Police Complaints - Unfettered Initiative Required

	Extract from Hansard Legislative Council 9 November 1999

Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 1999 Spring Session Index Browse by Subject About the SA Parliament Hansard on line

POLICE (COMPLAINTS AND DISCIPLINARY PROCEEDINGS) (MISCELLANEOUS) AMENDMENT BILL

The Hon. IAN GILFILLAN: As honourable members are aware, I have been concerned for many years about the problems that arise or that are perceived to arise when police investigate police. For the public to have confidence in our police force there needs to be a mechanism for resolving police complaints which is not only fair but which is also seen to be fair and, of course, transparent. Regrettably, that has not been a priority for this government. It has sought to entrench the status quo, whereby nearly all complaints against police are handled by the internal affairs section.

The bill which is before us is the government's considered response to the Iris Stevens review, last year, of the way police complaints are handled. It is worth recalling here the terms of reference that were given to Mrs Stevens. The terms of reference were (and I quote from the Attorney-General-26 February 1998):

1. Examine and review generally the operations and processes of the Police Complaints Authority (the Authority), the Commissioner of Police and the Internal Investigations Branch in relation to their statutory functions in investigating and reporting on complaints against police officers under the Police (Complaints and Disciplinary Proceedings) Act (the Act) and report upon the effectiveness and appropriateness of those operations and processes.

2. Without limiting the generality of paragraph 1 above, examine, review and report upon the following practices and procedures of the PCA:

· responses by the authority to inquiries by complainants (section 30 of the Act);

· the provision of reports of investigations, assessments of other materials to complainants, police officers, the subject of complaints and the Commissioner of Police;

· the relevance of the principles of natural justice to the exercise of statutory functions by the authority; and

Under these terms of reference Mrs Stevens was not permitted to recommend changes to the act, to the resources available to the PCA, nor investigate any of the cases dealt with by the PCA or the police Internal Investigations Branch. I said at the time that it was a Clayton's inquiry, and I quote myself: `the inquiry you have when you don't want an inquiry'. Mrs Stevens was authorised to determine how well the PCA was performing under its act but could not make any recommendations as to how the act might be improved or what resources could or should be employed; nor could she examine the nitty-gritty of individual cases.

Consider, Mr President, how ludicrous this is. Suppose I want to consider the best way of getting from Perth to Adelaide. Suppose I started off on the journey by cycling on my bike. The government would authorise a review of how well I am performing in cycling from Perth to Adelaide but it would prevent any consideration of how I might get there a lot faster if I drove a car. It would prevent any consideration of whether I could afford to hire or drive a car. It would even prevent any consideration of whether I could use a better bicycle. It was, as the Attorney-General described it, a review of process. Like the person cycling across the Nullarbor, instead of driving, it looked at the way the PCA is obliged to lift up one pedal and press down on another while complying with the act. Whether or not the act is the best method of handling complaints or whether sufficient resources have been allocated, like hiring a car, or even buying a plane ticket, to get from Perth to Adelaide, did not at any stage come into consideration.

The Hon. IAN GILFILLAN: All the cyclists are coming out of the woodwork! It was not surprising then that one of the common reactions to the Stevens report was that it was bland and cautious. It was bland and cautious because that was the only sort of report that was sanctioned under her terms of reference, the terms of reference given to her by the government. Instead of recommendations for reform we got questions, options for the government to consider, some anomalies and minor matters of procedure which might be corrected, like a question about whether we should change the pedals or the tyres on a bike. Now, a year later, we are considering what the government has proposed in response to those suggestions-a year later.

As limited as this process is, it has also been a very low priority for the government. Although the government has had the Stevens report for more than a year (it was tabled on 11 August 1998), the process of getting this bill before parliament took another 12 months, and as late as the end of October 1999 was still going on. A bill was introduced in the budget sitting on 5 August 1999. A slightly different bill appeared in this sitting, on 30 September. It had been modified with the addition of another subclause. The government proposes to modify it yet again, with some amendments which were placed on file in the Attorney's name on 22 October.

This ad hoc approach is evidence of the very limited government response to the very limited Stevens inquiry, not merely limited but also apparently a very low priority. It is a measure of how little consideration the government has given to the whole issue of police integrity and the complaint handling process in general. In short, first we had the Clayton's inquiry by Mrs Stevens; second, we had the response delayed by more than a year with bits and pieces added on, week after week, as an afterthought. This does not inspire me with much confidence in the government, let alone in the way the government allows police to investigate police.

During the parliamentary recess I took the opportunity to do some research into the way that police complaints are handled in other countries, notably England and Ireland. On my travels I met, among others, Mr Fred Broughton, President of the United Kingdom Federation of Police Officers, and Peter Moorhouse, chair of the British Police Complaints Authority. One thing that I found striking about the discussions with Mr Broughton and Mr Moorhouse was that the rate of police complaints lodged in Britain is much lower than the rate in South Australia. There are approximately 126 000 British police officers and about 10 000 annual complaints received by the British PCA. That is an average of one complaint for every 12.6 police officers per year.

As is the case here, the PCA does not determine all complaints itself. It supervises only about 10 per cent, usually the most serious cases. Many others are discarded without investigation, but the majority are referred back to police for internal investigation. That is broadly comparable to our system. In Britain, a complaint is upheld (that is, some type of disciplinary action is taken) in about 12 per cent of complaints, which represents action taken against just under 1 per cent of British police officers per year. In South Australia, we have about 3 500 police officers, and about 1 300 annual formal complaints (not counting the more numerous mere allegations). That is an average of one formal complaint for every 2.7 officers. The complaint is upheld in one form or another in about 150 cases per year ( that is, 12 per cent of all complaints). This represents about 4.3 per cent of police officers per year.

I remind honourable members that the British experience is just under 1 per cent. So, South Australians complain about their police about five times as much as British people complain about theirs. The complaints are upheld at the same rate-12 per cent-with the result that a South Australian police officer is four and a half times more likely to have an adverse finding made by the PCA against him or her than a British police officer. I find it hard to believe that our police force is four and a half times worse than the British police. In fact, I do not believe that. I believe that it reflects on the idiosyncrasies of either the system or the wider acceptance by the South Australian public that they have a right to complain when they see something that they want to raise with the PCA.

Perhaps as Mr Wainwright in the Police Complaints Authority observes in his most recent annual report, it may be that here in South Australia people have sufficient confidence in the SA complaints handling procedure that they are prepared to go through the system to make their complaint. Alternatively, of course, there may be less public confidence by Britons in the British process, so that in Britain perhaps many complaints are simply not made and hence not followed up. A third possibility is that we South Australians may be less tolerant whenever we believe that police have stepped over the line of proper behaviour and we are not afraid to say so.

No matter which of these explanations we prefer, we can take from it both positives and negatives. If confidence in the procedure here is high, that is good, and we need to ensure that it stays that way. However, if the South Australian public is to a greater extent intolerant of behaviour which the PCA subsequently finds is wrong, then that also is a good thing. It is a public statement that we expect very high standards of our police officers, and that the PCA agrees. But despite the positive slant of these potential explanations, it remains the case that in South Australia complaints are upheld against more than 4 per cent of police officers per year, on average. I would suggest that that is too high and an indication that this government is putting too little resources into training and other preventative measures to help police avoid committing mistakes that will result in justifiable complaints.

I believe that the vast majority of police are or would be keen to continually work at raising their own standards of professionalism to minimise the potential for adverse findings to be made against them. It is not just operational police who come under criticism. One of the bland things that Mrs Stevens was permitted to say in her review of operations was that she received submissions from the public complaining about a `lack of professionalism at times in the investigative procedure' of handling police complaints. One of the reasons for that may be again a lack of resources for accomplishing the level of professionalism and high standards that the public of South Australia have come to expect, not only in policing but in addressing police complaints. In spite of my lack of confidence in the government in this area, I do have confidence in the Police Complaints Authority, Mr Tony Wainwright, despite the limitations placed upon him by a lack of resources and the act. I have sought his opinion on aspects of this bill and have been persuaded by some of his arguments.

The Democrats will be supporting most of the measures which this bill seeks to achieve. However, there are a couple of exceptions, which I will describe shortly, and there are also a couple of important omissions from this bill which I hope to address with some amendments that I have on file. First, in my study of the principal act I discovered that under section 22A(5) the authority is prevented from investigating a matter on his or her own initiative unless such an investigation has the support of the commissioner and/or the minister. In fact, the authority of the act can allow a commissioner to put a veto on an investigation and, if he and the authority do not reach agreement as to what should eventuate, the matter is referred to the minister, who can then put a veto on the investigation.

When section 22A was incorporated into the act by an amending bill in 1996, subsection (5) was not debated at all in either chamber of this parliament. The Attorney pointed out in his second reading speech on the present bill that there had never been an occasion when the PCA had disagreed with the commissioner on a possible investigation on the authority's own initiative. Nevertheless, I consider that this subsection represents an opportunity for what could be an unnecessary obstruction of the PCA's powers. I would like to set the following scenario, although I am not arguing that it has happened.

A PCA that is aware of this power of the commissioner to chop off an investigation at the knees may very well be sensitive to not pursuing an investigation, fearful that having gone down that path and having invested a certain amount of resources it is quashed by the commissioner. This may generally create an unsatisfactory relationship between the authority and the commissioner. I believe that to be totally unacceptable in the way the PCA should work. It is all too easy to imagine a scenario in which a future commissioner and future minister would prefer not to have the authority delving into a particular matter. I can see no reason for including section 22A(5) in the act, and I shall be moving for its deletion.

Secondly, I make the point that it is not only the public who make submissions about the complaint handling procedure: it is far from perfect for police officers, especially the honest ones, who are the keenest to clear their name if any suggestion of improper procedure should be laid against them. When an investigation into alleged misconduct by a police officer is under way, at some stage the officer is entitled to know the details of the allegations against him or her. At present, in effect, three different standards operate. First, where a police officer voluntarily attends to answer PCA questions, he/she need not be told the particulars alleged; they must simply sit there, answer questions and give information without in some cases having the faintest idea what allegations have been made or what the line of questioning is seeking to discover. Secondly, when the SAPOL internal investigation branch requires a police officer to answer questions, section 25(7) provides that he or she must first be informed orally of the particulars of the matter under investigation. Thirdly (and this is the oddity), section 28(8) provides that when the PCA is investigating it must give written notice of the particulars of the matter under investigation.

In her report Mrs Stevens suggested that there should be but one standard, that is, written notice of particulars before all interviews. This is also the view of the Police Association, which lobbied me courteously and efficiently. I find this a difficult decision to make. On the one hand, as the Police Association points out, giving written notice of the allegation would permit a police officer to refer to notes and check what he or she was doing at the time of any alleged incident, thereby ensuring that answers would be accurate. This is important, because when they are required to attend an interview they do not have the benefit of a right to silence: they must answer. I must say in addition to that point, however, that, in any reasonable questioning if the police officer wanted to acquire information to more satisfactorily and fully answer questions, I cannot imagine that that officer would not be given the opportunity to gather that information for a later occasion.

On the other hand, a police officer who has done something wrong should not have notice of 24 hours or more in which to concoct a believable story or persuade others to back up their version. Neither should they have a guaranteed statutory right to such a notice. That sort of thing is not routinely available to other people accused of breaches of discipline in their profession; for example, lawyers under investigation by the Legal Practitioners Conduct Board generally have a complaint published to them as a first step, according to the Law Society Bulletin of September 1999, page 31. However, this is not a statutory right.

In the end I was persuaded by Mr Wainwright that notice of the matter under investigation should be given only at the interview, not before. He believes that if an officer has nothing to hide this is not a burden. Further, he believes this would help him get to the bottom of a matter under investigation, and therefore the Democrats will be supporting this aspect of the government's bill. It is interesting that on ABC radio this morning the minister did not seem to fully understand his own bill, on the basis that he felt that when I was indicating that that was what happened I was attacking the government's position. I hope to clarify that in the near future.

Having said that, there remains one inconsistency in the government's approach in the minister's second reading speech. According to page 70 of the Legislative Council Hansard of 30 September, the minister stated:

When a police officer voluntarily attends to answer the PCA's questions there is no requirement that the officer be given the particulars of the matter under investigation.

Mrs Stevens suggests that it is inequitable that a person who attends voluntarily before the PCA to answer questions does not have to be informed of the particulars of the allegation.

It is quite surprising to me that, having identified this inequity, the government has not addressed it or has not addressed it adequately. It is very unfair on the honest police officer who wishes to cooperate voluntarily with any inquiries that he or she should be under a disadvantage when compared with any other officer who may be summonsed or required to answer questions on demand by either the internal investigation branch or the PCA. I give notice that I will be moving an amendment to address that inequity which has been highlighted by Mrs Stevens and which has obviously been recognised by the government then overlooked in the legislation.

The government has adopted a particular course of action in relation to those who may be the subject of adverse comments or criticism by the Police Complaints Authority. On the one hand the government is seeking to delete from the act section 28(5). This section has effect whenever the authority is making a report which is critical of any person. Before making such findings the PCA must invite the person concerned to make a submission. That does not seem to be an onerous responsibility for the authority, but the government is seeking to delete this requirement.

On the other hand, the government's most recent amendments dated 22 October seek to insert into the bill (and hence into the act at section 36) something which is similar but different in three key respects. The proposed new section 36(5) seeks to tie the authority's tongue more tightly than does current section 28(5). Proposed new section 36(5) requires notice to be given to a person in writing. It requires a submission to be made in writing and not merely orally, and it requires the authority to take into account such a submission which the current section 28(5) does not. Unless all three of these steps are carried out, the authority is gagged: he or she is not to make any critical comment.

In addition, proposed new section 36( 5) applies only where there is no recommendation or determination in relation to a matter under investigation, and hence when there will be no official follow-up. It is at this last stage, when the authority has been unable to pin something on an errant officer sufficient to make it stick, that the authority would now be prevented even from making a comment unless three new steps are fulfilled. The Democrats are not persuaded that this is a change for the better and so we will be supporting the retention of the original section 28(5) and opposing the last subclause in the Government's amendment in respect of new section 36.

Let me say in conclusion how disappointed I am in the government's lacklustre response to the issue of police integrity. After a Clayton's review of process we have a bill which does not begin to address legitimate public concerns about the perceptions of police investigating police. While this bill makes some worthwhile minor changes, it is merely tinkering around the edges. In the interests of the public and thousands of honest, trustworthy and ethical police in South Australia, I urge the government to take this matter much more seriously than it has until now. In the meantime, I indicate that, taking into account the matters to which I have previously alluded, the Democrats will support the second reading of the bill.

See Ian Gilfillan's News Release on this subject: 9 November 1999
Debate on the Bill occurred on 2 May 2000
See Ian Gilfillan's News release after the debate occurred: 2 May 2000