Section C: LEGISLATIVE AND POLICY-BASED REPORTING

• Public interest disclosure
• Freedom of Information
• Community grants/assistance/sponsorship
• Territory records
• ACT Multicultural Strategy 2010–13
• Aboriginal and Torres Strait Islander reporting
• ACT Policing Inspection Reports

PUBLIC INTEREST  DISCLOSURE

The ACT Ombudsman is a  proper authority for receiving public interest disclosures (PID) under the PID  Act. Once a PID disclosure from a member of the public or an officer of a  public service agency is received, the matter may be investigated using powers  under the ACT Ombudsman Act. Alternatively, the matter may be referred to  another authority if it is better placed to investigate the matters disclosed.  In many instances, the most appropriate authority will be the agency that is  the subject of the complaint. If a PID disclosure is referred to another authority,  the Ombudsman’s office remains an interested party to any ongoing investigation  and is entitled to receive progress reports every three months.

In 2011–12, the office  received two disclosures categorised as PIDs. Investigations into both matters  have started, using the office’s powers under the ACT Ombudsman Act. Both  investigations remained open as at 30 June 2012.

In 2011–12, the office closed three approaches received before 1  July 2012 that had been categorised as PIDs. Two of these matters were investigated  under the Ombudsman’s powers; the third matter was referred to the agency  complained of for investigation. In the latter case, the agency’s findings were  accepted by this office.

FREEDOM OF  INFORMATION

Complaints about  actions of agencies

Section 55(2) of the  Freedom of Information Act 1989 (ACT) requires the Ombudsman to report on  complaints about the handling of Freedom of Information (FOI) requests by ACT  Government agencies.

During the year the  Ombudsman received 13 complaints involving 11 agencies about the processing of  requests under the FOI Act. Of these, four were investigated and nine were  closed on the grounds that investigation was not considered warranted in the  circumstances. We finalised 16 complaints during the course of the year, three  of which had been received during the previous annual report year.

FOI Requests to  the Ombudsman

In 2011–12, the ACT Ombudsman received two FOI requests under s  14 of the FOI Act. No applications for reviews of our decisions were made to  the ACT Civil and Administrative Tribunal, nor were any fees or charges imposed  on applicants for the processing of the requests.

COMMUNITY GRANTS/  ASSISTANCE/SPONSORSHIP

The ACT Ombudsman’s office did not provide any community grants,  assistance or sponsorship during the reporting period.

TERRITORY RECORDS

The ACT Ombudsman’s  office has a records management program that was approved by the Director of  Territory Records.

In accordance with the Territory Records Act 2002 (ACT) (Territory Records Act), the office  ensures that:

• all ACT Ombudsman  records are stored appropriately and securely
• relevant position  profiles and duty statements reflect the records management skills required by  the Ombudsman’s office
• training is available  for records management and general staff in record-keeping skills and  responsibilities
• a controlled language  system for records management for the Ombudsman’s office has been developed and  is used by staff.

The office operates  with an approved Records Disposal Schedule Territory Records (Records Disposal  Schedule — Ombudsman Complaint Management Records) Approval 2011 (No 1) (NI  2011–93).

Given the nature of  the Ombudsman’s work, the office does not have records that may allow people to  establish links with their Aboriginal or Torres Strait Islander heritage.

Part 3 of the Territory Records Act provides for public access  to ACT records that are more than 20 years old.

ACT Multicultural Strategy 2010-13

The Ombudsman provides  support to this strategy through efforts to ensure the office is easily  accessible by the Australian community. Information sheets are available in 36  community languages setting out the role of the Ombudsman and how to make a  complaint about a government agency: Albanian, Amharic, Arabic, Bosnian,  Chinese (simplified and traditional), Croatian, Dari, Dinka, Dutch,  Farsi/Persian, Filipino, French, German, Greek, Hindi, Indonesian, Italian,  Khmer, Korean, Kurdish, Lao, Macedonian, Malay, Pashtu/Pashto, Polish, Russian,  Serbian, Sinhalese, Somali, Spanish, Swahili, Tamil, Tigrinya, Turkish and  Vietnamese. The information sheets are available at www.ombudsman.act.gov.au.

The office uses interpreting services, particularly telephone  interpreting services, to assist people dealing with the office who may have  difficulty communicating in English.

ABORIGINAL AND  TORRES STRAIT ISLANDER REPORTING

The Aboriginal and  Torres Strait Islander Justice Agreement (Agreement) is a major commitment by  the ACT Government to address the law and justice needs of Aboriginal and  Torres Strait Islander people in the ACT.

As part of the office’s commitment, regular meetings with the  implementation group were attended and the office continued to look at ways to  improve access to complaint services to Aboriginal and Torres Strait Islander  people in the ACT.

ACT Policing Inspection Reports

Controlled operations

The Crimes (Controlled Operations) Act 2008 (ACT) allows ACT Policing to conduct controlled (covert) operations in the ACT. The ACT Ombudsman is required to inspect the records of ACT Policing at least once every 12 months to ascertain its compliance with the Act.

We conducted one inspection during 2011-12, which examined ACT Policing’s records associated with authorities to conduct controlled operations that had either expired or were cancelled during the period 1 July 2010 to 30 June 2011. Overall, ACT Policing was assessed as compliant with the requirements of the Crimes (Controlled Operations) Act 2008.

The inspection identified three issues of an administrative nature. One recommendation was made as a result of this inspection. ACT Policing has agreed with our recommendation and has implemented changes to address all issues identified during the inspection.

We note ACT Policing’s high standard of record keeping associated with the conduct of controlled operations.

Surveillance devices

The Crimes (Surveillance Devices) Act 2010 (ACT) came into effect in January 2011 and establishes a framework for the use of surveillance devices by law enforcement officers in the ACT. Under this Act, the ACT Ombudsman may inspect the records of ACT Policing to determine the extent of its compliance with the Act.

During 2011-12, we conducted our first inspection of ACT Policing’s use of surveillance devices under the Crimes (Surveillance Devices) Act 2010. ACT Policing was assessed as compliant with the provisions of this Act. Two suggestions were made in relation to how ACT Policing may better comply with the relevant legislative provisions. ACT Policing has agreed to these suggestions and has implemented measures to address the issues.

We commend ACT Policing for its positive attitude towards compliance.

Assumed identities

Under the Crimes (Assumed Identities) Act 2009 (ACT), the Ombudsman may inspect records of a law enforcement agency to determine the extent of its compliance with the Act. The Act facilitates investigations and intelligence gathering in relation to criminal activity by providing for the lawful acquisition and use of assumed identities.

No inspections have been conducted under the Crimes (Assumed Identities) Act 2009 to date.

Child sex offenders register

The child sex offenders register was established in the ACT by the Crimes (Child Sex Offenders) Act 2005 (ACT). The register must contain current information relating to the identity and whereabouts of persons residing in the ACT who have been convicted of sexual offences against children.

Information on the register comes principally from offenders, who must report any changes in their circumstances such as a change of address, within seven days, and in any case must contribute details to the register or confirm existing details at least once a year. The ACT Ombudsman is required to ensure that the register is accurately maintained by ACT Policing in accordance with Chapter 4 of the Crimes (Child Sex Offenders) Act 2005.

In 2011-12, we finalised one inspection of ACT Policing’s maintenance of the register. The report of the results of that inspection was provided to the Minister for Police and Emergency Services and the ACT Chief Police Officer in December 2011.

The Ombudsman found that ACT Policing was compliant with Chapter 4 of the Crimes (Child Sex Offenders) Act 2005 and that the register was appropriately maintained. The inspection found improvements since the previous inspection in relation to ACT Policing’s recording of dates of convictions, details of relevant criminal histories and controls regarding authorised access to the register.

However, we did not make an assessment of ACT Policing’s compliance with the requirement to restrict access to information about protected witnesses, as there were no protected witnesses identified on the register. As noted in our previous reports to the Minister, the ACT Witness Protection Program (WPP) may not be receiving sufficient information from WPPs in other jurisdictions regarding the movement of protected persons, including protected registrable offenders, entering the ACT. This implies that ACT Policing may not be informed of the movements of registrable offenders that are a part of a WPP and are entering the ACT, and therefore may not place the offender on the register, as required under the Act.

This issue cannot be resolved by ACT Policing alone and requires the cooperation of the ACT Department of Justice and Community Safety and the WPPs in all other jurisdictions to establish communication channels regarding information about protected witnesses. We understand that ACT Policing and the ACT Department of Justice and Community Safety are working with other jurisdictions to help address this issue.

Once appropriate communication channels have been established, ACT Policing will then need to address the limited functionality of the register so that access to information about protected witnesses can be restricted.

Influencing positive change

The Crimes (Child Sex Offenders) Amendment Bill 2012 was introduced in the Legislative Assembly in February 2012. The Bill responds to our concerns, identified at past inspections, regarding the effectiveness of the Crimes (Child Sex Offenders) Act 2005.

The Bill has been passed by the Legislative Assembly and will commence on 22 November 2012. The amendments aim to reduce the risk of offenders reoffending, keep pace with changes in technology and behaviours of registrable offenders, and align the Act with child sex offender regimes in other jurisdictions. They also address a number of other issues and concerns we have raised during past inspections.

In our 2009-10 annual report, we informed the Minister for Police and Emergency Services of our concerns regarding the effectiveness of the Crimes (Child Sex Offenders) Act 2005 in achieving its aim of reducing the likelihood of offenders reoffending. The Act (prior to amendment) does not expressly prohibit offenders having contact with children, nor does it give police powers to monitor offenders. We recommended that the Minister consider legislative amendments to enable police to monitor offenders and take action when they identify a child at risk. The Minister responded by implementing reforms and we were involved in the development of the legislative amendments with ACT Policing and the ACT Department of Justice and Community Safety.

Our positive working relationship with ACT Policing has played a pivotal role in progressing these legislative amendments. We appreciate ACT Policing’s cooperation with Ombudsman staff and for providing all documents relevant to each of our three inspections. We commend ACT Policing for its responsiveness to our reports across all three inspection functions, implementing improvements to address our compliance recommendations and best practice suggestions.

We continue to work with ACT Policing with the aim of increasing public assurance regarding the use of covert powers and maintenance of the child sex offenders register.