The VI inspected 2 surveillance device files at the Victorian Fisheries Authority (VFA) on 9 March 2021, these 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 2 applications 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.
- The application was made to a Supreme Court judge or magistrate, as appropriate.
The VFA made no application under section 20 of the SD Act for a warrant to be extended or varied during the period.
Were warrants, including retrieval warrants 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.
- The name and signature of the issuing authority (magistrate or judge).
The 2 warrants issued to the VFA met all of these requirements.
The VFA did not make an application for a retrieval warrant during the period.
For the inspected warrants, the VFA discontinued the use of a surveillance device and subsequently revoked the associated warrant on one occasion via a written instrument signed by the CEO, in accordance with sections 20A and 20B of the SD Act.
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
- 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.
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 found that the VFA complied with these requirements.
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 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.
Were reports to the magistrate and 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 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 2 reports made by the VFA for warrants that ceased between 1 January and 31 December 2020 were made within the requisite timeframe, however both reports were found to contain one or more errors.
Finding 1: Incorrect information given in the report to the judge/magistrate.
Section 30K(2)(b)(iii) of the SD Act requires the report to the magistrate to give the period during which the device was used. In the case of one warrant, the action report made by Victoria Police’s Technical Surveillance Unit (TSU) shows the device was installed by its operatives on 7 January 2020, however the report to the magistrate reports instead when the device was authorised from – being 19 December 2019.
An error with reporting the period during which the devices were used was repeated in the other warrant file inspected. In this case, the TSU action report showed the last device was retrieved on 5 June 2020, however the VFA’s report to the judge instead reported the end date for the authorisation of the devices – being 10 June 2020, the date the warrant was revoked. For the same warrant, a further error was identified with respect to reporting the operatives involved in the execution of the warrant. The operatives listed in the report to the judge are different to the operatives given in the TSU action reports.
In our follow-up discussions with the VFA, it was confirmed the section 30K report template used by the VFA incorrectly refers to the warrant’s authorisation date, rather than the period during which the device is used. The VFA advised that supplementary reports will be made under section 30K of the SD Act to correct the reporting errors. To ensure no re-occurrence of these issues, the VFA further stated it has amended its section 30K report template and has also updated its procedures. The VI will inspect the supplementary reports and procedural changes 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 the VFA self-disclose compliance issues?
The VFA did not make any self-disclosures relevant to the warrant files inspected from 1 January to 30 June 2021.
Were issues identified at previous inspections addressed?
The VI was not required to inspect any VFA files from the previous inspection of surveillance device records as there were no historical issues to be addressed on this occasion.
The VI notes that the VFA was responsive and transparent during the inspection process. In response to the issues raised by the VI about the reports made to the judge and magistrate, the VFA committed itself to make supplementary reports and amend procedures. The VFA further demonstrated its responsiveness to feedback from the VI by agreeing to amend its use and communications register template so that it explicitly refers to any external agency to which the VFA has communicated information that was obtained by a device.