Police Integrity Bill 2008

Police Integrity Bill 2008

Introduction Print

EXPLANATORY MEMORANDUM

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BILL LA INTRODUCTION 13/3/2008

General

The Bill will re-establish the Office of Police Integrity under a new principal Act, set out the functions of the Office and of the Director, Police Integrity, implement recommendations from the Special Investigation Monitor's Report and make amendments to the Police Regulation Act 1958 (the "PRA") and other Acts.

Clause Notes

PART 1—PRELIMINARY

Clause 1sets out the purposes of the Bill. The purposes of the Bill are to—

• re-establish the Office of Police Integrity under a standalone Act and to set out the functions of the Office and of the Director, Police Integrity;

• amend the PRAto consolidate provisions relating to the Director, Police Integrity and Office of Police Integrity into the stand-alone Act; and

• make consequential amendments to other Acts.

Clause 2is the commencement provision. It provides that Division 1 of Part 8 of the Bill (except clause 142) comes into operation on theday after the day on which this Bill receives Royal Assent. That Division makes amendments to the PRA, intended to come into operation as soon as practicable after the passage of the Bill.

Clause 142 makes amendments to the PRA to reflect the commencement of the remainder of the Bill. Clause 142 will commence with the remainder of the Bill on a day or days to be proclaimed. All provisions of the Bill must commence by 31December 2009.

The commencement of the remainder of the Bill has been delayed to allow the Commonwealth to amend itsTelecommunications (Interception and Access) Act 1979 to replace references to the PRA with references to this Bill.

Clause 3defines various terms used in the Bill.

Clause 4provides that the Bill will bind the Crown in all its capacities.

PART 2—OFFICE OF POLICE INTEGRITY

Division 1—Office of Police Integrity

Clause 5provides that there continues to be an Office of Police Integrity ("OPI"). The Office is the same body as that established by section 102A of the PRA.

Clause 6sets out the functions and powers of the OPI. This section is modelled on section 102B of the PRA, althoughthat section did not enumerate the functions of the OPI.

Division 2—Director, Police Integrity

Clause 7provides that the OPI is to have a Director, called the Director, Police Integrity (the Director).

Clause 8sets out the objects, functions and powers of the Director. It is modelled on section 102BA of the PRAand includes in clause 8(1)(c) an additional object of the Director: "to educate Victoria Police and the general community regarding police corruption and serious misconduct, including the effect of police corruption and serious misconduct".

Clause 9provides that the Director is an independent officer of the Parliament. Subject to the Bill and other laws of the State of Victoria, the Director has complete discretion in performing his or her functions. In particular, the Director is not subject to the direction or control of the Minister in respect of his or her performance or exercise of the Director's functions or powers.

Clause 10provides that the Governor in Council may appoint an eligible person as Director. A person is eligible to be appointed as Director if the Governor in Council is satisfied that the person meets the requirements of subclause (2). The Director must receive the written approval of the Governor in Council before undertaking any other employment, business, trade or profession. The Public Administration Act 2004does not apply to the Director in respect of his or her office except as provided in section 16 of that Act.

Clause 10 is modelled on section 102AB of the PRA(as inserted into the PRA by the Police Regulation Amendment Act 2007).

Clause 11provides that the Director is entitled to be paid the remuneration and allowances that are determined by the Governor in Council. The remuneration cannot be reduced during the Director's term in office unless the Director consents to the reduction.

Clause 11 is modelled on section 102AC of the PRA(as inserted into the PRA by the Police Regulation Amendment Act 2007).

Clause 12provides that the Director holds office on the terms and conditions specified in his or her instrument of appointment.

Clause 12 is modelled on section 102AD of the PRA(as inserted into the PRA by the Police Regulation Amendment Act 2007).

Clause 13provides that the Director will cease to hold office in certain circumstances. The Director may resign from his office by notice in writing delivered to the Governor in Council. The Director will cease to hold office if he or she becomes an insolvent under administration, is convicted of an indictable offence (or an offence that, if committed in Victoria, would be an indictable offence) or nominates for election for the Parliament of the Commonwealth or a State or Territory of the Commonwealth.

It provides that the Director may be removed from office under clause 14.

Clause 13 is modelled on section 102AE of the PRA(as inserted into the PRA by the Police Regulation Amendment Act 2007).

Clause 14permits the Governor in Council to suspend the Director on the grounds of misconduct, neglect of duty, inability to perform the duties of office, or any other ground on which the Governor in Council is satisfied that the Director is unfit to hold office.

The Minister must cause a full statement of the grounds of suspension to be presented to each House of Parliament.

The Governor in Council must remove the Director from office if, within 20 sitting days, each House of Parliament declares that the Director ought to be removed from office. If such a declaration is not made within the time specified, the Governor inCouncil must remove the suspension and restore the Director to office.

Clause 14 is modelled on section 102AF of the PRA(as inserted into the PRA by the Police Regulation Amendment Act 2007).

Clause 15provides that an Acting Director may be appointed during a vacancy in the office of Director, during periods when the Director is absent from duty, or where the Director is unable to perform the duties of the office. The period of the acting appointment must not exceed 6 months, and the Acting Director is eligible for reappointment. The Governor in Council may remove the Acting Director from office at any time.

It provides that the Acting Director has the same powers and duties as the Director, and is entitled to be paid the remuneration and allowances that the Director would have been entitled to for performing those duties.

Clause 15 is modelled on section 102AG of the PRA(as inserted into the PRA by the Police Regulation Amendment Act 2007).

Clause 16requires the Director or Acting Director to take an oath or make an affirmation before performing any of the duties of the office of Director.

Clause 16 is modelled on section 102D(1) and (4)(a) of the PRA.

Division 3—Staffing and other matters

Clause 17provides that the Director may employ and second staff, and engage persons or bodies to provide services. The Director may employ persons under Part 3 of the Public Administration Act 2004, engage persons or bodies to provide services, take members of Victoria Police on secondment, or take persons on secondment from other bodies.

The Public Administration Act 2004 does not apply to a member of Victoria Police who is seconded to the OPI or a person or body engaged to provide services under this Bill. TheDirector may terminate a secondment at will.

Clause 17 is modelled on section 102E of the PRA.

Clause 18requires a member of staff of the OPI to take an oath or make an affirmation before performing any of the duties of a member of staff of the OPI.

The Director may require a person or member of a body engaged to provide services under clause 17(1)(b), or an officer or employee of such a person or body, to take an oath or make an affirmation administered by the Director.

Clause 18 is modelled on sections 102D(2), (3) and (4)(b) of the PRA.

Clause 19provides that the Director may request the Chief Commissioner of Victoria Police to second members of Victoria Police to the OPI to assist the Director in the performance of the functions of the Office or the Director.

The Chief Commissioner must make available for secondment as many members of Victoria Police as the Chief Commissioner thinks necessary.

The Director may decline to take on a member seconded by the Chief Commissioner and may require the Chief Commissioner to make another member available for secondment.

The Director may, if he or she reasonably suspects that a seconded member of Victoria Police has committed a breach of discipline while seconded, refer the matter to the Chief Commissioner to determine whether disciplinary action should be taken under Part IV of the PRA.

Clause 19 is modelled on section 102EA of the PRA.

Clause 20sets out the effect of a secondment of a member Victoria Police to the OPI.

During a secondment, a seconded member of Victoria Police issubject to the sole direction and control of the Director. TheDirector will pay the member's remuneration during the period ofsecondment.

The seconded member retains all his or her powers and duties as a member of Victoria Police and his or her immunity in respect of the exercise of those powers or performance of those duties.

Neither the Chief Commissioner nor any other member of Victoria Police has the authority to give instructions to the seconded member. The member does not commit a breach of discipline for failing to comply with a standing order or instruction of the Chief Commissioner.

The Chief Commissioner cannot require a member of Victoria Police who is or has been seconded to the OPI to disclose any information that relates to the performance of the member's duties while on secondment, except where the Director consents to the use of the information for the purposes of a disciplinary investigation or inquiry under Part IV of the PRA.

A member's rank is not affected by a secondment to the OPI. Any period of secondment is taken to be a period of service with Victoria Police.

Clause 20 is modelled on section 102EB of the PRA.

Clause 21permits the Director to delegate certain powers of the Director under certain circumstances by instrument. The Director may only delegate a coercive power (as defined in clause 3) or a power under clause 24 (allowing disclosure of information to law enforcement agencies and corresponding authorities) to a senior relevant person as defined. A senior relevant person is a person who has the qualifications that would make the eligible for appointment as the Director under clause 10. The Director may delegate any other power other than a coercive power or power under clause 24 to a relevant person as defined.

Division 4—Confidentiality and reporting

Clause 22imposes confidentiality requirements on members of OPI personnel. It provides that it is an offence for a member of OPI personnel to disclose information obtained or received in the course or as a result of the performance of the functions of the Director, except as permitted by the clause. The maximum penalty for this offence is 120 penalty units or imprisonment for 12 months or both.

Proceedings for the offence may only be instituted by the Director, or by or with the consent of the Director of Public Prosecutions.

Clause 22 is modelled on section 102G of the PRA.

Clause 23imposes confidentiality requirements on persons other than members of OPI personnel. It provides that it is an offence for a person to disclose a restricted matter except as permitted by the section. It defines restricted matter for the purposes of the clause. The maximum penalty for this offence is 120 penalty units or imprisonment for 12 months or both.

Clause 24permits the Director to disclose information to the Chief Commissioner or another member of Victoria Police where that information—

• relates to a matter relevant to the performance of functions or duties by the Chief Commissioner or another member; or

• arises out of a joint undertaking between the OPI and Victoria Police.

It also permits the disclosure of information to corresponding authorities of other jurisdictions, where that information relates to a matter under an Act of that jurisdiction or arising out of a joint undertaking between Victoria and that other jurisdiction.

Clauses 24(2) and (3) are modelled on section 102H of the PRA.

Clause 25provides that the Director may disclose information to the Privacy Commissioner, where that information is relevant to the performance of functions or duties by the Privacy Commissioner.

Clause 25 is modelled on section 102I of the PRA.

Clause 26ensures that in appropriate circumstances the Director may share relevant information with the Ombudsman similar to other information sharing provisions with the Privacy Commissioner and corresponding authorities.

Clause 26 is modelled on section 102IA of the PRA(as inserted into the PRAby the Police Regulation Amendment Act 2007).

Clause 27provides that the Director may disclose information to the Auditor-General, where that information is relevant to the performance of functions or duties by the Auditor-General.

Clause 28provides that the Director must report to Parliament on the performance of his or her functions during each financial year. Itfurther provides that the Director may report to Parliament at any time on any matter arising in connection with the performance of his or her functions.

Clauses 28(1) and (2) are modelled on section 102J of the PRA.

Clause 29outlines the process for the transmission of reports to Parliament under clause 28.

Clause 29 is modelled on section 102K of the PRA.

Division 5—Testing of OPI personnel for alcohol or drugs of dependence

Clause 30defines the terms critical incident,drug of dependence, registered medical practitioner and serious injury for the purposes of Division 5 of Part 2.

The definitions are closely modelled on the definitions of these terms for the drug and alcohol testing scheme for members of Victoria Police in Division 4A of Part IV of the PRA (as inserted into the PRA by the Police Regulation Amendment Act 2007).

Clause 31provides a power for the Director to direct a member of OPI personnel to provide a sample of breath, urine or blood for testing for the presence of drugs of dependence or alcohol in certain circumstances.

The Director can only require such tests if satisfied that the result is relevant to the member's performance of his or her duties or to any disciplinary action that may be taken or is being taken, against the member.

Clause 31(3) requires that, in the case of a critical incident involving the use of a motor vehicle by a member (including as a passenger), the direction must be given within 3 hours after the incident occurred, and in the case of any other critical incident, within a reasonable time after the critical incident occurred.

Clause 31(4) provides a protection against liability for a registered medical practitioner in respect of anything done by him or her in the course of taking a sample which he or she believes on reasonable grounds was required or allowed to be taken under this Division.

Clause 31(5) provides that nothing in Division 5 affects the operation of Part 5 of the Road Safety Act 1986. This means that a member of OPI personnel involved in a critical incident will still be subject to all relevant road safety processes, charges and requirements and that these will take precedence over the processes of this Bill. A driver may be tested under both testing regimes, as the road safety testing only applies to a limited range of drugs, whereas the new regime will apply to all drugs of dependence as defined in this Bill.

Clause 31 is modelled on section 85B of the PRA (as inserted into the PRA by the Police Regulation Amendment Act 2007).

Clause 32provides that the Director may consider the result of a sample taken under Division 5 when managing the member's performance of his or her duties or in taking any disciplinary action against the member.

Clause 32 is modelled on section 85C of the PRA(as inserted into the PRA by the Police Regulation Amendment Act 2007).

Clause 33provides that a registered medical practitioner may, at the direction of the Director, take a blood sample for testing for the presence of alcohol or a drug of dependence from a member of OPI personnel involved in a critical incident who is unconscious or otherwise unable to comply with a direction to provide a sample. This will allow a sample to be taken in a relevant time period for analysis purposes even if the member cannot consent at that time.

However, the member may refuse to consent to the use of any evidence derived from the sample when they become conscious. Clause 33(2) provides that, when the member regains consciousness or becomes able to comply with a direction, the member must be advised that—

• a sample has been taken; and

• he or she may refuse to consent to the use of any evidence derived from such sample; and

• if the member is a member of Victoria Police, refusal to consent to the use of the evidence constitutes a breach of discipline; and

• if the member is not a member of Victoria Police, refusal may constitute grounds for disciplinary action against the member.

The clause provides that evidence obtained from a sample under clause 33 must be destroyed if the member refuses to consent tothe use of the sample. The Director must destroy any sample taken under clause 33 where the member refuses to consent to the use of the sample.

The clause further provides that the operation of the clause does not affect the operation of Part 5 of the Road Safety Act 1986 with respect to a sample taken under that Part from a person who is unconscious or otherwise unable to provide a sample. That is, a sample or evidence taken under road safety legislation whilst a person is unconscious will not have to be destroyed.

Clause 33 is modelled on section 85D of the PRA(as inserted into the PRA by the Police Regulation Amendment Act 2007).

Clause 34provides that evidence from a sample obtained under clauses 31 or 33 is generally inadmissible in any proceedings, including coronial inquests and inquiries, except for—

• proceedings under the Accident Compensation Act 1985 to rebut or support a claim that an injury was contributed to by the presence of alcohol or drugs in a member's system; or

• prosecutions under the Occupational Health and Safety Act 2004 to rebut or support a claim that alcohol or drugs in a member's system contributed to the offence charged; or

• proceedings arising out of a critical incident.

Evidence obtained under clause 33 cannot be used for these proceedings if the member from whom the sample was taken refuses to consent to its use.

Clause 34 is modelled on section 85E of the PRA(as inserted into the PRA by the Police Regulation Amendment Act 2007).

Clause 35provides that the Director must ensure that the result of any test must be handled in accordance with the regulations in respect of the confidentiality of test results.