Our inspections Role
Monitoring and inspections
The Ombudsman has statutory responsibility for inspecting the records of law enforcement and other enforcement agencies in relation to the use of covert powers. We inspect records relating to:
- telecommunications interceptions
This section describes the Ombudsman’s role in inspecting telecommunications interceptions records of the Australian Federal Police, Australian Crime Commission and the Australian Commission for Law Enforcement Integrity.
- stored communications
This section describes the Ombudsman’s role in inspecting records relating to access to stored communications by Commonwealth, state and territory law enforcement agencies.
- surveillance devices
This section describes the Ombudsman’s role in inspecting records relating to use of surveillance devices by Commonwealth, state and territory law enforcement agencies.
- controlled operations
This section describes the Ombudsman’s role in inspecting records relating to covert operations carried out by the Australian Federal Police (including ACT Policing), Australian Crime Commission and the Australian Commission for Law Enforcement Integrity.
The Ombudsman is also responsible for:
- reviewing exercise of coercive information-gathering powers by the Director of Fair Work Building & Construction
This section describes the Commonwealth Ombudsman’s review of the use of examination notices and the conduct of examinations by the Director of Fair Work Building & Construction.
- Immigration detention inspections program
This section describes the Commonwealth Ombudsman’s immigration detention inspections program.
- reporting on people held in immigration detention
This section explains the Commonwealth Ombudsman’s obligation to provide reports to the Parliament about people held in immigration detention.
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 Crime Commission and Australian Commission for Law Enforcement Integrity twice a 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 take the message. Stored communications access occurs under warrant for the purposes of obtaining information relevant to an investigation.
Under Chapter 3 of the Telecommunications (Interception) Act 1979 (TIA Act), the Ombudsman is required to inspect the records of enforcement agencies that relate to the access of stored communications.
Our role is to ascertain the extent of compliance with the relevant provisions of the TIA Act by the Australian Federal Police, Australian Crime Commission, Australian Commission for Law Enforcement Integrity, Australian Customs and Border Protection Service, 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.
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 and the Australian Crime Commission and state and territory police forces.
A controlled operation is a covert operation carried out by law enforcement officers under 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 law enforcement agencies (the Australian Crime Commission, the Australian Federal Police and the 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 Crime Commission.
Reviewing exercise of coercive information-gathering powers by the Director of Fair Work Building & Construction
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 Commonwealth Ombudsman is required to review the exercise of this coercive information-gathering power by the Director and any person assisting the Director. The Commonwealth Ombudsman also reports to Parliament annually about the examinations conducted by the Director and the results of the Commonwealth Ombudsman’s reviews.
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.
Six-month review reports
DIAC and the Ombudsman have agreed that DIAC will provide a report to the Ombudsman every six months while a person is detained. The Ombudsman will then report back to the Secretary of DIAC on the appropriateness of the person’s detention arrangements.
The six-month review process runs parallel to the statutory process, whereupon the Ombudsman reports to the Minister on detentions of more than two years.
In practical terms, it provides faster feedback from the Ombudsman to DIAC and more frequent external scrutiny of individual detention cases.
Once a person has been detained for two years, they become subject to the statutory reporting regime outlined above.