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STATEMENT - Commission’s power to investigate in the context of a critical incident

Wednesday, 24 May 2023

There have been suggestions that the Commission should take over the investigation of the critical incident at Cooma involving Ms Clare Nowland. It is appropriate to give an explanation of the Commission’s powers in this context.

The Commission’s powers in relation to investigations and critical incidents are set out in the Law Enforcement Conduct Commission Act 2016 (“the LECC Act”).

The Commission’s power to investigate where alleged misconduct arises in relation to a critical incident

Section 44(9) of the LECC Act limits the Commission’s powers to investigate allegations of police misconduct if that conduct arises in the context of a critical incident.

Section 44(9) says:

Except as provided by section 113 (6), the Commission must postpone the making of a decision under this section about whether it should investigate a police misconduct matter if the subject of the misconduct matter is the conduct of a police officer in relation to a critical incident until the conclusion of any critical incident investigation (within the meaning of Part 8) of the incident.

As a result, if a misconduct matter arises from a critical incident, the Commission cannot make a decision about whether to investigate that potential misconduct until the NSW Police Force critical incident investigation has concluded: s 44(9) of the LECC Act.

While the Commission cannot commence an immediate investigation itself, the Commissioner of Police may refer a complaint to the Commission with a recommendation that the Commission investigate that complaint: s 113(5) and (6) of the LECC Act. 

Taking into account any recommendations by the Commissioner of Police, the Commission can also investigate allegations of agency maladministration or officer misconduct that arise out of the way in which the NSW Police Force are investigating a critical incident: s 119.

For these reasons, the Commission cannot undertake an investigation into the circumstances surrounding the use of a taser by police on Ms Nowland. 

Commission’s role in monitoring the police investigation

When monitoring critical incidents, the Commission’s staff may:

  • Attend the scene of the incident;
  • Speak regularly with the police review officer;
  • Review the investigation documents;
  • Provide suggestions to the investigator, if that is appropriate.

The Commission ensures the NSW Police Force considers:

  • whether the investigation is fully and properly conducted;
  • the lawfulness and reasonableness of police actions both at the time of and, leading up to, the incident;
  • any evidence of officer misconduct;
  • any systemic safety or procedural issues that arise and the need for changes to NSWPF policies and procedures.

If the Commission has concerns, these are raised directly with NSWPF while the investigation is underway.

LECC Media Contact: Rob Schell

Mobile: 0425 317 535

Email: media@lecc.nsw.gov.au