Part 4: Annual report requirements for specific reporting entities

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

The Office has not conducted an inspection of the ACIC or the ACT Integrity Commission under the Crimes (Surveillance Devices) Act 2010 (ACT) (the Surveillance Devices Act) or the Crimes (Controlled Operations) Act 2008 (ACT) (the Controlled Operations Act) as the agencies have advised our Office these powers have not been used. The Office has also not conducted an inspection of any law enforcement agencies under the Crimes (Assumed Identities) Act 2009 (ACT) (the Assumed Identities Act) for the same reason.

The Office’s 2020–21 Annual Report did not include the results from our inspections of ACT Policing conducted in March 2021, covering records for the period 1 July 2020 to 31 December 2020, under the Surveillance Devices Act and the Controlled Operations Act. The report about this inspection was provided to ACT Policing in July 2021, and the results of these inspections have been included in this report.

As outlined further below, our Office made a recommendation following our March 2021 inspections of the controlled operations and surveillance devices regimes, that ACT Policing revise its inspection preparation practices and the administrative processes of its compliance area, to ensure it can demonstrate that it has considered and taken appropriate action to address the findings arising from previous inspections. We were particularly concerned that ACT Policing was unable to demonstrate the action it previously advised our Office that it would take or had taken, in addition to concern about findings where ACT Policing has not taken sufficient action to remediate the issue across several inspection periods.

During the April 2022 inspections, ACT Policing demonstrated considerable improvement in addressing issues from our previous inspections. ACT Policing had taken appropriate action to identify, disclose and resolve several compliance issues. These improvements indicate to our Office that ACT Policing has a maturing compliance culture in relation to the use of these powers.

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. Participants may engage in a variety of types of conduct, so long as that conduct is directly authorised or appropriately related to authorised conduct. Examples of conduct include transporting illicit goods, interfering with a consignment or entering false data into a system.

The Controlled Operations Act allows ACT Policing, the ACIC and the ACT Integrity Commission to conduct controlled operations in the ACT and in other participating jurisdictions. The Office is required to inspect a law enforcement agency’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 March 2021 controlled operations inspection raised concerns about ACT Policing’s administrative practices and approach to our inspection findings. As outlined in Table 7, below, we made 10 suggestions and 4 better practice suggestions on ACT Policing’s use of powers under the Controlled Operations Act, in addition to our more general recommendation discussed above, on ACT Policing’s administrative and inspection preparation powers.

In the April 2022 controlled operations inspection, we were satisfied ACT Policing took appropriate action to address our previous recommendation and suggestions. As outlined in Table 7, below, as a result of our inspection we made 2 better practice suggestions to ACT Policing. We will monitor these issues at future inspections.

Table 7: Overview of controlled operation inspections

When were inspections conducted?	When did the records date from?	Recommendation	Suggestions	Better practice suggestions
March 2021 (2020–21)	1 July 2020 to 31 December 2020	We made one recommendation for both the controlled operation and surveillance devices inspections: ACT Policing should revise its inspection preparation practices, and the administrative processes of its compliance area, to ensure it can demonstrate that it has considered and taken appropriate action to address the findings arising from previous inspections.	We made 10 suggestions, including that ACT Policing: Seek legal advice in relation to identified compliance issues, including those identified in the previous 2019–20 report. Amend templates to ensure law enforcement participants and undercover controllers included in any authorities refer to their ability to give instructions to participants, and ensure that records demonstrate that action taken by participants was under the direction of a law enforcement officer. Review quality assurance processes to ensure the information provided in applications is accurately reflected in the corresponding authorities. Ensure that investigative records maintained are accurate, complete and appropriately detail whether controlled conduct occurred and if it was done under the requirements of the authority.	We made 4 better practice suggestions in relation to ACT Policing’s Better Practice Guide, to update templates and ensure accuracy of guidance provided.
April 2022 (2021–22)	1 January 2021 to 31 December 2021	Nil	Nil	We made 2 better practice suggestions, on: ACT Policing introducing a quality control check to ensure consistency between the conduct specified on controlled operation applications and authorities; and ACT Policing implementing a quality assurance check to ensure accuracy of records and reporting.

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 the records of ACT Policing, the ACIC and the ACT Integrity Commission to assess the extent of their compliance with the Surveillance Devices Act.

Inspection findings

The March 2021 surveillance devices inspection raised concerns about ACT Policing’s administrative practices and approach to our inspection findings. As outlined in Table 8, below, we made 5 suggestions and 3 better practice suggestions on ACT Policing’s use of powers under the Surveillance Devices Act, in addition to our more general recommendation discussed above, on ACT Policing’s administrative and inspection preparation powers.

In the April 2022 surveillance devices inspection, we were satisfied ACT Policing took appropriate action to address our previous recommendation and suggestions. As outlined in Table 8, below, as a result of this inspection, we made 2 suggestions and 1 better practice suggestion. We will monitor these issues at future inspections.

Table 8:  Overview of surveillance device inspections

When were inspections conducted?	When did the records date from?	Recommendation	Suggestions	Better Practice Suggestion
March 2021 (2020–21)	1 July 2020 to 31 December 2020	We made one recommendation for both the controlled operation and surveillance devices inspections: ACT Policing should revise its inspection preparation practices, and the administrative processes of its compliance area, to ensure it can demonstrate that it has considered and taken appropriate action to address the findings arising from previous inspections.	We made 5 suggestions, that ACT Policing: Provide an addendum to its annual report to the Minister with corrected figures. 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 individual 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 3 better practice suggestions, relating to the level of detail included in ACT Policing’s warrant applications and affidavits, and to keep sufficient records to demonstrate compliance.
April 2022 (2021–22)	1 January 2021 to 31 December 2021	Nil	We made 2 suggestions, that ACT Policing: Review all surveillance device holdings to determine if any product should be destroyed in accordance with the Surveillance Devices Act. Develop a process and mechanism for recording where surveillance device product has been disseminated and stored within the agency.	We made 1 better practice suggestion, that ACT Police identify on a periodic basis whether surveillance device product should be destroyed in accordance with the Surveillance Devices Act.

Assumed identities

The Assumed Identities Act facilitates investigations and intelligence-gathering in relation to criminal activity by providing for the lawful acquisition and use of assumed identities in the ACT. Our Office may inspect the records of ACT Policing, the ACIC, and the ACT Integrity Commission to assess the extent of their compliance with the Assumed Identities Act.

To date, we have not conducted any inspections under the Assumed Identities Act as agencies have advised these powers have not been used.

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 CCSO Act requires the Office to monitor ACT Policing’s compliance with Chapter 4 and Part 3.11 of the CCSO Act. During 2021–22, our Office finalised 1 inspection of the register that was conducted during 2020–21. As a result of this inspection, we were satisfied that ACT Policing’s management of the register largely complies with the requirements of the CCSO Act. We made 3 suggestions and 1 better practice suggestion to ACT Policing to ensure compliance in certain areas (see Table 9 below).

During our 2021–22 inspection of the register, we assessed ACT Policing as compliant with Chapter 4 of the CCSO Act and made no recommendations or suggestions to ACT Policing. We were satisfied that
ACT Policing had taken appropriate action to address previous suggestions.

To date, we have not made an assessment regarding Part 3.11 of the CCSO Act because ACT Policing advised it has not executed any warrant under these provisions.

Table 9:  Overview of Child Sex Offenders Register inspections

When were inspections conducted?	When did the records date from?	Recommendation	Suggestions	Better Practice Suggestion
August 2020 (2020–21)	17 May 2019 to 20 August 2020	Nil	We made 3 suggestions, that ACT Policing: ·Amend its practice and guidance to ensure details of all class 1 and 2 charges of which a registrable offender is found guilty or are pending are entered. · Ensure the register records permanent travel in instances where a registrable offender leaves the ACT. · Undertake annual reviews of access in the National Child Offender System to ensure that only authorised persons have access to the Register.	We made 1 better practice suggestion, that ACT Policing should implement measures with all relevant bodies to ensure it is made aware of the sentencing, or release from government custody, of a registrable offender.
December 2021 (2021–22)	20 August 2020 to 24 November 2021	Nil	Nil	Nil

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^[1] 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 dealt with under Divisions 3 and 4 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.

[1] The Commonwealth Ombudsman is also the ACT Ombudsman.