AustLII Home | Databases | WorldLII | Search | Feedback

Indigenous Law Bulletin

Indigenous Law Bulletin
You are here:  AustLII >> Databases >> Indigenous Law Bulletin >> 2007 >> [2007] IndigLawB 33

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Eggington, Dennis; Allingham, Kate --- "Police Investigating Police Complaints: An Urgent Need for Change in Western Australia" [2007] IndigLawB 33; (2007) 6(28) Indigenous Law Bulletin 6

Police Investigating Police Complaints: An Urgent Need for Change in Western Australia

by Dennis Eggington and Kate Allingham

The Western Australian (‘WA’) police complaints procedure is woefully inadequate. In the past 10 years of dealing with police complaints, civil lawyers at the Aboriginal Legal Service of WA (‘ALSWA’) can only recall one example where a complaint has been decided in favour of the client. Between 2004 and 2006, of the 2630 complaints made about police, only 561 were substantiated.[1] This means that 79 per cent of complaint investigations did not find fault with police conduct. In 2004-2005, 11 police complaints were conciliated. In 2005-2006 there were no conciliations on police complaints.[2]

Based on the data retrieved from ALSWA’s archives, and confirmed by the Annual Report 2006: WA Police,[3] the substance of most public complaints about police is assault by police, use of force, and professionalism. Anecdotally, many of ALSWA’s clients complain about discrimination by police in the exercise of their discretion.

ALSWA believes that the key reason for the above statistics is that the majority of police complaints are investigated by the police themselves. In WA, people have the option of submitting a police complaint either directly to the police or to the Corruption and Crime Commission (‘CCC’). The current procedure is that all police complaints are referred by the CCC back to the police for investigation.

Most police complaints by ALSWA’s clients are dealt with through the Local Complaints Resolution (‘LCR’) process, which is conducted by the WA Police. The objectives of this process include the ‘speedy resolution of complaints of a minor nature, whilst adhering to high standards of thoroughness and accountability’ and ‘demonstrating to members of the public that WA Police take its complaints seriously and seek to resolve them in the most appropriate manner.’[4] ALSWA contends that this process achieves neither of these objectives.

ALSWA’s experience of the LCR process is that upon receiving a complaint, police contact the complainant with a ‘WA Police Complaint Resolution Report’ form. The complaint form contains a statement on the matter prepared by police. There is no area on the form for the complainant to write or attach a prepared statement. ALSWA clients instruct that the police officer does not request the complainant’s version of events and also asks the client to sign the statement without explaining the form’s contents or the process of review. ALSWA clients also say that at no time does the police officer ask about any witnesses or contact any witnesses she/he is advised of. The officer simply asks the complainant to sign the form on the spot, which includes a box indicating that the complainant accepts that all possible action has been take to attempt resolution and does not require further action.[5]

ALSWA argues that the way in which police deal with clients in relation to the LCR process virtually guarantees that complaints will not be pursued, as is the case for a number of ALSWA clients. The attendance of uniformed police at clients’ homes asking them to complete LCR forms gives clients the impression that they are in trouble. Some ALSWA clients are illiterate or semi-literate and do not understand the contents of the form, but due to feelings of shame and fear of police they are reluctant to advise police of this. ALSWA’s clients say they usually sign the form without understanding its purpose or contents. Clients have also complained that sometimes the LCR process is conducted at the same police station where the complaint arose, especially in regional and remote areas. This compounds clients’ feelings of vulnerability and intimidation and provides a powerful disincentive to pursuing the complaint.

Complaints that go through the LCR process are characterised as ‘minor’. However the LCR process has been used for serious police complaints, including one case of sexual assault of a juvenile by a police officer.[6] This police complaint was not resolved satisfactorily, partly because the complainant refused to respond to police correspondence. In light of what she said had occurred, this is not surprising. The fault for the failure must rest with the police complaints process itself rather than with the complainant.

By law the WA Police must forward the outcome of all police complaints, stating details of the investigation and the outcome, to the CCC for an ‘independent review’.[7] This review is generally limited to the material provided by police because the CCC rarely interviews the complainant, does not interview witnesses identified by the complainant and if it requires further information, requests it via the police.

In one ALSWA case, a female complainant alleged that she had been held down by three officers and kicked by a police sergeant. Despite video evidence supporting the woman’s claims, the police investigation concluded that the complaint could not be substantiated. The CCC reviewed the police findings and described the action of the sergeant as ‘deliberate’ and ‘unprofessional’.[8] Under section 85 of the Corruption and Crime Commission Act 2003 (WA), the CCC has the power to make a formal report to Parliament, but chose not to do so, stating that, ‘this power [to report] should be used to highlight matters of public interest’ and ‘given the relatively minor nature of the alleged assault’ it was not appropriate to take further action.[9]

The CCC process brings no satisfaction to ALSWA’s clients, either in relation to the procedural fairness of the investigation process or the effectiveness of the process in resolving grievances. This applies both to the CCC’s role in responding to complaints and its broader role in helping the WA police to effectively and appropriately respond to misconduct.

The CCC practice of forwarding police complaints to the police for inquiry has resulted in virtually all police complaints being investigated by the police themselves.

There is a body of evidence, including the Fitzgerald Inquiry,[10] the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’)[11] and the WA Ombudsman’s Reporting Police Misconduct,[12] indicating that police investigating police is neither procedurally fair nor an effective way of responding to police complaints.

The Fitzgerald Inquiry summarised what it saw as key aspects of police culture, including a high degree of cohesiveness and solidarity among police; a sense of isolation and marginalisation from mainstream society as a result of the nature of their work; and a sense of powerlessness and frustration arising from the limitations of the effectiveness of law enforcement. These attitudinal characteristics were said to be coupled with a range of structural opportunities for corruption and misconduct, including abuse of the use of discretion, subversion of suspects’ rights, and opportunities for illegal personal gain.[13] The RCIADIC found that police had an inability to investigate other police; police investigations into Aboriginal deaths in custody were found to be ‘neither thorough, objective nor impartial’.[14] The WA Ombudsman found that WA police often do not report misconduct and that their decisions about reporting misconduct are grounded on police officers’ perceptions of the incident, with these perceptions being heavily influenced by loyalty to other officers; fear of reprisals; beliefs about what constitutes ‘common practice’ within the policing profession; and personal perceptions about what constitutes misconduct.[15]

The current police complaints process in WA does not use the complaints process as an opportunity to resolve grievances. Instead complaints are managed in an adversarial manner reminiscent of a criminal law courtroom in which the complainant has to prove their version against the police service’s. With such a set up the complainant’s version of events is hard to substantiate. The complainant is often left feeling disempowered, frustrated and angry. Any hostility that the complainant previously felt towards police is confirmed by the process.

High levels of interaction between police and Aboriginal people has resulted in Aboriginal people being major, though not sole, actual or potential users of the police complaints process. The existing poor relations between police and Aboriginal people make it essential that the police complaints process deals with complaints fairly and effectively. Addressing complaints should be used as an opportunity to improve the confidence and trust of the Aboriginal community in police procedure.

ALSWA proposes that the current process be replaced by a revamped CCC that is divided into two specific bodies: one to investigate corruption and one to investigate police complaints. The CCC’s current focus is the investigation of serious misconduct cases and corruption issues. In so doing the CCC is neglecting its function of thoroughly reviewing the outcomes of investigations into police complaints. ALSWA also advocates for the establishment of a specific Aboriginal Police Complaints Unit within the CCC similar to that which already exists in NSW. The systematic overrepresentation of Aboriginal people in the criminal justice system should make this addition to the police complaints process a priority.

The current police complaints process in WA is both unjust and procedurally ineffective in successfully resolving complainant’s grievances. An urgent review of the CCC’s procedure in dealing with police complaints needs to be undertaken. ALSWA’s submissions and recommendations should be fully taken into account throughout the review process.

Dennis Eggington is the Chief Executive Officer of the Aboriginal Legal Service of Western Australia (‘ALSWA’). A Noongar man, he is widely known throughout the country for his work within the justice system, and is frequently called upon to share his views on the complex issues facing Indigenous people. Kate Allingham is a Policy Officer with the Aboriginal Legal Service of Western Australia (‘ALSWA’). She is an Honours Graduate in Politics and is currently studying Law.


[1] Western Australia Police, Annual Report2006: WA Police (2006) 47-48 <http://www.police.wa.gov.au/AboutUs/AboutUs.asp?AnnualReport> at 13 July 2007.

[2] Ibid.

[3] Ibid 48.

[4] Western Australian Police Complaints Administration Centre, Local Complaints Resolutions Manual, 1.

[5] The standard for used is the Western Australian Police Service Complaint Resolution Report (2006).

[6] ALSWA police complaints archive file No PE20051832 (2005).

[7] Corruption and Crime Commission Act 2003 (WA) s40(1).

[8] Letter from Corruption and Crime Commission (WA) to ALSWA, 21 September 2005.

[9] Ibid.

[10] G E Fitzgerald, Report of a Commission of Inquiry Pursuant to Orders in Council – Inquiry into Possible Illegal Activities and Associated Police Misconduct (1989).

[11] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991).

[12] Ombudsman of WA, WA Police Service and the Sellenger Centre, Reporting Police Misconduct, (2001) 5. <http://www.ombudsman.wa.gov/au/pdf/reports/reporting_police_misconduct.pdf> at 13 July 2007.

[13] Fitzgerald, above n 10, 199-213.

[14] Commissioner J H Wootten, Report of Inquiry into the Death of Clarence Alec Nean, Royal Commission into Aboriginal Deaths in Custody (1991) 298.

[15] Ombudsman of WA, WA Police Service and the Sellenger Centre, above n 12, 5.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/2007/33.html