Australian Police Overuse Intrusive Surveillance Powers, Watchdog Finds
The Commonwealth Ombudsman has uncovered that New South Wales police are excessively using highly intrusive legal powers to monitor the phones and computers of individuals suspected of less serious crimes. This revelation highlights significant privacy concerns and potential legal overreach in law enforcement practices across multiple Australian states.
NSW Police Under Scrutiny for Surveillance Practices
According to the ombudsman's report, NSW police have been unable to demonstrate compliance with the Telecommunications (Interception and Access) Act 1979, commonly known as the TIA Act. This legislation permits police and security agencies to obtain warrants for intercepting, accessing, and disclosing communications to investigate state or federal offences. However, the report found that 24 prospective authorisations for data access related to offences carrying only financial penalties, not jail terms, which fails to meet the legal threshold requiring a penalty of at least three years' imprisonment.
Commonwealth Ombudsman Iain Anderson expressed deep concern, stating that covert electronic surveillance powers are highly intrusive and impact the privacy of individuals who are unaware and cannot challenge their use. The report warned that there is a significant risk courts could deem NSW police's actions unlawful, as the interference with privacy may not be justifiable or proportionate for minor offences.
Record-Keeping Failures in Victoria and Queensland
The watchdog also identified serious deficiencies in record-keeping by Victoria and Queensland police forces. In Victoria, the ombudsman has made recommendations for six consecutive years due to officers failing to show how legislative thresholds were met or considering privacy intrusions before authorising data access. Victoria police have accepted recommendations to update training processes and improve record-keeping, with a spokesperson acknowledging occasional non-compliance and emphasizing enhanced mandatory training for certifying surveillance authorisations.
Similarly, Queensland police faced concerns over seven years, with repeated instances of non-compliance noted in the recent reporting period. Although the ombudsman acknowledged fewer issues in recent years since previous recommendations were accepted, the ongoing problems remain a worry. Queensland police have also accepted recommendations aimed at ensuring better adherence to legal standards.
Legal and Privacy Implications
The TIA Act allows for surveillance of up to 45 days when investigating crimes with penalties of at least three years' imprisonment. The ombudsman's report, which examined a sample of authorisations for public order offences, concluded that NSW police's use of these powers for summary offences without imprisonment terms likely violates parliamentary intent. This misuse raises critical questions about the balance between law enforcement needs and individual privacy rights.
Despite these issues, the report noted a reduction in warrants for accessing stored communications, from 1,252 in 2018-19 to 738 in 2023-24. It also conceded that NSW, Victoria, and Queensland police have good practices and comprehensive processes for handling such authorisations, indicating some positive steps amid the broader concerns.
Overall, the findings underscore the urgent need for stricter oversight and compliance with surveillance laws to protect civil liberties while maintaining public safety. The ombudsman's recommendations aim to foster more accountable and transparent use of electronic surveillance powers across Australian police forces.
