Complaints about police

Contributed by MonicaHurley and JessicaTrappel and BrittanyMyers and current to 25 June 2018

In the NT there is a system available to members of the public who wish to complain about the NT or Federal Police. This section outlines these complaint mechanisms, including rights of appeal, and deals with the option of taking police to court.

Duties of police

NT Police can exercise a range of powers when carrying out their duties. However, they are as obliged to obey the law as any other member of the community, and have additional laws which they are bound by.

The Police Administration Act 1979 (NT) ("the PAA"), the Australian Federal Police Act 1979 (Cth), and the common law set out the powers and duties of police officers. These include an obligation to:

• be courteous to the public
• give prompt attention to all matters within the scope of their duties
• comply with and give effect to Commonwealth and Territory laws and the general orders of the Commissioner of Police (see sections 14A and 25 of the PAA).

Where a police officer exceeds their power, a person can make a complaint, and/or they can take action in court. A complaint can also be made where police fail to take action or fail to carry out their duties, either at all or in a professional manner.

The Northern Territory Government is liable for a police officer acting under the PAA and, therefore, must pay any damages awarded by a court (see section 148F), except for any punitive damages (damages awarded as punishment), which are payable by the individual police officer. If a police officer is found to have acted outside their authority as a police officer, they may be personally liable to pay any damages awarded.

Complaints about Northern Territory police

Complaints about the NT Police Force can be made to:

• the Commissioner of Police
• the NT Ombudsman
• a police officer at any police station in the NT.

However, a police officer must not accept a complaint if it relates to their conduct and must inform the person to complain to the Ombudsman or another police officer (section 24(2) of the Ombudsman Act 2009 (NT)).

A complaint should preferably be made in writing, setting out the particulars of the incident and the contact details of any witnesses. However, complaints can be made to the Ombudsman both in written form and orally (sections 24(4) to 25 of the Ombudsman Act 2009 (NT)). A compliant to the Ombudsman should be made within 12 months of the incident the person wishes to complain about, the Ombudsman may refuse to investigate complaints made after that date (section 25 of the Ombudsman Act 2009 (NT)). If available, relevant documentation, such as medical reports and photographs, should be included. The Ombudsman may accept complaints outside this time-frame if the Ombudsman considers it is in the public interest, or there are special circumstances to do so. Care should be taken to ensure as much detail as possible is provided, particularly about conversations, physical descriptions, times and distances. Notes or photographs taken soon after the incident are often useful. If injuries are suffered as a result of contact with police, it is important that a complainant arrange to see a doctor as soon as possible so a record of the injuries, including photographs, can be made.

Ideally, a complaint should be made as soon as possible because any civil action against police has to be started within two months of an incident section 162 of the PAA). However, an Ombudsman complaint can be submitted after court action is commenced if necessary. Disciplinary actions need to be commenced within 6 months of an incident (section 162(6) of the PAA). Criminal actions also need to be commenced within a certain time.

A person who is uncertain about whether their complaint is justified, or who wants advice about how to make a complaint, should seek legal advice, contact the Northern Territory Ombudsman's office or the Professional Standards Command of the NT Police Force to discuss the matter in confidence. If the police have charged, or are likely to charge a complainant with an offence related to the incident they are complaining about, they should always get legal advice before providing details of the complaint to police.

Complaints to the NT Ombudsman

A complaint about police conduct can be made by a person aggrieved by the conduct of a police officer, a third party, or a person representing the aggrieved person or third party (section 21 of the Ombudsman Act 2009 (NT)). Importantly, a third party may only make a complaint only if the complaint raises a substantive issue, or the party has first-hand evidence about the subject matter of the complaint.

When a complaint is made to a police officer, the Ombudsman must be informed of that complaint (section 65 of the Ombudsman Act 2009 (NT)).

Once a complaint is made to the Ombudsman or to police, the Ombudsman, or their delegate, considers the complaint and determines whether to(section 66 of the Ombudsman Act 2009 (NT):

• decline to deal with the complaint,
• refer the complaint for conciliation,
• refer the complaint to be dealt with by police under the police complaints resolution process,
• refer the complaint for investigation by a Police Standards Command member where either the Commissioner, or the Ombudsman reports to the parties to the complaint, or
• investigate the complaint.

If necessary, to make the above determination, the Ombudsman will undertake preliminary inquiries, or requests the Professional Standard Command to do so.

A person making a complaint ("complainant") is notified by the Ombudsman's office about how their complaint is being handled (section 111 of the Ombudsman Act 2009 (NT). If a complainant is dissatisfied with the outcome of action taken on their complaint, they can ask the Ombudsman to review the matter (see Unsatisfied complainants).

Under section 67 of the Ombudsman Act 2009 (NT), the Ombudsman may refuse to deal with, or discontinue dealing with a complaint if:

• the complaint is trivial, frivolous, vexatious, or not made in good faith
• the complainant does not have a sufficient interest in the complaint
• disciplinary procedures have started against the police officer for their conduct
• the police officer has been charged with an offence for their conduct,
• dealing with the complaint is not in the public interest, or
• a complaints entity has investigated, or will investigate the complaint to the same level the Ombudsman would have.

If the Ombudsman decides to investigate a police complaint, they can employ wide-ranging powers to gather information (see section 89 of the Ombudsman Act 2009 (NT)). They can:

• summon witnesses to attend and give evidence on oath (section 53)
• compel individuals or organisations to produce documents and other relevant material (section 52)
• enter any premises occupied by the NT Police Force to inspect those premises and any documents held there (section 54).

The Ombudsman Act 2009 (NT) contains penalties for hindering or obstructing an investigation (see sections 123-129 of the Ombudsman Act 2009 (NT)).

Police complaint resolution process

In practice, the Ombudsman refers most minor level complaints about police conduct to be dealt with by police through either the police complaints resolution process, or investigation by the professional standards command.

The NT Police complaint resolution process (CRP) can be appropriate where a complaint is minor or its nature suggests that an informal review process would be more appropriate than a lengthy and resource-intensive investigation. The Police CRP is set out in the police complaints agreement.

The CRP begins when a senior police officer contacts the complainant to discuss the issues they have raised and find out what kind of outcome they seek. The officer then speaks to the police officer(s) concerned and discusses with them the issues raised by the complainant. Depending on the nature of the complaint, the CRP officer may review relevant police documentation; general orders and other material that may help resolve the complaint.

The CRP officer then contacts the complainant again, providing them with feedback and / or an explanation and indicating what action, if any, may be taken. Similar feedback is given to the police officers concerned.

If an apology is considered appropriate, it can, with their consent, be offered on behalf of the police officers involved. An apology can also be offered on behalf of the police force as a whole. The CRP officer may decide that an explanation of the officer's actions, the law or police practice and procedures is sufficient and no apology is required.

It may be considered appropriate to arrange a meeting between a complainant and a police officer to discuss the complaint, but this rarely occurs. If it is to occur, both parties must consent to meet.

To resolve a complaint, a CRP officer is expected to use whatever means that are reasonably at their disposal and within acceptable limits. The procedures and means available are flexible. Usually, common sense and the nature of the complaint will determine the way a complaint is handled.

Complaints dealt with under CRP are required to be resolved within 14 days.

Once the CRP is complete, the police must deal with the complaint according to the police complaints agreement.

Investigation by police

An investigation referred by the Ombudsman to the police is carried out by the police Professional Standards Command. The Ombudsman can direct how the investigation should be carried out. If the police disagree with this approach, the Ombudsman can decide to deal with the complaint in a different way (section 84 of the Ombudsman Act 2009 (NT)). For the purposes of the investigation, the Professional Standards Command can direct a police officer to provide documents or information, and to answer questions.

At any time during the investigation, the Ombudsman can decide to defer or discontinue the investigation until disciplinary or court proceedings are conducted into the incident ((section 107 of the Ombudsman Act 2009 (NT)).

The Ombudsman can determine either that the Commissioner reports the outcome to the parties, or that the Ombudsman reports to the parties. Under the former process, after an investigation is complete, the Commissioner informs the complainant and subject police officer about the outcome and also sends a report written to the Ombudsman (section 93 of the Ombudsman Act 2009 (NT)).

Case study

A woman was employed as a casual bar attendant at a football grand final in Darwin. She was approached by four police officers and was asked to accompany them to a nearby building. She was informed that she was suspected of passing money from the cash register to one of her friends who was drinking at the bar. Once inside the building, she was strip-searched.

The woman subsequently complained to the NT Ombudsman, maintaining that during the incident she was, among other things, unnecessarily frightened and intimidated, and was told very little about what she was alleged to have done.

The Ombudsman then referred the complaint to the Professional Standards Command for investigation.

While the various officers involved had different views regarding the validity of the woman's complaint, the Ombudsman concluded that the police should have gathered more evidence before approaching her, explained the situation more fully and given her the opportunity to decline to be strip-searched.

As a result, the Ombudsman supported a recommendation made by the police that a letter of apology be sent to the complainant. The Ombudsman also acknowledged that the situation could have been handled better, and that the procedures concerning strip-searching should have been explained more clearly. The Commissioner of Police responded to the Ombudsman's conclusions by writing again to the complainant.

Complaining while in police custody

A prisoner or person in custody who wishes to make a complaint to the Ombudsman must be permitted to make a written complaint, place it in a sealed envelope and have it sent promptly to the Ombudsman. Prison authorities are not allowed to open letters sent between prisoners and the Ombudsman (section 26 of the Ombudsman Act 2009 (NT)). Correspondence from the Ombudsman should be delivered back to the complainant as soon as practicable. Legislative provisions cannot restrict a person's communication with the Ombudsman for the purposes of them making a complaint.

The Ombudsman has the power to investigate an action by Correctional Services and routinely looks at matters raised by prisoners. The Ombudsman can investigate and make recommendations to the Commissioner, which are not binding.

Action that can be taken against police by the Ombudsman

Where the Ombudsman reviews the outcome of a Professional Standards Command investigation, or conducts their own investigation, the Ombudsman must make an assessment of the police officer's conduct. If the Ombudsman's findings are adverse to a particular individual or to the police, the Ombudsman must, before preparing a report, provide that person or, in the case of police, the Commissioner, with the opportunity to respond. The responses must be fairly and accurately included within the Ombudsman's report.

In their report, the Ombudsman can give recommendations to the Commissioner about what action, if any, should be taken. Under section 101(4) of the Ombudsman Act 2009 (NT), these can include:

• the police officer be charged with an offence
• the officer be disciplined
• police policy or procedure be amended,
• the matter should be conciliated.

It is important to note that the Commissioner is not obliged to act on recommendations made by the Ombudsman. However, if the Police Commissioner does not implement these recommendations, the Ombudsman can report to the Police Minister, and can prepare a report for tabling in Parliament.

After the CRP or an investigation by the Professional Standards Command, the Ombudsman can also decide to refer the complaint to the Commissioner for further investigation, or to deal with the complaint in a different way (section 108 of the Ombudsman Act 2009 (NT)).

Unsatisfied complainants

A complainant, either during or after the CRP or investigation by the Professional Standards Command, can request that the Ombudsman investigate their complaint. However, the Ombudsman must refuse this request if satisfied the issues raised in the complaint are being, or have been, adequately dealt with (section 109 of the Ombudsman Act 2009 (NT)).

The complainant can also request that the Ombudsman vary or revoke a decision, assessment or recommendation where there is significant new information obtained, or where information has not been properly taken into account (section 110 of the Ombudsman Act 2009 (NT)).

Following an investigation by the Ombudsman

The findings in an investigation conducted by the Ombudsman's office are sent to the Commissioner, the complainant, the Minister for Police and the police officer or officers involved. The Ombudsman may make recommendations to the Commissioner and can, if they believe the Commissioner has failed unreasonably to act on those recommendations, send a report or recommendations to the Minister for Police.

Charges against NT police officers

The Commissioner is responsible for the discipline of the NT Police Force. While it may be persuasive, a recommendation by the Ombudsman that a police officer be charged with a breach of discipline is not binding on the Commissioner. If the Commissioner is satisfied a breach of discipline occurred, disciplinary proceedings can be instituted and the officer will go before a disciplinary tribunal.

Disciplinary proceedings must be started within six months of the incident (section 162(6) of the PAA). The Ombudsman can apply for an extension of time to start disciplinary proceedings that arises out of an investigation or CRP, as long as the application is made before the six months is up and the extension sought is not more than 12 months (section 162(7B)).

A police officer is entitled to legal representation at any disciplinary hearing. A complainant, however, is not entitled to participate or have legal representation, but may be required to give evidence.

The Commissioner and the tribunal have the power to:

• impose fines
• reduce a police officer in seniority or rank
• reprimand, counsel or caution a police officer
• dismiss an officer.

A police officer who is charged with a criminal offence is dealt with by the courts in the normal manner (see Going to court).

Complaints about Australian Federal Police

The Australian Federal Police (AFP) is created by the Australian Federal Police Act 1979 (Cth) ("the AFP Act). Under that Act, there are detailed processes for dealing with complaints about the conduct of AFP members and AFP practices.

The members of the AFP operate according to the AFP Act, the common law and the AFP 'Professional Standards'. The AFP 'Professional Standards' are underpinned by the AFP Core Values and the AFP Code of Conduct.

Less serious complaints about conduct (referred to as Category 1 and Category 2) are handled by the AFP through supervisors or through the AFP Professional Standards ("PRS") unit. Category 1 and 2 complaints are matters which may warrant corrective action, but which do not involve serious misconduct or breaches of duty. They would include discourtesy, most traffic offences, failure to keep records, taking unwarranted action and the inappropriate use of force against property. If a person is not satisfied with the way the AFP has dealt with a Category 1 or Category 2 matter, they may complain to the Commonwealth Law Enforcement Ombudsman.

More serious (Category 3) complaints about conduct would include serious breaches of the AFP Code of Conduct, using excessive force on a person, fraud, forgery or any breach of Commonwealth criminal law. These matters may result in termination of employment or criminal proceedings. All complaints are subject to the oversight of the Commonwealth Law Enforcement Ombudsman.

Corruption issues are described as Category 4 and must be referred to the Australian Commissioner for Law Enforcement Integrity.

Any person, including a person in custody, can complain about AFP conduct to any AFP appointee or to the Commissioner. Any person can complain to the Commonwealth Law Enforcement Ombudsman; the Ombudsman can investigate but will usually refer the matter to the AFP. The AFP must notify the Ombudsman of Category 3 matters and may allocate a matter to the Ombudsman for investigation. While the Ombudsman can investigate, the Ombudsman also regularly reviews the way the AFP, especially its PRS unit, has dealt with conduct and practices issues.

AFP Internal Investigations

Usually, a complaint is investigated by an officer from AFP Internal Investigations or another officer specifically authorised by Internal Investigations. The investigator usually interviews the complainant and anyone else, including members of the AFP, who is able to provide information relevant to the complaint. During this process, the Commonwealth Law Enforcement Ombudsman can request progress reports and to see relevant documents. When complete, AFP Internal Investigations forwards a report of the investigation to the Commonwealth Law Enforcement Ombudsman for independent review.

Powers of the Commonwealth Law Enforcement Ombudsman

After receiving the AFP Internal Investigation report, the Commonwealth Law Enforcement Ombudsman can:

• accept the conclusions contained in the report
• make other recommendations to the AFP Commissioner
• require Internal Investigations to investigate further
• conduct an investigation and advise the AFP Commissioner of the outcome.

The Ombudsman can conduct a separate investigation after receiving an AFP Internal Investigation report or where the complaint is about practice or procedures. When conducting a separate investigation, the Ombudsman can:

• have access to any relevant document
• require any person considered capable of giving relevant information to do so verbally or in writing or by appearing and answering questions on oath
• enter any premises occupied by the AFP or any other Federal Government department or agency.

These powers can be limited in special circumstances, such as for reasons of national security.

After investigation, the Ombudsman can find the complaint partially or completely substantiated, unsubstantiated or incapable of being determined.

If the Ombudsman believes that the AFP should take remedial action, such as disciplinary action against one of its members or a change to procedures, a report is made to the Commissioner.

Charges against members of the AFP

Once a complaint about conduct has been investigated, the AFP Commissioner, in consultation with the Ombudsman, must decide whether any AFP member should be charged with a breach of discipline or a criminal offence. If the Ombudsman and AFP Commissioner disagree, the Attorney-General determines the action to be pursued.

A criminal charge against a member of the AFP is, like a charge against any citizen, tried in the courts.

A person who is the victim of a criminal offence perpetrated by a police officer is entitled to make an application for compensation under the Crimes (Victims Assistance) Act (see Injuries and damage caused by crime).

A disciplinary charge against an AFP member is heard by the Australian Federal Police Disciplinary Tribunal, an independent tribunal.

A complainant may be required to give evidence before a court or the tribunal.

Taking Police to Court

In some cases of police misconduct, such as those involving trespass to a person or property, assault, battery, wrongful arrest, false imprisonment or malicious prosecution, civil court action can be taken and might be more fruitful than criminal action. Criminal proceedings against police are especially difficult because the complaint must be investigated by police. The complaint, however, can be made to the Ombudsman in the first instance, and the Ombudsman can oversee the adequacy and competence of any investigation carried out by police. It is important to try to ensure the presence of independent witnesses at every step of the arrest and interrogation process (see Investigation and arrest, chapter 21).

Any civil court action against a police officer for an act done in accordance with the PAA must be commenced within two months (section 162 of the PAA). If the conduct of the police officer is outside the scope of, or not authorised, by the PAA, that is the police officer is not acting within the rules, a time limit of three years applies to civil actions (section 12 of the Limitation Act 1981 (NT)).

The Territory is not liable for the actions of a police offer who is acting outside the course or scope of their employment (Lackersteen v Jones (1988) NTSC 60; (1988) 92 FLR 6). If the conduct of the police officer amounts to a criminal act then a crimes victim's assistance claim against the police officer can be made (see Injuries and damage caused by crime).

Proving a case in a civil action can be difficult and costly. Any person contemplating an action should seek expert legal advice (see Legal aid).

False imprisonment

False imprisonment occurs if a person is unlawfully restrained against their will or when an unlawful threat of force or assertion of authority forces them to submit to the control of another (Symes v Mahon [1922] SAStRp 57; [1922] SASR 447; Grainer v Hill (1838) 4 Bind NC 212). A person who voluntarily goes to a police station can't claim false imprisonment because they weren't detained against their will (Alderson v Booth [1969] 2 QB 216). However, if they went because they feared the consequences if they did not go, their action was not voluntary and a court may consider them to have been falsely imprisoned (Chaytor v London Assn (1961) 30 DLR (2d) 527; Lippl v Haines (1989) 18 NSWLR 620). False imprisonment cannot be said to have occurred if the arresting police had a warrant or reasonable cause to make an arrest.

The defendant in a case of false imprisonment will either be the person who actually detained the plaintiff, or the person who directs the police to arrest the plaintiff when they would not otherwise have done so.

Malicious prosecution

Malicious prosecution occurs where a person, including a member of the police force, maliciously and without reasonable cause, begins criminal proceedings against another. Police are only liable if they make an independent decision to start proceedings (Maine v Townsend (1883) 4 LR).

Assault and Battery

Assault

An assault occurs where a person, including a police officer, directly and intentionally threatens another person and that threat causes the other person to fear imminent harm (Rixon v Star City [2001] NSWCA 265; (2001) 53 NSWLR 98). A threat can be made by words (written or verbal) (Barton v Armstrong [1969] 2 NSWR 451), conduct or both. The person who makes the threat does not need to intend to actually harm the victim. However, the person making the threat needs to intend to induce a fear of harm in the other person. The harm feared could be harm to the person, their family, close friend or property. The belief that a person will be harmed needs to be reasonable (Logdon v DPP [1976] Crim LR 121).

Battery

A battery occurs where a person, including a police officer, intentionally makes contact with another person without that person’s consent (Carter v Walker [2010] VSCA 340; (2010) 32 VR 1). The contact does not need to cause any harm or damage. Contact will only be a ‘battery’ if the contact is ‘beyond acceptable standards of contact’ (Rixon v Star City (2001) 52 NSWLR 98). The person making contact needed to have intended to do so, but they do not need an angry or hostile state of mind. ‘Contact’ can take many forms including striking, spitting, and forcibly taking blood.

Defences to Assault and/or Battery

A claim for assault or battery against a police officer will not be successful if a police officer can show their use of force was necessary in the circumstances. This has to be judged in a realistic manner, having considered the reality that police officers often have to make quick decisions in emergency situations (Woodley v Boyd [2001] NSWCA 35, 37; Walker v Hamm [2008] VSC 596.)