By Terry Flanders* CPP – first published by CLA
Q: ‘What does production of the Boeing 737 MAX 8 have in common with the soon to be introduced Queensland Police Service Administration (Discipline Reform) and Other Legislation Amendment Bill 2019’?
A: Both products entered service with questionable review processes. Both organisations re-imagined ‘facts’, most likely to avoid inherent problem(s) associated with each of the products.
In October 2018 a Lion Air Boeing 737 MAX 8 crashed killing 187 people. In March 2019 an Ethiopian Airline Boeing MAX 8 crashed killing 157 people. Inquests have yet to determine the formal cause of each crash.
Boeing produced the 737 MAX 8 commercial passenger jet claiming it would provide fuel savings. During production, the American Federal Aviation Administration (FAA) shared their auditing processes as some ‘safety approvals of the 737 MAX were done by Boeing staff’. (Note: this is not unusual in the aviation industry).
To increase fuel savings, after the airframe original design, the engines were apparently moved forward, creating additional upward force. Boeing installed a software patch to rectify the issue, a program called Manoeuvring Characteristics Augmentation System (MCAS). Adding the MCAS program apparently wasn’t clearly communicated to pilots. The MCAS may be identified as the direct cause of both crashes…but other direct and indirect causes may include Boeing’s organisational culture, striving for cost savings, poor communication and/or consultation and a lack of independent review processes.
The Queensland Parliamentary report into Discipline Reform heralded the three-week public comment period which closed on 11 March 2019 as indicating ‘widespread stakeholder support’ (Para 1.2.2) as well as years of consultative input.
Expelled hot air
Two statements. Firstly, I am not, nor have I ever been, against open and independent investigations into allegations of corruption by government officials, including police. Secondly, having vicariously experienced police and political corruption investigations, I know that talk is little more than expelled hot air. Also, reports that begin by extolling government processes are likely to turn out to be another form of carbon sink saving us from more greenhouse gas emissions.
An old-time crime analyst once told me that analysed data provides intelligence and only with intelligence should we move forward. Public data in the report indicates that more than 900 individuals and organisations were contacted to provide a response within the three-week period. Queensland Police Service (QPS) members filtered some responses, providing the committee with themed concerns.
In total, from the pool of more than 900 contacted, the Report identifies 11 organisations including the QPS, two police unions and the Crime and Corruption Commission (CCC). Two non-police agencies listed as providing a submission are the Queensland Council of Civil Liberties (QCCL) and Aboriginal and Torres Strait Islander Legal Service (ATSILS). Both the QCCL and ATSILS appear to have agreed with all aspects of the Bill as the report records no responses made by those agencies against any aspect of the Bill.
In my world, what is missing is sometimes more troubling than what is in plain sight. The Queensland Parliament website records four ‘download’ submissions only. The download list does not include submissions from QCCL or ATSILS.
A reason put forward in the report for non-disclosure of submissions is to protect confidentiality. I’m left to wonder why the QCCL and ATSILS would need their confidentiality protected.
Could it be that the report is mistaken and that the QCCL and ATSILS were not contacted or did not make a submission? Is this another example of information being re-imagined? Arguably Boeing also re-imagined facts when the company made the claim to reporters shortly after the Lion Air crash that it had “been developing a flight control software enhancement for the 737 MAX, designed to make an already safe aircraft even safer“. To be fair to Boeing, it is a common practice for corporations to protect their reputations by re-imagining facts. This is also true for governments.
Boeing has a problem arguably of its own making. QPS has a problem not adequately resolved since the Fitzgerald Inquiry Reforms in 1997. The problem with alleged police corruption is that the same people have been recycling ‘solutions’ for decades, solutions that do not seem to ever correct the problem.
The Qld Bill exhibits many of the qualities of the NSW Law Enforcement Conduct Commission Act 2016 (LECC Act). The LECC Act separates corrupt investigations into categories referring lower level allegations of police corruption back to the NSW Police (NSWP). At that level, NSWP managers have options to investigate or not investigate complaints. In NSW should an officer make an allegation of corruption about another officer, that allegation will most likely not be investigated under the LECC Act but will be referred to NSWP managers at the police station where the complainant officer works.
Police investigating complaints at the local level against other police they work with is likely to result in a finding that there is insufficient material to substantiate the allegation…or a finding that leads to action against the whistle-blower. In such a closed system, the perception of corruption is ever-present, as is capacity for furtherance of corrupt activities.
The Qld Bill identifies that the CCC will only investigate allegations of “serious” levels of corruption (Division 2: Corrupt conduct Clause 13 Purpose of div 2) but does not define or provide examples of what serious levels of corruption are. The Bill (Division 4: Dealing with complaints and other matters) returns the investigation of “lesser” corrupt activities back to the QPS.
It is unclear, firstly, how ambiguity in the Bill will be interpreted by QPS managers investigating internal complaints of corruption. For example; how will QPS maintain consistency when selecting and applying performance management options in disciplinary matters given the size of the QPS organisation, and the geographic spread of police stations? Performance management options include fines, demotions, rehabilitation and terminations. Will senior officers be given comprehensive training in the changes to the system?
Another area of concern is how will police whistle-blowers be protected if they themselves are the subject of a corruption allegation arising from the disclosure they make. Even if not the subject of an action, how will a whistle-blower be treated in the “bubble” that is a police station or police unit/group?
Triage weeds out possibilities
Based on my experience with the NSW system, police managers investigating allegations against police triage the facts based on their perspective of what is relevant.
Information that supports the investigators view is given weight: information that does not support that view is discarded or arbitrarily considered irrelevant. In operation, dissecting information enables police managers to re-imagine an event that has been, after the triage process, crafted to support a pre-determined outcome. In such instances, police are not only investigators or fact finders, they also take on a judicial role in deciding what facts are relevant and what are not.
In practice, senior police reviewing investigative findings will not read all the material, but limit themselves, like any other executive, to summaries based on ‘triaged’ facts. The very process creates a problem, as people who are not acting maliciously are imperfect. Everyone suffers, to some degree, from cognitive bias, which is the brain’s attempt to simplify information processing.
The one way to reduce in-house bias or human error is for external and independent reviews as well as an external tribunal to hear appeals.
A recent case study supporting this argument is the way QPS dealt with former officer Mr Rick Flori as reported by the ABC. The timeliness of the Flori matter may also explain any haste the Queensland Government had in completing the review of the Bill. There was certainly a need for the government to act but was the shortened external consultation program impacted by reputational considerations?
I note at the QPS level the operators of the Bill will be the same operators under the old system. Did the action(s) of police who charged Mr Flori impair public confidence in public administration? Does Mr Flori’s matter represent a serious and systemic corruption issue? Will systemic organisationally sanctioned bullying and harassment, crimes under work health and safety legislation, be considered corruption under the Bill?
Will the police who investigated and charged Mr Flori now be charged with corruption offences under the new Bill. Should any investigation of the Flori matter be conducted by CCC or should the investigation remain with QPS? Or will it all be ignored.
Another aspect in the Bill is the right of appeal. A major right of appeal element is the identification of ‘new’ information (Report p24). Counter-intuitively, the more thoroughly the respondent argues their case, the more information is made available and the less likely ‘new’ information will come to light should a pre-determined decision be supported by triaged facts. This is one way to negate ‘safeguards’ in the Bill. Therefore, as the Bill has similar design features as the LECC Act, it will most likely, in practice, produce similar outcomes.
Further ambiguity in the operation of the Bill is the word ‘rehabilitation’, which relates to a performance management option open to be used against officer’s subject of a complaint. Emergency service workers suffer from higher rates of mental health issues, including post-traumatic stress disorder (PTSD). PTSD sufferers may not know they have PTSD. PTSD can result in excessive drinking, domestic violence, hedonism and interpersonal workplace conflict. They are all forms of misbehaviour that may be found to be, or may lead to, corruption.
Rehabilitation is listed as a performance management option in the Bill (Report Para: 3.1), yet there is no definition of this term. An indicator that mental health rehabilitation will not be included as part of the QPS performance management process can be found in the Queensland Government’s response to a 2018 Senate Inquiry into mental health in first responders.
In their submission the Queensland Government argued that mental health in the Queensland first responder ranks was on par with that of ordinary workers. This argument was not accepted by other organisations who also made submissions. To be fair, the QPS in making their submission seemed to contradict the Government’s position – a contradiction supported not only by other contributors to the Senate Inquiry but by separate sources.
The first was a report prepared by QPS titled ‘Managing the mental health of Queensland Police employees 2017–18’. The second source was research from Safe Work Australia (Figure 1). Is the Queensland Government response to mental health issues in the ranks of first responders another example of ambiguity at work or perhaps another case of facts being re-imagined?
Figure 1: Safe Work Australia 2015 Work Related Mental Disorders Profile (P. 3)
What is a better way forward? Crime Prevention Through Environmental Design (CPTED) is well-recognised by governments as a foundation tool for constructing social environments where communities can safely gather and interact. A cornerstone of CPTED is the concept of natural surveillance. Basically, if you can see people around you and they can see you, you are less likely to be the victim of crime. I know from my experience as a former police officer and now security consultant that CPTED principles work. Crime and corruption flourish in dark places.
If natural surveillance can be applied to the built environment in order to keep the public safe, the concept of natural surveillance should be able to be applied to government processes in order to keep the public safe. Just like the Boeing 737 MAX 8, many of the causal factors that relate to machinery failures can be attributed to failures in human systems operating in the background.
An example of natural surveillance at work in government is transparency. For all the Bill appears to offer, transparency is not guaranteed and failure is inferred.
Under the laws of thermodynamics, a closed system is a dying system. Add ambiguity, plus lack of transparency, and the result is that you have a recipe for continued corruption as argued by the Victorian Office of Police Integrity when they reviewed the Victoria Police disciplinary system in 2007.
There are no problems, only people without solutions. It’s time to engage new independent stakeholders with skills and experience in areas like psychology, labour laws, civil liberties, health and safety and criminology, given that corruption is a crime. Police work in a system that is legislated by government: any failings with the police system is a failure at the government level. Allowing a three-week window for other than principle in-house stakeholders to respond to the Bill, with the very real likelihood that not all identified external stakeholders were contacted, is not the road to reduce corruption.
In closing, the Queensland Government missed an opportunity to take a step forward and shine a light on corruption which should never be supported actively or tacitly. Instead, they may have designed an ambiguous system of work that will continue to telegraph the wrong message to serving police, whistle-blowers and the community. This new system may leave the proverbial foxes in charge of part of the hen house. The test will be how government agencies use the new Bill to action the Flori matter, should Mr Flori make a formal complaint.
The ‘Butterfly Effect’ argues that big things always have small beginnings. If policing is the ground zero of many civil liberties concerns involving the judicial system, then ensuring police civil liberties are protected by a transparent, honest and fair system may start to improve the civil liberties of all stakeholders.
* Terry Flanders is a former NSW Police Detective Sergeant with 23 years experience as a police officer. He currently operates a safety and security consultancy service called ‘Investigation Systems’ with a focus on workplace violence. He is a member of the American Society for Industrial Security (ASIS), a Certified Protection Professional (CPP) and a Fellow of the Safety Institute of Australia (SIA), Certified Generalist OHS Professional (CGOHSP)
- https://www.parliament.qld.gov.au/work-of-committees/committees/EGC/inquiries/current-inquiries/PoliceSADROLA2019 ↑
- Report No. 24, 56 Parliament Economics and Governance Committee April 2019 ↑
- https://www.abc.net.au/news/2018-03-18/qld-police-misconduct-whistleblower-rick-flori/9519104 ↑
- 2019 ‘The Senate Education and Employment References Committee The people behind 000: mental health of our first responders’ (Para: 2.55) ↑
- 2019 ‘The Senate Education and Employment References Committee The people behind 000: mental health of our first responders’ (Para: 3.52) ↑
- Data is based on settled Workers Compensation Claims only and does not include WA police statistics. ↑
- ‘A Fair and Effective Victoria Police Discipline System’ (2007) Office of Police Integrity Victoria. ↑