Influences upon Police Independence of Decision Making in Investigating and Charging Offenders

Published on 12 November 2017 at 6:50pm

The independence of police decision making when investigating crime and deciding charges to be laid has historically been influenced by political interference and entrenched discriminatory practices. The high profile circumstances of police commissioner resignations and over-representation of Indigenous youth in custody demonstrate that these influences have significantly affected the maintenance of high standards of integrity and accountability by the appropriate exercise of discretion.

I        Political Influences Former Police Commissioner Ray Whitrod stated that ‘I believe as a Police Commissioner I am answerable not to a person, not to the Executive Council, but to the law’.[1] This statement is accurate to the extent that it reflects the notion that police are employed to act only in the broad public interest rather than in partisan political, corporate or personal interests.[2] However, this statement is inaccurate to the extent that it suggests police are entirely independent from the Executive Council. Police can be accountable to the government through the Police Minister and subject to political directions not only on matters of general policy but also potentially on operational matters. [3] In 1997, the Wood Royal Commission expressed concern over s 8 of what is now the Police Act 1990 (NSW).[4] The Commission noted that this section should be amended to limit the Police Minister’s interference to matters of policy and expressly exclude operational matters from the Minister’s interference.[5] The Commission argued that the Police Commissioner should retain independence from political influence over operational matters in order to avoid the risk that the Minister may force decisions on the Commissioner as a result of the Minister’s political or electoral motivations.[6] Moreover, the Commission suggested that this legislative reform would prevent decisions being made spontaneously in circumstances where ministerial advisors are not fully aware of all the facts and also to avoid the reoccurrence of past conflicts between the Minister and Police Commissioner.[7] This recommendation was not intended to abolish the Police Commissioner’s accountability to the government, rather it was intended to restrict ministerial interference to policy matters and to ensure that undue political influence would not operate upon police independence.[8]However, the recommendation has not been implemented in New South Wales and the fears of conflict that Wood J espoused have since been realized.

The controversial and high profile resignations of former Police Commissioners Ray Whitrod and Peter Ryan indicate the sheer extent to which political interference affects the maintenance of high standards of integrity and accountability by the appropriate exercise of police discretion. Despite the fact that political interference in operational policing policies is generally regarded as inappropriate, well-known reasons leading to the resignation of these commissioners included improper government interference with police investigations and ministerial interference in operational police decision-making.[9] More recently, these issues were raised in the allegations against former NSW Police Minister Mike Gallacher.[10] He was accused of improper political interference in police investigations relating to former Federal MP Craig Thompson after Mr Gallacher telephoned then Police Commissioner Andrew Scipione to discuss launching the investigation.[11] Undue ministerial influence of the nature described in the above circumstances arguably undermines the integrity and accountability of police discretion as it compromises the separation of powers and creates ‘a risk of politicising safety, security and justice’.[12] Ultimately, it is necessary to strike a balance so that, on the one hand, police independence is not constrained by political partisanship and, on the other hand, the investigatory powers of the police are not so broad that they effectively ‘lay the foundation for the worst excesses of a police state’.[13]

II      Discriminatory Influences Historically entrenched racism and discrimination in parts of the police force against Aboriginal and Torres Strait Islander people remains another potential influence upon police independence of decision making, especially when deciding charges to be laid. In 1991, the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’) concluded that ‘Aboriginality played a significant and in most cases dominant role in [the individuals] being in custody and dying in custody’.[14] A year later, former Prime Minister Gough Whitlam observed that the ‘Labour Government in WA inherited a police force which had a racist component [and] it has not succeeded in eradicating it’.[15]According to former NSW Aboriginal Land Council representative Des Jones this racist component also persists in the NSW Police Force, which he recently condemned as having a ‘culture…that they all look after one another…where they’ll suppress and oppress [Indigenous youth]’.[16] This allegation is reflected in the recent revelations of the Royal Commission into the Protection and Detention of Children in the Northern Territory where it was disclosed that Northern Territory police failed to ‘charge a Don Dale Detention Centre guard with assault because he believed he was just “goofing around”’.[17] Conversely to this guard’s experience of avoiding any charge, the RCIADC demonstrated that Aboriginal people face the discrimination of being charged by police even in situations where others would not face charges.[18]

This historical culture of discrimination in parts of the police force could certainly affect the maintenance of high standards of integrity and accountability by the appropriate exercise of discretion, especially in controversial cases of unwarranted charging of Aboriginal and Torres Strait Islander people. In 2015, Victoria’s Commissioner for Aboriginal Children and Young People, Andrew Jackomos, accused the police of a zero tolerance approach to crime by Indigenous youth after police arrested and charged a 14-year-old Aboriginal boy for the theft of a three dollar chocolate bar.[19] As Lord Scarman astutely observed in 1981, ‘“Fiat justitia, ruat caelem” [Let justice be done though the heavens fall] may be apt for a Judge: but it can lead a policeman into tactics disruptive of the very fabric of society’.[20]  This disruption is evident in police charges against Indigenous people for offensive language that often result in the trifecta of offences and ultimately amount to ‘an oppressive mechanism of control over Aboriginals’. [21] It should be noted that any general statements about the police force generally refer only to significant or common, not universal, characteristics or tendencies of the police.[22] In order to overcome significant racist tendencies and maintain the integrity of police discretion in charging individuals, the RCIADC recommended that offensive language should not normally be a sufficient basis for an arrest or charge and police services should examine and monitor the use of such charges.[23] Nevertheless, past and contemporary high profile circumstances indicate that despite the fact that police should not be influenced by the race of the alleged offender, such influence continues to permeate aspects of local, state and federal police forces across Australia.[24]

In summary, the historical influences of ministerial interference and racially prejudicial practices continue to operate upon police independence of decision making when investigating crime and deciding charges to be laid. High standards of integrity and accountability simply cannot be maintained when these influences upon police discretion repeatedly cause the resignation of police commissioners as well as the degrading treatment of Indigenous people.         [1] Ray Whitrod, quoted in Russell Hogg and Bruce Hawker, ‘The Politics of Police Independence’ (1983) 8 (4) Legal Services Bulletin 160, 164. [2] Phillip Stenning, ‘Governance of the Police: Independence, Accountability and Interference’ (2011) 13 Flinders Law Journal 241, 251. [3] Ibid 248. [4] New South Wales, Royal Commission into the NSW Police Service (Wood Inquiry), Final Report (1997) 244-245. [5] Ibid. [6] Ibid. [7] Ibid. [8] Ibid. [9] Dermot Walsh, and Vicky Conway, ‘Police governance and accountability: overview of current issues’ (2011), 55(2-3) Crime, Law and Social Change 61, 71; Stenning, above n 2, 245. [10] ‘Minister Accused of Interfering in Matter’, The Sydney Morning Herald (online), 24 August 2011 <http://www.smh.com.au/national/minister-accused-of-interfering-in-matter-20110824-1wu6m.html&gt;. [11] Ibid. [12] Ibid; Walsh, above n 9. [13] Walsh, above n 9. [14] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 1, 1 [1.1.1]. [15] Melinda Donohoo, ‘Interview: Gough It Sweet’ (1992) 3(1) Polemic 44, 44. [16] Declan Gooch and Dugald Saunders, ‘”Entrenched Racism” in NSW Police harming young people, Indigenous leader says’, ABC News (online), 29 March 2017 <http://www.abc.net.au/news/2017-03-29/entrenched-racism-in-nsw-police-harming-young-people-leader-says/8398122&gt;. [17] Lucy Hughes-Jones, ‘Don Dale royal commission: guard not charged with assault after “goofing around”’, Northern Territory News (online), 10 May 2017 <http://www.ntnews.com.au/news/northern-territory/don-dale-royal-commission-guard-not-charged-with-assault-after-goofing-around/news-story/a3f47bd17c13ff081787ea10135fc2c8&gt;. [18] Royal Commission into Aboriginal Deaths in Custody, above n 15, vol 2, 228-9 [13.5.14]. [19] Tessa Ackerman, ‘Police too quick to charge indigenous kids: Andrew Jackomos’, The Australian (online), 30 June 2015 <http://www.theaustralian.com.au/national-affairs/indigenous/police-too-quick-to-charge-indigenous-kids-andrew-jackomos/news-story/32fdbb72ca41adfa65537565575e771c&gt;. [20] Leslie George Scarman, The Scarman Report: The Brixton Disorders, 10-12 April 1981 (Penguin Books, 1981) 103. [21] Former Commissioner Wootten quoted in Kathryn Pirie and Sheryl Cornack, ‘What is Obscene – The Language or the Arrest that Follows?’ (Paper Presented at Aboriginal Justice Issues, Australian Institute of Criminology, Canberra, 23-25 June 1992) 144. [22] Hal Wootten, ‘Aborigines and Police’ (1993) 16(1) University of New South Wales Law Journal 265, 266. [23] Royal Commission into Aboriginal Deaths in Custody, above n 15, vol 5, [39.2], Recommendation Number 86. [24] See: Simon Bronitt and Philip Stenning, ‘Understanding Discretion in Modern Policing’ (2011) 35 Criminal Law Journal 319, 324; Queensland Police Service, Standard of Practice (2011), Appendix A: ‘Statement of Ethics’; Nicholas Cowdery, Office of the Director of Public Prosecutions for New South Wales, ODPP Guidelines (2007) 9 [3.23].

REFERENCE LIST A Articles/Books/Reports Ackerman, Tessa, ‘Police too quick to charge indigenous kids: Andrew Jackomos’, The Australian (online), 30 June 2015 <http://www.theaustralian.com.au/national-affairs/indigenous/police-too-quick-to-charge-indigenous-kids-andrew-jackomos/news-story/32fdbb72ca41adfa65537565575e771c&gt; Bronitt, Simon and Philip Stenning, ‘Understanding Discretion in Modern Policing’ (2011) 35 Criminal Law Journal 319 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report(1991) Donohoo, Melinda, ‘Interview: Gough It Sweet’ (1992) 3(1) Polemic 44 Gooch, Declan and Dugald Saunders, ‘”Entrenched Racism” in NSW Police harming young people, Indigenous leader says’, ABC News (online), 29 March 2017 <http://www.abc.net.au/news/2017-03-29/entrenched-racism-in-nsw-police-harming-young-people-leader-says/8398122&gt; Harvey, Ryan, ‘Racist, Offensive and Degrading Police Behaviour Against Aboriginal People in New South Wales: Modern Challenges to the Findings of the Royal Commission into Aboriginal Deaths in Custody’ (2012) 16(2) Australian Indigenous Law Review 33 Hogg, Russell and Bruce Hawker, ‘The Politics of Police Independence’ (1983) 8 (4) Legal Services Bulletin 160 Hughes-Jones, Lucy, ‘Don Dale royal commission: guard not charged with assault after “goofing around”’, Northern Territory News (online), 10 May 2017 <http://www.ntnews.com.au/news/northern-territory/don-dale-royal-commission-guard-not-charged-with-assault-after-goofing-around/news-story/a3f47bd17c13ff081787ea10135fc2c8&gt; ‘Minister Accused of Interfering in Matter’, The Sydney Morning Herald (online), 24 August 2011 <http://www.smh.com.au/national/minister-accused-of-interfering-in-matter-20110824-1wu6m.html&gt; New South Wales, Royal Commission into the NSW Police Service (Wood Inquiry), Final Report (1997) Pirie, Kathryn and Sheryl Cornack, ‘What is Obscene – The Language or the Arrest that Follows?’ (Paper Presented at Aboriginal Justice Issues, Australian Institute of Criminology, Canberra, 23-25 June 1992) Scarman, Leslie George, The Scarman Report: The Brixton Disorders, 10-12 April 1981 (Penguin Books, 1981) Stenning, Phillip, ‘Governance of the Police: Independence, Accountability and Interference’ (2011) 13 Flinders Law Journal 241 Walsh, Dermot and Vicky Conway, ‘Police governance and accountability: overview of current issues’ (2011), 55(2-3) Crime, Law and Social Change 61 Wootten, Hal, ‘Aborigines and Police’ (1993) 16(1) University of New South Wales Law Journal 265

B Legislation Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Police Act 1990 (NSW)

C Other Cowdery, Nicholas, Office of the Director of Public Prosecutions for New South Wales, ODPP Guidelines (2007) New South Wales Police Service, Code of Conduct and Ethics (2008) Queensland Police Service, Standard of Practice (2011)