The NSW Royal commission shows how corruption starts small and gets worse. It shows the importance of nipping bad police practices in the bud, before they become entrenched and systemic.
The key reason the commission was successful was that it refused to use any NSW police at all in its investigation. Past inquiries failed because inquiring police tipped off their mates. Instead the commission used the Australian Federal Police.
The top brass in the AFP have a fair idea of the need to cull out bad police very early, but they are facing some difficulty.
It is easy to say weed out the bad cops. It is much harder to do, and getting harder. The commissioner has to balance fairness to the individual police officer with the need for an unblemished force.
The question is whether the sort of ordinary procedural fairness that applies in other areas of the public service and, indeed, in private enteprise these days, should apply in a police force. It it is to apply, then the scale will weigh in fvour of continued appointment to the detriment of the integrity of the police force.
When one looks as the rulings of various public-service appeals bodies and the industrial-relations bodies on dismissals and disciplinary procedure, it is obvious things are swinging in favour of the employee and against the employer. It is becoming harder and harder to discipline or fire bad employees.
In private enterprise and other areas of the public service it may be acceptable to have the occasional inefficient, misbehaving or incompetent person as the price for a fairer disciplinary or dismissal process _ one that gives the benefit of the doubt to the employee. But the publc interest might suggest it is not acceptable in police forces.
Because of that the AFP Act provides for a dismissal process that, on its face, appears to give the employer (the commissioner) an easier path than the rest of the public service or private enterprise.AFP officers are generally on fixed contracts, usually for five years.
The Act provides that the commission need not renew the term. It provides also that if the commissioner determines an office no longer suitable, the officer can be terminated, subject to compensation depending on the unexpired term. The compensation is about 80 per cent of a year’s salary or 12.5 per cent of the slary for the unexpired term, which ever is the greater.
The AFP can also get rid of bad cops if they are convicted of a jailable criminal offence of if the Police Disciplinary Tribunal dismisses them for an offence against the regulations.
Very fine in theory.
In practice, though, securing a criminal conviction is very difficult. It requires proof beyond reasonable doubt. But the public might be concerned that a cop is still on the beat when it is jsut merely likley than not he committed an offence.Second, the tribunal is reluctant to air dirty police linen in public, so tends to be lenient.
Third, non-renewable or early termination are not as easily exercised as the word of the Act would suggest. The commissioner must satisfy a test of “reasonableness” and a whole lot of administrative law tests of natural justice and procedural fairness. No police cases have gone to court yet, but other public service cases suggest that a successful termination (if ever achievable) would be at considerable cost of time and resources to go through, record and monitor all the procedures such as specifying precisely where the officer has fallen down in duty and giving him opportunity to respond and then responding to his response and getting evidence together and so on.
In short, a law that appeared to give the employer (the commissioner) a special power to get rid of bad cops appears to have been neutered. The aim of the law was clear: the public interest in a pure police force must outweigh the public interest in giving employees the benefit of the doubt for continued employment.
It is not an easy balance. Events in NSW suggest that the weeding out process should be tougher than in other areas of employment, yet common decency suggests that individual cops should not be subjected to arbitrary dismissal or non-renewal.
To some extent the problem has been met by pushing cases that have failed (from the commissioner’s perspective) in the criminal courts and in the police disciplinary tribunal into the non-renewal or termination field. It means paying compensation and full superannuation, but it means getting rid of bad cops. The trouble is that by putting these cases in this category it has raised the stakes for that remedy to be applied by the commissioner. It means the remedy is tainted and no longer sutable for cops not bad enough for criminal or tribunal proceedings but who he thinks are no longer suitable as police officers.
It may well be that in the interests of a pure police force the police-dismissal process has to be revisited. It may mean that in return for the culling of the cumbersome procedural-fairness rules, police have access to greater amounts of compensation for early termination or non-renewal of contracts.
Present compensation is for long-term employees is not very different from retrenchment packages in the public service or private industry. Maybe it is worth paying more, provided the public gets the benefit of a shift in the balance of concern more towards a pure police force and less towards procedural fairness for individual officers.