September 1998 Volume 79  Number 9 "serving the protectors"
Defeating the Unfairness of the Police Bill -- How the Democrats Helped

By Ian Gilfillan, MLC Democrats spokesperson on Police.

I have long had an interest in issues involving the police. For many years as an Australian Democrats member of State Parliament, I have been well-known in South Australia for supporting civil liberty causes, the need for an anti-corruption commission, and greater transparency in the methods of handling police complaints. In these campaigns, I have had occasion, over the years, to sometimes cross swords with Police Association representatives, including the current president, Peter Alexander. However, what I’ve sought on every one of these issues is a “fair go” for all concerned. Naturally, I want to see a “fair go” for police as well. Little did I know, in May 1998, that I was about to go in to bat, against the Government, to get a “fair go” for SA police.

My first inkling that the Government wanted to change the Police Act came in a phone call from Peter Alexander, who had been given a copy of the draft Police Bill 1998 (six weeks or so before I’d received it) and had serious concerns about some parts of the Bill.

Later, I was able to study the Bill and I realised that we had a great deal of common ground on many of the proposed changes.

The Australian Democrats in South Australia hold the “balance of power” in State Parliament. From time to time we cop criticism of the fact that a minor party can wield power which some see as disproportionate to our electoral support. This criticism fails to acknowledge the fact that the Democrats are in a position to wield this power only when the Liberal and Labor parties cannot agree with each other. When the two major parties do agree, the Democrats’ three votes in State Parliament are totally overwhelmed.

This is what happened when the Liberals and Labor together, in 1995, supported the contracting provisions of the Public Sector Management Act. Among other things, this Act enables Government departments to put most new employees on short-term contracts, and impose performance standards. The Police Bill, which the Government put up, would have empowered the Commissioner to do the same thing for nearly all ranks in SAPOL.

The Democrats opposed these sorts of moves for the State Public Service in 1995. We believe that the widespread use of contracts in the public sector is undermining morale, and jeopardising family life by increasing job insecurity. What’s more, I believe it tends to produce a new breed of public servant who, regrettably, must spend a proportion of their time justifying their existence to get their contract renewed, rather than delivering service to the public. The Labor Party, for reasons of its own, supported contracting in the wider Public Service, but changed its tune in 1998 to oppose it in the Police Bill 1998.

The Democrats play an important role as “honest brokers” in the political process. We are not spoilers. We are not the official opposition. We always seek to be constructive, recognising that the Government of the day has a mandate to govern, but that we also have a duty to knock off the “hard edges” from ill-conceived Government legislation, and put up more acceptable alternatives.

We took that attitude into negotiations and consultations over the Police Bill. We recognised that the 1952 Act was in need of overhaul. A new culture of management, performance standards, and measuring efficiency should not be blindly resisted. But we also recognise that the police role is not like that of any other public sector agency. Many police tasks cannot or should not be measured by conventional “performance standards”. In reviewing the Police Bill, I recognised that three groups, or three types of interests had to be served.

Firstly, the interest of the Police Commissioner, the Government and taxpayers in efficient management of resources. Secondly, the interests of members in being dealt with fairly, with adequate safeguards and protection from arbitrary decisions on transfer, promotion, and disciplinary matters. And, thirdly, the interests of the public in (a) receiving a high standard of police service, and (b) having confidence that corrupt, sloppy or otherwise inadequate police practices are dealt with appropriately.

These three interests do not always clash with each other. A police service in which members are dealt with fairly is also more likely to deliver better service, due to higher morale and confidence. On the other hand, there must be some trade-off between the conflicting aims of efficient policing, and spending vast sums on bureaucratic appeal mechanisms, which may thwart managerial decisions on allocating resources.

Trying to balance these three interests, I began at the end of May the process of consultation. Over the course of the next two months, I spoke to the Commissioner, to a former Ministerial adviser on Police, to several police officers who contacted me, to Peter Alexander and Andrew Murray from the Police Association, and to my Democrat colleagues Mike Elliott and Sandra Kanck.

While my consultation and research process continued, the Government introduced the Bill into the House of Assembly. During debate, Minister Iain Evans acknowledged the widespread concerns about aspects of the Bill, but no amendments were made. Labor MPs merely voted against the Bill in total, and both Liberal and Labor admitted that it would have to be changed in the Upper House. The Police Association was also campaigning publicly with full-page newspaper advertisements. All this increased the pressure on me to find an appropriate solution on many contentious clauses of the Bill.

More than two dozen specific parts of the Bill caused me concern, and so I instructed parliamentary counsel to draw up amendments to make the Bill fairer. On July 20 and 21 I issued a news release and gave a speech in parliament, highlighting these concerns, and foreshadowing these amendments. I also started negotiations with the Labor Party to see whether they would support my proposed changes.

The major changes I sought were:

• A prohibition on contracts for existing police officers under the rank of Assistant Commissioner.
• Permitting police contracts only for “outside” individuals with special skills, not available in SAPOL, who would be eligible for a contract term of no more than five years.
• Preventing the terms of any contract over-riding provisions of the Police Act.
• Retaining the right for police transferred to appeal.
• Retaining the right for police to appeal on merit against promotional decisions.
• Ensuring parliamentary scrutiny of promotion and appointment qualification standards and appeal processes.
• While supporting the new concept of “minor misconduct” being handled internally, ensuring that the right of review was to an officer at arms length from the Commissioner.
• Removing penalties (three months jail or a $1250 fine) for those who resign without notice.

On these issues I knew I had the support of the Police Association. However, at the same time I made it clear that I would support the Government’s moves to:

• Lower the burden of proof to “on the balance of probabilities” for police accused of wrongdoing.
• Support the new concept of “unsatisfactory performance” being grounds for transfer, demotion, or dismissal. (However, I was backing a further independent layer of review or appeal for such an assessment.)
• Allow the Commissioner to deploy “community constables” (formerly police aides) at his discretion. I did not agree with the Association’s view that these people should be designated solely as aboriginal community constables.

Apart from the issue of contracts, the most controversial aspect of all this was the proposal to change the burden of proof for disciplinary matters (short of alleged criminal conduct) so that the Commissioner needed only to prove matters “on the balance of probabilities” rather than “beyond reasonable doubt”. This was part of both the Police Bill, and the accompanying Police (Complaints and Disciplinary Proceedings) (Miscellaneous) Amendment Bill.

In contrast to the Association’s position, I believe this is something that has been long overdue in the SA Police. All other police forces in Australia are operating under this burden of proof, as do other public servants such as teachers here in South Australia.

Therefore I supported this change. My position was reinforced, when I received a letter from a very senior former police officer, now retired. He appealed to me to support this change because, he said, of the difficulty (or impossibility) he had had in the past in proving allegations of dishonesty and serious regulatory breaches to the criminal standard of proof. I believe this change will allow the small number of wrongdoers to be more effectively dealt with and thereby increase public confidence in SAPOL.

In parliament on August 4, all my proposed amendments were carried with Labor party support. The Bill returned to the Lower House, where the Government rejected all of them, and so we proceeded to a deadlock conference. There, over two days (August 11 and 12) I held firm, and in the end, the Government accepted all of my major amendments. I gave ground on minor ones, such as my proposal that performance standards be published in the Government Gazette.

By the time you read this, the Bill will probably be in force, as the Police Act 1998. If you have an interest in the way the debate unfolded, you can read my contributions at www.democrats.org.au/sa/Parliamentary.htm

In retrospect, I believe the original Police Bill, which the Government rammed through the House of Assembly, was in the nature of a “wish list” from the Commissioner. He personally lobbied for it, by distributing an eight-page information sheet to all members. I’m sure he put it forward to promote efficiency and answerability to the commanding officer of a police force. However, the Bill as originally introduced gave to the Commissioner too much power with not enough independent review and appeal or disclosure of orders.

The Government has expressed disappointment in the outcome. However, I am optimistic that we now have a piece of legislation which will be very effective in offering South Australia the very best of policing.

As I said in Parliament on July 21, I started from the assumption that the vast majority of people who offer to serve in our police force are motivated to do the best they can in terms of thorough, proper, honest and efficient policing for the people of South Australia. I hope the changes which the Australian Democrats have wrought to the original ill-conceived Bill will extend to them the working framework that they deserve.