CHAPTER 3 - REPORTS ON THE OPERATION OF ACTS AND PROGRAMS


CHAPTER 3 - REPORTS ON THE OPERATION OF ACTS AND PROGRAMS

3.1        Standing Order 25(20) does not provide for the 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, as on previous occasions, the committee has chosen to examine the following reports:

  • Report to the Attorney-General on the results of inspection of surveillance device records for 2008 under section 55 of the Surveillance Devices Act 2004, March 2010 (published by the Commonwealth Ombudsman);
  • Report pursuant to section 91Y of the Migration Act on Protection visa processing taking more than 90 days for the period 1 November 2009 to 28 February 2010 (published by the Department of Immigration and Citizenship); and
  • 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 2009 to 28 February 2010 (published by the Refugee Review Tribunal).

Report under the Surveillance Devices Act 2004

3.2        The Surveillance Devices Act 2004 (the Act) regulates the use of surveillance devices by law enforcement agencies.[1] Subsection 55(1) of the Act requires the Commonwealth Ombudsman to inspect the records of each law enforcement agency to determine the extent of compliance with the Act by the agency and its law enforcement officers. Under section 61 of the Act, the Ombudsman is required to report to the Minister at six-monthly intervals on the results of each inspection.[2]

3.3        The inspections conducted by the Ombudsman were limited to those warrants and authorisations that had expired or been revoked during the inspection periods.[3]

3.4        This report relates to inspections of records for the following agencies for the time period indicated:

  • Australian Crime Commission (ACC) (1 January 2008 to 31 December 2008);
  • Australian Federal Police (AFP) (1 January 2008 to 31 December 2008); and
  • New South Wales (NSW) Police (1 July 2007 to 31 December 200).

3.5        The committee is pleased to note that the Ombudsman reported 'continued improvement in agency compliance with requirements of the Act'.[4] The ACC and the NSW Police were assessed as compliant with the Act, and the AFP was considered to be generally compliant with the requirements of the Act.[5]

3.6        The Ombudsman summarised the inspections as follows:

The majority of issues were relatively minor and generally able to be remedied through training and better recordkeeping practices.  The agencies have willingly accepted our recommendations and have continued to improve administration of their surveillance device regimes.[6]

3.7        The committee has previously noted the ACC's training initiatives to improve compliance with the Act[7] and is pleased to see that, on this occasion, the Ombudsman reported significant improvements as a result of the ACC's Excellence in Compliance Strategy. The two areas of note were the increase in compliance by the agency in relation to the content, accuracy and timeliness of the section 49 report to the Minister; and a more proactive approach to revocation of warrants under sections 20 and 21 of the Act.[8]

3.8        The committee notes that concerns in relation to privacy issues and the application of paragraph 16(2)(c) of the Act continued to be issues for both the ACC and the NSW Police Service. Paragraph 16(2)(c) of the Act states that an issuing officer (an eligible judge or the Administrative Appeals Tribunal member) must have regard to 'the extent to which the privacy of any person is likely to be affected' in determining whether to issue a surveillance device warrant.

3.9        The committee notes that the report indicated that the ACC has adopted strategies to address the privacy concerns raised by the Ombudsman which included 'reviewing internal guidelines, emphasising particular issues raised in training sessions and focusing on privacy requirements during internal audits'.[9]

3.10      The committee is pleased to note that the Ombudsman remarked on the considerable improvement that the AFP has made in the area of privacy since the last inspections and therefore made no recommendation on this occasion.

3.11      The committee notes that the report was easily located on the Commonwealth Ombudsman's website, along with other 'inspection reports'.

Protection visa processing taking more than 90 days

3.12      Section 65A of the Migration Act imposes a requirement for the Minister to make a decision on a protection visa application within 90 days of the lodgement of the application.  If this target is exceeded, under section 91Y of the Act, the Secretary of the Department of Immigration and Citizenship is required to report on protection visa applications for which decision making has taken over 90 days.  The department is required to report every four months.

3.13      The report reviewed by the committee covers the period 1 November 2009 to 28 February 2010.

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

 

1 March 2009 to 30 June 2009

1 July 2009 to 31 October 2009

1 November 2009 to 28 February 2010

Total number undecided outside of 90 day period

480

524

789

Total number decided outside of 90 day period

488

582

623

Total number processed outside of 90 day period

968

1106

1412

Percentage of total applications processed outside of 90 day period

25%

25%

24%

3.15      While the percentage of total applications processed outside the 90-day period remains steady, the committee notes that the number of delays in processing attributable to the department has risen significantly since the last report.  There were 400 visa applications in this category, compared to 308 in the previous report.  The Secretary of the department indicated in the report that:

Most of these are applications where sound reasons exist for decision deferral, such as applications requiring DIAC exploration of complex character issues which might warrant visa refusal, and applications where it is prudent to await the outcome of serious criminal charges.[10]

3.16      The committee was unable to locate this report on the department's website and would encourage the department to publish these reports on-line, enabling them to be widely accessed and enhancing the openness and accountability of departmental processes.

Refugee Review Tribunal reviews not completed within 90 days

3.17      Section 440A of the Migration Act requires the Refugee Review Tribunal (RRT) to report on reviews not completed within 90 days.

3.18      The RRT is required to report every four months.  The report reviewed by the committee covers the period 1 November 2009 to 28 February 2010.

3.19      The table below outlines the number of RRT reviews not completed within 90 days for the previous three reporting periods:

 

1 March 2009 to 30 June 2009

1 July 2009 to 31 October 2009

1 November 2009 to 28 February 2010

Reviews completed outside of 90 days

287 (31%)

247 (36%)

219 (32%)

Reviews completed within 90 days

634 (69%)

448 (64%)

468 (68%)

Total

921

695

687

3.20      The following reasons for reviews taking longer than 90 days were provided:

  • compliance with statutory procedural requirements;
  • applicant or adviser related;
  • tribunal responsibility; and
  • third party responsibility.[11]

3.21      The section 440 report was readily located on the Migration Review Tribunal-Refugee Review Tribunal website.

Senator Trish Crossin
Chair

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