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POLICE REGULATION AMENDMENT BILL 2012

Police Regulation Amendment Bill 2012

                           Introduction Print


                 EXPLANATORY MEMORANDUM


                                    General
This Bill amends the Police Regulation Act 1958 ("the Principal Act").
The primary objectives of the amendments are to--
         streamline the processes for appeals of transfer and promotion
         decisions so that appeals are lodged and determined within tight
         timelines;
         modify the rights of police members to appeal transfer and promotion
         decisions;
         provide for a police member to be deemed as having abandoned his or
         her employment after a period of unauthorised absence;
         provide more flexible working arrangements for police members by
         allowing the Chief Commissioner of Police ("Chief Commissioner")
         to offer fixed term or part time appointments for specific fixed term
         roles or project work and provide assistance in emergency
         management situations;
         establish a Police Registration and Services Board ("PRS Board") that
         will comprise--
                a Police Profession Registration Division that will maintain a
                Police Profession Register that can register former members of
                Victoria Police or members on leave without pay or
                secondment who have established their probity and
                qualifications for re-entry into the force and provide advice to
                the Chief Commissioner on the probity and qualifications of
                police from other jurisdictions seeking lateral entry at rank into
                Victoria Police; and




571270                                   1     BILL LA INTRODUCTION 23/10/2012

 


 

a Review Division that will determine appeals against promotion and transfer decisions and determine reviews of all actions and decisions that can be reviewed under the Principal Act (including dismissal, demotion and directed transfers of police members); and a Professional Standards Division that will promote appropriate education to police members and educational and training programs to enhance the professionalism of police; make amendments to the regulation-making powers consequential on the amendments in this Bill and technical amendments to the regulation making-power; and make consequential and technical amendments to the Principal Act. These amendments to the Principal Act implement the legislative reforms agreed by the Government and the Chief Commissioner with The Police Association in the Allied Benefits Memorandum of Understanding (MOU). The MOU was negotiated as a complementary agreement to the Victoria Police Force Enterprise Agreement 2011. The MOU agreed a range of other matters that allow productivity gains and changes to enhance management flexibility. Many of the changes to matters such as roster and shift flexibility and the rationalisation of other entitlements will be implemented administratively. This Bill amends the Principal Act to implement the agreed reforms that require legislative change. Clause Notes Clause 1 states the purpose of the Bill. Clause 2 is the commencement provision. The Bill will commence operation on a day or days to be proclaimed. The default commencement date is 1 April 2014 if a provision is not proclaimed earlier. Clause 3 specifies the Police Regulation Act 1958 as the Principal Act that is amended by this Bill. 2

 


 

Clause 4 amends section 3(1) of the Principal Act to-- insert new definitions of-- directed transfer as a transfer under the new section 8AC of the Principal Act of a police member to any part of the State that is necessary to provide policing services; police force of another jurisdiction as the police force of any other Australian jurisdiction or of another country or part of another country; Police Profession Register as the register kept under the new section 87ZO of the Principal Act of members of the force who are absent on secondment or leave without pay or former members who are seeking re-entry into Victoria Police; police reservist as persons appointed as police reservists to the Retired Police Reserve of Victoria under Part VI of the Principal Act; Professional Standards Division as the Division of the PRS Board established under the new section 87B(b) of the Principal Act with the professional standards functions, which include supporting the professional development of police; professional standards function as a function specified under the new section 87A(1)(b) of the Principal Act. These functions include advising the Chief Commissioner about and approving competency and practice standards, educational courses and training and promoting the continuing education and development of police protective services officers and police reservists; protective services officer as a person appointed under Part VIA of the Principal Act to provide services for the protection of certain public officials, public offices, the general public in certain places and certain places of public importance; 3

 


 

PRS Board as the Police Registration and Services Board established under the new section 87 of the Principal Act that is to provide registration functions, professional standards functions and review functions under the Principal Act; PRS Board officer as a PRS Board member or a person employed by the Board or the staff of a government department, statutory authority or other public body who provide services to the Board by agreement or arrangement; Registration Division as the Division of the PRS Board established under the new section 87B(a) of the Principal Act with the registration functions, which include registering qualified persons on the Police Profession Register; registration function as a function specified under the new section 87A(1)(a) of the Principal Act. These functions include maintaining the Police Profession Register, registering qualified persons on that register and advising the Chief Commissioner on proposed appointments to the force; Review Division as the Division of the PRS Board established under the new section 87B(c) of the Principal Act with the review functions, which include hearing and conducting appeals and reviews under the Principal Act; review function as a function specified under the new section 87A(1)(c) of the Principal Act. These functions include hearing and determining appeals of transfer or promotion decisions and reviews of decisions affecting a police member's employment (including decisions to dismiss or demote the member). repeal the definition of Appeals Board which is obsolete due to the substitution of Part V of the Principal Act by clause 16 of this Bill. 4

 


 

Clause 5 makes amendments to sections 6 and 6A of the Principal Act that are consequential on the repeal of Division 1 of Part IV of the Principal Act to-- repeal section 6(1A); and amend section 6A(1)-- to remove obsolete references to the Chief Commissioner's power to dismiss a police member under section 68 or suspend a member under section 68A. Clause 6 amends section 8 of the Principal Act to-- insert a new subsection (3) that specifies that the appointment of a police member under section 8(1) may be on a full-time or part-time basis and may be on a fixed term or ongoing basis; and insert a new subsection (3A) that limits the ability to appoint police members on a part-time or fixed term basis to appointments for the purposes of a specific project or task force of finite duration or dealing with an emergency within the meaning of the Emergency Management Act 1986; and insert a new subsection (10) that requires the Chief Commissioner to publish notice of the selection decisions for transfer and promotions in the Police Gazette. This requirement is currently in regulation 24 of the Police Regulations 2003. Clause 7 repeals section 8AA of the Principal Act as a consequence of the provisions inserted in relation to appeals against promotion and transfer decisions in the new Part IVAA of the Act inserted by clause 15. New section 86AC will provide for these appeals. Clause 8 amends section 8AB of the Principal Act to substitute obsolete references to the repealed section 8AA with the new section 86AC. The amendments also mean that the efficiency grounds in section 8AB that are used to determine appeals of promotion and transfer decisions do not apply to directed transfers under the new section 8AC. 5

 


 

Clause 9 inserts a new section 8AC into the Principal Act to give the Chief Commissioner the power to make immediate directed transfers of police members to any part of the State if it is necessary to provide policing services. This power is currently in regulation 21(1) of the Police Regulations 2003. Clause 10 inserts new sections 9 and 9A into the Principal Act to provide for the appointment to the force of former police members and police members of other jurisdictions. New section 9 enables the Chief Commissioner to request the advice of the PRS Board of the suitability of a person who is or was a member of the police force of another jurisdiction (but has never been a member of the police force in Victoria) for appointment to the police force in Victoria. The PRS Board will advise whether the person has the necessary good character, qualifications and experience for appointment (or will have the required qualifications and experience on completion of training specified by the Board). The Chief Commissioner is required to consider the advice of the PRS Board as to the suitability of the person for appointment to the force and at which rank they should be appointed. New section 9A enables the Chief Commissioner to appoint to the police force a person who has formerly been a member of the police force in Victoria and is registered on the Police Profession Register. If the former police member is not registered on the Police Profession Register, the Chief Commissioner may request the advice of the PRS Board as to whether the person has the required good character and qualifications and experience (or will have the required qualifications and experience with the completion of specified training) and the aptitude and efficiency of a member at the proposed appointment rank. The Chief Commissioner is required to consider the advice of the PRS Board as to the suitability of the person for appointment to the force and at which rank they should be appointed. Clause 11 amends section 11(1) of the Principal Act to clarify that the powers and privileges vested in and the duties imposed on a constable are subject to the provisions of that section. New subsections (2) to (9) are also inserted to provide that these powers, privileges and duties will not apply in some instances-- for example, when the member is absent from the force engaged in other paid employment. 6

 


 

New subsection (2) enables the Chief Commissioner to give a notice to a member of the force who is about to begin or is on leave without pay (other than excluded leave) for 28 days or more or is on secondment to any organisation or body. It is expected that members on excluded leave (which is defined in subsection (9)) will not be engaged in paid employment outside the force. New subsection (3) provides that the powers and privileges vested in and the duties imposed on a constable under section 11(1) do not apply to a member while a notice under subsection (2) is in force. New subsection (4) provides that the notice under subsection (2) operates from the time notice is given to the member (or a later time specified in the notice) until the expiry period specified in the notice or the registration of the member on the Police Profession Register, whichever is the later. New subsection (5) provides that while the notice under subsection (2) is in force, the Chief Commissioner or any member of the force is prevented from giving the member an instruction as to the performance of his or her duties and the member does not commit a breach of discipline for failing to comply with a Chief Commissioner's instruction or a standing order. New subsection (6) enables the Chief Commissioner to cancel a notice under subsection (2) by written notice at any time. New subsection (7) clarifies that section 11 does not prevent the Chief Commissioner from ending a member's period of secondment or period of leave without pay. New subsection (8) requires a police member who is given a notice under subsection (2) to surrender his or her police identification and equipment. New subsection (9) inserts new definitions for the purpose of section 11-- excluded leave is defined to mean maternity, paternity, parental, compassionate or study leave or leave granted for the purpose of service with another law enforcement agency or a professional association representing police. If a police member is or intends to be absent from the force on excluded leave, the Chief Commissioner 7

 


 

cannot issue a notice to that member under subsection (2); police equipment is defined as equipment issued to members of the force; police identification as any thing carried or worn by a police member that purports to identify them as a member of the force. Clause 12 inserts a new section 16C into the Principal Act to provide that any member who is absent from duty from the force without authorisation or lawful reason for a month or more is taken to have abandoned their appointment. Clause 13 repeals Division 1 of Part IV of the Principal Act which allowed the Chief Commissioner to dismiss a police member from the force on the grounds that the member is unsuitable to remain a member of the force. Clause 14 substitutes a new Division 4 of Part IV of the Principal Act to reform the provisions dealing with unfitness for duty. The new Division, consisting of sections 82, 83 and 84, enables the Chief Commissioner to take action where a police member is incapable of performing his or her duties as a member of the force. New section 82 inserts new definitions for the purposes of the Division-- incapacity is defined to include a lack of aptitude, competence, lack of ability or inefficiency; notice of incapacity is defined as the notice that the Chief Commissioner may give a member of the force under the new section 83; remedial action is defined as any action or process of a remedial nature in relation to the performance of the member such as a remedial plan or a transfer to other duties. New section 83 empowers the Chief Commissioner to give a member a notice of incapacity if the Chief Commissioner believes that the member is incapable of performing his or her duties (for reasons not related to physical or mental impairment) and remedial action has not resolved the reasons for incapacity. The notice must state the proposed action to be taken by the 8

 


 

Chief Commissioner (transfer to other duties, demotion or dismissal) and the grounds on which the Chief Commissioner believes the member to be incapable. The member may make a written submission to the Chief Commissioner within 21 days after receiving the notice. New section 84 provides that if, after giving a member a notice of incapacity and considering any submission made by the member, the Chief Commissioner is satisfied that the member is incapable of performing his or her duties, the Chief Commissioner may by written notice, transfer the member to other duties, demote or dismiss the member. The notice must state the grounds on which the Chief Commissioner is satisfied that the member is incapable of performing his or her duties. Clause 15 inserts a new Part IVAA into the Principal Act to provide for appeals and reviews. The new part replaces section 8AA and 118B(4), (4A), (4B) and (5) and Divisions 2 and 3 of Part V of the Principal Act. Division 1--Appeals (new sections 86AC to 86AG) makes provision for the expeditious hearing of appeals against transfer and promotions decisions and the procedures (including time limits) applying to those appeals. New section 86AC (which replaces section 8AA) enables a police member to appeal a decision to promote or transfer another member if he or she has a better claim to the promotion or transfer than the member selected. The right of appeal is confined to those members who applied for the position and who have not lodged appeals on 4 or more occasions in the past 12 months. The appeal must be lodged within 3 days of publication of the selection decision in the Police Gazette (as required by the new section 8(10) inserted by clause 6). The ground for appeal is superior efficiency (and seniority for positions up to senior sergeant). Efficiency for the purposes of this provision is defined in section 8AB. Appeals are not available for-- the transfer or promotion to a position at the rank of superintendent, chief superintendent or commander; 9

 


 

the transfer or promotion of constables or senior constables to general duties positions or the promotion of a constable to a senior constable in the same position; or a transfer made under an expression of interest process applying under an industrial instrument such as the Victoria Police Force Enterprise Agreement 2011. New section 86AD (which replaces section 118B(4), (4A), (4B) and (5)) enables a protective services officer (PSO) to appeal a decision to promote another PSO if he or she has a better claim to the promotion than the PSO selected. The right of appeal is confined to those PSOs who applied for the position and have not lodged appeals on 4 or more occasions in the past 12 months. Appeals are not available for promotion to the position of PSO first class. The appeal must be lodged within 3 days of the publication of the selection decision in the Police Gazette (as required by the new section 118B(6A) inserted by clause 20). The only ground for appeal is superior efficiency. Efficiency for the purposes of this provision is defined in section 118B(7). New section 86AE provides that the Review Division of the PRS Board hearing an appeal may be either a member of the Review Division sitting alone or 2 members of the Review Division, one of whom must be the President or Deputy President. New section 86AF specifies that an appeal is to be by way of re-hearing. New section 86AG specifies the procedure for the expeditious determination of appeals. On the lodging of an appeal, the Chief Commissioner must send the relevant selection file to the PRS Board within 2 days. No other document concerning the appeal may be lodged by the appellant or the Chief Commissioner without leave of the PRS Board. The PRS Board may grant leave for the lodgement of additional documents only if it is satisfied that exceptional circumstances exist. The appeal must be heard and determined by the PRS Board within business 5 days after the lodgement of the selection file. The matter may be heard and determined in the absence of the appellant if he or she cannot be present at the hearing. 10

 


 

Division 2--Reviews (new sections 86AH to 86AP) makes provision for the conduct and determination of reviews of various decisions, including decisions to make a directed transfer, determine that a member is incapable of performing his or her duties or demote or dismiss a member from the force. New section 86AH (which replaces section 91F(1) and (2)) specifies the decisions of the Chief Commissioner for which a member may seek review of the Review Division of the PRS Board. These decisions include-- not to confirm or to disallow a members promotion or a decision that a member is unsuitable for promotion; a directed transfer of a member; a demotion in rank, the transfer of a member to other duties or dismissal of a member as a disciplinary measure or because a member is incapable of performing his or her duties; other disciplinary measures such as reducing a member's remuneration, imposing a fine or a period of ineligibility for promotion. New section 87AI requires an application for review to be in an approved form and lodged with the PRS Board with 3 days after notification of the decision in the case of a directed transfer decision and 14 days after notification of the decision in any other case. New section 86AJ specifies the constitution of the PRS Board for conducting reviews. In the case of a review of a decision to dismiss a member, the Board must be constituted by 3 members that must include the President or Deputy President of the Review Division and a legal practitioner of at least 5 years standing. In the case of any other review, the Board may be constituted by a member of the Review Division sitting alone or the President or the Deputy President of the Review Division sitting with another member. Any question is to be decided on the opinion of a majority of the members. If 2 or more members are sitting and they are divided on any question, it will be decided on the opinion of the President or Deputy President. 11

 


 

New section 86AK provides that on the lodging of an application for review of a directed transfer decision, the Chief Commissioner must lodge the file relating to the decision with the PRS Board within 2 business days. No further documents relating to the review may be lodged by the applicant or the Chief Commissioner unless the PRS Board gives leave. The PRS Board must hear and determine the review within 5 business days after the decision file is lodged. The matter may be heard and determined in the absence of the applicant if he or she cannot be present at the hearing. New section 86AL requires that, if an application is lodged to review a decision under section 84(2) to transfer, demote or dismiss a member who is incapable of performing his or her duties, the Chief Commissioner must lodge the file relating to the decision with the PRS Board within 2 business days after being notified of the application. New section 86AM requires the PRS Board when conducting a review to have regard to, amongst other things, the interest of the applicant for review and the public interest including maintaining the integrity of and community confidence in the force. This section re-enacts section 91K. New section 86AN specifies the powers and requirements of the PRS Board when considering an application for review of a decision to dismiss a police member. The PRS Board must affirm the dismissal decision unless it is satisfied that the decision is harsh, unjust or unreasonable and-- if the decision was to dismiss a member against whom an offence punishable by imprisonment has been proven under section 80(1)(e), the PRS Board may set aside the decision and-- substitute it with any other decision that the Chief Commissioner could have made; or refer the matter for determination by the Chief Commissioner in accordance with any directions or recommendations of the Board; in any other case-- set aside the decision and substitute it with any other decision that the Chief Commissioner could have made; or 12

 


 

set aside the decision and refer the matter for determination by the Chief Commissioner in accordance with any directions or recommendations of the Board; or order the re-instatement of the member or, if re-instatement in impracticable, order the Chief Commissioner to pay financial compensation to the member, not exceeding the amount of remuneration to the application in the preceding 12 month before his or her dismissal. New section 86AO specifies the requirements of the PRS Board when considering an application for review of a decision to demote, reduce the remuneration of or transfer a member for disciplinary or incapacity reasons, makes a directed transfer of a member or other decision that significantly changes the duties of a member. The Board must affirm the dismissal decision unless it is satisfied that the decision is harsh, unjust or unreasonable, in which case it may set aside the decision and-- substitute it with any other decision that the Chief Commissioner could have made; or refer the matter for determination by the Chief Commissioner in accordance with any directions or recommendations of the Board. New section 86AP provides that on the review of a decision (other than a review under section 86AN or 86AO) the PRS Board may either affirm the decision or set aside the decision and-- substitute it with any other decision that the Chief Commissioner could have made; or refer the matter for determination by the Chief Commissioner in accordance with any directions or recommendations of the PRS Board. Division 3--General procedure for appeals and reviews (new sections 86AQ to 86AZ) sets out general provisions for the conduct of appeals and reviews before the Review Division of the PRS Board. These are similar to the provisions currently in Division 3 of Part V. 13

 


 

New section 86AQ (which re-enacts section 91J) specifies that the PRS Board is bound by the rules of natural justice in all appeals and reviews before it. New section 86AR (which re-enacts section 91L) requires the PRS Board to conduct proceedings with minimal formality and as quickly as a proper consideration of the subject matter permits. Other than requirements in the Act, the Board may regulate its own procedure. The Board must also notify the Chief Commissioner of the lodging of an appeal or review as soon as practicable. New section 86AS (which re-enacts section 91MA) requires that hearings of the PRS Board on an appeal or review be held in public, subject to the power of the Board-- to direct a hearing or part of it be held in private if that would facilitate the appeal or review or it is in the public interest; make an order prohibiting the publication of any part of the hearing or any information derived from it if it is in the public interest. New section 86AT (which re-enacts section 91N and regulations 31 and 37 of the Police Regulations 2003) provides for appearances by parties at appeal and review hearings. On an appeal, both the appellant and the person selected for promotion or transfer may appear. The Chief Commissioner may appear and be represented by any person other than a lawyer. At a review hearing, both the applicant and the Chief Commissioner may appear at the proceedings and be represented by any person other than a legal practitioner. New section 86AU (which re-enacts section 91O) provides that the PRS Board is not bound by the rules of evidence and may inform itself as it sees fit including requiring evidence to be given on oath. A PRS Board member may administer oaths for that purpose. New section 86AV (which re-enacts section 91P) empowers the President or the Deputy President of the Review Division to issue a summons to a person appear and / or produce documents on an appeal or review. The summons may be served personally, by post fax or email to the person's usual or last known address or leaving it at that address with a person apparently over the age of 14

 


 

16 years. Failure to comply with a properly served summons is an offence and a maximum penalty of imprisonment for 10 penalty units is specified. New section 86AW (which re-enacts section 91Q) requires the Chief Commissioner to give effect to an order or decision of the PRS Board on appeal or review. New section 86AX (which re-enacts section 91R) prohibits-- insulting a member of the PRS Board performing functions at a review or appeal; or insulting, harassing or intimidating a person attending a PRS Board hearing of an appeal or review; or misbehaviour at a PRS Board hearing of appeal or review; or contravening an order prohibiting the reporting or publication of a PRS Board hearing contrary to section 86AS(3); or any other act in an appeal or review before the PRS Board that would constitute contempt of court if the PRS Board were the Supreme Court. Contravention is an offence and a maximum penalty of imprisonment for 3 months or 30 penalty units or both is specified. New section 86AY (which re-enacts section 91S) provides that parties involved in an appeal or review before the PRS Board have same protection and immunity as if the proceedings were in the Supreme Court so that-- members of the PRS Board have the same protections and immunities as a judge of the Supreme Court; and a person representing a party has the same protections and immunities as a legal practitioner representing a party in Supreme Court proceedings; and a party to proceedings has the same protections and immunities as a party to proceedings in the Supreme Court; and witnesses have the same protections and immunities as a witness in proceedings in the Supreme Court. 15

 


 

New section 86AZ (which re-enacts section 91T) allows the PRS Board to extend the time limit fixed by the Act or regulations for-- lodging an appeal or application for review; doing any other thing in relation to the appeal or review. However, unlike section 91T, the PRS Board may only extend time if it is satisfied that the extension is justified by exceptional circumstances. Clause 16 substitutes Part V of the Principal Act to provide for the establishment, functions and powers of the PRS Board which will replace the Police Appeals Board. Division 1--Establishment and functions (new sections 87 to 87C) provides for the establishment of the PRS Board and specifies the various Divisions of the PRS Board. New section 87 establishes the PRS Board as a statutory body corporate. The Board has a common seal that may be used as authorised by the Board. The common seal on a document creates a presumption that the document is properly sealed and courts must take judicial notice of the common seal. New section 87A provides that the PRS Board has-- registration functions that include maintaining the Police Profession Register that is established under the Principal Act and registering persons on it and, if requested to do so, advising the Chief Commissioner on proposed appointments to the force; and professional standards functions that include advising the Chief Commissioner and approving competency standards, practical standards and educational courses for police members and PSOs; and review functions that include hearing and determining appeals and reviews under the Principal Act; and general functions that include advice to the Minister and the Chief Commissioner and inquiring into matters referred by the Minister or the Chief Commissioner. 16

 


 

New section 87B establishes the following Divisions of the PRS Board-- Registration Division; Professional Standards Division; Review Division-- to perform the registration, professional standards and review functions of the PRS Board respectively. New section 87C vests the PRS Board with all necessary powers to perform its functions. Division 2--Membership (new sections 87D to 87L) provides for the membership of the PRS Board and its constituent Divisions. New section 87D specifies the membership of the PRS Board as a President, the Deputy Presidents for each of the Divisions, police members (nominated by their professional association or the Chief Commissioner) and an academic. Members are appointed by the Governor in Council on the recommendation of the Minister. The Minister is prohibited from recommending a person for appointment to the PRS Board unless the Minister is satisfied that the person can perform the duties as a member of the PRS Board. Members hold office for 5 years and are eligible for re-appointment. The Public Administration Act 2004 applies to members of the PRS Board in respect of their office as a member but they are not employees under Part 3 of that Act. New section 87E specifies the membership of the Registration Division as the President (ex officio), a Deputy President, the police members nominated by a police professional association, the police members nominated by the Chief Commissioner, an academic and a legal practitioner of at least 5 years standing. New section 87F specifies the membership of the Professional Standards Division as the President (ex officio), a Deputy President and other members that must be academics and legal practitioners of at least 5 years standing or former or serving police members. New section 87G specifies the membership of the Review Division as the President (ex officio), a Deputy President and other members that must include a legal practitioner of at least 5 years standing or a former police member. 17

 


 

New section 87H empowers the President to allocate members of the PRS Board to the Divisions. Members may be allocated to more than one Division. New section 87I provides that members of the PRS Board are entitled to the remuneration and allowances fixed from time to time by the Governor in Council. New section 87J provides for the accountability of the President of the PRS Board for the performance of the PRS Board to the Minister. New section 87K provides that the office of a member of the PRS Board becomes vacant if the member-- becomes insolvent; or is convicted of an offence punishable by imprisonment; or resigns by letter to the Governor in Council; or is removed from office. The Governor in Council, on the recommendation of the Minister, may remove a member from office who-- becomes incapable of performing his or her duties; or is negligent in the performance of his or her duties; or engages in improper conduct; or is absent for 3 consecutive meetings without leave of the President; or is unfit to hold office for any other reason. New section 87L enables the Governor in Council to appoint-- a Deputy President to act as the President; or a person to act as the Deputy President-- during a vacancy in the office of President or Deputy President or if the President or Deputy President is absent or unable to perform his or her duties. The Governor in Council may determine the terms and conditions of that acting appointment and terminate the appointment at any time. 18

 


 

The Minister may appoint a person to act as a member of the PRS Board during the vacancy in the office of a member or if the member is absent or unable to perform his or her duties. The Minister may determine the terms and conditions of that acting appointment and terminate the appointment at any time. Division 3--General provisions for the PRS Board (new sections 87M to 87Q) provides for arrangements for PRS Board meetings, staffing to assist the Board and provisions relating to PRS Board officers. New section 87M provides for meetings of the PRS Board. A meeting must be held every 3 months that is presided over by the President or a Deputy President. A quorum for a meeting of the Board is a majority of the members, at least one of whom must be the President or a Deputy President. Questions are decided at the meeting by a majority of votes with the presiding member having a casting vote if votes are equal. New section 87N provides that a vacancy in the membership of the PRS Board or a defect or irregularity in the appointment of a member will not invalidate acts or decisions of the PRS Board. New section 87O provides immunity from liability to members of the PRS Board for any act or omission in good faith in the performance of a function (other than a review function) under the Act or reasonably believed to be in the performance of a function under the Act. Liability for the act or omission attaches instead to the PRS Board. For a review function, protection for PRS Board members and others is provided in section 86AY inserted by clause 15. New section 87P enables the PRS Board to employ staff under Part 3 of the Public Administration Act 2004 necessary to perform its functions or to enter agreements or arrangements for the use of staff or other government departments, statutory authorities or public bodies. New section 87Q is a confidentiality provision that prohibits a PRS Board officer (which includes the members and staff of the PRS Board) from making a record of or information acquired in the performance of his or her functions. Contravention of this provision is an offence. A maximum penalty of 60 penalty units is specified. This prohibition does not apply to making records or disclosures-- 19

 


 

necessary for the officer to perform his or her functions under the Act; required under the Independent Broad-based Anti- corruption Commission Act 2011; with the consent of the person to whom the information relates; necessary for the PRS Board to complete a report of its operations under the Financial Management Act 1994. Division 4--Checks and investigations by the PRS Board (new sections 87R to 87V) New section 87R specifies that the powers vested in the PRS Board under Division 4 are for the purposes of-- determining whether to register person on the Police Profession Register or renew their registration; or advising the Chief Commissioner as to whether a member of a police force from another jurisdiction or a former member of Victoria Police have the integrity, qualifications and experience for admission or re-admission into the police force. New section 87S empowers the PRS Board to require an applicant or proposed appointee to submit to tests required by the PRS Board and provide the Board with-- a check of their criminal record; references or reports; evidence of recent service as a member of the police force in Victoria or of another jurisdiction; written consent for the Board to obtain information about their previous police service-- for the Board to fulfil its functions under this Division. 20

 


 

New section 87T empowers the PRS Board to-- conduct investigations and enquiries; and require an applicant or proposed appointee to appear before the Board to answer questions and produce documents or information required by the Board-- for the purpose of its functions specified in section 87R. Consideration of an application for registration or renewal of registration by a member of a police force from another jurisdiction or a former member of Victoria Police may be refused if the applicant fails to appear before the PRS Board or answer any question or produce any documents or provide information required by the PRS Board. New section 87U empowers the PRS Board to issue a summons to a person to attend and give evidence or produce documents to the PRS Board. A person who fails to attend before the PRS Board or produce any document required by the summons commits an offence and is liable to a maximum penalty of 10 penalty units. New section 87V provides the means by which a notice or summons under this Division may be served and specifies the time at service is taken to have been effected under the various modes. Clause 17 inserts a new Part VAA into the Principal Act to provide for the operation of the Police Registration Register. Division 1--Registration (new sections 87W to 87Z) provides for the qualifications and eligibility required for registration on the Police Profession Register and for the registration process. New section 87W provides that a person is qualified for registration on the Police Profession Register if they have good character and reputation, have the qualifications and experience prescribed by the regulations as requisites for registration and have the aptitude and efficiency to perform as a member of the force at a specified rank. New section 87X provides that a person may apply for registration (by written application accompanied by evidence of qualifications) if he or she is either-- 21

 


 

a member of the force who is absent on secondment to another body or on leave without pay; or a former member of the force (other than a former member who has been dismissed). An application must be in writing, containing the information required by the PRS Board, and be accompanied by evidence of the applicant's qualifications and experience and the prescribed fee. New section 87Y enables the PRS Board to register an applicant, if it is satisfied that the applicant is qualified for registration in accordance with the criteria set out in section 87W. Registration can be subject to conditions determined by the PRS Board as appropriate. The PRS Board must notify the applicant of its decision on any application including the reasons for any conditions being imposed or the refusal of registration. It cannot refuse registration without first notifying the applicant of its intended action, allowing the applicant the opportunity to make submissions and taking those submissions into account. If the PRS Board registers an applicant, it must include the applicant's details on the Police Professional Register and issue a certificate of the applicant's registration details. New section 87Z specifies that registration of an applicant on the Police Profession Register commences when their details are included on the Register and remains in force until the applicant is appointed as a member of Victoria Police or the expiry of the period of registration specified in the certificate of registration or the cancellation of the applicant's registration, whichever is earlier. Division 2--Renewal of registration (section 87ZA to 87ZC) provides for the process for registration on the Police Profession Register to be renewed. New section 87ZA requires the PRS Board to notify persons registered on the Police Profession Register that their registration is about to expire at least 2 months before the expiry date. New section 87ZB enables a person who is registered on the Police Profession Register to apply for a renewal of their registration by written application accompanied by evidence of their qualifications for registration. If the application is not decided before their registration expires, the registration 22

 


 

continues in effect until the registration is renewed by the PRS Board or the person is notified that renewal of their registration has been refused. New section 87ZC enables the PRS Board to renew the registration of a person on the Police Profession Register if that person is qualified for registration and may make the renewal subject to any conditions that the PRS Board considers appropriate. The PRS Board must ensure natural justice to any person whose registration the Board does not intend to renew by requiring that the applicant for renewal of registration has written notification of the Board's intention and the opportunity to make a submission and for that submission to be considered. Division 3--Suspension and cancellation of registration of registration (sections 87ZD to 87ZJ) New section 87ZD requires the PRS Board to give a written notice to a registered person suspending their registration on the Police Profession Register on receiving a declaration from the Chief Commissioner that the person has been suspended from duty or directed to take leave from the force. The suspension is effective from the time that notice of suspension is given to the registered member and remains in effect until-- the person's return to duty; or the cancellation of the person's registration. New section 87ZE gives a discretionary power to the PRS Board to suspend the registration of the Police Profession Register if-- the PRS Board has received information that the person is not qualified for registration; or the person's application for registration that was false or misleading; or the Chief Commissioner notifies the PRS Board that an inquiry into breach of discipline by the member has commenced. New section 87ZF provides that the effect of a suspension of registration under Division 3 is that the person is taken not to be registered on the Police Profession Register. 23

 


 

New section 87ZG requires the PRS Board to cancel the registration of a person registered on the Police Profession Register on a declaration from the Chief Commissioner that the person has been dismissed from the police force. The cancellation takes effect from the time when notice of it is given to the person. New section 87ZH enables the PRS Board to notify a person registered on the Police Profession Register of the intention to cancel their registration and enables that person to respond within the time specified in the notice (which cannot be less than 21 days after notice was given) to demonstrate why the registration should not be cancelled. The Board must consider the response before cancelling the person's registration. New section 87ZI enables the PRS Board to cancel the registration of a person on the Police Profession Register if that person was given notice of intention to cancel under section 87ZH. The PRS Board must give written notice to the person that their registration has been cancelled. The cancellation will take effect from the day on which this notice is given to the person, unless a later day is specified in the notice. New section 87ZJ requires a person whose registration on the Police Profession Register has been cancelled to return his or her certificate of registration to the PRS Board within 28 days after the notice of cancellation. Failure to do so is an offence with a maximum penalty of 60 penalty units. Division 4--Hearings (sections 87ZK to 87ZN) provides for hearings by the PRS Board concerning the grant or refusal or registration on the Police Profession Register or the cancellation of that registration. New section 87ZK enables the PRS Board to conduct a hearing if the President or the Deputy President of the Registration Division determine that it is necessary to determine whether to-- grant or refuse an application for registration or renewal of registration; or cancel registration-- on the Police Profession Register. Written notice of the day, time and venue of the hearing must be given to the applicant or person given a notice of intention to cancel registration. The hearing is 24

 


 

conducted by 3 members of the Registration Division that must include either the President or the Deputy President of the Registration Division (who will preside at the hearing) and a legal practitioner of at least 5 years standing. New section 87ZL specifies the procedure at hearings of the PRS Board in its Registration Division. An applicant for registration or a person given notice of intention to cancel registration may appear at the hearing and be represented by any person other than a legal practitioner. If the applicant or person fails to appear at the hearing, the hearing may be held in their absence. The PRS Board is not bound by the rules of evidence and may require evidence to be given on oath and administer an oath for that purpose. Matters are decided before the PRS Board by the majority of members present and the presiding member has a casting vote if the members are equally divided. New section 87ZM provides that hearings of the PRS Board to refuse an application for registration, or renewal of registration, on the Police Profession Register must be held in private unless the PRS Board determines to conduct the hearing in public, which it may do-- on application of the applicant; or of its own motion, if it is satisfied that a hearing in public would facilitate the conduct of the proceedings or is in the public interest. New section 87ZN provides that hearings of the PRS Board to cancel the registration of a person on the Police Profession Register must be held in public, but the PRS Board may conduct the hearing (or any part of it) in private-- on application of the person given a notice of intention to cancel; or on its own motion, if it is satisfied that a hearing (or any part of it) in private would facilitate the conduct of the proceedings or is in the public interest. The PRS Board may also make an order prohibiting the reporting, publication or disclosure of the proceedings or any information derived from them. The Board must display a copy of the order where the hearing is being held. Failure to comply with the order is an offence with a maximum penalty of 60 penalty units. 25

 


 

Division 5--Police Profession Register (sections 87ZO to 87ZR) provides for the maintenance of the Police Profession Register by the PRS Board. New section 87ZO requires the PRS Board to keep the Police Profession Register (in a form or manner that it determines) that contains particulars of registered persons, including any conditions imposed on registration, and other information that the PRS Board considers appropriate. A separate part of the Register must contain particulars of persons whose registration has been suspended or cancelled. New section 87ZP requires the Chief Commissioner to give timely notification to the PRS Board if a person registered on the Police Profession Register is-- appointed as a member of the force; or dismissed from the force. Division 6--General (sections 87ZQ and 87ZR) provides for general provisions applicable to the PRS Board in performing its registration functions. New section 87ZQ specifies that the PRS Board is bound by the rules of natural justice. New section 87ZR specifies the methods by which any notice or document required to be given or served may be served upon a person. Clause 18 makes amendments to section 102N of the Principal Act that are consequential on the-- repeal of section 8AA in clause 7; and substitution of a new Part V in clause 16-- because the exclusion of special constables as members of the force for the purposes of these earlier provisions is now redundant. Clause 19 makes a consequential amendment to section 103(3) of the Principal Act to substitute the reference to appeal rights applicable to a member of the force under the former Part V with the new Part IVAA inserted by clause 15. 26

 


 

Clause 20 makes consequential amendments to section 118B of the Principal Act (which deals with PSOs) to-- substitute the obsolete reference in subsection (2) to appeal rights in the former Part V with the new Part IVAA; repeal subsections (4), (4A), (4B), and (5) that are redundant following the new provisions allowing PSOs to lodge appeals against promotions in the new section 86AD and the manner in which promotion decisions are notified under the new section 118B(6A); substitute a reference to an appeal in subsection (6) with a reference to the appeal rights of PSOs under the new section 86AD; insert a new subsection (6A) that requires the Chief Commissioner to publish decisions to the select PSOs for promotion in the Police Gazette. Clause 21 amends the power to make regulations in section 130 of the Principal Act by-- making amendments to subsection (1) that are consequential on or facilitate the operation of the amendments in this Bill to-- substitute an obsolete reference to appeals in paragraph (f) with the new provisions under Part IVAA; substitute an obsolete reference to the Police Appeals Board in paragraph (h) with the new PRS Board; insert a paragraphs (ia), (ib) and (ic) that enable the regulations to prescribe requisite minimum educational and training standards for former members seeking re-entry into the force or standards of ongoing professional development for ongoing members of the force and any additional requirements for appointment or re-appointment to the force; 27

 


 

inserting a new subsection (2) that expands the power to make regulations so that they may-- be of general or limited application; operate differently in different circumstances; apply or incorporate anything contained in another document or standard whether wholly or partially or as amended by the regulations or as formulated at a particular time or as formulated and published from time to time; leave any matter for the approval or satisfaction of a specified person; provide exemptions from the regulations for persons or classes of persons. Clause 22 amends the Principal Act to include a new section 135 that specifies transitional provisions for the implement of the amendments in this Bill. New subsection (1) saves the operation of the provisions in Division 4 of Part IV of the Principal Act to apply to any inquiry into a member's fitness for duty under section 82 of the Principal Act that had commenced but was not completed when clause 14 of this Bill commences. That inquiry will be completed and determined under the former provisions. New subsection (2) provides that the new appeals provisions in Division 1 of Part IVAA will apply to any transfer or promotion decision made on or after the commencement of clause 15 of this Bill unless, on that date, an appeal had already been lodged under the former sections 8AA or 118B(4). In those instances, the appeal will be determined in accordance with the former provisions. New subsection (3) provides that a previous appeal lodged by the member before the commencement of the new appeal provisions in clause 15 of the Bill is counted in determining if the member has lodged 4 or more previous appeals under the new section 86AC(3). 28

 


 

New subsection (4) provides that a previous appeal lodged by a PSO before the commencement of the new appeal provisions in clause 15 of the Bill is counted in determining if the PSO has lodged 4 or more previous appeals under the new section 86AD(2). New subsection (5) provides that the new review provisions in Division 2 of Part IVAA of the Principal Act will apply to a review of a decision specified in the new section 86AH made on or after the commencement of clause 15 of this Bill unless, on that date, an application for review had already been made under the former section 91F. In those instances, the review will be determined in accordance with the former provisions. New subsection (6) provides that the former Part V of the Principal Act will continue to apply to an appeal lodged under section 8AA or 118B, an application for review made under section 91F, or a determination made under section 85 (continued in operation by subsection (1) but not completed before the commencement of clause 14 of this Bill) before the commencement of clause 16 of this Bill will continue to apply. New subsection (7) provides that the Police Appeals Board continues to exist for the purposes of any outstanding appeal or review under subsection (6). New subsection (8) provides for the conversion of the chairperson of the Police Appeals Board into the position of Deputy President of the PRS Board and the deputy chairpersons of the Police Appeals Board into the positions of members respectively. The chairperson and the deputy chairpersons of the Police Appeals Board are taken to have been appointed under the new section 87D for the term of their existing appointments and on the same terms and conditions. Clause 23 provides that this Bill will be repealed on 1 April 2015. The repeal does not affect the continuing operation of the amendments (see section 15(1)) of the Interpretation of Legislation Act 1984. 29

 


 

 


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