remains valid. The proposed Surveillance Act should provide that the requirements to destroy surveillance information do not apply to material which has been received into evidence in legal proceedings. Breach of these provisions should constitute an offence.

Chapter 10

 Recommendation 88 (page 418)

 A breach of an overt surveillance provision of the proposed Surveillance Act should give rise to civil liability.

Recommendation 89 (page 420

) A breach of a covert surveillance provision of the proposed Surveillance Act should constitute a criminal offence.

 Recommendation 90 (page 423

) A breach of a provision of the proposed Surveillance Act in the workplace should constitute either a civil breach, if the surveillance was overt, or a criminal offence, if the surveillance was covert. Recommendation 91 (page 428) A complaint relating to a breach of an overt surveillance provision of the proposed Surveillance Act should be made to the Privacy Commissioner.

Recommendation 92 (page 428)

The proposed Surveillance Act should give standing to make a complaint to the Privacy Commissioner to the following: • a person affected to some degree by the conduct of the surveillance; and • where the surveillance has taken place in the workplace, an industrial organisation on behalf of the employee(s) who have been affected by the conduct of surveillance.

Recommendation 93 (page 429)

Where the Privacy Commissioner dismisses or declines to entertain a complaint for any reason, the complainant should be able to require the Privacy Commissioner to refer the complaint to a specialist division of the Administrative Decisions Tribunal.

Recommendation 94 (page 429)

 The Privacy Commissioner should, in the first instance, conciliate a complaint. Where a complaint remains unresolved 12 months after the date of lodgement of the complaint: • either party to the complaint should be able to make a request in writing to the Privacy Commissioner to refer the matter to a specialist division of the Administrative Decisions Tribunal for hearing; • the Privacy Commissioner should be required to refer the complaint within 28 days of such a request, unless the Privacy Commissioner believes the complaint can be conciliated; • where the complainant objects to the referral of the complaint and the Privacy Commissioner is satisfied that the complaint cannot be conciliated, the complaint should lapse.

Recommendation 95 (page 429)

 The Privacy Commissioner should have the power, of his or her own motion, to conduct inquiries and initiate investigations into surveillance related matters, including breaches, or threatened breaches, of the proposed Surveillance Act. Recommendation 96 (page 430) An agreement reached pursuant to conciliation should be enforceable by the Privacy Commissioner.

Recommendation 97 (page 430)

The Privacy Commissioner should have the power to decide not to proceed with a complaint where: • the dispute has been settled or resolved by agreement between the parties; • the complainant, or person on whose behalf the complaint was made, does not wish to proceed with the complaint; or the complainant has allowed the complaint to remain inactive for an extended period of time or abandoned the complaint.

 Recommendation 98 (page 430)

The Privacy Commissioner should have the power to refer a complaint to the Administrative Decisions Tribunal at any time if he or she is satisfied that the nature of a complaint is such that it should be referred. The Privacy Commissioner should be able to exercise this power whether or not an investigation into the complaint has been undertaken or completed. The Privacy Commissioner should not refer a complaint without the consent of the complainant unless there are exceptional circumstances. The respondent should be given the opportunity to be heard on why a complaint should not be referred, but should only be able to resist referral on the grounds that the complaint has been settled by agreement and the respondent remains ready, willing and able to abide by the terms.

 Recommendation 99 (page 431)

 The proposed Surveillance Act should give standing to bring proceedings in the Administrative Decisions Tribunal to the following: • a person affected to some degree by the conduct of the surveillance; • the Privacy Commissioner, including in a representative capacity; and • where the surveillance has taken place in the workplace, an industrial organisation on behalf of the employee(s) who have been affected by the conduct of surveillance.

Recommendation 100 (page 431) The Administrative Decisions Tribunal should have the power to grant the Privacy Commissioner leave to intervene on behalf of a complainant, where considered appropriate, in proceedings before it. Recommendation 101 (page 431) The Administrative Decisions Tribunal Act 1997 (NSW) should adopt a comprehensive set of procedural and machinery provisions, similar to the provisions contained in the Federal Court of Australia Act 1976 (Cth), to deal with the conduct of representative complaints under the proposed Surveillance Act. Recommendation 102 (page 432) The proposed Surveillance Act should contain provisions similar to the Anti-Discrimination Act regulating procedural requirements in relation to complaints and the practices and procedures governing the conduct of proceedings. Recommendation 103 (page 433) Prosecution for a breach of a covert surveillance provision of the proposed Surveillance Act, or for breach of a provision which the proposed Surveillance Act specifies will give rise to a criminal offence, should be through the criminal justice system. Recommendation 104 (page 433) Offences against the proposed Surveillance Act generally should be prosecuted summarily, before a Local Court constituted by a Magistrate sitting alone, or before the Supreme Court in its summary jurisdiction. There should be provision within the proposed Surveillance Act for prescribed offences to be able to be prosecuted either summarily or on indictment. There should also be provision in the proposed Surveillance Act for summary proceedings to become committal proceedings if the court decides that the offence should be dealt with as an indictable offence, and no evidence has been led by the defendant. Recommendation 105 (page 434) A person aggrieved by the conduct of covert surveillance, or a breach of a provision giving rise to a criminal offence, should have access to the complaints and review processes available in relation to breaches of overt surveillance provisions, both generally and in the workplace. Recommendation 106 (page 438) A person aggrieved by a breach of the provisions of the proposed Surveillance Act in the workplace should have access to the complaints and review processes available for surveillance generally, or, if the person so chooses, should be able to pursue the complaint in the Industrial Relations Commission. Recommendation 107 (page 438) The Industrial Relations Act 1996 (NSW) should be amended to enable the Industrial Relations Commission to hear complaints under the proposed Surveillance Act. Recommendation 108 (page 438) The Industrial Relations Act 1996 (NSW) should be amended to provide that an issue that is the subject of proceedings under the proposed Surveillance Act before the Administrative Decisions Tribunal may, with the Commission’s leave, be the subject of proceedings before the Industrial Relations Commission. It should be a condition of granting leave that any relief received previously is not duplicated and that granting the relief sought would not cause undue prejudice to the respondent.