BackOn 06 February 2023, the Attorney-General tabled the Commonwealth Ombudsman’s report summarising his oversight of the following covert powers:
- controlled operations from 1 July 2021 to 30 June 2022
- delayed notification search warrants from 1 January to 30 June 2022, and
- health checks of agencies’ preparedness to use new account takeover warrant powers, introduced by the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021.
“Each of these powers is used covertly – hidden from view, effectively”, Mr Anderson said. “My Office’s oversight helps shed light on the use of these powers and supports agencies to continuously strive towards full compliance with legal requirements.”
The Office of the Commonwealth Ombudsman made 13 suggestions and 13 better practice suggestions across these three regimes to the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC). These agencies were responsive to all key findings and suggestions.
“While we are fiercely independent, we work hard to maintain a constructive rapport with the agencies we oversee”, Mr Anderson stated. “This allows us to deliver meaningful suggestions that effect ongoing improvement in the administration of law enforcement powers in Australia.”
Overall, we saw improvements in agencies’ use of controlled operations. These are covert (undercover) operations carried out to obtain evidence of a serious Commonwealth offence. Controlled operations provide legal protection for authorised participants who engage in conduct that would otherwise be unlawful or lead to civil liability. There was a significant decrease in the number of issues identified per inspection at the ACIC and AFP in 2021-22, in comparison with 2020-21, with both agencies taking action in response to our previous recommendations and suggestions to effect systemic improvements to their governance of the use of controlled operations. There were no ACLEI records requiring our inspection in 2021-22, but we were pleased to note their progress in actioning suggestions from our previous inspection.
“Importantly, this report covers my Office’s first formal inspection of the AFP’s use of delayed notification search warrants”, Mr Anderson said. “I am heartened that we did not identify any major instances of non-compliance by the AFP in using these warrants for the first time.”
“We found room for improvement in the AFP’s keeping of records to document its compliance with legal requirements. We are confident the AFP is committed to making improvements.”
Delayed notification search warrants allow the AFP to conduct a covert search of a premises to investigate certain terrorism offences. They are ‘delayed’ because the occupier of the premises does not know the search is happening at the time and is only notified later.
“My report also includes the outcomes of the health check reviews of the ACIC and AFP preparedness to use the new account takeover warrant powers passed by Parliament in 2021”, Mr Anderson said. “The agencies have done well to ensure their draft policies, procedures and guidance will support the proper use of these new powers. We look forward to conducting our first records inspections on the use of account takeover warrants in 2022-23”.
An account takeover warrant allows law enforcement to take control of an online account when investigating a serious offence. Online accounts include, for example, social media accounts, online banking accounts and accounts associated with online forums.
Source: Commonwealth Ombudsman, Australia
