Parliamentary Committees

Crime and Public Integrity Policy Committee: Police Complaints and Discipline Act

The Hon. J.E. HANSON (16:08): I move:

That the report of the committee, on its inquiry into the operation of the Police Complaints and Discipline Act 2016, be noted.

In October 2021, following a recommendation made by the Crime and Public Integrity Policy Committee in respect of its previous inquiry into matters of public integrity, by way of amendment to the Parliamentary Committees Act this parliament conferred responsibility upon the committee to inquire into and to consider the operation of the Police Complaints and Discipline Act 2016, which, from now on, to make things a little bit easier for everyone, I will refer to as the PCD Act. Accordingly, in June 2022, after finishing ongoing business, the committee resolved to commence the inquiry.

I think it is pretty important that I state from the outset that the committee acknowledges the very difficult tasks that are often assigned to police officers. They are expected to maintain a very high level of discipline in all circumstances and I think we can all accept—and certainly there is a great deal of acceptance within the community outside of this place—that it can be stressful and, frankly, often very thankless work. It requires decision-making that can be later subject to scrutiny undertaken in the absence of such circumstances as they might find themselves in.

Nothing in the committee's report—I think it is important that I underline 'nothing in the committee's report'—should be interpreted as being in any way critical of police. Each of us on the committee expresses our gratitude to police officers for their service to our community. The committee in particular wishes to note the recent tragic shooting involving police officers in the area of Senior, south-east of Adelaide. This resulted in the death of Brevet Sergeant Jason Doig, the officer in charge of the Lucindale Police Station, and indeed injuries to a second officer, Sergeant Michael Hutchinson. Senior Constable Rebecca Cass, who was also present, although physically uninjured will without doubt be affected by the horror of what occurred for quite some time.

Earlier this year, Brevet Sergeants Ian Todd and Jordan Allely were also caught up in a dreadful stabbing incident, with both suffering extensive injuries, in particular Brevet Sergeant Todd. I think it is important to highlight those matters because during every shift our frontline officers undertake their duties with risks like these in mind. The members of the committee are all very grateful to officers who put themselves at risk to keep our community safe.

Having said that, the task remains at hand. The Police Complaints and Discipline Act provides for the resolution of complaints made in respect of designated officers, that being defined as obviously South Australian police members, police cadets, special constables and police security officers. The role of the tribunal is to make provision in respect of disciplinary proceedings.

A separate internal investigation section within SAPOL is the IIS. It is conferred with the responsibility for assessing and, where appropriate, investigating either complaints regarding the conduct of designated officers made by members of the public or reports regarding the conduct of designated officers made pursuant to mandatory reporting obligations imposed on designated officers in respect of potential disciplinary matters.

Where a matter has the potential to constitute corruption in public administration, as defined by the Independent Commission Against Corruption Act, it may be the subject of investigation by the Independent Commission Against Corruption. The Office for Public Integrity (OPI) oversees all assessments and investigations undertaken by the IIS and is provided with live access to SAPOL's complaints management system. The OPI receives the majority of complaints in the first instance. It may reassess and substitute its own assessment in the place of an assessment made by the IIS and such substituted decision will be considered to be the assessment of the IIS. The OPI may also issue directions with respect to the conduct of any investigation into disciplinary allegations.

A management resolution regime provides for the internal resolution of matters determined to be minor in nature. The matters suitable for management resolution are set out in a determination by the Commissioner of Police and tabled in each house. The Police Disciplinary Tribunal can hear and determine any allegation of breach of discipline that is more serious than may be dealt with by management resolution and obviously, indeed, where the allegation is not admitted. Breaches of discipline comprise either a breach of the code of conduct applicable to designated officers or a breach of the act.

All that said, a broad range of submissions and evidence were received by the committee. The report we have produced seeks to address matters raised in submissions both to this inquiry and to the committee's previous inquiry into matters of public integrity in South Australia, in respect of which a final report was tabled in December 2020.

We produced 23 recommendations. Those recommendations, we hope, will seek to find a balance between the interests of all parties who are impacted by policing—not only the stakeholders directly affected by the operation of the act but the entire community of South Australia who are subject to SAPOL. I will briefly take the members and anyone listening through some key recommendations made by the committee in its report.

The committee acknowledged that there remains in the community some ongoing concern in respect of police investigating allegations made in relation to police conduct, both in a disciplinary and in a criminal sense. In particular, with the amendments to the definition of 'corruption in public administration' made in 2021, making it a more focused definition, the Independent Commission Against Corruption was no longer able to investigate any allegation of criminal conduct by police. In the view of the committee, this left a need for further oversight.

Recommendation 1 seeks to substantially expand the functions of the OPI to provide for it to oversee police assessments of, and investigations into, allegations of criminal conduct by designated officers. This would be a new function for the OPI, and the intention is to provide the community with some reassurance that such matters are being given a level of independent consideration. The recommendation also seeks to provide for further oversight of the OPI by the Office of the Inspector.

Recommendation 4 proposes to effect consistency with the primary function of the Independent Commission Against Corruption, which since 2021 has been to investigate potential matters of corruption in public administration. The commission no longer has the power to investigate potential matters of misconduct or maladministration in public administration in respect of public officers other than designated officers under the PCD Act. It was considered an anomaly that it continues to have such authority in respect of designated officers.

Recommendation 4 also seeks to confer responsibility for investigating potential matters of maladministration in public administration by designated officers upon the Ombudsman—again, consistent with the 2021 changes otherwise made in respect of public officers. Matters of breach of discipline would remain the responsibility of the IIS, subject to OPI oversight.

Recommendation 7 seeks to provide greater transparency whilst maintaining some level of protection for designated officers who are the subject of investigations and for the parties otherwise involved in any police disciplinary proceedings. The aim of this is to seek to clarify that media queries or questions raised in parliament specifically are not to be treated as complaints and, further to that, where mandatory reports are generated by police in respect of such information, that the information contained in the query or the question does not become subject to confidentiality or publication restrictions except to the extent, of course, that any person identified remains unidentified, unless that party consents to being identified.

What the recommendation further does is provide some relief from the perpetual operation of the confidentiality and publication restrictions which currently do apply. It proposes that where information that relates to a person is subject to the provisions, where there is no reasonable expectation that the information might prejudice further action in respect of the matter to which it relates, the person can apply to the commissioner to seek authorisation of disclosure. In such circumstances, the commissioner would be required to authorise disclosure, with some remaining considerations in respect of protecting the identities of those involved.

Recommendation 8 proposes changes to the operation of the police complaints tribunal. It was apparent to the committee that the requirement for the tribunal to operate pursuant to the rules of evidence was inconsistent with disciplinary tribunals in all other forms. The strict confidentiality of its proceedings was considered a barrier to precedent and to a broader understanding of the implications of breaches of discipline. The recommendation proposes the publication of tribunal decisions, and where matters are settled prior to a decision being made by the tribunal for the circumstances of such matters to be published, along with the sanctions imposed, if there were any, and to require SAPOL to provide details of sanctions imposed by the commissioner to the tribunal. They will be annexed to relevant published decisions.

Again, the recommendation seeks to protect the identity of the parties involved. The current secrecy of the operation of the tribunal requires further consideration, and the committee is of the view that this recommendation proposes in the circumstances a reasonable change. The recommendation further proposes that consideration be given to the engagement of legal practitioners to represent the commissioner in tribunal proceedings, rather than police prosecutors, which is currently police officers. In the committee's view, the possibility of a perceived or potential conflict of interest arising from representation by police officers in respect of proceedings regarding the conduct of other police officers was sufficient to warrant reconsideration of the current role.

Recommendation 9 proposes to clarify that the mandatory reporting provisions applicable to designated officers would appropriately be triggered by breaches of discipline, which is the basis upon which proceedings can be commenced in the tribunal. It was considered appropriate for breaches of discipline to be included as a matter for assessment by the IIS and to provide for consideration of whether the concept of misconduct would, if the first aspect of the recommendation were accepted, more appropriately be considered redundant, particularly given the jurisdiction of the tribunal.

Other matters that are worth going to within the recommendations made include:

a proposal to provide for the OPI to engage in an informal discussion with aggrieved persons. The point of that is to provide a view to potentially resolving their concerns without the need for the making of a complaint, and to require that complaints be made in writing, although with a broad discretion to receive them by some other means, if that it is the only manner possible. These recommendations seek to address the number of complaints received, which it was noted have a high rate of assessment as requiring that no further action be taken in regard to them;

a proposal to address inconsistency between the operation of the PCD Act and the current enterprise agreement applicable to designated officers and a proposal to provide for the making of fixed offers of sanctions to settle disciplinary allegations;

to provide for the establishment of a relatively informal review process in respect of administrative orders made following the making of a complaint or a report;

to provide some protection against the use of coercive powers by SAPOL to ensure designated officers retain a privilege against self-incrimination;

to clarify the circumstances in which the appointment of designated officers can be suspended—that is, to circumstances where, if allegations were substantiated, that termination of appointment would be reasonable and an appropriate sanction in the circumstances;

that further consideration be given to SAPOL's resourcing and administration of the PCD Act;

to provide for greater transparency to complainants by way of conferring a capacity to seek access to and to respond to matters set out in statements of officers the subject of a complaint, and to provide for complainants to request reasons for a decision following an assessment by IIS that no further action is required in respect of the complaint; and, lastly

a proposal to provide for designated officers the subject of tribunal proceedings to be reimbursed legal costs where it is found that no breach of discipline occurred.

Finally, the committee has recommended amendment of the Parliamentary Committees Act to ensure clarity in respect of its responsibility to inquire into and consider the operation of the PCD Act, particularly that it be amended to avoid any doubt about its functions, including receiving evidence in relation to an investigation of particular conduct when considering the operation of the PCD Act. This recommendation would effect consistency with amendments made in 2021 to clarify the committee's capacity to oversee the operation of the ICAC Act.

I encourage members to have a good look at the committee's work here. The report is quite chunky—it is over 200 pages. There is a great deal of detail in those pages, though. Police disciplinary matters remain of interest and at times, frankly, concern to the community. Ongoing commentary is to be expected in respect of the confidentiality and publication provisions that the committee has proposed be further considered.

Given the very different views expressed by the media and, at the other end of the spectrum, SAPOL, and indeed the Police Association of South Australia, it is to be expected there will be some degree of ongoing dissatisfaction with the operation of such provisions regardless of the committee's recommendations or indeed any implementation, or not, of the same. The committee in this regard has sought to provide some sort of balance, and I hope we have achieved that.

In conclusion, each of the issues raised in the submissions and evidence received by the inquiry are discussed at section 2 of the report, if you just want to skip through the whole thing. Section 3 summarises the police disciplinary regimes operating interstate. The committee's recommendations and findings conclude the report.

I would like to say a couple of thankyous. First of all, I would like to thank our executive research officer and secretary, Ben Cranwell, who provided professional support to the committee over the significant period of time during which this inquiry was conducted. It is particularly of note that he is the only staffer provided to this committee. That is something we might look at remedying if we ever do a review of any parliamentary committees act. We could staff things perhaps a little better in regard to many committees, not just the committees that look into pretty serious matters like the police complaints disciplinary tribunal.

Stepping off my soapbox, I would also like to thank the other members of the committee for their contributions to the inquiry: firstly, the other member of the council, the Hon. Frank Pangallo, who has included a minority report, I think it is fair that I note, particularly in respect of access to the complaints management system by complainants. I would also like to thank the Hon. Laura Henderson and, from the other place, the member for Elizabeth, Lee Odenwalder; the member for Heysen, Josh Teague; and the member for Davenport, Erin Thompson.

I think it is fair to say that there was quite a bit of discussion between all committee members in regard to this report. No sole member provided all of the contributions. The discussions were good, the discussions were detailed, and I think everyone contributed very well to what we have produced. The report has been finalised. I commend the report to the council, and I look forward to the recommendations being accepted in some format.

Debate adjourned on motion of Hon. L.A. Henderson.