Ombudsman’s report on covert operations

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Ombudsman’s report on covert operations

Posted 21/03/2012 by Cat Barker

A report by the Commonwealth Ombudsman on the records of controlled operations held by Commonwealth law enforcement agencies, tabled on 13 March 2012, reveals the Ombudsman has continuing concerns that the Australian Crime Commission (ACC) is bypassing a review mechanism intended to provide appropriate external scrutiny of longer operations.

Controlled operations are covert law enforcement operations in which one or more persons are authorised to engage in otherwise unlawful conduct in order to obtain evidence of a serious criminal offence. They enable infiltration of criminal organisations by protecting participants from criminal and civil liability for engaging in certain conduct as a legitimate part of an authorised operation. For example, in order to remain credible when operating undercover on an illicit drugs investigation, a law enforcement officer may need to commit a related offence.

Legislative framework

The Crimes Act 1914 allows certain members of the Australian Federal Police (AFP), the ACC and the Australian Commission for Law Enforcement Integrity (ACLEI) to authorise controlled operations of up to three months duration to obtain evidence of offences with maximum penalties of three or more years imprisonment and involving particular matters (such as illicit drugs, money laundering, bribery and child sex offences). The same officers may authorise certain variations to controlled operations (such as the addition or removal of participants), so long as the variation would not:

  • equate to a significant alteration of the nature of an operation (in such instances, an application should instead be made for a new operation) or
  • extend an operation beyond three months.
Operations may only be extended beyond three months by a member of the Administrative Appeals Tribunal (AAT) nominated for that purpose by the responsible Minister. AAT members may, if satisfied of a range of matters, extend an operation by up to three months at a time, to a maximum duration of 24 months. AAT members are not able to grant other types of variations.

The explanatory memorandum states that this system is designed to 'provide additional, external oversight for longer operations, while retaining flexibility for shorter operations' (p. 68). External oversight is an essential component in legislative schemes that provide such powers to law enforcement agencies.

The Ombudsman is required to inspect records kept by the AFP, ACC and ACLEI on controlled operations to determine their compliance with the Crimes Act and to report annually on its monitoring activities to the responsible Minister.

Ombudsman’s 2009-10 findings

In its 2009-10 annual monitoring report, the Ombudsman reported it had found that a number of the ACC's authorising certificates contained identical details, and that 'it appeared that a series of certificates authorised what was effectively two ongoing operations' (p. 14). The Ombudsman found that the certificates inspected were the most recent in a series dating back to 2007, and that the latest AAT reviews of the two operations took place in 2008. While noting the internal controls in place within the ACC, the Ombudsman concluded that this effectively circumvented the legislative requirement for ongoing operations to be externally reviewed by the AAT at least every three months.

The Chief Executive Officer of the ACC issued a response, stating that the ACC's position was that the practice of internally issuing a new authorisation instead of applying to the AAT for an extension was lawful given the nature and extent of some of its operations. The CEO indicated that the ACC and the Ombudsman had been discussing the legal interpretation of the relevant provisions and that the ACC had sought legal advice from the Australian Government Solicitor on the matter. He indicated that until the advice had been finalised, the ACC had instructed its authorising officers to comply with the Ombudsman's interpretation.

At the May 2011 Estimates hearings, the CEO explained that one reason the ACC authorised new operations instead of seeking extensions through the AAT was that the nature of the agency’s operations changed as they progressed. He explained that there are two situations in which new authorisations must be made internally instead of seeking to have an operation extended by an AAT member:
  • where there is to be a substantive change to the operation and
  • where the initial operation has a duration of less than three months.
It is correct that neither an authorising officer nor an AAT member may authorise a significant alteration of the nature of a controlled operation (though the Crimes Act does not set out what constitutes a ‘significant alteration’). However, the certificates for the operations in question were identified by the Ombudsman as problematic precisely because the particulars were ‘identical’ (p.14). This suggests that rather than authorising new operations they were in effect extending existing operations. The ACC’s assertion that an operation with an initial duration of less than three months cannot be extended by an AAT member does not seem to be supported by the legislation, which simply limits AAT members to authorising extensions only within the final two weeks of an operation (s.15GT).

The issue was taken up by the Parliamentary Joint Committee on Law Enforcement in the context of its examination of the ACC's 2009-10 annual report. The Committee received briefings from both the Ombudsman and the ACC and discussed the matter further with the ACC at a public hearing. The Committee concluded that where changes of both scope and duration beyond three months are sought to a controlled operation, the approach that most accurately reflects the intention of the legislation is for the change in scope to be approved by the ACC and the change in duration to be approved by the AAT, and recommended that this approach be adopted.

Ombudsman’s 2010-11 findings

In its 2010-11 report, the Ombudsman identified the same issue with the ACC's records. In particular, it found that additional consecutive authorities had been issued in relation to the same two operations identified in its 2009-10 report. The Ombudsman notes that the ACC takes the view that even where consecutive authorities do not differ significantly, it may issue a new authority internally instead of applying to the AAT for an extension of an operation, but nevertheless undertook as of March 2011 to seek AAT review where legally possible. The Ombudsman made a single recommendation for the ACC:
When seeking to conduct controlled operations beyond three months, that the Australian Crime Commission uses the process outlined under s 15GU of the Crimes Act 1914 to extend the authority through the AAT. Where this is not followed, that the Australian Crime Commission provides sufficient and reliable records to demonstrate why AAT review was not legally possible (p.12).
The Ombudsman has agreed with the ACC that the agency's practices to date are not unlawful. It has therefore assessed the ACC as compliant with the Crimes Act in both its 2009-10 and 2010-11 reports, despite its commentary in the earlier report and recommendation in the latter. However, it is clear that both the Ombudsman and the Law Enforcement Committee consider it is important that that ACC upholds not just the text, but the spirit, of the legislation governing controlled operations.

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