Two law enforcement agencies fall within the Ombudsman's jurisdiction—the Australian Federal Police (AFP) and the Australian Crime Commission (ACC). During 2004–05, the Ombudsman's office was actively engaged across a range of issues in oversighting the law enforcement responsibilities of those agencies. Major activities included handling complaints about actions taken by the law enforcement agencies, oversighting the use by those agencies of intrusive powers, and completing several own motion investigations.
This section provides an overview of the activities undertaken by the Ombudsman's office this year in relation to the two law enforcement agencies.
Table 4.1 lists the functions of law enforcement that come within the Ombudsman's independent complaint and oversight role and the legislative underpinning for each role.
The oversight of the AFP's complaint handling constitutes the majority of our work in law enforcement. This is largely because of the AFP's high level of interaction with the public (especially through community policing in the ACT) and the requirement, specific to the AFP, that all complaints received by the AFP be disclosed to the Ombudsman for external assessment. The Ombudsman submits an annual report to the ACT Legislative Assembly on the performance of the ACT Ombudsman function, which includes ACT Policing (see www.ombudsman.act.gov.au).
The Ombudsman's office and the AFP share responsibility for investigating complaints about the AFP and AFP Protective Service members. The AFP's Professional Standards team investigates most complaints about AFP members. The Ombudsman reviews all AFP complaint investigations conducted by the Professional Standards team and, where appropriate, conducts other independent inquiries and investigations.
During the year, the AFP's community policing role remained the primary source of complaints, the majority of which were resolved through workplace resolution. Most complaints were of a relatively minor nature and concerned the alleged conduct of police, such as incivility or rudeness. Under the Complaints (Australian Federal Police) Act 1981 (Complaints Act), the AFP conciliates these complaints directly between the complainant and senior operational staff through its workplace resolution process. When a complaint is finalised through this process, the AFP provides a report to the Ombudsman explaining how the AFP managed or investigated the complaint.
Many police complaints were effectively resolved with an explanation of police powers and priorities, or acknowledgment of a relatively minor mistake by a member. One example concerned the execution of a search warrant on the wrong person: the person had a name similar to the person for whom the search warrant was intended. The AFP apologised to the person, explained how the mistake had been made and acknowledged the need for due diligence in future when providing details for search warrants. Another complaint related to the execution of a recovery order on a young child—this resulted in a change to the AFP Practical Guide on actioning Family Law Court process.
The AFP's Professional Standards team formally investigates serious complaints about police actions, with greater involvement from Ombudsman staff. We received briefings on the progress of investigations, and worked with AFP investigators to ensure the appropriate management of systemic issues and contact with complainants. We reviewed all complaint investigation reports and were generally satisfied that investigations were comprehensive and robust.
The majority of our requests to the AFP concerned the need for the AFP to persevere with a complainant in resolving a problem. In one case, we asked the AFP to persist in arranging a conciliation meeting despite problematic behaviour from the complainant, who alternately was insisting on a conciliation but then declining to participate. We also asked the AFP to deal with substantive issues raised by a complainant who appeared to have been prevented from providing information relevant to his complaint.
For some investigations, we requested the AFP to reconsider certain aspects of, or responses to, complaints. The AFP's responses to our requests were invariably professional and helpful, which is illustrative of the mature relationship between this office and the AFP.
In 2004–05, the Ombudsman's office received 696 complaints about the AFP, compared to 712 in 2003–04, a decrease of 2%. There was an increase in complaints finalised, to 751 from 664 in the previous year (up 13%). Fluctuations in complaint numbers have occurred over the past six years, as shown in Figure 4.8.
This year, we continued to observe that many complainants remained dissatisfied with the explanations for police actions provided to them through the conciliation process. In most cases, we felt that the conciliation represented an adequate approach to the complainant's concerns. Despite dissatisfaction from the complainant, we decided that further consideration by our office was not warranted for the 258 unsuccessful conciliations.
Even when the result of a workplace resolution process may not be the outcome sought by the complainant, the process is nearly always beneficial. The process achieves improved understanding by all parties involved in the complaint, and the complainant has the opportunity to discuss the matter directly with senior police. Our assessment is that this approach has led to improved outcomes for complainants and the accountability framework as a whole.
Discretionary decision making
Ombudsman staff have worked collaboratively with the AFP since 2003 on a project to improve administrative processes associated with the adjudication of traffic infringement notices (TINs). The project was initiated because of the high level of complaints over a number of years about the AFP's traffic adjudication responsibility.
The project has led to changed administrative practices, including those relating to the AFP's role in deciding whether to withdraw an individual TIN or to allow the dispute to be resolved in court. The Ombudsman is confident the changes will reduce complaints about the AFP in this area. The Ombudsman provided the results of the project to the AFP Commissioner in early July 2005.
In 2004–05, a significant number of complaints about ACT Policing related to TINs—specifically about rudeness or bias on the part of the officer issuing the TIN. It appears that members of the public felt they were not treated respectfully, or that the AFP officer issuing the TIN was not prepared to consider exercising the discretionary power available to the officer not to issue a TIN.
We continued to emphasise that decisions by AFP members that impose a financial penalty on a person (for example, through the issue of a TIN or a defect notice) or deprive a person of their liberty (through arrest or a refusal to grant bail), should include consideration of any available discretionary powers to take a different course of action.
The reality of operational policing is that AFP members are required to make decisions in pressured circumstances and often when dealing with people who are agitated or aggressive. While the focus in policing is upon maintaining appropriate control of the situation and circumstances, it is also important that AFP members allow people to explain their actions and request the application of police discretion.
Ombudsman staff worked on four special investigations under powers conferred by the Complaints Act. Two investigations were completed in 2004–05, with the other two investigations to be completed in 2005–06.
One of the investigations examined the adequacy of an internal AFP investigation of alleged corrupt behaviour in the building and accommodation area of the AFP. Following notification by the AFP to the Ombudsman of a series of complaints and internal allegations of possible corruption, it was agreed that the Ombudsman's office would oversight the AFP's internal investigation of the matter.
The investigation focused on two issues: the AFP's ability to identify systemic weaknesses that might have enabled the individual concerned to act corruptly; and whether the AFP's response to the individual's actions was appropriate. We recommended that the AFP Commissioner implement all of the recommendations made by the internal investigation, and consider the apparent systemic failures within the AFP that contributed to the incident. The Commissioner accepted the recommendations and has commenced implementation. He also advised that he has referred the matter to the Director of Public Prosecutions and that criminal charges have been laid. We will continue to take an interest in this matter.
Witness protection program
We received two complaints about the AFP's administration of the National Witness Protection Program (NWPP).
One complaint was from a person who stated that he was offered participation in the NWPP if he assisted the AFP and that the offer was withdrawn when the person was considered 'less useful' to the AFP. This matter raised potentially serious issues for the administration of the NWPP, as participation in the program cannot be used to induce a person to cooperate with police; an offer of that kind would be in contravention of the Witness Protection Act.
The process of deciding who will be accepted as a participant in the program is handled by a specialist area of the AFP that must consider a range of factors separate from the assistance that a person may have provided in an investigation. The making of 'informal' offers might jeopardise the effective operation of the NWPP.
In this case, records showed that the AFP case officers made a formal request for the complainant and his partner to be considered for entry into the NWPP, and that after an appropriate assessment of the complainant's circumstances, this request was rejected. The AFP was also able to satisfy Ombudsman staff that the AFP officers involved were careful not to create an expectation of witness protection when dealing with the person. This was supported by detailed notes prepared at the time by the AFP about the interaction between its members and the person.
The second complaint concerned promises that the AFP allegedly made to a person before assessment of the complainant's suitability to enter the NWPP. The person also made complaints about the standard of accommodation provided during the time that they were under the AFP's protection. This investigation will be completed in 2005–06.
AFP powers to combat terrorism
Recent amendments to the Australian Security Intelligence Organisation Act 1979 (ASIO Act) provide for the entry and search of property by police in order to arrest and detain persons on behalf of the Australian Security Intelligence Organisation (ASIO). The ASIO Act amendments preserve the complaints role of the Commonwealth Ombudsman under the Complaints Act, by confirming that a detainee can complain about the actions of AFP members making an arrest or overseeing detention.
During the year, we provided a submission to a review of ASIO questioning and detention powers being conducted by the Parliamentary Joint Committee on the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service and the Defence Signals Directorate. We also worked with the Inspector-General of Intelligence and Security and the Commissioner of the AFP to develop protocols between all agencies involved with warrants under the ASIO Act. These protocols will ensure that detainees are advised of their right to make a complaint, are provided with access to a telephone for that purpose, and that all agencies understand and agree on the complaint-management process.
We did not receive any complaints in 2004–05 arising from the amendments to the ASIO Act.
Australian Federal Police Protective Service
The number of complaints received by, or notified to, our office concerning the Australian Federal Police Protective Service (AFPPS) in 2004–05 was 46, compared to seven in the previous year. This increase was an expected consequence of the AFPPS falling under the proactive notification requirements of the Complaints Act from July 2004.
The complaints received about the AFPPS fell broadly into two categories:
We also received complaints associated with AFPPS activities at Parliament House from people who were dissatisfied with the way in which AFPPS members spoke to them.
The AFPPS reported a serious matter to the Ombudsman during the year concerning an AFPPS member who was using a mobile phone to photograph women travelling on escalators. During investigation by the AFP's Professional Standards team, the member admitted to misconduct and subsequently resigned from the AFPPS. The AFP decided not to lay criminal charges against the member, and we were satisfied that the complaint has been managed appropriately.
Complaints against the ACC are managed under the Ombudsman Act. While the ACC is not required to proactively report complaints to the Ombudsman's office, we have appreciated a strong and open working relationship with the ACC. The ACC notifies the Ombudsman's office about any significant matters, allowing us to consider whether further investigation by Ombudsman staff is warranted.
During the year, we conducted a follow-up investigation into the ACC's response to the recommendations from independent consultants and our own investigation of alleged corrupt activity by two former secondees. In response to the allegations, the ACC had developed policies and programs to promote professionalism and integrity within the ACC as primary elements of a corruption risk management approach. The Ombudsman formed the opinion that the actions taken by the ACC were appropriate and proportional responses to the issues, and indicated that further investigation of this matter was not warranted.
Ombudsman staff also conducted an own motion investigation into the ACC's conduct of controlled operations carried out by the ACC under State and Territory legislation. The results of this investigation are discussed later in this section.
In 2004–05, we received 12 complaints about the ACC, compared to six last year. Three of the complaints related to issues of property. We are not obliged to refer all complaints to the ACC. The ACC has been highly responsive to the complaints referred to it, as demonstrated below.
One of the property complaints related to the ACC's failure to return seized property and to respond to freedom of information (FOI) requests about the property. Following our inquiries, the ACC quickly remedied the situation by providing compensation for the property that had been destroyed, revising its procedures to ensure adherence to FOI statutory time limits, and reviewing its exhibit management policies and procedures.
We received briefings from the ACC about non-property related complaints, which we decided did not warrant further investigation. Complaints related to matters such as a person's concern that they were under surveillance by the ACC, the application of proceeds of crime legislation, and aspects of a major operation conducted by the ACC and its management of a registered informant connected to that matter.
We also conducted a formal investigation into a complaint about the ACC relating to the National Witness Protection Program. The complainant alleged that the ACC had misled him about participation in the witness protection program and whether he was entitled to immunity for certain offences he had committed. Ombudsman staff found no grounds for criticism of the ACC in this matter. The process of reviewing these activities was complicated by an ongoing, difficult and rapidly evolving operational context that involved three law enforcement agencies and understandably dispersed communication between the complainant and the ACC. A number of observations were made to the ACC highlighting the importance in this context of accurate and contemporaneous record keeping. The ACC has taken action to further enhance its informant handling procedures.
The Ombudsman's monitoring and inspection role expanded during 2004–05 with passage of the Surveillance Devices Act 2004 and amendments to the Workplace Relations Act 1996. The office's monitoring and inspection role now encompasses the following areas:
The initial inspections of the use of surveillance devices by members of the AFP and ACC, and the use of compliance powers by members of the Building Industry Taskforce, will be conducted in the first half of 2005–06. Inspection methodologies and checklists were developed during the year in preparation for the first inspections of surveillance device records.
The Ombudsman sponsored inspection workshops in November 2004 and June 2005. Representatives from agencies with similar accountability responsibilities (such as State Ombudsmen) attended the workshops, which offered a forum to share best practice and other information.
Under the Telecommunications (Interception) Act 1979 (TI Act), the Ombudsman is required to inspect the records of the AFP and the ACC to ensure the accuracy of records and the extent of compliance of the records in accordance with the provisions of the Act.
A report on these inspections is then presented to the agency and later to the Attorney-General. Ordinarily, two inspections of each agency are carried out each year, but in 2004–05 three inspections were conducted because of a change in practice within the office concerning the inspection period covered by a report. Three inspections were conducted at the AFP (including a regional inspection) and three at the ACC.
Reports on the results of the inspections covering 2003–04 were presented to the Attorney-General in September 2004. The reports provided to the agencies after each inspection concluded that there is a high degree of compliance with the detailed record-keeping requirements of the TI Act. We did make some recommendations for improving the administrative and compliance systems of both agencies and for assisting staff in administering telecommunications interception warrants.
We have been grateful for ongoing policy assistance from staff from the Attorney-General's Department in clarifying issues relating to the TI Act.
Controlled operations can be broadly described as covert operations carried out by law enforcement officers under the Crimes Act 1914 for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious offence. These operations may also result in law enforcement officers engaging in conduct that, unless authorised under a controlled operations certificate, would constitute an offence.
The Ombudsman has an oversight role in ensuring that controlled operations are approved and conducted in accordance with Part 1AB of the Crimes Act and that information in formal reports is comprehensive and accurate. Relatively low numbers of controlled operations are undertaken in the federal law enforcement arena.
During the year, four inspections of controlled operations records were conducted. Two inspections were conducted at the AFP and two at the ACC. The inspections concluded that with some minor exceptions both agencies are complying with the requirements of the Crimes Act and providing comprehensive information in formal reports. These inspections resulted in reports to both agencies, a briefing to the Parliamentary Joint Committee on the ACC, and an annual report for 2003–04 presented to the Parliament in December 2004.
As stated in our 2003–04 annual report, following a briefing by the Ombudsman to the Parliamentary Joint Committee on the ACC in October 2003, an own motion investigation was initiated into record keeping related to ACC controlled operations authorised under State or Territory legislation. These operations were not caught by the mandatory inspection requirements of the Crimes Act. The purpose of the investigation was to assess the adequacy of the mechanisms the ACC had developed for ensuring that controlled operations complied with State and Territory legislative requirements and administrative best practice. The Ombudsman investigation looked also at whether there was any indication that the ACC was choosing to conduct controlled operations under particular State or Territory legislation in order to minimise the application of the Commonwealth accountability framework to controlled operations.
Ombudsman staff reviewed the application, authorisation and record-keeping practices of the ACC for all jurisdictions in which ACC controlled operations occurred. The investigation found no evidence that the ACC was choosing to conduct and/or participate in controlled operations under particular State legislation in order to escape the rigour of Commonwealth controls. There was no basis to criticise the ACC for the way in which it was handling controlled operations under State laws. We provided results of the investigation to the ACC and the Parliamentary Joint Committee into the ACC in April 2005.