The Ombudsman's office and the Australian Federal Police (AFP) share responsibility for investigating complaints about the AFP's ACT Policing. AFP members provide policing services for the ACT in areas such as enforcing traffic law, maintaining peace and order, undertaking crime-prevention activities, responding to critical incidents, and investigating serious crime.
AFP members, including those assigned to ACT Policing, are subject to the provisions of the Complaints (Australian Federal Police) Act 1981 (Cth) (Complaints Act). Approximately 49% of all complaints we receive about the AFP relate to ACT Policing. The remaining complaints relate to the AFP's corporate, national and international roles and are reported in the Commonwealth Ombudsman Annual Report 2005–06.
Because of the level of public interaction involved in community policing work, it is natural that there is a steady stream of complaints are made about ACT Policing.
The AFP's Professional Standards team investigates most complaints about AFP members, and formally investigates serious complaints about police actions with involvement from Ombudsman staff. We receive briefings on the progress of investigations, and work with AFP investigators to ensure appropriate management of systemic issues and contact with complainants. We review all complaint reports and are generally satisfied that complaints are handled in a comprehensive and robust manner. The Ombudsman conducts independent inquiries and investigations, if appropriate.
For some investigations conducted during 2005–06, we requested the AFP to reconsider certain aspects of, or responses to, complaints. In some instances, we identified broader issues not previously considered by the AFP in respect of people in custody. The AFP's responses to our requests were professional and helpful, which illustrates the mature relationship between this office and the AFP.
The Ombudsman will generally conduct an investigation when AFP practice and procedure is the central element of the complaint; when it is not appropriate for the AFP's internal investigation area to investigate the complaint; or when the investigation is instigated under the Ombudsman's own initiative powers.
An overview of the Ombudsman's complaints handling is provided below.
There was a 20% decrease in the number of complaints received about ACT Policing (353, compared to 443 in 2004–05) (Figure 3). This continues a general decrease in the number of complaints made about ACT Policing since 1998–99. It is likely that the marked decrease in complaints in 2005–06 results from ACT Policing's continuing emphasis on customer-service issues.
Complaints can contain a number of issues, each requiring separate investigation and possibly resulting in different outcomes.
FIGURE 3 Complaints received about ACT Policing, 2001–02 to 2005–06
We finalised 419 complaints and 486 complaint issues in 2005–06. Of the 486 complaint issues finalised, a large number of the issues (305 or 63%) were referred to the AFP's workplace-resolution process for conciliation. A further 30 issues were investigated by the AFP and reviewed by the Ombudsman's office; we investigated 74 issues after receiving the AFP's evaluation or conciliation report and decided not to investigate the remaining 77 on receipt of the complaint.
Of the 30 issues investigated by the AFP and reviewed by the Ombudsman's office (44 in 2004–05): one was substantiated; six were incapable of determination; two were conciliated; and 17 were unsubstantiated. The Ombudsman's office decided not to review four of the 30 issues for reasons such as the ability of the complainant to raise the matter with a court or a tribunal, jurisdictional issues, or other circumstances.
In reviewing AFP investigation reports, we found most entailed a comprehensive investigation and analysis, resulting in reasonable and appropriate recommendations.
On some occasions, a report was returned to the AFP for further action—such as a quality assurance review of the report, further clarification of a particular issue, or consideration of a broader issue. We also worked with the AFP to ensure that, where appropriate, the investigation outcome considered organisational issues and a response from the AFP directly to the complainant. Overall, we were satisfied that investigation reports represented robust responses to complaint issues.
Time taken to finalise complaints
For complaints about ACT Policing, 73% were finalised within three months of receipt (compared to 53% in 2004–05) and 90% were finalised within six months (compared to 85% in 2004–05). The remaining complaints, which extended beyond six months, were characterised by the size and complexity of the investigations.
We were able to reduce the backlog of cases, resulting in a marked decrease in the proportion of complaints taking three to six months to complete (18%, compared to 33% in 2004—05). The proportion of cases taking more than six months to finalise decreased by 7%.
FIGURE 4 Time taken to finalise complaints about ACT Policing, 2005–06
The majority of complaints about the AFP's ACT Policing role are handled through workplace resolution. Most complaints are of a relatively minor nature and concern the alleged conduct of police, such as incivility or rudeness. The Complaints Act allows the AFP to conciliate these complaints directly with the complainant and senior operational staff through its workplace resolution process.
Many complaints are effectively resolved with the complainant receiving an explanation of police powers and reason for priorities, or acknowledgment of a minor mistake by a member. When a complaint is finalised through the workplace resolution process, the AFP provides a report to the Ombudsman for review, explaining how it managed or investigated the complaint.
The workplace resolution process also allows members of the public to provide feedback about their experience of interaction with police; provides AFP members with the opportunity to acknowledge and learn from minor mistakes; and facilitates a more timely and flexible response to complaint issues than formal investigation.
Conciliation remained an important aspect of dealing with customer service and minor complaints, with 305 (63%) being managed through the workplace resolution process, as shown in Table 2.
A significant proportion of complaints concerning ACT Policing were assessed as suitable for conciliation using the workplace resolution process. See Table A3 in Appendix 2.
TABLE 2 ACT Policing issues raised in complaints to the Ombudsman
managed and resolved by conciliation, 2001–02 to 2005–06
A major challenge for the Law Enforcement Team has been the adaptation of the office's new complaints management system to meet the needs of recording and managing complaints about the AFP. With the passing of the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006 in Parliament on 23 June 2006, further work is underway to code a new categorisation model in the complaints management system and adapt work practices to meet the changing role of the Ombudsman in police complaints handling. Detailed information on the Ombudsman's new role is set out in Appendix 1.
With the added benefit of a more intuitive complaints management system, it is expected the system will assist us in recording and tracking matters where we have made recommendations to the AFP, and tracking their responses to those recommendations.
The main themes identified about ACT Policing include:
- Use of excessive force
- Detention of minors
- Response priority model
- Impersonating an officer
- Review of communication processes
- Critical incidents
- Exercise of responsibilities under the Intoxicated People Act
- Review of management of property and exhibits
We are monitoring the AFP's handling of several complaints from people within the ACT community with physical and mental disabilities about the use of excessive force.
One of these complaints highlighted the need for community service personnel, including police, to give particular consideration when dealing with a person with special needs as shown in the Use of force case study.
Mr E complained that AFP members failed to identify themselves to him, treated him with undue and excessive force, and detained him in handcuffs in the back of a caged vehicle.
Mr E has multiple impairments, including hearing and sight loss, but is fully independent with the aid of a companion guide dog. He is a regular visitor at his local club and finds his own way home on foot or by taxi.
On the occasion in question, a new staff member, not familiar with Mr E, felt it appropriate to call the police rather than a taxi in view of Mr E's state of intoxication.
AFP members ultimately detained Mr E under the Intoxicated People (Care and Protection) Act 1994 (ACT) (Intoxicated People Act) after he refused to get into the police vehicle. Mr E argued that this was excessive and that the AFP members had not identified themselves as police. Mr E claimed that his hearing aid was damaged and that he and his guide dog were traumatised.
The AFP investigation found Mr E's complaint to be unsubstantiated. The AFP acknowledged the difficulty the officers had in dealing with a person with hearing and sight impairments, and advised that the decision to take Mr E into custody was made in the belief that he was in danger of injury if left to find his own way home.
On reviewing the AFP's investigation report, we identified a number of concerns, including the lack of preparedness of AFP members in dealing with a person with disabilities and the way in which they are applying the Intoxicated People Act.
As part of our role, we have maintained communication with Mr E, keeping him and his family informed of the progress of the investigation and its outcome. Mr E is considering the options available to him.
The matter has not been finally settled. It highlights the complex issues that can arise in determining the appropriate level of force in any particular case. The core issue always in a case of this kind is whether AFP members acted reasonably in dealing with a person with impairment, whether it be a disability or mental or other illness.
Detention of minors
In last year's report, we described our concerns about the management of young people in custody in the City Watch House and the issue of minors being detained without notification of their parents. A few issues arose again in 2005–06 and we are considering whether an own motion investigation into this issue is warranted.
We received several complaints from young people who were detained by police. While the issues raised by these complaints varied, the failure to notify the parents of the young people was a constant theme, as the Advising parent case study illustrates.
Mr F was 17 years old when he was arrested in error during a 'drug sting' in the city. Mr F was taken to the ground during his arrest, handcuffed and required to sit in full view of passers-by until the arresting officers could obtain entry to the ACT Policing Beat Office. Mr F was detained for two hours, questioned inside the ACT Policing Beat Office, and subsequently released without charge.
Mr F complained about the manner in which AFP members treated him. He alleged that the arresting officers did not ask him if he wanted a parent or guardian present and that he was questioned without a parent or guardian present.
The AFP advised our office that it had successfully conciliated and resolved Mr F's complaint. As part of our review of the AFP's conciliation report, we contacted Mr F who indicated the matter had not been conciliated to his satisfaction and he had not been provided with an explanation as to whether the AFP had complied with procedures under the Children and Young People Act 1999 (ACT) (Young People Act).
In our report to the AFP, we concluded that:
- there was a failure of AFP operational members to understand and meet the requirements of the Young People Act when dealing with children or young people
- the AFP may wish to consider whether the individual members involved in the arrest and detention of Mr F should receive training or re-training on the requirements of the Young People Act
- the AFP may wish to consider reviewing its operational guidelines to ensure that a high priority is given to ensuring compliance with the requirements of the Young People Act.
The AFP considered our report and determined that the conciliation addressed some of Mr F's complaint issues, but did not adequately address the alleged non-compliance with the Young People Act and the ACT Policing Guidelines. The AFP undertook to further investigate these aspects of Mr F's complaint. We are currently awaiting the results of this further investigation.
The AFP also advised that our review highlighted a need for the AFP to refine its conciliation process. The process has been amended to include more rigorous quality assurance of conciliation reports to ensure that all complaint issues have been identified and dealt with appropriately.
In response to our investigation of a complaint included as a case study in last year's annual report, the AFP reviewed its procedures for the City Watch House in January 2006. The review resulted in a new 'Reception and lodgement of prisoner' form. This new procedure ensures that the first question asked of a person in custody is their age and, if they are under 18 years of age, whether their parent or guardian has been notified of their arrest. While this provides a more systematic approach to notifying parents and guardians, the AFP believes there will be occasions when a young person is either too intoxicated or too aggressive to be asked these questions on their arrival at the City Watch House.
Response priority model
Some complaints have been received about delays in police attendance after a call, or a complete failure to attend. Because of resourcing constraints, and in accordance with standard practice and procedure, the AFP has adopted a response model that provides for any call received from the public for assistance to be given a priority rating.
Under the response priority model, the AFP has determined that police can decide not to attend certain categories of matters. Where a matter is of an urgent or serious nature, police will give high priority to attendance. Where a matter is considered less serious and there is a legislative requirement for reporting, it is deemed to be suitable for recording purposes only and police may choose not to attend. As illustrated in the Attending an accident case study, this choice can apply to a minor accident where there has not been any injury to a person.
In another complaint, the complainant was dissatisfied with the time frame in which the AFP responded to their call for assistance, as illustrated in the Unresolved issue case study.
Mrs F wrote to the Ombudsman's office to complain about the AFP refusing to investigate an accident in a car park. Two witnesses noted the registration of the car that had been reversed into Mrs F's car.
Mrs F reported the accident to the AFP, who advised that they would not attend the accident scene as no-one had been injured and the vehicle was drivable. Mrs F's concerns about the AFP's refusal to respond stemmed from her insurance company requiring her to pay a $500 excess, despite her no-fault policy, because she could not provide the personal details of the driver at fault.
We considered the AFP's response priority model and decided the AFP's refusal to respond to the accident was not unreasonable. It appeared that Mrs F's difficulty was with her insurance company rather than the AFP, as she had provided sufficient information for the insurance company to pursue a claim against the responsible driver.
We suggested that Mrs F pursue the matter with her insurance company and if she was not satisfied with its response she could consider contacting the Insurance Ombudsman Service.
Mrs G is elderly, lives alone and claims to have had difficulties for some time with young people in her neighbourhood. She claimed that from time to time young people threw eggs at her house or knocked on her door and ran away. She stated that she found this behaviour distressing and she was scared to leave her home.
After each such incident, Mrs G made a complaint to the AFP. As there was no imminent threat to life, the AFP responded in accordance with its response priority model. Unfortunately, this was often long after the offenders had left and as a result there was little that the AFP could do to identify or deal with the youths. On at least one occasion, the AFP failed to respond at all.
Mrs G sometimes calls our office, frustrated that the AFP does not stop the harassment. In these and similar circumstances, we explain that we can only consider the conduct of the AFP members who respond and whether the response was in accordance with the AFP's response priority model. As neither AFP members nor the Ombudsman's office can change the behaviour of Mrs G's neighbours, we have suggested that she may wish to consider using the services of a mediator or a dispute resolution service or contact Housing and Community Services ACT to complain about nearby tenants.
Impersonating an officer
Several complaints during the year stemmed from individuals impersonating an AFP member, which is a criminal offence. The complaints varied from the attempted use of police powers by the impersonator, attempting to influence witness statements, gaining information unlawfully, and attempting to receive preferential treatment.
Investigation into these complaints revealed that AFP badges were easily available from the AFP Association office to members of the AFP, including AFP Protective Service members. It seems that the insignia have been used as proof of identity as an AFP member by people not entitled to make such a claim. The AFP subsequently implemented a process of checking uniforms and removing the items from sale, preventing the distribution of the misleading badges.
Since this measure was introduced, no complaints about the impersonation of an AFP member have been received.
Review of communication processes
A woman complained to the AFP that her vacant house scheduled for demolition was used without her knowledge or consent as a training venue for the AFP Specialist Response and Security (SRS) Team.
Normal practice was for the demolition company to notify the AFP SRS Team when a suitable property became available for SRS training activities. The AFP previously relied upon the demolition company informing the property owners prior to an exercise taking place. In this instance, neither the demolition company nor the AFP advised the owners before or after the event, resulting in concern and distress.
The outcome of the complaint was a review of communications and processes for obtaining authorisation before using training venues that have been scheduled for demolition. The AFP SRS Team will now contact building owners in person and seek prior written authority from both the owners and the demolition company, setting out the extent of permissible damage.
The complainant advised the Ombudsman's office that she is satisfied with the outcome of her complaint and the knowledge that future communication arrangements will ensure that property owners will be included in the plans made between the AFP and the demolition contractors.
The AFP notifies the Ombudsman of all critical incidents involving the actions of AFP officers. Critical incidents are incidents in which a fatality or significant injury has occurred or where the AFP has been required to respond to an incident on a large scale, as might occur during a public demonstration. During 2005–06, two such incidents were reported to the Ombudsman about AFP ACT Policing matters.
On 30 July 2005, a vehicle being pursued by an AFP vehicle in Canberra struck a pedestrian. The victim, Ms Clea Rose, was in a critical condition and later died.
It is generally not our policy to become actively involved in the investigation of critical incidents. In this case, the Ombudsman requested regular updates on the investigation due to the seriousness of the incident and community concern about police pursuits.
The regular updates allowed our office to monitor the police investigation and to clarify issues as they arose. The AFP also provided a copy of the final report of its internal investigation for our comment. We were generally satisfied with the quality of the investigation, but felt that further consideration should be given to certain aspects of the report, particularly in relation to the police pursuit. The AFP agreed to address these issues in a subsequent report.
Further involvement by this office in the AFP's investigation was discontinued after the matter was referred to the Coroner. At the end of June 2006, a decision was yet to be made by the Coroner on whether an inquest would be held. The Ombudsman supported the review of this matter in a public forum, where all interested parties would have an opportunity to make submissions.
The AFP notified the Ombudsman about the second incident in May 2006, which involved an intoxicated person with disabilities who was taken into custody under the Intoxicated People (Care and Protection) Act 1994 (ACT) (Intoxicated People Act). The person sustained a broken collarbone during the intake process at the City Watch House. This matter is still under investigation and when completed, a final report will be forwarded to the Ombudsman.
Exercise of responsibilities under the Intoxicated People Act
The Ombudsman is considering whether to conduct a review of the exercise of responsibilities by ACT Policing under the Intoxicated People Act.
The Ombudsman has conducted two previous own motion investigations into the management of intoxicated people by ACT Policing under the Act. The first investigation report, released in December 1998, focused on the need for police to adopt practices and procedures commensurate with the 'care and protection' elements of the legislation. The second investigation report, released in 2001, aimed to determine the extent to which the AFP had implemented the recommendations of the 1998 investigation and how effective the new practices and procedures had been.
At the time of the 2001 report, there was no sobering-up shelter operating in the ACT. A shelter has since been opened at Ainslie Village, but the availability of the shelter in itself raises new issues. The 2001 report found that, in relation to many of the 1998 recommendations, the AFP had adapted their guidelines to reflect the 'care and protection' elements of the legislation. It is an issue in which we will necessarily maintain a continuing interest.
The Ombudsman is considering the conduct of a further own motion investigation in 2006–07 to consider current practices and procedures in relation to a number of systemic issues identified in complaints received involving the processing of intoxicated people since 2001.
Review of management of property and exhibits
The Ombudsman conducted an own motion investigation into the procedures for handling property and exhibits in 1999 following an AFP internal review. The investigation commented on the implementation of internal recommendations and identified areas for further improvement. Consideration included proposed improvement of registry practices and procedures to improve these exhibit recording and management systems.
Following complaints received about the loss of property seized by the AFP, we are considering a review to assess the adequacy of the AFP's current guidelines on handling property and exhibits and how effectively changes resulting from the recommendations of the 1999 own motion investigation have been implemented.