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CUSTODIAL LEGISLATION (OFFICERS DISCIPLINE) AMENDMENT BILL 2013

                     Western Australia


Custodial Legislation (Officers Discipline)
          Amendment Bill 2013

                         Contents

      Part 1 -- Preliminary
1.    Short title                                                   2
2.    Commencement                                                  2
      Part 2 -- Prisons Act 1981 amended
3.    Act amended                                                   3
4.    Section 3 amended                                             3
5.    Section 8 amended                                             3
6.    Section 13 amended                                            3
7.    Part X replaced                                               4
      Part X -- Discipline of prison officers
      Division 1 -- Preliminary
      96.        Term used: prison officer                    4
      Division 2 -- General discipline
      97.        Regulations, rules to be strictly observed   4
      98.        Application of Public Sector Management
                 Act 1994 Part 5                              4
      Division 3 -- Removal of prison officers due to loss
             of confidence
      Subdivision 1 -- Preliminary
      99.        Terms used                                   4
      Subdivision 2 -- Removal of prison officers
      100.       Application of Subdivision                    6
      101.       Removal action                                6
      102.       Notice of loss of confidence                  8
      103.       Maintenance payment                          10
      104.       Withdrawal of removal action and
                 revocation of removal                        10
      105.       Resignation of prison officer who has
                 been removed                                 11



                          47--1B                                    page i
Custodial Legislation (Officers Discipline) Amendment Bill 2013



Contents



              Subdivision 3 -- Appeal against removal of prison
                    officer
              106.      Appeal right                                11
              107.      Proceedings on appeal                       12
              108.      Leave to tender new evidence on appeal      13
              109.      Opportunity to consider new evidence        14
              110A.     Revocation of removal after consideration
                        of new evidence                             15
              110B.     Application of Industrial Relations
                        Act 1979 to appeals                         16
              110C.     Adjournment of appeal if appellant
                        charged with offence                        18
              110D.     Resumption of appeal before end of
                        adjournment                                 19
              110E.     Decision by WAIRC                           19
              110F.     Determining amount of compensation          20
              110G.     Restriction on publication                  21
              Subdivision 4 -- General
              110H.     Effect of charge for, or conviction or
                        acquittal of, offence                       21
              110I.     Failure to comply with procedure            22
              110J.     Transfer, standing down and leave of
                        prison officer                              22
              110K.     Review of Division                          23
      8.      Section 110 amended                                        24
      9.      Part XII inserted                                          24
              Part XII -- Savings and transitional provisions for
                     Custodial Legislation (Officers Discipline)
                     Amendment Act 2013
              118.      Purpose                                     24
              119.      Disciplinary offences before
                        commencement day                            24

              Part 3 -- Young Offenders Act 1994
                   amended
      10.     Act amended                                                26
      11.     Section 3 amended                                          26
      12.     Part 3 Division 1 heading replaced                         26
              Division 1 -- Chief executive officer
      13.     Part 3 Division 2 heading inserted                         26
              Division 2 -- Other officers and employees
      14.     Section 11 amended                                         27
      15.     Section 11B amended                                        27
      16.     Part 3 Division 3 inserted                                 28


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      Custodial Legislation (Officers Discipline) Amendment Bill 2013



                                                                     Contents



         Division 3 -- Removal of custodial officers due to
                loss of confidence
         Subdivision 1 -- Preliminary
         11CA.      Terms used                                  28
         Subdivision 2 -- Removal of custodial officers
         11CB.      Application of Subdivision                  29
         11CC.      Removal action                              30
         11CD.      Notice of loss of confidence                31
         11CE.      Maintenance payment                         33
         11CF.      Withdrawal of removal action and
                    revocation of removal                       33
         11CG.      Resignation of custodial officer who has
                    been removed                                34
         Subdivision 3 -- Appeal against removal of custodial
                officer
         11CH.      Appeal right                                34
         11CI.      Proceedings on appeal                       35
         11CJ.      Leave to tender new evidence on appeal      36
         11CK.      Opportunity to consider new evidence        37
         11CL.      Revocation of removal after consideration
                    of new evidence                             38
         11CM.      Application of Industrial Relations
                    Act 1979 to appeals                         39
         11CN.      Adjournment of appeal if appellant
                    charged with offence                        42
         11CO.      Resumption of appeal before end of
                    adjournment                                 43
         11CP.      Decision by WAIRC                           43
         11CQ.      Determining amount of compensation          44
         11CR.      Restriction on publication                  45
         Subdivision 4 -- General
         11CS.      Effect of charge for, or conviction or
                    acquittal of, offence                       45
         11CT.      Failure to comply with procedure            46
         11CU.      Transfer, standing down and leave of
                    custodial officer                           46
         11CV.      Review of Division                          47
17.      Part 3 Division 4 heading inserted                            48
         Division 4 -- Management, control, security and
                wellbeing of young offenders
18.      Section 11C amended                                           48
19.      Section 11E amended                                           48
20.      Section 11F amended                                           48
21.      Part 3 Division 2 heading replaced                            49




                                                                      page iii
Custodial Legislation (Officers Discipline) Amendment Bill 2013



Contents



              Division 5 -- Arrangements with councils of
                     Aboriginal communities
      22.     Section 169A amended                                49




page iv
                           Western Australia


                     LEGISLATIVE ASSEMBLY


     Custodial Legislation (Officers Discipline)
               Amendment Bill 2013

                               A Bill for


An Act to amend --
•  the Prisons Act 1981; and
•  the Young Offenders Act 1994,
to make provision for various matters relating to the discipline of
officers, and for related purposes.



The Parliament of Western Australia enacts as follows:




                                                                 page 1
     Custodial Legislation (Officers Discipline) Amendment Bill 2013
     Part 1          Preliminary

     s. 1



1                           Part 1 -- Preliminary
2    1.       Short title
3             This is the Custodial Legislation (Officers Discipline)
4             Amendment Act 2013.

5    2.       Commencement
6             This Act comes into operation as follows --
7              (a) sections 1 and 2 -- on the day on which this Act
8                    receives the Royal Assent;
9              (b) the rest of the Act -- on a day fixed by proclamation,
10                   and different days may be fixed for different provisions.




     page 2
                 Custodial Legislation (Officers Discipline) Amendment Bill 2013
                                        Prisons Act 1981 amended          Part 2

                                                                                  s. 3



1                     Part 2 -- Prisons Act 1981 amended
2    3.         Act amended
3               This Part amends the Prisons Act 1981.

4    4.         Section 3 amended
5         (1)   In section 3(1) delete the definition of Appeal Tribunal.
6         (2)   In section 3(1) insert in alphabetical order:
7

8                      remove, in relation to a prison officer, means terminate
9                      the employment of the prison officer;
10


11   5.         Section 8 amended
12              In section 8(1) delete "section 9, 35, 104, 105 or 106." and
13              insert:
14

15              section 9 or 35.
16


17   6.         Section 13 amended
18        (1)   Delete section 13(3) and insert:
19

20              (3)    The Minister may, on the recommendation of the chief
21                     executive officer under section 101(1)(b), remove a
22                     prison officer engaged under subsection (1).
23

24        (2)   In section 13(4) delete "consenting to a dismissal" and insert:
25

26              removal
27




                                                                            page 3
     Custodial Legislation (Officers Discipline) Amendment Bill 2013
     Part 2          Prisons Act 1981 amended

     s. 7



1    7.           Part X replaced
2                 Delete Part X and insert:
3


4                     Part X -- Discipline of prison officers
5                                Division 1 -- Preliminary

6           96.         Term used: prison officer
7                       In this Part --
8                       prison officer means a person engaged to be a prison
9                       officer under section 13(1).

10                            Division 2 -- General discipline

11          97.         Regulations, rules to be strictly observed
12                      A prison officer must use his or her best endeavours to
13                      ensure that this Act, regulations made under this Act,
14                      rules and standing orders are strictly observed.

15          98.         Application of Public Sector Management Act 1994
16                      Part 5
17                      Prison officers are prescribed for the purposes of the
18                      Public Sector Management Act 1994 section 76(1)(b).

19                  Division 3 -- Removal of prison officers due to loss
20                                   of confidence

21                             Subdivision 1 -- Preliminary

22          99.         Terms used
23                      In this Division, unless the contrary intention
24                      appears --
25                      appeal means an appeal under section 106;
26                      appellant means a person who institutes an appeal;

     page 4
     Custodial Legislation (Officers Discipline) Amendment Bill 2013
                            Prisons Act 1981 amended          Part 2

                                                                 s. 7



1        Chief Commissioner has the same meaning as in the
2        Industrial Relations Act 1979;
3        decision notice has the meaning given in
4        section 102(3)(b);
5        industrial commissioner means a commissioner as
6        defined in the Industrial Relations Act 1979
7        section 7(1);
8        maintenance payment has the meaning given in
9        section 103(1);
10       maintenance period has the meaning given in
11       section 103(1);
12       new evidence, on an appeal against the removal of a
13       prison officer, means evidence other than evidence of
14       any of the following --
15         (a) a document or other material that was examined
16               and taken into account by the chief executive
17               officer in making the removal decision;
18         (b) the notice given under section 102(1);
19         (c) a written submission made to the chief
20               executive officer by the prison officer under
21               section 102(2);
22         (d) a decision notice;
23         (e) a notification of the removal;
24       prison officer includes a superintendent, or other
25       officer with custodial functions, appointed under
26       section 6(3);
27       removal action has the meaning given in section 101;
28       removal decision means a decision of the chief
29       executive officer to take removal action;
30       suitability to continue as a prison officer means
31       suitability to continue as a prison officer having regard
32       to the officer's integrity, honesty, competence,
33       performance or conduct;

                                                              page 5
     Custodial Legislation (Officers Discipline) Amendment Bill 2013
     Part 2          Prisons Act 1981 amended

     s. 7



1                   WAIRC means The Western Australian Industrial
2                   Relations Commission continued and constituted under
3                   the Industrial Relations Act 1979.

4                   Subdivision 2 -- Removal of prison officers

5           100.    Application of Subdivision
6             (1)   This Subdivision applies if --
7                    (a) the chief executive officer does not have
8                          confidence in a prison officer's suitability to
9                          continue as a prison officer; and
10                   (b) the chief executive officer --
11                            (i) decides not to take, or continue to take,
12                                disciplinary proceedings under the
13                                Public Sector Management Act 1994
14                                Part 5 against a prison officer; and
15                           (ii) decides instead to take removal action in
16                                relation to the prison officer;
17                         and
18                   (c) in the case of a prison officer engaged under
19                         section 13(1), the Minister consents to the
20                         taking of removal action in relation to the
21                         prison officer.
22            (2)   This Subdivision applies despite the Public Sector
23                  Management Act 1994 section 76(2).

24          101.    Removal action
25            (1)   If the chief executive officer does not have confidence
26                  in a prison officer's suitability to continue as a prison
27                  officer, the chief executive officer may take the
28                  following action (removal action) --
29                    (a) in the case of a prison officer appointed under
30                           section 6(3) -- remove the prison officer;


     page 6
      Custodial Legislation (Officers Discipline) Amendment Bill 2013
                             Prisons Act 1981 amended          Part 2

                                                                       s. 7



1           (b)    in the case of a prison officer engaged under
2                  section 13(1) -- recommend to the Minister
3                  that the prison officer be removed under
4                  section 13(3).
5    (2)   Subsection (1)(a) applies in addition to, and does not
6          limit the operation of, the Public Sector Management
7          Act 1994.
8    (3)   The chief executive officer may conduct any necessary
9          investigation to determine a prison officer's suitability
10         to continue as a prison officer.
11   (4)   For the purpose of the investigation the chief executive
12         officer may require the prison officer to do all or any of
13         the following --
14           (a) provide the chief executive officer with any
15                 information or answer any question that the
16                 chief executive officer requires;
17           (b) produce to the chief executive officer any
18                 document in the custody or under the control of
19                 the prison officer.
20   (5)   The prison officer is not excused from giving
21         information, answering any question or producing a
22         document when required to do so under subsection (4)
23         on the ground that the information, answer or
24         document might --
25           (a) incriminate the prison officer; or
26           (b) render the prison officer liable to a disciplinary
27                 measure under Division 2 or removal under this
28                 Division.
29   (6)   The information, answer or document is not admissible
30         in evidence against the prison officer in any criminal
31         proceedings except in proceedings for an offence under
32         subsection (7).



                                                                   page 7
     Custodial Legislation (Officers Discipline) Amendment Bill 2013
     Part 2          Prisons Act 1981 amended

     s. 7



1             (7)   A prison officer must not, in response to a requirement
2                   under subsection (4) --
3                     (a) fail or refuse to provide the required
4                           information or answer or produce the required
5                           document; or
6                    (b) give information or an answer that is false or
7                           misleading in a material particular; or
8                     (c) produce a document that the prison officer
9                           knows is false or misleading in a material
10                          particular --
11                             (i) without indicating that the document is
12                                  false or misleading and, to the extent the
13                                  prison officer can, how the document is
14                                  false or misleading; and
15                            (ii) if the prison officer has, or can
16                                  reasonably obtain, the correct
17                                  information -- without providing the
18                                  correct information.
19                  Penalty: a fine of $4 000 or 12 months' imprisonment,
20                      or both.

21          102.    Notice of loss of confidence
22            (1)   The chief executive officer may give a prison officer a
23                  written notice setting out the grounds on which the
24                  chief executive officer does not have confidence in the
25                  prison officer's suitability to continue as a prison
26                  officer.
27            (2)   The prison officer may make written submissions to
28                  the chief executive officer in relation to the notice
29                  within the following period (the submission period) --
30                    (a) 21 days after the day on which the notice is
31                          given; or
32                    (b) any longer period after that day allowed by the
33                          chief executive officer.

     page 8
      Custodial Legislation (Officers Discipline) Amendment Bill 2013
                             Prisons Act 1981 amended          Part 2

                                                                      s. 7



1    (3)   After the submission period, the chief executive officer
2          must --
3           (a) decide whether or not to take removal action
4                  against the prison officer; and
5           (b) give the prison officer written notice of the
6                  decision (the decision notice).
7    (4)   The chief executive officer must not decide to take
8          removal action against the prison officer unless the
9          chief executive officer --
10           (a) has taken into account any written submissions
11                 received from the prison officer during the
12                 submission period; and
13           (b) still does not have confidence in a prison
14                 officer's suitability to continue as a prison
15                 officer.
16   (5)   If the chief executive officer decides to take removal
17         action against the prison officer, the decision notice
18         must contain the reasons for the decision.
19   (6)   Except as provided in the regulations, the chief
20         executive officer must, within 7 days after giving the
21         decision notice --
22           (a) give to the prison officer a copy of any
23                documents that were considered by the chief
24                executive officer in making the decision; and
25           (b) make available to the prison officer for
26                inspection any other materials that were
27                considered by the chief executive officer in
28                making the decision.
29   (7)   The removal action may be carried out when the notice
30         is given or at any time after that.




                                                                page 9
     Custodial Legislation (Officers Discipline) Amendment Bill 2013
     Part 2          Prisons Act 1981 amended

     s. 7



1           103.     Maintenance payment
2              (1)   If a prison officer is removed as a result of removal
3                    action, the prison officer is entitled to receive a
4                    payment (a maintenance payment) for the period of
5                    28 days after the day on which the prison officer is
6                    removed (the maintenance period).
7              (2)   The Minister may, in exceptional circumstances, direct
8                    that a maintenance payment must be paid to the prison
9                    officer for a specified period after the maintenance
10                   period.
11             (3)   For the purpose of subsection (2), the specified period
12                   is a period not exceeding 6 months specified by the
13                   Minister but in any event ending on the day any appeal
14                   is determined by the WAIRC.
15             (4)   Any maintenance payment must be determined on the
16                   basis of the salary of the prison officer at the time of
17                   the removal.

18          104.     Withdrawal of removal action and revocation of
19                   removal
20             (1)   If removal action does not result in the removal of a
21                   prison officer, the chief executive officer may, by
22                   notice in writing to the prison officer, withdraw the
23                   removal action.
24             (2)   If a prison officer is removed as a result of removal
25                   action, the chief executive officer may, by notice in
26                   writing to the prison officer, revoke the removal.
27             (3)   Subsection (2) applies even if an appeal has been
28                   instituted against the removal.
29             (4)   Despite any other enactment, if the removal is revoked
30                   under subsection (2), the removal is to be taken to be of
31                   no effect and to have never had any effect.


     page 10
            Custodial Legislation (Officers Discipline) Amendment Bill 2013
                                   Prisons Act 1981 amended          Part 2

                                                                             s. 7



1      (5)      If the chief executive officer revokes the removal of a
2               prison officer under subsection (2), the prison officer is
3               not entitled to be paid his or her salary for any period
4               the prison officer received a maintenance payment.

5    105.       Resignation of prison officer who has been removed
6      (1)      Even if a prison officer is removed as a result of
7               removal action, the prison officer may resign at any
8               time before the end of the maintenance period.
9      (2)      Subsection (1) does not apply if an appeal has been
10              instituted against the removal.
11     (3)      A resignation under subsection (1) takes effect at the
12              end of the maintenance period.
13     (4)      Despite any other enactment, if a prison officer resigns
14              under subsection (1), the removal of the prison officer
15              is to be taken to be of no effect and to have never had
16              any effect.

17    Subdivision 3 -- Appeal against removal of prison officer

18   106.       Appeal right
19     (1)      If a prison officer is removed as a result of removal
20              action, the prison officer may appeal to the WAIRC
21              against the removal decision on the ground that it was
22              harsh, oppressive or unfair.
23     (2)      The prison officer may institute the appeal by a notice
24              to the chief executive officer stating --
25                (a) the reasons for the removal decision being
26                      harsh, oppressive or unfair; and
27                (b) the nature of the relief sought.
28     (3)      The appeal cannot be instituted --
29               (a) after the maintenance period; or


                                                                     page 11
     Custodial Legislation (Officers Discipline) Amendment Bill 2013
     Part 2          Prisons Act 1981 amended

     s. 7



1                     (b)   if the prison officer has resigned under
2                           section 105(1).
3              (4)   For the purposes of proceedings relating to the appeal,
4                    the WAIRC is to be constituted by not less than
5                    3 industrial Commissioners, at least one of whom must
6                    be --
7                      (a) the Chief Commissioner; or
8                      (b) the Senior Commissioner within the meaning of
9                            that term in the Industrial Relations Act 1979.
10             (5)   The only parties to the appeal are the prison officer and
11                   the chief executive officer.
12             (6)   The prison officer does not have any right of appeal
13                   against the removal decision other than under this
14                   section.

15          107.     Proceedings on appeal
16             (1)   On the hearing of an appeal, the WAIRC must proceed
17                   in the following manner --
18                     (a) first, it must consider the chief executive
19                           officer's reasons for the removal decision;
20                     (b) second, it must consider the case presented by
21                           the appellant as to why the removal decision
22                           was harsh, oppressive or unfair;
23                     (c) third, it must consider the case presented by the
24                           chief executive officer in answer to the
25                           appellant's case.
26             (2)   The appellant has at all times the burden of establishing
27                   that the removal decision was harsh, oppressive or
28                   unfair.
29             (3)   Subsection (2) has effect despite any law or practice to
30                   the contrary.



     page 12
            Custodial Legislation (Officers Discipline) Amendment Bill 2013
                                   Prisons Act 1981 amended          Part 2

                                                                               s. 7



1      (4)      Without limiting the matters to which the WAIRC is
2               otherwise required or permitted to have regard in
3               determining the appeal, it must have regard to --
4                 (a) the interests of the appellant; and
5                 (b) the public interest, which is to be taken to
6                      include --
7                         (i) the importance of maintaining public
8                              confidence in the integrity, honesty,
9                              conduct and standard of performance of
10                             prison officers; and
11                       (ii) the special nature of the relationship
12                             between the chief executive officer and
13                             prison officers.

14   108.       Leave to tender new evidence on appeal
15     (1)      New evidence cannot be tendered to the WAIRC
16              during a hearing of an appeal unless the WAIRC grants
17              leave under subsection (2) or (3).
18     (2)      The WAIRC may grant the chief executive officer
19              leave to tender new evidence if --
20                (a) the appellant consents; or
21                (b) it is satisfied that it is in the interests of justice
22                      to do so.
23     (3)      The WAIRC may grant the appellant leave to tender
24              new evidence if --
25                (a) the chief executive officer consents; or
26               (b) the WAIRC is satisfied that --
27                       (i) the appellant is likely to be able to use
28                            the new evidence to show that the chief
29                            executive officer has acted upon wrong
30                            or mistaken information; or




                                                                        page 13
     Custodial Legislation (Officers Discipline) Amendment Bill 2013
     Part 2          Prisons Act 1981 amended

     s. 7



1                             (ii)   the new evidence might materially have
2                                    affected the chief executive officer's
3                                    removal decision; or
4                            (iii)   it is in the interests of justice to do so.
5              (4)   In the exercise of its discretion under subsection (3),
6                    the WAIRC must have regard to --
7                      (a) whether or not the appellant was aware of the
8                            substance of the new evidence before the
9                            appellant's removal; and
10                     (b) whether or not the substance of the new
11                           evidence was contained in a document to which
12                           the appellant had reasonable access before the
13                           appellant's removal.

14          109.     Opportunity to consider new evidence
15             (1)   If the chief executive officer is given leave to tender
16                   new evidence under section 108(2) --
17                     (a) the WAIRC must give the appellant a
18                            reasonable opportunity to consider the new
19                            evidence; and
20                     (b) the appellant may, without the leave of the
21                            WAIRC, tender new evidence under this
22                            section in response to the new evidence
23                            tendered by the chief executive officer.
24             (2)   If the appellant is given leave to tender new evidence
25                   under section 108(3), the WAIRC must give the chief
26                   executive officer a reasonable opportunity to consider
27                   the new evidence.




     page 14
         Custodial Legislation (Officers Discipline) Amendment Bill 2013
                                Prisons Act 1981 amended          Part 2

                                                                          s. 7



1    110A.   Revocation of removal after consideration of new
2            evidence
3      (1)   If, having considered any new evidence, the chief
4            executive officer revokes the removal under
5            section 104(2) --
6              (a) the chief executive officer must give the
7                    WAIRC notice of the revocation; and
8              (b) the hearing of the appeal is discontinued when
9                    the WAIRC receives the notice.
10     (2)   If the chief executive officer does not give notice under
11           subsection (1), the hearing of the appeal must continue
12           but the chief executive officer may --
13             (a) reformulate his or her reasons for not having
14                    confidence in the appellant's suitability to
15                    continue as a prison officer; and
16             (b) without the leave of the WAIRC, tender new
17                    evidence under this section in response to the
18                    new evidence tendered by the appellant.
19     (3)   Reasons reformulated under subsection (2)(a) may
20           differ from, or be additional to, the reasons given to the
21           appellant in the decision notice.
22     (4)   If the chief executive officer reformulates reasons
23           under subsection (2)(a) --
24             (a) the chief executive officer must give the
25                    WAIRC and the appellant notice in writing of
26                    the reasons before the resumption of the
27                    hearing of the appeal; and
28             (b) the WAIRC must consider the reasons as if
29                    they had been reasons given to the appellant in
30                    the decision notice.




                                                                  page 15
    Custodial Legislation (Officers Discipline) Amendment Bill 2013
    Part 2          Prisons Act 1981 amended

    s. 7



1          110B.      Application of Industrial Relations Act 1979 to
2                     appeals
3                     The provisions of the Industrial Relations Act 1979
4                     listed in the Table apply to, and in relation to, an appeal
5                     and its determination, subject to --
6                        (a) any specific modifications set out in the Table;
7                              and
8                       (b) all other necessary modifications.
9                                               Table
              s. 26(1)(a)
              and (b)
              s. 26(3)
              s. 27(1)(b), (c),
              (d), (e), (f), (h),
              (ha), (hb), (l),
              (m), (n), (o)
              and (v)
              s. 27(1a)
              s. 28                 The section applies only in relation to
                                    powers conferred by section 27 listed in
                                    this Table.
              s. 31(1)              Paragraphs (b) and (c) do not apply but
                                    the subsection is to be read as if it
                                    contained the following paragraphs --
                                    "     (b)    with the leave of the
                                                 Commission, by an agent; or
                                          (c)    by a legal practitioner. ".
              s. 31(3)
              s. 31(5)



    page 16
 Custodial Legislation (Officers Discipline) Amendment Bill 2013
                        Prisons Act 1981 amended          Part 2

                                                               s. 7




s. 32              Section 32(1) is to be read as if a
                   reference to "Where an industrial matter
                   has been referred to the Commission the
                   Commission shall, unless it" were a
                   reference to "Where the Commission is
                   dealing with an appeal instituted under
                   the Prisons Act 1981 section 106, a
                   member of the Commission may
                   recommend that the parties to the appeal,
                   unless he or she".
                   References to "the matter" and "an
                   industrial matter" are to be read as if they
                   were references to "the appeal".
                   For the purposes of subsections (2)
                   and (3), Commission does not include an
                   industrial commissioner constituting the
                   WAIRC to hear the appeal.
                   Subsections (4), (6), (7) and (8) do not
                   apply.
s. 33              A summons must not be issued under
                   section 33(1)(a) to the Governor.
                   A summons may be issued to the chief
                   executive officer or the Minister but only
                   at the direction of a commissioner
                   appointed under the Industrial Relations
                   Act 1979 if that commissioner is satisfied
                   that there are extraordinary grounds for
                   doing so.
                   A summons may not be issued to any
                   other person except at the direction of a
                   commissioner.




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              s. 34                A reference in subsection (1) to "an
                                   award, order, or declaration" is to be read
                                   as if it were a reference to "an order".
                                   A reference in subsection (3) to "the
                                   President, the Full Bench, or the
                                   Commission" is to be read as if it were a
                                   reference to "the Commission".
                                   A reference in subsection (4) to "no
                                   award, order, declaration, finding, or
                                   proceeding of the President, the Full
                                   Bench, or the Commission" is to be read
                                   as if it were a reference to "no decision,
                                   order, finding or proceeding of the
                                   Commission".
              s. 35
              s. 36
              s. 86                The section does not apply in relation to
                                   costs and expenses, other than expenses
                                   of witnesses.
              s. 90                A reference in subsection (1) to "any
                                   decision of the President, the Full Bench,
                                   or the Commission in Court Session" is
                                   to be read as if it were a reference to "a
                                   decision of the Commission under the
                                   Prisons Act 1981 section 110E".

1          110C.      Adjournment of appeal if appellant charged with
2                     offence
3             (1)     The chief executive officer or an appellant may apply
4                     to the WAIRC for an adjournment of the hearing of an
5                     appeal if the appellant has been --
6                       (a) charged with an offence relating to any matter,
7                             act or omission that was taken into account by


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1                    the chief executive officer in deciding that he or
2                    she did not have confidence in the appellant's
3                    suitability to continue as a prison officer; and
4             (b)    the charge has not been finally determined by a
5                    court or otherwise disposed of.
6      (2)   If an adjournment application is made by the chief
7            executive officer, the WAIRC may adjourn the hearing
8            of the appeal if it considers that it is in the interests of
9            justice to do so.
10     (3)   If an adjournment application is made by the appellant,
11           the WAIRC must adjourn the hearing of the appeal for
12           the period (not exceeding 12 months) requested by the
13           appellant.
14     (4)   Before the end of the period of an adjournment under
15           this section, the chief executive officer or the appellant
16           may apply to the WAIRC for a further adjournment
17           and, if it is in the interests of justice to do so, the
18           WAIRC may grant a further adjournment for the period
19           specified by it.
20     (5)   Subsections (2) and (4) do not affect any other power
21           of the WAIRC to grant an adjournment.

22   110D.   Resumption of appeal before end of adjournment
23           If the charge is finally determined by a court or
24           otherwise disposed of before the end of an adjournment
25           under section 110C, the chief executive officer or the
26           appellant may apply to the WAIRC for the hearing of
27           the appeal to be resumed on a date specified by the
28           WAIRC.

29   110E.   Decision by WAIRC
30     (1)   This section applies if the WAIRC decides on an
31           appeal that the decision to take removal action relating
32           to the appellant was harsh, oppressive or unfair.

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1              (2)   The WAIRC may --
2                     (a) order that the appellant's removal is, and is to
3                         be taken to have always been, of no effect; or
4                     (b) if it is impracticable to make an order under
5                         paragraph (a), order the chief executive officer
6                         to pay the appellant an amount of compensation
7                         for loss or injury caused by the removal.
8              (3)   In considering whether or not it is impracticable to
9                    make an order under subsection (2)(a), it is relevant to
10                   consider --
11                     (a) whether, at the time of the appellant's removal,
12                           the position occupied by the appellant is vacant;
13                           and
14                     (b) whether there is another suitable vacant
15                           position in the Department.
16             (4)   If the WAIRC makes an order under subsection (2)(a),
17                   the appellant is not entitled to be paid his or her
18                   remuneration as a prison officer for any period the
19                   appellant received a maintenance payment.
20             (5)   An order under this section may require that it be
21                   complied with within a specified time.

22          110F.    Determining amount of compensation
23             (1)   An amount of compensation ordered under
24                   section 110E(2)(b) must be determined in accordance
25                   with this section.
26             (2)   In determining the amount, the WAIRC must have
27                   regard to all of the following --
28                     (a) the efforts, if any, of the chief executive officer
29                           and the appellant to mitigate the loss suffered
30                           by the appellant as a result of the removal;
31                     (b) any maintenance payment received by the
32                           appellant;

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                                                                            s. 7



1              (c)   any redress the appellant has obtained under
2                    another enactment where the evidence
3                    necessary to establish that redress is also the
4                    evidence necessary to establish on the appeal
5                    that the removal was harsh, oppressive or
6                    unfair;
7             (d)    any other matter that the WAIRC considers
8                    relevant.
9      (3)   In determining the amount, the WAIRC may have
10           regard to the average rate of remuneration as a prison
11           officer received by the appellant during any relevant
12           period of service.
13     (4)   The amount must not exceed 12 months' remuneration
14           as a prison officer.

15   110G.   Restriction on publication
16     (1)   If the WAIRC is satisfied that it is in the public
17           interest, it may direct that any evidence given before it,
18           or the contents of any document produced to it, on an
19           appeal --
20             (a) must not be published; or
21             (b) must not be published except in a manner, and
22                    to persons, specified by the WAIRC.
23     (2)   A person must not contravene a direction given under
24           this section.
25           Penalty: a fine of $4 000 or 12 months' imprisonment,
26                or both.

27                     Subdivision 4 -- General

28   110H.   Effect of charge for, or conviction or acquittal of,
29           offence
30           The chief executive officer can take removal action in
31           relation to a prison officer for a particular matter, act or

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1                    omission even if the matter, act or omission is an
2                    element of an offence --
3                      (a) with which the prison officer has been charged;
4                           or
5                      (b) of which the prison officer has been convicted
6                           or acquitted.

7           110I.    Failure to comply with procedure
8                    An act or omission of the chief executive officer is not
9                    invalid, and cannot be called in question, if --
10                     (a) the act or omission comprises a failure to
11                           comply with procedure prescribed for the
12                           purposes of this Division; and
13                     (b) the failure is not substantive.

14          110J.    Transfer, standing down and leave of prison officer
15             (1)   This Division does not derogate from the chief
16                   executive officer's power to --
17                     (a) transfer a prison officer; or
18                     (b) stand a prison officer down from performing
19                          that prison officer's usual duties, with or
20                          without pay, until the prison officer is directed
21                          by the chief executive officer to return to those
22                          duties; or
23                     (c) allocate duties to a prison officer other than the
24                          prison officer's usual duties.
25             (2)   If the chief executive officer stands down a prison
26                   officer in relation to whom removal action is being
27                   taken, the chief executive officer must review the
28                   decision to stand the prison officer down every 60 days
29                   and advise the prison officer in writing of the result of
30                   the review.



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1      (3)   The chief executive officer must not direct a prison
2            officer in relation to whom removal action is being
3            taken to take leave during the removal action unless the
4            leave accrues during any period that the prison officer
5            is stood down from performing the prison officer's
6            usual duties.

7    110K.   Review of Division
8      (1)   In this section --
9            commencement day means the day on which the
10           Custodial Legislation (Officers Discipline) Amendment
11           Act 2013 Part 2 comes into operation.
12     (2)   The Minister must carry out a review of the operation
13           and effectiveness of this Division as soon as is
14           practicable after the expiry of 24 months after the
15           commencement day and in the course of that review
16           the Minister must consider and have regard to --
17             (a) the effectiveness of this Division; and
18             (b) the need for the retention of the Division; and
19             (c) any other matters that appear to the Minister to
20                   be relevant to the operation and effectiveness of
21                   this Division.
22     (3)   Without limiting subsection (2), in carrying out the
23           review, the Minister must consult with and have regard
24           to the views of the Chief Commissioner of the
25           WAIRC, the chief executive officer and any union that
26           has prison officers as some or all of its members.
27     (4)   The Minister must prepare a report based on the review
28           and, as soon as is practicable after the report is
29           prepared (and in any event not more than 30 months
30           after the commencement day), cause a copy of it to be
31           laid before each House of Parliament.
32




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1    8.        Section 110 amended
2              In section 110(1):
3                (a) in paragraph (w) delete "termination arising from or
4                      connected with disciplinary matters; and" and insert:
5

6                         removal of prison officers under Part X.
7

8                  (b)    delete paragraph (x).

9    9.        Part XII inserted
10             After section 117 insert:
11


12          Part XII -- Savings and transitional provisions
13           for Custodial Legislation (Officers Discipline)
14                       Amendment Act 2013
15          118.         Purpose
16                       The purpose of this Part is to enact savings and
17                       transitional provisions in relation to the Custodial
18                       Legislation (Officers Discipline) Amendment Act 2013
19                       Part 2.

20          119.         Disciplinary offences before commencement day
21             (1)       In this section --
22                       commencement day means the day on which the
23                       Custodial Legislation (Officers Discipline) Amendment
24                       Act 2013 Part 2 comes into operation;
25                       former disciplinary provisions means Part X as it was
26                       in force immediately before the commencement day;




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                                                                     s. 9



1          misconduct, by a prison officer, means conduct by the
2          prison officer that is or is reasonably suspected to be --
3            (a) substandard performance or a breach of
4                   discipline, as those terms are defined in the
5                   Public Sector Management Act 1994; or
6            (b) conduct that may result in the chief executive
7                   officer taking removal action, as defined in
8                   section 99, in relation to the prison officer;
9          penalty, under Part X, includes removal of a prison
10         officer.
11   (2)   Proceedings for a disciplinary offence instituted under
12         the former disciplinary provisions that are pending
13         immediately before the commencement day are to be
14         dealt with and determined under those provisions as if
15         the Custodial Legislation (Officers Discipline)
16         Amendment Act 2013 Part 2 had not come into
17         operation.
18   (3)   Part X applies to misconduct committed, or suspected
19         of having been committed, by a prison officer before
20         the commencement day but in relation to which
21         proceedings for a disciplinary offence have not been
22         instituted under the former disciplinary provisions.
23   (4)   However, if misconduct occurring before the
24         commencement day would have constituted a
25         disciplinary offence under the former disciplinary
26         provisions, a penalty cannot be imposed under Part X
27         in relation to the misconduct unless that penalty would
28         also have been able to be imposed for the disciplinary
29         offence under the former disciplinary provisions.
30




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     Part 3          Young Offenders Act 1994 amended

     s. 10



1            Part 3 -- Young Offenders Act 1994 amended
2    10.       Act amended
3              This Part amends the Young Offenders Act 1994.

4    11.       Section 3 amended
5              In section 3 insert in alphabetical order:
6

7                    custodial officer means --
8                      (a) a superintendent, or other officer with custodial
9                           functions, appointed under section 11(1); or
10                     (b) a person who is appointed under
11                          section 11(1a)(a) as a custodial officer;
12                   remove, in relation to an officer or other person
13                   appointed under section 11(1), means terminate the
14                   employment of the officer or person;
15


16   12.       Part 3 Division 1 heading replaced
17             Delete the heading to Part 3 Division 1 and insert:
18


19                      Division 1 -- Chief executive officer
20


21   13.       Part 3 Division 2 heading inserted
22             After section 10 insert:
23


24                 Division 2 -- Other officers and employees
25




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                                                                                   s. 14



1    14.          Section 11 amended
2          (1)    In section 11(1a):
3                   (a) in paragraph (a) delete "functions (group workers); and"
4                         and insert:
5

6                           functions; and
7

8                   (b)     delete "terminate the appointment of " and insert:
9

10                          remove
11

12         (2)    Delete section 11(1b)(b) and insert:
13

14                          (b)   may be subject to --
15                                  (i) disciplinary proceedings provided for in
16                                      the regulations; or
17                                 (ii) if regulations are made under
18                                      subsection (1C) -- disciplinary
19                                      proceedings under the Public Sector
20                                      Management Act 1994 Part 5.
21

22         (3)    After section 11(1b) insert:
23

24               (1C)     The regulations may prescribe custodial officers for the
25                        purposes of the Public Sector Management Act 1994
26                        section 76(1)(b).
27

28   15.          Section 11B amended
29                In section 11B delete "person who is appointed under
30                section 11(1) or (1a) as a".
31                Note: The heading to amended section 11B is to read:

32                        Powers and duties of custodial officers


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1    16.       Part 3 Division 3 inserted
2              After section 11B insert:
3


4            Division 3 -- Removal of custodial officers due to loss of
5                                 confidence

6                           Subdivision 1 -- Preliminary

7            11CA. Terms used
8                    In this Division, unless the contrary intention
9                    appears --
10                   appeal means an appeal under section 11CH;
11                   appellant means a person who institutes an appeal;
12                   Chief Commissioner has the same meaning as in the
13                   Industrial Relations Act 1979;
14                   decision notice has the meaning given in
15                   section 11CD(3)(b);
16                   industrial commissioner means a commissioner as
17                   defined in the Industrial Relations Act 1979
18                   section 7(1);
19                   maintenance payment has the meaning given in
20                   section 11CE(1);
21                   maintenance period has the meaning given in
22                   section 11CE(1);
23                   new evidence, on an appeal against the removal of a
24                   custodial officer, means evidence other than evidence
25                   of any of the following --
26                     (a) a document or other material that was examined
27                           and taken into account by the chief executive
28                           officer in making the removal decision;
29                     (b) the notice given under section 11CD(1);



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1              (c)    a written submission made to the chief
2                     executive officer by the custodial officer under
3                     section 11CD(2);
4               (d) a decision notice;
5               (e) a notification of the removal;
6             removal action, in relation to a custodial officer, means
7             the removal of the custodial officer under
8             section 11CC;
9             removal decision means a decision of the chief
10            executive officer to take removal action;
11            suitability to continue as a custodial officer means
12            suitability to continue as a custodial officer having
13            regard to the officer's integrity, honesty, competence,
14            performance or conduct;
15            WAIRC means The Western Australian Industrial
16            Relations Commission continued and constituted under
17            the Industrial Relations Act 1979.

18           Subdivision 2 -- Removal of custodial officers

19   11CB.    Application of Subdivision
20     (1)    This Subdivision applies if --
21             (a) the chief executive officer does not have
22                   confidence in a custodial officer's suitability to
23                   continue as a custodial officer; and
24             (b) the chief executive officer --
25                     (i) decides not to take, or continue to take,
26                          disciplinary proceedings referred to in
27                          section 11(1b)(b) against a custodial
28                          officer; and
29                    (ii) decides instead to take removal action in
30                          relation to the custodial officer.




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1              (2)   If regulations are made under section 11(1C), this
2                    Subdivision applies despite the Public Sector
3                    Management Act 1994 section 76(2).

4            11CC. Removal action
5              (1)   If the chief executive officer does not have confidence
6                    in a custodial officer's suitability to continue as a
7                    custodial officer, the chief executive officer may
8                    remove the custodial officer.
9              (2)   Subsection (1) applies in addition to, and does not limit
10                   the operation of, the Public Sector Management
11                   Act 1994.
12             (3)   The chief executive officer may conduct any necessary
13                   investigation to determine a custodial officer's
14                   suitability to continue as a custodial officer.
15             (4)   For the purpose of the investigation the chief executive
16                   officer may require the custodial officer to do all or any
17                   of the following --
18                     (a) provide the chief executive officer with any
19                           information or answer any question that the
20                           chief executive officer requires;
21                     (b) produce to the chief executive officer any
22                           document in the custody or under the control of
23                           the custodial officer.
24             (5)   The custodial officer is not excused from giving
25                   information, answering any question or producing a
26                   document when required to do so under subsection (4)
27                   on the ground that the information, answer or
28                   document might --
29                     (a) incriminate the custodial officer; or
30                     (b) render the custodial officer liable to a
31                           disciplinary measure under section 11 or
32                           removal under this Division.


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1      (6)   The information, answer or document is not admissible
2            in evidence against the custodial officer in any criminal
3            proceedings except in proceedings for an offence under
4            subsection (7).
5      (7)   A custodial officer must not, in response to a
6            requirement under subsection (4) --
7              (a) fail or refuse to provide the required
8                   information or answer or produce the required
9                   document; or
10             (b) give information or an answer that is false or
11                  misleading in a material particular; or
12             (c) produce a document that the custodial officer
13                  knows is false or misleading in a material
14                  particular --
15                     (i) without indicating that the document is
16                           false or misleading and, to the extent the
17                           custodial officer can, how the document
18                           is false or misleading; and
19                    (ii) if the custodial officer has, or can
20                           reasonably obtain, the correct
21                           information -- without providing the
22                           correct information.
23           Penalty: a fine of $4 000 and imprisonment for
24               12 months.

25   11CD. Notice of loss of confidence
26     (1)   The chief executive officer may give the custodial
27           officer a written notice setting out the grounds on
28           which the chief executive officer does not have
29           confidence in the custodial officer's suitability to
30           continue as a custodial officer.
31     (2)   The custodial officer may make written submissions to
32           the chief executive officer in relation to the notice
33           within the following period (the submission period) --

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1                      (a)   21 days after the day on which the notice is
2                            given; or
3                     (b)    any longer period after that day allowed by the
4                            chief executive officer.
5              (3)   After the submission period, the chief executive officer
6                    must --
7                     (a) decide whether or not to take removal action
8                            against the custodial officer; and
9                     (b) give the custodial officer written notice of the
10                           decision (the decision notice).
11             (4)   The chief executive officer must not decide to take
12                   removal action against the custodial officer unless the
13                   chief executive officer --
14                     (a) has taken into account any written submissions
15                           received from the custodial officer during the
16                           submission period; and
17                     (b) still does not have confidence in a custodial
18                           officer's suitability to continue as a custodial
19                           officer.
20             (5)   If the chief executive officer decides to take removal
21                   action against the custodial officer, the decision notice
22                   must contain the reasons for the decision.
23             (6)   Except as provided in the regulations, the chief
24                   executive officer must, within 7 days after giving the
25                   decision notice --
26                     (a) give to the custodial officer a copy of any
27                          documents that were considered by the chief
28                          executive officer in making the decision; and
29                     (b) make available to the custodial officer for
30                          inspection any other materials that were
31                          considered by the chief executive officer in
32                          making the decision.


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1      (7)   The removal action may be carried out when the notice
2            is given or at any time after that.

3    11CE.   Maintenance payment
4      (1)   If a custodial officer is removed as a result of removal
5            action, the custodial officer is entitled to receive a
6            payment (a maintenance payment) for the period of
7            28 days after the day on which the custodial officer is
8            removed (the maintenance period).
9      (2)   The Minister may, in exceptional circumstances, direct
10           that a maintenance payment must be paid to the
11           custodial officer for a specified period after the
12           maintenance period.
13     (3)   For the purpose of subsection (2), the specified period
14           is a period not exceeding 6 months specified by the
15           Minister but in any event ending on the day any appeal
16           is determined by the WAIRC.
17     (4)   Any maintenance payment must be determined on the
18           basis of the salary of the custodial officer at the time of
19           the removal.

20   11CF.   Withdrawal of removal action and revocation of
21           removal
22     (1)   If a custodial officer is removed as a result of removal
23           action, the chief executive officer may, by notice in
24           writing to the custodial officer, revoke the removal.
25     (2)   Subsection (1) applies even if an appeal has been
26           instituted against the removal.
27     (3)   Despite any other enactment, if the removal is revoked
28           under subsection (1), the removal is to be taken to be of
29           no effect and to have never had any effect.
30     (4)   If the chief executive officer revokes the removal of a
31           custodial officer under subsection (1), the custodial

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1                    officer is not entitled to be paid his or her salary for
2                    any period the custodial officer received a maintenance
3                    payment.

4            11CG. Resignation of custodial officer who has been
5                  removed
6              (1)   Even if a custodial officer is removed as a result of
7                    removal action, the custodial officer may resign at any
8                    time before the end of the maintenance period.
9              (2)   Subsection (1) does not apply if an appeal has been
10                   instituted against the removal.
11             (3)   A resignation under subsection (1) takes effect at the
12                   end of the maintenance period.
13             (4)   Despite any other enactment, if a custodial officer
14                   resigns under subsection (1), the removal of the
15                   custodial officer is to be taken to be of no effect and to
16                   have never had any effect.

17           Subdivision 3 -- Appeal against removal of custodial officer

18           11CH. Appeal right
19             (1)   If a custodial officer is removed as a result of removal
20                   action, the custodial officer may appeal to the WAIRC
21                   against the removal decision on the ground that it was
22                   harsh, oppressive or unfair.
23             (2)   The custodial officer may institute the appeal by a
24                   notice to the chief executive officer stating --
25                     (a) the reasons for the removal decision being
26                           harsh, oppressive or unfair; and
27                    (b) the nature of the relief sought.
28             (3)   The appeal cannot be instituted --
29                    (a) after the maintenance period; or


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1             (b)   if the custodial officer has resigned under
2                   section 11CG(1).
3      (4)   For the purposes of proceedings relating to the appeal,
4            the WAIRC is to be constituted by not less than 3
5            industrial Commissioners, at least one of whom must
6            be --
7              (a) the Chief Commissioner; or
8              (b) the Senior Commissioner within the meaning of
9                    that term in the Industrial Relations Act 1979.
10     (5)   The only parties to the appeal are the custodial officer
11           and the chief executive officer.
12     (6)   The custodial officer does not have any right of appeal
13           against the removal decision other than under this
14           section.

15   11CI.   Proceedings on appeal
16     (1)   On the hearing of an appeal, the WAIRC must proceed
17           in the following manner --
18             (a) first, it must consider the chief executive
19                   officer's reasons for the removal decision;
20             (b) second, it must consider the case presented by
21                   the appellant as to why the removal decision
22                   was harsh, oppressive or unfair;
23             (c) third, it must consider the case presented by the
24                   chief executive officer in answer to the
25                   appellant's case.
26     (2)   The appellant has at all times the burden of establishing
27           that the removal decision was harsh, oppressive or
28           unfair.
29     (3)   Subsection (2) has effect despite any law or practice to
30           the contrary.



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1              (4)   Without limiting the matters to which the WAIRC is
2                    otherwise required or permitted to have regard in
3                    determining the appeal, it must have regard to --
4                      (a) the interests of the appellant; and
5                      (b) the public interest, which is to be taken to
6                           include --
7                              (i) the importance of maintaining public
8                                   confidence in the integrity, honesty,
9                                   conduct and standard of performance of
10                                  custodial officers; and
11                            (ii) the special nature of the relationship
12                                  between the chief executive officer and
13                                  custodial officers.

14           11CJ.   Leave to tender new evidence on appeal
15             (1)   New evidence cannot be tendered to the WAIRC
16                   during a hearing of an appeal unless the WAIRC grants
17                   leave under subsection (2) or (3).
18             (2)   The WAIRC may grant the chief executive officer
19                   leave to tender new evidence if --
20                     (a) the appellant consents; or
21                     (b) it is satisfied that it is in the interests of justice
22                           to do so.
23             (3)   The WAIRC may grant the appellant leave to tender
24                   new evidence if --
25                     (a) the chief executive officer consents; or
26                    (b) the WAIRC is satisfied that --
27                            (i) the appellant is likely to be able to use
28                                 the new evidence to show that the chief
29                                 executive officer has acted upon wrong
30                                 or mistaken information; or




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1                     (ii)   the new evidence might materially have
2                            affected the chief executive officer's
3                            removal decision; or
4                    (iii)   it is in the interests of justice to do so.
5      (4)   In the exercise of its discretion under subsection (3),
6            the WAIRC must have regard to --
7              (a) whether or not the appellant was aware of the
8                    substance of the new evidence before the
9                    appellant's removal; and
10             (b) whether or not the substance of the new
11                   evidence was contained in a document to which
12                   the appellant had reasonable access before the
13                   appellant's removal.

14   11CK. Opportunity to consider new evidence
15     (1)   If the chief executive officer is given leave to tender
16           new evidence under section 11CJ(2) --
17             (a) the WAIRC must give the appellant a
18                    reasonable opportunity to consider the new
19                    evidence; and
20             (b) the appellant may, without the leave of the
21                    WAIRC, tender new evidence under this
22                    section in response to the new evidence
23                    tendered by the chief executive officer.
24     (2)   If the appellant is given leave to tender new evidence
25           under section 11CJ(3), the WAIRC must give the chief
26           executive officer a reasonable opportunity to consider
27           the new evidence.




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1            11CL.   Revocation of removal after consideration of new
2                    evidence
3              (1)   If, having considered any new evidence, the chief
4                    executive officer revokes the removal under
5                    section 11CF(1) --
6                      (a) the chief executive officer must give the
7                            WAIRC notice of the revocation; and
8                      (b) the hearing of the appeal is discontinued when
9                            the WAIRC receives the notice.
10             (2)   If the chief executive officer does not give notice under
11                   subsection (1), the hearing of the appeal must continue
12                   but the chief executive officer may --
13                     (a) reformulate his or her reasons for not having
14                            confidence in the appellant's suitability to
15                            continue as a custodial officer; and
16                     (b) without the leave of the WAIRC, tender new
17                            evidence under this section in response to the
18                            new evidence tendered by the appellant.
19             (3)   Reasons reformulated under subsection (2)(a) may
20                   differ from, or be additional to, the reasons given to the
21                   appellant in the decision notice.
22             (4)   If the chief executive officer reformulates reasons
23                   under subsection (2)(a) --
24                     (a) the chief executive officer must give the
25                            WAIRC and the appellant notice in writing of
26                            the reasons before the resumption of the
27                            hearing of the appeal; and

28                    (b)    the WAIRC must consider the reasons as if
29                           they had been reasons given to the appellant in
30                           the decision notice.




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1   11CM. Application of Industrial Relations Act 1979 to
2         appeals
3           The provisions of the Industrial Relations Act 1979
4           listed in the Table apply to, and in relation to, an appeal
5           and its determination, subject to --
6              (a) any specific modifications set out in the Table;
7                    and
8             (b) all other necessary modifications.
9                                       Table
             s. 26(1)(a)
             and (b)
             s. 26(3)
             s. 27(1)(b), (c),
             (d), (e), (f), (h),
             (ha), (hb), (l),
             (m), (n), (o)
             and (v)
             s. 27(1a)
             s. 28                 The section applies only in relation
                                   to powers conferred by section 27
                                   listed in this Table.
             s. 31(1)              Paragraphs (b) and (c) do not apply
                                   but the subsection is to be read as if
                                   it contained the following
                                   paragraphs --
                                   "    (b)   with the leave of the
                                              Commission, by an
                                              agent; or
                                        (c)   by a legal practitioner. ".
             s. 31(3)



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               s. 31(5)
               s. 32               Section 32(1) is to be read as if a
                                   reference to "Where an industrial
                                   matter has been referred to the
                                   Commission the Commission shall,
                                   unless it" were a reference to
                                   "Where the Commission is dealing
                                   with an appeal instituted under the
                                   Young Offenders Act 1994
                                   section 11CH, a member of the
                                   Commission may recommend that
                                   the parties to the appeal, unless he
                                   or she".
                                   References to "the matter" and "an
                                   industrial matter" are to be read as
                                   if they were references to "the
                                   appeal".
                                   For the purposes of subsections (2)
                                   and (3), Commission does not
                                   include an industrial commissioner
                                   constituting the WAIRC to hear the
                                   appeal.
                                   Subsections (4), (6), (7) and (8) do
                                   not apply.




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    s. 33               A summons must not be issued
                        under section 33(1)(a) to the
                        Governor.
                        A summons may be issued to the
                        chief executive officer or the
                        Minister but only at the direction of
                        a commissioner appointed under
                        the Industrial Relations Act 1979 if
                        that commissioner is satisfied that
                        there are extraordinary grounds for
                        doing so.
                        A summons may not be issued to
                        any other person except at the
                        direction of a commissioner.
    s. 34               A reference in subsection (1) to "an
                        award, order, or declaration" is to
                        be read as if it were a reference to
                        "an order".
                        A reference in subsection (3) to
                        "the President, the Full Bench, or
                        the Commission" is to be read as if
                        it were a reference to "the
                        Commission".
                        A reference in subsection (4) to "no
                        award, order, declaration, finding,
                        or proceeding of the President, the
                        Full Bench, or the Commission" is
                        to be read as if it were a reference
                        to "no decision, order, finding or
                        proceeding of the Commission".
    s. 35
    s. 36



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                     s. 86                The section does not apply in
                                          relation to costs and expenses, other
                                          than expenses of witnesses.
                     s. 90                A reference in subsection (1) to
                                          "any decision of the President, the
                                          Full Bench, or the Commission in
                                          Court Session" is to be read as if it
                                          were a reference to "a decision of
                                          the Commission under the Young
                                          Offenders Act 1994 section 11CP".

1            11CN. Adjournment of appeal if appellant charged with
2                  offence
3              (1)   The chief executive officer or an appellant may apply
4                    to the WAIRC for an adjournment of the hearing of an
5                    appeal if the appellant has been --
6                      (a) charged with an offence relating to any matter,
7                            act or omission that was taken into account by
8                            the chief executive officer in deciding that he or
9                            she did not have confidence in the appellant's
10                           suitability to continue as a custodial officer; and
11                     (b) the charge has not been finally determined by a
12                           court or otherwise disposed of.
13             (2)   If an adjournment application is made by the chief
14                   executive officer, the WAIRC may adjourn the hearing
15                   of the appeal if it considers that it is in the interests of
16                   justice to do so.
17             (3)   If an adjournment application is made by the appellant,
18                   the WAIRC must adjourn the hearing of the appeal for
19                   the period (not exceeding 12 months) requested by the
20                   appellant.
21             (4)   Before the end of the period of an adjournment under
22                   this section, the chief executive officer or the appellant


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1            may apply to the WAIRC for a further adjournment
2            and, if it is in the interests of justice to do so, the
3            WAIRC may grant a further adjournment for the period
4            specified by it.
5      (5)   Subsections (2) and (4) do not affect any other power
6            of the WAIRC to grant an adjournment.

7    11CO. Resumption of appeal before end of adjournment
8            If the charge is finally determined by a court or
9            otherwise disposed of before the end of the period of
10           an adjournment under section 11CN, the chief
11           executive officer or the appellant may apply to the
12           WAIRC for the hearing of the appeal to be resumed on
13           a date specified by the WAIRC.

14   11CP.   Decision by WAIRC
15     (1)   This section applies if the WAIRC decides on an
16           appeal that the decision to take removal action relating
17           to the appellant was harsh, oppressive or unfair.
18     (2)   The WAIRC may --
19            (a) order that the appellant's removal is, and is to
20                be taken to have always been, of no effect; or
21            (b) if it is impracticable to make an order under
22                paragraph (a), order the chief executive officer
23                to pay the appellant an amount of compensation
24                for loss or injury caused by the removal.
25     (3)   In considering whether or not it is impracticable to
26           make an order under subsection (2)(a), it is relevant to
27           consider --
28             (a) whether, at the time of the appellant's removal,
29                   the position occupied by the appellant is vacant;
30                   and



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1                     (b)   whether there is another suitable vacant
2                           position in the Department.
3              (4)   If the WAIRC makes an order under subsection (2)(a),
4                    the appellant is not entitled to be paid his or her
5                    remuneration as a custodial officer for any period the
6                    appellant received a maintenance payment.
7              (5)   An order under this section may require that it be
8                    complied with within a specified time.

9            11CQ. Determining amount of compensation
10             (1)   An amount of compensation ordered under
11                   section 11CP(2)(b) must be determined in accordance
12                   with this section.
13             (2)   In determining the amount, the WAIRC must have
14                   regard to all of the following --
15                     (a) the efforts, if any, of the chief executive officer
16                           and the appellant to mitigate the loss suffered
17                           by the appellant as a result of the removal;
18                     (b) any maintenance payment received by the
19                           appellant;
20                     (c) any redress the appellant has obtained under
21                           another enactment where the evidence
22                           necessary to establish that redress is also the
23                           evidence necessary to establish on the appeal
24                           that the removal was harsh, oppressive or
25                           unfair;
26                     (d) any other matter that the WAIRC considers
27                           relevant.
28             (3)   In determining the amount, the WAIRC may have
29                   regard to the average rate of remuneration as a
30                   custodial officer received by the appellant during any
31                   relevant period of service.



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1      (4)   The amount must not exceed 12 months' remuneration
2            as a custodial officer.

3    11CR. Restriction on publication
4      (1)   If the WAIRC is satisfied that it is in the public
5            interest, it may direct that any evidence given before it,
6            or the contents of any document produced to it, on an
7            appeal --
8              (a) must not be published; or
9              (b) must not be published except in a manner, and
10                    to persons, specified by the WAIRC.
11     (2)   A person must not contravene a direction given under
12           this section.
13           Penalty: a fine of $4 000 and imprisonment for
14                12 months.

15                     Subdivision 4 -- General

16   11CS.   Effect of charge for, or conviction or acquittal of,
17           offence
18           The chief executive officer can take removal action in
19           relation to a custodial officer for a particular matter, act
20           or omission even if the matter, act or omission is an
21           element of an offence --
22             (a) with which the custodial officer has been
23                   charged; or
24             (b) of which the custodial officer has been
25                   convicted or acquitted.




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1            11CT.   Failure to comply with procedure
2                    An act or omission of the chief executive officer is not
3                    invalid, and cannot be called in question, if --
4                      (a) the act or omission comprises a failure to
5                            comply with procedure prescribed for the
6                            purposes of this Division; and
7                      (b) the failure is not substantive.

8            11CU. Transfer, standing down and leave of custodial
9                  officer
10             (1)   This Division does not derogate from the chief
11                   executive officer's power to --
12                     (a) transfer a custodial officer; or
13                     (b) stand a custodial officer down from performing
14                          that custodial officer's usual duties, with or
15                          without pay, until the custodial officer is
16                          directed by the chief executive officer to return
17                          to those duties; or
18                     (c) allocate duties to a custodial officer other than
19                          the custodial officer's usual duties.
20             (2)   If the chief executive officer stands down a custodial
21                   officer in relation to whom removal action is being
22                   taken, the chief executive officer must review the
23                   decision to stand the custodial officer down every
24                   60 days and advise the custodial officer in writing of
25                   the result of the review.
26             (3)   The chief executive officer must not direct a custodial
27                   officer in relation to whom removal action is being
28                   taken to take leave during the removal action unless the
29                   leave accrues during any period that the custodial
30                   officer is stood down from performing the custodial
31                   officer's usual duties.



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1    11CV. Review of Division
2      (1)   In this section --
3            commencement day means the day on which the
4            Custodial Legislation (Officers Discipline) Amendment
5            Act 2013 Part 3 comes into operation.
6      (2)   The Minister must carry out a review of the operation
7            and effectiveness of this Division as soon as is
8            practicable after the expiry of 24 months after the
9            commencement day and in the course of that review
10           the Minister must consider and have regard to --
11             (a) the effectiveness of this Division; and
12             (b) the need for the retention of the Division; and
13             (c) any other matters that appear to the Minister to
14                   be relevant to the operation and effectiveness of
15                   this Division.
16     (3)   Without limiting subsection (2), in carrying out the
17           review, the Minister must consult with and have regard
18           to the views of the Chief Commissioner of the
19           WAIRC, the chief executive officer and any union that
20           has custodial officers as some or all of its members.
21     (4)   The Minister must prepare a report based on the review
22           and, as soon as is practicable after the report is
23           prepared (and in any event not more than 30 months
24           after the commencement day), cause a copy of it to be
25           laid before each House of Parliament.




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     s. 17




1    17.         Part 3 Division 4 heading inserted
2                Before section 11C insert:
3


4                 Division 4 -- Management, control, security and
5                           wellbeing of young offenders
6


7    18.         Section 11C amended
8                In section 11C(1) and (2) delete "person who is appointed under
9                section 11(1) or (1a) as a".

10   19.         Section 11E amended
11         (1)   In section 11E(2) delete "officer appointed under section 11(1)
12               or (1a)," and insert:
13

14               officer,
15

16         (2)   In section 11E(3) delete "appointed under section 11(1) or
17               (1a)".

18   20.         Section 11F amended
19               In section 11F(2) delete "officer appointed under section 11(1)
20               or (1a)," and insert:
21

22               officer,
23




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                                                                              s. 21



1    21.           Part 3 Division 2 heading replaced
2                  Delete the heading to Part 3 Division 2 and insert:
3


4                Division 5 -- Arrangements with councils of Aboriginal
5                                   communities
6


7    22.           Section 169A amended
8          (1)     In section 169A(4) delete "person who is appointed under
9                  section 11(1) or (1a)" and insert:
10

11                 custodial officer
12

13         (2)     In section 169A(5) delete "person who is appointed under
14                 section 11(1) or (1a)," and insert:
15

16                 custodial officer
17
18




 


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