Law Enforcement Conduct Commission Act 2016 (NSW)

Law Enforcement Conduct Commission Act 2016 No 61 An Act to constitute the Law Enforcement Conduct Commission and to define its functions; to repeal the Police Integrity Commission Act 1996 and amend Part 8A of the Police Act 1990 and the Ombudsman Act 1974; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Law Enforcement Conduct Commission Act 2016. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2). (2) Parts 1–3 of, and Schedules 1–3 and 7 to, this Act commence on the date of assent to this Act. 3 Objects of Act The objects of this Act are as follows— (a) to promote the integrity and good repute of the NSW Police Force and the Crime Commission by ensuring that they properly carry out their functions and responsibilities in relation to the handling of complaints (and information that the Commission becomes aware of otherwise than through a complaint that indicates or suggests conduct is (or could be) officer misconduct or officer maladministration or agency maladministration), (b) to provide for the independent detection, investigation and exposure of serious misconduct and serious maladministration within the NSW Police Force and the Crime Commission that may have occurred, be occurring, be about to occur or that is likely to occur, (c) to provide for independent oversight and review (including, where appropriate, real time monitoring and review) of the investigation by the NSW Police Force of misconduct matters concerning the conduct of its members and the Crime Commission concerning its officers, (d) to prevent officer misconduct and officer maladministration and agency maladministration within the NSW Police Force and the Crime Commission by— (i) providing for the identification of systemic issues that are likely to be conducive to the occurrence of officer misconduct, officer maladministration and agency maladministration, and (ii) assessing the effectiveness and appropriateness of their procedures relating to the legality and propriety of activities of their members and officers, and (iii) encouraging collaborative evaluation of opportunities for, and implementation of, desirable changes in such procedures, and (iv) making recommendations with respect to education and training about prevention of officer misconduct, officer maladministration and agency maladministration, (e) to ensure that agencies work collaboratively to support and promote the prevention of officer misconduct, officer maladministration and agency maladministration and to improve their processes and systems, (f) to recognise the primary responsibilities of the NSW Police Force and Crime Commission to investigate and prevent officer misconduct and officer maladministration within those agencies and agency maladministration while providing for oversight of those functions, (g) to foster an atmosphere in which complaints, provision of other information about misconduct and independent oversight are viewed positively as ways of preventing officer misconduct, officer maladministration and agency maladministration, (h) to provide for independent oversight and real time monitoring of critical incident investigations undertaken by the NSW Police Force, (i) to provide for the scrutiny of the exercise of powers by the Law Enforcement Conduct Commission and its officers by an Inspector and for the Commission and for the Inspector to be accountable to Parliament, (j) to provide for the oversight by the Inspector of the use of covert powers under various Acts. Part 2 Interpretation and key concepts Division 1 Interpretation 4 Definitions (1) In this Act— administrative employee means any member of the NSW Police Force other than a police officer. administrative employee complaint—see section 12. administrative employee misconduct—see section 9 (2). agency complaint—see section 12. agency maladministration—see section 11 (1). approved former police officer—see section 8 (1). Assistant Commissioner means an Assistant Commissioner appointed under section 20. authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. Chief Commissioner means the Chief Commissioner appointed under section 18. coercive examination power—see section 15. Commission means the Law Enforcement Conduct Commission constituted by this Act. Commission investigator means an officer of the Commission who is designated by the Commission as an investigator and who is issued by the Commission with means of identification as a Commission investigator. Commission misconduct matters—see section 122 (2) (b). Commissioner means the Chief Commissioner or other Commissioner of the Commission appointed under section 18. complainant—see section 12. complaint—see section 12. correctional centre has the same meaning as in the Crimes (Administration of Sentences) Act 1999. corrupt conduct has the same meaning as in the Independent Commission Against Corruption Act 1988. Crime Commission means the New South Wales Crime Commission. Crime Commission complaint—see section 12. Crime Commission investigation, in relation to a complaint or misconduct information about conduct of the Crime Commission that is (or could be) agency maladministration or conduct of a Crime Commission officer that is (or could be) Crime Commission officer misconduct or officer maladministration means— (a) an investigation by the Crime Commission under the Crime Commission Act 2012, or (b) action taken by the Crime Commissioner to deal with an allegation of misconduct by a Crime Commission officer under the Government Sector Employment Act 2013. Crime Commission officer means any of the following— (a) the Crime Commissioner for the Crime Commission, (b) an Assistant Commissioner for the Crime Commission, (c) any other officer of the Crime Commission within the meaning of the Crime Commission Act 2012. Crime Commission officer misconduct—see section 9 (3). Crime Commissioner means the Commissioner for the Crime Commission. criminal offence, in relation to any conduct, means a criminal offence under the law of the State or under the law of any other jurisdiction that is relevant to the conduct in question. critical Crime Commission information—see section 179. critical incident—see section 108. critical police information—see section 179. disciplinary infringement includes any misconduct, irregularity, neglect of duty, breach of discipline or substantial breach of a code of conduct or other matter that constitutes or may constitute grounds for disciplinary action under any law. disciplinary proceedings means proceedings or action taken in relation to a disciplinary infringement. Note. Disciplinary proceedings are defined differently in section 30. examination means an investigation by way of public or private hearing under Division 3 of Part 6. examining Commissioner means the Commissioner holding an examination under section 62 and includes, where an Assistant Commissioner is appointed under section 20 to carry out an examination, the Assistant Commissioner. function includes a power, authority or duty, and exercise a function includes perform a duty. ICAC Commissioner means the Commissioner for the Independent Commission Against Corruption. Independent Commission Against Corruption or ICAC means the Independent Commission Against Corruption constituted by the Independent Commission Against Corruption Act 1988. Inspector means the Inspector appointed under section 120. investigation means an investigation by the Commission under Part 6 and includes, in relation to serious misconduct or serious maladministration, an examination under that Part. investigation power means a power conferred by Part 6 and includes, in relation to conduct that is (or could be) serious misconduct or serious maladministration, the power to conduct an examination. Joint Committee—see section 130. Judge means a Judge of a court of the State. medical practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW). misconduct information—see section 13. misconduct matter means— (a) a complaint, or (b) misconduct information. misconduct matters information system is the system required to be kept under section 128 of the Police Act 1990. misconduct matters management guidelines—see section 14. notifiable misconduct matter—see section 14. officer maladministration—see section 11 (2). officer misconduct means police misconduct, administrative employee misconduct or Crime Commission officer misconduct. officer of the Children's Guardian includes the following— (a) an acting Children's Guardian, (b) a Deputy Children's Guardian, (c) an Assistant Children's Guardian. officer of the Commission means the following— (a) a Commissioner, (b) an Assistant Commissioner, (c) a member of staff of the Commission. officer of the Inspector means the Inspector or a member of staff of the Inspector. officer of the Ombudsman includes the following— (a) an acting Ombudsman, (b) a Deputy Ombudsman, (c) an Assistant Ombudsman. oversight of an agency by the Commission means holding the agency to account through the scrutiny, review and monitoring by the Commission under this Act of the exercise by the agency of its functions. police complaint—see section 12. police investigation means— (a) in relation to an agency complaint or misconduct information about conduct of the NSW Police Force that is (or could be) agency maladministration—investigation by the NSW Police Force under Part 8A of the Police Act 1990, or (b) in relation to a police complaint or misconduct information about conduct of a police officer that is (or could be) police misconduct or officer maladministration—investigation by the NSW Police Force under Part 8A of the Police Act 1990, or (c) in relation to an administrative employee complaint or misconduct information about conduct of an administrative employee that is (or could be) administrative employee misconduct or officer maladministration—action taken by the Commissioner of Police to deal with an allegation of misconduct by an administrative employee under the Government Sector Employment Act 2013. Note. The Government Sector Employment Regulation 2014 prescribes that part of the NSW Police Force comprising administrative employees as a government sector agency for the purposes of sections 69 and 70 of the Government Sector Employment Act 2013 and Part 8 of the Government Sector Employment Rules 2014. police misconduct—see section 9 (1). police officer means a member of the NSW Police Force holding a position that is designated under the Police Act 1990 as a position to be held by a police officer. preliminary investigation—see section 52. premises includes any structure, building, aircraft, vehicle, vessel or place (whether built on or not), or any part thereof. production requirement means the following— (a) a requirement under section 54 to produce a statement of information, (b) a requirement under section 55 to produce a document or other thing, (c) a power under section 69 to summon a person to produce a document or other thing. public authority has the same meaning as in the Independent Commission Against Corruption Act 1988. public official has the same meaning as in the Independent Commission Against Corruption Act 1988, and includes a former public official. psychologist has the same meaning as in the Health Practitioner Regulation National Law (NSW). release order means an order under section 71. search warrant means a search warrant issued under this Act. serious maladministration—see section 11 (3). serious misconduct—see section 10. special legal qualifications—see section 5. special report—see sections 138 and 140. staff of the Commission—see section 21. task force includes a body of persons that is similar to a task force, however the body is described. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 5 References to special legal qualifications A reference in this Act to a person who has special legal qualifications is a reference to a person who— (a) is, or is qualified to be appointed as, a Judge or other judicial officer of a superior court of record of the State or of any other State or Territory or of Australia, or (b) is a former Judge or judicial officer of such a court. Note. Examples of judicial officers of superior courts of record are Judges and Justices of a Supreme Court of any State or Territory or of the High Court, Federal Court or Federal Circuit and Family Court of Australia (Division 1). 6 References to Presiding Officers (1) In this Act, a reference to a Presiding Officer of a House of Parliament is a reference to the President of the Legislative Council or the Speaker of the Legislative Assembly. (2) If there is a vacancy in the office of President, the reference to the President is taken to be a reference to the Clerk of the Legislative Council. (3) If there is a vacancy in the office of Speaker, the reference to the Speaker is taken to be a reference to the Clerk of the Legislative Assembly. 7 References to examinations A reference in this Act to an examination before the Commission or anything done or omitted by, to or in relation to an examination before the Commission includes a reference to an examination before, or a thing done or omitted by, to or in relation to the examination by an examining Commissioner. 8 Former police of other jurisdictions (1) The Commission may designate an officer of the Commission as an approved former police officer for the purposes of this Act, if— (a) the officer has served for at least 5 years in one or more of the following capacities— (i) as a member of the Australian Federal Police, (ii) as a member of the Police Force of another State or Territory, (iii) as a member of the Police Force of any prescribed foreign country, and (b) the Commission is satisfied after inquiry that the officer's service in any such capacity was satisfactory, and (c) the officer is not a police officer or former police officer of New South Wales. (2) In this section— prescribed foreign country means the following— (a) any country that is, or was, a member of the Commonwealth of Nations, (b) any country that is, or was, a member of the European Union, (c) the Special Administrative Region of the People's Republic of China known as Hong Kong, (d) the United States of America, (e) any other country prescribed by the regulations. Division 2 Key concepts 9 Police misconduct, administrative employee misconduct and Crime Commission officer misconduct (1) Definition—police misconduct For the purposes of this Act, police misconduct means any misconduct (by way of action or inaction) of a police officer— (a) whether or not it also involves participants who are not police officers, and (b) whether or not it occurs while the police officer is officially on duty, and (c) whether or not it occurred before the commencement of this subsection, and (d) whether or not it occurred outside the State or outside Australia. (2) Definition—administrative employee misconduct For the purposes of this Act, administrative employee misconduct means any misconduct (by way of action or inaction) of an administrative employee— (a) whether or not it also involves participants who are not administrative employees, and (b) whether or not it occurs while the administrative employee is officially on duty, and (c) whether or not it occurred before the commencement of this subsection, and (d) whether or not it occurred outside the State or outside Australia. (3) Definition—Crime Commission officer misconduct For the purposes of this Act, Crime Commission officer misconduct means any misconduct (by way of action or inaction) of a Crime Commission officer— (a) whether or not it also involves participants who are not Crime Commission officers, and (b) whether or not it occurs while the Crime Commission officer is officially on duty, and (c) whether or not it occurred before the commencement of this subsection, and (d) whether or not it occurred outside the State or outside Australia. (4) Examples Police misconduct, administrative employee misconduct or Crime Commission officer misconduct can involve (but is not limited to) any of the following conduct by a police officer, administrative employee or Crime Commission officer respectively— (a) conduct of the officer or employee that constitutes a criminal offence, (b) conduct of the officer or employee that constitutes corrupt conduct, (c) conduct of the officer or employee that constitutes unlawful conduct (not being a criminal offence or corrupt conduct), (d) conduct of the officer or employee that constitutes a disciplinary infringement. (5) Former police officers, administrative employees and Crime Commission officers Conduct may be dealt with, or continue to be dealt with, under this Act even though any police officer, administrative employee or Crime Commission officer involved is no longer a police officer, administrative employee or Crime Commission officer (but only in relation to conduct occurring while he or she was a police officer, administrative employee or Crime Commission officer). Accordingly, references in this Act to a police officer, administrative employee or Crime Commission officer extend, where appropriate, to include a former police officer, administrative employee and Crime Commission officer, respectively. 10 Meaning of "serious misconduct" (1) For the purposes of this Act, serious misconduct means any one of the following— (a) conduct of a police officer, administrative employee or Crime Commission officer that could result in prosecution of the officer or employee for a serious offence or serious disciplinary action against the officer or employee for a disciplinary infringement, (b) a pattern of officer misconduct, officer maladministration or agency maladministration carried out on more than one occasion, or that involves more than one participant, that is indicative of systemic issues that could adversely reflect on the integrity and good repute of the NSW Police Force or the Crime Commission, (c) corrupt conduct of a police officer, administrative employee or Crime Commission officer. (2) In this section— serious disciplinary action against an officer or employee means terminating the employment, demoting or reducing the rank, classification or grade of the office or position held by the officer or employee or reducing the remuneration payable to the officer or employee. serious offence means a serious indictable offence and includes an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence. 11 Maladministration (1) For the purposes of this Act, agency maladministration means any conduct (by way of action or inaction) of the NSW Police Force or the Crime Commission other than excluded conduct— (a) that is unlawful (that is, constitutes an offence or is corrupt conduct or is otherwise unlawful), or (b) that, although it is not unlawful— (i) is unreasonable, unjust, oppressive or improperly discriminatory in its effect, or (ii) arises, wholly or in part, from improper motives, or (iii) arises, wholly or in part, from a decision that has taken irrelevant matters into consideration, or (iv) arises, wholly or in part, from a mistake of law or fact, or (v) is conduct of a kind for which reasons should have (but have not) been given, or (c) that is engaged in in accordance with a law or established practice, being a law or practice that is, or may be, unreasonable, unjust, oppressive or improperly discriminatory in its effect. (2) For the purposes of this Act, officer maladministration means any conduct (by way of action or inaction) of a police officer, administrative employee or Crime Commission officer that, although it is not unlawful (that is, does not constitute an offence or corrupt conduct)— (a) is unreasonable, unjust, oppressive or improperly discriminatory in its effect, or (b) arises, wholly or in part, from improper motives, or (c) arises, wholly or in part, from a decision that has taken irrelevant matters into consideration, or (d) arises, wholly or in part, from a mistake of law or fact, or (e) is conduct of a kind for which reasons should have (but have not) been given. (3) For the purposes of this Act, agency maladministration or officer maladministration is serious maladministration— (a) in the case of an agency—if the conduct involved is unlawful (that is, constitutes an offence or is corrupt conduct or is otherwise unlawful), or (b) in the case of an agency or officer—if the conduct involved is of a serious nature and, although it is not unlawful— (i) is unreasonable, unjust, oppressive or improperly discriminatory in its effect, or (ii) arises, wholly or in part, from improper motives. (4) In this section— excluded conduct means any of the following— (a) conduct of the Crime Commission in relation to a decision that could be the subject of an application for review by the Supreme Court under section 33 of the Crime Commission Act 2012, (b) conduct of the Crime Commission or Crime Commission officers in relation to the carrying on or determination of a hearing under Division 4 of Part 2 of the Crime Commission Act 2012 or any proceeding relating to an investigation conducted by the Crime Commission, (c) conduct of the Crime Commission or its officers where acting as a legal advisor to a public authority or as a legal representative of a public authority (including as counsel assisting a public authority), (d) conduct of the Crime Commission or its officers relating to the carrying on of any proceedings before a court (including a coronial inquiry and committal proceedings before a magistrate) or before any other person or body before whom witnesses may be compelled to appear and give evidence, (e) conduct in carrying out the functions of an executive officer or member of the Management Committee of the Crime Commission. 12 Meaning of "complainant" and "complaint" In this Act— complainant means a person by whom, or on whose behalf, a complaint is made. complaint means an allegation that any conduct— (a) of a police officer (whether or not named or identified)—is (or could be) conduct that falls within the description of police misconduct or officer maladministration (a police complaint), or (b) of a Crime Commission officer (whether or not named or identified)—is (or could be) conduct that falls within the description of Crime Commission officer misconduct or officer maladministration (a Crime Commission complaint), or (c) of an administrative employee (whether or not named or identified)—is (or could be) conduct that falls within the description of administrative employee misconduct or officer maladministration (an administrative employee complaint), or (d) of the NSW Police Force or the Crime Commission—is (or could be) conduct that falls within the description of agency maladministration (an agency complaint). 13 Misconduct information (1) In this Act— misconduct information means a mandatory or other report or other information contained in any other document that the Commission becomes aware of otherwise than through a complaint that indicates or suggests conduct is (or could be) officer misconduct or officer maladministration or agency maladministration. Note. Information may include, for example, a sound recording or transcript of an intercepted telephone conversation or report of an audit of officer access to police information systems. (2) In this section— mandatory report means a report made under a duty imposed by section 33 of this Act or section 211F of the Police Act 1990. 14 Misconduct matters management guidelines (1) Without limiting the agreements that may be entered into, the Commission may from time to time enter into written agreements with the Commissioner of Police and the Crime Commissioner concerning all or any of the following— (a) the kinds of misconduct matters that should or should not be investigated, (b) the kinds of misconduct matters required to be notified to the Commission (notifiable misconduct matters), (c) the kinds of misconduct matters that would ordinarily be investigated by the Commissioner of Police, the Crime Commission or the Commission, (d) the kinds of misconduct matters that should or should not be the subject of oversight by the Commission under Part 7 and the form of such oversight, (e) the manner of dealing with misconduct matters that should not be the subject of such oversight, (f) the level of detail required in notifying or referring a misconduct matter to the Commission, Commissioner of Police or Crime Commissioner, (g) the giving of notice with respect to misconduct matters to the Commission, the Commissioner of Police, the Crime Commissioner, the officer the subject of the misconduct matter, complainants and referring authorities, (h) arrangements with respect to the monitoring by the Commission under section 101 of police investigations and Crime Commission investigations of misconduct matters, (i) the kind of misconduct information that is required to be registered in the misconduct matters information system, (j) any other matter prescribed by the regulations. (2) The Commission may issue guidelines reflecting agreements entered into under this section. (3) If the Commission, the Commissioner of Police or the Crime Commissioner does not enter into an agreement on any matter referred to in subsection (1), the Commission's opinion is to be determinative as to the contents of any guideline concerning the matter and the application of the guideline. (4) The Commission is to make the agreements and guidelines publicly available. 15 Coercive examination powers In this Act— coercive examination power means a power conferred under Part 6 in relation to conduct that is (or could be) serious misconduct or serious maladministration to— (a) conduct an examination under section 61, or (b) summon a witness under section 69 or contemnor under section 93 (1), or (c) punish for contempt under section 92 or 93, or (d) arrest a witness, or person in contempt, under section 71 or 93 (3), respectively, or (e) order attendance of an inmate under section 78, or (f) issue a search warrant under section 79 (2). 16 Nominated contact of an agency (1) For the purposes of this Act— head of an agency means— (a) if the agency is the NSW Police Force—the Commissioner of Police, or (b) if the agency is the Crime Commission—the Crime Commissioner, or (c) in any other case—the chief executive officer or other principal officer of the agency. nominated contact of an agency in relation to an investigation means— (a) one or more staff members of the agency nominated under this section as the nominated contacts for the investigation, or (b) if a staff member is not nominated—the head of the agency. (2) The head of an agency may nominate a staff member of the agency as the contact for an investigation if the Commission— (a) decides to deal with a misconduct matter by referring it to that agency for investigation, or (b) decides to deal with a misconduct matter by overseeing an investigation of the misconduct matter by that agency, or (c) decides to oversee an investigation of a critical incident by that agency. Part 3 Constitution and management of Commission 17 Constitution of Law Enforcement Conduct Commission There is constituted by this Act a corporation with the corporate name of the Law Enforcement Conduct Commission. 18 The Commissioners (1) The Commission consists of a Chief Commissioner and 1 other Commissioner appointed by the Governor. (2) The other Commissioner may only be appointed with the concurrence of the Chief Commissioner. (3) (Repealed) (4) A person is not eligible to be appointed as a Commissioner or to act in the office of a Commissioner unless the person has special legal qualifications. (5) A person is not eligible to be appointed as the other Commissioner or to act in that office if the person is a police officer or a former police officer. (6) A person is not eligible to be appointed as a member of the Commission or to act in that office if the person is a member of the Legislative Council or of the Legislative Assembly or is a member of a House of Parliament or legislature of another State or Territory or of the Commonwealth. (7) Schedule 1 contains provisions relating to the Commissioners. 19 Exercise of Commission's functions (1) Except as otherwise provided by this section, the functions of the Commission are exercisable by a Commissioner, and any act, matter or thing done in the name of, or on behalf of, the Commission by a Commissioner is taken to have been done by the Commission. (2) A decision of the Commission to exercise any of the following functions must be authorised by the Chief Commissioner after consulting with the other Commissioner— (a) a decision under sections 44 (1) (a) and 51 (1), made after taking into account the relevant factors set out in sections 45 and 46, that conduct is (or could be) serious misconduct, serious maladministration, police misconduct, Crime Commission officer misconduct, officer maladministration or agency maladministration and should be investigated, (b) a decision to hold an examination under Division 3 of Part 6 (except where there is a duty to hold an examination into conduct referred by Parliament for investigation under section 196), (c) a decision under Division 3 of Part 6 to hold an examination (or part of an examination) in public, (d) a decision under section 79 (2) that there are reasonable grounds to issue a search warrant, (e) a decision under section 23 (1) to delegate a function of the Commission. (3) A decision of the Commission referred to in subsection (2) is presumed to have been duly authorised unless the contrary is established. (4) A decision of the Chief Commissioner prevails in the event of an inconsistency in the decisions of Commissioners with respect to a matter. 20 Assistant Commissioners