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Police Regulation Amendment Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill amends the Police Regulation Act 1958 and makes consequential
amendments to other Acts.
The primary objectives of the amendments to the Police Regulation Act
1958 ("the PRA") are to--
· reform the police discipline arrangements in the PRA to
remove a formal charge and inquiry process and substitute a
model that is focussed on a remedial approach whilst retaining
the ability to dismiss members who are unsuitable to remain in
the police force with an improved streamlined process;
· clarify the supervisory capacity of the Chief Commissioner of
Police with respect to members of the police force and to
improve the management of the performance and conduct of
police members;
· provide more flexible working arrangements for police
members that will also allow the Chief Commissioner of Police
to cover short-term and seasonal requirements for policing in
Victoria;
· clarify the position and powers of police members on leave or
secondment to external agencies;
· improve procedures for the State to assume liability in civil
actions against police members arising from the performance
of their functions;
· make minor technical amendments to the regulation-making
powers and other minor technical amendments.
561270 1 BILL LA INTRODUCTION 9/10/2008
The reform of the discipline provisions in the PRA implements the
recommendations of the report of the Director, Police Integrity "A Fair and
Effective Victoria Police Discipline System" tabled in Parliament on
31 October 2007.
The amendments give the Chief Commissioner power as the nominal
"employer" of police members. At law, a member of the police force holds a
public office and is not in an employment relationship with the State. As a
consequence of holding that office, police members hold certain powers and
duties that are exercisable by them on their own authority and discretion and
not at the direction of any person, including the Chief Commissioner.
The Bill does not alter that status of police members at law. The Bill clarifies
the various powers of the Chief Commissioner to exercise control over the
organisation (e.g. to deploy members and assign work and issue instructions
or orders) as if she is the employer of police members.
The amendments clarifying the position and powers of members on leave or
secondment to external agencies implement a recommendation of the
Ombudsman in his report "Investigation into a disclosure about WorkSafe's
and Victoria Police's handling of a bullying and harassment complaint",
tabled in April 2007. The Bill allows the suspension of the powers of police
members who are on leave without pay or seconded to a body where
retention of police powers would not be necessary.
The reform of the provisions related to the institution of civil proceedings
against police members will improve the representation of police members in
such cases. Although police members are not employees of the Chief
Commissioner or the State, this Bill provides that the State will be
vicariously liable for a tort committed by a police member in the performance
of his or her functions. The improved procedure requires that legal
proceedings for a tort alleged against a police member be brought against the
State at first instance. The member will be joined as a party only if the State
denies vicarious liability.
The amendment to the regulation-making power will facilitate the
incorporation of external standards as matters required by the regulations, to
support drug and alcohol testing.
Clause Notes
PART 1--PRELIMINARY
Clause 1 states the purpose of the Bill.
Clause 2 is the commencement provision. The Bill will commence
operation as follows.
The majority of the Bill comes into operation on the day after the
day the Bill receives Royal Assent.
2
Sections 4, 8, 9 and 10 and Parts 3, 4 (other than section 30(1))
and Part 7 come into operation on a day or days to be proclaimed.
The default commencement date for those provisions is
1 December 2009 if their commencement is not proclaimed
earlier.
Section 30(1) comes into operation on the later of the day on
which clause 19 of the Bill or the day on which section 47 of the
Police Integrity Act 2008 comes into operation.
Section 34(2) comes into operation on the later of--
· the day after the Bill receives Royal Assent;
· the day on which section 237 of the Accident Towing
Services Act 2008 comes into operation.
PART 2--CONSTITUTION OF THE FORCE
Clause 3 amends section 4(2) of the PRA to remove the limits on the
number of Deputy Commissioners and Assistant Commissioners
that may be appointed.
Clause 4 amends section 5(2) of the PRA to clarify that, irrespective of the
limits on the powers of the Chief Commissioner with respect
to--
· the superintendence and control of the force under
section 5(1) of the PRA; or
· members of the force as if the Chief Commissioner was
the employer of those members under section 5A; or
· giving orders for the general administration of the force
or instructions for the effective and efficient conduct of
the force's operations under section 17 of the PRA--
the Chief Commissioner has the specific powers in respect of
members of the police force enumerated in that provision.
Clause 5 inserts a new section 5A into the PRA that specifies that the
Chief Commissioner has all the powers of an employer as if she
were the employer of the members of the force and those
members were her employees. This provision expressly
preserves the status of police members at law as the holders of a
public office with powers exercisable on their own authority and
discretion. The powers given to the Chief Commissioner in this
section do not--
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· make police members employees of the Chief
Commissioner (and do not intend to make police
members employees for the purposes of any other
legislation); or
· interfere with the independence of police members
under the office of constable.
Clause 6 inserts a new section 6A(1AA) into the PRA to enable the Chief
Commissioner to delegate the power to dismiss a police member
under section 68 of the PRA to a Deputy Commissioner.
Clause 7 amends section 8 of the PRA to--
· insert a new subsection (3) that enables the Chief
Commissioner to appoint members to the force on a
full-time or part-time or fixed term or ongoing basis;
· insert a new subsection (3A) that enables the Chief
Commissioner to determine the terms and conditions of
any appointment, promotion or transfer of a police
member;
· substitutes the existing subsection (4) with a new
subsections (4), (4A) and (4B)--
· subsection (4) specifies that appointments to the
rank of constable are subject to a period of
probation for 2 years in the case of a full-time
member and a period equivalent to 2 years of
full-time service in the case for a part-time
member;
· subsection (4A) specifies that appointments to or
promotion to any rank other than a constable are
subject to a period of probation for 1 year in the
case of a full-time member and a period
equivalent to 1 year of full-time service in the
case for a part-time member. A police member
appointed on a full-time basis may later convert
his or her appointment to a part-time basis.
That member must complete the pro-rata
equivalent of 2 years probation, applicable to
part-time members, even if the member's initial
appointment was on a full-time basis;
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· subsection (4B) allows the Chief Commissioner
to waive any period of probation on appointment
or promotion.
Clause 8 amends section 8A of the PRA to substitute the existing
subsection (4) with new subsections (4), (5) and (6)--
· subsection (4) specifies that police recruits are members
of the force;
· subsection (5) vests a police recruit with all the powers
and privileges of a constable at law, including the
common law;
· subsection (6) enables the Chief Commissioner to
suspend the powers and privileges held by a recruit.
Clause 9 amends section 11 of the PRA to insert new subsections (2), (3),
(4), (5), (6), (7) and (8)--
· subsection (2) enables the Chief Commissioner to
suspend the powers and privileges of any member of the
force who is on secondment to another organisation or
body or on leave without pay. The powers of a member
of the police force that are suspended under this
provision include the powers vested in the member
under the public office of a constable at common law;
· subsection (3) provides that the suspension of the
powers of a police member remains in force for the
period specified in the notice given to the member by
the Chief Commissioner;
· subsection (4) removes the authority of the Chief
Commissioner or any other police officer from giving a
police member an instruction in respect of the member's
performance of his or her functions or duties while that
member's powers and privileges are suspended;
· subsection (5) provides a member whose powers and
privileges are suspended does not engage in misconduct
by failing to comply with a standing order or instruction
of the Chief Commissioner;
5
· subsection (6) clarifies that the section does not affect
the ability of the Chief Commissioner to end a police
member's secondment or period of leave without pay or
lift a suspension;
· subsection (7) requires police members whose powers
have been suspended by the Chief Commissioner to
surrender any police identification and any police
equipment required to be surrendered to the Chief
Commissioner;
· subsection (8) defines police identification and police
equipment for the purposes of the section.
Clause 10 substitutes a new section 16 into the PRA to provide for the
cessation or suspension of police powers.
Subsection (1) specifies that all powers held by a member of the
force cease at the time the member is discharged, dismissed or
ceases to hold office as a member of the force.
Subsection (2) specifies that all powers and authorities of a police
member (this includes the powers vested in the member at law as
holder of the office of constable) are suspended during any
period of suspension--
· under section 8A(6) (a recruit), section 11(2) (members
seconded to another entity or on leave without pay); or
· pending dismissal under section 68; or
· during an investigation under section 70(3)(c); or
· under section 79(2)(c) when charged with a criminal
offence punishable by imprisonment.
A new subsection (3) clarifies that a member of the force whose
powers are suspended, nevertheless remains a member of the
force.
Clause 11 substitutes the following new heading to Part II of the PRA--
PART II--DUTIES AND PROFESSIONAL
DEVELOPMENT.
Clause 12 amends section 118B(1) of the PRA to extend the role of
protective services officers, in addition to the purposes specified
in that section, to other security services determined by the Chief
Commissioner.
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Clause 13 repeals section 118(1A) of the PRA to remove the limit on the
number of protective services officers that may be appointed.
Clause 14 substitutes section 13(1) to provide that a person appointed as a
fixed-term member is not capable of acting as such a member
until he or she has taken and subscribed the oath or made and
subscribed the affirmation set out in Form D in the Second
Schedule.
The clause also amends the Second Schedule to the PRA to insert
a new Form D (oath or affirmation to be taken by fixed-term
members of the police force).
PART 3--PERFORMANCE AND PROFESSIONAL
DEVELOPMENT
Clause 15 amends section 3(1) of the PRA to insert a new definition of
professional development process which means the process
established by the Chief Commissioner under section 18 of the
PRA.
Clause 16 inserts new sections 18, 18AA and 18AB into the PRA to provide
for the establishment of a professional development process.
Section 18 requires the establishment of a professional
development process for the professional development of
members of the force. The purposes of that process include the
regular assessment of a member's performance. The professional
development process will require all members of the force to
have a professional development plan that specifies the standards
required of members in performing their duties. A remedial plan
may be inserted into the performance management plan of any
member who is not performing his or her duties adequately or
who has engaged in misconduct. The section also enables the
regulations to provide a framework for the professional
development process including the standards of performance
required of police members and matters to be included in the
professional development plan.
Section 18AA enables a member of the force to obtain internal
review of any--
· requirement of a performance management plan or a
remedial plan; or
· determination that he or she has failed to comply with
the requirements of a performance management plan or
remedial plan; or
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· other action with respect to the member (other than
dismissal)--
if the requirement, determination or action has had, or is likely to
have, an adverse effect on the member's remuneration, rank or
seniority.
Regulations may provide for exceptions to the power to seek
review in cases such as where the application is frivolous,
vexatious or lacking in substance, the applicant does not have
sufficient personal interest, where an initial review was not
originally sought, the application is outside the specified period
or should be the subject of a complaint under the Equal
Opportunity Act 1995.
Section 18AB specifies the requirements for the conduct of an
internal review. The rules of natural justice must be observed,
the person conducting the review must be unconnected with the
original decision or action which is the subject of the review and
other requirements as specified in the regulations. A formal
hearing is not required. If a formal hearing is held, the person
seeking the review may be represented by any person other than a
legal practitioner. After the review, the review officer must
report to the Chief Commissioner including any
recommendations made.
PART 4--REMEDIAL PROCEDURES AND DISMISSAL
Clause 17 substitutes the following new heading to Part IV of the PRA--
PART IV--REMEDIAL PROCEDURES AND
DISMISSAL.
Clause 18 makes a number of amendments to sections 68A, 68C and 68D of
the PRA.
Sections 68A(3) and (4) are amended to allow the Chief
Commissioner to apply to a member of the Police Appeals Board
and for the member to grant an extension of a suspension pending
a decision of the Chief Commissioner under section 68.
This power is currently limited to the Chair of the Police Appeals
Board.
Section 68C is amended by inserting new subsections (4) and (5).
Those new subsections impose a mandatory requirement on the
Police Appeals Board, when conducting a review of the decision
of the Chief Commissioner to dismiss a police member under
section 68, to have regard to the public interest and the interests
8
of the applicant. The public interest is defined as including the
interest in--
· maintaining the integrity of, and community confidence
in, the force;
· protecting the community from wrongful acts by
members of the force;
· maintaining the high self esteem of serving members of
the force.
Section 68D is amended to substitute subsections (1) and (2).
New subsection (1) requires the Police Appeals Board to confirm
the decision of the Chief Commissioner to dismiss a police
member under section 68 unless the decision is not sound,
defensible or well-founded. New subsection (2) empowers the
Police Board to order the payment of compensation of up to 12
months remuneration if it is satisfied that the decision to dismiss
the member was not sound, defensible or well-founded.
The power of the Police Appeals Board to order the reinstatement
of a member is removed. Consequent on the removal of the
reinstatement power, the power to order the payment of
remuneration lost between the dismissal and reinstatement in
section 68D(2) is repealed. The power of the Police Appeals
Board to refer the matter back to the Chief Commissioner with
recommendations or directions is also repealed.
Section 68D(3) is amended consequential on the substitution of
subsection (1).
Clause 19 substitutes a new Division 2 of Part IV of the PRA, which inserts
new sections 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 78A and 78B
into the PRA.
The new section 69 defines the term misconduct for the purposes
of the PRA. This term includes any contravention of the PRA,
regulations or obligations imposed on the force such as
complying with a standing order or lawful instruction, obtaining
the Chief Commissioner's approval to apply for or hold a licence
or permit or carry on a trade, business or occupation and
providing a sample of breath, urine or blood for testing for
alcohol or drugs when directed to do so. The term also includes
other contraventions of the law including committing an offence
under any law and failure to comply with obligations under the
Whistleblowers Protection Act 2001. Conduct that is
disgraceful or improper (including in the member's private
capacity) or which is prejudicial to the discipline of the force, or
9
conduct that will diminish public confidence in it, is also
included in the definition.
The new section 70 empowers the Chief Commissioner to
investigate a member who may have engaged in misconduct.
Under the investigation powers, the member may be interviewed
and statements or information collected from other persons.
During the investigation, the Chief Commissioner may transfer or
suspend the member or direct that the member take leave.
A suspension under this section remains in effect until it is
decided not to dismiss the member or refer the member for
remedial action. After the investigation, the Chief Commissioner
may--
· if the nature or circumstances of the misconduct warrant
dismissal, give the member a show cause notice under
section 71; or
· in any other case, deal with the member under the
professional development process.
Section 71 provides that if--
· an investigation under section 70 reveals that the police
member has engaged in misconduct and the nature or
circumstances of the misconduct warrant the dismissal
of the member; or
· the member has had an offence against the law of
Victoria or another jurisdiction found proven against
him or her--
the Chief Commissioner may give a written notice to the member
requiring the member to "show cause" why he or she should not
be dismissed. After considering the member's response, the
Chief Commissioner may either dismiss the member under
section 72 or take remedial action under section 73.
The regulations may prescribe a minimum period of notice for a
member to respond to a show cause notice under this section.
If the Chief Commissioner reasonably believes that the police
member has committed an offence set out in the First Schedule to
the PRA, the Chief Commissioner must consult with the Director
of Public Prosecutions before giving a show cause notice.
Section 72 allows the Chief Commissioner to dismiss a police
member if, after giving a show cause notice under section 71,
the Chief Commissioner is satisfied that the police member has
engaged in misconduct and the nature or circumstances of that
misconduct warrant dismissal.
10
Section 73 allows the Chief Commissioner to take remedial
action in respect of a police member if, after giving a show cause
notice under section 71, the Chief Commissioner is satisfied that
the member has engaged in misconduct but is not satisfied that
the member's misconduct warrants dismissal. The remedial
action may include--
· imposing an undertaking to be of good behaviour for a
period not exceeding 2 years; or
· imposing a remedial plan on the member (as part of his
or her professional development plan) to address his or
her misconduct; or
· transfering the member to other duties.
If the member breaches an undertaking to be of good behaviour,
a professional development plan or remedial plan imposed under
this section, the Chief Commissioner may dismiss the member
under section 72 or impose further remedial action.
Section 74 gives protection to any disclosures, admissions or
documents produced for the purposes of--
· an investigation under section 70; or
· dealing with a member under section 70(5)(b); or
· dismissing a member under section 72; or
· taking remedial action against a member under
section 73--
so that they are not admissible in any court proceedings or before
any person acting judicially, unless the proceedings are--
· for perjury; or
· a criminal proceeding against a person (not being the
person who made the disclosure, admission or produced
the document under section 74(1)) and only if the court
determines that the admission is necessary for a fair
hearing; or
· a criminal proceeding against the person who made the
disclosure, admission or produced the document under
section 74(1), if that person seeks to rely on the
evidence; or
· for an offence under section 113(2) of the Police
Integrity Act 2008; or
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· a review under Division 1 (the review of a decision to
dismiss a police member under section 68); or
· a review of the decision to dismiss a member under
section 72 or to take remedial action under section 73.
Division 2A--Underperformance
The new section 75 empowers the Chief Commissioner to--
· investigate a member who--
· may be underperforming in his or her duties; or
· demonstrates behaviour that impacts adversely
on the performance of his or her duties; or
· has failed to comply with a professional
development plan or a remedial plan; or
· assess the performance of duties by a member at any
time.
The new section 76 provides that if an investigation under
section 75 reveals that the police member has failed to comply
with a requirement of his or her performance management plan
or a remedial plan and dismissal is warranted, the Chief
Commissioner may give a notice to the member requiring the
member to "show cause" why he or she should not be dismissed.
After considering the member's response, the Chief
Commissioner may either dismiss the member under section 77
or take remedial action under section 78. The regulations may
prescribe the form of, and details to be included in, a show cause
notice and the time allowed for the police member to respond.
Section 77 allows the Chief Commissioner to dismiss a member
of the force if, after giving a show cause notice under section 76,
the Chief Commissioner remains satisfied that the member has
failed to comply with a requirement of his or her performance
management plan or a requirement of a remedial plan and that
dismissal is warranted.
Section 78 allows the Chief Commissioner to take remedial
action in respect of a police member if, after giving a show cause
notice under section 76, the Chief Commissioner is satisfied that
the member has failed to comply with a requirement of his or her
professional development plan or any remedial plan but is not
satisfied that the member's failure warrants dismissal.
The remedial action may include--
12
· imposing an undertaking to be of good behaviour for a
period not exceeding 2 years; or
· imposing a further remedial plan on the member (as part
of his or her professional development plan) to address
his or her behaviour or work performance; or
· transfering the member to other duties.
If the member breaches an undertaking to be of good behaviour,
the Chief Commissioner may dismiss the member or impose a
further undertaking to be of good behaviour, a further remedial
plan or transfer the member.
Section 78A gives protection to any disclosures, admissions or
documents produced for the purposes of--
· an investigation under section 75; or
· dismissing a member under section 77; or
· taking remedial action against a member under
section 78--
so that they are not admissible in any court proceedings or before
any person acting judicially, unless the proceedings are--
· for perjury; or
· a criminal proceeding against a person other than the
person who made the disclosure, or produced the
document under 78A(1), if the court determines that the
admission is necessary for a fair hearing; or
· a criminal proceeding against the person who made the
disclosure, or produced the document under
section 78A(1), if that person seeks to rely on the
evidence; or
· for an offence under section 113(2) of the Police
Integrity Act 2008; or
· a dismissal under 68; or
· a review of the decision to dismiss a member under
section 77 or to take remedial action under section 78.
Section 78B provides that the Chief Commissioner is bound by
the rules of natural justice in making any decision or taking any
action under Division 1, 2 or 2A of Part IV of the PRA.
13
Clause 20 substitutes a new section 80 that makes it clear that the Chief
Commissioner is not prevented from dismissing a member under
section 68 of the PRA or dismissing the member or taking
remedial action against the member for misconduct or
underperformance under Division 2 or Division 2A of the PRA
respectively in the event that the member--
· is being investigated for a breach of the criminal law; or
· has been charged with an offence and the determination
of that offence by a court is pending.
The clause also repeals section 81 of the PRA.
Clause 21 substitutes a new Division 4 of Part IV that inserts a new
section 82 into the PRA.
The substituted section 82 allows the Chief Commissioner to
direct any member of the force to provide any relevant
information, produce any relevant document or answer any
relevant question considered necessary for the purposes of--
· determining whether to dismiss a member under
section 68; or
· an investigation or assessment under section 70 or
section 75; or
· determining whether to dismiss a police member under
section 72 or section 77 or take remedial action against
a member of the force under section 73 or 78.
A police member must comply with a direction under this
provision and commits misconduct if he or she fails to do so.
Any information, document or answer given under this section is
not admissible in any court proceedings or before any person
acting judicially, unless the proceedings are--
· for perjury; or
· a criminal proceeding against a person (not being the
person who was given a direction under this section or
section 86Q(1)) if the court determines that the
admission is necessary for a fair hearing; or
· a criminal proceeding against a person who was given a
direction under this section or section 86Q(1) if that
person seeks to rely on the evidence; or
14
· for an offence under section 113(2) of the Police
Integrity Act 2008 concerning a failure to comply with
a direction under section 47 of that Act; or
· a review under Division 1; or
· a review of the decision to dismiss a member under
sections 72 or 77 or to take remedial action under
sections 73 or 78.
Clause 22 makes additional technical amendments to Part IV of the PRA
to--
· substitute a redundant reference to "a breach of
discipline" with the term "misconduct" in
section 85D(2)(c) of the PRA;
· remove a redundant reference to a provision allowing
suspension without pay in section 86(1) of the PRA;
· repeal section 86AAA.
Clause 23 amends section 86Q of the PRA to--
· substitute a redundant reference to "a possible breach of
discipline under section 69" with the term "possible
misconduct within the meaning of section 69" in
section 86Q(1);
· substitutes a new section 86Q(2) that provides that a
police member must comply with a direction under
section 86Q(1) to furnish relevant information, provide
a relevant document or answer a relevant question.
Failure to do so will constitute misconduct under
section 69(1)(a).
· substitutes a new section 86Q(3) that provides that any
information, document or answer given under
section 86Q(1) is not admissible in any court proceeding
or before any person acting judicially, unless the
proceeding is--
· for perjury; or
· a criminal proceeding against a person (not being
the person who was given a direction under this
section or section 82(1) or (2)) if the court
15
determines that the admission of the evidence is
necessary for a fair hearing; or
· a criminal proceeding against a person who was
given a direction under this section or section
82(1) or (2) if that person seeks to rely on the
evidence; or
· a proceeding for an offence under section 113(2)
of the Police Integrity Act 2008 concerning a
failure to comply with a direction under
section 47 of that Act; or
· a review under Division 1 of Part IV; or
· a review of a decision to dismiss a police
member under section 72 or section 77 to take
remedial action against a police member under
section 73 or section 78.
Clause 24 amends section 91F of the PRA to--
· substitute a new section 91F(1)(c) allowing members of
the police force to apply to the Police Appeals Board to
review a decision of the Chief Commissioner to
terminate the appointment of a constable on probation
or on extended probation under section 8(5) of the PRA;
· amend section 91F(1)(d) to clarify that the right of a
police member to apply to the Police Appeals Board for
review of a decision of the Chief Commissioner to
compulsorily transfer a member does not include review
of a transfer under section 70 during an investigation
under that section;
· repeal section 91F(1)(e) to remove the power to apply to
the Police Appeals Board to review a decision of the
Chief Commissioner to impose a fine or a determination
following an inquiry or a charge for an offence
punishable by imprisonment being found proven against
the member;
· amend the definition of member of the force in
section 91F(4) because section 91F no longer applies to
dismissals.
16
Clause 25 inserts a new section 91FA into the PRA. The new section
enables a police member who is dismissed from the police force
under section 72 or 77 to apply to the Police Appeals Board for
review of the Chief Commissioner's decision to dismiss him or
her. The application for review must be made within 14 days
after the member is notified of the decision.
The grounds for the Police Appeals Board to review the Chief
Commissioner's decision to dismiss the police member are that
the decision was harsh, unjust or unreasonable. The Police
Appeals Board, in determining whether the decision was harsh,
unjust or unreasonable, must take account of--
· whether the member's past conduct was such as to give
the Chief Commissioner reason to lack confidence in
the member's integrity, ability or willingness to comply
with lawful instructions or carry out his or her duties
efficiently or effectively or refrain from conduct that is
prejudicial to the good order or discipline of the force or
would adversely reflect on the force; and
· whether there was a valid reason to dismiss the member
based on his or her capacity or conduct; and
· whether the member was notified of that reason and was
given the opportunity to respond to issues related to his
or her capacity or conduct.
Clause 26 inserts a new section 91FB and substitutes a new section 91G
into the PRA.
Section 91FB empowers the Police Appeals Board, when
reviewing a decision of the Chief Commissioner to dismiss a
police member under section 72 or 77 or to terminate the
appointment of a member on probation, to--
· set aside the decision and order the reinstatement of the
member as a member of the force; or
· set aside the decision and refer the matter for
determination by the Chief Commissioner in accordance
with any recommendations of the Police Appeals Board;
or
· order the Chief Commissioner to pay the member
compensation in an amount not exceeding 6 months
remuneration (if the member was on leave without full
pay at any time during the preceding 12 months, the
17
compensation will be determined as if the member was
on full pay during that leave); or
· affirm the decision under review.
The Police Appeals Board is prevented from ordering the
reinstatement of the member unless it is satisfied that it is in the
public interest to do so. In assessing the compensation that is
payable, the Police Appeals Board must take into account
whether the member has made a reasonable attempt to find
alternative employment and the remuneration that would have
been payable had the member obtained alternative employment.
In the case of misconduct warranting dismissal based on the
commission of an offence punishable by imprisonment that was
proven, the Police Appeals Board does not have power to set
aside the dismissal decision and--
· order reinstatement of the member; or
· refer the matter for determination by the Chief
Commissioner in accordance with any
recommendations of the Police Appeals Board--
and may only order compensation in accordance with
section 91FB(c) or affirm the order under section 91FB(1)(d).
The substituted section 91G provides that that the Police Appeals
Board, in reviewing a decision (other than a dismissal under
section 72 or 77), may--
· affirm the decision under review; or
· set aside the decision and make another decision in
substitution for it; or
· set aside the decision and refer the matter for
determination by the Chief Commissioner in accordance
with any recommendations of the Police Appeals Board.
Clause 27 makes a number of amendments to sections 91I, 91K and 91M of
the PRA.
Section 91I is repealed.
Section 91K is amended to insert a new subsection (1A).
That subsection excludes the obligation of the Police Appeals
Board in subsection (1) to have regard to the public interest or the
interest of the applicant in the case of the review of a decision
under Division 1 of Part IV (dismissal under section 68) or a
dismissal under section 72 or 77.
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Section 91K(2) is amended to exclude paragraph (b) (which
relates to the review of a decision to dismiss a police member)
from the definition of public interest in that section.
A separate public interest test has been included in the powers of
the Police Appeals Board to review a dismissal under Division 1
of Part IV (section 68) or under section 91FA (review of
dismissals under sections 72 or 77).
Section 91M(1)(a) is substituted to provide that the Board
hearing an application for review of a decision to terminate the
appointment of a member during or at the completion of a period
of probation or further period of probation (under section 8(4) or
8(4A)) must consist of 3 members at least one of whom must be a
legal practitioner of 5 years standing.
Clause 28 repeals Division 1 of Part VA of the PRA.
Clause 29 makes a number of amendments to sections 102EA, 102EB,
102G, 102P and 127 of the PRA as a consequence of the
substitution of the new section 69 of the PRA as follows--
· in section 102EA(4) the term "committed a breach of
discipline under section 69" is substituted with "engaged
in misconduct within the meaning of section 69";
· a grammatical amendment is made to section
102EB(1)(c), in consequence of the repeal of section
102EB(1)(d) and (e);
· sections 102EB(1)(d) and (e) are repealed;
· section 102EB(2) is amended to clarify that, despite the
suspension of the powers of police members under
section 11(4), a police member seconded to the Office
of Police Integrity may give a direction to another
police member seconded to that office if authorised by
the Director to do so;
· in section 102EB(3) the term "an investigation or
inquiry under Part IV in relation to a breach of
discipline by the member" is substituted with "the
taking of any action under Part IV in relation to
misconduct engaged in by the member";
· in section 102G(1)(d)(ii) the term "a breach of discipline
under section 69" is substituted with "misconduct under
Division 2 of Part IV";
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· section 102G(1)(d)(iii) is repealed;
· section 102P(1) is substituted to give the Chief
Commissioner power to investigate whether a special
constable may have engaged in misconduct within the
meaning of section 69 of the PRA;
· the footnote at the end of section 102P(1) is amended so
that the reference to "breach of discipline" is substituted
with "misconduct";
· in section 127(b) the term "commit breaches of
discipline" is substituted with "engage in misconduct
(within the meaning of section 69)".
Clause 30 makes amendments to section 69 of the PRA to insert new
paragraphs (m), (n) and (o) into the definition of misconduct so
that misconduct includes--
· a failure to comply with a direction by the Director of
Police Integrity to provide information, produce any
document or answer a question in an investigation of
misconduct by a police member under section 47 of the
Police Integrity Act 2008;
· a failure to comply with a direction to submit to testing
for alcohol or drugs under Division 5 of Part 2 of the
Police Integrity Act 2008;
· the refusal by a police member to consent to the use of a
sample of his or her blood taken for testing for the
presence of alcohol or drugs under section 33 of the
Police Integrity Act 2008.
Section 86VAD(3)(b) is also amended to substitute the term
"a breach of discipline" with "misconduct".
PART 5--PROCEEDINGS AGAINST MEMBERS OF THE
FORCE
Clause 31 inserts a new Part VID into the PRA that inserts new
sections 118ZB, 118ZC, 118ZD, 118ZE, 118ZF and 118ZG.
The new section 118ZB inserts new definitions for the purposes
of the new Part VIC as follows--
court includes a tribunal and, in relation to a claim for damages,
means any court or tribunal by or before which the claim falls to
be determined;
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independent function, in relation to a member of the force,
means a function conferred or imposed on the member by the
common law or statute independently of the will of the Crown;
legal proceeding means a proceeding in a court;
member concerned in relation to a police tort claim, means the
member of the force in respect of whom the police tort claim is
made;
originating process means any statement of claim, summons,
application or other process by means of which a legal
proceeding is commenced;
police tort claim means a claim for damages for a tort allegedly
committed by a member of the force, in the performance or
purported performance of his or her functions (including an
independent function) as a member of the force, whether or not
committed jointly or severally with any other person.
In the new Part VID, a reference to a function includes a
reference to a power, authority and duty, and the performance of
a function includes a reference to the exercise of a power and the
failure to perform the function or exercise the power.
The new section 118ZC provides that the Crown cannot deny
being vicariously liable for a tort that is alleged to have been
committed by a member on the basis that the member is not an
employee of the Crown or that the conduct giving rise to the
claim occurred in the performance by the member of an
independent function.
The new section 118ZC(2) makes it clear that acceptance by the
Crown of vicarious liability for the independent functions of
members of the force does not make police members employees
of the Crown.
The new section 118ZD provides that a police tort claim must be
made against the Crown and not the member concerned. The
person making the claim may join the member concerned as a
party to the claim only if the Crown denies that it would be
vicariously liable for the alleged tort and must do so within
2 months of the Crown denying vicarious liability.
The new section 118ZE prevents a court from finding that the
Crown is vicariously liable if the conduct by the member
concerned giving rise to the tort was serious and wilful
misconduct or was not committed by the member in the
performance or purported performance of his or her duties or the
performance of an independent function.
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The new section 118ZF clarifies that the Limitation of Actions
Act 1958 does not prevent an amendment to join the member
concerned as a party to a police tort claim if the amendment to
the originating process is made within 2 months after the Crown
denies that it would be vicariously liable for the tort.
The new section 118ZG clarifies that--
· the Crown may bring proceedings for contribution or
indemnity in any legal proceeding from a police
member for a tort committed by that member;
· the Crown may join a member to a proceeding for
damages for a tort committed by that member;
· a person may bring a legal proceeding against another
person who is not a member of the force but who is
jointly or severally liable for a tort committed by a
police member;
· a person may make a police tort claim against a member
of the force in any proceedings brought by the member
against that person;
· a person may bring legal proceedings against a member
of the police force for a tort committed by the member
outside the member's service as a police member.
Clause 32 makes amendments consequential to the new sections
118ZB, 118ZC, 118ZD, 118ZE, 118ZF and 118ZG enacted in
new Part VID of the PRA.
Section 123 (the former provision governing proceedings against
members of the force) is repealed.
Sections 102EB(1)(c)(ii) and 103(3) of the PRA and section
20(1)(c)(ii) of the Police Integrity Act 2008 are amended to
substitute the obsolete reference to section 123 of the PRA in
those provisions with references to the new Part VID of the PRA.
PART 6--TRANSITIONAL AND MISCELLANEOUS
AMENDMENTS
Clause 33 amends section 85H of the PRA to insert a new subsection (2).
This new subsection ensures that the power to make regulations
under the PRA extends to allowing regulations to--
· require matters to be in accordance with specified
standards or approved by specified persons or bodies;
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· adopt apply or incorporate any document (either wholly
or partially) as in force or published from time to time;
· confer discretionary authority on a person or class of
persons; and impose a penalty not exceeding 20 penalty
units.
Clause 34 makes minor technical amendments to sections 85F and
127A(1F) of the PRA.
Clause 35 inserts transitional provisions into the PRA (new section 137).
137 Transitional provision--Police Regulation Amendment
Act 2008
The transitional provisions under this section provide that--
· new section 68D applies only in respect of an
order under section 68(1), notice of which was
given under section 68(2)(a) on or after the
commencement of section 18 of the Police
Regulation Amendment Act 2008 (this amending
Bill) and section 68D as in force immediately
before the commencement of section 18 of this Bill
continues to apply to an order under section 68(1),
notice of which was given before that
commencement;
· an investigation for misconduct may be
commenced under the new provisions of
Division 2 of Part IV of the PRA whether the
conduct complained of occurred before or after the
commencement of section 19 of this Bill.
If, before the commencement of that section, a
charge was brought under the provisions of the
former Division 2 of Part IV of the PRA against a
member, those provisions as in force immediately
prior to the commencement of section 19 of the
amending Act continue to apply to that charge;
· if, before the commencement of section 19 of the
amending Act, notice has been given to a police
member of the Chief Commissioner's intention to
take action against the member under the former
section 80, as in force prior to the commencement
of section 19 of the amending Act, section 80
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continues to apply with respect to the member
given notice;
· an investigation commenced under the former
provisions of Division 2 of Part IV of the PRA but
not completed before the commencement of
section 19 of the amending Act, may be continued
under the new provisions of Division 2 of Part IV
as if the investigation was an investigation into
misconduct under the new provisions;
· Division 2 of Part V as in force prior to the
commencement of section 24 of the amending Act
applies to a review of a decision made by the Chief
Commissioner or her delegate prior to that
commencement;
· the new Part VID applies only to proceedings
commenced on or after the commencement of
section 31.
PART 7--CONSEQUENTIAL AMENDMENTS TO OTHER
ACTS
Clause 36 amends section 90F(2) of the Melbourne City Link Act 1995 to
substitute the term "a breach of discipline within the meaning of"
with "misconduct within the meaning of section 69 of".
Clause 37 amends sections 3, 19(4), 20(1)(d), 20(3), 22(1)(d), 33(2)(c),
47(1), 47(2)(b), 69(3)(b) and 125(4)(c) of the Police Integrity
Act 2008 to substitute obsolete references to a "breach of
discipline" in the PRA with "misconduct under Division 2 of
Part IV" or "misconduct (within the meaning of section 69 of the
Police Regulation Act 1958)". These amended references are
consequential on the amendments made to Part IV of the PRA by
this Bill. The clause also repeals sections 142(2)(a) and (b).
Clause 38 amends sections 55 and 90 of the Whistleblowers Protection
Act 2001 to--
· insert a note at the end of section 55(1) to alert a reader
that a failure by a member of the police force to comply
with a direction by the Ombudsman under that section is
"misconduct" for the purposes of Division 2 of Part IV
of the PRA;
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· repeal section 55(2) that contains an obsolete reference
to a "breach of discipline" under section 69 of the PRA;
· substitute section 55(3) with a provision that ensures
that any information, document or answer provided by a
police member under section 55(1) is not admissible in
any court proceedings other than a proceedings for
perjury, a review of a decision to dismiss a police
member under Division 1 of Part IV of the PRA or in
relation to a decision to dismiss a police member or to
take remedial action under Division 2 of Part IV of the
PRA;
· insert a note at the end of section 90(1) to alert a reader
that a failure by a member of the police force to comply
with a direction by the Chief Commissioner under that
section is "misconduct" for the purposes of Division 2
of Part IV of the PRA;
· repeal section 90(2) that contains an obsolete reference
to a "breach of discipline" under section 69 of the PRA;
· substitute section 90(3) with a provision that ensures
that any information, document or answer provided by a
police member under section 90(1) is not admissible in
any court proceedings other than a proceedings for
perjury, a review of a decision to dismiss a police
member under Division 1 of Part IV of the PRA or in
relation to a decision to dismiss a police member or to
take remedial action under Division 2 of Part IV of the
PRA.
PART 8--REPEAL OF AMENDING ACT
Clause 39 provides that this Bill is repealed on 1 December 2010.
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