A new body of vital importance to the NSW justice sector -the Law Enforcement Conduct Commission (LECC) – was set up in January following the passage of The Law Enforcement Conduct Commission Act last year. It brings together the oversight and investigative roles of the Police Integrity Commission, the Police Division of the Office of the Ombudsman and the Inspector of the Crime Commission into a single civilian body to oversight police operations. It has royal commission type powers in some contexts. Its oversight powers relate to the NSW Police Force and the NSW Crimes Commission.
It is the latest outcome from the long (and unfinished) campaign to achieve effective independent oversight of NSW Police operations and was largely shaped by the recommendations of the 2015 Tink Report. There are grounds to expect this body will significantly improve some aspects of police oversight and accountability but there are gaps and weaknesses in its structure which do not augur well for the much needed reform of police culture in critical areas and may undermine its overall effectiveness.
Police critical incidents
The major flaw from CCL’s perspective is that the investigation of police critical incidents (eg death or serious harm to a person during a police operation) will still be conducted by the police themselves and not the Commission. This has long been a central concern for CCL. Police investigating police critical incidents is inherently flawed and has too often resulted in unwarranted findings of no police misconduct or negligence. Public confidence in the credibility of these investigations is low.
CCL’s main recommendation relating to police critical incidents was for ‘a shift to a system which ensures stronger accountability and transparency and an end to ‘police investigating police’ in relation to critical incidents and serious misconduct’. While recognising there were problems with the process, Tink recommended police continue to investigate police critical incidents - largely on the basis of logistics and the availability of relevant forensic skills .
The Commission does have a stronger oversight capacity than the Ombudsman had. It will have real-time access to information about critical incidents and improved monitoring capacity in relation to the police investigation. But the oversight capacity is seriously weakened by a totally unnecessary restriction that the Commission can only observe critical incident interviews with “the consent of the person being interviewed and the senior critical incident investigator”. This extraordinary restriction on access to the key interviews in an investigation originated from the Government – it was not recommended by Tink. Both the ALP and Greens tried unsuccessfully to have it removed.
On other fronts it is a pity that the Government-despite its public commitment to implement all of Tink’s recommendations- failed to do so in some important areas.
The Ombudsman has pointed out that the new arrangements will ‘diminish rather than strengthen’ oversight of the complaints function previously available to him under Part A of the Police Act. The Commission’s investigative power is restricted to ‘serious’ misconduct or maladministration. It will therefore no longer be able to conduct important investigations into matters that do not fit the ‘serious’ category but may still be criminal activity. Nor will it be able to conduct important ‘public interest’ investigations such as such as the Ombudsman’s major and revelatory investigation into the use of tasers by police in 2012.
Both the ALP and the Greens proposed sensible amendments to the legislation which would have remedied some of these weaknesses in the Bill – but the Government was in no mood for negotiation and rejected all of them. (Only some minor amendments moved by Fred Nile for the Christian Democrats were accepted by the Government.)
CCL shares the Ombudsman’s concern that these and other restrictions on the Commission's oversight and investigative functions will undermine its capacity to be a driver for significant reform of day to day police culture in relation to the investigation of complaints ans critical incidents.
Fighting police corruption in NSW
CCL was cautious about the inclusion of serious police corruption issues within the ambit of the new Commission. We shared the concerns of Commissioner Woods that the weight of the complaints function could swamp and possibly compromise the anti-corruption function. On balance, we indicated a preference for investigation of serious police corruption to be the responsibility of a strengthened PIC or reintegrated into a reinvigorated ICAC. Tink and the Government however opted for its integration into the new Commission - with some safeguards to address these concerns.
It is clearly an imperative that the capacity for effective and independent investigation of police corruption be strengthened rather than diminished in NSW. Developments on this front will be closely monitored by CCL.
The Commission is not yet fully operational. There have been press reports that a Supreme Court Judge (Justice Michael Adams) has been nominated for the Chief Commissioner’s role. This has not yet been confirmed but Justice Adam’s wide-ranging legal background, including a stint as chair of the NSW Law Reform Commission, would indicate he is a well qualified appointment.
This will be a significant year for the Justice portfolio in NSW. It begins with a significant positive: the reversal by the new Premier Gladys Berejiklian of the disturbing Justice portfolio arrangements under her predecessor which bizarrely subjugated the Attorney-General to the Police Minister.
Hopefully the new Government will actively support the Law Enforcement Conduct Commission so it can be a positive driver of improved police culture in NSW and, if problems are identified with its powers and resources, be willing to amend the legislation or the budget appropriately.
NSWCCL will be one of many bodies watching the operation of the Commission to see if it can deliver significant reform and effective independent oversight of the Police Force and the Crimes Commission.
Dr Lesley Lynch
NSWCCL submission to Tink Inquiry