Human Rights & Police Accountability
Does NSW comply with human rights principles?
The current police accountability system in NSW complies with some, but not all, of the relevant international human rights principles and standards.
The areas in which CLCNSW believes NSW is non-compliant include:
- the duty to properly investigate
- independence in the investigation of complaints
- adequacy in the investigation of complaints
- the duty to provide prompt responses to complaints
- a level of public scrutiny
- involving victim participation in the investigative process
- redress and reparations for victims
Two United Nations Committees have expressed concern about Australia’s police accountability systems.
In 2009, the Human Rights Committee (HRC) noted in its concluding observations about Australia:
The Committee express concern at reports of excessive use of force by law enforcement officials against groups, such as indigenous people, racial minorities, persons with disabilities, as well as young people; and regrets that the investigations of allegations of police misconduct are carried out by the police itself. …. [Australia] should take firm measures to eradicate all forms of excessive use of force by law enforcement officials. It should in particular: a) establish a mechanism to carry out independent investigations of complaints concerning excessive use of force by law enforcement officials; b) initiate proceedings against alleged perpetrators …. and e) provide adequate reparation to the victims. 
Similarly in 2008, the UN Committee on Torture, in its Concluding Observations about Australia, noted concern “about allegations against law enforcement personnel in respect of acts of torture and other cruel, inhuman or degrading treatment or punishment and notes a lack of investigations and prosecutions.” The Committee recommended:
“The State party should ensure that all allegations of acts of torture and other cruel, inhuman or degrading treatment or punishment committed by law enforcement officials, and in particular any deaths in detention, are investigated promptly, independently and impartially and, if necessary, prosecuted and sanctioned. Furthermore, the State party should also ensure the right of victims of police misconduct to obtain redress and fair and adequate compensation, as provided for in article 14 of the Convention.”
In addition, a recommendation made as part of the Universal Period Review of human rights in Australia was:
“Further improve the administration of justice and the rule of law including by setting up appropriate mechanisms in order to ensure adequate and independent investigation of police use of force, police misconduct and police related deaths”.
CLCNSW has recommended changes to the NSW police complaint system, in line with international human rights principles.
Human Rights Principles & Standards relating to Police Accountability
International human rights principles are found in various instruments, declarations and guiding statements that concern the handling of complaints and the state’s duty to investigate and provide effective remedies to victims of violations of human rights. For example:
- International Covenant on Civil and Political Rights See here
- UN Basic Principles on the Use of Force and Firearms See here
- UN Basic Principles on the Independence of the Judiciary See here
- UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power See here
- UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment See here
- UN Declaration on the Protection of All Persons from Enforced Disappearance See here
- UN Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions See here
- UN Code of Conduct for Law Enforcement Officials See here
- UN Standard Minimum Rules for the Treatment of Prisoners See here
Principles are also derived from decisions of various international courts and tribunals attached to human rights treaties.
The relevant principles include:
- the right to an effective remedy for any rights or freedoms violated by persons acting in official capacity
- any person claiming such a remedy has the right to have this determined by competent judicial, administrative or legislative authorities
- that all incidents of the use of force or firearms shall be followed by reporting and review by superior officials
- that superior officials shall be held responsible for the actions of police under their command if the superior official knew or should have known of abuses but failed to take concrete action
- that officials who commit abuses of these rules shall not be excused on the grounds that they were following superior orders
- that investigations are to be allowed for where requested or required
- that the independent functioning of the judiciary shall be maintained
- that victims shall have access to mechanisms of justice and prompt redress
- that any redress procedures shall be expeditious, fair, inexpensive and accessible
- that victims shall be informed of their rights in seeking redress and protection
- that governments should make restitution where public officials are at fault
- that clear, complete and accurate records shall be maintained on matters of investigations, arrests, detention, the use of force and firearms, victim assistance, and all matters of police activity
- that effective mechanisms shall be established to ensure internal discipline and external control as well as the effective supervision of law enforcement officials
- that provisions shall be made for the receipt and processing of complaints against law enforcement officials made by members of the public, and the existence of those provisions shall be publicized
- that investigations into violations shall be prompt, competent, thorough, and impartial 
- that investigations shall seek to identify victims, recover and preserve evidence, discover witnesses, discover cause, manner, location and time of the violation, and to identify and apprehend perpetrators
- that crime scenes shall be carefully processed 
- that police are to receive immunity from prosecution or discipline for refusing unlawful superior orders
A comprehensive collection of principles can be accessed from the Office of the High Commissioner for Human Rights (OHCHR) Centre for Human Right’s International Human Rights Standards for Law Enforcement: A Pocket Book on Human Rights for the Police.
The European Commissioner for Human Rights has issued an opinion concerning Independent and Effective Determination of Complaints against the Police: available here. The Commissioner states that for the investigation of a death or serious injury in police custody or as a consequence of police practice, best practice requires an Independent Police Complaints Body working in partnership with the police. The Commissioner identifies five key principles that are necessary for an investigation of a serious complaint against police to be effective, and details what is meant by each principle: Independence, Adequacy, Promptness, Public scrutiny, Victim involvement.
It has been noted that a fair and effective system for dealing with police complaints is a core component of democratic and accountable policing. This is also reflected in the preamble to the UN Code of Conduct for Law Enforcement Officials where it states that ‘every law enforcement agency should be representative of and responsive and accountable to the community as a whole’.
 HRC, Concluding Observations of the Human Rights Committee: Australia, UN Doc CCPR/C/AUS/CO/5, Ninety-fifth session, Geneva, 16 March-3 April 2009, para 21.
 CAT, Concluding Observations of the Committee Against Torture: Australia, UN Doc CAT/C/AUS/CO/3, 22 May 2008, para 27.
 UPR Rec 89 (made by Malaysia).
 What kind of human rights are we talking about, that police could violate? Examples include: the right to life, freedom from torture, cruel or degrading treatment, freedom from discrimination; freedom from arbitrary detention; the right to medical treatment etc.
 UN Basic Principles on the Use of Force and Firearms [hereinafter “Principles on Force & Firearms”], principles 6, 11(f), and 22. (Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990.) See here.
 Principles on Force & Firearms, principle 24.
 Principles on Force & Firearms, principle 26
 Principles on Force & Firearms, principles 6, 11(f), 22 and 23.
 UN Basic Principles on the Independence of the Judiciary, principles 1-7 See here; United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, "Guidelines for the Development of Legislation on States of Emergency," The Administration of Justice and the Human Rights of Detainees: Question of Human Rights and States of Emergency, U.N. Doc. E/CN.4/sub.2/1991/28.
 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power [hereinafter “Victims Declaration”] adopted by General Assembly Resolution 40/34 of 29 November1985, principles 4 and 8. See here
 Victims Declaration, principle 5.
 Victims Declaration, principle 5.
 Victims Declaration, principle 11.
 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment [hereinafter “Principles of Detention or Imprisonment”], principle 12 See here; Standard Minimum Rules for the Treatment of Prisoners [hereinafter “SMR”], rule 7 See here; Declaration on the Protection of All Persons from Enforced Disappearance [hereinafter “Declaration on Enforced Disappearance”], article 10(2) See here; Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions [hereinafter “Principles on Summary Execution”], principle 6 See here; Principles on Force & Firearms, principles 6, 11(f) and 22.
 United Nations Code of Conduct for Law Enforcement Officials [hereinafter “Code of Conduct”, preambular paragraph 8(d) and articles 7 and 8 See here; Principles on Force & Firearms, principles 22-26.
 Declaration on Enforced Disappearance, articles 9 and 13; Principles on Summary Execution, principle 9; Principles on Force & Firearms, principle 23; Principles of Detention or Imprisonment, principle 33; SMR, rule 36.
 Victims Declaration, principle 6; Principles on Summary Execution, principle 9; Declaration on Enforced Disappearance, article 13.
 Principles on Summary Execution, principle 9.
 Principles on Summary Execution, principles 9, 12 and 13.
 Principles on Force & Firearms, principle 25.
 Commissioner for Human Rights, Opinion of the Commissioner for Human Rights concerning Independent and Effective Determination of Complaints against the Police, 12 March 2009, CommDH(2009)4.
 Graham Smith, ‘Every complaint matters: Human Rights Commissioner’s opinion concerning independent and effective determination of complaints against the police’, International Journal of Law, Crime and Justice, 38 (2010) 59-74 at 59.
 Annexed to the United Nations General Assembly Resolution 34/169, dated 17 December 1979.