This speech was delivered in the NSW Upper House on 2 May 2012. You can read the full debate online here.
The contribution to debate just made by the Minister for Police and Emergency Services confirms that something good has happened in the oversight of police: The Police Integrity Commission now directly reports to the Premier instead of the Minister for Police and Emergency Services. The Police Integrity Commission Amendment Bill 2012 amends the Police Integrity Commission Act 1996 and makes a number of relatively modest and, when considered in their totality, relatively important changes following the statutory five-year review of the Police Integrity Commission Act. The Greens support the bill but will move an amendment for referral of the bill to the Joint Committee on the Office of the Ombudsman and the Police Integrity Commission for a brief report so that the whole of the matters that are the subject of the review may be considered by the Government.
While the bill makes a number of modest advances, it does not address all the elements that were canvassed during the ministerial review and does not address all of the concerns expressed, most notably those relating to procedural fairness and natural justice. Commissioned officers of the New South Wales Police Association repeatedly have raised those concerns in relation to the Police Integrity Commission. For that reason The Greens will move to refer the bill to the joint committee for a quick report on whether the bill encompasses all of the aspects that arise from the review and on how the legislation can be improved to provide a greater degree of natural justice and procedural fairness to police officers who are the subject of Police Integrity Commission inquiries.
The principal objects of the legislation stated in item  in schedule 1 to the bill replace the objects stated in section 3 of the current Act. New section 3 will make it clear that the amended Act will be focused on the conduct of police officers and other officers, including non-sworn or administrative officers. The new definition of officer misconduct clarifies that and refers to police misconduct, corrupt conduct of an administrative officer, or misconduct of a Crime Commission officer. That is a sensible clarification of the terms of the objects of the Act that will ensure the legislation picks up any corrupt conduct by an administrative officer. In truth the Police Integrity Commission effectively has operated as though it has had that statutory remit, but incorporating a provision clearly in the objects of the Act is a useful clarification of the law. The repeal of sections 13A to 13C inclusive are consequential as the matters they deal with will be explicitly covered in the objects of the amended Act when it comes into force.
New section 33 (3A) specifies that when considering whether it is or is not in the public interest to conduct the hearing in public the commission is to consider a number of factors including, first, the benefit of exposing to the public, and making it aware of, the officer’s misconduct, and the public information process that is often essential in the course of a Public Integrity Commission hearing; secondly, the seriousness of the allegation; thirdly, the risks of undue prejudice; and fourthly, the balance between public interest and preserving the privacy of the person concerned.
That last point about balancing the public interest against the privacy of the person concerned is important. We have seen many reports from the inspector that have been critical of the process involved by the Police Integrity Commission. The inspector has criticised processes within the commission that have led to reports that are deeply critical of police officers and their conduct—often police officers of quite lengthy standing. When the inspector has reviewed the conduct of the Police Integrity Commission he has made critical statements about the absence of natural justice—the failure to place the relevant officers on notice that there would be potentially negative findings against them and to give them the right to be prepared before those negative matters are put to them in a public hearing.
If the commission is specifically directed to achieve that balance between public interest and preserving the privacy of the person concerned that is a sensible statutory direction from Parliament. It will not always mean that where there is some private interest a public hearing should not be heard—of course it should not mean that—but it should be considered by the Police Integrity Commission when it is considering public hearings.
The new part 4C, regarding reporting misconduct, gathers together and clarifies reporting obligations. This means that the Ombudsman, the Crime Commissioner, the Commissioner of Police and the principal officer of the public authority all have a duty to report to the commission when they reasonably suspect officers have engaged in misconduct, and so they should. There should be that omnibus reporting requirement that applies to all those officers.
Section 89 (1A) clarifies that the inspector may report to Parliament conduct amounting to maladministration. This will allow the inspector to make a recommendation or report when the inspector determines it is appropriate, as well as providing a discretion that he can provide a copy of this report to the person who made a complaint or any other affected persons. We have seen some extremely unproductive disputes between the previous commissioner of the Police Integrity Commission and the previous inspector about whether the inspector could make a report to Parliament. Large amounts of public funds were wasted on these very dry legal arguments about whether the inspector could report to Parliament concerns that he had amounting to maladministration. There should be no restraint. If the inspector formed a view that it is appropriate to report to Parliament on those matters, of course the inspector should report. He is an independent officer put in place because of the broad powers given to the Police Integrity Commission, and that independent inspector must have untrammelled capacity to report to Parliament about concerns he has about the operations of the Police Integrity Commission. It is good to see that the Government has gone some of the way to remedy the previous difficulties by inserting new section 89 (1A).
The person to be heard provision under new section 137A provides that before a comment is included in a report that is adverse to a person the commission or inspector must attempt to inform the person of the substance of the comment and provide them an opportunity to make submissions. This applies to reports on any matter the subject of an investigation by the commission or a report by the inspector in relation to any complaint. I said before that the inspector has had repeated concerns about the lack of natural justice that had been applied in the Police Integrity Commission. I am glad to say that, as I understand it, the current commissioner has already adopted this position. The process has been adopted at an administrative level by the Police Integrity Commission after many concerns by the Police Association and after many adverse reports by the inspector about prior conduct of the Police Integrity Commission. But it is essential that we do not just leave it up to an administrative whim of any current commissioner of the Police Integrity Commission. It is important that there be a statutory direction that natural justice be afforded those persons who come before the Police Integrity Commission, and The Greens are happy to support new section 137A.
The bill is a partial response to the five-year statutory review. In communications with the Police Association of New South Wales two things are apparent. One is that the Police Association welcomes the moves the Government has made and which I spoke about earlier. It is happy to see that the Government has taken steps to deal with some of the concerns it had about how its members have been dealt with before the Police Integrity Commission. But it is very concerned that a number of pressing issues have not been addressed in this bill. When I made inquiries of the Clerks as to whether the bill had been reported to the parliamentary Joint Committee on the Office of the Ombudsman and the Police Integrity Commission I was told that it has been reported to the committee but the committee has not considered it or formed any recommendations on the bill. Nor has the committee formed a final view and put together any recommendations in response to a statutory review of the Police Integrity Commission.
Surely before Parliament signs off on substantial changes to the Police Integrity Commission, all of which are for the good, it should be only due diligence to report back to the Joint Committee on the Office of the Ombudsman and the Police Integrity Commission to allow the current Police Integrity Commission commissioner, the new inspector, the police commissioner and the Police Association all to make representations to that committee to see whether this bill is doing all that should be done and all that should be adopted out of that five-year statutory review.
As I said, The Greens will move an amendment to the bill to have six-week reporting to the committee. So a number of those matters that were raised in the review and have not been addressed in this bill can be considered by that committee. One of those is that the Police Integrity Commission Act be amended, if necessary, to allow the Police Integrity Commission to remove reports from its website and any other place of publication or to publish reports identifying and correcting errors in previously published reports. One of the great concerns for many officers who came before the previous Police Integrity Commission was that a deeply adverse report would be published about them by the Police Integrity Commission, there would then be a review by the inspector which made fundamental criticisms of the natural justice afforded to those officers, but the Police Integrity Commission adverse report would remain on the commission’s website—often a career destroying report—open for public review. Even if at a later point the inspector’s report critical of the Police Integrity Commission was found on the same website, it did not get rid of the damage done to that officer’s reputation and career. Surely the committee should consider whether we could do things better and whether it is appropriate in those circumstances to remove the initial adverse report from the Police Integrity Commission website. That has not been considered in this bill and it should be considered.
Another aspect that is not considered is when the Police Integrity Commission seeks advice from an independent senior counsel prior to publication of any report or finding—if you like, a peer review. Maybe that is appropriate, maybe it is not. Maybe there are sufficient checks and balances inside the Police Integrity Commission already which mean that this type of review should not happen. But the fact that this matter has been raised in the course of the review and the recommendations means that before we make these changes to the Police Integrity Commission Act we should refer it off and give those parties the right to make representations to the committee and then consider whether that recommendation should be adopted as part of this bill.
Another concern relates to the Police Integrity Commission website providing high billing to the subsequent overturning of the commission’s findings by the inspector or a court or judicial officer. This was the subject of a longstanding battle between the prior Police Integrity Commissioner and the prior inspector. The inspector would make adverse reports and the Police Integrity Commission would reject those reports and then refuse to publish them on its website. So the independent inspector’s role was effectively being negated because the commission that the inspector was there to keep an eye on was refusing to put a link to or publish the inspector’s critical report. I can understand why an organisation does not want to put on its own website a report that is critical of it but we are dealing with an independent statutory inspector going through the process and making findings and reviews of an operation as powerful as the Police Integrity Commission.
Surely it is appropriate to consider directing the Police Integrity Commission to refer to those reports and provide on its website a link of at least equal prominence to the adverse findings the commission placed on its website. That matter clearly should be considered by a parliamentary committee before this bill is finalised. Another recommendation related to amending section 10 of the Police Integrity Commission Act 1996 “to remove the prohibition on the use of serving or former New South Wales police officers as investigators or staff of the Police Integrity Commission”. I accept that there may be different views on this.
The Hon. Michael Gallacher: You guys have been opposed to cops being down there. Are you saying you now agree that cops can work down there? Wow, talk about a U-turn.
Mr DAVID SHOEBRIDGE: I fully understand the purpose of the absolute prohibition when the Police Integrity Commission was set up some 15 years ago. As I said earlier, perhaps the maintenance of that prohibition is entirely appropriate.
The Hon. Michael Gallacher: Do you support cops working down there?
Mr DAVID SHOEBRIDGE: As the Minister notes, on behalf of The Greens I have been deeply critical of police investigating police in New South Wales. I remain very concerned about that.
The Hon. Michael Gallacher: Oh, so you’re opposed to them still being down there. That’s okay, just as long as I know.
Mr DAVID SHOEBRIDGE: I will be clear in my response to the Minister’s question. I am not suggesting that The Greens support serving New South Wales police officers being on the Police Integrity Commission.
The Hon. Michael Gallacher: Or former?
Mr DAVID SHOEBRIDGE: The question of former police officers is difficult to answer because it is a matter on which reasonable minds may differ. I can see a strong argument for not having former New South Wales police officers on the Police Integrity Commission. I see an even stronger argument for not having current serving police officers on the Police Integrity Commission, but there are alternate views on that. Indeed, the review the responsible Minister undertook actually considered a recommendation to have serving police officers on the Police Integrity Commission. A parliamentary committee should consider that matter before this bill is scooted through. I am not a member of that committee so my views will not be canvassed during any inquiry. The parliamentary committee should consider those matters before we pass this bill without considering them.
Another matter is whether a code of conduct and values for the Police Integrity Commission that mirrors the code of the New South Wales Police Force and enshrines principles of natural justice should be established and referred to in the Police Integrity Commission Act and the regulations to that Act. That seems to be a sensible provision: to put in place a statutory code of conduct, or to at least allow for the regulation-making power for a code of conduct with statutory effect—similar to that of the New South Wales police. But that is not in this bill. I would have thought that it would benefit the committee to consider the real benefits of a statutory code of conduct for the Police Integrity Commission that mirrors the kinds of provisions in a statutory code of conduct for the New South Wales Police Force. Unfortunately, that has not been included in this bill.
The next recommendation is that the Police Integrity Commission Act 1996 be amended so that the parliamentary Joint Committee on the Ombudsman and the Police Integrity Commission should have the power to direct the Police Integrity Commission to take any lawful action the committee considers appropriate where the committee determines that a report by the inspector or the finding of a court warrants the action. I was a member of the committee in the previous Parliament. One matter on which the committee formed a recommendation was the publishing of the inspector’s reports. As I said before, there was complete frustration from the inspector, who would write an adverse report, but it would not be published by the Police Integrity Commission. Ultimately, the committee formed a recommendation that the Act be amended to require the publishing of the reports. Only after repeated attempts in committee did we get that recommendation.
A parliamentary committee oversighting the Police Integrity Commission will always be government dominated, but during my time as a member of that committee it did not operate in a partisan fashion at all. If that committee forms the view that something needs to be done in the administration of the Police Integrity Commission and makes a recommendation it makes entire sense to give that recommendation from the committee the force of law in directing an oversight of the conduct of a body as powerful as the Police Integrity Commission. I understand why the Police Integrity Commissioner would not like that, but for good administration in New South Wales that kind of provision would be a major advance. However, it is not included in this bill. It should be. The final recommendation is that the jurisdiction of the Office of the Ombudsman over police be revoked and the Police Integrity Commission be the single oversight body for the New South Wales Police Force. I have a short time remaining for my contribution.
Of itself, that recommendation is a very thorny issue. The current split between the Ombudsman’s and the Police Integrity Commission’s oversight in New South Wales law is, to say the least, deeply confusing. In fact, there is a real lack of clarity about the extent to which the Ombudsman can undertake investigations and deal with and meet police complaints. Few people, if any, know the dividing line between the Police Integrity Commission’s and the Ombudsman’s work. Having a single oversighting body for New South Wales police, much like the United Kingdom’s single statutory oversight body, makes great sense. Of course, the Parliament should consider that matter before finalising this bill. Therefore, I move:
That the question be amended by omitting all words after “That” and inserting instead:
1. this bill be referred to the Committee on the Office of the Ombudsman and the Police Integrity Commission for inquiry and report,
2. in its consideration of the bill, the committee consider the review of the Police Integrity Commission Act 1996 commissioned and completed pursuant to section 146 of the Act,
3. the committee seek representations from the Police Association, the NSW police, the Police Integrity Commission and the Office of the Inspector as to the adequacy of the proposed legislative response,
4. the committee report by 13 June 2012, and
5. this House requests the Legislative Assembly to agree to a similar resolution.