Police Accountability and Oversight: An Overview
A.M. Gleeson AC
|Chief Justice of the High Court of Australia (Article published when the Hon Murray Gleeson AC was Chief Justice of NSW
A useful place at which to begin a consideration of some of the important and complex issues raised by this subject is, perhaps, the beginning. It may be that the most useful contribution I can make is to go back to first principles, and to recall some fundamental considerations relating to the role of police in our society. These considerations provide the framework for a definition of the role of the police service. They also provide the context of principle in which practical constraints governing the operations of the service may he proposed and evaluated.
During the eighteenth century the French political philosopher Montesquieu proposed an analysis of governmental poker which came to be one of the most influential ideas in Western thought. In every political society, he said, there are three kinds of power; legislative power, executive power and judicial power. This theoretical analysis was accompanied by a corollary of profound practical importance. It was that the liberty of the citizens in any community varies with the degree to which those three governmental powers are held in separate hands. A free society is one in which legislative, executive and judicial powers are, or tend to be, kept separate. At the other extreme, concentration of legislative, executive and judicial powers in one person, or one group of people, is the essence of tyranny.1'
One of the reasons why these two ideas achieved such importance in Western political philosophy is that they were taken up by revolutionary America. The Founding Fathers of the United States of America wrote into their Constitution the principle of the separation of powers. Historically the people of the United States have had a deep distrust of concentrated power, and their system of ; governmental separation, and checks and balances, manifests that distrust. If administrative efficiency were their paramount concern, the shape of American society would be very different. The same can he said of Australia. The Founding Fathers of the Australian Constitution were also powerfully influenced by these ideas, and by the United States model. The principle of the separation of powers is reflected in the structure of the Constitution of the Commonwealth of Australia. Thus, there is one chapter headed "The Parliament", another chapter headed "The Executive Government", and another chapter headed "The Judicature".*
Sir Owen Dixon, later Chief Justice of the High Court of Australia, commenting upon the way in which the Australian Founding Fathers took up the doctrine of the separation of powers, said:
The framers of our own Federal Commonwealth Constitution (who were for the most part lawyers) found the American instrument of government an incomparable model. They could not escape its fascination (Dixon 1935. p.597).
However, in Australia we also inherited the British tradition of responsible government. Executive power is in practice exercised by, or by persons under the direction of, ministers of state, who are themselves members of parliament and politically responsible to the legislature. Furthermore, we do not pursue separateness to the same lengths as in the United States. Even so, The principle has taken deep root in our community, and the theory of the *separateness of legislative, executive and judicial functions has gained general acceptance.
The legislative power, The power to make laws, is exercised by the parliament. The executive power comprehends those aspects of the organisation and administration of society which are, at any given time, regarded as properly a matter of governmental responsibility. Ideas as to what matters are properly regarded as the responsibility of government chance from dine to time, but such matters have always included the maintenance of external and internal security, The promotion of law and order, and the keeping of the peace. Consequently, The operations of the defence forces and of the police forces are accepted as responsibilities of the executive government. In different communities, The division of functions between the military and the police may vary but, whatever the precise division that is adopted in any place or at any time, The maintenance of internal peace and security is an essential, and indeed basic, aspect of executive power. The judicial power involves the interpretation and declaration of the law, The administration of criminal justice by determining whether persons have been guilty of crime and imposing punishment if they are found guilty, and the administration of civil justice, which involves the resolution of disputes as to legal rights and obligations between citizen and citizen, or between citizens and the executive government. The exercise of judicial power may involve, from time to time, decision-making as to the extent of legislative power or executive power and the judiciary are from time to lime called upon to resolve disputes as to where legislative power or executive power resides.
The fact that the police force is part of the executive branch of government carries with it, as a corollary, certain consequences flowing from the principle of separation of powers.
First, police do not exercise legislative power; that is to say, they do not make laws. This observation may seem trite, but its implications are sometimes overlooked. Less obvious, but equally important is the need to guard against vesting in the police discretionary powers which, for practical purposes, may amount to powers to make law, or to dispense with the compliance with the law.
There is a need to be on guard against the temptation, in the interests of administrative convenience, to confer upon officers of the executive government, including members of the police force, discretionary powers to impose legal obligations upon some citizens or to relieve other citizens of obligations. Appropriate delegation of power to make rules and regulations subject to parliamentary scrutiny is one thing, but it is not the function of the police to make the law, or to decide by whom, and to what extent, the law is to he obeyed.
There is a related consideration which is worth remembering. It affects the exercise by parliament of its law-making power. On occasions laws are made, or left on the statute-book, which have a width, or which operate with a theoretical severity, that is not intended to apply in practice. This can produce the result that the police are put in the position of having a de facto discretion as to whether and in what circumstances they will enforce the law. It would be invidious to give particular illustrations, but we can all think of laws which, because they are regarded as outdated, or draconian, or politically sensitive, are not expected to be enforced uniformly, or in some cases are not enforced at all. This is not only an destructive of morale in the community and in the police force; it is constitutionally repugnant. The police should not be left in a position where it is up to them to decide which laws they will enforce. Bad laws should be repealed or reformed, not left to be tempered in their practical operation by police discretion.
A second consequence of the separation of powers is that it is no part of the function of the police to exercise judicial power. It is for the judiciary, not the police, to determine whether people are guilty or innocent of crimes, and it is for the judiciary, not the police, to punish citizens who have broken the law. To take one simple but important example, the power of arrest is a power that is given for the purpose of taking into custody suspected wrongdoers in circumstances where such custody is necessary for the proper administration of justice. It is not a power that is to be exercised punitively. The police are not given a power to arrest suspected offenders for the purpose of enabling the police *to punish such people, and the exercise of a power of arrest for such a purpose would be a serious abuse of power.
Activities such as apprehension and questioning of suspects, fingerprinting, detention, and refusing of bail are all administrative activities that are intended to he aimed at furthering the course of justice, enabling people accused of crime to he brought to and securing the conviction of the guilty and the acquittal of the innocent.
They are not intended themselves to constitute some additional form of punishment over and above that imposed by the courts. To give one practical illustration, many criminal proceedings are of a kind that can be commenced either by arrest upon warrant or, alternatively, by the much less dramatic procedure of the issue of a summons. Where there is no reasonable apprehension that an accused person will fail to turn up at court to answer the charges, and where the issue of a summons is an available procedure, it would be quite wrong to use the procedure of arrest or warrant where the purpose of doing so is to display the law operating with its full severity.
No human organisation can he perfect, and it is inevitable that from time to lime we will see aspects of police behaviour that we find troubling. In such cases it will often happen that what is involved amounts to a contravention of one of these basic principles which in turn flow from the separation of powers: the police should not act as though they have the power to make or unmake the law, and they should not act as though they have the power to punish wrong-doers. For similar reasons, the legislature, for its part, must take care to avoid conferring upon the police powers which are, in their nature, legislative prejudicial. A proper understanding of the role of the police force as part of the executive arm of government should assist to prevent these things from occurring.
Another constitutional principle which is of large practical significance for the role and operations of the police force is the rule of law. In our community no one is above the law, and this includes those who apply and enforce it. The police have to obey the law like anybody else, and the primary method of regulating their conduct is by the enactment of laws, rules and regulations which, in the last resort, and if necessary, will be enforced by the courts.
In the article quoted above, Sir Owen Dixon wrote:
We are so accustomed to the idea of the supremacy of the law, that we do not reflect upon the degree to which it has operated to determine the character of the institutions in the countries to which the English common law has carried ... Wherever the common law has gone the theory of the supremacy of the law has necessarily gone with it (Dixon 1935, p.595).
Our community takes it for granted that the police must obey the ordinary law of the land and should, like anybody else, be punished for transgressions. Maintenance of these standards requires adequate procedures for internal police investigation, and the public require assurance as to the efficacy of such procedures. There are two ultimate sanctions for the inadequacy or failure of such procedures: judicial and political. The courts will enforce the law against officers of the executive government; and the principle of ministerial responsibility will enable parliamentary scrutiny of alleged shortcomings.
Two practical examples of police obligations to observe the ordinary law may he given:
Forcible police entry into premises for the purpose of effecting an arrest, unless made on reasonable grounds and in compliance with common law and statutory requirements, may expose officers to both civil and criminal liability (e.g. Lippl v Haines (1989),18 NSWLR, 620).
Police who obtain search warrants are obliged to comply with the strict technical requirements of the statutes which permit such intrusions into privacy and property (e.g. Commissioner of Police v Atkinson (1991), 23 NSWLR, 495).
There is one important area in which the law imposes stringent requirements upon police officers but in respect of which the legislature could well assist them by defining more precisely their powers and obligations. The courts have repeatedly insisted upon the duty of arresting officers to take an arrested person before a justice or magistrate as soon as practicable, so that questions of bail may be dealt with (e.g. Williams v The Queen (1986), 161 CLR. 278). This is a rule of basic importance * for the liberty of the subject. in practice, however, it often collides with a police desire to interrogate a suspect. Plainly, the exigencies of arrest and detention and of what might be an ongoing process of police inquiry can, in practice, make it very difficult to know when a police officer passes beyond the area of apprehension and lawful investigation and into the area of unlawful detention. In other places there are statutory provisions and regulations which lay down clearly defined standards in this regard, including time limits for bringing an arrested person before a justice. The law and practice in New South Wales on this subject should, in my view, be clarified in the interests of all concerned. This is an area in which bright-line standards can operate for the protection of both police and citizens.
Citizens who complain about the failure of police officers to observe the law nowadays demand reasonable assurance that their complaints are dealt with adequately and impartially. Procedures of internal discipline, and external scrutiny such as that which comes from the ombudsman, are important practical additions to the process of law administered by the judicial am of government.
If police from time to time come into collision with the law, it is only fair to remember that the nature of the tasks which we expect them to perform places them regularly in difficult and dangerous situations. Most of us have no difficulty in complying with the law which prohibits assaulting other persons. I wonder, however, how most of us would get on if we were engaged in a task that necessarily brought us into close and frequently dangerous physical contact with violent people. It is often said that the police represent a cross-section of the community and are no better or worse than ordinary people. Ordinary people, however, do not carry guns or have the power or the duty to place others under arrest and lock them up. The obligation to comply with the laws that govern the conduct of ordinary people can in practice, create serious difficulties for police officers. It is, however, an obligation upon which we must continue to insist.
The work of the members of the police force is often hard and dangerous, and the tasks we expect them to perform are usually thankless. Human nature being what it is, we spend a lot of our time concentrating upon their occasional failures, and very little time applauding their routine successes. There is a human dimension to this subject which is frequently overlooked in our proper insistence upon matters of legal and constitutional principle. There is nothing new in our capacity to concentrate unjustly upon occasions for blame whilst ignoring occasions for praise. In his famous defence of the English clergy in pre-reformation England, the Lord Chancellor, Sir Thomas More, said:
Where we see a good man and hear or see a good thing, there we take little heed. But when we see once an evil deed, thereon we gape, thereof we talk and feed ourself all day with the filthy delight of evil communication. Let a good man preach, a short tale shall serve us thereof, and we shall neither much regard his exhortation nor his good example. But let a lewd friar be taken with a wench, we will jest and rail upon the whole order all the year after and say, 'lo what (an) example they give us' (Marius 1985, p.352).
We are right to insist upon high standards in the operation of our police force. We must keep steadily in mind that the police force, as part of the executive branch of government is not to exercise either legislative or judicial power. And we must insist as a minimum condition upon the application of the rule of law to all aspects of the activities of police. I would, however, add in conclusion that we should also acknowledge the importance and the difficulty of the tasks which we expect to be performed by police officers, and we should bear in mind that they deserve our support and encouragement. Our requirements and expectations of them are high, and we should be ready to praise success as well as to criticise failure.
NOTES: 1 . In L'Esprit des Lois, Book XI Ch. VI, Montesquieu wrote: "II n'y a point encore de liberte si la puissance de juger n'est pas separee de la puissance legislative et de l'executrice". There is an interesting historical discussion of the subject in the judgment of Windeyer J in The Queen v Trade Practices Tribunal: ex parte Tasmanian Breweries Pty Ltd (1971). 123 CLR 361.