Police Integrity Commission Act 1996 (NSW)
An Act to constitute the Police Integrity Commission and to define its functions; and for other purposes.
This Act is the Police Integrity Commission Act 1996.
This Act commences on a day or days to be appointed by proclamation.
The principal objects of this Act are:
(a) to establish an independent, accountable body whose principal function is to detect, investigate and prevent police corruption and other serious officer misconduct, and
(b) to provide special mechanisms for the detection, investigation and prevention of serious officer misconduct and other officer misconduct, and
(c) to protect the public interest by preventing and dealing with officer misconduct, and
(d) to provide for the auditing and monitoring of particular aspects of the operations and procedures of the NSW Police Force and the New South Wales Crime Commission.
In this Act:
(a) the Commissioner for the New South Wales Crime Commission (
the Crime Commissioner ),(b) an Assistant Commissioner for the New South Wales Crime Commission,
(c) a member of staff of the New South Wales Crime Commission within the meaning of the Crime Commission Act 2012.
(a) a member of the Police Force of New South Wales at any time before the commencement of the Police Act 1990 other than a public servant, or
(b) a police officer at any time after the commencement of that Act.
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
References in provisions of this Act to “serious” officer misconduct and “other” officer misconduct are intended for general guidance and are not intended to indicate a precise distinction between the two concepts.
A reference in this Act to a person who has special legal qualifications is a reference to a person who:
(a) is or is qualified to be appointed as a Judge of the Supreme Court of the State or of any other State or Territory, a Judge of the Federal Court of Australia or a Justice of the High Court of Australia, or
(b) is a former Judge or Justice of any court referred to in paragraph (a).
A reference in this Act to a Presiding Officer is a reference to the President of the Legislative Council or the Speaker of the Legislative Assembly, and:
(a) if there is a vacancy in the office of President, the reference to the President is a reference to the Clerk of the Legislative Council, or
(b) if there is a vacancy in the office of Speaker, the reference to the Speaker is a reference to the Clerk of the Legislative Assembly.
(Repealed)
Notes in the text of this Act do not form part of the Act.
For the purposes of this Act,
(a) whether or not it also involves non-police participants, 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.
Police misconduct can involve (but is not limited to) any of the following:
(a) police corruption,
(b) the commission of a criminal offence by a police officer,
(b1) misconduct in respect of which the Commissioner of Police may take action under Part 9 of the Police Act 1990,
(c) corrupt conduct within the meaning of the Independent Commission Against Corruption Act 1988 involving a police officer,
(d) any other matters about which a complaint can be made under the Police Act 1990.
Conduct may be dealt with, or continue to be dealt with, under this Act even though any police officer involved has ceased to be a police officer. Accordingly, references in this Act to a police officer extend, where appropriate, to include a former police officer.
(Repealed)
For the purposes of this Act,
Conduct may be dealt with, or continue to be dealt with, under this Act even though any administrative officer involved has ceased to be an administrative officer. Accordingly, references in this Act to an administrative officer extend, where appropriate, to include a former administrative officer.
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.
Misconduct of a Crime Commission officer can involve (but is not limited to) any of the following:
(a) the commission of a criminal offence by a Crime Commission officer,
(b) any misconduct, irregularity, neglect of duty, breach of discipline or other matter that constitutes or may constitute grounds for disciplinary action under any law,
(c) corrupt conduct within the meaning of the Independent Commission Against Corruption Act 1988 involving a Crime Commission officer.
Conduct may be dealt with, or continue to be dealt with, under this Act even though any Crime Commission officer involved has ceased to be a Crime Commission officer. Accordingly, references in this Act to a Crime Commission officer extend, where appropriate, to include a former Crime Commission officer.
There is constituted by this Act a corporation with the corporate name of the Police Integrity Commission.
The Commission has the functions conferred or imposed on it by or under this or any other Act.
The functions of the Commission are exercisable by the Commissioner. Any act, matter or thing done in the name of, or on behalf of, the Commission by the Commissioner, or with the authority of the Commissioner, is taken to have been done by the Commission.
A reference in this Act to a hearing before the Commission or anything done or omitted by, to or in relation to the Commission includes a reference to a hearing before, or a thing done or omitted by, to or in relation to the Commissioner or another officer of the Commission having authority in the circumstances.
The Governor may appoint a Commissioner for the Police Integrity Commission.
The Commissioner has and may exercise the functions conferred or imposed on the Commissioner by or under this or any other Act.
Schedule 1 has effect.
The staff of the Commission may include one or more Assistant Commissioners for the Police Integrity 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.
Clause 7 of Schedule 1 applies to an Assistant Commissioner in the same way as it applies to the Commissioner, other than clause 7 (1) (c). The clause so applies to the exclusion of any provision of any Act or contract that provides for vacation of office or removal from office.
Clause 6 of Schedule 1 applies to an Assistant Commissioner in the same way as it applies to the Commissioner.
An Assistant Commissioner may, to the extent to which he or she is directed by the Commissioner to do so, exercise any function of the Commissioner, other than such functions as may be prescribed by the regulations for the purpose of this section.
The staff of the Commission comprises:
(a) those persons who are employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commission to exercise its functions, and
(b) the persons referred to in subsections (3) and (4).
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.
(Repealed)
The Commission may engage persons as consultants to the Commission or to perform services for it.
The Commission may arrange:
(a) for the use of the services of any staff or facilities of a Public Service agency or a local or public authority, 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 country prescribed by the regulations for the purposes of this Act,
to be seconded or otherwise engaged to assist the Commission.
Police officers and former police officers cannot be appointed to, employed or engaged by, or seconded to the service of, the Commission, nor (without limiting the foregoing provisions of this subsection) can arrangements be made under subsection (4) for the use of their services.
Subsection (5) does not, however, prevent arrangements being made by the Commission for police officers (in their capacity as police officers) to be 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.
The Commission may designate an officer of the Commission as an approved former police officer for the purposes of this Act, if:
(a) the officer has served for at least 5 years in one or more of the following capacities:
(i) a member of the Australian Federal Police,
(ii) a member of the Police Force of another State or Territory,
(iii) a member of the Police Force of any country prescribed by the regulations for the purposes of this Act, 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.
The Commission may delegate to an officer of the Commission any of its functions, other than this power of delegation.
The Commissioner may delegate to an officer of the Commission any of his or her functions.
An officer of the Commission may delegate to another officer of the Commission any of the functions delegated to the officer, subject to any condition to which the delegation is subject.
The following functions may be delegated only to an Assistant Commissioner:
(a) the making of an application for an injunction under section 30,
(b) the powers of the Commission or the Commissioner under Division 4 or 5 of Part 3 at or in connection with a hearing, except the power to issue a warrant for the arrest of a person under section 39,
(c) the powers of the Commissioner under Part 10 at or in connection with a hearing.
The following functions may not be delegated (except as provided by subsection (6)):
(a) a function of making a report under this Act,
(b) the power of the Commissioner to issue a warrant for the arrest of a person under section 39 or 120,
(c) the power of the Commissioner to issue search warrants under section 45,
(d) the power to require a public authority or public official to produce a statement or information under section 25,
(e) the power to require a person to attend and produce a document or other thing under section 26,
(f) the power to authorise an officer of the Commission to enter premises under section 29.
The functions referred to in subsection (5) may be delegated to an Assistant Commissioner (and an Assistant Commissioner only) if the Assistant Commissioner has special legal qualifications.
The Commissioner may appoint an Australian legal practitioner to assist the Commission as counsel, either generally or in relation to a particular matter or matters.
The principal functions of the Commission are as follows:
(a) to prevent officer misconduct,
(b) to detect or investigate, or manage or oversee other agencies in the detection or investigation of, officer misconduct,
(c) to receive and assess all matters not completed by the Police Royal Commission, to treat any investigations or assessments of the Police Royal Commission as its own, to initiate or continue the investigation of any such matters where appropriate, and otherwise to deal with those matters under this Act, and to deal with records of the Police Royal Commission as provided by this Act.
The Commission is, as far as practicable, required to turn its attention principally to serious officer misconduct.
The reference in this section to
The reference in this section to
In managing or overseeing other agencies for the purposes of this section, the Commission does not have a power of control or direction, and any such management or oversight is to be achieved by agreement. However, it is the duty of members of the NSW Police Force and Crime Commission officers to co-operate with the Commission in the exercise of its management and oversight functions and any other functions of the Commission.
However, nothing in subsection (2), (3), (4) or (5):
(a) affects the capacity of the Commission to exercise any of the functions referred to in subsection (1), or
(b) provides a ground for any appeal or other legal or administrative challenge to the exercise by the Commission of any of those functions.
(Repealed)
Other functions of the Commission include the following:
(a) to undertake inquiries into or audits of any aspect of police activities for the purpose of ascertaining whether there is police misconduct or any circumstances that may be conducive to police misconduct,
(b) in particular, to monitor the quality of the management of investigations conducted within the NSW Police Force and to undertake audits of those investigations,
(c) to make recommendations concerning police corruption education programs, police corruption prevention programs, and similar programs, conducted within the NSW Police Force or by the Ombudsman or the Independent Commission Against Corruption for the NSW Police Force,
(d) to advise police and other authorities on ways in which police misconduct may be eliminated.
(e), (f) (Repealed)
(Repealed)
Other 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 furnish any such evidence to the Director of Public Prosecutions,
(b) to assemble evidence that may be used in:
(i) the investigation of a police complaint, Crime Commission officer complaint or administrative officer complaint, or
(ii) deciding whether to take action under section 173 or 181D of the Police Act 1990,
and to furnish any such evidence to the Minister, the Commissioner of Police or other appropriate authority in the State,
(c) to assemble evidence that may be admissible in the prosecution of a person (other than a police officer) for a disciplinary offence under the law of the State and to furnish any such evidence to the appropriate authority in the State,
(d) to furnish evidence obtained in the course of its investigations (being evidence that may be admissible in the prosecution of a person for a criminal offence against or a disciplinary offence under the law of the Commonwealth or another State or Territory) to the Attorney General or to the appropriate authority in the jurisdiction concerned.
Evidence of the kind referred to in subsection (1) (d) may be accompanied by any observations that the Commission thinks appropriate and (in the case of evidence furnished to the Attorney General) recommendations as to what action the Commission considers should be taken in relation to the evidence.
A copy or detailed description of any evidence furnished to the appropriate authority in another jurisdiction, together with a copy of any accompanying observations, is to be furnished to the Attorney General.
If the Commission obtains any information in the course of its investigations relating to the exercise of the functions of a public authority (other than the Ombudsman in the exercise of its functions in relation to police misconduct or police complaints), the Commission may, if it thinks it desirable to do so:
(a) furnish 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 furnished to a public authority under subsection (4), together with a copy of any such recommendation, is to be furnished to the Minister for the authority.
If the Commission furnishes 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 56 in relation to the evidence or information.
The Commission may:
(a) make assessments and form opinions, on the basis of its investigations or those of the Police Royal Commission or of agencies of which it has management or oversight under this Act, as to whether police misconduct or other misconduct, misconduct of a Crime Commission officer or corrupt conduct of an administrative officer:
• has or may have occurred, or
• is or may be occurring, or
• is or may be about to occur, or
• is likely to occur, and
(b) make recommendations as to whether consideration should or should not be given to the prosecution of or the taking of action under Part 9 of the Police Act 1990 or other disciplinary action against particular persons, and
(c) make recommendations for the taking of other action that the Commission considers should be taken in relation to the subject-matter of its assessments or opinions or the results of any such investigations.
However, the Commission may not:
(a) make a finding or form an opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence), or
(b) make a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence).
An opinion that a person has engaged, is engaging or is about to engage:
(a) in police misconduct, misconduct of a Crime Commission officer or corrupt conduct of an administrative officer (whether or not specified conduct), or
(b) in specified conduct (being conduct that constitutes or involves or could constitute or involve police misconduct, misconduct of a Crime Commission officer or corrupt conduct of an administrative officer),
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 offence.
Nothing is this section prevents or affects the exercise of any function by the Commissioner that it considers appropriate for the purposes of or in the context of Division 2 of Part 9 of the Police Act 1990.
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,
(d) co-ordinate or co-operate in co-ordinating any such task forces.
In exercising its investigative functions, the Commission may work in co-operation with investigative agencies and such other persons and bodies as the Commission thinks appropriate (whether or not they are in or of the State).
In exercising its other functions, the Commission may work in co-operation with the educational institutions and such other persons and bodies as the Commission thinks appropriate (whether or not they are in or of the State).
The Commission may consult with and disseminate intelligence and information to investigative agencies and such other persons and bodies (including any task force and any member of a task force) as the Commission thinks appropriate (whether or not they are in or of the State).
If the Commission disseminates information to a person or body under this section on the understanding that the information is confidential, the person or body is subject to the secrecy provisions of section 56 in relation to the information.
In this section:
(a) the Ombudsman, or
(b) the New South Wales Crime Commission, or
(c) the Independent Commission Against Corruption, or
(d) the Auditor-General, or
(e) the NSW Police Force (or any unit or other part of it), or
(f) a police force of another State or Territory (or any unit or other part of it), or
(g) the Australian Federal Police (or any unit or other part of it), or
(h) the Australian Crime Commission, or
(i) the Australian Bureau of Crime Intelligence, or
(j) any other authority or person responsible for the enforcement of laws of the Commonwealth or of the State, another State or a Territory or charged under any such laws with investigating or detecting police or other misconduct.
The Commission may include in a report under section 24 (7), 39 (4) or 71 (3) of the Police Act 1990 a statement that the report is furnished on the understanding that the information in the report is confidential to the following authorised persons:
(a) the recipient of the report, and
(b) any persons specified in the statement.
Each authorised person is subject to the secrecy provisions of section 56 in relation to the information, but the information may despite that section be divulged to any other such authorised person.
For the purposes of section 56, the authorised persons are taken to have acquired the information in the exercise of functions under this Act.
A person may be specified under this section by reference to the person’s name or office.
The Criminal Assets Recovery Act 1990 applies to the Police Integrity Commission in the same way as it applies to the New South Wales Crime Commission.
Accordingly, references in that Act to the Crime Commission are taken to include references to the Police Integrity Commission, so that functions exercisable by the Crime Commission may be exercised by either body.
The Police Integrity Commission may exercise a function under that Act only:
(a) after the PIC Commissioner has consulted with the Crime Commission, or
(b) in conformity with an arrangement referred to in section 84 of this Act,
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 PIC under that Act relates to an investigation by the PIC concerning misconduct of a Crime Commission officer.
It is intended that the Police Integrity Commission will exercise a function under that Act only in connection with matters arising during or out of its own 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 is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate.
The Commission is required to exercise its functions with as little formality and technicality as is possible, and, in particular, the Commission is required to accept written submissions as far as is possible and hearings are to be conducted with as little emphasis on an adversarial approach as is possible.
Despite subsection (1), section 127 (Religious confessions) of the Evidence Act 1995 applies to any hearing before the Commission.
The Commission may do any or all of the following, despite any proceedings that may be in or before any court, tribunal, coroner, Magistrate or other person:
(a) commence, continue, discontinue or complete any investigation,
(b) furnish reports in connection with any investigation,
(c) do all such acts and things as are necessary or expedient for those purposes.
If the proceedings are proceedings for an indictable offence and are conducted by or on behalf of the Crown, the Commission may, to the extent to which the Commission thinks it necessary to do so to ensure the accused’s right to a fair trial is not prejudiced:
(a) ensure that, as far as practicable, any hearing or other matters relating to the investigation are conducted in private during the currency of the proceedings, and
(b) give directions under section 52, having effect during the currency of the proceedings, and
(c) defer making a report to Parliament in relation to the investigation during the currency of the proceedings.
Subsection (2) does not apply:
(a) in the case of committal proceedings—before the commencement of the committal hearing, that is, the commencement of the taking of the evidence for the prosecution in the committal proceedings, and
(b) in any other case—after the proceedings cease to be proceedings for the trial of a person before a jury.
This section has effect whether or not the proceedings commenced before or after the relevant investigation commenced and has effect whether or not the Commission or an officer of the Commission is a party to the proceedings.
The Commission has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions. Any specific powers conferred on the Commission by this Act are not taken to limit by implication the generality of this section.
(Repealed)
The Commission may conduct an investigation:
(a) on its own initiative, or
(b) on a police complaint made or referred to it or on a police complaint of which it becomes aware, or
(c) on an administrative officer complaint made to it, or
(c1) on a Crime Commission officer complaint made to it, or
(d) on a report made to it.
The Commission may conduct an investigation even though no particular police officer, administrative officer, Crime Commission officer or other person has been implicated and even though no police misconduct, misconduct of a Crime Commission officer or corrupt conduct of an administrative officer is suspected.
The Commission must not conduct an investigation in relation to the Crime Commission in circumstances where no particular Crime Commission officer has been implicated and no misconduct of a Crime Commission officer is suspected unless it has obtained the consent of the Inspector of the New South Wales Crime Commission.
The Commission may, in considering whether or not to conduct, continue or discontinue an investigation, have regard to such matters as it thinks fit, including whether or not (in the Commission’s opinion):
(a) the subject-matter of the investigation is trivial, or
(b) the conduct or matter concerned occurred at too remote a time to justify investigation, or
(c) if the investigation was initiated as a result of a police complaint, Crime Commission officer complaint or administrative officer complaint—the complaint was frivolous, vexatious or not in good faith.
An investigation may be in the nature of a preliminary investigation.
A preliminary investigation can be conducted, for example, for the purpose of assisting the Commission:
(a) to discover or identify conduct that might be made the subject of a more complete investigation under this Act, or
(b) to decide whether to make particular conduct the subject of a more complete investigation under this Act.
Nothing in this section affects any other provision of this Act.
The Commission must not conduct an investigation in the nature of a preliminary investigation in relation to the Crime Commission in circumstances where no particular Crime Commission officer has been implicated and no misconduct of a Crime Commission officer is suspected unless it has obtained the consent of the Inspector of the New South Wales Crime Commission.
For the purposes of an investigation, the Commission may, by notice in writing served on a public authority or public official, require the authority or official to produce a statement of information.
A notice under this section must specify or describe the information concerned, must fix a time and date for compliance, and must specify the person (being the Commissioner, an Assistant Commissioner or any other officer of the Commission) to whom production is to be made.
The notice may provide that the requirement may be satisfied by some other person acting on behalf of the public authority or public official and may, but need not, specify the person or class of persons who may so act.
A person must not:
(a) without reasonable excuse, fail to comply with a notice served on the person under this section, or
(b) in purported compliance with a notice served on the person or some other person under this section, furnish information knowing it to be false or misleading in a material particular.
Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.
This section does not apply to:
(a) the Independent Commission Against Corruption or an officer of the Commission as defined in the Independent Commission Against Corruption Act 1988, or
(b) the Ombudsman or an officer of the Ombudsman.
For the purposes of an investigation, the Commission may, by notice in writing served on a person (whether or not a public authority or public official), require the person:
(a) to attend, at a time and place specified in the notice, before a person (being the Commissioner, an Assistant Commissioner or any other officer of the Commission) specified in the notice, and
(b) to produce at that time and place to the person so specified a document or other thing specified in the notice.
The notice may provide that the requirement may be satisfied by some other person acting on behalf of the person on whom it was imposed and may, but need not, specify the person or class of persons who may so act.
A person must not, without reasonable excuse, refuse or fail to comply with a notice served on the person under this section.
Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.
This section does not apply to:
(a) the Independent Commission Against Corruption or an officer of the Commission as defined in the Independent Commission Against Corruption Act 1988, or
(b) the Ombudsman or an officer of the Ombudsman.
This section applies where, under section 25 or 26, the Commission requires any person:
(a) to produce any statement of information, or
(b) to produce any document or other thing.
The Commission must set aside the requirement if it appears to the Commission that any person has a ground of privilege whereby, in proceedings in a court of law, the person might resist a like requirement and it does not appear to the Commission that the person consents to compliance with the requirement.
The person must however comply with the requirement despite:
(a) any rule that in proceedings in a court of law might justify an objection to compliance with a like requirement on grounds of public interest, or
(b) any privilege of a public authority or public official in that capacity that the authority or official could have claimed in a court of law, or
(c) any duty of secrecy or other restriction on disclosure applying to a public authority or public official or a former public authority or public official.
This section applies where, under section 25 or 26, the Commission requires any person (other than a body corporate):
(a) to produce any statement of information, or
(b) to produce any document or other thing.
If the statement, document or other thing tends to incriminate the person and the person objects to production at the time, neither the fact of the requirement nor the statement, document or thing itself (if produced) may be used in any proceedings against the person (except proceedings for an offence against this Act).
They may however be used for the purposes of the investigation concerned, despite any such objection.
For the purposes of an investigation, the Commissioner or an officer of the Commission authorised in writing by the Commissioner may, at any time:
(a) enter and inspect any premises occupied or used by a public authority or public official in that capacity, and
(b) inspect any document or other thing in or on the premises, and
(c) take copies of any document in or on the premises.
The public authority or public official must make available to the Commissioner or authorised officer such facilities as are necessary to enable the powers conferred by this section to be exercised.
The powers conferred by this section must not be exercised if it appears to the Commissioner or authorised officer that any person has a ground of privilege whereby, in proceedings in a court of law, the person might resist inspection of the premises or production of the document or other thing and it does not appear to the Commissioner or authorised officer that the person consents to the inspection or production.
The powers may however be exercised despite:
(a) any rule of law that, in proceedings in a court of law, might justify an objection to an inspection of the premises or to production of the document or other thing on grounds of public interest, or
(b) any privilege of a public authority or public official in that capacity that the authority or official could have claimed in a court of law, or
(c) any duty of secrecy or other restriction on disclosure applying to a public authority or public official.
This section does not apply to:
(a) the Independent Commission Against Corruption or an officer of the Commission as defined in the Independent Commission Against Corruption Act 1988, or
(b) the Ombudsman or an officer of the Ombudsman.
The Supreme Court may, on application made by the Commission, grant an injunction restraining any conduct in which a person (whether or not a public authority or public official) is engaging or in which such a person appears likely to engage, if the conduct is the subject of, or affects the subject of, an investigation or proposed investigation by the Commission.
The Supreme Court is not to grant an injunction under this section unless it is of the opinion that:
(a) the conduct sought to be restrained is likely to impede the conduct of the investigation or proposed investigation, or
(b) it is necessary to restrain the conduct in order to prevent irreparable harm being done because of police misconduct or suspected police misconduct, or
(c) it is necessary to restrain the conduct in order to prevent irreparable harm being done because of serious corrupt conduct, or suspected serious corrupt conduct, by an administrative officer, or
(d) it is necessary to restrain the conduct in order to prevent irreparable harm being done because of misconduct, or suspected misconduct, of a Crime Commission officer.
The Commission is not to be required, as a condition for the granting of an injunction under this section, to give any undertakings as to damages.
Powers may be exercised under this Division in relation to an investigation whether or not a hearing before the Commission is being held for the purposes of the investigation.
For the purposes of an investigation, the Commission may hold hearings.
A hearing must be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner.
At each hearing, the person presiding must announce the general scope and purpose of the hearing.
A person appearing before the Commission at a hearing is entitled to be informed of the general scope and purpose of the hearing, unless the Commissioner is of the opinion that this would seriously prejudice the investigation concerned.
A hearing may be held in public or in private, or partly in public and partly in private, as decided by the Commission.
Without limiting the above, the Commission may decide to hear closing submissions in private. This extends to a closing submission by a person appearing before the Commission or by an Australian legal practitioner representing such a person, as well as to a closing submission by an Australian legal practitioner assisting the Commission as counsel.
In reaching these decisions, the Commission is obliged to have regard to any matters that it considers to be related to the public interest.
Without limiting the factors that it may take into account in determining whether or not it is in the public interest to conduct a hearing wholly or partly in public, the Commission is to consider the following:
(a) the benefit of exposing to the public, and making it aware of, officer misconduct,
(b) the seriousness of the allegation or complaint being investigated,
(c) any risk of undue prejudice to a person’s reputation (including by not holding the hearing in public),
(d) whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned.
The Commission may give directions as to the persons who may be present at a hearing when it is being held in private. A person must not be present at a hearing in contravention of any such direction.
If it is shown to the satisfaction of the Commission that any person is substantially and directly interested in any subject-matter of a hearing, the Commission may authorise the person to appear at the hearing or a specified part of the hearing.
The Commission may, in relation to a hearing, authorise:
(a) a person giving evidence at the hearing, or
(b) a person referred to in section 34, to be represented by an Australian legal practitioner at the hearing or a specified part of the hearing.
The Commission is required to give a reasonable opportunity for a person giving evidence at the hearing to be legally represented.
An Australian legal practitioner appointed by the Commission to assist it may appear before the Commission.
Groups and unincorporated associations may be authorised to appear at a hearing or authorised or required to give evidence at a hearing.
Accordingly, references in sections 34 and 35 to a “person” extend for this purpose to a group or unincorporated association.
However, this section does not affect the application in any other context of the principle that a reference to a word in the singular form includes a reference to the word in the plural form.
A person authorised or required to appear at a hearing, or a person’s Australian legal practitioner authorised to appear at a hearing, may, with the leave of the Commission, examine or cross-examine any witness on any matter that the Commission considers relevant.
An Australian legal practitioner appointed by the Commission to assist it may examine or cross-examine any witness on any matter that the Commission considers relevant.
Any witness examined or cross-examined under this section has the same protection and is subject to the same liabilities as if examined by the Commissioner or an Assistant Commissioner.
The Commissioner may summon a person to appear before the Commission at a hearing at a time and place named in the summons:
(a) to give evidence, or
(b) to produce such documents or other things (if any) as are referred to in the summons,
or both.
The person presiding at a hearing before the Commission may require a person appearing at the hearing to produce a document or other thing.
The Commission may, at a hearing, take evidence on oath or affirmation and for that purpose:
(a) the person presiding at the hearing may require a person appearing at the hearing to give evidence either to take an oath or make an affirmation in a form approved by the person presiding, and
(b) the person presiding, or a person authorised for the purpose by the person presiding, may administer an oath or affirmation to a person so appearing at the hearing.
A witness who has been summoned to attend before the Commission must appear and report himself or herself from day to day unless the witness is excused from attendance or until the witness is released from further attendance by the person presiding at the hearing.
A person who, without being so excused or released, fails to appear and report is taken to have failed to appear before the Commission in obedience to the summons.
A Judge or Magistrate may, on the application of the Commissioner, issue any summons that the Commissioner is authorised to issue under this section.
The purpose of subsection (6) is to enable the summons to be given the character of a summons by a judicial officer, for the purposes of the Service and Execution of Process Act 1992 of the Commonwealth and any other relevant law.
If a person served with a summons to attend the Commission as a witness fails to attend in answer to the summons, the Commissioner may, on proof by statutory declaration of the service of the summons, issue a warrant for the arrest of the witness.
The Commissioner may issue a warrant for the arrest of a person whose evidence is desired and is necessary and relevant to an investigation, if the Commissioner is satisfied by evidence on oath or affirmation that it is probable that the person:
(a) will not attend before the Commission to give evidence without being compelled to do so, or
(b) is about to or is making preparations to leave the State and the person’s evidence will not be obtained by the Commission if the person departs.
The Commissioner is authorised to administer an oath or affirmation for the purposes of subsection (2).
A warrant may be issued under subsection (2) without or before the issue of a summons to the person whose evidence is desired.
A warrant may be issued under subsection (2) after the issue of a summons to the person whose evidence is desired, even though the time named in the summons for the person to attend has not yet passed.
A warrant under this section authorises the arrest of the witness and his or her being promptly brought before the Commission and detained in a prison or elsewhere for that purpose until released by order of the Commissioner.
A warrant issued under this section may be executed by any police officer, or by any person to whom it is addressed, and the person executing it may use such force as is reasonably necessary for the purpose of entering any premises for the purpose of executing it.
The issue of a warrant or the arrest of a witness does not relieve the witness from any liability incurred by the witness for non-compliance with a summons.
The release of a witness by order of the Commissioner under section 39 (6) may (but need not) be made subject to one or more of the following conditions (or to any other conditions):
(a) that the witness appear and report himself or herself before the Commission in accordance with the terms of the order unless excused from attendance or until released from further attendance by the person presiding at the relevant hearing of the Commission, and
(b) conditions for the purpose of ensuring the further attendance of the witness before the Commission (for example the provision of sureties by the witness, the surrender of any passport held by the witness, a requirement as to where the witness is to live and regular reporting by the witness to the Commission).
From time to time, the Commissioner may by order amend, revoke or add to those conditions.
A witness who has not been released by the Commissioner under section 39 (6) or whose release under that subsection is subject to one or more conditions may apply to the Supreme Court for a review of the decision not to release or failure to release the witness or of the terms of one or more of those conditions.
The Supreme Court may affirm or set aside a decision by the Commissioner not to release the witness or any condition imposed by the Commissioner on the release of the witness. The Supreme Court may also or instead make any order that the Commissioner may make in relation to the detention or release of the witness. The Court may do so also where the Commissioner has not made any decision within a reasonable time on the release of the witness.
Such an order is taken to be an order of the Commissioner.
A witness summoned to attend or appearing before the Commission at a hearing is not entitled to refuse:
(a) to be sworn or to make an affirmation, or
(b) to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a hearing, or
(c) to produce any document or other thing in the witness’s custody or control that the witness is required by the summons or by the person presiding to produce.
A witness summoned to attend or appearing before the Commission at a hearing is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.
An answer made, or document or other thing produced, by a witness at a hearing before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings, but may be used in deciding whether to make an order under section 173 or 181D of the Police Act 1990 and is admissible in any proceedings under Division 1A or 1C of Part 9 of that Act, an order under section 183A of that Act or any proceedings for the purposes of Division 2A of Part 9 of that Act with respect to an order under section 183A of that Act and in any disciplinary proceedings (including for the purposes of taking action under section 69 of the Government Sector Employment Act 2013).
Nothing in this section makes inadmissible:
(a) any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or
(b) any answer, document or other thing in any civil or criminal proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (2), or
(c) any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.
Where:
(a) an Australian legal practitioner or other person is required to answer a question or produce a document or other thing at a hearing before the Commission, and
(b) the answer to the question would disclose, or the document or other thing contains, a privileged communication passing between an Australian legal practitioner (in his or her capacity as an Australian legal practitioner) and a person for the purpose of providing or receiving legal professional services in relation to the appearance, or reasonably anticipated appearance, of a person at a hearing before the Commission,
the Australian legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so.
The Commissioner or person presiding at the hearing may declare that all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer, document or other thing.
A witness attending or appearing before the Commission is to be paid, out of money provided by Parliament, in respect of the expenses of the witness’s attendance an amount ascertained in accordance with the scale prescribed for the purposes of section 51 of the Independent Commission Against Corruption Act 1988 or, if there is no such prescribed scale, such amount as the Commission determines.
A witness who is appearing or about to appear before the Commission may apply to the Attorney General for legal or financial assistance.
The Attorney General may approve the provision of legal or financial assistance to the applicant if of the opinion that this is appropriate, having regard to any one or more of the following:
(a) the prospect of hardship to the witness if assistance is declined,
(b) the significance of the evidence that the witness is giving or appears likely to give,
(c) any other matter relating to the public interest.
On giving the approval, the Attorney General may authorise the provision to the witness of legal or financial assistance determined by the Attorney General in respect of the witness’s appearance before the Commission. The assistance is to be provided out of money provided by Parliament for the purpose.
The assistance may be provided unconditionally or subject to conditions determined by the Attorney General.
The Attorney General may delegate one or more of his or her functions under this section to the Secretary of the Department of Justice.
If the Commissioner requires the attendance at a hearing before the Commission of a prisoner, the Commissioner may, by order in writing served on the governor of the prison in whose custody the prisoner is, direct the governor to produce the prisoner, or have the prisoner produced, at the time and place stated in the order.
Such an order is sufficient authority to the governor of the prison for producing the prisoner or having the prisoner produced, and the prisoner must be produced accordingly.
A prisoner is, when produced under this section in the actual custody of the governor of the prison, a prison officer or a police officer, taken to be in lawful custody.
The governor, prison officer or police officer must in due course return the prisoner to the prison.
In this section,
An authorised officer to whom an application is made under subsection (4) may issue a search warrant if satisfied that there are reasonable grounds for doing so.
The Commissioner, on application made to the Commissioner under subsection (4), may issue a search warrant if the Commissioner thinks fit in the circumstances and if satisfied that there are reasonable grounds for doing so.
Search warrants should, as far as practicable, be issued by authorised officers, but nothing in this subsection affects the discretion of the Commissioner to issue them.
An authorised person may apply to an authorised officer or the Commissioner for a search warrant if the person has reasonable grounds for believing that there is in or on any premises a document or other thing connected with any matter that is being investigated under this Act or that such a document or other thing may, within the next 72 hours, be brought into or onto the premises.
In this section:
A search warrant authorises a police officer, or any other person, named in the warrant:
(a) to enter the premises specified in the warrant, and
(b) to search the premises for documents or other things connected with any matter that is being investigated under this Act, and
(c) to seize any such documents or other things found in or on the premises and deliver them to the Commission.
A police officer, or a senior Commission investigator, named in and executing a search warrant may search a person found in or on the premises whom the police officer or senior Commission investigator reasonably suspects of having a document or other thing mentioned in the warrant.
In this section:
If, in the course of searching, in accordance with the terms of a search warrant, for documents or other things:
(a) the person executing the warrant finds a document or other thing that the person believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth, a State or a Territory, and
(b) the first-mentioned person believes on reasonable grounds that it is necessary to seize the document or other thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence,
the person may seize the document or other thing and, if it is so seized, it is taken for the purposes of this Act to have been seized pursuant to the warrant.
If a document or other thing is seized pursuant to a search warrant:
(a) the Commission may retain the document or other thing if, and for so long as, its retention by the Commission is reasonably necessary for the purposes of an investigation to which it is relevant, and
(b) if the retention of the document or other thing by the Commission is not, or ceases to be, reasonably necessary for such purposes, the Commission must cause it to be delivered to:
(i) the person who appears to the Commission to be entitled to possession of the document or other thing, or
(ii) the Attorney General or the Director of Public Prosecutions, with a recommendation as to what action should be taken in relation to the document or other thing.
If it appears to the Commission:
(a) that there is no person who is entitled to possession of any document or thing referred to in subsection (2), or
(b) that there is such a person, but the person does not wish to have possession of any such document or thing,
the Commission may apply to the Local Court for directions as to its disposal and dispose of it in accordance with the directions given by the Local Court in response to the application.
Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this Act.
Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 so applies as if references in that Division to an authorised officer to whom an application for a search warrant is made or by whom a search warrant is issued included (where relevant) references to the Commissioner, where such an application is made to the Commissioner or a search warrant is issued by the Commissioner.
A person must not, without reasonable excuse, obstruct or hinder a person executing a search warrant.
Maximum penalty: 20 penalty units or imprisonment for 2 years, or both.
The Commissioner or an officer of the Commission may seek the issue of a warrant under the Surveillance Devices Act 2007.
If it appears to the Commissioner that, because a person is assisting the Commission, the safety of the person or any other person may be prejudiced or the person or any other person may be subject to intimidation or harassment, the Commissioner may make such arrangements as are necessary:
(a) to protect the safety of any such person, or
(b) to protect any such person from intimidation or harassment.
In this section, a reference to a person who is assisting the Commission is a reference to a person who:
(a) has appeared, is appearing or is to appear before the Commission to give evidence or to produce a document or other thing, or
(b) has produced or proposes to produce a document or other thing to the Commission under this Act, or
(c) has assisted, is assisting or is to assist the Commission in some other manner.
Any such arrangements may (but need not) involve the Commissioner directing the Commissioner of Police or a prescribed public authority or prescribed public official:
(a) to provide any protection referred to in subsection (1), or
(b) to provide personnel or facilities or both to assist in providing that protection, or
(c) to otherwise assist in the provision of that protection.
The Commissioner of Police, or such a public authority or public official, is under a duty to comply with any such direction as far as reasonably possible.
Any such arrangements may (but need not) involve the Commissioner making orders applying to a specified person for the purpose of protecting the safety of a person referred to in subsection (1) or of protecting such a person from intimidation or harassment. Such an order is not limited to directions of a kind referred to in subsection (3).
A person who contravenes an order applying to the person under subsection (5) without reasonable excuse is guilty of an indictable offence.
Maximum penalty: 200 penalty units or imprisonment for 5 years, or both.
Nothing in this section affects the Witness Protection Act 1995.
The Commission may direct that:
(a) any evidence given before the Commission, or
(b) the contents of any document, or a description of any thing, produced to the Commission, or seized under a search warrant issued under this Act, or
(c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or
(d) the fact that any person has given or may be about to give evidence before the Commission,
must not be published except in such manner, and to such persons, as the Commission specifies.
The Commission is not to give a direction under this section unless satisfied that the direction is necessary or desirable in the public interest.
A person must not make a publication in contravention of a direction given under this section.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
It is not a contravention of a direction given under this section to publish any evidence, contents of a document or information to a registered medical practitioner or registered psychologist for the purposes of that health practitioner providing medical or psychiatric care, treatment or counselling (including but not limited to psychological counselling) to a person who has given or may be about to give evidence before the Commission.
A person who was present at a hearing of the Commission held in private must not publish, or permit or allow to be published, any evidence given before the Commission at the hearing or any of the contents of a document produced at the hearing, except to an officer of the Commission or as permitted by the Commission or by the regulations.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
Nothing in this section affects section 52, but a person cannot be punished under both sections for the same publication.
This section does not apply to an officer of the Commission.
It is not a contravention of this section to publish any evidence or contents of a document to a registered medical practitioner or registered psychologist for the purposes of that health practitioner providing medical or psychiatric care, treatment or counselling (including but not limited to psychological counselling) to a person who has given or may be about to give evidence at a hearing of the Commission held in private.
A person who is required:
(a) by a notice under section 25 or 26 to produce a document or other thing, or
(b) by a summons under section 38 to give evidence or to produce a document or other thing,
must not disclose any information about the notice or summons that is likely to prejudice the investigation to which it relates.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
Subsection (1) does not apply to a notice or summons unless it specifies that information about the notice or summons must not be disclosed.
A person does not contravene this section if:
(a) the disclosure is made to an employee, agent or other person in order to obtain information to comply with the notice or summons and the employee, agent or other person is directed not to inform the person to whom the information relates about the matter, or
(b) the disclosure is made to obtain legal advice or representation in relation to the notice of summons, or
(c) the disclosure is made for the purposes of, or in the course of, legal proceedings, or
(c1) the disclosure is made to a registered medical practitioner or registered psychologist in relation to the provision by that health practitioner of medical or psychiatric care, treatment or counselling (including but not limited to psychological counselling) to a person required to give evidence by a summons under section 38, or
(d) the disclosure is made in accordance with guidelines issued by the Commission or in accordance with the regulations.
A reference in this section to the disclosure of any information about a notice or summons includes a reference to:
(a) a disclosure about the existence or nature of the notice or summons or of the investigation to which it relates, and
(b) a disclosure of any information to a person from which the person could reasonably be expected to infer the existence or nature of the notice or summons or of the investigation to which it relates.
The Commission may recommend to the Attorney General that a person be granted (under section 32 of the Criminal Procedure Act 1986) an indemnity from prosecution.
The Commission may recommend to the Attorney General that a person be given (under section 33 of the Criminal Procedure Act 1986) an undertaking that:
(a) an answer, statement or disclosure in proceedings before the Commission, or
(b) the fact of a disclosure or production of a document in proceedings before the Commission, will not be used in evidence against the person.
Section 33 of the Criminal Procedure Act 1986 applies in relation to proceedings before the Commission in the same way as it applies in relation to proceedings for an offence.
A reference in this section to proceedings before the Commission includes a reference to a hearing before the Commission or any other investigative activity involving the Commission or an officer of the Commission.
This section applies to:
(a) a person who is or was an officer of the Commission, and
(b) a person who is or was an officer of the Inspector, and
(c) a person who is or was an Australian legal practitioner appointed to assist the Commission or who is or was a person who assists, or performs services for or on behalf of, such an Australian legal practitioner in the exercise of the Australian legal practitioner’s functions as counsel to the Commission, and
(d) a person or body referred to in section 15 (6), 18 (4), 77 (5) or 83 (6), and
(e) an authorised person referred to in section 18A, and
(f) a person who conducts a review under section 136B, but only in relation to the exercise of the person’s functions under that section.
A person to whom this section applies must not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person’s functions under this Act:
(a) make a record of any information, or
(b) divulge or communicate to any person any information,
being information acquired by the person by reason of, or in the course of, the exercise of the person’s functions under this Act.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
A person to whom this section applies cannot be required:
(a) to produce in any court any document or other thing that has come into the person’s possession, custody or control by reason of, or in the course of, the exercise of the person’s functions under this Act, or
(b) to divulge or communicate to any court any matter or thing that has come to the person’s notice in the exercise of the person’s functions under this Act,
except for the purposes of a prosecution, disciplinary proceedings or proceedings under Division 1A or 1C of Part 9 of the Police Act 1990, arising out of an investigation conducted by the Commission in the exercise of its functions.
Despite this section, a person to whom this section applies may divulge any such information:
(a) for the purposes of and in accordance with this Act, or
(b) for the purposes of:
(i) a prosecution, or
(ii) disciplinary proceedings, or
(iii) the making of an order under section 173 or 181D of the Police Act 1990, or
(iv) proceedings under Division 1A or 1C of Part 9 of that Act,
arising out of an investigation conducted by the Commission in the exercise of its functions, or
(c) in accordance with a direction of the Commissioner or Inspector, if the Commissioner or Inspector certifies that it is necessary to do so in the public interest, or
(d) to any prescribed authority or person, or
(e) to a registered medical practitioner or registered psychologist for the purposes of that health practitioner providing medical or psychiatric care, treatment or counselling (including but not limited to psychological counselling) to a person to whom this section applies.
An authority or person to whom information is divulged under subsection (4), and any person or employee under the control of that authority or person, is subject to the same rights, privileges, obligations and liabilities under subsections (2) and (3) in respect of that information as if he or she were a person to whom this section applies and had acquired the information in the exercise of functions under this Act.
In this section:
The Ombudsman, and any officer of the Ombudsman acting with the approval of the Ombudsman, may:
(a) furnish to the Commission information obtained by the Ombudsman or officer in exercising functions under the Ombudsman Act 1974, Part 8A (Complaints about conduct of police officers) of the Police Act 1990 or any other Act, or
(b) give evidence before the Commission and produce any document to the Commission, in respect of any such information.
Neither the Ombudsman nor any officer of the Ombudsman can be compelled to give any evidence before the Commission or produce any document before the Commission in respect of information obtained by the Ombudsman or officer in exercising functions as referred to in subsection (1).
This section applies despite sections 34 (Disclosure by Ombudsman or officer) and 35 (Ombudsman, officer or expert as witness) of the Ombudsman Act 1974 or sections 163 (Ombudsman not to publish certain information) and 165 (Ombudsman and officers of Ombudsman not competent or compellable witnesses in respect of certain matters) of the Police Act 1990, and any other law.
Section 35 of the Ombudsman Act 1974 and section 165 of the Police Act 1990 do not apply in respect of any proceedings for an offence under this Act.
The Police Royal Commissioner, and any officer of the Police Royal Commissioner acting with the approval of the Police Royal Commissioner, may:
(a) furnish to the Commission information obtained by the Police Royal Commissioner or officer in exercising functions in relation to the Police Royal Commission, or
(b) give evidence before the Commission and produce any document to the Commission, in respect of any such information.
Neither the Police Royal Commissioner nor any officer of the Police Royal Commissioner can be compelled to give any evidence before the Commission or produce any document before the Commission in respect of information obtained by the Police Royal Commissioner or officer in exercising functions as referred to in subsection (1).
This section applies despite section 30 (Secrecy) of the Royal Commission (Police Service) Act 1994, and any other law.
Section 30 of the Royal Commission (Police Service) Act 1994 does not apply in respect of any proceedings for an offence under this Act.
The PIC Commissioner, and any officer of the Commission acting with the approval of the Commissioner, may:
(a) furnish to the Police Royal Commission information obtained by the PIC Commissioner or officer in exercising functions in relation to the Police Integrity Commission, or
(b) give evidence before the Police Royal Commission and produce any document to the Police Royal Commission, in respect of any such information.
Neither the PIC Commissioner nor any officer of the Commission can be compelled to give any evidence before the Police Royal Commission or produce any document before the Police Royal Commission in respect of information obtained by the PIC Commissioner or officer in exercising functions as referred to in subsection (1).
This section applies despite section 56 and any other law.
Section 56 does not apply in respect of any proceedings for an offence under this Act.
The PIC Commissioner, and any officer of the Commission acting with the approval of the Commissioner, may:
(a) furnish to the Ombudsman information obtained by the Commissioner or officer in exercising functions in relation to the Police Integrity Commission, or
(b) give evidence before the Ombudsman and produce any document to the Ombudsman in respect of any such information.
The PIC Commissioner, and any officer of the Commission, can be compelled to give evidence before the Ombudsman or produce a document before the Ombudsman in respect of information obtained by the PIC Commissioner or officer in exercising functions as referred to in subsection (1) only if:
(a) a matter has been referred by the Inspector of the Police Integrity Commission, or the Inspector of the Crime Commission, to the Ombudsman for investigation, and
(b) the evidence or document is relevant to the matter referred.
The Ombudsman may exercise the Ombudsman’s powers under section 19 (2) of the Ombudsman Act 1974 for the purposes of subsection (2).
This section applies despite section 56 and any other law.
Section 56 does not apply in respect of any proceedings for an offence under this Act.
The following provisions do not apply to the divulging of information, or the production of any document or other thing, pursuant to a requirement made by or under this Act:
A person may not hold the office of Commissioner for terms totalling more than 5 years.
Despite subclause (2), the person holding the office of Commissioner immediately before the commencement of this subclause may hold the office of Commissioner for terms totalling no more than 6 years.
The Commissioner is entitled to be paid:
(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and
(b) such travelling and subsistence allowances as the Minister may from time to time determine.
(Repealed)
The Commissioner is not, if a Judge of a New South Wales Court and while receiving remuneration as such a Judge, entitled to remuneration under this Act.
The appointment of a person who is the holder of a judicial office as Commissioner or service by a person who is the holder of a judicial office as Commissioner does not affect:
(a) the person’s tenure of that judicial office, or
(b) the person’s rank, title, status, remuneration or other rights or privileges as the holder of that judicial office.
The person’s service as Commissioner is, for all purposes, taken to be service as the holder of that judicial office.
In this clause:
The office of Commissioner becomes vacant if the holder:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) holds office for longer than the relevant term mentioned in clause 4, or
(d) resigns the office by instrument in writing addressed to the Governor, or
(e) is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or
(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(g) becomes a mentally incapacitated person, or
(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(i) is removed from office under subclause (2).
The Commissioner may be removed from office by the Governor on the address of both Houses of Parliament.
If the office of Commissioner becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
The office of Commissioner is a statutory office and the Government Sector Employment Act 2013 does not apply to that office.
A person is not to be appointed as Commissioner until:
(a) a proposal that the person be so appointed has been referred to the Joint Committee under section 31BA of the Ombudsman Act 1974, and
(b) the period that the Committee has under that section to veto the proposed appointment has ended without the Committee having vetoed the proposed appointment or the Committee notifies the Minister that it has decided not to veto the proposed appointment.
A person may be proposed for appointment on more than one occasion.
In this clause,
(Section 88)
A reference in this Schedule to the Inspector is taken to include a reference to an Assistant Inspector, except:
(a) in clauses 8 and 10, and
(b) as may be provided by the regulations.
A person is not eligible to be appointed as Inspector or to act in that office unless the person has special legal qualifications.
A person is not eligible to be appointed as Inspector 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.
The Governor may, from time to time, appoint a person to act in the office of Inspector during the illness or absence of the Inspector. The person, while so acting, has all the functions of the Inspector and is taken to be the Inspector.
The Governor may, at any time, remove a person from the office to which the person was appointed under this clause.
A person while acting under this clause is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Governor may from time to time determine.
For the purposes of this clause, a vacancy in the office of Inspector is taken to be an absence from office of Inspector.
The office of Inspector may be a full-time or part-time office, according to the terms of appointment.
The holder of a full-time office referred to in subclause (1) is required to hold it on that basis, except to the extent permitted by the Governor.
Subject to this Schedule, the Inspector holds office for such term not exceeding 5 years as may be specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
A person may not hold the office of Inspector for terms totalling more than 5 years.
The Inspector is entitled to be paid such remuneration (including travelling and subsistence allowances) as may be specified in the instrument of appointment or as may be afterwards determined by the Governor from time to time.
A determination does not operate so as to reduce the rate at which remuneration is payable during the person’s current term of office.
The Inspector is not, if a Judge of a New South Wales Court and while receiving remuneration as such a Judge, entitled to remuneration under this Act.
The appointment of a person who is the holder of a judicial office as Inspector or service by a person who is the holder of a judicial office as Inspector does not affect:
(a) the person’s tenure of that judicial office, or
(b) the person’s rank, title, status, remuneration or other rights or privileges as the holder of that judicial office.
The person’s service as Inspector is, for all purposes, taken to be service as the holder of that judicial office.
In this clause:
The office of Inspector becomes vacant if the holder:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) holds office for longer than the relevant term mentioned in clause 4, or
(d) resigns the office by instrument in writing addressed to the Governor, or
(e) is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or
(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(g) becomes a mentally incapacitated person, or
(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(i) is removed from office under subclause (2).
The Inspector may be removed from office by the Governor on the address of both Houses of Parliament.
If the office of Inspector becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
The Government Sector Employment Act 2013 does not apply to the appointment of the Inspector, and the holder of that office is not, as holder, subject to that Act.
A person is not to be appointed as Inspector until:
(a) a proposal that the person be so appointed has been referred to the Joint Committee under section 31BA of the Ombudsman Act 1974, and
(b) the period that the Committee has under that section to veto the proposed appointment has ended without the Committee having vetoed the proposed appointment or the Committee notifies the Minister that it has decided not to veto the proposed appointment.
A person may be proposed for appointment on more than one occasion.
In this clause,
(Section 144)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
The PIC may exercise any of its functions under this Act in relation to anything done or omitted to be done by, to or in relation to the Police Royal Commission (including, for example, the punishment of contempt of the Police Royal Commission).
Without limiting subclause (1) or any other power of the PIC, the PIC may continue any investigation or other matter commenced but not completed by the Police Royal Commission, and may for this purpose adopt any evidence taken or assessments made by the Police Royal Commission.
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.
An order, arrangement or direction in force under section 26 (or a direction in force under section 27) of the Royal Commission (Police Service) Act 1994 immediately before a Police Royal Commissioner discharges his or her functions under the Royal Commission issued to him or her continues in force under that Act despite that discharge and without the need for a further Royal Commission that provides that that Act is to apply to the Commission.
After the commencement of this subclause, whether or not there is a Royal Commission in force that provides that the Royal Commission (Police Service) Act 1994 is to apply to the Commission, the PIC Commissioner has the same powers as a Police Royal Commissioner would have if a Police Royal Commissioner were to have functions under that Act:
(a) to make an order, arrangement or direction under section 26 of that Act or a direction under section 27 of that Act, and
(b) to vary or revoke such an order, arrangement or direction, whether made by a Police Royal Commissioner or the PIC Commissioner.
The PIC Commissioner has the powers referred to in subclause (2) in respect of a person whether or not an order, arrangement or direction was in force in respect of the person under the Royal Commission (Police Service) Act 1994 before the commencement of that subclause.
In this clause:
A transferred record is taken at all times and for all purposes to have come lawfully into the possession of the PIC, and the possession of the record by the PIC is taken for all purposes to be lawful.
The dissemination of a transferred record, or of information in a transferred record, in purported compliance with a direction of the Police Royal Commissioner under section 30 of the Royal Commission (Police Service) Act 1994 before the commencement of this clause is taken at all times and for all purposes to be lawful.
Section 56 applies and is taken always to have applied to information in a transferred record as if the information had been acquired by reason of, or in the course of, the exercise of functions under this Act.
Accordingly, and without affecting subclause (3), information comprised in a transferred record is capable, and is taken always to have been capable, of being divulged under section 56 as if the information had been acquired by reason of, or in the course of, the exercise of functions under this Act, and any such divulging of information is taken for all purposes to be lawful.
No civil or criminal liability attaches to, or is taken to have attached to, any person in connection with any act or omission involved in:
(a) the giving of such possession to the PIC, or the receiving of such possession by the PIC, as referred to in subclause (2), or
(b) the dissemination of such a transferred record, as referred to in subclause (3), or
(c) the divulging of such information, as referred to in subclause (5).
This clause has effect despite section 30 of the Royal Commission (Police Service) Act 1994.
In the application of section 56 (3) to a transferred record, a reference in that subsection to a prosecution or disciplinary proceedings is taken to include a reference to a prosecution or disciplinary proceedings instituted, whether before or after the commencement of this clause, as a result of the Police Royal Commission’s inquiry (as referred to in section 30 (3) of the Royal Commission (Police Service) Act 1994).
A reference in subclause (8) to disciplinary proceedings includes a reference to action under Part 9 of the Police Act 1990.
Without affecting the generality of section 56 of this Act and section 30 of the Royal Commission (Police Service) Act 1994, it is expressly declared that a reference in those sections and in this clause to the divulging of information, so far as the reference is applicable to information comprising or contained in a transferred record, includes and is taken always to have included a reference to the dissemination of the record.
Nothing in this clause:
(a) prevents a transferred record from being disposed of or otherwise dealt with in any manner that would be available if this clause had not been enacted, or
(b) affects the operation of the Telecommunications (Interception) (New South Wales) Act 1987.
In this Part:
The new Part 8A extends to conduct that occurred after the commencement of the Police Regulation (Allegations of Misconduct) Act 1978 and before the commencement of the new Part 8A.
Anything duly done under the old Part 8A is taken to have been duly done under the corresponding provision of the new Part 8A.
Without limiting subclause (2), a complaint duly made under the old Part 8A and subsisting at the time of its repeal by the amending Act is taken to have been duly made under the new Part 8A.
A reference in section 124 of the Police Act 1990 to a complaint already made in accordance with that Act is taken to include a reference to a complaint made in accordance with that Act before the commencement of the new Part 8A.
This clause has effect subject to the regulations under this Schedule.
In this Part,
Section 39A only applies to any release ordered on or after the commencement of that section.
Section 39B only applies to any decision, failure or order made or occurring on or after the commencement of that section.
A reference in section 52, as amended by the amending Act, to a person who has given evidence includes a reference to a person who has given evidence before the commencement of that amendment.
A reference in section 112 (3), as inserted by the amending Act, to a person who is in detention includes a reference to a person in detention at the commencement of that subsection even if the person was detained before that commencement.
The power, contained in section 120A, to release an offender detained under section 120 may be exercised in relation to an offender already in detention at the commencement of section 120A or detained at any time afterwards.
Section 120B only applies to any decision, failure or order made or occurring on or after the commencement of that section.
In this Part:
The amendments extend to a person who is the holder of the office of Commissioner immediately before the relevant date.
Until a determination is made under the Statutory and Other Offices Remuneration Act 1975, clause 5 of Schedule 1, as in force immediately before the relevant date, continues to apply to a person who is the holder of the office of Commissioner.
Any provision specifying the Commissioner’s remuneration in the instrument of appointment, or any determination, under clause 5 of Schedule 1 (as in force immediately before the relevant date) that is applicable to the Commissioner ceases to have effect when a determination is first made under the Statutory and Other Offices Remuneration Act 1975.
In this Part:
Except as provided by subclause (2), the amendments made to this Act by the amending Act concerning the detection and investigation of corrupt conduct of administrative officers or former administrative officers extend to conduct that occurred (or is alleged to have occurred) before the relevant commencement day.
This Act (as in force immediately before the relevant commencement day) continues to apply to the investigation of a complaint about the conduct of an administrative officer that was made before that day.
In this clause,
The amendment made to section 141 (4) by Schedule 1 [23] to the amending Act applies to offences committed (or alleged to have been committed) on or after the commencement of that amendment.
Section 141 (4), as in force immediately before the commencement of Schedule 1 [23] to the amending Act, continues to apply to offences committed (or alleged to have been committed) before that commencement.
Sections 70 and 71, as substituted by the Police Amendment (Miscellaneous) Act 2006, and section 74, as amended by that Act, apply to complaints made before the commencement of those sections and that amendment.
Section 74, as amended by the Police Amendment Act 2007, applies to complaints made before the commencement of that amendment.
Section 141, as amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 2007, does not apply in respect of any alleged offence under section 26 that occurred before that section was so amended.
In this Part:
The amendments made to this Act by the amending Act concerning the detection and investigation of misconduct of Crime Commission officers or former Crime Commission officers extend to conduct that occurred (or is alleged to have occurred) before the commencement of the amending Act.
The amendments made to this Act by the amending Act do not affect any matter relating to the New South Wales Crime Commission or a Crime Commission officer that was being dealt with by the ICAC before the commencement of the amending Act.
Any such existing matter cannot be referred by the ICAC to another person or body under section 53 of the Independent Commission Against Corruption Act 1988. However, nothing in this subclause prevents the ICAC from referring, in accordance with that section, any other matter that arises out of its dealing with the existing matter.
Any arrangement made under section 131 and in force immediately before the commencement of the amending Act is taken to be an arrangement in force under that section as amended by the amending Act.
Section 137A (as inserted by the Police Integrity Commission Amendment Act 2012) does not apply to reports prepared before the commencement of that section.
Any collection, use or disclosure of vetting information to or by the Inspector or the Commission that occurred before the commencement of section 136A, as inserted by the Independent Commission Against Corruption and Other Legislation Amendment Act 2013, is taken to have been validly done if the collection, use or disclosure would have been valid if done on or after that commencement.
Section 125 (2), as amended by the Police Integrity Commission and Independent Commission Against Corruption Legislation Amendment (Inspectors) Act 2013, extends to conduct of the Inspector or an officer of the Inspector occurring before the commencement of that amendment.
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