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Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
226
Dealing with complaints against police
That in all jurisdictions the process for dealing with complaints against police need to be urgently reviewed. The Commission recommends that legislation should be based on the following principles:
a) That complaints against police should be made to, be investigated by or on behalf of and adjudicated upon by a body or bodies totally independent of Police Services;
b) That the name of a complainant should remain confidential (except where its disclosure is warranted in the interests of justice), and it should be a serious offence for a police officer to take an action against or detrimental to the interest of a person by reason of that person having made a complaint;
c) That where it is decided by the independent authority to hold a formal hearing of a complaint, that hearing should be in public;
d) That the complaints body report annually to Parliament;
e) That in the adjudication of complaints made by or on behalf of Aboriginal persons one member of the review or adjudication panel should be an Aboriginal person nominated by an appropriate Aboriginal organisation(s) in the State or Territory in which the complaints arose. The panel should also contain a person nominated by the Police Union or similar body.
f) That there be no financial cost imposed upon a complainant in the making of a complaint or in the hearing of the complaint;
g) That Aboriginal Legal Services be funded to ensure that legal assistance, if required, is available to any Aboriginal complainant;
h) That the complaints body take all reasonable steps to employ members of the Aboriginal community on the staff of the body;
i) That the investigation of complaints should be undertaken either by appropriately qualified staff employed by the authority itself, or by police officers who are, for the purpose of and for the duration of the investigation, under the direction of and answerable to, the head of the independent authority.
j) That in the course of investigations into complaints, police officers should be legislatively required to answer questions put to them by the head of the independent authority or any person acting on her/his behalf but subject to further legislative provisions that any statements made by a police officer in such circumstances may not be used against him/her in other disciplinary proceedings;
k) That legislation ensures that the complaints body has access to such files, documents an information from the Police Services as is required for the purpose of investigating any complaint.
Actions Taken Since Last Review
Victoria Police
In 2023, Victoria Police was consulted on implementation of Recommendation 226 and provided the following response.
Part (a)
The Victorian model for handling of police complaints is shared between IBAC and Victoria Police, with IBAC having authority to investigate complaints against Victoria Police and the wider public sector. Most complaints about the behaviour or conduct of police officers are managed directly by Victoria Police. More serious complaints of criminality are investigated by experienced detectives attached to Professional Standards Command within Victoria Police. Less serious criminal matters may be referred to regional detectives for investigation. Matters of underperformance, service delivery and customer service are referred to the line manager of the subject of the complaint. Allegations of serious police misconduct are investigated by IBAC.
While legislation permits IBAC to investigate matters that are not criminal in nature, in practice, IBAC limits its direct investigations to the most serious criminal allegations. IBAC refers most police complaints to Victoria Police for investigation or management. IBAC also has a review function and regularly reviews individual complaint investigations, including from a systemic perspective. Complaints may be received by IBAC or directly by Victoria Police. If Victoria Police receive a serious complaint, they must also notify IBAC. The decision of the inquiry officer is reviewable at an independent tribunal.
The establishment of an independent body or process wherein all police complaints are investigated outside of Victoria Police is a matter for the Victorian Government.
Part (b)
An agreement has been reached with the Victorian Aboriginal Legal Service (VALS) for the confidential handling of particular complaints. While the identity of the complainant of a police complaint is confidential police information, disclosure of the identity of the complainant will have to occur to certain employees in order to conduct the investigation. An example would be collection of police documents or obtaining CCTV from a police station. This process will require the investigator to either identify the complainant or the time of the incident to other employees in order to gather the relevant evidence. The process of seeking an account from the subject employee, whether a formal criminal or disciplinary interview for more serious matters or straight forward questions for lower-level allegations cannot be done without identification of the complainant to the subject employee. There are a range of criminal and disciplinary offences designed to protect complainants from detrimental action for having made a complaint:
- Taking detrimental action against an employee who has made a complaint to Victoria Police s.173(1)(a) Victoria Police Act 2013 (120 penalty units/1 year imprisonment)
- Taking detrimental action against an employee who has made a complaint to IBAC s.173(1)(b) Victoria Police Act 2013 (120 penalty units/1 year).
- Taking detrimental action against an employee who is believed to have made a complaint s.173(1)(c) Victoria Police Act 2013 (120 penalty units/1 year).
- Detrimental action against a civilian is a discipline offence and would result in discipline inquiry with termination of employment likely.
Part (c)
Complaints investigations are not normally conducted by way of ‘formal hearing’ in Victoria. ‘Formal hearings’, whether public or otherwise, would normally follow the investigative process, as, to do otherwise would be detrimental to the integrity of the investigation and outcome. Many complaint investigations result in either formal court proceedings, which are generally open to the public, or in discipline proceedings, which currently in Victoria, are not public proceedings.
Part (d)
Victoria Police and IBAC both report annually to Parliament. The Victoria Police annual report includes complaint data.
Part (e)
The Ombudsman has an investigative and recommendatory, rather than an adjudicative, function. This recommendation is therefore not applicable to the current model of complaint handling in Victoria.
Part (f)
There is no cost to the complainant in the making or investigation of a complaint in Victoria.
Part (g)
The funding of Aboriginal Legal Services is not in the remit of Victoria Police.
Part (h)
Professional Standards Command (PSC) has five Police Aboriginal Liaison Officers (PALOs) who are now trained to represent each of the PSC Investigative divisions. When the Police Conduct Unit identifies an Aboriginal person is involved in the reported complaint, they will alert the PALO PSC Network who will be proactive in engaging with the person to explain the complaint process and link them in with the local Aboriginal Community Liaison Officer (ACLO) or PALO to provide ongoing support through the process from start to finish. Executive Command has recently approved an Aboriginal Complaints Officer position at PSC. Victoria Police also has an active policy of encouraging Aboriginal recruitment through various programs and initiatives, as outlined under recommendation 229.
Part (i)
Investigators of criminal complaints appointed to PSC must be qualified detectives and have previous investigative experience. They also hold supervisory ranks. Investigators employed directly by IBAC have previous experience usually at a police agency. A sworn police officer appointed to another agency remains answerable to the Chief Commissioner of Police.
Part (j)
Police employees under investigation for a criminal offence retain the right to not answer questions or self-incriminate. For the purposes of an investigation into a complaint, any police officer or Protective Services Officer (PSO) may be directed to give information, produce a document or answer questions. Any response given is not admissible in evidence before a court or tribunal other than a disciplinary inquiry, perjury proceedings or a review of that inquiry s.171 Victoria Police Act 2013. There is a similar provision for the investigation of a protected disclosure complaint s.176 Victoria Police Act 2013. IBAC has an identical power under the s.84 Independent Broad-based Anti-Corruption Commission Act 2011. Failure to obey a direction under these provisions is a breach of discipline and may result in the termination of the employment of the officer. There are no similar provisions for Victoria Police public servants.
Part (k)
For complaints of criminality Victoria Police investigators have available the full suite of investigative tools, including search warrants, surveillance, telephone and other communication intercept warrants and coercive hearings to obtain evidence. Victoria Police staff are expected to assist investigators with the provision of files, documents and other evidence held by Victoria Police without the need to resort to a search warrant. For noncriminal complaints that amount to misconduct, Victoria Police investigators may direct a police officer or PSO to answer questions and produce documents. Failure or refusal is a breach of discipline. IBAC has a full suite of investigative tools including search warrants, surveillance, telephone and other communication intercept warrants and coercive hearings to obtain evidence. Victoria Police staff are expected to assist IBAC with the provision of files, documents and other evidence held by Victoria Police without the need to resort to a search warrant.