This speech was delivered on 17/10/2013 in the NSW Upper House. You can read the original contribution here.
Mr DAVID SHOEBRIDGE [3.44 p.m.]: My office recently made a submission to the Premier’s review of police handling of critical incidents. As part of that review of police oversight my office investigated and discussed some of the many reasons the current oversight system does not work and continues to produce poor outcomes. Any system that relies on self-regulation behind closed doors creates inevitable tensions between the self-interest of the organisation and the interests of the general public. Unfortunately that is the system in place for almost all police oversight in New South Wales.
One of the most obvious reasons for this is the obvious conflict of interest in any system that requires police to investigate police. Police investigating police creates a fundamental conflict of interest between officers’ real and perceived obligations to their fellow police and their duty to the public. Expecting police to operate within such a framework is unacceptable and consistently produces poor outcomes. While no doubt some police officers can rise above this conflict and undertake objective investigations, it is a flawed system that routinely requires that of officials. Robust and accountable oversight regimes are designed to be operated by people, not by angels.
Even putting to one side the conflict in having police as the primary investigators of police, there is another fundamental reason why the current system works to privilege police and their accounts consistently over those of members of the public. It is this aspect, concerning the documentation of complaints, I wish to discuss further today. Put briefly, the current system relies so heavily on documentation that it marginalises many members of the public who, unlike police, do not take contemporaneous notes of all of their police interactions. Why is the one-sided documentation of events such a problem for police complaints? The reason is that the vast majority of complaints, whether critical incidents or not, are investigated initially by police and at best receive only a paper review by the Ombudsman.
While there is the legal capacity for the Ombudsman’s office to initiate its own investigation of police conduct and to send its own primary investigators to gather primary evidence, the system almost never operates that way in practice. This has led to a situation where there is no culture of independent investigation of police complaints, with any oversight by the Ombudsman limited to little more than a superficial review. In any paper review the well-documented positions of the police are almost inevitably given a privileged position as against the often poorly articulated complaints from the general public.
It is important to remember that the quality of the relevant documentation has no inherent connection to the veracity of the parties’ position, whether police or the general public. The police position tends to be well documented because, unlike the general public, police are experienced in the system and have ready access to the skills and resources to document and corroborate their positions. As a result, wherever the oversight is limited to only post-facto paper review the system unreasonably favours the internal police position. The final outcome is that despite thousands and thousands of complaints by members of the public, including serious complaints, only a handful are upheld.
On closer inspection the situation becomes even more troubling because the great majority of complaints that are upheld are complaints made by one member of the police against another. In 2010-11 there were 9,064 separate issues in 5,516 complaints to police. In that same year there were 5,747 complaints to the Ombudsman. Yet in the entire four years between 1 January 2009 and 20 March 2013 there were only 164 disciplinary actions in total arising from complaints, and of those a tiny 57 followed complaints from members of the public but 107 were the result of internal complaints from other police.
Examination of the data shows that only a tiny fraction—less than one half of 1 per cent—of the thousands of complaints against police in any one year result in any disciplinary action at all. While it is accepted that many, perhaps even most, complaints against police would not be expected to result in disciplinary action, these figures demonstrate a system that is heavily weighted in favour of police. As I said earlier, of the complaints upheld, two-thirds of them relate to police internal complaints. It is worth noting that in those circumstances where it is a police-on-police complaint, one of the fundamental factors is that the disparity in documentary evidence that exists where there is a complaint by the public against police is not present.
Unlike the case of the regular member of the public who experiences an episode with police that later gives rise to a complaint, a police officer who makes a complaint will generally keep notes every step of the way. While ever the system relies on police to investigate police with only a paper review by the Ombudsman, inevitably it will protect police and fail to produce fair and accountable oversight of police conduct. We should be very concerned about systematic issues such as this in oversight systems that are designed, we are told, to improve accountability of the police and to reduce corruption risks.
