Recommendation 14–2 To provide Aboriginal and Torres Strait Islander people and communities with greater confidence in the integrity of police complaints handling processes, Commonwealth, state and territory governments should review their police complaints handling mechanisms to ensure greater practical independence, accountability and transparency of investigations.
14.48 The ALRC recognises that a number of jurisdictions have recently reviewed or amended their complaints handling mechanisms, including most recently in SA and NSW. There is also currently a Parliamentary Inquiry into the Independent Broad-Based Anti-Corruption Commission (IBAC) in Victoria.
14.49 Notwithstanding these improvements, the ALRC considers that the particular concerns raised by Aboriginal and Torres Strait Islander people throughout this Inquiry suggests that further reforms to police complaint handling is required. Those concerns have previously been explained by the Victorian Aboriginal Legal Service in the following terms:
Low substantiation rates [of complaints] and poor communication with complainants, combined with concerns about lack of independence where police are investigating complaints against police, continue to undermine community confidence in the complaints process. This in turn leads to lower rates of complaints, which means that police are not being held to account for their actions, and there is less opportunity for Victoria Police to learn from its mistakes and improve its relationship with Aboriginal and Torres Strait Islander communities into the future.
14.50 The ALRC recommends a review in each jurisdiction of police complaints handling mechanisms. This review must specifically focus on how to improve the perception held by Aboriginal and Torres Strait Islander people regarding police accountability for misconduct. The review should also address concerns that when Aboriginal and Torres Strait Islander people complain about police conduct those complaints are not properly addressed and investigated. Finally, the review should address specific concerns by Aboriginal and Torres Strait Islander people that when they are the victims of crime that crime is not properly investigated.
14.51 In 1996, the ALRC considered police accountability mechanisms and specifically considered a model for complaints mechanisms for the Australian Federal Police (AFP) and the then National Crime Authority (NCA). The ALRC noted that:
Complaints and disciplinary systems are to give support to the overall objectives of law enforcement agencies, namely that there is effective and efficient law enforcement and that law enforcement powers are exercised according to law. Law enforcement agencies should be professional, effectively managed, vigilant against corruption and misconduct and publicly accountable. Powers should be exercised with respect for human rights and with regard to the appropriate balance between civil liberties and effective law enforcement. Complaints and discipline are integral parts of law enforcement accountability. They are as essential to the notion of ‘good’ policing as they are to preventing police malpractice and abuse of authority.
14.52 In that Inquiry, the ALRC explained that, in crafting its recommendations, it sought ‘an appropriate mix between internal and external responsibilities in both the AFP and NCA complaints and disciplinary systems.’ That balance was intended to maintain appropriate managerial responsibility while ensuring that, where appropriate, complaints and disciplinary systems had sufficient independence to be rigorous and fair. A key principle of the ALRC’s Inquiry was designing a complaints mechanism that provided for both public confidence in the mechanism itself and the agencies more broadly.
14.53 Effective and accessible police complaints handling mechanisms increase police accountability in a number of ways by providing:
- scrutiny of police conduct and powers;
- a sense of being heard for people who experience police conduct they perceive as inappropriate, unfair or unlawful; and
- consequences for inappropriate or unlawful police conduct.
14.54 In addition, police complaint handling mechanisms provide an avenue for the review and reform of systemic failures and biases in policing practices—including those relating to the use of powers to detain, search, arrest, use force, enter private premises and seize property. On this point, the Police Accountability Project—a project of the Victorian Flemington & Kensington Community Legal Centre—noted:
Police are granted powers by the state and it is the state’s responsibility to ensure that these powers are not abused. Police must be fully accountable for their every action when interacting with citizens.
The use of force, or the use of coercive and invasive powers, are a routine part of a police member’s job. Police are provided with weapons including guns, Tasers, OC (pepper) spray and batons. Police arrest, detain, stop, question and search people, their cars and homes, all of which impacts on fundamental human rights and freedoms.
… Complaints are an opportunity for positive reform. Most people who spend the time and effort it takes to make a formal complaint provide a benefit to the community. Complaints from the public allow the detection, investigation, disciplining and prosecuting of police members who have engaged in misconduct. When a person takes the time and effort to lodge a formal complaint, they create an opportunity for the reform of systemic failures in police practices.
14.55 Generally, research on police accountability differentiates between ‘oversight’ mechanisms which involve an external agency or body reviewing and potentially investigating police complaints, and internal mechanisms within a police service for addressing complaints and investigating misconduct which maintain institutional and management authority. As set out in Table 14.1, most jurisdictions in Australia have a mix of both internal and external mechanisms for dealing with complaints.
Table 14.1 Police complaints handling bodies in Australia
AFP Professional Standards
Commonwealth Ombudsman and the Australian Commission for Law Enforcement Integrity which focuses on serious and systemic corruption
Police Standards Command—Primarily managed by the relevant local police station
Law Enforcement Conduct Commission—focused on serious misconduct or serious maladministration
Police Standards Command
Ethical Standards Command
Crime and Corruption Commission—deals with corrupt conduct and police misconduct. Does not deal with customer service and minor breaches of conduct
Internal Investigations Section
Office for Public Integrity, Independent Commissioner Against Corruption (for issues of corruption or serious or systemic misconduct or maladministration)
Ombudsman Tasmania and Integrity Commission which deals with complaints about misconduct by police officers
Professional Standards Command
Independent Broad-Based Anti-Corruption Commission—serious corruption and police misconduct
Corruption and Crime Commission deals with serious misconduct (which includes all police misconduct)
Inadequacy of existing complaints handling mechanisms
14.56 The RCIADIC identified that a lack of police accountability undermines the relationship between Aboriginal and Torres Strait Islander peoples, communities and the police. While in the intervening 26 years the police have undertaken work to improve relationships with Aboriginal and Torres Strait Islander peoples and communities, a perception of lack of accountability for wrong doing continues to undermine confidence and trust in police. The RCIADIC recommendation on police complaints set out the key principles that should guide the design and implementation of police complaints mechanisms, rather than providing a specific model. Key features of the RCIADIC report remain relevant today including:
- the need for investigation into police conduct to be independent of police;
- that there be transparency throughout the investigation; and
- the need for formal support for complainants, including legal assistance.
14.57 The RLC provided a number of case studies that it suggested highlight the inadequacy of existing complaints mechanisms:
Case Study: Andrew part 3
RLC submitted a formal complaint on behalf of Andrew requesting that the officer involved in multiple stop/search incidents be the subject of non-reviewable action per Sch 1 of the Police Act 1990 (NSW), in order to remedy the issues in his understanding of proper police practice and allow him to effectively contribute to community policing. The LAC [Local Area Command] investigated the complaint but determined that the evidence did not sustain any of the behaviour complained of.
Case Study: Bill
Bill was arrested by police in respect of multiple criminal offences. During his arrest, police used excessive force in restraining him which was captured on in-car-video. Bill didn’t raise the excessive force in his criminal proceedings as it was not relevant to the substantive charges. After his criminal proceedings were finalised, Bill made a complaint about the excessive force used by police during his arrest. Despite there being independent evidence of excessive force, police declined to investigate on the basis that Bill had “an alternate means of redress”, being his criminal proceedings.
Case Study: Melissa part 2
Following the Magistrate’s findings in relation to the conduct of police, NSW Police conducted an internal investigation. NSW Police agreed with the Magistrate’s finding and recommended retraining in restraint techniques for the officer involved. RLC made a complaint on behalf of Melissa’s mother raising further issues that were not considered in the internal investigation such as the decision by police to bring charges against Melissa, the delay in bringing those charges and problems with the evidence given. NSW Police took more than 19 months to release their decision. Although some of the other issues were acknowledged, NSW Police failed to respond to all of the issues raised and no further disciplinary action was recommended. 
14.58 Aboriginal Legal Service Western Australia (ALSWA) submitted a number of case studies including:
Case Example Y
ALSWA represented Y, a 14-year-old Aboriginal boy from a remote town in relation to a complaint about how the police treated him. Y and a number of his cousins went for a ride in their aunt’s car. Y was a passenger and the driver did not hold a licence. A police car started following them. The driver kept driving. The driver then panicked and veered off the road to try to go onto a back, dirt road but the car became stuck in a ditch. The boys all got out of the car and started running.
The police officers caught Y and two others. Y instructed ALSWA that the officers told them to ‘Get down’. He got down and he could feel the officer aiming a gun on the back of his neck. The male officer then said ‘Stop crawling away or I’ll shoot you with the gun’. Another boy heard the officers say ‘Shut up motherfuckers. Get on the ground motherfuckers. Hey don’t move or we’ll shoot you with the gun. Shut up—you want to die?’
This boy said the police officers tackled him to the ground and hit him in the face and ribs. They then kicked him in the ribs. They also hit him on the leg with a baton.
ALSWA submitted a complaint about this conduct to the Western Australia Police Internal Affairs Unit who subsequently performed an investigation. The Western Australia Police interviewed Y and one other boy on one occasion; however, other boys were not interviewed due to difficulties in attending the remote locations. ALSWA is of the view that this client’s complaint was adversely affected by his and his cousins’ remoteness and the difficulties he had with engaging with police officers.
The Western Australian Police investigation “established insufficient evidence to sustain any criminal conduct on the part of any police officer or any breaches of Western Australia Police policy.”
This response is the standard response that ALSWA receives to the majority of its serious complaint … It is clear that police investigating police is neither effective nor procedurally fair. Invariably, if ALSWA makes a complaint to the Western Australian Corruption and Crime Commission (CCC) about police conduct, the CCC refers the complaint back to Western Australia Police internal investigations. ALSWA has requested in some cases for the CCC to conduct its own independent investigation; however, the typical response is that the CCC has ‘refocussed its efforts’ and now oversees fewer investigations.
14.59 These case studies are consistent with a number of submissions to this Inquiry that expressed the view that current police complaints handling mechanisms are inadequate because of:
- a perceived lack of impartiality of the police complaints processes;
- low substantiation rates when complaints are made;
- police being able to influence complaint processes;
- undue or arbitrary time limits for the making of complaints;
- powers given to independent police complaints bodies being too narrow; and
- independent police complaints bodies too frequently referring complaints back to police instead of conducting an external review.
Lack of independence
14.60 A key concern raised in relation to police complaints during this Inquiry was a lack of independence, that is, the involvement of the police in reviewing and investigating a complaint about police. As noted by the Independent Commissioner Against Corruption South Australia (ICAC SA): ‘Historically, police forces have been in charge of handling complaints about police. There are many recorded instances in other jurisdictions of inadequate investigations and even intimidation of those who wish to lodge a complaint.’
14.61 It has been argued argues that true independence cannot be satisfied by the system utilised in all Australian jurisdictions of internal investigations by police which are supervised or reviewed by an independent authority. A number of submissions supported this view. National Aboriginal and Torres Strait Islander Legal Service (NATSILS) argued:
Current practices of allowing other police officers from the same agency to investigate claims is insufficient, as it leads to obvious biases and inadequate outcomes for Aboriginal and Torres Strait Islander people bringing complaints. Currently there is no system for independent and impartial investigations in Australia, meaning that mistreatment of Aboriginal and Torres Strait Islander people in the criminal justice system is not properly addressed.
14.62 Aboriginal Peak Organisations NT (APO NT) submitted that there needs to be a process ‘established for investigation and complaints of Police that is independent of Police and autonomous and has the necessary powers to perform its functions. Aboriginal people must be involved in this structure, including in key and leading roles.’
14.63 Kingsford Legal Centre (KLC) identified a lack of independent police complaint mechanism in NSW for less serious complaints as disproportionately impacting on Aboriginal and Torres Strait Islander peoples:
In NSW, less serious police complaints are dealt with internally, by the Local Area Command which conducts the investigation and is monitored by the Police Commissioner’s staff. The lack of an independent investigation means that less serious complaints have the potential to not be adequately dealt with, with investigations often finding that the complaint is not sustained. If a complainant wants to view information held by police in relation to the complaint, they are often required to make an application under the Government Information (Public Access) Act 2009 (NSW) and this can be a very time-consuming process. It is imperative that the current mechanisms in place for the investigation of police complaints be reviewed and undergo reform to ensure due process, efficiency and effective remedies.
14.64 North Australian Aboriginal Justice Agency (NAAJA) identified a number of issues with the Ombudsman Act (NT), which provides the ‘main formal mechanism’ to bring complaints against police in the NT. The Act sets out a three-tiered process for the way a police complaint is to be handled, based on a triage process, which provides ‘who should investigate a complaint and the processes and level of formality which is to be applied to the investigation’. NAAJA raised concerns that complaints were not being categorised appropriately at the initial assessment stage and as a result certain complaints were not investigated appropriately and with sufficient independence.
Independent investigation of deaths in custody
14.65 Many of the issues raised above in relation to complaints against police are relevant in the context of any death in police custody. The Human Rights Law Centre submitted that: ‘Relations between Aboriginal and Torres Strait Islander people and police could be improved if allegations of police misconduct and deaths in custody were independently investigated.’
14.66 In 2014–15 there were a total of 11 deaths in police custody. Five of those deaths were Aboriginal and Torres Strait Islander people. The most recent figures from the AIC suggest that most deaths in custody are due to natural causes. Unlawful homicides are a small proportion of deaths in custody. Fortunately, in Australia, deaths in custody are not common. Nevertheless, the circumstances of those deaths and how they are investigated are critical for maintaining public confidence in police, particularly among Aboriginal and Torres Strait Islander peoples. The then Office of Police Integrity in Victoria explained that: ‘It is important that the investigation of a death associated with police contact is conducted in such a way as to give the public confidence that the circumstances surrounding the death will be subject to the highest levels of scrutiny.’
14.67 The RCIADIC made a total of 35 recommendations for the reform of custody investigations and coronial inquiries in the event of an Aboriginal and Torres Strait Islander person dying in custody. Following the RCIADIC, all states and territories have made reforms to their coronial system, though there is no uniform approach to suspicious deaths generally and death in police custody specifically.
14.68 Importantly, coronial processes ensure there is independent judicial oversight of all deaths in custody and coroners have full judicial powers to summons and question witnesses. Nevertheless, police retain an important role and generally have primary carriage of the initial fact finding investigation when there is a death in police custody. For example, in Victoria it is the police who have responsibility for preparing a brief of evidence for the Coroner.
14.69 As a result, there are ongoing concerns about police investigating police following a death in custody. The Office of Police Integrity in Victoria conducted a review of the investigative process following a death associated with police in Victoria and explained that:
Although some consider police to have the most relevant investigative expertise and a greater capacity to respond in a timely fashion, others question the independence and impartiality of police in conducting such investigations.
Some of those who contributed to this Review expressed concerns that Victoria Police has a conflict of interest in the outcome of the investigation. They say the police ‘search for the truth’ may conflict with their interest in protecting the reputation of Victoria Police and safeguarding legal or financial liability that may arise if a person is wronged by the actions of police. Concerns were also raised regarding a culture of loyalty and empathy within police services, in which members ‘look out for one another’
14.70 The Human Rights Law Centre submitted that:
No Australian jurisdiction has established a system for completely independent investigations of deaths in police custody or of allegations of torture and mistreatment. Complaints against police officers are primarily investigated by other police officers. Queensland has implemented a model which more directly involves the State Coroner. However, this remains far from being a fully impartial investigation by a body independent to the police, in line with international standards.
14.71 In terms of specific reforms, the Human Rights Law Centre submitted that:
Each state and territory should establish an independent body for investigating deaths in police custody and complaints against police. Such a body should be hierarchically, institutionally and practically independent of the police and have features to ensure that investigations are comprehensive, prompt, subject to public scrutiny and, in the case of deaths in custody, involve the family of the deceased.
14.72 There are a range of international models that could be drawn upon to establish functional independence from the police for the conduct of investigating deaths in police custody. For example:
- Independent Police Conduct Authority in New Zealand;
- Independent Police Complaints Commission in England and Wales;
- Police Ombudsman for Northern Ireland;
- Garda Síochána Ombudsman in the Republic of Ireland; and
- Special Investigations Unit in Ontario, Canada.
14.73 In New Zealand, the Independent Police Conduct Authority has statutory independence from police, is led by a District Court Judge and has a team of independent investigators who have a range of investigative powers similar to police. Under the Independent Police Conduct Authority Act 1988 (NZ) the Authority will investigate, independently of police, an incident involving a death that may have been caused by a police officer in the execution of their duty where it is in the public interest for the authority to conduct the investigation. This model avoids the conflict of police investigating police and potentially improves perceptions of police accountability.
14.74 In the Republic of Ireland, the Garda Síochána Ombudsman Commission (GSOC) is responsible for conducting investigations in circumstances where it appears that the conduct of a garda (police) may have resulted in the death of, or serious harm to, a person. The GSOC was established by the Garda Síochána Act 2005 (Republic of Ireland) and ensures independent investigation.
14.75 In Northern Ireland, the Office of the Police Ombudsman in Northern Ireland provides independent, impartial, civilian oversight of policing. The Ombudsman is a statutory body that is financially and institutionally independent of the police. The Ombudsman is responsible for investigating deaths after police contact and deaths in custody. Officers of the Ombudsman can be appointed to investigate such deaths with the same powers as are available to the police. The Office can recommend prosecution of a police officer to the Director of Public Prosecutions.
14.76 In the province of Ontario, Canada, the Special Investigations Unit (SIU) is an independent civilian agency with the power to both investigate and charge police officers with a criminal offence. The SIU was created by the Police Services Act 1990 (Ontario, Canada). The director of the SIU can investigate the circumstances of serious injuries and deaths that may have resulted from criminal offences committed by police officers. SIU investigators may be former police officers but may not investigate their former force.
14.77 The ALRC suggests that these international models should be reviewed and considered as part of reforms to police complaints handling mechanism in Australia.
Police Complaints and Discipline Act 2016 (SA), Independent Commissioner Against Corruption Act 2012 (SA), Law Enforcement Conduct Commission Act 2016 (NSW).
See Independent Broad-based Anti-corruption Commission Committee, Inquiry into the external oversight of police corruption and misconduct in Victoria, (6 September 2017) Parliament of Victoria <https://www.parliament.vic.gov.au/ibacc/inquiries/article/3799>.
Victorian Aboriginal Legal Service, Submission No 46 to Independent Broadbased Anti-Corruption Commission Committee, Parliament of Victoria, Inquiry into the External Oversight of Police Corruption and Misconduct in Victoria (15 September 2017) 7
Australian Law Reform Commission, Integrity: But Not by Trust Alone: AFP & NCA Complaints and Disciplinary Systems, ALRC Report No 82, (1996) [2.2].
Tim Prenzler and Louise Porter, ‘Improving Police Behaviour and Police-Community Relations through Innovative Responses to Complaints’ in Stuart Lister and Michael Rowe (eds), Accountability of Policing (Routledge, 2015) 49.
Independent Broad-Based Anti-Corruption Commission (Vic), Audit of Victoria Police Complaints Handling Systems at Regional Level (2016) 7.
Police Accountability Project, Independent Investigation of Complaints against the Police: Policy Briefing Paper (2017) 4–5.
Australian Law Reform Commission, Integrity: But Not by Trust Alone: AFP & NCA Complaints and Disciplinary Systems, ALRC Report No 82, (1996) [2.32].
Australian Federal Police Act 1979 (Cth) pt V; Ombudsman Act 1976 (Cth); Law Enforcement Integrity Commission 2006 (Cth) ss5-7.
Police Act 1990 (NSW) pt 8A; Law Enforcement Conduct Commission Act 2016 (NSW). In addition to this the NSW Ombudsman has powers under the Ombudsman Act 1974 (NSW) pt 3A and 3C in relation to abuse of children and persons with a disability that cover police.
Police Administration Act (NT) pt II div 6; Ombudsman Act (NT) pt 7.
Police Service Administration Act 1990 (Qld) Pt 7; Crime and Corruption Act 2001 (Qld).
Police Complaints and Discipline Act 2016 (SA); Independent Commissioner Against Corruption Act 2012 (SA).
Police Service Act 2003 (Tas) pt 3; Ombudsman Act 1978 (Tas); Integrity Commission Act 2009 (Tas).
Victoria Police Act 2013 (Vic) pt 9 div 2; Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic).
Police Act 1892 (WA) s 23; Corruption, Crime and Misconduct Act 2003 (WA).
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 2.
Amnesty International and Clayton Utz, Review of the Implementation of RCIADIC – May 2015 (2015) 162–184.
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 4 ch 28.5.
Redfern Legal Centre, Submission 79.
Aboriginal Legal Service of Western Australia, Submission 74.
Sisters Inside, Submission 119; North Australian Aboriginal Justice Agency, Submission 113; Aboriginal Peak Organisations (NT), Submission 117; National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Community Legal Centres NSW and the Community Legal Centres NSW Aboriginal Advisory Group, Submission 95; Aboriginal Legal Service of Western Australia, Submission 74; Redfern Legal Centre, Submission 79; Human Rights Law Centre, Submission 68; Caxton Legal Centre, Submission 47; Kingsford Legal Centre, Submission 19.
Independent Commissioner Against Corruption South Australia, Review of Legislative Schemes: The Oversight and Management of Complaints about Police (2015) 24.
Tamar Hopkins, An Effective System for Investigating Complaints Against Police: A Study of Human Rights Compliance in Police Complaint Models in the US, Canada, UK, Northern Ireland and Australia (Victorian Law Foundation, 2009) 23, 34–5.
National Aboriginal and Torres Strait Islander Legal Services, Submission 109.
Aboriginal Peak Organisations (NT), Submission 117.
Kingsford Legal Centre, Submission 19.
Ombudsman Act (NT) ss 78, 80, 86.
North Australian Aboriginal Justice Agency, Submission 113.
Human Rights Law Centre, Submission 68.
Productivity Commission, above n 5, 6.13.
Productivity Commission, above n 5. Deaths in custody represent a relatively small proportion of those who die as a result of contact with police. Deaths while attempting to detain have been the most common category associated with police custody and custody-related operations deaths since 1989–90, accounting for 73 percent of deaths. See Ashleigh Baker and Tracy Cussen, ‘Deaths in Custody in Australia: National Deaths in Custody Program 2011–12 and 2012–13’ (Monitoring Report No 26, Australian Institute of Criminology, 2015).
Baker and Cussen, above n 84.
Office of Police Integrity, Review of the Investigative Process Following a Death Associated with Police Contact (2011) 8.
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 2.
Amnesty International and Clayton Utz, above n 68, 25.
Chief Justice Wayne Martin, ‘The Coronial Jurisdiction: Lessons for Living’ (Speech, 2016 Asia Pacific Coroners Society Conference, Perth, 9 November 2016) 9.
Coroners Court of Victoria, The Coroners Process (2013) 22. In Queensland, the Crime and Corruption Commission is informed of all police-related deaths and may attend an incident if there is concern about the public interest. See Crime and Corruption Commission Queensland, Annual Report 2014-15 (2015) 23.
Coroners Court of Victoria, above n 90, 22.
Office of Police Integrity, above n 86, 13.
Human Rights Law Centre, Submission 68.
Independent Police Conduct Authority Act 1988 (NZ).
Police Reform Act 2002 (UK) c 30.
Police (Northern Ireland) Act 1998 (UK) c32.
Garda Síochána Act 2005 (Republic of Ireland).
Police Services Act 1990 (Ontario, Canada).
Independent Police Conduct Authority, Annual Report 2015–2016 (2016) 7.
Garda Síochána Act 2005 (Republic of Ireland).
Police Ombudsman for Northern Ireland, Annual Report and Accounts for the year ended 31 March 2017 (2017).
Special Investigations Unit, Annual Report 2016-2017 (2017).