AGY-6944 | Law Enforcement Conduct Commission

Full description

Background
On 20 May 2015, the NSW Government, in fulfilment of an election commitment, commissioned former NSW Shadow Attorney General, Mr Andrew Tink AM, to examine ways in which oversight of the NSW Police Force and NSW Crime Commission could be streamlined and strengthened. On 26 November 2015, Deputy Premier and Minister for Justice and Police Troy Grant released Mr Tink's Report, entitled Review of Police Oversight. Mr Grant also announced that the NSW Government accepted Mr Tink's recommendations for a single civilian oversight body for the NSW Police Force and NSW Crime Commission, in the form of the Law Enforcement Conduct Commission. (1)

The Law Enforcement Conduct Commission
The Law Enforcement Conduct Commission was established as a statutory body on 1 July 2017 by the Law Enforcement Conduct Commission Act 2016 (Act No.61, 2016), which was assented to on 14 November 2016, and partly proclaimed to commence on the date of assent. (2) The remainder of the Act, including the functions and investigative powers of the Commission, was proclaimed to commence on 1 July 2017. The Act abolished the Police Integrity Commission. The Act also repealed the following Acts and Regulations: Police Integrity Commission Act 1996 (Act No.28, 1996); Police Integrity Commission Amendment Act 2005 (Act No.2, 2005); Police Integrity Commission Regulation 2013; and the Royal Commission (Police Service) Act 1994 (Act No.60, 1994). (3)

The functions of the Law Enforcement Conduct Commission (LECC) included:
(a) The detection, investigation and exposure of conduct that is (or could be) serious misconduct or serious maladministration;
(b) The referral of misconduct matters relating to members of the NSW Police Force for police investigation and of misconduct matters relating to Crime Commission officers to the Crime Commission for Crime Commission investigation (unless the conduct concerned is (or could be) serious misconduct or serious maladministration and the Commission has decided to investigate the matter);
(c) The referral of misconduct matters for investigation or action by other appropriate authorities;
(d) The monitoring of the investigation or handling of misconduct matters referred by it to other authorities;
(e) Working collaboratively with the NSW Police Force and Crime Commission with respect to educating Crime Commission officers and members of the NSW Police Force about officer misconduct and maladministration and supporting and promoting initiatives of those agencies directed at the prevention and elimination of officer misconduct and maladministration;
(f) Assembling evidence and information that may be used in prosecuting criminal offences or dealing with disciplinary infringements and giving it to appropriate authorities;
(g) Forming opinions and making recommendations in the exercise of its functions without making any findings of guilt about the commission of criminal offences (but which may be used as a ground for taking disciplinary proceedings);
(h) Exercising the functions that may be exercised by the Crime Commission under the Criminal Assets Recovery Act 1990 in connection with matters arising during or in the course of the Law Enforcement Conduct Commission's investigations under the proposed Act;
(i) Inspecting records and reports to ensure the NSW Police Force and Crime Commission are complying with certain legislative requirements. (4)

The LECC also monitored the NSW Police Force's (NSWPF) investigation of critical incidents involving a police officer or other member of the NSWPF that resulted in death or serious injury to a person. The LECC monitored “the investigation of critical incidents from the time of the incident, until the completion of the investigation by police, to provide assurance to the public and the next of kin that police investigations into critical incidents are conducted in a competent, thorough and objective manner and consider: the lawfulness and reasonableness of the actions of the NSWPF officers involved in the critical incident; the extent to which the actions of the NSWPF officers complied with relevant law and policies and procedures of the NSWPF; any complaint about the conduct of involved NSWPF officers and any evidence of misconduct; the need for changes to relevant policies, practices and procedures of the NSWPF; and any systemic, safety or procedural issues arising from the actions of NSWPF officers”. (5)

If the LECC formed the view that the investigation was not being conducted in an appropriate manner, the LECC could advise the NSWPF and/or the Coroner of those concerns and make recommendations in relation to concerns identified. The NSWPF was required to consider and respond to concerns and recommendations raised by the LECC. The LECC could make the advice it has given public after the conclusion of the critical incident investigation. (6)

The Commission consisted of the following members appointed by the Governor: a Chief Commissioner; a Commissioner for Integrity; and a Commissioner for Oversight. The Commissioners for Integrity and Oversight could only be appointed with the concurrence of the Chief Commissioner. The Governor could also appoint, with the concurrence of the Chief Commissioner, one or more Assistant Commissioners. The Chief Commissioner was required to be a Judge, or former Judge of a Supreme Court, while the Commissioners or Assistant Commissioner were required have special legal qualifications. Police Officers, or former Police Officers, and members of the NSW Legislative Assembly and Council, or members of Parliament in another State or Territory, or of the Commonwealth were not eligible for appointment to the Commission. (7)

The Commission and the Commissioners were not subject to the control and direction of Minister in the exercise of their functions. (8)

The Governor could appoint an Inspector to the Commission. The Inspector was an independent Statutory Officer. The role of the Inspector was: (a) to audit the operations of the Commission for the purpose of monitoring compliance with the law of the State (b) to deal with complaints about officers of the Commission; and to (c) assess the effectiveness and appropriateness of the Commission's policies and procedures. (9)

The Parliamentary Joint Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission was constituted under section 31A of the Ombudsman Act 1974 (Act No.68, 1974). The Committee consisted of seven members: three from the Legislative Council and four from the Legislative Assembly. In connection with the Law Enforcement Conduct Commission its role was as follows: (a) to monitor the Law Enforcement Conduct Commission and the Inspector of the Law Enforcement Conduct Commission and review the exercise of their functions; (b) to report to both Houses of Parliament on any matter relating to these bodies; (c) to examine the annual report of the Law Enforcement Conduct Commission and the Inspector and report to both Houses of Parliament on matters arising from the report; (d) to report to Parliament on any changes that should occur in the functions, structures and procedures of the Commission and the Inspector; (e) to inquire into any question raised by either House of Parliament. (10)

The Law Enforcement Conduct Commission was unable to employ any staff in its own right under section 47A of the Constitution Act 1902 (Act No.32, 1902). However, staff could be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commission and the Commissioners to exercise their functions. These staff were to be “employed in a separate Public Service agency and be referred to as members of staff of the Commission (as provided for under section 59 of the Government Sector Employment Act 2013 (Act No.40, 2013)). (11)

On 1 February 2017, the Office of the Law Enforcement Conduct Commission was established as a separate Public Service agency within the Justice Cluster to fulfil this function. (12) An agency was established under the Act as a separate agency where, for reasons of constitutional or statutory independence it was not appropriate for them to be Related Agencies and have their Senior Executives employed by the Secretary of the Department of Justice. (13) On 1 July 2017, the LECC Transition Branches in both the Ombudsman Office (formerly the Police and Compliance Branch) and the Police Integrity Commission Staff Agency were transferred to the Office of the LECC. (14)

By 13 October 2017, the Oversight Division of the Commission had received 413 direct complaints, and assessed 204 notified complaints on the Police complaints database. By the same date, the Integrity Division had commenced 16 preliminary investigations, and four full investigations. (15)

The Commission’s strategic plan 2020-2023 recognised that the Commission is an independent body responsible for the oversight of the NSWPF and the NSWCC. As such it must carry out its functions without fear or favour and with a view to assuring the community that policing in this state is carried out in a responsible and appropriate manner. The Commission recognised that the law enforcement bodies of NSW have the same ambitions and often the Commission will act collaboratively with them. However, there are other times when the Commission acts independently and has been given the power of investigation to enable it to do so. (16)

Endnotes
1. Review of Police Oversight in NSW-New Law Enforcement Conduct Commission for NSW from the NSW Department of Justice Website, http://www.justice.nsw.gov.au/justicepolicy/Pages/lpclrd/lpclrd_consultation/review-of-police-oversight-in-nsw.aspx (accessed 12 October 2017); Ministerial Media Release, Troy Grant MP, Deputy Premier of NSW and Minister for Justice and Police, New Law Enforcement Watchdog for NSW, 26 November 2015 from the NSW Department of Justice Website, http://www.justice.nsw.gov.au/Documents/Media%20Releases/2015/MR15_New_law_enforcement_watchdog_for_NSW.pdf (accessed 12 October 2017); Tink, Andrew (AM), Review of Police Oversight, NSW Department of Justice, Sydney, 31 August 2015, p.1 from the NSW Department of Justice Website, http://www.justice.nsw.gov.au/justicepolicy/Documents/review-police-oversight/review-police-oversight-final-report.pdf (accessed 12 October 2017).
2. Law Enforcement Conduct Commission Act 2016, s.2, Part 3 (the Commission was specifically established by s.17 of the Part).
3. Ibid., Parts 4-15, Schedule 3 (Savings, transitional and other provisions), Schedule 4 (Repeals); Commencement Proclamation under the Law Enforcement Conduct Commission Act 2016 (2017 No.256); notified on NSW Legislation Website, 16 June 2017; Media Release, Law Enforcement Conduct Commission, Law Enforcement Conduct Commission to commence operations on 1 July 2017, 30 June 2017 from the Law Enforcement Conduct Commission Website, https://www.lecc.nsw.gov.au/news-and-publications/news/law-enforcement-conduct-commission-to-commence-operations-on-1-july-2017 (accessed 12 October 2017).
4. Ibid., Part 4, Functions of the Commission; The Law Enforcement Conduct Commission Bill 2016, Explanatory Note, pp.4-5 from the Parliamentary Counsel's Office Website, Legislation, https://www.legislation.nsw.gov.au/bills/8bce7fb0-38ff-4e85-af05-f5c4b611dce4 (accessed 11 October 2017).
5. What We Do; from the Law Enforcement Conduct Commission Website, https://www.lecc.nsw.gov.au/what-we-do (accessed 12 October 2017).
6. Loc. cit.
7. Law Enforcement Conduct Commission Act 2016, op.cit., ss.18, 20.
8. Ibid., s.22.
9. Ibid., ss.120, 122; Our Independence from the Law Enforcement Conduct Commission Website, https://www.lecc.nsw.gov.au/what-we-do/who-we-are-and-what-we-value/our-independence (accessed 12 October 2017); Home Page from the Office of the Inspector for the Law Enforcement Conduct Commission Website, http://www.oilecc.nsw.gov.au/ (accessed 13 October 2017).
10. Ibid., ss.130, 131; Ombudsman Act 1974, ss.31A, 31C.
11. Ibid., s.21 (1).
12. Administrative Arrangements (Administrative Changes-Law Enforcement Conduct Commission) Order 2017 (2017 No.60) cls.2; notified on NSW Legislation Website, 8 March 2017; Justice Cluster Administrative Arrangements (as of October 2017) from the NSW Department of Justice Website, http://www.justice.nsw.gov.au/Documents/About%20us/justice-admin-arrangements.pdf (accessed 12 October 2017).
13. Structure of the Government Sector (Table) from the Public Service Commission Website, Employment Portal-Resources, https://web.archive.org/web/20140621033820/http://www.psc.nsw.gov.au/employmentportal/Resources/structure (accessed 3 November 2014); ‘Government Sector: Separate Public Service agencies from the Public Service Commission Website, Employment PortalResources-Fact Sheets, https://web.archive.org/web/20140621034337/http://www.psc.nsw.gov.au/employmentportal/Resources/Fact-Sheets (accessed 3 November 2014).
14. Administrative Arrangements (Administrative Changes-Law Enforcement Conduct Commission) Order 2017, op.cit., clss.3-6; Media Release, Law Enforcement Conduct Commission, Law Enforcement Conduct Commission to commence operations on 1 July 2017, op.cit.; NSW Ombudsman Annual Report 2015-2016, pp.1-2, 34, 42.
15. Law Enforcement Conduct Commission Annual Report 2016-2017, pp.19-20.
16. Law Enforcement Conduct Commission Strategic Plan 2020-2023, p.20.