CHAPTER 7Looking at the agencies

Monitoring and inspections activities menu: Expansion of Ombudsman’s monitoring and inspection role | Telecommunications interceptions | Surveillance devices | Controlled operations | Regional inspections

Expansion of Ombudsman’s monitoring and inspection role

The Ombudsman’s responsibility for inspecting the records of law enforcement and other enforcement agencies, and reporting on those inspections, expanded significantly in 2006 with changes to the Telecommunications (Interception and Access) Act 1979 (TIA Act). The amendment introduced a scheme by which enforcement agencies can obtain access to stored communications. An example of a stored communication is a text message or email electronically stored, usually temporarily, on a telecommunications carrier or internet service provider’s system.

The potential workload in identifying and inspecting the agencies that access stored communications is considerable. This office is not presently aware of any agency other than the AFP and the ACC having used the new provisions. As awareness grows of the potential benefits the provisions provide to other enforcement agencies, that situation may change.

The Ombudsman’s inspection role in regard to telecommunications interception has also been extended by the same legislative amendments to cover B-party warrants. A warrant of that type can be used to intercept a communication on a service belonging to a person who is not suspected of committing a serious offence, but who may communicate with the suspected offender via that service.

The statutory creation of ACLEI in 2006 expanded the inspection role of the Ombudsman further. ACLEI is authorised to exercise the same powers as the AFP and ACC to undertake telecommunications interception and access to stored communications under the TIA Act, to use surveillance devices under the Surveillance Devices Act 2004 (Surveillance Devices Act) and to carry out controlled (covert) operations under Part 1AB of the Crimes Act 1914 (Crimes Act).

The use of those powers by ACLEI will be subject to regular inspection and monitoring by the Ombudsman’s office. To date, ACLEI has not made use of these provisions, and consequently we did not conduct any inspection. ACLEI has indicated that this will not remain the case, although the number of times the provisions are utilised is expected to be low in comparison with the AFP and ACC.

The office’s monitoring and inspection role now includes:

• telecommunications intercepts by the AFP, ACC and ACLEI
  
• access to stored communications by the AFP, ACC, ACLEI and other enforcement agencies (such as the ATO and Australian Customs Service)
  
• use of surveillance devices by the AFP, ACC, ACLEI and by state and territory law enforcement agencies under Commonwealth legislation
  
• controlled (covert) operations undertaken by the AFP, ACC and ACLEI.

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Telecommunications interceptions

Under the TIA Act, the Ombudsman is required to inspect the records of the AFP, ACC and ACLEI twice a year to ensure the records are in compliance with the requirements of the Act. The Ombudsman is also expected to follow up any concerns about compliance or other aspects of record keeping disclosed by the inspection. A report on an inspection is then presented to the agency. An annual report is presented to the Minister on the results of inspections carried out each financial year. We presented a report on the results of inspections undertaken in 2005–06 to the Attorney-General in September 2006.

Two inspections of AFP and ACC records were carried out in 2006–07. The reports, which were provided to the agencies after each inspection, concluded that there was general compliance with the detailed record-keeping requirements of the TIA Act. A number of recommendations were made after each inspection to improve record keeping. The recommendations were generally accepted by both the AFP and the ACC, which have since implemented a range of measures to improve record keeping.

The record-keeping requirements in relation to the practical effects of the new stored communications provisions are not yet fully defined. Discussions are ongoing with the AFP, the ACC, the Attorney-General’s Department and telecommunications carriers to settle the processes required to ensure the integrity of the stored communications regime.

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Surveillance devices

The Surveillance Devices Act came into operation in December 2004. In 2005 we commenced a program of two inspections each year of AFP and ACC records. This inspection regime continued in 2006–07.

During 2006–07 we also inspected the records of two state law enforcement agencies, the South Australia Police and the New South Wales Police, under the Surveillance Devices Act. These were the only state police forces that used powers under the Act. As the number of records held by state police forces is far less than that of the AFP and the ACC, less frequent inspections will be conducted. It is expected that inspections of records relating to the Surveillance Devices Act held by state police will take place once every year.

A report on the results from the first bi-annual AFP and ACC inspections was provided to the Attorney-General in February 2007. Overall there was a satisfactory level of compliance by each agency. However, some compliance issues were identified, including a requirement for more detailed and consistent records on the use and communication of information obtained from a surveillance device. We have noted improvements in the record keeping and procedures of the AFP and the ACC in subsequent inspections.

‘Overall there was a satisfactory level of compliance by each agency.’

The results of inspections that were finalised earlier this year, including the inspections of the state police, have been passed to respective agencies and a report is due to be provided to the Attorney-General in August 2007.

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Controlled operations

Controlled operations can be broadly described as covert operations carried out by law enforcement officers under the Crimes Act for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious offence. These operations may also result in law enforcement officers engaging in conduct that would constitute an offence unless authorised by a controlled operations certificate.

The Ombudsman has an oversight role in ensuring that controlled operations are approved and records maintained in accordance with Part 1AB of the Crimes Act and that, in relation to these activities, information supplied by agencies in quarterly reports to the Minister and Ombudsman is adequate. At present, relatively low numbers of controlled operations are undertaken in the federal law enforcement arena.

During the year, we conducted four inspections of controlled operations records: two each at the AFP and the ACC. The inspections concluded that both agencies are generally complying with the requirements of the Crimes Act and providing comprehensive information in formal reports. We provided reports on the inspections to both agencies and a briefing to the Parliamentary Joint Committee on the ACC. An annual report for 2005–06 was presented to Parliament in December 2006.

Regional inspections

The Ombudsman also undertook an inspection of records relating to telecommunications interceptions, surveillance devices and controlled operations at the AFP’s Perth regional office in November 2006. The Perth office was found to be generally compliant with the record-keeping requirements of the relevant Acts.