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 remunerati