Part 9 Management of conduct within NSW Police Force
Division 1 Misconduct and unsatisfactory performance
173 Commissioner may take action with respect to police officer’s misconduct or unsatisfactory performance
(1) In this section:non-reviewable action means action referred to in Schedule 1.
reviewable action means action referred to in subsection (2), other than non-reviewable action.
(2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct:(a) a reduction of the police officer’s rank or grade,(b) a reduction of the police officer’s seniority,(c) a deferral of the police officer’s salary increment,(d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate.(3) The Commissioner may also order that action referred to in subsection (2) be taken with respect to a police officer whom the Commissioner has required to participate in a remedial performance program prescribed by the regulations and whose performance as a police officer after having participated in that program is, in the Commissioner’s opinion, still unsatisfactory.(4) The Commissioner may make an order under subsection (2) or (3) whether or not the misconduct or unsatisfactory performance has been the subject of a complaint under Part 8A and whether or not the police officer has been prosecuted or convicted for an offence in relation to the misconduct or unsatisfactory performance.(5) Before making an order for reviewable action, the Commissioner:(a) must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and(b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and(c) must take into consideration any written submissions received from the police officer:(i) during the period of 7 days referred to in paragraph (b), or(ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served.(6) As soon as practicable after making an order for reviewable action, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post.(7) The written notice must contain the terms of the order and must indicate:(a) the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the order has been made, and(b) whether the order results from a complaint that has been investigated, or is being investigated, under Division 5 of Part 8A, and(c) the Commissioner’s reasons for making the order.(8) An order for action referred to in subsection (2) takes effect:(a) in the case of non-reviewable action, when the order is made, or(b) in the case of reviewable action, at the expiry of the time within which an application for a review of the order may be made under section 174 or, if such an application is made within that time, when the application is finally determined.(9) Except as provided by Division 1A:(a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and(b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section.In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission.
(10) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action.(11) Nothing in Division 1A limits or otherwise affects the Commissioner’s power to vary or revoke an order in force under this section.(12) Despite section 31, the Commissioner’s functions under this section may only be delegated to a member of the NSW Police Force who is senior to the police officer in respect of whom those functions are being exercised.
Division 1A Review of Commissioner’s order under Division 1
(1) A police officer in respect of whom an order for reviewable action is made under section 173 may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust.(2) An application may be made on behalf of the police officer by an industrial organisation of employees.(3) An industrial organisation of employees may make one application on behalf of a number of police officers in respect of whom orders for reviewable action have been made at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications together or individually.(4) An application may not be made by or on behalf of a police officer more than 21 days after the date on which written notice of the making of the order to which it relates was served on the police officer.(5) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant, for inspection and copying, all of the documents and other material on which the Commissioner has relied, or to which the Commissioner has had regard, in deciding to make the order to which the application relates.
(1) The Commission is to commence hearing an application for a review under this Division within 4 weeks after the application is made.(2) The applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.(3) In determining the applicant’s claim, the Commission may take into account such matters as it considers relevant.(4) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to:(a) the interests of the applicant, and(b) the public interest (which is taken to include the fact that the Commissioner made the order pursuant to section 173).
176 Conciliation of applications
The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant’s claim by conciliation.
177 Arbitration where conciliation unsuccessful
(1) When, in the opinion of the Commission, all reasonable attempts to settle the applicant’s claim by conciliation have been made but have been unsuccessful, the Commission is to determine the application:(a) by revoking the order, or(b) by revoking the order and making such other order as it considers appropriate, whether or not an order that the Commissioner is empowered to make under section 173, or(c) by upholding the order, or(d) by dismissing the application.(2) If the Commission revokes the order, it may also direct the payment of compensation for any loss suffered by the applicant as a consequence of the making of the order.(3) An order made by the Commission under subsection (1) (b) is to be given effect to in accordance with its terms.(4) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes an order or direction under this section.
178 Rules of evidence and legal formality
(1) The Commission:(a) is not bound to act in a formal manner, and(b) is not bound by the rules of evidence, but may inform itself on any matter in any way that it considers to be just, and(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.(2) However, the rules of evidence and other formal procedures of a superior court of record apply to and in respect of the Commission in Court Session.
179 Application of Industrial Relations Act 1996
(1) In the application of Part 5 of Chapter 4 of the Industrial Relations Act 1996 to proceedings under this Division, the provisions of sections 163, 167, 169 (4), 172, 181 and 184 of that Act do not have effect.(2) Proceedings under this Division are to be dealt with by a judicial member of the Commission unless the President of the Commission otherwise directs under section 159 of the Industrial Relations Act 1996.(3) Despite section 160 of the Industrial Relations Act 1996, the President of the Commission may not delegate the President’s functions under section 159 of that Act in respect of proceedings under this Division.
180 Matters relating to evidence
(1) Section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 applies to and in respect of a witness giving evidence before the Commission in proceedings under this Division in the same way as it applies to and in respect of a witness giving evidence in proceedings before a court, and so applies as if a reference in that section to a court were a reference to the Commission.(2) Subject to section 178, nothing in this Division limits or otherwise affects the admissibility as evidence in proceedings under this Division of any transcript of the proceedings of any other court or tribunal.
181 Application of Division to both reviews and appeals from review decisions
This Division applies not only to proceedings before the Commission on a review under this Division but also to proceedings before the Full Bench of the Commission on an appeal from a decision of the Commission under this Division.
Division 1B Summary removal of police officers in whom Commissioner does not have confidence
181D Commissioner may remove police officers
(1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer’s suitability to continue as a police officer, having regard to the police officer’s competence, integrity, performance or conduct.(2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister.(3) Before making an order under this section, the Commissioner:(a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer’s suitability to continue as a police officer, and(b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and(c) must take into consideration any written submissions received from the police officer during that period.(4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force.(5) The removal takes effect when the order is made.(6) (Repealed)(7) Except as provided by Division 1C:(a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and(b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section.In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission.
(7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action.(7B) Nothing in Division 1C limits or otherwise affects the Commissioner’s power to vary or revoke an order in force under this section.(8) For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force.(9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action.
Division 1C Review of Commissioner’s decision under Division 1B
(1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust.(2) An application under this section does not operate to stay the operation of the order in respect of which it is made.(3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant’s suitability to continue as a police officer, as referred to in section 181D (1).
(1) In conducting a review under this Division, the Commission must proceed as follows:(a) firstly, it must consider the Commissioner’s reasons for the decision to remove the applicant from the NSW Police Force,(b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust,(c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant’s case.(2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.(3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to:(a) the interests of the applicant, and(b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)).
181G Application of Industrial Relations Act 1996 to reviews
(1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications:(a) section 83 (Application of Part) is to be read as if subsection (3) were omitted,(b) section 85 (Time for making applications) is to be read:(i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and(ii) as if subsection (3) were omitted,(c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant’s claim by conciliation must not subsequently be involved in the conduct of proceedings on the review,(d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted,(e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made,(f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless:(i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or(ii) the Commission gives leave.(2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances:(a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information,(b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously,(c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner’s decision.
181H Commissioner and members of Commissioner’s Advisory Panels compellable witnesses only by leave
(1) In any proceedings before the Commission under this Division, neither the Commissioner nor any member of a Commissioner’s Advisory Panel is compellable to give evidence in relation to the exercise of the Commissioner’s functions under section 181D unless the Commission gives leave.(2) The Commission may give such leave only if it considers that extraordinary grounds exist that warrant leave being given.(3) In this section, Commissioner’s Advisory Panel means a panel established by the Commissioner to assist in the exercise of the Commissioner’s functions under section 181D.
181I Matters relating to evidence
(1) Section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 applies to a witness giving evidence before the Commission in proceedings under this Division in the same way as it applies to a witness giving evidence in proceedings before a court, and so applies as if a reference in that section to a court were a reference to the Commission.(2) Subject to subsection (1) of section 163 (Rules of evidence and legal formality) of the Industrial Relations Act 1996, nothing in this Division limits or otherwise affects the admissibility in evidence in proceedings before the Commission under this Division of any transcript of the proceedings of any other court or tribunal.
181J Application of Division to both reviews and appeals from review decisions
This Division applies not only to proceedings before the Commission on a review under this Division but also to proceedings before the Full Bench of the Commission on an appeal from a decision of the Commission under this Division.
Division 1D Constitution of Industrial Relations Commission for the purposes of proceedings under this Part
181K Constitution of Commission for the purposes of Division 1C
(1) A review under Division 1C is to be conducted before the Industrial Relations Commission (referred to in this Division as the Commission) constituted by a single judicial member.(2) An appeal from the decision of the Commission on a review under Division 1C is to be conducted before a Full Bench of the Commission constituted by 3 judicial members.(3) Proceedings on a review under Division 1C, or on an appeal from the decision of the Commission on a review under Division 1C, are taken not to be proceedings of the Commission in Court Session.
Division 2 Resignation of police officers on recommendation of Police Integrity Commission
182 Acceptance of resignation of police officers in certain cases
(1) The Commissioner is required to accept the resignation of a police officer from the NSW Police Force if:(a) the officer tenders his or her resignation, and(b) the Police Integrity Commission has recommended that the officer be allowed to resign.(2) This section prevails to the extent of any inconsistency with any other provision of this Act.
Division 2A Revocation of promotional appointment because of misconduct in obtaining promotion
183A Revocation of promotional appointment by Commissioner
The Commissioner may, by order (in this Division called a revocation order), revoke an appointment by way of promotion of an officer who, in the Commissioner’s opinion, is found to have engaged in misconduct that has assisted the officer in obtaining the promotion (including obtaining a place on any relevant promotion list) and return the officer to the rank or grade held by the officer before his or her promotion.
183B Making of revocation orders
(1) The Commissioner may make a revocation order whether or not the misconduct has been the subject of a complaint under Part 8A and whether or not the police officer has been prosecuted or convicted for an offence in relation to the misconduct.(2) Before making a revocation order, the Commissioner:(a) must cause to be served on the police officer a notice that identifies the misconduct (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and(b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and(c) must take into consideration any written submissions received from the police officer:(i) during the period of 7 days referred to in paragraph (b), or(ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served.(3) As soon as practicable after making a revocation order, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post.(4) The written notice must contain the terms of the order and must indicate:(a) the misconduct (including all relevant facts and circumstances) on the basis of which the order has been made, and(b) whether the order results from a complaint that has been investigated, or is being investigated, under Division 5 of Part 8A, and(c) the Commissioner’s reasons for making the order.
183C Effect of revocation order
(1) A revocation order:(a) has effect from the date on which it is made, and(b) is not stayed by the lodging of an appeal against it.(2) The making of a revocation order does not prevent the Commissioner from taking action under section 173 or 181D.
183D Review of revocation orders
(1) Division 1A applies to and in respect of a revocation order in the same way as it applies to and in respect of a reviewable action (within the meaning of section 173).(2) Except as provided by Division 1A:(a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this Division, and(b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this Division.(3) Nothing in this Division limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action.(4) Nothing in Division 1A limits or otherwise affects the Commissioner’s power to revoke a revocation order.(5) In this section, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission.
183E Restriction on delegation of Commissioner’s functions
Despite section 31, the Commissioner’s functions under this Division may only be delegated to a member of the NSW Police Force who is senior to the police officer in respect of whom those functions are being exercised.
Division 3 Miscellaneous provisions
184 Conduct and performance of administrative officers
(1) The provisions of Part 2.7 of the Public Sector Employment and Management Act 2002 apply to administrative officers in the same way as they apply to officers of the Public Service.(2) For that purpose:(a) a reference to the appropriate Department Head is to be read as a reference to the Commissioner, and(b) a reference to the Public Service is to be read as a reference to the NSW Police Force.
184A Consultation with Police Integrity Commission before certain action is taken
(1) Before:(a) making an order under section 173 (2) or (3) or 181D (1) with respect to a police officer under PIC investigation, or(b) commencing or authorising the commencement of criminal proceedings against a police officer under PIC investigation,the Commissioner must consult with the Police Integrity Commission.(2) Failure to comply with subsection (1) with respect to any order under section 173 (2) or (3) or 181D (1) does not affect the validity of the order.(3) In this section, police officer under PIC investigation means a police officer in respect of whom the Police Integrity Commission has notified the Commissioner that an investigation of police misconduct is being carried out under the Police Integrity Commission Act 1996.
185 Disciplinary appeals to GREAT by non-executive administrative officers
The provisions of the Government and Related Employees Appeal Tribunal Act 1980 relating to disciplinary appeals apply to administrative officers (not being members of the NSW Police Force Senior Executive Service) as if those officers were employees, and the Commissioner were their employer, within the meaning of that Act.
186 Appeal to GREAT relating to leave when hurt on duty
(1) A police officer may appeal to GREAT against a decision of the Commissioner to grant or refuse leave of absence on full pay to the police officer during any period of absence caused by that officer being hurt on duty within the meaning of section 1 (2) of the Police Regulation (Superannuation) Act 1906.(2) The Government and Related Employees Appeal Tribunal Act 1980 applies to and in respect of an appeal under this section in the same way as it applies to an appeal under Division 2 of Part 3 of that Act.(3) In order to determine the membership of and to constitute GREAT for the purpose of hearing and determining an appeal under this section, a police officer is taken to be an employee and the Commissioner the employer, within the meaning of the Government and Related Employees Appeal Tribunal Act 1980.
(1) The provisions of this Act and the regulations relating to disciplinary proceedings against members of the NSW Police Force apply to conduct before as well as to conduct after the commencement of this Act.(2) This section is subject to Parts 1 and 6 of Schedule 4.