CHAPTER 3
REPORTS ON THE OPERATION OF ACTS AND PROGRAMS
3.1
Standing Order 25(20) does not require that consideration of reports include
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 inspections of
records under section 55 of the Surveillance Devices Act 2004 (inspections
finalised between 1 July – 31 December 2012); 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 2012 to 28 February 2013 (published by the Refugee
Review Tribunal).
Report to the Attorney-General on the results of inspections of records
under section 55 of the Surveillance Devices Act 2004
3.2
Subsection 55(1) of the Surveillance Devices Act 2004 (SD Act)
requires the Commonwealth Ombudsman (Ombudsman) to inspect the records of each
law enforcement agency to determine the extent of their compliance with the SD
Act. Under subsection 6(1) of the SD Act, 'law enforcement agency' is defined
as including the Australian Crime Commission (ACC), the Australian Federal
Police (AFP), the Australian Commission for Law Enforcement Integrity (ACLEI), state
and territory police forces, and other specified state and territory law
enforcement agencies.[1]
Section 61 of the SD Act requires the Ombudsman to report to the relevant minister
(the Commonwealth Attorney-General) at six-monthly intervals on the results of
each inspection. Each report covers inspections that are finalised within the reporting
period and inspection results are considered finalised once the Ombudsman's
internal report to the agency is completed and the agency has been provided the
opportunity to comment on findings.[2]
3.3
The report reviewed by the committee covers the inspections finalised between
1 July and 31 December 2012, and examines the ACC, the AFP and the Victoria
Police. The report is informative and well-presented. It includes the objective
and scope of the inspections[3]
in addition to detailed inspection results outlining the progress made since
the previous report and the issues that arose from the inspection, for each law
enforcement agency examined during the reporting period.
3.4
The objective of the inspection is to determine the extent of compliance
with the Act by agencies and their law enforcement officers, using the following
criteria to asses compliance:
- Were
applications for warrants and authorisations properly made?
- Were
warrants and authorisations properly issued?
- Where
surveillance devices used lawfully?
- Were
revocations or warrants properly made?
- Were
records properly kept and used by the agency?
- Were
reports properly made by the agency?[4]
3.5
Based on the criteria provided, the inspection found the ACC to be
compliant with the SD Act. However, four instances of non-compliance were
identified. These instances concerned occasions where a requirement to specify
the nature of the authorisation sought in relation to verbal applications for
tracking device authorisations was not met during the inspection, and the
agency did not meet the destruction requirements under subsection 46(1)(b).[5]
3.6
The Ombudsman's report to the ACC suggested that measures be taken to
ensure sufficient information is recorded when making verbal applications for
tracking device authorisations to meet the requirements of the SD Act. The ACC
subsequently advised that it has updated its templates to include a prompt for
applicants to detail the nature of the authorisation sought.[6]
The ACC self-disclosed that protected information obtained under 15 warrants
was retained longer than the authorised timeframe without the chief officer's
certification and as a result the ACC did not meet the requirements under
section 46(1)(b)(ii) of the SD Act in these instances.[7]
3.7
The AFP was assessed as compliant with the SD Act. There were two
exceptions: where the AFP did not notify the Attorney-General of
extraterritorial surveillance activities, and the AFP did not meet the
destruction requirements under subsection 46(1)(b).[8]
3.8
The AFP has advised that it will update existing procedures to address
the issues resulting in non-compliance to ensure that in future, the
Attorney-General is notified of extraterritorial surveillance in a timely
manner under section 42(6) of the SD Act.[9]
Additionally, the Ombudsman identified 32 instances of retaining protected
information longer then the authorised timeframe without the required
certification from the Commissioner of the AFP.[10]
Further to this, on the 27 June 2012 the AFP advised that the protected
information pertaining to the 32 records had been destroyed or retained with
the Commissioner's certification and that retention and destruction procedures
have been updated to ensure they meet the requirements under the
SD Act.[11]
3.9
No recommendations were made to the law enforcement agencies examined in
the report as a result of the inspections carried out by the Ombudsman.
Report pursuant to Section 440A of the Migration Act on the conduct of
Refugee Review Tribunal reviews not completed within 90 days
3.10
Section 440A of the Migration Act 1958 (Migration Act) requires
the Refugee Review Tribunal (RRT) to report on the conduct of reviews not
completed within 90 days. The RRT is required to report every four months.
The report reviewed by the committee covers the period 1 November 2012 to 28
February 2013.
3.11
The table below sets out the number of RRT reviews completed within
various timeframes (for example, within or outside of the reporting period, and
if within the reporting period, within or outside of the 90 day decision-making
period), as well as the corresponding statistics that were recorded for the
previous two reporting periods.[12]
3.12
The average processing time for reviews completed during the reporting
period (either within or outside the 90 day decision period) was 155 days for the
period 1 November 2012 to 28 February 2013 compared to a similar result of 148 days
for the previous reporting period of 1 July 2012 to 31 October 2012. [13]
|
1
March 2012 to 30 June 2012
|
1
July 2012 to 31 October 2012
|
1
November 2012 to 28 February 2013
|
Number of RRT reviews decided
outside of the 90 day decision-making period
|
847
(or 74% of 1,147
reviews)
|
720
(or 66% of 1,083
reviews)
|
838
(or 66% of 1,265
reviews)
|
Number of RRT reviews
decided within the 90 day decision-making period (or RRT had no
jurisdiction)
|
300
(or 26% of 1,147
reviews)
|
363
(or 34% of 1,083
reviews)
|
427
(or 34% of 1,265
reviews)
|
Total number of RRT reviews
completed during the reporting period
|
1,147
|
1,083
|
1,265
|
Total number of RRT reviews
incomplete after the 90 day decision-making period and at the end of
the reporting period
|
642
(or 43% of 1,501
active reviews on hand at 30.06.12)
|
816
(or 36% of 2,279
active reviews on hand at 21.10.12)
|
1,416
(or 53% of 2,664 active
reviews on hand at 28.02.13)
|
Total number of RRT
reviews on hand at the end of the reporting period.
|
1,501
|
2,279
|
2,664
|
3.13
The Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT)
has maintained a KPI target of 70 per cent of RRT cases decided within 90
calendar days during the last three reporting periods.[14]
3.14
The committee notes that the percentage of RRT reviews completed within the
decision period of 90 days has increased to 34 per cent for the two most recent
reporting periods, compared to 26 per cent for the period 1 March to 30 June
2012, yet remains below the MRT-RRT's KPI target of 70 per cent.
3.15
Common reasons attributed to reviews completed within the reporting
period but not within the 90 day decision-making period for the report covering
1 November 2012 to 28 February 2013 were: applicant/adviser related;
compliance with statutory procedural requirements; third party responsibility;
and tribunal responsibility.[15]
3.16
The committee notes that the total number of RRT reviews that remain on
hand at the end of the reporting period has significantly increased over the
course of time from the period 1 March 2012 to 28 February 2013. Comparatively,
the percentage of RRT reviews not completed at the end of the reporting period
has fluctuated, and in the most recent report, comprised 53 per cent of the
active reviews on hand at 28 February 2013. Reasons attributed to the delays
were similar to those provided earlier, for reviews completed within the
reporting period but not within the 90 day decision-making period.
3.17
RRT reviews involving applicants in detention and irregular maritime
arrivals (IMAs) are given highest priority. Approximately 69 per cent of
reviews of applicants in detention and 59 per cent of IMA reviews were decided
within 90 days during the reporting period 1 November 2012 to 28 February 2013.[16]
3.18
The report identified the challenge for the tribunals in balancing
priorities across the RRT and MRT caseloads, both of which have grown
significantly from previous years.[17]
Senator the Hon Ian
Macdonald
Chair
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