23 Mar 2011: ACC to improve scrutiny of covert operations

The Australian Crime Commission (ACC) has undertaken to improve internal procedures for long-term controlled (covert) operations following a Commonwealth Ombudsman inspection that found the Commission had bypassed laws relating to external scrutiny.

The Ombudsman’s report was tabled in the Parliament today.

Under the Crimes Act 1914, the maximum duration of an authority to conduct a controlled operation is three months, unless extended by a member of the Administrative Appeals Tribunal (AAT) for a further three months.

‘Rather than seek extensions to existing controlled operations certificates, the ACC has routinely issued new certificates every three months for the same operations,’ the acting Commonwealth Ombudsman, Alison Larkins, said. ‘Effectively, this has removed the avenue of external scrutiny of these operations.’

Ms Larkins agreed with the ACC that its regular processes of internal reapplication demonstrated good internal governance, but said that this was not a substitute for external scrutiny.

‘The Commonwealth Parliament’s clear intention in passing the legislation is that the AAT provide external scrutiny of ongoing controlled operations,’ she said.

The acting Ombudsman welcomed the ACC’s commitment to implementing an internal procedure that will require an applicant to document significant changes to controlled operations to justify the granting of a new authority. She noted that all processes would be closely monitored in future inspections.

Ms Larkins noted also that the ACC was generally diligent and had a good compliance record. She said that she looked forward to further advice from the ACC on its progress in ensuring external oversight of all ongoing controlled operations, in accordance with legislative requirements.

An authority to conduct a controlled operation protects—within limits—law enforcement officers from legal action if they commit offences while under cover to gather evidence of criminal activity. Controlled operations are conducted in Australia under authorities issued under Part IAB of the Crimes Act.

The law was amended in February 2010 to allow a maximum of 24 months for a ‘controlled op’, but the AAT must still approve extensions every three months.

The Commonwealth Ombudsman is required, at least once every 12 months, to inspect records and review the administrative processes of law enforcement agencies that conduct controlled operations. Agencies include the ACC, Australian Federal Police and Australian Commission for Law Enforcement Integrity.

Download the report: 2009–2010—A report on the Commonwealth Ombudsman’s activities in monitoring controlled operations

Media contact: Media 02 6276 3759

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Date of release: 23 March 2011