Ombudsman Flags Criminal Prosecutions from Police Internal Affairs Probe

The NSW Ombudsman has foreshadowed criminal prosecutions arising from its probe of the decade long controversy over an internal police investigation conducted by the NSW Police Special Crimes and Internal Affairs unit, the NSW Crime Commission and the Police Integrity Commission.

In legislation rushed through Parliament in a matter of hours last month, the Ombudsman secured the unprecedented authority to give evidence and produce documents in criminal proceedings arising from its Operation Prospect, overturning a four decades long bar on the Ombudsman and his officers giving evidence in such proceedings.

Operation Prospect was initiated in October 2012 in an effort to bring to a head continuing controversy and allegations about serious misconduct in a series of internal affairs investigations between 1998 and 2002, where judicial warrants were sought for listening devices and other surveillance measures, affecting a large number of police officers, including current and former high ranking officers, as well as civilians, including journalists.

By the end of June, after a public call for information, the Ombudsman had received 48 complaints containing 82 allegations that fell within the remit of Operation Prospect. The investigation had earlier secured 146,000 documents containing “what can only be estimated to be millions of pages of information”.

At the earliest stages of the investigation late last year, senior figures, including the Ombudsman and the Inspector of the Police Integrity Commission, indicated that the probe would take at least two years.

The Government announced last Friday that it had re-appointed the Ombudsman, Bruce Barbour, to a third term. However, instead of the traditional appointment of seven years, Barbour has been given a truncated term, ending on 30 June 2015.

Notwithstanding the secretive nature of the Ombudsman’s inquiry, including a bar on public hearings, some details of the progress of Operation Prospect have started to leak, including the possible involvement of the Police Commissioner, Andrew Scipione.

Section 35 of the Ombudsman Act provides that Ombudsman (and his staff) are not “competent or compellable” to give evidence or produce documents in any legal proceedings arising from the work of the Ombudsman’s office, subject to certain limited exemptions, such as prosecutions for giving false evidence to the Ombudsman and certain other bodies. A one off exemption for the giving of substantive evidence relating to material gathered by the Ombudsman’s Office was granted in respect of the Wood Royal Commission into police corruption in the 1990s.

The Ombudsman obtained new exemptions with respect to two classes of proceedings arising from Operation Prospect: criminal proceedings and proceedings under the Public Interest Disclosures Act for dealing with reprisals against whistleblowers. The legislation, as passed, conferred retrospectivity so that it applies to all evidence that the Ombudsman has gathered since the formation of Operation Prospect.

The amendments to the Ombudsman Act were tacked onto a bill introduced and passed on 11 September, providing for amendments to the Royal Commissions Act that needed to be passed and given force before the Royal Commission into Institutional Child Abuse commenced its Sydney hearings the following Monday. Accordingly, the bill’s passage was expedited with the co-operation of the Opposition and the minor parties.

The legislation was debated and passed by both Houses of Parliament in the space of five and half hours, with 45 minutes debate in the Legislative Assembly and a total of 27 minutes debate in the Legislative Council. Assent was given the following day, with the provisions taking force immediately. The Opposition was only shown the legislation ten minutes before it was introduced into the Legislative Assembly, although a briefing had been provided an hour beforehand.

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