The ACT Human Rights Commissioner believes the Commonwealth Ombudsman's latest upbraiding of police for multiple breaches of privacy further strengthens the case for bringing police to account under discrimination legislation.
"This [report] makes me concerned for other potential breaches other than privacy," Commissioner Helen Watchirs said.
"We have been arguing for some time now that the Discrimination Act should cover ACT police because currently in the ACT you can't make a discrimination complaint [against them] whereas in other jurisdictions, local human rights agencies have that power.
"We have also been arguing that as ACT police is a public authority, under the Human Rights Act it would be really great if we had a complaints power because unless people complain to us [the Commission] we don't know if there have been breaches of human rights [by police] unless they [the complainant] goes to the Supreme Court."
The latest Ombudsman's report found police had a "cavalier approach" to accessing mobile location data, resulting in multiple breaches over years.
The territory's police only complied with the proper procedures to access location-based data, known as "pings", nine out of more than 1700 times over a four-year period from 2015 to 2019, with compliance issues going back to 2007.
"Ping" data is used by police to triangulate and determine the location of a suspect's specific mobile device using cell phone towers.
It's the second time in three months that ACT Policing, which is a policing service contracted to the ACT government from the Australian Federal Police, has been publicly exposed over operational practices.
Three months ago, Ombudsman Michael Manthorpe said "inconsistencies, errors and a varying level of detail" in police reports meant his office could not always tell whether a covert surveillance warrant had been executed properly.
Chief Police Officer Neil Gaughan said all eight of the Ombudsman's recommendations would be accepted, acknowledging that "poor internal processes meant the administration of these [location-based data access] powers were not up to community expectations".
"And my expectation is that we do better," Deputy Commissioner Gaughan said.
"We are a community policing organisation and every time we do something that digs away at that [community] trust, we have to do things a hundred times better to rebuild that trust.
"These are very intrusive powers and we must be very careful about how we utilise them."
He said all requests for location-based access are now processed through the covert analysis and business assurance area based out of the AFP's headquarters in Barton.
Deputy Commissioner Gaughan was uncertain as to whether any prosecutions would be affected as a result of the report.
"One of the recommendations is that we go through our previous convictions to ensure that none of them have been impacted; we are current working with the ACT DPP [Department of Public Prosecutions] to ensure those matters are looked into," he said.
He cited two reasons for the breaches; one was "AFP cultural" and the other the loss of corporate knowledge within the Australian Federal Police.
Unlike other jurisdictions, the federal police has had a long-standing internal corporate practice of rotating officers around its operational areas. However, this rapid rotation policy - and the recent retirement of many senior officers - has badly exposed the organisation.
"We now have that expectation that ... there needs to be people staying in those [key] positions for longer," he said.
In one case cited by the Ombudsman, a police officer had accessed the data without approval as their reporting officer was "in a meeting". The officer then said they would submit an approval request "at some point".
Commonwealth Ombudsman Michael Manthorpe said many of the authorisations for pings were not properly authorised or reported to the Ombudsman nor the relevant Commonwealth minister.
"My office's investigation identified that the internal procedures at ACT Policing and cavalier approach to exercising telecommunications data powers resulted in a culture that did not promote compliance with the Act," Mr Manthorpe said.
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"The privacy of individuals may have been breached and we have been unable to rule out the possibility that unauthorised [pings] may have been used for prosecutorial purposes," he said.
The Ombudsman also said both the Australian Federal Police and ACT Policing missed a number of opportunities to identify the unlawful breaches.
"Law enforcement agencies rely on a wide range of covert and intrusive tools to do their work, but to maintain public trust these tools need to be properly deployed, in accordance with the legislation which governs their use," Mr Manthorpe said.
ACT Policing was able to view the report before it was made public.
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