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Police accountability in Australia: Complaint mechanisms

12th Apr 2018

Traditionally, police complaints are dealt with internally either by senior officers or specific departments within the police force. However, such complaint mechanisms often either appear to lack sophistication or, in some cases, to deliberately protect police officers guilty of misconduct.[1] Civilian review of complaints through an ombudsman or anti-corruption body is therefore an important first step in ensuring that police complaints are dealt with fairly and effectively. 

Current complaint mechanisms around Australia

New South Wales

The Law Enforcement Conduct Commission (LECC) commenced operation in 2017. Created in response to recommendations made by former New South Wales (NSW) Shadow Attorney-General Andrew Tink,[2] the LECC replaced the Police Integrity Commission and the police oversight functions of the NSW Ombudsman.

Sadly, the LECC has not been granted all oversight power as recommended in the Tink Review. While the LECC is able to investigate allegations of police misconduct or excessive force that do not lead to serious injury or death, investigations of ‘critical incidents’ will continue to be self-investigated by police with oversight from the LECC. However, the LECC’s capacity to oversee such investigations effectively is restricted, as it is only permitted to observe interviews with the consent of the interviewee and the critical incident investigator. 

Unlike the Ombudsman which preceded it, the LECC does not have the power to conduct ‘public interest’ investigations, removing the ability for systemic investigations into police misconduct in NSW.[3]

Northern Territory

The Northern Territory (NT) Ombudsman is able to receive and investigate complaints regarding the conduct of police officers and to make recommendations about action in relation to them. A complaint must be made within one year of the conduct subject to the complaint. In 2015-16, the Ombudsman received 498 approaches relating to police conduct, 11 of which were sustained. Sixty-eight complaints were dealt with by way of a complaint resolution process undertaken by NT Police.[4]

Queensland

Police complaints in Queensland are overseen by the Crime and Corruption Commission (CCC) but are the primary responsibility of the Police Commissioner.[5] The CCC may issue guidelines regarding how complaints should be investigated, review and audit complaints, or investigate a complaint involving police corruption.[6]

South Australia 

The South Australian (SA) Office of the Police Ombudsman ceased operation in September 2017. Responsibility for police oversight now rests with the Office of Public Integrity (OPI) and is governed by the Police Complaints and Discipline Act 2016 (SA). Management of complaints is primarily the responsibility of the Internal Investigations Section (IIS) of SA Police with oversight from the OPI. The OPI is able to direct the SA Police Commissioner in relation to the handling of complaints, reassess complaints and reports made by the IIS, or refer complaints to the Independent Commissioner Against Corruption for investigation.

Tasmania

Complaints against Tasmania Police are mainly dealt with internally. The Integrity Commission monitors investigations, conducts an annual audit of complaints and reports its findings to Parliament,[7] and is also able to conduct its own investigations. The Tasmanian Ombudsman ensures compliance by Tasmania Police with the requirements of police telephone interceptions, surveillance and controlled operations legislation.

Victoria

Most complaints regarding police conduct in Victoria are investigated internally by Victoria Police, with approximately 90% of complaints being referred for investigation to regional or local area commands.[8] The most serious of these complaints are investigated by Professional Standards Command (PSC), a department of Victoria Police.[9]

Police complaints are overseen by the Independent Broad-Based Anti-Corruption Commission (IBAC) which replaced the Office of Police Integrity in 2013. Complaints regarding police personnel conduct[10] can also be made directly to IBAC and account for 65% of the complaints that IBAC receives.[11] This figure is largely due to the requirement that the Chief Commissioner must notify IBAC of any complaint received,[12] and the outcome of the investigation of that complaint.[13] Once a complaint is referred to IBAC, it can either be dismissed, investigated or referred to the Chief Commissioner.[14] IBAC is also able to instigate own-motion investigations, and has the power to conduct public hearings. 

The Victorian Parliament’s IBAC Committee is currently holding an inquiry into the system for the oversight of police corruption and misconduct and will release its report no later than 30 June 2018.[15]

Independence and international obligations

In Horvath v Australia,[16] the UN Human Rights Committee held that, as a signatory to the International Covenant on Civil and Political Rights (ICCPR), Australia was under an obligation to ensure that perpetrators of human rights violations, and specifically those perpetrated by police authorities, are adequately held to account through an independent, effective and impartial investigation into their conduct.[17] This obligation extends to the states and territories.[18]

There has been a growing call in some states for the creation of independent bodies empowered to investigate all complaints against police as well as decide on disciplinary outcomes. No such body currently exists in Australia, meaning that Australia is in breach of its international human rights obligations. International examples, including the Police Ombudsman of Northern Ireland, Office of Police Complaints (Washington DC) and the Law Enforcement Review Agency (Manitoba, Canada), provide best practice examples. There is also an historical Australian precedent, albeit short-lived. The Victorian Police Complaints Authority (the PCA) operated between 1986 and 1988. The PCA’s willingness to act was evidenced by its complainant-focused attention to investigation. It operated a 24-hour complaint hotline and was willing to travel to complainants. It was also willing to exercise its power to investigate ‘public interest’ complaints, which included complaints made by ordinary people about police abuses. It conducted thorough re-investigations of complaints where complainants raised concerns about the initial police investigation. Further, it had a high media profile on trends and issues relating to police misconduct. Unfortunately, the PCA was seriously under-funded by the government and hampered by badly drafted legislation. It was shut down by the government within two years of its commencement following a powerful backlash from the Police Association.[19] To date, it remains Australia’s only attempt at proper independent oversight of police. 

 

This is an extract from an article entitled ‘Police Accountability in Australia: Complaint mechanisms and civil litigation’ that was published in full in the Nov/Dec 2017 edition of Precedent focusing on institutional liability.

Nick Boag is a solicitor for the Police Accountability Project at the Flemington & Kensington Community Legal Centre.

Jeremy King is an Accredited Specialist in Personal Injury Law and Principal of Robinson Gill Lawyers.  

Merys Williams practises in injury law and police misconduct at Robinson Gill Lawyers. 

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Human rights police powers police police misconduct complaints mechanisms