What’s wrong with the current system?
In Australia police are rarely prosecuted or disciplined for the death assault or ill-treatment of a member of the public. This is not for lack of meritorious complaints. It is because the current system of accountability is not working.
An analysis of police complaint substantiation rates indicates that less than 10% of all complaints to police are substantiated, and less than 4% of all assault complaints are substantiated. However, when courts are given the chance to assess allegations of police mistreatment, they consistently find those allegations have substance, despite being dismissed by the police complaint system.
How are complaints against police are currently investigated in Victoria?
There are three ways Victorians can submit a complaints against police: at a police station, to the Police Conduct Unit, or the Independent Broad-based Anti-corruption Commission, (“IBAC”). While, in theory, IBAC can investigate complaints against police, in practice, the overwhelming majority of complaints by the public are sent back to the police for investigation or “management”. Consequentially police investigate themselves for allegations of unlawful and/or criminal conduct, disciplinary breaches, human rights abuses and other misconduct.
Limitations of IBAC
IBAC is not currently capable of holding police to account for misconduct. IBAC do not consider that they are a complaint resolution scheme, or that they are required to explain their decisions to complainants, or that they are required to adhere to natural justice in their decision making.
A further, critical weakness of the IBAC model is that it is not subject to Victorian Freedom of Information law because of a broad exemption in section 194 of the IBAC Act. This unreasonably removes a key avenue by which complainants can understand how their complaint was investigated.
“VICTORIA needs an independent authority to investigate complaints of racial profiling and misconduct by police, legal and human rights groups say.” Herald Sun, November 3rd 2015. Read the article here.
Bare decision affirms need for change
Read more about the Supreme Court of Appeal decision on the Nassir Bare case here.
A Magistrate found that the police trespassed when they searched a Sudanese boy’s house in breach of their search warrant.
The boy was charged with hindering police after running to his room and locking the door after it had been searched. Police broke down the door to his room and detained him. Police investigators had found these aspects of his complaint unsubstantiated. After the Magistrate’s decision, the Office of Police Integrity asked the police investigators to re-investigate.
It was only then that these aspects of the complaint were found to be substantiated.
More case studies available in the Policy Briefing Paper.
Designing a better system
Human rights standards and community expectations demand that investigations of complaints against police be conducted by a body which meets these five benchmarks:
1. Independent of the Police—hierarchically, practically, culturally and politically;
2. Capable of conducting an adequate investigation;
4. Open to public scrutiny; and
5. Victim-centred, and enables the victim to participate in the investigation
Implementing a body that meets these five requirements has been achieved elsewhere—the Police Ombudsman for Northern Ireland shows that a civilian run investigation service can investigate all complaints against police professionally, promptly and independently.
It is also affordable. There are currently 200 staff employed by the Victorian Police Conduct Unit. The money spent on police internal investigation could be re-directed into the independent body with a result that there will be very little overall cost to the budget.
More detail is available in the Policy Briefing Paper (PDF).