Our inspections role

The Office of the Commonwealth Ombudsman (the Office) oversees around 20 law enforcement agencies. We inspect the use of certain covert and intrusive powers and ensure agencies are using their powers as Parliament intended. If not, we hold the agencies accountable.

We do this by conducting inspections, which involve:

  • working  with agencies
  • auditing records
  • testing agencies’ processes and systems.

These inspections serve as an important community safeguard and assist agencies in applying sound administrative practices.

Currently, the Office conducts inspections of:

Telecommunications interceptions

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. A warrant gives access to information relevant to an investigation.

Chapter 2 of the Telecommunications (Interception) Act 1979 , requires the Ombudsman to inspect twice per year the records of the:

  • Australian Federal Police
  • Australian Criminal Intelligence Commission
  • Australian Commission for Law Enforcement Integrity

We do this to check compliance by these organisations with requirements to:

  • destroy restricted records
  • keep documents connected with the issue of warrants
  • keep records of interceptions.

We may report any contraventions that come to our notice in the course of the inspections.

Stored communications

Stored communications refer to:

  • emails
  • text messages
  • images, or
  • video stored by a telecommunications carrier or internet service provider.

An example of stored communications is when a carrier stores an SMS message and sends it when the intended recipient is able to receive the message.

Stored communications access occurs under a warrant. Before obtaining a warrant, agencies can issue a preservation notice. This notice requires a carrier to keep stored communications for a period of time.

Chapter 3 of the Telecommunications (Interception) Act requires the Ombudsman to inspect the records of enforcement agencies that relate to the access of stored communications once per year.

Our role is to find out the extent of compliance with legislation by the:

  • Australian Federal Police
  • Australian Criminal Intelligence Commission
  • Australian Commission for Law Enforcement Integrity
  • Department of Home Affairs
  • Australian Securities Investment Commission
  • state and territory enforcement agencies.

The legislation governing access to stored communications is set at a lower level than telecommunications interception, so access to them must be closely managed to comply with the legislation.

Telecommunications data

Telecommunications data (or metadata) is information which provides certain details about a communication held by a:

  • telecommunications carrier, or
  • internet service provider.

This includes information about the, who, when, where and how, but not the content or substance of a communication (the what).

Read further information about telecommunications data at the Commonwealth Attorney-General's website here.

Access to telecommunications data usually occurs under an internal (agency approved) authorisation. In some cases access occurs under a warrant. This is for the purposes of obtaining information relevant to an investigation.

Chapter 4 of the  Telecommunications (Interception) Actrequires the Ombudsman once per year to:

  • inspect the records of enforcement agencies accessing telecommunications data to assess compliance.

There are currently 20 enforcement agencies subject to Chapter 4—oversight, including:

  • Commonwealth

state and territory agencies.

Surveillance devices

Surveillance devices:

  • gather information for criminal investigations
  • are used for the safe recovery of children.

They can include:

  • listening devices
  • cameras
  • tracking devices

The use of these devices usually requires a warrant.

The Surveillance Devices Act 2004 (Cth), requires the Ombudsman to:

  • inspect the records of Commonwealth and state and territory law enforcement agencies that use powers under the Act.

This includes:

  • Australian Federal Police
  • Australian Criminal Intelligence Commission
  • Australian Commission for Law Enforcement Integrity

state and territory police forces.

Controlled operations

A controlled operation is a covert operation carried out by law enforcement officers under Part IAB of the Crimes Act 1914 (Cth). This is carried out to get 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
  • ending an authority to conduct a controlled operation.

Under a controlled operation, law enforcement officers and certain other persons are:

  • generally exempt from criminal liability arising in the course of such an operation
  • indemnified from civil liability.

The Ombudsman has the function of determining the extent to which the Australian Federal Police, the Australian Criminal Intelligence Commission and the Australian Commission for Law Enforcement Integrity follow the requirements of Part IAB of the Crimes Act.

The Ombudsman must also:

  • produce a report on the results of inspections

brief the Parliamentary Joint Committee on the Australian Criminal Intelligence Commission.

Reviewing exercise of coercive powers by the Director of Fair Work Building & Construction

The Fair Work (Building Industry) Act 2012 commenced on 1 June 2012. Under the Fair Work (Building Industry) Act, the Director of the Fair Work Building and Construction can investigate any act or practice by building industry participants that may contravene a:

  • designated building law
  • 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
  • produce documents to the Director, or
  • attend before the Director to answer questions relevant to an investigation.

The Fair Work (Building Industry) Act requires the Ombudsman 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 every year about:

  • the examinations conducted by the Director
  • the results of the Ombudsman’s reviews.

The Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 replaced the Fair Work (Building Industry) Act on 1 December 2016. As a result, the Fair Work Building and Construction ceased operations on 1 December 2016 and transitioned to the Australian Building and Construction Commission. Our oversight function of the Director's use of coercive powers continues under the Building and Construction Industry (Improving Productivity) Act 2016, which commenced 2 December 2016.

Part V reviews under the Australian Federal Police Act 1979

This Australian Federal Police Act 1979 entrusts the Ombudsman with a special role in relation to the Australian Federal Police:

  • to determine, with the Australian Federal Police Commissioner, the particular kinds of conduct that are to belong to the various categories of conduct
  • the Australian Federal Police Commissioner consults the Ombudsman on the appointment of investigators
  • the Ombudsman has access to records in relation to Australian Federal Police conduct issues and practices issues
  • the Ombudsman conducts annual reviews and ad hoc reviews of the operation of Part V of the Act.

The Ombudsman is also responsible for:

Immigration detention inspections program

Our program of inspection visits to immigration detention centres aims to:

  • check the conditions and services provided to detainees
  • assess if services follow the values and obligations of the Department of Home Affairs and the contracted service provider
  • check the non-statutory refugee status assessment process
  • deal with complaints from detainees
  • interview detainees who have been in detention for more than six months.

Reporting on people held in immigration detention

Two-year review reports

The Migration Act 1958 requires the Ombudsman 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 Home Affairs 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, the department must provide new reports to the Ombudsman every six months.

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.