CHAPTER 3
REPORTS ON THE OPERATION OF ACTS AND PROGRAMS
3.1
Standing Order 25(20) does not provide for the consideration of reports
on the implementation or operation of acts or programs. The committee is not
therefore required to include them in its report on the examination of annual
reports. However, as on previous occasions, the committee has chosen to examine
the following reports:
-
Report to the Attorney-General on the results of inspection of
surveillance device records for 2008 under section 55 of the Surveillance
Devices Act 2004, March 2011 (published by the Commonwealth Ombudsman);
-
Report pursuant to section 91Y of the Migration Act on protection
visa processing taking more than 90 days for the period 1 November 2010 to
28 February 2011 (published by the Department of Immigration and
Citizenship);
-
Report pursuant to section 91Y of the Migration Act on protection
visa processing taking more than 90 days for the period 1 March 2011 to
30 June 2011 (published by the Department of Immigration and Citizenship);
-
Report pursuant to section 440A of the Migration Act on the
conduct of Refugee Review Tribunal reviews not completed within 90 days for the
period 1 November 2010 to 28 February 2011 (published by the Refugee
Review Tribunal); and
-
Report pursuant to section 440A of the Migration Act on the
conduct of Refugee Review Tribunal reviews not completed within 90 days for the
period 1 March 2011 to 30 June 2011 (published by the Refugee Review
Tribunal).
Report under the Surveillance Devices Act 2004
3.2
The Surveillance Devices Act 2004 (the Act) regulates the use of
surveillance devices by law enforcement agencies.[1]
Subsection 55(1) of the Act requires the Commonwealth Ombudsman to inspect the
records of each law enforcement agency to determine the extent of compliance
with the Act by the agency and its law enforcement officers. Under section 61
of the Act, the Ombudsman is required to report to the Minister at six-monthly
intervals on the results of each inspection.[2]
3.3
The inspections conducted by the Ombudsman were limited to those
warrants and authorisations that had expired or been revoked during the
inspection periods.[3]
3.4
This report relates to inspections of records for the following agencies
for the time period indicated:
-
Australian Crime Commission (ACC) (Records from 1 July 2009 to
31 December 2009); and
-
Australian Federal Police (AFP) (Records from 1 July 2009 to
31 December 2009).
3.5
The committee was pleased to note that the Ombudsman did not identify
any issues in relation to the ACC during the reporting period and assessed the
agency as compliant with the Act.[4]
3.6
The Ombudsman found that the AFP was compliant with the Act during the
reporting period; however, identified the following issues for attention:
-
obtaining new warrants to continue use of surveillance devices
for a person, premises or object, rather than extending the original warrant;
-
eligibility requirements to apply for an extension to a warrant;
and
-
access to records which confirm lawful access to premises under 'person
warrants'.[5]
3.7
The Ombudsman made recommendations in relation to the first and third
issues listed above, which aim to improve AFP compliance with the Act.
3.8
The AFP responded to the Ombudsman's report during the Budget Estimates 2011-12
hearings when it appeared before the committee:
Senator HUMPHRIES:...The second issue I want to raise
briefly was the report that came down earlier this week by the Commonwealth
Ombudsman into possible shortcomings in compliance arrangements with covert
surveillance. The Ombudsman makes the point that there is a number of
improperly extended surveillance operations and installed surveillance without
adequate justification. He comments that there is a perception by operational
police that keeping up with the paper trail was burdensome. Can you outline to
the committee what approximately is the process used to begin, say, the use of
a surveillance device and how you would describe that in terms of the burden
that is placed on an officer or officers beginning such an investigation?
...
Mr Negus: The issues around compliance are necessarily
complex because they are quite intrusive powers and there are a range of
different checks and balances in place our officers must go through. Sometimes
at the lower level of the organisation—and we do our best to explain these
things—they might not understand necessarily the rationale for all of those
complexities. ...Again, it is an ongoing education process with us, but I am
pleased that at least we were assessed as being compliant with the act and the
recommendations are more of an administrative nature to improve our performance
rather than anything else.
Mr Gaughan: ...in relation to
any activity where we use covert powers, we are required to complete an
affidavit. In the first instance that affidavit is actually reviewed by senior
officers within the AFP to ensure that it not only complies with the law but
also that there is sufficient evidence to allow us to obtain the relevant
warrant to undertake the activity. In most instances we will then appear before
a member of the Administrative Appeals Tribunal, and a warrant will be provided
and sent up to members of my team to be involved in the installation of the
necessary device to undertake the surveillance in accordance with the
conditions that are put in place by the AAT member.
The issues that were raised in the Ombudsman's report were
primarily around the renewal of those particular surveillance device warrants,
and the issue primarily raised was: where members, inadvertently, instead of
seeking a renewal of a surveillance device had actually made an additional
application for what appeared to be a new device. Obviously the member of the
AAT that then issues the new warrant is not necessarily of the view or the
knowledge that this is an extension of an application. Obviously, and rightly
so, the Ombudsman has some concerns that full and frank information is not being
disclosed to the AAT member...[I]t is an issue of education, and various members
of the AFP are involved in the education process of members. We have had a significant
influx of new members into the organisation in the last few years, as you would
be well aware. But, as the Ombudsman also pointed out, it is not an issue of
intentional noncompliance; it is an issue of people failing, to some extent, to
understand what they are actually supposed to do. And we work very hard to
ensure we comply with the act.[6]
3.9
The committee will continue to monitor this issue in future reports.
Protection visa processing taking more than 90 days
3.10
Section 65A of the Migration Act imposes a requirement for the Minister
to make a decision on a protection visa application within 90 days of the
lodgement of the application. If this target is exceeded, under section 91Y of
the Act, the Secretary of the Department of Immigration and Citizenship is
required to report on protection visa applications for which decision-making
has taken over 90 days. The department is required to report every four
months. The reports reviewed by the committee cover the period 1 November
2010 to 30 June 2011.
3.11
The table below compares protection visa processing by the department
taking more than 90 days for the three previous reporting periods:
|
|
1 July
2010 to 31 October 2010
|
1
November 2010 to 28 February 2011
|
1 March
2011 to 30 June 2011
|
|
Total
number undecided outside of 90 day period
|
1561
|
1760
|
1734
|
|
Total
number decided outside of 90 day period
|
1091
|
1270
|
1151
|
|
Total
number processed outside of 90 day period
|
2652
|
3030
|
2885
|
|
Percentage
of total applications processed outside of 90 day period
|
43%
|
52%
|
29%
|
3.12
The committee notes the improvement in the percentage of total
applications processed outside of the 90 day period for the most recent period,
down from 52% to 29%. However, as noted in Chapter 1 of this report, the
overall result for the percentage of onshore protection applications decided
within 90 days for 2010-11, was lower than the previous two years.
3.13
The department's report covering the most recent period, 1 March 2011 to
30 June 2011, indicates that the number of delays attributable to the department
has risen from 2,072 applications in this category across both decided and
undecided groups, to 2,204.[7]
Refugee Review Tribunal reviews not completed within 90 days
3.14
Section 440A of the Migration Act requires the Refugee Review Tribunal (RRT)
to report on reviews not completed within 90 days. The RRT is required to
report every four months. The reports reviewed by the committee cover the
period 1 November 2010 to 30 June 2011.
3.15
The table below outlines the number of RRT reviews not completed within
90 days for the previous three reporting periods:
|
|
1 July
2010 to 31 October 2010
|
1
November 2010 to 28 February 2011
|
1 March
2011 to 30 June 2011
|
|
Reviews completed outside of 90 days
|
190 (23%)
|
274 (30%)
|
272 (32%)
|
|
Reviews completed within 90 days
|
636 (77%)
|
654 (70%)
|
578 (68%)
|
|
Total
|
826
|
928
|
850
|
3.16
The Migration Review Tribunal-Refugee Review Tribunal (MRT-RRT) has a
KPI target of 70% of RRT cases decided within 90 calendar days.
3.17
The committee notes that the percentage of reviews completed within 90
days declined throughout 2010-11. The Tribunals' Principal Member advised in
the
2010-11 annual report that this was:
due to member capacity issues arising from the combined
impact of the increase in RRT cases and the appointment of experienced members
as Independent Protection Assessors. Meeting the target of finalising 70% of
RRT cases within 90 days will be a significant challenge in 2011-12.[8]
3.18
The MRT-RRT annual report advised that over the 2010-11 period, 71% of
RRT cases were decided within 90 days and the average time to decision was
99 days.[9]
The report further noted:
Increasingly, cases cannot be decided within the relevant
time standards due to the growing volume of cases on hand. In 2010-11 the
tribunals' active caseload increased by 53% compared to 2009-10. While the
tribunals have responded by developing strategies to improve processing
efficiencies, the active caseload has continued to increase.[10]
3.19
The Principal Member of the MRT-RRT advised the committee during the
Additional Estimates 2011-12 hearings that Professor Michael Lavarch has been
appointed by the Minister for Immigration and Citizenship 'to particularly consider
strategies for reducing our backlog and also to look at the question of how the
transition to us of the irregular maritime arrival caseload might best happen'.[11]
Senator Trish Crossin
Chair
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