Victoria Police

There are two units within Victoria Police that administer surveillance device warrants and emergency authorisations:

• Special Projects Unit (SPU), the major user of surveillance device warrants, and
• Technical Projects Unit (TPU), within Professional Standards Command.

In addition, the Technical Surveillance Unit (TSU) within Victoria Police is responsible for the installation, maintenance and retrieval of surveillance devices under the authority of warrants or emergency authorisations. Records held by the TSU in relation to these matters are inspected annually and cross-checked against records held by the SPU and TPU. The TSU’s records were not inspected during the period covered by this report.

The VI inspected all surveillance device files made available for inspection by Victoria Police’s SPU and TPU during the 1 July to 31 December 2021 period. In total, 42 warrant files were inspected. This included seven warrants that were extended and one that was varied, one retrieval warrant and an emergency authorisation.

Two surveillance device files at the TPU were inspected on 8 September 2021, and 40 files at the SPU were inspected from 9-11 November 2021.

Findings - Warrants

Were applications for warrants (including extensions and variations) properly made?

The VI found that all applications made for a surveillance device warrant complied with the requirements of section 15 of the SD Act.

Specifically, the VI found the following requirements were met:

• approval was provided by an authorised police officer
• the applicant was a law enforcement officer
• the applicant’s name as well as the nature and duration of the warrant were specified, including the type of device sought
• a sworn affidavit was provided in support, and
• the application was made to a Supreme Court judge or magistrate, as appropriate.

In addition to meeting these requirements, Victoria Police made a total of eight applications to extend or vary a warrant – each was made to the relevant judge as required by section 20 of the Surveillance Devices Act 1999.

Were warrants, including retrieval warrants, and emergency authorisations in the proper form and revocations properly made?

Issued warrants must specify the following matters in accordance with section 18 of the SD Act:

• the name of the applicant and alleged offence
• the date the warrant was issued, and the kind of surveillance device authorised
• the premises, object or class of object, or the name of the person (if known) in respect of which the device will be used (as applicable)
• the duration of the warrant (not more than 90 days)
• the name of the law enforcement officer primarily responsible for executing the warrant
• any conditions for the installation or use of the device
• when the report under section 30K of the SD Act must be made, and
• the name and signature of the issuing authority (magistrate or judge).

The 33 warrants issued to Victoria Police complied with these requirements.

The one issued retrieval warrant complied with section 20F of the SD Act by specifying the following:

• the name of the applicant and the date the warrant was issued
• the kind of surveillance device authorised for retrieval and the premises or object from which it is to be retrieved
• the duration of the warrant (not more than 90 days)
• the name of the law enforcement officer primarily responsible for executing the warrant
• any conditions for entry of premises
• when the report under section 30K of the SD Act must be made, and
• the name and signature of the issuing authority (magistrate or judge).

One emergency authorisation was given by a senior officer at Victoria Police. The application for approval of the exercise of powers under the emergency authorisation was made to a Supreme Court judge within two business days and was supported by a sworn affidavit. It specified the following in accordance with section 28 of the SD Act:

• the name of the applicant, and
• the kind of surveillance device to be approved.

For the inspected warrants, Victoria Police discontinued the use of surveillance devices and subsequently revoked the associated warrants on 23 occasions via written instruments signed by a delegate of the Chief Commissioner of Police, in accordance with sections 20A and 20B of the SD Act.

Findings - Records

Did Victoria Police keep all records connected with warrants and emergency authorisations?

Victoria Police is required to keep records connected with surveillance device warrants in accordance with section 30M of the SD Act, including:

• each warrant issued
• each notice given under section 20A(3) for the revocation of a warrant
• each emergency authorisation, and the application made for such
• a copy of each warrant application, and any application for its extension, variation or revocation
• a copy of each application for approval to exercise powers under an emergency authorisation
• a copy of each report made under section 30K of the SD Act to a magistrate or judge, and
• a copy of each evidentiary certificate issued under section 36 of the SD Act.

Victoria Police complied with these record-keeping requirements. A total of nine evidentiary certificates were inspected for the period.

Did Victoria Police keep all other necessary records?

Victoria Police is also required to keep other records in accordance with section 30N of the SD Act, including details of:

• each use made of information obtained by the use of a surveillance device
• each communication of information obtained by the use of a surveillance device to a person other than a Victoria Police law enforcement officer
• each occasion information obtained by the use of a surveillance device was given in evidence in a relevant proceeding, and
• the destruction of records or reports obtained by the use of surveillance devices.

The VI found that Victoria Police complied with these requirements.

Victoria Police kept details on the destruction of records and reports related to 26 surveillance device warrants in accordance with section 30N(f) of the SD Act.

Did Victoria Police maintain an accurate register of warrants and emergency authorisations?

The VI found that Victoria Police kept an accurate register of warrants, as required by section 30O of the SD Act.

The register specified for each warrant file inspected the following particulars:

• the date the warrant was issued
• the name of magistrate or judge who issued the warrant, as well as the name of the law enforcement officer primarily responsible for its execution
• the offence in relation to which the warrant was issued
• the period during which the warrant was in force, and
• any variation or extension of the warrant.

With respect to the emergency authorisation, the register specified the following matters:

• the date the emergency authorisation was given
• the name of senior officer who gave the authorisation, as well as the law enforcement officer to whom it was given
• the offence connected to the authorisation, and
• the date the application was made for approval of powers exercised under the authorisation.

Findings - Reports

Were reports to the magistrate or judge properly made?

Under section 30K of the SD Act, Victoria Police is required within the time specified in the warrant to make a report to the magistrate or judge who issued the warrant.

With respect to a surveillance device warrant, the report must state whether the warrant was executed and, if it was, to give the following details for its use:

• the name of each person involved in the execution of the warrant
• the kind of surveillance device used
• the period the device was used
• the name of any person whose activities or conversations were captured by the use of the device or whose geographic location was determined by the use of a tracking device, if known
• the premises for installation of the device or the location for its use, as applicable
• the object in or on which the device was installed or the premises at which the object was located when the device was installed, as applicable
• the benefit to the investigation of the use of the device as well as the general use made or to be made of the information derived from its use
• compliance with any warrant conditions, as applicable
• if the warrant was extended or varied, the number of such occurrences and the reasons for them, and
• if the warrant was revoked by the chief officer under section 20A(2), the reasons the device was no longer required and whether the PIM was notified of the revocation.

In the case of a retrieval warrant, the report must:

• give details of any premises entered, anything opened and any object removed and replaced
• state whether the surveillance device was retrieved and, if not, the reason why
• give details of compliance with any warrant conditions, as applicable, and
• state whether the chief officer revoked the warrant and, if so, whether the PIM was notified of this and the reasons for the revocation.

All reports made by Victoria Police under section 30K of the SD Act for warrants that ceased between 1 January and 30 June 2021 were made within the requisite time-frame; however one report connected to a surveillance device warrant contained an error.

Was the annual report to the Minister properly made?

The VI found that Victoria Police complied with the reporting requirements of s 30L of the SD Act. The annual report made by the Chief Commissioner for the 2020-2021 financial year met all reporting criteria and was submitted to the Attorney-General by 30 September 2021.

Findings - Transparency and cooperation

The VI considers an agency’s transparency, its cooperation during inspection, and its responsiveness to suggestions and issues to be a measure of its compliance culture.

Did Victoria Police self-disclose compliance issues?

Victoria Police’s SPU made three self-disclosures at the inspection during the period. In respect of three warrants, supplementary reports were made to the judge under section 30K of the SD Act to give corrected information. Two supplementary reports gave an additional use for the information obtained by a surveillance device, and one other report corrected the period during which a device was used. The requirement to make these corrections was identified from SPU’s quality assurance checks.

Victoria Police’s SPU informed the VI of a process change with respect to oversighting a warrant when it is active but no devices are installed. This change was made in response to a significant delay it experienced in receiving a report from the TSU that confirmed an earlier installed device had been retrieved. As a result of this delay, the SPU was unable to confirm if the warrant could be revoked in a timely manner. The unit now monitors all active warrants it administers and seeks confirmation from the TSU about two weeks prior to each warrant’s expiry to check whether any devices are still in use under the warrant. This information subsequently informs further checks as to whether the warrant can be revoked or will likely require an extension.

Were issues identified at previous inspections addressed?

The VI partially re-inspected three warrant files to confirm corrections were made for errors identified during the previous inspection of records at Victoria Police’s SPU. The VI confirmed in the case of two warrants a supplementary section 30K report was made, and for one other warrant the register was amended. However, the VI identified an error with respect to one supplementary report—it was not made to the judge who issued the warrant. In response to this feedback, the unit informed the VI that it made an additional supplementary report addressed to the correct judge. The VI will partially re-inspect this warrant file at the next scheduled inspection.