The VI inspected one surveillance device file at the Victorian Fisheries Authority on 17 November 2021, which was the only relevant record 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 application made by the VFA for a surveillance device warrant complied with the requirements of section 15 of the SD Act.
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.
The VFA did not apply to extend or vary a warrant under section 20 of the SD Act during the period.
Were warrants, including retrieval warrants, in the proper form and 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).
The one warrant issued to the VFA met all of these requirements.
The VFA did not apply for a retrieval warrant during the period.
For the inspected warrant, the VFA discontinued the use of a surveillance device and subsequently revoked the associated warrant via a written instrument signed by the CEO, in accordance with sections 20A and 20B of the SD Act.
Findings - Records
Did the VFA keep all records connected with warrants?
The VFA 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
- a copy of each warrant application, and any application for its extension, variation or revocation
- 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.
The VFA complied with these record-keeping requirements, noting no evidentiary certificates were issued during the period.
Did the VFA keep all other necessary records?
The VFA 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 a law enforcement officer of the VFA
- 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 identified an error in the information recorded in the VFA’s use and communications register with respect to the use made of information obtained by a surveillance device. The VFA confirmed the information it had reported to the judge under section 30K of the SD Act was correct, but the register incorrectly omitted two applications for search warrants as a use of information obtained. In this case, the information was used to inform the decision to seek the further warrants, but the applications themselves did not include any information actually obtained as a result of the original warrant. In response to our post-inspection feedback, the VFA notified it has since corrected its register to reference the search warrants. The VI will re-inspect this warrant file at the next scheduled inspection. No records or reports were destroyed by the VFA during the period.
Did the VFA maintain an accurate register of warrants?
The VI found that the VFA kept a register of warrants, as required by section 30O of the SD Act.
The register specified, with respect to the warrant file inspected, the following particulars:
- the date the warrant was issued
- the name of 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.
Findings - Reports
Were reports to the magistrate or judge properly made?
Under section 30K of the SD Act, the VFA 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, to 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 where the device was installed or the location for 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), the reasons the device was no longer required and whether the PIM was notified of the revocation.
The one report made by the VFA for warrants that ceased between 1 January and 30 June 2021 was made within the requisite time-frame and complied with these requirements.
Was the annual report to the Minister properly made?
The VI found the VFA was compliant with the reporting requirements of section 30L of the SD Act. The annual report made by the CEO 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 the VFA self-disclose compliance issues?
The VFA did not make any self-disclosures relevant to the warrant file inspected between 1 July to 31 December 2021. The VI reviewed draft procedural documents including work instructions that relate to administering surveillance device warrants. The VI commends the VFA for its work to develop formal written procedures, and we look forward to reviewing further updates at the next scheduled inspection.
Were issues identified at previous inspections addressed?
The VI notes that the VFA was responsive and transparent during the inspection process. The VI partially re-inspected two warrant files from the previous inspection of records at the VFA. It was confirmed that a supplementary section 30K report was made for each warrant to give corrected information, including a date connected to the use of a device and in one case the operatives involved in the execution of the warrant.
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