Oversight and accountability

Overview

We are committed to ensuring that law enforcement and national security agencies' use of electronic surveillance powers is subject to rigorous oversight and accountability. This protects personal privacy and makes sure that electronic surveillance powers are used in a targeted and proportionate way.

To ensure oversight and accountability, law enforcement and national security agencies must keep detailed records of the use of these powers. These records are subject to regular inspections by the Commonwealth Ombudsman for law enforcement agencies, or the Inspector-General of Intelligence and Security (IGIS) for national security agencies.

The Commonwealth Ombudsman and the IGIS report annually to the Attorney-General on the result of their inspections.

The Ombudsman does not inspect state and territory compliance with Commonwealth powers. Rather, state and territory oversight bodies must inspect state law enforcement agencies' compliance with the Telecommunications (Interception and Access) Act 1979 (TIA Act) as a condition of those agencies being granted powers under the TIA Act.

Record-keeping obligations

Agencies that can apply for and use powers under the electronic surveillance framework have legal obligations to keep detailed records.

As part of these obligations, agencies must keep a record of all warrants and authorisations that have been issued. They must also keep other information, such as information about:

  • the execution of warrants
  • the use and communication of information obtained through warrants or authorisations
  • whether information obtained was used in evidence in court, and
  • warrant applications.

These records are kept so that oversight and inspection bodies can oversee the use of electronic surveillance powers by agencies, and so that agencies can provide accurate reports to the 
Attorney-General and to Parliament. This is important for transparency and gives the public the ability to see whether electronic surveillance powers are being exercised appropriately.

Oversight and inspection

The Commonwealth Ombudsman and the IGIS play a key role in making sure that agencies who use powers under the electronic surveillance framework do so in keeping with the rule of law.

Some of their functions overlap and some are exclusive to each body. Generally, both agencies help government to oversee and review:

  • agencies' compliance with the law and guidelines
  • the effectiveness of law enforcement and national security activities
  • whether law enforcement and national security activities are consistent with human rights or may constitute discrimination
  • the propriety of particular activities, and the relevant effectiveness and appropriateness of procedures (the IGIS only), and
  • whether the collection of intelligence by the Australian Security Intelligence Organisation concerning individuals is justified by reason of its relevance to security (the IGIS only).

After conducting their relevant inspections, the Commonwealth Ombudsman and the IGIS must report on their findings to the relevant minister, who then tables them in Parliament.

Read the results of inspections by the Commonwealth Ombudsman and the IGIS:

Commonwealth Ombudsman

The Commonwealth Ombudsman inspects and audits the records of the following law enforcement agencies' use of certain electronic surveillance powers:

  • the Australian Federal Police (AFP)
  • the Australian Criminal Intelligence Commission (ACIC)
  • the National Anti-Corruption Commission (formerly the Australian Commission for Law Enforcement Integrity)
  • the Australian Competition and Consumer Commission
  • the Australian Securities and Investment Commission
  • the Department of Home Affairs
  • state and territory integrity commissions (access to stored communications and telecommunications data only), and
  • state and territory police (access to stored communications and telecommunications data only).

The Commonwealth Ombudsman also inspects the records of the AFP and the ACIC's use of account takeover warrants and data disruption warrants.

Read more about account takeover warrants and data disruption warrants.

Inspector General of Intelligence and Security

The IGIS is an independent statutory office holder who reviews the activities of the 6 Australian intelligence agencies under their jurisdiction.

The IGIS inspects and audits the records of national security agencies including their use of electronic surveillance powers where appropriate.

The Intelligence Services Legislation Amendment Bill 2023, which is currently before Parliament, proposes changes to the oversight responsibilities of the IGIS as well as the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

The Bill will transfer the Ombudsman's oversight function to the IGIS for the following agencies:

  • Australian Criminal Intelligence Commission (ACIC)
  • Australian Transaction Reports and Analysis Centre
  • Australian Federal Police (AFP) – intelligence functions, and
  • Department of Home Affairs.

The Bill would also enable the PJCIS to request the IGIS to conduct inquiries into certain operational activities of the agencies within the IGIS's jurisdiction. It would, also require the IGIS to provide annual briefings to the PJCIS.

The IGIS also inspects the records of the AFP and the ACIC's use of network activity warrants, given their nature as an intelligence collection tool.

Read more about network activity warrants.

Annual reporting

As well as being subject to IGIS or Commonwealth Ombudsman inspections, law enforcement agencies must also report annually to the relevant minister on their use of electronic surveillance powers.

The Attorney-General tables, in both houses of parliament, annual reports on law enforcement agencies' use of electronic surveillance powers under the TIA Act, Surveillance Devices Act 2004, and Part 15 of the Telecommunications Act 1997.These reports include information and statistics on:

  • the number of warrants issued each year, and to which agency
  • the number of warrant applications refused each year
  • the types of offences specified in warrant applications
  • the number of authorisations made for telecommunications data each year, and by which agencies, and
  • the number of arrests, legal proceedings and convictions that used electronic surveillance information.

Read the Surveillance Devices Act 2004 annual reports.

Read the Annual Report on the TIA Act and Part 15 of the Telecommunications Act.