NSWLEAKS (4): No action against copper despite 4,000 pages of misconduct complaints

NSWLEAKS (4)

Corruption - Class Action - Compensation

Further to NSWLEAKS 1, 2 & 3 the cover up continues. The object of nswleaks 4 is to prove to any person who since the 1st January 1984 made a complaint about misconduct or corruption allegedly committed by a police officer, and the evidence supporting the complaint the Ombudsman made the subject of investigation under the Ombudsman Act 1974, and over time both the evidence and the complaint/s made, were dismissed by the Police and by the Ombudsman.

Part of the results of a 4 Corners investigation put to air in October 2000 under the title “Burned”, 4 Corners found a file containing a record of complaints made about one police officer was over 4000 pages thick, and a year later, when interviewed by Mr. Peter Overton of 60 Minutes this Officer confirmed he did not receive even a caution.

The fact that both the Police and the Ombudsman dismissed every complaint made was dismissed rules out coincidence, and suggests there is some other way complaints about police are able to be dismissed, and have been over many years, as the thickness of this complaint file suggests.

I do not know how many complaints about police the Ombudsman over many years has investigated under the Ombudsman Act 1974, what I do know and anyone who reads this; I will provide the necessary links so they can print out the information to prove in their own mind, and to judge for themselves; if the Ombudsman from 1984 to the present day had the necessary legal and legislative authority, to investigate under the Ombudsman Act 1974; the conduct of a complaint made about a member of the NSW Police Force.

To begin; this is the link to obtain a copy of the initial Ombudsman Act1974. http://legislation.nsw.gov.au/sessionalview/sessional/act/1974-68.pdf

Print out the first page containing the explanation notes, s.12 (Right to Complain); s.14 (Amendment of Schedule); and pages 1149 & 1150 together contain a copy of the Schedule part of the Ombudsman Act 1974.

http://www.legislation.nsw.gov.au/sessionalview/sessional/act/1976-39.pdf printing out page 2 of this act confirms in 1976 the name of the Schedule part of the Ombudsman Act 1974 was changed to Schedule 1.

The heading of this part of the Ombudsman act excluded conduct of public authorities is self-explanatory. It contains a list of every public authority whose conduct is excluded from being investigated under the Ombudsman Act 1974, and section 12 (Right to complain) is read in conjunction with Schedule 1.

This link http://www.legislation.nsw.gov.au/sessionalview/sessional/subordleg/1991... NSW Governor Peter R. Sinclair in a proclamation published in the government gazette confirms his understanding of both s.12 and Schedule 1.

Under s.12 of the ombudsman Act 1974, a person may complain to the Ombudsman about the conduct of a public authority, except if the conduct is of a class described in Schedule 1. That schedule currently contains a list of public authorities that is excluded from being challenged and investigated under the Ombudsman Act 1974.

The contents of Schedule 1 confirm the conduct of the Governor, a member of the parliament and the conduct of a police officer are all excluded from investigation under the Ombudsman Act 1974, or to put it another way the Ombudsman Act provides the Ombudsman with no jurisdiction to investigate the conduct of the Governor, a member of the parliament or the conduct of a member of the NSW Police Force.

The notes to explain the Ombudsman Act 1974, confirm it is this act that defines the (statutory) powers, authorities, duties and functions of the Ombudsman. According to the Australian Oxford Dictionary to define anything, is to “outline clearly / set out precisely”.

In 1978 the Police Regulation (Allegations of Misconduct) Act was established and to obtain a copy of the cover page of this Act and a copy of page 15, the link is http://legislation.nsw.gov.au/sessional/sessionalview/act/1978-84.pdf and the notes on this page confirm this 1978 act conferred and imposed upon the Ombudsman certain powers, authorities, duties, and functions with respect to the investigation of complaints about police.

I emphasised certain powers only were given to the Ombudsman, which did not include the power to enable the Ombudsman to investigate under the Ombudsman Act 1974, the subject / conduct of a complaint that had been made about a Police officer under the Police Regulation (Allegations of Misconduct) (PRAM) Act 1978.

To confirm the sort of powers this act in 1978 provided the Ombudsman can be found at s.24 (2) and s.25 (1) (Further investigation) on page 15 of the Police Regulation (Allegations of Misconduct) Act 1978.

Before preparing a report (S. 27) under s/s (2) of 24 to obtain additional information the Ombudsman can interview the investigating officer, and under s/s (1) of s25, the Ombudsman must report to the Commissioner any deficiency found with the police investigation of alleged police misconduct.

However in 1983 a decision was made to provide the Ombudsman with this function, and on the 10th November 1983 two related amendment bills were introduced to the parliament and read for the first and second time in the L/Assembly by the Minister for Police, and in the L/ Council by the Attorney General and then both bills were without amendment retuned to the L/ Assembly and became the Police Regulation (Allegations of Misconduct) Amendment Act No. 191, 1983. http://legislation.nsw.gov.au/sessional/sessionalview/act/191-1983.pdf

The notes confirm the purpose of this act was to make a further provision to the Police Regulation (Allegations of Misconduct) Act 1978, with respect to complaints about the conduct of members of the police force.

Page 12 is where a copy of this further provision can be found and shows after s.25, insert s.25A is given the heading “Investigation under the Ombudsman Act 1974”.

According to the 13th part of Schedule 1 of the Ombudsman Act 1974, the conduct of a police officer cannot be investigated under the Ombudsman Act 1974, which brings me to the Ombudsman (Police Regulation) Amendment Act No. 193, 1983. http://legislation.nsw.gov.au/sessional/sessionalview/act/193-1983.pdf

The notes confirm this amendment act; to be an act to amend the Ombudsman Act 1974, so as to enable the investigation under the Ombudsman Act 1974 of conduct, the subject of a complaint made under the PRAM Act 1978.

The wording of these notes confirm that at the time, a certain part of the Ombudsman Act 1974 contained legislation, which prevented the Ombudsman from investigating under the Ombudsman Act 1974 the conduct of a member of the NSW Police Force, and for the Ombudsman under s.25A to be able to investigate under the Ombudsman Act 1974 the conduct of a police officer, this legislation that prevented this from happening needed to be repealed.

In 1983 a search of the Ombudsman Act 1974 for the two words “police officer” would disclose the only place in this Act these two words could be found, is at the 13th part of Schedule 1.

It is obvious from the wording of the notes of the Ombudsman (Police Regulation) Amendment Act No 193, 1983, the main purpose of Act No 193, 1983 was to amend the Ombudsman Act 1974 by having the NSW Governor in accordance with s.14 of the Ombudsman Act; publish in the Government Gazette a proclamation to remove / omit from Schedule 1 of the Ombudsman Act 1974, the legislation at number 13, which since 1974 and up to this period of time, had legislatively prevented the Ombudsman from investigating under his own act, the conduct of a Police Officer.

Six pages in all make up the Ombudsman (Police Regulation) Amendment Act No 193, 1983, and what the pages of this Act do not contain any evidence of, is the NSW Governor in 1983 and in accordance with s.14 of the Ombudsman Act 1974; by proclamation published in the government gazette the removal / repealing of, the legislation from the 13th part of Schedule 1 of the Ombudsman Act 1974.

Whether or not in 1983 it was the fault of the NSW Governor to remove from the 13th part of Schedule 1 (excluded conduct of public authorities), the conduct of a police officer, or it was the fault of another public authority only an investigation of parliamentary records would disclose who was responsible for making this serious legislative error, or was it an error?

As a direct result of this error, the legislation to exclude from investigation under the Ombudsman Act 1974 the conduct of a police officer was left in force, and this caused the legislation inserted at s, 25A “Investigation under the Ombudsman Act 1974” to remain invalid until the legislation excluding the conduct of a police officer from investigation under the Ombudsman Act was repealed.

The consequences of this “legislative error”, again if it was an error, confirms every complaint made about a police officer that the Ombudsman investigated under the Ombudsman Act 1974 was unlawful; and this fact made any evidence supporting the complaint made and obtained under the Ombudsman Act 1974 to become inadmissible.

The same inconsistency that still exists today, means for the past 29 years every complaint made about a police officer under a Police Act, which the Ombudsman investigated under the Ombudsman Act 1974, was unlawful.

Which brings me back to the 4000 pages of a file containing a record of complaints made about one police officer and despite evidence supporting the complaints made, every complaint was dismissed.

t stands to reason, if the Ombudsman investigated every complaint under the Ombudsman Act 1974, all it would take to defeat the Ombudsman’s investigation and any incriminating evidence that was obtained under the Ombudsman Act 1974; is to place before the Ombudsman a copy of Schedule 1 of the Ombudsman Act and draw the Ombudsman’s attention to the legislation Schedule 1 that excludes the conduct of a police officer from investigation under the Ombudsman Act 1974.

In fact the information to support my allegations the Office of the Ombudsman publishes on the Internet under the heading “What you cannot complain to us about”. When reviewing the information under this heading this Office publishes examples of the sort of public authorities, the Ombudsman cannot investigate.

At the bottom of this page you will find the link (Ombudsman Act 1974 shown in green) to obtain a copy of Schedule 1 and a list of every public authority whose conduct under the Ombudsman Act 1974 the Ombudsman cannot investigate.

Activating this link will display a copy of the Ombudsman Act 1974 and scrolling down you will come to the Link Schedule 1 Excluded conduct of public authorities. Activating this link will display a copy of Schedule 1 and scrolling to page three you will find at number 13 of this list is the legislation, which currently excludes the conduct of a police officer from being investigated under the Ombudsman Act 1974.

Http://www.austlii.edu.au/legis/nsw/consul_act/pal199075/s156.html is the link to display and print out a copy of s.156 of the Police Act 1990 “Investigation of complaint under the Ombudsman Act 1974”just as there was in 1983, here are two pieces of legislation in 2012, which at the same time, the Ombudsman cannot comply with, and from examples provided by s.109 of the Australian Constitution, this means one piece of legislation is valid and the other invalid.
Just as in 1983 for the Ombudsman to exercise the power of s.25A of the PRAM Act 1978 provided; it was necessary for the Ombudsman (Police regulation) Amendment Act No. 193 to first repeal clause 13 from Schedule 1 of the Ombudsman Act 1974, the same legislative fact applies to s.156 of the Police Act 1990, and until clause 13 of Schedule 1 is repealed, the power of s.156 remains invalid and cannot be exercised by the Ombudsman.

How do I know that a legislative cock up had been made that left the Ombudsman with no authority to investigate under the Ombudsman Act 1974 the conduct of a police officer?

This, I was told by a member of the Ombudsman’s staff, who in December 1993 blew the whistle to me about this legislative error having been found. What he would not tell me is when and how this error was made.

It was not until April last year I discovered the existence of the Ombudsman (Police Regulation) Amendment Act No. 193, 1983 and doing so I discovered the truth and the inconsistency that was created by the failure in 1983 of this amendment act, not removing from Schedule 1 (excluded conduct of public authorities) the legislation at number 13, which prevented the Ombudsman from investigating under the Ombudsman Act 1974 the conduct of a police officer.

Having placed before the Ombudsman a current copy of Schedule 1 containing the legislation at number 13, which legislatively and statutorily prevents the Ombudsman from investigating under the Ombudsman Act 1974 the conduct of a police officer, and a copy of s.156 of the Police Act 1990 Investigation of complaint under the Ombudsman Act 1974.

I have in writing been falsely advised that there is no legislative inconsistency that would prevent the Ombudsman under s.156 of the Police Act 1990, from investigating under the Ombudsman Act 1974 the conduct of a police officer, when very obviously there is; and there are very obvious reasons why the Ombudsman’s office does not want to admit that an inconsistency does exist.

For to admit there is an inconsistency, would support a class action that could be commenced against the Office of the Ombudsman by every person who complained to the police about the conduct of a police officer, and that complaint had been investigated by the Ombudsman under the Ombudsman Act 1974, which as a result of the legislative error made in 1983; the Ombudsman Act 1974 has never provided any Ombudsman with any legislative authority to investigate under the Ombudsman Act 1974, the conduct of any complaint made about a member of the NSW Police Force.

Placing this same information before a greens member of the parliament, in reply has claimed that the 13th part of Schedule 1 of the Ombudsman Act 1974, a statute a law made by the parliament was nothing more than an academic legal nicety.

When does a statute a law made by the NSW Parliament become nothing more than an academic legal nicety? When to confirm it is not, would open the way for a class action being commenced against the Office of the NSW Ombudsman.

In 2007 I did not know about the Ombudsman (Police Regulation) Amendment Act No 193, 1983, nor did anyone including the Ombudsman tell me that it existed.

All I knew is that there was legislation in the Ombudsman Act 1974, which made any investigation of a complaint, made under a police act, the Ombudsman investigated under the Ombudsman Act, was unlawful.

In July of that year I alleged to the ICAC that the NSW Ombudsman was complicit in a scheme that involves the use of provisions of the Ombudsman Act 1974 to render illegally invalid any Ombudsman investigation into police misconduct, thereby enabling the Police to avoid accountability for their misconduct.

The assessment committee ruled that there was no indication that any corrupt conduct had occurred and that the form legislation takes (eg the Ombudsman Act 1974) is a matter for the parliament and not the ICAC.

It appears to me the ICAC does not believe, when legislation is used by an authority; to defeat the course of justice, such an act is not an act of corruption.

I again raised these same issues with the ICAC on the 24th August 2010 and in reply I was told and I quote:
It is clear that you do not see the examinations conducted by the NSW Police, the NSW Ombudsman and the PIC as legitimate, but rather as being indicative of widespread collusive practises on the part of NSW public investigate authorities to cover up criminal activity and the corruption/maladministration by the authorities themselves.

However the commission considered it unlikely that these public authorities would have conspired in the conduct you allege. In any event your allegations regarding these collusive practises are based solely on your dissatisfaction with the investigative outcomes of those organizations.

You have not provided the commission with any objective evidence to back up your claims.

Comment. This claim is false, for what I did is ask to have my file retuned and the first of many pages contains the stamp of the ICAC recording the day the ICAC received documents containing the information necessary to support the allegations I made, which proves the claim I did not provide any objective evidence to support the serious allegations I made, to be false, and I allege an act by this Commission to cover the corruption for so many years I have been a victim of.

For these reasons the Commissions decision is to not investigate your allegations. We will consider any further information you provide. However, unless it differs substantially from that already provided (which they claim I did not) we would not contact you again.

Last year, I brought the matter of inconsistency to the attention of the NSW Governor and that on three occasions in 1983, 1993 and 1998, the NSW Governor assented legislation into a police act, which since 1974 legislation the Ombudsman Act contained contradicted the amendments made to a police act in the years shown.

In reply dated the 30th March 2011 the NSW Governor’s chief of staff advised me that as your letter raised important and legal and constitutional issues I have referred the matters to the Department of justice and Attorney General for consideration and advice. I shall write to you again once that advice has been received.

On the 10th May 2011 the NSW Governors chief of staff advised me that the Department of Justice and Attorney General advises that there is no legislative inconsistency that would prevent the NSW Ombudsman from exercising the power to investigate the conduct of a police officer under s.156 of the Police Act 1990.

On the 13th June 2011 I wrote to the Attorney General attaching a copy of Schedule 1 and the legislation at number 13 of the list of excluded conduct of public authorities, when advising the Office of the NSW Governor, the Attorney General chose to treat this legislation as if it did not exist.

When I received no reply by the 20th June 2011 I attached to the correspondence I have copied to this page all the information from the past and new information I obtained in April 2011, a copy of the Ombudsman (Police Regulation) Amendment Act no. 193, 1983.

P. O. Box 9470
Wilsonton
QLD 4350
20. 6. 2011

The Commissioner of the ICAC
GPO Box 500
Sydney NSW 2001.

Dear Sir,
You will find I have submitted for your consideration and determination, evidence of a serious legislative error made in 1983 a member of the Ombudsman staff blew the whistle on to me in December 1993.

In a letter I sent the Minister for police on the 8. 12. 93 I conveyed to the Minister that a member of the Ombudsman staff had blown the whistle on this Office discovering a legislative error had been made, the results of which from 1983 until the discovery of this error in 1993, any investigation of a complaint made under the Police Regulation (Allegations of Misconduct) Act 1978 the Ombudsman under the Ombudsman Act investigated became invalid.

I have attached to this brief copies of correspondence received from the Office of the NSW Governor and information to prove in 1993 no corrective action was honestly taken, instead dishonest action was taken to cover up the error made and continuing with the error and new legislation, any investigation by the Ombudsman under the Ombudsman Act 1974 commenced in accordance with s.153 of the Police Service Act 1990 became invalid and any evidence such in my case, would have become inadmissible.

Dishonestly failing to correct the error in 1993, since then and to the present day has allowed clause 13 of Schedule 1 to seriously affect the outcome of every investigation of a complaint made under the Police Service Act 1990, the Ombudsman investigated under the Ombudsman Act 1974.

I first raised my concerns with the ICAC in 1993 when I passed on the information the member of the staff blew the whistle on, and to which I received no reply. I again raised this matter with the ICAC in 2007 to which it responded claiming it was a matter for the parliament.

I disagreed for the same reasons I do today, when no honest action was taken in 1993 and corrupt action was, this fact was within the jurisdiction of the ICAC as it is again today.

Just as I have sent a copy of what I have sent the Office of the NSW Governor, I will be including as well this brief of information and correspondence I have this day sent the ICAC by registered post.

I wait the Commission’s response.

Yours faithfully

Robert Lee.
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When I did not receive any receipt of the further allegations made and I received acknowledgement of the email sent but not the further allegations, I suspected this conduct was based on the fact the contents of the Ombudsman (Police Regulation) Amendment Act No. 193 contained the evidence to support in 1983 a legislative error was made which left the Ombudsman with no authority to investigate under the Ombudsman Act 1974, the subject of a complaint made under the Police Regulation (Allegations of Misconduct) Act 1978.

This led me to make a complaint to the Inspector for the ICAC Mr. Harvey Cooper AM a retired Supreme Court Judge. In reply to the legislative issues I raised with the ICAC and the ICAC chose to ignore, Mr. Harvey Cooper responded and I quote:

(1) In your consideration of the Ombudsman Act 1974, you state that clause 13 of Schedule 1 excludes the conduct of a police officer from being investigated by the Ombudsman (under the Ombudsman Act 1974). This is not quite correct. Clause 13 excludes only conduct of a police officer when exercising the functions of a police officer with respect to crime and the preservation of the peace.

Police conduct, which is illegal or improper, may well not be conduct, “when exercising the functions of a police officer with respect to crime and preservation of the peace”.

(2) The power of the NSW Ombudsman to investigate police officers has been made clear in a number of sections of the Police Act 1990, and in particular sections 127, 132, 140 and 156, which override clause 13 of the Schedule part of the Ombudsman Act 1974.

(3) Even if errors were made in the drafting of the legislation (which is far from clear) this would not amount to corruption.

(4) Consequently the decision made by the ICAC to take no action of your complaint does not amount to misconduct of the type described.

In reply to (1) I drew to Mr. Harvey Coopers attention that the meaning of the word exclude used in the heading of Schedule 1 excluded conduct of public authorities covers all types of conduct a police officer may commit when exercising the functions of a police officer with respect to crime and the preservation of the Police; plus I referred Mr. Harvey Cooper to What you cannot complain to us about, information currently published by the Ombudsman’s office.

(2) Mr. Harvey Cooper a retired Supreme Court judge claimed the power of the NSW Ombudsman to investigate police officers has been made clear in a number of section of the Police Act 1990 in particular:

S. 127 Making of complaints about police. Explains exactly what the heading confirms and the claim that this section of the Police Act 1990 provides the Ombudsman with the clear power to investigate under the Ombudsman act 1974 the conduct of a complaint made about a police officer, is therefore false.

S. 132 Complaints received by the Ombudsman. This section of the Police Act 1990 confirms complaints received by the Ombudsman must be forwarded to the Commissioner and does not as falsely claimed by Mr. Harvey Cooper a retired Supreme Court Judge provides the Ombudsman with any power to investigate under the Ombudsman Act the conduct of a police officer.

S. 140. Decision by the Ombudsman as the investigation of complaint: By law it is up to the Ombudsman under this section of the police Act to decide if a complaint should or should not be investigated and if the Ombudsman decides the complaint warrants investigation, this the Ombudsman makes the Commissioner aware of and the Police must commence an internal investigation.

Mr. Harvey Cooper a retired Supreme Court Judge has in writing claimed to me that under this section of the Police Act 1990 the Ombudsman has the clear power to investigate under the Ombudsman Act 1974 the conduct of a police officer is false.

S. 156, while the legislation contained at the 13th part or Schedule 1 remains in force, the Ombudsman has no authority to investigate under the Ombudsman Act the subject of a complaint made under this section of the Police act 1990.

What else is false is the claim that Mr. Harvey Cooper has made that each of these four sections override the legislation / statute at clause 13 of Schedule 1 of the Ombudsman Act 1974.

I pointed out to Mr. Cooper a retired Supreme Court Judge that law in one act cannot override a law in another act; a law can be repealed, but cannot override a law in another act.

In reply to the correspondence I sent the Attorney General a copy of Schedule 1 and drew his attention to the legislation at number 13 of the list of excluded authorities. I received correspondence dated the 14th July 2011 the Parliamentary Secretary for Justice on behalf of the Attorney General and I quote: As you are aware the Director General of the Department of Justice and Attorney General wrote to the Office of the NSW Governor to advise that there is no legislative inconsistency that would prevent the NSW Ombudsman from Investigating the conduct of a police officer.

Should you wish to correspond further on these issues I would like to advise you that your concerns would be noted. However your correspondence will be placed on file without response.

In my next letter to the Inspector of the ICAC I pointed out that I complained about the ICAC not acknowledging the fresh allegations I made that were supported by the contents of the Ombudsman (Police Regulation) Amendment Act No. 193, 1983.

I also provided Mr. Cooper with copies of s.127, 132, 140 and 156 I attached to a copy of Schedule 1, and that his information that these sections of the Police Act 1990 provided the Ombudsman with the clear power to investigate under the Ombudsman Act the conduct of a police officer is false and he needs to explain, and apologise for giving false information, which s.307B of the Crimes Act confirms is a serious offence.

To this Day Mr. Harvey Cooper AM a retired Supreme Court Judge and the Inspector for the ICAC has not replied, nor apologised for giving me false information.

Comment.
Since I discovered the “smoking gun” provided by the Ombudsman (Police Regulation) Amendment Act No. 193, 1983. I have been the victim of a conspiracy of silence and given false information in the hope I am stupid enough to accept and believe, which I was not.

I believe this last piece of information I have from the NSW State records printed out, is all the proof I need to prove to myself, and others to prove to themselves is a part of the cover up of a legislative error made in 1983, was discovered in 1993, kept secret from the members of the 1993 parliament, and the inconsistency not corrected and allowed to continue to provide police with a loophole in the law, one which defeats any investigation of police corruption the Ombudsman investigated under the Ombudsman Act 1974.

The page I refer to contains information relating to the NSW Ombudsman and to print out a copy the link to do so is: http://api.records.nsw.gov.au/agencies/43

Much of the information contained on this page is false. You will find mention is made about the Police Regulation (Allegations of Misconduct) Amendment Act No 191, 1983.

However, what is conveniently missing from these records of the NSW Ombudsman; is any mention of the Ombudsman (Police Regulation) Amendment Act No.193, 1983, the act that contains evidence of a legislative error made in 1983, which occurred when the amendment reflected by the explanation notes of Act No. 193, was not made to the principal (Ombudsman) Act.

It was the 6th October 2011 I drew both the misinformation and this missing act to the attention of the executive officer of the NSW State records, and was told that he would look into the matter.

Here it is now the 10th February 2012, and nothing in this part of the NSW State records has been corrected I allege for fear of the error made being discovered, and I allege it is for this reason the misinformation was supplied to NSW State records by the NSW Ombudsman, who I allege is responsible for this part of the NSW State Records being incomplete.

If any person who reads what I have published and whose complaints they made about police, the Ombudsman confirmed he had investigated under the Ombudsman Act 1974 and later after a period of time using an excuse such as not able to afford to take any further action. Or if anyone knows of a person a friend or a relative whose complaints were dismissed after being investigated by the Ombudsman, should to their advantage pease email me at rlee@southernphone.com.au

Robert Lee.