The New South Wales police force is overusing intrusive technology to monitor the phones and computers of people suspected of committing less serious crime, the commonwealth ombudsman has found.
The watchdog said Victoria and Queensland police were not keeping sufficient records to justify their use of the electronic surveillance powers, while NSW police “were unable to demonstrate” they were meeting the requirements of the Telecommunications (Interception and Access) Act 1979.
The act, referred to as the TIA Act, allows for police or security agencies to seek a warrant to intercept, access and disclose communications in order to investigate the commission or intended commission of a state or federal offence.
To access prospective data, the commonwealth ombudsman said the TIA allows surveillance of up to 45 days if it relates to investigating a crime which carries a penalty of at least three years’ imprisonment.
The commonwealth ombudsman’s report looked at a sample of prospective data authorisations made to support public order offences. The report found that 24 prospective authorisations related to offences carrying only a financial penalty – not a jail term.
“We did not consider that the threshold to access prospective telecommunications data, being a serious offence or an offence punishable by at least 3 years’ imprisonment, was met,” the ombudsman wrote.
“We informed NSWPF that we consider the intention of parliament was that access to prospective telecommunications data would be limited to addressing serious, indictable offences, not summary offences that do not carry a term of imprisonment.”
“In addition, it is difficult to see how the interference with the privacy of a person as a result of the disclosure of data would be justifiable or proportionate in circumstances where the substantive offence does not attract an imprisonment term.
“Accordingly, we consider there is a not insignificant risk that a court would find that NSWPF have not used the powers lawfully.”
NSW police was contacted for comment.
In a statement with the report’s release, commonwealth ombudsman Iain Anderson said he was “concerned with the level of record-keeping by some agencies” for the powers.
“Covert electronic surveillance powers are highly intrusive and impact the privacy of individuals who are unaware and do not have the opportunity to challenge or complain about the use of these powers,” his office said.
The report also raised concerns about records kept by Victoria and Queensland police forces containing “insufficient information to demonstrate the requirements of the TIA Act were met”.
It said the ombudsman had made recommendations to Victoria police over six consecutive years after concerns that officers were not showing how legislative thresholds were being satisfied before data access was authorised, or that “necessary considerations of intrusion on privacy” were being made.
It recommended Victoria police update training processes and improve record keeping, which police had accepted.
A Victoria police spokesperson said it was working toward fully complying with the TIA, but “we acknowledge there have been a small number of circumstances where this has not occurred.”
“We have undertaken a number of steps across the organisation to ensure police are fully educated in relation to their requirements and responsibilities in relation to these requests,” the spokesperson said. Victoria police has boosted mandatory training for those certifying such authorisations for surveillance.
Similar concerns were raised about Queensland police over the course of seven years, the ombudsman said, with similar recommendations which had been accepted in 2024.
The ombudsman conceded it had fewer concerns about Queensland police in recent years since previous recommendations were accepted, but that “the repeated instances of non-compliance identified in this reporting period remain of concern to our Office.”
Queensland police was contacted for comment.
The ombudsman noted a reduction in warrants to access communications stored on devices, from 1,252 in 2018-19 to 738 in 2023-24. It conceded NSW, Victoria and Queensland police had good practices and “comprehensive” processes in dealing with those authorisations.
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