Police Complaints and Discipline Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (18:31): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill is a response to the recommendations in the Report of the Hon Bruce Lander QC: 'Review of Legislative Schemes: The oversight and Management of Complaints About Police; The Receipt and Assessment of Complaints and Reports about Public Administration'. When the Independent Commissioner Against Corruption Act 2012 was enacted, it was always envisaged that a review of the State's integrity system would be necessary to determine and address duplication and inefficiencies in existing complaints systems. The review highlighted the unnecessary complexity of the system established under the Police Act 1998 and the Police Complaints and Disciplinary Proceedings Act 1995 for the receipt, assessment and investigation of complaints about police.

The Police Complaints and Discipline Bill 2016 will repeal the Police Complaints and Disciplinary Proceedings Act, abolishing the Office of Police Ombudsman, and establish a streamlined complaints system in which SAPOL retains primary responsibility for the assessment of complaints and reports about police with independent oversight by the Office for Public Integrity.

The Bill provides for the Office for Public Integrity to have general oversight of the police complaints scheme. Under the current legislation, this role is undertaken by the Police Ombudsman. The OPI will have 24 hour access to a complaints management system set up under this Bill, which will remove duplication, increase efficiency and ensure that the resolution of a complaint is appropriate and audited. The ICAC will report annually on the types of sanctions imposed at the outcome of a complaints process.

The Bill provides for OPI to give directions to the Internal Investigations Section, to reassess complaints and reports entered onto the complaints management system established under this Bill and, after consultation with the Officer in Charge of the IIS, substitute the IIS assessment of the complaint or report with another assessment. The OPI will continue to refer matters to the ICAC if satisfied that the complaint or report related to matters that should be dealt with by the ICAC under the ICAC Act.

The Bill also provides for an informal process of dealing with complaints about police conduct. Management resolution is intended to be an informal and much simpler resolution process for complaints about conduct that the Police Commissioner determines is suitable for such resolution. The OPI must approve of a determination. It is envisaged that largely conduct that can and should be addressed through education, training, counselling or conciliation, imposition of restrictions relating to duties, authorities or ability to attend courses will be dealt with through this process. The result of a management resolution will be recorded on the electronic management system which will allow outcomes to be audited by the ICAC.

In accordance with recommendations, the scheme established by this Bill uses language that is more appropriate to a complaints and disciplinary scheme. Under the current legislation the Police Commissioner may charge a designated officer with a breach of discipline. Where a charge is laid, and the officer subject of the charge does not make an admission of guilt, proceedings on the charge are heard and determined by the Police Disciplinary Tribunal. The Bill allows for the Commissioner to issue a Notice of Allegation. If the officer does not admit an allegation contained in the notice, the allegation will be heard and determined by the Police Disciplinary Tribunal. Proceedings of the Tribunal remain largely unchanged by this Bill except that provisions allowing the use of evidentiary aids and information obtained by lawful exercise of powers under any Act have been included. .

The introduction of this Bill is another important step towards ensuring an efficient, cohesive integrity system for this State. The proposed scheme is welcomed by SA Police. The transition will require considerable effort and time and I look forward to the passage of this Bill and commencement of the implementation of the new scheme.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines terms used throughout the measure.

4—Application of Act

This clause clarifies that the measure is in addition to, and does not derogate from, the specified Acts.

5—Separate Internal Investigation Section to be constituted

This clause requires the Commissioner of Police to constitute a separate Internal Investigation Section.

6—Complaint management system

This clause requires the Commissioner of Police to establish a system of recording and managing information for the purposes of the measure, and to ensure the ICAC and the OPI have direct and unrestricted access to the complaint management system for the purposes of the measure and the Independent Commissioner Against Corruption Act 2012.

7—Code of conduct

This clause provides for the establishment of a code of conduct for police officers by regulation.

8—Functions of OPI under Act

This clause sets out the functions of the Office for Public Integrity under the measure.

9—Complainant and police officer to be kept informed of progress of complaint

This clause requires the Commissioner of Police to keep people who make complaints about police officers, and the police officers concerned, informed of the progress of the complaint.

Part 2—Making complaints and reports

Division 1—Complaints and reports about conduct of police officers

10—Making a complaint about conduct of police officer

This clause sets out how a person may make a complaint against a police officer.

11—Right of persons in custody to make complaint

This clause makes procedural provision about the making of complaints under the measure by prisoners.

12—Police officers to report certain conduct of other police officers

This clause requires police officers who suspect other police officers of engaging in certain conduct to report the suspicion.

13—Action to be taken on receipt of complaint or report

This clause sets out what a person to whom a complaint is made must do on receipt of it. In particular, the person is generally required to refer the complaint to the Internal Investigation Section within 48 hours.

Division 2—Assessment of complaints and reports

14—Assessment of complaints and reports by IIS

This clause requires each complaint or report under the measure to be assessed to determine whether it raises issues relating to corruption, misconduct or maladministration in public office.

15—Commissioner may decline to act in relation to certain complaints

This clause sets out circumstances in which the Commissioner may decline to take further action in respect of a particular complaint or report.

Part 3—Certain matters to be resolved by management resolution

16—Application of Part

This clause sets out the kinds of matter to which the Part applies.

17—Further matters relating to operation of Part

This clause enables regulations to be made dealing with matters under the proposed Part such as identifying the kinds of complaints that should, or should not, be the subject of a determination under proposed section 16.

18—Dealing with matters by way of management resolution

This clause sets out how matters to which the proposed part applies are to be resolved. These are minor matters, and are to be dealt with by way of management resolution rather than in formal proceedings before the Tribunal.

19—Reporting results of management resolution of matter

This clause requires the resolution officer in respect of a matter dealt with under the proposed Part to report on the resolution of the matter.

20—Monitoring of management resolutions under Part

This clause requires the Commissioner to cause all matters dealt with under this Part to be monitored and reviewed with a view to maintaining proper and consistent practices.

Part 4—Formal proceedings for breach of discipline

21—Investigations of complaints and reports by IIS

This clause requires each complaint or report under the measure to be investigated by the Internal Investigation Section, other than those specified in proposed subsection (2). The clause sets out how matters are to be investigated and confers powers, obligations and protections on police officers.

22—Notice of allegation to be issued in respect of breaches of discipline

This clause sets out how proceedings for a breach of discipline are to be commenced by the Commissioner of Police.

23—Suspension where charge of offence or alleged breach of discipline

This clause provides the Commissioner of Police with the power to suspend the appointment of a police officer in the circumstances specified. The clause also sets out procedural matters in respect of such a suspension.

24—Police officer may admit or deny allegations

This clause enables a police officer to admit or deny allegations contained in a notice of allegation, to be done in accordance with the regulations.

25—Allegations to be heard and determined by Tribunal

This clause provides that allegations contained in a notice of allegation and not admitted by the police officer concerned are to be heard and determined by the Police Disciplinary Tribunal in accordance with the proposed section.

26—Commissioner may sanction police officer following offence or breach of discipline

This clause provides that the Commissioner of Police may impose certain sanctions on a police officer who admits, or is found to have committed, a breach of discipline.

Part 5—Oversight of complaints and reports by OPI etc

27—OPI may direct Commissioner etc in relation to handling of complaints and reports

This clause provides that the Officer for Public Integrity may direct the Commissioner of Police and other police officers in respect of complaints or reports under the measure. Such a direction must be complied without undue delay.

28—Reassessment of certain complaints and reports by OPI

This clause provides that the Officer for Public Integrity may reassess a complaint or report under the measure (and such an assessment will then be taken to be the assessment of the Internal Investigation Section).

29—OPI may refer complaints and reports to ICAC

This clause enables the Office for Public Integrity to refer complaints and reports under the measure to the Independent Commissioner Against Corruption to be dealt with under the Independent Commissioner Against Corruption Act 2012.

30—ICAC may investigate matters under section

This clause enables the Independent Commissioner Against Corruption to investigate complaints and reports under the measure if he or she considers it appropriate to do so, and in doing so has all the powers of a member of the Internal Investigation Section.

31—Annual report on sanctions imposed for breaches of discipline

This clause requires the Independent Commissioner Against Corruption to prepare an annual report in respect of the number and general nature of sanctions imposed under proposed section 26 in relation to breaches of discipline in the preceding financial year.

Part 6—Appeals

32—Appeals

This clause confers a right of appeal to the Administrative and Disciplinary Division of the District Court against a decision of the Tribunal, or certain decisions of the Commissioner in respect of management resolutions and the imposition of sanctions.

Part 7—Police Disciplinary Tribunal

33—Constitution of Police Disciplinary Tribunal

This clause provides for a Police Disciplinary Tribunal, constituted of a magistrate.

34—Registrar and deputy registrar

This clause requires the Registrar and Deputy Registrar of the Tribunal to be public servants.

35—Proceedings before Tribunal

This clause makes procedural provision in respect of proceedings before the Tribunal.

36—Powers of Tribunal

This clause sets out the powers of the Tribunal in respect of proceedings and witnesses etc.

37—Protection of Tribunal, counsel and witnesses

This clause confers protections on specified persons appearing before the tribunal consistent with those in court proceedings.

38—Reference of question of law

This clause enables the Tribunal to refer questions of law to the Supreme Court.

39—Costs

This clause provides for the awarding of costs by the Tribunal.

40—Reasons for decision

This clause requires the Tribunal to give reasons for its decisions at the request of the specified persons.

Part 8—Miscellaneous

41—Obstruction of complaint or report

This clause creates an offence for a person to prevent or hinder a person from making a complaint or report under the measure.

42—False or misleading statements

This clause creates an offence for a person to make a false or misleading statement in information provided under the measure, and to make a false complaint or report under the measure.

43—Use of evidence or information obtained under other Acts etc

This clause enables evidence and information obtained under this measure or any other Act to be used in relation to management resolutions or proceedings before the Tribunal under this measure.

44—Limitation on requirement to divulge information

This clause provides that a person who is, or who has been, engaged in the administration or enforcement of this measure or the repealed Act cannot be required to divulge information disclosed or obtained in the course of an investigation except in the specified circumstances.

45—Confidentiality

This clause creates an offence for a person engaged in the administration of the measure to disclose certain information, and makes provision for when information can be disclosed.

46—Publication of information and evidence

This clause prevents a person from publishing certain information without the authorisation of the Commissioner of Police, the ICAC or the OPI or a court.

47—Service

This clause sets out how notices and documents are to be served under the measure.

48—Review of Act

This clause requires the Minister to conduct a review of the operation of the measure before the third anniversary of its commencement, and report to Parliament on the review.

49—Regulations

This clause is a standard regulation making power.

Schedule 1—Related amendments, repeal and transitional provisions

Parts 1 to 14

These Parts make related amendments to numerous Acts to replace provisions relating to the Police Ombudsman, a position abolished under the measure.

The Parts also make consequential amendments to the Police Act 1998 and the Protective Security Act 2007consequent upon the repeal of the Police (Complaints and Disciplinary Proceedings) Act 1985.

Part 15—Repeal of Police (Complaints and Disciplinary Proceedings) Act 1985

52—Repeal of Police (Complaints and Disciplinary Proceedings) Act 1985

This clause repeals the Police (Complaints and Disciplinary Proceedings) Act 1985.

Part 16—Transitional provisions

53—Certain orders of Commissioner etc under repealed Act taken to be valid

This clause validates certain actions purportedly taken under section 40 of the Police Act 1998 and over which some doubt exists as to their validity.

54—Complaints, reports and proceedings under Police (Complaints and Disciplinary Proceedings) Act 1985

This clause deems certain complaints or reports made under the repealed Act to be complaints or reports under this measure or the Protective Security Act 2007 (as the case requires).

Debate adjourned on motion of Hon. D.W. Ridgway.

At 18:33 the council adjourned until Wednesday 19 October 2016 at 14:15.