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:
- that the assumed identity is necessary for one or more
of the following purposes:
- investigation of, or
intelligence gathering in relation to, criminal activity (whether a particular
criminal activity or criminal activity generally);
- the exercise of powers and
performance of functions of an intelligence agency;
- the exercise of powers and
performance of functions for the purposes of the National Witness Protection
Program;
- the training of persons for
any of the purposes mentioned in subparagraphs (i) to (iii);
- any administrative function
in support of any of the purposes mentioned in subparagraphs (i) to (iv); and
- that the risk of abuse of the
assumed identity by the authorised person is minimal; and
- 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:
- the number of authorities granted during the year;
- 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;
- the number of applications for authorities that were
refused during the year;
- the number of authorities of which control was
transferred by the chief officer under section 15KV during the year;
- the number of authorities of which control was
transferred to the chief officer under section 15KV during the year;
- a statement whether or not any fraud or other unlawful
activity was identified by an audit under section 15LG during the year;
- 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:
- endanger a person's safety; or
- prejudice
an investigation or prosecution; or
- 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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