Reforming police accountability in the age of Treaty: The need for a new model

Abstract

There is a consensus among practitioners, academics and those with lived experience of the police complaints system that the current police accountability regime in Victoria is unsafe and ineffective. Despite a slew of inquiries attesting to the problem and its ongoing harms, particularly to marginalised communities, reform in this area has been hard-won and minimal. However, we argue that the Yoorrook Justice Commission and upcoming Treaty negotiations offer an unprecedented opportunity for change, specifically through the establishment of a new independent police complaints and oversight body. We examine the essential features required of such a body to provide meaningful accountability in Victoria’s colonial context.

Resistance to police violence and misconduct has a history as long as policing itself, extending back to the beginnings of the colony now known as Victoria. However, in recent years, the harms of policing and the limited avenues for redress and accountability have increasingly come under public scrutiny in a series of scandals, as well as multiple commissions and inquiries. Key among these has been the Yoorrook Justice Commission (‘Yoorrook’) – the formal truth-telling commission into historical and ongoing injustices experienced by First Peoples in Victoria (and the first of its kind in Australia). ¹ Setting out the harms and racism of police culture and practice, Yoorrook has already prompted Victoria Police to formally apologise to the Stolen Generations and commit to a range of reforms. ²

Real and lasting changes to policing depend on effective oversight and accountability. In this respect, Yoorrook’s vision is set out in Yoorrook for Justice, its report into Victoria’s child protection and criminal justice systems, ³ and echoes that called for by Aboriginal organisations and the community sector – namely the establishment of an entirely new, independent police oversight body. Given that Yoorrook has been explicitly set up as a precursor to Treaty negotiations, the process offers an unprecedented opportunity for meaningful reform in Victoria.

In this article, we consider Yoorrook’s call for reform as joining a chorus of voices that has exposed the harms of policing and the ineffectiveness of existing complaints channels and accountability mechanisms. We attend to the specifics of Yoorrook’s recommendation for a new oversight body, analysing the key features of such a body as they relate to the Victorian context, and considering its potential role in reparative justice with First Peoples. We also evaluate the prospects of political resistance to meaningful reform. As well as building on existing reports and literature, our discussion draws on observations and suggestions shared at a workshop convened with partner organisations in November 2023 at which we prompted practitioners, advocates and those with lived experience of police complaints systems to stipulate the key features of a new oversight body. ⁴

A long history of advocacy and unheeded calls for reform

The limitations of the existing police accountability system in Victoria have been well-documented. ⁵ Currently, responsibility for the handling of police complaints is shared between Victoria Police and the Independent Broad-based Anti-corruption Commission (IBAC). This structural partnership, which places the police at the heart of its own accountability, is problematic for a number of reasons.

First and foremost, this approach draws heavily from the ‘internal affairs model’, which has defined much of the history of police accountability. ⁶ This model has been defended from an efficiency perspective as taking advantage of existing investigative capabilities within the police. ⁷ Unsurprisingly, however, it has also been denounced as partial, lacking robustness, ⁸ and at times misused to persecute complainants. ⁹ At the very least, police investigating police creates an overwhelming appearance of a conflict of interest, particularly when such conflicts are poorly managed, with heightened significance for First Nations people. ¹⁰ As noted in Yoorrook for Justice, ‘conflict of interest is baked into Victoria’s police accountability system.’ ¹¹ This, in turn, is compounded by systemically low substantiation rates, ¹² which may well reflect an embedded ‘culture […] characterized by strong vertical and horizontal solidarity’. ¹³

Second, ‘civilian oversight models’ of police accountability, in which an external agency – in Victoria, IBAC – is empowered to monitor and review complaint investigations conducted by police, have consistently been criticised as ineffective. ¹⁴ Such models have been described as ‘tokenistic’, ¹⁵ holding out ‘a false promise’ of independence and compounding ‘complainants’ anger and disillusionment’. ¹⁶ Although the scope of external agencies’ powers of review and their resources vary considerably, ¹⁷ they remain operationally dependent on the police including for access to information, ¹⁸ enabling the very institution being complained of to exercise a measure of influence, control or even subversion. ¹⁹ Further undermining the independence of the process, in practice Victoria’s civil oversight model defaults to an internal affairs model, given the primacy of Victoria Police as the investigating body. In 2022–23, for instance, IBAC conducted preliminary inquiries or investigations into only nine out of 2162 complaints or notifications related to Victoria Police. ²⁰

Third, IBAC’s primary function is that of an anti-corruption body overseeing the entirety of the Victorian public sector. While grievances about police are the most common complaints referred to IBAC, ²¹ its legislative framework requires prioritisation of ‘serious or systemic corruption’. ²² Accordingly, and perhaps somewhat counter-intuitively, IBAC is ill-equipped to handle the more common types of complaints lodged against police, most of which do not involve allegations of corruption. ²³ While enhanced resourcing might mitigate some of these concerns, the ‘continued embedding of police oversight within a broad-based public sector anti-corruption body’ gives rise to a focus on preserving the integrity and secrecy of investigations. ²⁴ This, in turn, undermines transparency and community confidence, and fails to place the complainant at the centre of the process.

The limitations of the current framework have been consistently decried as impeding meaningful accountability, with the community and legal sectors making clear and pressing demands for an overhaul. For instance, in 2022 the Victorian Aboriginal Legal Service (‘VALS’) and the Police Accountability Project (‘PAP’) co-authored an open letter outlining ‘the urgent need to create [an] independent and effective Police Ombudsman’, calling for a new body to oversee police accountability. ²⁵ The letter was endorsed by 28 organisations, including community legal centres and advocacy groups working with and representing people who have experienced police harm.

Despite such calls, the history of government attitudes on the issue gives cause for scepticism as it reveals an ongoing resistance to meaningful reform. In 2018, the IBAC Committee reported on its inquiry into the external oversight of police corruption and misconduct in Victoria, acknowledging the need to balance the responsibilities of internal and external agencies in handling such complaints. ²⁶ The report called for numerous improvements, including to transparency, data collection and public information; however, it declined to recommend a new, independent agency. ²⁷ Instead, the report proposed to extend the scope of IBAC’s jurisdiction (and resources), and reinforce its investigative powers, including its powers to search and arrest. ²⁸ Under this proposal, serious misconduct would be investigated by a specialised Police Corruption and Misconduct Division within IBAC, ²⁹ while Victoria Police would continue to investigate a significant proportion, if not a majority, of complaints against police. ³⁰ Concerns were raised that the definition of ‘serious misconduct’, which would be required to trigger an IBAC investigation, was overly demanding and did not account for the intrusive nature and exercise of police powers and their broader relationship with human rights. Practices such as racial profiling, for instance, would likely fall short of the proposed threshold. ³¹

More recently, in 2021 the Victorian government initiated a systemic review of police oversight in response to recommendation 61 of the Royal Commission into the Management of Police Informants, which followed revelations surrounding the use of Lawyer X as a human source. ³² While the consultation process for that review closed in February 2022, at the time of writing (over two and a half years later) no report had yet been issued. Further, VALS criticised the limited scope of this review as ‘unlikely to lead to strong accountability mechanisms to address systemic racism within Victoria Police’. ³³

With public perceptions of the current framework impacted at times by specific events, such as the Lawyer X scandal, an Indigenous death in custody, or an instance of police misconduct, calls for reform often follow a cycle of public outrage, leading to an inquiry and ‘incomplete reform’. ³⁴ While this cycle has been heightened by the growing role of social media, public outrage may not contribute to meaningful accountability. ³⁵ This resistance to change is due in part to limitations with the accountability processes, such as non-disclosure of the outcome of investigations into misconduct. ³⁶ At the same time, community confidence in police and satisfaction with policing services have fallen sharply, which may be indicative of a broader police integrity crisis. ³⁷

This, then, is the social and regulatory context in which Yoorrook began its hearings into the criminal legal system, including police complaints, in late 2022.

Yoorrook for Justice: a turning point?

Yoorrook could be viewed as the latest in a slew of inquiries into the failures of existing police accountability mechanisms. Whether the government treats Yoorrook’s recommendations differently remains to be seen. Our contention is that this is a watershed moment. As mentioned earlier, Yoorrook is the first truth-telling commission in Australia to examine historic and ongoing injustices against First Nations people. It therefore represents a unique ‘catalyst for change’ and a potential vehicle for reckoning, particularly as a precursor to Treaty negotiations between the Victorian government and the First Peoples’ Assembly. ³⁸ Yoorrook has provided a platform for First Nations peoples’ lived experience of the criminal legal system and cultural survival, through significant community engagement and evidence gathering, including roundtables, public, organisational and expert submissions, and three rounds of public hearings. ³⁹ Yoorrook for Justice has articulated a vision of immediate urgent actions alongside fundamentally transformative change towards self-determination. ⁴⁰

The need for reform of Victoria’s police accountability framework is particularly acute for First Nations people, as evidenced by numerous reports revealing systemic harms and police serving as ‘agents of injustice’. ⁴¹ For instance, a 2022 IBAC audit of police complaints by Aboriginal people revealed significant shortcomings. Over half of related investigations had not collected or considered relevant evidence, and 84 per cent involved a conflict of interest, with almost half of these not appropriately managed. ⁴² Highlighting that ‘harms caused by police are a consequence of systemic racism’, Yoorrook for Justice asserted that ‘only independent oversight can deliver confidence and accountability.’ ⁴³ It named the mistrust generated by police investigating themselves, while confirming the ‘profound lack of confidence First Peoples have in existing police oversight measures, and the failure of past reforms to improve police attitudes and conduct towards Aboriginal people.’ ⁴⁴

Yoorrook therefore recommended the creation of an entirely new authority in Victoria; Recommendation 27 of Yoorrook for Justice highlighted the core qualities and powers required for such a body to achieve meaningful accountability:

The Victorian Government must establish and adequately resource a new independent police oversight authority, headed by a statutory officer who has not been a police officer, to:

a) investigate and determine all complaints about police (except for minor customer service matters)

b) investigate and report on all police contact deaths and serious incidents

c) conduct independent monitoring of and reporting on police custody and detention

d) on its own motion, monitor, audit, systemically review and report on the exercise of police powers and interactions with the public including customer service matters

e) undertake own motion, public interest investigations, and

f) publish reports in the public interest.

The new authority must:

g) have powers to arrest, search property and compel the production of information including from Victoria Police, and

h) include a dedicated division for complaints from First Peoples that is under First Peoples leadership. ⁴⁵

Reflecting the view that genuine independence from police is an overarching requirement for meaningful accountability, ⁴⁶ this recommendation demands a comprehensive shift towards a ‘civilian control model’. ⁴⁷ Under such a model, all complaints would be handled by a body that is structurally, operationally and financially separate from Victoria Police. Headed by a tenured statutory officer who has not previously served as a police officer, and predominantly staffed by civilians rather than current or former police members, such a body would serve as the central clearing house for all allegations of police misconduct. ⁴⁸

To serve as an operationally independent accountability mechanism, the new authority recommended by Yoorrook must be conferred with the powers (and resources) to investigate and determine all complaints against police. Much like the Office of the Police Ombudsman of Northern Ireland (PONI), often described as the ‘gold standard’ of police accountability, ⁴⁹ it must enjoy extensive powers of investigation and evidence gathering. For instance, its staff must be afforded the powers of a police constable, which include the power to search property and make arrests (eg, of police officers). ⁵⁰

Broader integrity management powers would also be critical, serving to proactively monitor police conduct and detect systemic issues. The exercise of particular police powers, such as the use of force or ‘stop and search’, require close scrutiny, as do police contacts with marginalised, vulnerable or over-policed groups. ⁵¹ The power to initiate ‘own motion’ investigations in the public interest would enable the oversight body to shed much needed light on what are otherwise often hidden practices. Similarly, the publication of reports and ‘high quality data’ on the nature of complaints, the demographic and geographic characteristics of complainants, including Indigeneity, the substantiation rates and implementation of outcomes, is likely to foster transparency and reveal broader trends. ⁵²

In addition to dealing with individual complaints and errant behaviour by individual officers, a new police oversight body must be explicitly mandated to drive cultural and structural change in Victoria Police and its relations with communities. In this respect, history has demonstrated the difficulty of addressing systemic racism in other Australian police services. ⁵³ Racial profiling by Victoria Police is a well-documented problem, ⁵⁴ and indicative of the systemic racism that remains entrenched within policing in this jurisdiction. As Tamar Hopkins has written, ‘Like all institutions wielding state power in Australia, the police force participates in the normalisation of whiteness and the criminalisation, distrust and devaluing of non-whiteness.’ ⁵⁵ First Nations people in particular are both significantly overrepresented in the criminal legal system and underserviced by police, such as in terms of protection from violence. ⁵⁶ As Yoorrook for Justice recently summarised, systemic failures in the criminal justice system, ‘alongside the legacy of colonialism, perpetuate mistrust in government, the justice system and institutions such as Victoria Police. The criminal justice system was and is an institution of colonisation.’ ⁵⁷

Addressing systemic harms and biases may also require any new authority to carefully balance distanced accountability and cooperation with Victoria Police. This dynamic can be seen, for instance, in the NSW Law Enforcement Conduct Commission (LECC) investigation uncovering systemic bias against First Nations youth in a particular NSW Police initiative intended to identify likely offenders. ⁵⁸ LECC commented that it was able to prompt various reforms, including the exclusion of children and an overall reduced reliance on the initiative, through a ‘collaborative approach’ and ‘strong relationships’ with NSW Police. ⁵⁹ That being so, a new oversight authority must remain genuinely independent from police and ensure that it does not succumb to institutional capture, which would enable police to subvert or control its processes and compromise the authority’s ability to generate meaningful and cultural change to address systemic racism in policing in Victoria.

What would a safe oversight body look like?

The current police complaints system in Victoria not only lacks independence, it is also unsafe for complainants and fails to follow a complainant-centred and human rights-based approach. ⁶⁰ Currently, lawyers are in the position of advising many would-be complainants not to lodge a formal complaint, as doing so could be unfruitful, retraumatising, and even attract retributive targeting by police. ⁶¹ A lack of safety for complainants undermines any possible effectiveness of existing police accountability mechanisms, fuels the ongoing distrust in police, and hides the true extent of police misconduct and policing harms from official data and reporting.

To be comprehensive and effective, a new police oversight body must be fully accessible. This requires a complainant-centred model, ⁶² with trauma-informed staff and processes, alongside a commitment to human rights, harm minimisation and cultural safety. These features are consistent with the five guiding principles for a rights-based approach identified by the European Commissioner on Human Rights: independence, adequacy, promptness, public scrutiny and victim involvement. ⁶³ This model also supports the potential for such a body to serve a reparative function as it would allow complainants to share their lived experience of police violence, including the fractured relations between police and First Nations communities.

All complaints must be taken seriously, and all complainants treated with respect and dignity, including being supported to engage fully and meaningfully in the complaints process. Geographical accessibility requires regional branches, as well as outreach in the form of both engagement and awareness-raising programs, targeting marginalised communities. For some complainants, a distrust of government buildings and officers necessitates other forms of flexibility, such as meeting off-site. Complainants must also have access to legal aid funded representation throughout the complaint process, and processes involving complainants – such as interview processes – must be trauma-informed. Complainant advocates should be available to assist with documenting complaints and accompanying complainants throughout the process. Spaces and interfaces to be navigated by complainants also need to be neurodiverse-friendly, disability accessible and follow principles of universal design. These considerations will ensure optimal accessibility for all potential complainants.

Transparency and communication are also crucial for a complainant-centred service. ⁶⁴ Clear and consistent information about the process for investigating and resolving complaints must be fully available, including an outline of potential outcomes. All information and materials provided need to be in fully accessible formats, including multiple languages, alongside access to interpreter services and assistance for speech- or hearing-impaired complainants. Timeliness of resolution is also essential for credibility. Conversely, time limits on complainants, for instance to provide requested information, should be flexible in cases of extenuating circumstances, and delays by a complainant should not be fatal to their complaint.

It is worth noting the particular importance – and particular challenges – of accessibility for potential complainants from First Nations communities or other racialised minorities. Given generations of colonial violence and social marginalisation, members of these communities are more likely to experience access barriers related to literacy, mobility, geographical remoteness, illness or disability, substance dependence, difficulties accessing phone/internet, caring responsibilities, and family and domestic violence. Intangible access barriers also include distrust of government services, anticipation of racist treatment, fear of reprisals by police, and fear of compromising immigration status. ⁶⁵ While some of these barriers are already known to IBAC, others may not be apparent, particularly given that so many individuals who experience police misconduct do not engage with the existing complaints system. Designing an accessible and complainant-centred oversight authority therefore requires consultation not only with complainants, but also with lawyers or advocates who have experience supporting potential complainants. ⁶⁶

Cultural safety is one aspect of complainant safety that merits particular attention. Despite First Nations people having disproportionate contact with Victoria Police, their complaint rates are consistently low, suggesting significant under-reporting of police misconduct. ⁶⁷ Even when they do make formal complaints, as noted above, IBAC recently found that First Nations complainants have ‘extremely low substantiation rates’, which ‘is a significant deterrent to Aboriginal people making complaints about police’. ⁶⁸

Originally coined by Māori nurses in the 1990s, in the context of health services and workplaces, cultural safety refers to creating environments where people feel safe, and where there is no threat or challenge to their identity. ⁶⁹ This requires a dedicated unit within a new complaints body so that First Nations (potential) complainants have access to First Nations staff to support them throughout the process if they so choose. Cultural safety in mainstream services is also necessary, requiring regular cultural safety and anti-racism training for all staff. As Dr Eddie Cubillo has observed in relation to culturally safe legal services, ‘cultural safety is about empathy, understanding, respect and ensuring that there are enough Indigenous employees in the appropriate and relevant positions.’ ⁷⁰ Providing appropriate and effective services to complainants requires staff to understand the historical, local and potentially familial context of relations between police, colonial violence and First Nations communities. It also means having culturally safe processes (including investigative and complaints handling) and physical spaces, as well as ongoing relationships with, including referrals and accountability to, key community groups, including Aboriginal Community Controlled Organisations.

Beyond service provision to potential complainants, the need for cultural safety extends to any police oversight authority as a workplace and its relations with individual members of Victoria Police. Any such authority must have policies and a strategy for the recruitment of First Nations and other cultural minority staff at all levels, ⁷¹ with recruitment outcomes monitored and strategies regularly reviewed. Recruitment strategies should include screening and vetting for racist attitudes. An oversight authority will also need strategies for cultural safety in its interaction with, and impact on, racialised minority members of Victoria Police. Studies in other jurisdictions indicate that police misconduct complaints disproportionately target Black and ethnic minority police officers, and that complaints processes and outcomes privilege white victimhood. ⁷²

As noted above regarding accessibility, ensuring a culturally safe police authority ultimately requires involving organisations representing First Nations communities, cultural minorities and other vulnerable, over-policed or under-protected communities in the authority’s design, operation and monitoring. As Yoorrook for Justice emphasised, ‘[c]ritically, such a body would need to be accountable to First Peoples in Victoria and include First Peoples-led authoritative oversight. This is not simply a matter of employing Aboriginal staff.’ ⁷³

What are the prospects for change?

The need for a new, independent and safe police oversight body in Victoria is clear. Given the history of lack of appetite for reform in this area, however, what are the prospects of such overhaul? Early signs from both Victoria Police and the Victorian government paint a mixed picture at best. In relevant hearings at Yoorrook itself, there were indications of a growing openness to meaningful reform to police accountability. Departing significantly from Victoria Police’s previous position, Chief Commissioner of Police Shane Patton acknowledged in his evidence that the current framework is inadequate, noting that he was ‘completely open to any framework of oversight or investigation that government wishes to bring in’. ⁷⁴ Specifically asked whether he believed police oversight would benefit from independent investigation, Patton conceded that he was ‘very much open to that’. ⁷⁵ As an example of what this might look like, Patton recognised the need for people other than sworn officers to be authorised to take complaints. ⁷⁶ And when directly asked whether he thought a police oversight system would be strengthened by independent investigation of police complaints, Patton responded: ‘I do now’. ⁷⁷ As observed in Yoorrook for Justice, this shift in attitude ‘suggests that the Victorian Government has an historic opportunity to introduce an independent police oversight system’. ⁷⁸

However, the Victorian government has not demonstrated the same openness to such overhaul. In her evidence to Yoorrook, Victorian Attorney-General Jaclyn Symes indicated that although the Victorian government was at that point considering reforms to the police accountability system, this was only ‘within the confines of what – the system that we have’. ⁷⁹ The same month that the government’s formal response to Yoorrook for Justice listed Recommendation 27 as ‘under consideration’, ⁸⁰ an IBAC newsletter announced a limited pilot involving ‘a dedicated team to assess and investigate single incident complaints about police misconduct from community members at a higher risk of police misconduct occurring.’ ⁸¹

A recent parliamentary exchange seems to confirm that only minimal reforms are currently being contemplated. On 28 May 2024, Legislative Council member Georgie Purcell asked Symes to report on the government’s plans for reform. ⁸² After a lengthy delay, Symes responded that the government is ‘taking the time to get it right’ and alluded to a continued reliance on IBAC rather than the creation of a new oversight body. Her response referred to ‘significant work’ said to have already occurred at IBAC ‘to realign its approach to police oversight’, as well as the government’s commitment to continuing ‘to work with IBAC to ensure they have the tools they need to do their job’. ⁸³ Despite Purcell’s question specifically referring to Yoorrook’s recommendation for a new police oversight body, Symes’ response made no mention of it. This does not bode well for the prospects of meaningful reform.

As mentioned above, what distinguishes Yoorrook from earlier commissions and inquiries is that it lays the foundations for an agenda for Treaty negotiations, which commenced in November 2024. ⁸⁴ It is worth noting that these negotiations, like the larger vision of Yoorrook for Justice, will likely focus on the broader goal of realising self-determination for First Peoples in Victoria. The horizon of self-determination in relation to justice is much broader than ‘fixing’ current colonial laws or institutions: it extends to transformation of the existing system, as well as progressive transfer of authority, resources and responsibility for justice to an Aboriginal justice system. ⁸⁵ Nonetheless, police accountability has been identified by both Yoorrook and the Aboriginal Justice Caucus in Victoria as an area in urgent need of reform, given the ongoing significant impacts of policing harms on Aboriginal communities. ⁸⁶

It is in this context that Treaty offers a unique opportunity for much needed change and reform of the police accountability system in Victoria. It might also clear a path for other Australian states and territories to follow as they embark on their own reforms and treaty negotiations. But signs of government reticence indicate the very real and formidable political challenges that are likely to endure during these negotiations in Victoria.

Conclusion

Victoria is currently poised for meaningful reform of police accountability. In this article, we have considered how Yoorrook, building on a wealth of advocacy and research, has highlighted the need for immediate, meaningful and enduring reform to the police accountability system, through the introduction of a new independent police oversight authority. We have analysed this recommendation within the context of historical and ongoing advocacy for reform, and offered suggestions for further key features that such a body would require in order to address systemic racism and other harms of policing. The changes which we argue are required, are both comprehensive and unprecedented. While Victoria is at this juncture with respect to police accountability reform, the Victorian government and the First Peoples’ Assembly may be bringing very different visions to the Treaty negotiations table, and it remains to be seen whether the traditional political resistance to material reform can be overcome.