Complaints handling and Ombudsman's findings

3.1        This chapter examines the Australian Federal Police's (AFP) ongoing management of complaints, 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.

Complaints management

3.3        In 2014-15, the AFP Professional Standards Unit received 477 complaints, resulting in 934 alleged conduct breaches being recorded.

3.4        The 934 alleged conduct breaches comprised 113 category 1 (139 in 2013–14), 450 category 2 (425 in 2013–14), 316 category 3 (263 in 2013–14) and 55 category 4 (46 in 2013–14).[1]

3.5        During 2014-15, most alleged conduct breaches were reported by another member of the AFP (57 per cent), followed by members of the public (37 per cent) and anonymously (2 per cent). Four per cent of alleged conduct breaches were self-reported.[2]

3.6        Appendix A to the annual report outlines details of finalised conduct breaches by category, and clearly identifies the number of complaints established or not, withdrawn or not proceeded with at the Commissioner's discretion. In 2014–15, 21 per cent of all finalised breaches were established. The remainder were not established (49 per cent), withdrawn (3 per cent) or resolved by the Commissioner exercising his discretion to take no further action (28 per cent).[3]

3.7        Table A4 provides a comprehensive summary of established conduct breaches by type in 2014-15. The most common breach was inappropriate behaviour/conduct (11 per cent) followed by failures of security practices role/duty (7 percent) and information release (7 per cent). Other notable breaches included misuse of authority (3 per cent); criminal misconduct (2 per cent); harassment (2 per cent); bullying (1 per cent); perjury/perverting the course of justice (1 per cent); sexual harassment (1 per cent); and intimidation (1 per cent).[4]

3.8        The annual report outlines the number of outstanding complaints carried forward to 2015-16, including 182 category 3 (of which 117 were initiated in 2014-15) and 60 category 4 (of which 35 were initiated in 2014–15).[5]

3.9        Average time for resolution of category 3 and 4 complaints was 280 days (228 in 2013-14) and 251 days (310), respectively, in 2014-15. In 2014-15, 266 category 3 complaints were finalised (compared with 348 in 2013-14) and 33 category 4 complaints were finalised (16 in 2013–14).

Prohibited drugs testing

3.10      The AFP conducted a total of 4824 prohibited drug tests in 2014-15 (5144 in 2013–14). Twelve prohibited drug tests were 'mandatory investigation and certain incident' tests (the term 'certain incident' refers to an incident where a person is killed or seriously injured in an incident involving a motor vehicle or while in police custody, or a person is killed or seriously injured by a firearm discharging or physical force).[6]

Committee view

3.11      The committee commends the AFP on the inclusion of details about all four categories of alleged conduct breaches. In particular, the committee is very pleased that details about the age and number of complaints carried over from year to year, and the average time for resolution of each category of complaint have been included in the 2014-15 annual report. The committee expects these details will continue to be available in future annual reports. 

Commonwealth Ombudsman's report—Part V of the AFP Act

3.12      In February 2016, the annual report of the Commonwealth Ombudsman (the Ombudsman) in relation to activities under Part V of the Australian Federal Police Act 1979 (the AFP Act) was published.[7]

3.13      The Ombudsman's report outlines the results of two inspections conducted between 1 July 2014 and 30 June 2015 at which AFP complaint records finalised between 1 March and 31 August 2014 (the first inspection) and 1 September 2014 and 26 February 2015 (the second inspection) were considered.

3.14      The Ombudsman inspected 99 of 224 finalised complaints (44 per cent) during the first inspection and 79 of 214 finalised complaints (37 per cent) during the second inspection. The Ombudsman considered all withdrawn (seven and two, respectively) and deleted (39 and 48, respectively) complaints during both inspections.[8]

3.15      Overall, the Ombudsman concluded that:

the AFP's administration of Part V of the Act was comprehensive and adequate. The AFP has a comprehensive administrative framework governing the management of complaints it receives, both from members of the public and from AFP appointees, and the AFP administers this framework fairly and reasonably.[9]

Timeliness

3.16      The Ombudsman's report noted that there has been a drop in the number of complaints finalised on time: for example, between 1 March 2014 and 31 August 2014, just under 70 per cent of category 3 complaints were resolved within the AFP's 180 day internal benchmark; between 1 September 2014 and 28 February 2015, a little over 40 per cent of category 3 complaints were resolved within the benchmark.[10] The Ombudsman remarked, however, that 'for the majority of complaints, the AFP has met its internal benchmarks'.[11]

Category 3 complaints

3.17      While assessing that the AFP had dealt with category 3 complaints appropriately, the Ombudsman raised a number of concerns about certain category 3 complaints.

3.18      For example, in two instances, complaints were classified as category 4 (corruption issue) but the AFP failed to notify the Integrity Commissioner as required under s 19 of the Law Enforcement Integrity Commissioner Act 2006. Instead, the AFP exercised its discretion under s 40TF of the AFP Act to finalise these complaints without taking further action.

3.19      While the AFP considered that these complaints did not represent a significant corruption issue, the Ombudsman was 'of the view that it would have been appropriate for the AFP to have notified the Integrity Commissioner before finalising the complaints'.[12]

3.20      AFP Professional Standards (PRS) investigators to whom a complaint has been allocated are required to complete a conflict of interest declaration, as are investigators who conduct preliminary investigations.

3.21      The Ombudsman noted two complaints where no conflict of interest declaration was available; five where the conflict of interest declarations were only partially completed; and four where the conflict of interest declarations had been signed retrospectively by the investigator who conducted the investigation.[13] In response to this finding, the AFP advised that is has reminded relevant areas of the requirement to consider and address real, perceived and potential conflicts of interest.[14]

Notification of category 3 complaints

3.22      Of the 204 category 3 complaints, the Ombudsman found that it had not been notified of 19. However, the Ombudsman concluded that 'this may have been a result of the category of the conduct being upgraded or downgraded during the period'.[15] In response, the AFP advised that it will notify the Ombudsman of all category 3 complaints 'once they have been appropriately endorsed by a PRS coordinator'.[16]

Ombudsman's report—controlled operations

3.23      The Ombudsman's inspection and reporting functions in respect of controlled operations are found in subsection 15HS(1) of the Crimes Act 1914 (Crimes Act) that provides:

The Ombudsman must, from time to time and at least once every 12 months, inspect the records of each authorising agency to determine the extent of compliance with this Part [Part IAB—Controlled operations] by the agency and by law enforcement officers.

3.24      The AFP is one such authorising agency.[17]

3.25      The committee received two detailed reports from the Ombudsman regarding the AFP's involvement in controlled operations under Part 1AB of the Crimes Act: the first relating to the inspection of the controlled operation records of the AFP for the period 1 January 2014 to 30 June 2014,[18] and the second relating to the inspection of the controlled operation records of the AFP for the period 1 July 2014 to 31 December 2014.[19] The reports were provided in accordance with section 10 of the Parliamentary Joint Committee on Law Enforcement Act 2010. The committee has noted the reports and has received them as confidential correspondence.[20]

3.26      A general summary of the information produced in these reports is available in the Ombudsman's public report in respect of the controlled operation activities of the Australian Commission for Law Enforcement Integrity (ACLEI), the Australian Crime Commission (ACC) and the AFP for the period 1 July 2014 to 30 June 2015.[21]

Committee view

3.27      After reviewing the confidential and public reports, the committee is generally satisfied as to how the AFP has discharged its obligations with respect to controlled operations. Nevertheless, the committee is concerned that there continue to be instances where:

• a written record of an urgent authority has not been made within the seven‑day period required under section 15GL of the Crimes Act; and
• law enforcement officers and civilians have engaged in conduct not covered by a valid authority.

3.28      In respect of the first issue, following previous inspections which were reported to the Minister in the Ombudsman's previous report, the AFP advised that it would review its internal guidance material and address this issue through training. There was no update provided in the Ombudsman's report on any further action taken by the AFP as a result of the reoccurrence of this issue during the 2014–15 reporting period.

3.29      In respect of the second issue, following previous inspections which were reported to the Minister in the Ombudsman's previous report, the AFP advised that it had amended its internal review processes. During its inspections for the 2014–15 period, the Ombudsman did not note a reoccurrence of the particular issues previously raised. Despite this, there were again instances during the reporting period where law enforcement officers and civilians engaged in conduct not covered by a valid authority. The committee notes that in response, the AFP advised the Ombudsman that targeted training has been provided to regional offices and the AFP has reinforced the importance of undertaking only authorised conduct.[22] The AFP has also launched a mandatory online training course on controlled operations for all of its sworn members.[23]

3.30      The committee will continue to monitor the AFP's use of its controlled operations powers and in particular, instances where a written record of an urgent authority has not been made within the seven-day period, and where law enforcement officers and civilians engage in conduct not covered by a valid authority.

Ombudsman's report—surveillance devices

3.31      Pursuant to the Surveillance Devices Act 2004 (Surveillance Act):

The Ombudsman must inspect the records of a law enforcement agency to determine the extent of compliance with this Act by the agency and law enforcement officers of the agency.[24]

3.32      The AFP is one such law enforcement agency.[25]

3.33      The 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'.[26]

3.34      The Ombudsman's public report concerning the AFP's compliance with the Surveillance Act from 1 January 2014 to 30 June 2014 (the September 2015 report),[27] being the most recent report provided to the Attorney‑General in accordance with the Surveillance Act, was provided to the committee by the Ombudsman and is the subject of the committee's consideration in this report.[28]

3.35      The September 2015 report into inspections under the Surveillance Act notes that while no recommendations were made as a result of the Ombudsman's  inspections of the AFP from 13 to 16 October in Canberra, it 'identified a small number of instances of non-compliance' and was unable to determine compliance in two instances.[29]

Committee view

3.36      After reviewing the September 2015 report, the committee is generally satisfied with how the AFP has discharged its obligations with respect to the Surveillance Act. Nevertheless, the committee is concerned that the same three issues identified and discussed by the Ombudsman in its previous report reoccurred in the following reporting period, as discussed in the September 2015 report.

3.37      The committee notes that the AFP has taken remedial steps with the intention of addressing these issues. The committee will continue to monitor the AFP's use of its powers under the Surveillance Act and in particular, the issues that have reoccurred over two separate reporting periods.

3.38      Additionally, the committee notes the issue raised by the Ombudsman in respect of inaccurate reporting on the issuing of a warrant (reporting that a warrant had not been executed, when it had been), to the Minister and to the Ombudsman. The committee reiterates the significance of accurate reporting as articulated in the report: these errors impact on the sampling methodologies that the Ombudsman uses for inspections.[30] The AFP advised that it is taking remedial action, and the committee notes that the Ombudsman is satisfied with this response.[31]

Ombudsman's report—telecommunications interception records and stored communication records

3.39      The committee received two detailed reports on the inspection of the AFP's telecommunications interception records under the Telecommunications (Interception and Access) Act 1979 (TIA Act), the first in relation to the period 1 January to 30 June 2014,[32] and the second in relation to the period 1 July to 31 December 2014.[33] The committee also received a detailed report on the inspection of stored communications records of the AFP for the period 1 July 2013 to 30 June 2014.[34] The committee has noted the reports and has received them as confidential correspondence.

Committee view

3.40      The committee notes the Ombudsman's findings and recommendations in respect of the AFP's compliance with the TIA Act, and expects the AFP to take the appropriate action in response to the issues raised in these reports. 

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