Earlier this year, the Law Enforcement Conduct Commission (‘LECC’) replaced the previous Police Integrity Commission (‘PIC’) and a number of other institutions as the central committee for oversight of police in NSW. However, the benefits for accountability and efficiency are weakened by the government’s lackluster implementation and its failure to reform a key area of public concern.
The LECC is a ‘two steps forward, one step back’ kind of reform. On the plus side, it streamlines the police oversight process by bringing together a number of similar areas of inquiry. It does so by combining the investigative roles of the PIC, the Police Division of the Office of the Ombudsman and the Inspector of the Crime Commission into a single civilian body, all headed by the eminent Supreme Court Justice Michael Adams (pictured below).
Promisingly, the capacity to monitor police conduct has greatly improved, backed by the LECC’s royal commission type powers to hold public hearings in some situations. With the LECC, we can expect greater resources and less unnecessary politics between investigative institutions overseeing NSW police operations.
Now, let’s look at the minuses. For all its appearances of straightforwardness, the NSW government has maintained the status quo by only allowing police, not the LECC, to investigate other police in ‘critical incident’ investigations. These investigations concern situations where a member of the public or police suffers serious injury or death in the course of a police operation.
As one can imagine, this remains a big concern. It is not outlandish that police would have both the opportunity and the motivation to cover their mates in the aftermath of a tragedy. The numbers alone speak volumes: of the 62 critical incidents involving police from January 2013 to August 2015, only 2 adverse findings were made and there were no disciplinary actions taken against involved officers. It is the creeping possibility of such a conflict of interest, whether anything comes of it or not, that harms trust in the criminal justice system.
Of course, on paper the LECC can still use its powers of oversight in these investigations, but they have to leap a few hurdles first. To be allowed to physically observe critical incident interviews, for example, the LECC must first gain the consent of the person being interviewed and the senior critical incident investigator. Whether both their consent will always be freely given – well, let’s just say we’re not holding our breath.
Perhaps equally worrisome is the lack of a clear transition. Although given little news about which positions were filled, we were told that the LECC would start accepting complaints in March. That soon turned to May. Now, in June, a click of the LECC ‘Submit a Complaint’ button leads to an evasive statement that complaints will be taken ‘shortly’, and to refer any complaints to the PIC or Ombudsman.
Yet, as the PIC and Ombudsman continue to whittle themselves down to make room for the LECC, the situation gives pause for thought: who’s actually policing the police right now?
We cannot put the blame on police for working within the structures that have been given to them. However, we can say that we believe the NSW government has missed an important opportunity to confidently address the culture of police secrecy that makes the LECC’s practices necessary.
To make a difference, the transition process must be clear for all and ‘critical incident’ investigations must be firmly within the purview of the LECC.
The LECC is coming soon. If you are appearing at a public hearing of the LECC, you will need experts in your corner who have proven experience navigating commissions. Call O’Brien Solicitors on (02) 9261 4281 or contact us via the form on this website.