Police Complaints and Discipline Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 October 2016.)

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.

The Hon. M.C. PARNELL (17:31): 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 trusted.

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 recorded.

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 continues:

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.

The Hon. R.L. BROKENSHIRE (17:44): I rise on behalf of Family First to speak to the Police Complaints and Discipline Bill. To pick up a point from my colleague the Hon. Mark Parnell, whilst the Notice Paper today did show an arrow indicating that this bill was going through, following discussions and phone calls, that will not be the case, and I am very pleased about that.

I put on the public record that if the government did indicate, through its advisers, to the opposition, that everything was okay and ready to proceed, then I trust that the government has since indicated to the opposition, and, if not, I certainly am right now, that it is not all okay. I think there should have been better communication between advisers of the minister. I do not blame the minister at all, the Attorney-General in this case—he does a pretty good job with his workload. Certainly, we were not in a position to proceed anywhere past the second reading, at best. In fact, I was waiting on further consultation with interested sectors, prior to consideration of amendments to this bill, and I hope that the government will proceed with openness and some haste now to try to work through some of the concerns that are still there.

I acknowledge that the Attorney-General's staff and the Attorney-General have worked with the Police Association to come up with compromises and amendments, that were tabled in the lower house, to overcome some of the concerns of the Police Association. I foreshadow that, if the government is not in a position where they have ratified a reasonable outcome with the Police Association prior to the next sitting week, then I will be endeavouring to look at amendments to bring into this house, and I will try to get them in as soon as possible to give the government, the opposition and the crossbenchers a chance to consider them.

It would be good if the government could lead the way and sort this out in the next sitting week. In the worst-case scenario, I would suggest there is no reason why this legislation has to be pushed through in the last sitting week, if we have not been able to properly deliberate and consult with all people and all sectors of representation involved in this, because it is important. But, if it had to be February, that would not be the end of the world, because we still have a legislative framework, and we still have a lot of processes in place to ensure that police are full of the integrity that the South Australian community expects of them.

Just on that, I am proud to remind the house that South Australia Police is still voted as the number one police force for respect and integrity and honesty in the whole of Australia. They are the third oldest police force in the world, and they can hold their heads very high on the fact that they have been a leading model in South Australia of how you go about the business and the terms of reference of the business in which you work.

I just want to say that I noticed in my years, when I had the privilege of being police minister, and the police minister here now would be noticing this, that there has been a continuing trend, over a long period of time now, that certain elements of the South Australian community want to actually target complaints against police, because the police are out there doing a difficult job, and there has been an ongoing and continuing trend that if you, as a citizen, do not necessarily want to abide by the law or elements of the law, and you take offence at the way a police officer may go about some of the very difficult and delicate work they do, you can actually antagonise those police officers—who are still only human beings after all—and then you can put in frivolous complaints.

I have seen a considerable growth in frivolous complaints against police officers over a long period of time. So, obviously we have to be careful that we have the checks and balances in the way that we go about complaints and disciplinary procedures that are bona fide to SAPOL officers, but also ensure that they get a fair go. The Westminster system says that you are innocent until proven guilty, but I have noticed over the years that, even with internal investigations within police—it is not the first time I have said this, but I am happy to put it on record again—the exception to that basic Westminster principle, which we all stand for and are proud of and passionate about protecting, is that if there is a complaint against a police officer it is almost that you are guilty until you can prove your innocence. That is where it is. That is absolutely where it is.

There are lots of checks and balances on our police now. I would suggest to the chamber that there is no job I can think of in South Australia where there is more scrutiny, more checks and balances and more procedure in how you go about your duty of work than in South Australia Police. I leave members to consider that in the context that I have just described.

The Police Association of South Australia is a major stakeholder in this. It is a very professional association that represents 4,600 members. Ninety-nine percent of South Australian police officers are members of the Police Association of South Australia. The Police Association is engaged in the discipline processes of police officers on a daily basis. The Police Association did hold serious concerns about the bill but, to give credit to my colleague in another house, the Attorney-General, he has been working with them, and many of those amendments have been sorted out, I am now advised.

However, there are some amendments and some matters still to be dealt with with the Police Association as one stakeholder. I accept that they are only one stakeholder, but they are a very important stakeholder when it comes to the representation of the officers. Those officers expect the Police Association to ensure that this legislation is fair, reasonable and balanced for the police officers. That is what they expect, and that is what the police association wants to do and intends to do.

I, for one, our party and I know the Police Association are not against changes that make sure that, when it comes to police complaints, police discipline and police integrity, we have the best possible legislation, practices and standards that could possibly be made available. Again, it has to be a two-way street: a balance of protecting community, but also protecting the fairness to those officers.

I understand there are still some outstanding matters. I encourage the advisers of the Attorney-General to work closely and expediently with the Police Association. My understanding is that all of us will receive advice prior to the debate in the next sitting week on where those meetings and discussions pan out. Hopefully, we can then fairly quickly proceed with the completion of this bill through committee and a third reading. I have been, and will continue to be, a strong supporter of the appointment of the Hon. Bruce Lander QC as the ICAC Commissioner, and I respect him very much. I know that he has done a lot of detailed work on recommendations following the inquiry that he did.

There is a chance to modernise the matters around police complaints and discipline but, as I say, it needs to be done in the context of fairness for our South Australian policemen and women, so that they have the confidence to go about their duties. Also, as we recruit additional police officers, particularly over the next 12 to 18 months, people who put their hand up need to know that, if they get into a difficult and complicated situation, there will be a fair and reasonable assessment situation and structure for them, just as the general citizens of this state expect that to be the case through the courts of South Australia.

With those words, we will be supporting the general principles of the bill that the government has put forward, but we will be reserving our right to make amendments if the government itself does not finalise discussions that are urgently needed between the Police Association and the government.

Debate adjourned on motion of Hon. T.J. Stephens.