03 Mar 2011: Covert policing oversight

Law enforcement agencies are given considerable covert information gathering powers under legislation. It is the role of the Commonwealth Ombudsman to ensure that such powers are used lawfully.

Surveillance devices used by law enforcement agencies include video, listening, tracking and data recording devices. While there is, in most circumstances, no law against using such devices in public, when police enter premises and install such devices without the owner of the premise knowing, proper justification needs to be given and approval obtained.

An Ombudsman report tabled in the Parliament looks at three law enforcement agencies and their compliance with requirements for the use of surveillance devices.

‘Many of the powers exercised by police—including search and seizure powers or the power of arrest—are significant. What sets covert powers apart, such as the use of surveillance devices, is that the public is not aware that they are being used,’ said the Commonwealth Ombudsman, Mr Allan Asher.

‘If there is concern that ordinary powers have not been used properly, then the matter can be taken to the courts or a remedy otherwise pursued by the affected person. A person who is subject to surveillance will never know. In effect we stand in the shoes of the citizen and make sure that these extremely intrusive powers are used lawfully and appropriately,’ said Mr Asher.

The report covers inspections of the Australian Crime Commission (ACC), the Australian Federal Police (AFP) and the WA Corruption and Crime Commission (WACCC) during the 2009-2010 financial year.

‘Pleasingly, there was generally a high level of compliance, with only three recommendations in all made tackling areas for improvement,’ said Mr Asher.

Most operations involve the use of multiple covert powers. We found in a number of cases that law enforcement agencies would justify the use of telephone interceptions, but would not necessarily justify the use of surveillance devices, when putting warrants before an authorising officer.

We also found that there was a tendency for law enforcement agencies, when extending surveillance beyond three months, to apply for a new warrant rather than using extension provisions. While such a practice is not unlawful, it can hide the fact from the authorising officer that a person has already been under surveillance for a long time.

Three recommendations were made–one to each agency. Two recommendations, directed to the ACC and AFP addressed the need for applications, extensions or variants to warrants to comply strictly with relevant the legislation. The third, for the WACCC, recommended that reports to the Minister detail fully the numbers of extensions and variations of warrants, and the reasons.

Download the report: November 2010—Report to the Attorney-General on the results of inspections of records under s 55 of the Surveillance Devices Act 2004

Media contact: Media 02 6276 3759

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Date of release: 3 March 2011