Complaints against the police

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The actions of police officers during protests and demonstrations can be subject to public scrutiny and criticism through complaint and investigation processes.

The power to investigate complaints about police members and disciplinary action to be taken against them is derived from the Police Regulation Act 1958 (Vic) and the Police Integrity Act 2008. These Acts create two avenues to start an investigation about the behaviour of a police member.

Who to complain to

Victoria Police Professional Standards Command

Although the Police Regulation Act 1958 (Vic) gives the Chief Commissioner of Victoria Police the ultimate responsibility for investigating police members and taking disciplinary action, on a day to day basis this is undertaken by the Victoria Police Professional Standards Command (PSC) via the Assistant Commissioner (PSC).

PSC is an area within Victoria Police, which investigates internal and external complaints made about police members. PSC has the power to compel members to make statements about their actions, to investigate the incident by taking witness statements and obtaining other evidence and ultimately, if the allegations are found proven, to recommend disciplinary charges or some other procedure be instituted against the police officer.

The Victoria Police force has an internal disciplinary hearing procedure. The hearing of a disciplinary charge is not open to the public. A complainant is also not represented at the hearing.

The penalties which may be imposed on a police officer who has a complaint against him/her proven depend on the seriousness of the unlawful incident/s giving rise to the charge. The penalty may be a fine, a demotion, a reprimand, an admonishment or dismissal.

In the experience of many activists and progressive lawyers who have made or overseen complaints to PSC, it is rare and infrequent for complaints to be substantiated by PSC and disciplinary charges pursued following a complaint made by the public. There have been many reasons suggested about why this is so, the most common being that police investigating police does not ensure independence or accountability in the investigation process.

Management Intervention Model – Victoria Police has also established a new system for handling service delivery and performance management of complaints made by the public. The management intervention model is managed by the Assistant Commissioner (PSC), and is intended for minor complaints, such as rude and unsatisfactory behaviour of members. It is not meant to replace the PSC system for investigating substantive allegations of corruption or police misbehaviour. Options for resolution can include meetings between the aggrieved complainant and police member as well as the issuing of admonishment notices to members for minor breaches of discipline.

Victoria Police – Professional Standards Command
637 Flinders St Melbourne VIC 3005
Tel: 1300 363 101 or (03) 9247 6666
email:  [email protected]
web: http://www.police.vic.gov.au

Independent Broad-Based Anti-Corruption Commission

A complaint to IBAC about Victorian public sector corrupt conduct or police personnel misconduct must be in writing, unless it is determined by IBAC that there are exceptional circumstances as to why it is unable to be provided in this form.Victorian public sector bodies include government departments and statutory authorities (including Victoria Police), local councils, schools and universities, public hospitals, Members of Parliament, judges and magistrates.

Human rights register

If you are mistreated by state or federal police and believe that your civil rights have been violated then you can submit a report to the Human Rights Register. This puts your report on the public record and allows for greater public scrutiny of the actions of police.

The Human Rights Register, facilitated by the Catholic Commission for Justice, Development & Peace, Melbourne, is an annual non-government organisation audit of human rights developments.

The Register records individual reports and accounts of developments and violations and analyses them in the light of the human rights conventions that Australia has ratified. It focuses on individual instances within Australia and contains reports from community legal centres, non-government organisations and the national media.

Koorie community

The Victorian Aboriginal Legal Service (VALS) offers special assistance to Koori people who want to make a complaint about the police.

Contact VALS to get information, support and free legal advice about your options.

Victorian Aboriginal Legal Service
 
273 High St,
 
Preston 3072 
 
PO Box 52
 
Free Call: 1800 064 865Tel: 9418 5999 Fax: 9418 5999
 
website: http://vals.org.au/

If you are in custody

Persons in custody or patients in mental institutions may write confidentially direct to the Victorian Ombudsman in sealed envelopes. Prison regulations say that these letters will not be read. Replies from the Ombudsman are in sealed envelopes that you must open personally.

Freedom of Information Act

While Victoria Police are subject to Freedom of Information (FOI) laws, which allow complainants to gain access to documents relating to any investigation into a complaint, the Independent Broad-Based Anti-corruption Commission (IBAC) is not.

You should consider when making a complaint whether you will want access to the documents obtained by the Ombudsman at a later date.

If you are injured

If you intend to make a complaint about police mistreatment, try to write down everything that happened to you as soon as possible. Include the names of the police officers involved, the time and date of the incident and what actually happened.

  • See a doctor immediately, and ensure that they provide you with a written medical report describing your injuries the Victorian Institute of Forensic Medicine has specifically trained doctors who can provide expert medical opinions, and free examinations by these specialist doctors will be arranged if you complain promptly.
  • Get someone to photograph any injuries.
  • Write down as much information as you can about the person or people who injured you including their name, rank and police station.
  • Write down the name of the last person to see you before you were injured and the first person to see you afterwards and get their contact details.
  • Contact the Legal Support Team or lawyer who will help you make a formal complaint. A community legal centre, Victoria Legal Aid or a progressive private lawyer can also help you to make and lodge a complaint.

Federal Police

For complaints about the Australian Federal Police (AFP) you can complain by letter, telephone, fax, in person or online to:

  • Any AFP office
  • The Commonwealth Ombudsman
  • AFP Internal Investigations Division

Again, it is a good idea to talk to your lawyer or local Community Legal Centre first before you make a complaint.

You have the right to complain about the conduct or actions of individual AFP members.

Your complaint may concern:

  • Action taken by an AFP officer that involves discourtesy, rudeness or abruptness to you
  • Action that arises out of a misunderstanding of the law, of the policy or procedures of the AFP
  • Serious ill-treatment by an AFP officer
  • Assault by an AFP officer

You should first make your complaint to the AFP, whether the complaint involves allegations of minor or serious misconduct. The complaint will either be dealt with by AFP’s Workplace Resolution Program through a conciliation process, or the AFP Internal Investigations Division. This process is monitored by the Ombudsman’s Office.

In every case, a report detailing the actions taken by Internal Investigations must be forwarded to the Ombudsman’s office for independent scrutiny. If the Ombudsman is not satisfied with the AFP’s investigation of your complaint, he or she can ask the AFP to reconsider its recommendations, require Internal Investigations to investigate further, or conduct his or her own investigation.

While you are entitled to complain to the Ombudsman at any time, he or she will usually only intervene in the matter if you have already raised the complaint with the AFP directly. If you are being detained, you have the right to be provided with facilities to make a complaint to the Ombudsman.

If you have a grievance, you should make the complaint as soon as possible, within one year of the incident.

Frequently Asked Questions (FAQs)

Why should I make a complaint?

You should make a complaint about police misconduct if you:

  • Are hurt, upset and distressed about what happened to you. If you have been hurt or injured, mistreated, abused or your rights violated as a consequence of unlawful actions of police officers you may have been the victim of a crime and have a right to justice, redress and potentially compensation
  • Believe police acted unlawfully or criminally or dangerously;
  • Believe it is important for public scrutiny and knowledge about the responses of police officers at protests and demonstrations. There have been many cases where police have stopped using a particular tactic after Ombudsman’s investigations, and cases where police have been charged and dismissed. Your complaint or reportmay prevent another activist copping the same treatment in the future;
  • Want to raise public awareness about the incident and ensure that the individual/s and Victoria Police are accountable for their actions. Every individual complaint, every civil action, every public record or report that we make means that police abuse and violence will not go unnoticed and helps in a small way to keep the police accountable. Whatever your analysis of the police and the state, making sure police abuses and police violence is written up on the public record helps other activists;
  • Have been injured, to ensure statistics about police misconduct allegations are accurate;
  • Wish to ensure that similar behaviour does not occur again. Every complaint, every civil proceeding, every action we can take as activists and civil rights lawyers and acts as a deterrence against further abuses of power, use of excessive force or acts which violate our civil, political or human rights;
  • Are unsure how you were injured and who injured you during an incident of police use of force or violence.

Who can I make a complaint to?

  • Any member of the police force at any police station
  • The Professional Standards Command of Victoria Police
  • Independent Broad-Based Anti-Corruption Commission (IBAC)

How do I make a complaint?

After you have contacted ESD, the IBAC or the police station by either writing to them, calling them or attending in person, you will be required to make a statement about your complaint. This may be in the form of a typed statement from you about the incident, or you may agree to be interviewed. Keep a copy of any statement you make. If you agree to an interview, make sure you arrange for the interview to be taped and that you obtain a copy of the tape for your records.

Please note: any statement you make, while obtained in confidence, may none-the-less become a public document through subpoena and other court procedures at a later date. Be clear that your statement is as accurate and detailed as possible. If you contradict yourself later, this may have an effect on your credibility and your criminal and civil legal rights.

If you are being signed out from the police station through the Attendance Register the police will ask if you have any complaints. If you do not feel comfortable making a complaint at this time you can still do it later.

Do not sign any statement or record of conversation if you are not 100% sure that it is an accurate account of what you said to the person investigating your complaint.

Ideally, you should make your complaint as soon as possible after the incident. This is when your recollection of the events is clearest. The timing of making a complaint is important. If you have been the victim of police misconduct and there is a prospect you may be charged with a criminal offence arising from the incident, you should seek legal advice before making any statements of complaint. This is because, despite the confidentiality of complaint processes, details of your statement may become known by police officers or others prosecuting you for any offence. In this situation, you should still make your complaint as soon as possible after the incident, but advise that you wish to defer making any statement in relation to the investigation of your complaint until the criminal charges against you have been dealt with.

Will I have to be medically examined?

If you have been injured, you may be required to submit to a medical examination. You do not have to agree to the examination. It is a matter for you to decide. If you agree to an examination, a doctor from the Victorian Institute of Forensic Medicine usually conducts it. You should make sure that photographs are taken of your injuries. You should arrange for copies of the photographs and a report of the doctor to be provided to you after the appointment.

You should also consider arranging to be medically examined by a private doctor for treatment and as a personal record of your injuries. You may request a medical report from your doctor and/or a copy of the clinical notes taken during the examination. Some doctors may only provide this information on request from a solicitor and with the payment of money for report preparation and copying expenses.

What should I do if I have evidence proving my complaint?

You should ensure that any witnesses to the incident of police misconduct make statements to the investigating officer as soon as practical.

If you believe there to be relevant photographs or video evidence, you should provide this information to the investigating officer.

If the incident occurs in a police station or some other location where there may be security cameras you should notify in writing the investigating officer immediately of the location of the cameras and request that video footage be obtained and not destroyed. This is often urgent as video footage can be taped over or destroyed if it is not secured quickly.

How long will the investigation take?

A small investigation into allegations from one complainant may take somewhere between 6-12 months or longer, depending on the evidence. An investigation with multiple complainants may take several years to be completed.

You should attempt to clarify the time frame in which the investigation will be completed and what steps will occur along the way.

You should expect to receive correspondence from time to time and finally a report detailing the allegations, the investigation and an outcome as to whether the complaint has been found proven or not. If it is found proven, details of the disciplinary charge and penalty should also be communicated to you.

Consider confirming all discussions with the investigating officer in writing. This may be helpful in understanding the development of the investigation and ensuring evidence you want obtained is followed through by the investigating officer.

However, you should note that where your complaint is being investigated at the same time as criminal charges against you, information you give or statements you make in relation to your complaint could impact on the charges against you (see below).

What effect can making a complaint have on any criminal charges I am facing?

Any statement you make, even if it is supposed to be confidential, may, if it is obtained by the prosecution, have an impact on the outcome of any criminal charges. You should seek legal advice from a criminal lawyer about whether you should make a complaint, and if so when and in what form.

Will making a statement affect my right to pursue compensation for injuries incurred as a consequence of police misconduct?

The investigation into a complaint about police misconduct may inform you about the identities of police officers who injured you or others or authorised the use of force at a protest. The investigating officer may also make findings which are critical of the behaviour of the police officer/s involved. This information may be useful in ensuring greater accountability for police violence at protests and to determine whether you have a right to sue for compensation for any significant injuries you sustain.

You should also be careful to ensure that any statements you make to investigating officers are as accurate as possible. You may be cross-examined about statements you made in the past if you have to give evidence about the incident in court.

Who can assist me in making a complaint?

You can get support from a Legal Support Team established to support activists at mass protests or you can contact a community legal centre or Victoria Legal Aid or progressive private lawyers for legal advice, especially if you have been charged with an offence.

Compensation for police misconduct

Why sue? Some injured activists have been pursuing their legal rights under civil law to ensure that the actions of police officers are held accountable. Suing the police if you are injured has benefits and limitations. On the one hand, litigation allows protesters to challenge the lawfulness of the use of force during demonstrations and protests by bringing a case before judges and juries for adjudication. It also allows injured protesters to obtain compensation for their injuries and medical expenses. Litigation often attracts media attention, and can help raise public awareness about a social issue. In some special cases, courts may award exemplary or punitive damages if the acts of the police officers are particularly dangerous and abusive of human rights. On the downside, suing the police can be long and arduous because of the public resources at the disposal of the Victoria Police and the State of Victoria. There are also technical legal arguments which can complicate who is ultimately responsible for the actions of police officers. In addition, the remedies available in a court are often limited – you can’t get an apology, or an enforceable commitment from the police not to behave in the same way again. For a detailed report on Civil Litigation against police see: Civil Litigation by Citizens Against Australian Police Between 1994 and 2002 by Dr Jude McCulloch and Mr Darren Palmer, Deakin University (19/01-02) at the Criminology Research Council http://www.aic.gov.au

Unlawful use of force

The use of force or violence by one person against another person is unlawful according to common law, without a reasonable excuse. Unlawful use of force or violence attracts criminal penalties, depending on the level of force or violence used. Such misbehaviour can also attract civil penalties: that is, the right of an individual to sue for loss, injury and damage as a consequence of any injury caused by the perpetrator of that force or violence. Police officers have been given special permission under common law and statute to use force in limited circumstances, such as to effect an arrest and prevent crime. The use of force by police officers may be unlawful if it is not justified at all in the circumstances of the protest or demonstration. It may also be unlawful if the amount of force used is excessive and dangerous. The Victoria Police Manual provides guidance about Victoria Police policy regarding the use of force. The philosophy said to apply to the planning, implementation and evaluation of all police operations is that the success of an operation should be primarily judged “by the extent to which the use of force is avoided or minimised”. (Victoria Police Manual, Instruction 101.1 Operational Safety Principles). The policy emphasises a range of response options which do not require the use of force and avoid confrontation. If the force used by a police officer is not reasonable and/or breaches Victoria Police guidelines and the common law, a person injured as a consequence of that force may be entitled to sue the police officer and the officer’s employer (generally the State or Federal Government) in tort.

Causes of action

Requirement of a significant injury for negligence claims
  • Assault and battery – the intentional infliction of harm
  • Negligence – breach of a duty of care that causes injury
  • Misfeasance by a public officer – deliberate acts by a public officer that are known to be beyond the power of that office
In order to be successful in a claim for compensation you must prove on the balance of probabilities that the incident giving rise to the cause of action occurred, and that it caused your injury. If you succeed in your claim, the amount of compensation you will be awarded depends on the seriousness and ongoing nature of your injury. In recent years there have been well-reported cases where activists have successfully sued the police for infringements to their civil and human rights (for example, the Richmond Secondary College Protests).

Requirement of a significant injury for negligence claims

Recently the State government introduced changes to the law that now make it more difficult for all people who are injured to pursue their rights to compensation based on a negligence claim. This includes people who have been injured during protests and demonstrations. If you have been injured, in order to have a right to sue for compensation in negligence, you must first establish that you have been significantly injured. You must prove that your physical injury is a permanent disability, which impairs your whole body function by more than 5%. You must prove that your psychological injury has caused an impairment to more than 10% of your mental functioning. A qualified doctor must assess your level of impairment according to the American Medical Association Guides and other guidelines that determine impairment levels. If you cannot prove significant injury, you will be unable to pursue compensation. Soft tissue injuries such as bruises and scratches will be unlikely to exceed the 5% physical impairment threshold. A bit of stress, which lasts 1-2 days will be unlikely to exceed the 10% mental impairment threshold. However, ongoing physical and psychiatric injuries may satisfy the requirement of significant injury. Where you are unsure about the seriousness of your injury, do not rely on your own assessment or that of your local doctor. Consider consulting with an expert personal injuries lawyer to provide you with advice about your rights to sue. They may arrange for you to be assessed by an expert doctor.

Timelines for legal action

For assault and battery, negligence and misfeasance claims for compensation you must start formal legal proceedings by filing a writ in a court within three years of sustaining the injury. If you are an infant or suffer a disability, the time period is six years. For a victim of crime application you must submit a claim form within two years of the crime. If you do not file the claims within these deadlines you may lose your right to pursue compensation. Only in some very limited circumstances will courts extend the applicable time limit.

Victims of crime

If you can establish on the balance of probabilities that the acts of the police officers who injured you amounted to “an act of violence” as defined in the Victims of Crime Assistance Tribunal Act1996 (Vic), you may be able to pursue an award of “victims of crime assistance”. The awarding of assistance is administered by the Victims of Crime Assistance Tribunal. To obtain claim forms, contact:
Victims of Crime Assistance Tribunal Principal Registry
2nd Floor, 233 William St,
Melbourne Vic 3000
GPO Box 882G
Melbourne 3001
Tel: (03) 9628 7855
Fax: (03) 9628 7853
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