The Ombudsman is responsible for overseeing approximately 20 law enforcement agencies and their use of certain covert and intrusive powers. The Ombudsman’s role is to provide assurance that agencies are using their powers as Parliament intended, and if not, hold the agencies accountable to the Government and the public. The National Assurance and Audit (NAA) does this by conducting inspections, which involves engaging with agencies, auditing relevant records, and testing agencies’ processes and systems. These inspections serve as an important community safeguard and assist agencies in applying sound administrative practices. Currently, NAA conducts inspections regarding:
Telecommunications interceptions are the recording of telephone conversations or other transmissions passing over a telecommunications network. Interceptions occur under warrant for the purposes of obtaining information relevant to an investigation.
Under Chapter 2 of the Telecommunications (Interception) Act 1979 (TIA Act), the Ombudsman is required to inspect the records of the Australian Federal Police, Australian Criminal Intelligence Commission and Australian Commission for Law Enforcement Integrity twice per year.
We do this to monitor compliance by these organisations with requirements to destroy restricted records, keep documents connected with the issue of warrants and keep records of interceptions. We may report any contraventions of the TIA Act that come to our notice in the course of the inspections. The Ombudsman’s office has provided oversight of the regime since 1988.
Stored communications typically refer to emails and text messages, but may include images or video, which are electronically stored by a telecommunications carrier or internet service provider. For example, an SMS message is stored by a carrier and sent when the intended recipient is able to receive the message. Stored communications access occurs under warrant for the purposes of obtaining information relevant to an investigation.
Under Chapter 3 of the TIA Act, the Ombudsman is required to inspect the records of enforcement agencies that relate to the access of stored communications once per year.
Our role is to ascertain the extent of compliance with the relevant provisions of the TIA Act by the Australian Federal Police, Australian Criminal Intelligence Commission, Australian Commission for Law Enforcement Integrity, Department of Immigration and Border Protection, Australian Securities Investment Commission, and State and Territory enforcement agencies.
The legislative controls and restrictions governing access to stored communications are generally set at a lower level than those relating to telecommunications interception, so access to them must be closely managed to comply with the TIA Act.
Telecommunications data (or metadata) is information held by a telecommunications carrier or internet service provider which provides certain details about a communication (the who, when, where and how) - but not the content or substance of a communication (the what). Further information about telecommunications data can be found at the Commonwealth Attorney-General's website here. Access to telecommunications data usually occurs under an internal (agency approved) authorisation, and in some cases under a warrant, for the purposes of obtaining information relevant to an investigation.
Under Chapter 4 of the TIA Act, the Ombudsman is required to inspect once per year the records of enforcement agencies accessing telecommunications data to assess compliance with the relevant provisions of the TIA Act.
There are currently 20 enforcement agencies subject to Chapter 4 oversight, including both Commonwealth, State and Territory agencies.
Surveillance devices are typically listening devices, cameras and tracking devices that are used to gather information for criminal investigations and for the safe recovery of children. The use of these devices usually requires a warrant.
Under the Surveillance Devices Act 2004 (Cth), the Ombudsman is required to inspect the records of Commonwealth, State and Territory law enforcement agencies that utilise powers under the Act, such as the Australian Federal Police, Australian Criminal Intelligence Commission and State and Territory police forces.
A controlled operation is a covert operation carried out by law enforcement officers under Part IAB of the Crimes Act 1914 (Cth) for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious offence. An authority to conduct a controlled operation permits, within limits, a law enforcement officer to engage in conduct that might otherwise constitute an offence.
Part IAB of the Crimes Act prescribes the process of applying for, granting, and ending an authority to conduct a controlled operation. Where a controlled operation is authorised, law enforcement officers and certain other persons are generally exempt from criminal liability arising in the course of such an operation, and are indemnified from civil liability.
The Ombudsman has the function of determining the extent to which the Australian Federal Police, Australian Criminal Intelligence Commission and Australian Commission for Law Enforcement Integrity comply with the requirements of Part IAB of the Crimes Act. The Ombudsman must also produce a report on the results of inspections, and brief the Parliamentary Joint Committee on the Australian Criminal Intelligence Commission.
The Fair Work (Building Industry) Act 2012 (FWBI Act) commenced on 1 June 2012. Under the FWBI Act, the Director of the Fair Work Building and Construction (FWBC) can investigate any act or practice by building industry participants that may contravene a designated building law, a safety net contractual entitlement or the Building Code. As part of an investigation, the Director may apply to a nominated presidential member of the Administrative Appeals Tribunal for an examination notice. The use of an examination notice is a coercive information-gathering power which requires the recipient of the notice to:
- give information to the Director; or
- produce documents to the Director; or
- attend before the Director to answer questions relevant to an investigation.
Under the FWBI Act, the Ombudsman is required to review the exercise of this coercive information-gathering power by the Director and any person assisting the Director. The Ombudsman also reports to Parliament annually about the examinations conducted by the Director and the results of the Ombudsman’s reviews.
This Australian Federal Police Act 1979 entrusts the Ombudsman with a special role in relation to the AFP:
- to determine, jointly with the AFP Commissioner, the particular kinds of conduct that are to belong to the various categories of conduct;
- to be consulted by the Commissioner on the appointment of investigators;
- to be entitled to have access to the records that are kept in relation to AFP conduct issues and practices issues; and
- to conduct annual reviews and ad hoc reviews of the operation of Part V of the Act.
The Ombudsman is also responsible for:
The Commonwealth Ombudsman’s program of inspection visits to immigration detention centres, including Christmas Island, and other places of immigration detention aims to:
- monitor the conditions and services provided to detainees
- assess whether those services comply with the immigration values and obligations of the Department of Immigration and Citizenship and the contracted service provider
- monitor the non-statutory refugee status assessment process
- deal with complaints from detainees
- interview detainees who have been detained for more than six months.
Two-year review reports
Under the Migration Act 1958 (Migration Act), the Ombudsman is required to review the cases of people held in immigration detention for two years or more.
Section 486N of the Migration Act requires the Department of Immigration and Citizenship (DIAC) to provide a report to the Ombudsman within 21 days of a person having been in detention for two years. If the person remains in detention, DIAC must provide new reports to the Ombudsman at six-monthly intervals.
The Ombudsman provides the Immigration Minister with an assessment of the appropriateness of the person’s detention arrangements under s 486O of the Migration Act.