The Victorian government is urgently drafting retrospective legislation to address an administrative error which has resulted in more than 1,000 police officers being invalidly sworn in over the past eight years.
The error has affected 1,076 police officers as well as 157 protective services officers and up to 29 police custody officers, all of whom have been performing their duties without having the legal powers to do so.
Victoria Police Chief Commissioner Shane Patton said the "administrative oversight" arose after changes in the law, which took effect in July 2014, meant deputy commissioners could no longer appoint colleagues to the position of acting assistant commissioner, without the formal authorisation of the chief commissioner.
"We've identified that no such delegation has been put in place then," he said.
"So what that means is that on a number of occasions since 2014 to around September last year, acting assistant commissioners on occasions have sworn in police officers and protective services officers without having the valid powers to do so."
Chief Commissioner Patton said around 660 officers who were rostered on today would be re-sworn before performing any duties and the rest would be re-sworn as soon as possible.
He said it was not clear who was to blame for failing to identify the issue in 2014 and said the force discovered the bungle after questions about the power of an assistant commissioner and their authority were raised in a court hearing in February last year.
He said the number of cases potentially affected was still not clear, and noted there was unlikely to be any issue in cases where an affected officer was accompanied by a legitimately sworn-in officer.
He said the Director of Public Prosecutions and the Independent Broad-based Anti-corruption Commission (IBAC) had been notified.
Victoria Police expects the majority of impacted police to be re-sworn in by the weekend, a media release stated.
It stated that unless there are exceptional circumstances, all officers will be re-sworn in on their next shift and can begin duties afterwards.
Legal scramble to retrospectively validate officers' actions
Police Minister Lisa Neville said the government was urgently drafting retrospective laws to ensure criminal cases involving the affected officers could not be legally challenged.
"All these officers have acted in good faith, there has not been any deliberate misconduct here … and they are very much still members of Victoria Police," she said.
She said the government first learnt of the issue on Friday night and had spent the past few days seeking legal advice on the implications of the hundreds of officers carrying out their duties without the valid power to do so.
Ms Neville said the government would present legislation at the next sitting of Parliament to "rectify retrospectively these mis-delegations in order to ensure that all decisions that have been made prior to the re-swearing in have validity going forward," she said.
She said that was required to "ensure that criminals don't get away with crimes because of an administrative problem that we've had over the last eight years".
"The advice that I have is that if we do this, it's passed and it's done retrospectively it won't undermine any criminal or other actions undertaken by these police officers," she said.
Shadow Police Minister Brad Battin said the opposition would support the government's legislation.
"Our absolute priority is that Victoria Police are protected. We will work and do whatever it takes if it's with government to ensure they are protected," he said.
"If the government puts forward a piece of legislation that is solely designed to fix this error and to protect Victoria Police, with nothing else attached, we will support it."
The government plans to introduce the legislation in the next sitting of Parliament in a fortnight and get it through both houses within a week.
Chief Commissioner Patton said he was "very confident" the legislation would address the issue and police would move to adjourn any challenges launched on the basis of the error in the meantime.
The Police Association Victoria said it was aware of the "unintended and highly technical administrative error that has led to issues over the legitimacy of the sworn status of around 1,200 of our members".
"We understand that Victoria Police will move decisively and quickly to remedy this situation so that our members can get back to doing what they do best, looking after the community," the union said in a statement.
"We will support the members impacted in any way we can and ensure that their legal and industrial rights are protected, as this issue is rectified."
Criminal lawyer expresses doubt retrospective legislation will fix the issue
Criminal lawyer David Galbally QC said the error was "just extraordinary".
"It should never have occurred and I'm most surprised to think that it's happened in our modern era when these sorts of matters should all be attended to," he said.
Mr Galbally said he did not necessarily share the government's view that legislation could retrospectively validate the past policing activities of officers who were never properly sworn in.
"I'm not sure how you can retrospectively pass legislation to make something that's illegal, or conduct that's illegal, legal," he said.
"I don't think you can do that and I think certainly such steps will be open to challenge and it'll be very interesting to see what our courts say when it comes before the courts."
