The Independent Broad-based Anti-corruption Commission’s ('IBAC's') Legal Compliance Unit administers surveillance device warrants issued to IBAC. The Victorian Inepctorate inspected 12 surveillance device files at IBAC on 27 October 2021, this being all relevant records associated with warrants that ceased between 1 January and 30 June 2021.
Findings - Warrants
Were applications for warrants (including extensions and variations) properly made?
The VI found that the six applications made for a surveillance device warrant by IBAC complied with the requirements of section 15 of the Surveillance Devices Act 1999.
Specifically, the VI found the following requirements were met:
- approval was provided by a senior officer
- the applicant was a law enforcement officer
- the applicant’s name as well as the nature and duration of the warrant were specified, including the type of device sought
- a sworn affidavit was provided in support, and
- the application was made to a Supreme Court judge or magistrate, as appropriate.
IBAC also met these requirements in respect of six applications to extend a warrant. Each application was made to a judge in accordance with section 20 of the SD Act.
Were warrants, including retrieval warrants, and emergency authorisations in the proper form, and were revocations properly made?
Issued warrants must specify the following matters in accordance with section 18 of the SD Act:
- the name of the applicant and alleged offence
- the date the warrant was issued, and the kind of surveillance device authorised
- the premises, object or class of object, or the name of the person (if known) in respect of which the device will be used (as applicable)
- the duration of the warrant (not more than 90 days)
- the name of the law enforcement officer primarily responsible for executing the warrant
- any conditions for the installation or use of the device
- when the report under section 30K of the SD Act must be made, and
- the name and signature of the issuing authority (magistrate or judge).
All issued surveillance device warrants met these requirements.
IBAC did not make an application for a retrieval warrant or an emergency authorisation for the use of a surveillance device.
For the inspected warrants, IBAC discontinued the use of a surveillance device and subsequently revoked the associated warrant via a written instrument signed by a delegate of the IBAC Commissioner, in accordance with sections 20A and 20B of the SD Act.
Findings - Records
Did IBAC keep all records connected with warrants and emergency authorisations?
IBAC is required to keep records connected with surveillance device warrants in accordance with section 30M of the SD Act, including:
- each warrant issued
- each notice given under section 20A(3) for the revocation of a warrant
- each emergency authorisation and application made for such
- a copy of each warrant application and any application for its extension, variation or revocation
- a copy of each application for approval to exercise powers under an emergency authorisation
- a copy of each report made under section 30K of the SD Act to a magistrate or judge, and
- a copy of each evidentiary certificate issued under section 36 of the SD Act.
IBAC complied with these record-keeping requirements, noting no application was made for an emergency authorisation nor any evidentiary certificate issued during the period.
Did IBAC keep all other necessary records?
IBAC is also required to keep other records in accordance with section 30N of the SD Act, including details of:
- each use made of information obtained by the use of a surveillance device
- each communication of information obtained by the use of a surveillance device to a person other than an IBAC law enforcement officer
- each occasion information obtained by the use of a surveillance device was given in evidence in a relevant proceeding, and
- the destruction of records or reports obtained by the use of surveillance devices.
The VI found that IBAC complied with these requirements, noting no records or reports were destroyed during the period.
Section 30H(1)(b) of the SD Act requires the IBAC Commissioner to authorise the destruction of information obtained by the use of surveillance devices when it is no longer required.
The VI has previously reported that IBAC changed its approval procedure for destroying records or reports obtained by the use of a surveillance device. IBAC informed the VI it had decided this approval could be acquitted by the Team Leader in the Compliance Unit, rather than the IBAC Commissioner, since this activity is of a reasonably routine administrative nature. Under this implied agency, authorisation to destroy information is made for and on behalf of the IBAC Commissioner.
To ensure the requirements of the SD Act are being satisfied, the VI sought additional information from IBAC, including whether it had considered its ability under section 32(3) of the IBAC Act to delegate this function. In July 2021, IBAC informed the VI it had determined it does have the power to make a delegation and decided to delegate the power to destroy such records to avoid any doubt about the applicability of the principle of implied agency. The VI inspected a delegation instrument made by the IBAC Commissioner in August 2021 that allows certain IBAC Officers including Team Leader, Compliance, to cause any record or report obtained by a surveillance device to be destroyed.
Did IBAC maintain an accurate register of warrants and emergency authorisations?
The VI found that IBAC kept a register of warrants, as required by section 30O of the SD Act.
The register specified, with respect to each warrant file inspected, the following particulars:
- the date the warrant was issued
- the name of the magistrate or judge who issued the warrant, as well as the name of the law enforcement officer primarily responsible for its execution
- the offence in relation to which the warrant was issued
- the period during which the warrant was in force, and
- any variation or extension of the warrant.
Since IBAC did not exercise its emergency authorisation powers during the relevant period, there were no matters to be specified in the register in relation to section 30O(3) of the SD Act.
Findings - Reports
Were reports to the magistrate or judge properly made?
Under section 30K of the SD Act, IBAC is required within the time specified in the warrant to make a report to the magistrate or judge who issued the surveillance device warrant. These reports must state whether the warrant was executed and, if it was, give the following details for its use:
- the name of each person involved in the execution of the warrant
- the kind of surveillance device used
- the period the device was used
- the name of any person whose activities or conversations were captured by use of the device or whose geographic location was determined by the use of a tracking device, if known
- the premises at which the device was installed or the location of its use, as applicable
- the object in or on which the device was installed or the premises at which the object was located when the device was installed, as applicable
- the benefit to the investigation of the use of the device as well as the general use made or to be made of the information derived from its use
- compliance with any warrant conditions, as applicable
- if the warrant was extended or varied, the number of such occurrences and the reasons for them, and
- if the warrant was revoked by the chief officer under section 20A(2) of the SD Act, the reasons the device was no longer required and whether the PIM was notified of the revocation.
The six reports made by IBAC for warrants that ceased between 1 January and 30 June 2021 were made within the requisite timeframe and complied with these requirements.
Was the annual report to the Minister properly made?
The VI found that IBAC was compliant with the reporting requirements of section 30L of the SD Act. The annual report made by the Commissioner for the 2020-2021 financial year met all reporting criteria and was submitted to the Attorney-General by 30 September 2021.
Findings - Transparency and cooperation
The VI considers an agency’s transparency, its cooperation during inspection, and its responsiveness to suggestions and issues to be a measure of its compliance culture.
Did IBAC self-disclose compliance issues?
IBAC did not make any self-disclosures relevant to the warrant files inspected from 1 July to 31 December 2021.
The VI previously reported that IBAC self-disclosed three instances where an assistance order made under section 22 of the SD Act was approved by a judge but was not in the proper form—that is, not endorsed on the face of the relevant surveillance device warrant in accordance with section 22(4)(a) of the SD Act. IBAC subsequently advised that it would amend its surveillance device warrant procedures to ensure any future assistance order will be made in the correct form. Since no procedural updates were made prior to our inspection, the VI will inspect this change at its next scheduled inspection of IBAC records.
Were issues identified at previous inspections addressed?
There were no historical issues to be addressed on this occasion as no issues with IBAC files were identified during the VI’s previous inspection of surveillance device records.
IBAC was responsive and transparent during the inspection process. In our last inspection report, the VI reported that in response to our feedback IBAC had agreed to:
- amend its section 30K report template to include the relevant warrant reference number, and
- include the particular warrant number in emails sent to the Court for transmitting these reports.
The VI confirmed during its inspection that these changes have been made by IBAC to make it clear which warrant is the subject of each email and report.