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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Police)
Bill 2013
A BILL FOR
An Act to amend the Police
Act 1998; the Police
(Complaints and Disciplinary Proceedings) Act 1985; and the Public
Intoxication Act 1984.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment provisions
Part 2—Amendment
of Police Act 1998
4Amendment of section 27—Probationary
appointment
5Amendment of heading to Part 6
6Insertion
of heading to Part 6 Division 1
7Amendment of
section 37—Code of conduct
8Amendment of section 40—Orders
for punishment following offence or charge of breach of Code
9Insertion
of Part 6 Division 2
Division 2—Drug and alcohol testing
of police, police cadets, etc
41AInterpretation
41BDrug and alcohol testing of
members and cadets
41CDrug and alcohol testing of applicants to
SA Police
41DProcedures for drug and alcohol
testing
41EBiological
samples, test results, etc not to be used for other purposes
10Insertion
of heading to Part 6 Division 3
11Amendment of
section 42—Minor misconduct
12Amendment of section
55—Right of review
13Substitution of section
59
59Appointment of special
constables
14Amendment of section 61—Duties and
powers of special constables
15Amendment of section 67—Divestment
or suspension of powers
16Amendment of
section 70—Suspension or revocation of suspension under Act or
regulations
17Amendment of Schedule 1—Police
Review Tribunal
Part 3—Amendment of Police
(Complaints and Disciplinary Proceedings) Act 1985
18Amendment
of section 46—Appeals in respect of discipline
Part 4—Amendment of Public
Intoxication Act 1984
19Amendment of
section 4—Interpretation
20Amendment of
section 7—Apprehension of persons under the influence
21Amendment
of section 10—Custody of persons detained
Schedule 1—Transitional
provisions
1Transitional provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Police)
Act 2013.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Police Act 1998
4—Amendment
of section 27—Probationary appointment
(1) Section 27(2)—delete subsection (2) and
substitute:
(2) For the purposes of subsection (1), the period of probationary
service of a member of SA Police does not include—
(a) if the Commissioner so determines—the whole or a part of any
period during which the member, while on full or reduced pay—
(i) is absent from duty (other than on recreation leave); or
(ii) performs duties that have been limited or varied by reason of
physical or mental disability or illness of the member; or
(b) except where the Commissioner determines to the
contrary—
(i) any period during which the member is absent from duty without pay;
or
(ii) any period during which the member's appointment is
suspended.
(2) Section 27(3)(b)—delete "subsection (1)" and
substitute:
this section
(3) Section 27(4)—delete subsection (4)
(4) Section 27—after subsection (6) insert:
(7) This section
does not apply to the following appointments:
(a) appointment as the Commissioner, the Deputy Commissioner or an
Assistant Commissioner;
(b) appointment for a term under this Division;
(c) subject to
subsection (8)—appointment
of a member of SA Police to another position of the same rank as that held
by the member immediately before the appointment to the other
position;
(d) appointment as a community constable.
(8) If the
appointment of a member of SA Police to a position is on probation and the
member is, during the probationary period, appointed to another position of the
same rank, the period of probation carries over to that other appointment (and
the provisions of this section (other than
subsection (7)(c))
apply accordingly).
5—Amendment
of heading to Part 6
Part 6, heading—delete "Misconduct" and
substitute:
Conduct
6—Insertion
of heading to Part 6 Division 1
Before section 37 insert:
Division 1—Code of
Conduct
7—Amendment
of section 37—Code of conduct
(1) Section 37(2)—delete "The Code may make provision
concerning" and substitute:
Without limiting the generality of subsection (1), the Code may
include provisions relating to
(2) Section 37(2)—after paragraph (b) insert:
(ba) drug and alcohol testing of members of SA Police and police
cadets; and
(3) Section 37(2)(h)—delete "other matters" and
substitute:
any other matter
8—Amendment
of section 40—Orders for punishment following offence or charge of
breach of Code
(1) Section 40(1)(g)—delete paragraph (g) and
substitute:
(g) where 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);
(2) Section 40—after subsection (1) insert:
(2) If the period for which a member of SA Police is transferred
under subsection (1)(g) is less than 12 months, the member is
entitled, on the expiration of the specified period, to return to the position
occupied by the member before being so transferred.
9—Insertion
of Part 6 Division 2
After section 41 insert:
Division 2—Drug and alcohol testing of police,
police cadets, etc
41A—Interpretation
(1) In this Division—
alcotest means a test by means of an apparatus of a kind
approved for the conduct of alcotests under the
Road
Traffic Act 1961;
biological sample means a sample of blood, urine or oral
fluid;
breath analysing instrument means an apparatus of a kind
approved as a breath analysing instrument under the
Road
Traffic Act 1961;
breath analysis means an analysis of breath by a breath
analysing instrument;
classified appointment or position means an appointment or
position in respect of which it is an essential requirement that an applicant
for the appointment or position undergo a medical or psychological assessment as
part of the application process;
critical incident means an incident where a person is killed
or suffers serious bodily injury—
(a) while detained by a member of SA Police; or
(b) as a result of the discharge of a firearm or an electronic control
device; or
(c) in circumstances involving a police aircraft, motor vehicle, vessel or
other mode of transport; or
(d) as a result of alleged police action;
drug means a substance that is a controlled drug under the
Controlled
Substances Act 1984;
drug and alcohol testing—see
section 41B(1);
forensic material means any human material from which the
person from whom the material was taken could be identified;
oral fluid includes saliva;
oral fluid analysis means an analysis of oral fluid by means
of an apparatus of a kind approved under the
Road
Traffic Act 1961 for the purpose of conducting oral fluid
analyses.
(2) For the purposes of this Division, a person uses a drug
if the person—
(a) consumes, smokes or administers to himself or herself the drug;
or
(b) permits another person to administer the drug to him or her.
41B—Drug and alcohol testing of members and
cadets
(1) A member of
SA Police or a police cadet may, in accordance with this section, be
required to do any of the following:
(a) to submit to an alcotest or breath analysis, or both, for the purpose
of testing for the presence of alcohol;
(b) to provide a biological sample for the purpose of a blood test,
urinalysis or an oral fluid analysis to test for the presence of alcohol or
drugs,
(drug and alcohol testing).
(2) A member of
SA Police or a police cadet may be required to undergo drug and alcohol
testing, in accordance with orders or directions of the Commissioner, in any of
the following circumstances:
(a) if the member or
police cadet has, while on duty, been involved in a critical incident;
(b) if the member or police cadet has, while on duty, engaged in driving
that is classified by the Commissioner in orders as high risk;
(c) if there is a reasonable cause to believe that the member or police
cadet has recently consumed alcohol or used a drug;
(d) if the member or police cadet is applying for a classified appointment
or position.
41C—Drug and alcohol testing of applicants to
SA Police
(1) A person to whom
this subsection applies will, in accordance with orders or directions of the
Commissioner, be required to do any of the following:
(a) to submit to an alcotest or breath analysis, or both, for the purpose
of testing for the presence of alcohol;
(b) to provide a biological sample for the purpose of a blood test,
urinalysis or an oral fluid analysis to test for the presence of alcohol or
drugs.
(2)
Subsection (1) applies
to—
(a) a person applying to be a police cadet; and
(b) a person who is not either a member of SA Police or a
police cadet applying for appointment to SA Police.
41D—Procedures for drug and alcohol
testing
(1) The Governor
may make such regulations as are contemplated by, or as are necessary or
expedient for the purposes of, this Division.
(2) Without
limiting the generality of
subsection (1),
the regulations may—
(a) prescribe procedures for drug and alcohol testing; and
(b) provide for the authorisation of persons to conduct drug and alcohol
testing and operate equipment for that purpose; and
(c) regulate the collection of biological samples taken from persons for
the purposes of drug and alcohol testing under this Division; and
(d) provide for the analysis of test results, including the accreditation
of persons conducting the analysis; and
(e) provide for the approval of devices used in carrying out drug and
alcohol testing and analysis; and
(f) provide for the use of results from any testing or analysis, or the
steps that may be taken on account of any testing or any evidence or information
produced as a result of testing; and
(g) prescribe the circumstances that amount to a defence to a breach of
the Code or the regulations, including where the consumption of alcohol or drugs
occurs after police work has been carried out; and
(h) prescribe evidentiary provisions to facilitate proof of contraventions
of the Code or the regulations for the purposes of proceedings relating to those
contraventions; and
(i) provide for the confidentiality of test results; and
(j) regulate the destruction of biological samples collected for testing;
and
(k) provide for the protection of persons involved in taking or conducting
testing from liability for acts or omissions done in good faith and in
accordance with this Division.
41E—Biological samples, test results, etc not to be
used for other purposes
(1) A biological sample (and any other forensic material taken
incidentally in the course of testing a person for the presence of drugs or
alcohol) taken under this Division must not be used for any purpose other
than—
(a) for a purpose contemplated by this Division; or
(b) in connection with the control and management of SA Police;
or
(c) for the purpose of disciplinary proceedings under this Act.
(2) The results of any drug and alcohol testing or analysis conducted
under this Division, or an admission or a statement made by a person relating to
such drug and alcohol testing, is not admissible in any proceedings other than
disciplinary proceedings under this Act.
10—Insertion
of heading to Part 6 Division 3
Before section 42 insert:
Division 3—Minor
misconduct
11—Amendment
of section 42—Minor misconduct
(1) Section 42(1)—delete "and refer the matter to a member of
S.A. Police determined in accordance with the orders and directions of the
Commissioner for an informal inquiry"
(2) Section 42—after subsection (1) insert:
(1a) The Commissioner must inform the member of SA Police or police
cadet concerned—
(a) of the nature of the suspected breach of the Code and the particulars
of the breach; and
(b) that the Commissioner has determined that the matter involves minor
misconduct; and
(c) that the member or police cadet is entitled to require that the
matter—
(i) be dealt with as an alleged breach of the Code under Division 1;
or
(ii) be referred to a member of SA Police determined in accordance
with the orders and directions of the Commissioner for an informal inquiry under
this section.
(3) Section 42(2)—delete "subsection (1)" and
substitute:
this section
12—Amendment
of section 55—Right of review
Section 55(1)—delete subsection (1) and
substitute:
(1) After a selection process has been conducted in relation to a
prescribed promotional position, the Commissioner must publish in the
Police Gazette—
(a) notice of the selection decision; or
(b) if no person has been selected for appointment to the
position—notice of that fact.
Section 59—delete the section and substitute:
59—Appointment of special
constables
(1) Subject to
subsection (2), the
Commissioner may appoint a person to be a special constable for the whole or a
part of the State.
(2) The Commissioner
may only appoint a police cadet to be a special constable for the whole or a
part of the State if a declaration has been made under Part 4
Division 3 of the Emergency
Management Act 2004 (and the term of any such appointment will be
for the period specified in the declaration under that Act and, if the period of
the declaration is extended under that Act, for such further periods).
(3) An appointment under this section may be made—
(a) if a declaration has been made under Part 4 Division 3 of
the Emergency
Management Act 2004—orally; or
(b) in any other case—by instrument in writing.
(4) If the appointment is made orally, the Commissioner must, as soon as
practicable, confirm the appointment by instrument in writing.
(5) An instrument of appointment or confirming the appointment of a
special constable must specify the term and conditions of the appointment,
including—
(a) if the appointment is for the whole of the State—that fact;
and
(b) in any other case—the part of the State for which the special
constable is appointed.
14—Amendment
of section 61—Duties and powers of special
constables
Section 61(2)—delete subsection (2) and
substitute:
(2) The Commissioner may, when appointing a special constable, impose
limitations on his or her powers, responsibilities or
immunities—
(a) if the appointment is made orally under
section 59(3)(a)—orally; or
(b) if the appointment is made by instrument in writing—by the
instrument of appointment.
(3) If a limitation is imposed orally, the instrument confirming the
appointment of the special constable under section 59(4) must specify the
limitation.
(4) The Commissioner may, by notice in writing to a special constable,
vary or revoke a limitation imposed under this section.
15—Amendment
of section 67—Divestment or suspension of powers
Section 67—after subsection (3) insert:
(4) If the Commissioner grants leave to a member of SA Police for an
extended period, the Commissioner may, by instrument in writing, suspend for the
period of the leave all powers and authorities vested in the member by or under
this or another Act or any law as a member of SA Police or
constable.
(5) If the
Commissioner grants leave to a member of SA Police on account of physical
or mental disability or illness of the member, the Commissioner may, by
instrument in writing, suspend all powers and authorities vested in the member
by or under this or another Act or any law as a member of SA Police or
constable.
(6) An instrument in writing under
subsection (5)
must include reasons for the Commissioner's decision.
(7) A suspension under
subsection (5)
remains in force until it is revoked by the Commissioner by further instrument
in writing.
16—Amendment
of section 70—Suspension or revocation of suspension under Act or
regulations
(1) Section 70(2)—delete subsection (2) and
substitute:
(2) Despite subsection (1), remuneration may only be withheld under
that subsection for more than 3 months if—
(a) the person has been committed for trial for a serious offence;
or
(b) the person has been found guilty of a serious offence; or
(c) the person has admitted or been found guilty of a breach of the Code
in respect of which the most probable outcome is termination of the person's
appointment.
(2) Section 70(4)—delete "under this Act or the regulations"
and substitute:
of a person's appointment
(3) Section 70(5)—delete "circumstances referred to in
subsection (4) or otherwise" and substitute:
particular circumstances
(4) Section 70—after subsection (5) insert:
(6) In this section—
serious offence means an offence that is punishable by
imprisonment for 2 years or more.
17—Amendment
of Schedule 1—Police Review Tribunal
(1) Schedule 1, clause 1(2) to (7)—delete
subclauses (2) to (7) (inclusive)
(2) Schedule 1, clause 2—delete clause 2 and
substitute:
1A—Constitution of Tribunal for purposes of
proceedings under Part 8 Division 1 or 2
(1) The Tribunal will, for the purposes of proceedings under Part 8
Division 1 or 2, be constituted of a magistrate appointed by the
Governor.
(2) 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 be eligible
for reappointment.
(3) The Governor
may appoint another magistrate to be the deputy of the magistrate appointed to
constitute the Tribunal and the Tribunal will, for any period for which the
magistrate appointed to constitute the Tribunal is absent or unavailable, be
constituted of that other magistrate.
1B—Constitution of Tribunal for purposes of
proceedings under Part 8 Division 3
(1) The Tribunal will, for the purposes of proceedings under Part 8
Division 3, consist of a person appointed by the Minister under
subclause (2)
or, if that person is unable to act, a person appointed as a deputy under
subclause (3).
(2) The Minister
may appoint a person to the Tribunal for a term of 3 years and on
conditions determined by the Minister.
(3) The Minister
may appoint a deputy of a person appointed to the Tribunal under
subclause (2).
(4) The appointment of a deputy will be for a term of 3 years and on
conditions determined by the Minister.
(5) A person
appointed under
subclause (2)
or
(3)—
(a) must be a legal practitioner of at least 5 years standing;
and
(b) is eligible for reappointment at the end of a term of office;
and
(c) may be removed from office by the Minister—
(i) for breach of, or non-compliance with, a condition of appointment;
or
(ii) for misconduct; or
(iii) for failure or incapacity to carry out official duties
satisfactorily.
(6) The office of a person appointed under
subclause (2)
or
(3) becomes vacant if
the person—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) ceases to satisfy the qualification by virtue of which the person was
eligible for appointment; or
(e) is removed from office under
subclause (5).
2—Secretary to Tribunal
(1) There will be a Secretary to the Tribunal.
(2) The Secretary will be a member of SA Police or a Public Service
employee.
(3) The position of Secretary may be held in conjunction with any other
position in SA Police or the Public Service.
(4) The Secretary will have the duties and functions conferred by this Act
or any other Act and such other duties and functions as may be directed by the
Tribunal.
Part 3—Amendment
of Police (Complaints and Disciplinary
Proceedings) Act 1985
18—Amendment
of section 46—Appeals in respect of discipline
Section 46—after subsection (2) insert:
(2a) A designated officer (other than a person appointed to be a police
cadet under the Police
Act 1998) may appeal to the Court against an order of the
Commissioner made after the commencement of this subsection imposing punishment
on the designated officer for having been found guilty of an offence against a
law of this jurisdiction or another jurisdiction.
Part 4—Amendment
of Public Intoxication
Act 1984
19—Amendment
of section 4—Interpretation
(1) Section 4, definition of officer in charge—delete
"member of the police force" and substitute:
police officer
(2) Section 4—after the definition of relative
insert:
responsible officer, in relation to a police station,
means—
(a) the officer in charge of the police station; or
(b) if a police officer has, for the time being, been designated by the
officer in charge of the police station as the officer with responsibility for
persons accepted into custody at the police station—that
officer;
20—Amendment
of section 7—Apprehension of persons under the
influence
(1) Section 7(1)—delete "member of the police force" wherever
occurring and substitute in each case:
police officer
(2) Section 7(2)—delete "member of the police force" and
substitute:
police officer
(3) Section 7(3)—delete "member of the police force" and
substitute:
police officer
(4) Section 7(4)—delete "officer in charge of that" and
substitute:
responsible officer for the police
(5) Section 7(4)(a)—delete "officer in charge" and
substitute:
responsible officer
(6) Section 7(9)(b)—delete "officer in charge of" and
substitute:
responsible officer for
(7) Section 7(10)—delete "officer in charge of" and
substitute:
responsible officer for
(8) Section 7(11)—delete "an officer in charge of" and
substitute:
a responsible officer for
21—Amendment
of section 10—Custody of persons detained
(1) Section 10(1)(b)—delete "the officer in charge of" and
substitute:
the responsible officer for
(2) Section 10(2)—delete "member of the police force" and
substitute:
police officer
Schedule 1—Transitional
provisions
(1) Section 27 of the Police
Act 1998, as amended by
Part 2 of this Act,
applies to an appointment—
(a) made on or after the commencement of this clause; or
(b) made prior to the commencement of this clause if the period of
probation for the appointment has not ended before that commencement.
(2) Section 55 of the Police
Act 1998, as amended by
Part 2 of this Act,
applies to a selection process conducted after the commencement of this
clause.