Under that Act NSW law enforcement agencies that are eligible to use audio, optical and other surveillance devices have formal reporting and record keeping obligations. The Act also provides for the safe keeping and destruction of information obtained from use of the devices. The Ombudsman is authorised to conduct inspections of the records to determine the extent of compliance by the agencies and their officers. That inspection covers the NSW Police Force, NSW Crime Commission, Police Integrity Commission and Independent Commission Against Corruption.
In reporting on the NSW Police Force the Ombudsman indicates that 453 surveillance device warrants and one retrieval warrant were issued during the reporting period. There was one emergency use of a surveillance device.
The majority of records are located at Police Prosecutions, Covert Applications Unit. These include applications, warrants, s.51 notices and s.44 reports. In relation to the protected information received as a result of surveillance device warrants this information is kept with the officer responsible for the warrants at particular operational commands or local area commands as the case may be. The law enforcement officer responsible for the warrant is responsible for recording the use, communication or publication of protected information obtained under their warrant.Additional inspections were carried out at Albury, Wagga and Monaro Local Area Commands. Inspections were also conducted at State Crime Command operational squads: Firearms and Organised Crime Squad, Robbery and Serious Crime Squad, and Organised Crime (Targeting) Squad.
Under section 17 of the Act all applications for a surveillance device warrant were made to eligible Judges. No applications were made to eligible Magistrates in the case of applications for a surveillance device authorising the use of a tracking device only. There were 14 remote application warrants under section 18 made, all notified to the Attorney General and with affidavits provided to the issuing judicial officer within the legislative timeframe. Eighteen warrants were varied and/or extended under section 22 during the reporting period. There were 58 revocations under section 23 during the reporting period.
Section 24 (2)(a) requires that a surveillance device which is no longer needed is to be discontinued as soon as practicable. The NSW Police Force uses a Notification of Discontinuation form to record such action. Section 24 (2)(b) further requires that when an application for discontinuation is made, an application is also made for the revocation of the warrant under section 23. While the Act requires that a surveillance device be discontinued as soon as practical after the chief officer of the law enforcement agency is satisfied that the use of the device is no longer necessary, there is no time limit specified for making an application for revocation of the warrant.
The Ombudsman comments that
as an application for a revocation warrant can take several days to process, we hold the view that it is not unreasonable that an application for revocation is not made for any warrant which will in any case expire within 5 days of the use of the surveillance device being discontinued. Our inspections identified [one] warrant which did not comply with the above because the warrant had not been revoked ... We raised this exception with the Commissioner following the inspection and we were advised this instance was a marked exception to the compliance practices of the Covert Applications Unit, highlighted by the fact it was the only instance in 509 files in which this occurred.One application was made and granted for a retrieval warrant under section 25. No remote applications were made for retrieval warrants under section 26. Section 31 provides for emergency use of surveillance devices where there is a threat of serious personal violence or substantial property damage. There was no emergency use under that section. Section 33 deals with 'approval after us'e of surveillance device without warrant or under emergency authorisation. There was one emergency use under that section.
The Ombudsman comments that the tracking device under Warrant SD13/0175 was
installed and activated at 12.40am on 3 April 2013 and deactivated and removed at 11pm on 12 June 2013. The warrant expired at 4.15pm on 10 June 2013. The device was not able to be retrieved immediately after the expiry of the warrant due to operational reasons and was therefore retrieved at the earliest opportunity, being 12 June. The information in the s.44 report for this warrant indicates that data was still being received from the device between the expiry of the warrant at 4.15pm on 10 June and its deactivation at 11pm on 12 June. Also, it indicates the tracking device was used to determine its geographical location after the expiry of the warrant to enable the deactivation and retrieval to occur Information gathered from a device is stored in electronic files and a technical coordinator checks the stored information against the terms (period) of the warrant before releasing the information to operational police. Technical operatives only release information collected within the period of the warrant. However, data from a device may be used to determine its geographical location to enable retrieval of the device. We understand the situation which arose in relation to this warrant may reflect standard practice used by the NSW Police Force technical operatives and if so would breach Section 9 of the Surveillance Devices Act 2007. While a device may be retrieved beyond the expiry date of the warrant it is not appropriate for data to continue to be recorded beyond that time.The Ombudsman continues -
Section 21 (4) of the Act states: If a surveillance device remains on or in premises or a vehicle after the expiry of the surveillance device warrant authorising its installation, use and maintenance, the warrant is taken also to authorise, for the period of 10 days after that expiry, any action to be taken in respect of the retrieval of the device that would be authorised if the surveillance device warrant were a retrieval warrant. Section 29 specifies the action that is authorised to be taken by a retrieval warrant. Section 29 (2) in respect of what a retrieval warrant authorises states: The warrant also authorises the use of the surveillance device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment. We asked the Commissioner for further information about this issue and he outlined the circumstances in which it may not be possible to remotely deactivate a device which means it continues recording past the expiry of the warrant. The Commissioner also advised that any information inadvertently recorded outside the terms of a warrant, because either a device could not be remotely deactivated, or was used in order to locate it, is not provided to the LEO (Investigator) and is destroyed. The practical issues associated with deactivation and retrieval of surveillance devices are clear and the Act has made provision for certain circumstances by authorising a 10 day window period for retrieval, and for the use of retrieval warrants. Nevertheless the practice outlined in the Commissioner’s response breaches the legislative provisions for retrieval of devices. If for some reason it is not possible to retrieve a device within the warrant time, or the period of 10 days thereafter, then a retrieval warrant should be sought on all occasions. The use of a surveillance device beyond the expiry of the warrant, within the 10 day period or by virtue of a retrieval warrant, may be used solely for the purposes of location and retrieval of the device or equipment.Section 44 requires a report to be furnished to the eligible Judge, or eligible Magistrate and to the Attorney General within the time frame specified in the warrant. The maximum penalty for failure to comply with Sections 44 (1),(2) and (6) is 20 penalty units or imprisonment for a term of 12 months, or both. The Ombudsman comments -
In our six monthly report for the inspection period ending December 2012 we noted the significant number of warrant files which did not contain copies of s.44 reports. New procedures were introduced by the NSW Police Force to address this issue and staff from the Covert Applications Section has made a concerted effort to follow up overdue reports. This has resulted in most of these reports being provided to the Attorney-General and eligible Judge. However, in the first half of this current reporting period the provision of reports to both the Attorney General and the Eligible Judge remained problematic. Based on the improvements noted to date, we anticipate the procedures adopted by NSW Police Force in response to our December 2012 report will see this addressed across the upcoming inspection period, which we will report on after December 2013. ... Seventy two (72) warrants had not been reported to the either the eligible Judge or the Attorney General following the expiry of the warrant, as required . This number has decreased from 276 exceptions identified in our last report. • Seventy seven (77) warrants had not been reported to the either the eligible Judge and the Attorney General or both, following the expiry of the warrant as required. The standard number of days is 60 days. While there have been some improvements in relation to reporting to the Attorney General and Eligible Judge, the number of exceptions identified in this report remains unacceptably high. Accordingly the Commissioner must better ensure all relevant officers provide their reports in accordance with the Act and within the statutory timeframe.The Ombudsman makes several recommendations
1. The current practice of the NSW Police Force recording information outside the terms of a warrant cease immediately. The use of a surveillance device after expiry of the warrant be used solely for the purposes of location and retrieval of the device or equipment. If the device cannot be located and retrieved within the warrant period or the window period of days after the expiry of the warrant, then a retrieval warrant must be sought to enable the use of the device to determine its location.
2. The Commissioner continue to have staff address the failure of officers to provide s.44 reports to the Attorney General and/or Eligible Judge as required by the Act and within the statutory timeframe.In reporting on the NSW Crime Commission the Ombudsman notes that
during the reporting period 82 surveillance device files were inspected, all applications for warrants were granted. We were satisfied that the NSW Crime Commission had complied with its obligations under the Act with only one exception identified, as outlined below.During the reporting period the Independent Commission Against Corruption did not apply for any surveillance device warrants. Six surveillance device warrants were sought by and granted to the Police Integrity Commission. All applications were made to eligible Judges.