On September 13 this year, NSW deputy premier and police minister Troy Grant introduced a bill before parliament to establish the Law Enforcement Conduct Commission (LECC).
If passed, the new civilian agency will provide oversight into the running of the NSW police and the state’s Crime Commission, beginning on January 1 2017.
In the biggest overhaul to police oversight in twenty years, the LECC will replace and streamline the functions of the Police Integrity Commission (PIC), the police division of the NSW Ombudsman and the Inspector of the NSW Crime Commission.
The Tink report
In November last year, the police minister announced the state government would be creating the new police watchdog. The decision was in response to recommendations made by former NSW shadow attorney-general Andrew Tink in the Review of Police Oversight report released in August.
Mr Tink reported that the new external oversight model would provide: “better transparency and accountability, the more effective use of intelligence, and an improved external investigation capacity.”
In August this year, Minister Grant said the LECC would be headed by a retired or serving judge, performing the dual functions of detecting and investigating serious misconduct and corruption, and overseeing complaints handling.
However, critical incidents will still be investigated by police themselves, with the LECC only monitoring these investigations.
The letter from the NSW Ombudsman
On the day following the introduction of the legislation, acting NSW Ombudsman John McMillan wrote a letter to the PIC, the NSW Crime Commission and the Parliamentary Committee on the Ombudsman warning that the LECC will actually “diminish rather than streamline” the functions already performed by his agency.
Professor McMillan points out that a number of key recommendations made in the Tink report have been left out of the bill, “which could reduce the LECC’s ability to effectively perform its oversight functions.”
Reduced powers of investigation
He writes that the LECC’s powers will be “limited and inferior” to those currently available to the Ombudsman and the PIC, as the bill restricts investigations to matters of “serious misconduct” or “serious maladministration.”
The LECC will be unable to investigate criminal offences that are “not a serious indictable offence,” unlawful conduct that is “not an offence or corrupt conduct” or conduct that “should be investigated in the public interest.”
An example of an investigation carried out in the interests of the public was a review of police use of tasers, which led to the October 2012 report How Are Taser Weapons Used by the NSW Police Force?
The review of over 2,000 incidents between 2008 and 2011, found there were 80 incidents of unwarranted use of tasers.
The report resulted in 44 recommendations for modifying police systems, the majority of which were implemented by NSW police.
The investigation was not carried out due to complaints over “serious misconduct” or “serious maladministration,” but was undertaken in the public interest.
Lack of monitoring ability
The Tink report stressed the need for a civilian oversight agency to have the ability to conduct real time monitoring into internal police investigations into critical incidents, which include acts that result in death or serious injury.
However, as Professor McMillan outlines in his letter, the LECC’s ability to perform this function is seriously limited.
The LECC would have access to transcripts and recordings of interviews, but wouldn’t have the right to attend interviews as an independent observer.
And would only have access to interviews if the chief police investigator and the person being interviewed gave permission for them to do so.
On top of this, the LECC would only be allowed to publish a report on the adequacy of an internal police investigation, after the police had finalised their investigation.
The report into the death of Roberto Curti
The Ombudsman published a report in March 2013 on the NSW police internal investigation into the death of Roberto Curti.
On March 18 2012, Robert Curti was pinned down and handcuffed by police in Sydney’s CBD. It was found that whilst apprehending him, officers tasered Curti a total of fourteen times – 7 of those within 51 seconds.
Curti – who was being pursued by police over an incident where he stole a packet of biscuits – stopped breathing minutes later, and was pronounced dead at the scene.
The Ombudsman’s report found that police investigators failed to question the lawfulness of the actions taken by the officers, and whether the degree of force used was necessary. It also highlighted the need for an independent body to oversee investigations of police critical incidents.
Under the provisions of the new LECC bill, this report would still not be released, as the NSW police critical incident investigation is still underway.
A reduced budget
Professor McMillan also questions why the budget for LECC employees is 10 percent less than the current budget of the PIC and the police division of the NSW Ombudsman.
The Tink report stated that the creation of a new watchdog “is not designed to realise cost-savings in the immediate or short-term” and actually went on to recommend an “additional allowance” at the time of establishing the new commission.
This decreasing of resources, McMillan wrote, will diminish the LECC’s “capacity to effectively perform its functions.”
Minister Shoebridge weighs in
On the day the LECC legislation was introduced, NSW Greens MLC David Shoebridge said that although the current system is cumbersome, the proposed new model is also inadequate.
He agreed that a new system that reduced complexity and had “one overarching body” was a good idea.
But he expressed concerns about the proposed new model, as it leaves the oversight body to simply monitor police investigations, rather than actually conducting the investigations themselves.
“We have an inherent conflict of interest when police investigate police. It means nobody can have faith in the independence of the investigation,” Mr Shoebridge told Sydney Criminal Lawyers® in August. And added that this conflict needs “to be removed as a matter of priority especially when somebody has died in the course of a police operation.”