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Chapter 3
Key issues and accountability
3.1
This chapter examines some issues of ongoing interest to the committee.
These include the Australian Federal Police's (AFP) revised Ministerial
Direction, its ongoing work to monitor complaint handling processes, as well as
an overview of the findings of the Commonwealth Ombudsman (the Ombudsman), who
has a statutory oversight role of the AFP.
3.2
Examination of the Ombudsman's findings with respect to the AFP is limited
to oversight of complaints management and controlled operations, including the
use of surveillance devices. These issues are examined below. Revised Ministerial Direction
3.3
As indicated in Chapter 2, the committee noted that the Minister for
Justice, the Hon Michael Keenan MP, issued a revised Ministerial Direction to
the AFP pursuant to section 8 of the Australian Federal Police Act 1979
(AFP Act).[1]
The AFP explained that the new Ministerial Direction resulted in the addition
of numerous instructions, including:
- protecting
Commonwealth revenue;
- contributing
to whole-of-government efforts to prevent Australia from being a safe haven for
proceeds of crime, including from corruption, or used for money laundering
purposes;
- leading
Commonwealth’s efforts to disrupt organised criminal groups by restraining and
seizing their assets and unexplained wealth;
- maintaining
focus on investigating Commonwealth offences, particularly those relating to
firearms and foreign bribery; and
- taking a
leadership role and collaborating with state and territory law enforcement to deliver
national law enforcement initiatives to disrupt the operation of criminal
gangs, reduce the proliferation of child exploitation material and reduce the
harm caused by illicit drugs.[2]
3.4
The AFP noted that three instructions had been removed from the Ministerial
Directions. These include redundant instructions to implement relevant
recommendations of the Federal Audit of Police Capabilities and two other
items:
- taking
account of the Government’s long-standing opposition to the application of the
death penalty (this is part of AFP’s standard procedures); and
- building a
relationship of trust with the indigenous community (this was a focus
during Operation Pleach — the joint NT Police/AFP Child Abuse Taskforce in the
Northern Territory).[3]
3.5
When asked about the AFP's policy on the sharing of intelligence with
agency partners overseas in the broad context of the Bali Nine case,
Commissioner Colvin responded:
The AFP operates under very strict guidelines as to what we
will share, how we will share it and what considerations will be taken into
account. Inherent in those guidelines is an actual prohibition without further
approval on some information and that also depends on the stage of the
investigation...
What I will say, though, is that we do work now, and we did
then, to very strict guidelines that tell us when we can share information and
what sort of information we should share. Obviously, we have an international
remit and we work with our partner agencies in countries in our region, as well
as more broadly in the world. We do so, knowing that they operate very
different judicial systems and very different law enforcement systems to us. We
probably know those systems and those countries better than anybody else, so we
are best placed to make those judgements within the confines and parameters
that we have been set.[4]
Complaints handling process
3.6
The matter of complaints handling has been considered by the committee
in previous examinations of AFP annual reports. For example 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'.[5]
The government responded to the recommendation in September 2012 noting that
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.[6]
Complaints management
3.7
In 2013-14, the AFP received a total of 263 category 3 complaints
(compared to 398 received in 2012-13).[7]
3.8
In 2013-14, the AFP received a total of 564 category 1 and 2 complaints
which is a reduction on 670 complaints in 2012-13.[8]
These figures do not include Category 3 complaints, nor corruption issues
investigated in concert with Australian Commission for Law Enforcement Integrity
(ACLEI).[9]
3.9
The 2013-14 annual report does not include detail on the number or the
length of time of investigations of outstanding Category 3 complaints in
2013-14.
3.10
Further discussion on these matters is included below in the committee
view, from paragraph 3.16.
Commonwealth Ombudsman's findings
3.11
In February 2015, 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.[10]
3.12
The Ombudsman was provided with a list of all complaints closed between
1 July 2013 and 30 June 2014 (the review period) which comprised 564
closed complaints. The Ombudsman conducted a review over two periods: part one
covering the period 1 March and 31 August 2013, and part two from 1 September
2013 to 28 February 2014. The Ombudsman found that there were:
-
305 complaints closed in the first period; and
-
225 complaints closed in the second period.[11]
3.13
The Ombudsman examined a sample of 226 complaints of which 124
complaints were reviewed in the first period and 102 complaints were reviewed
in the second period.[12]
3.14
In its 2013-14 report, the Ombudsman found that the AFP's administration
of Part V of the AFP Act was 'comprehensive and adequate'.[13]
The report noted ongoing issues within the complaint management process but found
that those issues 'did not necessarily impact the outcomes of those
complaints.'[14]
3.15
The Ombudsman noted that the AFP had not notified his office of approximately
20 per cent of Category 3 complaints:
Based on the data provided there were 188 category 3 conduct
issues for which the AFP should have notified the Ombudsman under s 40TM(1) of
the Act. We did not locate notifications for 39 of these issues.[15]
3.16
The Ombudsman reported that the AFP had advised that classifications of
complaints to particular categories may have been reassigned to a different
category prior to the investigation being accepted. The report notes:
During this period, the use of categories is no more than an
administrative process until a [Professional Standards] Coordinator endorses a
particular category. The AFP advised that it will notify our office of all
category 3 conduct issues once they have been appropriately endorsed by a [Professional
Standards] Coordinator. We will consider this in our future reviews.[16]
3.17
The Ombudsman's report notes that the AFP has subsequently reviewed and amended
its processes to ensure better compliance with subsection 40TM(1) of the AFP Act,
requiring notifications being made to the Ombudsman's office.[17]
Committee view
3.18
The committee notes that previous AFP annual reports have included detail
of category 1, 2 and 3 complaints. This information is particularly useful for
determining the AFP's performance in completing investigations in a timely
manner.
3.19
The committee has previously commented at length on the AFP's internal
complaints handling processes,[18]
and has found that detail extremely helpful.
3.20
The committee is of the view that the AFP should include more detail on
its complaints handling outcomes. In this regard, the committee draws the AFP's
attention to its previous annual reports as well as the Annual Report of the
Integrity Commissioner 2013-14, and the inclusion of detail of
investigations carried over across financial years.[19]
3.21
The committee believes ACLEI's table is a clear example of how that data
could be conveyed in future AFP annual reports. Further, the same detail as
previously provided, with reference to how many complaints are received in the
reporting period, how long they take to investigate and resolve, how many are
'carried over' financial years and the proportion substantiated, is necessary
for the committee to fulfil its statutory role to examine the annual reports of
the AFP.
Recommendation 1
3.22
The committee recommends the Australian Federal Police include greater
detail in the Annual Report with reference to all category 1, 2 and 3
complaints, including the period in which they are received, how long they take
to investigate and resolve, how many are 'carried over' financial years and
what proportion are substantiated. Surveillance devices
3.23
The Surveillance Devices Act 2004 (Surveillance Act) restricts
the use, communication and publication of information obtained through the use
of surveillance devices. The Surveillance 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'.[20]
Under subsection 6(1) of the Surveillance Act, the term 'law enforcement
agency' includes the AFP, the ACC, ACLEI, and state and territory police
forces.
3.24
The Ombudsman's report into inspections under the Surveillance Act notes
that while it makes no formal recommendations, there were numerous instances of
non-compliance and instances in which the Ombudsman could not determine whether
the AFP had acted in compliance with the Surveillance Act.[21]
3.25
The Ombudsman's report also notes:
Additionally, [the Ombudsman] requested documents relevant to
the inspection which were not provided by the AFP. As the documents fell within
the scope of s 55(3) of the Act, which entitles the Ombudsman to full and free
access to all records relevant to an inspection, the Ombudsman issued to the
AFP a Notice to Produce under s 56(2) of the Act on 21 October 2014.
The AFP complied with the Notice, and the documents were
considered in finalising our inspection findings.[22]
Review period, sample and focus
3.26
The Ombudsman's inspection of the AFP's surveillance device records was
conducted from 17 to 21 March 2014.[23]
It focused on surveillance device warrants and authorisations (and associated
records) that expired or were revoked during the period 1 July to 31 December
2013 as well as records relating to the use of tracking device authorisations.[24]
3.27
A report of the results of the inspection was provided to the AFP on 18 December
2014.[25]
While all the records held by the respective agencies under the Surveillance Act
are potentially subject to inspection:[26]
...the Ombudsman’s discretion under s 55(5) of the Act was
exercised to limit inspections to those warrants and authorisations that had
expired or were revoked during the relevant inspection period.[27]
3.28
The Ombudsman inspected results relating to 100 warrants and
authorisations (a 32 per cent sample) and 18 records relating to tracking
device authorisations (a 52 per cent sample).[28] Ombudsman's findings
3.29
While the Ombudsman's report made no recommendations as a result of the
inspection carried out in March 2014, it did make several observations of instances
where it was unable to determine compliance. These are set out below.
Use of devices without the
authority of a warrant or authorisation
3.30
The report notes the AFP self-disclosed three instances where
surveillance devices had 'been used without lawful authority.'[29]
The first instance related to an incident where a tracking device was used
despite not having been authorised by a warrant. This was because the relevant
officer was unaware that the device installed under the warrant was a tracking
device. In this instance, the AFP advised that it sought a variation to the
warrant to include the device in question so that it could be lawfully
retrieved.[30]
3.31
The second instance was a further example of when a tracking device was
installed without a warrant. In this case, the AFP advised the Ombudsman that '...[the
AFP] relied upon the information contained within the application, which listed
a tracking device, rather than the information listed on the warrant'.[31]
3.32
The third incident was when surveillance devices installed on a premises
continued to be used 'after it was identified the person listed on the warrant
was no longer at the premises'.[32]
The AFP told the Ombudsman that once identified, the devices were discontinued
and the unlawfully obtained material was quarantined.[33]
AFP response
3.33
The AFP advised the Ombudsman that it has 'introduced a range of new
administrative practices and processes to prevent similar occurrences in
future.'[34]
Records to confirm actions taken
under warrants
3.34
The Ombudsman's report raises instances where the AFP had not kept
accurate records on the use, and maintenance, of listening devices on premises.
Specifically:
For a number of warrants authorising the installation, use
and maintenance of devices on premises where the person named on the warrant is
reasonably believed to be or likely to be, there was insufficient information
to establish whether this was the case.[35]
3.35
The report notes that the Ombudsman has raised this issue with the AFP
in the previous report to the Attorney-General and suggested to the AFP that its
existing compliance measures were no longer effective.[36]
AFP response
3.36
The Ombudsman report notes that the AFP has advised it has subsequently
implemented additional procedures to ensure sufficient records are kept.[37]
Keeping protected information for
longer than five years
3.37
Under paragraph 46(1)(b) of the Surveillance Act, the chief officer (officer
in charge of an investigation) must ensure that a record or report comprising
protected information is destroyed if they are satisfied that it is no longer
required by the law enforcement agency.[38]
3.38
The chief officer may also certify that the information be retained if
it is still likely to be required by the law enforcement agency. This decision
must be made within 5 years after the record or report's creation. This
decision must be re-made every 5 years until the information is destroyed. The Ombudsman's
report notes:
We identified that protected information obtained under three
warrants had been kept for a period longer than five years, however there were
no records on file to indicate the chief officer had certified that it could be
retained or that the protected information had been entered into legal
proceedings.[39]
AFP response
3.39
In response the AFP stated that the instances referred to by the
Ombudsman occurred due to an internal destruction freeze.[40] Ombudsman's report
3.40
The committee received a report from the Commonwealth Ombudsman
regarding the AFP's involvement in controlled operations under Part 1AB of the Crimes
Act 1914 during the preceding 12 months. The report was provided in
accordance with section 10 of the Parliamentary Joint Committee on Law
Enforcement Act 2010. The committee noted the report and has received it as
confidential correspondence.[41]
Committee view
3.41
The committee is generally satisfied as to how the AFP has discharged
its obligations with respect to controlled operations and listening devices.
Nevertheless, the committee is concerned with some ongoing administrative
issues that appear to have been overlooked or repeated across inspection
periods. Inadequacies in record keeping arrangements are a particularly
relevant concern to the committee.
3.42
The committee will monitor these ongoing administrative issues in future
reporting periods.
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