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 required to include them in its report on the examination of annual reports; however, as on previous occasions, the committee has chosen to examine such reports. The committee has examined reports on assumed identities under the Crimes Act 1914 (Cth) (Crimes Act), received between 1 November 2015 and 30 April 2016.

Assumed identities

3.2        Part 1AC of the Crimes Act deals with the acquisition and use of assumed identities by officers of intelligence and law enforcement agencies, and authorised civilians. Under subsection 15KB(2), an assumed identity can be granted if the chief officer of an applicable agency is satisfied:

  1. that the assumed identity is necessary for one or more of the following purposes:
    1. investigation of, or intelligence gathering in relation to, criminal activity (whether a particular criminal activity or criminal activity generally);
    2. the exercise of powers and performance of functions of an intelligence agency;
    3. the exercise of powers and performance of functions for the purposes of the National Witness Protection Program;
    4. the training of persons for any of the purposes mentioned in subparagraphs (i) to (iii);
    5. any administrative function in support of any of the purposes mentioned in subparagraphs (i) to (iv); and
  2. that the risk of abuse of the assumed identity by the authorised person is minimal; and
  3. if the application is for authorisation of an assumed identity for a person who is not an officer of either an intelligence agency or a law enforcement agency--that it would be impossible or impracticable in the circumstances for an officer to acquire or use the assumed identity for the purpose sought.[1]

3.3        The committee received reports on assumed identities for 2014–15 from the following agencies in the Attorney-General's and Immigration and Border Protection portfolios:[2]

  • Australian Crime Commission (ACC);
  • Australian Commission for Law Enforcement Integrity (ACLEI);
  • Australian Federal Police (AFP);[3] and
  • Australian Customs and Border Protection Service (ACBPS).[4]

3.4        Under subsection 15LD(1), the chief officer of a law enforcement agency must submit a report on assumed identities to the minister at the end of each financial year that includes the following information:

  1. the number of authorities granted during the year;
  2. a general description of the activities undertaken by authorised civilians and authorised law enforcement officers when using assumed identities under this Part during the year;
  3. the number of applications for authorities that were refused during the year;
  4. the number of authorities of which control was transferred by the chief officer under section 15KV during the year;
  5. the number of authorities of which control was transferred to the chief officer under section 15KV during the year;
  6. a statement whether or not any fraud or other unlawful activity was identified by an audit under section 15LG during the year;
  7. any other information relating to authorities and assumed identities and the administration of this Part that the Minister considers appropriate.[5]

3.5        The report must be tabled within 15 sitting days of receipt by the minister.[6] Furthermore, it is a requirement of section 15LD that the minister remove, on the advice of the chief officer, any information that:

if made public, could reasonably be expected to:

  1. endanger a person's safety; or
  2. prejudice an investigation or prosecution; or
  3. compromise any law enforcement agency's operational activities or methodologies.[7]

3.6        The ACC assumed identities annual report for 2014–15 was tabled in the Senate on 23 November 2015,[8] in accordance with the requirements of subsection 15LD(3) of the Crimes Act. ACC reported a total of 31 authorities for assumed identities issued during 2014–15,[9] a decrease compared to the 39 granted in 2013–14.[10] These identities were used 'by authorised persons to gather intelligence and investigate criminal activity'.[11] The ACC reported that no applications for authorities were refused during the year; there was no authority transferred related to subsection 15LD(1)(d) or (e); there was no fraud or other unlawful activity identified; and a yearly review of all assumed identity authorities had been undertaken in accordance with section 15KF of the Crimes Act.[12]

3.7        The ACLEI assumed identities annual report for 2014–15 was tabled in the Senate on 9 November 2015,[13] in accordance with the requirements of subsection 15LD(3) of the Crimes Act. ACLEI had no granted authorities for assumed identities to report for 2014–15, no applications for authorities rejected, and no authorities transferred related to subsection 15LD(1)(d) or (e).[14] ACLEI reported that subsections 15LD(1)(b), (f) and (g) of the Crimes Act were not applicable for the reporting period. ACLEI has had no authorities for assumed identities to report for the last four reporting periods: 2011–12,[15] 2012–13,[16] 2013–14,[17] and 2014–15.

3.8        The AFP assumed identities annual report has been included as an annex to its main annual report since 2013–14.[18] The annual report for 2014–15 was presented out of sitting on 2 November 2015;[19] although the main report was received late under the requirements of section 46 of the Public Governance, Performance and Accountability Act 2013, the assumed identities annex met the timing requirements of subsection 15LD(3) of the Crimes Act. The AFP reported a total of 114 authorities for assumed identities in 2014–15,[20] a decrease from 184 in 2013–14,[21] as well as 32 variations and 134 revocations. In relation to subsection 15LD(1)(b), the AFP stated:

The activities undertaken by approved officers when using their assumed identities included functions performed covertly in the conduct of intelligence collection and investigations associated with the achievement of AFP core business outcomes.[22]

3.9        The AFP reported that no applications for authorities were refused and there was no authority transferred related to subsection 15LD(1)(d) or (e). Five audits of records and practices relating to assumed identities were conducted and found no evidence of fraud or unlawful activity.[23]

3.10      The ACBPS assumed identities annual report for 2014–15 was tabled in the Senate on 24 November 2015,[24] in accordance with the requirements of subsection 15LD(3) of the Crimes Act. ACBPS reported that four new authorisations for assumed identities were granted in 2014–15, for use by Customs and Border Protection officers undertaking surveillance activities.[25] No applications for authorities were refused, and no authorities were transferred related to subsection 15LD(1)(d) or (e). ACBPS conducted a review of the use of assumed identities and did not identify any instances of fraudulent or unlawful activity.[26]

3.11      For each of the four reports on assumed identities received, the committee is not aware that any information supplied by the chief officer was withheld by the minister under subsections 15LD(2) and (3) of the Crimes Act.

3.12      The committee is satisfied that the annual reports on assumed identities from the ACC, ACLEI, the AFP and ACBPS have met the requirements of subsection 15LD(1) of the Crimes Act.

Senator the Hon Ian Macdonald
Chair

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