The 's (IBAC) ‘Legal Compliance Unit’ administers surveillance device warrants issued to IBAC. The VI inspected 17 surveillance device files at IBAC on 19 and 25 May 2021, this being all relevant records associated with warrants that ceased between 1 January and 31 December 2020.
Were applications for warrants (including extensions and variations) properly made?
The VI found that the 17 applications made for a surveillance device warrant by IBAC 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.
- The application was made to a Supreme Court judge or magistrate, as appropriate.
IBAC also met these requirements in respect of five 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 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 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.
- The name and signature of the issuing authority (magistrate or judge).
All issued surveillance device warrants were found to have met the above-mentioned 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 surveillance devices and subsequently revoked the associated warrants on seven occasions via written instruments signed by a delegate of the IBAC Commissioner, in accordance with sections 20A and 20B of the SD Act.
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 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
- 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.
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
- 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.
The VI has previously reported that IBAC changed its approval procedure for destroying information under the SD Act. IBAC informed the VI it had decided this approval can 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 s 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, for the avoidance of doubt as to whether its use of implied agency is reasonable, to delegate the power to destroy information obtained by surveillance devices. IBAC further advised the delegation will be progressed immediately and its procedures for dealing with the destruction of records will be amended accordingly. The VI is supportive of these measures and will inspect the delegation instrument and revised procedures at the next scheduled inspection.
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 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.
- Any variation or extension of the warrant.
Since IBAC did not exercise its emergency authorisation powers with respect to the inspected files there were no further matters to be specified in the register.
Were reports to the magistrate and 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 for installation of the device 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.
- If the warrant was revoked by the chief officer under section 20A(2), the reasons the device was no longer required and whether the Public Interest Monitor was notified of the revocation.
The 17 reports made by IBAC for warrants that ceased between 1 January and 31 December 2020 were made within the requisite timeframe and complied with the above-mentioned requirements.
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 made 3 self-disclosures at the inspection during the period. These self-disclosures, connected with assistance orders made under section 22 of the SD Act, were brought to the VI’s attention prior to the VI commencing its inspection of the relevant records. In all 3 cases, the approval given by the judge was not made in the proper form. While the form used by IBAC for each assistance order was signed by the judge and specified all matters under section 22(4) of the SD Act, the assistance orders were not endorsed on the face of the relevant surveillance device warrant in accordance with this section.
The VI was informed by IBAC that at the time these assistance orders were made by the Supreme Court, the Court made no comment with respect to section 22(4) requirements. In response to these errors, IBAC advised that it will amend its surveillance device warrant procedures to ensure any future assistance orders are made in the correct form. The VI will inspect these changes at its next scheduled inspection of IBAC records
Were issues identified at previous inspections addressed?
Since no issues with IBAC files were identified from the VI’s previous inspection of surveillance device records, there were no historical issues to be addressed on this occasion.
The VI notes that IBAC was responsive and transparent during the inspection process. Although no compliance issues were identified from the inspection, IBAC agreed to make the following process changes in response to feedback from the VI: to amend the section 30K report template to include the relevant warrant reference number; and to include the particular warrant number in emails sent to the Court for transmitting these reports. These changes will make it clear to which warrant each email and report relates.
Reviewed 04 April 2022