Chapter 2 - Annual reports on the operation of acts & programs


Chapter 2 - Annual reports on the operation of acts & programs

2.1        Standing Order 25(20) does not provide for consideration of reports on the implementation or operation of Acts or programs. The committee is not therefore required to include them in its report on the examination of annual reports. However, the committee chose on this occasion to examine in some detail the following reports:

  • the Commonwealth Ombudsman's report to the Attorney-General on the results of inspections of records under section 55 of the Surveillance Devices Act 2004 (the Act);
  • the report under section 91Y of the Migration Act 1958 on protection visa processing by the Department of Immigration and Citizenship taking more than 90 days, for the reporting period 1 November 2006 to 28 February 2007; and
  • the report pursuant to section 440A of the Migration Act on the conduct of Refugee Review Tribunal reviews not completed within 90 days, for the period 1 November 2006 to 28 February 2007.

Report under the Surveillance Devices Act 2004

2.2        The Act regulates the use of surveillance devices by Commonwealth law enforcement agencies. Subsection 55(1) of the Act requires the Ombudsman to inspect the records of the Australian Crime Commission (ACC) and the Australian Federal Police (AFP) to determine the extent of compliance with the Act by the agencies and their officers. The report is presented to the Attorney-General and is also tabled in Parliament.

Meaning of the term 'used' in section 49 reports to the Minister

2.3        The Ombudsman found some inconsistency in the application of section 49 of the Act. This section requires:

...the chief officer of a law enforcement agency to provide to the Minister a report on each warrant or authorisation. In particular, s49(2)(b)(iii) requires the chief officer to 'state the kind of device used' and s 49(2)(b)(iv) requires the chief officer to 'state the period during which the device was used'.[1]

2.4        The Ombudsman found that both the ACC and AFP had applied inconsistent definitions of the word 'used' in reports. In the case of the ACC, the Ombudsman found that:

When stating the type of surveillance device 'used', the ACC listed the types of surveillance devices installed under the warrant, even if the surveillance devices had not been activated. However, when reporting on the period during which the device was 'used', the report stated 'not applicable' if the device had been installed but not activated. 'Used' was thus given both a broad and narrow meaning in the report, without explanation of the difference.[2]

2.5        Similarly, during inspection of the AFP's records, inspecting officers noted:

...that there was a significant variation in the interpretation of the term 'used'. In most reports, 'use' referred to the period from the time the device was installed to the time it was retrieved. In some reports, it referred to the period from the time the warrant was issued to the time the warrant expired or was revoked. In a small number of reports, it referred to the period during which the device was activated.[3]

2.6        The committee is of the view that there is merit in the Ombudsman's recommendations[4] that the term 'used' in section 49 of the Act be applied consistently by the ACC and AFP. Furthermore, the committee believes that adopting the Ombudsman's interpretation of the term 'used' to require reporting on: 'when a device was installed, when it was removed, when it was activated and when it was deactivated'[5], would strengthen the reporting regime.

Privacy Issues

2.7        The Ombudsman's report notes that: "Section 16(2)(c) of the Act requires the person issuing a warrant to have regard to 'the extent to which the privacy of any person is likely to be affected' in determining whether to grant an application for a surveillance device warrant."[6] The report stated that in relation to the ACC:

Warrants examined by inspecting officers included a reference that each issuing officer was satisfied that the requirements of s 16(2) had been met. However, in most applications, the majority of which were combined with the supporting affidavits, either there was no mention of privacy or no mention of the extent to which the privacy of any person would be likely to be affected by the use of a surveillance device. Few affidavits mentioned privacy.[7]

2.8        In relation to the AFP, the Ombudsman found that in affidavits used for warrant applications, 'privacy appeared to be addressed in a cursory manner.'[8] Stating that:

The third inspection found that less than half of the affidavits inspected mentioned the issue of privacy and, where it was addressed, a standard paragraph was usually included asserting that 'all reasonable steps' would be taken 'to limit the extent to which privacy is affected by the surveillance device'. This wording does not address the impact on privacy in the particular case and does not fulfil the requirement in s 16(2)(c).[9]

2.9        The committee is pleased to see that the ACC and AFP have undertaken to strengthen their processes in relation to the documentation of consideration of privacy impacts under paragraph 16(2)(c) of the Act.[10]

Installation of surveillance device before a warrant is issued

2.10      The committee notes the Ombudsman's finding that:

At each inspection, one or two examples were found where a surveillance device was either installed before a warrant or authorisation was issued or was retrieved after the cessation of the warrant or authorisation. This usually occurred where the device was installed on property or premises under the AFP's control.[11]

2.11      The report went on to note that the AFP:

...sought advice from the Attorney-General's Department which advised that a warrant should be in existence before a device is installed, including into a package under AFP control. The AFP advised that an appropriately worded paragraph would be inserted into the AFP Guideline to reinforce this requirement.[12]

2.12      The committee considers that the issues raised by the Ombudsman in relation to the installation of devices before a warrant is issued are technical in nature, and notes that the AFP has undertaken to improve its procedures. However, the committee would be concerned if similar problems were identified in subsequent reports.

Summary

2.13      The committee is pleased to see that the majority of the recommendations made in the report were agreed to by both the AFP and the ACC. The committee believes that the implementation of these recommendations will improve the integrity and operation of the Act. The committee maintains a high level of interest in the effective operation of the Act and believes this report serves as a valuable resource for the committee, the Senate, and the public. Importantly, reports on the operations of the Act also improve public confidence by demonstrating that the law is being applied fairly and consistently.

2.14      More broadly, the committee believes the report highlights the importance and utility of independent oversight of the exercise of intrusive powers which the committee has commented on in past reports and inquiries.

Protection visa processing and reviews taking more than 90 days

2.15      Under section 91Y of the Migration Act the Department of Immigration and Citizenship (the Department) is required to report on protection visa applications which take more than 90 days to process. Similarly, section 440A requires the Refugee Review Tribunal (RRT) to report on reviews not completed within 90 days. The Department and the RRT are required to report every four months with the latest reporting period being 1 November 2006 to 28 February 2007. In this report, the committee has considered the outcomes reported in the three previous reporting periods.

2.16      The table below compares protection visa processing by the Department taking more than 90 days for the three previous reporting periods:

 

1 March 2006 to 30 June 2006

1 July 2006 to 31 October 2006

1 November 2006 to 28 February 2007

Total number undecided outside of 90 day period

391

288

325

Total number decided outside of 90 day period

781

344

284

Total number processed outside of 90 day period

1172

632

609

Percentage of total applications processed outside of 90 day period

Not available

21%

18.5%

2.17      This table outlines RRT reviews not completed within 90 days, compared with reviews completed within 90 days, for the previous three reporting periods:

 

1 March 2006 to 30 June 2006

1 July 2006 to 31 October 2006

1 November 2006 to 28 February 2007

Reviews completed outside of 90 days

171(24%)

275(24%)

243(22%)

Reviews completed within 90 days

541(76%)

891(76%)

873 (78%)

Total

712

1166

1116

2.18      The committee is pleased to note that the Department is making good progress in clearing the backlog of protection visa applications.

 

Senator Guy Barnett
Committee Chair

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