A reasonable accommodation between oversight and independence

How to ensure and maintain police accountability and discipline has always been a contested subject.

Police forces have traditionally been reticent about calls to establish independent external civilian investigation of police complaints, preferring instead to keep complaints handing and disciplinary processes in-house. This is seen as important for maintaining autonomy, independence and control of police operations.

However, community demands for external ‘citizen’ oversight of police complaints and discipline have consistently dogged police forces, especially at times when perceived failures of police internal investigation units have been exposed. Some may say these two expectations are irreconcilable; at the very least they exist in perpetual tension. In response to these opposing demands, almost all jurisdictions now deploy some police complaint system that combines internal police investigation with external third-party oversight.

In September 2017 South Australia adopted a new police complaints scheme governed by the Police Complaints and Discipline Act 2016 (PCD Act).

The scheme provides that police will have primary responsibility for managing complaints about their members. However, the Office for Public Integrity (OPI) is tasked with providing external oversight through real-time access and monitoring of relevant police systems and the ability to intervene and direct, where necessary, in the assessment of complaints and the manner in which they are investigated.

But such models are not solutions to the two competing expectations mentioned above. They are a compromise – a type of halfway house that attempts to balance those expectations.

In practice, the model obligates police and oversight agencies to engage in continual discussion, compromise, and adjustment.

Those involved in police oversight sit uneasily within this halfway house, seeking a fair accommodation between police autonomy and independent oversight. Challenges emerge whenever this delicate balancing act tips too far in one direction.

Police overseers can often be perceived as excessively interfering with the proper and efficient functioning of a police force, undermining operations or dampening the confidence and morale of police members. It is not uncommon for police forces to make this claim when they feel excessively checked, questioned and restrained, and in the short history of South Australia’s current scheme the OPI has experienced this protest.

But the alternative of a police force which enjoys a weak or ineffective overseer, or a force who inappropriately upholds its independence to deny accountability, may well be a worse prospect. We only need to turn to history to remind us of that.

In the 1990s the Woods Royal Commission characterised the risky state that NSW Police had descended into when responsible for investigating their own, with little scrutiny. The complaints and discipline system was described as “typified by an almost instinctive reaction to defend any charge, no matter how indefensible.”[1] It was said that there was an “inherent bias in investigations as the result of which the Service has failed to carry out impartial investigations or to pursue allegations with the same rigour or approach seen in ordinary criminal inquiries”[2]

The 1980’s Queensland Fitzgerald Inquiry similarly found, “the approach of the Internal Investigations Section is a good indicator of the inability of police without external independent supervision to act objectively and effectively when investigating each other… The Internal Investigations Section has provided warm comfort to corrupt police. It has been a friendly, sympathetic, protective and inept overseer.”[3]

South Australian policing in 2021 is a far cry from the policing cultures of Queensland or NSW in the 1970s, 1980s and 1990s. Nevertheless, history tells us that without pressure from an external oversight body, police internal investigation units are at risk of becoming “apologists for the Police Force”.[4]This can have ruinous consequences for public confidence in the integrity of policing, and makes external oversight a necessary bulwark against regression.

But the notion of what constitutes suitable oversight is something about which many stakeholders diverge.

One useful way to think through the issue of supervision is to separate it into levels of transparency, accountability, and responsiveness.

At the minimal level oversight requires transparency; the ability to see what is occurring when a complaint is assessed or an investigation is underway. A transparent process makes it more likely that the people being watched will attempt to fulfill their duties properly simply because they are being watched. The argument has merit, but it is no guarantee.

An accountable process entails a greater level of interaction. An accountable process involves both being watched, and having to reply to the concerns of those watching. In other words, they will have to give an account of their actions and decisions. The cogency and correctness of those decisions can then be assessed and discussed.

At the higher end of the spectrum is a responsive process. It allows for observation, for questioning, and for potential intercession when any given explanation of decision-making is considered by the overseer to be inadequate or flawed. It requires those being overseen to respond to appropriate and reasonable direction.

The PCD Act requires all three levels of supervision.

Oversight is not a passive function. It is an active responsibility. If oversight does not involve any ability to question or act upon what is observed, there is a question of whether this oversight means anything concrete at all. Oversight without intervention is just a mute witness.

The halfway house model of police oversight can be exasperating. But it is important to realise that the prime interest of any police force and an overseeing agency is the same: to maintain the integrity and accountability of the police.

This article was published in the ICAC's newsletter - Integrity Matters