THE INTERNATIONAL SOCIETY FOR THE REFORM OF CRIMINAL LAW

Once his role was revealed, other detectives who had worked with him, or in similar areas, progressively rolled over and admitted their own involvement in corruption, and in systemic misconduct. Some of those detectives agreed to act undercover before publicly admitting their guilt, and so the net expanded. They also carried with them a number of criminals who similarly confessed their involvement, and supplied valuable information as to the networks, and the nature and extent of corruption and misconduct which existed.

The forms of corruption and systemic misconduct that were discovered as occurring on a regular basis, included:

What was of particular concern was the traditional respect offered to a class of detective, (the “metro cop”) seen as a hard officer, knowledgeable in the ways of the city, fraternising closely with organised crime figures, providing protection or favours for some, maintaining a degree of order through those associations, securing a high arrest rate using information supplied by favoured criminals and by falsification of evidence and forced confessions, all the while benefiting by being awarded promotions for ostensibly meritorious (but in fact corrupt) service, and receiving bribes or license fees.

C. WHY CORRUPT PRACTICES EMERGED

Corruption and systematic misconduct do not emerge suddenly. By their nature they are spawned in stealth, and only grow in a climate in which they are comfortable. There is precedent of each being a cyclical phenomenon. They are capable of being arrested if an effective system for accountability is in place, but they are equally capable of regenerating, and sometimes in forms, and to an extent, that are even more malignant than before.

The uncovering of these kinds of activity, invites the question, “why does this occur?” The reasons are several.

(a) The Crime Control Justification

There had been long term tolerance in New South Wales, as has been the case elsewhere, of “victimless crime” in the form of gaming, vice and unlicensed sales of liquor. The traditional justification for such tolerance, and for the willingness of police to accept payments for turning a blind eye, was that by allowing a chosen few to continue, such activities could be kept within acceptable limits. It was assumed that they caused no great concern, in a city the size of Sydney, for which a reputation for a degree of raciness and character did no harm. This excuse, for that is all that it is, conveniently overlooks the compromise of individual integrity, and the cynicism it breeds at all levels of the Police Service.

(b) Preservation of the Reputation of the Service

Another important circumstance, similarly shared with many other Services, has been the institutionalised pressure to suppress, or contain, the disclosure of corruption and systemic misconduct in the belief that this is in the best interests of the Service so far as its reputation and morale are concerned. A poor external reputation, so it is believed, will worry the public, reduce its co-operation and trust, and empower criminals. This kind of philosophy encourages:

It is an inevitable recipe for collapse of command responsibility for the maintenance of integrity, and it sends a powerful message to the ranks not only that the rhetoric of ethical policing to which they are exposed is empty, but also that the opposite is what is truly expected.

(c) The Thin Blue Line

Woven in and around these factors has been this aspect of the culture that is so much part of any Police Service.

In dealing with criminals, friendship, respect, and courtesy are not returned and it is easy to view the environment as hostile. It is also easy for police to feel that the value of their work is not appreciated, and that the public are far too ready to complain about minor matters.

Inevitably, in these circumstances police will band together, and develop an intense group loyalty. This loyalty is entirely positive if employed in the interests of legitimate policing, but it can easily be distorted, when called in aid by the corrupt.

It is a common expectation that a reputation for breaching the code of silence will never leave an officer, and that the result will be a forced departure from the Service, or permanent suspension in a meaningless job at their current rank.

Unfortunately this is an aspect of the culture that has been shared by the honest and corrupt alike, and it is one that has to be targeted vigorously because:

Moreover, it breeds a feeling of disempowerment, and an erosion of pride, in honest police.

(d) The Nature of the Job

It cannot be gainsaid that for some the nature of the job is corrupting. The powers entrusted to police are very substantial powers. Conversely with their significance, they are most often exercised by the younger and less experienced officers working at street level, than they are by commanders with the wisdom of age and experience. Moreover, they are exercisable in circumstances where the opportunities for temptation and corruption are often very high. If those opportunities are available in an environment where initial, and on-job, training in integrity and ethics is lacking, where first line supervision is poor, and where the risks of detection and successful prosecution or severance from the Service are low, then it is little wonder that many police do succumb to temptation.

(e) Process or Noble Cause Corruption

The circumstances that have allowed process or noble cause corruption to develop are complex, and its study is complicated by the fact that often the truly corrupt rely upon the more altruistic reasons for its adoption, as an excuse or mask for their criminality. In its various forms of perjury, planting of evidence, falsification of documents, forced confessions, violence and theft of drugs or money, it tends to be explained by reference to:

While the superficial attraction of some of these arguments cannot be ignored, the reality is that as often as process corruption has been the result of “honourable” motives, it has also been engendered by black motives.

Whatever the motivation, experience shows that there is even greater reluctance to reveal this form of corruption because of its acceptance as a reality of policing.

The problems that have emerged from this form of corruption are manifold:

(f) Failure of Supervision and Command Accountability

Absent real supervision, and accountability by Commanders for identifying and dealing with misconduct and corrupt practices, and action from Senior Command that matches rhetoric, the development of entrenched corruption and systematic misconduct is inevitable. Part of the problem in this regard is the lack of any real sense of responsibility by local supervisors who prefer to take the view that corruption control should be left to Internal Affairs.

The problem is compounded when this is associated with a lack of willingness, on the part of Internal Affairs, to share the burden, and to pass on relevant information to local commanders. While this can be attributed in part to the need for operational security, it does mean that a valuable resource is frozen out of the circuit. After all, it is the local Commander who should be best placed to know what is going on, and to observe, and to report, tell tale signs of corruption and of systematic misconduct.

If wilfully blind to their duty, Commanders should be held accountable. If effective in detecting corrupt practices and misconduct they should be recognised. Yet their performance in this area is rarely the subject of critical assessment.

D. WHY DID THE ACCOUNTABILITY SYSTEMS FAIL?

This was a critical question for the Commission, since there was an elaborate structure in place, which was designed to detect and punish corruption, and to deal with police misconduct.

That structure involved a combination of internal investigation by the Police Service, and civilian oversight through the Independent Commission Against Corruption (the ICAC) and the Office of the Ombudsman.

(a) Internal Investigations

A number of factors contributing to the limited success of internal investigations were identified which, it may be confidently predicted, are common to all systems which depend either wholly or substantially, upon internal accountability. They include:

(b) The Ombudsman and the ICAC

The ICAC and Ombudsman had been entrusted with responding to corruption and misconduct issues occurring within public and governmental agencies, although within the confines of their charters. Each had undertaken inquiries leading to significant reports on specific matters of concern, and on corruption prevention and education measures. It became clear however that the ability of these agencies to contribute significantly to any fight against corruption was limited by:

E. THE ADVANTAGES OF A DEDICATED EXTERNAL AGENCY

Such greater success that the royal Commission enjoyed, can be attributed to a number of factors, including:

Additionally, it had the advantage of being able to conduct investigations and hearings on an inquisitorial basis, unconfined by the rules of the adversarial system, and in situations where witnesses could be compelled to answer questions put to them.


F. THE KEY RECOMMENDATIONS

A range of strategies were developed. They included:

G. THE POLICE INTEGRITY COMMISSION (THE PIC)

The investigative model which was recommended, and which was adopted, was the creation of an external, and highly focussed agency, which would build on the work of the Royal Commission, take the lead in all matters requiring the investigation of serious corruption and misconduct, and possess a discretion to share that work with the Internal Affairs command of the Service, under its general direction, and with the Office of the Ombudsman.

This model permits direct involvement of the external agency at the coalface, facilitates the assembly of intelligence, and allows greater awareness of problem areas, and trends in corrupt practices. It is one in which the external agency combines direct and aggressive investigation of the most serious matters, with oversight and review of internal police investigations. It preserves for the Service a real role in self-regulation, through its Internal Affairs command, and it is the one that was assessed as most likely to promote public confidence. Further, this model recognises the different approach required for the management of complaints, and the detection and investigation of serious corruption.

The structure and powers of the PIC are prescribed in the Police Integrity Commission Act 1996, as are its relations with the Office of the Ombudsman and the Service. In general terms, it has similar powers to the Royal Commission, as well as powers to freeze and confiscate assets. It also has a power to apply to the Supreme Court for an injunction to restrain conduct which is the subject of, or may affect, an investigation.

It is not limited to reactive inquiries in response to complaints and both former and serving police fall within its jurisdiction. Proactive inquiries, integrity testing, audits of areas of operation which by nature carry high risks of corruption have become its principal focus. Additionally, it has a role to play in relation to integrity assessments for the purposes of promotions; as well as powers to monitor the quality of internal investigations, to make recommendations concerning police corruption, education and prevention programmes, and to advise on ways in which police misconduct may be eliminated.

The PIC has adopted a similar structure to the Royal Commission and follows similar investigative strategies. It has a specific duty to assemble evidence for criminal prosecutions and disciplinary hearings, functions which were of less relevance for the Royal Commission whose principal purpose was to inform itself (and the community) as to the nature and extent of corruption and misconduct within the Service.

In this regard, the PIC is entitled to make recommendations as to whether consideration should be given to the taking of prosecution or disciplinary action against particular persons, although it cannot make a specific finding or form an opinion, that such a person has committed a criminal or disciplinary offence, or recommend his or her prosecution.

The PIC is not bound by the rules of evidence, and it can inform itself in such manner as it thinks appropriate. It is instructed to conduct its proceedings with as little formality and technicality, and with as little emphasis on an adversarial approach, as are possible.

Where hearings are held, any person summonsed to appear is entitled to legal representation, and to be informed of the general scope and purpose of the hearing, unless this would seriously jeopardise the investigation. Answers given and documents produced by a witness at hearings are not admissible in evidence against that person in civil or criminal proceedings (unless given without objection), but are admissible in disciplinary proceedings, and in proceedings for contempt, or for an offence under the legislation governing the PIC.

It has statutory powers to make arrangements for the protection of persons assisting it, and of any other person whose safety may be threatened as a result of such assistance, and the power to make any necessary orders or directions to secure such arrangements. It may also suppress publication of evidence and of information tending to identify particular witnesses, where necessary or desirable in the public interest. Further, it may make recommendations to the Attorney General for the grant of indemnities from prosecution, or undertakings that information provided will not be used in evidence against any person, where assistance has been provided.

The PIC is subject to supervision by an independent Inspector who has a duty to investigate complaints made against its staff; to audit its operations, effectiveness, and compliance with the law; and to report to a Parliamentary Joint Committee annually, and as required. The PIC is directly answerable to a Parliamentary Committee, and is required to issue an annual report on its operations. The Police Integrity Commisson Inspector has investigative powers of his own motion, at the request of the Minister, or in response to a formal reference.

The PIC is subject to a specific restriction not to employ serving or former members of the Service, although it is empowered to make arrangements with it for the establishment of joint task forces, and to co-operate with, and to co-ordinate, their activities. It is also empowered to work in co-operation with other investigative and law enforcement agencies, and to disseminate intelligence and information to those agencies as it thinks appropriate.

To reinforce the powers of the PIC, and its capacity to carry out effective investigations, a series of statutory offences have been created relating to any obstruction with the exercise of its functions, failure to comply with a summons or notice, interference with evidence, and bribery or attempted bribery of its staff, and of those whom it seeks to call before it.

In addition, substantial powers exist to deal with contempt, consequent upon disobedience to its process, disruption of its proceedings, obstruction of the Commission and its staff in the execution of their lawful functions, or breach of its orders and directions. Such contempt is punishable by fine or imprisonment, upon referral to the Supreme Court, and for that purpose the PIC may issue a warrant for the arrest of the contemnor.

Critical to the classification system for the investigation of complaints has been the decision to retain a significant responsibility within the Service, in order to foster high standards of professionalism and integrity, and to make it primarily responsible for its own discipline. The role of the Ombudsman is to oversee its performance of that task, and to respond to complaints where it has failed to do so, or to implement effective conciliation of minor matters. The role of the PIC is to address more serious matters of corruption and misconduct, particularly those of an entrenched or systemic kind, to monitor the investigation of any serious matters which are assigned to the Service for investigation, and to establish joint inquiries, where, in the special circumstances, that is seen to be a more appropriate approach.

A comprehensive structure for the management of complaints against police, and of allegations of corruption and misconduct, has thus been established, in which each of the PIC, the Police Service and the Office of the Ombudsman play a part.

H. THE OFFICE OF THE OMBUDSMAN

The Office of the Ombudsman has a significant role in relation to the way that the Service and its commanders handle and investigate the vast bulk of complaints which are of a customer service nature, or of a less serious kind, that is, of a kind falling short of serious criminality or misconduct.

It also has an important role in identifying and addressing broader issues of police management and operating practices, and in maintaining liaison and coordination of effort with the PIC. It has consistently encouraged acceptance of the view that good complaint handling provides an opportunity to identify and to rectify problems, and to maintain the confidence of the public and individual police alike.

The Office has a number of strategies for dealing with complaints, which include having them dealt with directly by local Commanders, arranging conciliation and alternative dispute resolution, and referring appropriate cases of misconduct for prosecution. It also carries out an audit, on a sample basis, of the handling of the complaints that are referred to the local Commanders and their Complaint Investigation Teams.

In some instances, its officers carry out the monitoring function by sitting in on interviews with complainants, and with police who are the subject of investigations, in order to ensure that they are thorough and fair. The Office has its own investigative powers to make investigators and Commanders accountable for inadequate internal investigations, and it has the capacity to make recommendations for the change of ineffective or inappropriate complaint investigation procedures. These powers have been exercised in the case of dilatory and badly conducted police investigations, particularly where the investigators have appeared disinterested or biased.

What is important, so far as the work of the Ombudsman is concerned, is that the complaints which it investigates, and manages, come not only from the public, but also from police who consider that they have been unfairly treated by the Service. In this respect it has an occupational health and welfare role to perform, in which conciliation and alternative dispute resolution are used beneficially, and where the appropriateness of internal management can be reviewed.

In a similar vein it has, on a number of occasions, intervened in areas of conflict between local communities (particularly indigenous communities) and police, acting as an honest broker to arrange joint meetings, and through discussion and conciliation to arrive at mutually satisfactory arrangements.

Valuable work has also been performed by the Office in relation to systemic issues, including, for example, the use of CCTV in police stations; unauthorised access to the police computer data base; techniques for profiling problem officers, and commands which are deploying oppressive or inadequate law enforcement practices; the recording of criminal statistics such as knife searches; and the use of radar to police speeding.

Finally, the Ombudsman has worked cooperatively with the Service and with the PIC in their work in developing two corruption systems: the Customer Assistance Tracking System of the Service; and the Police Oversight Data Store of the PIC, which together hold and permit access to information about complaints, and intelligence on individual officers and local area and specialised commands, as well as other information on significant issues, which should enhance the capability of each agency.

I. TEN YEARS ON

As was predicted, the transformation of the Service and the reaction of police to the key recommendations, and to the new system of accountability, has not been an entirely smooth road.

From the top of the Service, down through the middle ranks, there have been significant changes, with many officers either having had their contracts of service terminated or not renewed, or having been dismissed, or having found it more comfortable to resign. The result has been to produce a Service with a younger and more professional band of commanders.

From a Judicial perspective, investigations appear to have been more thorough with a significantly greater emphasis being placed upon evidence based inquiries, which have used electronic surveillance, and the gathering and analysis, of crime scene exhibits, to a far greater extent than previously. Drug seizures and coordinated activities with other law enforcement agencies, seem also to have become considerably more effective, even though the drug trade still proliferates in a significant way.

The incidence of allegations of process or noble cause corruption in the course of criminal trials appears to have decreased significantly. In this respect the safeguards for the detention and interview of suspects have worked extremely well. Under those safeguards time limits have been established; the rights of the accused to have access to a lawyer and contact with a family member, have been formalised; special arrangements have been secured for juvenile and indigenous suspects; and overall supervision is provided by a custody manager.

A working relationship has been established between the Service, the PIC and the Ombudsman, and between the PIC and the Crime Commission of New South Wales, even though the latter (unlike the Service) is still under no statutory obligation to bring corrupt conduct or serious misconduct to its notice.

Such tension as exists between the PIC and the Service seems to be principally directed towards competing claims as to whether the Service or the PIC was the first to detect, and then to respond to, a problem, and as to the appropriate outcome for those officers who are shown by the PIC to have been involved in corrupt activity or misconduct.

Regrettably, the Service still displays something of a reluctance to embrace wholesale change, or to establish the kind or degree of supervision which is necessary to control the emergence of misconduct or corruption. In this respect it seems to have continued the policy, which predated the Royal Commission, of developing plans and strategies to deal with problems, but then not effectively implementing them. It remains, in that sense, an institution which is resistant to radical change, although as I have indicated, the rates of arrest and of successful prosecutions are more than satisfactory.

There have been two areas of particular concern. The first was probably predictable. It relates to the fact that the attempts to restructure the Service, and to create a new command structure, led to a number of bitter internal battles, which became significantly politicised, and which also became the subject of external interference from some quarters which were less than informed. These problems have been compounded, to a degree by the unwillingness of government properly to reflect the independence, that needs to be preserved, to the Commissioner of Police, or to enact the legislation which was recommended as necessary, to formalise the boundaries between the Minister and the Commissioner, as to the exercise of Police powers, and as to the management of the Service.

Secondly, it is the fact that not all police have learned from the lessons of the Royal Commission. Some have elected to continue to engage in precisely the same areas of corrupt activity that were identified by the Royal Commission.

It is in this respect that the value of the PIC has been demonstrated. It has conducted a series of very successful operations, in the nature of direct investigations, audits and research projects. In the course of that work it has reported on a variety of inquiries, some of which followed up investigations commenced by the Royal Commission. They have included the following:

There have also been more recent, and in some cases current, inquiries, into illicit drug use and supply by police, which it is intended will lead to recommendations for a best practice approach to this problem, as well as investigations into allegations of particularly serious ongoing drug dealing and a wide range of criminal and corrupt activity by a group of officers. This last operation built upon an investigation which was commenced by the Service and was thereafter conducted by the PIC in conjunction with the Crime Commission and has already resulted in a number of police and others are being placed before the courts.

Apart from these inquiries and reports, the Commission has overseen, and participated, in the qualitative and strategic audits of the reform process, which has now been conducted on an annual basis over a 3 year period; has continued to monitor individual investigations by the Service itself, and where appropriate has made recommendations for improvements in the conduct of those investigations.

An additional role, which the PIC has accepted, is to monitor investigations into deaths in custody, and where it is appropriate, to involve itself in any relevant investigations.

Finally, it maintains a significant role in police education and corruption prevention programs, which includes making recommendations, speaking at seminars and training programs, and participating in panel discussions.

The PIC has now referred a large number of matters to the Office of the Director of Public Prosecutions for consideration for prosecution, and has also referred a number of matters for internal disciplinary action, including consideration of possible dismissal. In addition, it has been in a position where, through its sources and access to the public, it has been able to receive intelligence as to wider aspects of criminal activity, and to pass that intelligence on to the Service for conventional investigation.

It has adopted the strategy of submitting selected reports, which it has prepared and issued, for independent quality assessment by an external panel, which, in a typical case, has included chief executives of the Independent Commission Against Corruption, the Crime Commission, the Community Relations Commission, the Administrative Appeals Tribunal, the New South Wales Auditor and the St James Ethics Centre.

The presence of the PIC has, on any view, provided a much more effective mechanism of accountability than anything which existed in the past. Not only has it been capable of sophisticated and intensive investigations, but it has combined those activities with supervision of the reform process, with overseeing the quality of police investigations, with the making of recommendations for improvements in policing practices, and with direct involvement in training and anticorruption strategies. It has also been able to provide a positive contribution in human resources and occupational health issues.

It is well placed through its sources, its intelligence database, and its operational experience to pinpoint and target serious misconduct and corruption, and to coordinate the activities of the Service and of the Ombudsman in dealing with these activities. The threat of public disclosure and the known capacity of the PIC should by now be enough to deter those who are minded to engage in inappropriate practices. Those who give way to temptation will inevitably be caught.

J. A ROAD MAP

A number of issues arose during the Royal Commission, as they have in similar Commissions of inquiry, which have an ongoing relevance for any system for police accountability.

1. Forces of Resistance

For different reasons, and in similar, although not identical directions, it needs to be understood that resistance and lack of co-operation, may be expected from:

Any system of accountability needs to take their existence into account.

(a) The Police Service

Although professing support for anti-corruption strategies, the instinctive reaction of most, if not all, Police Services is to prefer the non-disclosure of corruption or misconduct because of the perceived threat to its reputation and morale, and the inevitable public and political criticism of senior management which follows its disclosure.

If there is to be any concerted anti-corruption drive, most Services would prefer that it be conducted internally and preferably on a managerial basis.

Sometimes the piqued response of Senior Command to the introduction of an external agency is to shed responsibility upon the basis that, unless we own or at least share the problem, there is no need for us to apply any effort in anti-corruption measures.

However, for an external agency to be fully effective, it will require the complete co-operation and support of the Service, which goes beyond a pious public expression of support. In these respects two conditions need to be met:

In practice, this will almost invariably require a trusted liaison officer who has the confidence of the Police Commissioner as well as that of the external agency, and who has sufficient knowledge and authority to obtain quick and secure access to relevant files and information, before they can be destroyed or concealed.

(b) The Police Associations

The intuitive reaction of Police Associations to any allegation of corruption, or prosecution of individual officers, has similarly been one of denial and defence. In part this has reflected a concern for the reputation of their members, and of the Service as a whole, as well as being an extension of the thin blue line, which calls for mutual support, in all circumstances. It has also been the response of a body which sees its primary role as one of responsibility for the rights of its members.

Each of these explanations is understandable, but neither is conducive to accountability or to the control of corruption or misconduct. What is required is a change of philosophy that will move on, from the offering of bare platitudes in relation to police integrity, to acceptance of the fact that the greater interest of the general body of their members lies in having a corruption free Service.

This is not to ignore the need for these bodies to retain their important industrial function, or the need for police, who are caught up in investigations and prosecutions, to have access to proper legal representation. That is best achieved through an independent legal service such as the Legal Representation Office, which was established for the Royal Commission, and which is now available to represent public officials in a wider class of inquiries. Such an agency has the advantage of being free of the conflict of interest faced by Police Associations between protecting their members and upholding the integrity of the Service.

If it is not possible to establish such an office, then the Associations do need to act with a greater degree of responsibility than has been the past experience, which has seen them resisting, at all costs, the proper pursuit of any corruption probe.

(c) Individual Police

The threat which a corrupt officer poses to the integrity of individual operations, and to the integrity of the Service as a whole, is obvious. The potential for engaging in corrupt activity either in the form of direct criminality, or in the form of noble cause corruption, commences on the first day of service and continues until retirement.

Unlike any other activity, the opportunities for corrupt behaviour which will come the way of every officer, are compounded by the command structure, which paradoxically means that discretion increases as one moves down the rank, and by the code which favours collegiate support at all costs.

It means that soon into their first posting, junior officers are likely to be tested by more senior police and invited, or pressured, to participate in an individual theft or acceptance of a bribe, or to ignore, or even to support, false testimony given by other officers. At an early stage, when they are inexperienced, and unprepared because of the reluctance of Police Academies to confront, in any frank or detailed way, the problem of corruption, they need to make an election which could set the direction for the remainder of their careers.

The effect is insidious and does not dissipate with promotion and elevation into a command position which is removed from direct street policing or hands on investigations. This may limit the more direct opportunities for shake downs or theft, but at this level it is likely to have two facets: first, continued sharing in any systemic corruption of the group with which the officer has worked, and secondly, a desire to avoid adverse attention being drawn to the Command, of which the officer now has an executive role. By that stage the officer may well have acquired a public reputation as a skilled and tough investigator, and have a Commissioners’ baton in his knapsack, such that the last thing that is welcome is any public exposure of corruption within his command.

In that context an anticorruption strategy that guarantees eventual disclosure, in which the only question is not if, but when, that will occur, is the only answer.

(d) Organised Crime

It is very difficult for organised crime to prosper without a measure of police protection, and those who control it will always be ready and willing to encourage any glimmer of its emergence, and to resist any anticorruption strategies.

The techniques are well tried. Principally they involve the group seeking a green light, and the elimination of rivals through the provision of selective information, and the payment of licensing fees. More insidious, and often less well appreciated, is the instigation of complaints against officers of integrity, and the encouragement, often with the assistance of the media, of a divisive battle between the white knights and the black knights of any Police Service.

Again, the reality of policing requires the use of undercover activities and of information in a way which places detectives very close to key players in organised crime who will expect charges to be watered down, or to have a blind eye turned to their activities. Individual police see advantages in these connections, since the Service is almost inevitably driven by arrest rates. Drug dealers also see an advantage insofar as the association with individual police gives them street credibility and a means of removing their opposition. It may also encourage them to divide up areas of operation, either geographically or by drug type. These relationships are symbiotic, and are conducive to the flourishing of organised crime syndicates.

Absent an effective system for registration, close supervision of informants and of covert operations, and dedicated anticorruption strategies, the potential for organised crime to infiltrate and influence key elements of a Service is considerable.


(e) The Media

The attractions of investigative journalism, combined with a degree of naivete as to the potential capacity of corrupt elements, and of Police Associations, to influence crime coverage, means that the media can be a potentially negative factor.

Crime reporters have always found it beneficial to have sources within a Service, and within criminal factions, but those sources very often have an agenda which is not always understood or recognised. It is also not unknown for the hype surrounding the larger than life law-enforcement official to be proved a mirage when that officer’s past is properly investigated, yet very often he is a product of the media.

There is an ever present a risk of the enthusiastic journalist, the current affairs commentator, or the call back personality, spurred on by ambitious academics, treading all over investigations in their critical stage, without considering, or perhaps being aware of, the consequences, and of fostering factional conflicts which result in police of integrity being burned.

Moreover the media often seem often to favour a conviction at all costs policy for certain kinds of offence, which can send a message to police, to prosecutors, and to the public, that noble cause corruption, and a relaxation of the normal safeguards or requirements of the criminal justice system should be tolerated in such cases.

The Media does have a role insofar as it is able to provide public exposure of corruption and serious misconduct, since the bare fact of disclosure, and the public confirmation that accountability strategies are working, do operate as a deterrent.

However the dangers of the misuse of the media are real, and any anticorruption agency would be well advised to have an officer dedicated to media liaison, and to encourage a relationship of trust.

(f) The government

While no government would see itself, or wish to have it suggested, that it was soft on corruption and misconduct within its Police Service, there are at least two ways in which it faces a conflict of interest.

First, there is the reality that the emergence of allegations of systemic corruption or of serious misconduct will reflect badly on an agency for which a Minister, and ultimately the government are seen to be responsible by the media, the public, and also by any Opposition keen to make the most of it. Silence and an appearance that all is well is often more comfortable than exposure, particularly in an election year.

Secondly, the competing demands of the various aspects of government inevitably give rise to budget pressures, and to a temptation to either close down an external agency, or to reduce its resources, if it appears that corruption is under control. This is a short sighted approach but it is one which is attractive to bureaucrats, who often resent the greater freedom of an independent agency, and of an Executive government which would prefer to divert resources into areas where there is a benefit to be perceived by those who are users of services in health, transport, and so on.

It is a short term and disastrous response, since the moment an effective agency of this kind ceases to exist is the time that the forces of corruption re-emerge. Disclosures and prosecutions are an indication that anticorruption strategies are working, but so is their absence, if it can be shown that the operations and procedures of the Service are being effectively monitored and audited.

It is for these reasons that it is desirable to establish a sufficiently resourced and capable independent agency, which is not directly subject to government direction, or susceptible to having its legs cut off when that is seen to be convenient.

It has been tempting for governments to align themselves with Police Associations whose members are understood to have cohesive, although largely conservative views, but who, more importantly are recognised as being able to influence a much wider range of electors within the community in which they work.

Accountability risks being compromised where these Associations are resistant to the introduction of anticorruption strategies, as was the case in New South Wales with issues such as integrity and drug testing, and the introduction of Commissioner’s confidence provisions, and where they are also able to carry political parties with them.

2. An External Civilian Agency Dedicated to Police Accountability or a Multipurpose Agency?

In my view the optimal solution is for the agency to be an external specialised agency.

There are several reasons:

Where the size of the relevant State does not justify a single agency, then any multifaceted agency would, in my view, be well served by creating a Division which is solely dedicated to police corruption.

For the reasons previously mentioned, I would not support any system that removed all responsibility for identifying and targeting police misconduct and corruption from the Service itself. It is the key stakeholder, it must continue to acknowledge responsibility for its officers and adopt effective training and anticorruption strategies, but it must also be prepared to work closely with the independent agency.

Similarly, for the reasons already identified, there is merit in preserving minor misconduct and customer service complaints for a managerial and/or disciplinary response within the Service itself, subject to oversight. Unless there is this is done, the Service will be cut out of the loop, and the independent agency will be swamped with minor matters, at the expense of its more important investigations. It does need to be apprised of these complaints, and of their resolution, since very often they are indicators of a pattern underlying, or preceding, the emergence of something very much more serious.

Critical for the sharing of responsibility between the Service and the external agency is a carefully structured system which deals with the classification of matters that can properly be dealt with on a managerial or disciplinary basis by the Service and by the Ombudsman, and those that must be reserved for the independent agency for a more extensive inquiry.

Preferably there should be a regime for regular interagency meetings to ensure continuing cooperation, and to prevent duplication of effort, or unintentional intrusion into a critical investigation.

I also see a need for the creation of an oversight capacity, along the lines of that provided by the Inspector of the Police Integrity Commission.

Existence of such an office enhances the independence of the agency, and ensures that it does not exceed or abuse its powers. It also assists in ensuring the continuation of a proper relationship between the Service and the agency.

3. Objective – Exposure of corruption or prosecution?

A critical question relates to the balance to be achieved between intelligence directed operations which are designed to detect and bring to an end corrupt activity, and operations which are designed to secure prosecutions.

It is a given that any effective policy for police accountability will require covert operations, and the use of corrupt officers who have been “turned”, but who are prepared to continue their dealings with criminals and other police, who are unaware of that fact. The benefits which attach to their deployment, including the opportunity of using their connections, knowledge and policing skills, is substantial. So are the dangers.

Crucial questions arise as to when to bring controlled operations of this kind to an end, so as to avoid entrapment issues, to limit harm to the public and so as not to lose the officer who is being used.

In order to recruit such officers to the cause, and in order to use their information, consideration needs to be given, and support obtained, to strategies such as:

The Royal Commission elected to place its primary focus on uncovering the nature and extent of corruption within the Service, with the consequence that prosecution orientated investigations were principally confined to those officers who refused to assist. Its successor, and any similar agency, needs to strike an appropriate balance between the two objectives, although that of prosecution will normally be paramount.

Immunity from prosecution, in return for assistance and resignation, is not quite as simple as first impressions might suggest. Attention also needs to be given to the fiscal consequences of discovery, since it will attract the attention of taxation authorities, and give rise to questions whether the officer should be able to call on any accrued superannuation or pension benefits. A policy needs to be developed and an understanding established with the Service and with other agencies, to deal with these issues.


4. An Agency Acting in Public or Behind Closed Doors?

Police Internal Affairs have never been accustomed to conducting inquiries other than as conventional police investigations, without any public element, save for that which may arise in the event of a prosecution. The same applies to matters of discipline and conduct that are dealt with managerially.

Election between the external agency acting in camera, or in public, is critical. The former approach enhances privacy and security issues. The latter favours openness, attracts the kind of public attention which can act as a deterrent, satisfies the community that corruption and misconduct are being effectively targeted, gives courage to potential informants and to those who have been at the wrong end of police misconduct to come forward, and leaves the Service with little option other than to respond to the problem that is identified. In this respect it has been become obvious that the impact of electronic surveillance is considerable, and that the public cross-examination of an officer, who is caught on audio or videotape and who maintains a claim of innocence when first questioned, attracts great attention.

While privacy interests give way to the public interest, if the open forum option is selected, that does not mean that a good deal of the investigation cannot be conducted in private, or that for certain inquiries in camera hearings cannot be used. Moreover some protection can be given by allowing witnesses, or targets, to be identified by code names.

5. Removal of Corrupt Police at any Cost

A question which also calls for a delicate balance is whether the system for oversight should encourage the use of Executive action for the removal of officers who are strongly suspected of corruption, but in respect of whom evidence sufficient to mount a prosecution is lacking.

The desirability of having such officers removed, at any cost, has been recognised in many Police Services, including the New South Wales Service, which traditionally had allowed an easy exit through a hurt on duty claim, leading to pensionability or access to retirement, or superannuation, benefits. Sometimes this has required a deal of complicity on the part of the Service or its medical officers, or the Tribunals responsible for the administration of the relevant schemes, although with very little being demonstrated in the way of accountability, and even less in the way of discouragement of other officers engaged in corrupt activities or misconduct.

It was for this reason that the Royal Commission recommended, over strong Police Association resistance, the introduction of a scheme permitting dismissal, based upon the Police Commissioner having reached a position, where for sufficient cause, confidence in the officer has been lost. Necessarily there needs to be some opportunity for review which ensures due process, and an opportunity to be heard, along with the demonstration of a sufficient case to warrant an exercise of the discretion reserved to the Commissioner.

Whichever approach is taken, there needs to be some understanding, or protocol, as to whether an encouraged retirement (which might be viewed in other circumstances as a constructive dismissal) should attract retirement benefits.

6. Adequacy of Resources and Powers

Several issues need to be addressed.

(a) Resources

If an external agency is established it will need extensive coercive powers of the kind employed by the Royal Commission, which would include powers to: