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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-04-11 Daily Xml
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Crime and Public Integrity Policy Committee: Operation of the Police Complaints and Discipline Act

Mr ODENWALDER (Elizabeth) (11:14): I move:

That the report of the committee, on its inquiry into the operation of the Police Complaints and Discipline Act, 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 of the Parliamentary Committees Act, this parliament conferred responsibility upon the committee to inquire into and consider the operation of the Police Complaints and Discipline (PCD) Act. Accordingly, in June 2022 the committee resolved to commence this inquiry.

I would like to say from the outset of course that, very importantly, the committee and I acknowledge the difficult tasks often assigned to police officers. The committee acknowledged that they were expected to maintain a high level of discipline in difficult circumstances, and it was widely accepted that it is a stressful and often thankless job requiring decision-making that can be later subject to scrutiny undertaken in the absence of full knowledge of such circumstances. Nothing in the committee's report, therefore, should be interpreted as being in any way critical of police.

Each of us on the committee express our gratitude to police officers for their service to our community and the committee in particular wishes to note, in terms of the operation of the inquiry, the recent tragic shooting incident involving police officers in the South-East of our state. This resulted in the death of Brevet Sergeant Jason Doig, the officer in charge of the Lucindale Police Station; injuries to a second officer, Sergeant Michael Hutchinson; and, of course, Senior Constable Rebekah Cass who was also present and, although physically uninjured, will without doubt be affected for a long time by the horror of what occurred. Every shift, our frontline police officers undertake their duties with these risks in mind, and we are as a committee grateful to all police officers who put themselves at risk to keep the community safe.

The Police Complaints and Discipline Act provides for the resolution of complaints made in respect of designated officers—defined as South Australia Police members, police cadets, special constables and police security officers—and makes provision in respect of disciplinary proceedings. A separate Internal Investigation Section (IIS) within SAPOL 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.

Where a matter has the potential to constitute 'corruption in public administration', as defined in the ICAC Act, it may be the subject of investigation by the ICAC. The Office for Public Integrity (OPI) oversees all assessments and investigations undertaken by the IIS and is provided with live access to SAPOL's complaint 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 made 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 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.

A broad range of submissions and evidence was received by the committee. The report 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. The committee's 23 recommendations 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. I will briefly take members through some of the key recommendations.

The committee acknowledged that there remains in the community some ongoing concern in respect of police investigating allegations made in respect of police conduct, both disciplinary and criminal. In particular, with amendments to the definition of 'corruption in public administration' made in 2021 to a more focused definition, the ICAC 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, intending to provide the community with some reassurance that such matters are given 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 ICAC, which has since 2021 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. The recommendation 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 for greater transparency, whilst maintaining some protections for designated officers the subject of investigations and the parties otherwise involved in police disciplinary proceedings. It seeks to clarify that media queries or questions raised in parliament 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 question does not become subject to confidentiality or publication restrictions, except to the extent that any person is identified, unless that party consents.

What the recommendation further does is to provide some relief from the perpetual operation of the confidentiality and publication restrictions that currently 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 were 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 sanctions (if any) imposed, and to require SAPOL to provide details of sanctions imposed by the commissioner to the tribunal for annexure 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 a reasonable change. This recommendation further proposes that consideration be given to the engagement of legal practitioners to represent the commissioner in tribunal proceedings, rather than police prosecutors (that is, police officers) who currently undertake this task. 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 their 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 matters 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, appropriately be considered redundant, particularly given the jurisdiction of the tribunal. Other matters addressed within the recommendations include:

a proposal to provide for the OPI to engage in informal discussions with aggrieved persons with 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 other means. These recommendations seek to address the number of complaints received, which it was noted have a high rate of assessment as requiring no further action to be taken;

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 sanction 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 report;

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

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

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.

Finally, the committee has recommended amendment of the Parliamentary Committees Act to ensure clarity in respect of its responsibility to inquire into and to consider the operation of the PCD Act; particularly, that the act 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 look at the committee's work. Police disciplinary matters remain of interest and at times 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 also by SAPOL and the Police Association, it is to be expected that there will be some degree of ongoing dissatisfaction with the operation of such provisions regardless of the committee's recommendations or any implementation (or otherwise) of the same. The committee has sought to find a balance.

In conclusion, each of the issues raised in the submissions and evidence received by the inquiry are discussed at section 2 of the report. Section 3 summarises police disciplinary regimes operating interstate, and the committee's recommendations and findings conclude the report. The committee would like to thank executive research officer, Ben Cranwell, who works very hard to provide professional support to the committee, particularly over the significant period of time during which this inquiry was conducted.

I would also personally like to thank all the other members of the committee for their contributions to the inquiry: first, the Presiding Member, the Hon. Justin Hanson; other members of this house, the member for Heysen and the member for Davenport; finally, from the other place, I also note the contribution of the Hon. Frank Pangallo, who has included a minority report in respect of access to the Complaints Management System by complainants; and also the Hon. Laura Henderson, who also contributed significantly in the course of deliberating on this report. With those words, I commend the report to the house.

Mr TEAGUE (Heysen) (11:26): I rise first of all to acknowledge the work of the member for Elizabeth as a member of the committee and also endorse his description of the report by his remarks just now. I wholeheartedly commend the report to the house. I just want to take up one or two particular aspects in relation to recommendation 8. There is some treatment of that at page 78 of the report. Footnote 284 refers to a decision in the District Court that was published in circumstances where the committee had the occasion to consider it in the context of the committee's consideration of the benefits of publication of reasons for judgement at least, if not, a complete analogy to an open court.

I think we need to understand that for some lengthy period of time the proceedings while they remain tribunal proceedings in relation to a complaint are not the subject of really anything that is made public. There is some indication that is provided to members of the force in terms of internal publication as I recall, but the practice has been that, in the interests of necessary aspects of confidentiality, the tribunal proceedings are not open in the same way as court proceedings are. The opportunity that the DC and the Commissioner of Police afforded was in a way an analogy to open court proceedings which will occur when a matter makes its way, if only on appeal, to the attention of the District Court. So there we end up with published reasons that, in the course of setting out a chronology of events and so on, spell out the circumstances of the complaint and prior proceedings and so forth.

So not only in the context particularly of DC and Commissioner of Police but then going back to first principles and taking evidence from the participants, hearing from those who are affected, this was one area of current practice—in what, it ought to be recognised, is an unusual setting in terms of the determination of disputes—in which, like the benefits that flow from the publication of legal reasoning in courts, there are benefits of a public interest nature as well as benefits for those who are more particularly affected, in terms of serving officers and complainants from the publication of outcomes, so that it can be seen what is the way that a matter of complaint is dealt with.

I think there was broadranging agreement. I note in particular the willingness of the Police Association to embrace this approach, with appropriate caveats as to any necessary redactions of names of individuals and so on, and the benefits that can flow in all respects.

If one might draw an analogy in other circumstances, we have considerable benefits in the justice system in our jurisdiction and in like jurisdictions, insofar as we have a bulk of decisions, judicial determinations, that are conducted via a process of public hearing in which not only the reasons for judgement are ultimately made public but also the day-to-day transcript of evidence and, indeed, the practice of open courts is more or less universal, subject to a couple of key exceptions. That might be contrasted with jurisdictions in which decisions of a civil and commercial nature in particular might tend to be resolved by a private arbitration process.

The loss in those circumstances might not be to the quality of outcome for the parties to a private arbitration, let's say in circumstances where there is a prevalence that disputes are to be determined according to a predetermined arbitral process that is kept confidential. The parties might achieve a fair outcome, the result of a thoroughgoing process, but the public is not to know that and the body of precedent that might be otherwise available for the public is not built up.

In those circumstances, you have the attraction, perhaps, of proceedings that might lead to an outcome that has certain efficiencies and so on in that arbitral analogy, but you can sometimes then be over-reliant on experts who might describe things, textbooks that might be written by those who have participated in those private proceedings, and so on.

There is an analogy here that where you have a body of process that is being determined within a particular structure and in circumstances of a closed court and secrecy, then whatever benefits that are gained by the confidential nature of that can be overcome by the lack of the capacity to, by shedding sunlight on the outcomes of processes, maintain the confidence of would-be complainants, maintain the confidence of those who are on the receiving end of these proceedings and, indeed, maintain the confidence of the wider organisation of the police service.

I do make particular reference to recommendation 8 and I otherwise commend the balance of the report of the committee, thoroughgoing and wideranging as it is, to the house. I think we will all continue our efforts towards assisting police to ensure that all aspects of operations are operating as best as possible in the interests of all South Australians, and the Police Complaints and Discipline Act is no exception.

Mr ODENWALDER (Elizabeth) (11:36): I want to thank the member for Heysen for his comments and for his particular reference to recommendation 8 because I think, although it is a wideranging but not complex area of law—although there are complexities in all of it—recommendation 8 is probably the one which will attract the most public interest.

It is very difficult to find that balance between the so-called secrecy provisions, or privacy and confidentiality provisions, and the rights of complainants and balancing those with the rights of police officers who do have a particular type of job which is different I think in nature to other public officers. I do want to thank the member for Heysen for his special reference to that. With those words, I commend the report to the house.

Motion carried.

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