Administrative bungle leaves 1000 Victorian police officers wrongly sworn in

More than 1000 Victorian police officers have been carrying guns and issuing charges without proper authorisation, in a major graduation bungle that has left the force scrambling to properly swear in members.

The issue, stretching back eight years to July 2014, was made public on Thursday when Victoria Police’s Chief Commissioner Shane Patton revealed an “administrative error” had seen hundreds of officers sworn in by someone without the authority to do so.

Chief Commissioner Shane Patton and Police Minister Lisa Neville.Credit: Wayne Taylor

This means the officers did not have the proper authority to undertake tasks including entering people’s homes. However, the state government says it is working on retrospective legislation to protect the work they carried out.

About 1076 police officers, 157 protective service officers and 29 police custody officers are affected after improperly being sworn in by acting assistant commissioners.

Mr Patton said he became aware of the widespread issue last week, and both the Independent Broad-based Anti-corruption Commission and the Office of Public Prosecution were notified.

But just how many cases are affected remains unknown, he said.

Chief Commissioner Shane Patton explains how the officers were sworn in incorrectly.Credit: Wayne Taylor

“It’s been an oversight for over eight years,” Mr Patton said. “It’s unclear how many matters have been affected.”

As police and lawyers on Thursday considered the possible implications of the mistake, a prosecutor in the high-profile prosecution of a detective accused of sharing images and messages about former AFL coach Dani Laidley told Melbourne Magistrates Court the swearing-in bungle could affect the case.

Prosecutor Neill Hutton said checks were required to determine whether Detective Senior Sergeant Josh Chadwick – the lead investigator in the case against Detective Leading Senior Constable Murray Gentner – was one of the officers affected by the swearing-in error.

“If there’s an issue with the swearing-in of Detective Chadwick, that may be fatal to the prosecution case,” Mr Hutton told magistrate Samantha Poulter.

Mr Hutton said there was also a potential problem over the evidence of some police officers who had given evidence in the case, if it emerged they were not correctly sworn as officers. It was also possible that only one of the six charges against Detective Leading Senior Constable Gentner – misconduct by a public official – could “survive”.

The prosecutor said he and the accused detective’s lawyer, Christopher Carr, SC, had agreed they should continue hearing evidence in the contested hearing while they checked the investigator’s status, but asked Ms Poulter to defer making her verdict until the position was clarified.

Detective Leading Senior Constable Gentner, 43, has pleaded not guilty to misconduct in public office, accessing a police database without reasonable excuse, and four counts of disclosing police information without reasonable excuse.

But a police spokeswoman said on Thursday afternoon none of the officers involved were affected.

Police Minister Lisa Neville said the error came about when changes were made to the Victoria Police Act by the former government in 2013, meaning acting assistant commissioners needed to be appointed by a more senior officer, who had been delegated the authority to do so by the chief commissioner.

This meant acting assistant commissioners did not have the power to swear in new police, protective service and custody offices.

Ms Neville said to rectify the issue, the government would draft and introduce retrospective legislation during the next sitting week of Parliament in a fortnight’s time that should correct the problem and ensure the work of those officers isn’t affected.

She said the officers in question acted in good faith, there was no misconduct and they remained important members of Victoria Police.

“It’s not an ideal situation for us to be in, but I can assure [the public] we’re moving as quickly as possible to fix this issue,” Ms Neville said.

Liberty Victoria’s Michael Stanton.

Liberty Victoria president Michael Stanton said the issue was significant. While retrospective legislation would realistically resolve the problem, he said that in itself was an extraordinary measure.

“It’s effectively turning back time and making something that wasn’t lawful, lawful,” Mr Stanton said.

He predicted there would be further delays to court cases because of the time involved in notifying people affected.

“There’s been massive delays due to COVID, and now some of these contested hearings are going to be adjourned, pending retrospective legislation and disclosure issues,” Mr Stanton said.

“People have been waiting a long time to get their cases on, and it doesn’t only affect accused people, but complainants and other witnesses.”

A similar issue occurred in 2011 in Victoria when police admitted they had not correctly sworn on (either by swearing on a Bible or via affirmation) thousands of affidavits to facilitate search warrants.

The Baillieu government pushed through retrospective laws to salvage more than 6000 prosecutions a year later.

On Thursday morning, the force began virtually swearing-in affected officers. More than 200 were sworn in by 9am, police sources said.

Most of those who need to be sworn in are expected to go through the process in coming days.

The error has put a cloud over potentially thousands of criminal matters currently before or already finalised in the court system.

Both Mr Patton and Ms Neville maintain they’re confident the legislation, once passed, will cover all historic matters and ensure the affected officers’ work, including criminal charges, was validated.

‘It’s not an ideal situation for us to be in, but I can assure [the public] we’re moving as quickly as possible to fix this issue.’

Police Minister Lisa Neville

But Mr Patton said if anyone wanted to contest their charges, matters would be adjourned in court until the legislation was finalised “because there are a number of arguable points of law about the whole issue”.

Opposition police spokesman Brad Battin said the Coalition would support legislation.

Premier Daniel Andrews said on Thursday morning he believed there would be bipartisan support to remedy the error.

“We have to give our police every support that we can. It’s not just resources and numbers … it’s also about certainty, and that’s what I think the Parliament will deliver very soon.”

In a statement, the state’s Police Association said it was aware of the “unintended and highly technical administrative error”.

“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,” it said.

Mr Patton said the potential issue was first raised in February last year at a court hearing into a major drug investigation when the authority of an acting assistant commissioner to make directions was raised.

Mr Patton said an audit was launched, though at that stage police believed the issue was confined to that particular case.

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