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Oversight of Law Enforcement

Law Enforcement Ombudsman

Our role as the Law Enforcement Ombudsman involves oversight of the Australian Federal Police (AFP), for which we have three main functions. We assess and investigate complaints about the AFP, receive mandatory notifications from the AFP regarding complaints about serious misconduct involving its members, under the Australian Federal Police Act 1979 (AFP Act), and conduct statutory reviews of the AFP’s administration of Part V of the AFP Act.

Complaints overview

In 2018–19 we received 262 complaints and finalised 263 complaints about the AFP.1 This is a
1.6 per cent decrease from complaints received in 2017–18. The issues raised by the public in AFP complaints to our Office concerned:

  • inappropriate action, including the failure to investigate complaints or inadequate investigation of complaints
  • customer service experiences when making complaints.

Under the AFP Act, the AFP is required to notify our Office about any complaints it receives about serious misconduct matters. The AFP complied with this obligation during 2018–19.

The Office conducted one review of the AFP’s administration of Part V of the AFP Act during the year, with the report to be published in 2019–20. We published the 2017–18 annual report under Part V of the AFP Act in May 2019. As part of this year’s review, we engaged with the AFP Professional Standards (PRS) team and Safe Place team2 to discuss their management of complaints under Part V of the AFP Act.

Case Study
AFP Safe Place was established to provide support to people who have suffered sexual harassment or bullying and to give them the reassurance that their concerns will be treated
with respect, sensitivity and confidentiality. Safe Place is available to former and current
AFP members, who are encouraged to bring matters to the team, even if they have already
reported previously through existing processes. In 2017–18, we met with representatives from
Safe Place to discuss their management of complaints under Part V of the AFP Act.

In 2018–19, we made recommendations to the AFP regarding Safe Place and the handling of complaints. These recommendations included:

  • The AFP update its policies and procedures to provide both written and verbal information to complainants to ensure they are provided with consistent information and the integrity of the investigation and decision process can be easily established and reviewed.
  • The AFP ensure investigators are aware of appropriate notification practices and procedures.

The AFP undertook to implement our recommendations to improve its policies and procedures in relation to Safe Place. The Office will continue to monitor this program through our reviews under Part V of the AFP Act, regular liaison with the AFP and any complaints we may receive.

Our 2017–18 reviews found the AFP’s administration of Part V of the Act to be comprehensive and adequate with matters investigated appropriately. However, we identified some deficiencies in how the AFP responds to practices issues and made several suggestions to improve record-keeping processes, and adherence to legislative requirements and standard operating procedures.

Inspections of covert, intrusive or coercive powers

In 2018–19, the Office performed oversight functions under various pieces of legislation which grant intrusive and covert powers to certain law enforcement agencies, for example under the Telecommunications (Interception and Access) Act 1979, the Surveillance Devices Act 2004 and Part IAB of the Crimes Act 1914.

We are required to inspect the records of enforcement agencies and report to the Minister3 on agencies’ compliance with the above legislation. Reports to the Minister are subsequently tabled in Parliament. The Office also performed oversight functions in relation to specific coercive information gathering powers4 used by the Fair Work Ombudsman (FWO) under the Fair Work Act 2009, and the Australian Building and Construction Commission (ABCC) under the Building and Construction Industry (Improving Productivity) Act 2016. Our role is to review and report quarterly to Parliament on the exercise of these powers by the ABCC and FWO.

Overview of our oversight activities in 2018–19

Table 3—Law enforcement and integrity agencies subject to inspections and reviews by the Office

Power

Legislation

Agencies subject to inspection

Controlled operations authorities

Crimes Act 1914 – Part IAB

AFP

ACLEI

ACIC

Delayed notification

search warrants

Crimes Act 1914 – Part IAAA

AFP

Control orders

Crimes Act 1914 – Part IAAB

AFP

Industry assistance

requests and notices

Telecommunications Act 1997 – Part 15

All State/Territory police forces, plus:

AFP

ACIC

Telecommunications

interceptions

Telecommunications (Interception and

Access) Act 1979 –Chapter 2

AFP

ACLEI

ACIC

Stored communications

Telecommunications (Interception and

Access) Act 1979 –Chapter 3

All State/Territory police forces, plus:

ACIC

ACCC

ACLEI

AFP

ASIC

Corruption & Crime Commission (WA)

Crime & Corruption Commission (QLD)

Home Affairs

IBAC (Victoria)

Law Enforcement Conduct Commission

NSW Crime Commission

ICAC (NSW)

ICAC (SA)

Telecommunications

data (metadata)

Telecommunications (Interception and

Access) Act 1979 –Chapter 4

Surveillance device

warrants

Surveillance Devices Act 2004

All State/Territory police forces, plus:

ACIC

ACLEI

AFP

Corruption & Crime Commission (WA)

Crime & Corruption Commission (QLD)

Law Enforcement Conduct Commission

NSW Crime Commission

ICAC (NSW)

Part V

Part V of the Australian Federal Police Act 1979

AFP

Table 4—Non-law enforcement agencies subject to review by the Office

Power

Legislation

Agencies subject to inspection

Exercise of examination powers

Building and Construction

Industry (Improving

Productivity) Act 2016

Australian Building and Construction

Commission

Exercise of examination powers

Fair Work Act 2009

Fair Work Ombudsman

Table 5—Inspections conducted during 2018–19

Function

Number of inspections

Inspection of telecommunications interception records under the Telecommunications (Interception and Access) Act 1979

6

Inspection of stored communications—preservation and access records under the Telecommunications (Interception and Access) Act 1979

10

Inspection of telecommunications data records under the Telecommunications (Interceptions and Access) Act 1979

10

Inspection of the use of surveillance devices under the Surveillance Devices Act 2004

3

Inspection of controlled operations conducted under Part IAB of the Crimes Act 1914

3

Total

32

Table 6- Reviews conducted during 2018-19

Function

Number of reviews

Review of Fair Work Ombudsman use of its coercive examination powers under the Fair Work Act 2009.

2

Review of the Australian Building and Construction Commission’s use of coercive examination powers under the Building and Construction Industry (Improving Productivity) Act 2016

4

Australian Federal Police’s administration of Part V of the Australian Federal Police Act 1979

1

Total

7

Our approach

Our Office values independence, fairness and transparency. These values inform the way we conduct inspections and reviews and how we engage with the agencies.

We give notice to agencies of our intention to conduct an inspection and provide them with a broad outline of the criteria against which we assess compliance. We encourage agencies to voluntarily disclose any instances of noncompliance to our Office, including any remedial action they have taken.

For each of these inspection and review functions, we have established methodologies we consistently apply across all agencies. These methodologies comprise of test plans, risk registers and checklists. These methodologies are based on legislative requirements and best practice standards, ensuring the integrity of each inspection and review. It is our practice to regularly review our methodologies to reflect legislative change and ensure their effectiveness.

We focus our inspections and reviews on areas of high risk, taking into consideration the impact of non-compliance, such as unnecessary privacy intrusions. We also help agencies in ensuring compliance, through assessing agencies’ policies and procedures, communicating best practices to meet compliance and engaging with agencies outside of the formal inspection or review process.

Reports

Our reports detail the extent of an agency’s compliance with the legislative requirements for using certain covert, intrusive and coercive powers. We do this by assessing the extent to which agencies are able to demonstrate they have met the relevant legislative requirements.

In addition to agencies’ practical compliance, we also consider their organisational culture regarding compliance. We often find that a good compliance culture results in greater levels of practical compliance. During 2018–19 we produced 17 public reports.5

Table 7—Public reports produced during 2018–19

Report

Date finalised

Quarterly report by the Commonwealth Ombudsman under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016—for the period 1 July to 30 September 2017

July 2018

A report on the Commonwealth Ombudsman’s activities in monitoring controlled operations under s 15HO of the Crimes Act 1914—for the period 1 July 2016 to 30 June 2017

August 2018

Report to the Minister for Home Affairs on agencies’ compliance with the Surveillance Devices Act 2004—for the period 1 January to 30 June 2018

September 2018

A report on the Commonwealth Ombudsman’s monitoring of agency access to stored communications and telecommunications data under Chapters 3 and 4 of the Telecommunications (Interception and Access) Act 1979—for the period 1 July 2016 to 30 June 2017

November 2018

Quarterly Report by the Commonwealth Ombudsman under s 712F(6) of the Fair Work Act 2009—for the period 15 September to 31 December 2017

December 2018

Quarterly Report by the Commonwealth Ombudsman under s 712F(6) of the Fair Work Act 2009—for the period 1 January to 31 March 2018

December 2018

Quarterly Report by the Commonwealth Ombudsman under s 712F(6) of the Fair Work Act 2009—for the period 1 April to 30 June 2018

December 2018

Quarterly Report by the Commonwealth Ombudsman under s 712F(6) of the Fair Work Act 2009—for the period 1 July to 30 September 2018

December 2018

A report on the Commonwealth Ombudsman’s inspection of the Australian Federal Police under the Telecommunications (Interception and Access) Act 1979—compliance with journalist information warrant provisions

January 2019

Quarterly Report by the Commonwealth Ombudsman under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016—for the period 1 October to 31 December 2017

February 2019

Report to the Minister for Home Affairs on agencies’ compliance with the Surveillance Devices Act 2004—for the period 1 July to 31 December 2018

March 2019

A report on the Commonwealth Ombudsman’s monitoring of agency access to stored communications and telecommunications data under Chapters 3 and 4 of the Telecommunications (Interception and Access) Act 1979—for the period 1 July 2017 to 30 June 2018

March 2019

A report on the Commonwealth Ombudsman’s activities under Part V of the Australian Federal Police Act 1979—for the period 1 July 2017 to 30 June 2018

May 2019

Quarterly Report by the Commonwealth Ombudsman under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016—for the period 1 January to 31 March 2018

June 2019

Quarterly Report by the Commonwealth Ombudsman under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016—for the period 1 April to 30 June 2018

June 2019

Quarterly Report by the Commonwealth Ombudsman under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016—for the period 1 July to 30 September 2018

June 2019

Quarterly Report by the Commonwealth Ombudsman under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016—for the period 1 October to 31 December 2018

June 2019

To ensure procedural fairness, reports that incorporate our inspection or review results are given to each agency for an opportunity to comment on our findings before the results are finalised. Depending on our reporting requirements, the final report is either presented to the relevant Minister6 for inclusion in their annual report or for tabling in Parliament, or forms the basis of our Office’s published reports.7

For our published reports we remove reference to any sensitive information that could undermine or compromise law enforcement activities.

Although we produced a number of reports during 2018–19, we were unable to finish one of our annual inspection reports, two quarterly review reports and a report on the activities under Part V of the Australian Federal Police Act 1979.


The following reports will be finalised early in 2019–20:

  • A report on the Commonwealth Ombudsman’s activities in monitoring controlled operations under s 15HO of the Crimes Act 1914—for the period 1 July 2017 to 30 June 2018.
  • Our quarterly report by the Commonwealth Ombudsman under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016—for the period 1 January to 31 March 2019.
  • Two quarterly reports by the Commonwealth Ombudsman under s 712F(6) of the Fair Work Act 2009—for the period 1 October to 31 December 2018 and for the period 1 January to 31 March 2019.

Parliamentary Joint Committee appearances

In 2018–19 we appeared before and made submissions to the Parliamentary Joint Committee on Intelligence and Security regarding the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018.

We briefed the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (ACLEI) regarding ACLEI’s controlled operations. We also briefed the Parliamentary Joint Committee for Law Enforcement regarding controlled operations by the AFP and the Australian Criminal Intelligence Commission (ACIC).

Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018

In December 2018 the Telecommunications and Other Legislation Amendment (Assistance and
Access) Act 2018
amended, among other things, the Surveillance Devices Act. These amendments established a new intrusive power, through a new type of warrant, called a computer access warrant. It also included a new type of emergency authorisation for access to data held in computers. Amendments were implemented to address industry identified capability gaps and strengthen law enforcement agencies’ ability to collect encrypted information. Our Office has oversight of the Surveillance Devices Act, including how law enforcement agencies use these computer access warrant powers.

The Assistance and Access Act also provided certain law enforcement agencies with new powers under Part 15 of the Telecommunications Act 1997 to request or require assistance from a communications provider in order to enforce the criminal law. Agencies must advise our Office if they issue a request or notice and we may inspect, and/or prepare a report about agencies’ use of the industry assistance powers.

As agencies increase their use of these new intrusive powers, our Office’s oversight will also increase.

Stakeholder engagement

During 2018–19, we provided advice and training to law enforcement agencies about compliance issues and best practice in compliance and complaint-handling. This included participating in, and presenting at forums and workshops held by the law enforcement community, as well as formal meetings with agencies.

In June 2019 the Office hosted the first of three forums for representatives of the 21 enforcement agencies we oversee. The forum, held in Brisbane, focused on compliance when using covert and intrusive powers. The forum was an opportunity for attendees to discuss best practices, concerns and newly legislated powers, and to obtain information about preparing for 2019–20 compliance inspections. We will hold forums in Canberra and Melbourne in July 2019.

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT) is an international treaty designed to strengthen protections for people in situations where they are deprived of their liberty and potentially vulnerable to mistreatment or abuse. OPCAT was ratified by the Australian Government on 21 December 2017.

OPCAT requires signatory countries to establish domestic oversight bodies known as National Preventive Mechanisms (NPMs), which undertake a regime of preventive inspections into places of detention. Ratification of OPCAT also requires the Australian Government to accept visits from the United Nations Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), which comprises of international experts on detention and related functions.

At the time of ratification, the Australian Government made a declaration under Article 24 of OPCAT formally delaying the obligation to establish Australia’s NPM for an additional three year period. The mandate allowing for in-country visits by the SPT has not been delayed.

As each government is proposed to retain authority for oversight of places of detention in their jurisdiction, Australia’s NPM will be a cooperative network (the NPM network) of Commonwealth, state and territory inspectorates (NPM bodies), facilitated and coordinated by an NPM Coordinator.

The Office of the Commonwealth Ombudsman is appointed as the NPM body for places of detention under the control of the Commonwealth and as the NPM Coordinator. Regulations establishing both functions came into effect from 10 April 2019.8

The NPM body for places of detention under the control of the Commonwealth

As the NPM body for places of detention under the control of the Commonwealth, we will continue to inspect Australian immigration detention facilities. In addition we will undertake inspections of Australian Defence Force detention facilities and Australian Federal Police cells. As the NPM body for places of detention under the control of the Commonwealth we do not have any authority to inspect state and territory places of detention, nor direct the activities of the state and territory bodies who will form the NPM network.

The Commonwealth Ombudsman will commence trial OPCAT inspections of places of detention under the control of the Commonwealth in mid-2019, in anticipation of the full OPCAT compliant inspections commencing for all places of detention under the control of the Commonwealth by January 2021. We trialled some aspects of OPCAT–compliant inspections in our visit to the Brisbane Immigration Transit Accommodation in June 2019. To assist us in this process, two members of the NZ Ombudsman’s Office also attended the inspection and provided us with feedback to help develop our OPCAT inspection methodology.

The NPM Coordinator

As the NPM Coordinator, our role is to work with the oversight bodies that will form the NPM network, helping to develop and support processes and best practices to meet the intended outcomes of the NPM network. Places of detention that are the initial focus of OPCAT activity include adult prisons (including corrective centres and work camps), juvenile detention centres, closed psychiatric facilities, closed forensic disability facilities and police cells. In our role as the NPM Coordinator we do not have authority over other inspectorates and will not engage in secondary inspections of these facilities.

Although other NPMs are yet to be nominated, our Office has actively engaged with oversight bodies that may have an interest in OPCAT implementation. In particular, we instigated outreach with bodies and office holders in each jurisdiction that may have a role in the future NPM network. In 2018–19, senior members of the Office met with 62 bodies which have a current inspection or oversight function, or have a wider interest in the progress of OPCAT implementation in Australia. We also continue to work with the Australian Human Rights Commission’s civil society consultations and welcome input into the development of the NPM functions.

Report by the NPM Coordinator

As a result of our engagement with current oversight bodies we have prepared a draft report that provides a comprehensive, contemporary overview of Australia’s readiness to implement OPCAT. The report contains a baseline assessment of OPCAT readiness and also maps the types of places of detention within Australia.

The draft report will be provided to Attorney-General’s for comment. It is planned to be published in 2019–20.

Footnotes

  1. This includes 61 complaints received about ACT Policing. ACT Policing complaints are also reported in the ACT Ombudsman Annual Report 2018–19.
  2. The AFP’s Safe Place team was established to provide support to complainants and to investigate sexual harassment and abuse, following an independent review of the organisation by former Sex Discrimination Commissioner Elizabeth Broderick.
  3. Currently the Minister for Home Affairs is responsible for administering the Telecommunications (Interception and Access) Act 1979, the Surveillance Devices Act 2004 and Part IAB of the Crimes Act 1914.
  4. Examination notices requiring a person to give information, produce documents or attend before the relevant agency to answer questions relevant to the investigation.
  5. Available on our website at: http://www.ombudsman.gov.au/publications/reports/inspection.
  6. Under the Commonwealth of Australia, Administrative Arrangements Order, the Minister who responsible for the administration of the relevant legislation we oversee is the Minister for Home Affairs.
  7. All of our reports once tabled in Parliament are made publically available on our website.
  8. https:/www.legislation.gov.au/Details/F2019L00591