Victoria needs a new independent police oversight authority – but to work what will it need to look like?
21st Sep 2023
Victims of criminal conduct, misconduct and systemic racism by Victoria Police have long called for a new, independent, adequately resourced police oversight authority in Victoria to investigate substantive complaints against police. These calls have been echoed by Community Legal Centres, the Victorian Aboriginal Legal Service, academics and lawyers. Most recently these calls have been made in Recommendation 27 of the Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice System.
In reforming police accountability and settling what Victoria’s new or varied police integrity body will look like, the Victorian Government will need to balance –
- calls to replicate the Police Ombudsman for Northern Ireland (PONI)– widely accepted as the gold standard in police accountability models, against
- the post-COVID-19 reality of a state budget deep in the red, and
- the anticipated political blow-back from the Opposition, police command and Police Association Victoria, if police integrity reforms see power and funding taken from both Victoria Police and the Independent Broad-Based Anti-Corruption Commission (IBAC) and directed to either –
- a new stand-alone PONI-style police oversight authority or
- a new division within the existing Victorian Ombudsman’s office as a transitional or permanent measure.
A NEW POLICE OVERSIGHT AUTHORITY NEEDS MORE THAN NEW POWERS
To succeed, the new police oversight authority will need key complainant-focused capabilities, including:
- A solid knowledge and independent understanding of operational police policy, procedure, and culture. That understanding must be regularly and independently verified and validated, and not entirely informed by Victoria Police.
- A demonstrated understanding of what cultural awareness and safety mean in practice, informed and assessed by an independent panel of First Nations peoples. This will likely result in –
- a First Nations complainant division within the new authority – led by a senior First Nations lawyer – and
- First Nations complainant specific guidance and training for all staff of the new body irrespective of whether or not they work in the new division.
- Competence in human rights law and administrative law as a mandatory requirement of all complainant-facing and decision-making staff.
- Insight into the impact of trauma on the ability to articulate complaints, coupled with the ability to support and provide accommodations to complainants experiencing trauma or vulnerability through the complaints process. Absent both of these elements, substantive complaints about criminality or misconduct will be missed or dismissed as ‘service level complaints’ or ‘lacking merit’. In practice, this requires:
- Experienced staff working in early complaints assessment, review and triage, rather than only at the investigation and decision-making end of the complaint lifecycle.
- Complainant welfare officers to assist complainants suffering vulnerability throughout the life of their complaints, including providing support and explanations in conciliation processes and explaining decisions and correspondence.
- Regular correspondence in accessible language updating complainants, irrespective of whether there has been progression of a complaint.
- Documented complainant risk and safety plans, informed by complainants and expert in-house advisors, where trauma, vulnerability or psychological distress is evident or suspected.
- An expedited complaint-resolution process for complainants enduring exceptional circumstances or at material risk.
- An evolving understanding of corporate and executive integrity from a community and corporate standards perspective, informed by an independent Council of stakeholder representatives.
- General staff-wide competence in complainant risk assessment to enable the identification of newly at risk complainants.
While these capabilities would be more easily built into an ombudsman-style body than IBAC, ensuring that they are embodied in the new authority will require careful planning and recruitment, as well as continuous evaluation and assessment to ensure those capabilities are maintained.
POWERS ANY NEW POLICE OVERSIGHT AUTHORITY MUST HAVE
In addition to the complainant-focused capabilities detailed above, there are five powers Victoria’s new police oversight authority must have to meet its mandate of holding police accountable.
1. The power to obtain information directly
It is essential that the new authority has the power to obtain information directly from Victoria Police systems, rather than just ‘compel production’, to ensure that information is not hidden or omitted from internal-investigation files and information request responses. Presently, IBAC does not have that power in relation to complaints it refers to Victoria Police to investigate, being 98% of all police complaints received by IBAC.
The new police oversight authority must have direct access to both structured and unstructured information repositories, and the ability to conduct e-discovery on those repositories. That significant power must be fettered by:
- stringent security measures and
- Victorian Inspectorate oversight, audit and review,
to provide appropriate checks and balances.
If it has full and unfettered systems access, the new authority will deal with complaints based on complete and reliable information to make decisions and assessments. Anything less will see any new police oversight authority fail.
2. The power to investigate, publicly report and refer
The second essential power the new authority must have is the power to directly investigate all complaints against police, publicly report and refer. This must include:
- The power to directly investigate potentially systemic issues, including over-policing of minorities, racism and cultural issues (such as sexual harassment).
- The power to report on those issues to the Parliament, the public and, where corruption issues are raised, to IBAC.
- The power to direct investigate all matters involving allegations of criminality and misconduct by police, and for co-investigated matters (such as homicides) to sit in on interviews with accused members and witnesses and ask questions – and have power of veto over police members appointed to the police investigation team and given access to investigation information.
- Coercive questioning powers in some circumstances.
- The power to refer charges for authorisation and progression to:
- the Office of Public Prosecutions or
- an alternative independent counsel (such as the director of an interstate public prosecutions office) where there is an actual or perceived conflict of interest.
3. The power to make decisions that are final and binding on Victoria Police
The new authority must have a new power that IBAC does not currently have: the power to both make complaint-outcome decisions and discipline outcomes. Those outcomes must be:
- final and binding on Victoria Police and its members and
- published on the new authority’s website where possible and appropriate – in de-identified form (with complainant consent). This is so as to inform and manage the expectations of other complainants and their advocates, and set standards and drive cultural change within Victoria Police.
IBAC reports have commented on inadequate police discipline outcomes. Most recently, IBAC’s thematic review of predatory behaviour by police members found that Victoria Police’s Legal and Discipline Advisory Unit ‘provided problematic advice to investigators, including recommending sanctions that were not consistent with investigation findings, Victoria Police standards or community expectations’.
The new authority has to have the power (within appropriate and well-defined legislative bounds) to make and impose binding discipline outcomes that can only be challenged by a police member in an external tribunal or the Fair Work Commission. This will align police member/employee accountability standards with community standards.
4. Powers to resolve disputes and award compensation
The new authority must have the power to require Victoria Police to attend conciliation, and make decisions to resolve complaints, within bounds. The complaint-resolution decisions the new authority should be empowered to make include:
- requiring Victoria Police pay compensation up to a statutory cap
- requiring acknowledgement, apology or restorative justice by Victoria Police and
- requiring procedural, policy and/or training change.
Those decisions must be binding on Victoria Police and formally resolve the complaint (meaning the complainant cannot subsequently commence litigation in relation to the complaint’s allegations) if and only if the decision is accepted by a complainant. This is not a power held by the Victorian Ombudsman at present.
Ombudsman’s conciliation processes and decisions will reduce litigation against Victoria Police while increasing police transparency and accountability (provided decisions and thematic reviews are published by the new authority). Compared to litigation, the exercise of such decision-making powers to resolve a dispute will:
- be cheaper
- drive greater cultural change, accountability and transparency within Victoria Police
- be victim centred and trauma informed
- give victims more closure than a litigated outcome in many cases and
- be less traumatic than litigation or the current IBAC system for complainants.
5. Charge-back powers
The fifth power the new authority needs is unusual, but in the Victorian context it is necessary: the power to charge fees to Victoria Police for not cooperating with the authority’s complaint investigation, for delaying, and for failing to resolve complaints fairly and early. In setting up a new police integrity system, there has to be a disincentive for obfuscation and unjustified delay. Charge-back powers will also see the new authority partially fund itself.
There is the need to find a way to align police integrity, accountability and cultural reform with the interests of Victoria Police. This aim can be achieved by:
- financially disincentivising delays, obfuscation and the refusal to resolve meritorious complaints and
- publishing deidentified complaint decisions and systemic issues reports regularly.
Charge back powers coupled with decision-making powers will change the weighting of the current complaints scale. It will then be in the interests of Victoria Police (both financial and reputational) to resolve complaints quicky and fairly, substantively address cultural issues and exit problematic officers.
VICTORIA’S NEW POLICE OVERSIGHT AUTHORITY COULD BE SOFT LAUNCHED AS A DIVISION WITHIN THE VICTORIAN OMBUDSMAN WITHIN EIGHTEEN MONTHS
If Victoria’s new police oversight authority is given the above powers and capabilities, it is feasible for the body to meet its mandate of holding police accountable for criminality and misconduct, and driving cultural change through that accountability, while not driving the state into further debt. Existing resources and funds allocated to Victoria Police, Victoria Police’s civil litigation expenses, and IBAC could be reallocated.
Victoria’s new police oversight authority could be transitionally housed within the existing infrastructure of the Victorian Ombudsman, which has an ethos and practices that are broadly consistent with the capabilities discussed above. The Victorian Ombudsman is better placed culturally and operationally to deal with complaints made by people suffering trauma and vulnerability than IBAC.
Operationally, the new oversight authority could be soft launched as a new Victorian Ombudsman division with a stepped start. Under that stepped start, investigations responsibilities would be removed and transitioned in tranches from PSC and IBAC to the new division in priority order: complaints made by First Nations people, complaints of family and sexual violence against police, complaints of other criminality against police, and complaints of racism and over-policing of minorities by police. Ultimately all complaints against police would be reviewed and triaged by the new body.
It goes without saying that amendments to the existing enabling legislation for the Victorian Ombudsman, the Victorian Inspectorate, Victoria Police and eventually IBAC would be required to give effect to this hybrid model (particularly to allow for decisions, awards of compensation and charge-backs), with further changes needed if or when the new police oversight authority is separated from the Victorian Ombudsman.
The structure, model, remit and funding of Victoria’s new police oversight authority are not the hurdles many believe them to be. Political hurdles are the biggest impediment to reforming Victoria’s independent investigations system for complaints against police. It will take political courage to hold the line against that pushback and backlash, but it must be held. How many more scandals and how much further human suffering is needed to steel the will of those with the power to both end police impunity and ameliorate the harm it does to the most vulnerable members of our community?
The ALA thanks the author, who wishes to remain anonymous, for this contribution.
This article is written by a senior human rights lawyer with experience working in an ombudsman’s office in another jurisdiction and lived experience as a victim of proven criminal conduct and misconduct by Victoria Police members and of IBAC’s oversight and review failures as documented in the Victorian Inspectorate Special Report October 2022.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).