Law enforcement and integrity oversight
Our inspections involve:
- engaging with agencies
- inspecting records
- testing agencies’ processes and systems
- providing reports to agencies, including recommendations, suggestions and better practice suggestions
- reporting to Parliament
These inspections serve as an important community safeguard and public assurance measure. They also assist law enforcement and integrity agencies in applying sound and compliant administrative practices.
You can find out more about our inspections in our fact sheet on covert, intrusive and coercive powers.
Some examples of the nature and outcomes of our oversight are found in the case studies below.
The Ombudsman is also responsible for inspecting places of detention under the control of the Commonwealth.
This includes places of immigration detention and places of detention under the control of the Australian Federal Police and the Australian Defence Force.
Information about our work monitoring places of detention can be found at Monitoring Places of Detention - OPCAT.
Case studies
Chapter 3 of the Telecommunications (Interception and Access) Act 1979 (TIA Act) provides the legislative framework under which criminal law-enforcement agencies may covertly access stored communications under warranted powers.
During an inspection, we identified 2 instances where an agency’s stored communications warrants were issued by a Magistrate who did not have an appointment in force under s 6DB(1) of the TIA Act. We advised the agency it should quarantine all stored communications obtained under these warrants and seek legal advice regarding any use or communication of the accessed information. Subsequently, the agency identified an additional instance of this nature. The agency quarantined the stored communication for all 3 identified records and sought legal advice regarding the matters.
Moving forward, the agency created a working document with an up-to-date list of issuing authorities. This ensured warrant applications were presented to eligible issuing authorities.
Commonwealth, State and Territory enforcement agencies can access telecommunications data using powers provided in Chapter 4 of the Telecommunications (Interception and Access) Act 1979 (TIA Act).
During an inspection, we identified that most of the records held by the agency contained insufficient information demonstrating the authorised officer had regard whether interference with privacy was justified and proportionate when making the authorisation. We could not be satisfied on the face of the records that these authorisations were properly made.
We suggested the agency implement measures to:
- ensure authorised officers consistently document information relevant to their considerations when making a telecommunications data authorisation provide clear guidance to requesting officers to include sufficient information in requests for telecommunications data.
- In response, the agency created new request forms that prompt requesting officers to address each of the matters separately and introduced a mandatory text field for authorised officers to document their considerations.
Commonwealth and state and territory law enforcement agencies can use surveillance devices to gather information for criminal investigations, using powers provided in the Surveillance Devices Act 2004 (SD Act).
During an inspection, we identified that an agency had not complied with the destructions requirements in the SD Act, as the agency did not destroy protected information as soon as practicable. In this case, there was a significant delay after the destruction of material was authorised, until the agency destroyed the information.
We suggested the agency expedite an existing review of their destruction process, with a particular focus on completing the current process within required timeframes.
The agency has since advised that it would commence smaller destruction rounds, with the view of an agency-wide review of its destruction arrangements. We will focus on this area in our future inspections, noting the issue may take several years to resolve.
Where participants in a controlled operation engage in conduct, the authorising agency needs to keep sufficient contemporaneous records to demonstrate that the conduct engaged in is covered by a controlled operations authority. This ensures that participants are protected from criminal and civil liability, while also enabling us to assess compliance and exercise effective oversight.
At one agency, we identified significant record-keeping inconsistencies and issues impacting areas of high risk. These issues had not been identified by the agency’s internal quality assurance and vetting processes. We were concerned staff providing quality assurance were not provided sufficient information to identify instances of non-compliance.
The inconsistencies we identified indicated a systemic failure in the agency’s approach to maintaining records to demonstrate compliance. We recommended the agency establish effective quality assurance measures to ensure it could identify instances of non-compliance.
Following this recommendation, we worked closely with the agency across multiple inspections and with out-of-cycle engagements to effectively support systemic improvement in the quality and consistency of contemporaneous records, including broad improvement to underlying templates and procedures for recordkeeping and quality assurance processes.
Under the Building and Construction Industry (Improving Productivity) Act 2016 and the Fair Work Act 2009, the Ombudsman must review how the relevant agencies exercised coercive examination powers under the relevant acts and report the results of those reviews to Parliament on a quarterly basis.
In a recent review of a coercive examination, we identified issues relating to managing interpreting services during an examination and significant inaccuracies and omissions in the transcript record of examination. We suggested that the agency:
- provide staff with appropriate guidance and resources to support the effective management of interpreting services during examinations
- source interpreters with a minimum NAATI accreditation level of certified interpreter
- improve management of the duration of examinations and breaks, especially when interpretation services are required
- clarify what legal obligations may apply after discharge from compliance with a notice
- undertake a thorough quality assurance process of its transcript record.
The agency accepted our suggestions and adjusted their processes, policies and procedures accordingly. We have observed a positive change in practice following our suggestions and have not since observed similar issues arising from our reviews.