Addressing Police Corruption in NSW: ICAC, PIC and LECC

Tuesday 19 April 2016 @ 1.49 p.m. | Crime | Legal Research

In New South Wales, police powers are mainly governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the Crimes (Domestic and Family Violence) Act 2007 (NSW), and the Bail Act 2013 (NSW). These set out the extent of police powers, including limitations which serve to prevent corruption and protect civilian rights. Additionally, the NSW Police Force is governed by the Code of Conduct & Ethics, the Standard of Professional Conduct Booklet and the Statement of Values. These rules enforce ethical police obligations that, if breached, will result in management action.

Despite these measures, police corruption continues to be an issue worldwide. In NSW, police officers have been convicted of crimes such as assault, fraud and misuse of weapons, among other issues. There are bodies set up in the State in order to address reported corruptions, but the extent of their effectiveness should be reviewed.

Independent Commission Against Corruption

The Independent Commission Against Corruption (ICAC) is an independent organisation that serves to “protect the public interest, prevent breaches of public trust and guide the conduct of public officials in the NSW public sector”. ICAC is governed by the Independent Commission Against Corruption Act 2015 (NSW) (the ICAC Act), which defines ICAC’s jurisdiction in addressing police corruption. 

ICAC has recently undergone reform after the decision in Independent Commission Against Corruption v Margaret Cunneen & Ors [2015] HCA 14 (the Cunneen case), in which a majority of the High Court of Australia held that ICAC had no power to conduct an inquiry into alleged conduct that was not “corrupt conduct” as per section 8(2) of the ICAC Act. The alleged conduct must have been one “that could adversely affect the probity of the exercise of an official function by a public official”.

As outlined in our previous TimeBase article, the Independent Commission Against Corruption Amendment Bill 2015 (NSW) (the Bill) was introduced to extend the definition of “corrupt conduct” to include “certain conduct by any person that could impair public confidence in public administration”. 

This legislative reform focused on extending ICAC’s powers to investigate “corrupt conduct” by non-public officials that could impair confidence in public administration – a response to the decision in the Cunneen case. However, the focus was on actions of non-public officials, as opposed to addressing concerns regarding public officials (eg. police). The Bill did address investigations extending to possible criminal offences, thus seeking to eliminate challenges to the legislation from future misuse of powers from public officials. 

Police Integrity Commission

The Police Integrity Commission (PIC) is a governmental body established under the Police Integrity Commission Act 1996 (NSW) to prevent, detect and investigate serious police misconduct in NSW. The PIC is independent from the NSW Police Force, and is prevented from employing any of its former and present members.

Currently, there are plans to replace the current PIC with a new body to conduct police oversight in NSW. The proposed Law Enforcement Conduct Commission (LECC) will be “the sole body responsible for detecting and investigating serious misconduct and oversee complaints handling”, essentially fusing the PIC’s functions with the Ombudsman police division. Clive Small, a former NSW Deputy Commissioner, states that the LECC is a response to the critiques of the PIC’s inadequate investigations which focused on finding “big scalps” instead of the “more refined, subtle things… that can be done to improve the performance and behavior of police”, which has led to a “lack of trust” in the system.  

Although the proposed structural changes seek to improve the effectiveness of police oversight in NSW, there exists doubts to its changes as a mere “expensive rebadging” of the current PIC fused with the Ombudsman. However, a spokeswoman for Deputy Premier Tony Grant insists that the LECC will address problems in the PIC, which includes “multiple agencies with overlaps and duplication of roles and functions… [creating] confusion and a lack of certainty for those who complain and the officials complained about”. 

The LECC is expected to commence operation from 2017.

Effectiveness of Anti-Police Corruption Bodies

Ultimately, for these systems to work, reports on police corruption need to be ongoing. Proposed changes and ideas could improve the system, such as the aforementioned LECC or calls for a national ICAC. But the most significant change will emanate from society’s willingness to report police corruption when it occurs. As noted in the ICAC Report on the 2012 Survey, an effective anti-police corruption system must include public officials and private citizens understanding what corruption is and that those suspicions need to be reported to the appropriate bodies. Only then can police corruption be effectively mitigated.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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