Why Reform is Needed
Why is CLCNSW pursuing reform of the NSW police complaints system
CLCNSW seeks to increase confidence in the handling of complaints against police. We believe the current system does not provide an unbiased, transparent and safe mechanism for individuals to pursue concerns about police action (or inaction) in situations where their human rights have been violated. This is particularly so for vulnerable groups of people who may be most likely to have contact with police (e.g. victims of domestic violence, young people, Aboriginal people, people affected by mental illness). Pursuing civil action against police is not generally available to people without resources, and they are reliant upon administrative mechanisms.
Inadequacies in the current system include lack of transparency, a lack of independent investigation and management of the complaint, and the absence of safeguards to protect people who raise legitimate complaints about police.
This call for reform has arisen from the experiences of solicitors in CLCs from around NSW. These solicitors observe that vulnerable people who mention violations of their rights by police are generally unwilling to make a formal complaint, even where they have access to legal assistance. This case study (link) provides one example. Reasons given by clients include fear, and lack of confidence in a system where police investigate police, and more pressing personal issues.
Those who do pursue complaints often find the process disempowering and deeply flawed from their perspective. One example is described in this case study (link).
These issues are not new developments. They were addressed in the Royal Commission into Aboriginal Deaths in Custody in 1991. The Royal Commission’s Report notes
.....Aboriginal people point to......evidence of the fact that the mechanisms for dealing with complaints are so loaded against Aboriginals, and the fear of retaliation so great, that few Aboriginals dare to complain... 
In summary, recommendations made by the Royal Commission included:
- Complaints should be managed by an independent body (not by the police themselves)
- It should be a serious offence for a police officer to retaliate against a person because they made a complaint
- Aboriginal and Torres Strait peoples should be involved in the complaints handling decision (particularly where the person making the complaint is Aboriginal or Torres Strait Islander).
- Formal hearings of complaints should be public and transparent.
None of these recommendations have been implemented in NSW.
The United Nations Human Rights Committee, and Committee on Torture, have both expressed concern about the inadequacy of Australia’s police accountability systems. For example, in 2009 the Human Rights Committee 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 …. 
We acknowledge major reforms and changes within NSW Police over the last 15 years, which have focussed on minimising corruption within the police force. However we do not believe that that an appropriate system is in place for complaints by the public about human rights violations. It is particularly crucial and timely to improve the complaints system given that police powers in NSW have expanded notably over the past decade.
Our objective is reform of the police complaints system (as it affects civilian complainants), to achieve an effective and fair system, involving:
- Real independence & impartiality;
- Transparency of process and results;
- Improved accessibility;
- More effective oversight and accountability; and
- Safeguards to protect complainants from retaliation (or fear of retaliation).
 Royal Commission into Aboriginal Deaths in Custody, National Report, Volume 2- Complaints Mechanism, 1991, at 13.4.61. Available at: http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol4/41.html
 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.