Join Hafta-Ichi to Research the article “Telstra phone records might reveal who decided to use security guards in Victoria’s hotel quarantine | Victoria”
Telstra is holding key information that could solve the mystery of who decided to use private security guards in hotel quarantine in Victoria, but says restrictions in the mandatory data retention legislation prevent the release of critical call records.
Last week, the inquiry heard in closing submissions it was a “creeping assumption” among various government department heads on 27 March – the day the program was announced and influenced by Victoria police’s preference – that led to security guards being used in the program.
Security guards, in part, were responsible for transmitting Covid-19 outside of quarantine and into the broader community that caused Victoria’s second wave, the inquiry heard.
But one remaining mystery was how the then Victoria police commissioner, Graham Ashton, knew before the program was announced by the prime minister that day at 2.15pm that security guards would be there to guard returning travellers.
In text messages from Ashton to the Australian federal police commissioner, Reece Kershaw, at 1.12pm on the day the program was announced, Ashton said: “Mate. Question. Why wouldn’t AFP Guard people at the Hotel??”
Then four minutes later he texted the head of the Victorian Department of Premier and Cabinet, Chris Eccles, about whether police would be guarding guests.
Six minutes later at 1.22pm, Ashton texted Kershaw again saying he now knew “private security will be used”.
Ashton alleged at the inquiry he had been unable to remember how he learned private security would be used.
“I don’t know for sure where I got that information from and the records – because I do not have incoming records primarily, I don’t know where I got that from.”
Eccles said his phone did not show evidence he called Ashton, nor could he remember talking to the then commissioner.
The counsel assisting the inquiry has not pinpointed exactly who made the decision – as all Victorian government officials and ministers, including the premier, pleaded ignorance over the decision – but Ashton’s incoming call records might allow the inquiry to see who Ashton had spoken to between his texts with Kershaw and Eccles and informed him about the use of private security.
A log of Ashton’s outgoing calls between 1pm and 6.45pm on 27 March do not show any calls being made until 1.24pm, when Ashton called the New South Wales police commissioner, Mick Fuller.
Under the Telecommunications (Interception and Access) Act passed by the federal parliament in 2015, telecommunications companies are required to retain records of all incoming and outgoing calls, IP addresses and other metadata for two years for law enforcement investigation purposes.
Telstra, as Victoria police’s phone provider, has a record of Ashton’s incoming calls, however, a Victoria police spokesman told Guardian Australia that the company refused to provide the records when requested.
“Victoria police has gone to great lengths to cooperate fully with the inquiry as we understand the critical importance of its work. Victoria police did contact Telstra and request incoming call data for the former chief commissioner’s phone but they advised correctly that under the Telecommunications (Interception and Access) Act 1979 they are unable to provide that data unless it relates to a criminal investigation or missing person investigation.”
But legal experts said there were multiple ways the call logs could have been legally accessed for the inquiry.
Monika Zalnieriute, a senior lecturer of law at Macquarie University, and Genna Churches, a PhD candidate at the University of NSW faculty of law and justice, have examined the data retention legislation closely.
The pair told Guardian Australia in a joint statement the refusal by Telstra to provide the logs “is not grounded in law at best, and is deliberately confusing, at worst, because there are quite a few ways for Victoria police to access Ashton’s data”.
They said one potential avenue allowed in the mandatory data retention legislation was for “protecting public revenue”.
“We cannot know if metadata was accessed under this category in similar circumstances in the past – there is no information because of the loose reporting requirements for enforcement agencies under the act and no reporting requirements under the Telecommunications Act,” they said.
While the mandatory data retention legislation does limit access to call records for criminal investigation or missing persons investigations, Victoria police has other powers it could use to obtain the data.
The Communications Alliance, which represents telecom companies including Telstra, revealed last year dozens of organisations have been using sections 313 and 280 of the Telecommunications Act to request such information outside of the data retention regime, if “the disclosure or use is required or authorised by or under law”.
Zalnieriute and Churches said section 280 of the Telecommunications Act could be used, and the hotel quarantine inquiry also had powers to compel the production of information under state legislation that Telstra could not refuse.
“This power does not hinge on specific offence, but it would require a so-called ‘notice to produce’. So it may require more work for the [inquiry], rather than a simple request or authorisation from Victoria police to Telstra,” they said.
Victoria’s shadow attorney general, Ed O’Donohue, this week called for the inquiry to seek the records from Telstra.
A spokesman for Telstra would not say whether it was willing to hand over the records to the inquiry directly, but said the company complied with the law.
“For many years we have responded to requests from intelligence agencies and law enforcement to provide data in a lawful, controlled and careful manner while making sure our customers’ privacy is protected and we comply with the relevant legislation.”
Outside of existing call records, it was unclear why Victoria police was not able to obtain access to the incoming call records extracted from Ashton’s iPhone.
Police used Cellebrite – an Israeli company that law enforcement around the world use to extract data from smartphones – to get the text messages and WhatsApp messages provided to the inquiry out of Ashton’s iPhone. Cellebrite’s extraction reports typically also contain incoming and outgoing call logs.
Victoria police did not respond to questions on why the extraction report did not include incoming call logs.
The inquiry is expected this week to publish final submissions from those called, ahead of the inquiry reporting back to the Victorian government on 6 November.
Source: The Guardian
Keyword: Telstra phone records might reveal who decided to use security guards in Victoria’s hotel quarantine | Victoria