New South Wales: Police Act 1990 (NSW)

Police Act 1990 No 47 An Act to establish the NSW Police Force, to provide for the management of the NSW Police Force and for the employment of its members of staff; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Police Act 1990. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— administrative employee means a member of the NSW Police Force other than a police officer. Assistant Commissioner means a member of the NSW Police Force whose position is determined by the Minister under Part 5 as that of an Assistant Commissioner. commissioned police officer means a police officer of or above the rank of inspector. Commissioner means the Commissioner of Police. Deputy Commissioner means a member of the NSW Police Force whose position is determined by the Minister under Part 5 as that of a Deputy Commissioner. LECC means the Law Enforcement Conduct Commission constituted under the Law Enforcement Conduct Commission Act 2016. LECC Chief Commissioner means the Chief Commissioner of the Law Enforcement Conduct Commission. medical practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW). merit, in relation to a decision of the Commissioner to appoint or recommend for appointment a person to a position in the NSW Police Force or rank or grade within a rank of police officer, means— (a) the possession by the person of qualifications determined in respect of the position or rank or grade by the Commissioner, and (b) the aptitude of the person for the discharge of the duties of the position or rank or grade, and (c) the integrity, diligence and good conduct of the person. non-commissioned police officer means a police officer under the rank of inspector. non-executive administrative employee means a member of the NSW Police Force, other than a police officer or a NSW Police Force senior executive. non-executive police officer—see Part 6. NSW Police Force means the NSW Police Force established by this Act. NSW Police Force senior executive—see section 32. Personal Injury Commission or Commission, for Part 9B—see section 199A. police education course means a course of education determined by the Commissioner to be a police education course for the purposes of one or more provisions of this Act or the regulations. police officer means a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer. police officer support scheme, for Part 9B—see section 199B. position, in relation to NSW Police Force senior executives or non-executive administrative employees, includes role. psychologist has the same meaning as in the Health Practitioner Regulation National Law (NSW). recognised law enforcement officer means a person appointed as a recognised law enforcement officer under Part 10B whose appointment is in force. role of a NSW Police Force senior executive or a non-executive administrative employee means the duties and responsibilities of any such executive or employee. student of policing means a person (other than a police officer) who is undergoing a police education course. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) Notes in the text of this Act do not form part of the Act. (4) 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. (5) 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. (6) 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. Part 2 NSW Police Force 4 Establishment of NSW Police Force The NSW Police Force is established by this Act. 5 Composition of NSW Police Force The NSW Police Force comprises the following members— (a) the Commissioner, (b) NSW Police Force senior executives, (c) all other police officers or non-executive administrative employees who are employed under this Act. (d) (Repealed) 6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions— (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section— police services includes— (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. (4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force. (5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988. (6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002. 6A Functions under Law Enforcement Conduct Commission Act 2016 (1) The NSW Police Force has the functions of working collaboratively (so far as practicable) with LECC with respect to the education of police officers and administrative employees about police and administrative employee misconduct, officer maladministration and agency maladministration and the support and promotion of initiatives of the NSW Police Force directed at the prevention and elimination of such misconduct and maladministration. (2) An expression used in this section which is defined in the Law Enforcement Conduct Commission Act 2016 has the meaning it has in that Act. 7 Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which— (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of individuals, (d) seeks to improve the quality of life by community involvement in policing, (e) strives for citizen and police personal satisfaction, (f) capitalises on the wealth of human resources, (g) makes efficient and economical use of public resources, and (h) ensures that authority is exercised responsibly. 8 Commissioner to manage and control NSW Police Force (1) The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the NSW Police Force. (2) The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the NSW Police Force. (3) The Commissioner may classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member. (4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force. (4A) The Commissioner (on behalf of the Crown) may make or enter into contracts or arrangements with any person for the carrying out of works or the performance of services or the supply of goods or materials in connection with the exercise of the functions of the NSW Police Force. (5) This section is subject to the other provisions of this Act and the regulations. 9 (Repealed) 10 Positions in NSW Police Force (1) In addition to the position of Commissioner, the positions in the NSW Police Force consist of such positions as the Commissioner may determine in accordance with this Act. (2) The Commissioner— (a) may create, abolish or otherwise deal with any position in the NSW Police Force, and (b) must classify and grade each such position. (3) (Repealed) (4) Police officers of the rank of constable (or such of those police officers as the Commissioner determines) are to be appointed to that rank or to a grade within that rank, and hold a position (but not a separate position) in the NSW Police Force. (5) (Repealed) (6) The Commissioner may establish, or abolish, or change the name of, any branch or other part of the NSW Police Force. 11 Designation of police officers (1) The Commissioner is required to designate the positions in the NSW Police Force which are to be held by police officers. (2) A position in the NSW Police Force is to be so designated if the Commissioner is satisfied that the holder will be required to carry out, or will be concerned in, operational police duties or that it is otherwise appropriate to do so. (3) The Commissioner may not designate such a position while it is being held by an administrative employee or remove the designation of such a position while it is being held by a police officer. (4) The Commissioner is a police officer. (5) (Repealed) 12 Ranks and grades of police officers (1) The ranks of police officers within the NSW Police Force are (in descending order) as follows— (a) Commissioner. (b) NSW Police Force senior executive. (c) Superintendent. (d) Inspector. (e) Sergeant. (f) Constable. (2) The Commissioner, with the approval of the Minister, may specify different ranks for police officers who are NSW Police Force senior executives. (3) The regulations may specify grades within the ranks of superintendent, inspector, sergeant and constable. 13 Oath to be taken by persons exercising police functions (1) Before a person exercises any of the functions of a police officer, the person must take the oath or make the affirmation of office as a police officer in accordance with the regulations. (2) A police officer is not required to take a further oath or make a further affirmation after a change in the officer's position in the NSW Police Force, so long as the officer remains in the NSW Police Force. (3) An oath or affirmation under this section is to be administered by or made before the Commissioner or any other person authorised to administer an official oath under the Oaths Act 1900. 14 Additional functions of police officers (1) In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State. (2) Nothing in this section confers on a police officer a power to exercise a function in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002. Part 3 15–23 (Repealed) Part 4 The Commissioner of Police 24 Appointment of Commissioner (1) The Commissioner of Police is to be appointed by the Governor on the recommendation of the Minister. (2) It does not matter whether the person appointed is or is not already a member of the NSW Police Force. (3) In particular, it does not matter whether the person appointed is or is not a police officer at the time of appointment. (4) If it is proposed to make an appointment to the office of Commissioner, the Minister is required to invite applications for appointment to that office. (5) However, the Minister is not required to invite applications for appointment if the Minister proposes to recommend the re-appointment of the person currently holding office as Commissioner. (6) It is the duty of the Minister, before recommending the appointment of a person to the office of Commissioner— (a) to make inquiries (from the LECC, and the Commander, Professional Standards Command, and from any other person or body the Minister considers appropriate) as to the person's integrity, and (b) to have regard to any information that comes to the Minister's attention (whether as a result of inquiries under paragraph (a) or otherwise) as to the person's integrity. (7) The LECC, subject to the Law Enforcement Conduct Commission Act 2016, and the Commander, Professional Standards Command, are required to furnish a report to the Minister (on the basis of the information available to the Commission or the Commander and without the need for any special investigation or inquiry) on the person the subject of an inquiry referred to in subsection (6) (a). (8) The Minister must, before recommending the appointment of a person to the office of Commissioner— (a) require the person to provide a statutory declaration, in such form (if any) as may be prescribed by the regulations, that the person has not knowingly engaged in specified misconduct or any other misconduct, and (b) have regard to the statutory declaration so provided. (9) A person who fails or refuses, or who is unable, to provide a statutory declaration in accordance with a requirement made under subsection (8) is ineligible for appointment to the office of Commissioner. (10) The failure, refusal or inability of a person to provide the statutory declaration must not be taken into consideration for a purpose other than the assessment of the person's eligibility to be appointed to the office of Commissioner. 25 Acting Commissioner (1) The Minister may appoint a member of the NSW Police Force to act as Commissioner if the office of Commissioner is vacant or the Commissioner is suspended, sick or absent. (2) Any such member, while acting as Commissioner, has all the functions of the Commissioner. (3) The Minister may at any time terminate the appointment of any such member to act as Commissioner. 26 Term of appointment of Commissioner (1) Subject to this Act, the Commissioner holds office for such period (not exceeding 5 years) as is specified in the Commissioner's instrument of appointment, but is eligible (if otherwise qualified) for re-appointment. (2) The Commissioner may be re-appointed with effect before the expiry of the Commissioner's term of office. In that case, the Commissioner's existing term of office expires. 27 Employment and remuneration of Commissioner (1) The employment of the Commissioner is to be governed by a contract of employment between the Commissioner and the Minister. (2) The provisions of sections 36 (1), 38, 39 and 42 apply to the Commissioner in the same way as they apply to a NSW Police Force senior executive (subject to a reference in those provisions to the Commissioner being construed as a reference to the Minister). 28 Removal of Commissioner (1) The Governor may remove the Commissioner from office on the recommendation of the Minister at any time for any or no stated reason and without notice. (1A) A Commissioner who is removed from office is entitled to such compensation (if any) as may be provided in the contract of employment of the Commissioner (and to no other compensation or entitlement for the removal from office). This subsection does not affect the operation of the Police Regulation (Superannuation) Act 1906 or the State Authorities Superannuation Act 1987 or prevent the payment of any other benefit provided under a superannuation scheme. (1B) A Commissioner who is removed from office is not to be employed in the public sector during the period specified in the contract of employment to which any such compensation relates unless arrangements have been made for a refund of the proportionate amount of the compensation. (1C) For the purposes of this section, employment of a former Commissioner in the public sector and public sector have the same meanings as in section 41 of the Government Sector Employment Act 2013. (2) (Repealed) (3) A recommendation of the Minister under subsection (1) may be made only after the Minister— (a) has notified the LECC that the Minister intends to recommend that the Commissioner be removed from office, and (b) has given the LECC a reasonable opportunity to comment on the proposed recommendation. (4)–(7) (Repealed) (8) The Commissioner may be removed from office only under this section. 28A Declaration as "unattached" officer (1) This section applies in relation to a person who is removed from office as Commissioner under section 28. (2) The Governor, on the recommendation of the Minister— (a) may declare the person so removed to be an unattached officer in the service of the Crown, and (b) may revoke any such declaration. (3) While such a declaration remains in force, the person concerned is entitled to monetary remuneration and employment benefits (including any benefits that may be provided under a superannuation scheme) as if the person had not been removed from office. (4) If— (a) the Commissioner is removed from office and such a declaration is not made, or (b) a declaration that is made is revoked, the person concerned ceases to be employed in the service of the Crown, unless appointed to another position in the service of the Crown. (5) A declaration under this section, unless sooner revoked, is revoked on the date on which the term of office of the person as Commissioner would have expired. 29 (Repealed) 30 Vacation of office by Commissioner (1) The office of Commissioner becomes vacant if the Commissioner— (a) dies, or (b) completes a term of office and is not re-appointed, or (c) is removed from office under section 28, or (d) retires from office under this or any other Act, or (e) resigns his or her office in writing addressed to the Minister. (2) The retirement or resignation of a Commissioner does not take effect until— (a) the Minister accepts the retirement or resignation, or (b) the Commissioner has given the Minister at least 4 weeks' notice in writing of the day on which the Commissioner intends to retire or resign and the Commissioner is not on that day under official investigation for misbehaviour. (3) The Commissioner is under official investigation for misbehaviour if the Minister so certifies. 31 Delegation by Commissioner The Commissioner may delegate to another member of the NSW Police Force any of the functions conferred or imposed on the Commissioner by or under this or any other Act, other than this power of delegation. Part 5 NSW Police Force senior executives 32 NSW Police Force senior executives (1) Persons who are employed in the NSW Police Force in a Public Service senior executive band, whether as police officers or as administrative employees, are NSW Police Force senior executives. For that purpose, the Public Service senior executive bands under the Government Sector Employment Act 2013 apply to employment in the NSW Police Force. (2) The Commissioner is not a NSW Police Force senior executive. (3) Deputy Commissioners and Assistant Commissioners are to be employed as NSW Police Force senior executives. (4) A police officer is not to be employed as a NSW Police Force senior executive unless the police officer is above the rank of superintendent. (5) The Commissioner may, subject to this and any other Act or law, exercise employer functions in relation to persons employed as NSW Police Force senior executives. 33 Appointment of senior executives (1) Deputy Commissioners and Assistant Commissioners are to be appointed by the Governor. The persons appointed are to be persons recommended to the Minister by the Commissioner and approved by the Minister. (2) Other NSW Police Force senior executives are to be appointed by the Commissioner. (3) The appointment of a person under this section to a position in the NSW Police Force is to be based on an assessment of the capabilities, experience and knowledge of the person against the pre-established standards for the position to determine the person best suited to the requirements of the position and the needs of the NSW Police Force. (4) It does not matter whether a person appointed under this section is or is not already a member of the NSW Police Force, and it does not matter that a person appointed to a position designated as a position to be held by a police officer is not a police officer at the time of appointment. (5) The Commissioner may appoint a member of the NSW Police Force to act as a Deputy Commissioner, Assistant Commissioner or other NSW Police Force senior executive if the executive is suspended, sick or absent or has vacated office, and may terminate the appointment at any time. (6) A person, while so acting as a NSW Police Force senior executive, has all the functions of the executive, but does not thereby become a NSW Police Force senior executive if not already such an executive. 34 Integrity matters (1) It is the duty of the Commissioner, before recommending the appointment of, or appointing, a person as a NSW Police Force senior executive— (a) to make inquiries (from the LECC, and the Commander, Professional Standards Command, and from any other person or body the Commissioner considers appropriate) as to the person's integrity, and (b) to have regard to any information that comes to the Commissioner's attention (whether as a result of inquiries under paragraph (a) or otherwise) as to the person's integrity. (2) The LECC, subject to the Law Enforcement Conduct Commission Act 2016, and the Commander, Professional Standards Command, are required to furnish a report to the Commissioner (on the basis of the information available to the Commission or the Commander and without the need for any special investigation or inquiry) on the person the subject of an inquiry by the Commissioner. (3) As soon as practicable after a person is appointed as a NSW Police Force senior executive, the Commissioner is required to notify the LECC of the identity of the person so appointed. (4) The Commissioner must, before recommending the appointment of, or appointing, a person as a NSW Police Force senior executive— (a) require the person to provide a statutory declaration, in such form (if any) as may be prescribed by the regulations, that the person has not knowingly engaged in specified misconduct or any other misconduct, and (b) have regard to the statutory declaration so provided. (5) Subsection (4) does not apply to a person who is not, and has never been, a police officer (whether a member of the NSW Police Force, or the Police Force, by whatever name described, of another State or Territory, or of another country). (6) A person who does not provide a statutory declaration in accordance with a requirement under subsection (4) is ineligible for appointment. (7) The fact that a person does not provide a statutory declaration in accordance with such a requirement is not to be taken into consideration for a purpose other than the assessment of the person's eligibility to be appointed as a NSW Police Force senior executive. (8) In the case of the appointment of a person as the Commander, Professional Standards Command, the functions of that Commander under this section are to be exercised by a Deputy Commissioner nominated by the Commissioner. 35 Kinds of employment (1) Employment as a NSW Police Force senior executive may be any one of the following kinds of employment— (a) ongoing employment, (b) term employment. (2) Ongoing employment is employment that continues until the executive resigns or his or her employment is terminated. (3) Term employment is employment for a specified period or for the duration of a specified task (unless the executive sooner resigns or his or her employment is terminated). 36 Employment in bands and assignment to roles (1) A NSW Police Force senior executive is to be employed in the Public Service senior executive band that the Commissioner considers appropriate for the role of the executive. (2) In determining the number of NSW Police Force senior executives and the appropriate band in which they are employed, the Commissioner is to apply the applicable work level standards and have regard to any guidance provided by the Public Service Commissioner. (3) A NSW Police Force senior executive may, from time to time, be assigned to a role in any part of the NSW Police Force in the band in which the executive is employed. (4) A NSW Police Force senior executive may be assigned to a role by the Commissioner. (5) A NSW Police Force senior executive (other than a police officer) may— (a) be transferred by the Commissioner to the Public Service of New South Wales and assigned to a role in any Public Service agency in the band in which the executive is employed (with the agreement of the head of that agency), or (b) be transferred by the Commissioner to the NSW Health Service and assigned to a role in the band in which the executive is employed (with the agreement of the Secretary of the Ministry of Health), or Note. A Police Force senior executive may not be assigned to the role of chief executive of a local health district or specialty network governed health corporation except with the concurrence of the board of the organisation concerned—see section 121D (11) of the Health Services Act 1997. (c) be transferred by the Commissioner to the Transport Service of New South Wales and assigned to a role in the band in which the executive is employed (with the agreement of the Secretary of the Department of Transport). Note. See also section 95A which enables a police officer to be seconded to other government agencies. While seconded, the police officer retains his or her rank, seniority and remuneration and may continue to act as a police officer of that rank. (6) NSW Police Force senior executives may be assigned to roles under this section to enable the flexible deployment of staff resources and to develop the capabilities of staff. (7) A NSW Police Force senior executive is not to be assigned to a different role under this section unless the executive has been consulted. The remuneration payable to the executive is not to be reduced because of the assignment to the different role without the consent of the executive. This subsection extends to a transfer under subsection (5). (8) In this section— assign to a role includes assign to a different role. 37 Government sector employment rules and employment directions (1) The Public Service Commissioner may make government sector employment rules under section 12 of the Government Sector Employment Act 2013 on any matter relating to the employment of NSW Police Force senior executives (including, without limitation, matters of the kind referred to in section 36 of that Act and the application of the principle of employment on merit). (2) The Public Service Commissioner must consult the Commissioner of Police before making any such rules. (3) This section does not limit any direction that the Commissioner is otherwise authorised to give in relation to the management or control of the NSW Police Force (including employment arrangements). The Commissioner is to consult with the Public Service Commissioner on any inconsistency between any such directions given and applicable government sector employment rules. 38 Contract of employment (1) A NSW Police Force senior executive is to be employed under a written contract of employment signed by the executive and by the Commissioner on behalf of the Government. (2) Without limiting section 37 (1), the government sector employment rules made under section 12 of the Government Sector Employment Act 2013 may prescribe model contracts of employment for NSW Police Force senior executives and may specify any model provisions that are mandatory and that prevail in the event of any inconsistency with the provisions of a contract of employment entered into after the commencement of those mandatory provisions. (3) Subject to this Part, the government sector employment rules and any direction issued by the Public Service Commissioner under the Government Sector Employment Act 2013, a contract of employment of a NSW Police Force senior executive is to deal with the following matters— (a) the band in which the executive is employed, (b) the duration of the contract if the executive is not employed in ongoing employment, (c) the total remuneration package of the executive (comprising monetary remuneration and employment benefits) and any allowances, (d) performance obligations, and reviews of performance, of the executive, (e) progression in the total remuneration package of the executive based on performance, (f) leave and other conditions of employment of the executive, (g) the compensation for any termination of employment of the executive by the Commissioner (including the period to which the compensation relates), (h) any other matter prescribed by the regulations under section 39 (4) of the Government Sector Employment Act 2013. (4) The contract of employment of a NSW Police Force senior executive may, subject to this Act, include conditions of engagement. (5) The contract of employment of a NSW Police Force senior executive does not limit, and is not terminated or otherwise affected by— (a) the transfer of the executive under section 36 (5) to the Public Service of New South Wales, the NSW Health Service or the Transport Service of New South Wales, or (b) the assignment of the executive to a different role or any other change to the title, place of work or duties of the executive. (6) A contract of employment of a NSW Police Force senior executive may, subject to this section, be varied at any time in accordance with the contract or by further agreement. (7) The regulations under the Government Sector Employment Act 2013 may make provision with respect to the compensation to which a NSW Police Force senior executive whose employment is terminated is entitled under his or her contract of employment. Any such regulation cannot reduce the amount of compensation to which a NSW Police Force senior executive is entitled under a contract of employment entered into before the commencement of the regulation. 39 Remuneration, benefits and allowances (1) The remuneration package of a NSW Police Force senior executive must be within the range determined under the Statutory and Other Offices Remuneration Act 1975 for the band in which the executive is employed, except as provided by subsection (2). Note. See also section 24R (3) of the Statutory and Other Offices Remuneration Act 1975. (2) The Commissioner may, in accordance with parameters agreed on by the Commissioner and the Public Service Commissioner, determine a remuneration package for a NSW Police Force senior executive or class of NSW Police Force senior executives that is within a range higher than the range determined under the Statutory and Other Offices Remuneration Act 1975 for the band in which the executive or class of executives is employed. (3) The kinds and value of employment benefits and the allowances for a NSW Police Force senior executive are to be determined by the Commissioner. In making any such determination, the Commissioner is to have regard to any similar determinations that apply to Public Service senior executives. (4) A NSW Police Force senior executive is only entitled to the remuneration, employment benefits or allowances provided in the executive's contract of employment. (5) For the purposes of this section, employment benefits for a NSW Police Force senior executive are— (a) contributions by the executive's employer to a superannuation scheme or fund of the executive, and (b) other benefits provided to the executive at the cost of the executive's employer that are of a private nature. 39A (Repealed) 40 Termination of employment (1) The Governor may terminate the appointment of a person as Deputy Commissioner or Assistant Commissioner at any time, for any or no stated reason and without notice. The Governor is not to do so unless the termination is recommended to the Minister by the Commissioner and the Minister approves the recommendation. (2) The Commissioner may terminate the employment of any other NSW Police Force senior executive at any time, for any or no stated reason and without notice. (3) The Commissioner— (a) may declare a person whose appointment is terminated under subsection (1) to be an unattached officer in the NSW Police Force (an unattached declaration), and (b) may revoke an unattached declaration. (4) While an unattached declaration is in force, the person to whom the declaration relates— (a) is to be regarded as a NSW Police Force senior executive (although not as the holder of any position), and (b) is entitled to remuneration and employment benefits (including any benefits that may be provided under a superannuation scheme) as if the person's appointment had not been terminated. (5) If, in the case of a person whose appointment has been terminated under subsection (1), an unattached declaration is not made or is revoked by the Commissioner, the employment of the person as a NSW Police Force senior executive is to be terminated by the Commissioner unless the person is appointed to another position in the NSW Police Force (including a position as a non-executive police officer) after consultation with the person. (6) Without limiting subsection (5), a person whose appointment as Deputy Commissioner or Assistant Commissioner is terminated under this section and who is the subject of an unattached declaration may be appointed by the Commissioner to a position in the NSW Police Force as a non-executive police officer after consultation with the person. (7) Nothing in this section prevents— (a) a NSW Police Force senior executive who is a police officer being removed from the NSW Police Force apart from under this section, or (b) a NSW Police Force senior executive who is an administrative employee from having his or her employment terminated under section 68 or 69 of the Government Sector Employment Act 2013. 41 Compensation for termination of employment (1) A NSW Police Force senior executive whose employment is terminated under section 40 is entitled to such compensation (if any) as may be provided in the contract of employment of the executive (and to no other compensation or entitlement for the termination of employment). This subsection does not affect the operation of the Police Regulation (Superannuation) Act 1906 or the State Authorities Superannuation Act 1987 or prevent the payment of any other benefit provided under a superannuation scheme. (2) A NSW Police Force senior executive whose employment is so terminated is not to be employed in the public sector during the period specified in the contract of employment to which any such compensation relates unless arrangements have been made for a refund of the proportionate amount of the compensation. (3) The regulations under the Government Sector Employment Act 2013 may make provision relating to the calculation of the proportionate amount of a payment to be refunded under subsection (2). (4) For the purposes of this section, employment of a former executive in the public sector and public sector have the same meanings as in section 41 of the Government Sector Employment Act 2013. 42 Industrial or legal proceedings excluded (1) The employment of a NSW Police Force senior executive, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Parts 6, 7 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of a NSW Police Force senior executive. (3) Any State industrial instrument (whether made before or after the commencement of this section) does not have effect in so far as it relates to the employment of NSW Police Force senior executives. This subsection does not prevent the provisions of any such industrial instrument being adopted by reference in the conditions of employment of any such executive. (4) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of— (a) the engagement of, or failure to engage, a person as such a NSW Police Force senior executive, or (b) the assignment or re-assignment of a NSW Police Force senior executive to a role in a band. (5) In this section, a reference to the employment of a NSW Police Force senior executive is a reference to— (a) the engagement of, or failure to engage, a person as such an executive, or (b) the assignment or re-assignment of the executive to a role in a band, or (c) the removal, retirement, termination of employment or other cessation of employment of the executive, or (d) any disciplinary proceedings or action taken against the executive, or (e) the remuneration or other conditions of employment of the executive. 43–61 (Repealed) Part 6 Non-executive police officers Division 1 Preliminary 62 Officers to whom Part applies This Part applies to all police officers (other than the Commissioner and NSW Police Force senior executives). 63 Definitions In this Part— appointment means appointment by way of promotion or transfer or otherwise. non-executive commissioned police officer means a commissioned police officer to whom this Part applies. non-executive police officer means a police officer to whom this Part applies. specialist position means a position at the rank of sergeant, inspector or superintendent identified by the Commissioner as requiring specialist qualifications or unique knowledge, skills or experience. vacant position means— (a) a position that is not held by a person, or (b) a position in which a police officer is appointed to act, in accordance with section 66A. (c) (Repealed) vacant specialist position means— (a) a specialist position that is not held by a person, or (b) a specialist position to which a police officer is appointed on a provisional basis, in accordance with section 66AB, or (c) a specialist position in which a police officer is appointed to act, in accordance with section 66A. Division 2 Appointment of non-executive police officers 64 Appointments to non-executive police officer positions (1) An appointment (whether by way of transfer or promotion or otherwise) as a non-executive police officer is to be made by the Commissioner. (2) It does not matter whether the person appointed is or is not already a member of the NSW Police Force. (3) In particular, it does not matter whether the person appointed is or is not a police officer at the time of appointment. (4) As soon as practicable after a person is appointed (whether by way of transfer or promotion or otherwise) as a non-executive police officer, the Commissioner is required to notify the LECC of the identity of the person so appointed. 65 Filling non-executive positions by either police officers or non-executive administrative employees (1) If the Commissioner is satisfied that a position is suitable for either a police officer or a non-executive administrative employee, the position may, for the purpose of the selection process, be designated as a position available to both police officers and non-executive administrative employees. (2) Before a person is appointed to any such vacant position or vacant specialist position, the Commissioner must determine whether it is to be the position of a police officer or a non-executive administrative employee (and the provisions of this Part or Part 6A relating to the filling of such a vacancy apply accordingly). 66 Appointments and promotion appointments to be made on merit (1) This section applies to appointments to vacant positions of non-executive police officers (other than constables) and vacant specialist positions. (2) In deciding to appoint a person (other than by way of promotion) to a vacant position of a non-executive police officer or a vacant specialist position, the Commissioner must, from among the applicants who are eligible for appointment, select the applicant who has, in the opinion of the Commissioner, the greatest merit. (3) The Commissioner is, for the purpose of determining the merit of persons for appointment (other than by way of promotion) to a vacant position of a non-executive police officer or a vacant specialist position, to have regard to— (a) the nature of the duties of the position, and (b) the qualifications, experience, standard of work performance and capabilities of those persons that are relevant to the performance of those duties. (4) In deciding to appoint a person by way of promotion to a vacant position of a non-executive police officer, the Commissioner must appoint a person who has, in the opinion of the Commissioner, the greatest merit as determined in accordance with the regulations. (5) (Repealed) Note. Sections 66AC and 66A contain an exception to subsection (4) and this section, respectively. 66AA Promotion appointments to specialist positions (1) In deciding to appoint a police officer by way of promotion to a vacant specialist position, the Commissioner must appoint the officer who has, in the opinion of the Commissioner, the greatest merit as determined in accordance with the regulations. (2) The Commissioner may require a police officer applying for appointment by way of promotion to a vacant specialist position to undergo a psychological assessment of the officer's suitability for the position. (3) The Commissioner may not appoint a police officer by way of promotion to a vacant specialist position for which a psychological assessment is required if the officer— (a) refuses to undergo the assessment, or (b) fails to satisfy any requirement or criteria relevant to the assessment. Note. Section 66A contains an exception to this section. 66AB Promotion appointments to specialist positions requiring specific qualifications—provisional appointments (1) This section applies in relation to a vacant specialist position that requires a specific qualification if none of the applicants for the position holds the qualification. (2) The Commissioner may appoint by way of promotion to the position a police officer who does not hold the qualification. (3) The Commissioner must appoint the police officer to the position on a provisional basis for a period (the provisional period) determined by the Commissioner. (4) The Commissioner must permanently appoint the police officer to the position if— (a) the officer obtains the qualification within the provisional period, and (b) the officer has, in the opinion of the Commissioner, demonstrated satisfactory performance in the position within the provisional period. (5) If the police officer is not permanently appointed under subsection (4) within the provisional period, at the end of the provisional period the officer returns to the rank and grade the officer would have held at the end of the provisional period had the officer not been provisionally appointed to the specialist position. (6) Section 66AA applies to an appointment under this section. Note. Section 66A contains an exception to this section. 66AC Appointments—senior sergeants (1) The Commissioner may invite expressions of interest from police officers of the rank of sergeant for appointment to a position within the grade of senior sergeant. (2) Following a selection process, the Commissioner may appoint to such a position a person who, in the opinion of the Commissioner, has the greatest merit among the candidates for the position. (3) Except in such circumstances as may be determined by the Commissioner, a person is not eligible to be appointed to a position within the grade of senior sergeant unless the person has completed a period of, or periods totalling, not less than 2 years at the rank of sergeant. (4) A person who is appointed to a position within the grade of senior sergeant does not retain the title or any benefits associated with that grade if the person is transferred to a position within another grade. (5) Section 66 (4) does not apply to an appointment under this section. 66A Acting appointments (1) The Commissioner may appoint a police officer to act in a non-executive police officer position if— (a) the position is vacant, or (b) the holder of the position is suspended, sick or absent. (2) The police officer, while acting in the position, has all the functions of the holder of the position. (3) The Commissioner may, at any time, terminate the appointment of the police officer to act in the position. (4) This section does not prevent the payment of an allowance to a police officer for exercising any or all of the functions of a non-executive police officer position if a police officer is not appointed to act in the position under this section. (5) An appointment made under subsection (1)(a) must not be for a period longer than 12 months. (6) Sections 66, 66AA and 66AB do not apply to an appointment under this section. 67 (Repealed) 68 Declaration as to misconduct (1) Before appointing a police officer to act in a non-executive police officer position under section 66A, the Commissioner must require the officer to provide a declaration that the officer has not knowingly engaged in specified misconduct or any other misconduct. (2) A police officer who fails, refuses or is unable to provide the declaration is ineligible for appointment to the position. (3) The failure, refusal or inability of a police officer to provide the declaration must not be taken into consideration for a purpose other than the assessment of the officer's eligibility to be appointed to the position. 69 Transfer of non-executive police officers (1) If the Commissioner considers it to be in the interests of the NSW Police Force to do so, the Commissioner may transfer a non-executive police officer from one non-executive police officer position to another non-executive police officer position or non-executive administrative employee position. (2) Such a transfer may be made if— (a) the position to which the officer is transferred entitles its holder to the same level of remuneration as the officer's former remuneration, or (b) the position to which the officer is transferred entitles its holder to a lower level of remuneration than the officer's former remuneration and— (i) the officer consents to the transfer at the lower level of remuneration, or (ii) the officer requested the transfer or the transfer is made pursuant to an order under section 173, or (c) the officer concerned is being transferred from the rank of superintendent to which the officer is permanently appointed to another position within that rank—regardless of whether the position to which the officer is transferred entitles its holder to a remuneration that is the same as or different from the officer's former remuneration. (3) An officer transferred under subsection (2) (c) is entitled, for the balance of the term for which the officer holds office pursuant to section 74, to the same level of remuneration in respect of the new position as the officer's former remuneration if the position to which the officer is transferred ordinarily entitles its holder to a level of remuneration that is lower than the officer's former remuneration (unless the officer requested the transfer or it was made pursuant to an order under section 173). (4) A transfer under this section may be made only if the officer possesses the qualifications determined by the Commissioner for the other position. (5) The transfer under this section of a police officer to a non-executive administrative employee position may not be made without the approval of the police officer. (6) Section 66 does not apply to a transfer under this section. 70 (Repealed) 71 Integrity matters (1) Each of the following is a duty of the Commissioner— (a) before a non-executive police officer participates in a process relating to the person's promotion to the rank of sergeant, inspector or superintendent—to make inquiries as to the integrity of the officer, (b) before appointing a person by way of promotion as a non-executive police officer—to make inquiries as to the integrity of the person of the following— (i) the LECC, (ii) the Commander, Professional Standards Command, (iii) any other person the Commissioner considers appropriate. (2) It is the duty of the Commissioner to have regard to any information that comes to the Commissioner's attention (whether as a result of inquiries under subsection (1) or otherwise) as to the integrity of a person referred to in that subsection. (3) The LECC, subject to the Law Enforcement Conduct Commission Act 2016, and the Commander, Professional Standards Command, are required to furnish a report to the Commissioner (on the basis of information available to the Commission or the Commander and without the need for any special investigation or inquiry) on any person the subject of an inquiry referred to in subsection (1)(b). (4) The Commissioner may change a decision to appoint a person under this Part before the person is appointed if the Commissioner receives information as to the person's integrity which causes the Commissioner to form the opinion that the person is not a suitable person to be so appointed. (5) If the Commissioner changes such a decision, the Commissioner may decide, in accordance with this Part to appoint instead (from the persons who are eligible for appointment) the person who the Commissioner is of the opinion at the time has the greatest merit. (6) The Commissioner may suspend or remove a person from any part of a process relating to the person's promotion if the Commissioner receives information as to the person's integrity which causes the Commissioner to form the opinion that the person is not a suitable person to participate in the process. 72 Vacation of non-executive police officer positions (1) A non-executive police officer's position becomes vacant if the officer— (a) dies, or (b) completes a term of office and is not appointed for a further term, or (c) is removed from office, or retires or is retired from office, under this or any other Act, or (d) resigns his or her position in writing addressed to the Commissioner, or (e) abandons his or her employment in the NSW Police Force. (2) (Repealed) 73 Regulations relating to promotion of non-executive police officers (1) The regulations may make provision for or with respect to the promotion of non-executive police officers to the rank of sergeant, inspector or superintendent. (2) In particular, the regulations may make provision for or with respect to the following matters— (a) the requirements and processes for promotion, (b) the criteria for eligibility to participate in a process for promotion, (c) the appointment of police officers to positions, (d) the procedures for and conduct of reviews. Division 3 Term of office of non-executive commissioned police officers 74 Five year term contracts (1) Subject to this Act, a non-executive commissioned police officer holds office for the term of office specified in an instrument of appointment issued by the Commissioner for the purposes of this section. (2) The instrument operates as an appointment of the officer for the term of office so specified. The appointment is separate and distinct from the appointment of the officer to the officer's non-executive police officer position by the Commissioner under section 64. (3) The term of office is to be 5 years or the officer's balance of service to retirement (whichever is shorter). (4) An officer's balance of service to retirement is the period up to the officer's projected date of retirement from the NSW Police Force, as determined by the Commissioner after consultation with the officer. 75 Entitlement to further terms (1) Until retirement, a non-executive commissioned police officer is entitled (if otherwise qualified) to appointment for a further term of office in accordance with section 74 on the expiration of each current term of office, unless the Commissioner has decided that the officer is not to be appointed for a further term and notified the officer of that decision at least 6 months before the expiration of the current term of office. (2) The appointment of an officer for a further term of office does not constitute an appointment to a vacant position or vacant specialist position for the purposes of Division 2. 76 Ground for decision not to re-appoint (1) The only ground for a decision by the Commissioner that a non-executive commissioned police officer is not to be appointed for a further term of office is that the officer is unable to meet required standards of operational competence, discipline or integrity. (2) The regulations may make provision for a review of a decision of the Commissioner under this section. 77 Performance reviews A non-executive commissioned police officer's performance must be reviewed, at least annually, by the Commissioner or by some person nominated by the Commissioner. The review is to have regard to performance criteria determined by the Commissioner for the officer's position and any other relevant matter. 78 Promotion, transfer and re-appointment following resignation (1) When a non-executive commissioned police officer is appointed by way of promotion to another position in the NSW Police Force as a non-executive commissioned police officer, the officer is to be appointed for a new term of office in accordance with section 74 in the rank to which the officer is promoted. (2) When a non-executive commissioned police officer is transferred to another position in the NSW Police Force as a non-executive commissioned police officer, the officer is not to be appointed for a new term of office, and the officer's existing term of office continues in the transferred position. (3) When a non-executive commissioned police officer is re-appointed under section 72 (Re-employment of employees resigning to contest Commonwealth elections) of the Government Sector Employment Act 2013 the officer is to be appointed for a new term of office that is equivalent to the balance of the officer's term of office as at resignation. 79 Powers of dismissal, removal and suspension not affected Nothing in this Division limits or otherwise affects any power under this Act to dismiss, suspend or remove a non-executive commissioned police officer. Division 4 Appointment and promotion of constables 80 Appointment and promotion of constables (1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable. (2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations. (3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason. (4) The promotion of police officers within the rank of constable is subject to the regulations. Part 6A Non-executive administrative employees 81 Application of Part This Part applies to non-executive administrative employees. 81A Kinds of employment (1) Employment in the NSW Police Force as a non-executive administrative employee may be any one of the following kinds of employment— (a) ongoing employment, (b) temporary employment, (c) casual employment. (2) Ongoing employment is employment that continues until the employee resigns or his or her employment is terminated. (3) Temporary employment is employment for a temporary purpose. (4) Casual employment is employment to carry out irregular, intermittent, short-term, urgent or other work as and when required. 81B Integrity matters (1) It is the duty of the Commissioner before employing a non-executive administrative employee, to make inquiries (from any person or body the Commissioner thinks appropriate), as to the person's integrity. (2) It is the duty of the Commissioner to have regard to any information that comes to the Commissioner's attention (whether as a result of inquiries under subsection (1) or otherwise) as to the integrity of a person referred to in that subsection. (3) The LECC is authorised (but not required) to furnish a report to the Commissioner on any person the subject of an inquiry under this section. (4) The Commissioner is required to notify the LECC of the identity of each person employed as a non-executive administrative employee as soon as practicable after the person is so employed. 81C Employment in classifications of work (1) Non-executive administrative employees are to be employed in a classification of work determined by the Commissioner in which the person is employed in accordance with this and any other Act or law. (2) A classification of work extends to any kind of work and any grade of that work. 81D Assignment of roles in work classifications (1) In this section— assign to a role includes assign to a different role. (2) The Commissioner may from time to time assign non-executive administrative employees to roles in the NSW Police Force in the classification of work in which the employees are employed. (3) Non-executive administrative employees may be assigned to roles to enable the flexible deployment of staff resources within the NSW Police Force and to develop the capabilities of staff. (4) A non-executive administrative employee is not to be assigned to a different role unless the employee has been consulted. The remuneration payable to the employee is not to be reduced because of the assignment to the different role without the consent of the employee. (5) The Commissioner may also transfer a non-executive administrative employee to a non-executive police officer position. 81E Termination of employment (1) The Commissioner may, by instrument in writing, terminate the employment of a non-executive administrative employee on any of the following grounds if the employment is ongoing employment— (a) the employee has failed to meet a condition of engagement as an employee imposed under Part 8, (b) the employee lacks, or has lost, an essential qualification for performing the duties of the role assigned to the employee, (c) the performance of the employee is determined under section 68 of the Government Sector Employment Act 2013 to be unsatisfactory, (d) the employee is unable to perform the duties of the role assigned to the employee because of physical or mental incapacity, (e) the employee is retired on medical grounds under section 94B, (f) the employee has refused to perform duties to which the employee has been duly assigned, (g) the employee has abandoned his or her employment, (h) a finding of misconduct has been made against the employee under section 69 of the Government Sector Employment Act 2013, (i) the employee is determined in accordance with the government sector employment rules under the Government Sector Employment Act 2013 or the regulations under that Act to be excess to the requirements of the NSW Police Force, (j) on any other ground prescribed by the regulations under this Act or by the regulations under section 47 (1) (k) of the Government Sector Employment Act 2013. The instrument is to set out the ground or grounds on which the employment is terminated. (2) The Commissioner may, by instrument in writing, terminate the employment of a non-executive administrative employee at any time if the employment is not ongoing employment. 81F Government sector employment rules relating to employment of non-executive administrative employees (1) The Public Service Commissioner may make government sector employment rules under section 12 of the Government Sector Employment Act 2013 on any matter relating to the employment of NSW Police Force non-executive administrative employees (including, without limitation, matters of the kind referred to in section 48 of that Act). (2) The Public Service Commissioner must consult the Commissioner of Police before making any such rules. (3) This section does not limit any direction that the Commissioner is otherwise authorised to give in relation to the management or control of the NSW Police Force (including employment arrangements). The Commissioner is to consult with the Public Service Commissioner on any inconsistency between directions given and applicable government sector employment rules. 81G Employment of special constables (1) The Commissioner may employ a person under this Part as a non-executive administrative employee (special constable). A person so employed is a special constable. (2) Employment as a special constable may be made subject to such conditions as the Commissioner determines, including (but not limited to) conditions as to the kinds of functions conferred or imposed and the purposes for and circumstances in which such functions may be exercised. (3) Without limiting the generality of subsection (2), the Commissioner may confer or impose on a special constable any of the functions of a police officer of the rank of constable, including any of the functions of a police officer that are specified in the Law Enforcement (Powers and Responsibilities