Police Powers, Procedural Scrutiny, and the Case for Transparency
Police Powers, Procedural Scrutiny, and the Case for Transparency
In 2009, a senior AFP officer told a parliamentary inquiry that his organisation had no agreed definition of corruption. This week, figures tabled before a parliamentary inquiry into racism against First Nations people showed that the AFP has closed 643 of 1,213 misconduct allegations since 2021 without investigating them. It did so using a broad discretionary power under section 40TF, and the Commonwealth Ombudsman has repeatedly raised concerns that the agency leans on that power too often, especially for complaints about excessive force. Some seventeen years separate the two statements, and they invite a question that is usually put badly. People ask whether police should be held to a higher standard than the average citizen, as though the answer lay in inventing a harsher law for officers. The better question is narrower and more answerable. Should the procedures that test police uses of power be more demanding than those that test private uses of force, even if the underlying offences and torts remain the same? And should those procedures be open to public inspection?
The Peculiar Position of the Constable
Even the lowest-ranking constable holds powers that an ordinary citizen does not. A constable may arrest on reasonable suspicion, stop and search, enter premises, seize property, and detain a person against their will. In some circumstances a constable may use force, including lethal force, and be legally justified in doing so. In the common-law tradition these powers attach to the office itself. They are an original authority exercised on the officer’s own responsibility, not merely delegated from a commissioner or a minister. That is why an officer who acts unlawfully cannot simply shelter behind an order. The office carries personal accountability precisely because it carries personal power.
Sir Thomas Winsor, as Chief Inspector of Constabulary in England and Wales, observed in 2021 that policing is almost certainly unique in investing its lowest-ranking people with the greatest amount of its executive power. In most institutions authority accumulates as one rises. In policing the arrangement is inverted. The most junior officer meets the public at the moment of greatest tension, often alone and at night, and must exercise judgment on the spot with consequences that may be irreversible.
The Myth of the Citizen in Uniform
For much of the nineteenth and early twentieth centuries the official position was that no special scrutiny was needed, because police were not special. They were citizens in uniform, paid to do full-time what every citizen already had the power and duty to do. The 1929 Royal Commission on Police Powers and Procedure declared that a policeman possesses few powers not enjoyed by the ordinary citizen. Whatever truth that held then, it was a legal fiction by mid-century. Parliament had layered extensive statutory powers onto the office, and police forces had become large, organised bureaucracies with intelligence capacity and weaponry no private person could match. The idea survived as a constitutional myth. It remained useful for insisting that officers are subject to the ordinary law, but it no longer described operational reality.
Dicey and the Case for a Single Law
The principle the myth protected deserves better than to be discarded with it. A.V. Dicey insisted that every official, from the Prime Minister down to a constable, is under the same responsibility for acts done without legal justification as any other citizen. This was not a claim that officials lack extra powers. It was a claim about what those powers are. They do not create a privileged caste. They create extra authorisation. Within its boundary the officer acts lawfully, and outside it the ordinary law of assault, false imprisonment and trespass applies in full. Equality before the law is a structural safeguard against administrative exceptionalism.
The practical objections to greater scrutiny should be stated fairly. Officers labour under constraints civilians do not, including limits on political activity and industrial action and a duty to act where a civilian may walk away. They decide under time pressure with incomplete information, and are then judged in calm rooms, sometimes years later, by people who know how it turned out. Critics warn of a “Ferguson Effect”, in which fear of legal exposure produces hesitation and reduces proactive policing. The empirical evidence for that effect is contested, but the underlying concern is not frivolous. A regime that punishes decisive action without regard to context can push people toward inaction. There is also a conceptual objection. Criminal law already uses the same offences for officers and civilians, civil law the same torts, and disciplinary codes are already more demanding than anything a private person faces. A police-only layer of liability risks the two-tier system Dicey feared, only inverted.
Conditions of Power and Special Liability are Different Things
The objection that a higher standard means special personal liability rests on a conflation worth pulling apart. There are two quite different ways the law could treat police differently. The first is to make the conditions of lawful power more demanding. The second is to expose the individual officer to liability that a civilian would not face for the same act.
The first does not offend Dicey at all. It is simply a matter of drawing the boundary of authorisation more tightly. If a statute provides that an officer may use force only where it is necessary and reasonable, then force beyond that line falls outside the authorisation, and the officer answers for it under the ordinary law of assault, exactly as a civilian would. Nothing special has been added to the officer’s liability. What has changed is the size of the zone within which the officer is justified. A stricter condition of lawful power is Dicey’s model working as designed, because it enlarges accountability by narrowing authority.
The second, special personal liability, is where the hesitation objection has real bite, and where the case for reform is weakest. Creating offences or torts that apply only to police, or lowering the threshold for personal civil liability, would attach consequences to the individual that the individual cannot control through the design of the system. The stronger reform agenda avoids that route. It asks for demanding conditions of lawful power and demanding processes for testing whether those conditions were met, while leaving the officer’s personal legal position what it always was.
That distinction also dissolves much of the argument about hindsight. A rigorous process can, and should, direct the reviewing body to ask what the officer knew and perceived at the time. That is a feature of a well-designed test of justification. It is not a reason to shield the review itself from independent scrutiny.
The Uneasy Middle Ground
Most common-law jurisdictions already sit between the two positions, and the legal materials show how differently they arrange the balance. In the United States, the constitutional test for force in an arrest or stop is objective reasonableness, judged from the perspective of a reasonable officer on the scene rather than with the vision of hindsight, as the Supreme Court held in Graham v Connor (1989). That is a standard sympathetic to the officer. On the civil side, the doctrine of qualified immunity, developed in Harlow v Fitzgerald (1982), shields officials from damages unless they violated clearly established law. In practice that can make redress against a police officer harder than against a private defendant.
In the United Kingdom, the difference lies in negligence. The Supreme Court in Michael v Chief Constable of South Wales Police (2015) confirmed that the police generally owe no private-law duty to protect individuals from harm by third parties, on public-policy grounds that trace back to Hill v Chief Constable of West Yorkshire (1987). Again, the law’s distinctive treatment of police runs in the institution’s favour.
Australia’s federal position is different in kind. Section 3ZC of the Crimes Act 1914 (Cth) provides that a person must not, in the course of arresting another, use more force than is necessary and reasonable, and it restricts conduct likely to cause death to circumstances where it is necessary to protect life or prevent serious injury. That is already a necessity condition on lawful power of the kind discussed above, and it sits within the ordinary law rather than outside it. The Australian question, then, is less whether the substantive standard is demanding enough than whether anyone can see it being applied.
Across all three, the live controversy is rarely whether police should be subject to distinctive rules. They already are. It is whether the existing distinctive rules cut in the right direction, and the record suggests that much of the distinctive treatment favours the officer. Some advocates point to the specialised code of military justice as a model, but the analogy illuminates less than it seems to, since a soldier does not ordinarily exercise coercive power over fellow citizens in their own streets.
What Section 40TF Permits
This is where the second question becomes decisive, and where precision matters. Section 40TF provides that the Commissioner may determine that no further action is to be taken on a conduct or practices issue if satisfied that one of a list of grounds applies. Some grounds concern timing and alternative remedies. The complainant knew of the conduct more than twelve months before complaining, appropriate action has already been taken, or the complainant has exercised, or could reasonably have exercised, a right to have the matter reviewed by a court or tribunal. Others concern the quality of the complaint. It is frivolous or vexatious, trivial, not made in good faith, or made by someone without sufficient interest. There is a ground for off-duty or private conduct that was lawful and reasonable, one for complaints by current or former AFP appointees about action already taken under the same Part, and a power to add conditions by regulation. Finally there is a residual ground, that further investigation is not warranted having regard to all the circumstances.
Only some of these are narrow. Whether a matter is trivial, whether action already taken was appropriate, whether it would have been reasonable to go to court, and whether investigation is warranted are all matters of judgment. The court-or-tribunal ground is worth noticing for complaints about force, since it invites the question of why a citizen should have to litigate before the institution examines its own officer.
The AFP disputes the way its figures are characterised. It says that after an Ombudsman recommendation, matters previously not reported, such as information deemed not to be a complaint after preliminary enquiries, have been counted as section 40TF decisions, which increased the number of formally recorded allegations from 2023. That is a fair point, and it means the headline proportion should be read with care. It does not answer the Ombudsman’s concern, which is about how the discretion is exercised. The Ombudsman has reported complaints finalised without relevant evidentiary material having been identified or reviewed, and failures to document clear reasons for decisions, and has warned that using the discretion too readily risks denying procedural fairness and deprives the AFP of opportunities for improvement. The AFP’s own guideline requires a decision to state its reason and the relevant 40TF subsection, so the standard exists. The concern is that in the cases the Ombudsman examined, it was not consistently met.
The objection, then, is not that the power exists. Every complaints system needs a filter. It is that a filter with several judgment-heavy grounds and a broad residual ground depends almost entirely on the quality of the reasons recorded, and those reasons can be checked externally only afterwards and in part. The Ombudsman’s oversight is real, but it works through periodic reviews of samples, and its 2023–24 report said the AFP had not implemented earlier recommendations and was concerned the problem persisted. A discretion that is tested only after the event, on a sample, by recommendation, is weaker than one tested at the point of decision.
Continuity and Change
It would overstate the case to say nothing has changed since 2009. The Australian Commission for Law Enforcement Integrity had then been operating for only a few years, and since 1 July 2023 its function has been carried out by the National Anti-Corruption Commission, with a broader mandate. Serious corruption issues involving the AFP now have an external destination that did not exist before ACLEI.
What has not obviously changed is narrower, and it is the front door. Conduct and practices issues under Part V of the AFP Act are still triaged first by the AFP’s own professional standards area, using a discretion that is overseen by the Ombudsman after the fact. The line from 2009 to now is therefore not a claim that the whole structure is unchanged. It is a claim that at the point where most complaints either enter or leave the system, the institution still makes the first decision about its own conduct, and that the statutory machinery around that decision has grown more elaborate than the public’s ability to see how it is used.
Why Transparency is the Test
A higher standard for testing police power means little if no one can see it applied. Standards are tested in their application, and application depends on visibility. Transparency does not mean publishing everything. Live investigations, informant safety and the privacy of complainants and witnesses are legitimate limits, but they justify narrow, reasoned exceptions rather than blanket opacity, and the burden of justifying an exception should rest on the institution claiming it. In practice this would mean published data on complaints received, investigated, substantiated and closed, with the reasons for closure. It would mean review that reaches individual decisions not to investigate, rather than only a sample after the fact. And it would mean reporting broken down by the communities affected, so that patterns can be seen rather than averaged away.
That last requirement matters in the present inquiry. The figures tabled showed that section 40TF was used to close 13 allegations of racist conduct without investigation, that eight were investigated but not established, and that 18 remain under investigation. Senator Lidia Thorpe told the inquiry the numbers were so light that she felt like lodging her own complaint, referring to an incident involving AFP officers at a protest in March 2023. The tabled figures cannot themselves show whether complaints are being under-reported. But it is a reasonable concern that people who expect a complaint to go nowhere will not make one, and that a system whose reasons cannot be seen gives them little cause to expect otherwise. Transparency is the only thing that could test that concern rather than leave it as an argument.
A Design Question
The deeper issue is not whether police are ordinary citizens. They are not, and the law has long recognised as much by granting them powers no citizen possesses. The issue is whether those powers come with duties of justification and review rigorous enough to match the authority they confer. That is a design question, not a slogan. It can be answered by tightening the conditions of lawful power, strengthening independent review, and requiring reasons, without creating special personal liability for individual officers and without abandoning the principle that an officer who acts outside lawful justification stands in the same dock as anyone else.
Transparency is what makes that design testable. Without it, a demanding standard is an aspiration no one can verify, and equality before the law is a promise no one can enforce. The office of constable was built to hold a difficult tension: original power exercised under personal responsibility, accountable to the law rather than to the government of the day. Whether contemporary practice still honours that design is the question the power differential forces into the open.
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Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.
© Bakchos, September 2026
