Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 (NSW)

POLICE SERVICE (COMPLAINTS, DISCIPLINE AND APPEALS) AMENDMENT ACT 1993 No. 38

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title

2. Commencement

3. Amendment of Police Service Act 1990 No. 47

4. Consequential amendments to other Acts

5. Repeals

SCHEDULE 1—AMENDMENT OF POLICE SERVICE ACT 1990 ELATING TO

COMPLAINTS AND DISCIPLINE OF MEMBERS OF POLICE SERVICE

SCHEDULE 2—CONSEQUENTIAL AMENDMENT OF POLICE SERVICE ACT

1990 RELATING TO PROMOTIONAL APPEALS BY POLICE OFFICERS

SCHEDULE 3—MISCELLANEOUS AND CONSEQUENTIAL AMENDMENTS

TO POLICE SERVICE ACT 1990

SCHEDULE 4—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

SCHEDULE 5—REPEALS

POLICE SERVICE (COMPLAINTS, DISCIPLINE AND

APPEALS) AMENDMENT ACT 1993 No. 38

NEW SOUTH WALES

Act No. 38, 1993

An Act to amend the Police Service Act 1990 with respect to police complaints, discipline and appeals, and in other respects; to repeal the Police Regulation (Allegations of Misconduct) Act 1978 and the Police Regulation (Appeals) Act 1923; and to amend certain other Acts. [Assented to 8 June 1993]

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

The Legislature of New South Wales enacts:

Short title

1. This Act may be cited as the Police Service (Complaints, Discipline

and Appeals) Amendment Act 1993.

Commencement

2. This Act commences on a day or days to be appointed by

proclamation.

Amendment of Police Service Act 1990 No. 47

3. The Police Service Act 1990 is amended as set out in Schedules

1-3.

Consequential amendments to other Acts

4. The Acts specified in Schedule 4 are amended as set out in that

Schedule.

Repeals

5. (1) The Acts specified in Part 1 of Schedule 5 are repealed.

(2) The regulations specified in Part 2 of Schedule 5 are repealed.

(3)	Different days may be appointed for the commencement of this

section and Schedule 5 for the purpose of repealing different Acts or regulations, or different provisions of an Act or regulation, on different days.

SCHEDULE 1—AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO COMPLAINTS AND DISCIPLINE OF

MEMBERS OF POLICE SERVICE

(Sec. 3)

(1) Section 3 (Definitions):

Insert in alphabetical order:

“G REA T” means

the

Government

and

Employees Appeal Tribunal established under the Government and Related Employees Appeal Tribunal Act 1980;

‘‘Police T ribunal” means the Police Tribunal of New South Wales established under Part 9A;

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SCHEDULE l—AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO COMPLAINTS AND DISCIPLINE OF MEMBERS

OF POLICE SERVICE— continued

(2) Part 8A:

After Part 8, insert:

PA RT 8A—COM PLAINTS ABOUT CONDUCT O F

PO LIC E O FFICERS

Division 1—Definitions

Definition of “conduct” of police officer

121. (1) In this Part, “conduct” of a police officer means

any action or inaction, or alleged action or inaction, of a

police officer when acting as a constable.

(2) Such conduct does not include conduct relating to a

matter of administration that may be made the subject of a

complaint under section 12 of the Ombudsman Act 1974.

O ther

122. In this Part:

“complaint” means a complaint made in accordance with

definitions

Division 2;

“conciliation” means conciliation under Division 3;

“investigation” means investigation under Division 4;

“telephone” includes facsimile transmission or other

means of electronic transmission.

Division

2 -C om pla in tsaga inst

police

officers

R ight to m ake complaint

123. (1) Any person may make a complaint about the

conduct of a police officer.

(2)	If the complaint is made in accordance with this

Division, it is to be dealt with under this Part.

(3) However, the complaint is not to be so dealt with if it is excluded by this Division.

(4) This section does not affect any other right of a person to complain about the conduct of a police officer.

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OF POLICE SERVICE— continued

Excluded complaints

124. (1) Internal management. A complaint by a person

about the conduct of a police officer is not to be dealt with under this Part if the conduct is of a class or kind that the Ombudsman and the Commissioner have agreed concerns the internal management of the Police Service and should not be subject to this Part.

(2) Previous complaints. A complaint by a person about the conduct of a police officer is not to be dealt with under this part if:

the person has already made another complaint in accordance with this Division about the same conduct of the police officer and that other complaint is being dealt with, or has been dealt with, under this Part; or the person has already made another complaint (not being a Complaint in accordance with this Division) about the same conduct of the police officer and that other complaint:

(i) is being officially investigated; or

(ii) has been dealt with after such an investigation,

including, for example, an official investigation by a Royal Commission or by a Parliamentary Committee, but not including an investigation by the Commissioner, the Independent Commission Against Corruption or the New South Wales Crime Commission; or

the person is not identified in the complaint and another complaint in which the complainant is identified has already been made in accordance with this Division about the same conduct of the police officer.

Making of complaints

125. (1) In writing. A complaint must be in writing.

(2)	Anonymous complaints. It is not necessary for the

complainant to be identified in a complaint.

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OF POLICE SERVICE— continued

(3) How made. A complaint is duly made if:

(a)	it is delivered to a police officer personally or received by a police officer by post or by facsimile transmission; or
(b)	it is lodged at the office of the Ombudsman while that office is open for business or it is received in that office by post or by facsimile transmission; or
(c)	it is addressed to the Ombudsman and lodged at a Local Court while that Court is open for business; or
(d)	it is referred to the Ombudsman by the Minister or by the Independent Commission Against Corruption.

(4)	M.P. may act for complainant. A complaint may,

with the written consent of the complainant, be made on his

or her behalf by a member of Parliament.

(5)	Complaints by prisoners. If a prisoner informs a

prison officer that the prisoner wishes to make a complaint to a police officer, or to the Ombudsman, the prison officer must:

(a)	take all steps necessary to facilitate the making of the complaint; and
(b)	send immediately to the addressee, unopened, any written matter addressed to a police officer (whether by name or by reference to an office held by the officer) or to the Ombudsman.

In this subsection, prisoner means any person in lawful detention or custody and prison officer means any person by whom the prisoner is detained, or in whose custody the prisoner is or who is in charge of the prisoner.

Complaints received by police to be forwarded to

Commissioner

126. (1) A police officer who receives a complaint must,

as soon as practicable, forward the complaint to the Commissioner or a police officer nominated by the Commissioner.

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OF POLICE SERVICE— continued

(2) This section does not apply if the complaint has previously been forwarded to the Commissioner or nominated officer.

Ombudsman to be sent copies of complaints received by police

127. If the Commissioner or nominated police officer

receives a complaint, either directly or forwarded by another police officer, the Commissioner or nominated officer must, as soon as practicable, cause a copy of the complaint to be sent to the Ombudsman.

Provisions relating to complaints lodged at Local Courts

128. ( l ) If a complaint is lodged at a Local Court, the

Clerk of the Court must, by telephone, notify the Ombudsman as soon as practicable of brief details of the complaint.

(2) The Clerk of the Court must, as soon as practicable, forward the complaint to the Ombudsman, unless otherwise directed by the Ombudsman.

(3)	If the Clerk of the Court is directed to do so by the

Ombudsman, the Clerk must:

forward the complaint to a police officer specified by

the Ombudsman; and

obtain a receipt for the complaint from that police

officer; and

retain such records of the complaint as the

Ombudsman directs; and

send a copy of the complaint to the Ombudsman

together with the receipt and a report of the action

taken by the Clerk.

The Ombudsman may give such a direction to the

Clerk of the Court only if the Ombudsman is requested to do so by a police officer responsible for investigating any aspect of the complaint that may relate to a possible criminal offence.

(5 ) The Clerk of a Local Court is taken to be an officer of the Ombudsman in connection with any action of the Clerk under this section.

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SCHEDULE l—AMENDMENT OF POLICE SERVICE ACT 1990

RELATING TO COMPLAINTS AND DISCIPLINE OF MEMBERS

OF POLICE SERVICE— continued

Provisions relating to complaints referred by Minister or

ICAC or made by M.P.

129. ( 1) If the Minister refers a complaint to the

Ombudsman or a member of Parliament acts for a complainant, neither the Minister nor the member becomes the complainant, except for the purposes of any provision of this Act under which the complainant is informed or notified of any matter or given or sent any matter.

(2) If:

(a)	the Minister publishes to a person whose complaint has been referred by the Minister any matter with respect to the complaint published to the Minister by a police officer or by the Ombudsman; or
(b)	a member of Parliament publishes to a person for whom the member acts any such matter published to the member,

the publication to that person has, for all purposes, the same effect as it would have if it had been published to that person by the police officer, or the Ombudsman, as the case may be.

(3) If the Independent Commission Against Corruption refers a complaint to the Ombudsman, that Commission does not become the complainant. A complaint about the conduct of a police officer in a report, transcripts of proceedings or other record of that Commission does not constitute a complaint unless it is referred by that Commission or it is the subject of a separate complaint under this Division.

Mixed and linked complaints

130. (1) This section applies to:

(a)	a mixed complaint, that is, a complaint relating partly to conduct of a police officer that is conduct within the meaning of this Part and partly to conduct of that or another police officer that is conduct that may be made the subject of a complaint under section 12 of the Ombudsman Act 1974; or

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OF POLICE SERVICE—continued

(b)

a linked complaint, that is, a complaint made in respect of conduct of a police officer that is conduct within the meaning of this Part and, in the opinion of the Ombudsman, that conduct is directly linked to conduct of that or another police officer that may be made the subject of a complaint under section 12 of the Ombudsman Act 1974.

(2) Mixed or linked complaints are to be dealt with in accordance with the directions of the Ombudsman.

(3) For that purpose, the Ombudsman may direct that the complaints be dealt with wholly under this Part or wholly under the Ombudsman Act 1974, or partly under this Part and partly under that Act, despite anything to the contrary in this Part or that Act.

(4) If it appears to the Ombudsman:

(a)	that the Ombudsman is dealing under the Ombudsman Act 1974 with a complaint that relates to conduct of a police officer that is conduct within the meaning of this Part; o r .
(b)	that the Ombudsman is dealing under this Part with a complaint relating to conduct of a police officer that is not conduct within the meaning of this Part,

the Ombudsman is not to discontinue action on the complaint but (subject to this section) must continue action on the complaint in accordance with the provisions of the appropriate Act.

Division 3—Conciliation

Nature of conciliation

131. For the purposes of this Part, conciliation of a

complaint about the conduct of a police officer means dealing with the complaint under this Division in a manner acceptable to the complainant.

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O F POLICE SERVICE— continued

Complaints where conciliation must be attempted

132. (1) An attempt must be made to deal with a complaint

about the conduct of a police officer by conciliation if the conduct is of a class or kind that the Ombudsman and the Commissioner have agreed should be dealt with by conciliation.

(2)	This section does not apply to a complaint excluded

from conciliation by section 134.

Other complaints where conciliation may be attempted

133. (1) An attempt may be made to deal with any other

complaint about the conduct of a police officer by conciliation if the officer dealing with the complaint is satisfied that conciliation may be successful.

(2) This section does not apply to a complaint excluded by section 134.

Complaints that may not be dealt with by conciliation

134. A complaint about the conduct of a police officer may

not be dealt with by conciliation i f :

(a)	the conduct appears to have involved the commission of an indictable offence; or
(b)	the'Commissioner has decided, or the Ombudsman has directed, that the complaint be investigated under Division 4; or

Who attempts conciliation

135. (1) A police officer is to make an attempt to deal with

a complaint by conciliation if the complaint was received by a police officer or if it was referred by the Ombudsman to the Commissioner for conciliation.

(2) If the complaint was received by the Ombudsman and not referred to the Commissioner, the attempt to conciliate is to be made by the Ombudsman or an officer of the Ombudsman.

(3) The person who is attempting to deal with a complaint by conciliation may, with the agreement of the complainant, arrange for a mediator to assist in the conciliation.

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OF POLICE SERVICE—continued

Notification of outcome of conciliation

136. (1) A police officer who attempts to deal with a

complaint by conciliation must inform the Ombudsman of

the outcome.

(2)	If the Ombudsman or an officer of the Ombudsman

attempts to deal with a complaint by conciliation, the Ombudsman must inform the Commissioner of the outcome. Statements by police officer during conciliation not admissible in disciplinary proceedings

137. (1) If a complaint about the conduct of a police

officer is being dealt with by conciliation under this Division, any statement made by that police officer in good faith for the purposes of the conciliation is not admissible in any disciplinary proceedings against the police officer.

(2)	The statement is inadmissible only if the disciplinary

proceedings relate to the conduct that is the subject of the

complaint.

Audit by Ombudsman of conciliation by police officers

138. ( l ) The Ombudsman is to conduct random audits of

complaints that police officers have dealt with by conciliation

under this Division.

For the purposes of any such audit, the Ombudsman

may:

inspect the records made by police officers of a

conciliation; and

interview any of the parties to the conciliation about

the conduct of the conciliation; and

interview any other person about matters related to the

conciliation.

(3)	The Ombudsman may make recommendations to the

Commissioner about the conciliation of complaints under this

Division.

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OF POLICE SERVICE— continued

Procedure where conciliation fails

139. If an attempt made under this Division to deal with a

complaint by conciliation is unsuccessful, the complaint continues thereafter to be subject to the other provisions of this Part.

Division 4—Investigations

Investigations of complaints by Commissioner at his or her discretion

140. (1) The Commissioner may cause a complaint to be

investigated under this Division.

(2) The Commissioner must, as soon as practicable after causing a complaint to be investigated, notify the Ombudsman of that fact.

Investigations of complaints by Commissioner when directed by Ombudsman

141. (1) The Commissioner must cause a complaint to be

investigated under this Division if the Ombudsman determines that the complaint should be investigated and duly notifies the Commissioner accordingly.

(2) In determining whether a complaint should be investigated, the Ombudsman may have regard to such matters as the Ombudsman thinks fit, including whether, in his or her opinion:

the complaint is frivolous, vexatious or not made in

good faith; or

the subject-matter of the complaint is trivial; or

the conduct complained of occurred at too remote a

time to justify investigation; or

in relation to the conduct complained of there is or was

available to the complainant an alternative and

satisfactory means of redress; or

the complainant does not or, where the complainant is

not identified, the complainant could not have an

interest, or a sufficient interest, in the conduct

complained of.

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OF POLICE SERVICE—continued

(3)	Without affecting the generality of subsection (2), the

Ombudsman is not to determine that a complaint, in which the complainant is not identified, should be investigated, unless the Ombudsman is of the opinion:

(a)	that the complaint appears to contain sufficient information to enable an investigation to be carried out; and

(b) that the conduct the subject of the complaint would:

(i) if the conduct had occurred, provide reasonable grounds to believe that a criminal offence had been committed by a police officer; or

(ii) if a departmental charge were proved against a police officer in relation to the conduct, warrant the imposition of a substantial punishment on the police officer.

(4) The notification to the Commissioner of a

determination of the Ombudsman that a complaint be

investigated:

(a) is to be in writing; and

(b)	as far as practicable, is to identify the police officer whose conduct is the subject of the complaint; and

(5)	If the Ombudsman determines that a complaint should

be investigated by the Commissioner, the Ombudsman:

(a) must notify the complainant of that fact, if the complainant is identified; and

(b)	may also notify the police officer whose conduct is the subject of the complaint.

If the Ombudsman determines that a complaint should

not be investigated by the Commissioner, the Ombudsman

must;

(6)

notify the complainant of that fact and of the Ombudsman's reasons for the determination, if the complainant is identified; and

send to the Commissioner a copy of the notification

and of the complaint to which it relates.

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OF POLICE SERVICE—continued

Conduct of investigation by Commissioner

142. (1) An investigation under this Division by the

Commissioner is to be conducted by such police investigative staff as are selected by the Commissioner or in accordance with arrangements approved by the Commissioner.

(2 )	While investigating a complaint, a police officer must

not, without the consent of the Commissioner or another police officer nominated by the Commissioner, disclose to any person (other than the Commissioner or a police officer so nominated) the identity of the complainant. This subsection does not apply to a disclosure in a report to the Commissioner under this Division of the progress or result of the investigation.

(3)	Consent to the disclosure of the identity of the

complainant is not to be granted unless it is necessary for the

effective conduct of the investigation of the complaint.

Deferral or discontinuance of investigation

143. (1) The Commissioner may apply to the Ombudsman

for consent:

(a)	to defer the commencement or continuation of the investigation of a complaint; or

(b) to discontinue the investigation of a complaint.

(2 ) The Ombudsman may:

(a)	consent to the deferral of the commencement or continuation of the investigation of a complaint pending the conclusion of any relevant criminal proceedings or for any other good cause; or
(b)	consent to the discontinuance of the investigation of a complaint if continuation of the investigation would be, in the circumstances of the case, unreasonable or impracticable.

(3) If the Ombudsman grants a consent and the complainant is identified, the Ombudsman is to notify the complainant in writing of that fact and of the reasons for granting the consent and is to send to the Commissioner a copy of the notification.

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OF POLICE SERVICE— continued

(4)	If the Ombudsman does not, within 28 days, grant a

consent applied for under this section, the Commissioner may, within 14 days thereafter, apply to the President of the Police Tribunal for that consent.

(5) The President of the Police Tribunal may:

(a)	grant the consent applied for subject to such conditions (if any) as are specified by the President; or

(b) refuse to grant the consent,

and must notify the decision to the Commissioner, the Ombudsman and, if the complainant is identified, the complainant.

(6 )	The President of the Police Tribunal may authorise

another member of the Police Tribunal to deal with an

application to the President under this section.

(7)	The Ombudsman may, if satisfied that it is in the public

interest and without any application by the Commissioner for consent, direct the Commissioner that the investigation of a complaint under this Division be discontinued.

(8)	The commencement or continuation of the

investigation of a complaint may not be deferred, and the investigation of a complaint may not be discontinued, except in accordance with a consent granted or direction given under this section.

Monitoring of investigation by Ombudsman

144. (1) The Ombudsman may monitor the progress of the

investigation of a complaint if the Ombudsman considers it is

in the public interest to do so.

(2) The Ombudsman or an officer of the Ombudsman may be present as an observer during interviews conducted by police officers for the purpose of an investigation and confer with those police officers about the conduct and progress of the investigation. The powers of the Ombudsman or an officer of the Ombudsman under this subsection may be exercised only in accordance with arrangements agreed to between the Ombudsman and the Commissioner as to the manner in which the powers are to be exercised.

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OF POLICE SERVICE— continued

(3)	The Commissioner is to provide the Ombudsman with

such documentary and other information (including records

of interviews) as the Ombudsman may from time to time

request with respect to an investigation.

Proceedings to be instituted if warranted

145. ( 1) If it appears to a police officer conducting an

investigation that sufficient evidence exists to warrant the prosecution of any person for an offence, the police officer is, subject to this Act, to cause appropriate proceedings to be instituted against that person.

(2) The Commissioner must inform the Ombudsman of the

institution of any such proceedings and of the particulars of

the proceedings.

(3)	A police officer is not to institute proceedings against

another police officer for an offence without the approval of

the C om m issioner.

Result of investigation to be reported

146. A police officer conducting an investigation must:

(a)	at such times as the Commissioner may direct while the. investigation is proceeding; and

(b) at the conclusion of the investigation,

report to the Commissioner the progress or result of the investigation and provide the Commissioner with copies of all statements taken by the police officer in the course of the investigation and of all other documents on which the report is based.

Report etc. to be sent to Ombudsman

147. ( 1) The Commissioner must, as soon as practicable

after being satisfied that an investigation has been concluded:

(a)	send to the Ombudsman a copy of the report provided under section 146 at the conclusion of the investigation and copies of all statements taken in the course of the investigation and of all other documents on which the report is based; and

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provide the Ombudsman with such comments on the report and statements as the Commissioner thinks fit; and

specify what action should, in the opinion of the Commissioner, be taken with respect to the complaint to which the investigation related.

(2) After receiving that material and information, the Ombudsman may require the Commissioner and any police officer who investigated the complaint to provide such additional information as the Ombudsman considers is necessary to enable the Ombudsman to determine whether the complaint was properly investigated.

Investigation under the Ombudsman Act 1974 where complaint not dealt with in time

148. (1) If the Ombudsman has not, in relation to a

complaint, received from the Commissioner the material and information referred to in section 147 ( 1) within the relevant period referred to in this section, the Ombudsman may make the conduct to which the complaint relates the subject of an investigation under the Ombudsman Act 1974.

(2) The Ombudsman must notify the Commissioner in writing when the Ombudsman commences such an investigation.

(3) The relevant period is the period of 180 days after:

(a)	the Commissioner notifies the Ombudsman pursuant to section 140 that the complaint is being investigated; or
(b)	the Ombudsman notifies the Commissioner pursuant to section 141 of the Ombudsman's determination that the complaint should be investigated,

or that period as extended under section 149 or 150.

(4)	However, the period of 180 days referred to in

subsection (3) is to be a period of 90 days in the case of a complaint of a class or kind that the Ombudsman and the Commissioner Rave agreed should be subject to that shorter period.

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OF POLICE SERVICE— continued

Extension of time where complaint not dealt with

149. ( 1) The Commissioner may apply to the Ombudsman

for an extension of the relevant period referred to in section

148, and the Ombudsman may grant the extension.

(2) More than one such application may be made, but no such application may be made after the relevant period, has expired.

(3) If the Ombudsman grants the extension, the Ombudsman must, if the complainant is identified, notify the complainant in writing, giving the reasons for granting the extension, and must send to the Commissioner a copy of the notification.

(4 )	If the Ombudsman does not, within 28 days, grant the

extension applied for under this section, the Commissioner may, within 14 days thereafter, apply to the President of the Police Tribunal for that extension.

(5 ) The President of the Police Tribunal may:

(a)	grant the extension applied for subject to such conditions, if any, as are specified by the President; or

(b) refuse to grant the extension,

and must notify the decision to the Commissioner, the Ombudsman and, if the complainant is identified, the complainant.

(6)	The President of the Police Tribunal may authorise

another member of the Police Tribunal to deal with an

application to the President under this section.

(7)	If an application for an extension is made to the

Ombudsman in accordance with this section, the relevant period is extended until:

(a) the application is granted by the Ombudsman; or

(b) the application is withdrawn; or

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OF POLICE SERVICE—continued

(i) the time for the making of an application to the President of the Police Tribunal for that extension expires; or

(ii) if an application is made within that time to the President-theapplication is dealt with by the President or withdrawn.

(8)	If an extension is granted by the Ombudsman or the

President of the Police Tribunal, the relevant period is extended by the period specified by the Ombudsman or President when granting the extension.

Extension of time where application for deferral of investigation etc.

150. ( 1) If an application for the Ombudsman's consent is

made under section 143, the relevant period referred to in

section 148 is extended until:

(a) the application is granted by the Ombudsman; or

(b) the application is withdrawn; or

(i) the time for the making of an application to the President of the Police Tribunal for that consent expires; or

(ii) if an application is made within that time to the P r e s id e n t - th e application is dealt w ith btyhe President or withdrawn.

(2 )	If an application for consent under section 143 to the

deferral of the commencement or continuation of an investigation is granted by the Ombudsman or the President of the Police Tribunal, the relevant period is taken:

(a)	to have ceased to run on the day the application was made; and
(b)	to recommence to run from the day to which the commencement or continuation is deferred.

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OF POLICE SERVICE— continued

Further investigation if Ombudsman not satisfied about investigation

151. ( 1) If, after receiving the information referred to in

section 147, the Ombudsman is not satisfied that the complaint to which the information relates was properly investigated under this Division, the Ombudsman must report to the Commissioner accordingly, specifying what are, in his or her opinion, the deficiencies in the investigation.

(2)	On receipt of the report, the Commissioner is to cause

a further investigation to be conducted in order to remedy the

deficiencies referred to in the report.

(3 ) This Division (including this section) applies to and in respect of a further investigation under this section in the same way as it applies to an initial investigation.

Investigation under the Ombudsman Act 1974 after completion of police investigation

152. (1) If, after considering all the material and

information provided for the Ombudsman under this Division, the Ombudsman is neither satisfied that a complaint has not been sustained nor satisfied that the complaint has been sustained, the Ombudsman may:

(a)	make the conduct to which the complaint relates the subject of an investigation under the Ombudsman Act 1974; or
(b)	having regard to the public interest, determine that no further investigation of the complaint should be carried out.

(2) If the Ombudsman determines under subsection (1) (b) that no further investigation of a complaint should be carried out:

(a)	the Ombudsman must, if the complainant is identified, notify the complainant accordingly, giving the reasons for the determination, and must send a copy of the notification to:

(i) the Commissioner; and

(ii) the police officer whose conduct was the subject of the complaint; and

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(b)	the complaint is, for the purposes of this Act, deemed not to have been sustained.

Investigation under the Ombudsman Act 1974 before completion of police investigation

153. (1) The Ombudsman may, if satisfied that it is in the

public interest to do so, make the conduct to which a

complaint relates the subject of an investigation under the

Ombudsman Act 1974.

(2) The ombudsman may act under this section before the commencement of an investigation under this Division, during the progress of any such investigation or before the results of any such investigation have been considered by the Ombudsman.

(3) The Ombudsmanmust notify the Commissioner of any action under this section.

(4 ) On being so notified, the Commissioner is to discontinue any investigation under this Division.

(5 )	This section has effect despite anything to the contrary

in this Part.

Other police investigations not affected

154. The Commissioner or any other police officer is not

prevented from investigating, otherwise than under this Division, a matter relating to a complaint even though an investigation under this Division is not made, is deferred or discontinued, is completed or is made the subject of an investigation under the Ombudsman Act 1974.

Division 5—Reports

Unjustified complaints

155. (1) If, after considering all the material and

information provided under Division 4 about a complaint or after an investigation under the Ombudsman Act 1974 of a complaint, the Ombudsman is satisfied that the complaint has not been sustained, the Ombudsman is to report that fact to:

(a) the complainant, if the complainant is identified; and

(b) the Commissioner; and

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(c)	the police officer whose conduct was the subject of the

complaint.

(2) If, after an investigation under the Ombudsman Act 1974 of a complaint, the Ombudsman is neither satisfied that a complaint has not been sustained nor satisfied that the complaint has been sustained, the Ombudsman is to report that fact to:

(a) the complainant, if the complainant is identified; and

(b) the Commissioner; and

(c )	the police officer whose conduct was the subject of the

complaint,

and the complaint is, for the purposes of this Part, deemed

not to have been sustained.

Justified complaints

156. (1) If, after considering all the material and information provided under Division 4 about a complaint or after an investigation under the Ombudsman Act 1974 of a complaint, the Ombudsman is satisfied that the conduct to which the complaint relates:

(a ) was contrary to law; or

(b)	was unreasonable, unjust, oppressive or improperly discriminatory; or
(c)	was in accordance with any law or established practice but the law or practice is, or may be, unreasonable, unjust, oppressive or improperly discriminatory; or
(d)	was based wholly or partly on improper motives, irrelevant grounds or irrelevant considerations; or
(e)	was based wholly or partly on a mistake of law or fact; or

( f )

was conduct for which reasons should have been given

but were not given,

or that the complaint has been otherwise sustained, the Ombudsman must compile a report relating to the complaint and the conduct to which it relates, giving reasons for his or her conclusions.

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In such a report, the Ombudsman may recommend: that the conduct to which it relates be considered or reconsidered by the police officer whose conduct it was, or by any person in a position to supervise or direct that police officer in relation to the conduct or to review, rectify, mitigate or change the conduct or its consequences; or

that action be taken to rectify, mitigate or change the

conduct or its consequences; or

that reasons be given for the conduct; or

that any law or practice relating to the conduct be

changed; or

that any other action be taken.

(3)	However, the Ombudsman need not compile a report

on a complaint that has been sustained if the Ombudsman is satisfied with the action that has been taken by the Commissioner as a result of the complaint being sustained. Distribution of report about justified complaints

157. (1) When the Ombudsman has compiled a report

under section 156 the Ombudsman must, before acting under

subsection (2) or (3):

(a) inform the Minister of the compilation of the report;

and

(b) consult the Minister if the Minister so requests.

(2) The Ombudsman must give a copy of the report to the

Minister and to the Commissioner and, as soon as practicable after receiving the report, the Commissioner must give a copy of the report to the police officer whose conduct is the subject of the report.

(3)	The Ombudsman may give a copy of the report to the

complainant, if the complainant is identified, except any part of the report that does not relate to his or her complaint.

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Notification of proposed action on report about justified complaints

158. (1) The Commissioner must, as soon as is practicable

after receiving a report under section 156, notify the Ombudsman of the nature of the action (if any) proposed to be taken by the Commissioner as a result of the report.

(2) The nature of the action that the Commissioner may propose in the notification includes:

(a) that the police officer be admonished; or

(b) that a departmental charge be preferred against the

police officer; or

The notification is not, however, to contain particulars of any penalty proposed to be imposed.

(3 ) Where the Ombudsman has given a copy of a report under section 156 to the Commissioner and the Ombudsman is of the opinion:

(a)	that the Commissioner has unreasonably delayed notifying the Ombudsman under this section with respect to the report; or
(b)	that the nature of the proposed action notified under this section by the Commissioner is, in the circumstances of the case, unreasonable or inadequate;
(c)	that the Commissioner has unreasonably delayed taking action as a result of the report,

the Ombudsman is to advise the Commissioner accordingly

by notice in writing served on the Commissioner.

(4)	If the Ombudsman and the Commissioner do not,

within 28 days, resolve any issue the subject of a notice under subsection (3), either or both of them may refer the issue to the President of the Police Tribunal.

(5) The President of the Police Tribunal may:

(a) determine the issue; or

(b) decline to do so,

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and must notify the decision to the Commissioner and the

Ombudsman.

(6 )	The President of the Police Tribunal may determine the

issue:

(a)	by directing the Commissioner to give the Ombudsman the notification under subsection (1) forthwith or within a period specified in the direction; or
(b)	by directing the Commissioner to consider taking action of the nature specified in the direction; or

(c ) by directing the Commissioner to take action of the nature proposed by the Commissioner forthwith or within a period specified in the direction.

(7)	Any direction given by the President of the Police

Tribunal under this section is to be carried into effect by the

Commissioner.

(8 )	The President of the Police Tribunal may authorise

another member of the Police Tribunal to deal with an issue

referred to the President under this section.

(9 ) Nothing in this section:

(a )	permits the President of the Police Tribunal to review a determination made by the Ombudsman that a complaint has been sustained; or
(b)	affects the exercise by the Police Tribunal of its .jurisdiction under any other provision of this Act.

Notification of action taken on report

159. (1) The Commissioner must, as soon as practicable

after taking action as the result of a report under section 156 (being action with respect to a police officer whose conduct is the subject of a complaint), notify the Ombudsman of the nature of the action so taken.

(2) The notification must, if the action taken consists of or includes the imposition of a penalty, contain particulars of the nature and quantum of the penalty imposed.

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(3) The Ombudsman is to determine whether, in the circumstances of the case, action so notified was, in the opinion of the Ombudsman:

(a) appropriate; and

(b) taken within a reasonable time.

Report to complainant

160. The Ombudsman:

may from time to time report to the complainant (if identified) on the progress of an investigation under Division 4 into the complaint; and

must report to the complainant (if identified) on the

results of the investigation; and

may make to the complainant such comments on the

investigation and its consequences as the Ombudsman

thinks fit.

Special report to Parliament

161. ( 1) The Ombudsman may, at any time, make a special

report to. the Minister for presentation to Parliament on any matter arising in connection with the exercise of his or her functions under this Part.

(2) The Ombudsman may include in such a report a recommendation that the report be made public as soon as .practicable.

(3) If the report contains that recommendation, the Minister may make it public before it is presented to Parliament.

Special report about serious misconduct

162. If the Ombudsman is of the opinion that a police

officer is guilty of such serious misconduct as may warrant dismissal or punishment, the Ombudsman may report his or her opinion and the reasons for that opinion to the Minister and Commissioner.

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Division 6—Miscellaneous

Ombudsman may require further information from complainant

163. (1) For the purposes of the conciliation of a complaint

under Division 3 or for the purpose of determining whether a complaint should be investigated under Division 4, the Ombudsman may, if the complainant is identified, do any one or more of the following:

request a complainant to attend before the Ombudsman for the purpose of providing further information concerning the complaint;

request the complainant to provide further written

particulars concerning the complaint;

request the complainant to verify by statutory

declaration his or her complaint, or any particulars

given by the complainant concerning his or her

complaint.

(2) The Ombudsman may withdraw the' request if the complainant objects and the Ombudsman is satisfied that the grounds of the objection are well-founded.

(3) If the Ombudsman makes a request (and it is not withdrawn), the Ombudsman is to take no further action in connection with the complaint concerned until the request is complied with or a reasonable time for compliance with the request has elapsed.

(4)	If the request is not complied with within a reasonable

time, the Ombudsman may treat the complaint concerned as having been dealt with under Division 3 in a manner acceptable to the complainant. If the Ombudsman does so, the Ombudsman is to inform the Commissioner and the complainant accordingly.

Ombudsman may request further information from other persons

164. (1) For the purpose of determining whether a

complaint should be investigated under Division 4, the Ombudsman may also request information from persons other than the complainant.

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(2)	However, this section does not authorise the

Ombudsman:

(a)	to investigate the complaint or to collect information for the purposes of the investigation of the complaint or of a report under this Part; or
(b)	to interview the police officer the subject of the complaint; or

Ombudsman may require Commissioner to provide information etc.

165. ( 1) For the purposes of a conciliation of a complaint

or for the purpose of determining whether a complaint should be investigated under Division 4, the Commissioner must, at the request of the Ombudsman, provide the Ombudsman:

(a)	with an explanation of the policies, procedures and practices of the Police Service relevant to the conduct complained of; and
(b)	with such documentary and other information (including records of interviews) as the Ombudsman requests with respect to any inquiries made by the Commissioner or other police officers into the complaint; and
( c )	to the extent to which the Commissioner is able to do so, with any explanation, comment or information sought by the Ombudsman in connection with the complaint.

(2) The Ombudsman may withdraw any such request if the Commissioner objects and the Ombudsman is satisfied that the grounds of the objection are well-founded.

(3) The Ombudsman may, instead of making any such request, seek the information concerned from other police officers in accordance with arrangements agreed to by the Commissioner and the Ombudsman.

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Certain information to be confidential

166. ( 1) If the Commissioner is of the opinion that

publication of any material or information:

(a)	which, under this Part, the Commissioner or any other police officer is required to provide for the Ombudsman; or
(b)	which, under the Ombudsman Act 1974, the Commissioner or any other police officer is required, in the course of an investigation under that Act of the conduct to which a complaint relates, to provide for the Ombudsman,

might prejudice the investigation or prevention of crime, or otherwise be contrary to the public interest, the Commissioner is to inform the Ombudsman accordingly, giving the reasons for his or her opinion.

(2)	If the Ombudsman, pursuant to a requirement made

under the Ombudsman Act 1974 in the course of an investigation under that Act of the conduct to which a complaint relates, receives material or information from a police officer, the Ombudsman may not, except as provided in subsection (3) (b) or with the consent of the Commissioner, publish that material or information, otherwise than to the Commissioner, until the expiration of 21 days after that receipt.

(3) If the Ombudsman is provided with material or

information in respect of which the Commissioner has given

the opinion referred to in subsection ( l ) , the Ombudsman:

(a)	may not, except as provided in paragraph (b), publish that material or information; and
(b)	may, if in his or her opinion the circumstances so warrant, make in relation to that material or information a report to the Minister for presentation to Parliament.

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Certain provisions of Ombudsman Act 1974 to apply

167. Sections 17, 18 and 23 of the Ombudsman Act 1974

apply to and in respect of the exercise by the Ombudsman of the functions conferred and imposed by this Part in the same way as they apply to and in respect of an investigation by the Ombudsman under the Ombudsman Act 1974.

Information to be confidential

168. Without limiting the operation of section 34 (1) (a) of

the Ombudsman Act 1974, in the application of section 34 ( 1) of that Act to and in respect of information received in the course of the administration or execution of this Part, the reference in that subsection:

(a)	to a public authority—is to be construed as a reference to a police officer; and
(b)	to the head of that authority—is to be construed as a reference to the Commissioner; and
(c)	to the responsible Minister—is to be construed as a reference to the Minister administering the Police Service Act 1990.

Ombudsman or officer as witness

169. (1) Neither the Ombudsman, nor an officer or special

officer of the Ombudsman who is not a police officer, is competent or compellable, in any legal proceedings or in any proceedings before the Police Tribunal, to give evidence or produce documents in respect of any matter in which he or she is or was involved in the course of the administration or execution of this Part.

(2) Subsection (1) does not apply to or in respect of any proceedings under section 37 of the Ombudsman Act 1974 or under Part 3 of the Royal Commissions Act 1923.

(3) Subsections (1) and (2) do not prejudice or affect the operation of section 35 of the Ombudsman Act 1974 in relation to the administration and execution of this Act.

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Limitation on delegation of functions by Ombudsman

170. (1) The functions of the Ombudsman that may, under

section 10 of the ombudsman Act 1974, be delegated to a special officer of the Ombudsman (other than an Assistant Ombudsman) do not include:

(a) any power or duty to make a report under this Act; or

(b)	the power to require additional information referred to in section 147 (2) of this Act.

(2) The functions of the Ombudsman that may, under section 1 0 of the Ombudsman Act 1974, be delegated to an Assistant Ombudsman do not include any power or duty to make a report under this Act (other than a report under section 155, 156 or 160).

Liability to do duty continues

171. This Part does not operate to absolve a police officer

who receives a complaint from liability to perform any duty

imposed on the police officer otherwise than by this Part.

Publicity

172. (1) The Ombudsman is to cause to be prepared

pamphlets briefly explaining the rights and duties of police

officers and the public under this Part.

(2) The pamphlets are to be written in the English language and in such other languages as the Ombudsman considers necessary.

(3) The Ombudsman must:

(a)	supply the Commissioner with sufficient quantities of the pamphlets to enable a reasonable supply of the pamphlets to be available at each police station in the State, and the Commissioner is to distribute the pamphlets accordingly; and
(b)	supply the Director-General of the Department of Courts Administration with sufficient quantities of the pamphlets to enable a reasonable supply of the pamphlets to be available at the office of each Local Court in the State, and the Director-General is to distribute the pamphlets accordingly; and

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(c)	make such arrangements as the Ombudsman thinks fit with any Government department or instrumentality or with any other body or organisation for making the pamphlets available, or distributing them, to any interested person; and
(d)	take such further or other action as the Ombudsman considers necessary to bring the provisions of this Part to the attention of interested persons.

Certain documents privileged

172A. ( 1) A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than an inquiry under section 197 or proceedings which concern the discipline of police officers and which are dealt with by:

(a) the Commissioner; or

(b) the Police Tribunal; or

(2) Subsection (1) does not apply to or in respect of

(a) a document comprising a complaint; or

(b)	a document published by order of, or under the authority of, either House, or both Houses, of Parliament; or
(c)	a document published under section 161 (3) or 197 (5); or

(d) a document that a witness is willing to produce.

(3) Subsections (1) and (2) do not operate to render

admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.

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(3 ) Part 9:

Omit Part 9 , insert instead:

PART 9—DISCIPLINE OF MEMBERS OF THE

POLICE SERVICE

Division l—Discipline of police officers

Instigation of disciplinary action by Commissioner

173. ( 1) If the Commissioner considers that action should

be taken against a police officer, the Commissioner may direct the preferment of a departmental charge against the officer or the institution of court proceedings, whichever the Commissioner considers appropriate.

(2 )	If the Commissioner is satisfied that any conduct of a

police officer was not satisfactory but does not justify the preferment of a departmental charge, the Commissioner may admonish the officer for that conduct.

(3) A departmental charge must set out whether the charge relates to conduct the subject of a complaint investigated under Division 4 of Part 8A.

Departmental charges to be heard and determined by

Police Tribunal exercising original jurisdiction

174. ( 1) The Police Tribunal has exclusive jurisdiction to

hear a departmental charge that is denied by the police officer

and to determine whether it has been proved if:

(a)	the charge relates to conduct the subject of a complaint investigated under Division 4 of Part 8A; or
(b)	the charge does not relate to such conduct but the police officer elects to have the charge heard by the Police Tribunal.

(2)	In exercising the original jurisdiction conferred by this

section, the Police Tribunal is to be constituted by a member

sitting alone.

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Recommendations by Police Tribunal exercising original jurisdiction as to penalty

175. (1) If:

(a)	the Police Tribunal, exercising its original jurisdiction, determines that a departmental charge preferred against a police officer has been proved; or

(b) the police officer admits the charge after the Police Tribunal commences to hear the charge,

the Police Tribunal is to make an assessment of the penalty, if any, that the Police Tribunal considers would be appropriate to be imposed on the police officer.

(2) The Police Tribunal is to advise the Minister or the

Commissioner, as the case requires, of its recommendation

respect to that penalty.

Before:

the Minister makes a recommendation (if any) to the

Governor with respect to the penalty that might be

imposed on the police officer against whom the

departmental charge was preferred; or

the Commissioner imposes a penalty (if any) on any

such police officer,

the Minister or the Commissioner is to take into consideration the recommendation made by the Police Tribunal with respect to that penalty.

Appeal to Review Division of Police Tribunal against decision of Tribunal exercising original jurisdiction

176. (1) If the Police Tribunal exercising its original

jurisdiction determines that a departmental charge preferred against a police officer has been proved, the police officer may, within 30 days after the date of the determination, appeal against the determination to the Review Division of the Police Tribunal.

(2) The appeal may be made on any one or more of the following grounds:

(a) that the officer is not guilty of the charge;

(b) that the evidence disclosed no offence;

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that the determination is bad and contrary to law;

that the determination is against the evidence and the

weight of evidence.

(3) An appeal is to be in the nature of a review of the matter on the evidence given in the relevant proceedings in the Police Tribunal's original jurisdiction.

(4)	N ew evidence m ay nevertheless be given and

considered in the appeal if the Review Division of the Police Tribunal is satisfied that it was not reasonably available at the time the original proceedings were heard.

Proceedings relating to departmental charges

177. (1) At any proceedings before the Police Tribunal

relating to a departmental charge, whether in its original jurisdiction or by way of appeal to the Review Division: (a) the Commissioner and the police officer charged are

each entitled to be represented by counsel, solicitor or

agent; and

(b)	if the charge relates to conduct the subject of a complaint investigated under Division 4 of Part 8 A - the complainant is not a party; and
(c)	the public is not to be excluded unless the Police Tribunal otherwise orders; and
(d)	the function of the Police Tribunal is to determine, on the true merits and justice of the case and without being bound by strict legal precedent, whether or not the charge has been proved.

(2) The Police Tribunal is to cause a copy of its determination at those proceedings to be sent to:

(a) the Commissioner; and

(b) the police officer charged; and

(d)	if the charge relates to conduct the subject of a complaint investigated under Division 4 of Part 8 A - the complainant, if the complainant is identified.

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When charges duly proved

178. (1) A departmental charge against a police officer is

duly proved if

(a)	the Police Tribunal determines that the charge has been proved; or

in the case of a charge heard by the Police Tribunal- the charge has been proved,

or the charge is admitted by the police officer in accordance

with the regulations.

(2)	A departmental charge that the Police Tribunal

exercising its original jurisdiction determines to be proved is

not duly proved:

until the expiry of 30 days after the date of the

determination; or

if an appeal to the Review Division of the Police

Tribunal is made within that time, until that Review

Division determines that the charge is proved or the

appeal is duly withdrawn.

A criminal charge against a police officer is duly

proved if a court convicts the officer of the offence or finds that the charge has been proved without proceeding to a conviction.

Disciplinary action by Commissioner

179. (1) If a departmental charge or criminal charge

against a police officer is duly proved, the Commissioner may take such action against the police officer as the Commissioner considers appropriate.

In particular, the Commissioner may do any one or

of the following:

require the police officer to undergo counselling;

reprimand the police officer;

fine the police officer;

direct that the police officer (if a constable) lose

seniority;

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reduce the salary of the police officer (if a

non-commissioned officer);

demote the police officer (if a non-commissioned

officer) to a lower rank or grade, or recommend to the

Minister that the police officer (if a commissioned

officer) be so demoted;

dismiss the police officer (if a non-commissioned

officer) or recommend to the Minister that the police

officer (if a commissioned officer) be dismissed.

(3)	Any fine imposed by the Commissioner under this

section may be recovered in a court of competent jurisdiction as a debt due to the Crown or deducted from the pay of the police officer in accordance with the regulations.

Disciplinary action by Governor

180. (1) The Governor may, with respect to the discipline

of commissioned police officers, impose either or both of the

following penalties:

(a) demote the police officer to a lower rank or grade;

(b) dismiss the police officer.

(2 )	This section does not limit any other power of the

Governor with respect to commissioned police officers.

(3)	Before making a recommendation to the Governor with

respect to the penalty to be imposed on a commissioned

police officer under this section, the Minister must:

(a)	invite the police officer to make a written submission to the Minister (within a reasonable time specified by the Minister) with respect to the penalty which might be imposed by the Governor; and
(b)	take into consideration any such submission made by the police officer.

(4)	Subsection (3) does not affect any obligation of the

Minister under this Act to obtain or take into consideration the recommendation of the Police Tribunal with respect to the penalty.

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Regulations relating to discipline

181. (1) The regulations may make provision for or with

respect to the discipline of police officers.

(2)	In particular, the regulations may make provision for or

with respLect to:

the reporting by police officers of misconduct of other

police officers; and

the preferment of departmental charges against police

officers; and

the denial or admission of departmental charges; and

elections for the hearing and determination by the

Police Tribunal of departmental charges not relating to

conduct the subject of a complaint investigated under

Division 4 .of Part 8A; and

proceedings with respect to departmental charges; and

the suspension of police officers from office (with or

without pay) pending further investigation and

disciplinary action; and

disciplinary action against police officers.

Division 2—Disciplinary appeals by police officers

to GREAT

Appeal to GREAT against disciplinary decision of

Commissioner

182. (1) A police officer (other than a member of the

Police Service Senior Executive Service) may appeal to GREAT against a decision of the Commissioner to punish the police officer:

(a) by the imposition of a fine; or

(b) by a reduction in salary; or

(d) by suspension, dismissal, discharge or transfer.

(2) If the decision appealed against was in respect of a

charge heard and determined by the Police Tribunal:

(a)	the appeal is limited to an appeal against the severity of the punishment imposed; and

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GREAT, the Commissioner and the appellant are bound by the findings of the Police Tribunal on the determination of the charge or on appeal to the Review Division of the Police Tribunal.

Application of GREAT Act

183. (1) The Government and Related Employees Appeal

Tribunal Act 1980 applies to and in respect of an appeal under this Division in the same way as it applies to an appeal under Division 2 of Part 3 of that Act.

(2)	In order to determine the membership of and to

constitute GREAT for the purpose of hearing and determining an appeal under this Division, a police officer is taken to be an employee and the Commissioner the employer, within the meaning of the Government and Related Employees Appeal Tribunal Act 1980.

Division 3—Miscellaneous provisions

Discipline of administrative officers

184. ( 1) The provisions of Part 5 of the Public Sector

Management Act 1988 and the regulations made under that Part (Discipline and conduct of officers of the Public Service) apply to administrative officers in the same way as they apply to officers of the Public Service.

(2) For that purpose:

(a)	a reference to the appropriate Department Head is to be read as a reference to the Commissioner; and
(b)	a reference to the Public Service is to be read as a reference to the Police Service.

Disciplinary appeals to GREAT by non-executive administrative officers

185. The provisions of the Government and Related

Employees Appeal Tribunal Act 1980 relating to disciplinary appeals apply to administrative officers (not being members of the Police Service Senior Executive Service) as if those officers were employees, and the Commissioner were their employer, within the meaning of that Act.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 1—AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO COMPLAINTS AND DISCIPLINE OF MEMBERS

OF POLICE SERVICE—continued

Appeal to GREAT relating to leave when hurt on duty

186. (1) A police officer may appeal to GREAT against a

decision of the Commissioner to grant or refuse leave of absence on full pay to the police officer during any period of absence caused by that officer being hurt on duty within the meaning of section 1 (2) of the Police Regulation (Superannuation) Act 1906.

(2)	The Government and Related Employees Appeal

Tribunal Act 1980 applies to and in respect of an appeal under this section in the same way as it applies to an appeal under Division 2 of Part 3 of that Act.

(3)	In order to determine the membership of and to

constitute GREAT for the purpose of hearing and determining an appeal under this section, a police officer is taken to be an employee and the Commissioner the employer, within the meaning of the Government and Related Employees Appeal Tribunal Act 1980.

Transitional

187. (1) The provisions of this Act and the regulations

relating to disciplinary proceedings against members of the Police Service apply to conduct before as well as to conduct after the commencement of this Act.

(2) This section is subject to Parts 1 and 6 of Schedule 4.

(4) Part 9A:

Before Part 10, insert:

PART 9A—THE POLICE TRIBUNAL OF NEW

SOUTH WALES

Establishment of Police Tribunal

188. (1) There is established the Police Tribunal of New

South Wales.

(2) The Police Tribunal is to consist of a President, a Deputy President and other members as provided by this Part.

(3)	The Police Tribunal is a court of record and its seal is

to be judicially noticed.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE l—AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO COMPLAINTS AND DISCIPLINE OF MEMBERS

OF POLICE SERVICE—continued

President of Police Tribunal and Deputy President

189. (1) The President of the Police Tribunal is to be

appointed by the Governor.

(2) The Governor may appoint a Deputy President of the Police Tribunal.

(3)	The Deputy President is to act in the place of the

President during the illness or absence of the President and on other occasions as and when required by the President to do so. While so acting, the Deputy President is taken, for all purposes, to be the President.

(4) The President and Deputy President are each to be:

(a)	a Judge of the Supreme Court nominated by the Chief Justice of that Court; or
(b)	a Judge of the Industrial Court nominated by the Chief Judge of that Court; or

(c)	a Judge of the District Court nominated by the Chief Judge of that Court; or

(d) the Senior Chairperson of GREAT".

(5)	The President and Deputy President each hold office

for such term (not exceeding 5 years) as is specified in their instruments of appointment, but are eligible for re-appointment. However, a person vacates office as President or Deputy President if the person ceases to hold the office which qualified the person for appointment as President or Deputy President.

(6)	The rank, title, status, precedence, remuneration,

functions, rights and privileges of a Judge and the continuity of his or her service as a Judge are not affected by the exercise of the functions conferred or imposed on the Judge by or under this Act.

(7)	Part 2 of the Public Sector Management Act 1988 does

not apply to or in respect of the appointment of the President

or Deputy President.

(8)	Nothing in this Part prevents the Chief Justice of the

Supreme Court, the Chief Judge of the Industrial Court or the Chief Judge of the District Court from being nominated and appointed as President.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE l—AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO COMPLAINTS AND DISCIPLINE OF MEMBERS

OF POLICE SERVICE—continued

Other members of Police Tribunal

190. Each Judge of the District Court is a member of the

Police Tribunal.

Review Division of Police Tribunal

191. (1) The Review Division of the Police Tribunal is to

be constituted by the President of the Police Tribunal and 2

members of the Police Tribunal sitting together.

(2) At a sitting of the Review Division of the Police Tribunal:

(a) a decision of the President of the Police Tribunal as to:

(i) the jurisdiction of the Police Tribunal; or

(ii) the admissibility of evidence; or

(iii) procedure,

is the decision of the Police Tribunal; and

(b)	subject to paragraph (a), the President of the Police Tribunal has one vote and each of the members present has one vote and a decision supported by a majority in number of those votes is a decision of the Police Tribunal.

Powers of royal commission

192. (1) In the exercise of its jurisdiction or the conduct of

an inquiry, the Police Tribunal (or, in the case of the Review Division, the President) has the powers, authorities, protections and immunities of a commissioner appointed under Division 1 of Part 2 of the Royal Commissions Act 1923.

(2) That Act (except section 13 and Division 2 of Part 2) applies to proceedings before the Police Tribunal in the same way as it applies to proceedings before a royal commission, and so applies as if section 17 (4) of that Act had been repealed.

Subpoenas

193. ( 1) In accordance with a request by a party to any

proceedings before the Police Tribunal, the Registrar of the

Police Tribunal is required to issue:

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 1—AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO COMPLAINTS AND DISCIPLINE OF MEMBERS

OF POLICE SERVICE—continued

(a)	a subpoena to give evidence, requiring the person to whom it is directed to attend and give evidence at the proceedings; or
(b)	a subpoena for production, requiring the person to whom it is directed to attend and produce, for the purpose of evidence at the proceedings, any document or thing that is in his or her possession or control and specified in the subpoena.

(2) A subpoena for production of a document or thing may

authorise compliance with the subpoena by the production of

the document or thing to the Registrar of the Police Tribunal.

(3)	A person is not required to comply with a subpoena

unless, not later than a reasonable time before the day on which the person's attendance is required, an amount sufficient to meet the reasonable expenses of the person carrying out the requirements of the subpoena is paid or tendered to the person.

(4 )	A person is not bound by a subpoena to produce any

document or thing which is not specified or otherwise sufficiently described in the subpoena or which the person would not be bound to produce on a subpoena for production in the Supreme Court.

Attendance

194. (1) If the attendance of a person before the Police

Tribunal is required by a subpoena issued under this Part and the person defaults in attending as required by the subpoena, the Tribunal may, on the application of a party or of its own motion:

(a)	issue a warrant to a police officer, or to such other person as the Police Tribunal may appoint, directing that the defaulting person be arrested and brought before the Police Tribunal and, if appropriate, be kept in custody as provided by subsection (3); or
(b)	order the defaulting person to appear before the Police' Tribunal to show cause as to why such a warrant should not be issued against that person.

Police Service (Complaints, Discipline and Appeals) Amendment Act I993 No. 38

SCHEDULE l—AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO COMPLAINTS AND DISCIPLINE OF MEMBERS

OF POLICE SERVICE—continued

In either case, the Police Tribunal may order the defaulting person to pay any costs attributable to the default.

(2)	A person arrested pursuant to a warrant issued by the

Police Tribunal must be brought before the Police Tribunal as soon as practicable.

(3)	The person is to be kept in custody as directed by the

warrant until:

the person is brought before the Police Tribunal or the person's earlier release is ordered by the Police Tribunal or the Supreme Court; or

the person duly gives an undertaking to comply with

the requirements of the subpoena.

(4)	A direction in a warrant for the keeping of a person in

custody is sufficient authority for the person's being kept in

custody in accordance with the direction.

(5)	This section applies in relation to a subpoena issued

under this Part to the exclusion of sections 13 and 14 of the

Evidence Act 1898.

Orders prohibiting publication

195. In any proceedings before the Police Tribunal, the

Police Tribunal may by order prohibit or restrict the publication of the name and address:

(a)	of any witness or complainant concerned in the

proceedings; or

(b)	if the proceedings are by way of appeal—of any witness or complainant concerned in the appeal or any previous proceedings.

Contempt of the Police Tribunal

196. (1) A person who publishes any matter, or causes any

publication to be made, in contravention of an order under section 195 is guilty of contempt of the Police Tribunal.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE l—AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO COMPLAINTS AND DISCIPLINE OF MEMBERS

OF POLICE SERVICE—continued

(2)	If a person is brought before the Police Tribunal

pursuant to a warrant for a failure to produce a document or thing as required by a subpoena, the person is guilty of c ontempt of the Police Tribunal committed in the face of the Police Tribunal unless the person produces the document or thing, or duly gives an undertaking to produce it.

(3) Failure to comply with an undertaking referred to in this section or in section 194 is taken to constitute a contempt of the Police Tribunal committed in the face of the Police Tribunal.

(4)	A contempt of the Police Tribunal referred to in this

section or arising from the application, in accordance with this Division, of any provision of the Royal Commissions Act 1923 is punishable by the Supreme Court in the same way as a similar contempt of a royal commission is punishable by that Court.

Inquiries commissioned by Minister

197. ( l ) At the request of the Minister, the Police Tribunal

is to inquire into and report to the Minister on such of the

following matters as may be specified in the request:

(a) any matter relating to the discipline of police officers;

(b)	any matter relating to the exercise by police officers, in a particular case or cases, of their functions;

(c ) any matter which, in the opinion of the Minister, is relevant to or arises out of such a matter.

(2). For the purposes of this section, the Police Tribunal is to be constituted by the President of the Police Tribunal sitting alone.

(3) At any proceedings before the Police Tribunal under this section, the public is not to be excluded unless the Police Tribunal so orders.

(4) A report to the Minister under this section:

(a) is to be presented to Parliament; and

(b)	may contain a recommendation that the report be made public as soon as practicable.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE l—AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO COMPLAINTS AND DISCIPLINE OF MEMBERS

OF POLICE SERVICE— continued

(5)	The Minister may make a report to the Minister under

this section public before it is presented to Parliament.

(6)	If a departmental charge recommended in a report

under this section has been preferred against a police officer and, otherwise than after the Police Tribunal has commenced to hear the charge in its original jurisdiction, the charge is admitted by the police officer:

(a)	the Minister, before making a recommendation (if any) to the Governor with respect to the penalty which might be imposed by the Governor on the police officer; or
(b)	the Commissioner, before imposing a penalty (if any) on the police officer,

as the case may require, must:

refer, for the consideration of the Police Tribunal as constituted for the purposes of this section, the matter of an assessment of an appropriate penalty; and

take into consideration the recommendations made under subsection (7) by the Police Tribunal with respect to the penalty.

If, under subsection (6) (c), the Minister or the Commissioner refers to the Police Tribunal, as constituted for the purposes of this section, the matter of an assessment of an appropriate penalty which might be imposed on a police officer in respect of a departmental charge preferred against the police officer, the Police Tribunal, as so constituted, is to make an assessment of the penalty (if any) which the Police Tribunal considers would be appropriate to be imposed on the police officer and advise the Minister or the Commissioner of its recommendations with respect to that penalty.

(8) At any proceedings before the Police Tribunal under subsection (7):

(a)	the Commissioner and the police officer with respect to whom a recommendation under this section is required to be made are each entitled to be represented by counsel, solicitor or agent; and

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 1— AMENDMENT OF POLICE SERVICE ACT 1990

COMPLAINTS AND DISCIPLINE OF MEMBERS

OF POLICE SERVICE— continued

the public is not to be excluded unless the Police Tribunal exercising jurisdiction at those proceedings otherwise orders.

Sittings etc. of Police Tribunal

198. (1) The President of the Police Tribunal is to arrange for sittings of the Police Tribunal and the allocation of its work.

(2) If the President of the Police Tribunal is not the Chief Judge of the District Court, the President is to arrange for sittings and allocate work subject to consultation with the Chief Judge.

(3) There may be contemporaneous sittings of the Police Tribunal constituted by different members and those sittings may be in different places.

Proceedings of Police Tribunal

199. ( l) Subject to this Act and the regulations, the Police

Tribunal has control of its proceedings.

(2) The regulations may make provision for or with respect to the institution and conduct of proceedings before the Police Tribunal.

(3) Until the regulations otherwise provide, a registrar of the District Court nominated by the President of the Police Tribunal is the registrar of the Police Tribunal.

SCHEDULE 2—CONSEQUENTIAL AMENDMENT OF POLICE

SERVICE ACT 1990 RELATING TO PROMOTIONAL

APPEALS BY POLICE OFFICERS

(Sec. 3)

(1) Section 66 (Temporary appointments to non-executive

positions), section 67 (Transfer of non-executive officers):

Omit “”Divisions 3-5” wherever occurring, insert instead

“Divisions 3-5B”

(2) Sections 72 (1) (b), 74, 78 (l) (b):

Omit “the Police Regulation (Appeals) Act 1923” wherever occurring, insert instead “Division 5A”.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 2— CONSEQUENTIAL AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO PROMOTIONAL APPEALS

BY POLICE OFFICERS—continued

(3) Part 6, Divisions 5A and 5B:

After Division 5 of Part 6, insert:

Division 5A—Promotion appeals to GREAT by certain

police officers

Appeals to GREAT against promotions of constables to higher grade within that rank

81 A. ( 1) A police officer of the rank of constable may appeal to GREAT against a decision of the Commissioner to promote another police officer of the rank of constable to a higher grade in that rank if

(a)	the police officer who appeals is more entitled to be promoted than the other police officer, having regard only to the regulations governing the promotion of police officers; and
(b)	the police officer who appeals is qualified for promotion to that higher grade.

(2) The Commissioner must, as soon as practicable after making a decision in respect of which an appeal may be made under this section, cause a notification of the decision to be given to all police officers who are entitled to appeal against that decision.

(3) A notification under this section may be given personally or by post, or by publication of the notification in any official publication which is circulated among police officers.

(4) A decision in respect of which an appeal may be made

under this section may be carried into effect even though:

the period within which appeals against that decision

may be made has not expired; or

if an appeal has been made within that period and has

not been withdrawn, the appeal has not yet been

determined by GREAT.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 2— CONSEQUENTIAL AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO PROMOTIONAL APPEALS

BY POLICE OFFICERS—continued

(5) If a decision to promote a police officer is carried into effect in those circumstances, the promotion of the police officer is not, except as provided by the regulations, affected by the fact that the appeal under this section of any appellant against that decision is successful.

(6 ) GREAT may, if it thinks fit, hear 2 or more appeals made under this section in respect of the same decision and make a single composite decision with respect to all or any of those appeals.

Appeals to GREAT against promotions to sergeant or to higher grade of sergeant

81B. (1) A police officer of the highest grade of the rank of constable may appeal to GREAT against a decision of the Commissioner to appoint another police officer of that grade and rank to a vacant position in the rank of sergeant if the police officer who appeals was an applicant for the vacant position and is eligible for appointment to the vacant position.

(2) A police officer of the rank of sergeant (but not of the highest grade in that rank) may appeal to GREAT against a decision of the Commissioner to appoint another police officer of the rank of constable or of the rank of sergeant (but not of the highest grade in the rank of sergeant) to a vacant position in the highest grade of the rank of sergeant if the police officer who appeals was an applicant for the vacant position and is eligible for appointment to the vacant position.

(3) The only ground on which an appeal may be made under this section is that the merit of the appellant is greater than that of the other police officer.

Appeal to GREAT against promotion to inspector

81C. ( 1) A police officer may appeal to GREAT against a recommendation of the Police Board under section 71 for the appointment of another police officer to a vacant position in any rank of inspector if the police officer who appeals was an applicant for the vacant position and is eligible for appointment to the vacant position.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 2—CONSEQUENTIAL AMENDMENT OF POLICE SERVICE ACT 1990 RELATING TO PROMOTIONAL APPEALS

BY POLICE OFFICERS— continued

(2) The only ground on which an appeal may be made under this section is that the merit of the appellant is greater than that of the other police officer.

Procedure for appeals

81D. The provisions of the Government and Related Employees Appeal Tribunal Act 1980 relating to promotion appeals apply to appeals under this Division, subject to. the following:

(a)	the sittings of GREAT for the hearing of appeals are to be informal;

(b) any other modifications prescribed by the regulations.

Membership etc. of GREAT

81E. In order to determine the membership of and to constitute GREAT for the purpose of hearing and determining an appeal under this Division, a police officer is taken to be an employee (within the meaning of the Government and Related Employees Appeal Tribunal Act 1980) and:

(a)	in the case of an appeal under section 81A or 81B—the Commissioner; or
(b)	in the case of an appeal under section 81C-th e Police Board,

is taken to be the employer (within the meaning of that Act)

of the police officer.

Division 5B—Promotion appeals by non-executive

administrative officers to GREAT

Appeal to GREAT against promotions of administrative officers

81F. The provisions of the Government and Related Employees Appeal Tribunal Act 1980 relating to promotion appeals apply to non-executive officers (being administrative officers) as if those officers were employees, and the Commissioner were their employer, within the meaning of that Act.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 3—MISCELLANEOUS AND CONSEQUENTIAL

AMENDMENTS TO POLICE SERVICE ACT 1990

(Sec. 3)

(l) Section 3 (Definitions):

Omit section 3 (3).

(2) Section 24 (Appointment of Commissioner), section 39 (Appointment to be made on merit), section 71 (Appointment to be made on merit):

From sections 24 (3) (c), 39 (3) and 71 (2), omit “an official report (referred to in section 3 (3)) on the previous employment and conduct of” wherever occurring, insert instead “a report under section 94A on”.

(3) Section 44 (Industrial arbitration o r legal proceedings

excluded):

From section 44 (2), omit “Industrial Arbitration Act 1940” , insert instead “Industrial Relations Act 1991''.

(4) Section 77 (Appointment of sergeants to be made on merit): From section 77 (2), omit “an official report on the previous employment and conduct of”, insert instead “a report under section 94A on”.

(5) Sections 87, 89, 117:

From sections 87 (2), 89 (1) and 117, omit “Industrial Arbitration Act 1940” wherever occurring, insert instead “Industrial Relations Act 1991”.

(6) Section 91F (as inserted by Act No. 54, 1992):

Omit the section, insert instead:

Complaints against police volunteers

91F. A complaint by any person against a police volunteer may be dealt with under Part 8A in the same way as a complaint against a police officer, and the provisions of that Part apply, with any necessary modifications, to any such complaint.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 3—MISCELLANEOUS AND CONSEQUENTIAL AMENDMENTS TO POLICE SERVICE ACT 1990— continued

(7) Section 91FA:

After section 91F, insert:

Discipline of police volunteers

91FA. (1 ) The regulations may make provision for or with respect to the discipline of the volunteer police, including the definition of conduct constituting a breach of discipline and the imposition by the Commissioner of any one or more of the following measures on any police volunteer guilty of a breach of discipline:

giving a caution or reprimand;

requiring the volunteer to undergo counselling;

suspending the volunteer from service;

revoking the volunteer's appointment as a police

volunteer.

The functions of the Commissioner under this section

are exercisable by a delegate only to the extent provided by

the regulations.

(3) The decision, given in accordance with this section and the regulations, of the Commissioner or a delegate of the Commissioner in a matter of discipline of a police volunteer is final and is not subject to appeal or to review by any court or tribunal, except where the regulations otherwise provide.

(4)	Regulations made for the purposes of this section may

provide for the adoption, with specified modifications, of the provisions of Part 9 and the regulations made for the purposes of that Part.

(5)	Nothing in this section affects the powers of the

Commissioner under section 91B.

(8) Section 94A:

After section 94, insert: appointments

94A. (1) In this section, q

internal affairs officer”

means a police officer responsible for police internal affairs, designated by the Commissioner as the internal affairs officer for the purposes of this section.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 3—MISCELLANEOUS AND CONSEQUENTIAL AMENDMENTS TO POLICE SERVICE ACT 1990— continued

(2) The internal affairs officer must, as soon as practicable after being requested to do so, submit a report to the Minister, Police Board or Commissioner or a person who is being considered for an appointment in the Police Service, being an appointment for which the Minister, Police Board or Commissioner is required by this Act to obtain a report under this section.

(3) The details required to be inserted in a report on a person under this section are as follows:

particulars of any criminal proceedings commenced against the person in New South Wales and, in so far as the internal affairs officer can reasonably ascertain, elsewhere, and the results of those proceedings;

particulars of any complaint:

(i) which has been made against the person in accordance with Division 2 of Part 8A; and

(ii) which the Ombudsman has duly reported under that Part to have been sustained or which has not been finally dealt with under that Part;

if the person has been referred to:

(i) in an investigation commenced under Division 4 ofPart 8A; or

(ii) in any proceedings commenced before the Police Tribunal; or

(iii) at an inquiry or commission held under any other Act (including an Act of the Commonwealth or of another State or a Territory); or

(iv) at an inquiry authorised by any Minister,

particulars of that investigation or of those proceedings, or of the findings of that inquiry or commission, in so far as they relate to the person;

particulars relating to such matters (if any) as:

(i) the Commissioner requires to be included in the report; or

(ii) the internal affairs officer considers appropriate to include in the report;

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 3—MISCELLANEOUS AND CONSEQUENTIAL AMENDMENTS TO POLICE SERVICE ACT 1990— continued

(e) particulars relating to such other matters as are prescribed by the regulations.

(9) Sections 95, 95A:

Omit section 95, insert instead: agencies

95. The Commissioner may arrange for the use of the services of any staff (by way of secondment or Otherwise.) of a government agency (whether or not of New South Wales). Arrangements for use by other agencies of members of Police Service

95A. (1) The Commissioner may enter into arrangements with a government agency (whether or not of New South Wales) for the use, by such an agency, of the services of members of the Police Service (by way of secondment or otherwise).

(2)	While performing services for any such agency, a

police officer retains rank, seniority and remuneration as a police officer and may continue to act as a constable. However, this subsection does not prevent the payment of additional remuneration to police officers in accordance with arrangements under this section.

(10) Sections 99-20 (Renumbering):

Renumber sections 99 to 120 as sections 200 to 221.

(11) Section 102, renumbered as section 203 (Wearing o r possession

of police uniform by others):

(a)

Section 102 (1): the uniform, of a police officer”, insert instead “who wears, or has in possession, a police uniform”.

(b)	Section 102 (2): Omit the subsection, insert instead:

(2)	A person is not guilty of an offence against this section

if the person establishes that:

(a)	the person had the permission of the Commissioner to wear or possess the police uniform; or

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 3—MISCELLANEOUS AND CONSEQUENTIAL AMENDMENTS TO POLICE SERVICE ACT 1990— continued

(b)	the person wore or was in possession of the police uniform for the purposes of a public entertainment; or
(c)	the person had a reasonable excuse for wearing or being in possession of the police uniform.

(3)	In this section, “police uniform” means the uniform

of a police officer, and includes:

(a)	any parts of such a uniform (or any accoutrements of a police officer) that are generally recognised as parts of the uniform or accoutrements of a police officer; or
(b)	a reasonable imitation of such a uniform, parts of a uniform or accoutrements.

(12) Section 105, renumbered as section 206 (Disclosure of

information relating to Police Board functions):

From section 105 ( 1 ) (d), omit “or the Police Regulation

(Allegations of Misconduct) Act 1978”.

(13) Schedule 4 (Savings, transitional and other provisions):

(a) At the end of clause 2 (1) of Part 1, insert:

the Police Service (Complaints, Discipline and Appeals)

Amendment Act 1993.

(b) At the end of the Schedule, insert:

PART 6—PROVISIONS CONSEQUENT ON

ENACTMENT OF POLICE SERVICE

(COMPLAINTS, DISCIPLINE AND APPEALS)

AMENDMENT ACT 1993

Definitions

24. (1) In this Part:

“amending Act” means the Police Service (Complaints,

Discipline and Appeals) Amendment Act 1993;

“former appeals Act” means the Police Regulation (Appeals) Act 1923;

“former complaints Act” means the Police Regulation (Allegations of Misconduct) Act 1978.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 3—MISCELLANEOUS AND CONSEQUENTIAL AMENDMENTS TO POLICE SERVICE ACT 1990— continued

(2)	In this Part, a reference to the repeal of the former

appeals Act or the former complaints Act is (if different days are appointed for the repeal of different provisions) a reference to the repeal of the relevant provisions.

Application of provisions relating to complaints

25. (1) Part 8A does not apply to conduct that occurred before the commencement of the former complaints Act.

(2) Part 8A extends to conduct that occurred after. the commencement of the former complaints Act and before the commencement of Part 8A.

(3) Anything duly done before the commencement of that Part under a provision of the former complaints Act is (subject to the regulations under this Schedule) taken to have been duly done under the corresponding provision of that Part.

Application of provisions relating to discipline

26. (1) Part 9 applies to conduct occurring before or after the substitution of that Part by the amending Act (including conduct that occurred before the commencement of that Part on 1 July 1990).

(2) Anything duly done in respect of any disciplinary matter before that substitution of Part 9 under a provision of the former Act, the former complaints Act, the former appeals Act or the regulations under those Acts or this Act is (subject to the regulations under this Schedule) taken to have been duly done under the corresponding provision of that substituted Part 9.

Application of provisions relating to promotion appeals

27. (1) Divisions 5A and 5B of Part 6 extend to decisions made before the commencement of those Divisions.

(2) Anything duly done before the commencement of those Divisions under a provision of the former appeals Act is (subject to the regulations under this Schedule) taken to have been duly done under the corresponding provision of those Divisions.

Police Service (Complaints, Discipline and Appeals) Amendment Acf 1993 NO. 38

SCHEDULE 3—MISCELLANEOUS AND CONSEQUENTIAL

AMENDMENTS TO POLICE SERVICE ACT 1990— continued

Police Tribunal

28. (1) The Police Tribunal of New South Wales

established under the former complaints Act is the same court as the Police Tribunal of New South Wales established under Part 9A of this Act.

(2) A person who, immediately before the repeal of the former complaints Act, held office as President or Deputy President of the Police Tribunal is taken to have been appointed to that office under Part 9A of this Act for the balance of the person's term of office.

(3)	The repeal of the former complaints Act does not affect

any proceedings pending before the Police Tribunal immediately before the repeal of that Act and those proceedings may (subject to this Act) be continued despite that repeal.

SCHEDULE 4—CONSEQUENTIAL AMENDMENTS TO

OTHER ACTS

(Sec. 4)

Ombudsman Act 1994 No. 68:

(1) Section 5 (Definitions):

(a ) Omit the definition of “‘prescribed conduct”, insert instead:

“police conduct” means any action or inaction, or

alleged action or inaction, of a police officer when

acting as a constable;

(b) Omit section 5 (1A), insert instead:

(IA ) In this Act, a reference to an investigation under this Act includes a reference to an investigation of police conduct under this Act pursuant to Part 8A of the Police Service Act 1990.

(2) Section 7 (Acting Ombudsman):

Omit section 7 (4), insert instead:

(4)	An acting Ombudsman when acting as Ombudsman is

taken to be the Ombudsman.

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 4—CONSEQUENTIAL AMENDMENTS TO OTHER

ACTS—continued

(3) Sections 13 (4A), 15 (2), 16, 24 (l), 25, 25A, 29, 32 (4) (b), 34

(3):

Omit “prescribed conduct” wherever occurring, insert instead “police conduct”.

(4) Section 34 (1) (b) (ii):

Omit “section 45 of the Police Regulation (Allegations of Misconduct) Act 1978”, insert instead “section 197 of the Police Service Act 1990”.

Police Department (Transit Police) Act 1989 No. 58

(1) Section 25:

Omit the section, insert instead:

Complaints against members

25. A complaint by any person against a member of the transit police service may be dealt with under Part 8A of the Police Service Act 1990 in the same way as a complaint against a police officer, and the provisions of that Part apply, with any necessary modifications, to any such complaint.

(2) Section 27 (Procedure for dealing with breaches of discipline):

(a) After section 27 (l), insert:

(1A) The provisions of Division 1 of Part 9 of the Police Service Act 1990 relating to the jurisdiction of the Police Tribunal to deal with departmental charges against police officers apply, with any necessary modifications, to departmental charges against members of the transit police service.

(b)	From section 27 (2), omit “under section 41 (Hearing of disciplinary charges) of the Police Regulation (Allegations of Misconduct) Act 1978”.

Police Service (Volunteer Police) Amendment Act 1992 No. 54

Schedule 1 (Amendment of Police Service Act 1990):

Omit Schedule 1 (11).

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 No. 38

SCHEDULE 5—REPEALS

(Sec. 5)

PART 1—ACTS Police Regulation (Appeals) Act 1923 No. 33 Police Regulation (Allegations of Misconduct) Act 1978 No. 84

Police Regulation (Allegations of Misconduct) Amendment Act 1983 No.

191

Police Regulation (Allegations of Misconduct) Amendment Act 1987 No.

135

Police Regulation (Allegations of Misconduct) Amendment Act 1990 No.

109

PART 2—REGULATIONS

All regulations made under the Acts repealed by this Schedule, including:

Police Tribunal Regulation 1979

Police Internal Affairs Branch Regulation 1984

[Minister's second reading speech made in—

Legislative Assembly on 11 May 1993

Legislative Council on 21 May 1993]