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Ombudsman report highlights ‘systemic failings’ in AFP, LCA says
The Law Council of Australia (LCA) has responded to a new report by the Commonwealth Ombudsman that highlighted numerous breaches undertaken by the ACT policing division of the Australian Federal Police (AFP).
Emma Musgrave
Late last week, the Commonwealth Ombudsman released the findings from its investigation into the ACT police force.
The report confirmed both the ACT policing division and the staff within the AFP’s national headquarters failed to inform the Minister for Home Affairs or the ombudsman about these points of access until January 2020, despite the AFP headquarters being well aware of the work being carried out by the division and the compliance issues that came with them.
In commenting on other takeaways from the report, Law Council of Australia president Dr Jacoba Brasch QC said: “Many of the 135 breaches identified by the Ombudsman from 2015 to 2020 concern failure to comply with essential statutory requirements and are more extensive than the problems identified in the AFP’s internal audit commissioned in 2020.
“For instance, the Ombudsman found evidence that the AFP officers responsible for internally authorising access to such data had, in several instances, only spent minutes assessing requests, and in some cases had approved access without any evidence suggesting they had been given sufficient information about the case to satisfy the statutory issuing requirements.”
Dr Brasch said the report clearly demonstrates how the division and the AFP have “overstepped the mark”.
“[The] findings that a division of the AFP has been found to have breached statutory requirements regarding their ability to use intrusive powers to access telecommunications data is deeply troubling,” she said, adding that they “appear to identify systemic failings in the exercise of a highly intrusive power”.
Ironically, the findings come at a time when the government is moving to extend the powers of law enforcement and security agencies, Dr Brasch noted.
“The Law Council agrees with the Ombudsman that these breaches, and their underlying causes, need to be considered in the context of major proposed expansions of the AFP’s intrusive electronic surveillance powers,” she continued.
“The Law Council has repeatedly called for stronger statutory safeguards to be applied to the major proposed expansions of the AFP’s intrusive electronic surveillance powers, including more rigorous issuing criteria and clear statutory limitations on the scope of powers, so that there is strong statutory guidance to officers.
“It is disappointing that up until now, and as recently as last week, the Department of Home Affairs has publicly expressed opposition to nearly all of the Law Council’s recommendations.
“It is hoped that in view of the Ombudsman’s findings, the prevailing approach of delegating extremely broad discretions to security agencies, including the AFP, will be re-considered.”
Emma Musgrave
Emma Musgrave (née Ryan) is the managing editor, professional services at Momentum Media.
Emma has worked for Momentum Media since 2015, including five years spent as the editor of the company's legal brand - Lawyers Weekly. Throughout her time at Momentum, she has been responsible for breaking some of the biggest stories in corporate Australia. In addition, she has produced exclusive multimedia and event content related to the company's respective brands and audiences.
Prior to joining Momentum Media, Emma worked in breakfast radio, delivering news to the Central West region of NSW, before taking on a radio journalist role at Southern Cross Austereo, based in Townsville, North Queensland.
She holds a Bachelor of Communications (Journalism) degree from Charles Sturt University.
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