CHAPTER 3


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 January - 30 June 2014); 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 March 2014 to 30 June 2014 (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. The ombudsman provides each agency an opportunity to comment on its findings.[2]

3.3        The report covers inspections finalised between 1 July and 31 December 2013, and examines the ACLEI, the ACC, the AFP, and Queensland's Corruption and Crime Commission (CCC) and Crime and Misconduct Commission (CMC). This instance was the first time the Commonwealth Ombudsman has inspected the records of the CMC.[3] The report is informative and well-presented. It includes the objective and scope of the inspections[4] in addition to detailed inspection results outlining the progress made since the previous report and the issues that arose from the inspection.

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 assess compliance:

  1. Were applications for warrants and authorisations properly made?
  2. Were warrants and authorisations properly issued?
  3. Where surveillance devices used lawfully?
  4. Were revocations or warrants properly made?
  5. Were records properly kept and used by the agency?
  6. Were reports properly made by the agency?
  7. Was protected information properly dealt with by the agency? [5]

3.5        Based on the criteria provided, the inspection found all agencies, except for the AFP, were compliant with the SD Act. The report notes the AFP's four exceptions to compliance:

  • One instance where the AFP self-disclosed that it had applied for and was granted a tracking device authorisation (rather than a warrant) in relation to extraterritorial surveillance.
  • Under the warrant, the AFP did not notify the Attorney-General of extraterritorial surveillance in accordance with s 42(6).
  • A written record of a tracking device authorisation did not fully comply with s 40(1).
  • One s 49 report had not been provided to the Attorney-General as soon as practicable after the warrant ceased in accordance with s 49(1).[6]

3.6        The Commonwealth Ombudsman made no recommendations in respect of the AFP's non-compliance. However, a number of suggestions were made to assist the AFP to comply better with the relevant provision.[7]

3.7        An internal review conducted by the APF on applications for extraterritorial surveillance found that the extraterritorial use of tracking devices is permitted in the Act. However, the AFP should obtain a warrant and 'permission of an appropriate consenting official of the relevant foreign country in accordance with s 42.'[8] The report notes that the AFP has received and updated its guidance regarding extraterritorial surveillance.[9]

3.8        Additionally, the report notes in the same instance, the commissioner failed to provide 'the Attorney-General evidence in writing that the surveillance has been agreed to by an appropriate consenting official of that foreign country' in accordance with s42(6) of the Act.[10] This section of the Act requires the AFP to notify the Attorney-General 'as soon as practicable after the commencement of extraterritorial surveillance'. The inspection found that notification was provided to the Attorney-General more than five months after the surveillance had commenced and therefore did not comply with the Act. The AFP has advised the Commonwealth Ombudsman that it has reviewed and updated its guidance on this issue.[11]

3.9        The investigation also identified that the AFP did not adhere to section 40(1)(d) of the Act. The Act requires:

[T]he written record of an authorisation for the use of a tracking device in relation to a recovery order to state the date the order was made and the name of the child to whom the order relates.[12] 

3.10      In response to this finding, the AFP did note that the full details of the recovery order, including the date, were provided to the authorising officer. In addition, AFP provided its staff with specific guidance on the information required for authorisations and warrants relating to recovery orders.

Report pursuant to Section 440A of the Migration Act on the conduct of Refugee Review Tribunal reviews not completed within 90 days

3.11      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 March 2014 to 30 June 2014.

3.12      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.[13]

3.13      The average processing time for all reviews completed during the reporting period (either within or outside the 90 day decision period) was 242 days for the period 1 March 2014 to 30 June 2014 compared to a similar result of 237 days for the previous reporting period of 1 November 2013 to 28 February 2014. [14]

3.14      Table 3.1 provides details of the number of reviews the RRT has conducted over the last three reporting periods.

Table 3.1:

 

1 July 2013 to 31 October 2013

1 November 2013 to 28 February 2014

1 March 2014 to 30 June 2014

Number of RRT reviews decided outside of the 90 day decision-making period

946
(or 82% of 1,147 reviews)

879
(or 81% of 1,082 reviews)

1,170
(or 86% of 1,356 reviews)

Number of RRT reviews decided within the 90 day decision-making period (or RRT had no jurisdiction)

201
(or 18% of 1,147 reviews)

203
(or 19% of 1,082 reviews)

186
(or 14% of 1,356 reviews)

Total number of RRT reviews completed during the reporting period

1,147

1,082

1,356

Total number of RRT reviews incomplete after the 90 day decision-making period and at the end of the reporting period

1,161
(or 39% of 3,009 active reviews on hand at 31.10.13)

2,112
(or 49% of 4,308 active reviews on hand at 28.02.14

3,212
(or 61% of 5,250 active reviews on hand at 30.02.13)

Total number of RRT reviews on hand at the end of the reporting period.

3,009

4,308

5,250

3.15      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.[15]

3.16      The percentage of RRT reviews completed within the decision period of 90 days for 2013-14 was 16 per cent.[16] This percentage is considerably lower than the 30 per cent achieved in 2012-13[17] and the 32 per cent achieved in 2011-12.[18]  

3.17      The 2013-14 annual report addresses the timeliness of its review and states that it:

[H]as been affected by large increases in lodgements and cases on hand over the past few years. Lodgements increased by 9 [per cent] in 2013-14, the main contributor to the increase being the large number of applications for RRT review of unauthorised maritime arrival cases.[19]

3.18      The committee notes that the total number of RRT reviews that remain on hand at the end of the reporting period has significantly increased during the period 1 July 2013 to 30 June 2014. Comparatively, the percentage of RRT reviews not completed at the end of the reporting period has fluctuated, and in the most recent report, comprised of 49 per cent of the active reviews on hand at 28 February 2014.[20]

Senator the Hon Ian Macdonald
Chair

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