Our role in the police complaints system includes independently reviewing the way the NSW Police Force (NSWPF) handles complaints about serious misconduct and investigating particular areas of police practice, if it is in the public interest to do so. We check how police handle less serious complaints, and regularly audit the way their complaint-handling processes are working to ensure they are effective and comply with legislative requirements.
We work with police to make sure the complaints system appropriately identifies criminal and serious misconduct and is accessible, credible, flexible and responsive.
Creation of the Law Enforcement Conduct Commission
In November 2015, the Deputy Premier and Minister for Justice and Police, the Hon Troy Grant MP, announced that the NSW Government would create a new civilian agency to oversight the NSW Police Force and the NSW Crime Commission. That new agency is to be called the Law Enforcement Conduct Commission (LECC) and is due to commence operation on 1 January 2017
The LECC’s structure and functions were the subject of detailed recommendations in a report by former NSW Shadow Attorney General, Mr Andrew Tink AM. It is intended that the LECC’s Oversight Division will take over the functions of the NSW Ombudsman’s Police Division. The LECC’s Integrity Division will take over the functions of the Police Integrity Commission, which is to be abolished. The Inspector for the LECC will take over the Ombudsman’s audit functions relating to the use of certain covert powers by NSW law enforcement agencies.
The creation of the LECC is subject to the passage of legislation. On 13 September 2016, the Hon Troy Grant MP introduced the Law Enforcement Conduct Commission in the NSW Parliament. A copy of the bill is available on the website of the NSW Parliament.
On 14 September 2016, the Acting Ombudsman, Professor John McMillan, wrote to the Parliamentary Committee on the Ombudsman, the Police Integrity Commission and the Crime Commission, to outline some concerns about the functions, structure and resources for the proposed LECC. The Ombudsman’s letter is published on the Committee’s website.
Police use of Firearms Prohibition Order search powers
In 2016, the Ombudsman completed a review of the operation of new search powers, which enable police to search a person subject to a firearms prohibition order (FPO) whenever reasonably required.
Our report found that there were approximately 1,500 interactions where police used the powers to conduct searches. In those interactions police conducted over 2,500 separate searches. Police found firearms, ammunition and firearm parts in 2% of the interactions. In the two years, they seized 35 firearms, 26 lots of ammunition and 9 firearm parts.
In total, 400 people subject to an FPO were searched. We also found that police searched over 200 people who were not subject to an order. Police conducted these searches on what appears to be an erroneous application of the FPO search powers and the searches may have been unlawful.
Our report also found a lack of clarity in police understanding of the circumstances in which they are authorised to search an FPO subject. The law permits an FPO search only when ‘reasonably required’ to determine if an FPO offence has been committed. It is not a roving search power to be used randomly on FPO subjects.
Our report recommends changes to legislation and internal procedures and practices that guide the way police use the FPO search powers. Other measures are also proposed to ensure that police use FPO search powers fairly and reasonably, including that FPOs should automatically expire after five years.
Download our FPO search powers report.
The consorting law
In 2016 we provided our report of the review of the operation of the consorting provisions to the Attorney General and the Commissioner of Police, and it was tabled in Parliament by the Attorney General.
The new consorting law makes it a criminal offence for a person to continue to associate or communicate with at least two people who have previously been convicted of an indictable offence, after receiving an official police warning. It aims to prevent crime by disrupting or deterring associations that may lead to the building or continuation of criminal networks.
The breadth of the new consorting law means that the main constraint on its application is the exercise of discretion by police officers. Police have significant discretion in deciding who they will warn, who will be warned about, and whether to bring charges. There is no legal requirement for the associations targeted by police for consorting to have any link to planning or undertaking criminal activity.
Our report outlines use of the consorting law in relation to members of criminal gangs, but also in relation to people experiencing homelessness, children and young people, and people with no criminal record. In some areas the proportion of use in relation to Aboriginal people was very high.
Our report recommends the adoption of a statutory and policy framework to ensure police apply the consorting law in a way that is focused on serious crime, closely linked to crime prevention, and is not used in relation to minor offending.
Download our consorting report.
Review of police oversight by Mr Andrew Tink
In 2015 the NSW government announced that it will establish a new police oversight body, called the Law Enforcement Conduct Commission, to perform functions currently the responsibility of the Police Integrity Commission and the NSW Ombudsman.
This followed a review by Mr Andrew Tink of police oversight in NSW. The terms of reference for that review were to provide advice to the government about options for a single civilian oversight model for police in NSW.
The government has accepted all the recommendations made by Mr Tink. These included a number of recommendations made in our submission to the review, which can be downloaded
Restricted Premises Act search powers and offence provisions
On 1 November 2013, changes to the Restricted Premises Act, intended to help target gun crime and premises used by serious criminals, entered into force. The Supreme Court or District Court can make a declaration under the Act in relation to premises on which proscribed activities take place. Police are empowered to search suspected premises under a warrant and to search declared premises at any time without a warrant.
Police previously had powers to search for alcohol and drugs. After the 2013 amendments, police can also search for firearms, weapons and explosives. New offences were introduced for premises subject to a ‘reputed criminal declaration’, which can be made if ‘reputed criminals’ attend, control or manage the premises. The owner or lessee of such premises commits an offence if a ‘reputed criminal’ attends, controls or manages the premises while the declaration is in force. These offences are punishable by up to 3 years imprisonment and/or a $16,500 fine.
The Ombudsman was required to scrutinise the police use of the additional search powers and new offence provisions until 31 October 2015. We are currently preparing our report, which will be provided to the Attorney General and the Commissioner of Police.
Police providing name and place of duty
Police officers are required to provide their name and place of duty when they exercise certain powers such as arrest and search. Changes introduced in November 2014 mean that, even where an officer fails to provide this information, their use of the power will still be valid in most circumstances.
The Ombudsman was required to keep under scrutiny whether police officers are still complying with the requirement to provide their name and place of duty, for the first 12 months after the introduction of these changes. We are currently preparing our report, which will be provided to the Attorney General, the Minister for Justice and Police and the Commissioner of Police.
Investigation into allegations concerning officers of the NSW Police Force, NSW Crime Commission and Police Integrity Commission
The Ombudsman has received and has been referred a significant number of complaints about the conduct of officers of the NSW Police Force, the NSW Crime Commission and the Police Integrity Commission in relation to a number of investigations, including Operations Mascot, Florida and associated matters. These complaints make allegations about a wide range of serious misconduct that has occurred over a significant period of time.
The Ombudsman has decided that it is in the public interest to directly and independently investigate these allegations. The investigation is to be identified as ‘Operation Prospect’.
Click here to access a fact sheet about Operation Prospect, or contact us at firstname.lastname@example.org or by telephone 02 9286 1015.
- The consorting law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900
- Ombudsman submission to the Tink Review of Police Oversight in NSW
- Review of police use of firearms prohibition order search powers - August 2106