Victoria Police Bill 2013

Victoria Police Bill 2013

Introduction Print

EXPLANATORY MEMORANDUM

General

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BILL LA INTRODUCTION 15/10/2013

The Bill is for a new principal Act for the administration and governance of Victoria Police, the State's primary law enforcement organisation. The Bill will largely repeal the Police Regulation Act 1958 which was drafted across six decades in a mix of old-fashioned and modern language.

The Bill is a further step towards implementing the Government's response to recommendations for legislative reform made in the report of the Inquiry into the command, management and functions of the senior structure of Victoria Police ("the Report") lead by Jack Rush QC under section 52 of the Public Administration Act 2004.

The Bill—

·  recognises that Victoria Police's role is to serve the Victorian community and uphold the law, so as to promote a safe, secure and orderly society; and

·  establishes Victoria Police as an organisation made up of both sworn officers and public servants; and

·  creates a more transparent framework to govern the relationship between Victoria Police and the Government; and

·  provides for the appointment of police officers of all ranks, protective services officers and special constables; and

·  provides a clearer framework for governing and administering Victoria Police.

Clause Notes

PART 1—PRELIMINARY

Part 1 of the Bill provides for preliminary matters, including the purposes,

commencement and definitions.

Clause 1 sets out the purposes of the Bill, which are to re-enact and modernise the law relating to the governance and regulation of Victoria Police and to retitle and substantially repeal the Police Regulation Act 1958.

Clause 2 provides for the Bill's commencement arrangements. Allprovisions will come into effect on a day or days to be proclaimed, or on 1 December 2014 if not proclaimed before that date.

Clause 3 contains definitions of terms used in the Bill. The clause largely re-makes definitions contained in the Police Regulation Act 1958 with the following key changes—

·  commissioned officer—the Police Regulation Act 1958 referred to police officers of the rank of Inspector or above who had been certified by the Governor in Council as "officers". To avoid confusion with the term police officer, the new term commissioned officer is used to refer to the police officers who are certified under clause 14;

·  member of Victoria Police personnel—refers to the categories of people who are employed or appointed to work at Victoria Police;

·  police officer—the Police Regulation Act 1958 did not contain a definition of police officer and referred instead to a member of the force. Police officer is defined as the Chief Commissioner, a Deputy Commissioner, an Assistant Commissioner or a person appointed under Division 5 of Part 3;

·  Victoria Police—as the Bill establishes Victoria Police, a definition of Victoria Police is included;

·  Victoria Police employee—refers to the people employed in Victoria Police by the Chief Commissioner under Part 3 of the Public Administration Act 2004.

Clause 4 provides the meaning of efficiency for the purposes of the promotion or transfer of police and protective services officers.

The clause re-enacts the current meaning of efficiency used in the Police Regulation Act 1958. Efficiency is used for the purposes of promotion and transfer of police and protective services officers.

Clause 5 allows the Chief Commissioner to determine an area to be the Melbourne Metropolitan area for the purposes of the Bill by publishing a notice in the Government Gazette. This is relevant to the definition of country position.

PART 2—VICTORIA POLICE

This Part recognises Victoria Police in legislation as a body comprising the Chief Commissioner and those appointed or employed by the Chief Commissioner under the Bill, as well as those employed by the Chief Commissioner under the Public Administration Act 2004. The Part also articulates Victoria Police's role and general functions and articulates the relationship between Victoria Police and the Government in a way that seeks to maintain ministerial and parliamentary responsibility, control and accountability for Victoria Police while safeguarding police operational independence.

Division 1—Constitution, role and functions

Clause 6 establishes Victoria Police as the police force of Victoria.

A note to the clause recognises that Victoria Police is a "special body" under section 6(1) of the Public Administration Act 2004.

Clause 7 lists the personnel who make up Victoria Police. The personnel that make up Victoria Police are the Chief Commissioner, Deputy Commissioners, Assistant Commissioners, other police officers, protective services officers, police recruits, police reservists and Victoria Police employees.

Clause 8 outlines the role of Victoria Police, which is to serve the Victorian community and uphold the law so as to promote a safe, secure and orderly society.

Clause 9 gives a non-exhaustive list of Victoria Police's general functions and provides that these functions do not confer on any person any civil right of action, provide any person with a defence to any civil action or otherwise affect any civil right of action. The list of general functions are consistent with Victoria Police's Code of Conduct, and include preserving the peace, protecting life and property, preventing the commission of offences, detecting and apprehending offenders, and helping those in need of assistance.

Division 2—Relationship with government

Clause 10 allows the Minister, after consultation with the Chief Commissioner, to direct the Chief Commissioner in relation to the policy and priorities to be pursued in the performance of the functions of Victoria Police. For example, the Minister could direct the Chief Commissioner to implement certain government policing policies and priorities. For the purpose of safeguarding the operational independence of the Chief Commissioner, subclause (2) limits the Minister's power to direct the Chief Commissioner. Subject to subclause (3) the Minister cannot direct the Chief Commissioner on any matter relating to—

·  preservation of the peace and the protection of life and property in relation to any person or group of persons;

·  enforcement of the law in relation to any person or group of persons;

·  the investigation or prosecution of offences in relation to any person or group of persons;

·  decisions about individual members of Victoria Police personnel, including decisions in relation to discipline;

·  the organisational structure of Victoria Police;

·  the allocation or deployment of police officers or protective services officers to or at particular locations;

·  training, education and professional development programs within Victoria Police;

·  the content of any internal grievance-resolution procedures.

Subclause (3) provides an exception to some of these limitations. The exception is where one of the listed entities has made a report or recommendation in relation to matters set out in subclause (2)(e) to (h) and the Minister believes that the Chief Commissioner has not responded adequately to that report or recommendation. The following entities are listed for the purpose of the clause—

·  the IBAC;

·  the Auditor-General;

·  the State Services Authority;

·  the Public Sector Standards Commissioner;

·  a coroner;

·  the Commissioner for Law Enforcement Data Security;

·  a Parliamentary Committee;

·  a Commission of Inquiry established under section 88B of the Constitution Act 1975;

·  a Board of Inquiry established under section 88C of the Constitution Act 1975;

·  a Royal Commission;

·  a prescribed entity.

Before issuing a direction to the Chief Commissioner, the Minister must first consult with the Chief Commissioner. Topromote transparency and accountability, the Minister must make the direction in writing and publish a copy in the Government Gazette. The Chief Commissioner must also publish a copy of the direction on the Victoria Police website.

Clause 11 allows the Minister to request information or reports from the Chief Commissioner. The Chief Commissioner must comply with the Minister's request, subject to some exceptions designed to safeguard the operational independence of the Chief Commissioner and protect public safety. The Chief Commissioner does not need to provide the requested information to the Minister if the Chief Commissioner considers that giving the information to the Minister would be reasonably likely to—

·  prejudice any investigation of a contravention or possible contravention of the law; or

·  prejudice the prosecution of any person for an offence; or

·  endanger the life or physical safety of any person.

Clause 12 requires the Chief Commissioner to provide a report to the Minister within 3 months after the end of the financial year on—

·  any action taken by the Chief Commissioner during that year under Division 6 of Part 4. Division 6 of Part 4 relates to action that the Chief Commissioner may take in respect of a police officer or protective services officer who is incapable of performing their duties. Thereport must contain the outcome of that action, including the result of any review of that action by the PRSBoard;

·  any action taken by the Chief Commissioner or an authorised officer during that year under Part 7. Part 7 relates to action taken in respect of alleged breaches of discipline by police officers and protective services officers. The report must contain the outcome of that action (including the result of any review of that action by the PRSBoard);

·  any action taken during that year by the Chief Commissioner under clause 195. Clause 195 relates to action taken in respect of alleged breaches of discipline by special constables; and

·  the prescribed information in relation to Part 5. Part 5 relates to drug and alcohol testing of Victoria Police personnel.

Subclause (3) ensures that the report is made public, either through inclusion in Victoria Police's annual report under the Financial Management Act 1994 or publication on the Internet.

PART 3—VICTORIA POLICE PERSONNEL

Part 3 provides a statutory framework for the Chief Commissioner, Deputy Commissioners, Assistant Commissioners, other police officers, police recruits, protective services officers and police reservists, who are all appointed or employed pursuant to this Part. The Chief Commissioner employs a further category of Victoria Police personnel, called Victoria Police employees, under Part 3 of the Public Administration Act 2004.

Division 1—Ranks, commissions and numbers

Clause 13 sets out the ranks of police officers. The ranks, in descending order of seniority, are as follows—

·  Chief Commissioner;

·  Deputy Commissioner;

·  Assistant Commissioner;

·  commander;

·  chief superintendent;

·  superintendent;

·  chief inspector;

·  inspector;

·  senior sergeant;

·  sergeant;

·  senior constable;

·  constable.

Clause 14 re-enacts the effect of section 8(2) and part of section 5 of the Police Regulation Act 1958 in modern language. The purpose is twofold. First, to allow the Governor in Council to certify that a police officer of any of the following ranks is a commissioned officer of Victoria Police—

·  Assistant Commissioner;

·  commander;

·  chief superintendent;

·  superintendent;

·  chief inspector;

·  inspector.

Secondly, to provide that a commissioned officer of Victoria Police is responsible for the general management and control of the portion of Victoria Police that the Chief Commissioner places under their control.

Clause 15 allows the Governor in Council to determine the number of police officers by rank and the total number of protective services officers. The mechanism is by Governor in Council Order. The Chief Commissioner must comply with such an order if one exists. A similar mechanism was contained in section 8(1) of the Police Regulation Act 1958.

Division 2—Chief Commissioner

Division 2 provides a statutory framework for the office of the Chief Commissioner and further articulates the relationship between the Chief Commissioner and the Minister. The relationship between the Chief Commissioner and the Minister is important. This is because Victoria Police is accountable to the Minister through the office of the Chief Commissioner. In turn, the Minister is accountable to Parliament. The provisions aim to reflect ministerial and parliamentary responsibility, control and accountability over Victoria Police, while safeguarding the Chief Commissioner's operational independence.

Clause 16 sets out the role of the Chief Commissioner and further articulates the relationship between the Chief Commissioner and the Minister. Specifically, the Chief Commissioner—

·  is the chief constable and the chief executive officer of Victoria Police; and

·  is responsible for the management and control of Victoria Police; and

·  is responsible for implementing the policing policy and priorities of the Government; and

·  is responsible for providing advice and information to the Minister on the operations of Victoria Police and policing matters generally; and

·  is responsible to the Minister for the general conduct, performance and operations of Victoria Police.

Section 16 of the Public Administration Act 2004 operates to also give the Chief Commissioner all the functions of a public service body Head under that Act in relation to Victoria Police employees.

Clause 17 allows the Governor in Council to appoint a Chief Commissioner of Police. Further conditions of office are outlined in Part 1 of Schedule 1.

Clause 18 allows the Governor in Council to appoint a police officer as Acting Chief Commissioner for any length of time when the office of Chief Commissioner is vacant or when the Chief Commissioner is absent from duty or unable to perform the duties of office.

The Minister may appoint an Acting Chief Commissioner for a period not exceeding 4 weeks.

The Governor in Council may also revoke an appointment (whether made by the Governor in Council or the Minister).

An Acting Chief Commissioner—

·  has all the powers and must perform all the duties of the Chief Commissioner; and

·  is eligible for reappointment.

Clause 19 allows the Chief Commissioner to delegate any duty, function or power to a member or class of members of Victoria Police personnel (other than police recruits).

There are, however, exceptions. The following powers may not be delegated—

·  the power under clause 83 to determine that a work unit or work function within Victoria Police is a designated work unit or work function;

·  the power under clause 196 to declare an incident to be an incident requiring urgent cross-border assistance;

·  the power under clause 197 to extend a declaration made under clause 196;

·  the power of delegation.

The following powers may only be delegated to a police officer holding the rank of inspector or above, or a Victoria Police employee at a level of Grade 6 or above—