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17 Nov 2016

Police Complaints and Discipline Bill

The Hon. A.L. McLACHLAN ( 17:20 ): I rise to speak to the Police Complaints and Discipline Bill 2016. I speak on behalf of my Liberal colleagues. The Liberal opposition is supporting the second reading of the bill. The bill before the chamber seeks to amend the way in which complaints about police officers and disciplinary proceedings are handled in South Australia. The Liberal Party understands, on advice from the government, that there has been consultation with interested parties and, further, that the Office of the Independent Commissioner against Corruption (ICAC) and South Australia Police are largely content with the proposed legislation.

This legislation comes after three reports that exposed difficulties in the operation of the current system in South Australia to examine and determine police complaints. The first was the South Australian Police Ombudsman annual report of 2013-14 by Ms Sarah Bolt. In that report, it was apparent that the relationship between the Office of the Police Ombudsman, ICAC and the Office for Public Integrity needed to improve.

Secondly, in March 2015, the Crime and Public Integrity Policy Committee (of which I am a member) heard evidence from Mr Wayne Lines. He outlined that legislative change is required to overcome duplication and inefficiencies within the system. The committee reported on 30 June 2015. Thirdly, in July 2015, Commissioner Bruce Lander QC tabled a report in parliament entitled, ‘Review of legislative schemes: The oversight and management of complaints about police’. Lander’s review was conducted at the request of the Attorney-General in the other place.

The bill before the chamber is the government’s response to the Lander review. It was introduced on 6 July by the Attorney-General in the other place. I must acknowledge the work of the shadow attorney-general (member for Bragg in the other place) who previously introduced a private member’s bill, namely, the Police Complaints Bill 2016, which sought to effect similar changes to the law. The member for Bragg has indicated that she will withdraw her private member’s bill with the passage through the parliament of the bill before us.

We are therefore in agreement with the government that the recommendations of Commissioner Lander should be adopted in this instance. The work of the police officer is hard and can, at times, be dangerous. I admire the men and women who volunteer to serve the people of South Australia. They have my gratitude. However, no organisation that has individuals in its service can claim to be perfect. There are instances where individual officers stray from the ethical path. Thankfully, in this state, their number is relatively few.

This is not to suggest that we should tolerate any deviation from the high standards our community expects from its police force. Unfortunately, it is the way of things that some in our community focus on the odd failure and not on the many successes. I am reminded of the oft-quoted passage of lord chancellor Sir Thomas More in his famous defence of the English clergy in pre-Reformation England. He said:

Where we see a good man and hear or see a good thing, there we take little heed. But when we see once an evil deed, thereon we gape, thereof we talk and feed ourself all day with the filthy delight of evil communication. Let a good man preach, a short tale shall serve us thereof, and we shall neither much regard his exhortation nor his good example. But let a lewd friar be taken with a wench, we will jest and rail upon the whole order all the year after and say, ‘Lo what [an] example they give us.’

We must resist this urge but, at the same time, provide for a legislative regime that will process police complaints in an effective and efficient manner for both the complainant and the accused, thereby ensuring that the public retains its confidence in its police force. Constant vigilance is also required to ward against corruption and misconduct taking hold in the police force as we have seen in other states to the east.

The foundation logic of these amendments upon which the clauses of the bill have been built is that the processing of complaints against police must be independent. It is my view that police complaints and public reporting of them is critical not just for ensuring the ethical health of the police, but is also a valuable tool for the minister and the police executive to ensure a degree of self-regulation and a key management tool to improve responsiveness.

Those interested in these matters should have regard to the academic work of Mr Andrew Goldsmith. Mr Goldsmith argues that police complaints should be seen as an opportunity for its leadership to self-correct. From my observation of the current police executive, it is not apparent they have adopted this approach. A casual reading of the commissioner’s responses to the Police Ombudsman’s recommendations gives an indication of diffidence and reluctance to admit improvements in the force as a whole could be improved.

Perhaps I am being unfair, but I point out to the chamber that we have Commissioner Lander to thank for kickstarting this debate, not the police executive. Mr Goldsmith, in a paper titled ‘Complaints against the police: a “community policing” perspective’ states:

…a broadly-conceived, publicly credible complaints system for handling complaints against the police is important not only in terms of public confidence in the police generally but also specifically in facilitating the diagnosis of problems in police operations which affect the effectiveness and legitimacy of police practices.

I believe this is a considered view and, holding that view, I consider that the bill before us is an advance on where we are presently encamped. While South Australia has enjoyed an excellent police force since its inception in the early days of the colony, it must not be complacent. Public attitudes to its police force have changed over time. For example, the police response to the conscription protests and homosexuality as well as the Salisbury affair have impacted the community’s perceptions.

South Australia was the last state to adopt a system of civilian oversight of its police force. It appears that it was largely driven by experiences interstate. The system we adopted was one that allowed for external monitoring of internal investigations rather than for an independent investigation. This proposition has been tested and endorsed by Commissioner Lander but with modification. He came to the view that police should remain investigating police but subject to appropriate and rigorous safeguards in the form of a strong and independent oversight agency capable of overseeing, directing and intervening in police conduct matters. Commissioner Lander crafted his recommendations accordingly.

South Australia Police will retain primary responsibility for the assessment of complaints and reports about police, but the process will be subject to scrutiny because police will be reviewing police. Members of the council should be mindful that if the arrangements in the bill once enacted prove ineffective, then parliament will need to revisit whether an independent investigative service is required. Going forward, this will in turn rest largely with the police executive and their leadership in maintaining and improving the integrity and ethical practices of its officers as well as building community trust and confidence.

In essence, the commissioner is expected to lead and ensure the effectiveness of the police force. An essential part of ensuring effectiveness is the maintenance of discipline. Under the new legislation, the commissioner still plays a critical and important role and importantly retains the ability to deal with minor matters. The changes seek to effect a more simple and efficient system that serve both the complainant and the accused with necessary independent oversight. If the bill provides for a system that is an improvement on the past, it will have resolved unnecessary complexity, duplication and delay.

The bill repeals the Police (Complaints and Disciplinary Proceedings) Act 1985. The bill seeks to achieve these objectives by introducing the following amendments. The Office of the Police Ombudsman will be abolished. The Office for Public Integrity will have general oversight of the police complaint system. A streamlined complaint system will be established in which South Australia Police retain primary responsibility for the assessment of complaints and reports about police, with independent oversight by the Office for Public Integrity instead of the ombudsman.

The Office for Public Integrity will have 24-hour access to a complaints management system to remove duplication and increase efficiency and ensure the resolution of a complaint is appropriate and audited. The ICAC will provide an annual report on the types of sanctions imposed at the outcome of the complaints process. The Office for Public Integrity will continue to refer matters to the ICAC where appropriate.

A code of conduct for police officers will be established by regulation. The bill establishes an informal process for dealing with complaints about police conduct that are minor and suited to being dealt with internally. This will provide a more suitable avenue for resolution of minor matters that do not warrant formal proceedings being heard before the tribunal.

The outcomes of the internal management cases will be subject to audits by ICAC. Proceedings heard and determined by the Police Disciplinary Tribunal remain largely unchanged, except for provisions regarding the use of evidential aids. The ICAC is required to prepare an annual report regarding the number and general nature of sanctions imposed under the act. The public is entitled to expect that every police officer will observe the highest standards of integrity. The public is also entitled to expect that the state will enact a system to identify and deal effectively with police officers who fail to meet the standards of propriety expected.

The bill is welcomed by the Liberal opposition, as it seeks to adopt the recommendations of Commissioner Lander. While the review of Commissioner Lander was comprehensive and considered, the chamber must remember that it is the view of one man at a moment in time. We must remain ever vigilant to ensure that we have in this state the appropriate mechanisms in place to ensure the integrity of action in our police force. Commissioner Lander’s review and this bill must not be the end of the debate; rather they should just be a point on the continuum of consideration of these issues.

Civilian oversight of the police should remain, as always, a live issue for those of us who have the franchise of the people. In time, the expected practice may well be an independent investigative service as well as an independent board overseeing police operation. I am confident that Commissioner Lander’s pronouncements on the oversight of police will not be the last word on the same. The Latin phrase ‘Quis custodiet ipsos custodes?’, penned by the Roman poet Juvenal and literally translated as ‘Who will guard the guards themselves?’, should remain front of mind.

In a perfect Socratic world, all of us would be ruled by divine reason. Unfortunately, the practical reality of our society differs. We need a police force and we need a system to investigate our police and a mechanism to discipline them. I commend the bill to the chamber.

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