The revelation that more than 1,000 Victoria police officers have been working without proper authority for up to eight years is part of a “pattern” that raises serious concerns around police accountability, according to legal experts.
The state’s chief commissioner, Shane Patton, on Thursday revealed between July 2014 and August 2021 1,076 police officers, 157 protective service officers and 29 police custody officers had been incorrectly sworn following the introduction of the Victoria Police Act.
“The reality is that number of police officers and PSOs have been performing that role without having the actual powers validly to do so over that period of time,” he said.
“They have of course, been working with other police officers during that period of time who had those extra powers that police are granted and they also have those standing powers as any citizen has to conduct arrests.”
In the past, deputy commissioners were able to appoint acting assistant commissioners, who went on to swear in graduating police officers.
But under changes made by the then-Coalition government to the Victoria Police Act 2013, which came into effect in mid-2014, acting assistant commissioners needed to be appointed by the chief commissioner or by a deputy commissioner to whom the chief commissioner had delegated authority.
“So what that means is that on a number of occasions since 2014 acting assistant commissioners on occasions have sworn in police officers and protective services officers without having the valid powers to do so,” Patton said.
He said about 660 officers would be sworn in on Thursday, with the remainder to follow in the coming days.
Patton said if anyone was seeking to contest matters, police would be looking to adjourn them.
“We will obviously continue to deal with that on a case-by-case basis. I can’t speak for every case, I will say that I am very confident once we get retrospective legislation it will continue not to be an issue at all,” he said.
It is also his expectation there will be no ongoing ramifications for police officers involved.
“They’ve been acting in good faith, they’ve been performing their duties in the belief that they had the requisite powers and as a result of that we will continue to indemnify those officers,” he said.
The Liberty Victoria president, Michael Stanton, said the issue would exacerbate court delays due to Covid-19.
“There’s been people waiting for years to get their cases heard, and it affects other people as well, complainants and other witnesses, everyone’s in limbo,” he said.
Stanton said he was concerned there had been a “pattern” of similar issues within Victoria police.
In 2011, the Baillieu government passed retrospective laws to salvage more than 6000 prosecutions after police admitted they had failed to swear or affirm affidavits correctly.
“It’s a real concern given the importance and extent of police powers,” Stanton said.
Lawyer Jeremy King who leads the police misconduct team at Robinson Gill, agreed.
“Victoria Police have blamed this on an administrative error but this sort of thing just keeps happening,” King said.
“There was the Lawyer X scandal, we learnt recently that police were ‘accidentally’ disclosing privileged conversations between lawyers and their clients, they were incorrectly swearing affidavits, PSOs didn’t have powers to use pepper spray.
“It’s starting to look a little reckless.”
He said it was another example of why there needs to be a stronger police oversight system.
“People have been arrested, charged, they’ve gone through the criminal system and some have been put in jail by police officers who weren’t authorised. This should never have happened,” King said.
Patton said the authority of an acting assistant commissioner to make directions was first raised at a court hearing into a major drug investigation in February 2021.
“At that stage, we believed that the questions about that authority and the ability to do that, the validity of those powers, we believed was confined to that specific issue,” Patton said. “We then sought further legal advice and requested an audit of all delegations.”
The Victorian police minister, Lisa Neville, said she was made aware of the issue on Tuesday.
Neville is set to introduce legislation to state parliament next sitting week to ensure all decisions that have been made by the officers had validity going forward.
“It’s really important that we act quickly,” Neville said, noting the opposition had been briefed on the issue.
“I’m very confident that they will also want to provide comfort to these police officers and ensure criminals don’t get away with crimes because of an administrative problem that we’ve had over the last eight years.”
Neville said it was her hope the legislation passed both houses of parliament during the sitting week to “minimise the impact that this will have on any cases”.
The state’s corruption watchdog, the Independent Broad-based Anti-corruption Commission, and the Office of Public Prosecution have been notified.
The opposition spokesperson for police, Brad Battin, said the Coalition would support the government’s legislation, so long as it only deals with fixing the issue at hand.
In a statement, the Police Association Victoria said it was aware of the “unintended and highly technical administrative error”.
“We understand that Victoria police will move decisively and quickly to remedy this situation so that our members can get back to doing what they do best, looking after the community,” they said.
“We will support the members impacted in any way we can and ensure that their legal and industrial rights are protected, as this issue is rectified.”
