Imagine the outcry if employers were vested with responsibility for investigating deaths in their workplace. Or if AFL clubs were left to investigate whether their players should be suspended for on-field incidents. The risks of corruption and collusion would be real, the investigations would lack transparency and legitimacy. There would be a decline in accountability and, in many cases, justice would not be done.
Yet this is the situation that prevails in relation to the investigation of police-related deaths.
In 2012, there have been at least four such deaths already, with two car chase incidents in Victoria and the death in police custody of a young Aboriginal man in Alice Springs. In the latter case, there are allegations that the man was bashed by police. In all cases, the investigations of deaths which involved the police are being undertaken by police themselves.
The conflict is clear. The investigators charged with responsibility for the investigation of a serious public matter are members of the same organisation as those under scrutiny, with the potential for bias in favour of their fellow officers. Oversight or audit of this investigation by the ethical standards division of the police does not cure the lack of independence in this initial investigation.
It is imperative that all police-related deaths – and there are an average of 16 per year in Victoria alone – are investigated by a body that is fully independent of police. In Victoria, this could be achieved through the establishment of a new body or the vesting of primary responsibility for investigation of police-related deaths in an independent body such as the Office of Police Integrity or the proposed anti-corruption commission.
There is no question that the work of the members of the police force is often hard and dangerous, and the tasks we expect them to perform are often thankless. Police are criticised for their infrequent mistakes but rarely praised for their much more common good work. However, when a life is lost there is significant public interest in finding out exactly what happened and for this inquiry to be free from any perception of impropriety.
External investigation of police related deaths not only makes common sense, but is required by the law. International human rights law and the Victorian Charter of Human Rights require that deaths in custody or that implicate agents of the state (such as police) must be investigated by a body that is practically, hierarchically and institutionally independent of the police. There are other benefits to such an approach. As well as addressing the potential for bias, external investigation of police would increase public trust and confidence in police. This is likely to lead to an increase in public cooperation with police.
The independent model is already being used in parts of Canada, New Zealand and the United Kingdom.
In Queensland, in response to the flawed and compromised police investigation into the tragic death of Doomadgee on Palm Island, the Coroner, assisted by the Queensland Misconduct Commission, has been given primary responsibility for investigation of deaths in custody. To say that non-police investigators would not be equipped with sufficient skills to conduct investigations is belied by these examples of independent models operating successfully in other jurisdictions.
The problems associated with police investigating police are not just problems of appearance or perception, but in many cases are very real. For example, the recent coronial inquiry into the police shooting of 15-year-old Tyler Cassidy in Melbourne in 2008 revealed a number of deficiencies in the conduct of that investigation by police.
Many of the problems flowed from a tendency by the police investigators not to treat the police members involved in the death in the same manner as a suspect in any other investigations. This isn’t at all surprising given the likelihood for investigators to identify with fellow officers. Curing these deficiencies with an independent investigation model would not only satisfy the public interest in seeing justice done but also assist the police members to be absolved where appropriate by a system regarded as fair and legitimate — not as tarnished and tainted.
Calls for the independent investigation of police-related deaths are not new.
In 2011, after two police shootings within a week, the Human Rights Law Centre and the Federation of Community Legal Centres, together with other leading community legal services, wrote to the Victorian Government to urge the establishment of an independent body to investigate police related deaths.
The Baillieu Government released the details of its new anti-corruption commission in late 2011. Under the legislation, allegations of police misconduct – but not the investigation of police-related deaths – can be investigated by the commission. The legislation also establishes an additional body to oversee the operation of the anti-corruption commission. This new integrity apparatus may satisfy the Coalition’s election commitment but, as it currently stands, represents a missed opportunity to address a critical gap in Victoria’s accountability framework.
If the fight against corruption is worth establishing and resourcing two new independent agencies, then surely the sanctity of human life warrants similar protection.
Anna Brown is the Human Rights Law Centre’s Director of Strategic Litigation.
This opinion piece first appeared in New Matilda.