This speech was delivered on 08.11.2016 in the NSW Upper House. You can read the full debate online here.
This is one of these moments when we are looking into the future of not just the Law Enforcement Conduct Commission but also potential changes that have been proposed to ICAC and other oversight bodies. A series of bodies in New South Wales effectively have royal commission powers. Each and every one of them is able to hold hearings either in public or in private depending upon the views of the officer or officers in charge of those commissions. The bill as originally drafted proposed that a public hearing could only be held if there was unanimity amongst the three commissioners. As I think the Government now acknowledges, that potentially made for an unworkable situation. If one commissioner had a philosophical view that there should never be public hearings the commission would never come to a decision. There would potentially be a logjam.
One would hope that wherever possible the three commissioners would be a united team, but there is also a place for a dissenting voice amongst the commissioners that might challenge the majority and say, “Is this really the place for a public hearing?” A commissioner may have that philosophical view and be more willing to challenge it, which would lead to those questions being tested amongst the three commissioners. However, we would not want that minority position to nullify the views of the majority, meaning there could never be public hearings. This amendment will not only significantly improve the day-to-day operation of the commission by facilitating some robust exchange between the commissioners and potentially small amounts of disagreement; it will also allow for a ready mechanism for the question to be determined by majority and ensure that there will be some public hearings.
I know there has been some concern about public hearings at the Independent Commission Against Corruption and that the Police Association has raised concerns about previous public hearings at the Police Integrity Commission. Some of those concerns are valid. A practice developed at different points for the gotcha moment, perhaps just before morning tea. There would then be what they described as feeding the chooks, which was the playing of what were once CDs of undercover footage and are now USB sticks of undercover footage. That would dominate the play in the media for the day. The evidence of the officer or person being cross-examined in the afternoon or following day that might put a totally different colour on it would get washed out by the great gotcha moment of the morning. That type of concern about procedural fairness is valid. The way we address it is by having counsel assisting, who comply with the bar rules that expressly say that most of the provisions of the rules apply to commissions of inquiry as much as they apply to court matters.
We have commissioners to ensure that their extraordinary powers do not get abused and that people are not treated with gross unfairness. We are never going to have, nor do we want to have, the same levels of procedural fairness that apply in a royal commission applying in a court because there is the essential matter of catching people out in public and identifying matters of substantial misconduct in public. Indeed, that public shaming and exposure has an essential role to play. Traditionally in New South Wales, because our corruption laws are so woeful, often it is only the public shaming that delivers change. We need public hearings. This amendment will mean that we will be more likely to get public hearings but there are still more checks and balances. It is a good amendment and The Greens support it.
Reverend the Hon. FRED NILE: The Christian Democratic Party supports the amendment. I am a member of the oversight committee of the Independent Commission Against Corruption. That committee has had a lengthy discussion and made the same recommendation. This amendment will bring consistency to the commissions operating in this State.
The CHAIR: The Hon. Lynda Voltz has moved Opposition amendment No. 2 on sheet C2016-080B. The question is that the amendment be agreed to.
Amendment agreed to.
The CHAIR: We will now move to The Greens amendment No. 1 on sheet C2016-100A.
The Hon. John Ajaka: Sorry, was that 100A or 104A?
The CHAIR: It is C2016-100A. It relates to an amendment on page 28 of the bill. We are trying to move through in order as best we can.
Mr DAVID SHOEBRIDGE: By leave: I move The Greens amendments Nos 1 to 9 on sheet C2016-100A in globo:
No. 1 Investigation of police misconduct matters
Page 28, clause 44 (9), line 38. Omit “Except as provided by section 113 (6), the Commissioner must”. Insert instead “The Commissioner may”.
No. 2 Investigation of critical incidents by Commission
Page 32, clause 51 (1), line 18. Insert at the end of the line:
(f) in the case of a critical incident, if the Commission decides that it is in the public interest that it investigates the incident or investigate s it concurrently with an investigation being carried out by the NSW Police Force.
No. 3 Investigation of critical incidents by Commission
Page 32, clause 51. Insert after line 45:
(6) The Commission may decide to investigate a critical incident despite sec tion 44 (9).
(7) If the Commission decides to investigate a critical incident, the Commission:
(a) must notify the Commissioner of Police of its decision to investigate the incident; and
(b) may require the Commissioner of Police to postpone any investigat ion of the incident by the NSW Police Force until the Commission advises that the NSW Police Force may proceed with its investigation.
No. 4 Declaration of critical incident
Page 57, clause 111 (1), line 18. Omit “may”. Insert instead “must”.
No. 5 Declara tion of critical incident
Page 57, clause 111 (2), line 27. Omit “may”. Insert instead “must”.
No. 6 Investigation of police misconduct matters
Page 58, clause 113 (6), line 30. Omit “despite section 44 (9)”.
No. 7 Investigation of critical incidents by Co mmission
Page 58, clause 114, line 38. Insert “ or conduct own investigation ” after “ investigation “.
No. 8 Investigation of critical incidents by Commission
Page 58, clause 114. Insert after line 40:
(2) The Commission may also, if it believes that it is appropriate to do so because of the circumstances of the case or the seriousness of the issues involved:
(a) conduct its own investigation of a critical incident; or
(b) take over an investigation by the NSW Police Force of a critical incident.
No. 9 Monit oring conduct of critical incident investigations
Page 59, clause 114 (3) (c), lines 8 and 9. Omit “with the consent of the person being interviewed and the senior critical incident investigator,”.
The Greens have a longstanding record in saying that when it comes to serious misconduct police should not be investigating police. The inherent conflict of interest one gets when one police officer investigates the actions of another police officer is plain for the general public to see. Indeed, it has been plain to the many complainants who have approached my office over the past five and a bit years concerned about the way that police investigations of police have an extraordinary tendency to dismiss the seriousness of complaints and to dismiss complaints from the public, but they also do not give fairness to many police. Many police do not feel that one section of police investigating them will give them any kind of procedural fairness. For that reason The Greens believe, particularly in critical incidents—those incidents involving death or serious injury of either a member of the police force or a member of the public in the course of police operations—we can no longer have police investigating police. This inevitable conflict of interest was highlighted in the Lindt siege inquiry.
To illustrate the importance of these amendments, one only has to consider the extremely unenviable situation of the police investigators sent in to investigate the actions of police after the Lindt tragedy. It was declared a critical incident by the Commissioner of Police, so a number of police at inspector level and below were tasked with investigating what went right and what went wrong in the Lindt siege inquiry. Two of the key players in the Lindt siege inquiry were Deputy Commissioner Burn and Commissioner Scipione. It is hard to imagine a more career-limiting moment than one when an inspector of police trots up to the Commissioner’s office and says, “I would like to see your phone. Please show me your text messages. I want to run through your emails to find out exactly where you were, when you were there, what directions you made and what you said about the operational activities.”
There was an official notation in the police records about the Police Commissioner making a determination about whether or not there would be intervention on the night. We only know that because it came out belatedly in the course of a coronial investigation, because the commissioner was never put on the spot by the investigators to give a statement about what happened. We now know that Deputy Commissioner Burn deleted a whole series of her text messages. She says they were not related to the Lindt siege inquiry, but we will never know because they were deleted by the deputy commissioner before she was required to go under oath in the coronial investigation.
I do not blame the junior officers who were put in the invidious situation of having to interrogate deputy commissioners and the Commissioner of Police to find out exactly what went wrong. They were in an impossible situation: They could not investigate that, given the chain of command and the nature of the police. Why would we allow that kind of conflict of interest to be at the heart of this bill? While there are good things about this bill, which establishes a single police oversight body, it expressly says that the new Law Enforcement Conduct Commission [LECC] cannot investigate police critical incidents and must postpone the investigation of any critical incident until after the police have finished. That may be months; it may be years. There is no time limit on it. This bill effectively says that this brand-new police oversight body, which we hope will start with a fresh culture, a belief in procedural fairness and a view that it will fix systemic problems in the NSW Police Force and address any substantial issue of corruption, cannot investigate the most serious incidents and has to sit on its hands.
If a member of the public is shot by a police officer, one would think that the best body to investigate that would be the brand-new, shiny, expensive Law Enforcement Conduct Commission—but this bill says it cannot investigate a police critical incident, which must be investigated by Professional Standards Command. We have police investigating police—and the bill does not put that at the discretion of the Law Enforcement Conduct Commission but expressly statutorily prohibits the LECC from investigating in those circumstances. Why would we put that fundamental flaw at the heart of what is otherwise a good bill?
Taken together The Greens amendments remedy that core defect in the bill, and I could go through them one after the other, explaining how they remedy that core defect in the bill. The amendments allow the Law Enforcement Conduct Commissioner, if the Law Enforcement Conduct Commissioner believes it is appropriate, to undertake an investigation notwithstanding that there is an outstanding police critical incident investigation, and the amendments allow the LECC to take over a police critical incident investigation, which I hope would be the option that it would most readily exercise. We want to get away from the situation where we have the police doing one thing over here and the oversight bodies doing another thing over there. That has been a recipe for disaster for years in New South Wales.
These amendments would give the LECC the power to take over a police critical incident investigation where it thought it was appropriate. We should end the culture of police investigating police. It is not just a cultural thing. No-one can blame the police for operating within the laws that have been given to them by the Parliament. We need to fix the structural conflict of interest, particularly when it comes to critical incidents where someone has been shot, killed, seriously wounded or injured. That is when we have to say, “Enough is enough: No longer do we have police investigating police. Let’s have our new, shiny, expensive Law Enforcement Conduct Commission do its job and investigate the most critical incidents in New South Wales.” I commend the amendments to the House.