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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Police Complaints and Discipline
Bill 2016
A BILL FOR
An Act to provide for the resolution of complaints made in respect of
police officers and certain other persons, to make provision in relation to
disciplinary proceedings in respect of police officers and other persons, to
repeal the
Police
(Complaints and Disciplinary Proceedings) Act 1985
, to make related amendments to other Acts and for other
purposes.
Contents
5Separate Internal
Investigation Section to be constituted
9Complainant to be kept informed of progress of
complaint
Part 2—Making
complaints and reports
Division 1—Complaints
and reports about conduct of police officers
10Making a complaint
about conduct of police officer
11Right of persons in custody to make
complaint
12Police officers to
report certain conduct of other police officers
13Action to be taken on
receipt of complaint or report
Division 2—Assessment of complaints
and reports
14Assessment of
complaints and reports by IIS
15Commissioner may decline to act in relation to
certain complaints
Part 3—Certain
matters to be resolved by management resolution
17Commissioner and OPI may
enter arrangement in relation to operation of Part
18Dealing with matters by way
of management resolution
19Reporting results of management resolution of
matter
20Monitoring of management resolutions under
Part
Part 4—Formal
proceedings for breach of discipline
21Investigations of complaints and reports by
IIS
22Notice of allegation to
be issued in respect of breaches of discipline
23Suspension where charge of offence or alleged
breach of discipline
24Police officer may
admit or deny allegations
25Allegations to be heard and determined by
Tribunal
26Commissioner may sanction
police officer following offence or breach of discipline
Part 5—Oversight of complaints and
reports by OPI etc
27OPI may direct Commissioner etc in relation to
handling of complaints and reports
28Reassessment of certain complaints and reports
by OPI
29OPI may refer
complaints and reports to ICAC
30ICAC may investigate
matters under section
31Annual report on sanctions imposed for
breaches of discipline
Part 7—Police Disciplinary
Tribunal
33Constitution of Police Disciplinary
Tribunal
34Registrar and deputy registrar
37Protection of Tribunal, counsel and
witnesses
38Reference of question of law
41Obstruction of complaint or
report
42False or misleading statements
44Use of evidence or information obtained under
other Acts etc
45Limitation on requirement to divulge
information
47Publication of
information and evidence
Schedule 1—Related amendments, repeal
and transitional provisions
Part 1—Amendment of Child Sex
Offenders Registration Act 2006
1Amendment of section 63—Registrable
offender's rights in relation to register
2Amendment of section 67—Confidentiality
of information
3Amendment of Schedule 2—Information
disclosure principles
Part 2—Amendment of Correctional
Services Act 1982
4Amendment of section 33—Prisoners'
mail
Part 3—Amendment of Criminal Law
(Forensic Procedures) Act 2007
5Amendment of section 45—Access to and use
of DNA database system
6Amendment of section
50—Confidentiality
7Amendment of section 57—Compliance
audits
Part 4—Amendment of Freedom of
Information Act 1991
8Amendment of section 39—External
review
9Amendment of section 40—Appeal to
District Court
10Amendment of section 53—Fees and
charges
11Amendment of section 54A—Training to be
provided to agencies
12Amendment of Schedule 2—Exempt
agencies
Part 5—Amendment of Independent
Commissioner Against Corruption Act 2012
13Amendment of section
4—Interpretation
14Amendment of section 17—Functions and
objectives
15Amendment of section 18—Organisational
structure
16Amendment of section 24—Action that may
be taken
17Amendment of section 45—Commissioner's
annual report
18Amendment of section 51—Arrangements
for provision of information by Commissioner of Police
Part 6—Amendment of Listening and
Surveillance Devices Act 1972
19Amendment of section
3—Interpretation
Part 7—Amendment of Parliamentary
Committees Act 1991
20Amendment of section 15O—Functions of
Committee
Part 8—Amendment
of Police Act 1998
21Amendment of section
3—Interpretation
22Substitution of heading to Part
6
25Amendment of section 70—Suspension or
revocation of suspension under Act or regulations
Part 9—Amendment of Protective
Security Act 2007
26Amendment of section
3—Interpretation
27Amendment of section 24—Report and
investigation of breach of Code
28Amendment of section 25—Charge for
breach of Code
29Amendment of section 28—Management
resolution of minor breaches of Code
30Amendment of section 29—Review of
management resolution
31Amendment of section 30—Commissioner to
oversee inquiries
Part 5A—Protective Security
Officers Disciplinary Tribunal
29Constitution of
Protective Security Officers Disciplinary Tribunal
30Registrar and
deputy registrar
33Protection of
Tribunal, counsel and witnesses
34Reference of
question of law
Part 10—Amendment of Shop Theft
(Alternative Enforcement) Act 2000
34Amendment of section
17—Confidentiality
Part 11—Amendment of
Telecommunications (Interception) Act 2012
35Amendment of section
3—Interpretation
Part 12—Amendment of Terrorism
(Preventative Detention) Act 2005
36Amendment of section
3—Interpretation
37Amendment of section 10—Making of
preventative detention order
38Amendment of section 12—Extension of
preventative detention order
41Amendment of section 15—Revocation of
preventative detention order or prohibited contact order
36Contacting
Office for Public Integrity
43Amendment of section 37—Contacting
lawyer
44Amendment of section 41—Disclosure
offences
45Amendment of section 42—Questioning of
person prohibited while person is detained
46Amendment of section 48—Annual
report
Part 13—Amendment of
Whistleblowers Protection Act 1993
48Amendment of section 5—Immunity for
appropriate disclosures of public interest information
Part 14—Amendment of Witness
Protection Act 1996
49Amendment of section 10—Memorandum of
understanding
50Amendment of section 12—Access to
register
51Amendment of section
21—Offences
52Amendment of section 23—Commissioner
and members not to be required to disclose information
Part 15—Repeal of Police
(Complaints and Disciplinary Proceedings) Act 1985
53Repeal of Police (Complaints and Disciplinary
Proceedings) Act 1985
Part 16—Transitional
provisions
54Certain orders of Commissioner etc under
repealed Act taken to be valid
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Police Complaints and Discipline
Act 2016.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
breach of discipline means conduct that contravenes this Act
or breaches the code of conduct and that may be the subject of a notice of
allegation under this Act;
close relative of a person means a spouse, domestic partner,
parent or child of the person;
code of conduct or Code—see
section 7
;
complaint means a complaint made under
section 10
;
complaint management system—means the complaint
management system established under
section 6
;
corruption in public administration has the same meaning as
in the
Independent
Commissioner Against Corruption Act 2012
;
Independent Commissioner Against Corruption or
ICAC means the Commissioner under the
Independent
Commissioner Against Corruption Act 2012
;
Internal Investigation Section or IIS means the
section of the police force constituted in accordance with
section 5
;
maladministration in public administration has the same
meaning as in the
Independent
Commissioner Against Corruption Act 2012
;
misconduct in public administration has the same meaning as
in the
Independent
Commissioner Against Corruption Act 2012
;
notice of allegation—see
section 22(1)
;
Office for Public Integrity or OPI means the
Office for Public Integrity under the
Independent
Commissioner Against Corruption Act 2012
;
police officer means a person who is—
(a) a member of SA Police; or
(b) a police cadet; or
(c) a special constable;
police public servant means a person (not being a police
officer) employed or performing duties in an administrative unit of the Public
Service of which the Commissioner is the Chief Executive;
party, to proceedings before the Tribunal, means the
Commissioner and the police officer to whom the proceedings relate;
report means a report made under
section 12
;
resolution officer—see
section 18(1)
;
Tribunal means the Police Disciplinary Tribunal.
(2) In this Act, the following terms or phrases have the same meaning as
in the
Police
Act 1998
:
(a) Commissioner;
(b) member of SA Police;
(c) police cadet;
(d) SA Police;
(e) special constable.
(3) For the purposes of this Act, a reference to the investigation of a
matter will be taken to include a reference to the further investigation of the
matter.
(1) This Act is in addition to, and does not derogate from, the
Independent
Commissioner Against Corruption Act 2012
.
(2) This Act is in addition to, and does not derogate from, the
Police
Act 1998
.
5—Separate
Internal Investigation Section to be constituted
(1) The Commissioner must ensure that a separate section (the
Internal Investigation Section or IIS) is
constituted within SA Police to carry out investigations under this Act in
relation to the conduct of police officers.
(2) In addition to carrying out investigations under this Act, the IIS may
carry out such other investigations in relation to the conduct of police
officers as may be required by the Commissioner.
(3) The officer in charge of the IIS is entitled to report directly to the
Commissioner on any matter relating to the IIS or the performance of its
functions.
(4) If a member of SA Police serving in the IIS is able to perform duties
unrelated to the operation of this Act without unduly interfering with the
duties or functions of the IIS, he or she may be directed to do so by the
Commissioner.
(5) For the purposes of this Act, a reference to a member of the
IIS will be taken to be a reference to a member of SA Police serving in
the IIS.
(1) The Commissioner must establish a system to record information
relating to making, assessment, investigation and resolution of complaints and
reports made under this Act (the complaint management
system).
(2) The complaint management system—
(a) must, in relation to each complaint or report entered on the system,
contain such information as may be required by or under this Act; and
(b) must comply with any requirements set out in the
regulations.
(3) The Commissioner must ensure that the ICAC and the OPI have direct and
unrestricted access to the complaint management system for the purposes of this
Act and the
Independent
Commissioner Against Corruption Act 2012
.
(4) The regulations may make further provision in relation to the
complaint management system (including, to avoid doubt, limiting access to the
system by police officers).
(1) The Governor
may, by regulation, establish a code of conduct for the maintenance of
professional standards by police officers.
(2) Without limiting the generality of
subsection (1)
, a code of conduct may include provisions relating to—
(a) the performance of duties; and
(b) corrupt, improper or discreditable behaviour (including criminal
conduct under foreign law); and
(c) drug and alcohol testing of members of SA Police and police
cadets; and
(d) conduct towards other police officers; and
(e) standards of personal behaviour or dress; and
(f) relations with the public or particular groups or organisations;
and
(g) the use of official information or resources; and
(h) public comment; and
(i) any other matter that the Governor considers relevant to the
maintenance of professional standards.
The functions of the OPI under this Act are—
(a) to oversee the assessment and investigation of complaints and reports
relating to police officers; and
(b) to oversee the operation and enforcement of this Act; and
(c) to refer certain complaints and reports to the ICAC in accordance with
this Act and the
Independent
Commissioner Against Corruption Act 2012
; and
(d) such other functions as may be assigned to the OPI under this
Act.
9—Complainant
to be kept informed of progress of complaint
The Commissioner must, in accordance with the requirements set out in the
regulations, cause the complainant in relation to each complaint to be informed
of the progress and resolution of his or her complaint.
Part 2—Making
complaints and reports
Division 1—Complaints
and reports about conduct of police officers
10—Making
a complaint about conduct of police officer
(1) A person may make a complaint about the conduct of a police officer in
accordance with this section.
(2) However, a complaint cannot be made under this section in relation to
the employment, or terms or conditions of employment, of police
officers.
(3) A complaint may be made by, or on behalf of, an aggrieved person
to—
(a) a police officer (not being a police officer to whom the complaint
relates); or
(b) a police public servant; or
(c) the OPI,
and may, to avoid doubt, be made whether or not the police officer to whom
the complaint relates is identified by the complainant.
(4) A person wishing to make a complaint—
(a) must be advised by the person or body to whom the complaint is to be
made that the complaint may be made in writing or orally; and
(b) if the complainant wishes to make the complaint in writing, must, at
his or her request, be provided with the materials necessary to do so.
(5) In the case of a complaint made orally, the person or body to whom the
complaint is made must, as soon as is reasonably practicable (but in any event
within 48 hours) after the complaint is made, reduce the complaint to writing in
accordance with any requirements set out in the regulations for the purposes of
this subsection.
(6) Without limiting any other provision of this Act, the IIS or the OPI
may require a complaint made orally to be verified by the complainant in
writing.
11—Right
of persons in custody to make complaint
(1) If a person
detained in custody wishes to make a complaint about the conduct of a police
officer, any person performing duties in connection with the detention of the
person must, at the request of the person, take all reasonable steps to ensure
that the person can make a complaint under
section 10
.
(2) A request referred to in
subsection (1)
must be complied with as soon as is reasonably practicable (but without
there being any obligation to interrupt the carrying out of any other lawful
procedure or function).
12—Police
officers to report certain conduct of other police officers
(1) Without
limiting any other provision of this or any other Act, a police officer who
suspects on reasonable grounds that another police officer has engaged in
conduct that constitutes corruption, misconduct or maladministration in public
administration must report that suspicion in accordance with this
section.
(2) A report—
(a) must be made to the IIS or the OPI as soon as is reasonably
practicable (but in any event within 7 days) after the police officer forms the
suspicion; and
(b) must be made in a manner and form determined by the IIS or the OPI (as
the case requires); and
(c) must comply with the requirements determined by the Commissioner and
approved by the ICAC.
(3) A police officer who, without reasonable excuse, refuses or fails to
comply with
subsection (1)
may be dealt with under this Act for a breach of discipline.
13—Action
to be taken on receipt of complaint or report
(1) A police officer or police public servant to whom a complaint is made
must, as soon as is reasonably practicable (but in any event within 3 days)
after the complaint is made, refer the complaint to the IIS in accordance with
this section.
(2) Subject to this
Act, the OPI must, as soon as is reasonably practicable (but in any event within
3 days) after receiving a complaint or report, refer the complaint or report to
the IIS in accordance with this section.
(3) The OPI need not refer a complaint or report to the IIS if the
complaint or report is, or is to be, referred to the ICAC under
section 29
.
(4) A referral under this section must comply with any requirements
determined by the Commissioner and approved by the ICAC.
(5) The officer in charge of the IIS must, as soon as is reasonably
practicable (but in any event within 7 days) after receiving a complaint or
report under this section, cause the information required by the regulations in
respect of the complaint or report to be recorded on the complaint management
system.
Division 2—Assessment
of complaints and reports
14—Assessment
of complaints and reports by IIS
(1) Each complaint
or report referred to the IIS under this Act must be assessed as to
whether—
(a) it raises a potential issue of corruption in public administration
that could be the subject of a prosecution; or
(b) it raises a potential issue of misconduct or maladministration in
public administration; or
(c) it raises some other issue that should, in the opinion of the officer
in charge of the IIS, be referred to the OPI,
and recommendations must be made to the OPI accordingly.
(2)
Subsection (1)
does not apply to a particular complaint or report if—
(a) the conduct that is the subject of the complaint or report is being,
or has previously been, assessed by the IIS, the OPI or the ICAC; or
(b) the conduct that is the subject of the complaint or report has been
previously dealt with under this Act or the
Police
(Complaints and Disciplinary Proceedings) Act 1985
; or
(c) the matter raised in the complaint or report is, in the opinion of the
officer in charge of the IIS, trivial; or
(d) the complaint or report is, in the opinion of the officer in charge of
the IIS, frivolous or vexatious or not made in good faith; or
(e) in the case of a complaint—having regard to all the
circumstances of the case, an investigation of the complaint is unnecessary or
unjustifiable.
(3) Subject to this Act, an assessment under this section may be conducted
in such manner as the officer in charge of the IIS thinks fit.
15—Commissioner
may decline to act in relation to certain complaints
The Commissioner may decline to take further action in respect of a
particular complaint or report if—
(a) the conduct that is the subject of the complaint or report has been
previously dealt with under this Act, the
Police
(Complaints and Disciplinary Proceedings) Act 1985
or the
Independent
Commissioner Against Corruption Act 2012
; or
(b) the matter raised in the complaint or report is, in the opinion of the
Commissioner, trivial; or
(c) the complaint or report is, in the opinion of the Commissioner,
frivolous or vexatious or not made in good faith; or
(d) in the case of a complaint—having regard to all the
circumstances of the case, the Commissioner is of the opinion that an
investigation of the complaint is unnecessary or unjustifiable (including, to
avoid doubt, where the alleged conduct of the police officer concerned is not
sufficiently related to the exercise, performance or discharge (or purported
exercise, performance or discharge) of his or her official powers, functions or
duties).
Part 3—Certain
matters to be resolved by management resolution
(1) This Part
applies to matters of the following kinds:
(a) a complaint or report determined by the Commissioner to be a complaint
or report that may be dealt with under this Part;
(b) an allegation relating to conduct of a police officer of a kind
determined by the Commissioner to be conduct that may be dealt with under this
Part.
(2) The Commissioner may vary or revoke a determination under this
section.
(3) On making or varying a determination under this section, the
Commissioner must submit the determination or variation (as the case requires)
to the OPI for approval.
(4) A determination, or variation of a determination, has effect from the
day on which it is approved by the OPI.
(5) The Minister
must cause notice of each determination, and each variation of a determination,
to be tabled before both Houses of Parliament within 15 sitting days after the
day on which it is approved.
17—Commissioner
and OPI may enter arrangement in relation to operation of
Part
(1) The Commissioner and the OPI may enter into an arrangement under this
section in relation to—
(a) the kinds of complaints, reports and conduct that should, or should
not, be the subject of a determination under
section 16
; and
(b) the procedures for dealing with matters under this Part (including, to
avoid doubt, making provision for the conciliation of complaints); and
(c) any other matter that is, in the opinion of the Commissioner or the
OPI, reasonably required to give effect to this Part.
(2) The Commissioner must, in respect of the operation of this Part, have
regard to, and seek to give effect to, the following principles:
(a) the purpose of a management resolution under this Part is to avoid
formal disciplinary proceedings by dealing with the matter as a question of
educating, and improving the future conduct of, the police officer
concerned;
(b) management resolution of matters under this Part is to be conducted as
expeditiously as possible and without undue formality.
(3) The Commissioner and police officers must, in relation to a matter
dealt with under this Part, have regard to, and seek to give effect to, an
arrangement entered into under this section.
18—Dealing
with matters by way of management resolution
(1) A matter to which
this Part applies is to be dealt with by the Commissioner causing the matter to
be referred to a suitable member of SA Police (the resolution
officer) for resolution in accordance with this Part (including any
arrangement entered into under
section 17
).
(2) Without limiting
subsection (1)
, the resolution officer must ensure that—
(a) the police officer concerned is informed of the complaint, report or
allegation made against him or her; and
(b) the police officer is given the opportunity to inform the resolution
officer of any information the police officer thinks relevant in respect of the
matter; and
(c) he or she contacts the person who made the complaint, report or
allegation and—
(i) explains to the person that the matter is to be resolved under this
Part (including an explanation of the processes involved and possible outcomes);
and
(ii) gives him or her the opportunity to inform the resolution officer of
any further information he or she thinks relevant in respect of the
matter.
(3) If—
(a) the resolution officer is of the opinion that there would be a benefit
in undertaking conciliation between the person who made the relevant complaint
or allegation and SA Police; and
(b) the person agrees to undertake conciliation,
the resolution officer must attempt to resolve the matter by way of
conciliation.
(4) Without limiting
the kinds of action that may be taken by the Commissioner in the course of a
management resolution under this Part, the Commissioner may, for the purposes of
educating and improving the future conduct of the police officer concerned, take
action, or order the taking of action, of 1 or more of the following kinds in
respect of the police officer:
(a) impose restrictions on the ability of the police officer to work in
specified positions, or to perform specified duties, within SA Police;
(b) restrict the ability of the police officer to be promoted or
transferred within SA Police;
(c) remove, or impose conditions on, any accreditation, permit or
authority granted by SA Police to the police officer;
(d) restrict the ability of the police officer to undertake courses
conducted by SA Police,
during such period as may be specified by the Commissioner (including, to
avoid doubt, during any period in which the police officer is undertaking
remedial or further training).
(5) A period specified by the Commissioner under
subsection (4)
must not exceed 12 months or such longer period as may be specified
by the regulations.
(6) On completion of a management resolution under this Part, the
resolution officer must inform the police officer concerned and the person who
made the relevant complaint, report or allegation of the outcome of the
management resolution.
19—Reporting
results of management resolution of matter
(1) The resolution
officer must, in accordance with any requirements set out in the regulations,
prepare a report in relation to each matter dealt with by way of management
resolution under this Part.
(2) The resolution
officer must cause a copy of a report under
subsection (1)
to be provided to—
(a) the IIS; and
(b) the police officer concerned.
(3) The officer in charge of the IIS must, as soon as is reasonably
practicable (but in any event within 7 days) after receiving a report under
subsection (2)
, cause the information required by the regulations in respect of each
matter dealt with by way of management resolution under this Part to be recorded
on the complaint management system.
20—Monitoring
of management resolutions under Part
The Commissioner must cause all matters dealt with under this Part to be
monitored and reviewed with a view to maintaining proper and consistent
practices.
Part 4—Formal
proceedings for breach of discipline
21—Investigations
of complaints and reports by IIS
(1) Subject to this
Act, each complaint or report referred to the IIS under this Act must be
investigated by the IIS.
(2)
Subsection (1)
does not apply to a particular complaint or report if—
(a) the complaint or report is dealt with, or is to be dealt with, under
Part 3
; or
(b) the complaint or report is, or is to be, referred to the ICAC under
section 29
; or
(c) the conduct that is the subject of the complaint or report is being,
or has previously been, assessed by the IIS, the OPI or the ICAC; or
(d) the conduct that is the subject of the complaint or report has been
previously dealt with under this Act or the
Police
(Complaints and Disciplinary Proceedings) Act 1985
; or
(e) the matter raised in the complaint or report is, in the opinion of the
officer in charge of the IIS, trivial; or
(f) the complaint or report is, in the opinion of the officer in charge of
the IIS, frivolous or vexatious or not made in good faith; or
(g) in the case of a complaint—having regard to all the
circumstances of the case, the officer in charge of the IIS is of the opinion
that an investigation of the complaint or report is unnecessary or unjustifiable
(including, to avoid doubt, where the alleged conduct of the police officer
concerned is not sufficiently related to the exercise, performance or discharge
(or purported exercise, performance or discharge) of his or her official powers,
functions or duties).
(3) Subject to this
Act, an investigation may be conducted in such manner as the officer in charge
of the IIS thinks fit.
(4) A member of the
IIS may, for the purposes of an investigation, make inquiries and obtain
information, property, documents or other records relevant to the investigation,
as he or she thinks fit.
(5) A member of the
IIS may, for the purposes of the investigation, direct a police officer to
furnish information, produce property, a document or other record, or answer a
question, that is relevant to the investigation.
(6) For the purposes of this Act and the
Police
Act 1998
, a direction given by a member of the IIS under
subsection (5)
has effect as if it had been given by the Commissioner.
(7) A member of the IIS must, before giving any direction under
subsection (5)
to the police officer whose conduct is under investigation, inform the
officer of the particulars of the matter under investigation.
(8) Without limiting any other provision of this or any other Act, a
police officer who—
(a) without reasonable excuse, refuses or fails to furnish information,
produce property, a document or other record or answer a question when so
required under this section; or
(b) furnishes information or makes a statement to a member of the IIS
knowing that it is false or misleading in a material particular,
may be dealt with under this Act for a breach of discipline.
(9) If a police officer is directed under
subsection (5)
to furnish information, produce property, a document or record or answer a
question, the officer is not excused from complying with the direction on the
ground—
(a) that the furnishing of the information, the production of the
property, the document or record or the answering of the
question—
(i) would be contrary to the public interest; or
(ii) would contravene the provisions of any other enactment; or
(b) that the information, the property, the document or record or the
answer to the question might tend to show that he or she has committed a breach
of discipline.
(10) A police
officer may refuse to furnish information, produce property, a document or
record or answer a question if the information, the property, the document or
record or the answer to the question might tend to incriminate him or her or a
close relative of his or hers, but a police officer who does so refuse may be
dealt with under this Act for a breach of discipline.
(11) A police officer who furnishes information, produces property, a
document or record or answers a question is not liable to a penalty under the
provisions of any other law prohibiting such an act if the act is done in
compliance with a direction given by a member of the IIS under this
section.
(12) The officer in charge of the IIS may, subject to any directions of
the Commissioner, require a police officer not serving in the IIS to assist the
IIS in conducting investigations under this section or to conduct investigations
on behalf of the IIS, and, in that event, the provisions of this section apply
as if the police officer were a member of the IIS.
(13) This section does not limit or affect the powers or duties that a
police officer would have apart from this Act in connection with the
investigation of an offence.
(14) In this section—
police officer does not include a public officer of a class
prescribed by the regulations for the purposes of this definition.
22—Notice
of allegation to be issued in respect of breaches of
discipline
(1) For the purposes of
this Act, the Commissioner commences proceedings for a breach of discipline by
presenting a notice of allegation to the Tribunal.
(2) However, the
Commissioner must not present a notice of allegation to the Tribunal unless he
or she has advised the OPI that he or she intends to present the notice of
allegation and has had regard to any submission made by the OPI relating to the
matter (however a failure to comply with this subsection will not, of itself,
invalidate a notice of allegation).
(3) Without limiting
subsection (2)
, the Commissioner must, in determining whether to commence proceedings for
a breach of discipline in relation to a particular matter, have regard to any
recommendations made by the ICAC following an investigation of the matter under
the
Independent
Commissioner Against Corruption Act 2012
(whether or not the matter involves conduct that constitutes corruption,
misconduct or maladministration in public administration).
(4) A notice of allegation must comply with any requirements set out in
the regulations.
(5) A notice of allegation must be served on the police officer in
accordance with the regulations.
(6) The Commissioner must, as soon as is reasonably practicable (but in
any event within 48 hours) after presenting a notice of allegation to the
Tribunal, provide the OPI with a copy of the notice of allegation.
23—Suspension
where charge of offence or alleged breach of discipline
(1) If—
(a) a police officer is charged with an offence (whether under the law of
this State, the Commonwealth or another State or Territory); or
(b) a notice of allegation is, or is to be, served on a police officer
under this Act,
the Commissioner may suspend the police officer's appointment.
(2) A suspension in relation to a notice of allegation that has yet to be
served on a police officer will be taken to have been revoked by the
Commissioner if the notice of allegation is not so served within 24 hours
(excluding a Saturday, Sunday or a public holiday falling on a Monday or
Friday).
(3) A suspension under this section must be revoked by the Commissioner
if—
(a) the police officer is found not guilty of the offence, or is found not
to have committed the alleged breach of discipline, or the charge or allegation
is dismissed, lapses or is withdrawn; and
(b) the police officer does not stand charged of any other offence and no
other breach of discipline is alleged.
(4) If the suspension under this section of a police officer's appointment
is revoked by the Commissioner, then, subject to any determination of the
Commissioner under the regulations, he or she is entitled to any remuneration or
accrual of rights withheld in consequence of the suspension and the period of
the suspension will count as service.
24—Police
officer may admit or deny allegations
On a notice of allegation being served on a police officer, he or she may,
within the period and in the manner prescribed by the regulations, admit or deny
the allegation or allegations.
25—Allegations
to be heard and determined by Tribunal
(1) If an
allegation contained in a notice of allegation is not admitted in accordance
with
section 24
, the allegation is to be heard and determined by the Tribunal.
(2) If the Tribunal
is satisfied, on the balance of probabilities, that a police officer committed a
breach of discipline, the Tribunal must—
(a) make a finding that the police officer committed the breach of
discipline; and
(b) remit the proceedings to the Commissioner for the imposition of
sanctions in accordance with
section 26
; and
(c) as soon as is
reasonably practicable, notify the IIS of the matters referred to in a preceding
paragraph.
(3) When remitting
proceedings to the Commissioner, the Tribunal may indicate to the Commissioner
the Tribunal's assessment of the seriousness or otherwise of the breach of
discipline committed by the police officer and, in that event, the Commissioner
must, when making his or her determination as to the imposition of sanctions,
have due regard to the Tribunal's assessment.
(4) The officer in charge of the IIS must, as soon as is reasonably
practicable (but in any event within 7 days) after receiving a notification
under
subsection (2)(c)
, cause the prescribed information in respect of the findings of the
Tribunal, the remission of the proceedings to the Commissioner and any
assessment of the Tribunal under
subsection (3)
to be recorded on the complaint management system.
26—Commissioner
may sanction police officer following offence or breach of
discipline
(a) is found guilty of an offence under a law of this State, the
Commonwealth or another State or Territory; or
(b) admits an alleged breach of discipline in accordance with
section 24
; or
(c) is found to have committed a breach of discipline in proceedings
before the Tribunal,
the Commissioner may take action, or order the taking of action, of 1 or
more of the following kinds in relation to the police officer:
(d) termination of his or her appointment;
(e) suspension of his or her appointment for a specified period;
(f) if he or she is
a member of SA Police—
(i) transfer of the member to another position in SA Police for a
specified period; or
(ii) reduction in the member's rank (whether or not the loss of income
resulting from the reduction exceeds the amount the amount prescribed for the
purposes of
paragraph (h)
); or
(iii) reduction in the member's seniority; or
(iv) reduction in any increment level to which the member is entitled
under an enterprise agreement (whether or not the loss of income resulting from
the reduction exceeds the amount the amount prescribed for the purposes of
paragraph (h)
);
(g) if he or she is a police cadet—withdrawal of specified rights or
privileges for a specified period;
(h) reduction of his or
her remuneration by a specified amount for a specified period (but not so that
the total amount forfeited exceeds the amount prescribed by regulation for the
purposes of this paragraph);
(i) imposition of a fine not exceeding the amount prescribed by
regulation;
(j) a reprimand recorded in his or her conduct and service history kept
under the regulations;
(k) an unrecorded reprimand;
(l) counselling;
(m) education or training;
(n) action of any other kind prescribed by regulation.
(2) If the period for which a member of SA Police is transferred
under
subsection (1)(f)
is less than 12 months, he or she is entitled, on the expiration of
the specified period, to return to the position he or she occupied before being
so transferred.
(3) The Commissioner
must, as soon as is reasonably practicable after action is taken under
subsection (1)
in respect of a police officer, notify the officer in charge of the IIS of
the action taken.
(4) The officer in charge of the IIS must, as soon as is reasonably
practicable (but in any event within 7 days) after receiving a notification
under
subsection (3)
, cause the information required by the regulations in respect of the
action taken in relation to the police officer to be recorded on the complaint
management system.
Part 5—Oversight
of complaints and reports by OPI etc
27—OPI
may direct Commissioner etc in relation to handling of complaints and
reports
(1) Without
limiting any other power or function of the OPI, the OPI may, in relation to a
complaint or report, give such directions to the Commissioner, the IIS or to a
police officer assisting in an investigation or conducting an investigation on
behalf of the IIS as the OPI thinks fit.
(2) Without limiting the generality of
subsection (1)
, a direction may include—
(a) a requirement that the IIS or a specified person provide specified
information relating to a specified complaint or report; or
(b) a requirement that the IIS or a specified person produce to the OPI a
specified document or record relating to a specified complaint or report that is
under the control of SA Police; or
(c) the methods to be employed, the matters to be investigated or the
evidence to be obtained in relation to a specified investigation or class of
investigations.
(3) A direction—
(a) must be by notice in writing; and
(b) may only be given after consultation with the officer in charge of the
IIS.
(4) The OPI may, by notice in writing, vary or revoke a
direction.
(5) The Commissioner must ensure that any direction under this section is
complied with without undue delay.
28—Reassessment
of certain complaints and reports by OPI
(1) The OPI may,
within 3 business days after the information required by the regulations
relating to an assessment of a complaint or report by the IIS is entered in the
complaints management system, do 1 or both of the following:
(a) reassess the complaint or report;
(b) substitute its assessment of the complaint or report for that entered
in the complaints management system (and the substituted assessment will, for
the purposes of this Act, be taken to be the assessment of the IIS in respect of
the complaint or report)
(2) The OPI may only take action under
subsection (1)
after consultation with the officer in charge of the IIS.
29—OPI
may refer complaints and reports to ICAC
(1) The OPI may refer a complaint or report to the ICAC if the OPI is
satisfied that the complaint or report relates to matters that should be dealt
with by the ICAC under this Act or the
Independent
Commissioner Against Corruption Act 2012
.
(2) For the purposes of the
Independent
Commissioner Against Corruption Act 2012
, a complaint or report referred under this section will be taken to be a
complaint or report received under that Act.
(3) The ICAC may give such directions as he or she thinks fit to the
Commissioner in relation to a complaint or report referred under this section or
a related complaint or report (including, to avoid doubt, a direction that the
Commissioner not take, or stop taking, specified actions in respect of the
complaint or report).
30—ICAC
may investigate matters under section
(1) The ICAC may investigate under this section a complaint or report
referred to the ICAC under
section 29
if the ICAC is satisfied that it is appropriate to do so.
(2) The ICAC may, on its own initiative, investigate under this section
any other complaint or report if the ICAC is satisfied that it is appropriate to
do so.
(3) If the ICAC
investigates a complaint or report under this section, the ICAC must (unless the
ICAC is of the opinion that to do so may prejudice the investigation) notify the
Commissioner, by writing, of the matter to be investigated and furnish him or
her with particulars of the matter.
(4) In investigating a complaint or report under this section, the ICAC
will be taken to have all the powers of a member of the IIS.
31—Annual
report on sanctions imposed for breaches of discipline
(1) The ICAC must,
before 30 September in each year, prepare a report on the number and
general nature of sanctions imposed under
section 26
in relation to breaches of discipline in the preceding financial
year.
(2) Without
limiting any other power or function of the ICAC, the ICAC may require the
Commissioner to provide the ICAC with such information as the ICAC reasonably
requires for the purposes of preparing a report under
subsection (1)
.
(3) A copy of the report must be delivered to the President of the
Legislative Council and the Speaker of the House of Assembly.
(4) The President of the Legislative Council and the Speaker of the House
of Assembly must, on the first sitting day after receiving a report, lay it
before their respective Houses.
(5) A report under this section may be combined with another report
prepared by the ICAC under the
Independent
Commissioner Against Corruption Act 2012
.
(1) A party to proceedings before the Tribunal may appeal to the Court
against a decision made by the Tribunal in those proceedings (other than a
decision in respect of a preliminary, interlocutory or procedural
matter).
(2) A police
officer may appeal to the Court against an order of the
Commissioner—
(a) taking action, or ordering that action be taken, in respect of the
police officer in the course of a management resolution under
Part 3
(being an action that has, or may have, an adverse effect on the
remuneration, seniority or rank of the police officer); or
(b) imposing a sanction on the police officer under
section 26
.
(3)
Subsection (2)
applies—
(a) whether or not the order resulted from an investigation under this
Act;
(b) whether the order was made on the police officer being found to have
committed a breach of discipline by the Tribunal or on the officer admitting a
breach of discipline to the Commissioner or otherwise.
(4) An appeal under this section must be instituted within 1 month of the
making of the decision or order appealed against.
(5) In this section—
Court means the Administrative and Disciplinary Division of
the District Court.
Part 7—Police
Disciplinary Tribunal
33—Constitution
of Police Disciplinary Tribunal
(1) There will be a Police Disciplinary Tribunal.
(2) The Tribunal will be constituted of a magistrate appointed by the
Governor.
(3) The magistrate appointed to constitute the Tribunal will be appointed
for such term of office, not exceeding 3 years, as the Governor may determine,
and on the expiration of his or her term of office is not eligible for
reappointment.
(4) The Governor
may appoint another magistrate to be the deputy of the magistrate appointed to
constitute the Tribunal and the Tribunal will, for any period for which the
magistrate appointed to constitute the Tribunal is absent or unavailable, be
constituted of that other magistrate.
(5) The Governor may appoint 3 or more magistrates to a panel and, if at
any time the magistrate appointed under
subsection (4)
is absent or unavailable, the Chief Magistrate may appoint a magistrate
from the panel to act in his or her place.
34—Registrar
and deputy registrar
(1) The registrar and deputy registrar of the Tribunal are to be Public
Service employees.
(2) The positions of registrar and deputy registrar of the Tribunal may be
held in conjunction with any other position in the Public Service.
(3) The registrar and deputy registrar of the Tribunal will have such
duties and functions as are prescribed and such other duties and functions as
may be directed by the Tribunal.
35—Proceedings
before Tribunal
(1) The Tribunal
must, in relation to any proceedings to be heard by the
Tribunal—
(a) give the Commissioner and the police officer concerned reasonable
notice of the time and place at which the proceedings are to be heard and must
afford them a reasonable opportunity to call or give evidence, to examine or
cross-examine witnesses and to make submissions to the Tribunal; and
(b) give the OPI notice of the time and place at which the proceedings are
to be heard.
(2) If a person to whom notice has been given under
subsection (1)
does not attend at the time and place fixed by the notice, the Tribunal
may hear the proceedings in his or her absence.
(3) The Commissioner may be represented at proceedings by counsel or a
police officer.
(4) A party to proceedings before the Tribunal (other than the
Commissioner) is entitled to appear—
(a) personally or by counsel; or
(b) with the permission of the Tribunal—by some other
representative.
(5) Subject to
subsection (6)
, the proceedings of the Tribunal are to be heard in private.
(6) The Tribunal
must permit a member of the staff of the OPI nominated by the ICAC, and a member
of SA Police nominated by the Commissioner, to be present at proceedings of the
Tribunal and may, in its discretion, permit any other person to be
present.
(7) The Tribunal
must, unless of the opinion that to do so would prejudice the orderly conduct of
the proceedings, permit a person nominated by the OPI or the ICAC to be present
at proceedings of the Tribunal.
(8) The Tribunal must cause proceedings under this Act to be conducted as
expeditiously as is reasonably possible.
(9) Subject to this Act, the Tribunal will in its
proceedings—
(a) be bound by the rules of evidence; and
(b) follow, to such extent as it considers appropriate, the practice and
procedure of courts of summary jurisdiction on the hearing of complaints for
simple offences.
(1) The Tribunal may—
(a) by summons signed by the Tribunal or by the registrar or deputy
registrar of the Tribunal, require the attendance before the Tribunal of any
person; or
(b) by summons signed by the Tribunal or by the registrar or deputy
registrar of the Tribunal, require the production of any books, documents or
other things; or
(c) inspect any book, document or thing produced before the Tribunal and
retain them for such reasonable period as the Tribunal thinks fit and make
copies of any of them or any of their contents; or
(d) require any person to make an oath or affirmation that he or she will
truly answer all questions put to him or her by the Tribunal, or by any person
appearing before the Tribunal, relating to the matter being heard by the
Tribunal; or
(e) require any person appearing before the Tribunal to answer any
relevant questions put to him or her by the Tribunal or by any person appearing
before the Tribunal.
(2) A person who—
(a) having been served with a summons to attend before the Tribunal, fails
without reasonable excuse (proof of which lies on him or her) to do so;
or
(b) having been served with a summons to produce books, documents or
things, fails without reasonable excuse (proof of which lies on him or her) to
do so; or
(c) misbehaves himself or herself before the Tribunal, wilfully insults
the Tribunal or interrupts the proceedings of the Tribunal,
is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
(3) However, a person is not required to produce any books, documents or
things, or to answer a question, if to do so might tend to incriminate him or
her or, in the case of a police officer, to prove that he or she has committed a
breach of discipline.
(4) The Tribunal may, on being satisfied that a person has failed to
appear before the Tribunal in obedience to a summons served on him or her under
this section, issue a warrant authorising a police officer to arrest the person
and bring him or her before the Tribunal.
(5) In the course of any proceedings, the Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before a
court or tribunal and draw any conclusions of fact that it considers proper;
or
(b) adopt, as in its discretion it considers proper, any findings,
decision, or judgment of a court or tribunal that may be relevant to the
proceedings.
37—Protection
of Tribunal, counsel and witnesses
(1) The person constituting the Tribunal has in that capacity the same
protection and immunity as a judge of the Supreme Court.
(2) Counsel or any other person appearing for a party in proceedings
before the Tribunal has the same protection and immunity as counsel appearing
for a party in proceedings in the Supreme Court.
(3) A person appearing before the Tribunal as a witness has the same
protection and immunity as a witness in proceedings in the Supreme
Court.
38—Reference
of question of law
The Tribunal may refer a question of law for the opinion of the Supreme
Court.
(1) The Tribunal may make such orders for costs as the Tribunal thinks
just and reasonable.
(2) Where the Tribunal has ordered the payment of costs, the costs are to
be recoverable summarily.
The Tribunal must, at the request of a party, the ICAC or the OPI made
within 7 days after the Tribunal has made a decision in proceedings, give
reasons in writing for the decision.
41—Obstruction
of complaint or report
A person must not—
(a) prevent another person from making a complaint or report under this
Part; or
(b) hinder or obstruct another person in making such a complaint or
report.
Maximum penalty: $10 000 or imprisonment for 2 years.
42—False
or misleading statements
A person must not—
(a) make a statement knowing that it is false or misleading in a material
particular (whether by reason of the inclusion or omission of a particular) in
information provided under this Act; or
(b) make a complaint or report under this Act knowing that there are no
grounds for the making of the complaint or report.
Maximum penalty: $10 000 or imprisonment for 2 years.
An Act or law allowing a matter to be proved in legal proceedings by means
of a certificate or other evidentiary aid (however described) will be taken to
allow the matter to be proved in proceedings before the Tribunal as if those
proceedings were legal proceedings referred to in that Act.
44—Use
of evidence or information obtained under other Acts etc
(1) Despite any
other Act or law, evidence or information obtained (whether before or after the
commencement of this section) by the lawful exercise of powers under this Act or
any other Act—
(a) is not inadmissible in proceedings before the Tribunal merely because
the evidence or information was obtained by the exercise of powers under the
relevant Act and not for the purposes of those proceedings; and
(b) may be used for the
purposes of a matter dealt with, or to be dealt with, by way of management
resolution under
Part 3
or by formal proceedings under
Part 4
if—
(i) to do so would be consistent with the principles of equity and good
conscience; and
(ii) to do so would be appropriate in all of the circumstances of the
matter; and
(c) may be so used whether the exercise of powers by which the evidence or
information was obtained relates to the same matter or a different
matter.
(2) No civil or criminal liability lies against a person in respect of any
use of evidence or information permitted by this section.
45—Limitation
on requirement to divulge information
Despite any other Act or law, a person who is, or who has been, engaged in
the administration or enforcement of this Act or the repealed Act cannot be
required to divulge information disclosed or obtained in the course of an
investigation under this Act or the repealed Act except where such a requirement
is made—
(a) in proceedings before a court or the Tribunal in respect
of—
(i) an offence; or
(ii) a breach of discipline,
relating to a matter the subject of the investigation; or
(b) in proceedings under the
Royal
Commissions Act 1917
; or
(c) by the ICAC or the OPI; or
(d) by order of a court, the court being satisfied that there are special
reasons requiring the making of such an order and that the interests of justice
cannot adequately be served except by the making of such an order.
(1) Except as
required or authorised by this Act or by the Commissioner, the ICAC or the OPI,
a person who is or has been engaged in the administration of this Act must not,
directly or indirectly, disclose information in relation to or connected with a
matter that forms or is the subject of a complaint, report, assessment or
investigation under this Act.
Maximum penalty: $2 500 or imprisonment for 6 months.
(2) Despite
subsection (1)
, a person engaged in the administration of this Act may disclose
information—
(a) for the purposes of the administration or enforcement of this Act;
or
(b) for the purposes of a criminal proceeding or a proceeding for the
imposition of a penalty; or
(c) for the performance of the functions of the Commissioner, the ICAC or
the OPI under another Act; or
(d) in accordance with an order of a court; or
(e) as otherwise required or authorised by this or another Act.
(3) A person who receives information knowing that the information is
connected with a matter that forms or is the subject of a complaint, report,
assessment or investigation under this Act must not disclose that information
unless—
(a) the person is authorised in writing by the Commissioner, the ICAC or
the OPI, or by a person approved by the Commissioner, the ICAC or the OPI, under
this section to give an authorisation; or
(b) the disclosure of that information is for the purpose
of—
(i) dealing with a matter under this Act by the Commissioner, or under
this or the
Independent
Commissioner Against Corruption Act 2012
by the ICAC or the OPI; or
(ii) a criminal proceeding, a proceeding for the imposition of a penalty
or disciplinary action; or
(iii) a person obtaining legal advice or legal representation or for the
purposes of determining whether a person is entitled to an indemnity for legal
costs; or
(iv) a person obtaining medical or psychological assistance from a medical
practitioner or psychologist.
Maximum penalty: $2 500 or imprisonment for 6 months.
47—Publication
of information and evidence
(1) A person must not, except as authorised by the Commissioner, the ICAC,
the OPI or a court hearing proceedings for an offence against this Act, publish,
or cause to be published—
(a) information tending to suggest that a particular person is, has been,
may be, or may have been, the subject of a complaint, report, assessment or
investigation under this Act; or
(b) information that might enable a person who has made a complaint or
report to be identified or located; or
(c) the fact that a person has made or may be about to make a complaint or
report; or
(d) information that might enable a person who has given or may be about
to give information or other evidence under this Act to be identified or
located; or
(e) the fact that a person has given or may be about to give information
or other evidence under this Act; or
(f) any other information or evidence publication of which is prohibited
by the Commissioner, the ICAC or the OPI.
Maximum penalty:
(a) in the case of a body corporate—$150 000;
(b) in the case of a natural person—$30 000.
(2) In this section—
publish means publish by—
(a) newspaper, radio or television; or
(b) internet or other electronic means of creating and sharing content
with the public or participating in social networking with the public; or
(c) any similar means of communication to the public.
Subject to this Act, a notice or other document required or authorised to
be given to or served on a person under this Act may—
(a) be given to the person personally; or
(b) be left for the person at the person's place of residence or business
with someone apparently over the age of 16 years; or
(c) be posted to the person at the person's last known place of residence
or business; or
(d) be transmitted by fax or email to a fax number or email address
provided by the person (in which case the notice or other document will be taken
to have been given or served at the time of transmission).
(1) The Governor
may make such regulations as are contemplated by this Act, or as are necessary
or expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may—
(a) prescribe fines (not exceeding $5 000) for offences against the
regulations; and
(b) be of general application or vary in their application according to
prescribed factors; and
(c) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister, the
Commissioner or a specified person or body; and
(d) make provisions of a saving or transitional nature consequent on the
enactment of this Act.
Schedule 1—Related
amendments, repeal and transitional provisions
Part 1—Amendment of Child Sex Offenders
Registration Act 2006
1—Amendment
of section 63—Registrable offender's rights in relation to
register
(1) Section 63(5)—delete "Police"
(2) Section 63(6)—delete "Police"
2—Amendment
of section 67—Confidentiality of information
Section 67(3)(f)—delete "Police Ombudsman, or the branch of South
Australia Police established under Part 3 of the
Police
(Complaints and Disciplinary Proceedings) Act 1985
, for the purposes of an investigation under that Act or under this Act"
and substitute:
Independent Commissioner Against Corruption, the Office for Public
Integrity, the Ombudsman or the Internal Investigation Section of South
Australia Police for the purposes of an investigation under the
Independent
Commissioner Against Corruption Act 2012
, the
Police
Complaints and Discipline Act 2016
or this Act
3—Amendment
of Schedule 2—Information disclosure principles
Schedule 2 clause 4(f)—delete "Police Ombudsman, or the branch of
South Australia Police established under Part 3 of the
Police
(Complaints and Disciplinary Proceedings) Act 1985
, for the purposes of an investigation under that Act or under this Act"
and substitute:
Independent Commissioner Against Corruption, the Office for Public
Integrity, the Ombudsman or the Internal Investigation Section of South
Australia Police for the purposes of an investigation under the
Independent
Commissioner Against Corruption Act 2012
, the
Police
Complaints and Discipline Act 2016
or this Act
Part 2—Amendment of Correctional Services
Act 1982
4—Amendment
of section 33—Prisoners' mail
(1) Section 33(7)(aa)—delete paragraph (aa)
(2) Section 33(8)—delete "the Police Ombudsman,"
Part 3—Amendment of Criminal Law (Forensic
Procedures) Act 2007
5—Amendment
of section 45—Access to and use of DNA database
system
(1) Section 45(2)(i)—delete "or the Police Ombudsman"
(2) Section 45(2)—after paragraph (i) insert:
(ia) for the purpose of an investigation under the
Police
Complaints and Discipline Act 2016
;
6—Amendment
of section 50—Confidentiality
(1) Section 50(1)(i)—delete "or the Police Ombudsman"
(2) Section 50(1)—after paragraph (i) insert:
(ia) the disclosure is necessary for the purpose of an investigation under
the
Police
Complaints and Discipline Act 2016
;
7—Amendment
of section 57—Compliance audits
(1) Section 57(1)—delete "Police"
(2) Section 57(2)—delete "Police" second occurring
Part 4—Amendment of Freedom of Information
Act 1991
8—Amendment
of section 39—External review
Section 39(1), definition of relevant review authority—delete the
definition and substitute:
relevant review authority, in relation to a determination,
means the Ombudsman;
9—Amendment
of section 40—Appeal to District Court
Section 40(6)—delete "Neither the Ombudsman nor the Police Ombudsman
can" and substitute:
The Ombudsman cannot
10—Amendment
of section 53—Fees and charges
(1) Section 53(4)—delete "or Police Ombudsman for a further review,
and the Ombudsman or Police Ombudsman" and substitute:
for a further review and the Ombudsman
(2) Section 53(4a)—delete subsection (4a)
11—Amendment
of section 54A—Training to be provided to agencies
Section 54A—delete "and the Police Ombudsman"
12—Amendment
of Schedule 2—Exempt agencies
Schedule 2 paragraph (i)—delete "and the Police Ombudsman"
Part 5—Amendment of Independent
Commissioner Against Corruption Act 2012
13—Amendment
of section 4—Interpretation
(1) Section 4, definition of inquiry agency,
(b)—delete paragraph (b)
(2) Section 4, definition of law enforcement agency,
(e)—delete paragraph (e)
14—Amendment
of section 17—Functions and objectives
Section 17(d)—after "the Commissioner" insert:
or another Act
15—Amendment
of section 18—Organisational structure
Section 18—after subsection (4) insert:
(5) Where this or any other Act confers a power on the Office or requires
that the Office perform any function (including requiring that the Office make a
determination, or form an opinion, as to any matter)—
(a) the power or function may only be exercised or performed by a person
who is authorised to do so on behalf of the Office by the Commissioner;
and
(b) the exercise of that power or the performance of that function by a
person so authorised will be taken to be the exercise of that power or the
performance of that function by the Office.
16—Amendment
of section 24—Action that may be taken
Section 24(1)(b)—delete ", the Police Ombudsman (if the issue
concerns a police officer or special constable)"
17—Amendment
of section 45—Commissioner's annual report
Section 45(2)(b)(vi)—delete ", the Police Ombudsman"
18—Amendment
of section 51—Arrangements for provision of information by Commissioner of
Police
Section 24(1)(b)—delete "and the Police Ombudsman are" and
substitute:
is
Part 6—Amendment of Listening and
Surveillance Devices Act 1972
19—Amendment
of section 3—Interpretation
Section 3, definition of review agency, (a)—delete "the
Police Ombudsman" and substitute:
the reviewer under Schedule 4 of the
Independent
Commissioner Against Corruption Act 2012
Part 7—Amendment of Parliamentary
Committees Act 1991
20—Amendment
of section 15O—Functions of Committee
Section 15O(1)(a)(i)—delete ", the Ombudsman or the Police Ombudsman"
and substitute:
or the Ombudsman
Part 8—Amendment of Police
Act 1998
21—Amendment
of section 3—Interpretation
(1) Section 3, definition of Code—delete the
definition and substitute:
Code means the code of conduct prepared under the
Police
Complaints and Discipline Act 2016
, as in force from time to time;
(2) Section 3, definition of minor misconduct—delete
the definition
(3) Section 3, definition of Police Disciplinary
Tribunal—delete the definition
(4) Section 3, definition of Police Ombudsman—delete
the definition
22—Substitution
of heading to Part 6
Heading to Part 6—delete the heading and substitute:
Part 6—Drug and alcohol
testing
23—Repeal
of Part 6 Division 1
Part 6 Division 1—delete Division 1
24—Repeal
of Part 6 Division 3
Part 6 Division 3—delete Division 3
25—Amendment
of section 70—Suspension or revocation of suspension under Act or
regulations
Section 70(1)—after "this Act" insert:
, the
Police
Complaints and Discipline Act 2016
Part 9—Amendment of Protective Security
Act 2007
26—Amendment
of section 3—Interpretation
(1) Section 3, definition of minor misconduct—delete
the definition
(2) Section 3, definition of Police Ombudsman—delete
the definition
(3) Section 3, definition of Tribunal—delete "the
Police
(Complaints and Disciplinary Proceedings) Act 1985
" and substitute:
Part 5A
27—Amendment
of section 24—Report and investigation of breach of
Code
Section 24(2)—delete ", subject to a determination of the Police
Ombudsman under section 23 of the
Police
(Complaints and Disciplinary Proceedings) Act 1985
,"
28—Amendment
of section 25—Charge for breach of Code
Section 25(3)—delete "the
Police
(Complaints and Disciplinary Proceedings) Act 1985
" and substitute:
this Act
29—Amendment
of section 28—Management resolution of minor breaches of
Code
(1) Section 28(1)—delete subsection (1) and substitute:
(1) The Commissioner
may determine that a suspected breach of the Code is to be dealt with under this
section.
(1a) However, the following kinds of breaches of the Code must not be
dealt with under this section:
(a) a breach that, if proved, would be likely to result
in—
(i) termination of the officer's appointment; or
(ii) suspension of the officer's appointment for a specified period;
or
(iii) reduction of the officer's rank, seniority or
remuneration;
(b) any other breach of a kind prescribed by the regulations for the
purposes of this paragraph.
(1b) If the Commissioner makes a determination under
subsection (1)
, he or she must refer the matter to a person determined in accordance with
the orders and directions of the Commissioner (the resolution
officer) for management resolution under this section.
(2) Section 28(2)—delete "A person to whom a matter is referred for
an informal inquiry under subsection (1) or under section 21A of the
Police
(Complaints and Disciplinary Proceedings) Act 1985
—" and substitute:
The resolution officer—
(3) Section 28—after subsection (2) insert:
(2a) The resolution officer is to perform his or her functions under this
section as expeditiously as possible and without undue formality.
30—Amendment
of section 29—Review of management resolution
(1) Section 29(1)—delete "informal inquiry" first occurring and
substitute:
inquiry under section 28
(2) Section 29(1)—delete "informal" second occurring
(3) Section 29(2)—delete "informal inquiry" and
substitute:
inquiry under section 28
(4) Section 29(4)(a)—delete "informal inquiry" first occurring and
substitute:
inquiry under section 28
(5) Section 29(4)(a)—delete "informal" second occurring
(6) Section 29(4)(c)(i)—delete "informal"
(7) Section 29(5)—delete subsection (5)
31—Amendment
of section 30—Commissioner to oversee inquiries
(1) Section 30(1)—delete "informal inquiries and findings and
determinations made with respect to minor misconduct " and substitute:
inquiries under section 28 and related findings and
determinations
(2) Section 30(2)(a)—delete "informal" wherever occurring
After section 30 insert:
31—Office for Public Integrity may direct
Commissioner etc in relation to handling of breaches of
Code
(1) Without
limiting any other power or function of the Office for Public Integrity, the
Office for Public Integrity may, in relation to a suspected breach of the Code,
give such directions to the Commissioner or a resolution officer as the Office
for Public Integrity thinks fit.
(2) A direction—
(a) must be by notice in writing; and
(b) may only be given after consultation with the officer in charge of the
IIS.
(3) The Office for Public Integrity may, by notice in writing, vary or
revoke a direction.
(4) The Commissioner must ensure that a direction of the Office for Public
Integrity is complied with without undue delay.
After Part 5 insert:
Part 5A—Protective Security Officers
Disciplinary Tribunal
29—Constitution of Protective Security Officers
Disciplinary Tribunal
(1) There will be a Protective Security Officers Disciplinary
Tribunal.
(2) The Tribunal will be constituted of a magistrate appointed by the
Governor.
(3) The magistrate appointed to constitute the Tribunal will be appointed
for such term of office, not exceeding 3 years, as the Governor may determine,
and on the expiration of his or her term of office will not be eligible for
reappointment.
(4) The Governor
may appoint another magistrate to be the deputy of the magistrate appointed to
constitute the Tribunal and the Tribunal will, for any period for which the
magistrate appointed to constitute the Tribunal is absent or unavailable, be
constituted of that other magistrate.
(5) The Governor may appoint 3 or more magistrates to a panel and, if at
any time the magistrate appointed under
subsection (4)
is absent or unavailable, the Chief Magistrate may appoint a magistrate
from the panel to act in his or her place.
30—Registrar and deputy
registrar
(1) The registrar and deputy registrar of the Tribunal are to be Public
Service employees.
(2) The positions of registrar and deputy registrar of the Tribunal may be
held in conjunction with any other position in the Public Service.
(3) The registrar and deputy registrar of the Tribunal will have such
duties and functions as are prescribed and such other duties and functions as
may be directed by the Tribunal.
31—Proceedings before Tribunal
(1) The Tribunal
must, in relation to any proceedings to be heard by the
Tribunal—
(a) give the Commissioner and the protective security officer concerned
reasonable notice of the time and place at which the proceedings are to be heard
and must afford them a reasonable opportunity to call or give evidence, to
examine or cross-examine witnesses and to make submissions to the Tribunal;
and
(b) give the Office for Public Integrity notice of the time and place at
which the proceedings are to be heard.
(2) If a person to whom notice has been given under
subsection (1)
does not attend at the time and place fixed by the notice, the Tribunal
may hear the proceedings in his or her absence.
(3) The Commissioner may be represented at proceedings by counsel or a
police officer.
(4) A party to proceedings before the Tribunal (other than the
Commissioner) is entitled to appear—
(a) personally or by counsel; or
(b) with the permission of the Tribunal—by some other
representative.
(5) Subject to
subsection (6)
, the proceedings of the Tribunal are to be heard in private.
(6) The Tribunal
must permit a member of the staff of the Office for Public Integrity nominated
by the Independent Commissioner Against Corruption to be present at proceedings
of the Tribunal and may, in its discretion, permit any other person to be
present.
(7) The Tribunal
must, unless of the opinion that to do so would prejudice the orderly conduct of
the proceedings, permit a person nominated by the Office for Public Integrity or
the Independent Commissioner Against Corruption to be present at proceedings of
the Tribunal.
(8) The Tribunal will in its proceedings—
(a) be bound by the rules of evidence; and
(b) follow, to such extent as it considers appropriate, the practice and
procedure of courts of summary jurisdiction hearing charges of summary
offences.
32—Powers of Tribunal
(1) The Tribunal may—
(a) by summons signed by the Tribunal or by the registrar or deputy
registrar of the Tribunal, require the attendance before the Tribunal of any
person; or
(b) by summons signed by the Tribunal or by the registrar or deputy
registrar of the Tribunal, require the production of any books, documents or
other things; or
(c) inspect any book, document or thing produced before the Tribunal and
retain them for such reasonable period as the Tribunal thinks fit and make
copies of any of them or any of their contents; or
(d) require any person to make an oath or affirmation that he or she will
truly answer all questions put to him or her by the Tribunal, or by any person
appearing before the Tribunal, relating to the matter being heard by the
Tribunal; or
(e) require any person appearing before the Tribunal to answer any
relevant questions put to him or her by the Tribunal or by any person appearing
before the Tribunal.
(2) A person who—
(a) having been served with a summons to attend before the Tribunal, fails
without reasonable excuse (proof of which lies on him or her) to do so;
or
(b) having been served with a summons to produce books, documents or
things, fails without reasonable excuse (proof of which lies on him or her) to
do so; or
(c) misbehaves himself or herself before the Tribunal, wilfully insults
the Tribunal or interrupts the proceedings of the Tribunal,
is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
(3) However, a person is not required to produce any books, documents or
things, or to answer a question, if to do so might tend to incriminate him or
her or, in the case of a protective security officer, to prove that he or she
has been guilty of a breach of discipline.
(4) The Tribunal may, on being satisfied that a person has failed to
appear before the Tribunal in obedience to a summons served on him or her under
this section, issue a warrant authorising a police officer to arrest the person
and bring him or her before the Tribunal.
(5) In the course of any proceedings, the Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before a
court or tribunal and draw any conclusions of fact that it considers proper;
or
(b) adopt, as in its discretion it considers proper, any findings,
decision, or judgment of a court or tribunal that may be relevant to the
proceedings.
33—Protection of Tribunal, counsel and
witnesses
(1) The person constituting the Tribunal has in that capacity the same
protection and immunity as a judge of the Supreme Court.
(2) Counsel or any other person appearing for a party in proceedings
before the Tribunal has the same protection and immunity as counsel appearing
for a party in proceedings in the Supreme Court.
(3) A person appearing before the Tribunal as a witness has the same
protection and immunity as a witness in proceedings in the Supreme
Court.
34—Reference of question of
law
The Tribunal may refer a question of law for the opinion of the Supreme
Court.
35—Costs
(1) The Tribunal may make such orders for costs as the Tribunal thinks
just and reasonable.
(2) Where the Tribunal has ordered the payment of costs, the costs are to
be recoverable summarily.
36—Reasons for decision
The Tribunal must, at the request of a party, the Office for Public
Integrity or the Independent Commissioner Against Corruption made within 7 days
after the Tribunal has made a decision in proceedings, give reasons in writing
for the decision.
Part 10—Amendment of Shop Theft
(Alternative Enforcement) Act 2000
34—Amendment
of section 17—Confidentiality
Section 17(1)(d)—delete "to the Police Ombudsman" and
substitute:
as required for the purposes of the
Police
Complaints and Discipline Act 2016
Part 11—Amendment of Telecommunications
(Interception) Act 2012
35—Amendment
of section 3—Interpretation
Section 3, definition of review agency, (a)—delete "the
Police Ombudsman" and substitute:
the reviewer under Schedule 4 of the
Independent
Commissioner Against Corruption Act 2012
Part 12—Amendment of Terrorism
(Preventative Detention) Act 2005
36—Amendment
of section 3—Interpretation
Section 3(1)—after the definition of ordinary search
insert:
Office for Public Integrity means the Office for Public
Integrity under the
Independent
Commissioner Against Corruption Act 2012
;
37—Amendment
of section 10—Making of preventative detention order
Section 10(8)—delete "Police Ombudsman" wherever occurring and
substitute in each case:
Office for Public Integrity
38—Amendment
of section 12—Extension of preventative detention
order
Section 12(7)—delete "Police Ombudsman" wherever occurring and
substitute in each case:
Office for Public Integrity
39—Amendment
of section 13—Prohibited contact order (person in relation to whom
preventative detention order is being sought)
Section 13(6)—delete "Police Ombudsman" wherever occurring and
substitute in each case:
Office for Public Integrity
40—Amendment
of section 14—Prohibited contact order (person in relation to whom
preventative detention order is already in force)
Section 13(4)—delete "Police Ombudsman" wherever occurring and
substitute in each case:
Office for Public Integrity
41—Amendment
of section 15—Revocation of preventative detention order or prohibited
contact order
Section 15(6)—delete "Police Ombudsman" and substitute:
Office for Public Integrity
Section 36—delete the section and substitute:
36—Contacting Office for Public
Integrity
The person being detained is entitled to contact the Office for Public
Integrity in accordance with the
Police
Complaints and Discipline Act 2016
or the
Independent
Commissioner Against Corruption Act 2012
.
43—Amendment
of section 37—Contacting lawyer
Section 37(1)(d)—delete "Police Ombudsman under the
Police
(Complaints and Disciplinary Proceedings) Act 1985
" and substitute:
Office for Public Integrity under the
Police
Complaints and Discipline Act 2016
44—Amendment
of section 41—Disclosure offences
(1) Section 41(2)(d)(iii)—delete "Police Ombudsman under the
Police
(Complaints and Disciplinary Proceedings) Act 1985
" and substitute:
Office for Public Integrity under the
Police
Complaints and Discipline Act 2016
(2) Section 41(3)(e)(i)—delete "Police Ombudsman under the
Police
(Complaints and Disciplinary Proceedings) Act 1985
" and substitute:
Office for Public Integrity under the
Police
Complaints and Discipline Act 2016
45—Amendment
of section 42—Questioning of person prohibited while person is
detained
Section 42(9)(a)—delete "Police Ombudsman" and substitute:
Office for Public Integrity
46—Amendment
of section 48—Annual report
(1) Section 48(2)(c)(i)—delete "Police Ombudsman" and
substitute:
Office for Public Integrity
(2) Section 48(2)(c)(i)—delete "internal investigation division of
the police force" and substitute:
Internal Investigation Section of South Australia Police
Section 49—delete the section
Part 13—Amendment of Whistleblowers
Protection Act 1993
48—Amendment
of section 5—Immunity for appropriate disclosures of public interest
information
(1) Section 5(4)(b)—delete "Police Ombudsman" and
substitute:
a member of the police force or the Office for Public Integrity
(2) Section 5(5)(a)—delete "Police Ombudsman" and
substitute:
Office for Public Integrity
Part 14—Amendment of Witness Protection
Act 1996
49—Amendment
of section 10—Memorandum of understanding
Section 10(3)—delete "Police Ombudsman" and substitute:
Office for Public Integrity under the
Independent
Commissioner Against Corruption Act 2012
50—Amendment
of section 12—Access to register
Section 12(2)—delete subsection (2)
51—Amendment
of section 21—Offences
(1) Section 21(3)(b)—delete "by the Police Ombudsman under Part 4 of
the
Police
(Complaints and Disciplinary Proceedings) Act 1985
" and substitute:
under the
Police
Complaints and Discipline Act 2016
(2) Section 21(4)(b)(ii)—delete "by the Police Ombudsman under Part
4 of the
Police
(Complaints and Disciplinary Proceedings) Act 1985
" and substitute:
under the
Police
Complaints and Discipline Act 2016
52—Amendment
of section 23—Commissioner and members not to be required to disclose
information
Section 23(2)—delete "Police Ombudsman" and substitute:
Office for Public Integrity or the Independent Commissioner Against
Corruption under the
Independent
Commissioner Against Corruption Act 2012
Part 15—Repeal of Police (Complaints and
Disciplinary Proceedings) Act 1985
53—Repeal
of Police (Complaints and Disciplinary
Proceedings) Act 1985
The
Police
(Complaints and Disciplinary Proceedings) Act 1985
is repealed.
Part 16—Transitional
provisions
54—Certain
orders of Commissioner etc under repealed Act taken to be
valid
(1) For the purposes of the law of the State, the following actions
purportedly ordered or taken under section 40 of the repealed Act or a
corresponding previous enactment in respect of a member of SA Police will be
taken to be valid, and always to have been valid:
(a) a reduction in rank of the member;
(b) a reduction in the seniority of the member;
(c) a reduction in an increment level to which the member is entitled
under an enterprise agreement (however described).
(2) In this clause—
repealed Act means the
Police
Act 1998
.
55—Complaints,
reports and proceedings under Police (Complaints
and Disciplinary Proceedings) Act 1985
(1) A complaint or report made under the
Police
(Complaints and Disciplinary Proceedings) Act 1985
before the commencement of this clause (being a complaint or report
relating to the conduct of a police officer, police cadet or special constable
that is not, immediately before the commencement of this clause, the subject of
proceedings before the Police Disciplinary Tribunal) will be taken to be a
complaint or report under this Act.
(2) A complaint or report made under the
Police
(Complaints and Disciplinary Proceedings) Act 1985
before the commencement of this clause (being a complaint or report
relating to the conduct of a protective security officer that is not,
immediately before the commencement of this clause, the subject of proceedings
before the Protective Security Officers Disciplinary Tribunal) will be taken to
be a complaint or report under the
Protective
Security Act 2007
(as amended by this Act).
(3) To avoid doubt, section 16 of the
Acts
Interpretation Act 1915
applies in relation to proceedings before the Police Disciplinary Tribunal
or the Protective Security Officers Disciplinary Tribunal commenced before the
commencement of this clause.