Our inspections role
The Commonwealth Ombudsman oversees Commonwealth and State/Territory law enforcement and integrity agencies’ use of certain covert, coercive and intrusive powers. We undertake regular inspections to ensure agencies are using their powers in compliance with relevant legislation.
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 these case studies.
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
Under the Building and Construction Industry (Improving Productivity) Act 2016 and the Fair Work Act 2009 the Fair Work Ombudsman and the Australian Building and Construction Commission can use a coercive information-gathering power, which requires the recipient of the notice to:
- give information
- produce documents
- to answer questions relevant to an investigation.
The Ombudsman reviews the exercise of this coercive information-gathering power and reports to parliament.
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 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 here.