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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Police Complaints Bill 2016
A BILL FOR
An Act to provide for the investigation of complaints made in respect of
police officers, to make provision in relation to disciplinary proceedings in
respect of police officers, to repeal the
Police
(Complaints and Disciplinary Proceedings) Act 1985
, to make related amendments to other Acts and for other
purposes.
Contents
4Minor misconduct and
minor complaints
Part 3—Internal Investigation
Section
7Constitution of Internal
Investigation Section
Part 4—Complaint management
system
Division 1—Complaints
and reports
10Police officers to
report certain conduct
11Action to be taken on
receipt of complaint or report
12IIS to notify OPI of
complaints and reports
Division 2—Assessment
of complaints and reports
13Assessment of
complaints and reports by IIS
14Certain complaints and
reports to be referred to OPI
15Reassessment of certain complaints and reports
by OPI
16OPI may refer complaints
and reports to ICAC
Part 6—Action
following assessment of complaint or report
Division 1—Informal
inquiry etc for minor misconduct and minor complaints
17Commissioner may deal with minor misconduct
etc informally
18Right to apply for review of informal inquiry
etc
19Monitoring of informal inquiries
Division 2—Formal
investigation of complaints and reports
20Investigations of
complaints and reports by IIS
21Oversight etc of investigations by
OPI
22Constitution of Police Disciplinary
Tribunal
23Registrar and deputy registrar
24Charges in respect of
breaches of discipline
25Tribunal to remit matter to Commissioner for
punishment if charge proved
28Protection of Tribunal, counsel and
witnesses
29Reference of question of law
Part 8—Resolution
of complaints and reports
33Orders for punishment following offence or
charge of breach of Code
34Suspension where charge of offence or breach
of Code
35ICAC
may audit sanctions imposed under Act
38Publication of
information and evidence
39Obstruction of complaint or
report
40False or misleading statements in complaint or
report
42ICAC
etc may report to Ministers
Schedule 1—Repeal and related
amendments
Part 2—Repeal of Police (Complaints
and Disciplinary Proceedings) Act 1985
2Repeal of Police (Complaints and Disciplinary
Proceedings) Act 1985
Part 3—Amendment of Police
Act 1998
3Amendment of section
3—Interpretation
4Substitution of heading to Part 6
7Amendment of section 70—Suspension or
revocation of suspension under Act or regulations
Part 4—Amendment of Protective
Security Act 2007
8Amendment of section
3—Interpretation
9Amendment of section 24—Report and
investigation of breach of Code
10Amendment of section 25—Charge for
breach of Code
11Amendment of section 28—Management
resolution of minor breaches of Code
12Amendment of section 29—Review of
informal inquiry
Part 5A—Protective Security
Officers Disciplinary Tribunal
29Constitution of
Protective Security Officers Disciplinary Tribunal
30Registrar and
deputy registrar
33Protection of
Tribunal, counsel and witnesses
34Reference of
question of law
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Police Complaints
Act 2016.
This Act will come into operation 3 months after the day on which it is
assented to by the Governor.
(1) In this Act, unless the contrary intention appears—
breach of discipline means conduct that contravenes this Act
or breaches the code of conduct and that may be the subject of a notice of
allegation under this Act;
Code of Conduct or Code means the code of
conduct established under
section 6
, as in force from time to time;
Commissioner means the Commissioner of Police;
complaint means a complaint made under
section 9
;
complaint management system—see
section 8
;
conduct of a police officer means—
(a) an act or decision of the officer; or
(b) failure or refusal by the officer to act or make a decision,
in the exercise, performance or discharge (or purported exercise,
performance or discharge) whether within or outside the State, of a power,
function or duty that the person has as, or by virtue of being, a police
officer;
corruption in public administration has the same meaning as
in the
Independent
Commissioner Against Corruption Act 2012
;
ICAC means the Commissioner under the
Independent
Commissioner Against Corruption Act 2012
;
Internal Investigation Section or IIS means the
section of the police force constituted in accordance with
section 7
;
maladministration in public administration has the same
meaning as in the
Independent
Commissioner Against Corruption Act 2012
;
minor complaint or report means a complaint or report of a
kind set out in a determination under
section 4(1)(b)
, as in force from time to time;
minor misconduct means conduct that is the subject of a
determination under
section 4(1)(a)
, as in force from time to time;
misconduct in public administration has the same meaning as
in the
Independent
Commissioner Against Corruption Act 2012
;
notice of allegation—see
section 24(1)
;
OPI means the Office for Public Integrity under the
Independent
Commissioner Against Corruption Act 2012
;
party, to proceedings before the Police Disciplinary
Tribunal, includes the Commissioner;
Police Disciplinary Tribunal or Tribunal means
the Police Disciplinary Tribunal constituted under this Act;
police officer means a person who is—
(a) a member of SA Police; or
(b) a police cadet; or
(c) a special constable;
police public servant means a person (not being a police
officer) employed or performing duties in an administrative unit of the Public
Service of which the Commissioner is the Chief Executive;
report means a report made under
section 10
.
(2) In this Act, the following terms or phrases have the same meaning as
in the
Police
Act 1998
:
(a) Commissioner;
(b) member of SA Police;
(c) police cadet;
(d) SA Police;
(e) special constable.
(3) For the purposes of this Act, a reference to an investigation of a
matter will be taken to include a reference to the further investigation of the
matter.
(4) For the purposes of section 17 of the
Independent
Commissioner Against Corruption Act 2012
, the functions of the OPI under this Act will be taken to have been
assigned to the OPI by the ICAC.
4—Minor
misconduct and minor complaints
(1) Subject to this
section, the Commissioner may determine—
(a) the kinds of
conduct that constitute minor misconduct; and
(b) the kinds of
complaints and reports that may be dealt with informally under
Part 6
Division 1
(a minor complaint or report).
(2) The Commissioner may vary or revoke a determination under this
section.
(3) On making or varying a determination under this section, the
Commissioner must submit the determination or variation (as the case requires)
to the ICAC for approval.
(4) A determination, or variation of a determination, has effect from the
day on which it is approved by the ICAC.
(5) The Minister
must cause notice of each approved determination, and each variation of a
determination, to be tabled before both Houses of Parliament within 15 sitting
days after the day on which it is approved.
(1) This Act is in addition to, and does not derogate from, the
Independent
Commissioner Against Corruption Act 2012
.
(2) This Act is in addition to, and does not derogate from, the
Police
Act 1998
.
(1) The Governor
may, by regulation, establish a code of conduct for the maintenance of
professional standards by police officers.
(2) Without limiting the generality of
subsection (1)
, a code of conduct may include provisions relating to—
(a) the performance of duties; and
(b) corrupt, improper or discreditable behaviour (including criminal
conduct under foreign law); and
(c) drug and alcohol testing; and
(d) conduct towards other police officers; and
(e) standards of personal behaviour or dress; and
(f) relations with the public or particular groups or organisations;
and
(g) the use of official information or resources; and
(h) public comment; and
(i) any other matter that the Governor considers relevant to the
maintenance of professional standards.
Part 3—Internal
Investigation Section
7—Constitution
of Internal Investigation Section
(1) The Commissioner must ensure that a separate section (the
Internal Investigation Section or IIS) is
constituted within SA Police to carry out investigations under this Act in
relation to the conduct of police officers.
(2) In addition to carrying out investigations under this Act, the IIS may
carry out such other investigations in relation to the conduct of police
officers as may be required by the Commissioner.
(3) The officer in charge of the IIS is entitled to report directly to the
Commissioner on any matter relating to the IIS or the performance of its
functions.
(4) If a member of SA Police serving in the IIS is able to perform duties
unrelated to the operation of this Act without unduly interfering with the
duties or functions of the IIS, he or she may be directed to do so by the
Commissioner.
Part 4—Complaint
management system
(1) The Commissioner must establish a system (the complaint
management system) for recording information relating to complaints and
reports made under this Act relating to police officers.
(2) The complaint management system must comply with any requirements set
out in the regulations for the purposes of this subsection.
(3) The Commissioner must ensure that the OPI has direct and unrestricted
access to the complaint management system for the purposes of the OPI's
functions under this Act or the
Independent
Commissioner Against Corruption Act 2012
.
Division 1—Complaints
and reports
(1) A person may make a complaint about the conduct of a police officer in
accordance with this section.
(2) However, a complaint cannot be made in relation to the employment, or
terms or conditions of employment, of police officers.
(3) A complaint may be made—
(a) whether or not the police officer to whom the complaint relates is
identified by the complainant;
(b) anonymously;
(c) on behalf of another person.
(4) A complaint may be made to—
(a) a police officer (not being a police officer to whom the complaint
relates); or
(b) a police public servant; or
(c) the OPI.
(5) A complaint may be made in writing or orally.
(6) In the case of a complaint made orally, the person or body to whom the
complaint is made must, as soon as is reasonably practicable but in any case
within 48 hours after the complaint is made, reduce the complaint to writing in
accordance with any requirements set out in the regulations for the purposes of
this subsection.
(7) Without limiting any other provision of this Act, the IIS or OPI may
require a complaint made orally to be verified by the complainant in
writing.
(8) The person or body to whom a complaint is made must ensure that the
prescribed information in respect of the complaint is recorded on the complaint
management system in accordance with the regulations.
10—Police
officers to report certain conduct
(1) Without limiting
any other provision of this Act, a police officer who suspects on reasonable
grounds that another police officer has engaged in conduct that constitutes
corruption or misconduct in public administration must report that suspicion in
accordance with this section.
(2) A report—
(a) must be made to the IIS or OPI as soon as is reasonably practicable
after the police officer forms the suspicion; and
(b) must be made in a manner and form determined by the IIS or OPI (as the
case requires); and
(c) must comply with any other requirements determined by the Commissioner
and approved by the ICAC.
(3) A police officer who, without reasonable excuse, refuses or fails to
comply with
subsection (1)
may be dealt with under this Act for breach of discipline.
(4) The IIS or OPI (as the case requires) must ensure that the prescribed
information in respect of each received report is recorded on the complaint
management system in accordance with the regulations.
11—Action
to be taken on receipt of complaint or report
(1) A police officer or police public servant to whom a complaint is made
under
section 9
must, as soon as is reasonably practicable but in any case within 48 hours
after the complaint is made, refer the complaint to the IIS.
(2) Subject to this
Act, the OPI must, within 48 hours after receiving a complaint or report under
this Division, refer the complaint or report to the IIS.
(3) However, the OPI need not refer a complaint or report to the IIS if
the complaint or report—
(a) is a complaint or report to which
section 14
applies; or
(b) is, or is to be, referred to the ICAC under
section 16
.
(4) A referral under this section—
(a) must be made in a manner and form determined by the IIS; and
(b) must comply with any other requirements determined by the Commissioner
and approved by the ICAC.
12—IIS
to notify OPI of complaints and reports
(1) The IIS must notify the OPI of each complaint or report referred to
the IIS under this Act .
(2) A notice under this section—
(a) must be made in a manner and form determined by the OPI; and
(b) must comply with any other requirements determined by the Commissioner
and approved by the ICAC.
Division 2—Assessment
of complaints and reports
13—Assessment
of complaints and reports by IIS
(1) Subject to this
Act, each complaint or report referred to the IIS under this Act must be
assessed by the IIS in accordance with this section.
(2)
Subsection (1)
does not apply to a complaint or report if—
(a) the conduct that is the subject of the complaint or report is being,
or has previously been, assessed by the OPI or ICAC; or
(b) the conduct that is the subject of the complaint or report has been
previously dealt with under this Act or the
Police
(Complaints and Disciplinary Proceedings) Act 1985
; or
(c) the matter raised in the complaint or report is, in the opinion of the
officer in charge of the IIS, trivial; or
(d) the complaint or report is, in the opinion of the officer in charge of
the IIS, frivolous or vexatious or not made in good faith; or
(e) having regard to all the circumstances of the case, an investigation
of the complaint or report is unnecessary or unjustifiable.
(3) The purpose of
an assessment under this section is to determine whether a complaint or report
alleges, or raises the possibility of, 1 or more of the following:
(a) corruption in public administration;
(b) misconduct in public administration;
(c) maladministration in public administration;
(d) conduct that should, in the opinion of the officer in charge of the
IIS, be dealt with by the OPI or ICAC.
(4) Subject to this Act, an assessment under this section is to be
conducted in such manner as the officer in charge of the IIS thinks
fit.
(5) The IIS must ensure that the prescribed information in respect of each
assessment is recorded on the complaint management system in accordance with the
regulations.
14—Certain
complaints and reports to be referred to OPI
(1) This section applies to a complaint or report that—
(a) alleges, or raises the possibility of, 1 or more of the
following:
(i) corruption in public administration;
(ii) misconduct in public administration;
(iii) maladministration in public administration;
(iv) conduct that should, in the opinion of the officer in charge of the
IIS, be dealt with by the OPI or ICAC; or
(b) relates to the conduct of a police officer of or above the rank of
superintendent; or
(c) relates to the conduct of a police officer who is, or was at the time
of the conduct, a member of the IIS; or
(d) is a complaint or report of a kind prescribed by the regulations for
the purposes of this section.
(2) If a complaint
or report to which this section applies is referred to the IIS, the IIS must, as
soon as is reasonably practicable after becoming aware that it is such a
complaint or report, refer the complaint or report to the OPI in a manner
determined by the OPI after consultation with the Commissioner.
(3) If the OPI determines that—
(a) a complaint or report made to the OPI under this Act is not a
complaint or report to which this section applies; or
(b) a complaint or report referred to the OPI under
subsection (2)
is not a complaint or report to which this section applies; or
(c) it is more appropriate for a complaint or report referred to the OPI
under
subsection (2)
to be investigated and resolved by the IIS,
the OPI must refer the complaint or report to the IIS for investigation and
resolution under this Act.
(4) For the purposes of the
Independent
Commissioner Against Corruption Act 2012
, a complaint or report referred to the OPI under this section will be
taken to be a complaint or report received under that Act.
15—Reassessment
of certain complaints and reports by OPI
(1) The OPI may, within 3 business days after an assessment by the IIS of
a complaint or report is entered in the complaints management system, and after
consultation with the Officer in Charge of the IIS—
(a) reassess the complaint or report; and
(b) substitute its assessment of the complaint or report for that entered
in the complaints management system (and the substituted assessment will, for
the purposes of this Act, be taken to be the assessment of the IIS in respect of
the complaint or report).
(2) The OPI must ensure that the prescribed information in respect of each
reassessment is recorded on the complaint management system in accordance with
the regulations.
16—OPI
may refer complaints and reports to ICAC
(1) The OPI may refer a complaint or report assessed or reassessed under
this Act to the ICAC if the OPI is satisfied that the complaint or report
relates to matters that should be dealt with by the ICAC under the
Independent
Commissioner Against Corruption Act 2012
.
(2) For the purposes of the
Independent
Commissioner Against Corruption Act 2012
, a complaint or report referred under this section will be taken to be a
complaint or report received under that Act.
(3) The ICAC may give such directions as he or she thinks fit to the
Commissioner in relation to a complaint or report referred under this section or
a related complaint or report (including, to avoid doubt, a direction that the
Commissioner not take, or stop taking, specified actions in respect of the
complaint or report).
Part 6—Action
following assessment of complaint or report
Division 1—Informal
inquiry etc for minor misconduct and minor complaints
17—Commissioner
may deal with minor misconduct etc informally
(1) The
Commissioner may determine that minor misconduct, or a minor complaint or
report, relating to a police officer may be dealt with informally under this
Division.
(a) inform the police officer concerned that the matter is to be dealt
with informally under this Division; and
(b) refer the matter to a police officer for an informal inquiry in
accordance with this section and any orders and directions of the
Commissioner.
(3) A police officer to whom a matter is referred for an informal
inquiry—
(a) must cause the matter to be inquired into; and
(b) must determine, on the balance of probabilities, whether the subject
matter of the inquiry involves a breach of the Code by the police officer
concerned; and
(c) must ensure that the police officer concerned is afforded an
opportunity—
(i) to admit any breach of the Code that he or she is alleged to have
committed; and
(ii) if such a breach is not admitted, to make submissions either orally
or in writing in relation to the alleged breach; and
(d) if the breach is admitted or is found to have been committed, may,
subject to any order or directions of the Commissioner, determine that action be
taken under
subsection (4)
in relation to the police officer concerned; and
(e) must ensure that a written report of the results of the inquiry and
any action taken or proposed is provided to the Commissioner; and
(f) must ensure that particulars of the results of the inquiry and the
action taken or proposed are provided to the police officer concerned.
(4) Without
limiting any other provision of this Act, 1 or more of the following actions may
be taken in relation to a police officer for a breach of the Code admitted, or
been found to have been committed, under this section:
(a) transfer of the police officer for not more than 4 months to another
position in SA Police (not involving a reduction in rank or seniority or,
without the officer's consent, relocation to a place beyond reasonable commuting
distance from his or her current place of employment);
(b) recorded or unrecorded advice;
(c) counselling;
(d) education or training.
(5) Information obtained in the course of an inquiry under this section
cannot be used in proceedings before the Tribunal in respect of a breach of the
Code (other than proceedings relating to the provision of false information with
the intention of obstructing the inquiry).
18—Right
to apply for review of informal inquiry etc
(1) If a police officer is found on an informal inquiry to have committed
a breach of the Code, he or she may apply for a review under this section on the
ground that he or she did not commit the breach concerned or that there was a
serious irregularity in the processes followed in the informal
inquiry.
(2) If a determination is made on an informal inquiry that action should
be taken in relation to the police officer concerned for a breach of the Code,
he or she may apply to a police officer for a review under this section on the
ground that the action is not warranted by the nature of the breach or in the
circumstances of the case.
(3) The police officer to whom an application for review must be
made—
(a) must be the occupant of a position specified in the regulations or
determined according to factors specified in the regulations; and
(b) must not be selected according to the discretion of the Commissioner
or any other person; and
(c) must not have been involved in the informal inquiry or investigations
leading up to the informal inquiry.
(4) An application for review must comply with any requirements set out in
the regulations.
(5) The police officer to whom an application for review is
made—
(a) must, as soon as is reasonably practicable, conduct a review of the
finding, a determination made on the informal inquiry or the processes followed
in the informal inquiry (as the case requires); and
(b) must afford the applicant an opportunity to make submissions either
orally or in writing in support of his or her application; and
(c) may, according to the nature of the case—
(i) order that a new informal inquiry be conducted or that the processes
involved in the inquiry be recommenced from some specified stage;
(ii) affirm or quash any finding or determination reviewed;
(iii) make a determination that should have been made in the first
instance; and
(d) must ensure that a written report of the results of the review is
provided to the Commissioner; and
(e) must ensure that particulars of the results of the review are provided
to the police officer concerned.
19—Monitoring
of informal inquiries
(1) The
Commissioner must cause all informal inquiries under this Division to be
monitored and reviewed with a view to maintaining proper and consistent
practices.
(2) The Commissioner may intervene in a particular matter if the
Commissioner considers it appropriate to do so (whether before or after review
of the case under
subsection (1)
or a review on the application of the police officer
concerned)—
(a) by ordering that a new informal inquiry be conducted or that the
processes involved in the informal inquiry be recommenced from some specified
stage; or
(b) by quashing a finding that the police officer has committed a breach
of the Code; or
(c) by making a determination that no action or less severe action be
taken in relation to the police officer in respect of the case.
Division 2—Formal
investigation of complaints and reports
20—Investigations
of complaints and reports by IIS
(1) Subject to this
Act, each matter that is referred to the IIS under this Act (not being a matter
dealt with, or to be dealt with, under
Division 1
) must be investigated by the IIS.
(2) Subject to this
Act, an investigation is to be conducted in such manner as the officer in charge
of the IIS thinks fit.
(3) A member of the
IIS may, for the purposes of an investigation, make inquiries and obtain
information, property, documents or other records relevant to the investigation,
as he or she thinks fit.
(4) A member of the
IIS may, for the purposes of the investigation, direct a police officer to
furnish information, produce property, a document or other record, or answer a
question, that is relevant to the investigation.
(5) For the purposes of this Act and the
Police
Act 1998
, a direction given by a member of the IIS under
subsection (4)
has effect as if it had been given by the Commissioner.
(6) A member of the IIS must, before giving any direction under
subsection (4)
to the police officer whose conduct is under investigation, inform the
officer of the particulars of the matter under investigation.
(a) without reasonable excuse, refuses or fails to furnish information,
produce property, a document or other record or answer a question when so
required under this section; or
(b) furnishes information or makes a statement to a member of the IIS
knowing that it is false or misleading in a material particular,
may be dealt with under this Act for breach of discipline.
(8) A person other than a police officer who furnishes information or
makes a statement to a member of the IIS knowing that it is false or misleading
in a material particular is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
(9) If a police officer is directed under
subsection (4)
to furnish information, produce property, a document or record or answer a
question, the officer is not excused from complying with the direction on the
ground—
(a) that the furnishing of the information, the production of the
property, the document or record or the answering of the
question—
(i) would be contrary to the public interest; or
(ii) would contravene the provisions of any other enactment; or
(b) that the information, the property, the document or record or the
answer to the question might tend to show that he or she has committed a breach
of discipline.
(10) A police
officer may refuse to furnish information, produce property, a document or
record or answer a question if the information, the property, the document or
record or the answer to the question might tend to incriminate him or her or a
close relative of his or hers, but any such refusal may be dealt with under this
Act as a breach of discipline.
(11) A police officer who furnishes information, produces property, a
document or record or answers a question is not liable to a penalty under the
provisions of any other law prohibiting such an act if the act is done in
compliance with a direction given by a member of the IIS under this
section.
(12) The officer in charge of the IIS may, subject to any directions of
the Commissioner, require a police officer not serving in the IIS to assist the
IIS in conducting investigations under this section or to conduct investigations
on behalf of the IIS, and, in that event, the provisions of this section apply
as if the police officer were a member of the IIS.
(13) To avoid doubt, this section does not limit or affect the powers or
duties that a police officer would have apart from this Act in connection with
the investigation of an offence.
(14) In this section—
police officer does not include a prescribed officer or
employee.
21—Oversight
etc of investigations by OPI
(1) It is a function of the OPI to oversee investigations conducted by, or
on behalf of, the IIS under this Act (including, to avoid doubt, matters the
subject of an informal inquiry under
Division 1
).
(2) The OPI may, in
relation to an investigation—
(a) discuss any aspect of the relevant complaint or report with the person
who made the complaint or report; or
(b) give such
directions to the Commissioner, the IIS or to a police officer assisting in an
investigation or conducting an investigation on behalf of the IIS as the OPI
thinks fit.
(3) Without limiting the generality of
subsection (2)(b)
, a direction may include—
(a) a requirement that the IIS or a specified person provided specified
information relating to an investigation under this Act; or
(b) a requirement that the IIS or a specified person produce to the OPI a
specified document or record relating to an investigation under this Act that is
under the control of SA Police; or
(c) a requirement that the IIS arrange for a specified person to be
interviewed by the OPI in relation to an investigation under this Act;
or
(d) the methods to be employed, the matters to be investigated or the
evidence to be obtained in relation to a specified investigation or class of
investigations.
(4) A direction—
(a) must be by notice in writing; and
(b) may only be given after consultation with the officer in charge of the
IIS.
(5) The OPI may, by notice in writing, vary or revoke a
direction.
(6) The Commissioner must ensure that any requirement or direction of the
OPI under this section is complied with without any undue delay.
22—Constitution
of Police Disciplinary Tribunal
(1) There will be a Police Disciplinary Tribunal.
(2) The Police Disciplinary Tribunal will be constituted of a magistrate
appointed by the Governor.
(3) The magistrate appointed to constitute the Police Disciplinary
Tribunal will be appointed for such term of office, not exceeding 3 years, as
the Governor may determine, and on the expiration of his or her term of office
will be eligible for reappointment.
(4) The Governor
may appoint another magistrate to be the deputy of the magistrate appointed to
constitute the Police Disciplinary Tribunal and the Police Disciplinary Tribunal
will, for any period for which the magistrate appointed to constitute the Police
Disciplinary Tribunal is absent or unavailable, be constituted of that other
magistrate.
(5) The Governor may appoint 3 or more magistrates to a panel and, if at
any time the magistrate appointed under
subsection (4)
is absent or unavailable, the Chief Magistrate may appoint a magistrate
from the panel to act in his or her place.
23—Registrar
and deputy registrar
(1) The registrar and deputy registrar of the Police Disciplinary Tribunal
are to be Public Service employees.
(2) The positions of registrar and deputy registrar of the Police
Disciplinary Tribunal may be held in conjunction with any other position in the
Public Service.
(3) The registrar and deputy registrar of the Police Disciplinary Tribunal
will have such duties and functions as are prescribed and such other duties and
functions as may be directed by the Police Disciplinary Tribunal.
24—Charges
in respect of breaches of discipline
(1) For the purposes of
this Act, the Commissioner charges a police officer with a breach of discipline
by serving on the officer a notice of allegation in accordance with the
regulations.
(2) On being so charged, a police officer may, within the period and in
the manner prescribed by the regulations, admit or deny the charge or
charges.
(3) If a particular
charge is not admitted in accordance with this section, the charge is to be
heard and determined by the Police Disciplinary Tribunal.
25—Tribunal
to remit matter to Commissioner for punishment if charge
proved
(1) If the Police
Disciplinary Tribunal is satisfied, on the balance of probabilities, that the
police officer committed the breach of discipline with which he or she is
charged, the Police Disciplinary Tribunal must make a finding that the officer
is guilty of the breach of discipline and remit the proceedings to the
Commissioner for the imposition of punishment on the officer in accordance with
this Act.
(2) When remitting proceedings to the Commissioner, the Police
Disciplinary Tribunal may indicate to the Commissioner the Tribunal's assessment
of the seriousness or otherwise of the breach of discipline of which the police
officer has been found guilty and, in that event, the Commissioner must, when
making his or her determination as to punishment, have due regard to the
Tribunal's assessment.
(1) The Police
Disciplinary Tribunal must, in relation to any proceedings to be heard by the
Tribunal—
(a) give the Commissioner and the police officer charged reasonable notice
of the time and place at which the proceedings are to be heard and must afford
them a reasonable opportunity to call or give evidence, to examine or
cross-examine witnesses and to make submissions to the Tribunal; and
(b) give the OPI notice of the time and place at which the proceedings are
to be heard.
(2) If a person to whom notice has been given under
subsection (1)
does not attend at the time and place fixed by the notice, the Police
Disciplinary Tribunal may hear the proceedings in his or her absence.
(3) The Commissioner may be represented at proceedings by counsel or a
police officer.
(4) A party to proceedings before the Police Disciplinary Tribunal (other
than the Commissioner) is entitled to appear—
(a) personally or by counsel; or
(b) with the permission of the Tribunal—by some other
representative.
(5) Subject to
subsection (6)
, the proceedings of the Police Disciplinary Tribunal are to be heard in
private.
(6) The Police
Disciplinary Tribunal must permit a member of the OPI nominated by the ICAC to
be present at proceedings of the Tribunal and may, in its discretion, permit any
other person to be present.
(7) The Police
Disciplinary Tribunal must, unless of the opinion that to do so would prejudice
the orderly conduct of the proceedings, permit a person nominated by the OPI or
ICAC to be present at proceedings of the Tribunal.
(8) The Police Disciplinary Tribunal will in its
proceedings—
(a) be bound by the rules of evidence; and
(b) follow, to such extent as it considers appropriate, the practice and
procedure of courts of summary jurisdiction hearing charges of summary
offences.
(1) The Police Disciplinary Tribunal may—
(a) by summons signed by the Tribunal or by the registrar or deputy
registrar of the Tribunal, require the attendance before the Tribunal of any
person; or
(b) by summons signed by the Tribunal or by the registrar or deputy
registrar of the Tribunal, require the production of any books, documents or
other things; or
(c) inspect any book, document or thing produced before the Tribunal and
retain them for such reasonable period as the Tribunal thinks fit and make
copies of any of them or any of their contents; or
(d) require any person to make an oath or affirmation that he or she will
truly answer all questions put to him or her by the Tribunal, or by any person
appearing before the Tribunal, relating to the matter being heard by the
Tribunal; or
(e) require any person appearing before the Tribunal to answer any
relevant questions put to him or her by the Tribunal or by any person appearing
before the Tribunal.
(2) A person who—
(a) having been served with a summons to attend before the Police
Disciplinary Tribunal, fails without reasonable excuse (proof of which lies on
him or her) to do so; or
(b) having been served with a summons to produce books, documents or
things, fails without reasonable excuse (proof of which lies on him or her) to
do so; or
(c) misbehaves himself or herself before the Police Disciplinary Tribunal,
wilfully insults the Tribunal or interrupts the proceedings of the
Tribunal,
is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
(3) However, a person is not required to produce any books, documents or
things, or to answer a question, if to do so might tend to incriminate him or
her or, in the case of a police officer, to prove that he or she has been guilty
of a breach of discipline.
(4) The Police Disciplinary Tribunal may, on being satisfied that a person
has failed to appear before the Tribunal in obedience to a summons served on him
or her under this section, issue a warrant authorising a police officer to
arrest the person and bring him or her before the Tribunal.
(5) In the course of any proceedings, the Police Disciplinary Tribunal
may—
(a) receive in evidence any transcript of evidence in proceedings before a
court or tribunal and draw any conclusions of fact that it considers proper;
or
(b) adopt, as in its discretion it considers proper, any findings,
decision, or judgment of a court or tribunal that may be relevant to the
proceedings.
28—Protection
of Tribunal, counsel and witnesses
(1) The person constituting the Police Disciplinary Tribunal has in that
capacity the same protection and immunity as a judge of the Supreme
Court.
(2) Counsel or any other person appearing for a party in proceedings
before the Police Disciplinary Tribunal has the same protection and immunity as
counsel appearing for a party in proceedings in the Supreme Court.
(3) A person appearing before the Police Disciplinary Tribunal as a
witness has the same protection and immunity as a witness in proceedings in the
Supreme Court.
29—Reference
of question of law
The Police Disciplinary Tribunal may refer a question of law for the
opinion of the Supreme Court.
(1) The Police Disciplinary Tribunal may make such orders for costs as the
Tribunal thinks just and reasonable.
(2) Where the Police Disciplinary Tribunal has ordered the payment of
costs, the costs are to be recoverable summarily.
The Police Disciplinary Tribunal must, at the request of a party, the ICAC
or the OPI made within 7 days after the Tribunal has made a decision in
proceedings, give reasons in writing for the decision.
Part 8—Resolution
of complaints and reports
(1) Subject to this Act, the Commissioner may, if he or she considers it
appropriate to do so, attempt to resolve a complaint under this Act by
conciliation.
(2) The Commissioner must not attempt conciliation in relation to a
complaint except with the approval of the OPI.
(3) Subject to this Act, the OPI may, if satisfied that it is appropriate
to do so, attempt to resolve a complaint under this Act by
conciliation.
(4) The Commissioner or the OPI may, in attempting conciliation under this
section, act personally or through some other person.
(5) The OPI must,
before attempting conciliation, notify the Commissioner of its intention to do
so and may request that any investigation or further investigation of the
complaint be deferred pending the results of the conciliation.
(6) If conciliation is to be attempted, the Commissioner may, or must at
the request of the OPI under
subsection (5)
, direct that any investigation or further investigation of the complaint
be deferred pending the results of that action.
(7) If conciliation
is attempted under this section by the Commissioner or the OPI, the one must
report to the other the results of his or her action.
(8) The OPI may, if
he or she is satisfied that the matter raised by a complaint has been properly
resolved by conciliation undertaken under this section, determine that the
complaint should not be investigated under this Act.
(9) If the OPI makes a determination under
subsection (8)
, the OPI must, by writing, notify the Commissioner and, unless the
identity of the complainant is not known, the complainant of the
determination.
(10) If the OPI disagrees with an assessment of the Commissioner contained
in a report under
subsection (7)
that the matter raised by a complaint has been properly resolved by
conciliation undertaken by the Commissioner, the OPI must, by writing, notify
the Commissioner of that disagreement and the reasons for the
disagreement.
33—Orders
for punishment following offence or charge of breach of
Code
(a) is found guilty of an offence under a law of this State, the
Commonwealth or another State or a Territory of the Commonwealth; or
(b) admits in accordance with this Act a breach of the Code with which he
or she has been charged; or
(c) is found guilty of a breach of the Code in proceedings before the
Police Disciplinary Tribunal,
the Commissioner may take action, or order the taking of action, of 1 or
more of the following kinds in relation to the person:
(d) termination of the person's appointment;
(e) suspension of the person's appointment for a specified
period;
(f) reduction of the person's remuneration by a specified amount for a
specified period (but not so that the total amount forfeited exceeds the amount
prescribed by regulation);
(g) if the person
is a member of SA Police—transfer of the member to another position
in SA Police for a specified period (whether with or without a reduction in
rank, seniority or remuneration);
(h) if the person is a member of SA Police—reduction in the member's
seniority;
(i) imposition of a fine not exceeding the amount prescribed by
regulation;
(j) if the person is a police cadet—withdrawal of specified rights
or privileges for a specified period;
(k) a reprimand recorded in the person's conduct and service history kept
under the regulations;
(l) an unrecorded reprimand;
(m) counselling;
(n) education or training;
(o) action of any other kind prescribed by regulation.
(2) If the period for which a person is transferred under
subsection (1)(g)
is less than 12 months, he or she is entitled, on the expiration of
the specified period, to return to the position he or she occupied before being
so transferred.
34—Suspension
where charge of offence or breach of Code
(1) If a police officer is charged with an offence (whether under the law
of this State, the Commonwealth or another State or a Territory of the
Commonwealth) or a breach of the Code, the Commissioner may suspend the person's
appointment.
(2) The
Commissioner may, if the Commissioner considers it appropriate to do so in the
circumstances, suspend the person's appointment after deciding that the person
be charged but before the charge is actually laid.
(3) A suspension under
subsection (2)
is to be taken to have been revoked by the Commissioner if the charge is
not laid within 24 hours (excluding a Saturday, Sunday or a public holiday
falling on a Monday or Friday).
(4) A suspension under this section must be revoked by the Commissioner
if—
(a) the person is found not guilty of the offence or breach charged or the
charge is dismissed, lapses or is withdrawn; and
(b) the person does not stand charged of any other offence or
breach.
(5) If the suspension under this section of a person's appointment is
revoked by the Commissioner, then, subject to any determination of the
Commissioner under the regulations, the person is entitled to any remuneration
or accrual of rights withheld in consequence of the suspension and the period of
the suspension will count as service.
35—ICAC
may audit sanctions imposed under Act
(1) The ICAC may audit
the action taken by, or at the order of, the Commissioner under this Act during
the preceding financial year.
(2) The ICAC may,
at any time, if he or she thinks fit to do so, submit to the President of the
Legislative Council and to the Speaker of the House of Assembly a report on an
audit under this section.
(3) Without limiting the generality of
subsection (1)
or
(2)
, the ICAC may report on any case where, in his or her opinion, there has
been a failure to take adequate and appropriate action in consequence of the
investigation of a matter.
(4) The ICAC must not make a report under this section in which he or she
sets out opinions that are, either expressly or impliedly, critical of the
Commissioner or the police force unless—
(a) before making the report—he or she has afforded the Commissioner
an opportunity to make comments in writing on the report; and
(b) where the Commissioner has made comments in writing on the
report—he or she includes in or attaches to the report those
comments.
(5) The ICAC must, when he or she submits a report under this section,
also deliver a copy of the report to the Minister.
(6) The President of the Legislative Council and the Speaker of the House
of Assembly must, on receiving a report under this section, lay the report
before their respective Houses.
(1) A party to proceedings before the Police Disciplinary Tribunal may
appeal to the Court against a decision made by the Police Disciplinary Tribunal
in those proceedings.
(2) A police
officer may appeal to the Court against an order of the Commissioner imposing
punishment on him or her for a breach of discipline.
(3)
Subsection (2)
applies—
(a) whether the charge for the breach of discipline was laid in
consequence of the investigation of a matter under this Act or otherwise;
and
(b) whether the order imposing the punishment was made on the designated
officer being found guilty of the breach of discipline by the Police
Disciplinary Tribunal or on the officer making an admission of guilt to the
Commissioner.
(4) A police officer (other than a police cadet) may appeal to the Court
against an order of the Commissioner made after the commencement of this
subsection imposing punishment on the police officer for having been found
guilty of an offence against a law of this jurisdiction or another
jurisdiction.
(5) An appeal under this section must be instituted within 1 month of the
making of the decision or order appealed against.
(6) In this section—
Court means the Administrative and Disciplinary Division of
the District Court.
(1) A person must
not, directly or indirectly, disclose information obtained in the course of the
administration of this Act in connection with a matter that forms or is the
subject of a complaint, report, assessment or investigation under this Act
except—
(a) for the purposes of the administration or enforcement of this Act;
or
(b) for the purposes of referring a matter to a law enforcement agency,
inquiry agency, public authority or public officer; or
(c) for the purposes of a criminal proceeding or a proceeding for the
imposition of a penalty; or
(d) for the performance of the functions of the Commissioner under the
Police
Act 1998
or any other Act; or
(e) in accordance with an authorisation of the Commissioner given in
accordance with the regulations; or
(f) as otherwise required or authorised by this or another Act.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) Any disclosed information connected with a matter that is the subject
of a complaint, report, assessment, or investigation under this Act will be
taken to be disclosed on the understanding that the information is confidential
unless the person to whom the information is disclosed is informed in writing to
the contrary by the Commissioner.
(3) If the Commissioner provides, or authorises the provision of,
information to a person on the understanding that the information is
confidential, that person, and any person or employee under the control of the
person, is subject to the same rights, privileges, obligations and liabilities
under this section as if the person obtained the information in the course of
the administration of this Act.
38—Publication
of information and evidence
A person must not, except as authorised by the ICAC or OPI, or a court
hearing proceedings for an offence against this Act, publish, or cause to be
published—
(a) information that might enable a person who has made a complaint or
report under this Act to be identified or located; or
(b) the fact that a person has made or may be about to make a complaint or
report under this Act; or
(c) information that might enable a person who has given or may be about
to give information or other evidence under this Act to be identified or
located; or
(d) the fact that a person has given or may be about to give information
or other evidence under this Act; or
(e) any other information or evidence publication of which is prohibited
by the ICAC, the OPI or the Commissioner.
Maximum penalty:
(a) in the case of a body corporate—$150 000;
(b) in the case of a natural person—$30 000.
39—Obstruction
of complaint or report
A person must not—
(a) prevent another person from making a complaint or report under this
Part; or
(b) hinder or obstruct another person in making such a complaint or
report.
Maximum penalty: $10 000 or imprisonment for 2 years.
40—False
or misleading statements in complaint or report
A person must not—
(a) make a statement knowing that it is false or misleading in a material
particular (whether by reason of the inclusion or omission of a particular) in
information provided in a complaint or report under this Act; or
(b) make a complaint or report under this Act knowing that there are no
grounds for the making of the complaint or report.
Maximum penalty: $10 000 or imprisonment for 2 years.
Subject to the regulations, a notice or other document required or
authorised to be given to or served on a person under this Act
may—
(a) be given to the person personally; or
(b) be left for the person at the person's place of residence or business
with someone apparently over the age of 16 years; or
(c) be posted to the person at the person's last known place of residence
or business; or
(d) be transmitted by fax or email to a fax number or email address
provided by the person (in which case the notice or other document will be taken
to have been given or served at the time of transmission); or
(e) if the person is a company or registered body within the meaning of
the Corporations Act 2001 of the Commonwealth, be served in
accordance with that Act.
42—ICAC
etc may report to Ministers
Nothing in this Act prevents the ICAC or the OPI from reporting to a
Minister on any matter arising under, or relating to the administration of, this
Act.
(1) The Governor
may make such regulations as are contemplated by this Act, or as are necessary
or expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may—
(a) prescribe forms for the purposes of this Act; and
(b) prescribe fines (not exceeding $5 000) for offences against the
regulations; and
(c) be of general application or vary in their application according to
prescribed factors; and
(d) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of a specified person or
body.
Schedule 1—Repeal
and related amendments
Part 1—Preliminary
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Repeal of Police (Complaints and
Disciplinary Proceedings) Act 1985
2—Repeal
of Police (Complaints and Disciplinary
Proceedings) Act 1985
The
Police
(Complaints and Disciplinary Proceedings) Act 1985
is repealed.
Part 3—Amendment of Police
Act 1998
3—Amendment
of section 3—Interpretation
(1) Section 3, definition of Code—delete the
definition and substitute:
Code means the code of conduct prepared under the
Police
Complaints and Discipline Act 2016
, as in force from time to time;
(2) Section 3, definition of minor misconduct—delete
the definition
(3) Section 3, definition of Police Disciplinary
Tribunal—delete the definition
(4) Section 3, definition of Police Ombudsman—delete
the definition
4—Substitution
of heading to Part 6
Heading to Part 6—delete the heading and substitute:
Part 6—Drug and alcohol
testing
Part 6 Division 1—delete Division 1
Part 6 Division 3—delete Division 3
7—Amendment
of section 70—Suspension or revocation of suspension under Act or
regulations
Section 70(1)—after "this Act" insert:
, the
Police
Complaints and Discipline Act 2016
Part 4—Amendment of Protective Security
Act 2007
8—Amendment
of section 3—Interpretation
(1) Section 3, definition of minor misconduct—delete
the definition
(2) Section 3, definition of Police Ombudsman—delete
the definition
(3) Section 3, definition of Tribunal—delete "the
Police
(Complaints and Disciplinary Proceedings) Act 1985
" and substitute:
Part 5A
9—Amendment
of section 24—Report and investigation of breach of
Code
Section 24(2)—delete ", subject to a determination of the Police
Ombudsman under section 23 of the
Police
(Complaints and Disciplinary Proceedings) Act 1985
,"
10—Amendment
of section 25—Charge for breach of Code
Section 25(3)—delete "the
Police
(Complaints and Disciplinary Proceedings) Act 1985
" and substitute:
this Act
11—Amendment
of section 28—Management resolution of minor breaches of
Code
(1) Section 28(1)—delete subsection (1) and substitute:
(1) The
Commissioner may determine that a suspected breach of the Code is to be dealt
with by informal inquiry under this section.
(1a) However, the following kinds of breaches of the Code must not be
dealt with under this section:
(a) a breach that, if proved, would be likely to result
in—
(i) termination of the appointment of the protective security officer
concerned; or
(ii) suspension of the appointment of the protective security officer
concerned for a specified period; or
(iii) reduction of the rank, seniority or remuneration or the protective
security officer concerned;
(b) any other breach of a kind prescribed by the regulations for the
purposes of this paragraph.
(1b) If the Commissioner makes a determination under
subsection (1)
, he or she must refer the matter to a person determined in accordance with
the orders and directions of the Commissioner (the resolution
officer) for resolution under this section.
(2) Section 28(2)—delete "A person to whom a matter is referred for
an informal inquiry under subsection (1) or under section 21A of the
Police
(Complaints and Disciplinary Proceedings) Act 1985
" and substitute:
The resolution officer—
(3) Section 28—after subsection (2) insert:
(2a) The resolution to perform his or her functions under this section as
expeditiously as possible and without undue formality.
12—Amendment
of section 29—Review of informal inquiry
Section 29(5)—delete subsection (5)
After Part 5 insert:
Part 5A—Protective Security Officers
Disciplinary Tribunal
29—Constitution of Protective Security Officers
Disciplinary Tribunal
(1) There will be a Protective Security Officers Disciplinary
Tribunal.
(2) The Tribunal will be constituted of a magistrate appointed by the
Governor.
(3) The magistrate appointed to constitute the Tribunal will be appointed
for such term of office, not exceeding 3 years, as the Governor may determine,
and on the expiration of his or her term of office will not be eligible for
reappointment.
(4) The Governor
may appoint another magistrate to be the deputy of the magistrate appointed to
constitute the Tribunal and the Tribunal will, for any period for which the
magistrate appointed to constitute the Police Disciplinary Tribunal is absent or
unavailable, be constituted of that other magistrate.
(5) The Governor may appoint 3 or more magistrates to a panel and, if at
any time the magistrate appointed under
subsection (4)
is absent or unavailable, the Chief Magistrate may appoint a magistrate
from the panel to act in his or her place.
30—Registrar and deputy
registrar
(1) The registrar and deputy registrar of the Tribunal are to be Public
Service employees.
(2) The positions of registrar and deputy registrar of the Tribunal may be
held in conjunction with any other position in the Public Service.
(3) The registrar and deputy registrar of the Tribunal will have such
duties and functions as are prescribed and such other duties and functions as
may be directed by the Tribunal.
31—Proceedings before Tribunal
(1) The Tribunal
must, in relation to any proceedings to be heard by the Tribunal, give the
Commissioner and the protective security officer concerned reasonable notice of
the time and place at which the proceedings are to be heard and must afford them
a reasonable opportunity to call or give evidence, to examine or cross-examine
witnesses and to make submissions to the Tribunal.
(2) If a person to whom notice has been given under
subsection (1)
does not attend at the time and place fixed by the notice, the Tribunal
may hear the proceedings in his or her absence.
(3) The Commissioner may be represented at proceedings by counsel or a
police officer.
(4) A party to proceedings before the Tribunal (other than the
Commissioner) is entitled to appear—
(a) personally or by counsel; or
(b) with the permission of the Tribunal—by some other
representative.
(5) Subject to
subsection (6)
, the proceedings of the Tribunal are to be heard in private.
(6) The Tribunal
must permit a member of the staff of the OPI nominated by the ICAC to be present
at proceedings of the Tribunal and may, in its discretion, permit any other
person to be present.
(7) The Tribunal
must, unless of the opinion that to do so would prejudice the orderly conduct of
the proceedings, permit a person nominated by the OPI or the ICAC to be present
at proceedings of the Tribunal.
(8) The Tribunal will in its proceedings—
(a) be bound by the rules of evidence; and
(b) follow, to such extent as it considers appropriate, the practice and
procedure of courts of summary jurisdiction hearing charges of summary
offences.
32—Powers of Tribunal
(1) The Tribunal may—
(a) by summons signed by the Tribunal or by the registrar or deputy
registrar of the Tribunal, require the attendance before the Tribunal of any
person; or
(b) by summons signed by the Tribunal or by the registrar or deputy
registrar of the Tribunal, require the production of any books, documents or
other things; or
(c) inspect any book, document or thing produced before the Tribunal and
retain them for such reasonable period as the Tribunal thinks fit and make
copies of any of them or any of their contents; or
(d) require any person to make an oath or affirmation that he or she will
truly answer all questions put to him or her by the Tribunal, or by any person
appearing before the Tribunal, relating to the matter being heard by the
Tribunal; or
(e) require any person appearing before the Tribunal to answer any
relevant questions put to him or her by the Tribunal or by any person appearing
before the Tribunal.
(2) A person who—
(a) having been served with a summons to attend before the Tribunal, fails
without reasonable excuse (proof of which lies on him or her) to do so;
or
(b) having been served with a summons to produce books, documents or
things, fails without reasonable excuse (proof of which lies on him or her) to
do so; or
(c) misbehaves himself or herself before the Tribunal, wilfully insults
the Tribunal or interrupts the proceedings of the Tribunal,
is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
(3) However, a person is not required to produce any books, documents or
things, or to answer a question, if to do so might tend to incriminate him or
her or, in the case of a protective security officer, to prove that he or she
has been guilty of a breach of discipline.
(4) The Tribunal may, on being satisfied that a person has failed to
appear before the Tribunal in obedience to a summons served on him or her under
this section, issue a warrant authorising a police officer to arrest the person
and bring him or her before the Tribunal.
(5) In the course of any proceedings, the Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before a
court or tribunal and draw any conclusions of fact that it considers proper;
or
(b) adopt, as in its discretion it considers proper, any findings,
decision, or judgment of a court or tribunal that may be relevant to the
proceedings.
33—Protection of Tribunal, counsel and
witnesses
(1) The person constituting the Tribunal has in that capacity the same
protection and immunity as a judge of the Supreme Court.
(2) Counsel or any other person appearing for a party in proceedings
before the Tribunal has the same protection and immunity as counsel appearing
for a party in proceedings in the Supreme Court.
(3) A person appearing before the Tribunal as a witness has the same
protection and immunity as a witness in proceedings in the Supreme
Court.
34—Reference of question of
law
The Tribunal may refer a question of law for the opinion of the Supreme
Court.
35—Costs
(1) The Tribunal may make such orders for costs as the Tribunal thinks
just and reasonable.
(2) Where the Tribunal has ordered the payment of costs, the costs are to
be recoverable summarily.
36—Reasons for decision
The Tribunal must, at the request of a party, made within 7 days after the
Tribunal has made a decision in proceedings, give reasons in writing for the
decision.