Aboriginal Law Bulletin
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by Ian Robinson and Marshall Irwin
Extracted from a paper presented at the FAIRA "Tivo-Laws" Conference, Brisbane, December 1990.
The Fitzgerald Inquiry began in July 1987 with comparatively narrow terms of reference and time frame within which to report. Although widespread police corruption was clear from the start, it was only part of a much bigger problem.
To accommodate these revelations, the terms of reference were expanded. The term of the inquiry also grew from an initial six weeks to two years.
The Inquiry examined activities involving prostitution, unlawful gambling, illegal drugs, misconduct within the Queensland Police Service, payments to political parties, and other matters concerning possible criminal activity, neglect or violation of duty, and official misconduct or impropriety.
The Inquiry Report addresses a number of changes in the administration of criminal justice, the Police Service, and in the public sector. The latter including but not limited to:-
(i) the electoral system;
(ii) administrative laws and processes;
(iii) powers and composition of tribunals and boards;
(iv) freedom of information legislation;
(v) laws relating to public assembling, including' demonstrations and street marches;
(vi) guidelines for politicians to disclose pecuniary interests, declaring donations to political parties, checking the use of public monies, and appointment to senior public positions.
To this end, Fitzgerald recommended the appointment of the Electoral and Administrative Review Commission and the Criminal Justice Commission as the agents of reforms across the public sector.
The Criminal Justice Commission (CJC) came into existence in April, 1990, when all provisions of the Criminal Justice Act 1989-1990 (CJ Act) came into force. It has been established as a permanent, independent and accountable body whose responsibilities include advising on the effectiveness of the administration of criminal justice, reporting on the implementation of the Fitzgerald recommendations and overseeing reform of the Police Service[1].
The CJC has established a number of organisational units through which to carry these responsibilities into effect. These are:-
The Queensland Police Service had become highly politicised. The Inquiry unearthed political intrusion reaching beyond administrative policy and into operational control of police matters.
Within the "police culture" had developed a number of dysfunctional elements from which there radiated the hydra-like tentacles of the cancer of the corruption which had affected Queensland. Fitzgerald observed that:- "Criminal members of a police force merely echo the society generally. They assume greater significance because of their role and authority. However, a completely new dimension is added if a police culture exhibits features which do not accord with the general social structure, especially involved in contravention of the law. The effect is worse if the culture also incorporates a code which provides for a different approach to the enforcement of the law in relation to police officers, and insists that, in conflicts between the law and the code, the code prevails. The practical exercise of police authority, in adherence to such a code, effectively places police officers beyond the law.
Both the community and the police force pay a heavy price as the effects of a 'culture of misconduct' spread and sap the moral vigour of the entire police force'.[2]
This was the malaise to which Queensland had fallen victim and it has had a particular impact on police / Aboriginal and Islander relations, an aspect beyond the terms of reference of the Inquiry. That is, it has been a significant element in the process which Barbara Miller reminds us:-
"has led to a situation where Aborigines are forty (40) times more likely to be placed in police custody than non-Aborigines..."[3]
Murris are also familiar with the risks of reporting misconduct, quite apart from there being little prospect of appropriate action. Even those police who spoke out about police misconduct achieved nothing but hardship. It was those who reported it, rather than those reported, who were punished. The allegations were never adequately investigated and virtually never sustained, a situation which was exacerbated by the complete failure of the Police Internal Investigations Section (PITS) and the Police Complaints Tribunal (PCT).
Fitzgerald concluded that the PIIS had provided warm comfort to corrupt police. It had been a friendly, sympathetic, protective and inept overseer and recommended that it be abolished.
The PCT was itself wholly dependent on the Police Service. It had no resources from outside the very institution into which it was inquiring.[4] The situation had arisen whereby the Police Service was no longer accountable for its actions.
The public exposure of this state of affairs by Fitzgerald, although painful to the many. officers of integrity within the Police Service, created the atmosphere for reform. The recommendations provide the recipe for that reform. The CJC is part of that recipe.
In accordance with the Fitzgerald recommendations, both the PITS and the PCT have been abolished. Now, all complaints concerning "misconduct" against police must be lodged to the Complaints Section in the new Official Misconduct Division of the CJC.[5]
Any person may lodge with the Complaints Section a complaint or information concerning conduct that is perceived as, or may be "official misconduct".[6]
There is no set form of complaint. It can be made in person, by telephone or in writing to one of the complaint officers in the Brisbane office of the CJC. A 24 hour service is provided via (008) 773 342.
Between April and November in 1990, the Complaints Section received over 1200 complaints. Almost 70% were against police.[7] It must, however, be emphasised that only a very small proportion (less than 10%) of those complaints against police have resulted in disciplinary action and even less in criminal charges.
The Chief Complaints Officer has power under the CJ Act to dismiss frivolous or vexatious complaints.[8] Others are assessed as not warranting investigation for reasons including age and inherent implausibility.
Complaints investigated by the CJC are assessed and fall into one of a number of categories.
(i) that there is no evidence or insufficient evidence to substantiate the complaint;
(ii) that there is prima facie evidence to support either:(a) a criminal offence - in which case the CJC will furnish a report to the Director of Public Prosecutions or Special Prosecutor;
(b) a disciplinary charge of "official misconduct" - in which case the CJC will report to the Police Commissioner for the matter to be dealt with by a Misconduct Tribunal; or
(c) a disciplinary charge of "misconduct" - in which case the matter is referred back to the Police Commissioner to take appropriate disciplinary action and report to the CJC.
"Official Misconduct", broadly defined, includes behaviour which involves dishonesty, lack of impartiality or breach of trust in performance of duties, or involves the misuse of official information.[9] In addition the conduct must either constitute a criminal offence or provide reasonable grounds for termination of employment.
If a charge of official misconduct is made out, the Tribunals have the option to order dismissal, reduction in rank or salary level, forfeiture of deferment of a salary increment, or deduction from periodic salary or termination entitlements.[10] Such Misconduct Tribunal decisions are subject to judicial review on the basis of denial of natural justice, error of law or manifest excessiveness of penalty.[11]
Thus it can be seen with the establishment of the Official Misconduct Division, the creation of the disciplinary offence of "official misconduct" and the Misconduct Tribunals, there is, for the first time, a real independence in the investigation of complaints against police.
Allied with this independence is protection for "whistle blowers" from intimidation, harassment, victimisation or other prejudice.[12]
Accordingly, the question is no longer one in which both honest police and civilians who report police misconduct risk serious detriment with little prospect of appropriate action.[13]
The aim of the CJC in the Fitzgerald process is to assist and improve existing institutions and systems rather than to supplant them - to allow units of the public sector, including the Police Service, to work properly. Therefore, in its recommendations for reform of the administration of criminal justice, the Fitzgerald Report does not offer Aborigines and Islanders anything radical. For that to occur, one would need to commence by challenging rather than accepting the appropriateness of the British system of law and order. But the fact that the inquiry proceeded on the basis of the latter, does not mean that it has nothing to offer Aborigines and Islanders.
The report contains an invitation for all Aborigines and Islanders to be instrumental from now on in setting the agenda for policing. Within that there is scope to incorporate, where desired or appropriate, some aspects of customary law. The extent to which that is achievable, in the absence of formal legislative recognition, need only be qualified by conflict with the general law.
Perhaps the most significant initiative of reform for Aborigines and Islanders is recognition that community involvement is essential to successful police work.
Fitzgerald recommended that Community Policing be adopted as the primary policing strategy throughout Queensland. The Queensland Police Service now accepts community policing as "an approach to police work which recognises and fosters a partnership between the police service and the community it serves. It involves police and community working together to identify and solve policing problems."[14]
Its thrust and ultimate goal is crime prevention. It is most effective if organised and practiced within a holistic local community framework.
Community based policing takes on a particular emphasis on Queensland and Aboriginal and Islander communities, where as Barbara Miller states:
"We have a law and order crisis and social crisis... of major proportions. It is time governments respond and in such a way as to empower Aboriginal people to find their own solutions at a local community based level."[15]
Historically, most policing strategies in the western world, and Queensland is no exception, have been organised along paramilitary lines featuring a centralised command structure and, at an operational level, providing an emergency reaction to specific incidents. They never get beyond addressing the symptoms of broader problems.
In terms of the crime-preventive goal of policing, this "incident-centred" approach has proved largely counter-productive in a contemporary community context. Police neither solve problems nor effectively prevent crime. The net result is a waste of resources and a rapid erosion of the fabric of many Aboriginal and Islander communities.
Community based policing is about each community recognising and accepting ownership of its own problems and then drawing upon police skills, training and other resources to help solve those problems.
Perhaps somewhat beyond the scope of the Fitzgerald Report, but entirely consistent with the recommendation for community based policing in an Aboriginal and Islander context, is the necessity for formal incorporation of aspects of customary law and alternative community dispute resolution and mediation strategies.
As part of a process, which will lead to decentralisation and streamlining of command responsibility, the state has been divided into a number of Regional Commands. Regional Commanders have control over, and are accountable for, resources including money, staff and equipment.
A key assumption of community policing is that communities have different policing problems and thus priorities. In order for policing to be adaptable and responsive, subordinate Commanders must have freedom to act according to their reading of local conditions.
Increasing police accountability to local communities involves consulting and working with local individuals, groups and institutions as well as liaising with minority groups and groups with whom relations are weak.
A major initiative aimed at achieving these is the formation of community consultative committees which are an attempt to mobilise public participation, assess consumer opinion about police services and communicate information that will help police effectively carry out duties. In this regard, Australia is still largely in an infancy stage compared with overseas. This may be attributed in part to the absence in Australia of a tradition of local control over police. But as already outlined, since the Report of the Commission of Inquiry, the Queensland Police Service has begun a move towards decentralisation of command to take advantage of the benefits of localised police autonomy.
At least one Aboriginal community/police liaison committee has been established and operating at Cherbourg for some time. It is understood that others are in the process of being established around the State.
Consistent with Fitzgerald recommendations, the Queensland Police Service has embarked upon a program of civilianisation to the point where police will not occupy positions not requiring the exercise of police powers. It is estimated that 25 % or 1500 of the present 6000 police positions fall into this category. The significance of this for future community policing will be two-fold. Firstly, many more police will be released for operational duties, doing the work for which police are primarily trained, and secondly the Police Service will also benefit from a personnel profile which is more reflective of the social diversity existing in the broader community. The Police Service as a whole and operational police as individuals will in turn identify more closely with the general community rather than be viewed, or see themselves, as social outcasts.
This presents a real employment opportunity for Aboriginal and Islander people in non-operational duties whereas historically, for many reasons, it has been difficult if not impossible for Aborigines and Islanders to get employment in the Police Service.
A professional recruitment and selection process has been implemented with the aim of attracting and recruiting those who will, with good training become honest and effective police officers who will attract community respect and support[16] Aboriginal or Islander nominees will sit on selection panels where cultural considerations are relevant.
As part of that overall process and the community policing strategy, Fitzgerald recommended:-
"Staff with language abilities and culture skills are to be recruited to gain the acceptance and co-operation of ethnic and Aboriginal communities[17]."
An Aboriginal consultant recently seconded from DEBT commenced a project appointment with the Queensland Police Service to identify ways of employing Aborigines and Islanders in the Service. This will include assessing the need for bridging courses, developing appropriate recruitment selection criteria, establishing regional rather than Brisbane-based training centres supplemented by on the job training. These are by no means new concepts and have been explored and recommended by the Aboriginal Co-ordinating Council for some time. But, it is encouraging to learn that the Queensland Police Service is actually moving towards adopting them.
Allied with the new recruitment and selection strategies is the development of a tertiary accredited education program which is designed to better equip the police with a sense of balance both enforcing the law and serving the community.[18]
In an effort to ensure that all policing initiatives affecting Aborigines and Islanders are undertaken having regard to relevant cultural considerations, the Queensland Police Service is currently developing an Aboriginal and Torres Strait Islander and ethnic minority strategy for policing throughout Queensland.
It is the view of the CJC that by virtue of the legislative framework and new model (in particular the active pursuit of the strategy of partnership and problem solving involving both the police and the community) which is being implemented by the Queensland Police Service under its new command structure, that the seeds of accountability have been sown and are flourishing more with each passing day.
Aboriginal and Islander people should be encouraged to grasp the opportunity provided by Fitzgerald to set the agenda for policing within their communities. This means being instructed in developing and implementing strategies tailored to suit each community's particular needs and priorities.
[1] Criminal Justice Act, s.2.15(i)
[2] Report of a Commission of Inquiry Pursuant to Orders in Council, p.200
[3] Barbara Miller, "Crime Prevention and Socio-Legal Reform on Aboriginal Communities in Queensland", p.11. Presented to the conference: Police and the Community in the 1990's, October 1990, Brisbane.
[4] Report of a Commission of Inquiry Pursuant to Orders in Council, p.290
[5] Criminal Justice Act, s.2.27(2)
[6] ibid, s.2.28(1)
[7] Total number of complaints received for the 12 months to April 1991 is almost 2000 of which approximately 77% have been against police.
[8] Criminal Justice Act, s.2.29(b)
[9] ibid, ss.2.22 and 2.23
[10] ibid, s.2.44(1)
[11] ibid, s.2.38(1)
[12] ibid, ss.3.32 and 6.6; Police Service Administration Act 1990, s.7.3.
[13] Report of a Commission of Inquiry Pursuant to Orders in Council, p.204
[14] QLD Police Service Community Policing Support Branch draft Strategic Plan
[15] Barbara Miller, Op. Cit., p.12.
[16] Report of a Commission of Inquiry Pursuant to Orders in Council, p.245
[17] ibid, p.381
[18] ibid, p.250
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