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Recommendations for statutory reforms relating to the Qld Police , Ethical Standards Command , Crime and Misconduct Commission .

Related articles
THE IMPORTANCE TO ACTIVISTS IN QLD – OF FOI IN UNEARTHING POLICE MISCONDUCT.
www.cynicismcentral.org/node/32

Queensland Taser Rollout- Police Guidelines worth zip in court
http://cynicismcentral.org/node/33

With the history of Qld cops unwillingness to reform itself , the unwillingness of successive Qld governments (of both creeds ) to commit to real reform , and the compliant attitude of the CMC towards the Qld cops , it would seem prudent to provide any candidate at the coming Qld State Election (21/3/09) with recommendations for real reform . This includes legislative change and cultural change within the governments/parliaments of Qld , the Cops and CMC.

The links provided will lead you to well known circumstances of police not being held accountable by the system tasked with oversight.
Any candidate is welcome to take up these recommendations .

This will be simply listed and links provided.
Legislation is linked to articles within the links referred to .

THE CMC AND ESC www.cynicismcentral.org/node/32

Crime and Misconduct Act 2001 and Regulation 2005
http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_C.htm

Criminal Code Act 1899 Qld
http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_C.htm
(1) Ensure that the Crime and Misconduct Commission of Qld treats all unlawful arrests and assaults by police as a criminal offence in the same way a citizen would be liable for an assault and also a deprivation of liberty charge , and also to the civil standard of proof as a serious wrong and not merely as a breach of discipline capable of being informally resolved.

(2) That the maintenance of civil liberties in the exercise of governmental power (Including corporations and businesses etc contracted by the state at any level) be a matter regarded as of high importance by the CMC Act.

(3) That the CMC be given its own powers to charge police under the criminal laws and to recommend civil compensation for trespass to the person to the state Attorney general .

(4) That the offence of interference with political liberty in the Criminal Code be added to –to include electoral liberties and the exercise of lawful political expression.

(5) That s546A of The Criminal Code that relate to the lawful powers of a person to arrest another for an offence against the code where a person can be arrested without warrant , be amended to include a provision relating to a persons right to arrest police .

(i) That a person has the right to summon a duty magistrate and surrender the prisoner to the custody of the magistrates court who has the power to charge and present the prisoner to the court as a first instance prosecutor, whence forth the normal procedures of a court will follow;

(ii) That where matters are in dispute in an a police civilian arrest situation and violence may result , a person witnessing such breach of the peace may summon the duty magistrate who may determine who may be charged in the same manner as a police officer;

(iii) That in all cases a duty magistrate has the power and duty to refer such matters to the CMC for oversight, but has the powers of a CMC officer;

(iv) And that if a person claims to have been unlawfully arrested by police, the police must summon the duty magistrate who will have inquisitorial powers of inquiry to determine whether a trial must ensue to determine after evidence is led, as to who may be charged and then found guilty upon such evidence. Such trial to be presided over by a normal justice.

(6) That all time limits for investigating or prosecuting police under the CMC Act be repealed.
http://www.cynicismcentral.org/node/49

(7) That the CMC Act make clear that the law relating to perverting the course of justice etc, applies to ESC investigations.

(8) Ensure that Civilian CMC officers investigate complaints against police, and not the police themselves. If this cannot be achieved ;

(i) Ensure that CMC oversight (auditing powers) are exercised over all QPS Ethical Standards Command investigations;

(ii) That all such investigations by the ESC interview all known witnesses to any alleged incident and obtain all relevant witnesses ;

(iii) That both the audio or video recordings of interviews , and transcripts of such interviews be attached to all synopsis’s of such interviews, and accompany any documentary evidence to any complaint review or assessment committee of the ESC ;

(iv) That the CMC review ALL such material in the exercise of its auditing powers.

(v) That all such information be able to be obtained by a complainant through FOI free of charge with the minimum of delay.

(vi) That the ESC be formally recognised in the CMC Act , and its powers , functions and composition etc be stipulated as a matter of substantive law in the CMC Act;

(vii) That the procedure for the investigation by the ESC of police be stipulated as a matter of substantive law in the CMC Act; and

(viii) That the CMC can use all of its anti corruption powers at any stage during and after any investigation by the ESC in its oversight role and integrity maintenance role.

Arrest by Police and Watch house Detention.

Police Powers and Responsibilities Act and Regulation, Police Service Administration Act and Regulations:

http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_P.htm

Criminal Code Act 1899 Qld

http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_C.htm

(9) Ensure that all Qld Watch houses and detention facilities have adequate video recording facilities.

(10) Ensure that police know that their role includes the protection of civil liberties and the importance of those liberties in a free and democratic society.

(11) Ensure that Queensland Police have the latest in personal recording equipment to assist in the illumination of fabrication of grounds of arrest and evidence.

(12) Ensure police know that whatever the state law says, that they are subject to s3ZD of the Crimes Act 1918 CTH as a police officer, whether or not they are exercising the powers of or assisting the Federal authorities. This section states that the true grounds of arrest etc must be stated as soon ass possible and provides for the exceptions recognised by the civil courts. That this is in conjunction with the requirements of Qld law. http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s3zd.html

Adams v Kennedy
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2000/152.html

(13) That a pamphlet be provided to any person detained in a watch house detailing a persons rights to make a complaint to the CMC and how to do so;

(i) and that they are entitle to a copy of documents generated by their arrest and detention and such complaint .

Freedom of Information Act 1992 Qld and Regulation

http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_F.htm

(ii) That this includes police note book entries, audio or video recordings and watch house records and ESC and CMC records. (see www.cynicismcentral.org/node/32 )

(14) That all police officers be instructed like law students in the lawfulness of the use of proportionate/disproportionate force, whether armed or not , including the instruction in application of legal precedent .And that the use of force or of a weapon of any kind shall be as with any other citizen of the last resort.

(15) That it be recognised that the use of “Pain Compliance” outside of the criminal code provisions is torture within the meaning of the code.

(16) That police be instructed that guidelines are no substitute for substantive criminal law provisions relating to the use of any force . http://cynicismcentral.org/node/33

REFORMS TO THE CRIMINAL AND CIVIL LAW

(17) The Police Service Administration Act 1990 Qld contains a provision, s10.6 , that prohibits the awarding of exemplary or punitive damages against the state where it is vicariously liable for the unlawful actions of police . These damages are to teach the state that law breaking does not pay and that they should change their ways. This section must be amended to provide that a court may find the state liable for exemplary damages in accordance with the application of precedent on such matters. Simply repealing it would leave the Qld common law in the same position as s10.6 previously stated.

Adams v Kennedy on Exemplary Damages
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2000/152.html

Police Service Administration Act 1990 Qld
http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_P.htm

(18) The Criminal Code must be amended to provide that all have the right to be equal before the laws. This provision would override all Qld laws, and would in time generate many reforms in many areas (as it has in America) on a socio economic basis before the courts for instance.
Griffin v Illinois
http://supreme.justia.com/us/351/12/case.html

The Anti Discrimination Act has it as its purpose, but applying the Qld Acts Interpretation Act, it is not a free standing right.
http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_A.htm

(19) At the moment there is no provision forcing a court to give a free transcript of its decision in a criminal proceedings in a magistrates court, nor to a free copy of the transcript of proceedings if a person is impecunious and wants to appeal or bring civil proceedings.

(i) Technology exists for proceedings to be DVD recorded at minimal expense and for people to be provided with an official DVD for use in any other court.

(ii) Provision should be made for this and for a free written copy of a decision to be given as a matter of law in a magistrates court proceeding.

(iii) This would increase the ability of people to provide documents to legal advisers;

(iv) Reduce the cost of legal representation through photocopying charges ;

(v) Enable higher or civil courts to access an online database to review all evidence , to see and hear witnesses themselves , thereby removing a well known barrier to many a successful appeal and civil suit, and maybe preventing possible miscarriages of justice.

(vi) In Its 2008 Annual Report (pp26-29) The Qld Supreme Court has shown electronic appeal books reduce costs to all concerned
(http://www.courts.qld.gov.au/SupremeCourt/SC-AR-2007-08.pdf ). Justice should come at 1st instance , or in the lower courts which means court film could replace the need for defendants to purchase or wait to purchase a transcript for use in final submissions and addresses also thereby helping to alleviate the concerns of De Jersey CJ about justice being delayed because of transcription problems .

(20) An anomalous situation exists surrounding the consequences of the Qld Personal Injuries Act in civil proceedings for false imprisonment, assault and torture- action for trespass to the person. http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_P.htm

In a case where a person was unlawfully arrested , and where “pain compliance wrist locks “ were unlawfully used as a matter of course where no resistance was offered, and the person sued for the act of torture as defined by s320A of the Criminal Code, and no lasting injury was alleged. The Supreme Court held that though the act took place, and infliction of pain to comply was obvious , that it could not be referred to because the lengthy and costly proceedings under the personal injuries act was not followed. The act did not exclude temporary pain. (The Judge in reality was trying to save the cops the embarrassment of being torturers). The person was therefore denied that new cause of action and the recompense. With the increasing use of pain compliance and the phasing in of tasers in Qld, it is necessary that the personal injuries act be amended to exclude the causation of temporary pain where no lasting injury , whether physical or psychological results , that is , to exclude the traditional causes of action in trespass to the person such as pain , humiliation and insult and the like . http://cynicismcentral.org/node/25

Pat Coleman
Townsville