The resurgence of the Black Lives Matter (BLM) movement was arguably one of the biggest political developments in 2020. While it was primarily centred in the United States (US) – in response especially to the killing of Black man George Floyd – BLM initiated uncomfortable global conversations about the intersection between, and the sheer prevalence of, both police brutality and discrimination against minority racial groups.
Australia’s long history of colonial violence, and ongoing mistreatment of Aboriginal and Torres Strait Islander people within the criminal justice system, has reignited discussion around the role of police in perpetuating the systemic disadvantage Indigenous Australians continue to face.
An analysis of the police misconduct investigation procedure in Victoria in particular thus offers the opportunity to analyse the effectiveness of the State’s legal framework in keeping police accountable more broadly.
Victoria Police is governed by the Victoria Police Act 2013 (Vic). Under the Act, its role is to ‘serve the Victorian community and uphold the law so as to promote a safe, secure and orderly society’.
But what happens when Victoria Police fail to meet community expectations, or breach the law themselves?
Complaints about police behaviour in Victoria can be made in two ways: to Victoria Police directly, or through the Independent Broad-based Anti-corruption Commission (IBAC). Internal complaints can be processed either through one’s local police station, or the Police Conduct Union (PCU). The PCU is a branch of the police responsible for investigating certain allegations of police misconduct, especially where the actions in question reported to the police are of a more serious nature.
IBAC, on the other hand, is an independent statutory authority established by the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ('the IBAC Act'), and reports to the Victorian Parliament. Aside from its mandate to probe corruption by public bodies, it has a specific function to also ‘identify, expose, and investigate police personnel misconduct’. IBAC’s investigations involve public and private inquiries, usually with witnesses. They can result in no action being taken, a referral being made to another agency, reports and recommendations being made, the matter being referred to the Office of Public Prosecutions (OPP), or IBAC directly bringing criminal proceedings itself.
Internal investigations and persistent problems
While the two-tiered police misconduct investigation ostensibly appears to offer the right balance – allowing for police to investigate less serious allegations of misconduct itself, while also providing independent procedures through IBAC as an option where required – statistics and recent incidents seem to indicate a propensity for Victoria Police to determine most investigations into police misconduct itself.
In 2019/20, Victoria Police received 2,423 complaints. Of these, the outcome in 51.7% of the complaints was that there was ‘no case to answer’. Only 15.5% of complaints resulted in a Victoria Police member being found to have a ‘case to answer’, with local management actions comprising the remainder of complaints.
During the same period, IBAC investigated 3,145 allegations of Victoria Police misconduct. 52.6% were dismissed, while 43.2% were referred to another agency – the vast majority back to Victoria Police itself. Perhaps concerningly, only 32 of the over three thousand allegations were investigated directly by IBAC – comprising slightly more than 1% of the total.
Such statistics are personified by several recent, high-profile incidents of police misconduct. In October 2019, climate activists organised a peaceful protest in response to the hosting of the International Mining and Resources Conference (IMARC) in Melbourne. With police officers deploying horses, excessive force, and indiscriminate use of capsicum spray, Melbourne Activist Legal Support (MALS) noted that Victoria Police ‘set a tone of violence’ during the protest. Despite this, virtually all complaints were either dismissed by the PCU, dismissed by IBAC, or referred back to the PCU by IBAC, at which point they were also dismissed.
In 2018, Victoria Police were revealed to be falsifying breathalyser results during random breath tests, in order to meet imposed quotas. The pursuant internal investigation of the more than 258,000 falsified tests, however, saw IBAC comment that Victoria Police ‘could still be conducting false breath tests’. More recently in September 2020, Aboriginal man Korey Penny was knocked off his bike by police officers while cycling to work, and received racial abuse. While a complaint was made to IBAC, the ABC has reported that the matter will most likely be referred back to Victoria Police for an internal investigation.
These instances of alleged police misconduct all point to a common characteristic of internal investigations – these avenues of investigation rarely result in disciplinary consequences as serious as the misconduct alleged. Sinéad O’Brien Butler succinctly summarises this issue as the fact that in Victoria, ‘complaints against the police made by members of the public are predominantly investigated and determined by serving police officers’. It is no surprise, of course, that police officers are less likely to face stringent penalties for possible misconduct when investigated by their own colleagues. That is not to say that the relatively low level of disciplinary determination during complaints is inherently a negative indication; however, the fact that this occurs in parallel with a high proportion of internal investigations demonstrates a certain lack of accountability, partially stemming from a lack of external investigations.
Models for reform
More comprehensive police misconduct frameworks exist both interstate and internationally.
The United Kingdom’s regional police forces firstly offer an alternative mode of governance, and thus, accountability. Specifically, UK police forces are typically overseen and administered by a panel or board, external to both the police force command, and the minister responsible. In addition, Police and Crime Commissioners are popularly elected in England and Wales, providing a way for the public to directly scrutinise high-level policing decisions. This is in contrast to Victoria Police’s governance structure, which features no intermediary between the Chief Commissioner and the Minister for Police. A similar authority in Victoria would provide an additional degree of scrutiny, by diverting the power to hold police accountable towards an impartial body, and away from those with a vested interest in concealing potential misconduct (i.e., the Government and Victoria Police itself).
Governance changes, however, are only a supplement to altering the investigation processes themselves. Part of the reason why IBAC refers such a large proportion of its complaints relating to police misconduct to Victoria Police is its prioritisation of serious, wide-ranging corruption under section 15(1A) of the IBAC Act. As corruption investigations are statutorily given preference, police misconduct is instead delegated to Victoria Police. This model of combining an anti-corruption agency with a body responsible for police misconduct investigation is not seen in many jurisdictions, and could be the reason why the PCU-IBAC model lacks effectiveness. A standalone, independent agency responsible solely for police misconduct – such as New South Wales’ Law Enforcement Conduct Commission – could be the key. This would be the first step to adopting a model like that of the Police Ombudsman of Northern Ireland (PONI) – widely referred to as the ‘gold standard’ of police misconduct agencies, in a region with a sensitive history of policing. PONI’s wide-ranging powers, their requirement to obtain complainant consent in order to make referrals for internal investigations, and their police-specific focus are all options for adoption in Victoria.
While seemingly a simple solution, implementing independent, external structures remains the chief reform advocated by experts to curb police misconduct – a move which may prove to be a catalyst in achieving more wide-ranging law reform, in a setting which has not seen major restructuring in nearly a decade.
Davey, Melissa and Calla Wahlquist, ‘Victoria Police Accused of “Violent Assault” on Indigenous Man Who Alleges He Was Spear-Tackled off Bike’, Guardian Australia (online, 4 September 2020), < https://www.theguardian.com/australia-news/2020/sep/04/victoria-police-accused-of-violent-assault-on-indigenous-man-who-alleges-he-was-spear-tackled-off-bike>
Estcourt, David, ‘Police Fined but Spared Conviction Over Assault of Disability Pensioner’, The Age (online, 29 July 2020) < https://www.theage.com.au/national/victoria/three-police-who-assaulted-disability-pensioner-spared-jail-20200729-p55gh7.html>
Independent Broad-based Anti-corruption Commission, Annual Report 2019/20 (Report, October 2020)
Independent Broad-based Anti-corruption Commission Committee, 'The Performance of the Independent Broad-based Anti-corruption Commission and the Victorian Inspectorate – 2016/17' (Report, December 2017)
Melbourne Activist Legal Support, ‘The Policing of the IMARC Protests’ (Report, December 2019)
O’Brien Butler, Sinéad, ‘Policing the Police: Independent Investigations for Victoria’ (2018) 41(3) University of New South Wales Law Journal
Rollason, Bridget, ‘Victoria Police Could Still Be Conducting False Breath Tests, Anti-Corruption Watchdog Warns’, ABC News (online, 30 October 2019) < https://www.abc.net.au/news/2019-10-30/police-could-still-be-faking-breath-tests-watchdog-warns/11653650>
Savage, Stephen 'Independent Minded: The Role and Status of "Independence" in the Investigation of Police Complaints' in Tim Prenzler and Garth den Heyer (eds), Civilian Oversight of Police: Advancing Accountability in Law Enforcement (CRC Press, 2016)
Victoria Police, Annual Report 2019–20 (Report, October 2020)
Independent Broad-based Anti-corruption Commission Act 2011 (Vic)
Victoria Police Act 2013 (Vic)
Image: AAP: Craig Golding
Leo Crnogorcevic is a second-year Law/Arts student. He is passionate about social justice and activism, and hopes to practice in the employment, community, or criminal law spheres in the future. Leo looks forward to writing more about contemporary legal and social issues, aided through the lens of his own personal experiences and interests.