There are 2 units within Victoria Police that administer surveillance device warrants and emergency authorisations:
- Special Projects Unit (SPU), the major user of surveillance device warrants.
- Technical Projects Unit (TPU), within Professional Standards Command (PSC).
In addition to these units, the TSU within Victoria Police is responsible for the installation, maintenance and retrieval of surveillance devices under the authority of warrants or emergency authorisations. A representative sample of records held by the TSU in relation to these matters were inspected on 27 May 2021 and cross-checked against records held by the SPU and TPU.
The VI inspected all surveillance device files made available for inspection by Victoria Police’s SPU and TPU during the period. In total, 72 warrant files were inspected. This includes 6 warrants that were extended and 2 occasions a warrant was varied. No application for a retrieval warrant or an emergency authorisation was made during the 2020 calendar year.
Three surveillance device files at the TPU were inspected on 12 May 2021, and 69 files at the SPU were inspected from 15-17 June 2021.
Findings: Warrants
Were applications for warrants (including extensions and variations) properly made?
The VI found that all applications made 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 an authorised police 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.
In addition to meeting these requirements, Victoria Police made a total of 8 applications to extend or vary a warrant – each was made to the judge as required by section 20 of the SD Act.
Were warrants, including retrieval warrants, and emergency authorisations in 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 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, and
- The name and signature of the issuing authority (magistrate or judge).
The 72 warrants issued to Victoria Police complied with these requirements.
For the inspected warrants, Victoria Police discontinued the use of surveillance devices and subsequently revoked the associated warrants on 59 occasions via written instruments signed by a delegate of the Chief Commissioner of Police, in accordance with sections 20A and 20B of the SD Act.
Victoria Police did not make an application for a retrieval warrant, nor did it make any emergency authorisations for the use of a surveillance device in the period.
Findings: Records
Did Victoria Police keep all records connected with warrants and emergency authorisations?
Victoria Police 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.
Victoria Police complied with these record-keeping requirements, noting no application was made for an emergency authorisation. A total of 43 evidentiary certificates were inspected for the period.
Did Victoria Police keep all other necessary records?
Victoria Police 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 Victoria Police 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 Victoria Police complied with these requirements. The VI identified an error in the information recorded in the electronic register about the use made of information obtained by a surveillance device for one warrant. Victoria Police’s SPU confirmed that the information it had reported to the judge under section 30K of the SD Act correctly recorded the use that was made and amended the electronic register accordingly.
Victoria Police kept details on the destruction of records and reports related to 73 surveillance device warrants in accordance with section 30N(f) of the SD Act.
Did Victoria Police maintain an accurate register of warrants and emergency authorisations?
The VI found that Victoria Police 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, and
- Any variation or extension of the warrant.
Since Victoria Police did not exercise its emergency authorisation powers with respect to the inspected files there were no further matters to be specified in the register.
Findings: Reports
Were reports to the magistrate and judge properly made?
Under section 30K of the SD Act, Victoria Police 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 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.
All reports made by Victoria Police in accordance with section 30K of the SD Act for warrants that ceased between 1 January and 31 December 2020 were made within the requisite timeframe, however 2 reports contained an error.
Finding 1: Incorrect information given in the report to the judge.
In one warrant file, the TSU action report shows a particular operative conducted maintenance on an installed device on multiple occasions, however the report to the judge does not list this operative as being involved in the execution of the warrant as required by section 30K(2)(b)(i) of the SD Act.
In one other file, although the TSU action report shows a device was installed on 17 January 2020, the report to the judge with respect to section 30K(2)(b)(iii) of the SD Act states the same device was used from 16 January 2020, which was the date when the warrant was issued.
Victoria Police’s SPU confirmed the discrepancies were caused by errors made in the reports to the judge and further advised supplementary reports had been made to correct these inaccuracies. The VI will inspect these additional reports at the next scheduled inspection.
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 Victoria Police self-disclose compliance issues?
Victoria Police’s SPU made one self-disclosure at the inspection during the period. A supplementary report was made to the judge under section 30K of the SD Act to report that information obtained by use of a device was used in an application for a prospective information authorisation.
Victoria Police also informed the VI of a change made in 2020 to the Supreme Court’s process for delivering an issued surveillance device warrant to the applicant in cases where the applicant is not required to attend a hearing. The change to allow the delivery of a warrant electronically - made in response to the COVID-19 pandemic – means the warrant kept on file in accordance with section 30M(a) of the SD Act may be a print-out of the electronic copy rather than the original signed version.
Were issues identified at previous inspections addressed?
The VI partially re-inspected one warrant file from the previous inspection of records at Victoria Police’s SPU. The VI confirmed that a copy of the section 30K report was made to the magistrate who issued the surveillance device warrant.
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