LAW ENFORCEMENT CONDUCT COMMISSION BILL 2016

21 September 2016

2nd Reading Speech


The Hon. ADAM SEARLE ( 18:43 ): I contribute to debate on the Law Enforcement Conduct Commission Bill 2016. As my colleague the Hon. Lynda Voltz outlined, the Labor Opposition does not oppose the legislation. The legislation before the House emerges not originally from the Tink report, as the Minister for Justice and Police in the other place and the Minister in this place would have us believe, but from a Legislative Council Select Committee on the conduct and progress of the Ombudsman’s inquiry “Operation Prospect”. As Mr David Shoebridge indicated earlier, not one but two upper House inquiries were held in connection with Operation Prospect, which emerged as a result of the unresolved and scandalous bugging of many police officers, journalists and others—a matter that was not dealt with internally. It was not dealt with either by a number of existing oversight bodies.

It was a running sore in the NSW Police Force for two decades. So deep and poisonous was this lack of resolution that it shook the foundations of the senior leadership of the police force in this State in the persons of Deputy Commissioner Nick Kaldas and Deputy Commissioner Cath Burn, which was on full display when they gave evidence to the select committee. It is a matter of record that Mr David Shoebridge, the Hon. Lynda Voltz and I, together with others in this place, served on those committees. It was tragic to see that the conflicting and overlapping responsibilities of different oversight bodies comprehensively failed to deal with this matter and paralysed senior leadership in the police. It seems to me that this lack of resolution is likely to be the reason, if not one of the reasons, that Nick Kaldas chose to depart from his position as Deputy Commissioner of the NSW Police Force. 

Mr David Shoebridge: We lost a very good man as a result. 

The Hon. ADAM SEARLE: I acknowledge that interjection. We lost a very good man and a very good police officer. The idea of a unified civilian oversight of police emerged from the Select Committee on the conduct and progress of the Ombudsman’s inquiry” Operation Prospect”. I refer members to the report that was handed down on 25 February 2015, in particular, pages 114 to 119. Those pages show that during the inquiry several participants expressed concerns about the system of oversight of police complaints in this State, including the multiple number of agencies involved in the investigation and oversight of police conduct and the conflict of interest inherent in the system where, of course, police can oversight their own colleagues. 

Several participants in the inquiry criticised the existing structural arrangements for police oversight. It was noted, and previous speakers have indicated, that oversight is conducted by the NSW Police Force Professional Standards Command, part of the Ombudsman, the Police Integrity Commission, the Coroner, the Independent Commission Against Corruption [ICAC], and even WorkCover. They all play roles in oversighting the police. The Police Association, representing its members, asserted that conflicting findings by multiple agencies had resulted in a loss of confidence in members of the police force: 

In a system where there are multiple oversight agencies, a matter may be assessed by one or more agencies as not warranting further investigation, only for another agency to launch a full investigation. In such cases, justice is put at risk and important questions are raised about the reasons for the differing decisions and the appropriateness of the decision to investigate where more than one agency declined to do so. 

I note that in the 2013 Review of Oversight of Police Critical Incidents, the NSW Police Commissioner had reported that oversight agencies collide in a way that was not intended and, at times, can impede police investigations. In its submission to the select committee inquiry the Police Association noted: 

Dividing the functions, resources, expertise and organisational knowledge across multiple agencies has led to poor investigative practices and fragmentation of best practices and proficiencies. 

It formed the view that the existing situation involving multiple agencies was no longer fiscally responsible. I will not go through the multiple cost of maintaining and running the Police Integrity Commission, part of the ICAC and the Ombudsman, but it is clear that there is a multiplicity and doubling up of work. The Police Commissioner in that inquiry indicated that, in his view, in matters involving police, allegations of police impropriety or, worse, corruption, a single agency was the best solution. He indicated in his evidence that it might be time to look at something like the Independent Police Complaints Commission that exists in the United Kingdom. 

This view was endorsed by Deputy Commissioner Kaldas, who said:

The framework that we have has sprung up in an ad hoc fashion out of various scandals; it is not a structured, thought-through process, it is simply we have reacted to something and we have said we will need another body to do that and so on. What we have now is a patchwork …

The Police Association called for a one-stop shop so that police officers are not dragged through multiple jurisdictions and subjected to multiple inquiries. The lack of confidence that members of the NSW Police Force have in existing arrangements is an important factor for us to consider. I note the contribution of the Hon. Mike Gallacher who, prior to becoming an elected member of this place, was a serving police officer. He spoke about what he knows.

There are, of course, other considerations. Let us consider the lack of resolution around Strike Force Emblems which has debilitated the NSW Police Force for two decades, and other matters on which other speakers in this debate have touched. There is not just a doubling-up or overlapping of responsibilities, a lack of clarity or a waste of public expenditure; there is also a delay and unclear outcomes which is bad for people who have become victims, whether they are police officers or people who feel that they have been mistreated by the NSW Police Force. The lack of clarity in relation to something as serious as civilian oversight of the NSW Police Force is an important public policy matter. 

It is not remarkable that the upper House select committee formed the consensus that there should be a new unified agency to end the multiagency approach that has been confusing, where agencies have the potential to undermine other agencies’ findings and, in turn, undermine public confidence. I am referring to public confidence in the oversight of the police, which is vital to public trust, and to a lack of confidence in the NSW Police Force as an institution.

If the community has no faith in the NSW Police Force as an institution that is a real problem for law enforcement because the police cannot do their jobs without the active engagement of the community. It is also problematic when police have to investigate their own, in particular, given the conflict of interest, as the committee noted, between police officers’ obligations to their colleagues as well as their obligations to the public. The idea that a single, well-resourced oversight body was far preferable to the current structure is not remarkable, although it is good that all of the political parties represented on that select committee came together in support of all the recommendations, in particular, recommendation 6 which states:

That the NSW Government establish a single, well-resourced police oversight body that deals with complaints quickly, fairly and independently.

The terms “quickly” and “fairly” are important so that we do not have a rerun of the still unresolved Strike Force Emblems matter, and other matters of the kind that could be investigated. It is also important that the body be well resourced—a matter to which I will return in due course. In the preparation of this legislation the Government has been very consultative, which is not what occurred in relation to legislation dealing with crime prevention orders. On behalf of the Opposition I thank the office of the Deputy Premier, Minister for Justice and Police, Minister for the Arts, and Minister for Racing for the early and multiple engagements. I note also that the Government has engaged with the Law Society and the Bar Association as well as with the Police Association over an extended period—certainly a longer period than occurred in relation to other significant legislation that has come before the Parliament. That is good because it acknowledges and recognises the importance of getting this legislation right and making sure there is confidence in the civilian oversight of the NSW Police Force—not just by the Parliament but also by the community.

If that were done in a narrow and partisan way it would be highly problematic. The way in which the Government has gone about engagement on this matter has been good. What we have before us is legislation that seeks to preserve the existing range of conduct about which complaints can be made, and which provides the new body—the Law Enforcement Conduct Commission [LECC]—with most of the existing powers enjoyed by the Ombudsman and the Police Integrity Commission, and their functions to oversight complaints. It includes improvements including a positive obligation on police to report misconduct; provisions requiring the LECC and the NSW Police Force to provide a complainant with the reasons for the decision made on their complaint, including a decision not to conduct an investigation; and provisions that enable the new body to oversight all critical incident investigations. Under existing legislation a critical incident investigation can only be oversighted by the Ombudsman if the incident was the subject of a complaint.

These are significant improvements to the architecture of civilian police oversight. When we are seeking to integrate a number of existing bodies with existing powers, each comes with a history and we cannot always get it right, no matter how long or how thoughtful the consultation has been. I note that the NSW Ombudsman has articulated a number of continuing concerns about the legislation as it is currently configured. Those concerns are certainly shared by the New South Wales Opposition. I will address those concerns shortly but before I get to that I would like to pick up on a point that was raised by the Hon. Mike Gallacher. 

The core of this new body will take up the space that was occupied by the Police Integrity Commission. I will not dwell on that for too long. There has been a lot of criticism of that body, and much of that criticism has been accurately levelled. I do not think many tears will be shed over the departure of the Police Integrity Commission but it is important for us to create a strong and robust institution to replace it—one that has a different culture and that does not repeat the mistakes of the past. We need a new body that will lead to greater public confidence—not only confidence in the body’s role as the regulator but also confidence in the NSW Police Force.

One of the concerns that the Ombudsman has about the current legislation is that the new body’s own investigative powers would be limited to serious misconduct and serious maladministration in a way that is not only limited but also inferior to the powers currently available to the Ombudsman and the Police Integrity Commission. Importantly, this is inconsistent with the Tink report recommendations 1, 3 and 15. In particular, there is concern about the scope of clause 51 of the bill, which sets out the charter for the Law Enforcement Conduct Commission. I will not go into all the details but there are concerns that the new body will not be able to investigate a broad range of conduct which the Ombudsman can currently investigate, including conduct that is a criminal offence but that is not a serious indictable offence; unlawful conduct that is not an offence or corrupt conduct; police force maladministration that does not meet the threshold of serious maladministration under clause 11; or conduct that the Ombudsman considers should be investigated in the public interest but that does not meet any of the serious thresholds required under clause 51. 

One example of this is the investigation into the use of police tasers, followed by a special report to Parliament in October 2012 entitled “How are Taser Weapons used by the NSW Police Force?” The investigation included a comprehensive review of more than 2,000 taser-use incidents and the NSW Police Force systems, policies and procedures, including arrangements for ensuring the proper governance of and accountability for the misuse of the devices. The investigation resulted in 44 recommendations for strengthening police systems, most of which were supported and implemented by the NSW Police Force. 

The Ombudsman feels it would be unlikely that the new body would be able to commence such an investigation under the legislation that is now before the House. If that is the case, that is a significant problem. It is also problematic that the powers of the new body would conflict with and depart from the Tink report recommendations. If that is a correct analysis, the new body would not have all the functions and powers of the Ombudsman set out in part 8A of the Police Act, or indeed all the powers available to the Police Integrity Commission [PIC] presently.

Concerns also have been articulated about limitations on the ability of the chief commissioner to make operational decisions such that those limitations are in conflict with the Tink report’s recommendations 9 and 11. Clause 19 of the legislation sets out the powers available, the manner in which the new body will work and decisions of the commission. It sets out that some powers of the commissioner will be exercisable only if two of three commissioners agree, one of whom must be the chief commissioner. However, there are some functions the commission can exercise only when there is a unanimous decision, in circumstances outlined in clause 19 (3), of all three commissioners. Clause 19 (3) states:

(a)a decision … to delegate a function of the Commission,

(b)a decision … to hold an examination (or part of an examination) of conduct that is (or could be) serious misconduct in public,

(c)a decision … that there are reasonable grounds to issue a search warrant.

The Ombudsman’s concerns are that that could impede the operational effectiveness of the body, and I must say that I share that concern. I understand the need for safeguards and I understand some of the concerns that have been expressed about the conduct of the PIC in the past when ultimately one person made the decision. But that is addressed by the requirement that the core functions of the commission can be exercised only if the chief commissioner and one of the other two commissioners agree. I think that is a sufficient safeguard.

Concerns have been expressed not just by the Ombudsman. A number of bodies have expressed concern that the extreme width of definitions in clauses 9, 10 and 11 relating to misconduct and maladministration may lead to confusion. I think that is probably inherent in the desire to ensure that there is as wide a coverage of operations of the new body as is possible. The Ombudsman also has expressed concerns about the oversight of critical incidents and that the bill, in its current form, is not consistent with Mr Tink’s recommendations 43 or 45. 

In the time that is available for my speech, I will identify a couple of issues. There is concern that the new body will not have the right to attend interviews as an independent observer but can do so only with the consent not only of the chief critical incident investigator but also of the person who is being investigated. I note that there is no such restriction in the current system. Section 146 of the Police Act allows the Ombudsman to act as an independent observer for monitoring police complaint investigations. The requirement that the person who is the subject of the investigation must consent before the Law Enforcement Conduct Commission can do its work seems to me to be a curious provision. Even when there is no wrongdoing involved, a serving officer on the ground, who is involved in a critical incident and who is faced with this new regulatory body wanting to investigate the matter, would only be human if he or she said, “I don’t agree.” The provision is unusual and is one that could seriously impede the commission’s functions. The Opposition has other concerns that will be dealt with by way of legislative amendments. I look forward to the Committee stage.