Auditing covert operations
Under the Telecommunications (Interception and Access)(New South Wales) Act 1987 and the Surveillance Devices Act 2007, the NSW Police Force, NSW Crime Commission, Independent Commission Against Corruption and Police Integrity Commission can intercept telephone conversations and plant devices to listen to, photograph or video conversations and track the position of objects.
Controlled or ‘undercover’ operations can also be carried out under the Law Enforcement (Controlled Operations) Act 1997, which allows activities that would otherwise involve breaches of the law, such as the possession of illicit drugs, to be undertaken. The Australian Crime Commission, Australian Federal Police and Australian Customs and Border Protection Service are also authorised to conduct controlled operations under NSW legislation.
Operations of these kinds involve significant intrusions into people’s private lives. Agencies must follow the approval procedures and accountability provisions set out in the relevant legislation. Reviewing their compliance with these requirements is an important function of the Ombudsman.
Controlled operations are an important investigation tool. They allow law enforcement agencies to infiltrate criminal groups – particularly those engaged in drug trafficking and organised crime – to obtain evidence to prosecute criminal offences or expose corrupt conduct.
The chief executive officer of the law enforcement agency gives approval for controlled operations without reference to any external authority. To ensure accountability for these undercover operations, we have a significant role in monitoring the approval process.
Agencies must notify us within 21 days if an authority to conduct an operation has been granted or varied, or if a report has been received by the agency’s chief executive officer on the completion of the operation. Retrospective authorities for controlled operations must be notified to us within 7 days of being granted.
We inspect the records of each agency at least once every 12 months to ensure they are complying with their legislative requirements. We also have the power to inspect agencies’ records at any time and make a special report to Parliament if we have concerns that should be brought to the attention of the public.
We report in detail on our monitoring work under the Law Enforcement (Controlled Operations) Act 1997 in a separate annual report. We include details about the type of criminal conduct targeted in the operations and the number of people who were authorised to undertake controlled activities, as well as information about the results of the operations.
The Ombudsman has been involved in monitoring law enforcement agencies' compliance with the requirements of the telecommunications interception legislation since 1987. Our role does not include scrutinising the approval process for telephone intercepts because a judicial officer or member of the Administrative Appeals Tribunal grants a warrant for a telephone interception.
We check whether the agency carrying out the telecommunication interception has complied with recordkeeping requirements. Records must document the issue of warrants and how the information gathered was used. All telephone intercept records have to be kept under secure conditions by the agency and destroyed once specified conditions no longer apply. Some records must be provided to the Attorney General.
We are required to inspect each agency’s records at least twice a year and also have the power to inspect their records for compliance at any time. We report the results of our inspections to the Attorney General. The Telecommunications (Interception and Access) (NSW) Act 1987 prevents us from providing any further information about what we do under that Act.
The Surveillance Devices Act 2007 (the SD Act) sets out the requirements for the installation, use and maintenance of listening, optical, tracking and data surveillance devices.
It restricts the communication and publication of private conversations, surveillance activities and information obtained from using these devices. NSW law enforcement agencies are given power under the SD Act to use surveillance devices to investigate crime and corrupt conduct.
Applications are made to eligible judges for warrants to authorise the use of most surveillance devices. In the case of tracking devices – or retrieval warrants for tracking devices – applications can be made to eligible magistrates.
The Act imposes a number of record-keeping, reporting, use and security responsibilities on law enforcement officers granted a warrant. It also requires us to inspect the records of each agency from time to time to determine the extent of compliance with the Act, and to report to the Attorney General at six monthly intervals – 1 October to 30 June and 1 April to 31 December – on the results of those inspections. The Attorney then tables these reports and we make them available on this website.
Inspecting records of search warrants
Covert search warrants
Part 19 of the Law Enforcement (Powers and Responsibilities) Act 2002 requires the Ombudsman to inspect the records of the NSW Police Force, NSW Crime Commission and Police Integrity Commission every 12 months to determine whether they are complying with the requirements of the Act in relation to covert search warrants. We must also prepare a report of our work in this area for the Attorney General and Minister for Police.
Criminal organisation search warrants
The Criminal Organisations Legislation Amendment Act 2009 introduced a new form of search warrant – a criminal organisation search warrant – which police can seek from an eligible judge of the Supreme Court. These warrants allow police to search premises for things connected with an ‘organised criminal offence’. These are serious indictable offences arising from, or occurring as a result of, organised criminal activity.
The powers conferred in these warrants are the same as for usual search warrants, except that they operate for seven days instead of 72 hours and have a lower evidentiary threshold (‘reasonable suspicion’) compared to ordinary search warrants (‘reasonable belief’). Applications to the eligible judge must be approved by a police officer of the rank of superintendent or above.
Under the legislation, we have to inspect and report on the records of the NSWPF every two years to ensure that the requirements of the Act are being complied with.
Criminal organisation search warrants are not covert, but we inspect them as part of our general program for inspecting records of covert operations.
Reports about the use of these search warrant powers are not made public.