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Victoria Police Bill 2013
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill is for a new principal Act for the administration and governance of
Victoria Police, the State's primary law enforcement organisation. The Bill
will largely repeal the Police Regulation Act 1958 which was drafted across
six decades in a mix of old-fashioned and modern language.
The Bill is a further step towards implementing the Government's response to
recommendations for legislative reform made in the report of the Inquiry into
the command, management and functions of the senior structure of Victoria
Police ("the Report") lead by Jack Rush QC under section 52 of the Public
Administration Act 2004.
The Bill--
· recognises that Victoria Police's role is to serve the Victorian
community and uphold the law, so as to promote a safe, secure
and orderly society; and
· establishes Victoria Police as an organisation made up of both
sworn officers and public servants; and
· creates a more transparent framework to govern the
relationship between Victoria Police and the Government; and
· provides for the appointment of police officers of all ranks,
protective services officers and special constables; and
· provides a clearer framework for governing and administering
Victoria Police.
571316 1 BILL LA INTRODUCTION 15/10/2013
Clause Notes
PART 1--PRELIMINARY
Part 1 of the Bill provides for preliminary matters, including the purposes,
commencement and definitions.
Clause 1 sets out the purposes of the Bill, which are to re-enact and
modernise the law relating to the governance and regulation of
Victoria Police and to retitle and substantially repeal the Police
Regulation Act 1958.
Clause 2 provides for the Bill's commencement arrangements.
All provisions will come into effect on a day or days to be
proclaimed, or on 1 December 2014 if not proclaimed before
that date.
Clause 3 contains definitions of terms used in the Bill. The clause
largely re-makes definitions contained in the Police Regulation
Act 1958 with the following key changes--
· commissioned officer--the Police Regulation Act
1958 referred to police officers of the rank of Inspector
or above who had been certified by the Governor in
Council as "officers". To avoid confusion with the term
police officer, the new term commissioned officer is
used to refer to the police officers who are certified
under clause 14;
· member of Victoria Police personnel--refers to the
categories of people who are employed or appointed to
work at Victoria Police;
· police officer--the Police Regulation Act 1958 did not
contain a definition of police officer and referred instead
to a member of the force. Police officer is defined as
the Chief Commissioner, a Deputy Commissioner, an
Assistant Commissioner or a person appointed under
Division 5 of Part 3;
· Victoria Police--as the Bill establishes Victoria Police,
a definition of Victoria Police is included;
· Victoria Police employee--refers to the people
employed in Victoria Police by the Chief Commissioner
under Part 3 of the Public Administration Act 2004.
2
Clause 4 provides the meaning of efficiency for the purposes of the
promotion or transfer of police and protective services officers.
The clause re-enacts the current meaning of efficiency used in
the Police Regulation Act 1958. Efficiency is used for the
purposes of promotion and transfer of police and protective
services officers.
Clause 5 allows the Chief Commissioner to determine an area to be the
Melbourne Metropolitan area for the purposes of the Bill by
publishing a notice in the Government Gazette. This is relevant
to the definition of country position.
PART 2--VICTORIA POLICE
This Part recognises Victoria Police in legislation as a body comprising the
Chief Commissioner and those appointed or employed by the Chief
Commissioner under the Bill, as well as those employed by the Chief
Commissioner under the Public Administration Act 2004. The Part also
articulates Victoria Police's role and general functions and articulates the
relationship between Victoria Police and the Government in a way that seeks
to maintain ministerial and parliamentary responsibility, control and
accountability for Victoria Police while safeguarding police operational
independence.
Division 1--Constitution, role and functions
Clause 6 establishes Victoria Police as the police force of Victoria.
A note to the clause recognises that Victoria Police is a "special
body" under section 6(1) of the Public Administration Act
2004.
Clause 7 lists the personnel who make up Victoria Police. The personnel
that make up Victoria Police are the Chief Commissioner,
Deputy Commissioners, Assistant Commissioners, other police
officers, protective services officers, police recruits, police
reservists and Victoria Police employees.
Clause 8 outlines the role of Victoria Police, which is to serve the
Victorian community and uphold the law so as to promote a
safe, secure and orderly society.
3
Clause 9 gives a non-exhaustive list of Victoria Police's general functions
and provides that these functions do not confer on any person
any civil right of action, provide any person with a defence to
any civil action or otherwise affect any civil right of action.
The list of general functions are consistent with Victoria
Police's Code of Conduct, and include preserving the peace,
protecting life and property, preventing the commission of
offences, detecting and apprehending offenders, and helping
those in need of assistance.
Division 2--Relationship with government
Clause 10 allows the Minister, after consultation with the Chief
Commissioner, to direct the Chief Commissioner in relation to
the policy and priorities to be pursued in the performance of the
functions of Victoria Police. For example, the Minister could
direct the Chief Commissioner to implement certain
government policing policies and priorities. For the purpose of
safeguarding the operational independence of the Chief
Commissioner, subclause (2) limits the Minister's power to
direct the Chief Commissioner. Subject to subclause (3) the
Minister cannot direct the Chief Commissioner on any matter
relating to--
· preservation of the peace and the protection of life and
property in relation to any person or group of persons;
· enforcement of the law in relation to any person or
group of persons;
· the investigation or prosecution of offences in relation
to any person or group of persons;
· decisions about individual members of Victoria Police
personnel, including decisions in relation to discipline;
· the organisational structure of Victoria Police;
· the allocation or deployment of police officers or
protective services officers to or at particular locations;
· training, education and professional development
programs within Victoria Police;
· the content of any internal grievance-resolution
procedures.
4
Subclause (3) provides an exception to some of these
limitations. The exception is where one of the listed entities has
made a report or recommendation in relation to matters set out
in subclause (2)(e) to (h) and the Minister believes that the
Chief Commissioner has not responded adequately to that report
or recommendation. The following entities are listed for the
purpose of the clause--
· the IBAC;
· the Auditor-General;
· the State Services Authority;
· the Public Sector Standards Commissioner;
· a coroner;
· the Commissioner for Law Enforcement Data Security;
· a Parliamentary Committee;
· a Commission of Inquiry established under section 88B
of the Constitution Act 1975;
· a Board of Inquiry established under section 88C of the
Constitution Act 1975;
· a Royal Commission;
· a prescribed entity.
Before issuing a direction to the Chief Commissioner, the
Minister must first consult with the Chief Commissioner.
To promote transparency and accountability, the Minister must
make the direction in writing and publish a copy in the
Government Gazette. The Chief Commissioner must also
publish a copy of the direction on the Victoria Police website.
Clause 11 allows the Minister to request information or reports from the
Chief Commissioner. The Chief Commissioner must comply
with the Minister's request, subject to some exceptions designed
to safeguard the operational independence of the Chief
Commissioner and protect public safety. The Chief
Commissioner does not need to provide the requested
information to the Minister if the Chief Commissioner considers
5
that giving the information to the Minister would be reasonably
likely to--
· prejudice any investigation of a contravention or
possible contravention of the law; or
· prejudice the prosecution of any person for an offence;
or
· endanger the life or physical safety of any person.
Clause 12 requires the Chief Commissioner to provide a report to the
Minister within 3 months after the end of the financial year
on--
· any action taken by the Chief Commissioner during that
year under Division 6 of Part 4. Division 6 of Part 4
relates to action that the Chief Commissioner may take
in respect of a police officer or protective services
officer who is incapable of performing their duties.
The report must contain the outcome of that action,
including the result of any review of that action by the
PRS Board;
· any action taken by the Chief Commissioner or an
authorised officer during that year under Part 7. Part 7
relates to action taken in respect of alleged breaches of
discipline by police officers and protective services
officers. The report must contain the outcome of that
action (including the result of any review of that action
by the PRS Board);
· any action taken during that year by the Chief
Commissioner under clause 195. Clause 195 relates to
action taken in respect of alleged breaches of discipline
by special constables; and
· the prescribed information in relation to Part 5. Part 5
relates to drug and alcohol testing of Victoria Police
personnel.
Subclause (3) ensures that the report is made public, either
through inclusion in Victoria Police's annual report under the
Financial Management Act 1994 or publication on the
Internet.
6
PART 3--VICTORIA POLICE PERSONNEL
Part 3 provides a statutory framework for the Chief Commissioner, Deputy
Commissioners, Assistant Commissioners, other police officers, police
recruits, protective services officers and police reservists, who are all
appointed or employed pursuant to this Part. The Chief Commissioner
employs a further category of Victoria Police personnel, called Victoria
Police employees, under Part 3 of the Public Administration Act 2004.
Division 1--Ranks, commissions and numbers
Clause 13 sets out the ranks of police officers. The ranks, in descending
order of seniority, are as follows--
· Chief Commissioner;
· Deputy Commissioner;
· Assistant Commissioner;
· commander;
· chief superintendent;
· superintendent;
· chief inspector;
· inspector;
· senior sergeant;
· sergeant;
· senior constable;
· constable.
Clause 14 re-enacts the effect of section 8(2) and part of section 5 of the
Police Regulation Act 1958 in modern language. The purpose
is twofold. First, to allow the Governor in Council to certify
that a police officer of any of the following ranks is a
commissioned officer of Victoria Police--
· Assistant Commissioner;
· commander;
· chief superintendent;
· superintendent;
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· chief inspector;
· inspector.
Secondly, to provide that a commissioned officer of Victoria
Police is responsible for the general management and control of
the portion of Victoria Police that the Chief Commissioner
places under their control.
Clause 15 allows the Governor in Council to determine the number of
police officers by rank and the total number of protective
services officers. The mechanism is by Governor in Council
Order. The Chief Commissioner must comply with such an
order if one exists. A similar mechanism was contained in
section 8(1) of the Police Regulation Act 1958.
Division 2--Chief Commissioner
Division 2 provides a statutory framework for the office of the Chief
Commissioner and further articulates the relationship between the Chief
Commissioner and the Minister. The relationship between the Chief
Commissioner and the Minister is important. This is because Victoria Police
is accountable to the Minister through the office of the Chief Commissioner.
In turn, the Minister is accountable to Parliament. The provisions aim to
reflect ministerial and parliamentary responsibility, control and
accountability over Victoria Police, while safeguarding the Chief
Commissioner's operational independence.
Clause 16 sets out the role of the Chief Commissioner and further
articulates the relationship between the Chief Commissioner
and the Minister. Specifically, the Chief Commissioner--
· is the chief constable and the chief executive officer of
Victoria Police; and
· is responsible for the management and control of
Victoria Police; and
· is responsible for implementing the policing policy and
priorities of the Government; and
· is responsible for providing advice and information to
the Minister on the operations of Victoria Police and
policing matters generally; and
· is responsible to the Minister for the general conduct,
performance and operations of Victoria Police.
8
Section 16 of the Public Administration Act 2004 operates to
also give the Chief Commissioner all the functions of a public
service body Head under that Act in relation to Victoria Police
employees.
Clause 17 allows the Governor in Council to appoint a Chief
Commissioner of Police. Further conditions of office are
outlined in Part 1 of Schedule 1.
Clause 18 allows the Governor in Council to appoint a police officer as
Acting Chief Commissioner for any length of time when the
office of Chief Commissioner is vacant or when the Chief
Commissioner is absent from duty or unable to perform the
duties of office.
The Minister may appoint an Acting Chief Commissioner for a
period not exceeding 4 weeks.
The Governor in Council may also revoke an appointment
(whether made by the Governor in Council or the Minister).
An Acting Chief Commissioner--
· has all the powers and must perform all the duties of the
Chief Commissioner; and
· is eligible for reappointment.
Clause 19 allows the Chief Commissioner to delegate any duty, function
or power to a member or class of members of Victoria Police
personnel (other than police recruits).
There are, however, exceptions. The following powers may not
be delegated--
· the power under clause 83 to determine that a work unit
or work function within Victoria Police is a designated
work unit or work function;
· the power under clause 196 to declare an incident to be
an incident requiring urgent cross-border assistance;
· the power under clause 197 to extend a declaration
made under clause 196;
· the power of delegation.
9
The following powers may only be delegated to a police officer
holding the rank of inspector or above, or a Victoria Police
employee at a level of Grade 6 or above--
· the power under clause 236 to authorise a media
organisation; or
· the power under clause 238 to authorise the giving of a
photograph to an authorised media organisation.
Where another Act gives a power, duty or function to the Chief
Commissioner, that Act may make further limitations on the
Chief Commissioner's power of delegation under this clause.
For example, section 34 of the the Crimes (Assumed
Identities) Act 2004 limits the number of delegations that may
be made and constrains the rank of police officer who may be
delegated powers and functions under that Act.
Division 3--Deputy Commissioners
Division 3 deals with the appointment, removal from office, role and
accountabilities of Deputy Commissioners. One of the primary objectives of
Division 3 is to acknowledge that while Deputy Commissioners are
appointed by the Governor in Council, Deputy Commissioners' primary
accountability and responsibility is to the Chief Commissioner.
Clause 20 sets out the Deputy Commissioners' role as being responsible
for the management and control of the portion of Victoria
Police that is placed under their charge subject to the direction
and control of the Chief Commissioner. As police officers,
Deputy Commissioners have the powers and duties of a police
officer as outlined in clause 51.
Clause 21 allows the Governor in Council to appoint Deputy
Commissioners and requires the Minister to consult the Chief
Commissioner before making an appointment recommendation.
Further conditions of office are outlined in Part 2 of Schedule 1.
Clause 22 allows the Chief Commissioner and Governor in Council to
appoint a police officer as an Acting Deputy Commissioner
during a vacancy in the office of a Deputy Commissioner or
when a Deputy Commissioner is absent from duty or unable to
perform the duties of office.
10
The Chief Commissioner may appoint an Acting Deputy
Commissioner for a period of 4 weeks or less and the Governor
in Council may appoint an Acting Deputy Commissioner for
any period.
The Governor in Council may also revoke an appointment
(whether made by the Governor in Council or the Chief
Commissioner).
An acting Deputy Commissioner--
· has all the powers and must perform all the duties of the
Deputy Commissioner; and
· is eligible for reappointment.
Clause 23 allows a Deputy Commissioner to act temporarily as Chief
Commissioner if no Acting Chief Commissioner has been
appointed and--
· the office of Chief Commissioner is vacant; or
· the Chief Commissioner is absent from duty or unable
to perform the duties of office.
The Bill does not re-enact section 6(1) of the Police Regulation
Act 1958. That provision had the effect that Deputy
Commissioners may exercise all the powers of the Chief
Commissioner. In the absence of that provision, clause 23 aims
to ensure the continuity of the powers, duties and functions of
the Chief Commissioner when the Chief Commissioner is not
otherwise available. A further purpose of the clause is to
support an overarching purpose of promoting Deputy
Commissioners' primary accountability and responsibility to the
Chief Commissioner.
To promote accountability for the use of this provision a Deputy
Commissioner must make a written declaration to the Minister
before exercising the powers and assuming the duties of the
Chief Commissioner.
The powers and duties of the Chief Commissioner under this
provision cease when--
· an Acting Chief Commissioner is appointed under
clause 18; or
· the Chief Commissioner resumes duty; or
11
· the period of 72 hours after the making of the
declaration expires.
Division 4--Assistant Commissioners
An overarching purpose of Division 4 is to--
· allow the Chief Commissioner to choose who to employ as
Assistant Commissioners; and
· provide an employment framework that promotes Assistant
Commissioners as being responsive and accountable to the
Chief Commissioner; and
· provide appropriate discipline standards for Assistant
Commissioners; and
· provide appropriate employment security for Assistant
Commissioners in defined circumstances by providing a right
to return to a position at a former rank.
Clause 24 allows the Chief Commissioner, on behalf of the Crown, to
employ as many Assistant Commissioners as he or she thinks
necessary. Further conditions of employment are outlined in
Part 3 of Schedule 1. Assistant Commissioners have the powers
and duties of a police officer as outlined in clause 51.
Clause 25 ensures that Assistant Commissioners have the status of a police
officer. Specifically, subclause (1) provides that a person who
was a police officer immediately before the time his or her
contract of employment as an Assistant Commissioner comes
into force continues to be a police officer on and after the time
the contract comes into force. Subclause (2) provides that a
person who was not a police officer immediately before the
time his or her contract of employment as an Assistant
Commissioner comes into force is taken to have been appointed
as a police officer at the time the contract comes into force.
Clause 26 allows the Chief Commissioner to appoint police officers to be
Acting Assistant Commissioners during a vacancy in the office
or when Assistant Commissioners are absent from duty or
unable to perform the duties of office. The Chief Commissioner
may make an appointment under this clause for a period of
6 months or less and may revoke the appointment at any time.
An Acting Assistant Commissioner has all the powers and
duties of the person for whom he or she is acting.
12
Division 5--Other police officers
Division 5 deals with the appointment, probation, promotion, and transfer of
police officers at the following ranks: commander, chief superintendent,
superintendent, chief inspector, inspector, senior sergeant, sergeant, senior
constable and constable.
Clause 27 allows the Chief Commissioner to appoint police officers below
the rank of Assistant Commissioner if they satisfy the
prescribed appointment criteria. The power to appoint a police
officer is subject to any order made by the Governor in Council
under clause 15 determining either or both the total number of
police officers and the total number of officers of each rank.
Subclause (3) allows the Chief Commissioner, in exceptional
circumstances, to waive any of the prescribed criteria for
appointment in a particular case. Subclause (4) allows an
appointment to be made on a full-time or part-time basis, or for
a fixed term or ongoing basis. Subclause (5) allows the Chief
Commissioner to make a part-time or fixed-term appointment
where the Chief Commissioner is satisfied that it is necessary to
do so 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.
Subclause (6) requires the instrument of appointment to specify
the rank at which the person is appointed.
Clause 28 sets out the probation period for appointments and specifies
terms and conditions of the probation period. Constables serve
2 years of probation while other ranks serve one year.
Probation periods relating to the appointment of a person to the
role of police officer are distinct from the specified probation
periods for promotions of police officers set out in clause 32.
The Chief Commissioner may terminate an officer's
appointment during a probation period (initial or further) at any
time or may extend the probation period once for a period of
one year. There is no limit on the reasons for which a Chief
Commissioner may terminate an appointment or extend the
probation period during the probation period. At the end of the
probation period or the further probation period, the
appointment is confirmed unless, before that time, the Chief
Commissioner terminates the appointment. Subclause (5) sets
13
out the circumstances and kinds of leave that are not to be
counted towards the probation period. These are--
· suspension;
· leave without pay;
· personal leave of one month or more continuously;
· maternity leave;
· long service leave.
Clause 29 re-enacts section 9 of the Police Regulation Act 1958 as
inserted by section 10 of the Police Regulation Amendment
Act 2012.
Clause 29 provides for the appointment of police and former
police of other jurisdictions. Clause 29 enables the Chief
Commissioner to request advice from the Police Registration
and Sevices Board ("PRS Board") of the suitability of a person
who is or was an officer or member of the police force of
another jurisdiction (but has never been a police officer in
Victoria) for appointment to Victoria Police. The PRS Board
will advise the Chief Commissioner whether the person meets
the prescribed criteria (or will meet it subject to the completion
of specified training) and has the aptitude and efficiency to
perform the relevant duties. The Chief Commissioner is
required to consider the advice of the PRS Board as to the
suitability of the person for appointment to the Victoria Police
and at which rank they should be appointed.
Clause 30 re-enacts section 9A of the Police Regulation Act 1958 as
inserted by section 10 of the Police Regulation Amendment
Act 2012.
Clause 30 enables the Chief Commissioner to appoint as a
police officer a person who has formerly been a police officer in
Victoria and is registered on the Police Profession Register.
If the former police officer is not registered on the Police
Profession Register, the Chief Commissioner may request the
advice of the PRS Board as to whether the person meets the
prescribed criteria (or will meet it subject to completion of
specified training) and has the aptitude and efficiency of an
officer at the proposed appointment rank. The Chief
Commissioner is required to consider the advice of the
14
PRS Board as to the suitability of the person for appointment to
Victoria Police and at which rank they should be appointed.
Clause 31 allows the Chief Commissioner to promote police officers to
higher ranks after considering the following criteria--
· the efficiency of the candidate for promotion (as defined
in clause 4(1)); and
· where there is more than one candidate for promotion,
the relative efficiencies regardless of seniority.
Relative seniority, however, must be considered for promotions
to the rank of senior sergeant, sergeant or senior constable if the
candidates are equally efficient.
However, in the following promotions, the Chief Commissioner
does not need to consider the criteria--
· promotions to the position of senior constable (general
duties);
· promotions of constable to senior constable within the
same position.
The Chief Commissioner must publish notice of promotions in
the Police Gazette.
Clause 32 provides for a one year probation period for promotions and
specifies terms and conditions of the probation period.
The Chief Commissioner may disallow the promotion at any
time during the probation period or may extend the probation
period for up to one year. The clause does not limit the reasons
for which the Chief Commissioner may disallow a promotion or
extend a probation period during the probation period. At the
end of a probation period, the promotion is confirmed unless
disallowed or extended. An officer whose promotion is
disallowed reverts to the rank that they held immediately before
the promotion. Subclause (5) sets out the circumstances and
kinds of leave that are not to be counted towards the probation
period. These are--
· suspension;
· leave without pay;
· personal leave of one month or more continuously;
15
· maternity leave;
· long service leave.
Clause 33 provides a general power for the Chief Commissioner to
transfer a police officer in accordance with the Act and
regulations.
Clause 34 allows the Chief Commissioner to transfer police officers to
another position at the same rank after considering--
· the efficiency of the candidate for transfer; and
· where there is more than one candidate for transfer, the
relative efficiencies regardless of seniority.
Relative seniority, however, must be considered for transfers to
the rank of senior sergeant, sergeant or senior constable if the
candidates are equally efficient.
However, in the following circumstances, the Chief
Commissioner does not need to consider these criteria--
· transfers to the position of constable (general duties);
· transfers to the position of senior constable (general
duties);
· transfers made under an expression of interest process
agreed under an industrial instrument applying to police
officers.
The Chief Commissioner must publish notice of transfers in the
Police Gazette.
Clause 35 re-enacts section 8AC of the Police Regulation Act 1958 as
inserted by section 9 of the Police Regulation Amendment
Act 2012.
The clause gives the Chief Commissioner the power to make
immediate directed transfers of police officers to any part of the
State if it is necessary for the provision of policing services.
16
Division 6--Police recruits
Clause 36 allows the Chief Commissioner to employ police recruits who
satisfy prescribed criteria for employment. In exceptional
circumstances, the Chief Commissioner may waive any of the
prescribed criteria. The Chief Commissioner is to determine the
terms and conditions of the employment, including the period of
employment. The Chief Commissioner may also terminate or
extend the employment of a police recruit at any time. There is
no limit on the reasons for which a Chief Commissioner may
terminate or extend the employment of a police recruit.
Division 7--Protective services officers
Division 7 deals with the functions, appointment, probation, promotion and
transfer of protective services officers of all ranks.
Clause 37 sets out the functions of protective services officers, which are
to provide services for the protection of--
· persons holding certain official or public offices; and
· the general public in certain places; and
· certain places of public importance.
Clause 38 allows the Chief Commissioner to appoint protective services
officers if they satisfy the prescribed appointment criteria.
The power to appoint a protective services officer is subject to
any order made by the Governor in Council under clause 15
determining the total number of protective services officers.
Subclause (3) allows the Chief Commissioner, in exceptional
circumstances, to waive any of the prescribed criteria for
appointment in a particular case. Subclause (4) allows an
appointment to be made on a full-time or part-time basis, or for
a fixed term or ongoing basis.
Subclause (6) allows the Chief Commissioner to terminate the
appointment of a protective services officer at any time before
the protective services officer takes an oath or makes an
affirmation under clause 50. The clause does not limit the
reasons for which a Chief Commissioner may terminate the
appointment of a protective services officer in those
circumstances.
17
Clause 39 sets out the probation period for appointments of protective
services officers as being 2 years and specifies terms and
conditions of the probation period. The Chief Commissioner
may terminate a protective services officer's appointment during
a probation period (initial or further) at any time or may extend
the probation period for a period of up to one year. The clause
does not limit the reasons for which a Chief Commissioner may
terminate an appointment or extend the probation period during
the probation period. At the end of a probation period or further
probation period, the appointment is confirmed unless, before
that time, the Chief Commissioner terminates the appointment.
Subclause (5) sets out the circumstances and kinds of leave that
are not to be counted towards the probation period. These are--
· suspension;
· leave without pay;
· personal leave of one month or more continuously;
· maternity leave;
· long service leave.
Clause 40 allows the Chief Commissioner to promote protective services
officers after considering--
· the efficiency (as defined in clause 4(2)) of the
candidate for promotion; and
· where there is more than one candidate for promotion,
the relative efficiencies.
Seniority must be considered if the candidates are equally
efficient.
However, for ranks specified in the regulations, the Chief
Commissioner need not consider these criteria.
The Chief Commissioner must publish notice of promotions in
the Police Gazette.
Clause 41 provides for a one year probation period for protective services
officer promotions and specifies terms and conditions of the
probation period. The Chief Commissioner may disallow the
promotion at any time during the probation period or may
extend the probation period for up to one year. The clause does
not limit the reasons for which a Chief Commissioner may
18
disallow a promotion or extend a probation period during the
probation period. At the end of a probation period, the
promotion is confirmed unless the Chief Commissioner has
disallowed it. A protective services officer whose promotion is
disallowed reverts to the rank that they held immediately before
the promotion. Subclause (6) sets out the circumstances and
kinds of leave that are not to be counted towards the probation
period. These are--
· suspension;
· leave without pay;
· personal leave of one month or more continuously;
· maternity leave;
· long service leave.
Clause 42 provides a general power for the Chief Commissioner to
transfer a protective services officer in accordance with the Act
and regulations.
Clause 43 allows the Chief Commissioner to transfer protective services
officers considering--
· the efficiency (as defined in clause 4(2)) of the
candidate for transfer; and
· where there is more than one candidate for transfer, the
relative efficiencies.
Seniority must be considered if the candidates are equally
efficient.
However, in the following circumstances, the Chief
Commissioner does not need to consider these criteria--
· transfers made under an expression of interest process;
or
· transfers to a position at a rank specified in the
regulations.
The Chief Commissioner must publish notice of transfers in the
Police Gazette.
19
Clause 44 gives the Chief Commissioner the power to make immediate
directed transfers of protective services officers to any part of
the State if it is necessary to provide protective services.
Division 8--Police reservists
Clause 45 lists the provisions and Acts for which police reservists are
taken to be police officers. Police reservists are retired
members of the force who were appointed as police reservists
under section 103 of the Police Regulation Act 1958.
Clause 46 provides that police reservists are under a duty to act under the
control and direction of the Chief Commissioner or of any other
police officer or police reservist under whom they are placed by
the Chief Commissioner. This does not take away from the
common law powers of police reservists as police officers under
section 51(a).
Clause 47 allows the Chief Commissioner to require a police reservist to
attend training.
Clause 48 allows a police reservist to resign from office by giving 7 days
written notice (or less with agreement of the Chief
Commissioner).
Clause 49 allows the Chief Commissioner to suspend or terminate the
appointment of a police reservist at any time. The clause does
not limit the reasons for which a Chief Commissioner may
suspend or terminate.
PART 4--POLICE DUTIES, POWERS, ENTITLEMENTS
PROTECTION AND LIABILITY
Part 4 deals with the oath of office for police officers and protective services
officers, duties, powers and obligations of police officers and protective
services officers, the Chief Commissioner's instructions and determinations,
general employment matters relating to police officers and protective services
officers (including retirement, resignation, ill-health retirement and
incapacity for duty), protection from liability and police tort claims.
20
Division 1--Oath of office
Clause 50 provides that police officers and protective services officers
must take and subscribe an oath or affirmation of office before
performing the duties and exercising the powers of a police
officer or protective services officer. The oath may be
administered by--
· a magistrate in the case of the Chief Commissioner or
Deputy Commissioner;
· a magistrate, the Chief Commissioner or Deputy
Commissioner in the case of an Assistant
Commissioner;
· a magistrate, the Chief Commissioner, a Deputy
Commissioner or an Assistant Commissioner in any
other case.
The oath or affirmation for police officers and protective
services officers is set out in Schedule 2.
Subclause (4) requires the person who administers the oath or
affirmation to forward a copy of the subscribed oath or
affirmation to--
· the Minister, in the case of the oath or affirmation of the
Chief Commissioner; or
· the Chief Commissioner, in any other case.
Division 2--General duties and powers
Clause 51 re-enacts the effect of section 11(1) of the Police Regulation
Act 1958. The clause provides that a police officer who has
taken and subscribed the oath or made and subscribed the
affirmation under clause 50 has--
· the duties and powers of a constable at common law;
and
· any duties and powers imposed or conferred on a police
officer by or under this or any other Act or by or under
any subordinate instrument.
21
Clause 52 re-enacts the effect of section 118D of the Police Regulation
Act 1958. The clause provides that a protective services officer
who has taken and subscribed the oath or made and subscribed
the affirmation under clause 50 has, in the performance of his or
her functions, the duties and powers of a constable at common
law. Further, a protective services officer on duty at a
prescribed place has all the duties and powers imposed or
conferred on the protective services officer under this or any
other Act.
Clause 53 re-enacts section 15 of the Police Regulation Act 1958 in
modern language. The clause permits common reputation,
rather than documentary evidence, to be sufficient evidence as
to a person's identity as a police officer or protective services
officer.
Clause 54 re-enacts section 11(2) to (9) of the Police Regulation Act
1958 as inserted by the Police Regulation Amendment Act
2012. The clause allows the Chief Commissioner to give
written notice to a police officer with the effect that the officer,
for a temporary period, does not have their police powers and
duties. The Chief Commissioner may only issue a notice under
this clause to a police officer who--
· is about to begin, or is on, a period of leave without pay
of 28 days or more, other than excluded leave; or
· is on secondment to any organisation or body.
Subclause (3) provides that a notice given by the Chief
Commissioner--
· takes effect when the officer is give the notice or at the
later time determined by the Chief Commissioner and
specified in the notice; and
· unless cancelled earlier, has effect until the latter of--
· the expiry of the period determined by the Chief
Commissioner and specified in the notice; or
· the registration of the officer on the Police
Profession Register.
22
Subclause (4) provides that while a notice given to a police
officer under subclause (1) has effect--
· neither the Chief Commissioner or any other police
officer has authority to give the officer an instruction in
respect of the officer's performance of his or her
functions or duties; and
· the officer does not commit a breach of discipline by
failing to comply with the Chief Commissioner's
instructions.
Subclause (5) allows the Chief Commissioner to cancel a notice
given to a police officer under subclause (1) at any time by
giving written notice of cancellation.
Subclause (6) provides that nothing in this clause affects the
ability of the Chief Commissioner to end a police officer's
secondment or leave without pay.
Subclause (7) provides that a police officer who is given a
notice under subclause (1) must, as soon as practicable, return
any Victoria Police equipment and Victoria Police identification
that is required by the Chief Commissioner to be returned under
this subclause.
Subclause (8) provides a definition of excluded leave, which
means--
· maternity, paternity or parental leave; or
· compassionate leave; or
· study leave; or
· leave granted for the purposes of service with--
· an investigative agency other than Victoria
Police; or
· a professional association that represents police
officers.
Clause 55 re-enacts the effect of section 16 of the Police Regulation Act
1958. The clause provides that all powers of a person as a
police or protective services officer immediately ceases when
he or she ceases to be a police or protective services officer.
Examples of circumstances in which a person ceases to be a
23
police officer are set out in the note to subclause (1) and for a
protective services officer in the note to subclause (2).
Division 3--Specific duties and powers
Clause 56 re-enacts the effect of sections 19 and 20 of the Police
Regulation Act 1958. The clause gives a duty to police
officers to execute--
· all process directed to him or her other for the recovery
of fines and other amounts; and
· all lawful summonses, warrants, orders and directions
directed to him or her by a court or tribunal.
Subclause (2) allows such process, summonses, warrants, orders
or directions to be executed by any other police officer who has
the same authority as if it had been directed to him or her.
Subclause (3) provides that court or tribunal for the purposes
of this clause includes--
· a board, commission or other body established by or
under an Act; and
· a coroner; and
· a member, officer or member of staff of a court or
tribunal.
Clause 57 re-enacts the effect of section 122 of the Police Regulation Act
1958. The clause outlines the circumstances and process for the
disposal of unclaimed property which has lawfully come into
possession of a member of Victoria Police personnel. It may be
sold by public auction, destroyed or disposed of by other means
approved by the Minister. Any proceeds must be paid into the
Consolidated Fund.
Clause 58 re-enacts the effect of section 125 of the Police Regulation Act
1958. The clause outlines a process by which disputes about
property (other than property seized by a warrant issued under
section 73 of the Magistrates' Court Act 1989) that has come
into the possession of a police officer in the performance of
duties or exercise of powers of the officer, may be resolved.
24
In summary, the process involves--
· application to the Magistrates' Court;
· notification of relevant people;
· Magistrates' Court's decision.
Subclause (5) provides that any person notified of the
application and any other person who claims an interest that
would entitle the person to possession of the property may
appear and be heard at the hearing of the application.
Subclause (6) provides that if a person notified of the
application fails to attend the hearing, the hearing may be held
in the person's absence.
Subclause (7) provides that proceedings cannot be brought
against a police officer or the State for recovery of the property
or recovery of the value of the property if a police officer
complies with an order made under this clause.
Subclause (8) provides that subclause (7) does not affect any
other rights or liabilities of any person who has or claims to
have an interest in the property.
Clause 59 allows a police officer to assist a coroner in the investigation of
a death or fire under Part 4 of the Coroners Act 2008.
Division 4--Chief Commissioner's instructions and
determinations
Clause 60 allows the Chief Commissioner to issue, amend and revoke
instructions for the general administration of Victoria Police
and the effective and efficient conduct of the operations of
Victoria Police. The clause is modelled on the existing power
in section 17 of the Police Regulation Act 1958.
Subsection (2) gives a non-exhaustive list of things that may be
contained in the Chief Commissioner's instructions, including--
· the specification of things (including uniforms) to be
Victoria Police equipment for the purposes of the Bill;
· the specification of things to be Victoria Police
identification for the purposes of this Bill;
25
· any other matters determined by the Chief
Commissioner under clause 62.
Subclauses (3) and (4) allow the Chief Commissioner's
instructions to incorporate other documents and provide that
they are not subject to section 32 of the Interpretation of
Legislation Act 1984, which requires certain actions to be
taken in respect of documents that are incorporated in
subordinate documents (for example publication of notice in the
Government Gazette).
Subclause (5) provides that nothing in this clause takes away
from the application of clause 51(a) or 52(1).
Clause 61 requires all Victoria Police personnel to comply with the Chief
Commissioner's instructions.
Clause 62 allows the Chief Commissioner to determine police uniforms,
equipment, standards of grooming and clothing accessories for
police officers, police recruits or protective services officers.
These may--
· differ based on sex, gender identity, physical features or
religious belief or activity; and
· provide for exceptions based on genuine medical,
cultural or religious grounds.
The clause re-enacts the effect of section 5(2) and (3) of the
Police Regulation Act 1958. The section is intended to
constitute an "enactment" for the purposes of section 75 of the
Equal Opportunity Act 2010. This has the effect that the
Equal Opportunity Act 2010 does not apply to determinations
lawfully made under this clause.
Division 5--General employment matters
Clause 63 allows the Chief Commissioner to make an agreement with a
police officer or protective services officer for the officer to
undertake a training course and may require him or her to give a
surety for compliance with the agreement.
Subclause (2) provides that any agreement made under
subclause (1) by the Chief Commissioner with a Deputy
Commissioner must be approved by the Governor in Council
before it can take effect.
26
The provision is modelled on section 129 of the Police
Regulation Act 1958, which allowed the Governor in Council
to authorise the Minister to enter into such an agreement.
Clause 64 provides that a police officer or protective services officer is
entitled to long service leave in accordance with Schedule 3.
This re-enacts the effect of section 120 of the Police
Regulation Act 1958.
Clause 65 allows a police officer or protective services officer to resign or
retire from Victoria Police by giving written notice of not less
than 4 weeks (or a shorter period agreed by the Chief
Commissioner) to the Chief Commissioner.
Subclause (2) provides that the clause does not apply to the
Chief Commissioner, a Deputy Commissioner or an Assistant
Commissioner. The retirement provisions for the Chief
Commissioner, Deputy Commissioners and Assistant
Commissioners are set out in Schedule 1.
Clause 66 re-enacts the effect of section 16C of the Police Regulation Act
1958 which provides that a police officer or protective services
officer who is absent from duty without authorisation or lawful
reason for more than one calendar month is taken to have
abandoned their appointment. This is intended to have the
effect that the officer's powers immediately cease under
clause 55.
Clause 67 re-enacts the effect of section 16B of the Police Regulation Act
1958 allowing the Chief Commissioner to retire a police officer
or protective services officer for ill-health reasons and sets out
the process that the Chief Commissioner is required to follow in
order to do so.
Subclause (1) allows the Chief Commissioner to inquire into the
physical or mental fitness and capacity of a police officer or
protective services officer at any time, on his or her own motion
or at the request of the officer.
Subclause (2) empowers the Chief Commissioner to require the
police officer or protective services officer to undergo a medical
examination.
27
Subclause (3) requires the Chief Commissioner to consider the
report prior to forming a view about the officer's physical or
mental capacity and provides the process requirements if the
Chief Commissioner considers that the officer is physically or
mentally incapable of performing his or her duties.
Subclause (4) requires the Chief Commissioner to consider any
submission made by the police officer or protective services
officer.
Subclause (5) provides that the Chief Commissioner may
ill-health retire the officer after following the required process
and being satisfied that the police officer or protective services
officer is physically or mentally incapable of performing his or
her duties. Notice of the retirement must be given to the police
officer or protective services officer.
Subclause (6) requires the notice given under subclause (5) to
state the grounds on which the Chief Commissioner is satisfied
that the police officer or protective services officer is physically
or mentally incapable or performing his or her duties.
Division 6--Incapacity for duty
This Division re-enacts the effect of Division 4 of Part IV of the Police
Regulation Act 1958 dealing with incapacity for duty. The Division enables
the Chief Commissioner to take action where a police officer or protective
services officer is incapable of performing his or her duties.
Clause 68 inserts definitions of incapacity, notice of incapacity, remedial
action.
Clause 69 allows the Chief Commissioner to give a police officer or
protective services officer a notice of incapacity if the Chief
Commissioner believes that the officer 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 Chief Commissioner (transfer to other
duties, demotion or dismissal) and the grounds on which the
Chief Commissioner believes the officer to be incapable.
The officer may make a written submission to the Chief
Commissioner within 21 days after receiving the notice.
28
Clause 70 provides that if, after giving a police officer or protective
services officer a notice of incapacity and considering any
submission made by the officer, the Chief Commissioner is
satisfied that the officer is incapable of performing his or her
duties, the Chief Commissioner may by written notice, transfer
the officer to other duties, demote or dismiss the officer.
The notice must state the grounds on which the Chief
Commissioner is satisfied that the officer is incapable of
performing his or her duties.
Division 7--Protections
Division 7 provides protections for certain persons in respect of certain
policing activities.
Clause 71 re-enacts the effect of section 124 of the Police Regulation Act
1958 relating to protection of police officers executing warrants
and expands the protection to protective services officers who
have limited powers to execute arrest warrants under the
Magistrates' Court Act 1989.
The clause provides the procedure for bringing an action against
a protected person in respect of a warrant and protects the
person from liability for actions performed in the course of
executing a warrant.
Division 8--Liability for tortious conduct by police and protective
services officers
Division 8 creates a new scheme to replace section 123 of the Police
Regulation Act 1958. This Division sets out the extent to which the State
may be liable for the tortious conduct of police officers and protective
services officers and the process requirements for bringing a claim for a
police tort.
Clause 72 defines police tort as a tort committed by a police officer or
protective services officer in the performance or purported
performance of the officer's duties.
3 key elements make up this definition--
· who performed the conduct; and
· the kind of conduct; and
· the type of legal action that is being brought.
29
Who performed the conduct
Police tort applies to conduct by--
· police officers (by virtue of the definition); and
· protective services officers (by virtue of the definition);
and
· special constables (by virtue of clause 193); and
· police reservists (by virtue of clause 45).
A police tort also applies to conduct of former officers, special
constables and police reservists, if, at the time that the conduct
occurred, the person held that office.
The kind of conduct
A police tort must arise from conduct in the performance or
purported performance of the officer's duties.
The test is not intended to include conduct performed in a
personal capacity, divorced from the duties of the officer.
The type of legal action
It is intended that the scheme apply to--
· tort claims (including intentional torts, like assault,
battery, trespass and non-intentional torts, like
negligence);
· detrimental action claims under the Protected
Disclosure Act 2012;
· actions for wrongful death under Part III of the Wrongs
Act 1958 where the wrong is a police tort; and
· any other kind of actions prescribed in the regulations.
These claims are called police tort claims (see clause 73).
It is not intended that police tort claims include other kinds of
claims, such as--
· breach of contract; or
· administrative law actions; or
· other statute-based actions not otherwise prescribed.
30
Clause 73 provides that the scheme applies to police tort claims, being--
· an action for damages under Part III of the Wrongs Act
1958 in respect of a wrong that is an alleged police tort;
or
· a counterclaim for an alleged police tort; or
· any other prescribed action, claim or proceeding in
respect of an alleged police tort.
Clause 74 provides that the State is liable for a police tort subject to the
defence of serious and wilful misconduct.
This is intended to displace the common law rule derived from
Enever v The King (1906) 3 CLR 969 that provides that the
State is not vicariously liable for torts of police officers. It is
intended that the common law rule only be displaced to the
extent that it applies to police tort claims.
The meaning of "serious and wilful misconduct" has been
considered judicially in the context of the NSW police tort
scheme, in the case of State of NSW v Wayne Eade [2006]
NSWSC 84. While allowing for the concept of injury, in Eade
the NSW Supreme Court was guided by the following meaning
considered in Sawle v Macadamia Processing Co Pty Ltd
[1999] NSWCC 26:
"conduct beyond negligence, even beyond culpable or
gross negligence. In order to establish serious and wilful
misconduct, it must be demonstrated that the person
performing an act or suffering an omission knows that it
will cause risk of injury, or acts in disregard of
consideration whether it will cause injury. The word
"wilful" connotes that the applicant must have acted
deliberately. As it seems to me, in order to establish
serious and wilful misconduct, a person accused of it must
be shown to have knowledge of the risk of injury and, in
the light of that knowledge, proceeded without regard to
the risk.".
Subclause (2) provides that the State is not liable for a police
tort if the State establishes on a police tort claim that the
conduct giving rise to the police tort was serious and wilful
misconduct by the police officer or protective services officer
concerned.
31
The intended effect of this defence is that if the State pleads the
serious and wilful misconduct defence, and the Court finds that
the defence is made out, then the State is not liable for the
police tort even if--
· the claim is a police tort claim; and
· the elements of the claim itself are made out.
In this circumstance, the individual officer would be personally
liable.
The State, however, needs to plead the serious and wilful
misconduct defence in order to engage it. This means that
where the State does not plead the serious and wilful
misconduct defence, and the requisite elements of the claim are
made out, the State may be liable even if the Court considers
there is evidence of serious and wilful misconduct.
Subclause (3) provides that where the State is liable for a police
tort, the police officer or protective services officer involved is
not liable to any person for the police tort and is not liable to
indemnify or to pay any contribution to the State in respect of
the liability incurred by the State.
Subclause (4) provides that the State is not liable for a tort
committed by a police officer or protective services officer that
is not a police tort. This may occur, for example, where the
conduct giving rise to the tort was not in the course or purported
course of the duties of the officer.
Clause 75 outlines the process for making police tort claims.
Subclause (1) requires police tort claims to be brought against
the State and prohibits them being made against the police
officer or protective services officer concerned.
Subclause (2) allows a person who makes a police tort claim
(other than a counterclaim) against the State to seek to have the
police officer or protective services officer joined to the
proceedings only if the State pleads in its defence to the claim
that--
· the State would not be liable because of section 74(2),
that is, the conduct is serious and wilful misconduct; or
· the alleged tort, if proven, would not be a police tort.
32
Subclause (3) provides that, if the court permits the person to
have the police officer or protective services officer joined--
· the person is not required to file a new originating
process, but may instead amend the existing originating
process; and
· the court may make any orders it considers appropriate
to enable the existing originating process to be
amended.
Subclause (4) is intended to displace the Limitation of Actions
Act 1958 so long as the making of a claim to join an officer to
the proceedings is done within 2 months after the State's
defence is served. The effect is to permit the claim to be made
out of time.
Clause 76 provides a process for the making of counterclaims that are
police tort claims. Counterclaims are proceedings brought
against the plaintiff by an alleged tortfeasor.
Subclause (2) allows a person to seek to have the State joined to
the proceedings.
Subclause (3) clarifies that the State may defend a claim for an
alleged police tort that is a counterclaim on the basis--
· of the serious and wilful misconduct defence at
clause 74(2); or
· that the alleged tort, if proven, would not be a police
tort.
Clause 77 allows the State 60 days to serve its defence to a police tort
claim where the defence pleads serious and wilful misconduct.
This may have the effect that certain aspects of Court Rules are
displaced.
This extended period of time reflects the importance of the
decision whether or not to plead the serious and wilful
misconduct defence and the significant consequences of such a
pleading for the State, the police officer or protective service
officer involved and the plaintiff.
60 days will usually allow Victoria Police sufficient time to
gather existing evidence on the incident, review files, seek legal
advice if necessary and make the decision whether to plead the
serious and wilful misconduct defence or not.
33
In some situations, however, the State may need even further
time in which to serve its defence. For example--
· where an internal investigation has not yet been
completed; or
· where many police officers are involved in the incident;
or
· where the issues are complex and require further
investigation or further legal advice needs to be
obtained before pleading the defence.
For this reason, subclause (2) permits the court in which the
police tort claim is made to extend this time.
Clause 78 provides that, if the State successfully defends liability for a
police tort on the basis of the serious and wilful misconduct
defence at clause 74(2), the State has no right to seek costs
against the plaintiff.
If the State successfully defends liability on the basis that the
action is not a police tort, then the normal rules as to costs
would apply.
Clause 79 requires the Minister to pay a successful claimant an amount no
more than the amount of damages and costs ordered by a Court to
be paid to the claimant if all of the following are met--
· the claimant is awarded damages on a police tort against
a police officer or protective services officer. This may
occur where the State successfully denies liability on the
basis that the tortious conduct constitutes serious and
wilful misconduct; and
· the Minister is satisfied that the claimant is unlikely to
recover the amount from the officer who committed the
police tort. The claimant would need to demonstrate
this element to the satisfaction of the Minister; and
· the Minister is satisfied that the claimant has exhausted
all other avenues to recover the amount. For example,
that the claimant has unsuccessfully sought to recover
the amount from a joint-tortfeasor or through a relevant
insurer (if any).
34
Subclause (2) provides that the State may recover the amount of
any payment referred to in subclause (1) from the police officer
or protective services officer concerned as a debt in a court of
competent jurisdiction.
Clause 80 provides that the Division does not affect certain claims and
proceedings, including--
· a person bringing legal proceedings or claiming
damages or other relief in any legal proceeding against
another person who is not a police officer or protective
services officer but who is jointly or severally liable for
a police tort;
· a person bringing legal proceedings or claiming
damages or other relief in any legal proceeding against a
police officer or protective services officer in respect of
an alleged tort that is not a police tort.
Clause 81 describes the effect of the Division on other laws. Specifically,
this has the effect that the limitation periods for filing claims
that are provided in the Limitations of Actions Act 1958 apply
to police tort claims except as provided by clause 75(4).
PART 5--DRUG AND ALCOHOL TESTING
Part 5 deals with drug and alcohol testing for Victoria Police personnel and
special constables. Division 1 deals with preliminary matters including
definitions used in the Part. Divisions 2 to 5 set out the circumstances in
which the Chief Commissioner can direct a person to undergo testing.
Division 6 deals with the use and admissibility of test results. Division 7
deals with other general matters relating to drug and alcohol testing.
Division 1--Introduction
Clause 82 contains definitions of terms used in this Part. Key terms
include--
· critical incident which is defined to mean--
· an incident involving the discharge of a firearm
by a member of Victoria Police personnel while
the member is on duty; or
35
· an incident involving a member of Victoria
Police personnel while the member is on duty
which results in the death of, or serious injury to,
a person and which also involves the use of
force, the use of a car by the member (including
as a passenger), or the death of or serious injury
to a person who is in the custody of the member.
This definition of a critical incident substantially re-enacts the
definition of critical incident in section 85A of the Police
Regulation Act 1958. However, it differs from that definition
by the inclusion of any incident involving the discharge of a
firearm by a member of Victoria Police personnel while the
member is on duty. This will mean that, if appropriate, the
Chief Commissioner may issue a testing direction to a member
in circumstances where the discharge of a firearm does not
result in serious injury or death.
· designated work unit and designated work function are
defined to mean those units and functions determined
under clause 83 by either the Chief Commissioner or
Deputy Commissioner to be work units or work
functions designated for the purposes of drug and
alcohol testing. Whether a work unit or work function
is designated is relevant to whether a Victoria Police
employee is subject to testing under clause 90 (Targeted
testing--certain Victoria Police employees), clause 92
(Designated work unit testing) and clause 93
(Designated work function testing).
· rostered on and rostered off are terms defined by
reference to clause 84 and are relevant to Part 5.
A person is rostered on if he or she has reported to work
or is required to report to work in accordance with a
roster or is working overtime. If a person is not rostered
on he or she is rostered off. These definitions are
relevant to whether the Chief Commissioner may direct
a person to undergo a test.
· testing direction is defined to mean a direction by the
Chief Commissioner to give a sample of breath, urine,
hair, oral fluid, a buccal swab or blood for the purpose
of testing for the presence of alcohol or a drug of
dependence.
36
Clause 83 provides that the Chief Commissioner or a Deputy
Commissioner may determine which work units and work
functions are to be designated for the purposes of this Part.
These determinations are relevant to testing directions which
can be given under clause 90 (Targeted testing--certain
Victoria Police employees) and under Division 4 of Part 5
(Designated work unit testing and designated work function
testing).
Clause 84 sets out the circumstances in which a person is considered to be
rostered on and rostered off for the purposes of drug and alcohol
testing. The Chief Commissioner may only issue a testing
direction under Division 3 (Targeted testing), Division 4
(Designated work unit testing and designated work function
testing) and Division 5 (Random testing) to a person who is
rostered on).
A person who is rostered off, may be rostered on under
clause 89 for the purposes of a test to detect the presence of a
drug of dependence. The Chief Commissioner may issue a
testing direction to a person under Division 2 (Critical incident
testing) whether or not the person is rostered on (subject to the
timeframes set out in clause 86(3)(b)).
Division 2--Critical Incident Testing
Division 2 sets out the circumstances in which the Chief Commissioner may
issue a testing direction following a critical incident.
Clause 85 specifies who the Chief Commissioner can give a testing
direction to for the purposes of a drug and/or alcohol test
following a critical incident. The term critical incident is
defined in clause 82. All Victoria Police personnel and special
constables are subject to the critical incident testing provisions
whether rostered on or rostered off.
Clause 86 specifies that the Chief Commissioner may give a testing
direction, other than to give a sample of hair, to a member of
Victoria Police personnel under this Division if the conditions
in subclause (3) are satisfied.
Subclause (2) provides that if the conditions set out in subclause
(3) are satisfied but a testing direction cannot be given to the
member of Victoria Police personnel because the person is
unconscious or otherwise unable to comply with a testing
37
direction, the Chief Commissioner may direct a medical
practitioner or registered nurse to take a sample of blood from
the person.
Subclause (3)(a) sets out the conditions that must be satisfied
for the Chief Commissioner to give a direction under subclause
(1) or (2). The first condition is that the Chief Commissioner
reasonably believes that the person has been involved in a
critical incident, whether or not the person was physically
present at the place where the critical incident occurred.
For example, this will enable the Chief Commissioner to issue a
testing direction to a pursuit controller who was not physically
present in a vehicle that was involved in a critical incident, but
who was involved in providing directions and information to
the persons using the vehicle in the course of their duties.
Subclause (3)(b) provides a further condition that if the critical
incident involved the use of a motor vehicle by a member of
Victoria Police personnel, the direction must be given within
3 hours after the critical incident occurred. For any other type
of critical incident (such as the use of force or the discharge of a
firearm), the testing direction must be given within a reasonable
time after the critical incident occurred.
Clause 87 provides that if a sample of blood has been taken when a person
is unconscious or otherwise unable to comply, when the person
regains consciousness or otherwise becomes able to comply
with a testing direction, the person must be informed that a
blood sample has been taken and that he or she may refuse to
consent to the use of any evidence derived from the sample.
The person must be advised that if he or she refuses to give
consent--
· the refusal is a breach of discipline for police officers
and protective services officers;
· the refusal may be taken into account in the
management of the person's performance of his or her
duties if the person is a police recruit;
· the refusal may be taken into account in determining
whether the employee has engaged in unsatisfactory
performance, misconduct or serious misconduct if the
person is a Victoria Police employee.
38
Subclause (2) provides that any evidence derived from a sample
must be destroyed if the person refuses to give consent to its use
under subclause (1). Subclause (3) provides that the sample of
blood taken under clause 86(2) must be destroyed if the person
refuses to give consent under subclause (1).
Division 3--Targeted Testing
Division 3 sets out the circumstances in which the Chief Commissioner may
issue a targeted testing direction.
Clause 88 provides the circumstances in which the Chief Commissioner
may issue a targeted testing direction to Victoria Police
personnel other than Victoria Police employees.
Subclause (2) provides that the Chief Commissioner may issue
a testing direction if the Chief Commissioner reasonably
suspects that the person has consumed alcohol or a drug of
dependence and because of that suspicion, the Chief
Commissioner reasonably believes that the person ought to be
tested for the good order and discipline of Victoria Police.
Clause 96(2) sets out in what circumstances the Chief
Commissioner may have regard to these test results.
Subclause (3) provides that the Chief Commissioner may also
issue a testing direction if the Chief Commissioner reasonably
believes that the person appears to be unfit for work because the
person has consumed alcohol or a drug of dependence.
Clause 96(1) sets out in what circumstances the Chief
Commissioner may have regard to these test results.
Subclause (4) provides the Chief Commissioner may only issue
a testing direction to a person who has been required to report
for work under clause 89 to test for a drug of dependence.
Clause 89 provides that the Chief Commissioner may require a person to
report for work for the purposes of giving them a targeted
testing direction under clause 88(2). That person is taken to be
rostered on. The effect is if the Chief Commissioner reasonably
suspects that a person who is not rostered on has consumed a
drug of dependence the Chief Commissioner may direct them to
provide a sample for the purposes of a drug test under
clause 88(2), if the Chief Commissioner reasonably believes
that the person ought to be tested for the good order and
discipline of Victoria Police. The person cannot be rostered on
39
under clause 89 for the purpose of a test to detect the presence
of alcohol.
Subclause (3) provides that a person who is rostered on for the
purposes of being given a testing direction under clause 88(2)
must be accompanied by a police officer to the place where the
person will give a sample for the purposes of testing for a drug
of dependence.
Subclause (4) provides that a person who has been rostered on
under subclause (1) must not refuse or fail to accompany the
police officer to the place where the person will give a sample
for the purposes of testing for a drug of dependence without a
reasonable excuse. A failure to comply with a direction of the
Chief Commissioner is a breach of discipline under
clause 125(1)(d).
Subclause (5) provides that if a person who has been rostered on
under subclause (1) fails or refuses to comply with the direction
because he or she is ill, the person must provide a certificate or
form signed by a medical practitioner.
Clause 90 provides the circumstances in which the Chief Commissioner
may issue a targeted testing direction to Victoria Police
employees who are rostered on and work in a designated work
unit or carry out a designated work function.
Subclause (2) provides that to give a testing direction, the Chief
Commissioner must reasonably believe that the person appears
to be unfit for work because he or she has consumed alcohol or
a drug of dependence.
Division 4--Designated work unit testing and designated work
function testing
Clause 91 sets out who may be issued with a testing direction under this
Division. Clause 83 empowers the Chief Commissioner and
Deputy Commissioners to designate work units and work
functions for the purposes of drug and alcohol testing.
Victoria Police personnel who work in a designated work unit
or who perform a designated work function are subject to these
testing provisions.
40
Clause 92 sets out the circumstances in which the Chief Commissioner
may issue a testing direction to a group of persons who work in
a designated work unit. A testing direction to give a sample of
hair may not be given. The clause requires that the persons
given a direction under these provisions must be rostered on at
the time the direction is given.
Paragraph (a) provides that a testing direction may be given to
every person who is rostered on and who works in that
designated work unit.
Paragraph (b) provides that a testing direction may be given to
2 or more persons who work in the designated work unit, are
rostered on and who are randomly selected. The term random
selection is defined in clause 82.
Clause 93 sets out the circumstances in which the Chief Commissioner
may issue a testing direction to a group of persons who perform
a designated work function. A testing direction to give a
sample of hair may not be given. The clause requires that the
persons given a direction under these provisions must be
rostered on at the time the direction is given.
Paragraph (a) provides that a testing direction may be given to
every person who is rostered on and who performs that
designated work function.
Paragraph (b) provides that a testing direction may be given to
2 or more persons who perform the designated work function,
are rostered on and who are randomly selected. The term
random selection is defined in clause 82.
Division 5--Random testing
Clause 94 provides that this Division applies to members of Victoria
Police personnel who are rostered on other than Victoria Police
employees.
Clause 95 provides that the Chief Commissioner may give a testing
direction to one or more persons to whom the Division applies
if they have been randomly selected. A testing direction to give
a sample of hair may not be given. The term random selection
is defined in clause 82.
41
Division 6--Use of test results
Clause 96 sets out when the Chief Commissioner may have regard to
evidence derived from a sample obtained under Divisions 2, 3,
4 and 5. The purpose for which the Chief Commissioner may
use test results depends on under which provision the testing
direction was given.
Subclause (1) provides that test results relating to a
sample obtained under the critical incident, targeted testing
(clause 88(3) and (4) only), designated work unit, designated
work function and random testing provisions can be used as
evidence by the Chief Commissioner for the following
purposes--
· managing the person's performance of his or her duties
in relation to the consumption of drugs or alcohol.
This might include arranging for the person to attend
drug and alcohol counselling or sending the person
home. The test results cannot be used in relation to
managing a person's performance of their duties in
regards to matters that are entirely unconnected to their
consumption of drugs or alcohol;
· if the person is a police officer or a protective services
officer, conducting an inquiry or investigation under
Division 6 of Part 4 (which deals with incapacity for
duty), Part 7 (which deals with breaches of discipline),
Part 9 (which deals with the investigation of complaints)
and Part 10 (which deals with the investigation of
protected disclosure complaints);
· if the person is a special constable, a disciplinary
investigation in respect of that person under clause 195;
· if the person is a Victoria Police employee, a
determination about whether the person has engaged in
unsatisfactory performance, misconduct or serious
misconduct under the Public Administration Act 2004
or the relevant industrial agreement applying to that
person;
The test results may also be used by the Chief Commissioner as
evidence in any proceedings related to disciplinary investigations
or investigations of complaints and protected disclosure
complaints.
42
Subclause (2) provides that test results relating to a sample
obtained under clause 88(2) (Targeted testing provisions) can be
used as evidence by the Chief Commissioner for the following
purposes--
· if the person is a police officer or a protective services
officer, conducting an inquiry or investigation under
Division 6 of Part 4 (which deals with incapacity for
duty), Part 7 (which deals with breaches of discipline),
Part 9 (which deals with the investigation of complaints)
and Part 10 (which deals with the investigation of
protected disclosure complaints);
· if the person is a special constable, a disciplinary
investigation in respect of that person under clause 195.
The test results may also be used by the Chief Commissioner as
evidence in any proceedings related to disciplinary investigations
or investigations of complaints and protected disclosure
complaints.
Clause 97 provides for the admissibility of test results in certain court
proceedings. Subclause (1) provides that evidence derived from
a sample obtained under Divisions 2, 3, 4 and 5 is inadmissible
in any proceeding in a court, tribunal or before a person or body
authorised to hear and receive evidence.
Subclause (2) provides for exceptions to the general rule of
inadmissibility provided for in subclause (1).
For instance, if evidence is derived from a sample obtained
following a critical incident, the evidence will be admissible in
criminal, civil and coronial proceedings arising from the critical
incident. This includes police tort claims made under
Division 8 of Part 4.
Clause 98 provides that the Chief Commissioner must ensure that the
result of any test conducted in accordance with a testing
direction given under Part 5 must be handled in accordance with
the regulations.
43
Division 7--General
Clause 99 provides that a member of Victoria Police personnel must
comply with a testing direction given to him or her under this
Part. Clause 125(1)(d) also provides that it is a breach of
discipline to fail to comply with a testing direction given under
this Part.
Clause 100 provides that it is an offence to tamper with a sample obtained
in accordance with Part 5 without reasonable excuse.
The offence encompasses tampering or interfering with a
sample, or attempting to tamper or interfere with a sample,
passing off or attempting to pass off another sample for a
sample and substituting or attempting to substitute a sample.
A reasonable excuse could include a person collecting, storing,
analysing or reporting on the sample in a manner which is
consistent with the requirements of the Act and the regulations.
Clause 101 protects registered medical practitioners or approved health
professionals from civil action for conduct done in the course
of taking samples required or allowed to be taken from any
person under Part 5.
Clause 102 provides that nothing in Part 5 of the Bill affects the operation
of Part 5 of the Road Safety Act 1986. Part 5 of that Act
allows testing of drivers for alcohol or other drugs.
PART 6--POLICE REGISTRATION
Part 6 re-enacts Part VAA of the Police Regulation Act 1958 as inserted by
the Police Regulation Amendment 2012 to provide for the operation of the
Police Profession Register.
Division 1--Registration
Division 1 provides for the qualifications and eligibility required for
registration on the Police Profession Register and for the registration process.
Clause 103 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 police officer at a specified rank.
44
Clause 104 provides that a person may apply to the PRS Board for
registration (by written application accompanied by evidence of
qualifications) if he or she is either--
· a police officer who is absent on secondment to another
body or on leave without pay; or
· a former police officer (other than a former police
officer 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.
Clause 105 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 clause 103. 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.
Clause 106 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 police officer 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
Division 2 provides the process for renewal of registration on the Police
Profession Register.
Clause 107 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. The notification
must also inform the person that they may apply to have their
45
registration renewed and the date on which the person's
registration will expire. The President or Deputy President of
the Registration Division may notify persons under this clause.
Clause 108 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 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.
The President or Deputy President of the Registration Division
may perform the functions of the Board under this clause.
Clause 109 enables the PRS Board to renew the registration of a person on
the Police Profession Register if that person is qualified for
registration. The PRS Board may make the renewal subject to
any conditions that it 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. The President or Deputy
President of the Registration Division may perform the
functions of the Board under this clause.
Division 3--Suspension and cancellation of registration
Clause 110 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 Victoria Police. The suspension is
effective from the time that notice of suspension is given to the
registered person and remains in effect until--
· the person's return to duty; or
· the cancellation of the person's registration.
The President or Deputy President of the Registration Division
may perform the functions of the Board under this clause.
46
Clause 111 gives a discretionary power to the PRS Board to suspend the
registration on 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 contained
information that was false or misleading; or
· the Chief Commissioner notifies the PRS Board that an
inquiry into breach of discipline by the officer has
commenced.
The President or Deputy President of the Registration Division
may perform the functions of the Board under this clause.
Clause 112 provides that the effect of a suspension of registration under this
Part is that the person is taken not to be registered on the Police
Profession Register.
Clause 113 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 Victoria Police. The cancellation takes effect
from the time when notice of it is given to the person.
The President or Deputy President of the Registration Division
may perform the functions of the Board under this clause.
Clause 114 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 show cause why the registration should not
be cancelled. The Board must consider the response before
cancelling the person's registration. The President or Deputy
President of the Registration Division may perform the
functions of the Board under this clause.
Clause 115 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 clause 114. 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. The President or Deputy President of
47
the Registration Division may perform the functions of the
Board under this clause.
Clause 116 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 is received. Failure to do so is an offence with a
maximum penalty of 60 penalty units.
Division 4--Hearings
Division 4 provides for hearings by the PRS Board concerning the grant or
refusal of registration on the Police Profession Register or the cancellation of
that registration.
Clause 117 enables the PRS Board to conduct a hearing if the President or
the Deputy President of the Registration Division determine that
a hearing 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 conducted by 3 members of the Registration
Division of the PRS Board 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.
Clause 118 specifies the procedure at hearings of the Registration Division
of the PRS Board. 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 at a hearing according to the
opinion of the majority of members present.
48
Clause 119 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
· on 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.
Clause 120 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 for an individual and 300 penalty units for a
body corporate.
Division 5--Police Profession Register
Division 5 provides for the maintenance of the Police Profession Register by
the PRS Board.
Clause 121 requires the PRS Board to keep the Police Profession Register
(in a form or manner that it determines) containing 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.
49
Clause 122 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 police officer; or
· returns from a period of absence on secondment or
leave without pay; or
· is dismissed from Victoria Police.
Division 6--General
Division 6 provides for general matters applicable to the PRS Board in
performing its registration functions.
Clause 123 specifies that the PRS Board is bound by the rules of natural
justice.
Clause 124 specifies the methods by which any notice or document required
to be given or served may be served upon a person.
PART 7--DISCIPLINE
Part 7 re-enacts the effect of Division 2 of Part IV of the Police Regulation
Act 1958.
Division 1--Breaches of discipline
Clause 125 re-enacts the effect of section 69 of the Police Regulation Act
1958 by listing the circumstances in which a police officer or
protective services officer commits a breach of discipline.
Subclause (2) provides that it is also a breach of discipline for a
police officer or protective services officer to knowingly assist
or participate in a breach of discipline.
Clause 126 re-enacts the effect of section 70 of the Police Regulation Act
1958 allowing the Chief Commissioner to conduct a
preliminary investigation into a suspected breach of discipline
and--
· transfer the officer to other duties; or
50
· direct the officer to take any accrued leave; or
· suspend the officer with pay--
at any time during an investigation.
Subclause (3) requires the Chief Commissioner to withdraw the
transfer, direction or suspension if the officer has not been
charged under clause 127 within 3 months.
Subclauses (4) and (5) allow the Chief Commissioner to apply
to the PRS Board for an extension of the time specified in
subclause (3) and allow the President of the PRS Board or
Deputy President of the Review Division to give the extension
if he or she reasonably believes it is necessary for the
investigation.
Clause 127 remakes the effect of section 71 of the Police Regulation Act
1958 allowing the Chief Commissioner to charge a police
officer or protective services officer with a breach of discipline.
Subclauses (2) and (3) are intended to ensure that the police
discipline system is not used instead of the criminal justice
system. The Chief Commissioner is required to consult with
the independent Director of Public Prosecutions ahead of
charging a police officer or protective services officer with a
discipline matter that could reasonably be considered an offence
referred to in Schedule 4.
Subclause (4) allows the Chief Commissioner to--
· transfer a charged officer to other duties; or
· direct the charged officer to take any accrued leave; or
· suspend the charged officer with or without pay.
Subclause (5) provides that any action taken under subclause (4)
remains in force until the charge has been finally determined.
Clause 128 re-enacts the effect of section 72 of the Police Regulation Act
1958 prescribing the manner and form of the charge.
Clause 129 re-enacts the effect of section 73 of the Police Regulation Act
1958 requiring the Chief Commissioner (or a person authorised
under section 130(1)(b)) to inquire into and determine a charge.
51
Clause 130 re-enacts the effect of section 74 of the Police Regulation Act
1958 allowing the Chief Commissioner to authorise persons to
charge or inquire into and determine charges.
Clause 131 re-enacts the effect of section 75 of the Police Regulation Act
1958 prescribing the procedure on an inquiry.
Clause 132 re-enacts the effect of section 76 of the Police Regulation Act
1958 prescribing the determinations that may be made
following an inquiry that finds that the charge has been proved.
Clause 133 remakes section 77 of the Police Regulation Act 1958 allowing
for enforcement of a determination to pay compensation or
costs or make restitution.
Clause 134 remakes section 78 of the Police Regulation Act 1958 in
relation to adjournment of charges.
Division 2--Offences punishable by imprisonment
Clause 135 re-enacts the effect of section 79 of the Police Regulation Act
1958 outlining the steps that the Chief Commissioner may take
if he or she--
· reasonably believes that a police officer or protective
services officer has committed an offence punishable by
imprisonment; or
· has been charged with an offence punishable by
imprisonment.
Clause 136 re-enacts the effect of section 80 of the Police Regulation Act
1958 which outlines the consequences that flow from a charge
being found proven against a police officer or protective
services officer.
Clause 137 re-enacts the effect of section 81 of the Police Regulation Act
1958 prohibiting the Chief Commissioner from taking action
against an officer under Division 1 in respect of an act for
which the officer has had action taken against him or her under
clause 136(1).
52
Division 3--Effect of suspension, dismissal or reduction of rank
Clause 138 re-enacts the effect of section 86 of the Police Regulation Act
1958 which prescribes the effect of suspension of a police
officer or protective services officer.
Clause 139 re-enacts the effect of section 86AAA of the Police Regulation
Act 1958 providing the circumstances in which a police officer
or protective services officer forfeits or must repay their salary.
Clause 140 re-enacts the effect of section 86AA of the Police Regulation
Act 1958 providing for no compensation for dismissal or
reduction in rank of police officers or protective services
officers.
PART 8--APPEALS AND REVIEWS
Part 8 re-enacts Part IVAA of the Police Regulation Act 1958 to provide for
appeals and reviews of certain decisions in respect of police officers and
protective services officers.
Division 1--Appeals
Clause 141 re-enacts the effect of section 86AC of the Police Regulation
Act 1958 providing the circumstances in which a police officer
may appeal to the PRS Board regarding the selection of another
police officer for promotion or transfer subject to one
modification. The clause limits the number of appeals allowed
per person to 4 per financial year, rather than 4 in the previous
12 months.
Clause 142 re-enacts the effect of section 86AD of the Police Regulation
Act 1958 providing the circumstances in which a protective
services officer may appeal to the PRS Board regarding the
selection of another protective services officer for promotion or
transfer subject to one modification. The clause limits the
number of appeals allowed per person to 4 per financial year,
rather than 4 in the previous 12 months.
Clause 143 re-enacts the effect of section 86AE of the Police Regulation
Act 1958 specifying the constitution of the PRS Board for the
purposes of appeals.
53
Clause 144 re-enacts the effect of section 86AF of the Police Regulation
Act 1958 providing that an appeal under this Division is to be
by way of a re-hearing.
Clause 145 re-enacts the effect of section 86AG of the Police Regulation
Act 1958 specifying the procedure on an appeal.
Division 2--Reviews
Clause 146 re-enacts the effect of section 86AH of the Police Regulation
Act 1958 outlining the decisions of the Chief Commissioner for
which a police officer or protective services officer may seek
review by the PRS Board.
Clause 147 re-enacts the effect of section 86AI of the Police Regulation
Act 1958 requiring applications for review to be in an approved
form and specifies lodgement timeframes.
Clause 148 re-enacts the effect of section 86AJ of the Police Regulation
Act 1958 specifying the constitution of the PRS Board for the
purposes of reviews.
Clause 149 re-enacts the effect of section 86AK of the Police Regulation
Act 1958 providing for special procedures for the review of
directed transfer decisions made under clause 156.
Clause 150 re-enacts the effect of section 86AL of the Police Regulation
Act 1958 providing that if an application is lodged to review a
decision under clause 70(2) to transfer, demote or dismiss an
officer who is incapable of performing his or her duties, the
Chief Commissioner must lodge the file within 2 business days
after being notified of the application.
Clause 151 re-enacts the effect of section 86AM of the Police Regulation
Act 1958 providing that the PRS Board must consider, when
conducting a review, the interest of the applicant and the public
interest.
Clause 152 re-enacts the effect of section 86AN of the Police Regulation
Act 1958 providing the powers and requirements of the
PRS Board when considering an application for a review of a
decision to terminate or dismiss a police officer or protective
services officer.
54
Clause 153 re-enacts the effect of section 86AO of the Police Regulation
Act 1958 providing the requirements of the PRS Board when
considering an application for review of certain decisions
including demotion and transfer decisions.
Clause 154 re-enacts the effect of section 86AP of the Police Regulation
Act 1958 providing the powers of the PRS Board when
reviewing a decision, other than a review under clauses 152
and 153.
Division 3--General provisions for appeals and reviews
Clause 155 re-enacts the effect of section 86AQ of the Police Regulation
Act 1958 providing that the PRS Board is bound by the rules of
natural justice in all appeals and reviews before it.
Clause 156 re-enacts the effect of section 86AR of the Police Regulation
Act 1958 providing that the PRS Board must 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.
Clause 157 re-enacts the effect of section 86AS of the Police Regulation
Act 1958 providing 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.
Clause 158 re-enacts the effect of section 86AT of the Police Regulation
Act 1958 providing that, 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 legal practitioner. 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.
Clause 159 re-enacts the effect of section 86AU of the Police Regulation
Act 1958 providing 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 or affirmation.
55
Clause 160 re-enacts the effect of section 86AV of the Police Regulation
Act 1958 providing that the President or the Deputy President
of the Review Division may issue a summons to a person to
appear and produce documents on an appeal or review.
The offence provision in section 86AV of the Police
Regulation Act 1958 is re-enacted at section 161.
Clause 161 re-enacts, with greater specificity, the offence provision in
section 86AV of the Police Regulation Act 1958.
The provision contains 4 discrete offences--
· refusal or failure to attend as required by a properly
served summons;
· refusal or failure to answer a question that the
PRS Board requires a person to answer;
· refusal or failure to produce a document that the
PRS Board requires a person to produce;
· refusal or failure to take an oath or make an affirmation
when required to do so by the PRS Board.
Each offence attracts a "reasonable excuse" defence.
The clause increases the maximum penalty from 10 penalty
units to 120 penalty units or imprisonment for 1 year or both for
each offence.
Clause 162 re-enacts the effect of section 86AX of the Police Regulation
Act 1958 prohibiting behaviour that constitutes contempt of the
PRS Board. The clause increases the maximum penalty from
30 penalty units or imprisonment for 3 months or both to
120 penalty units or imprisonment for 1 year or both.
Clause 163 re-enacts the effect of section 86AY of the Police Regulation
Act 1958 providing 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.
Clause 164 re-enacts the effect of section 86AZ of the Police Regulation
Act 1958 providing that the PRS Board may, in exceptional
circumstances, extend the time limit fixed by the Act or
regulations for lodging an appeal or application for review or
doing any other thing in relation to the appeal or review.
56
Clause 165 re-enacts the effect of section 86AW of the Police Regulation
Act 1958 providing that the Chief Commissioner must give
effect to an order or decision of the PRS Board on an appeal or
a review.
PART 9--COMPLAINTS AND INVESTIGATIONS
Part 9 re-enacts the complaints and investigation provisions of Part IVA of
the Police Regulation Act 1958. These provisions set out how complaints
about the conduct or misconduct of a police officer or protective services
officer can be made, the handling and investigation of those complaints, the
prohibition of victimisation in relation to protected persons and associated
offences.
Division 1--Preliminary
Clause 166 re-enacts the definitions contained in section 86A of the Police
Regulation Act 1958. The definition of conduct is the same.
However, the term serious misconduct from the Police
Regulation Act 1958 is replaced by the term misconduct.
This aligns the definitions with the definitions in the
Independent Broad-based Anti-corruption Commission
Act 2011.
Division 2--Complaints and investigations
Clause 167 re-enacts the effect of section 86L of the Police Regulation Act
1958 providing for the making of complaints about the conduct
of police officers and makes clear, on the face of the legislation,
that the provisions apply to complaints made by and about
protective services officers.
Clause 168 re-enacts the effect of section 86LA of the Police Regulation
Act 1958 requiring the referral of misconduct complaints
received by police officers to the Chief Commissioner and
makes clear, on the face of the legislation, that the provision
applies to complaints made by and about protective services
officers.
Clause 169 re-enacts the effect of section 86M of the Police Regulation
Act 1958 requiring the Chief Commissioner to investigate
complaints about misconduct that are not protected disclosure
complaints and requiring the Chief Commissioner to provide
details of a misconduct complaint or investigation to the IBAC.
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Clause 170 re-enacts the effect of section 86O of the Police Regulation Act
1958 requiring the Chief Commissioner to report on the
progress of investigations, conciliation of investigations and
completion of investigations to the IBAC.
Clause 171 re-enacts the effect of section 86Q of the Police Regulation Act
1958 giving the Chief Commissioner a power to direct police
officers and protective services officers to answer questions,
provide relevant information or produce relevant documents and
failure to do so is a breach of discipline.
Clause 172 re-enacts the effect of section 86T of the Police Regulation Act
1958 requiring the Chief Commissioner to advise complainants
of the results of the investigation and action taken or proposed
to be taken, so long as it is not contrary to the public interest.
Division 3--General
Clause 173 re-enacts the effect of section 86V of the Police Regulation Act
1958 protecting complainants against victimisation by making it
an offence to take detrimental action against complainants.
Clause 174 re-enacts the offences in section 86K of the Police Regulation
Act 1958 and increases the maximum penalty from 10 penalty
units or imprisonment for 1 year or both to 120 penalty units or
imprisonment for 1 year or both in line with modern penalty
unit scales.
PART 10--INVESTIGATION OF PROTECTED DISCLOSURE
COMPLAINTS
Part 10 re-enacts the effect of Part IVB of the Police Regulation Act 1958,
which was introduced by the Protected Disclosure Act 2012. The Part deals
with police investigation of protected disclosure complaints. The drafting of
the Part has been modernised to reflect the new terms police officer and
Victoria Police personnel.
Division 1--Investigations
Clause 175 re-enacts the effect of section 86X of the Police Regulation Act
1958 requiring the Chief Commissioner to investigate all
protected disclosure complaints that the IBAC refers to him or
her.
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Clause 176 re-enacts the effect of section 86Y of the Police Regulation Act
1958 which deals with questioning of police officers and
protective services officers for the purpose of investigating
protected disclosure complaints.
Clause 177 re-enacts the effect of section 86Z of the Police Regulation Act
1958 allowing the person who made the protected disclosure
complaint to request information about the investigation from
the Chief Commissioner.
Division 2--Action on investigation
Clause 178 re-enacts the effect of section 86ZA of the Police Regulation
Act 1958 requiring and allowing the Chief Commissioner to
take action in certain circumstances.
Clause 179 re-enacts the effect of section 86ZB of the Police Regulation
Act 1958 requiring the Chief Commissioner to report to the
IBAC and allowing the Chief Commissioner to give
information to the Premier and the Minister about the findings
of the investigation.
Clause 180 re-enacts the effect of section 86ZC of the Police Regulation
Act 1958 allowing the Premier and the Minister to disclose
information for the purpose of obtaining advice.
Clause 181 re-enacts the effect of section 8ZD of the Police Regulation
Act 1958 requiring the Chief Commissioner to inform the
person who made the protected disclosure complaint of the
outcome of the investigation.
Clause 182 re-enacts the effect of section 86ZE of the Police Regulation
Act 1958 listing circumstances in which the Chief
Commissioner must not disclose information.
Division 3--Disclosure of information
Clause 183 re-enacts the effect of section 86ZF of the Police Regulation
Act 1958 providing definitions for the purpose of the disclosure
of information offence in this Division.
Clause 184 re-enacts the effect of section 86ZG of the Police Regulation
Act 1958 which provides that subject to specific exemptions in
subclauses (2) to (6), it is an offence for a person who is or was
a member of Victoria Police personnel to disclose information
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obtained under this Part. The offence is punishable by a
maximum of 120 penalty units or imprisonment for 1 year or
both.
Clause 185 re-enacts the effect of section 86ZH of the Police Regulation
Act 1958 which provides that subject to specific exemptions in
subclauses (2) to (4) and clause 186, it is an offence for a person
to disclose a restricted matter. The definition of restricted
matter is in clause 183. The offence is punishable by a
maximum of 120 penalty units or imprisonment for 1 year or
both.
Clause 186 re-enacts the effect of section 86ZI of the Police Regulation
Act 1958 which allows the Chief Commissioner to authorise in
writing the disclosure of a restricted matter to a person specified
in the authorisation.
Division 4--Investigation procedures
Clause 187 re-enacts the effect of section 86ZJ of the Police Regulation
Act 1958 requiring the Chief Commissioner to establish
investigation procedures for protected disclosure complaints.
Clause 188 re-enacts the effect of section 86ZK of the Police Regulation
Act 1958 allowing the IBAC to review the Chief
Commissioner's investigation procedures.
Clause 189 re-enacts the effect of section 86ZL of the Police Regulation
Act 1958 requiring the Chief Commissioner to adopt the
IBAC's recommendations in relation to investigations
procedures or give the IBAC reasons for not doing so.
Division 5--Other matters
Clause 190 re-enacts the effect of section 86ZM of the Police Regulation
Act 1958 allowing the Chief Commissioner to request that the
IBAC withdraw the referral of a protected disclosure complaint.
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PART 11--SPECIAL CONSTABLES
Part 11 re-enacts the effect of Part VC of the Police Regulation Act 1958
dealing with the appointment and administration of special constables.
The Chief Commissioner may appoint police officers from other jurisdictions
as special constables. This appointment gives those persons the legal powers,
duties and functions of a police officer in Victoria. This enables special
constables to operate in Victoria during times of emergency or in
cross-border locations.
Division 1--Appointment of special constables generally
Clause 191 re-enacts the effect of section 102L of the Police Regulation
Act 1958 which allows the Chief Commissioner to appoint
police officers of other jurisdictions as special constables.
Clause 192 re-enacts the effect of section 102M of the Police Regulation
Act 1958 which provides for the taking and subscribing of the
oath or affirmation of the office of special constable. The form
of oath or affirmation is set out in Schedule 2.
Clause 193 re-enacts the effect of section 102N of the Police Regulation
Act 1958 which provides for the status and powers of special
constables. More specifically, special constables are taken to be
police officers, have the duties and powers of constables at
common law and any duties and powers conferred on police
officers by statute or subordinate instrument.
Clause 194 re-enacts the effect of section 102O of the Police Regulation
Act 1958 allowing the Chief Commissioner to terminate the
appointment of special constables and prescribing the process
for termination.
Clause 195 re-enacts the effect of section 102P of the Police Regulation
Act 1958. Special constables are subject to similar disciplinary
processes as police officers. The Chief Commissioner may
notify the chief officer of a special constable's "home"
jurisdiction of the outcome of any disciplinary or criminal
investigation.
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Division 2--Incidents requiring urgent cross-border assistance
Clause 196 re-enacts the effect of section 102Q of the Police Regulation
Act 1958 allowing the Chief Commissioner or a Deputy
Commissioner to declare an incident to be an incident requiring
urgent cross-border assistance.
Clause 197 re-enacts the effect of section 102R of the Police Regulation
Act 1958 providing for the period a declaration under
clause 196 remains in force (14 days maximum) and the process
for a declaration extension.
Clause 198 re-enacts the effect of section 102S of the Police Regulation
Act 1958 providing that the appointment of persons under
clause 191 as special constables may be either orally or in
writing during a declared incident, as well as the administrative
processes required to notify the Minister and the person
appointed as a special constable.
Clause 199 re-enacts the effect of section 102T of the Police Regulation
Act 1958 allowing a special constable appointed during a
declared incident to make and subscribe an oath or affirmation
of office as soon as practicable after his or her appointment.
This is to ensure flexibility during times of emergency.
Clause 200 re-enacts the effect of section 102U of the Police Regulation
Act 1958 providing for the termination of appointment of
special constables at the end of the period in which a declaration
under clause 196 is in force.
PART 12--POLICE REGISTRATION AND SERVICES
BOARD
Part 12 re-enacts Part V of the Police Regulation Act 1958 to provide for the
continuation, functions and powers of the PRS Board.
Division 1--Establishment and functions
Clause 201 continues the PRS Board as the same statutory body corporate
established by section 87 of the Police Regulation Act 1958.
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Clause 202 re-enacts functions of the PRS Board contained at section 87A
of the Police Regulation Act 1958. The functions of the
PRS Board are--
· registration functions that include maintaining the
Police Profession Register and registering persons on it
and, if requested to do so, advising the Chief
Commissioner on proposed appointments to Victoria
Police; and
· professional standards functions that include advising
the Chief Commissioner on competency standards,
practical standards and educational courses for police
officers and protective services officers; and
· review functions that include hearing and determining
appeals and reviews, 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.
Clause 203 re-enacts the effect of section 87B of the Police Regulation Act
1958 establishing the Divisions of the PRS Board as follows--
· Registration Division;
· Professional Standards Division;
· Review Division--
to perform the registration, professional standards and review
functions of the PRS Board respectively.
Clause 204 re-enacts the effect of section 87C of the Police Regulation Act
1958 vesting the PRS Board with all necessary powers to
perform its functions.
Division 2--Membership
Clause 205 re-enacts the effect of section 87D of the Police Regulation Act
1958 specifying the membership of the PRS Board as the
President, Deputy Presidents for each of the Divisions, police
officers (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, who must be satisfied that the person can perform the
duties of a member of the PRS Board.
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Clause 206 re-enacts the effect of section 87E of the Police Regulation Act
1958 specifying the membership of the Registration Division as
the President (ex officio), a Deputy President, police officers
nominated by a police professional association, police officers
nominated by the Chief Commissioner, an academic and a legal
practitioner of at least 5 years standing.
Clause 207 re-enacts the effect of section 87F of the Police Regulation Act
1958 specifying the membership of the Professional Standards
Division as the President (ex officio), a Deputy President and
other members that must be academics, legal practitioners of at
least 5 years standing or former or serving police officers.
Clause 208 re-enacts the effect of section 87G of the Police Regulation Act
1958 specifying 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 officer.
Clause 209 re-enacts the effect of section 87H of the Police Regulation Act
1958 providing that the President may allocate members of the
PRS Board to the Divisions. Members may be allocated to
more than one Division.
Clause 210 re-enacts the effect of section 87I of the Police Regulation Act
1958 providing that members of the PRS Board are entitled to
the remuneration and allowances fixed from time to time by the
Governor in Council.
Clause 211 re-enacts the effect of section 87J of the Police Regulation Act
1958 providing for the accountability of the President of the
PRS Board to the Minister for the performance of the
PRS Board.
Clause 212 re-enacts the effect of section 87K of the Police Regulation Act
1958 providing the circumstances in which the office of a
member of the PRS Board becomes vacant and the
circumstances in which the Governor in Council, on the
recommendation of the Minister, may remove a member from
office.
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Clause 213 re-enacts the effect of section 87L of the Police Regulation Act
1958 specifying arrangements for acting appointments.
The Governor in Council may 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.
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
Clause 214 re-enacts the effect of section 87M of the Police Regulation
Act 1958 specifying the requirements for meetings of the
PRS Board with one modification. The clause introduces a
quorum of 25% rather than a majority of members.
Clause 215 re-enacts the effect of section 87N of the Police Regulation Act
1958 providing that a vacancy in the membership of the
PRS Board or a defect or irregularity in the appointment of a
member does not invalidate acts or decisions of the PRS Board.
Clause 216 re-enacts the effect of section 87O of the Police Regulation Act
1958 providing 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. See clause 163 for the
protection and immunity of members of the PRS Board on
appeals or reviews.
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Clause 217 re-enacts the effect of section 87P of the Police Regulation Act
1958 providing that the PRS Board may 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.
Clause 218 re-enacts the effect of section 87Q of the Police Regulation Act
1958 prohibiting a PRS Board officer (which includes the
members and staff of the PRS Board) from making a record of
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--
· 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.
Clause 219 provides that the PRS Board may, by instrument, delegate any
function or power to a member of the PRS Board or an
employee or member of staff of a government department or
other body referred to in clause 217 except--
· the power under clauses 104(2) and 108(2) to approve
forms;
· the power under clause 111 to suspend a person's
registration;
· the power under clause 115 to cancel a person's
registration;
· any power or function under Part 8;
· the power of delegation.
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Division 4--Checks and investigations by the PRS Board
Clause 220 re-enacts the effect of section 87R of the Police Regulation Act
1958 specifying that the powers vested in the PRS Board under
this Division are for the purposes of--
· determining whether to register a person on the Police
Profession Register or renew their registration; or
· advising the Chief Commissioner as to whether a police
officer from another jurisdiction or a former police
officer has the integrity, qualifications and experience
for admission or re-admission into Victoria Police.
Clause 221 re-enacts the effect of section 87S of the Police Regulation Act
1958 providing that the PRS Board may require an applicant for
registration or a 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 police officer in Victoria
or another jurisdiction;
· written consent for the Board to obtain information
about their previous police service--
for the Board to perform its functions under this Division.
Clause 222 re-enacts the effect of section 87T of the Police Regulation Act
1958 providing that the PRS Board may--
· conduct investigations and enquiries; and
· require an applicant for registration 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 clause 220.
Consideration of an application for registration or renewal of
registration by a police officer of another jurisdiction or
Victorian police officer may be refused if the applicant fails to
appear before the PRS Board or answer any question or produce
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any documents or provide information required by the
PRS Board.
Clause 223 re-enacts the effect of section 87U of the Police Regulation Act
1958 providing that the PRS Board may 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.
Clause 224 re-enacts the effect of section 87V of the Police Regulation Act
1958 providing the means by which a notice or summons under
this Division may be served and specifying the time the service
is taken to have been effected under the various modes.
PART 13--CONFIDENCE AND PRIVILEGE
Part 13 deals with a number of schemes to protect the confidentiality and
privilege of police information.
Division 1--Confidentiality of police information
Division 1 reforms the offences relating to unauthorised disclosure of police
information and documents in section 127A of the Police Regulation Act
1958. Reforms include--
· the offences will clearly apply to disclosure of police
information by former members of Victoria Police personnel;
· the provisions clarify that the Chief Commissioner's
instructions are a source of a duty not to disclose information;
· a new information disclosure offence will apply to current and
former contractors, consultants and service providers.
This new offence will also apply to bodies corporate;
· the provisions clarify that reasonable excuse is a defence to the
offences and an example of reasonable excuse is that the
person charged with the offence took reasonable steps not to
access, make use of, or disclose the information.
An evidentiary burden applies to this defence;
· other minor and technical amendments to modernise the
offences and ensure they fit within the broader scheme of the
Bill.
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Clause 225 provides definitions of police information and service provider.
In summary--
Police information means--
· any information that has come to the knowledge or into
the possession of a member of Victoria police personnel
in the performance of functions or duties or the exercise
of powers or otherwise as a result of being a member of
Victoria Police personnel; or
· any information given or made available to a service
provider by Victoria Police or a member of Victoria
Police personnel for the purposes of the provision of
services by the service provider.
Service provider means a contractor, consultant or other person
who is or has been engaged to provide services to Victoria
Police or to the Chief Commissioner, or a person who is or has
been employed by or engaged to provide services to a
contractor, consultant or other person engaged to provide these
services.
Clause 226 provides clarity on matters to be considered for the purposes of
determining whether it is the duty of a member or former
member of Victoria Police personnel not to access, make use of
or disclose police information. Without limiting the sources of
such a duty, regard must be had to the Chief Commissioner's
instructions.
Clause 227 re-enacts the summary offences of unauthorised access to, use
of or disclosure of police information by members or former
members of Victoria Police personnel in section 127A(1)
and (2) of the Police Regulation Act 1958. The offence
attracts a maximum penalty of 240 penalty units or
imprisonment for 2 years or both.
Clause 228 re-enacts the indictable offences of unauthorised access to, use
of or disclosure of police information by members or former
members of Victoria Police personnel in section 127A(1AB)
and (4) of the Police Regulation Act 1958. The offence
attracts a maximum penalty of 600 penalty units or
imprisonment for 5 years or both.
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Clause 229 introduces a new offence of unauthorised access to, use of or
disclosure of police information by service providers. In the
case of an individual, the offence attracts a maximum penalty of
240 penalty units or imprisonment for 2 years or both. In the
case of a body corporate, the offence attracts a maximum
penalty of 1200 penalty units.
Clause 230 re-enacts the effect of section 127A(1B) of the Police
Regulation Act 1958 allowing the Chief Commissioner to
authorise certain people to access, use or disclose information
on a computerised database with modifications. A relevant
person within the meaning of the Corrections Act 1986 is
referred to instead of a person holding a position. This reflects
the current provisions of the Corrections Act 1986.
Clause 231 re-enacts the examples of authorised access to, use of or
disclosure of police information in section 127A(1C) to (1G) of
the Police Regulation Act 1958.
Clause 232 re-enacts the offence in section 85G of the Police Regulation
Act 1958 to disclosing the identity of the person who has been
giving a testing direction under Part 5. Clause 232 also extends
the offence to include disclosure of test results obtained under
Part 5 (unless disclosure is authorised by the Act or
regulations). Exemptions to the offence apply to the Chief
Commissioner and to the IBAC or an IBAC officer in the
performance of their duties. In the case of an individual, the
offence attracts a maximum penalty of 60 penalty units or
imprisonment for 6 months or both. In the case of a body
corporate, the offence attracts a maximum penalty of
300 penalty units.
Division 2--Other confidentiality and privilege provisions
Clause 233 re-enacts the effect of section 126 of the Police Regulation Act
1958 providing that deliberations of Ministers and
parliamentary committees may not be required to be disclosed.
Clause 234 re-enacts the effect of section 124A of the Police Regulation
Act 1958 regarding certain crime reports being privileged and
not subject to a defamation suit. The provision has been
updated to reflect the inclusion of publication of documents by
electronic communication within the meaning of the
Defamation Act 2005.
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Division 3--Agency Photographs
Division 3 re-enacts Part VIC of the Police Regulation Act 1958, which is a
scheme to facilitate the Chief Commissioner's release of agency photographs
(for example "mug shots") to media organisations.
Clause 235 re-enacts definitions of agency photograph, authorised media
organisation, journalism and media organisation currently
contained in section 3 of the Police Regulation Act 1958.
Clause 236 re-enacts the effect of section 118W of the Police Regulation
Act 1958 allowing the Chief Commissioner to authorise a
media organisation to be given agency photographs.
Clause 237 re-enacts the effect of section 118X of the Police Regulation
Act 1958 allowing media organisations to apply to the Chief
Commissioner for authorisation under clause 236.
Clause 238 re-enacts the effect of section 118R of the Police Regulation
Act 1958 allowing the Chief Commissioner to authorise the
giving of agency photographs to media organisations.
Clause 239 re-enacts the effect of section 118S of the Police Regulation
Act 1958 allowing authorised media organisations to apply for
the giving of agency photographs.
Clause 240 re-enacts the effect of section 118T of the Police Regulation
Act 1958 listing the matters that the Chief Commissioner must
consider before authorising the giving of an agency photograph
under clause 238.
Clause 241 re-enacts the effect of section 118Vof the Police Regulation
Act 1958 requiring the Chief Commissioner to notify the person
photographed about any decision to authorise the giving of their
photograph to a media organisation.
Clause 242 re-enacts the offences in sections 118W(4) and 118U of the
Police Regulation Act 1958. It is an offence for a media
organisation not to comply with an authorisation, and specific
journalistic purposes and standards.
Clause 243 re-enacts the effect of section 118Y of the Police Regulation
Act 1958 protecting the Chief Commissioner and media
organisations in respect of the publication of agency
photographs in a manner that complies with the scheme.
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Clause 244 re-enacts the effect of section 118Z of the Police Regulation
Act 1958 providing a protection to those authorising the giving
of agency photographs from criminal offences.
Clause 245 re-enacts the effect of section 118ZA of the Police Regulation
Act 1958 providing that nothing in this Division affects or
limits the operation of section 234 regarding certain crime
reports being privileged and not subject to a defamation suit.
Division 4--Disclosure of vehicle accident information
Division 4 re-enacts Part VIB of the Police Regulation Act 1958, which is a
scheme to facilitate the disclosure of vehicle accident information.
Clause 246 re-enacts the definitions in section 118L of the Police
Regulation Act 1958.
Clause 247 re-enacts section 118M of the Police Regulation Act 1958
allowing the Minister to declare non-Victorian statutory
insurance scheme laws and persons as statutory scheme
insurers.
Clause 248 re-enacts section 118N of the Police Regulation Act 1958
allowing certain persons to request vehicle accident information
from police.
Clause 249 re-enacts section 118O of the Police Regulation Act 1958
prescribing the form and content of applications for vehicle
accident information.
Clause 250 re-enacts the effect of section 118P of the Police Regulation
Act 1958 allowing disclosure of vehicle accident information.
Clause 251 re-enacts the offence in section 118Q of the Police Regulation
Act 1958 which provides that it is an offence to disclose or use
vehicle accident information for a purpose other than an
authorised purpose. The clause re-enacts the 60 penalty unit
maximum and introduces a new maximum penalty of
300 penalty units for a body corporate.
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PART 14--COMPLIANCE AND ENFORCEMENT
Division 1--General offences in relation to Victoria Police
Clause 252 modernises the offences contained at sections 95 and 97 of the
Police Regulation Act 1958 relating to bribery and corruption
by police officers, protective services officers and police
recruits.
The maximum penalty for the offences is increased from
100 penalty units to imprisonment for 2 years or 240 penalty
units or both.
A proceeding for an offence against this clause may be
commenced within the period of 3 years after the alleged
commission of the offence. This provision re-enacts
section 95(2) of the Police Regulation Act 1958, which was
introduced following recommendations made in May 1998 in
the Ombudsman's Report into Operation Bart.
Clause 253 modernises the offences contained at sections 95 and 97 of the
Police Regulation Act 1958 relating to bribery and corruption
towards police officers, protective services officers and police
recruits.
The maximum penalty for the bribery offences is increased
from 100 penalty units to imprisonment for 2 years or
240 penalty units or both for an individual and 1200 penalty
units for a body corporate.
A proceeding for an offence against this clause may be
commenced within the period of 3 years after the alleged
commission of the offence. This provision re-enacts
section 95(2) of the Police Regulation Act 1958, which was
introduced following recommendations made in May 1998 in
the Ombudsman's Report into Operation Bart.
Clause 254 modernises the offences in section 96 of the Police Regulation
Act 1958 relating to failure to return Victoria Police
identification or Victoria Police equipment on ceasing to hold
office as a police officer or protective services officer.
The maximum penalty for the offences is increased from
50 penalty units to 60 penalty units or imprisonment for
6 months or both.
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A reasonable excuse defence is available. The Chief
Commissioner's written permission to retain identification or
equipment is a reasonable excuse. This supports long standing
Victoria Police practice for former police officers or protective
services officers to retain certain Victoria Police equipment as a
personal memento after retirement.
Clause 255 creates a new offence of unauthorised manufacture, possession,
use or supply of Victoria Police equipment. Elements of the
offence are currently contained in section 97 of the Police
Regulation Act 1958.
It is not an offence if the person has the approval of the Chief
Commissioner, the person is performing their duties or the
person otherwise has a reasonable excuse.
The maximum penalty for the offence for an individual is
120 penalty units or imprisonment for 1 year or both.
The maximum penalty for a body corporate is 600 penalty units.
Subclause (2) allows the Chief Commissioner to give written
approval for a person or class of persons to manufacture,
possess, use or supply Victoria Police equipment.
Subclause (4) provides a broad definition of supply, which
includes sell, including by auction, hire out, exchange, give
away or otherwise dispose of, offer to supply, advertise, display
or expose for supply.
Clause 256 modernises the offence relating to impersonating police officers
in section 97 of the Police Regulation Act 1958. Separate
offences are provided for impersonating police officers,
protective services officers and police recruits. The maximum
penalty for each offence is increased from 100 penalty units to
120 penalty units or imprisonment for 1 year or both.
Clause 257 modernises the offence in section 98 of the Police Regulation
Act 1958. The clause makes it an offence to obtain or attempt
to obtain appointment as a police officer or protective services
officer by making a false representation or using a false
document. The maximum penalty is increased from 20 penalty
units to 60 penalty units or imprisonment for 6 months or both.
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Clause 258 re-enacts the offences in section 127 of the Police Regulation
Act 1958 of causing disaffection among police officers or
protective services officers and inducing or attempting to induce
a police officer or protective services officer to withhold their
services or commit a breach of discipline.
Subclause (3) re-enacts the defences of good faith and pointing
out improvements in laws or working conditions.
Division 2--Ancillary provisions for offences
Division 2 enacts an accessorial liability provision and a "Type 1" directors
liability provision modelled on COAG principles contained in the publication
Personal Liability for Corporate Fault: Guidelines for applying the COAG
Principles (COAG guidelines) that was endorsed by COAG on 25 July 2012
and published on the COAG website.
The model provisions were first introduced across the Victorian statute book
by the Statue Law Amendment (Directors' Liability) Act 2013.
Clause 259 provides definitions of body corporate and officer with
reference to the Corporations Act 2001 of the Commonwealth.
Clause 260 introduces a model accessorial liability provision. If a body
corporate commits an offence, an officer of the body corporate
also commits the offence if the officer--
· authorised or permitted the commission of the offence
by the body corporate; or
· was knowingly concerned in any way (whether by act or
omission) in the commission of the offence by the body
corporate.
The accessorial liability provision applies to the following
offences--
· tampering with a drug or alcohol sample
(clause 100(1));
· disclosing information in relation to drug and alcohol
testing (clause 232(1));
· authorisation and use of agency photographs
(clause 242(1) and (2));
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· disclosure or use of vehicle accident information for a
purpose other than an authorised purpose (clause 251(1)
and (2)).
Clause 261 provides a Type 1 directors liability provision. The clause
imposes liability on officers where the officer failed to exercise
due diligence to prevent the commission of the offence by the
body corporate.
The Type 1 directors liability provision applies to the following
offences--
· unauthorised access to, use of or disclosure of police
information by services providers (clause 229(1));
· bribery and corruption towards police officers or
protective services officers (clause 253(1) to (3));
· unauthorised manufacture, possession, use or supply of
Victoria Police identification or Victoria Police
equipment (clause 255(1)).
Clause 262 provides the circumstances in which a body corporate, employer
or principal agent performs an action and forms the necessary
mental element to be liable for offences under the Bill.
Subclause (1) provides that for the purpose of a criminal
proceeding, any conduct engaged in on behalf of a body
corporate is taken to have been engaged in also by the body
corporate, if the conduct was engaged in by an employee, agent
or officer of the body corporate within the scope of the
employee's, agent's, or officer's actual or apparent authority.
Subclause (2) provides that for the purpose of a criminal
proceeding, any conduct engaged in on behalf of a person other
than a body corporate (the principal) is taken to have been
engaged in also by the principal if the conduct was engaged in
by an employee of the principal within the scope of the
employee's actual or apparent authority.
Subclause (3) provides that if, in any criminal proceeding, it is
necessary to establish the state of mind of a body corporate in
relation to particular conduct, it is sufficient to show that--
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· that the conduct was engaged in by an officer of the
body corporate within the scope of the officer's actual or
apparent authority and the officer had that state of mind;
or
· that the conduct was engaged in by an agent of the body
corporate and--
· the agent acted at the specific direction or with
the specific consent or agreement of the body
corporate; or
· the agent had that state of mind; or
· the body corporate was aware of the agent's state
of mind when the conduct was engaged in.
Subclause (4) provides that if, in any criminal proceeding, it is
necessary to establish the state of mind of a person other than a
body corporate in relation to particular conduct, it is sufficient
to show that--
· the conduct was engaged in by an employee of the
person within the scope of the employee's actual or
apparent authority and the employee had that state of
mind; or
· the conduct was engaged in by an agent of the person
and--
· the agent acted at the specific direction or with
the specific consent or agreement of the person;
or
· the agent had that state of mind; or
· the person was aware of the agent's state of mind
when the conduct was engaged in.
Subclause (5) provides that a reference in this section to the
state of mind of a person includes a reference to the knowledge,
intention, opinion, belief or purpose of the person and the
person's reasons for the intention, opinion, belief or purpose.
Subclause (6) provides that criminal proceeding means a
proceeding for an offence against a provision of this Act.
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Division 3--Search and seizure powers
Division 3 modernises the search and seizure provisions of Division 3 of
Part VA of the Police Regulation Act 1958. The new provisions apply to
offences under the Bill and are modelled on the search and seizure provisions
in the Australian Consumer Law and Fair Trading Act 2012. Changes
from the Police Regulation Act 1958 provisions to the provisions in the Bill
include--
· the Bill includes definitions of motor vehicle, aircraft and
vessel;
· the Bill separates the clauses dealing with search with and
without consent;
· the Bill provides clearer requirements for notice before entry
and search and acknowledgement of consent to entry and
search;
· the Bill makes clear that a police officer conducting a search
without consent may take images.
Clause 263 provides the definitions of aircraft, motor vehicle, public place,
relevant offence, vehicle and vessel that apply in the Division.
Clause 264 allows a police officer to enter or search certain premises with
the consent of the occupier of the premises.
Subclause (1) provides that if a police officer believes on
reasonable grounds that a person has committed or is
committing a relevant offence, the police officer may, with the
occupier's consent, enter and search the premises and exercise
the powers referred to in subclauses (2) and (3).
Subclause (2) provides that, when entering a premises with the
consent of an occupier, a police officer may seize anything the
officer finds on the premises or examine, take and keep samples
of any goods the officer finds on the premises, if the officer
believes on reasonable grounds that they are connected with the
alleged contravention. In the case of any document on the
premises, an officer may require the document to be produced
for examination, examine, make copies or take extracts from the
document (or arrange for copies to be made or extracts taken),
and remove the document for as long as reasonably necessary to
make copies or take extracts.
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Subclause (3) provides that an officer may make any still or
moving image or audio-visual recording if the officer
reasonably believes it is necessary to do so for the purpose of
establishing the alleged contravention.
Clause 265 prevents a police officer from entering and searching premises
under clause 264 unless, before the occupier has consented to
the entry and search, the officer has produced his or her
identification and informed the occupier of the purpose of the
search, and that the occupier may refuse to consent to the entry
and search, or to the seizure of anything found during the
search, as well as the taking of any sample of things or any
copy or extract from a document found during the search.
An occupier must also be informed that anything seized or
taken with consent may be used as evidence.
Clause 266 requires the police officer to ask the occupier to sign an
acknowledgement prior to entering and searching the premises
under clause 264.
Subclause (2) sets out what an acknowledgement for the
purposes of subclause (1) must contain.
Subclause (3) provides that if the occupier consents to the
officer seizing or taking anything from the premises during the
search, before seizing or taking the thing, the officer must ask
the occupier to sign an acknowledgment.
Subclause (4) provides that an acknowledgement for the
purposes of subclause (3) must state that the occupier has
consented to the seizure or taking of the thing, and the date
and time of that consent.
Subclause (5) provides that the officer must give a copy of
a signed acknowledgement to the occupier before leaving the
premises.
Subclause (6) provides that if, in any proceeding, a signed
acknowledgement is not produced to the court or tribunal, it is
to be presumed until the contrary is proved that the occupier did
not consent to the entry and search or to the seizure or taking of
the thing.
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Clause 267 enables a police officer to apply to a magistrate for a search
warrant in relation to particular premises or a vehicle located in
a public place.
Subclause (1) enables a police officer to apply to a magistrate
for the issue of a search warrant if the officer believes on
reasonable grounds that there is or may be within the next
72 hours, evidence on the premises or vehicle that a person may
have committed a relevant offence.
Subclause (2) enables a magistrate to issue such a search
warrant in accordance with the Magistrates' Court Act 1989
if satisfied by the evidence.
Clause 268 sets out the form and content of a search warrant issued under
clause 267(2).
Subclause (1) provides that a search warrant may authorise a
police officer named in the warrant to enter specified premises,
by force if necessary and do certain things in relation to things
named or described in the warrant.
Subclause (2) sets out particular things that must be stated in the
search warrant, including its purposes, any conditions to which
the warrant is subject, whether entry is authorised for a
specified time or any time of the day or night, and the day on
which the warrant ceases to have effect.
Subclause (3) clarifies that a power to enter referred to in
subclause (1) includes a power to enter and search a vehicle on
the premises.
Subclause (4) provides that a search warrant issued under the
Bill must be issued in accordance with Magistrates' Court Act
1989 and the rules that apply to search warrants under that Act
extend and apply to a search warrant issued under the Bill.
Clause 269 provides that before executing a search warrant issued under
clause 267(2), the police officer named in the warrant must
announce that he or she is authorised by the warrant to enter the
premises, and if the police officer has been unable to obtain
unforced entry, must give any person at the premises an
opportunity to allow entry. However, a police officer is not
required to comply with these requirements if the police officer
believes on reasonable grounds that immediate entry is required
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to ensure the safety of any person or to ensure that the effective
execution of the search warrant is not frustrated.
Clause 270 provides that a police officer, when executing a search warrant,
must identify himself or herself to the occupier of the premises
and provide the occupier with a copy of the warrant, or if the
occupier is not present, any other person who is present at the
premises, and give that person a copy of the warrant.
Clause 271 provides that a search warrant issued under clause 267(2)
authorises a police officer named in the warrant to seize or take
a sample of things not described in the warrant if the police
officer believes on reasonable grounds that the thing is of a kind
that could have been included in a search warrant issued under
Division 3, or will afford evidence about any offence (whether
or not a relevant offence), and in the case of seizure, that seizing
the item is necessary in order to prevent its concealment, loss,
or destruction or its use in the commission of an offence
(whether or not a relevant offence).
Clause 272 provides for the retention and return of seized things.
Subclause (1) requires a police officer to take reasonable steps
to return a thing seized under Division 3 if the reason for its
seizure no longer exists and the thing is not required in
connection with any investigation or proposed investigation
under Part 7, 9 or 10.
Subclause (2) provides that if the thing seized has not been
returned within 6 months after it was seized, the officer must
take reasonable steps to return it unless required for the
proceeding or an investigation under Part 7, 9 or 10 or the
Magistrates' Court makes an order under 273 extending the
period during which the thing may be retained.
Clause 273 allows the Magistrates' Court to extend the 6 month period in
which the police officer may retain the thing seized.
Subclause (1) allows a police officer to apply to the Magistrates'
Court for an extension of the period for which the police officer
may retain the thing.
Subclause (2) allows the Magistrates' Court to order an
extension if satisfied that retention is necessary for investigation
or evidence purposes, or for an investigation or proposed
investigation under Part 7, 9 or 10.
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Clause 274 allows things seized (whether under this or any other Act) in
relation to relevant offences or an offence punishable by
imprisonment to be used in connection with an investigation
into the conduct of a police officer under Part 7, 9 or 10.
PART 15--GENERAL
Clause 275 re-enacts the effect of section 6(2) of the Police Regulation Act
1958 requiring all courts to take judicial notice of the seal or
signature of the Chief Commissioner, an Acting Chief
Commissioner, a Deputy Commissioner, an Acting Deputy
Commissioner, an Assistant Commissioner, and an Acting
Assistant Commissioner.
Clause 276 allows the Chief Commissioner to request a member of Victoria
Police personnel give a DNA sample under section 464ZGFA
of the Crimes Act 1958 (which relates to voluntary samples)
and provides that the protections and requirements under
sections 464ZGFA and 464ZGFB of the Crimes Act 1958
apply.
Clause 277 provides the Governor in Council with a general regulation
making power. Schedule 5 sets out specific subject matter for
regulations.
PART 16--REPEALS, AMENDMENTS AND TRANSITIONAL
PROVISIONS
Division 1--Police Regulation Act 1958
Division 1 makes changes to the Police Regulation Act 1958 as a result of
the re-enactment and replacement of provisions by the Bill. All provisions of
the Police Regulation Act 1958 are repealed with the exception of those that
relate to police pensions and a provision in relation to police reservists.
Transitional provisions are dealt with in Schedule 6.
Clause 278 changes the short title of the Police Regulation Act 1958 to the
Police Regulation (Pensions) Act 1958.
Clause 279 amends and repeals definitions in the Police Regulation Act
1958. Only those definitions relating to the pensions scheme
for members of the force appointed under the Police
Regulation Act 1958 remain.
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Clause 280 repeals provisions in the Police Regulation Act 1958 relating
to the appointment and retirement of members of the force.
Clauses 13 to 49 of the Bill deal with these matters.
Clause 281 repeals provisions in the Police Regulation Act 1958 relating
to duties and discipline, employment and disciplinary matters,
appeals and reviews, complaints and investigations,
investigation of protected disclosure complaints, the Police
Registration and Services Board, enforcement and the
appointment of special constables. These matters are dealt with
in Parts 4, 5, 7, 8, 9, 10, 11, 12 and 14 of the Bill.
Clause 282 repeals provisions in the Police Regulation Act 1958 relating
to the retired police reserve, including the power for the Chief
Commissioner to appoint police reservists. The Chief
Commissioner will no longer be able to appoint police
reservists. Existing police reservists are dealt with in Division 8
of Part 3 of the Bill.
Clause 283 repeals provisions in the Police Regulation Act 1958 relating
to the appointment of protective services officers, the disclosure
of vehicle accident information and agency photographs.
Clauses 37 to 44 deal with protective services officers,
clauses 246 to 251 deal with vehicle accident information and
clauses 235 to 245 deal with agency photographs.
Clause 284 repeals miscellaneous provisions in the Police Regulation Act
1958 relating to matters including immunity of members of the
force and unauthorised disclosure of information and
documents. Clauses 72 to 81 deal with the new police tort
scheme which replaces the immunity scheme in the Police
Regulation Act 1958. Clauses 225 to 232 deal with
confidentiality of police information including unauthorised
disclosure of information and documents.
Clause 285 repeals the First and Second Schedules of the Police
Regulation Act 1958 which deal with reportable offences and
the form of the oath. Schedule 4 to the Bill deals with
reportable offences and Schedule 2 to the Bill contains the form
of the oaths.
Clause 286 repeals this Division once the amendments have all taken effect
and the Division is thus spent.
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Division 2--Transitional provisions
Clause 287 gives effect to Schedule 6 which contains transitional
provisions.
SCHEDULE 1
PART 1--CHIEF COMMISSIONER
Part 1 deals with terms and conditions of the office of Chief Commissioner.
Clause 1 provides that the Chief Commissioner holds office for the
period specified in his or her instrument of appointment and that
term must not exceed 5 years. The Chief Commissioner is
eligible for reappointment and other terms and conditions may
be specified in his or her instrument of appointment.
Clause 2 provides that in the following circumstances the office of Chief
Commissioner becomes vacant. If the Chief Commissioner--
· becomes an insolvent under administration; or
· becomes a represented person within the meaning of the
Guardianship and Administration Act 1986; or
· resigns or retires; or
· is removed from office.
Clause 3 allows the Chief Commissioner to resign or retire from office
by giving written notice to the Governor in Council.
Clause 4 allows the Governor in Council to remove the Chief
Commissioner on the recommendation of the Minister on the
basis of the following grounds. If the Chief Commissioner--
· has engaged in misconduct; or
· is found guilty of an indictable offence; or
· has engaged in other paid employment without the prior
consent of the Minister; or
· has brought Victoria Police into disrepute; or
· has neglected his or her duties; or
· is incapable or inefficient in, performing his or her
duties.
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Clause 5 allows the Governor in Council, on the recommendation of the
Minister, to suspend the Chief Commissioner if the Minister
believes that grounds may exist for removal of the Chief
Commissioner under clause 4. Suspension may be lifted at any
time and may be for a maximum of 30 days.
PART 2--DEPUTY COMMISSIONERS
Part 2 deals with terms and conditions of the office of a Deputy
Commissioner.
Clause 6 provides that a Deputy Commissioner holds office for the
period specified in his or her instrument of appointment and that
term must not exceed 5 years. A Deputy Commissioner is
eligible for reappointment and other terms and conditions may
be specified in his or her instrument of appointment.
Clause 7 provides that in the following circumstances, the office of a
Deputy Commissioner becomes vacant. If a Deputy
Commissioner--
· becomes an insolvent under administration; or
· becomes a represented person within the meaning of the
Guardianship and Administration Act 1986; or
· resigns or retires; or
· is removed from office.
Clause 8 allows a Deputy Commissioner to resign or retire from office by
giving written notice to the Governor in Council.
Clause 9 allows the Governor in Council to remove a Deputy
Commissioner on the recommendation of the Minister on the
basis of the following grounds. If a Deputy Commissioner--
· has engaged in misconduct; or
· is found guilty of an indictable offence; or
· has engaged in other paid employment without the prior
consent of the Chief Commissioner; or
· has brought Victoria Police into disrepute; or
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· has neglected his or her duties; or
· is incapable or inefficient in, performing his or her
duties.
Clause 10 allows the Governor in Council on the recommendation of the
Minister to suspend a Deputy Commissioner if the Minister
believes that grounds may exist for removal of a Deputy
Commissioner under clause 9. Suspension may be lifted at any
time and may be for a maximum of 30 days.
PART 3--ASSISTANT COMMISSIONERS
Part 3 deals with matters relating to the employment of Assistant
Commissioners.
Clause 11 provides for the employment of Assistant Commissioners by
contract.
Clause 12 requires the contract of employment to hold Assistant
Commissioners to at least as high discipline standards as those
applicable to police officers under the Bill, including provision
for termination for a breach of discipline.
Clause 13 requires the contract of employment to provide for ill-health
retirement in similar circumstances to those in which a police
officer may be retired.
Clause 14 provides that the incapacity for duty provisions in the Bill do
not apply to Assistant Commissioners. This is because the
contract adequately provides for performance management.
Clause 15 provides for reduction in remuneration of Assistant
Commissioners consistent with the terms of the contract.
Clause 16 provides for termination of employment of Assistant
Commissioners consistent with the terms of the contract.
Clause 17 provides that an Assistant Commissioner is not entitled to any
compensation as a result of termination or reduction in salary
other than as provided with the terms of the contract.
Clause 18 provides for resignation or retirement of Assistant
Commissioners.
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Clause 19 provides that Assistant Commissioners whose contract of
employment is terminated (other than for discipline or ill-health
reasons) or expires, are entitled to return to a position at their
former rank in certain circumstances.
SCHEDULE 2
Schedule 2 re-enacts the Second Schedule to the Police Regulation Act 1958
which contains the form of the oath to be taken by police officers, protective
services officers and special constables.
SCHEDULE 3
Schedule 3 re-enacts sections 120 and 120A of the Police Regulation Act
1958, which deals with long service leave provisions for police officers
(excluding the Chief Commissioner and Deputy Commissioners) and
protective services officers.
Clause 1 provides that the Schedule applies to all police officers and
protective services officers with the exception of the Chief
Commissioner and Deputy Commissioners.
Clause 2 re-enacts the effect of section 120(1) of the Police Regulation
Act 1958 providing a basic long service leave entitlement of
3 months per 10 years' service, with 15 months per further
5 years' service.
Clause 3 re-enacts the effect of section 120(1A) of the Police Regulation
Act 1958 allowing long service leave entitlements to be taken
on half-pay.
Clause 4 re-enacts the effect of section 120(3) of the Police Regulation
Act 1958 allowing the Chief Commissioner to grant long
service leave so that Victoria Police is not unduly affected by
police officers and protective services officers taking long
service leave at or about the same time.
Clause 5 re-enacts the effect of section 120(2), (4) and (6) of the Police
Regulation Act 1958 providing for payment in place of long
service leave on retirement or death of a police officer or
protective services officer who has served for between 4 and
10 years.
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Clause 6 re-enacts the effect of section 120A of the Police Regulation
Act 1958 providing for payment in place of long service leave
on resignation of a police officer or protective services officer
who has served for more than 10 years.
SCHEDULE 4
Schedule 4 lists the offences which are specified for the purposes of
clause 127(2) of the Bill. If the Chief Commissioner or authorised person
reasonably believes that a police officer or protective services officer has
committed an offence in this Schedule, the Chief Commissioner or authorised
person must not charge that person with the commission of a breach of
discipline until they have consulted with the Director of Public Prosecutions.
SCHEDULE 5
Schedule 5 lists matters in respect of which the Governor in Council may
make regulations.
SCHEDULE 6
Schedule 6 deals with transitional matters and savings provisions arising
because of the enactment of the Bill and the substantive repeal of the Police
Regulation Act 1958. The principal objective of the Schedule is to preserve
existing appointments and entitlements for police personnel.
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