Police and the Executive

This thesis examines the legal relationship between police and government in Australia to ascertain the extent to which the statutory forms and the understanding of those forms allow Australian police forces to be subject to direct or indirect government direction. The thesis also proposes areas of law reform to establish a constitutionally and legally coherent relationship. The methodology for the thesis is doctrinal and documentary. It involves examination of the statutory, parliamentary, judicial and historical record in Australia and comparable jurisdictions (predominantly United Kingdom and Canada) to ascertain the elements of the different models, the reason for their enactment and how they have been applied and understood. The thesis finds that there are three different statutory approaches used in Australia: the No, Broad and Limited Direction Models. However, the understanding of those models and the development of the Limited Direction Model, has been confused by a supposed doctrine of police independence developed during the 20th century based on flawed legal and historical considerations. Those flawed considerations include: • Selective use of the historical record; • Ignoring expressions of parliamentary intention when interpreting legislation; • Misapplication of judicial authorities; • Inflating the significance of the office of constable; • Misunderstanding and misapplying the doctrine of separation of powers; • Applying a flawed ‘mythology’ regarding Sir Robert Peel and his intentions; and • Minimising the constitutional significance of the doctrine of ministerial responsibility. This flawed view, combined with an erroneous understanding constitutional conventions, have led to a widely held but confused understanding of the police government relationship in Australia that police are, or should be independent of government in relation to ‘operational’ matters, but with no settled view as to the meaning of that term. This is further confused by another widely held view that policy decisions are the preserve of government, even though policy and operations are related and not contradictory concepts. The thesis has also identified a further area of confusion in the relationship, being significant legislative reductions to the security of tenure of Police Commissioners. All State police Commissioners are now employed for 5 year terms and most have little or no protection from arbitrary termination of appointment. This provide a means for indirect influence in a non transparent manner over Police Commissioners. Given this confused relationship the thesis proposes elements as a basis for the development of a coherent constitutional relationship. Those elements are: • Basing the relationship on the doctrine of ministerial responsibility with government empowered to direct police on all or the majority of policing matters. The only exclusions would be matters which can be demonstrated as inappropriate for government to direct. This element is consistent with government’s responsibility for policing and recognises that the effectiveness of police, as with other statutory bodies, can require certain well defined areas of independence. • Requiring the government direction power to be exercised transparently; which will ensure that governments are subject to scrutiny for exercises of that power. • Increasing the security of tenure for Police Commissioners, so as to reduce indirect government influence over police.

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