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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-09-08 Daily Xml
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Police Commissioner Determinations

7 The Hon. F. PANGALLO (23 July 2020). Can the Minister for Police, Emergency Services and Correctional Services advise:

1. Whether the minister will provide a full explanation and report to the parliament as to why not one 'determination' appears to have been laid on the table of either the House of Assembly or the Legislative Council since the Police Complaints Disciplinary Act 2016(PCDA) commenced operation on 19 April 2017?

2. If it is correct that the Commissioner of Police has not furnished to the Minister for Police, Emergency Services and Corrections, during the period following the commencement of the act to the present day, with the information as to his 'determinations' under part 3 PCDA, then why has the minister not required the commissioner to furnish that information?

3. Why has the government also not laid on the table of either house of parliament regulations under section 17 (1) (a) and (b) of the PCDA?

4. Does the government propose to promulgate such regulations and lay them on the table of the House of Assembly and the Legislative Council, and, if so, on what date is the Minister for Police, Emergency Services and Corrections intending to do this?

5. Has the Minister for Police, Emergency Services and Corrections sought and/or obtained any legal advice that exculpates him from his apparent failure of office and function to comply with the PCDA?

6. If so, will he provide that advice to the parliament, and when will he do this?

7. Will the minister produce to each house of parliament the communication or communications from the Commissioner of Police and/or the Office of Public Integrity (OPI) to the Attorney-General relating to the document tabled in both houses on 10 September 2019 purporting to be a 'determination' by the commissioner under section 16 of the PCDA approved by Michael Riches of the OPI?

8. Is the minister able to explain the apparent delay of approximately two years between the date of that document and its tabling?

9. Does the minister assert that the document tabled on 10 September 2019 was a 'determination' as required by section 16 (5) of the PCDA to be tabled?

10. If yes, what does the minister assert is the 'determination' of the commissioner referred to in section 17 (1) (a) of the PCDA?

11. If he believes that, having regard to section 17 (1) (a) of the PCDA, the document tabled on 10 September 2019 constitutes an agreement between the Commissioner of Police and the OPI as to what kinds of conduct are appropriate to be the subject of a 'determination' by the commissioner under section 16 in the absence of regulations?

The Hon. R.I. LUCAS (Treasurer):

The question on notice calls for a response from the Minister for Police, Emergency Services and Correctional Services. However, administration of the Police Complaints and Discipline Act 2016 (the act) is committed to the Attorney-General. The Attorney-General has provided the following advice:

Part 3 of the actprovides for certain matters relating to police conduct to be resolved by management resolution, as opposed to by a more formal disciplinary process which is dealt with in part 4 of the act. Part 3 management resolution applies to kinds of matters determined by the Commissioner of Police under section 16(1). Pursuant to section 16(4), a determination made by the Commissioner of Police has effect when it is approved by the Office of Public Integrity (OPI).

A determination under section 16(1) of the matters that may be dealt with by management resolution was made by the Commissioner of Police on 14 August 2017 and approved by the OPI on 1 September 2017. The operative provisions of the act commenced on 4 September 2017. The determination was tabled in both houses of parliament on 10 September 2019. The reason for the delay in the tabling of the determination is that it was not provided to the Attorney-General until 26 July 2019. It was then tabled within five sittings days. The delay in the tabling of the declaration had no impact on the operation of management resolution under the act and the Attorney-General does not intend to produce to parliament any communications from the Commissioner of Police and/or the OPI relating to the declaration.

The determination tabled on 10 September 2019 is the only determination that has been made by the Commissioner of Police and approved by the OPI under section 16 of the act. It sets the parameters for the matters that may be dealt with by management resolution. It is not necessary for separate determinations to be made by the Commissioner of Police, approved by the OPI and tabled in parliament in respect of each individual matter to be referred to management resolution under the act.

Section 17(1)(a) of the act provides that regulations may be made specifying the kinds of complaints, reports and conduct that should, or should not, be the subject of a determination of the Commissioner of Police under section 16. This provision does not require the making of regulations. Rather, it provides the government with an ability to limit by regulation the scope that the Commissioner of Police has in making a determination under section 16 should the need arise. No regulations have been made under section 17(1)(a) as no need to do so has been identified. The government does not accept that this constitutes any breach of the act.

Section 17(1)(b) of the act provides that regulations can set out procedures for dealing with matters under part 3 and section 17(1)(c) provides that regulations may make further provisions relating to the operation of part 3. Again, there is no obligation on the government to make regulations under these provisions, but it has the flexibility to do so if the need arises. The Police Complaints and Discipline Regulations 2017 were proclaimed by the Governor on 19 April 2017 and commenced on 4 September 2017. Regulation 4 is a regulation that is contemplated by section 17(1)(b) and/or 17(1)(c). It provides that reports that are required by section 19(1) of the act to be prepared by a resolution officer in relation to each matter dealt with by management resolution under part 3 must include specified information. The regulations were tabled in both houses of parliament on 26 September 2017. The government does not have any present intention to make further regulations under section 17 of the act.

The Attorney-General has not sought and/or obtained any advice in relation to any of the matters that are alleged in the question on notice to be failures of the minister to comply with the act.

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