About the guide and rules
The Australian Federal Police (AFP) National Guideline on Sensitive Investigations provide guidance on the matter of sensitive investigations. The most recent version of the guideline was published in August 2023 and was issued by the Assistant Commissioner Counter Terrorism & Special Investigations.
What is a sensitive investigation?
Section five of the AFP National Guideline on Sensitive Investigations defines a sensitive investigation as an inquiry process that can involve Australia’s “international relationships or agreements” and can affect or involve any level of the Australian government, public servants in high-profile positions (including from foreign governments), a member of the press or a news organisation, and culturally prominent companies, organisations, or persons.
As well as the above, the inquiry process can also be of “significant interest” in Australia and can be declared a sensitive investigation by the AFP Commissioner.
Who sensitive investigations affect
Sensitive investigations can affect Australia in numerous ways: it can impact public or political policies, the operation of foreign and domestic governments, agencies, the court system (judiciary) or law-making bodies – as well as Australia’s reputation, relationships with other countries, and even its economy and environment.
Defining a sensitive investigation
For an investigation to be defined as sensitive, it has to meet the requirements laid out in section 5 of the guideline, which provides a definition for sensitive investigations and the criteria necessary to be designated as such. Furthermore, an investigation can only be a sensitive investigation “if it is an investigation as defined in the AFP Investigations Doctrine”, whose definition of an investigation is derived from the 2011 Australian Government Investigations Standard:
“An investigation is a process of seeking information relevant to an alleged, apparent or potential breach of the law, involving possible judicial proceedings. The primary purpose of an investigation is to gather admissible evidence for any subsequent action, whether under criminal, civil penalty, civil, disciplinary or administrative sanctions. Investigations can also result in prevention and/or disruption action.”
Oversight
Should an investigation be identified as sensitive, it must be “brought to the attention of the relevant Commander and briefed to the responsible Assistant Commissioner” to ensure that there is an appropriate amount of awareness and visibility on the matter within command.
Managing risks
In the process of managing a sensitive investigation, to better prepare for and deal with increased risks or scrutiny, the guideline recommends that those involved in a sensitive investigation consider:
- creating plans for the investigation and for dealing with stakeholders and potential victims
- appointing a Senior Investigating Officer (SIO)
- consulting with AFP Legal, Media, and Ministerial teams
- liaising with the Commonwealth Director of Public Prosecutions
- Create an “engagement plan with a journalist or news media organisation”
Escalating Investigations
If necessary, an investigation can be escalated to either the Sensitive Investigations Oversight Board (SIOB) or to within a command (i.e. an organisational area responsible for certain tasks or functions) and the guideline provides multiple reasons why escalation may be necessary, including:
- Changes in investigative circumstances
- A person’s arrest
- The Assistant Commissioner Counter Terrorism & Special Investigations has “determined the investigation to be a sensitive investigation”.
Escalating an investigation can help enable (for example) stakeholder engagement and situational/operational awareness or tackle resource requirements.
Additional oversight
If necessary, particularly delicate investigations may requirement additional oversight, and for such instances, they can be escalated to the SIOB. As explained in the AFP’s guidance, the SIOB provides “strategic direction and management of designated sensitive investigations and ensures alignment of AFP capabilities and capacities to conduct sensitive investigations”.
While the SIOB exists to oversee sensitive investigations that require “additional oversight”, they do not necessarily involve themselves with every sensitive investigation. Per the guideline’s own words, “only the most sensitive investigations require escalation to the SIOB”. Things that might warrant escalation to them include (but are not limited to):
- An increase in criminality and significant to the Australian community
- Procuring journalistic evidence
- The risk of the death penalty
Appointees
The AFP’s guideline regularly refers to appointees, which is defined in greater detail in the AFP Commissioner’s Order on professional standards (CO2), which in turn provides references to relevant legislative provisions from the Australian Federal Police Act 1979 (Cth) – sections 35(2), 69A, and 69D – and defines an appointee as “a Deputy Commissioner, an AFP employee, special member or special protective service officer” as well as anyone:
- Working overseas for the AFP
- Seconded to the AFP
- Providing contractor or consultancy services to the AFP
PROMIS system and sensitive investigations
The AFP utilise an internal case management system called Police Realtime Online Management Information Systems (PROMIS) in which the guideline notes that all investigations that have been defined as sensitive must have a Decision Case Note Entry (CNE) with a sensitive investigation tag, where the CNE provides all relevant details and information.
Should an investigation cease to be sensitive, the tag should be removed and the CNE updated to explain the basis for the change.
Key takeaways
The most recently issued version of the AFP’s national guideline on sensitive investigations provides a clear definition and structure for managing sensitive investigations and the consequences that can be expected should an appointee fail to meet the AFP’s professional standards framework.
