Legislative Council

GOVERNMENT BILL: Police Complaints and Discipline Bill

November 17th, 2016

On the 17th of November 2016, Mark spoke to the Police Complaints and Discipline Bill 2016.

The Hon. M.C. PARNELL: The Greens also believe that reforming the police
complaints system is a worthwhile exercise, but we do have some concerns with the approach that
is being taken. I would say at the outset that I am grateful to the Hon. Andrew McLachlan for his
summary of what the bill achieves and some of the processes that led up to the bill before us. I think
at the heart of this whole matter is something that everyone would agree on, and that is that public
trust in our police force is absolutely critical. Without it, society is in deep trouble.

It is also certainly my view, and I hope it is a common view, that overwhelmingly the trust
that the public has in the police force comes from the exemplary behaviour of the police: their
professionalism and in many difficult situations, their kindness towards the community that they look
after. Unfortunately, what happens in parliament is that often we are legislating for the exception
rather than the rule. I think that the community does in general trust the police. I might, just as an
aside, say that I have not seen one of those surveys lately where they rank different professions
according to trust. My recollection is that members of parliament are around where used car sales
folk are. We are certainly much lower than people in the health professions. I would expect—and I
might do this research later—that police would be up there near the top, in terms of people who are

We do need to legislate for the exception rather than the rule. Things do go wrong in policing,
and when they do go wrong the public demands that there be a system of accountability. I have been
a lawyer for many decades, and it is almost inevitable in that profession that you come across cases
where things go wrong. In very rare cases, it is corruption. In many cases, it is lack of attention to
detail. In other cases, it is the incredible stress of the job that leads people to behave in a less than
responsible manner. We do need to have a system for people to be able to raise complaints where
they believe the police have behaved inappropriately. I will also mention, as an aside, that one of the
main innovations of the last couple of decades that I think has changed this debate a lot is the
introduction of closed circuit television right through our public places, including in police stations and
police cells.

The Hon. P. Malinauskas interjecting:

The Hon. M.C. PARNELL: The minister interjects that the police are carrying cameras with
them on their bodies. That technical innovation I think is a great incentive to those who might not
have otherwise behaved properly to behave properly. Again, it does not have work to do in the vast
majority of cases, but we now have a situation where people's behaviour is witnessed and is

I guess we only need to reflect on what has happened in the United States, where we have
had riots and deaths as a result of people's perception of how the police have treated suspects. The
whole Black Lives Matter campaign was driven by images and recordings of police officers who have
often overstepped the mark. I still find it difficult to believe how many people die in that country
through firearms, whether by criminals in the vast majority of cases, or by being shot by the police.
Nevertheless, that is slightly off the point: we do need to look at the police complaints regime and
have a robust mechanism in which the public can have confidence.

The Lander recommendations provide that the police will still be primarily responsible for
reviewing the conduct of their own, but that that regime will be superimposed with oversight from the
Office for Public Integrity and from ICAC. The fundamental question for us is whether that regime is
good enough. One submission to which I want to refer suggests that it is not. When I say
'submissions', I am referring to submissions that were to the ICAC inquiry back in March 2015.
Relatively few people have written to me in 2016. Certainly we have had submissions from the police
union and one or two others, but the vast bulk of the submissions were made to the Lander inquiry
last year.

The submission I refer to in particular is that of the Aboriginal Legal Rights Movement. That
body probably feels like it is a bit of a broken record, because I have lost count of the number of
submissions I have read where they urge us to go back to the findings of the Royal Commission into
Aboriginal Deaths in Custody. The submission that relates to this police complaints and disciplinary
regime refers us to recommendation No. 226, which specifically relates to police complaints.

I will put that recommendation on the Hansard record; I think it is important. The ALRM must
think that it is like a broken record, but as a community we forget the recommendations of that
important royal commission at our peril, so I will put recommendation No. 226 on the record. That
recommendation reads as follows:

That in all jurisdictions the processes for dealing with complaints against police need to be urgently reviewed.
The Commission recommends that legislation should be based on the following principles:

a.   That complaints against police should be made to, be investigated by or on behalf of and
adjudicated upon by a body or bodies totally independent of Police Services;

b.   That the name of a complainant should remain confidential (except where its disclosure is warranted
in the interests of justice), and it should be a serious offence for a police officer to take any action
against or detrimental to the interest of a person by reason of that person having made a complaint;

c  . That where it is decided by the independent authority to hold a formal hearing of a complaint, that
heating should be in public;

d.   That the complaints body report annually to Parliament;

e.   That in the adjudication of complaints made by or on behalf of Aboriginal persons one member of
the review or adjudication panel should be an Aboriginal person nominated by an appropriate
Aboriginal organisation(s) in the State or Territory in which the complaint arose. The panel should also contain a person nominated by the Police Union or similar body;

f.   That there be no financial cost imposed upon a complainant in the making of a complaint or in the
hearing of the complaint;

g.   That Aboriginal Legal Services be funded to ensure that legal assistance, if required, is available to
any Aboriginal complainant.

h.   That the complaints body take all reasonable steps to employ members of the Aboriginal community
on the staff of the body;

i.   That the investigation of complaints should be undertaken either by appropriately qualified staff
employed by the authority itself, or by police officers who are, for the purpose of and for the duration
of the investigation, under the direction of and answerable to, the head of the independent authority;

j.   That in the course of investigations into complaints, police officers should be legislatively required
to answer questions put to them by the head of the independent authority or any person acting on
her/his behalf but subject to further legislative provisions that any statements made by a police
officer in such circumstances may not be used against him/her in other disciplinary proceedings;

k.   That legislation ensure that the complaints body has access to such files, documents and
information from the Police Services as is required for the purpose of investigating any complaint.

I have put all of those on the record and I think the minister, no doubt, in his head is ticking off, 'Yes,
we have done that—that is in there,' and a number of those things are in there. I am not suggesting
that none of those things are in the current system, but if we go back to the very first one:

'that complaints against police should be made to, be investigated by or on behalf of and adjudicated upon by a body or bodies totally independent of Police Services;'

That is the number one recommendation and that is the one where the Lander recommendations do
not really cut it, according to the ALRM submission. The submission goes on to say:

I commend the detail of this recommendation from the Royal Commission to you. ALRM makes the following
commentary upon the existing Police Complaints & Disciplinary Proceedings Act in light of its expectation that unless there is wholesale amendment to the Act it is unlikely that implementation of [recommendation] 226 a. will be achieved in practice. Nevertheless, ALRM submits recommendation 226a. should be implemented and investigation of Police complaints should be taken wholly from the hands of police and given to an independent body with full powers of investigation and resolution. That is subject to a requirement that cases where judicial determination takes place, that judicial determination should resolve the factual issues in the complaint. ALRM is also concerned to ensure that [recommendation] 226(e) is implemented.

Recommendation 226e. was the one that said that the adjudicating panel should have an Aboriginal
person on it, and ALRM say they are keen to ensure that that recommendation is implemented. It

The continued ability of ALRM to implement 226(g)—

and that is the recommendation about funding for Aboriginal legal aid—

is contingent upon our ability to maintain a high level civil legal practice despite funding cuts. A recommendation should therefore be made, that this not occur.

I am only going to read those parts of the submission—it goes for many, many pages. The point I
make is that there is at least, in that one submission, a fundamental difference of opinion with that
reached by Mr Lander. I look forward to the committee stage of the debate. As we go through the
bill, clause by clause, there will be opportunity to raise a number of the other submissions that were
made to the Lander review. I note, for example, Mr Michael O'Connell, the Commissioner for Victims'
Rights, made an extensive submission. A former police ombudsman made a submission, as did a
great many other organisations. I understand that we are not going to be dealing with the committee
stage of this bill today, so I expect that we will be dealing with it in the last sitting week of parliament.

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