NSW Ombudsman takes aim at legislative changes to police conduct oversight regime … New legislation lets coppers off the hook … Limited power for Law Enforcement Conduct Commission to investigate serious misconduct and serious maladministration … Police can determine the level of independent oversight … Rebecca Wong reports 

Acting NSW Ombudsman Prof John McMillan has issued a scathing report on the state government’s proposed implementation of a new regime for oversight of police conduct. 

The changes will see the creation of the Law Enforcement Conduct Commission, a body tasked with investigating misconduct and corruption within the NSW Police Force. 

In a letter dated Sept. 14, McMillan raised concerns regarding the independence and resourcing of the LECC, noting that some of the legislative requirements may impede the discretionary exercise of its functions.

The Law Enforcement Conduct Commission Bill, introduced in the Legislative Assembly by Deputy Premier and Minister for Justice and Police Troy Grant (Nat), draws on recommendations from a review into police oversight conducted by former shadow attorney general Andrew Tink.  

According to Grant, it aims to streamline the process of handling police misconduct complaints. The Law Enforcement Conduct Commission will take over the concurrent oversight functions of the police division of the Office of the Ombudsman (PDOO), the Police Integrity Commission, and the Inspector of the Crime Commission, with the two latter agencies being abolished. 

It’s a shame that the partisan ICAC inspectorate wasn’t also abolished and rolled into the new body.

McMillan criticised the implementation committee’s “important departures from key recommendations made by Mr Tink”, and its apparent “stated interest in hearing our views on the LECC Bill”. 

The Bill curbs the LECC’s discretion to conduct external investigations of police matters, with clause 51 requiring the relevant incidents to meet the threshold of “serious misconduct … serious officer maladministration … or serious maladministration”. 

McMillan noted that this may hamper the commission’s capacity to fulfil its function as an independent oversight agency. 

In particular, an extensive investigation into Taser use by police undertaken by the Ombudsman in 2012 would not have met these criteria, as it was conducted in the public interest, rather than in response to complaints of serious misconduct. 

McMillan has argued that “a broad range of complaints” formerly within the purview of the Ombudsman are likely to be subject to internal review only, potentially jeopardising the quality and transparency of police complaint investigations.

Clause 114(3)(c) of the Bill requires an interview subject to consent to the LECC attending interviews as an independent observer, for the purposes of monitoring critical incident investigations undertaken by the police force. 

A critical incident is defined in clause 110 as one in which the use of force by a police officer results in the death of, or serious injury to, another person. 

The Ombudsman said that this will “allow police to determine the level of LECC oversight and to stymie the effective performance of the LECC’s oversight functions”. 

McMillan also took aim at the tautological imprecision of defined terms in the legislation, including “serious misconduct [and] serious offence”, and no less than three varieties of misconduct – “police misconduct … administrative officer misconduct and …Crime Commission officer misconduct”. 

In a press release, Grant emphasised:  

“[w]e remain absolutely committed to upholding the highest standards of officer integrity and conduct and we will give this new commission the powers and resources it needs to do that.” 

Nevertheless, the Ombudsman’s letter to the parliamentary committee admonished the implementation committee for a 10 percent reduction in resource allocation compared to the budgets of the PIC and the PDOO, warning against the inadequate provision of dedicated Aboriginal community liaison officers. 

The Ombudsman declined a request by the LECC implementation committee for funding to be diverted from his office to the LECC.