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Report reveals five law enforcement surveillance warrant breaches

Queensland’s Crime and Corruption Commission (CCC) was responsible for one of five surveillance device warrant breaches by law enforcement agencies in 2021-22, including the recording or dissemination of legally privileged material.

Details of the breaches are contained in the Public Interest Monitor (PIM) annual report tabled in Parliament on Thursday, which reveal the CCC’s breach involved the circulation of details of a conversation subject to legal privilege.

The other four breaches – by the Queensland Police Service (QPS) – involved the removal of a surveillance device from a motor vehicle after a warrant had expired, and during a search by unsuspecting police who removed it in the belief it might have been a “concealment device”.

Queensland’s independent PIM is a senior lawyer responsible for appearing in court to test the validity of law enforcement agency applications for surveillance device warrants, retrieval warrants, approval for use of devices under emergency authorisations, covert search warrants and control and prevention detention orders.

PIM David Adsett is an accomplished and respected barrister who is assisted by two deputies, experienced lawyers Patricia Kirkman-Scroope and Gail Hartridge.

Mr Adsett and his deputies were appointed to their roles by the Governor in Council under section 324 of the Crime and Corruption Act 2001 and section 740 of the Police Powers and Responsibilities Act 2000.

In his 2021-22 report overview, Mr Adsett said he was responsible for monitoring compliance by law enforcement agencies with the legal obligations associated with the applications for and use of all invasive surveillance.

The reports says QPS made 45 applications for warrants using various devices – including 68 listening, 16 optical, 20 tracking and 19 combination devices. The CCC, in its 16 applications, requested four covert search warrants and nine for surveillance devices.

The PIM made written submissions in all surveillance device and covert search warrant applications brought by the QPS and the CCC.

“In several cases, prior to the application, there was discussion between the PIM and the lawyer representing the QPS or CCC applicant about either the form of the warrant or the sufficiency of the material to be presented in the application hearing,” the report says.

“On most occasions, the discussion resulted in satisfactory resolution of the issue. If an issue could not be resolved, it became the subject of submissions to the Judge or Magistrate during the application hearing and the issue was resolved by (them).

“No applications for warrants were opposed outright. Conditions sought were modified on several occasions. All applications were granted.”

However, the report noted five incidences in which the QPS or CCC had breached the warrant’s conditions.

“There were some concerns throughout the reporting period with respect to compliance with the conditions of warrants,” Mr Adsett’s report says.

“In the case of warrants issued to CCC officers, there was one breach of a surveillance device warrant condition. Before being reviewed, a CCC monitor circulated a synopsis of a conversation subject to legal professional privilege to investigators.

“Upon review two days later, it was confirmed that the conversation was subject to legal professional privilege. All recipients were directed to purge the email. … An audit was conducted to confirm the purging had occurred. All records of the conversation were quarantined from the investigation team.”

As a result, all CCC monitors “underwent a refresher legal training session with a lawyer to remind them of their obligations with respect to conversations containing legal content”.

With regards to the QPS breaches, one involved the recording of a legally privileged conversation between a lawyer and their client.

“A condition of a warrant required no conversations subject to legal professional privilege were to be monitored or recorded,” the report says.

“A conversation between a person and their lawyer occurred. It was not monitored but was inadvertently recorded. The recording was marked and not accessed during the investigation.”

In another breach, QPS removed a tracking device from a car without authorisation.

“In this instance the warrant had expired and no retrieval warrant had been issued,” the report says. “The vehicle was intercepted by police and searched. An officer removed the tracking device during the search, suspecting it was a concealment device or a component of a concealment device.

“The item was later analysed and identified as a tracking device.”

Read the report.

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