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Contents Chapter
7 Looking
at the agenciesLaw
enforcement |
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CHAPTER
7
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| law enforcement |
Law enforcement menu: Australian Federal Police | Review of complaint handling | Own motion and special investigations | Australian Crime Commission | Australian Commission for Law Enforcement Integrity
The Commonwealth Ombudsman deals with complaints made about the Australian Federal Police (AFP) and the Australian Crime Commission (ACC). This year there was considerable change in the legislation under which the office undertakes this role, with the repeal of the Complaints (Australian Federal Police) Act 1981 (Complaints Act) and amendments to the Australian Federal Police Act 1979 (AFP Act) and the Ombudsman Act. A complete list of the relevant legislation is contained in Table 7.3.
During 2006–07 the Commonwealth Ombudsman became the Law Enforcement Ombudsman with the commencement of new legislation that also brought new responsibilities to the office. Despite these changes the core work of dealing with complaints from members of the public about AFP members continued, along with several special and own motion investigations.
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The majority of the Ombudsman’s law enforcement work in 2006–07 related to complaints from members of the public about the actions of members of the AFP. This year 60% of all complaints were made about AFP members acting in their ACT community policing role. Our work in this area is described in more detail in the ACT Ombudsman Annual Report 2006–2007, available at www.ombudsman.act.gov.au.
The remaining 40% of complaints relate to the work of the AFP in national and international operations. The most common issues raised by complainants include:
This year complaints have been dealt with under two different legislative regimes. The relevant provisions of the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 commenced on 30 December 2006, repealing the Complaints Act and replacing it with Part V of the AFP Act and amendments to the Ombudsman Act. The Complaints Act remains in force for complaints made before 30 December 2006. These legislative changes have had a significant impact on how the Ombudsman’s office works and the statistics that are provided in this report. These changes are discussed further in following sections.
The Law Enforcement Ombudsman is a new role vested in the Commonwealth Ombudsman as part of a broader reform of the system for handling complaints made about the AFP. The intention of the reform is to highlight the special role of the Ombudsman in dealing with complaints against the AFP, while creating a more flexible and responsive complaint-handling process that better meets the needs of all stakeholders.
‘The Law Enforcement Ombudsman is a new role vested in the Commonwealth Ombudsman ...’
The reforms include the removal of the system for joint handling of complaints by the AFP and the Ombudsman, which was the central feature of the Complaints Act. Under the new model the AFP has primary responsibility for dealing with all complaints. Minor matters are allocated to local area management to resolve and serious matters are dealt with by the AFP’s Professional Standards team.
The Ombudsman has an enhanced investigatory and inspection role, and is no longer involved in the resolution of all complaints. The Ombudsman continues to be notified by the AFP of all serious misconduct matters: these are defined as ‘Category 3’ matters in s 40RP of the AFP Act. The Ombudsman may also investigate any complaint against the AFP, including the AFP’s handling of any case, under the Ombudsman Act.
For the purposes of complaints management under the AFP Act, conduct is divided into four categories, of which the highest is conduct giving rise to a corruption issue (s 40RK). The three other categories are minor management or customer service matters, minor misconduct and serious misconduct. The principles for determining the kind of conduct that falls within these three categories were agreed on by the AFP Commissioner and the Ombudsman and set out in a legislative instrument made under s 40RM of the AFP Act (see Australian Federal Police Categories of Conduct Determination 2006, Legislative Instrument F2006L04145 at www.comlaw.gov.au). Allegations of corruption against AFP officers are now referred both by the Ombudsman and the AFP to the Law Enforcement Integrity Commissioner. The role of the Integrity Commissioner is discussed later in this section.
As Law Enforcement Ombudsman, the Commonwealth Ombudsman has a new responsibility to review the administration of the AFP’s handling of complaints, through inspection of AFP records. An aspect of this responsibility is to comment on the adequacy and comprehensiveness of the AFP’s dealing with conduct and practices issues as well as its handling of inquiries ordered by the Minister. The results of these reviews must be provided to Parliament on an annual basis, pursuant to s 40XD of the AFP Act.
Work is continuing on developing an administratively efficient process for the examination of the AFP’s investigations into serious issues of conduct and practice. The AFP elected not to enter into an arrangement under s 8D of the Ombudsman Act for jointly dealing with such issues, and the absence of such an arrangement means that effective examination of these issues must be by separate Ombudsman investigation.
In 2007 we commenced reviewing the administration of the AFP’s handling of complaints. We inspected AFP records of finalised complaints made under Part V of the AFP Act during May and June 2007. A report on the adequacy and comprehensiveness of the AFP complaint system will be tabled in Parliament.
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The change in the complaint-handling system means that the statistics in this report are not comparable with those of previous years. In 2006–07 we received a total of 694 approaches and complaints about the actions of AFP members (801 in 2005–06).
We received 517 complaints under the Complaints Act. This is a sharp increase of 47% compared to complaints received during the same six-month period in 2005 (351). Complaints relating to ACT Policing accounted for 61% of this increase and complaints relating to areas of Commonwealth responsibility represented the remaining 39%. The reason for the increase is not readily ascertainable.
We also received 172 complaints under the Ombudsman Act after 30 December 2006.
As noted above, under the new complaint-handling arrangements, the AFP is required to notify the Ombudsman of serious misconduct issues. The AFP notified the Ombudsman of 125 Category 3 complaints in the first half of 2007.
We finalised 745 complaints and 886 complaint issues in 2006–07. Complaints can contain a number of issues, each requiring separate investigation and possibly resulting in different outcomes. The following statistics cover AFP community policing, including in the ACT, as well as AFP national and international policing.
We finalised 591 complaints containing 729 complaint issues under the Complaints Act.
Of the 729 issues finalised, a large number (275 or 38%, compared to 48% in 2005–06) related to minor discourtesy or service delivery failures and were referred to the AFP’s workplace-resolution process. This process allows members of the public to provide feedback about their interaction with police; provides AFP members with the opportunity to acknowledge and learn from minor mistakes; and facilitates a more timely and flexible response to complaint issues than does formal investigation.
Of the 275 issues referred for workplace resolution, 191 issues (69%) were successfully conciliated with the complainant. The AFP forwarded reports to the Ombudsman for consideration in relation to the remaining 84 issues (31%) where the complainant was not satisfied with the AFP’s attempts to conciliate the matter.
‘... a large number ... related to minor discourtesy or service delivery failures ...’
We decided not to investigate 349 issues after receiving the complaints directly or after considering the AFP’s initial evaluation of the complaint. The lower proportion of complaints subjected to workplace resolution reflects the increased proportion of complaints that we considered did not warrant further action in light of the AFP’s initial evaluation. The Ombudsman made additional enquiries of the AFP on 43 issues and later decided that further action was not required.
Sixty-two complaint issues were investigated by the AFP and reviewed by the Ombudsman’s office (compared to 87 in 2005–06). Of these issues, 16 were substantiated, 9 were incapable of determination and 37 were unsubstantiated.
Our review of AFP investigation reports suggests that there was a comprehensive investigation and analysis in most cases, with reasonable and appropriate recommendations for remedial action. On a few occasions an investigation report was returned to the AFP for further action—such as a quality assurance review of the report, further clarification of a particular issue, or consideration of a broader issue. We also worked with the AFP to ensure that, where appropriate, the investigation outcome considered systemic issues and included a response from the AFP directly to the complainant.
We finalised 154 approaches containing 157 issues under the Ombudsman Act, with 145 issues being in the Ombudsman’s jurisdiction. Under the new legislative arrangements, we have adopted the policy that we take with other Australian Government agencies—that a complainant should contact the relevant agency about a complaint before asking the Ombudsman to conduct an investigation. As a result, we referred the complainant to the AFP or another oversight or advice body in relation to 120 issues (76%) and decided that the remaining 37 issues (24%) did not warrant investigation. Some investigations commenced during the period are yet to be completed.
Overall, 81% of complaints about the AFP under both legislative regimes were finalised within six months of receipt (compared to 88% in 2005–06). The remaining 19% of complaints (144) took more than six months to finalise (compared to 12% in 2005–06).
Concerned about the delay in finalising many AFP complaints, we analysed the cases to identify the causes. The analysis revealed that the Ombudsman’s office finalised complaints made under the Ombudsman Act in an average of 23 days. Complaints jointly managed with the AFP under the Complaints Act took an average of 150 days to finalise, comprising 107 days for the AFP to prepare a report to the Ombudsman, and 43 days for the Ombudsman’s office to consider that report.
There was a delay in some instances between the AFP receiving a complaint and notifying it to the Ombudsman. There were also delays from when the Ombudsman notified a complaint to the AFP and the AFP advised us how they intended to deal with it. The AFP informed us that these delays resulted from a backlog in the evaluation of new complaints, which had subsequently been resolved. Weekly meetings were held between the AFP and the Ombudsman’s office to discuss these and other issues.
In the next financial year we will work with the AFP to resolve the remaining 169 complaints made under the Complaints Act and to reduce our own consideration times.
‘Weekly meetings were held between the AFP and the Ombudsman’s office ...’
In February 2007, at the request of the AFP, we conducted a joint review with the AFP of City Watchhouse operations in the ACT. The report, which was published in June 2007 (Report No 6/2007), is described more fully in the ACT Ombudsman Annual Report 2006–2007. The review recommended many changes in Watchhouse procedures, as well as a more far-reaching consideration of the way in which the Watchhouse is operated and staffed.
Among the matters covered by the report were:
The AFP accepted all the recommendations, with one being a matter for consideration by the ACT Government. The steering committee oversighting the review will meet by December 2007 to report on progress in implementing the review recommendations. The report is available on our website at www.ombudsman.gov.au.
In last year’s annual report we noted that we were considering conducting an investigation into the AFP’s management of property and exhibits. Some of the issues that were to be taken up in this investigation related to the AFP’s management of property while a person was in ACT police custody. These have now been addressed in the report on ACT Policing Watchouse operations. As a result, we decided not to pursue a separate investigation on property and exhibit handling at this time.
We conducted an own motion investigation into AFP security vetting procedures during 2006–07. In the investigation we examined issues such as whether natural justice was properly observed in security vetting decisions, whether security vetting policies were applied consistently to international security vetting applications, and whether there was excessive delay in the vetting process.
The investigation revealed that since 2006 the AFP had improved its security vetting practices and had addressed the main problems raised in complaints to the Ombudsman. The process for conducting a review and observing natural justice had been amended to comply with good administrative practice, and the policy for conducting international enquiries had been clarified and structured to enable it to be applied more efficiently and consistently. The AFP had also introduced deadlines for processing security vetting applications to reduce delays, and increased the training requirements for AFP security vetting staff.
Ombudsman staff are progressing two special investigations under the Complaints Act. One investigation is examining whether a ‘directed’ interview conducted between AFP Professional Standards officers and an AFP member (as a result of a conduct issue) was biased due to an alleged ‘perceived or actual conflict of interest’ held by one of the AFP Professional Standards officers involved in conducting the interview. The second investigation revolved around the interview technique used by some AFP Professional Standards officers when investigating conduct issues. This special investigation has been completed and a report provided to the AFP for comment.
Complaints about the ACC are managed under the Ombudsman Act. While the ACC is not required to notify complaints to the Ombudsman’s office, the ACC notifies us about significant matters, allowing us to consider whether further investigation by Ombudsman staff is warranted.
In 2006–07 we received nine approaches about the ACC (the same as in 2005–06). We finalised eight approaches, three of which were complaints within the Ombudsman’s jurisdiction. Some of the other approaches were from people seeking to report criminal activity in the community. We gave these people the contact details for the ACC.
One complaint was referred to the ACC for its consideration. An independent officer (arranged through the ACC) investigated this complaint, which related to an allegation that ACC officers executing a search warrant in Melbourne had stolen $20,000 in cash from the premises being searched. A full investigation of this matter was conducted by the ACC and we reviewed the final investigation report. The investigation included examination of videotapes recorded during the execution of the search warrant. The investigation uncovered no evidence to suggest that any ACC or AFP officers involved in the search warrant execution had removed any item from the premises without authority or without an official seizure receipt.
Another complaint centred on matters relating to security protection being provided to a witness. After some investigation of this matter we decided not to take any further action as the ACC had already provided an appropriate remedy to the complainant.
The other complaint within jurisdiction centred on matters that had allegedly occurred many years ago and had been before the courts some years ago. We decided not to investigate this matter as an investigation so long after the event would have been problematic and was unlikely to achieve the remedy sought by the complainant.
An important change in 2006–07 was the creation of the new position of Law Enforcement Integrity Commissioner, assisted by the Australian Commission for Law Enforcement Integrity (ACLEI). The Law Enforcement Integrity Commissioner Act 2006 commenced on 30 December 2006. The core function of the Integrity Commissioner is to investigate and report on corruption in the ACC and the AFP.
The Ombudsman can refer allegations of corruption against law enforcement officers to the Integrity Commissioner. In 2007 the Ombudsman referred two allegations of corruption to the Integrity Commissioner. One related to the AFP and the other to the ACC.
Discussions were held in 2007 between the Ombudsman’s office and ACLEI to clarify arrangements between both offices for cooperation and referral of complaints and allegations. It is expected that there will be a close working relationship between the Ombudsman’s office and ACLEI.
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