Victoria Police Bill 2013

It is with pleasure that I rise to lead the debate on the Victoria Police Bill 2013 on behalf of the Australian Labor Party in Victoria. I would like to state at the outset that the opposition does not oppose this bill. I thank the minister’s office for arranging the departmental briefing, and I thank the department staff for the follow-up information they have provided to assist in the preparation for this debate.

I will go through the main elements of the bill and raise some issues that not surprisingly I hope the government will address during the passage of the bill through this house or when it is being debated in the Legislative Council.

As members would be aware, the bill in effect repeals and re-enacts the Police Regulation Act 1958 with some modernisation. It establishes, if you like, Victoria Police as an organisation consisting of the chief commissioner, deputy and assistant commissioners, police officers, protective services officers (PSOs), recruits, reservists and other Victoria Police employees, who are members of the Community and Public Sector Union.

The critical elements of this bill relate to the relationship between the minister and the Chief Commissioner of Police. The bill sets out the roles and functions of Victoria Police in serving the Victorian community and upholding the law so as to promote a safe, secure and orderly society.

As we know, the operational independence of the chief commissioner is one of the absolute cornerstones of a functioning and healthy democracy that protects its citizens. It is a key pillar of a justice system that protects the rights of all.

We note, as we have many times in this house, that this operational independence, a key pillar of our justice system, is under enormous strain due to the government’s approach to justice in this state. We have a strained system; it is a system in crisis. As we debate the Victoria Police Bill 2013, it is done so firmly in the context of a strained justice system, one which is at breaking point.

I will go to those points as I move through my contribution because it is critical when we are considering the very important roles and responsibilities of the Chief Commissioner of Police that those issues which have been raised time and again by police officers themselves are taken on board by the government and addressed not just as this bill progresses through the house — if indeed it does — but more broadly.

As members of the house would be aware, currently the relationship between Victoria Police and the government is guided by convention and not provided for in legislation. The bill proposes to clarify the roles and powers of the minister and of the chief commissioner. For example, clause 10 gives power to the minister to direct the chief commissioner in relation to policy and priorities, but it excludes directions about enforcement and investigations relating to specific persons, discipline of members, organisational structure, deployment, locations and training.

As we know, these are key elements of operational independence so the chief commissioner and those he commands are able to do their work without political interference or overlay. The bill also provides that the minister may give a direction to the chief commissioner if it is a response to a recommendation by the Independent Broad-based Anti-corruption Commission, the Auditor-General, the public sector standards commissioner, the coroner or a parliamentary committee. Those are the terms in which that can take place.

Clause 11 gives the minister the power to obtain information and reports from Victoria Police in relation to the performance or functions of the organisation. Clause 16 sets out that the chief commissioner, subject to the very limited direction of the minister, is responsible for the management and control of Victoria Police and for implementing the policies and priorities of the government. That is a very welcome inclusion in this piece of legislation.

To understand why this bill is before the house we have to understand the context and the manner in which the Baillieu and Napthine governments have conducted themselves with respect to such important matters as the operational independence of the Chief Commissioner of Police.

I note in this regard that the bill aims to protect Victoria Police’s independence in upholding the rule of law, free from political interference. These are sage words of advice to a government which to date has at the very least shown disregard for the independence of Victoria Police.

I go back to the context in which this bill came into being. The second-reading speech quite aptly notes that it has been a very long journey to get to this point. Proposals were put forward in 2004 and 2008. It is also worth noting at this juncture that the 2008 reforms proposed by the former Labor government were comprehensively opposed at the time by the then opposition and now government, yet we see in this bill many of the same elements that attracted such strident opposition from their now proponents.

A very similar situation exists with the changes proposed in the Police Regulation Amendment Act 2012 that Parliament debated and passed about this time last year. Again these proposals were put forward by Labor when in government and were stridently opposed by the then opposition. Lo and behold, now that it is in government it is advocating for them now.

The real issue and context around the key provisions in this bill, particularly regarding the operational independence of the chief commissioner, can in no small part be tied back to the early days of the Baillieu government. After recent weeks and months it is hard to recall at this juncture the particular debacle I am talking about which besieged the government, but I ask that members cast their minds back — and I understand it is hard to do, given the last three years — to the extraordinary crisis that the operational independence of Victoria Police and indeed the justice system in this state was plunged into by the conduct of the Baillieu government.

We would recall that on 23 May 2011 the State Services Authority (SSA) conducted a special inquiry into the structure, operations and administration of the senior command of Victoria Police. Members will recall that Jack Rush, QC, then commissioner of the SSA and now a recently minted Supreme Court justice, was appointed — quite rightly — to lead the inquiry. The report made about 25 recommendations, including the introduction of a new police act to spell out the critical aspects of Victoria Police’s role, objectives and relationship with the government. The report was handed to the government in November 2011 yet was not tabled until several months later, in March 2012.

It is unclear why the government sat on the report for so long, but we do know that the government established the Rush review not primarily to fix up police command but to fix up the then Chief Commissioner of Police, Simon Overland. Quite frankly that period of time was greatly destabilising for Victoria Police and the Victorian community.

It was a time when confidence in the key tenet of our justice system to protect and keep safe the community was shaken to its core by the conduct of this government.

Ms Ryall — On the bill.

Ms GARRETT — I am very much on the bill. I understand why members of the government do not wish to trawl over the many debacles that have beset their performance since taking office, but it is because of that debacle that this bill in no small part was born. Therefore it is absolutely worthy of our analysis to ensure that these matters do not again take place in this state and that the government is not in a position to create the kind of destabilising, disastrous situation in its relationship with and undermining of the chief commissioner as it did before.

The Rush inquiry took place over some months, during which time some very damning statements were made by the now Chief Commissioner of Police, the very well-respected Ken Lay. He said:

… it was almost impossible to be concentrating fully on what was important, and that was keeping the community safe.

These salient words should strike a great deal of shame in the hearts of the Baillieu-Napthine-Ryan government which, so early in its term, presided over a situation that caused such a depth of concern within Victoria Police.

We now have a situation where crime has skyrocketed in Victoria for three consecutive years — and I will come to that in a moment — which is very pertinent to matters relating to Victoria Police. This is coupled with savage budget cuts that have had a significant impact on community safety and on how justice is conducted in this state.

At the time the Chief Commissioner of Police, Ken Lay, said:

… my recollection was that it was an enormously difficult time.

He also said:

As a member of police command I felt under siege. I thought Simon was under siege.

He further said:

It was as hard a time as I can ever remember for a chief commissioner.

Out of that report recommendations were made, some of which have found their way into this bill. We are thankful that they have because the manner in which this government systematically went around undermining the role of the chief commissioner and having that political overlay in its day-to-day operational independence caused lasting and significant damage to the community’s sense of faith in our justice system and the manner in which it goes about its work.

It is important that the bill sets out the roles and responsibilities of the chief commissioner and of the chief commissioner in his or her relationship to the minister and to the government of the day.

We note, however, that there is no provision in the bill that covers instances of conflict between the minister and the chief commissioner, except that the minister is obliged to consult with the chief commissioner before issuing a directive and that directives are published in the Government Gazette.

I think it is important given the history, particularly of this government and its role and relationship with Victoria Police and the manner in which it smashed down centuries of convention regarding operational independence that have existed in the Westminster system in countries around the world and the damage that caused, that some serious thought be given and some contributions made by those opposite as to how conflicts between the minister and the chief commissioner may be dealt with.

We on this side of the house believe that the government has a responsibility to outline its vision around those ideas, again given the extraordinary and quite frankly unprecedented political interference in the role of the chief commissioner. We note that those matters remain in the large unresolved, and the government will still have to be called to account for its conduct and the manner in which it approached that very issue. In that regard the Labor opposition notes that these provisions are particularly important and notes that the manner in which they have been born in this state was one quite frankly of great shame brought about by this conservative government.

The Victoria Police Bill 2013 also deals with the issue of appointments, including the appointment of the chief commissioner. It indicates that the role of chief commissioner encompasses the function of both the chief constable and the CEO of Victoria Police.

We note in particular that clause 27 of the bill provides that the chief commissioner may appoint a person who meets a prescribed criterion as a police officer and has the power to waive any of the criteria in exceptional circumstances. This is a wide-ranging provision which clearly gives the chief commissioner a significant amount of power and in effect sidesteps the Police Registration and Services Board that we on this side of the house note was established only last year.

That board is supposed to provide advice to the Chief Commissioner of Police about the training and qualifications necessary for members. We know that this board has been advocated for strongly by the employee representative body for police, the Police Association Victoria, for many years regarding the very important issues of training and qualifications necessary for members of Victoria Police, so we express some concern that this provision may circumvent that board that has only so recently been established by the government.

Accordingly we on this side of the house think it is absolutely incumbent on the government to provide more details about what is envisaged by or a clear definition for what would constitute exceptional circumstances for which the chief commissioner is given the power to waive any of the criteria.

The devil is always in the detail in these issues. Certainly that is the case in legislative frameworks. This is an issue that is of dear concern to police officers and the Police Association, and it would be most unfortunate if the government, having spent so much time in setting up this board — too much time, some might say — was using this bill to undo the work that a lot of people were significantly invested in. We again call on the government to provide that detail about the exceptional circumstances to give police officers, PSOs and the association some certainty around what is an absolutely critical function of that newly established board.

The bill also deals with the issue of drug testing. The Labor opposition notes that in 2008 the then Labor government introduced drug and alcohol testing. Part 5 of the bill before the house proposes a broader drug and alcohol testing scheme for police officers and PSOs, and it provides for the introduction of testing of public servants who work at Victoria Police — of which there are fewer since this government started slashing the budget. The changes the bill proposes include hair testing, the testing of officers while off duty, target testing of entire divisions or areas of the force and testing of unsworn Victoria Police members. Under the provisions of the bill the chief commissioner can direct a person to undergo testing following a critical incident — that is, the death of a person.

The bill expands the definition to include an incident involving the discharge of a firearm, which we know is an inherent possibility in the line of work of the fine men and women of Victoria Police.

Under the bill Victoria Police will be required to develop policies regarding the legislative changes to drug and alcohol testing and report annually on the use of these powers. The Labor opposition, and indeed the association I am sure, will be very keen to observe the development and implementation of those policies.

We note that there has been significant concern expressed by the representatives of non-sworn members of Victoria Police, the CPSU, regarding the inclusion of Victorian public service (VPS) staff in this expanded drug testing regime. The union has noted that they are the only employees across the VPS who are subjected to this level of scrutiny, and it is deeply concerned about the lack of consultation on the part of the government regarding their inclusion in this expanded approach to testing. We on this side of the house urge the government to consult more closely and discuss these concerns and issues and address them as the bill progresses through the house.

Another key component of the provisions of this bill relates to police torts. The bill proposes a new scheme for tort actions against police. If a police officer or PSO commits a police tort, which as we know is a wrongdoing or negligent act in the course of their employment, the state may be vicariously liable for damages. We know that has been a longstanding situation. Currently section 123 of the Police Regulation Act 1958 provides:

A member of the force or a police recruit is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the force or police recruit.

This is the principle that guides any subsequent common-law actions regarding the conduct of an officer or a recruit.

The bill replaces the current situation with a more detailed scheme, under which the state will not be liable for a police tort if it can establish that the conduct giving rise to the police tort was serious and wilful misconduct. That is clause 74 of the bill. We note, however, that there is no definition of ‘serious and wilful’, and I will come to that shortly. The state then has to determine whether to accept or deny liability within 60 days of receiving a claim. An individual police officer or PSO would only be joined as a party to the proceedings if the state sought to deny liability for their conduct. That would then result in the officer or the PSO being personally liable if the state’s defence of serious and wilful misconduct succeeded. In such cases the state could not seek costs against the plaintiff. We note that the bill does not define ‘serious and wilful’ and we say that this is a serious issue that needs to be addressed. That information should be provided as a matter of urgency.

Again, the devil is in the detail.

There are a lot of police officers, recruits and protective services officers who would anxiously be wanting to know how expansive that definition may be; when they may get caught by these provisions; and when they may be left on their own, so to speak, with the state refusing to accept liability for their conduct. We know that the work of police officers is inherently dangerous and difficult, that it can lead to difficult situations and that as they go about discharging their duties they rely upon the fact that they will be supported in their actions and not subjected to criticism by the broader public. The government’s response on this issue will be watched very closely by police officers and by the Labor opposition. We look forward to receiving clarification of what is a very important provision.

We also note that this new tort scheme is similar to a bill introduced by the former government in 2008, and we note that that bill was opposed by the then opposition — now government — in the upper house.

The bill also does several other things. It remakes the provisions relating to recent amendments, including changes to the Police Registration and Services Board, the complaints and protected disclosures process and the uniform and appearance policy. The only provisions from the Police Regulation Act 1958 that are not repealed are those relating to an old pension scheme, which does not apply to current serving members. There are only around 80 beneficiaries of the scheme, which will be retained and renamed Police Regulation (Pensions) Act 1958. We believe that is an appropriate approach, given the small and defined number of people who are affected by those issues.

This is an important bill. It has arisen from a range of factors, not the least of which is a need to modernise the legislation. It has also arisen from the real incompetence — and perhaps nefarious activities — of the current government in its approach to Victoria Police. It is important when we consider this bill relating to Victoria Police in the current context that we recognise that today marks the third consecutive year of rising crime under the Napthine-Baillieu governments. Crime statistics were released today that show that Victorians have endured 18 000 more offences this year than during the previous 12 months. This is a rise of 4.6 per cent, with drug offences having risen by 10.8 per cent and assaults having risen by 5.9 per cent.

This is completely at odds with the Napthine government’s commitment to reduce crime, which has been an abject failure for a range of reasons, and it reflects the broader and deeper failings that the Victorian community is witnessing under the Napthine government.

Ms Ryall interjected.

Ms GARRETT — Those opposite should accept — rather than shouting needlessly across the chamber — that the $100 million worth of savage budget cuts to Victoria Police and the scrapping of 400 staff are undermining Victoria Police’s ability to tackle and reduce crime. Figures have risen across the state every year since this mob took control — or did not take control as the case may be if conduct in the Parliament is anything to go by. If you cannot govern the Parliament, it is very difficult for Victorians to believe you can govern the state.

That is very clear, and there has been yet more bad news for this government today. The worst thing about the news today is not its impact on those opposite but its impact on the Victorian community: three years in a row it has witnessed rising crime rates. Prisoners are not showing up to court, because there is not enough room to hold them. Police officers are being forced to deal with prisoners in holding cells, when that should be the job of corrections staff. Police are being taken off the front line in their hundreds.

Honourable members interjecting.

Ms GARRETT — I imagine members on the other side of the house are getting agitated now because the truth hurts. They have big law and order policies, yet crime is up for the third year in a row and government departments are being held in contempt because prisoners are not showing up to court.

We should look at the regions when we talk about this Victoria Police Bill. What is happening to crime in the regions? People in Bendigo will be horrified to hear that crime is up by 21.5 per cent. Geelong — that beautiful city, which elected its new mayor this very week — has seen a rise in crime of 8.9 per cent; that is a very difficult gift for the new mayor to have to accept. Drug offences in Ballarat are up by 50.6 per cent. Victorians have every right to be very angry about the manner in which this government has gone about its approach to law and order, to Victoria Police and to the justice system. The cuts are really hurting the community. Cuts that have been made to Victoria Legal Aid are making our court system clogged and unworkable; time lines are blowing out. As I said, prisoners are not arriving for court appearances, and departments are therefore being held in contempt. What a debacle — like this government, quite frankly. What an absolute debacle.

While this government, as it introduces this bill on Victoria Police, trots out lines about law and order and asserts that there are more cops to deal with crime, we can show that during our time in government we reduced crime consistently. We put police officers on the street, as opposed to cutting the backroom staff so that police are required to do more administrative tasks. We certainly did not have hundreds of police tied up manning holding cells, not able to do the work that Victorians want them to do.

This government’s key election commitment to get tough on crime has failed. Quite frankly the rot set in with the approach of the government and the former Minister for Corrections to command. That approach caused a debacle and eroded the confidence of the people of this state in our vital institutions. This has led us to debating a bill — albeit a welcome one — that attempts to protect Victoria Police’s independence in upholding the rule of law free from political interference.

That is what the Napthine-Ryan-Baillieu team failed to do at its very heart, and Victorians are still paying the price. The justice system is in tatters, and those opposite, who know the justice system very well, know just how much Victorians have lost confidence in it.

While we do not oppose the bill — there are provisions in it that are most welcome given the conduct of this government — it comes into the house during a period of shame in law and order and in the justice system for Victorians. As it has mismanaged this house the government has also mismanaged the justice system, and Victorians are paying for it. We call on the government to address the matters I have raised and take the concerns of Victorians seriously.