Section 85 Statement

I wish to make a statement under section 85(5) of the Constitution Act 1975 of the reasons for altering or varying that section by this Bill.

Clause 5 provides that no compensation is payable by the crown in respect to anything done under or arising from clause 4.

Clause 6 provides that it is the intention of clause 5 to alter or vary section 85 of the Constitution Act 1975.

The reason for altering or varying section 85 of the Constitution Act 1975 is to limit the jurisdiction of the Supreme Court to prevent compensation being awarded in respect of anything being done or arising out of clause 4. Claims for compensation based on anything being done or arising out of clause 4 May delay or prevent the redevelopment of the state netball and hockey centre. The facilities are being redeveloped to benefit the community as a whole and it is in the public interest for the rights on the site to be clarified to ensure that the redevelopment of these facilities of state significance is not jeopardised.

The redevelopment of the state Netball and Hockey Centre will significantly enhance the amenity of the area to park users, local residents and Melbournians generally.

1. New section 68C provides that in conducting a review, the Police Board must consider the Chief Commissioner’s reasoning for the decision to dismiss the applicant from the force; the case presented by the applicant as to why the decision was not sound, defensible or well-founded; the case presented by the Chief Commissioner in answer to the applicant’s case. New section 68C(3) provides that –

The Committee discussed the provision in the context that the hearing before the Review Board represented the first occasion in the process when the member of the force had the opportunity to present argument as opposed to simply making a written submission for the consideration by the Chief Commissioner.

On one view the provision might be regarded as a reversal of onus provision which may constitute an undue trespass to rights or freedoms.

The Committee will write to the Minister expressing its concerns and will seek the Minister’s comment accordingly.

The Committee refers the question whether the provision in new section 68C(3) constitutes an undue trespass to rights or freedoms for the consideration of the Parliament.

2. In respect to the dismissal powers provided to the Chief Commissioner in the Bill, the Committee made the following observation.

The Committee notes the comments in the Second Reading Speech that the powers of the Chief Commissioner to dismiss a member of the force sought to be introduced by the provisions in clause 13, will be exercised very sparingly, and only in circumstances where the existing provisions in the Police Regulation Act 1958 cannot be used to deal with the matter appropriately.

The Committee is however concerned that the provisions sought to be introduced by clause 13 may be regarded as an instance of the imposition of double jeopardy on a citizen and that it therefore may constitute an undue trespass to rights or freedoms.

The Committee will write to the Minister expressing its concerns and will seek his comments accordingly.

3. The Committee examined the provisions in clause 14 of the Bill the relevant extract and Committee comment is as follows:-

Clause 14(1)(a) amends section 70(2) and allows the Chief Commissioner to transfer a member, direct the member take accrued leave or suspend the member from the force with pay at any time during an investigation. The current provision allows such action to be taken only at the beginning of an investigation.

Clause 14(1)(b) repeals section 71(2). Section 71(1) provides that if after conducting a preliminary investigation, the Chief Commissioner or authorised officer reasonably believes that a member of the force has committed a breach of discipline, the officer may be charged with that breach. Section 71(2) currently provides that the Chief Commissioner or authorised officer must not charge the member unless the member has been given an opportunity to give a written explanation of the matter.

Clause 14(1)(d) inserts a new section 76(1)(ca) extending the determination options available at disciplinary proceedings to include the power to adjourn charges with conditions and/or ban an officer from promotion or transfer to other duties for up to 2 years.

Clause 14(3) inserts a penalty in section 86(2) of the Act of 50 penalty units. Section 86(2) provides:

The Committee notes the content of the Explanatory Memorandum in respect to clause 14 states – "clarifies a number of matters in relation to disciplinary matters". The Committee believes that the comment does not assist the Parliament in considering the merits of the provisions amending important aspects of the disciplinary and/or management processes for members of the Police Force.

However, the Committee notes that the matters affecting amendments to disciplinary powers provided for in clause 14 were referred to in the Minister’s Second Reading Speech.

In respect to the content of the Explanatory Memorandum the Committee will express it’s concerns to the Minister responsible for the Bill.

Thank you for your letter of 4 May 1999 on the Bill. The Bill embodies important changes to further enhance the integrity of Victoria Police.

In relation to the three specific concerns raised by your Committee, I wish to advise:

Section 68C(3)

Your committee has suggested that "[o]n one view, the provision might be regarded as a reversal of onus provision which may constitute an undue trespass to rights or freedoms".

To understand the nature of the proposed new section 68 and the review process, it is useful to examine the background to the legislation.

The legislation is based on provisions developed in NSW in response to the Wood Royal Commission’s recommendation to introduce such a dismissal power. The Commission had this to say about the NSW provisions -

Further, the Commission stated that the need for such strong powers flows from -

The essence of the decision to dismiss a member on the basis of unsuitability is not a decision on the guilt or innocence of a member in relation to a criminal or disciplinary charge but a consideration of the impact on the community’s confidence in the police force if it knew of the situation. Strictly speaking, the decision is not a finding in a criminal or disciplinary sense and issues of onus of proof are not those addressed in the criminal law arena.

The Police Board of Victoria will conduct an independent review of the decision of the Chief Commissioner with the capacity to make decisions, which will be binding on the Chief Commissioner.

The Police Board of Victoria is uniquely positioned to carry out this review role. The current functions of the Police Board are to advise the Minister and the Chief Commissioner of Police on administrative, structural, organisational and management improvements to the police force. The Board conducts regular surveys on the community confidence in Victoria Police. These surveys combined with the Board’s other work gives the Board a unique understanding of the police environment and the community’s perception of police.

The Police Board is comprised of members of the community appointed by the Governor in Council. When the Board acts in its review function, it will not include the Chief Commissioner as a member. The Police Board is concerned with maintaining community confidence in the standing of Victoria Police as a properly functioning and creditable organisation and that is the overview that it brings to the review function.

In conducting its review, the Board must have regard to:

The Chief Commissioner is charged with the superintendence of the Force. The Chief Commissioner must ensure the integrity of the Force. These new provisions are designed to ensure that the Chief Commissioner has the capacity to deal effectively with members who are assessed as unsuitable to continue as police officers. The Board will need to consider this when it conducts its review.

Section 68C(3) is modelled on s.181F(2) of the Police Services Act 1990 (NSW). It was inserted in the NSW legislation as a result of the Wood Royal Commission’s view that "the legislation governing the review [of a Commissioner’s dismissal decision] should ensure ... the appellant retains the onus of establishing that the decision of the Commissioner ... was invalid". (Final Report - Volume 2: Reform, para. 4.137,
p. 364)

The Full Bench of the NSW Industrial Relations Commission has considered the issue of onus of proof in the context of the dismissal of a police officer under s.181B of the Police Services Act 1990 (NSW), which was the forerunner to the current s.181D. In Bigg v New South Wales Police Service (1998) 80IR 434, the Full Bench concluded that:

I have also obtained Queen’s Counsel opinion on this issue. That opinion indicates that your Committee’s apprehension overlooks the context, which I have outlined above. It concludes:

2. Clause 13: "Double Jeopardy" Risk

I do not believe that this provision constitutes a double jeopardy situation. The double jeopardy principle is aimed at protecting the accused from harassment by multiple prosecutions, with the likely result that the innocent will succumb and be unjustly convicted through financial or personal exhaustion in the face of a better resourced State.

This situation is not applicable here.

The context in which a dismissal of an unsuitable officer arises will often be one where it is a pattern of behaviour that constitutes the essence of the concern and not a single incident. The member will not be at risk of multiple proceedings for the same offence. Any issue capable of being addressed as a disciplinary or criminal issue will be dealt with under those proceedings.

The Chief Commissioner is not determining guilt or innocence on a particular charge but is weighing the impact on the community’s confidence in its police force of the continued presence of a member as a police officer, usually based on conduct over a period of time.

In this context it is worth noting the following observation of the Wood Royal Commission:

I have also sought Queen’s Counsel’s advice on this issue. That opinion concludes:

Clause 14 - Adequacy of Explanatory Memorandum

I acknowledge that the explanatory note may have been too brief and greater clarification could have been provided by incorporating the comments made in my Second Reading Speech.