Ombudsman Uncovers NSW Police Overuse of Intrusive Surveillance Powers
The Commonwealth Ombudsman has issued a damning report revealing that New South Wales police are overusing highly intrusive legal powers to monitor the phones and computers of individuals suspected of committing less serious crimes. This finding highlights significant concerns about privacy violations and the proportionality of surveillance measures in law enforcement operations across Australia.
Inadequate Record-Keeping in Victoria and Queensland
In addition to the issues in NSW, the watchdog found that Victoria and Queensland police forces are not maintaining sufficient records to justify their use of electronic surveillance powers under the Telecommunications (Interception and Access) Act 1979, commonly known as the TIA Act. The ombudsman stated that NSW police were unable to demonstrate compliance with the act's requirements, raising legal risks about the lawfulness of their actions.
The TIA Act permits police and security agencies to obtain warrants for intercepting, accessing, and disclosing communications to investigate state or federal offences. For prospective data access, surveillance can last up to 45 days if related to crimes punishable by at least three years' imprisonment. However, the ombudsman's report examined a sample of authorisations for public order offences and found that 24 involved offences carrying only financial penalties, not jail terms.
Legal Thresholds and Privacy Concerns
The ombudsman emphasised that the parliamentary intent was to limit such surveillance to serious, indictable offences, not summary offences without imprisonment terms. It argued that interfering with an individual's privacy through data disclosure is not justifiable or proportionate when the underlying offence does not warrant incarceration. This poses a significant risk that courts could deem NSW police's use of powers unlawful.
Commonwealth Ombudsman Iain Anderson expressed deep concern over the record-keeping practices of some agencies, noting that covert electronic surveillance is highly intrusive and impacts privacy without individuals' knowledge or ability to challenge it. The report also flagged ongoing issues with Victoria and Queensland police, where records lacked enough information to prove compliance with the TIA Act.
Recommendations and Police Responses
For Victoria police, the ombudsman has made recommendations over six consecutive years, citing failures to show how legislative thresholds were met or to consider privacy intrusions adequately. Victoria police has accepted these recommendations, committing to updated training processes and improved record-keeping. A spokesperson acknowledged occasional non-compliance but highlighted steps to educate officers on their responsibilities, including enhanced mandatory training for those authorising surveillance.
Similarly, Queensland police faced concerns over seven years, with recommendations accepted in 2024. While the ombudsman noted fewer issues recently due to past recommendations, repeated non-compliance instances remain troubling. Queensland police was contacted for comment but has not provided a detailed response at this time.
Trends in Surveillance Authorisations
The report observed a decline in warrants for accessing communications stored on devices, from 1,252 in 2018-19 to 738 in 2023-24. Despite this reduction, the ombudsman acknowledged that NSW, Victoria, and Queensland police have developed good practices and comprehensive processes for handling such authorisations. However, the overarching findings underscore a pressing need for stricter adherence to legal standards and enhanced oversight to protect civil liberties in an era of expanding digital surveillance.
