Boag, Nick; King, Jeremy; Williams, Merys --- "Police accountability in Australia: complaint mechanisms and civil litigation" [2017] PrecedentAULA 69; (2017) 143 Precedent 14

---

POLICE ACCOUNTABILITY IN AUSTRALIA

COMPLAINT MECHANISMS AND CIVIL LITIGATION

By Nick Boag, Jeremy King and Merys Williams

In Australia, the community seeks to hold police accountable through complaint processes, coronial and parliamentary inquests, Royal Commissions, court proceedings and in the media.

The most accessible avenues for holding police accountable are complaint mechanisms and civil litigation. Complaints against police come from a wide sector of the community and can range from concerns over the use of foul language to more serious cases of assault perpetrated by officers against individuals. An effective complaints process is integral to police accountability. Inquiries into police complaint systems worldwide ‘consistently find that the failure to properly investigate and adjudicate complaints is a major contributor to the entrenchment of police corruption’.^[1] The failure to investigate police complaints adequately contributes to a breakdown in community trust in, and respect for, police and in the rule of law.

Unfortunately, many individuals who lodge a complaint against police find that their complaints are inadequately or inappropriately dealt with. These complainants often turn to civil litigation as a last resort to hold the police accountable for misconduct. Civil litigation usually compromises a civil suit for damages against the Crown for a variety of unusual torts such as malicious prosecution, false imprisonment and misfeasance in public office. These claims can also often involve more common torts, such as negligence, assault and battery. Usually by the time an individual gets to the point of instituting civil proceedings, the damage to the individual’s confidence in the police is already undermined. Public confidence in the police and the rule of law is further eroded each time police misconduct is dealt with in a cursory manner by the police and the relevant complaint bodies.

POLICE COMPLAINTS

Traditionally, either senior officers or specific departments within a police force deal with police complaints internally. However, such complaint mechanisms often either appear to lack sophistication or, in some cases, to deliberately protect police officers guilty of misconduct.^[2] Civilian review of complaints through an Ombudsman or anti-corruption body is therefore an important first step in ensuring that police complaints are dealt with fairly and effectively. This principle of civilian review is reflected across all jurisdictions in Australia to differing degrees. Some jurisdictions have empowered independent bodies to oversee and audit complaints handled internally by police, while in other jurisdictions, independent bodies are able to commence own motion investigations into serious police misconduct and corruption.

Current complaint mechanisms around Australia

New South Wales

The Law Enforcement Conduct Commission (LECC) commenced operation in 2017. Created in response to recommendations made by former New South Wales (NSW) Shadow Attorney General Andrew Tink,^[3] the LECC replaced the Police Integrity Commission and the police oversight functions of the NSW Ombudsman.

Sadly, the LECC has not been granted all oversight power as recommended in the Tink Review. While the LECC is able to investigate allegations of police misconduct or excessive force that do not lead to serious injury or death, investigations of ‘critical incidents’ will continue to be self-investigated by police with oversight from the LECC. However, the LECC’s capacity to effectively oversee such investigations is restricted as it is only permitted to observe interviews with the consent of the interviewee and the critical incident investigator.

Unlike the Ombudsman before it, the LECC does not have the power to conduct ‘public interest’ investigations, removing the ability for systemic investigations into police misconduct in NSW.^[4]

Northern Territory

The Northern Territory (NT) Ombudsman is able to receive and investigate complaints regarding the conduct of police officers and to make recommendations about action in relation to them. A complaint must be made within one year of the conduct subject to the complaint. In 2015-16, the Ombudsman received 498 approaches relating to police conduct, 11 of which were sustained. Sixty-eight complaints were dealt with by way of a complaint resolution process undertaken by NT Police.^[5]

Queensland

Police complaints in Queensland are overseen by the Crime and Corruption Commission (CCC) but are the primary responsibility of the Police Commissioner.^[6] The CCC may issue guidelines regarding how complaints should be investigated, review and audit complaints, or investigate a complaint involving police corruption.^[7]

South Australia

The South Australian (SA) Office of the Police Ombudsman ceased operation in September 2017. Responsibility for police oversight now rests with the Office of Public Integrity (OPI) and is governed by the Police Complaints and Discipline Act 2016 (SA). Management of complaints is primarily the responsibility of the Internal Investigations Section (IIS) of SA Police with oversight from the OPI. The OPI is able to direct the SA Police Commissioner in relation to the handling of complaints, reassess complaints and reports made by the IIS, or refer complaints to the Independent Commissioner Against Corruption for investigation.

Tasmania

Complaints against Tasmania Police are mainly dealt with internally. The Integrity Commission monitors investigations, conducts an annual audit of complaints and reports its findings to Parliament,^[8] and is also able to conduct its own investigations. The Tasmanian Ombudsman ensures compliance by Tasmania Police with the requirements of police telephone interceptions, surveillance and controlled operations legislation.

Victoria

Most complaints regarding police conduct in Victoria are investigated internally by Victoria Police, with approximately 90 per cent of complaints being referred to regional or local area commands.^[9] The most serious of these complaints are investigated by Professional Standards Command (PSC), a department of Victoria Police.^[10]

Police complaints are overseen by the Independent Broad-Based Anti-Corruption Commission (IBAC) which replaced the Office of Police Integrity in 2013. Complaints regarding police personnel conduct^[11] can also be made directly to IBAC and account for 65 per cent of the complaints that IBAC receives.^[12] This figure is largely due to the requirement that the Chief Commissioner must notify IBAC of any complaint received,^[13] and the outcome of the investigation of that complaint.^[14] Once a complaint is referred to IBAC, it can either be dismissed, investigated or referred to the Chief Commissioner.^[15] IBAC is also able to instigate own-motion investigations, and has the power to conduct public hearings.

The Victorian Parliament’s IBAC Committee is currently holding an inquiry into the system for the oversight of police corruption and misconduct and will release its report no later than 30 June 2018.^[16]

Independence and international obligations

In Horvath v Australia,^[17] the UN Human Rights Committee held that, as a signatory to the International Covenant on Civil and Political Rights (ICCPR), Australia was under an obligation to ensure that perpetrators of human rights violations, and specifically those perpetrated by police authorities, are adequately held to account through an independent, effective and impartial investigation into their conduct.^[18] This obligation extends to the states and territories.^[19]

There has been a growing call in some states for the creation of independent bodies empowered to investigate all complaints against police as well as decide on disciplinary outcomes. No such body currently exists in Australia, meaning that Australia is in breach of its international human rights obligations. International examples, including the Police Ombudsman of Northern Ireland, Office of Police Complaints (Washington DC) and the Law Enforcement Review Agency (Manitoba, Canada), provide best practice examples. There is also an historical Australian precedent, albeit short-lived. The Victorian Police Complaints Authority (the PCA) operated between 1986 and 1988. The PCA’s willingness to act was evidenced by its complainant-focused attention to investigation. It operated a 24-hour complaint hotline and was willing to travel to complainants. It was also willing to exercise its power to investigate ‘public interest’ complaints, which included complaints made by ordinary people about police abuses. It conducted thorough re-investigations of complaints where complainants raised concerns about the initial police investigation. Further, it had a high media profile on trends and issues relating to police misconduct. Unfortunately, the PCA was seriously under-funded by the government and hampered by badly drafted legislation. It was shut down by the government within two years of its commencement following a powerful backlash from the Police Association.^[20] To date, it remains Australia’s only attempt at proper independent oversight of police.

CIVIL LITIGATION

Driven by their dissatisfaction with the complaints process, many individuals turn to civil litigation as a way to access meaningful justice. While civil litigation is generally daunting for individual litigants, it also provides an opportunity for a plaintiff to experience some sense of control over the process by being able to tell their story to an impartial umpire.

Liability of the Crown

The liability of police authorities under the common law is peculiarly distinct from the liability of other public authorities. Jurisprudence has followed the 1906 High Court decision of Enever v The King (Enever),^[21] which held that police officers were not servants or agents of the Crown as they have an ‘original authority’ and not a delegated authority.^[22] Therefore, the Crown was not vicariously liable for the actions of police officers, as they exercised an independent discretion in performing their duties. This is distinct from the law of vicarious liability that has developed in respect to employers/employees generally.

The principle in Enever has since been limited by statute in all Australian states and territories such that the Crown will now be liable for torts committed by police in certain circumstances.

However, although the exact phrasing varies between jurisdictions, the Crown is liable only for conduct done in the performance or purported performance of the police officers’ duties.^[23]

A more controversial requirement which exists in various forms in most jurisdictions is the ‘good faith or similar’ provision:

• The Commonwealth and NT governments will be liable for actions and omissions of the Australian Federal Police (which is also the police force in the Australian Capital Territory) and NT police respectively in the same way that an employer is vicariously liable for the conduct of an employee.^[24]

• The liability of the state in NSW^[25] and Queensland^[26] is not limited by any ‘good faith or similar’ provision.

• In Tasmania, the Crown is liable for the acts of its police officers where the tortious act or omission has been done in ‘good faith’.^[27] A similar provision exists in SA, where the state will be liable if the member has performed an ‘honest’ act or omission.^[28]

• Victorian legislation provides that the state will be liable unless the conduct giving rise to the tort was ‘serious and wilful misconduct’.^[29] It has been argued that this requirement is substantially the same as the ‘good faith’ requirement that it replaced.^[30]

• The Western Australian (WA) government will be liable for the conduct of its police members, provided that they acted ‘without corruption or malice’.^[31]

The ‘good faith or similar’ limitation on the liability of the Crown causes difficulties for plaintiffs as intentional torts significant enough to warrant civil proceedings are rarely assessed as having been performed in good faith. For example, malice must be proven in order to establish the tort of malicious prosecution. Therefore, the Crown will not be liable for malicious prosecution given that it is liable only for conduct of its officers performed in good faith.

As a result of the uncertainty caused by the ‘good faith or similar’ provisions, plaintiffs in some jurisdictions will name both the Crown and the individual police members as defendants to avoid the risk of non-suit. The worse the conduct of the members, the less likely it is that the Crown will be liable. A judgment against individual members also makes it less likely that a plaintiff will recover damages.

Recovery mechanisms

The legislative schemes provide for two different types of recovery mechanisms; one for recovery by the Crown and one for recovery against the Crown.

Recovery from police officer by the Crown

In Queensland, the Crown can recover a contribution from a police officer if the conduct was done other than in good faith and with gross negligence,^[32] while in WA the Crown is able to recover damages from the member if the member does not fully co-operate with its defence.^[33] The NSW and NT Acts specifically state that there is nothing in their respective legislation that prevents the Crown from bringing proceedings against individual police members claiming damages, indemnity or a contribution,^[34] whereas in Victoria, a police member is not liable to indemnify or to pay any contribution to the state where that officer has committed a police tort.^[35]

Recovery by the plaintiff from the Crown where unable to recover from police officer

Victoria and WA provide recovery mechanisms for a plaintiff who has been successful against the individual police officer but is unlikely to recover their damages.^[36] In Victoria, the plaintiff is also required to prove that all other avenues for recovery have been exhausted.^[37] In WA, any amount paid to the plaintiff in accordance with that mechanism represents a debt owed by the police officer to the Crown.^[38]

CONCLUSION

Ultimately, civil litigation is a valuable accountability tool where misconduct slips through the cracks of imperfect complaint mechanisms. Australia is moving towards a system in which the Crown is liable for the actions of its police force. This shift is important for plaintiffs who seek redress by means of civil litigation, as it provides them with surety of recovery if their claim succeeds. It also helps to minimise the cost of litigation as the plaintiff is no longer required to name the police officers as defendants. However, civil litigation is not without its drawbacks. The use of courts to prosecute these cases means that plaintiffs are faced with the burden of funding their litigation and the risk of an adverse cost order against them in the event that they are unsuccessful.

In light of the risks and uncertainty of civil litigation, it is critical that these cases remain a last resort for individuals seeking to hold police accountable for misconduct. Ensuring that individuals have proper access to strong complaint bodies without legal costs consequences is vital to ensuring proper police accountability. Current Australian complaint bodies and mechanisms do not properly prevent police misconduct or meet Australia’s international human rights obligations. Until adequate police complaint mechanisms exist, many individuals will continue to take a risk with civil litigation in order to obtain justice and a measure of impartial accountability.

Nick Boag is a solicitor for the Police Accountability Project at the Flemington & Kensington Community Legal Centre. PHONE [phone] EMAIL [e-mail]. Jeremy King is an Accredited Specialist in Personal Injury Law and Principal of Robinson Gill Lawyers. PHONE [phone] EMAIL [e-mail]. Merys Williams practises in injury law and police misconduct at Robinson Gill Lawyers. PHONE [phone] EMAIL [e-mail].

---

^[1] Jacqueline Drew and Tim Prenzler, Contemporary Police Practice, Oxford University Press, 2015, p231.

^[2] Tim Prenzler, ‘Independent Investigation of Complaints’ in Tim Prenzler and Janet Ransley (eds), Police Reform: Building Integrity (Hawkins Press, 2002) 185, 186.

^[3] Andrew Tink, Review of Police Oversight (2015) <http://www.justice.nsw.gov.au/justicepolicy/Documents/review-police-oversight/review-police-oversight-final-report.pdf> (the Tink Review).

^[4] For a fuller critique of the LECC, see Police Accountability Project, ‘New South Wales police complaints system fails on too many grounds’ (2017) <http://www.policeaccountability.org.au/independent-investigations/why-the-nsw-law-enforcement-conduct-commission-is-no-model-for-victoria/> .

^[5] Northern Territory Ombudsman, Annual Report 2015-16.

^[6] Lenny Roth, ‘External oversight of police conduct’ (Briefing paper No. 6, NSW Parliamentary Research Service, 2015) 32.

^[7] Crime and Corruption Act 2001 (Qld), s47.

^[8] Integrity Commission, Annual Report 2014-15, 3.

^[9] Independent Broad-Based Anti-Corruption Commission, Audit of Victoria Police Complaints Handlings Systems at Regional Level: Summary Report (2016), 5.

^[10] Ibid.

^[11] Independent Broad-Based Anti-Corruption Commission Act 2011, s52.

^[12] IBAC, Exposing Corruption: Annual Report 2015-16, 17.

^[13] Independent Broad-Based Anti-Corruption Commission Act 2011, s57.

^[14] Ibid.

^[15] Ibid, s58.

^[16] IBAC Committee, Terms of Reference – Inquiry into the external oversight of police corruption and misconduct in Victoria (2017) <https://www.parliament.vic.gov.au/ibacc/inquiries/article/3799>.

^[17] Human Rights Committee, Views: Communication No. 1885/2009, 110^th sess, UN DOC CCPR/C/D/1885/2009 (22 April 2014) 17.

^[18] Ibid, [10].

^[19] ICCPR, art50.

^[20] Ian Freckelton, ‘Shooting the Messenger: The Rise and Fall of the Police Complaints Authority’ in Andrew Goldsmith (ed) Complaints Against the Police (Oxford University Press, 1991).

^[21] [1906] HCA 3; 3 CLR 969.

^[22] Ibid, 369.

^[23] See Australian Federal Police Act 1979 (Cth), s64B(1); Law Reform (Vicarious Liability) Act 1983 (NSW), ss8(1) & 9B(1); Police Administration Act (NT), s148B; Police Service Administration Act 1990 (QLD), s10.5; Police Act 1998 (SA), s65(1)-(2); Police Service Act 2003 (Tas), s84; Victoria Police Act 2013 (Vic), s72(1); and, Police Act 1892 (WA), s137(5)(a).

^[24] Police Administration Act (NT), s148C and Australian Federal Police Act 1979 (Cth), s64B(1), respectively.

^[25] A good faith requirement was contained in s9 of the Police Act 1990 (NSW) but was repealed by the Police Legislation Further Amendment Act 1996 (NSW).

^[26] Police Service Administration Act 1990 (QLD) s10.5 previously held that the Crown would be liable ‘in like manner as an employer is liable for tort committed by the employer’s servant’. However, this legislation was significantly amended in 2014 by the Public Service and Other Legislation (Civil Liability) Amendment Bill 2013 (QLD) and replaced s10.5 with a new provision.

^[27] Police Service Act 2003 (Tas), s84; Police Administration Act (NT), s148B.

^[28] Police Act 1998 (SA), s65(1).

^[29] Victoria Police Act 2013 (Vic), s74(1)-(2).

^[30] Joint Letter from Flemington & Kensington Community Legal Centre, Australian Lawyers Alliance et al to Dr Denis Napthine and others, 24 July 2014, 3 <https://www.lawyersalliance.com.au/documents/item/976>; Sophie Ellis, ‘Opinion: Why the Police Act needs changing’ (2014) 88(09) Law Institute Journal 28; Jeremy King & Merys Williams, ‘In Search of Certainty’ (2014) 88(12) Law Institute Journal 44, 46.

^[31] Police Act 1892 (WA), s137(5)(a).

^[32] Police Service Administration Act 1990 (Qld), s105(4).

^[33] Police Act 1892 (WA), s137(7).

^[34] Law Reform (Vicarious Liability) Act 1983 (NSW), s9E(b)-(c) and Police Administration Act (NT), s148G(1), respectively.

^[35] Victoria Police Act 2013 (Vic), s74(3)(b).

^[36] Victoria Police Act 2013 (Vic), s79 and Police Act 1892 (WA), s138(1)-(2), respectively.

^[37] Victoria Police Act 2013 (Vic), s79(2)(b).

^[38] Police Act 1892 (WA), s138(4).