Agency-specific annual reporting requirements
Agency-specific annual reporting requirements
The Ombudsman has statutory responsibility for inspecting the records of law enforcement agencies in relation to the use of certain covert and intrusive powers under ACT legislation.
During the 2015–16 inspections, ACT Policing was cooperative and provided the office with sufficient access to relevant information.
Overall, the inspections found ACT Policing's records relating to controlled operations and its use of surveillance devices to be comprehensive and adequate. ACT Policing accepted the findings and acknowledged its positive working relationship with the office. The results of these inspections are discussed below.
Controlled operations
The Crimes (Controlled Operations) Act 2008 allows ACT Policing to conduct controlled (covert) operations in the ACT. The Ombudsman is required to inspect the records of ACT Policing at least once every 12 months to determine the extent of compliance with the Act.
During 2015–16 the office conducted two inspections of ACT Policing's records associated with all controlled operations authorities that had either expired or were cancelled in 2015.
Inspection criteria
The following inspection criteria were applied to assess compliance:
- Did the agency obtain the proper authority to conduct the controlled operation?
- Were activities relating to a controlled operation covered by an authority?
- Were agency records comprehensive and adequate?
- Was the agency cooperative in facilitating the inspection?
Inspection findings
At the first inspection, ACT Policing was assessed as compliant with the requirements of the Act. However, an authority was identified which should have been presented for inspection during 2014–15. The office had not been made aware of this authority at that time due to an administrative oversight, and instead examined it at this inspection. The office also identified a small number of discrepancies between original records and reports, but these were all minor and administrative in nature.
The results of the second inspection conducted under the Crimes (Controlled Operations) Act 2008 have not yet been finalised and will be reported in the 2016–17 annual report.
Surveillance devices
The Crimes (Surveillance Devices) Act 2010 establishes a framework for the use of surveillance devices by law enforcement officers in the ACT. The Ombudsman may inspect the records of ACT Policing to determine the extent of compliance with the Act.
During 2015–16 the office conducted two inspections which examined ACT Policing's records associated with all warrants that had either expired or were revoked in 2015.
Inspection criteria
The following inspection criteria were applied to assess compliance:
- Did the agency have the proper authority for the use and/or retrieval of the device?
- Were surveillance devices used and/or retrieved in accordance with the authority of warrants?
- Was protected information properly stored, used and disclosed?
- Was protected information properly destroyed and/or retained?
- Were agency records comprehensive and adequate?
- Was the agency cooperative in facilitating the inspection?
Inspection findings
At the first inspection, ACT Policing was assessed as compliant with the requirements of the Act, except in the instances discussed below. The office also noted an issue in relation to ACT Policing's annual reporting under s 38 of the Act.
ACT Policing disclosed four instances of non-compliance with s 10 of the Act, which specifies who may issue a surveillance device warrant. Four warrants were issued by a judge who was not appointed to the ACT Supreme Court. Consequently, these warrants were invalid. ACT Policing acknowledged that this was the result of officers not following set procedures for warrant applications.
ACT Policing also disclosed that surveillance devices were unlawfully deployed under one of the invalid warrants. The office notes the remedial actions taken by ACT Policing when this issue was identified, which included ensuring that the one device still in use was disabled and seeking a new warrant from an eligible judge.
The results of the second inspection conducted under the Crimes (Surveillance Devices) Act 2010 have not been finalised and will be reported on in the 2016–17 annual report.
Assumed identities
The Crimes (Assumed Identities) Act 2009 facilitates investigations and intelligence gathering in relation to criminal activity by providing for the lawful acquisition and use of assumed identities in the ACT. The Ombudsman may inspect records of ACT Policing to determine the extent of compliance with the Act.
To date, no inspections have been conducted under the Act as ACT Policing has advised that it has not applied any of the provisions.
Child Sex Offenders Register
The ACT Child Sex Offenders Register (the register) is established by the Crimes (Child Sex Offenders) Act 2005 (ACT). The register must contain current information relating to the identity and whereabouts of people living in the ACT who have been convicted of sexual offences against children.
The Ombudsman is required to monitor ACT Policing's compliance with Chapter 4 of the Act which specifies how ACT Policing must manage the register, including whether all necessary information is included on the register and whether there are sufficient controls on the use and disclosure of information from the register.
In 2015–16 the office finalised one inspection. ACT Policing was assessed as compliant with Chapter 4, except in one instance, which is discussed below. The office also identified a small number of errors in the register. Following the inspection, ACT Policing advised that it rectified all identified errors.
Chapter 4 requires the Chief Police Officer to ensure that the register is accessed only by people who are authorised by the Chief Police Officer or under a regulation. The instance of non-compliance arose because ACT Policing advised that certain law enforcement officers working in child protection had been granted access to the register, though they were not authorised in the manner required by Chapter 4.
In response, the Chief Police Officer issued an updated instrument of authorisation.
The detailed report on the results of this inspection was provided to ACT Policing and the Minister for Police and Emergency Services in April 2016.
Community engagement and support
The Ombudsman has maintained its engagement with the ACTPS again this year. The office engages with community members on an individual basis as part of the complaint-handling role.
In August 2015 the Ombudsman convened a forum attended by 20 representatives of community and professional peak bodies. Its purpose was to learn about complaints that were not being made and what the barriers were and about experience of service with ACT public service agencies. It was hoped that this would enable the office to get ahead of complaint trends and to work with directorates to continue to improve the system for those who may not be speaking up for themselves.
The key complaint themes noted from the discussions included: concern about issues with access and service as a result of a reliance on website material and centralised contact points; agencies not responding directly to issues raised and inadequate explanation of the basis or reasons for decisions or with an unnecessary reliance on technical jargon; recurring issues leading to a loss of confidence in agencies' commitment to 'continuous improvement' and; that complaining to agencies was at times considered onerous and confusing.
This was challenging information, and when ACTPS complaint-handlers were asked what they thought the community and professional peak bodies would say, they came up with a similar list. The office agreed with the complaint-handlers that it would work with them to develop an ACT-wide complaint standard. This work will take place over the coming year.
In June 2016 the Ombudsman hosted an Indigenous Roundtable in Canberra. This is part of a series of nationwide meetings by the Commonwealth Ombudsman, typically in conjunction with the local state Ombudsman. In Canberra there was the advantage of having both services present in the one office. It was an opportunity to provide information about the role and activities of the Ombudsman and hear from community representatives about their experience of government service. The office will continue to work with a number of the representatives on particular matters raised.
On four occasions Ombudsman staff attended outreach activities during student information days at the various Canberra Institute of Technology campuses across Canberra. These activities provided briefings to student groups on the role of the Ombudsman as well as an opportunity for students to talk to staff about any issues or concerns.
Justice and community safety
Freedom of information
The Ombudsman receives and investigates complaints about the handling of applications made under the Freedom of Information Act 1989 (FOI Act). In 2015–16 the Ombudsman finalised 29 approaches made about requests for information made to directorates. Twelve approaches sought guidance on how to make a request for information to a directorate and seven related to the merits of a decision and were referred for review by the agency or to the ACT Civil and Administrative Tribunal (ACAT). Four complaints were investigated and the remaining six were miscellaneous matters that were withdrawn or closed.
The Ombudsman received 12 requests for information from seven parties under section 14 of the FOI Act. These requests resulted in the following actions: eight led to the release of information with minor exemptions, two were withdrawn and two were refused access as there was no material held. Where there was a release of information, six were completed in less than 31 days and two were completed in not more than 45 days. No cases went to review by ACAT and no fees were charged in relation to these applications.
Public sector standards and workforce profile
Public Interest Disclosure scheme (PID)
The Ombudsman is a 'disclosure officer' under the Public Interest Disclosure Act 2012 and may investigate disclosable conduct of the Head of Service. The Ombudsman can also take complaints and review the handling of a PID.
Two disclosures were made during the reporting period and referred to the head of the respective directorate for investigation. Four parties made six complaints about the handling of a disclosure; of which, two investigations were undertaken.
Territory records
The Ombudsman has a records-management program that was approved by the Director of Territory Records. The office operates in line with the Territory Records (Records Disposal Schedule—Ombudsman Complaint Management Records) Approval 2011 (No 1) (NI 2011–93).