CHAPTER 3
REPORTS ON THE OPERATION OF ACTS AND PROGRAMS
3.1
Standing Order 25(20) does not require that consideration of reports include
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 inspections of
records under section 55 of the Surveillance Devices Act 2004 (inspections
finalised between 1 January - 30 June 2014); 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 2014 to 30 June 2014 (published by the Refugee Review
Tribunal).
Report to the Attorney-General on the results of inspections of records
under section 55 of the Surveillance Devices Act 2004
3.2
Subsection 55(1) of the Surveillance Devices Act 2004 (SD Act)
requires the Commonwealth Ombudsman (ombudsman) to inspect the records of each
law enforcement agency to determine the extent of their compliance with the SD
Act. Under subsection 6(1) of the SD Act, 'law enforcement agency' is defined
as including the Australian Crime Commission (ACC), the Australian Federal
Police (AFP), the Australian Commission for Law Enforcement Integrity (ACLEI), state
and territory police forces, and other specified state and territory law
enforcement agencies.[1]
Section 61 of the SD Act requires the ombudsman to report to the relevant minister
(the Commonwealth Attorney-General) at six-monthly intervals on the results of
each inspection. Each report covers inspections that are finalised within the reporting
period and inspection results are considered finalised once the ombudsman's
internal report to the agency is completed. The ombudsman provides each agency
an opportunity to comment on its findings.[2]
3.3
The report covers inspections finalised between 1 July and
31 December 2013, and examines the ACLEI, the ACC, the AFP, and
Queensland's Corruption and Crime Commission (CCC) and Crime
and Misconduct Commission (CMC). This instance was the first time the
Commonwealth Ombudsman has inspected the records of the CMC.[3]
The report is informative and well-presented. It includes the objective and
scope of the inspections[4]
in addition to detailed inspection results outlining the progress made since
the previous report and the issues that arose from the inspection.
3.4
The objective of the inspection is to determine the extent of compliance
with the Act by agencies and their law enforcement officers, using the
following criteria to assess compliance:
- Were
applications for warrants and authorisations properly made?
- Were
warrants and authorisations properly issued?
- Where
surveillance devices used lawfully?
- Were
revocations or warrants properly made?
- Were
records properly kept and used by the agency?
- Were
reports properly made by the agency?
- Was
protected information properly dealt with by the agency? [5]
3.5
Based on the criteria provided, the inspection found all agencies,
except for the AFP, were compliant with the SD Act. The report notes the AFP's four
exceptions to compliance:
-
One instance where the AFP self-disclosed that it had applied for
and was granted a tracking device authorisation (rather than a warrant) in
relation to extraterritorial surveillance.
-
Under the warrant, the AFP did not notify the Attorney-General of
extraterritorial surveillance in accordance with s 42(6).
-
A written record of a tracking device authorisation did not fully
comply with s 40(1).
-
One s 49 report had not been provided to the Attorney-General as
soon as practicable after the warrant ceased in accordance with s 49(1).[6]
3.6
The Commonwealth Ombudsman made no recommendations in respect of the
AFP's non-compliance. However, a number of suggestions were made to assist the
AFP to comply better with the relevant provision.[7]
3.7
An internal review conducted by the APF on applications for
extraterritorial surveillance found that the extraterritorial use of tracking devices
is permitted in the Act. However, the AFP should obtain a warrant and
'permission of an appropriate consenting official of the relevant foreign
country in accordance with s 42.'[8]
The report notes that the AFP has received and updated its guidance regarding
extraterritorial surveillance.[9]
3.8
Additionally, the report notes in the same instance, the commissioner
failed to provide 'the Attorney-General evidence in writing that the surveillance
has been agreed to by an appropriate consenting official of that foreign
country' in accordance with s42(6) of the Act.[10]
This section of the Act requires the AFP to notify the Attorney-General 'as
soon as practicable after the commencement of extraterritorial surveillance'. The
inspection found that notification was provided to the Attorney-General more
than five months after the surveillance had commenced and therefore did not
comply with the Act. The AFP has advised the Commonwealth Ombudsman that it has
reviewed and updated its guidance on this issue.[11]
3.9
The investigation also identified that the AFP did not adhere to section
40(1)(d) of the Act. The Act requires:
[T]he written record of an authorisation for the use of a
tracking device in relation to a recovery order to state the date the order was
made and the name of the child to whom the order relates.[12]
3.10
In response to this finding, the AFP did note that the full details of
the recovery order, including the date, were provided to the authorising officer.
In addition, AFP provided its staff with specific guidance on the information
required for authorisations and warrants relating to recovery orders.
Report pursuant to Section 440A of the Migration Act on the conduct of
Refugee Review Tribunal reviews not completed within 90 days
3.11
Section 440A of the Migration Act 1958 (Migration Act) requires
the Refugee Review Tribunal (RRT) to report on the conduct of reviews not
completed within 90 days. The RRT is required to report every four months.
The report reviewed by the committee covers the period 1 March 2014 to 30 June
2014.
3.12
The table below sets out the number of RRT reviews completed within
various timeframes (for example, within or outside of the reporting period, and
if within the reporting period, within or outside of the 90 day decision-making
period), as well as the corresponding statistics that were recorded for the
previous two reporting periods.[13]
3.13
The average processing time for all reviews completed during the
reporting period (either within or outside the 90 day decision period) was 242
days for the period 1 March 2014 to 30 June 2014 compared to a similar result
of 237 days for the previous reporting period of 1 November 2013 to 28 February
2014. [14]
3.14
Table 3.1 provides details of the number of reviews the RRT has
conducted over the last three reporting periods.
Table 3.1:
|
1 July
2013 to 31 October 2013
|
1 November
2013 to 28 February 2014
|
1 March
2014 to 30 June 2014
|
Number of RRT reviews decided
outside of the 90 day decision-making period
|
946
(or 82% of 1,147
reviews)
|
879
(or 81% of 1,082
reviews)
|
1,170
(or 86% of 1,356
reviews)
|
Number of RRT reviews
decided within the 90 day decision-making period (or RRT had no
jurisdiction)
|
201
(or 18% of 1,147
reviews)
|
203
(or 19% of 1,082
reviews)
|
186
(or 14% of 1,356
reviews)
|
Total number of RRT reviews
completed during the reporting period
|
1,147
|
1,082
|
1,356 |
Total number of RRT reviews
incomplete after the 90 day decision-making period and at the end of
the reporting period
|
1,161
(or 39% of 3,009
active reviews on hand at 31.10.13)
|
2,112
(or 49% of 4,308
active reviews on hand at 28.02.14
|
3,212
(or 61% of 5,250 active
reviews on hand at 30.02.13)
|
Total number of RRT
reviews on hand at the end of the reporting period.
|
3,009
|
4,308
|
5,250
|
3.15
The Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT)
has maintained a KPI target of 70 per cent of RRT cases decided within 90
calendar days during the last three reporting periods.[15]
3.16
The percentage of RRT reviews completed within the decision period of 90
days for 2013-14 was 16 per cent.[16]
This percentage is considerably lower than the 30 per cent achieved in 2012-13[17]
and the 32 per cent achieved in 2011-12.[18]
3.17
The 2013-14 annual report addresses the timeliness of its review and states
that it:
[H]as been affected by large increases in lodgements and
cases on hand over the past few years. Lodgements increased by
9 [per cent] in 2013-14, the main contributor to the increase being
the large number of applications for RRT review of unauthorised maritime
arrival cases.[19]
3.18
The committee notes that the total number of RRT reviews that remain on
hand at the end of the reporting period has significantly increased during the
period 1 July 2013 to 30 June 2014. Comparatively, the percentage of RRT
reviews not completed at the end of the reporting period has fluctuated, and in
the most recent report, comprised of 49 per cent of the active reviews on hand
at 28 February 2014.[20]
Senator the Hon Ian
Macdonald
Chair
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