South Australia: Police Act 1998 (SA)

South Australia Police Act 1998 An Act to make provision for the establishment and management of South Australia Police; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation Part 2—General 4 Composition of police 5 Purpose of police 6 Commissioner responsible for control and management of police 7 Exclusion of directions in relation to employment of particular persons 8 Directions to Commissioner to be Gazetted and laid before Parliament 9 Commissioner also responsible for control and management of police cadets, police medical officers and police security officers 10 General management aims and standards 11 Orders Part 3—Commissioner, Deputy Commissioner and Assistant Commissioners 12 Appointment of Commissioner of Police 13 Conditions of Commissioner's appointment 14 Deputy Commissioner 15 Assistant Commissioners 16 Conditions of appointment of Deputy and Assistant Commissioners 17 Termination of appointment of Commissioner or Deputy or Assistant Commissioner 18 Resignation 19 Delegation Part 4—Other members of SA Police Division 1—Appointment and resignation 20 Appointment of officers 21 Appointment of sergeants and constables 22 Further division of ranks 23 Term appointments for certain positions 24 Appointment of community police 25 Police oath or affirmation 26 Effect of appointment and oath or affirmation 27 Probationary appointment 28 Performance standards for officers 29 Resignation and relinquishment of official duties Division 2—Special provisions relating to community police 30 Powers, responsibilities and immunities of community police 31 Suspension or termination of appointment of community police 32 Conditions of appointment of community police Part 5—Police cadets and police medical officers 33 Police cadets 34 Suspension or termination of appointment of police cadets 35 Resignation and relinquishment of official duties 36 Police medical officers Part 6—Drug and alcohol testing Division 2—Drug and alcohol testing 41A Interpretation 41B Drug and alcohol testing 41C Drug and alcohol testing of applicants to SA Police etc 41D Procedures for drug and alcohol testing 41E Biological samples, test results etc not to be used for other purposes Part 7—Termination and transfer of police 45 Physical or mental disability or illness 46 Unsatisfactory performance 47 Power to transfer Part 8—Review of certain termination, transfer and promotion decisions Division 1—Termination reviews 48 Right of review Division 2—Transfer reviews 52 Review of certain transfers Division 3—Promotion reviews 53 Interpretation and application 54 Processes for appointment or nomination for prescribed promotional positions 55 Right of review 56 Grounds for application for review 57 Determination of application 58 Determination of question of eligibility for appointment Part 9—Special constables 59 Appointment of special constables 60 Oath or affirmation by special constables 61 Duties and powers of special constables 62 Suspension or termination of appointment of special constables 63 Allowances and equipment for special constables Part 9A—Police security officers Division 1—Preliminary 63A Interpretation 63B Determination of protected persons, places or vehicles 63C References to protective security officers in other Acts etc Division 2—Modification of operation of this and other Acts etc in relation to police security officers 63D Regulations may modify operation of this and other Acts etc in relation to police security officers Division 3—Appointment etc of police security officers 63E Appointment of police security officers 63F Commissioner may determine structure of ranks 63G Oath or affirmation by police security officers 63H Conditions of appointment 63I Identification of police security officers 63J Suspension or termination of appointment of police security officer 63K Resignation and relinquishment of official duties Division 4—Duties and powers of police security officers 63L Interpretation 63M Duties of police security officers 63N Powers of police security officers 63O Limitations on duties and powers 63P Powers relating to security of protected person 63Q Powers relating to security of protected place 63R Dealing with dangerous objects and substances etc 63S Powers relating to security of protected vehicle 63T Power to search persons detained by police security officers 63U Withdrawal of directions 63V Offences Part 10—Miscellaneous 64 Appointment and promotion procedures 65 Protection from liability for members of SA Police and police security officers 66 Members subject to duty in or outside State 67 Divestment or suspension of powers 68 Duty to deliver up equipment etc 69 False statements in applications for appointment 70 Suspension or revocation of suspension under Act or regulations 71 Evidence of appointment 71A Evidence 72 Execution of process 73 Allowances 74 Impersonating police or police security officer and unlawful possession of certain property 74A Special provisions relating to criminal intelligence 74B Terrorism intelligence and terrorism notifications 75 Annual reports by Commissioner 76 Regulations Schedule 1—Police Review Tribunal 1 Constitution of Tribunal 1B Constitution of Tribunal for purposes of proceedings under Part 8 Division 3 2 Secretary to Tribunal 3 Proceedings before Tribunal 4 Powers of Tribunal 5 Practice and procedure Schedule 2—Transitional provisions 2 Transitional provisions Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Police Act 1998. 3—Interpretation In this Act— Assistant Commissioner means an Assistant Commissioner of Police appointed under Part 3; Code means— (a) in relation to police security officers—the code of conduct for the maintenance of professional standards by police security officers established under the Police Complaints and Discipline Act 2016, as in force from time to time; or (b) in any other case—the code of conduct for the maintenance of professional standards by designated officers established under the Police Complaints and Discipline Act 2016, as in force from time to time; Commissioner means the Commissioner of Police appointed under Part 3; community constable means a person appointed under Part 4 to be a community constable, and community police means community constables as a group; Deputy Commissioner means the Deputy Commissioner of Police appointed under Part 3; member of SA Police means the Commissioner, the Deputy Commissioner or an Assistant Commissioner or any person appointed under Part 4, but does not include a police cadet, police medical officer, special constable or police security officer; merit, in relation to selection processes for filling positions, means— (a) the extent to which each of the applicants has a record of good conduct and integrity; and (b) the extent to which each of the applicants has abilities, aptitude, skills, qualifications, knowledge, experience (including community experience), potential for development and personal qualities relevant to the carrying out of the duties in question; and (c) the manner in which each of the applicants carried out any previous employment or occupational duties or functions; officer means a member of SA Police of or above the rank of inspector; police cadet means a person appointed under Part 5 to be a police cadet; Police Review Tribunal means the Police Review Tribunal established under Schedule 1; police security officer means a person appointed under Part 9A as a police security officer; SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014; South Australia Police or SA Police see section 4; selection processes means processes by which applications are sought and applicants selected for the purpose of filling a position; special constable means a person appointed under Part 9 to be a special constable. Part 2—General 4—Composition of police South Australia Police (in this Act referred to as SA Police) consists of— (a) the Commissioner of Police; and (b) the Deputy Commissioner of Police; and (c) the Assistant Commissioners of Police; and (d) the other officers and members (including community constables) appointed under Part 4. 5—Purpose of police The purpose of SA Police is to reassure and protect the community in relation to crime and disorder by the provision of services to— (a) uphold the law; and (b) preserve the peace; and (c) prevent crime; and (d) assist the public in emergency situations; and (e) co-ordinate and manage responses to emergencies; and (f) regulate road use and prevent vehicle collisions. 6—Commissioner responsible for control and management of police Subject to this Act and any written directions of the Minister, the Commissioner is responsible for the control and management of SA Police. 7—Exclusion of directions in relation to employment of particular persons No Ministerial direction may be given to the Commissioner in relation to the appointment, transfer, remuneration, discipline or termination of a particular person. 8—Directions to Commissioner to be Gazetted and laid before Parliament The Minister must cause a copy of any direction given to the Commissioner to be— (a) published in the Gazette within eight days of the date of the direction; and (b) laid before each House of Parliament within six sitting days of the date of the direction if Parliament is then in session, or, if not, within six sitting days after the commencement of the next session of Parliament. 9—Commissioner also responsible for control and management of police cadets, police medical officers and police security officers The Commissioner is also responsible for the control and management of the police cadets, police medical officers and police security officers. 10—General management aims and standards (1) The Commissioner must ensure that management practices are followed with respect to SA Police, police cadets, police medical officers and police security officers that are directed towards— (a) effective, responsive and efficient delivery of services; and (b) maintenance of structures, systems and processes that are not excessively formal and can adapt quickly to changing demands; and (c) development, encouragement and full utilisation of the abilities of all personnel through ongoing training and education and appropriate remuneration; and (d) effective, prudent and fully accountable management of resources; and (e) continuous improvement in the delivery of services. (2) With respect to personnel management, the Commissioner must ensure that practices are followed under which— (a) selection processes for filling positions are based on a proper assessment of merit; and (b) employees are treated fairly and consistently and are not subjected to arbitrary or capricious administrative decisions; and (c) there is no unlawful discrimination against employees or persons seeking to become employees; and (d) the diversity of personnel is used to advantage; and (e) equal opportunities for promotion and advancement are afforded to all employees; and (f) employees are afforded reasonable avenues of redress against improper or unreasonable administrative decisions; and (g) working conditions are kept safe and healthy; and (h) there is no nepotism or patronage. 11—Orders (1) The Commissioner may make or give general or special orders, not inconsistent with this Act, for the control and management of SA Police, police cadets, police medical officers and police security officers. (2) The orders may make provision concerning— (a) the various duties to be performed; and (b) the manner in which and the time and place at which the various duties are to be performed and any other matters relating to their performance; and (c) the requirements or qualifications for appointment or promotion; and (d) other matters that the Commissioner considers relevant to the control and management of SA Police, police cadets, police medical officers and police security officers. (3) The general or special orders of the Commissioner— (a) may be varied or revoked by the Commissioner; and (b) will not be taken to be a form of subordinate legislation to which the Subordinate Legislation Act 1978 applies. (4) The power of the Commissioner to give binding orders or directions is not restricted by the provision for the making of general or special orders or the contents of any general or special orders. Part 3—Commissioner, Deputy Commissioner and Assistant Commissioners 12—Appointment of Commissioner of Police The Governor may appoint a person to be the Commissioner of Police. 13—Conditions of Commissioner's appointment (1) The conditions of appointment of the Commissioner are to be subject to a contract between the Commissioner and the Premier. (2) The contract must specify— (a) that the Commissioner is appointed for a term not exceeding five years specified in the contract and is eligible for reappointment; and (b) that the Commissioner is to meet performance standards as set from time to time by the Minister (which must be consistent with the aims and requirements of this Act); and (c) that the Commissioner is entitled to remuneration and other benefits specified in the contract; and (d) the sums representing the values of the benefits (other than remuneration); and (e) the total remuneration package value under the contract. (3) The decision whether to reappoint at the end of a term of appointment must be made and notified to the Commissioner not less than three months before the end of the term. (4) The remuneration and other monetary benefits under the contract are a charge on the Consolidated Account of the State which is appropriated to the necessary extent. (5) The Minister must, on setting or varying the performance standards to be met by the Commissioner, cause a statement of the standards or variation to be laid before each House of Parliament within six sitting days if Parliament is then in session or, if not, within six sitting days after the commencement of the next session of Parliament. (6) The Minister must, on notifying a person of a decision not to reappoint the person as the Commissioner at the end of a term of appointment, cause a statement of the reasons for that decision to be laid before each House of Parliament within six sitting days if Parliament is then in session or, if not, within six sitting days after the commencement of the next session of Parliament. 14—Deputy Commissioner (1) The Governor may appoint a Deputy Commissioner of Police. (2) The Deputy Commissioner must exercise and perform such of the powers, authorities, duties and functions of the Commissioner as the Commissioner may direct (either generally or in a special case). (3) When the Commissioner is absent from duty because of illness or for any other reason, or during a vacancy in the position of the Commissioner, the Deputy Commissioner may exercise and perform all the powers, authorities, duties, and functions conferred or imposed on the Commissioner by or under this or another Act or any law. 15—Assistant Commissioners (1) The Commissioner may appoint as many Assistant Commissioners of Police as the Commissioner thinks necessary. (2) When the Deputy Commissioner is absent from duty because of illness or for any other reason, or during a vacancy in the position of the Deputy Commissioner— (a) the Assistant Commissioner nominated in writing by the Commissioner; or (b) if that Assistant Commissioner is absent from duty for any reason, the Assistant Commissioner who is the most senior Assistant Commissioner on duty at the time, may exercise and perform all the powers, authorities, duties and functions conferred or imposed on the Deputy Commissioner. 16—Conditions of appointment of Deputy and Assistant Commissioners (1) The conditions of appointment of the Deputy Commissioner or an Assistant Commissioner are to be subject to a contract between the Deputy or Assistant Commissioner and the Commissioner. (2) The contract must specify— (a) that the Deputy or Assistant Commissioner is appointed for a term not exceeding five years specified in the contract and is eligible for reappointment; and (b) that the Deputy or Assistant Commissioner is to meet performance standards as set from time to time by the Commissioner and published in the Gazette; and (c) that the Deputy or Assistant Commissioner is entitled to remuneration and other benefits specified in the contract; and (d) the sums representing the values of the benefits (other than remuneration); and (e) the total remuneration package value under the contract. (3) The decision whether to reappoint at the end of a term of appointment must be made and notified to the Deputy or Assistant Commissioner not less than three months before the end of the term. (4) If, immediately before a person was first appointed as an Assistant Commissioner, he or she held an appointment under this Act or the Act repealed by this Act (the person's former appointment), the person is, on not being reappointed at the end of a term of appointment, entitled to an appointment at the same rank as the person's former appointment. 17—Termination of appointment of Commissioner or Deputy or Assistant Commissioner (1) The appointment of the Commissioner or Deputy Commissioner may be terminated by the Governor and the appointment of an Assistant Commissioner may be terminated by the Commissioner on the ground that the Commissioner or Deputy or Assistant Commissioner— (a) has been guilty of misconduct; or (b) has been convicted of an offence punishable by imprisonment; or (c) has engaged in any remunerative employment, occupation or business outside official duties without the consent of the Minister in the case of the Commissioner or the Deputy Commissioner, or the consent of the Commissioner in the case of an Assistant Commissioner; or (d) has become bankrupt or has applied to take the benefit of a law for the relief of insolvent debtors; or (e) has, because of mental or physical incapacity, failed to carry out duties satisfactorily or to the performance standards set under the contract relating to his or her appointment; or (f) has, for any other reason, failed to carry out duties in a manner that satisfies the performance standards set under the contract relating to his or her appointment. (2) The Minister must, on terminating the appointment of the Commissioner, cause a statement of the reasons for that decision to be laid before each House of Parliament within six sitting days if Parliament is then in session or, if not, within six sitting days after the commencement of the next session of Parliament. 18—Resignation (1) The Commissioner or the Deputy Commissioner may resign by not less than three months notice in writing to the Minister (unless notice of a shorter period is accepted by the Minister). (2) An Assistant Commissioner may resign by not less than three months notice in writing to the Commissioner (unless notice of a shorter period is accepted by the Commissioner). 19—Delegation (1) The Commissioner may, by instrument in writing, delegate any of the powers or functions conferred on, or assigned to, the Commissioner by or under this or any other Act— (a) to a particular person; or (b) to the person for the time being occupying a particular position. (2) A power or function delegated under this section may, if the instrument of delegation so provides, be subdelegated. (3) A delegation or subdelegation under this section— (a) may be absolute or conditional; and (b) does not derogate from the power of the delegator to act personally in any matter; and (c) is revocable at will by the delegator. (4) A copy of every instrument of delegation issued by the Commissioner under this section must be retained as part of the records of SA Police. Part 4—Other members of SA Police Division 1—Appointment and resignation 20—Appointment of officers The Commissioner may appoint as many commanders, superintendents, inspectors and other officers of police as the Commissioner thinks necessary. 21—Appointment of sergeants and constables The Commissioner may appoint as many sergeants and constables as the Commissioner thinks necessary. 22—Further division of ranks The ranks of officers and other members of SA Police may be further divided or consolidated under the regulations. 23—Term appointments for certain positions (1) An appointment of a person who is not a member of SA Police to a position in SA Police of or above the rank of senior constable may be made (but is not required to be made)— (a) for a term not exceeding five years specified in the instrument of appointment; and (b) on such conditions as to remuneration or any other matter as the Commissioner considers appropriate. (2) A person must not be appointed for a term under this section except— (a) where the person has special expertise that is required but not available within SA Police; or (b) in other cases of a special kind prescribed by regulation. (3) The term of an appointment under this section may not be extended so that it exceeds five years and a person may not be reappointed under this section so that the terms in aggregate exceed five years. 24—Appointment of community police (1) The Commissioner may appoint as many community constables as the Commissioner thinks necessary. (2) A community constable will be appointed for the whole of the State or an area of the State specified in the instrument of appointment. (3) The Commissioner may, by written notice to a community constable, vary the area in relation to which the appointment is effective. (4) The Commissioner may give a community constable position and its occupant a title that reflects an area limitation or other characteristic of the position, and may vary such a title. (5) Division 2 of this Part contains other special provisions relating to community police. 25—Police oath or affirmation A person's appointment as a member of SA Police (including appointment as the Commissioner, the Deputy Commissioner or an Assistant Commissioner) is rendered void if the person does not on appointment make an oath or affirmation in the form prescribed by regulation. 26—Effect of appointment and oath or affirmation (1) A person who is appointed as a member of SA Police and makes the prescribed oath or affirmation will be taken to have entered into an agreement to serve in SA Police in each position that the person may hold until he or she lawfully ceases to be a member of SA Police. (2) No such agreement is void for want of consideration. 27—Probationary appointment (1) Subject to this section, a person's appointment to a position in SA Police will be on probation for a period determined by the Commissioner not exceeding— (a) in the case of a person who, immediately before appointment, was not a member of SA Police—two years; or (b) in any other case—one year. (2) For the purposes of subsection (1), the period of probationary service of a member of SA Police does not include— (a) if the Commissioner so determines—the whole or a part of any period during which the member, while on full or reduced pay— (i) is absent from duty (other than on recreation leave); or (ii) performs duties that have been limited or varied by reason of physical or mental disability or illness of the member; or (b) except where the Commissioner determines to the contrary— (i) any period during which the member is absent from duty without pay; or (ii) any period during which the member's appointment is suspended. (3) The Commissioner may at any time during the period of probation of a member, having regard to the person's suitability for permanent appointment— (a) confirm the appointment; or (b) extend or further extend the period of the probation for such period as the Commissioner determines, but not so that the total period of probation exceeds the maximum period allowed in relation to the person under this section; or (c) terminate the appointment. (5) An appointment on probation will be taken to have been confirmed if, at the end of the period of probation, the appointment has not previously been confirmed or terminated. (6) If— (a) a person's appointment is terminated under this section; and (b) the person's appointment constituted a promotion from another position in SA Police of a lower rank, the person will, on the termination, revert to a position in SA Police approved by the Commissioner at that lower rank. (7) This section does not apply to the following appointments: (a) appointment as the Commissioner, the Deputy Commissioner or an Assistant Commissioner; (b) appointment for a term under this Division; (c) subject to subsection (8)—appointment of a member of SA Police to another position of the same rank as that held by the member immediately before the appointment to the other position; (d) appointment as a community constable. (8) If the appointment of a member of SA Police to a position is on probation and the member is, during the probationary period, appointed to another position of the same rank, the period of probation carries over to that other appointment (and the provisions of this section (other than subsection (7)(c)) apply accordingly). 28—Performance standards for officers It is a condition of appointment as an officer below the rank of Assistant Commissioner that the officer is to meet performance standards as set from time to time by the Commissioner. 29—Resignation and relinquishment of official duties (1) A member of SA Police (other than the Commissioner, the Deputy Commissioner or an Assistant Commissioner) may resign by not less than 14 days notice in writing to the Commissioner (unless notice of a shorter period is accepted by the Commissioner). (2) A member of SA Police (other than the Commissioner, the Deputy Commissioner or an Assistant Commissioner) must not relinquish official duties unless the member— (a) is expressly authorised in writing by the Commissioner to do so; or (b) is incapacitated by physical or mental disability or illness from performing official duties. Maximum penalty: $1 250 or three months imprisonment. Division 2—Special provisions relating to community police 30—Powers, responsibilities and immunities of community police (1) A community constable's powers, responsibilities and immunities as a member of SA Police are subject to any limitation imposed by the Commissioner. (2) The Commissioner— (a) may impose a limitation on the powers, responsibilities or immunities of a community constable by— (i) instrument of appointment of the community constable; or (ii) notice in writing to the community constable; and (b) may vary or revoke such a limitation by notice in writing to the community constable. (3) Limitations imposed under this section may vary from one community constable to another. 31—Suspension or termination of appointment of community police (1) Subject to subsection (2), the Commissioner may, at the Commissioner's discretion, suspend or terminate the appointment of a community constable. (2) The Commissioner must not take action against a community constable under this section because of any incapacity of the community constable to perform duties that results from physical or mental disability or illness of the community constable without first complying with the requirements of the Police Superannuation Act 1990. 32—Conditions of appointment of community police (1) The conditions of appointment of a community constable may be determined by the Commissioner. (2) A determination by the Commissioner must provide for the payment of remuneration, allowances and expenses in accordance with a specified scale. (3) A determination under this section may relate to community police generally, a class of community police or a particular community constable. Part 5—Police cadets and police medical officers 33—Police cadets (1) The Commissioner may appoint as many police cadets as the Commissioner thinks necessary. (2) A police cadet is not a member of SA Police and is not a public service employee. 34—Suspension or termination of appointment of police cadets The Commissioner may, at the Commissioner's discretion, suspend or terminate the appointment of a police cadet. 35—Resignation and relinquishment of official duties (1) A police cadet may resign by not less than 14 days notice in writing to the Commissioner (unless notice of a shorter period is accepted by the Commissioner). (2) A police cadet must not relinquish official duties unless the police cadet— (a) is expressly authorised in writing by the Commissioner to do so; or (b) is incapacitated by physical or mental disability or illness from performing official duties. Maximum penalty: $1 250 or three months imprisonment. 36—Police medical officers (1) The Commissioner may appoint a legally qualified medical practitioner to be a police medical officer. (2) The appointment of a police medical officer will be on terms and conditions fixed by the Commissioner. (3) A police medical officer is not a member of SA Police and is not a public service employee. (4) A police medical officer must perform such duties as are arranged between the Commissioner and the officer. Part 6—Drug and alcohol testing Division 2—Drug and alcohol testing 41A—Interpretation (1) In this Division— alcotest means a test by means of an apparatus of a kind approved for the conduct of alcotests under the Road Traffic Act 1961; biological sample means a sample of blood, urine or oral fluid; breath analysing instrument means an apparatus of a kind approved as a breath analysing instrument under the Road Traffic Act 1961; breath analysis means an analysis of breath by a breath analysing instrument; classified appointment or position means an appointment or position in respect of which it is an essential requirement that an applicant for the appointment or position undergo a medical or psychological assessment as part of the application process; critical incident means an incident where a person is killed or suffers serious bodily injury— (a) while detained by a member of SA Police or a police security officer; or (b) as a result of the discharge of a firearm or an electronic control device; or (c) in circumstances involving a police aircraft, or a police or police security motor vehicle, vessel or other mode of transport; or (d) as a result of alleged police action or the actions of a police security officer; drug means a substance that is a controlled drug under the Controlled Substances Act 1984; drug and alcohol testing—see section 41B(1); drug screening test means a test by means of an apparatus of a kind approved by the regulations for the conduct of drug screening tests; forensic material means any human material from which the person from whom the material was taken could be identified; oral fluid includes saliva; oral fluid analysis means the analysis of a person's oral fluid to determine whether a drug is present in the oral fluid. (2) For the purposes of this Division, a person uses a drug if the person— (a) consumes, smokes or administers to himself or herself the drug; or (b) permits another person to administer the drug to him or her. 41B—Drug and alcohol testing (1) A member of SA Police, a police cadet or a police security officer may, in accordance with this section, be required to do any of the following: (a) to submit to an alcotest or breath analysis, or both, for the purpose of testing for the presence of alcohol; (ab) to submit to a drug screening test for the purpose of testing for the presence of drugs; (b) to provide a biological sample for the purpose of a blood test, urinalysis or an oral fluid analysis to test for the presence of alcohol or drugs, (drug and alcohol testing). (2) A member of SA Police, a police cadet or a police security officer may be required to undergo drug and alcohol testing, in accordance with orders or directions of the Commissioner, in any of the following circumstances: (a) if the member, police cadet or police security officer has, while on duty, been involved in a critical incident; (b) if the member, police cadet or police security officer has, while on duty, engaged in driving that is classified by the Commissioner in orders as high risk; (c) if there is a reasonable cause to believe that the member, police cadet or police security officer has recently consumed alcohol or used a drug; (d) if the member, police cadet or police security officer is applying for a classified appointment or position. 41C—Drug and alcohol testing of applicants to SA Police etc (1) A person to whom this subsection applies will, in accordance with orders or directions of the Commissioner, be required to do any of the following: (a) to submit to an alcotest or breath analysis, or both, for the purpose of testing for the presence of alcohol; (ab) to submit to a drug screening test for the purpose of testing for the presence of drugs; (b) to provide a biological sample for the purpose of a blood test, urinalysis or an oral fluid analysis to test for the presence of alcohol or drugs. (2) Subsection (1) applies to— (a) a person applying to be a police cadet; and (ab) a person applying to be a police security officer; and (b) a person who is not either a member of SA Police, a police cadet or a police security officer applying for appointment to SA Police. 41D—Procedures for drug and alcohol testing (1) The Governor may make such regulations as are contemplated by, or as are necessary or expedient for the purposes of, this Division. (2) Without limiting the generality of subsection (1), the regulations may— (a) prescribe procedures for drug and alcohol testing; and (b) provide for the authorisation of persons to conduct drug and alcohol testing and operate equipment for that purpose; and (c) regulate the collection of biological samples taken from persons for the purposes of drug and alcohol testing under this Division; and (d) provide for the analysis of test results, including the accreditation of persons conducting the analysis; and (e) provide for the approval of devices used in carrying out drug and alcohol testing and analysis; and (f) provide for the use of results from any testing or analysis, or the steps that may be taken on account of any testing or any evidence or information produced as a result of testing; and (g) prescribe the circumstances that amount to a defence to a breach of the Code or the regulations, including where the consumption of alcohol or drugs occurs after police work or police security work (as the case requires) has been carried out; and (h) prescribe evidentiary provisions to facilitate proof of contraventions of the Code or the regulations for the purposes of proceedings relating to those contraventions; and (i) provide for the confidentiality of test results; and (j) regulate the destruction of biological samples collected for testing; and (k) provide for the protection of persons involved in taking or conducting testing from liability for acts or omissions done in good faith and in accordance with this Division. 41E—Biological samples, test results etc not to be used for other purposes (1) A biological sample (and any other forensic material taken incidentally in the course of testing a person for the presence of drugs or alcohol) taken under this Division must not be used for any purpose other than— (a) for a purpose contemplated by this Division; or (b) in connection with the control and management of SA Police or police security officers (as the case requires); or (c) for the purpose of disciplinary proceedings under this Act or the Police Complaints and Discipline Act 2016. (2) The results of any drug and alcohol testing or analysis conducted under this Division, or an admission or a statement made by a person relating to such drug and alcohol testing, is not admissible in any proceedings other than disciplinary proceedings under this Act. Part 7—Termination and transfer of police 45—Physical or mental disability or illness (1) If the Commissioner is satisfied after due inquiry that the appointment of a member of SA Police should be terminated because of the member's incapacity to perform duties as a member by reason of physical or mental disability or illness, the Commissioner may terminate the appointment of the member. (2) The Commissioner must not terminate the appointment of a police officer under subsection (1) without first complying with— (a) if the officer is a contributor in relation to the scheme of superannuation established by the Police Superannuation Act 1990—the requirements of that Act; or (b) if the officer is a member of the Southern State Superannuation Scheme established by the Southern State Superannuation Act 1994—the requirements of that Act. (3) This section does not apply in relation to an officer appointed under Part 3. 46—Unsatisfactory performance (1) If the Commissioner is satisfied that— (a) a member of SA Police is not performing duties of his or her position satisfactorily or to applicable performance standards; and (b) it is not practicable to transfer the member to another position of the same rank with duties suited to the member's capabilities or qualifications, the Commissioner may, if it is practicable to do so, transfer the member to a position of a lower rank with duties suited to the member's capabilities or qualifications. (2) If it is not practicable to transfer the member to a position of the same or a lower rank, the Commissioner may terminate the appointment of the member. (3) This section does not apply in relation to an officer appointed under Part 3. (4) This section does not apply if a member's unsatisfactory performance is due to— (a) physical or mental disability or illness of the member; or (b) lack of necessary resources or training or other organisational factors beyond the member's control. (5) The Commissioner must not take action under this section unless— (a) the member has first been advised of his or her unsatisfactory performance and given specific details of the areas of his or her underperformance, the performance standards to be attained and the measures to be taken for improvement; and (b) the member has been allowed a period of not less than three months and not more than six months for improvement to the specified standards; and (c) a panel of persons has been convened, and has made a decision, in accordance with the regulations, confirming that the processes followed and assessments made in relation to the member and his or her underperformance conformed to the requirements of this section and were reasonable in the circumstances. 47—Power to transfer (1) The Commissioner may, without conducting selection processes, transfer a member of SA Police from the member's current position to another position (and such transfer may be for an indefinite period or for a specified term). (2) Except as authorised under the regulations, a member may not be transferred to a position of a higher rank. (3) Except as authorised under this Act or the regulations or with the member's consent, a member may not be transferred to a position of a lower rank. (4) A member of SA Police aggrieved by a transfer of that member under this section may apply to have his or her grievance dealt with in accordance with a process specified in the regulations. Part 8—Review of certain termination, transfer and promotion decisions Division 1—Termination reviews 48—Right of review (1) A member of SA Police or former member may apply to SAET under Part 3 Division 1 of the South Australian Employment Tribunal Act 2014 for a review of a decision to terminate the member's appointment— (a) during a period of probation; or (b) on a ground for termination under Part 7. (1a) A police security officer or former police security officer may apply to SAET under Part 3 Division 1 of the South Australian Employment Tribunal Act 2014 for a review of a decision to terminate the officer's appointment (other than a termination under section 26 of the Police Complaints and Discipline Act 2016). (2) An application for review of the decision must be made to SAET within the period prescribed by regulation. (3) SAET may in an appropriate case dispense with the requirement that the application be made within the prescribed period. Division 2—Transfer reviews 52—Review of certain transfers (1) If— (a) a decision is made to transfer a member of SA Police to another position (other than under Part 6 or section 46); and (b) the member believes that he or she is being punished for particular conduct, the member may apply to SAET under Part 3 Division 1 of the South Australian Employment Tribunal Act 2014 for a review of the decision. (1a) If— (a) a decision is made to transfer a police security officer; and (b) the officer believes that the officer is being punished for particular conduct, the officer may apply to SAET under Part 3 Division 1 of the South Australian Employment Tribunal Act 2014 for a review of the decision. (2) An application for review of the decision must be made to SAET within the period prescribed by regulation. (3) SAET may in an appropriate case dispense with the requirement that the application be made within the prescribed period. (4) If, on an application for review of a decision under this Division, SAET is satisfied that the transfer is in the nature of a punishment, SAET may do one or more of the following: (a) quash the decision; (b) remit the matter to the Commissioner for reconsideration; (c) make recommendations for settlement of the matter. Division 3—Promotion reviews 53—Interpretation and application (1) In this Division— prescribed promotional position means— (a) in relation to positions in SA Police—a position in SA Police of or above the rank of senior constable but not above the rank of inspector; or (b) in relation to police security officers—a position as a police security officer of a kind prescribed by the regulations. (2) Nothing in this Division applies in relation to a transfer under this Act from one position in SA Police to another. (3) Nothing in this Division applies in relation to a transfer of a police security officer under this Act from 1 position to another. 54—Processes for appointment or nomination for prescribed promotional positions An appointment to a prescribed promotional position may not be made unless selection processes have been conducted in accordance with the regulations for the purpose of filling the position. 55—Right of review (1) After a selection process has been conducted in relation to a prescribed promotional position, the Commissioner must publish in the Police Gazette and in such other manner as the Commissioner considers appropriate— (a) notice of the selection decision; or (b) if no person has been selected for appointment to the position—notice of that fact. (2) Subject to subsection (3), when such a notice is given, a member of SA Police or police security officer (as the case requires) who was an unsuccessful applicant and is eligible for appointment to the position may apply to the Police Review Tribunal for a review of the selection decision. (3) A member or officer may not make an application under subsection (2) unless the person has first made application to have his or her grievance in respect of the selection decision dealt with in accordance with a process specified in the regulations and that process has been completed. (4) An application to the Tribunal for review of the decision must be made to the Secretary to the Tribunal within the period and in the manner prescribed by regulation. (5) The Tribunal may in an appropriate case dispense with the requirement that the application be made within the prescribed period. 56—Grounds for application for review (1) An application for a review of a selection decision under this Division may only be made on one or more of the following grounds: (a) that the member or officer selected is not eligible for appointment to the position; or (b) that the applicant for the review should have been selected based on a proper assessment of the respective merits of the applicants; or (c) that the selection processes leading to the decision were affected by nepotism or patronage or were otherwise not properly based on assessment of the respective merits of the applicants; or (d) that there was some other serious irregularity in the selection processes. (2) In proceedings on an application for a review of a selection decision under this Division— (a) no evidence may be given or submissions made as to the qualifications or merits of an applicant for the position other than by a party to the proceedings or representative of a party to the proceedings; and (b) no documentary material may be produced as evidence of the qualifications or merits of an applicant for the position other than material that was made available to the panel of persons who made the selection decision. 57—Determination of application (1) On an application for a review of a selection decision under this Division, the Police Review Tribunal may do one or more of the following: (a) confirm the decision; (b) quash the decision; (c) order that the applicant for the review be appointed to the position; (d) order that the selection processes be recommenced from the beginning or some other later stage specified by the Tribunal. (2) The Tribunal must hear and determine an application for a review of a selection decision under this Division within the period prescribed by regulation. 58—Determination of question of eligibility for appointment For the purposes of this Division— (a) a person is not eligible for appointment to a prescribed promotional position if the person does not have qualifications determined by the Commissioner to be essential in respect of the position; and (b) a determination by the Commissioner that specific qualifications, experience or other attributes are essential or desirable for appointment to a prescribed promotional position is binding on the Police Review Tribunal. Part 9—Special constables 59—Appointment of special constables (1) Subject to subsection (2), the Commissioner may appoint a person to be a special constable for the whole or a part of the State. (2) The Commissioner may only appoint a police cadet to be a special constable for the whole or a part of the State if a declaration has been made under Part 4 Division 3 of the Emergency Management Act 2004 (and the term of any such appointment will be for the period specified in the declaration under that Act and, if the period of the declaration is extended under that Act, for such further periods). (3) An appointment under this section may be made— (a) if a declaration has been made under Part 4 Division 3 of the Emergency Management Act 2004—orally; or (b) in any other case—by instrument in writing. (4) If the appointment is made orally, the Commissioner must, as soon as practicable, confirm the appointment by instrument in writing. (5) An instrument of appointment or confirming the appointment of a special constable must specify the term and conditions of the appointment, including— (a) if the appointment is for the whole of the State—that fact; and (b) in any other case—the part of the State for which the special constable is appointed. 60—Oath or affirmation by special constables A person's appointment as a special constable is rendered void if he or she does not on appointment make an oath or affirmation in the form prescribed by regulation. 61—Duties and powers of special constables (1) A special constable— (a) has any duties imposed by the Commissioner; and (b) has, while holding appointment as a special constable, the same powers, responsibilities and immunities as a member of SA Police subject to any limitation imposed by the Commissioner. (2) The Commissioner may, when appointing a special constable, impose limitations on his or her powers, responsibilities or immunities— (a) if the appointment is made orally under section 59(3)(a)—orally; or (b) if the appointment is made by instrument in writing—by the instrument of appointment. (3) If a limitation is imposed orally, the instrument confirming the appointment of the special constable under section 59(4) must specify the limitation. (4) The Commissioner may, by notice in writing to a special constable, vary or revoke a limitation imposed under this section. 62—Suspension or termination of appointment of special constables The Commissioner may, at the Commissioner's discretion, suspend or terminate the appointment of a special constable. 63—Allowances and equipment for special constables The Commissioner may— (a) pay such reasonable remuneration and allowances as the Commissioner thinks proper to a special constable or person who has been a special constable; and (b) provide such clothing, arms, and equipment for a special constable as the Commissioner thinks necessary. Part 9A—Police security officers Division 1—Preliminary 63A—Interpretation In this Part, unless the contrary intention appears— dangerous object or substance means— (a) an explosive, explosive device or incendiary device; or (b) a dangerous article, offensive weapon or prohibited weapon, in each case within the meaning of section 21A of the Summary Offences Act 1953; or (c) a firearm within the meaning of the Firearms Act 2015; or (d) a pathogen; or (e) any other object or substance that is reasonably capable of being used to jeopardise the security of persons or property; protected person means a public official, or a public official of a class, determined under section 63B to be in need of protective security; protected place means a place, or a place of a class, determined under section 63B to be in need of protective security; protected vehicle means a vehicle, or a vehicle of a class, determined under section 63B to be in need of protective security; public area means an area (for example, a public road, footpath or forecourt) to which members of the public ordinarily have free access; public authority means— (a) the Crown; or (b) a Minister of the Crown; or (c) an agency or instrumentality of the Crown; public building includes a public monument or structure; public official includes an official or dignitary from a place other than this State; vehicle means anything designed to transport a person or goods by road, rail, air or water. 63B—Determination of protected persons, places or vehicles (1) The Minister may, for the purposes of protecting the security of public officials, public buildings or public infrastructure, make any of the following determinations: (a) a determination that specified public officials, or public officials of a specified class, are in need of protective security; (b) a determination that specified places, or places of a specified class, (whether or not public buildings or public infrastructure) are in need of protective security; (c) a determination that specified vehicles, or vehicles of a specified class, are in need of protective security. (2) A determination under this section— (a) must be made by instrument in writing; and (b) takes effect from the date specified in the instrument and continues until the expiry date (if any) specified in the instrument or the making of a further determination under this section that revokes or replaces the determination. (3) If a determination under subsection (1)(b) relates (in whole or in part) to a public area, the Minister must cause the area to be enclosed by barriers or signposted as a police security area (but a failure to comply with this subsection does not affect the operation of the determination). (4) A determination under subsection (1)(b) may not relate (in whole or in part) to a place that is owned by a person other than a public authority and is not a public area without the consent of that person. 63C—References to protective security officers in other Acts etc A reference in any Act, or any instrument or other document, to a protective security officer (within the meaning of the Protective Security Act 2007 as in force immediately before the commencement of this section) will be taken to be a reference to a police security officer. Division 2—Modification of operation of this and other Acts etc in relation to police security officers 63D—Regulations may modify operation of this and other Acts etc in relation to police security officers (1) The Governor may make regulations— (a) applying or modifying specified provisions of this Act; or (b) applying or modifying specified provisions of the Police Complaints and Discipline Act 2016, in relation to police security officers (whether such regulations relate to the additional duties referred to in subsection (2) or otherwise). (2) The Governor may make regulations for the purpose of enabling police security officers, a class of police security officers or a specified police security officer or officers to perform additional duties. (3) The regulations may do any or all of the following: (a) modify the operation of a specified provision of this Act or any other Act that prevents, or is otherwise inconsistent with, the performance of the additional duties; (b) make consequential or related modifications to the operation of this or any other Act where modifications referred to in paragraph (a) are made; (c) confer powers on police security officers generally, a class of police security officers or a specified police security officer or officers. (4) The regulations may— (a) make provisions of a saving or transitional nature; or (b) provide for fines, not exceeding $10 000, for offences against the regulations; or (c) prescribe expiation fees, not exceeding $5 000, for offences against the regulations; or (d) provide for facilitation of proof of the commission of offences and other evidentiary matters. Division 3—Appointment etc of police security officers 63E—Appointment of police security officers The Commissioner may appoint as many police security officers as the Commissioner thinks necessary. 63F—Commissioner may determine structure of ranks The Commissioner may determine a structure of ranks that will apply to police security officers. 63G—Oath or affirmation by police security officers A person's appointment as a police security officer is rendered void if the person does not on appointment make an oath or affirmation in the form prescribed by regulation. 63H—Conditions of appointment (1) The conditions of appointment of a police security officer may be determined by the Commissioner. (2) A determination by the Commissioner must provide for the payment of remuneration, allowances and expenses in accordance with a specified scale. (3) A determination under this section may relate to police security officers generally, a class of police security officers or a particular police security officer. 63I—Identification of police security officers (1) A police security officer must be issued with an identity card in a form approved by the Commissioner— (a) containing a photograph of the person and the person's name or a unique identification code; and (b) stating that the person is a police security officer under this Act. (2) If a police security officer is not in official uniform, the officer must, at the request of a person in relation to whom the officer intends to exercise any powers under this Act or any other Act, produce their identity card for inspection by the person. (3) If a person in possession of an identity card issued to the person under this section ceases to be a police security officer, the person must immediately return the identity card to the Commissioner. Maximum penalty: $1 250. 63J—Suspension or termination of appointment of police security officer (1) The Commissioner may suspend or terminate a person's appointment as a police security officer if the Commissioner is satisfied after due inquiry that there is proper cause to do so. (2) The power to suspend or terminate a person's appointment under this section does not apply in relation to a matter to which the Police Complaints and Discipline Act 2016 applies. (3) The Commissioner may at any time revoke a suspension of a person's appointment under this Part. 63K—Resignation and relinquishment of official duties (1) A police security officer may resign by not less than 14 days notice in writing to the Commissioner (unless notice of a shorter period is accepted by the Commissioner). (2) A police security officer must not relinquish official duties unless the officer— (a) is expressly authorised in writing by the Commissioner to do so; or (b) is incapacitated by physical or mental disability or illness from performing official duties. Maximum penalty: $1 250 or imprisonment for 3 months. Division 4—Duties and powers of police security officers 63L—Interpretation (1) For the purposes of this Division— (a) a reference to a police security officer includes a reference to a police officer; and (b) a reference to a person's possessions includes a reference to anything that is, or has been, in the possession of the person, and any vehicle that is being, or has been, driven by the person or is, or has been, apparently in the person's charge; and (c) a power to remove or detain a person or hand a person over into the custody of a police officer extends to the person's possessions. (2) For the purposes of this Division, if a police security officer observes (whether directly or by means of a surveillance device), or receives a report of, a person apparently abandoning in, or within the precincts or vicinity of, a protected place, protected person or protected vehicle a dangerous object or substance, or anything that appears to be or might contain a dangerous object or substance, the police security officer will be taken to have reasonable grounds to suspect that the person has committed, is committing or is about to commit an offence. (3) This Division does not limit or derogate from the powers of a police officer under any other Act or law. (4) Subsection (2) does not limit the circumstances in which a police security officer will have reasonable grounds for a suspicion referred to in that subsection. 63M—Duties of police security officers (1) A police security officer has such duties as may be imposed by the Commissioner on police security officers generally, a class of police security officers of which the officer is a member or the police security officer personally. (2) A police security officer is, if so ordered by the Commissioner or by another person with requisite authority, liable to perform duties in any place within or outside the State. (3) A police security officer, while performing duties outside the State, is required to obey orders and is liable for breaches of the Code in the same way as if the officer were performing duties within the State. 63N—Powers of police security officers A police security officer has the following powers: (a) the powers conferred under this Division; (b) the powers conferred under the regulations on police security officers generally, a class of police security officers of which the officer is a member or the police security officer personally; (c) such other powers as may be conferred under any other Act or law on police security officers generally, a class of police security officers of which the officer is a member or the police security officer personally. 63O—Limitations on duties and powers (1) The Commissioner— (a) may impose a limitation on the duties or powers of a police security officer by— (i) the instrument of appointment of the officer; or (ii) notice in writing to the officer; and (b) may vary or revoke such a limitation by notice in writing to the officer. (2) A limitation under this section may entirely exclude the exercise by a police security officer of powers under this Act. (3) Limitations imposed under this section may vary from 1 police security officer to another. 63P—Powers relating to security of protected person (1) A police security officer may give a person within the vicinity of a protected person reasonable directions for the purposes of maintaining or restoring the security of the protected person. (2) If— (a) a person refuses or fails to comply with a direction given by a police security officer under subsection (1); or (b) a police security officer suspects on reasonable grounds that a person has committed, is committing, or is about to commit, an offence within the vicinity of a protected person, the officer may do 1 or more of the following: (c) direct the person to provide— (i) the person's name and address; and (ii) evidence of the person's identity; (d) cause the person to be removed to some place away from the protected person; (e) cause the person to be detained and handed over into the custody of a police officer as soon as reasonably practicable. (3) Reasonable force may be used for the purpose of taking action under subsection (2)(d) or (e). 63Q—Powers relating to security of protected place (1) A police security officer may give a person in or within the precincts of a protected place reasonable directions for the purposes of maintaining or restoring security or orderly conduct at the place or securing the safety of any person arriving at, in, or departing from, the place. (2) Without limiting subsection (1), a police security officer may, for purposes referred to in that subsection, direct a person in or about to enter a protected place— (a) to provide— (i) the person's name and address; and (ii) evidence of the person's identity; and (iii) the reason for the person's being in or about to enter the place; and (b) — (i) if there are reasonable grounds for suspecting that a dangerous object or substance is in the possession of the person— (A) to produce the object or substance for inspection; and (B) to submit to a physical search of the person and the person's possessions for the presence of any dangerous object or substance; and (C) to do anything reasonably necessary for the purposes of the search under this subsection; or (ii) in any other case— (A) to submit to a search of the person and the person's possessions for the presence of any dangerous object or substance by means of a scanning device; and (B) to allow the person's possessions to be searched for the presence of any dangerous object or substance by a physical search; and (C) to do anything reasonably necessary for the purposes of a search under this subsection. (3) The following provisions apply to a search of a person by means of a scanning device carried out under subsection (2): (a) the search must be conducted by use of an electronic or mechanical scanning device designed to be used without coming into contact with the body of the person the subject of the search; (b) without limiting the directions that may be given as reasonably necessary for the purposes of the search, the person may be directed— (i) to remove all objects and substances from the person's pockets or clothing; or (ii) to remove a belt, footwear, headwear, jewellery or other similar item that might trigger the warning signal of the scanning device; or (iii) to adopt certain postures; (c) the person cannot be directed to remove other clothing or to open their mouth and nothing may be introduced into an orifice of the person's body; (d) the search must be carried out expeditiously and in a manner that avoids undue humiliation of the person and, as far as reasonably practicable, avoids offending cultural values or religious beliefs genuinely held by the person. (4) The following provisions apply to a search of possessions by means of a scanning device, or by a physical search, carried out under subsection (2): (a) without limiting the directions that may be given as reasonably necessary for the purposes of the search, the person may be directed— (i) to hand over the person's possessions or control of them to the police security officer; or (ii) to open them or any part of them or to allow them or any part of them to be opened; (b) the search must be carried out expeditiously. (5) The following provisions apply to a physical search of a person carried out under subsection (2): (a) without limiting the directions that may be given as reasonably necessary for the purposes of the search, the person may be directed— (i) to remove all objects and substances from the person's pockets or clothing; or (ii) to open their mouth; or