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CHAPTER 3
Complaint handling and use of surveillance devices
Complaint handling
3.1
The matter of complaints handling has been considered by the committee
in previous examinations of AFP annual reports. In its examination of the
2010–11 AFP annual report, the committee recommended that in future annual
reports, the AFP 'include the average number of days taken to resolve cases for
each category of complaint, to enable the committee to better monitor the
timeliness of complaint resolution'. The government responded to the
recommendation in September 2012 noting that in the 2011–12 report would
provide information on the average number of days taken to resolve complaint
matters in relation to Serious Misconduct/Category 3 investigations. The
government further noted that:
While listing the average number of days taken to resolve
matters can be helpful, alternative metrics can provide a more accurate and
timely indication of changes in performance against benchmarks. Further AFP
annual reports will reflect these new metrics, and it is anticipated that this
will provide the Committee with the ability to better monitor the timeliness of
complaint resolution.[1]
3.2
In compliance with the committee's recommendation, the AFP provided
details in the 2011–12 annual report in relation to the timeliness of category
3 complaints.
Category 3 complaints
3.3
In 2011–12, the AFP received a total of 223 category 3 complaints
(compared to 212 received in 2010–11). In addition, there were 258 outstanding
category 3 complaints in 2011–12 compared to 633 in 2010–11. A reduction in
this backlog was attributed to an increase in the rate of finalised category 3
investigations from 151 in 2010–11 to 582 in 2011-12.[2]
3.4
The average number of days open for all category 3 complaints submitted
in 2011–12 including those still in progress is 138 days.[3]
3.5
The AFP informed the committee that it placed a high priority on
improving the timeliness of complaint handling and particularly relating to
category 3 complaints. Initiatives directed at improving timeliness included
the:
...creation of a permanent Adjudication Panel, comprising of
Senior Executive level staff, to ensure quick finalisation of matters. This
panel has been supported by the appointment of a former AFP Senior Executive
Service officer and the creation of a dedicated secretariat to manage the
workflows.[4]
3.6
In addition, the processes for investigations reporting were reviewed
and revised to ensure that the AFP's processes are as efficient as possible.[5]
3.7
The AFP clarified that it cannot accurately measure improved timeliness
in terms of average run times as some category 3 complaints submitted in
2011–12 are not finalised yet.
3.8
Notwithstanding this point, a substantial reduction in the average
running time of category 3 complaints was achieved over the review period. The
annual report noted that for those complaints submitted and completed by the
end of 2011–12, the average run time was 99 days. This compares to the average
run time for finalised complaints submitted in 2009–10 of 427 days and 301 days
in 2010–11.[6]
Category 1 and 2 complaints
3.9
In 2011–12, the AFP received a total of 390 category 1 and 2 complaints
which is a reduction on 679 complaints in 2010–11. This decrease is explained
by the AFP as the outcome of a:
...targeted project in the 2010–11 reporting period related to
inconsistencies in time recording which resulted in a large number of category
2 complaints needing to be lodged.[7]
3.10
The AFP clarified that during 2010–11, this one-off project was
undertaken to review the discrepancies between appointee's time recordings and
leave applications. Where an initial evaluation identified some discrepancy
between the two recording systems, a category 2 complaint (minor misconduct)
was raised against the member. As a consequence, there was an increase in the
number of category 2 complaints recorded during that period.[8]
Strategies to reduce the backlog of
complaints
3.11
The AFP noted in the annual report that the strategies it had put in
place to deal with the backlog of complaint matters will 'take time to have
their full effect' due to the 'number and age of the matters involved'.
However:
Data provided to the Ombudsman’s office up to December 2011
notes a reduction in the number of complaints open for more than 12 months from
356 (for the whole of the AFP) as at August 2011 to 314 as at 31 December 2011.
On 30 June 2012 there was a further substantial reduction to 152 complaints
open in excess of 12 months. While it is accepted that more work is needed,
these latest figures show clear evidence that strategies are taking effect.[9]
3.12
In relation complaints management, the annual report further clarified
that:
The comparison between internal and external complaints
continues to be examined with a focus on understanding the implications by
established internal complaints compared with established external complaints
and the reasons for change in trends over recent reporting periods.[10]
Commonwealth Ombudsman's findings
3.13
In November 2012, the annual report of the Commonwealth Ombudsman
(Ombudsman) in relation to activities under Part V of the Australian Federal
Police Act 1979 (AFP Act) was published. The Ombudsman was provided with a
list of all complaints closed between 1 September 2010 and 31 December 2011
(the review period) which comprised 1275 closed complaints and 2797 associated
complaint issues. The Ombudsman conducted a review over two periods—part 1
covering the period 1 September 2010 to 31 August 2011, and the second from 1
September 2011 to 31 December 2011. The Ombudsman found that there were:
- 857 closed complaints and 1927 complaint issues in the first
period;
- 418 closed complaints and 870 complaint issues in the second
period.
3.14
The Ombudsman examined a sample of 132 complaints of which 92 complaints
were reviewed in the first period and 40 complaints were reviewed in the second
period. Reviewing the comprehensiveness and adequacy of complaint handling, the
Ombudsman's key findings were that there had been an improvement in timeliness
in resolving complaints which suggests that the 'processes the AFP implemented
in 2011 to improve the situation have been effective'.[11]
A year earlier, the Ombudsman's 2010–11 report had noted that the timeliness in
resolving complaints across all categories had continued to deteriorate.[12]
Establishment rates for external
complaints
3.15
The Ombudsman also found that the establishment rates for external
complaints (11 per cent) has remained significantly lower than those for
internal complaints (43 per cent) which is consistent with the findings of four
previous Ombudsman reviews.[13]
3.16
The AFP explained that there were a number of reasons as to why internal
and external complaint establishment rates were different. It noted that many
external complaints that it had received were from people 'affected by alcohol
and other drugs' which may impact on the 'reliability of evidence they
provide'.[14]
3.17
The AFP highlighted that independent witnesses along with other
supporting evidence and closed-circuit television (CCTV) footage were sought to
ensure that thorough investigations were conducted. In addition, external
complaints arise from situations where people have been arrested or otherwise
taken into custody or 'from people who are suffering forms of mental illness'
which may impact on the reliability of the evidence provided. Furthermore,
internal complaints are usually only made when the issue is clear and evidence
in relation to internal complaints is generally easier to obtain due to the
AFP's control systems such as email audits. The AFP noted that, in relation to
other policing jurisdictions, the AFP ratio of established matters is similar
to other jurisdictions.[15]
Establishment rates for external
complaints of excessive use of force
3.18
The Ombudsman also found that there continues to be an 'almost
negligible' establishment rate for external complaints of excessive use of
force against a person. There were 218 complaints of excessive force during the
review period during which time, two complaints about excessive use of force
were established—one internal and one external. From 2007 until the period
under review, there had been no external complaints about the excessive use of
force on a person by police.[16]
3.19
In its explanation to the committee, the AFP noted a number of reasons
for the low establishment rate in relation to this type of complaint.
Emphasising that in many cases, the availability of CCTV footage negates the
complaints made, the AFP noted that many such complaints were from individuals
affected by alcohol and other drugs and that the context was often one in which
people were arrested or taken into custody. The AFP also noted the:
...high standards of use of force training with mandatory
annual requalification and the requirement to report in detail any use of
force, including where accoutrements are drawn but not used.[17]
3.20
The AFP also highlighted the Ombudsman's findings that of the excessive
use of force complaints reviewed by his office, no issues with the
investigation could be identified.[18]
Committee view
3.21
The committee is encouraged by the initiatives undertaken by the AFP to
improve complaint management which have reduced the backlog of complaints.
Surveillance devices
3.22
The annual report notes that the High Tech Crime Operations had received
reports from the Ombudsman 'finding 100 per cent compliance in relation to
telecommunications interception and surveillance devices'.[19]
However, the Ombudsman's report into inspections under the Surveillance
Devices Act 2004 stated that it found the AFP to be compliant with the Act
with the exception of two cases relating to the use and retrieval of tracking
devices.[20]
These cases were self-disclosed to the Ombudsman by the AFP.
3.23
The Surveillance Devices Act 2004 (Surveillance Act) restricts
the use, communication and publication of information obtained through the use
of surveillance devices. This Act also establishes procedures for law
enforcement agencies to obtain permission to use such devices in relation to 'criminal
investigations and the recovery of children, and imposes requirements for the
secure storage and destruction of records in connection with the use of
surveillance devices'.[21]
Under subsection 6(1) of the Surveillance Act, the term 'law enforcement agency'
includes the AFP, ACC, ACLEI and state and territory police forces.
Review period, sample and focus
3.24
The inspection of AFP surveillance device records was conducted from 19
to 22 September 2011. It focused on surveillance device warrants and authorisations
(and associated records) that expired or were revoked during the period 1
January to 30 June 2011 as well as records relating to the destruction of
information carried out during the same period. A report of the results of the
inspection was provided to the AFP on 10 January 2012.[22]
While all the records held by the respective agencies under the Act are
potentially subject to inspection, under the Ombudsman's discretion (under
subsection 55(5) of the Surveillance Act), the inspections were limited to
'those warrants and authorisations that had expired or were revoked during the
inspection period'.[23]
3.25
The Ombudsman inspected results relating to 48 warrants and
authorisations (a 20 per cent sample) and records relating to the destruction
of information obtained under 19 warrants and authorisations (a 34 per cent
sample).[24]
Ombudsman's findings
3.26
Under Section 39 of the Surveillance Act, a law enforcement
officer may use a tracking device without a warrant in the investigation of an
offence where the officer has written permission of an appropriate authorising
officer. An officer may also, with the written permission of an appropriate
authorising officer retrieve a tracking device. The written permission or the
tracking device authorisation may remain in force for a maximum period of 90
days.
3.27
The Ombudsman's inspection found the AFP compliant with the requirements
of the Act except for two instances.[25]
The AFP self-disclosed that it had not complied with section 39 of the Act in
relation to two cases in which it had:
- used a device six days after the expiration of the authorisation;
and
- retrieved a tracking device two days after the authorisation was
disclosed.
3.28
The Ombudsman noted that the AFP had already taken steps to mitigate the
effects of non-compliance and the AFP's advise that 'no unlawfully obtained
information was provided to its investigators'.[26]
That is, the AFP did not provide any information obtained after the expiry of
the authorisation to its investigators.
3.29
The Ombudsman made no recommendations as a result of the inspection as
the AFP had already taken steps to address the issue identified. The Ombudsman
further noted that the AFP 'continues to demonstrate its commitment towards
improving compliance with the Act' by way of responsiveness to the inspection
findings and willingness to adopt the suggested best practices.[27]
Committee view
3.30
The committee congratulates the AFP on an extremely productive and
successful year in respect of operations, investigations and improved
efficiencies.
3.31
The committee recognises that collaboration and cooperation both across
state boundaries and international borders is central to contemporary law
enforcement. Over the review period, the AFP has achieved exceptional results
which reflect the agency's determination to build relationships with local and
international partners and contribute to whole-of-government efforts. These
efforts are matched by a focus on improving internal processes and more
efficient procedures.
Mr Chris Hayes MP
Chair
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