REPORTS ON THE OPERATION OF ACTS AND PROGRAMS
Standing Order 25(20) does not provide for the consideration of reports
on the implementation or operation of acts or programs. The committee is not,
therefore, required to include them in its report on the examination of annual
reports. However, as on previous occasions, the committee has chosen to examine
such reports, specifically the:
- Surveillance Devices Act 2004 report for the year ending
30 June 2012; and
- Annual report on the Commonwealth Ombudsman's activities under
Part V of the Australian Federal Police Act 1979 for the period 1
July 2011 to 30 June 2012 (published by the Commonwealth Ombudsman).
Report on the operation of the Surveillance Devices Act 2004
The report on the operation of the Surveillance Devices Act 2004
(SD Act) was tabled in the House of Representatives on 29 November 2012 and in
the Senate on 5 February 2013. The report was presented to the minister on 4
October 2012, just outside the SD Act's legislative provisions. Under
section 50(3) of the SD Act:
The report must be submitted to the Minister as soon as
practicable after the end of each financial year, and in any event within 3
months after the end of the financial year.
The report relates to the period from 1 July 2011 to 30 June 2012. During
this reporting period, some important legislative and policy developments took
place in relation to the SD Act. Following reforms to the Extradition and
Mutual Assistance in Criminal Matters Legislation Amendment Act 2012, which
is a formal assistance process between countries to assist one another in their
investigation and prosecution of criminal offences, the SD Act provides
authorisation for the use of a surveillance device to be used for foreign law
enforcement purposes. A foreign government can request the use of a
surveillance device in another country's jurisdiction and arrange for the
information obtained to be sent to that foreign country. This is a reciprocal
arrangement, which also enables the Australian government to request a foreign
government to authorise the use of a surveillance device in that jurisdiction
and arrange for the information to be sent to Australia.
Authorisation for the use of a device is granted following a foreign
government's request for mutual assistance and approval by the
The use of surveillance devices was previously restricted to domestic purposes,
but these amendments mean surveillance devices can be authorised for foreign
law enforcement purposes, but only where their use could already be authorised
for a domestic purpose.
Other relevant developments in relation to the SD Act in 2011–12
included an increase (of 9.2%) in surveillance device warrants issued, with
three more agencies using the investigative tool.
While the Australian Federal Police (AFP) reported a 22.2% increase in
obtaining surveillance device warrants from the preceding period (up from 406
in 2010–2011 to 496 in 2011–12), this contrasted with the Australian Crime Commission's
(ACC) decrease of 26.8% in the same reporting period (131 warrants obtained
in 2011–12 compared to 179 warrants obtained in 2010–11).
Information in relation to the number of warrants obtained at the state
and territory level was not available as state and territory law enforcement
agencies generally rely on their own legislative regimes for the use of
surveillance devices, although they are able to make use of the SD Act when
dealing with a Commonwealth matter or during a joint operation.
There were no significant judicial decisions under the SD Act during the
Pursuant to paragraph 50(1)(a) of the SD Act, the annual report must
provide information on the number of applications for warrants made and the
number of warrants issued for the reporting period. Under subsection 50(2), the
SD Act also requires the report to provide a breakdown of these numbers in
respect of each different kind of surveillance device.
For 2011–12 there was an approximate 9.1% increase in the number of
warrants issued (642 warrants issued) compared to the preceding period (588
The report notes that section 10 of the SD Act allows a surveillance
device warrant to cover more than one surveillance device or more than one kind
of surveillance device. It could also be issued for composite devices, meaning
devices that may have more than one function. For example, a warrant could
authorise the use of separate listening and tracking devices for a vehicle or a
composite device containing both listening and tracking functions.
Section 15 of the SD Act provides for remote application for a warrant. A remote
warrant could be made by telephone, fax, email or other means of communication
if it is impracticable for the law enforcement to apply in person. There were
no remote applications during the reporting period.
Section 50 requires the inclusion of information which is, for the
committee's purpose, indicative of the SD Act's effective use, such as: the
number of arrests; prosecutions and convictions; as well as 'the number of
locations and safe recoveries of children', based on information obtained using
The table below shows the number of arrests, prosecutions and
convictions for 2011–12. The figures in brackets refer to the preceding
reporting period 2010–11. During the reporting period there was an increase in
arrests, prosecutions and convictions.
The report notes that information regarding arrests, prosecutions
(inclusive of committal proceedings) and convictions should be interpreted with
caution, especially in presuming a relationship between them. An arrest in one
reporting period might not lead to a prosecution in a later reporting period
(if at all), likewise a conviction in one reporting period could be recorded in
another period. Further, there is no correlation between the number of charges
and arrests as an arrest could lead to conviction for multiple offences. Also,
in situations where the weight of evidence obtained from surveillance devices
is sufficient for defendants to enter guilty pleas, it may not be necessary for
surveillance information to be introduced as evidence.
Annual report on the Commonwealth Ombudsman's activities under Part V of the Australian Federal Police Act 1979
The Annual report on the Commonwealth Ombudsman's activities under
Part V of the Australian Federal Police Act 1979 for the period 1 Jul 2011 to
30 June 2012 was tabled in the House of Representatives on 28 November 2012
and in the Senate on the 29 November 2012.
Part V of the Australian Federal Police Act 1979 (AFP Act) confers
to the Ombudsman oversight responsibilities in respect of the way that the AFP
handles complaints about it and its members.
Pursuant to subsections 40XA and 40XD of the AFP Act, the Ombudsman conducts
annual reports and reviews of AFP complaint-handling procedures and processes by
undertaking an inspection of records. For the 2011–12 financial year, the
Ombudsman conducted a two-part review inspection at the offices of both the AFP
and the Ombudsman (using the AFP terminal AFPNet).
The review covered all AFP complaint issues closed in the review period, 1
September 2010 to
31 December 2011.
Part one of the review conducted by the Ombudsman covered complaints
closed during the period 1 September 2010 to 31 August 2011 and part two
covered complaints closed during 1 September 2011 to 31 December 2011. The
rationale behind conducting a two-part review was to enable the Ombudsman to
examine whether reforms to AFP Professional Standards (PRS) processes have
improved its complaint handling, with the expectation that part two would
exhibit an improvement in timeliness.
The review examined 1275 complaints closed within the review period covering
2797 complaint issues
(857 cases in part one covering 1927 complaint issues and in part two, 418
complaints covering 870 complaint issues).
The review examined 132 complaints in detail (92 complaints from part one and
40 complaints from part two) and selected 16 complaints as case studies. Of the
sampled complaints, 92% were external, mostly from members of the public.
Key findings in the Ombudsman's review included: establishment rates for
external complaints (publicly-generated complaints) being significantly lower
than for internally-generated complaints; the AFP's initiatives to improve timeliness
of dispute resolution have had an impact but there remains a backlog of old
complaints which need to be cleared so resources can be redirected to new
the negligible establishment rate of external complaints about excessive use of
force against a person; better management of conflicts of interests that may
arise in the course of complaint investigations; and regular communication with
The review noted that it was not surprising that ACT policing (30.2%) and
(22.6%) were the two most functional streams for complaints as these areas have
most frequent contact with members of the public.
The establishment rate for internal complaints was 43% (679 of 1546
complaint issues established) compared to 11% (140 of 1251 complaint issues
established) for external complaints.
In contrast, the figures reported in the previous review was higher for the
establishment rate for internal complaints (at 60% or 139 of 232 complaint
issues established) and lower for the external complaints
(at 7% or 30 of 415 complaint issues established).
The top five complaint issues established, and which accounted for
70% of all issues established, were: 'diligence failure'; 'serious breach of
the AFP Code of Conduct'; 'supervision failure'; 'failure to comply with
direction or procedure'; and 'breach of the AFP Code of Conduct'.
In relation to 'use of force complaints', the report noted that of the
246 complaint issues coded as 'use of force', 218 related to excessive use of
force on an individual.
Of these, only two were established, with one an internal complaint and the
other an external complaint. The Ombudsman's office considered the
investigation of the external complaint was 'thorough and of a high standard'.
In many of the cases examined, the report noted there was insufficient evidence
available for the complaint to be established.
Another area of review by the Ombudsman was the management of conflicts
of interests. In five of the cases examined by the Ombudsman, a conflict of
interest or potential conflict of interest was identified in the course of a
complaint investigation. The case studies in the annual report highlighted: the
importance of an investigation officer recognising a conflict of interest and
taking appropriate steps to resolve the matter;
and the importance of appointing an independent investigator who is impartial,
particularly when dealing with difficult complainants.
The report noted regular contact with complainants was not consistent
nor was there any indication of how often complainants were contacted. The
report also commented that regularly updating a complainant is good practice. Of the 132 cases examined, in only 20% of cases
were complainants regularly contacted by an investigating officer, and the
regularity of contact varied between once every month to every two months.
The report recommended introducing minimum standards for frequency of contact
with complainants during the investigation process.
With regard to 'obtaining a complainant's version of events' and 'witnesses
and evidence', the Ombudsman continued to express concerns that decision-makers
exhibited a tendency to accept the evidence of an AFP officer without
sufficient attempts to interview other possible third party witnesses. The
Ombudsman's review of AFP records found that in only 37% of cases (34 of 92
cases) in part one and 57% of cases (23 of 40 cases) in part two, did the
investigator speak to the complainant prior to speaking with the AFP officer
The report commented that the lack of independent sources of evidence
undermines the veracity of an investigation outcome.
The AFP's response to the Ombudsman's six recommendations were
summarised in the report: the AFP accepted and / or advised that it had
processes to address five of the six recommendations.
The AFP did not agree with recommendation four which stated that all potential
witnesses and sources of evidence should be identified and subsequently
interviewed or obtained.
Senator the Hon. Ian
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