Complaints against the Australian Federal Police and National Crime Authority

The Australian Law Reform Commission initially received a reference in March 1995 to inquire into and report on the Complaints (Australian Federal Police) Act 1981 (Cth) and the complaints and disciplinary system of the Australian Federal Police (AFP). In July 1995 the reference was extended to inquire into and report on the complaints and disciplinary system of the National Crime Authority (NCA).

The Complaints (Australian Federal Police) Act 1981 (Cth) (Complaints Act) is broadly based upon recommendations from two previous ALRC reports Complaints against police (ALRC Report 1) published in 1975, and a supplementary report of the same name (ALRC Report 9) published in 1978.

Under the legislation, complaints were generally investigated by the Internal Investigation Division established under the legislation, with the Commonwealth Ombudsman having a role in review of such investigations.

Internal security and audit was established administratively, and also had a role in investigation of AFP conduct. While the Commissioner of Police had a disciplinary role, the legislation also established the Federal Police Disciplinary Tribunal, which had power to make primary findings or hear appeals from findings made or penalties imposed by the Commissioner of Police. Integrity: but not by trust alone (ALRC 82) was the first extensive review of the legislation, which was considered by many to be outdated and ineffective.

At the time of the reference, the NCA had no formal complaints system. Under an administrative arrangement complaints were forwarded immediately to the Chairperson of the NCA, who directed officers to conduct inquiries and compile reports so that the Chairperson could determine appropriate action. There was also no formal disciplinary system except for those NCA staff employed under the Public Service Act 1922 (Cth) and subject to Australian Public Service disciplinary procedures.

Key recommendations

• A new external complaints and anti-corruption authority, to be called the National Integrity and Investigations Commission (NIIC), should be established. This body would have the statutorily defined role of
  • determining the seriousness of a complaint, and the appropriate process for investigation and handling of the complaint;
  • auditing the AFP and NCA’s performance in handling of minor complaints, as well as anti-fraud and anti-corruption plans and measures; and
  • conducting research and developing policy relating to integrity and accountability.
• Complaints against police should be categorised according to seriousness and public interest – these categories would act as guidelines for determining the level of NIIC and AFP or NCA involvement in the investigation and handling of particular complaints.
• Legislation should be introduced to protect and encourage whistleblowers.
• A managerial style disciplinary system, giving the AFP Commissioner and NCA Chairperson primary responsibility for imposing discipline on personnel, should be established, with decisions subject to merits review by the Administrative Appeals Tribunal (AAT).

Implementation

There has been no formal response from the federal government.

Australian Federal Police

In early 1997, a report was completed into allegations made about the AFP by a former officer (the Harrison report). The report was not made public, although the Attorney-General provided details in a press release on 8 May 1997 that the report recommended that the Commonwealth Ombudsman, with enhanced powers, should retain the role of providing external scrutiny of complaints or allegations of police misconduct or corruption.

In November 1997, the Commonwealth Ombudsman released a report on whistleblowing procedures within the AFP entitled Professional reporting and internal witness protection in the Australian Federal Police – a review of practices and procedures. The majority of recommendations were for improved administrative procedures, with greater oversight by the Ombudsman, although there was a recognition of the need for consistent legislation on whistleblowers across the Commonwealth.

In response to the criticism that the AFP complaints and disciplinary processes were largely inflexible, formal and adversarial in character, a review of AFP professional standards was undertaken by Justice William Fisher (the Fisher Review), with a report tabled in the federal parliament in December 2003. Generally, Justice Fisher advocated a move away from the traditional complaints and disciplinary system towards a model of managerial responsibility by adopting a graduated professional standards regime according to the seriousness of the matter and the ability of managers or supervisors to deal with performance issues. The approach mirrored that proposed in the ALRC’s 1996 report. A Working Group was established by the AFP Commissioner to implement the Fisher Review recommendations.

Australian Commission for Law Enforcement Integrity

In June 2004, the Australian Government announced its decision to establish an independent body, with the powers of a Royal Commission, to detect and investigate corruption in the AFP and the Australian Crime Commission (ACC) (which had replaced the National Crime Authority). The Law Enforcement Integrity Commissioner Act 2006 (Cth) created the office of the Australian Commissioner for Law Enforcement Integrity (ACLEI) and the Integrity Commissioner. The ACLEI has authority to investigate, using Royal Commission style powers, alleged corruption of the AFP and ACC. The Ombudsman has a continuing role in relation to the AFP and the ACC, except in dealing with corruption issues.

The Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 (Cth) provided a new professional standards framework for the AFP, implementing the bulk of the Fisher Review’s recommendations.

While it was indicated at the time of passage that these Acts were not a direct response to the ALRC’s recommendations in ALRC 82, in effect these Acts substantially implement the recommendations of that Report.