Law Enforcement Conduct Commission Act 2016 (NSW)
An Act to constitute the Law Enforcement Conduct Commission and to define its functions; to repeal the Police Integrity Commission Act 1996 and amend Part 8A of the Police Act 1990 and the Ombudsman Act 1974; and for other purposes.
This Act is the Law Enforcement Conduct Commission Act 2016.
This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2).
Parts 1–3 of, and Schedules 1–3 and 7 to, this Act commence on the date of assent to this Act.
The objects of this Act are as follows—
(a) to promote the integrity and good repute of the NSW Police Force and the Crime Commission by ensuring that they properly carry out their functions and responsibilities in relation to the handling of complaints (and information that the Commission becomes aware of otherwise than through a complaint that indicates or suggests conduct is (or could be) officer misconduct or officer maladministration or agency maladministration),
(b) to provide for the independent detection, investigation and exposure of serious misconduct and serious maladministration within the NSW Police Force and the Crime Commission that may have occurred, be occurring, be about to occur or that is likely to occur,
(c) to provide for independent oversight and review (including, where appropriate, real time monitoring and review) of the investigation by the NSW Police Force of misconduct matters concerning the conduct of its members and the Crime Commission concerning its officers,
(d) to prevent officer misconduct and officer maladministration and agency maladministration within the NSW Police Force and the Crime Commission by—
(i) providing for the identification of systemic issues that are likely to be conducive to the occurrence of officer misconduct, officer maladministration and agency maladministration, and
(ii) assessing the effectiveness and appropriateness of their procedures relating to the legality and propriety of activities of their members and officers, and
(iii) encouraging collaborative evaluation of opportunities for, and implementation of, desirable changes in such procedures, and
(iv) making recommendations with respect to education and training about prevention of officer misconduct, officer maladministration and agency maladministration,
(e) to ensure that agencies work collaboratively to support and promote the prevention of officer misconduct, officer maladministration and agency maladministration and to improve their processes and systems,
(f) to recognise the primary responsibilities of the NSW Police Force and Crime Commission to investigate and prevent officer misconduct and officer maladministration within those agencies and agency maladministration while providing for oversight of those functions,
(g) to foster an atmosphere in which complaints, provision of other information about misconduct and independent oversight are viewed positively as ways of preventing officer misconduct, officer maladministration and agency maladministration,
(h) to provide for independent oversight and real time monitoring of critical incident investigations undertaken by the NSW Police Force,
(i) to provide for the scrutiny of the exercise of powers by the Law Enforcement Conduct Commission and its officers by an Inspector and for the Commission and for the Inspector to be accountable to Parliament,
(j) to provide for the oversight by the Inspector of the use of covert powers under various Acts.
In this Act—
(a) an investigation by the Crime Commission under the Crime Commission Act 2012, or
(b) action taken by the Crime Commissioner to deal with an allegation of misconduct by a Crime Commission officer under the Government Sector Employment Act 2013.
(a) the Crime Commissioner for the Crime Commission,
(b) an Assistant Commissioner for the Crime Commission,
(c) any other officer of the Crime Commission within the meaning of the Crime Commission Act 2012.
(a) a complaint, or
(b) misconduct information.
(a) an acting Children’s Guardian,
(b) a Deputy Children’s Guardian,
(c) an Assistant Children’s Guardian.
(a) a Commissioner,
(b) an Assistant Commissioner,
(c) a member of staff of the Commission.
(a) an acting Ombudsman,
(b) a Deputy Ombudsman,
(c) an Assistant Ombudsman.
(a) in relation to an agency complaint or misconduct information about conduct of the NSW Police Force that is (or could be) agency maladministration—investigation by the NSW Police Force under Part 8A of the Police Act 1990, or
(b) in relation to a police complaint or misconduct information about conduct of a police officer that is (or could be) police misconduct or officer maladministration—investigation by the NSW Police Force under Part 8A of the Police Act 1990, or
(c) in relation to an administrative employee complaint or misconduct information about conduct of an administrative employee that is (or could be) administrative employee misconduct or officer maladministration—action taken by the Commissioner of Police to deal with an allegation of misconduct by an administrative employee under the Government Sector Employment Act 2013.
Note. The Government Sector Employment Regulation 2014 prescribes that part of the NSW Police Force comprising administrative employees as a government sector agency for the purposes of sections 69 and 70 of the Government Sector Employment Act 2013 and Part 8 of the Government Sector Employment Rules 2014.
(a) a requirement under section 54 to produce a statement of information,
(b) a requirement under section 55 to produce a document or other thing,
(c) a power under section 69 to summon a person to produce a document or other thing.
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
Notes included in this Act do not form part of this Act.
A reference in this Act to a person who has
(a) is, or is qualified to be appointed as, a Judge or other judicial officer of a superior court of record of the State or of any other State or Territory or of Australia, or
(b) is a former Judge or judicial officer of such a court.
Examples of judicial officers of superior courts of record are Judges and Justices of a Supreme Court of any State or Territory or of the High Court, Federal Court or Federal Circuit and Family Court of Australia (Division 1).
In this Act, a reference to a Presiding Officer of a House of Parliament is a reference to the President of the Legislative Council or the Speaker of the Legislative Assembly.
If there is a vacancy in the office of President, the reference to the President is taken to be a reference to the Clerk of the Legislative Council.
If there is a vacancy in the office of Speaker, the reference to the Speaker is taken to be a reference to the Clerk of the Legislative Assembly.
A reference in this Act to an examination before the Commission or anything done or omitted by, to or in relation to an examination before the Commission includes a reference to an examination before, or a thing done or omitted by, to or in relation to the examination by an examining Commissioner.
The Commission may designate an officer of the Commission as an
(a) the officer has served for at least 5 years in one or more of the following capacities—
(i) as a member of the Australian Federal Police,
(ii) as a member of the Police Force of another State or Territory,
(iii) as a member of the Police Force of any prescribed foreign country, and
(b) the Commission is satisfied after inquiry that the officer’s service in any such capacity was satisfactory, and
(c) the officer is not a police officer or former police officer of New South Wales.
In this section—
(a) any country that is, or was, a member of the Commonwealth of Nations,
(b) any country that is, or was, a member of the European Union,
(c) the Special Administrative Region of the People’s Republic of China known as Hong Kong,
(d) the United States of America,
(e) any other country prescribed by the regulations.
For the purposes of this Act,
(a) whether or not it also involves participants who are not police officers, and
(b) whether or not it occurs while the police officer is officially on duty, and
(c) whether or not it occurred before the commencement of this subsection, and
(d) whether or not it occurred outside the State or outside Australia.
For the purposes of this Act,
(a) whether or not it also involves participants who are not administrative employees, and
(b) whether or not it occurs while the administrative employee is officially on duty, and
(c) whether or not it occurred before the commencement of this subsection, and
(d) whether or not it occurred outside the State or outside Australia.
For the purposes of this Act,
(a) whether or not it also involves participants who are not Crime Commission officers, and
(b) whether or not it occurs while the Crime Commission officer is officially on duty, and
(c) whether or not it occurred before the commencement of this subsection, and
(d) whether or not it occurred outside the State or outside Australia.
Police misconduct, administrative employee misconduct or Crime Commission officer misconduct can involve (but is not limited to) any of the following conduct by a police officer, administrative employee or Crime Commission officer respectively—
(a) conduct of the officer or employee that constitutes a criminal offence,
(b) conduct of the officer or employee that constitutes corrupt conduct,
(c) conduct of the officer or employee that constitutes unlawful conduct (not being a criminal offence or corrupt conduct),
(d) conduct of the officer or employee that constitutes a disciplinary infringement.
Conduct may be dealt with, or continue to be dealt with, under this Act even though any police officer, administrative employee or Crime Commission officer involved is no longer a police officer, administrative employee or Crime Commission officer (but only in relation to conduct occurring while he or she was a police officer, administrative employee or Crime Commission officer). Accordingly, references in this Act to a police officer, administrative employee or Crime Commission officer extend, where appropriate, to include a former police officer, administrative employee and Crime Commission officer, respectively.
For the purposes of this Act,
(a) conduct of a police officer, administrative employee or Crime Commission officer that could result in prosecution of the officer or employee for a serious offence or serious disciplinary action against the officer or employee for a disciplinary infringement,
(b) a pattern of officer misconduct, officer maladministration or agency maladministration carried out on more than one occasion, or that involves more than one participant, that is indicative of systemic issues that could adversely reflect on the integrity and good repute of the NSW Police Force or the Crime Commission,
(c) corrupt conduct of a police officer, administrative employee or Crime Commission officer.
In this section—
For the purposes of this Act,
(a) that is unlawful (that is, constitutes an offence or is corrupt conduct or is otherwise unlawful), or
(b) that, although it is not unlawful—
(i) is unreasonable, unjust, oppressive or improperly discriminatory in its effect, or
(ii) arises, wholly or in part, from improper motives, or
(iii) arises, wholly or in part, from a decision that has taken irrelevant matters into consideration, or
(iv) arises, wholly or in part, from a mistake of law or fact, or
(v) is conduct of a kind for which reasons should have (but have not) been given, or
(c) that is engaged in in accordance with a law or established practice, being a law or practice that is, or may be, unreasonable, unjust, oppressive or improperly discriminatory in its effect.
For the purposes of this Act,
(a) is unreasonable, unjust, oppressive or improperly discriminatory in its effect, or
(b) arises, wholly or in part, from improper motives, or
(c) arises, wholly or in part, from a decision that has taken irrelevant matters into consideration, or
(d) arises, wholly or in part, from a mistake of law or fact, or
(e) is conduct of a kind for which reasons should have (but have not) been given.
For the purposes of this Act, agency maladministration or officer maladministration is
(a) in the case of an agency—if the conduct involved is unlawful (that is, constitutes an offence or is corrupt conduct or is otherwise unlawful), or
(b) in the case of an agency or officer—if the conduct involved is of a serious nature and, although it is not unlawful—
(i) is unreasonable, unjust, oppressive or improperly discriminatory in its effect, or
(ii) arises, wholly or in part, from improper motives.
In this section—
(a) conduct of the Crime Commission in relation to a decision that could be the subject of an application for review by the Supreme Court under section 33 of the Crime Commission Act 2012,
(b) conduct of the Crime Commission or Crime Commission officers in relation to the carrying on or determination of a hearing under Division 4 of Part 2 of the Crime Commission Act 2012 or any proceeding relating to an investigation conducted by the Crime Commission,
(c) conduct of the Crime Commission or its officers where acting as a legal advisor to a public authority or as a legal representative of a public authority (including as counsel assisting a public authority),
(d) conduct of the Crime Commission or its officers relating to the carrying on of any proceedings before a court (including a coronial inquiry and committal proceedings before a magistrate) or before any other person or body before whom witnesses may be compelled to appear and give evidence,
(e) conduct in carrying out the functions of an executive officer or member of the Management Committee of the Crime Commission.
In this Act—
(a) of a police officer (whether or not named or identified)—is (or could be) conduct that falls within the description of police misconduct or officer maladministration (a
police complaint ), or(b) of a Crime Commission officer (whether or not named or identified)—is (or could be) conduct that falls within the description of Crime Commission officer misconduct or officer maladministration (a
Crime Commission complaint ), or(c) of an administrative employee (whether or not named or identified)—is (or could be) conduct that falls within the description of administrative employee misconduct or officer maladministration (an
administrative employee complaint ), or(d) of the NSW Police Force or the Crime Commission—is (or could be) conduct that falls within the description of agency maladministration (an
agency complaint ).
In this Act—
Information may include, for example, a sound recording or transcript of an intercepted telephone conversation or report of an audit of officer access to police information systems.
In this section—
Without limiting the agreements that may be entered into, the Commission may from time to time enter into written agreements with the Commissioner of Police and the Crime Commissioner concerning all or any of the following—
(a) the kinds of misconduct matters that should or should not be investigated,
(b) the kinds of misconduct matters required to be notified to the Commission (
notifiable misconduct matters ),(c) the kinds of misconduct matters that would ordinarily be investigated by the Commissioner of Police, the Crime Commission or the Commission,
(d) the kinds of misconduct matters that should or should not be the subject of oversight by the Commission under Part 7 and the form of such oversight,
(e) the manner of dealing with misconduct matters that should not be the subject of such oversight,
(f) the level of detail required in notifying or referring a misconduct matter to the Commission, Commissioner of Police or Crime Commissioner,
(g) the giving of notice with respect to misconduct matters to the Commission, the Commissioner of Police, the Crime Commissioner, the officer the subject of the misconduct matter, complainants and referring authorities,
(h) arrangements with respect to the monitoring by the Commission under section 101 of police investigations and Crime Commission investigations of misconduct matters,
(i) the kind of misconduct information that is required to be registered in the misconduct matters information system,
(j) any other matter prescribed by the regulations.
The Commission may issue guidelines reflecting agreements entered into under this section.
If the Commission, the Commissioner of Police or the Crime Commissioner does not enter into an agreement on any matter referred to in subsection (1), the Commission’s opinion is to be determinative as to the contents of any guideline concerning the matter and the application of the guideline.
The Commission is to make the agreements and guidelines publicly available.
In this Act—
(a) conduct an examination under section 61, or
(b) summon a witness under section 69 or contemnor under section 93 (1), or
(c) punish for contempt under section 92 or 93, or
(d) arrest a witness, or person in contempt, under section 71 or 93 (3), respectively, or
(e) order attendance of an inmate under section 78, or
(f) issue a search warrant under section 79 (2).
For the purposes of this Act—
(a) if the agency is the NSW Police Force—the Commissioner of Police, or
(b) if the agency is the Crime Commission—the Crime Commissioner, or
(c) in any other case—the chief executive officer or other principal officer of the agency.
(a) one or more staff members of the agency nominated under this section as the nominated contacts for the investigation, or
(b) if a staff member is not nominated—the head of the agency.
The head of an agency may nominate a staff member of the agency as the contact for an investigation if the Commission—
(a) decides to deal with a misconduct matter by referring it to that agency for investigation, or
(b) decides to deal with a misconduct matter by overseeing an investigation of the misconduct matter by that agency, or
(c) decides to oversee an investigation of a critical incident by that agency.
There is constituted by this Act a corporation with the corporate name of the Law Enforcement Conduct Commission.
The Commission consists of a Chief Commissioner and 1 other Commissioner appointed by the Governor.
The other Commissioner may only be appointed with the concurrence of the Chief Commissioner.
(Repealed)
A person is not eligible to be appointed as a Commissioner or to act in the office of a Commissioner unless the person has special legal qualifications.
A person is not eligible to be appointed as the other Commissioner or to act in that office if the person is a police officer or a former police officer.
A person is not eligible to be appointed as a member of the Commission or to act in that office if the person is a member of the Legislative Council or of the Legislative Assembly or is a member of a House of Parliament or legislature of another State or Territory or of the Commonwealth.
Schedule 1 contains provisions relating to the Commissioners.
Except as otherwise provided by this section, the functions of the Commission are exercisable by a Commissioner, and any act, matter or thing done in the name of, or on behalf of, the Commission by a Commissioner is taken to have been done by the Commission.
A decision of the Commission to exercise any of the following functions must be authorised by the Chief Commissioner after consulting with the other Commissioner—
(a) a decision under sections 44 (1) (a) and 51 (1), made after taking into account the relevant factors set out in sections 45 and 46, that conduct is (or could be) serious misconduct, serious maladministration, police misconduct, Crime Commission officer misconduct, officer maladministration or agency maladministration and should be investigated,
(b) a decision to hold an examination under Division 3 of Part 6 (except where there is a duty to hold an examination into conduct referred by Parliament for investigation under section 196),
(c) a decision under Division 3 of Part 6 to hold an examination (or part of an examination) in public,
(d) a decision under section 79 (2) that there are reasonable grounds to issue a search warrant,
(e) a decision under section 23 (1) to delegate a function of the Commission.
A decision of the Commission referred to in subsection (2) is presumed to have been duly authorised unless the contrary is established.
A decision of the Chief Commissioner prevails in the event of an inconsistency in the decisions of Commissioners with respect to a matter.
The Governor may, with the concurrence of the Chief Commissioner, appoint one or more Assistant Commissioners for the Commission.
An Assistant Commissioner has and may exercise the functions conferred or imposed on an Assistant Commissioner by or under this or any other Act.
Without limiting subsection (2), an Assistant Commissioner may be appointed—
(a) to investigate (including by an examination) a particular instance or instances of conduct that is (or could be) serious misconduct or serious maladministration that the Commission has decided in accordance with section 19 (2) is to be investigated or to assist a Commissioner in carrying out such an investigation or any other investigation, or
(b) to assist the Commission or one or more of the Commissioners in the exercise of their functions in relation to the oversight of a police investigation, an investigation of a critical incident or a Crime Commission investigation.
If an Assistant Commissioner is appointed to exercise a function with respect to investigation (including by examination) of conduct, a reference in this Act to a power (including a coercive examination power) that may be exercised by a Commissioner in exercising that function extends to the Assistant Commissioner.
A person is not eligible to be appointed as an Assistant Commissioner or to act in that office unless the person has special legal qualifications.
A person is not eligible to be appointed as an Assistant Commissioner to execute any function under Part 6, or to assist a Commissioner in the execution of any function under Part 6 relating to the investigation of serious misconduct or serious maladministration, or to act in the office of an Assistant Commissioner appointed for such a purpose if the person is a police officer or a former police officer.
A person is not eligible to be appointed as an Assistant Commissioner or to act in that office if the person is a member of the Legislative Council or of the Legislative Assembly or is a member of a House of Parliament or legislature of another State or Territory or of the Commonwealth.
Schedule 1 contains provisions relating to the Assistant Commissioners.
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commission and the Commissioners to exercise their functions. The persons so employed are to be employed in a separate Public Service agency and may (together with the persons referred to in subsections (2) and (3)) be referred to as members of staff of the Commission.
Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commission makes use of) may be referred to as officers or employees, or members of staff, of the Commission. Section 47A of the Constitution Act 1902 precludes the Commission from employing staff. The employer functions of the Government are to be exercised by a Chief Executive Officer (other than the functions of employing and terminating the employment of the Chief Executive Officer).
The Commission may also—
(a) arrange for the use of the services of any staff or facilities of a Public Service agency or a local or public authority, or
(b) arrange for the use of the services of any staff who are employed by or for or assigned to the person who is Chief Commissioner, in his or her capacity as the holder of some other position (for example, as a Judge), or
(c) engage persons as consultants to the Commission or to perform services for it.
Without limiting subsection (2), the Commission may arrange—
(a) for the use of the services of a police officer (whether by secondment or otherwise) to assist the Commission in carrying out any function other than a coercive examination power, or
(b) for—
(i) a member of the Australian Federal Police, or
(ii) a member of the Police Force of another State or Territory, or
(iii) a member of the Police Force of any prescribed foreign country,
to be seconded or otherwise engaged to assist the Commission.
However, police officers and former police officers cannot be appointed to, employed in or engaged by, or seconded to the service of, the Commission for the purpose of exercising or assisting in the exercise of any power conferred under Part 6 with respect to conduct that is (or could be) serious misconduct or serious maladministration and arrangements cannot be made under subsection (3) for the use of their services for such a purpose.
Subsection (4) does not, however, prevent arrangements being made by the Commission for police officers (in their capacity as police officers) to be otherwise involved in—
(a) the work of task forces with which the Commission is involved, or
(b) carrying out or participating in investigations for or on behalf of or under the direction of the Commission.
While performing services for the Commission, a police officer retains rank, seniority and remuneration as a police officer and may continue to act as a constable.
The Commission and Commissioners are not subject to the control or direction of the Minister in the exercise of their functions.
The Commission may delegate to an authorised person any of the functions of the Commission or of a Commissioner, other than this power of delegation.
A delegate may sub-delegate to an authorised person any function delegated under subsection (1) if the delegate is authorised in writing to do so.
The following functions may not be delegated—
(a) a function conferred under section 19 (2),
(b) a coercive examination power.
Subsection (3)(a) prevents the delegation of functions of the Commission that may only be exercised by the Chief Commissioner after consulting with the other Commissioner.
Any other function conferred on the Commission or a Commissioner under Part 6 with respect to conduct that is (or could be) serious misconduct or serious maladministration may not be delegated to a person who is a police officer or former police officer.
In this section—
(a) a Commissioner, or
(b) an Assistant Commissioner, or
(c) the Chief Executive Officer or any other member of staff of the Commission.
The Commission may, in connection with its functions—
(a) arrange for the establishment of task forces within the State, and
(b) seek the establishment of joint task forces with authorities of the Commonwealth or other States or Territories, and
(c) co-operate with State task forces, Commonwealth task forces, joint task forces or other task forces, and
(d) co-ordinate or co-operate in co-ordinating any such task forces.
Participation of a person in the work of a task force does not affect or alter the employment status of the person.
The Commission has the functions conferred or imposed on it by or under this or any other Act.
In exercising its functions, the Commission is to have regard to the objects of this Act.
The functions of the Commission with respect to misconduct matters include the following—
(a) to receive misconduct matters directly or that are notified to it in accordance with misconduct matters management guidelines,
(b) in accordance with misconduct matters management guidelines—
(i) to detect, investigate (including by carrying out examinations in appropriate cases) and expose conduct that is (or could be) serious misconduct or serious maladministration, and
(ii) to refer to the Commissioner of Police for police investigation misconduct matters relating to conduct of members of the NSW Police Force that are (or could be) officer misconduct or officer maladministration and conduct of the NSW Police Force that is (or could be) agency maladministration (other than conduct referred to in subparagraph (i)), and
(iii) to refer to the Crime Commissioner for Crime Commission investigation misconduct matters relating to conduct of Crime Commission officers that are (or could be) officer misconduct or officer maladministration and conduct of the Crime Commission that is (or could be) agency maladministration (other than conduct referred to in subparagraph (i)), and
(iv) to refer misconduct matters for investigation or action by other appropriate authorities, and
(v) to oversee the investigation or handling of misconduct matters referred by it to the Commissioner of Police, Crime Commissioner or other appropriate authorities.
The Commission may—
(a) make recommendations concerning officer misconduct, officer maladministration and agency maladministration education and prevention programs, and similar programs, conducted within the NSW Police Force or the Crime Commission or by other bodies for the NSW Police Force or Crime Commission, and
(b) assess the effectiveness and appropriateness of the procedures of those agencies for the ascertainment of whether there is officer misconduct, officer maladministration or agency maladministration or any circumstances that may be conducive to such misconduct or maladministration and make recommendations concerning those procedures, and
(c) advise those agencies on ways in which officer misconduct, officer maladministration and agency maladministration may be prevented and make recommendations about the action they should take.
Without limiting subsection (1), the Commission has the functions of working collaboratively (so far as practicable) with the NSW Police Force and the Crime Commission with respect to education of the officers and members of those agencies about officer misconduct, officer maladministration and agency maladministration and the support and promotion of initiatives of those agencies directed at the prevention and elimination of such misconduct and maladministration.
The Commission may, at any time, prepare a report on matters arising out of the exercise of the Commission’s functions under this section.
The report may include such comments and recommendations as the Commission thinks fit.
The Commission is to provide a copy of the report to the Minister and the Commissioner of Police or the Crime Commissioner (as appropriate).
If the Commission makes a recommendation under this section it may require the Commissioner of Police or Crime Commissioner to advise the Commission whether the Commissioner intends to implement the recommendation and, if not, the reasons for not doing so.
The functions of the Commission under this section are administrative functions for the purposes of section 27 (2) of the Privacy and Personal Information Protection Act 1998 and section 17 of the Health Records and Information Privacy Act 2002.
Subsection (7) makes it clear that the function of the Commission under this section is an administrative function for the purposes of the provisions concerned. Accordingly, the Commission and its staff, the Commissioner of Police and the Crime Commissioner are required by the subsection to comply with applicable information protection principles, Health Privacy Principles and health privacy codes of practice.
The functions of the Commission include the following—
(a) to assemble evidence that may be admissible in the prosecution of a person for a criminal offence against the law of the State and to give any such evidence to the Director of Public Prosecutions,
(b) to assemble evidence that may be used in—
(i) the investigation (whether by the Commission or by any other body) of a misconduct matter, or
(ii) deciding whether to take action under section 173 or 181D of the Police Act 1990,
and to give any such evidence to the Minister, the Commissioner of Police, Crime Commissioner or other appropriate authority in the State,
(c) to assemble evidence that may be used in deciding to take disciplinary action against a person (other than a police officer) for a disciplinary infringement under the law of the State and to give any such evidence to the appropriate authority in the State,
(d) to assemble evidence obtained in the course of investigations by the Commission (being evidence that may be admissible in the prosecution of a person for a criminal offence against or a disciplinary infringement under the law of the Commonwealth or another State or Territory) and give it to the Attorney General, and Minister for the Prevention of Domestic Violence or to the appropriate prosecutorial authority in the jurisdiction concerned.
Evidence of the kind referred to in subsection (1) may be accompanied by any observations that the Commission thinks appropriate and (in the case of evidence given to the Attorney General, and Minister for the Prevention of Domestic Violence) recommendations as to what action the Commission considers should be taken in relation to the evidence.
A copy or detailed description of any evidence given to the appropriate prosecutorial authority in another jurisdiction, together with a copy of any accompanying observations, is to be given to the Attorney General, and Minister for the Prevention of Domestic Violence.
The Attorney General, and Minister for the Prevention of Domestic Violence may consent to the Director of Public Prosecutions and certain other officers instituting and conducting prosecutions for Commonwealth offences—see section 24 of the Director of Public Prosecutions Act 1986.
If the Commission obtains any information in the course of investigations by the Commission relating to the exercise of the functions of another public authority, the Commission may, if it thinks it desirable to do so—
(a) give the information or a report of the information to the authority or the Minister for the authority, and
(b) make to the authority or the Minister for the authority such recommendations (if any) relating to the exercise of the functions of the authority as the Commission thinks appropriate.
A copy of any information or report given to a public authority under subsection (4), together with a copy of any such recommendation, is to be given to the Minister for the authority.
If the Commission gives any evidence or information to a person under this section on the understanding that the information is confidential, the person is subject to the secrecy provisions of section 180 in relation to the evidence or information.
In this section—
(a) the Director of Public Prosecutions,
(b) the Director of Public Prosecutions of the Commonwealth,
(c) the Director of Public Prosecutions of another State or Territory,
(d) any other authority or person prescribed by the regulations for the purposes of this definition.
The Commission may—
(a) make findings, and
(b) form opinions, on the basis of investigations by the Commission, police investigations or Crime Commission investigations, as to whether officer misconduct or officer maladministration or agency maladministration—
(i) has or may have occurred, or
(ii) is or may be occurring, or
(iii) is or may be about to occur, or
(iv) is likely to occur, and
(c) form opinions as to—
(i) whether the advice of the Director of Public Prosecutions should be sought in relation to the commencement of proceedings against particular persons for criminal offences against laws of the State, or
(ii) whether the Commissioner of Police or Crime Commissioner should or should not give consideration to the taking of other action against particular persons, and
(d) make recommendations as to whether consideration should or should not be given to the taking of action under Part 9 of the Police Act 1990 or under the Crime Commission Act 2012 or other disciplinary action against, particular persons, and
(e) make recommendations for the taking of other action that the Commission considers should be taken in relation to the subject-matter or opinions or the results of any such investigations.
See also section 97Q.
Subsection (1) does not permit the Commission to form an opinion, on the basis of an investigation by the Commission of agency maladministration, that conduct of a particular person is officer maladministration unless the conduct concerned is (or could be) serious maladministration.
The Commission cannot find that a person is guilty of or has committed, or is committing or is about to commit, a criminal offence or disciplinary infringement.
An opinion or finding that a person has engaged, is engaging or is about to engage in—
(a) officer misconduct or serious misconduct or officer maladministration or serious maladministration (whether or not specified conduct), or
(b) specified conduct (being conduct that constitutes or involves or could constitute or involve officer misconduct or serious misconduct or officer maladministration or serious maladministration),
and any recommendation concerning such a person is not a finding or opinion that the person is guilty of or has committed, or is committing or is about to commit, a criminal offence or disciplinary infringement.
Nothing in this section prevents or affects the exercise of any function by the Commission that the Commission considers appropriate for the purposes of or in the context of Division 2 of Part 9 of the Police Act 1990.
The Commission must not include in a report under Part 11 a finding or opinion that any conduct of a specified person is officer misconduct or officer maladministration unless the conduct is serious misconduct or serious maladministration.
The Commission is not precluded by subsection (6) from including in any such report a finding or opinion about any conduct of a specified person that may be officer misconduct or officer maladministration if the statement as to the finding or opinion does not describe the conduct as officer misconduct or officer maladministration.
This section applies if a report under section 132, 135 or 136 contains an opinion, formed on the ground of the Commission’s findings about the conduct of a public official, that the public official has engaged or is engaging, or has attempted or is attempting to engage, in officer misconduct or officer maladministration.
Disciplinary proceedings in connection with the employment of the public official may be taken by the employer of the public official on the ground of the conduct of the public official on which the opinion was based.
The person or body determining the disciplinary proceedings—
(a) is not required to further investigate whether that conduct occurred but may choose to do so, and
(b) may take any disciplinary or other action against the public official of a kind that the person or body may otherwise take in disciplinary proceedings against any such public official, and
(c) is to give the public official an opportunity to make a submission in relation to any proposed disciplinary or other action.
Any such disciplinary or other action is taken to be action under the law relating to the taking of disciplinary proceedings against the public official and that law (including any right to appeal against or seek a review of the action) applies accordingly.
Evidence given to the Commission by the public official may be admitted and used in disciplinary proceedings against the public official that are authorised by this section (and in any related appeal or review proceedings) despite sections 57 (Self- incrimination) and 74 (Abrogation of privilege as regards answers, documents and other things) or any other law. However, the admission and use of the evidence in those proceedings does not cause it to be admissible against the public official in any other proceedings.
(Repealed)
In this section—
(a) proceedings and action taken by the Commissioner of Police in relation to an administrative employee under the Government Sector Employment Act 2013, section 69 or 70, and
(b) proceedings and action taken by the Crime Commissioner in relation to a Crime Commission officer under the Government Sector Employment Act 2013, section 69 or 70, and
(c) proceedings and action taken by the Commissioner of Police against a police officer under the Police Act 1990, Part 9, and
(d) reasonable management action taken in connection with the employment of a public official, and
(e) appropriate corrective action taken in connection with the employment of a public official.
(a) engagement under a contract for services, and
(b) appointment as a statutory officer.
(a) a statement of information, or a document or other thing, produced in response to a notice by the Commission, and
(b) an answer made, or a document or other thing produced, by a person summoned to attend or appearing before the Commission at an examination.
The Criminal Assets Recovery Act 1990 applies to the Commission in the same way as it applies to the Crime Commission.
Accordingly, references in that Act to the Crime Commission are taken to include references to the Commission, so that functions exercisable by the Crime Commission may be exercised by either body.
The Commission may exercise a function under that Act only—
(a) after the Commission has consulted with the Crime Commission, or
(b) in conformity with an arrangement referred to in section 163 (3),
and must consider whether any such function should instead be exercised by the Crime Commission.
Subsection (3) does not apply if the exercise of the function by the Commission under the Criminal Assets Recovery Act 1990 relates to an investigation by the Commission concerning Crime Commission officer misconduct.
It is intended that the Commission will exercise a function under that Act only in connection with matters arising during or out of the Commission’s investigations. However, this subsection does not provide any grounds for an appeal against or any other challenge to the exercise by the Commission of any such function.
The Commission must keep under scrutiny the systems established within the NSW Police Force and the Crime Commission for dealing with misconduct matters. For that purpose, the Commission may request the Commissioner of Police and the Crime Commissioner to provide information about those systems and their operation.
Without limiting subsection (1), for the purpose of ascertaining whether or not the requirements of this Act and Part 8A of the Police Act 1990 are being complied with by the Commissioner of Police and other members of the NSW Police Force, the Commission—
(a) must inspect the records of the NSW Police Force at least once every 12 months, and
(b) may inspect the records of the NSW Police Force at any time.
Without limiting subsection (1), for the purpose of ascertaining whether or not the requirements of this Act are being complied with by the Crime Commissioner and officers of the Crime Commission, the Commission—
(a) must inspect the records of the Crime Commission at least once every 12 months, and
(b) may inspect the records of the Crime Commission at any time.
The Commissioner of Police and the Crime Commissioner must comply with a request under subsection (1).
The Commission may, at any time, prepare a report on matters arising out of the exercise of the Commission’s functions under this section.
The report may include such comments and recommendations as the Commission thinks fit.
The Commission is to provide a copy of the report to the Minister and the Commissioner of Police or the Crime Commissioner (as appropriate).
If the Commission makes a recommendation in the report, it may require the Commissioner of Police or Crime Commissioner—
(a) to advise on whether the recommendation will be implemented, and
(b) if the recommendation will not be implemented—to give the reasons for not implementing the recommendation.
Information must be provided in accordance with this section despite the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 but only to the extent that it is relevant to the exercise of a function of the Commission under this section.
This section applies to the following officers—
(a) the Ombudsman,
(b) the Crime Commissioner,
(c) the Commissioner of Police,
(d) the ICAC Commissioner,
(e) the principal officer of a public authority,
(e1) the Children’s Guardian,
(f) an officer who constitutes a public authority.
An officer to whom this section applies is under a duty to report to the Commission any matter that the officer suspects on reasonable grounds concerns or may concern officer misconduct or serious maladministration unless the matter is of a kind that any guideline issued under subsection (5) provides does not need to be reported.
The report must be in writing.
However, the Commission—
(a) may accept a report that is not in writing if the Commission considers it appropriate to do so, and
(b) in that event, must reduce the report to writing as soon as practicable.
The Commission may issue guidelines as to what matters need or need not be reported.
A report must be provided in accordance with this section despite any prohibition in, or any requirement of, any Act or law (in particular, the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002) but only to the extent that it contains information that is relevant to the officer misconduct or serious maladministration concerned.
For the purposes of this section, the regulations may prescribe who is the principal officer of a public authority, but in the absence of regulations applying in relation to a particular public authority, the principal officer is the person who is the head of the authority, its most senior officer or the person normally entitled to preside at its meetings.
Police officers are also under duties with respect to reporting misconduct—see section 211F of the Police Act 1990.
Section 33 does not prevent any person to which that section applies or the Minister from referring any misconduct matter of which the person or Minister becomes aware despite the person or Minister not having a duty to report under that section to the Commission.
Section 33 (6) applies to and in respect of a misconduct matter referred under this section in the same way as it applies to a report under section 33.
Any person (including a public authority) may complain to the Commission about conduct of a police officer, Crime Commission officer or administrative employee that is (or could be) officer misconduct or officer maladministration.
Any person (including a public authority) may complain to the Commission about conduct of the Crime Commission or the NSW Police Force that is (or could be) agency maladministration.
A public official may complain to the Commission about the conduct of a police officer, Crime Commission officer or administrative employee.
Protections may be available under the following provisions to persons who make a complaint referred to in this section—
(a) the Public Interest Disclosures Act 2022, Part 3—if the complaint is a public interest disclosure,
(b) Part 6A—if the making of the complaint is protected action within the meaning of the Part.
This section does not affect any other right of a person to complain about the conduct of a police officer, Crime Commission officer or administrative employee or the conduct of the Crime Commission or the NSW Police Force.
For example, a complaint about the conduct of a police officer may also be made to the Commissioner of Police under section 124 of the Police Act 1990.
In this section—
A complaint to the Commission must be in writing.
However, the Commission—
(a) may accept a complaint that is not in writing if the Commission considers it appropriate to do so, and
(b) in that event, must reduce the complaint to writing as soon as practicable.
A complaint may be made by delivering or sending it to the Commission or in any other manner determined by the Commission and publicly notified by the Commission.
It is not necessary for a complainant to be identified in a complaint.
Any provision of this Act or any misconduct matters management guideline that requires a complainant to be notified of any matter does not apply to or in respect of a complainant who is not identified in the complaint.
If a prisoner informs a prison officer that the prisoner wishes to make a complaint, the prison officer—
(a) must take all steps necessary to facilitate the making of the complaint, and
(b) must immediately send, unopened, any written matter addressed to a police officer (whether by name or by reference to an office held by that officer), the Commissioner of Police or Crime Commissioner (whether by name or by reference to that office) or to the Commission to that addressee.
In this section—
See the Crimes (Administration of Sentences) Act 1999 and the regulations made under that Act in relation to the way a prisoner may send a letter.
A complaint may, with the consent in writing of a person, be made on his or her behalf by a member of Parliament.
A member of Parliament does not become the complainant merely because the member makes a complaint to the Commission on behalf of another person but may be informed, notified, given or sent such advice about progress on or the outcome of a complaint as the Commission considers appropriate.
For the purpose of making a decision with respect to a complaint under section 44, the Commission may (without exercising any of its investigation powers under sections 51 and 52) do any one or more of the following—
(a) request the complainant to discuss the complaint with the Commission for the purpose of providing further information concerning the complaint,
(b) request the complainant to provide further written particulars concerning the complaint within the time specified by the Commission,
(c) request the complainant to verify by statutory declaration his or her complaint, or any particulars given by the complainant concerning his or her complaint.
The Commission may withdraw the request if the complainant objects and the Commission is satisfied that the grounds of the objection are well-founded.
If the Commission makes a request (and it is not withdrawn), the Commission is to take no further action in connection with the complaint concerned until the request is complied with or until a reasonable time for compliance with the request has elapsed.
If the request is not complied with within a reasonable time, the Commission may treat the complaint concerned as having been withdrawn.
For the purpose of making a decision under section 44 with respect to a complaint (without exercising any of its investigatory powers), the Commission may request information from persons other than the complainant.
This section does not authorise the Commission—
(a) to investigate the complaint or to collect information for the purposes of the investigation of the complaint or of a report under this Act, or
(b) to interview the officer the subject of the complaint, or
(c) to require persons to provide information.
A request made by the Commission under this section is not an investigation of the complaint in relation to which the request is made. However, any information provided in response to such a request may be used in any police investigation, Crime Commission investigation or investigation by the Commission under this Act.
The Commissioner of Police is to give the Commission notice of any notifiable misconduct matter received by the Commissioner of Police or of which the Commissioner of Police becomes aware.
The Crime Commissioner is to give the Commission notice of any notifiable misconduct matter that is received by the Crime Commissioner or an officer of the Crime Commission or of which the Crime Commissioner or officer becomes aware.
The notice is to include a copy of (or provide electronic access to a copy of) the complaint or misconduct information concerned.
As soon as practicable after receiving or becoming aware of a misconduct matter concerning a police officer or administrative employee or the NSW Police Force, the Commission is to give the Commissioner of Police notice of the misconduct matter.
As soon as practicable after receiving or becoming aware of a misconduct matter concerning a Crime Commission officer or the Crime Commission, the Commission is to give the Crime Commissioner notice of the misconduct matter.
The notice may include a summary or sufficient details of the misconduct matter to indicate the nature of the misconduct for the information of the Commissioner of Police or Crime Commissioner.
Nothing in this section requires a copy of a misconduct matter to be referred to the Commissioner of Police or Crime Commissioner if the Commissioner of Police or Crime Commissioner already has a copy (or a summary or sufficient details) of the misconduct matter.
The Commission is not required to give notice of a misconduct matter under this section if the Commission is of the opinion that it is not in the public interest to do so.
As soon as practicable after the Commission receives (or becomes aware of) a misconduct matter, and at any time during the course of the investigation or oversight by the Commission of a misconduct matter, the Commission may decide to do any one or more of the following—
(a) subject to sections 45 and 46, to investigate, or take over the investigation, of the misconduct matter,
(b) subject to section 45, to refer the misconduct matter for police investigation or other action or Crime Commission investigation or other action,
(c) to refer the misconduct matter to the Commissioner of Police or the Crime Commissioner for information,
(d) if the subject of a police misconduct matter is a member of the NSW Police Force involved in a critical incident, to refer the matter to the Commissioner of Police to be investigated (except as provided by section 113 (6)) under Part 8,
(e) to refer the misconduct matter to another body or person under section 162 for investigation or other action or for information,
(f) if the misconduct matter is referred for police investigation or Crime Commission investigation, to oversee the police investigation or Crime Commission investigation under Part 7,
(g) if the misconduct matter is referred to another person or body under section 162, to oversee any investigation or other action taken by the person or body with respect to the misconduct matter,
(h) to attempt to deal with the misconduct matter (being a complaint) by an alternative dispute management process under section 48,
(i) to take no further action with respect to the misconduct matter.
A decision under subsection (1) may be made in respect of the whole or any part of a misconduct matter.
The Commission is to take into account any misconduct matters management guidelines or recommendation of the Commissioner of Police in deciding how to deal with a misconduct matter concerning a police officer, administrative employee or the NSW Police Force, or of the Crime Commissioner in deciding how to deal with a misconduct matter concerning a Crime Commission officer or the Crime Commission, but its decision is determinative of the matter.
Additional information from the complainant and other persons under sections 40 and 41, and any existing information relevant to the misconduct matter to which the Commission can readily obtain access, may be used in deciding how to deal with a misconduct matter.
The Commission may decide to investigate any matter relating to a misconduct matter under subsection (1)—
(a) even though it has referred the misconduct matter or part of the misconduct matter for police investigation or Crime Commission investigation or to another authority under section 162, and
(b) before the commencement of a police investigation or Crime Commission investigation, during the progress of a police investigation or Crime Commission investigation or after a police investigation or Crime Commission investigation of the misconduct matter.
The Commission may notify the Commissioner of Police or Crime Commissioner of any decision the Commission makes to investigate a misconduct matter under this section during a police investigation or Crime Commission investigation of the misconduct matter.
On being so notified, the Commissioner of Police or Crime Commissioner is to discontinue the police investigation or Crime Commission investigation, respectively.
If the Commission decides to take no further action with respect to a misconduct matter, the Commission must notify the complainant of the decision and the reasons for it.
Except as provided by section 113 (6), the Commission must postpone the making of a decision under this section about whether it should investigate a police misconduct matter if the subject of the misconduct matter is the conduct of a police officer in relation to a critical incident until the conclusion of any critical incident investigation (within the meaning of Part 8) of the incident.
The making of a decision under this section is not an investigation of the misconduct matter to which the decision relates.
The Commissioner of Police or Crime Commissioner may investigate or otherwise deal with any notifiable misconduct matter pending the making of a decision by the Commission under this section.
In deciding whether any misconduct matter should be, or does not need to be, investigated by the Commission or referred for police investigation or Crime Commission investigation, the Commission may have regard to such matters as the Commission thinks fit, including whether, in the Commission’s opinion—
(a) action has been, is being or will be taken to remedy the subject-matter of the misconduct matter without the need for an investigation by the Commission or any other person or body, or
(b) the misconduct matter is frivolous, vexatious or not made in good faith, or
(c) the subject-matter of the misconduct matter is trivial, or
(d) the relevant conduct occurred too long ago to justify investigation, or
(e) there is or was available an alternative and satisfactory means of redress in relation to the relevant conduct, or
(f) the complainant does not or could not have an interest, or a sufficient interest, in the conduct complained of, or
(g) civil, criminal or disciplinary proceedings, or a coroner’s inquest, relating to the subject-matter of the misconduct matter are pending or reasonably in contemplation.
The Commission may only decide that the Commission is to investigate a misconduct matter if—
(a) the conduct is of a kind described in section 51, and
(b) in the case of a decision to investigate by an examination, the Commission has decided that the conduct concerned is (or could be) conduct that falls within the description of serious misconduct or serious maladministration that should be investigated and that an examination should be conducted.
See section 19 (2).
The Commission may decide to conduct an investigation into agency maladministration (or refer a misconduct matter concerning agency maladministration for police investigation or Crime Commission investigation) even though no particular police officer, administrative employee, Crime Commission officer or other person has been implicated and even though no officer misconduct or officer maladministration is suspected.
The factors that the Commission may take into account in deciding whether the Commission is to investigate conduct it has decided falls within (or could fall within) the description of serious misconduct or serious maladministration are as follows—
(a) the apparent level of criminality or systemic nature of the conduct and the Commission’s responsibility to direct the Commission’s attention to serious matters affecting the integrity of the NSW Police Force and Crime Commission,
(b) the primary responsibility of the NSW Police Force to investigate and prevent officer misconduct, officer maladministration and agency maladministration within the NSW Police Force,
(c) the primary responsibility of the Crime Commission to investigate and prevent officer misconduct, officer maladministration and agency maladministration within the Crime Commission,
(d) the availability of the Commission or any other public authority or official with the responsibility, jurisdiction or power to investigate conduct of the kind concerned,
(e) if the conduct is related to conduct that the Commission is already investigating, the relationship to any other on-going investigation of the Commission,
(f) the complexity of the matter,
(g) the number and seniority of police officers, administrative employees or Crime Commission officers involved.
As soon as practicable after deciding that a misconduct matter should be referred for police investigation, the Commission must refer the misconduct matter to the Commissioner of Police.
As soon as practicable after deciding that a misconduct matter should be referred for Crime Commission investigation, the Commission must refer the misconduct matter to the Crime Commissioner.
In referring a misconduct matter or part of a misconduct matter to the Commissioner of Police for police investigation or the Crime Commissioner for Crime Commission investigation, the Commission may recommend—
(a) matters that need to be examined or taken into consideration by the police officer or police officers or Crime Commissioner officer or Crime Commission officers investigating the misconduct matter, and
(b) the time within which the investigation should be concluded.
Referral of a misconduct matter for police investigation or Crime Commission investigation does not prevent the Commission from subsequently deciding to investigate or take other action with respect to the matter under section 44.
The Commission may decide to attempt to deal with a complaint by mediation, conciliation or any other alternative dispute management process for the purpose of resolving the complaint.
Any statement or admission made in the course of the process and any document prepared for the purposes of it is not admissible in any subsequent investigation (including an examination) under this Act or in any other legal proceeding (unless the person who said or admitted the thing, or to whom the document relates, consents to its admission).
If an attempt to deal with a complaint by a process under this section is unsuccessful, the conciliation is to be treated as if it had not taken place. However, any member of the Commission or Assistant Commissioner who assisted in the process is excluded from participating as an investigating officer in any investigation of the complaint concerned.
Subsection (3) does not prevent a member of the Commission who assisted in a process under this section from participating in making any decision under section 19 (2).
The regulations may make provision for or with respect to the process for dealing with complaints under this section.
The following must be registered in the misconduct matters information system—
(a) information about all police complaints, administrative employee complaints and agency complaints about the NSW Police Force received by the Commission,
(b) such information about misconduct information as is required to be registered in the system by a misconduct matters management guideline.
Action taken with respect to a misconduct matter is not to be called into question in any legal proceedings merely because of any failure to comply with the requirements of this Part with respect to the referral or notification of the misconduct matter.
The Commission may exercise its investigation powers in respect of conduct—
(a) if the conduct concerned involves a police officer, administrative employee or Crime Commission officer and the Commission has decided that the conduct concerned is (or could be) serious misconduct or officer maladministration that is serious maladministration and should be investigated, or
Note. See section 19 (2) in relation to the making of a decision under this provision.
(b) if the conduct concerned involves the Commissioner of Police or a Deputy Commissioner of Police and is (or could be) police misconduct or officer maladministration, or
(c) if the conduct concerned involves the Crime Commissioner or an Assistant Commissioner of the Crime Commission and is (or could be) Crime Commission officer misconduct or officer maladministration, or
(d) if the conduct concerned is (or could be) agency maladministration, or
(e) if both Houses of Parliament refer the conduct concerned to the Commission for investigation under section 196.
The investigation powers may be exercised—
(a) on any complaint made or referred to the Commission under this or any other Act, or
(b) on the Commission’s own initiative on the basis of misconduct information provided to it in a report or of which it otherwise becomes aware.
The power to investigate conduct under this section includes the power—
(a) to investigate conduct that could be, but is not, the subject of a complaint, and
(b) to investigate the actions of another person or body in relation to the conduct concerned and any related issues, and
(c) to refer the matter for investigation or other action under section 162.
Without limiting subsection (3), if the misconduct matter or conduct is (or could be) indicative of a systemic problem involving the NSW Police Force generally, or a particular area of the NSW Police Force, and the Commission considers it in the public interest to do so, the investigation by the Commission may extend beyond any police officer or administrative employee to whom the misconduct matter or conduct relates—
(a) to the NSW Police Force generally, or that particular area of the NSW Police Force, and
(b) to other police officers and administrative employees.
Without limiting subsection (3), if the misconduct matter or conduct is (or could be) indicative of a systemic problem involving the Crime Commission generally, or a particular area of the Crime Commission, and the Commission considers it in the public interest to do so, the investigation by the Commission may extend beyond any Crime Commission officer to whom the misconduct matter or conduct relates—
(a) to the Crime Commission generally, or that particular area of the Crime Commission, and
(b) to other Crime Commission officers.
For the purposes of subsection (1), conduct that is (or could be) indicative of both officer misconduct or officer maladministration and agency maladministration is to be treated as officer misconduct or officer maladministration.
An investigation power the Commission decides to exercise under section 51 may be in the nature of a preliminary investigation.
A preliminary investigation can be conducted, for example, for the purpose of—
(a) assisting the Commission to discover or identify conduct that might be made the subject of a more complete investigation, or
(b) assisting the Commission to decide whether to make particular conduct the subject of a more complete investigation, or
(c) assisting the Commission in making a decision under section 61 with respect to the holding of an examination with respect to conduct that is (or could be) serious misconduct.
The Commission may discontinue or conclude an investigation at any time.
In deciding to discontinue or conclude an investigation with respect to a misconduct matter, the Commission may have regard to such matters as it thinks fit, including the matters referred to in sections 45 and 46.
Where the Commission discontinues an investigation of police misconduct, the Commission must inform the complainant and the Commissioner of Police in writing of the decision and the reasons for the decision.
(b) any Inspectorial record that has come, whether before or after the commencement of this Schedule, into the possession of the Inspector, an Assistant Inspector or a member of staff of the Inspector or the Commission or a member of staff of the Commission.
Anything done under the PIC Act or a provision of the PIC Act that has any force or effect immediately before its repeal is taken to have been done under the corresponding provision of this Act, subject to any express or implied provision to the contrary in this Act or the regulations made under this Act.
Anything done under former Part 8A or a provision of former Part 8A that has any force or effect immediately before its amendment is taken to have been done under the corresponding provision of this Act, subject to any express or implied provision to the contrary in this Act or the regulations made under this Act.
On the repeal of the PIC Act—
(a) the PIC is abolished, and
(b) any assets, rights and liabilities of the PIC become assets, rights and liabilities of the Commission.
Despite subclause (1), the PIC continues in existence until the end of the transition period.
While the PIC continues in existence, a Commissioner of the Law Enforcement Conduct Commission or member of staff of the Commission authorised by a Commissioner—
(a) may exercise any power under the PIC Act (or any other Act) that would have been exercisable by PIC immediately before the repeal of the PIC Act for the purposes of carrying out its functions in relation to the conduct of any investigation under the PIC Act being conducted immediately before that repeal that is declared by the Commission by an order in writing to be an investigation to which this clause applies, and
(b) Divisions 2 and 3 of Part 3 of the PIC Act continue to have effect.
The exercise of any power under subclause (3) is taken at the end of the transition period to have been exercised for the purposes of an investigation under this Act.
Nothing in this clause prevents the Commission from exercising any function conferred on it under clause 5.
In this clause—
The Commission may exercise any of the Commission’s functions under this Act in relation to anything done or omitted to be done by, to or in relation to the PIC (including, for example, the punishment of contempt of the PIC).
Without limiting subclause (1) or any other power of the Commission, the Commission may continue any investigation, inquiry, hearing or other matter commenced but not completed by the PIC, and may for this purpose adopt any evidence taken, assessments made or opinions formed by the PIC.
Without limiting subclause (1) or any other power of the Commission, the Commission may continue to take any action that PIC or the PIC Commissioner may have taken before the repeal of the PIC Act in respect of the following—
(a) any matter referred to PIC or complaint or report made to it and any action taken in respect of such a referral, complaint or report,
(b) any subpoena, notice or application under the PIC Act,
(c) any search warrant issued under the PIC Act,
(d) any order, arrangement or direction for the protection of witnesses (including an order, arrangement or direction referred to in clause 2A of Schedule 3 to the PIC Act).
Accordingly, this Act has effect, for the purposes of this clause, with any necessary adaptations and with such modifications as may be prescribed by the regulations.
The Commission may exercise any of the Commission’s functions under this Act in relation to anything done or omitted to be done by, to or in relation to the Ombudsman under former Part 8A, the Ombudsman Act or a covert powers Act as in force immediately before their amendment by this Act, except as provided by clause 16.
Without limiting subclause (1) or any other power of the Commission, the Commission may deal with any complaint made to the Ombudsman before the commencement of those amendments and may continue any investigation, inquiry or other matter commenced but not completed by the Ombudsman, and may for this purpose adopt any evidence taken, assessments made or opinions formed by the Ombudsman.
Accordingly, this Act has effect, for the purposes of this clause, with any necessary adaptations and with such modifications as may be prescribed by the regulations.
A transferred record is to be treated for the purposes of any law of the State as if it were a record that the Commission or Inspector (as the case requires) had lawfully obtained in the performance of its (or the Inspector’s) functions or the exercise of its (or the Inspector’s) powers under this Act or any covert powers Act. Accordingly, the transfer of a record does not of itself prevent the use of such a record in any proceedings or render the record inadmissible if it would be able to be used or would be admissible in proceedings under this Act.
Subclause (1) does not otherwise affect the operation of rules as to the admissibility of evidence such as section 138 (Exclusion of improperly or illegally obtained evidence) of the Evidence Act 1995.
In particular, nothing prevents or restricts—
(a) the provision, making available or disclosure to the Commission or Inspector of any PIC record, Ombudsman record or Inspectorial record, or
(b) the disclosure or use by the Commission or Inspector of a transferred record, or of matter in or referred to in a transferred record, in connection with the performance of its (or the Inspector’s) functions or the exercise of its (or the Inspector’s) powers under this Act or any covert powers Act.
This clause has effect despite section 21 of the State Records Act 1998, section 34 of the Ombudsman Act, section 56 of the PIC Act or the secrecy provisions of a covert powers Act.
Sections 176–178 and 180 apply to and in respect of any transferred record to which a relevant secrecy provision applied before the commencement of this clause and, for that purpose, a reference in those sections—
(a) to a provision of this Act includes a reference to the corresponding relevant secrecy provision of the PIC Act or Ombudsman Act or secrecy provision of a covert powers Act, and
(b) to the exercise of functions under this Act includes a reference to the exercise of functions under the PIC Act or Ombudsman Act or a covert powers Act.
In this clause—
(a) sections 52, 53, 54 and 56 of the PIC Act,
(b) sections 19A, 19B, 19C and 34 of the Ombudsman Act,
(c) a secrecy provision of a covert powers Act.
Until an arrangement for the purposes of section 171 (Arrangements between Commission and ICAC) is entered into between the Commission and the ICAC Commissioner, an arrangement in force between the PIC Commissioner and the ICAC Commissioner under section 131 of the PIC Act has effect (with any necessary modifications) as if it were an arrangement between the Commission and the ICAC Commissioner under section 171.
Until an agreement as referred to in section 14 (1) (h) is entered into between the Commissioner of Police and the Commission with respect to arrangements for monitoring by the Commission of police investigations under section 101, an arrangement in force between the Commissioner of Police and the Ombudsman under section 146 (3) of the former Part 8A has effect (with any necessary modifications) as if it were an agreement concerning such arrangements between the Commissioner of Police and the Commission referred to in section 14 (1) (h).
Until misconduct matters management guidelines are made publicly available by the Commission—
(a) a complaint of a kind that, in accordance with the guidelines agreed under section 122 (2) of the Police Act 1990 (as in force immediately before its amendment by this Act) was a notifiable complaint, is taken to be a notifiable misconduct matter, and
(b) a complaint of a kind that, in accordance with such guidelines, need not be dealt with under former Part 8A is a misconduct matter that need not be investigated under this Act or Part 8A of the Police Act 1990 as amended by this Act.
On the repeal day, the person holding office as Inspector of the Crime Commission ceases to hold office as Inspector of the Crime Commission.
The person is not entitled to any remuneration or compensation because of that loss of office.
On and from the repeal day, the Law Enforcement Conduct Commission may exercise any of the Commission’s functions under this Act in relation to anything done or omitted to be done by, to or in relation to the Crime Commission or an officer of the Crime Commission by the Inspector of the Crime Commission before the repeal day.
In this clause—
On the repeal day, the person holding office as PIC Inspector ceases to hold office as PIC Inspector.
The person is not entitled to any remuneration or compensation because of that loss of office.
On and from the repeal day, the Inspector may exercise any of the PIC Inspector’s functions under this Act in relation to anything done or omitted to be done by, to or in relation to PIC or an officer of PIC by the PIC Inspector before the repeal day.
In this clause—
The Inspector may exercise any of the Inspector’s functions under this Act in relation to anything done or omitted to be done by, to or in relation to the PIC Inspector.
Without limiting subclause (1) or any other power of the Inspector, the Inspector may continue any investigation, inquiry or other matter commenced but not completed by the PIC Inspector and may for this purpose adopt any evidence taken by the PIC Inspector.
Accordingly, this Act has effect, for the purposes of this clause, with any necessary adaptations and with such modifications as may be prescribed by the regulations.
The Inspector may exercise any of the Inspector’s functions under a covert powers Act in relation to anything done or omitted to be done by, to or in relation to a covert powers Act by the Ombudsman as in force immediately before its amendment by this Act.
An amendment made to the Ombudsman Act or Police Act 1990, or repeal of the PIC Act, by this Act does not affect any action taken by the Ombudsman before the amendment or repeal with respect to Operation Prospect and the Ombudsman may, for the purpose only of commencing proceedings for offences arising out of Operation Prospect and subject to this clause, exercise any function in respect of Operation Prospect that the Ombudsman could have exercised before the amendment or repeal as if those Acts had not been amended or repealed.
Subclause (1) does not authorise the Ombudsman to accept, investigate or commence any inquiry in respect of a complaint referred to in section 12 of the Ombudsman Act (whether or not relevant to Operation Prospect) made after the commencement of this clause.
For the purposes only of Operation Prospect, the Ombudsman may commence proceedings for an offence.
However, the Ombudsman does not have the power to commence proceedings for an offence unless the Director of Public Prosecutions has advised the Ombudsman in writing that the proceedings may be commenced by the Ombudsman.
For that purpose, the Director of Public Prosecutions may liaise with the Ombudsman, but is to act independently in deciding to advise that proceedings for the offence may be commenced.
A reference in this clause to the
The removal from office of a member of the Commission, or an Assistant Commissioner, or an alternate Commissioner, under Part 6 of the Government Sector Employment Act 2013 before the commencement of the Law Enforcement Conduct Commission Amendment Act 2020 is taken to have created a vacancy in that office.
In this Part—
On the relevant day, the person holding office as the Commissioner for Integrity is taken to be appointed to the office of the new Commissioner for the balance of the person’s term of office.
Anything done or omitted to be done under this Act or another Act by the Commissioner for Integrity or the Commissioner for Oversight is taken to have been done by the new Commissioner.
Without limiting subclause (1) or another power of the new Commissioner, the new Commissioner may—
(a) continue an investigation, inquiry, examination or other matter commenced but not completed by the Commissioner for Integrity or the Commissioner for Oversight, and
(b) adopt evidence taken, assessments made or opinions formed by the Commissioner for Integrity or the Commissioner for Oversight.
The amendments made by the amending Act apply on and from 30 June 2022, including if the amending Act commences after that date.
In this clause—
(Repealed)
Law Enforcement Conduct Commission Act 2016 No 61. Assented to 14.11.2016. Date of commencement (except Parts 1–3 and Schs 1–3, 6.23, 6.35 [1] [11]–[13] [15] and [17] and 7), 1.7.2017, sec 2 and 2017 (256) LW 16.6.2017; date of commencement of Parts 1–3 and Schs 1–3 and 7, assent, sec 2 (2); Sch 6.23 was not commenced and was repealed by the Statute Law (Miscellaneous Provisions) Act 2017 No 22; date of commencement of Sch 6.35 [1] [11]–[13] [15] and [17], 13.1.2017, sec 2 (1) and 2017 (1) LW 13.1.2017. This Act has been amended as follows—
No 22 | Statute Law (Miscellaneous Provisions) Act 2017. Assented to 1.6.2017. Date of commencement of Sch 5, 7 days after assent, sec 2 (1). | |
No 44 | Justice Legislation Amendment Act (No 2) 2017. Assented to 25.9.2017. Date of commencement of Sch 1.14, assent, sec 2 (1). | |
No 70 | Government Sector Finance Legislation (Repeal and Amendment) Act 2018. Assented to 22.11.2018. Date of commencement of Sch 4.59, 1.7.2023, sec 2(1) and 2023 (91) LW 2.3.2023. | |
No 14 | Statute Law (Miscellaneous Provisions) Act (No 2) 2019. Assented to 21.11.2019. Date of commencement of Sch 1.13, 14 days after assent, sec 2(1). | |
No 25 | Children’s Guardian Act 2019. Assented to 4.12.2019. Date of commencement of Sch 5.25, 1.3.2020, sec 2(1). | |
No 13 | Law Enforcement Conduct Commission Amendment Act 2020. Assented to 23.6.2020. Date of commencement, assent, sec 2. | |
No 30 | Statute Law (Miscellaneous Provisions) Act 2020. Assented to 27.10.2020. Date of commencement of amendments made by Sch 4, 22.1.2021, sec 2(4). | |
No 14 | Law Enforcement Conduct Commission Amendment (Commissioners) Act 2021. Assented to 17.6.2021. Date of commencement, assent, sec 2. | |
No 40 | Law Enforcement Conduct Commission Amendment Act 2021. Assented to 29.11.2021. Date of commencement, assent, sec 2. | |
No 14 | Public Interest Disclosures Act 2022. Assented to 13.4.2022. Date of commencement, 1.10.2023, sec 2 and 2023 (11) LW 20.1.2023. | |
No 28 | ICAC and LECC Legislation Amendment Act 2022. Assented to 27.6.2022. Date of commencement, assent, sec 2. | |
No 7 | Statute Law (Miscellaneous Provisions) Act 2023. Assented to 3.7.2023. Date of commencement, 14.7.2023, sec 2. | |
No 17 | ICAC and LECC Legislation Amendment Act 2023. Assented to 25.8.2023. Date of commencement of Sch 2, assent, sec 2(b). | |
No 57 | Government Sector Finance Amendment (Integrity Agencies) Act 2024. Assented to 23.9.2024. Date of commencement, 9.10.2024, sec 2 and 2024 (518) LW 9.10.2024. | |
No 6 | Crimes (Administration of Sentences) Amendment Act 2025. Assented to 2.3.2025. Date of commencement, 12.5.2025, sec 2 and 2025 (196) LW 9.5.2025. |
This Act has been amended by sec 30C of the Interpretation Act 1987 No 15.
Sec 4 | Am 2019 No 25, Sch 5.25[1]; 2021 No 14, Sch 1[1] [2]; 2022 No 14, Sch 6[1] [2]. |
Sec 5 | Am 2023 No 7, Sch 2.33. |
Sec 7 | Subst 2022 No 14, Sch 6[3]. |
Sec 18 | Am 2020 No 13, Sch 1[1] [2]; 2021 No 14, Sch 1[3] [4]. |
Sec 19 | Am 2021 No 14, Sch 1[5] [6]. |
Sec 23 | Am 2021 No 14, Sch 1[7]. |
Sec 28 | Am 2019 No 25, Sch 5.25[2]. |
Sec 29 | Am 2022 No 14, Sch 6[4]. |
Sec 30 | Am 2022 No 14, Sch 6[5] [6]. |
Sec 32 | Am 2021 No 14, Sch 1[8]. |
Sec 33 | Am 2019 No 25, Sch 5.25[3]. |
Sec 35 | Am 2022 No 14, Sch 6[7]–[9]. |
Sec 38 | Am 2025 No 6, Sch 2.1. |
Sec 54 | Am 2022 No 14, Sch 6[10]. |
Sec 55 | Am 2022 No 14, Sch 6[11]. |
Sec 62 | Am 2021 No 14, Sch 1[9]. |
Sec 77 | Am 2019 No 14, Sch 1.13; 2019 No 25, Sch 5.25[2] [4]. |
Sec 85 | Rep 2022 No 14, Sch 6[12]. |
Sec 86 | Am 2019 No 25, Sch 5.25[2]. |
Sec 91 | Am 2022 No 14, Sch 6[13]. |
Part 6A | Ins 2022 No 14, Sch 6[14]. |
Part 6A, Div 1 | Ins 2022 No 14, Sch 6[14]. |
Sec 97A | Ins 2022 No 14, Sch 6[14]. |
Sec 97B | Ins 2022 No 14, Sch 6[14]. |
Sec 97C | Ins 2022 No 14, Sch 6[14]. |
Sec 97D | Ins 2022 No 14, Sch 6[14]. |
Sec 97E | Ins 2022 No 14, Sch 6[14]. |
Sec 97F | Ins 2022 No 14, Sch 6[14]. |
Part 6A, Div 2 | Ins 2022 No 14, Sch 6[14]. |
Sec 97G | Ins 2022 No 14, Sch 6[14]. |
Sec 97H | Ins 2022 No 14, Sch 6[14]. |
Sec 97I | Ins 2022 No 14, Sch 6[14]. |
Sec 97J | Ins 2022 No 14, Sch 6[14]. |
Sec 97K | Ins 2022 No 14, Sch 6[14]. |
Sec 97L | Ins 2022 No 14, Sch 6[14]. |
Sec 97M | Ins 2022 No 14, Sch 6[14]. |
Sec 97N | Ins 2022 No 14, Sch 6[14]. |
Sec 97O | Ins 2022 No 14, Sch 6[14]. |
Sec 97P | Ins 2022 No 14, Sch 6[14]. |
Part 6A, Div 3 | Ins 2022 No 14, Sch 6[14]. |
Sec 97Q | Ins 2022 No 14, Sch 6[14]. |
Sec 97R | Ins 2022 No 14, Sch 6[14]. |
Sec 97S | Ins 2022 No 14, Sch 6[14]. |
Sec 105 | Am 2021 No 14, Sch 1[10]. |
Sec 111 | Am 2021 No 14, Sch 1[11]. |
Sec 113 | Am 2021 No 14, Sch 1[12]. |
Sec 114 | Am 2023 No 7, Sch 3.17. |
Sec 122 | Am 2022 No 14, Sch 6[15]. |
Sec 125 |
Am 2022 No 14, Sch 6[16] [17]. | |
Sec 128A | Ins 2017 No 44, Sch 1.14 [1]. |
Sec 131 | Am 2024 No 57, Sch 2.5[1] [2]. |
Sec 139 | Am 2018 No 70, Sch 4.59. |
Sec 147 | Am 2019 No 25, Sch 5.25[5]; 2022 No 14, Sch 6[10]. |
Sec 148 | Am 2022 No 14, Sch 6[10]. |
Sec 156 | Am 2022 No 14, Sch 6[18] [19]. |
Sec 157 | Rep 2022 No 14, Sch 6[20]. |
Sec 158 | Rep 2022 No 14, Sch 6[20]. |
Sec 161 | Am 2019 No 25, Sch 5.25[6]. |
Sec 165 | Am 2019 No 25, Sch 5.25[7]–[13]; 2022 No 14, Sch 6[21] [22]. |
Sec 176 | Am 2022 No 14, Sch 6[13]. |
Sec 177 | Am 2022 No 14, Sch 6[13]. |
Sec 178 | Am 2022 No 14, Sch 6[13]. |
Sec 180 | Am 2022 No 14, Sch 6[13]; 2022 No 14, Sch 6[23]–[25]. |
Sec 181A | Ins 2019 No 25, Sch 5.25[14]. |
Sec 182 | Am 2022 No 14, Sch 6[26]. |
Sec 187 | Rep 2022 No 14, Sch 6[20]. |
Sec 189 | Am 2019 No 25, Sch 5.25[4]; 2020 No 30, Sch 4.34. |
Sec 190 | Am 2022 No 14, Sch 6[27]. |
Sec 194 | Am 2022 No 14, Sch 6[28]. |
Sec 197 | Am 2019 No 25, Sch 5.25[15]. |
Sch 1 | Am 2020 No 13, Sch 1[3] [4]; 2021 No 14, Sch 1[13] [14]; 2021 No 40, sec 3(1) (2); 2022 No 28, Sch 3[1]–[5]; 2023 No 17, Sch 2[1]–[3]. |
Sch 2 | Am 2017 No 44, Sch 1.14 [2]; 2022 No 28, Sch 3[6]–[9]; 2023 No 17, Sch 2[4]. |
Sch 3 | Am 2020 No 13, Sch 1[5]; 2021 No 14, Sch 1[15]; 2022 No 28, Sch 3[10]. |
Schs 4, 5 | Rep 1987 No 15, sec 30C. |
Sch 6 | Am 1987 No 15, sec 30C; 2017 No 22, Sch 5, cl 3. Rep 1987 No 15, sec 30C. |
Sch 7 | Rep 1987 No 15, sec 30C. |
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