Appendix 1 | Legislative report
The role of the ACT Ombudsman is performed under the Ombudsman Act 1989 (ACT). The Ombudsman also has specific responsibilities under the Freedom of Information Act 1989 (ACT) and the Complaints (Australian Federal Police) Act 1981 (Cth) (Complaints Act), and is authorised to deal with whistleblower complaints under the Public Interest Disclosure Act 1994 (ACT).
In 2004–05, we reported that a review of the Ombudsman Act 1976 (Cth) was being undertaken, with a view to putting proposals to government for the enactment of a new Act. It was noted that the ACT Government would be consulted in the course of this review.
The Ombudsman's review of the Ombudsman Act (Cth) was submitted to the Prime Minister early in 2006. The review has made a number of suggestions for amendment to the Act to make complaint investigation processes simpler and more efficient. We expect a response from the Prime Minister in early 2006–07 and anticipate that his response will form the basis for any amendments. We will take up with the ACT Government any changes that may be needed to ensure consistency and that the lessons of the review can be applied to the Ombudsman Act (ACT).
Complaints (Australian Federal Police) Act 1981 (Cth)
Members of the Australian Federal Police (AFP) provide policing services for the ACT under an agreement between the Commonwealth and ACT governments. Members of the AFP assigned to the AFP's ACT region are engaged in community policing duties under the ACT Chief Police Officer, who is also an AFP Deputy Commissioner. Under the Complaints Act, responsibility for investigating complaints is shared between the AFP and the Ombudsman's office.
In 2006, the Australian Parliament enacted major reforms to the AFP complaints-handling system, which would also reform the Ombudsman's current role in overseeing complaints about the alleged conduct of AFP members. These reforms are contained in the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006, which passed through Parliament on 23 June 2006 and is awaiting proclamation.
The proposals contained in the Act are based on the findings of a review of AFP Professional Standards conducted by Justice William Fisher AO, QC in 2003 (the Fisher Review). The Fisher Review recommended that the AFP adopt a managerial model, or administrative approach, in dealing with professional standards issues, with a greater emphasis on performance management and changing poor behaviour.
The Ombudsman was consulted on the reforms and supports the introduction of the new complaints-handling model contained in the Act, which will streamline the current system.
At present, the Complaints Act requires all complaints from members of the public to be dealt with jointly by the AFP and the Commonwealth Ombudsman. This has resulted in disproportionate resources being allocated to minor complaints and consequent delays in the resolution of more serious matters.
The new model will remove the requirement for joint handling of all complaints. AFP line management will deal with minor matters, providing a faster and more efficient method of resolving these issues. More serious matters will continue to be notified to the Ombudsman's office, with primary responsibility for resolving these matters remaining with the AFP. The categorisation of complaints into minor or serious matters will be agreed by the AFP Commissioner and the Ombudsman and set out in a legislative instrument.
The Act designates the Ombudsman as the Law Enforcement Ombudsman and in that role he will oversee complaints handling and conduct issues in the AFP as well as the investigation of more serious conduct issues.
The Ombudsman will continue to receive notification of all serious complaints received by the AFP, allowing us to decide whether to become further involved in the resolution of a complaint. The new model also requires the Ombudsman to audit the records of all AFP complaints on at least an annual basis. During the first few years of the new system, we will conduct more frequent audits. This new auditing obligation will ensure that the quality of AFP complaints-handling procedures is assessed and reviewed on a regular basis.
It is anticipated that the flexibility of the new system will allow the Ombudsman's office to increase its focus on serious complaints and allow more time to undertake own motion investigations into systemic issues in the AFP.
Appendix 2 | Statistics
Table A1—Approaches and complaints received and finalised about ACT Government agencies, 2005–06, Ombudsman Act 1989 (ACT) (including freedom of information).
Table A2—ACT Policing complaint issues finalised, 2005–06, Complaints (Australian Federal Police) Act
Table A3—ACT Policing method of handling complaint issues finalised, 2005–06, Complaints (Australian Federal Police) Act 1981 (Cth).
Explanations of terms used in Appendix 2 tables
Advised to pursue elsewhere—complainant advised to pursue complaint directly with agency, court or tribunal, industry or subject specialist, member of parliament or minister.
AFP investigation—AFP investigation of complaints against AFP members and review by the Ombudsman.
AFP workplace resolution—complaints managed by the AFP in the workplace and reviewed by the Ombudsman
Approach/complaint not pursued—withdrawn by complainant, or written complaint requested but not received
Approaches/complaints finalised—approaches/ complaints finalised in 2005–06, including some complaints carried over from previous years
Approaches/complaints received— approaches/complaints received in 2005–06.
Category 1 approaches—resolved without investigation, outcomes include decisions not to investigate and referrals to appropriate agency or authority
Category 2 approaches—approaches that cannot be resolved at category 1 and require further internal inquiries/research or more information from the complainant, resolved without contacting the agency
Category 3 approaches—investigation conducted and agency contacted
Category 4 approaches—further investigation conducted, as the complaint/approach was not able to be resolved in category 3
Conciliated—complaint conciliated through the AFP's workplace-resolution process and reviewed by the Ombudsman
Incapable of determination—sufficient evidence was not available to support a clear conclusion
Issues—approaches/complaints can contain a number of issues, each requiring a separate decision as to whether to investigate; each issue may result in a separate outcome
Ombudsman decision not to investigate—the Ombudsman may decide not to investigate where a person has not tried to resolve their problem directly with the relevant agency or there is a more appropriate avenue of review available
Ombudsman investigation—investigation, following consideration by the AFP, asking more questions and reviewing the agency's files, policies and procedures
Ombudsman investigation not warranted— investigation of the approach/complaint judged to be unnecessary for one of the following reasons: over 12 months old, frivolous or not in good faith, insufficient interest, related to commercial activity, or 'not warranted' having regard to all the circumstances; this includes approaches/complaints that were considered by the AFP and reviewed by the Ombudsman where further investigation was not warranted
Out of jurisdiction—complaint not within the Ombudsman's legal powers
Remedies—complaints can contain a number of issues, each requiring separate investigation and possibly resulting in a number of different remedies
Special investigation—investigations conducted under section 46 of the Complaints Act may be conducted solely by the Ombudsman or jointly with the AFP
Substantiated—complaint issue was found to be true
Unsubstantiated—there were no grounds for the complaint issue.
Appendix 3 | omissions and reasons for non-compliance
The ACT Ombudsman is neither a public authority nor an administrative unit within the meaning of the Annual Reports (Government Agencies) Act 2004 (ACT). Consequently, the ACT Ombudsman is unable to report against some aspects of the ACT Chief Minister's Annual Report Directions 2005–2006.
Table A4—omissions and reasons for non-compliance
Reporting on these issues and whole-of-government issues is provided for the office as a whole through the Commonwealth Ombudsman Annual Report 2005–06.
Australian Capital Territory
Australian Capital Territory electricity, water and gas utility
Australian Capital Territory Planning and Land Authority
Australian Federal Police
AFP SRS Team
Australian Federal Police Specialist Response and Security Team
Belconnen Remand Centre
closed circuit television
Complaints (Australian Federal Police) Complaints Act 1981 (Cth)
Department of Urban Services
Freedom of Information
Freedom of Information Act 1989 (ACT)
Housing and Community Services
Intoxicated People (Care and Protection) Act 1994 (ACT)
Land Development Agency
Member, Legislative Assembly
Memorandum of Understanding
Ombudsman Act 1989 (ACT)
Ombudsman Act (Cth)
Ombudsman Act 1976 (Cth)
Public Interest Disclosure
Public Interest Disclosure Act 1994 (ACT)
Young People Act
Children and Young People Act 1999 (ACT)