Part 4: Annual report requirements for specific reporting entities

The Office oversees ACT Policing’s use of certain covert and intrusive powers under ACT legislation, as well as monitoring its compliance with Chapter 4 and Part 3.11 of the Crimes (Child Sex Offenders) Act 2005 (the CCSO Act).

From our inspections finalised in 2020–21, we made several better practice suggestions to ACT Policing to improve compliance with the Crimes (Surveillance Devices) Act 2010 (the Surveillance Devices Act), and the Crimes (Controlled Operations) Act 2008 (the Controlled Operations Act).

Overall, we saw improvements during our inspections in 2020–21. However, in some instances, ACT Policing was unable to demonstrate sufficient remedial action to address the issues we identified in previous inspections. We continued to monitor this in our most recent inspections of ACT Policing during the 2020–21 reporting period. The results of this inspection will be reported in our 2021–22 Annual Report.

Controlled Operations

A controlled operation is a covert operation to obtain evidence that may lead to the prosecution of a person for a relevant offence or be used in an integrity investigation. A controlled operation provides protection from civil and criminal liability for law enforcement officers and civilians who engage in certain conduct that would otherwise be unlawful or lead to civil liability.

The Controlled Operations Act allows ACT Policing to conduct controlled operations in the ACT and in other participating jurisdictions. The Office is required to inspect ACT Policing’s records regarding controlled operations at least once every 12 months to assess the extent of its compliance with the Controlled Operations Act.

Inspection findings

The Office’s 2019–20 Annual Report did not include the results from our controlled operation inspections conducted in 2019–20. The report about these inspections was finalised and provided to ACT Policing in July 2020 and is discussed below.

Table 7: Overview of controlled operation inspections

When were inspections conducted?	When did the records date from?	Suggestions	Better practice suggestions
2019–20	1 January to 31 December 2019	We made 5 suggestions, including that ACT Policing: Clearly and separately define authorised conduct for law enforcement and civilian participants in controlled operation authorities. Ensure all relevant records are kept as required by the legislation (for example, applications for controlled operation authorities and authorities that were granted).	We made one better practice suggestion that ACT Policing update internal guidance to highlight the importance of comprehensive and contemporaneous action sheets being completed during a controlled operation.
2020–21 (inspection 1)	1 January to 30 June 2020	We made 6 suggestions, including that ACT Policing: Ensure law enforcement participants are specifically authorised to instruct civilian participants during a controlled operation. ACT Policing advised it amended its templates to address this issue and it would seek advice on the specific instances identified. Ensure contemporaneous action sheets document conduct engaged in during a controlled operation. ACT Policing advised it amended its internal guidance to address this requirement. Review its quality assurance processes to ensure the information provided in applications accurately reflects the relevant authority.	We made one better practice suggestion that ACT Policing establish a standard for a reasonable timeframe within which to cancel controlled operation authorities.
2020–21 (inspection 2)	1 July to 31 December 2020	The report about this inspection was provided to ACT Policing in July 2021. These findings will be reported in the Office’s 2021–22 Annual Report.

Surveillance Devices

The Surveillance Devices Act provides a framework for law enforcement officers to use surveillance devices in the ACT. Surveillance device means a data device, a listening device, an optical device, a tracking device, or a device that is a combination of these devices.

The Office may inspect ACT Policing’s records to assess the extent of its compliance with the Surveillance Devices Act.

The Office’s 2019–20 annual report did not include the results from our inspections conducted in 2019–20 for surveillance device warrants, because the report about these inspections was finalised and provided to ACT Policing in July 2020. The findings from these inspections are discussed further below.

In 2020–21, we conducted 2 inspections of ACT Policing’s records for all surveillance device warrants that had expired or were revoked from 1 January 2020 to 31 December 2020. The report about our inspection of records from 1 January 2020 to 30 June 2020, was finalised and provided to ACT Policing in October 2020, and is discussed below. The report from our inspection of records from 1 July 2020 to 31 December 2020 was provided to ACT Policing in July 2021, and the findings will be reported in the Office’s 2021–22 annual report.

Inspection findings

During our previous inspection of records from 1 July 2018 to 31 December 2018, we could not be satisfied that ACT Policing had taken appropriate action to address our previous inspection findings and suggested ACT Policing revise its inspection practices. We saw an improvement in ACT Policing’s engagement with the Office during our inspections from 1 January 2019 to 30 June 2020.

Table 8:  Overview of surveillance device inspections

When were inspections conducted?	When did the records date from?	Suggestions	Better practice suggestions
2019–20	1 January to 31 December 2019	We made 7 suggestions, including that ACT Policing: Seek advice and consider amending guidance in relation to warrant extensions being endorsed by signing adhesive labels affixed to the original warrant. Take various steps in relation to specific warrants or surveillance activities where we identified compliance issues or risks (for example, seeking legal advice or updating the general register). Amend its reporting to further improve consistency and accuracy.	We made 2 better practice suggestions in relation to ACT Policing’s applications for extension or amendment of surveillance device warrants, including to ensure information about privacy impacts remains current.
2020–21 (inspection 1)	1 January to 30 June 2020	We made 9 suggestions, including that ACT Policing: Require staff to assess the privacy impact of continuing use of the surveillance device(s) in applications for the extension of warrants. Develop and implement procedures to inform the Chief Officer when a surveillance device under warrant is no longer necessary. Take various steps in relation to specific warrants or surveillance activities where we identified compliance issues or risks (for example, amending action sheets and Final Effectiveness Reports to ensure accuracy).	We made 2 better practice suggestions relating to ACT Policing’s warrant applications and affidavits.
2020–21 (inspection 2)	1 July to 31 December 2020	The report about this inspection was provided to ACT Policing in July 2021. These findings will be reported in the Office’s 2021–22 Annual Report.

ACT Policing has updated its internal guidance documents and templates to address concerns raised by the Office. We will continue to monitor these issues at future inspections.

Assumed identities

The Crimes (Assumed Identities) Act 2009 (the Assumed Identities Act) facilitates investigations and intelligence-gathering regarding criminal activity by providing for the lawful acquisition and use of assumed identities in the ACT. Our Office may inspect ACT Policing’s records to assess the extent of compliance with the Assumed Identities Act.

To date, we have not conducted any inspections under the Assumed Identities Act because ACT Policing advised it has not applied any of the provisions.

Child Sex Offenders Register

The ACT Child Sex Offenders Register (the register) is established under the CCSO Act. Chapter 4 of the CCSO Act sets out how ACT Policing must manage the register, including the information that must be recorded on the register. Further, Chapter 4 sets out the controls that must be applied to the use and disclosure of information from the register. Under Part 3.11 of the CCSO Act, ACT Policing may apply for a warrant to enter and search the premises of a registrable offender to verify the offender’s personal details or to determine whether the offender has breached, or is likely to breach, an order prohibiting certain conduct.

The Act requires the Office to monitor ACT Policing’s compliance with Chapter 4 and Part 3.11 of the CCSO Act. In 2020–21, the Office conducted one inspection of the register. The results of this inspection will be reported in the Office’s 2021–22 Annual Report. To date, we have not made an assessment regarding Part 3.11 of the CCSO Act because ACT Policing advised it has not applied any of the provisions.

Review of complaint handling under Part V of the Australian Federal Police Act 1979

Under s 40XA of the Australian Federal Police Act 1979 (Cth) (the AFP Act), the Commonwealth Ombudsman  is required to review the administration of the Australian Federal Police’s (AFP) handling of complaints through inspection of AFP records. This includes reviewing records of the handling of complaints about ACT Policing. Further, under s 40XB of the AFP Act, the Ombudsman may, at any time, inspect the records of AFP conduct and practice issues for the purposes of reviewing the administration of Part V of the AFP Act.

The Ombudsman reports annually to the Federal Parliament on our review of AFP’s activities under Part V of the AFP Act. These reports are available on the Commonwealth Ombudsman’s website.

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²¹The Commonwealth Ombudsman is also the ACT Ombudsman.