Police Regulation Amendment Act 2007

Police Regulation Amendment Act 2007 No. 67 of 2007 TABLE OF PROVISIONS Section Page 1 Purpose 1 2 Commencement 1 3 Police Recruits 2 4 Breaches of discipline 2 5 New Division 4A of Part IV inserted 2 Division 4A—Testing of Members for Alcohol or Drugs of Dependence 2 85A Definitions 2 85B Testing of members in certain circumstances 4 85C Chief Commissioner may have regard to evidence in certain circumstances 5 85D Taking of sample when member is unconscious or otherwise unable to comply with direction 6 85E Admissibility of test result in certain proceedings 7 85F Confidentiality of test results 8 85G Offence to disclose identifying information 8 85H Regulations 9 6 Continuation of contempt provisions 10 7 Investigations by Director 10 8 Office of Police Integrity 10 9 New sections 102AB to 102AG inserted 11 102AB Appointment of Director, Police Integrity 11 102AC Remuneration and allowances 12 102AD Terms and Conditions 12 102AE Vacancy and resignation 13 102AF Suspension and removal from office 13 102AG Acting appointment 14 10 Section 102C repealed 15 11 Confidentiality 15 12 New section 102IA inserted 15 102IA Disclosure of information to the Ombudsman 15 13 Director's reports to Parliament 16 i -- 1 of 20 -- Section Page 14 New section 135 inserted 16 135 Transitional provision—Police Regulation Amendment Act 2007 16 15 Repeal of Act 16 ═══════════════ ENDNOTES 18 ii -- 2 of 20 -- Victoria Police Regulation Amendment Act 2007† No. 67 of 2007 [Assented to 11 December 2007] The Parliament of Victoria enacts: 1 Purpose The purpose of this Act is to amend the Police Regulation Act 1958 in relation to— (a) the testing of members of the force, protective services officers, police reservists and police recruits for alcohol and drugs of dependence in certain circumstances; and (b) the Office of Police Integrity. 2 Commencement 1 -- 3 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 3 (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 January 2009, it comes into operation on that day. 3 Police Recruits In section 8A(4) of the Police Regulation Act 1958, after "the force" insert "except for the purposes of Division 4A of Part IV". 4 Breaches of discipline After section 69(1)(b) of the Police Regulation Act 1958 insert— "(ba) fails to comply with a direction given under Division 4A of Part IV; or (bb) refuses to consent to the use of evidence derived from a sample in the circumstances referred to in section 85D; or". 5 New Division 4A of Part IV inserted After Division 4 of Part IV of the Police Regulation Act 1958 insert— "Division 4A—Testing of Members for Alcohol or Drugs of Dependence 85A Definitions In this Division— critical incident means an incident involving a member of the force while that member was on duty which— (a) resulted in the death of, or serious injury to, a person; and (b) also involved any one or more of the following— 2 -- 4 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 5 (i) the discharge of a firearm by the member; (ii) the use of force by the member; (iii) the use of a motor vehicle by the member (including as a passenger) in the course of the member's duties; (iv) the death of, or serious injury to, the person while the person was in the custody of the member; drug of dependence has the same meaning as it has in the Drugs, Poisons and Controlled Substances Act 1981; registered medical practitioner has the same meaning as it has in the Health Professions Registration Act 2005; serious injury includes an injury that— (a) is life threatening; or (b) is likely to result in permanent impairment; or (c) is likely to require long-term rehabilitation; or (d) is, in the opinion of the Chief Commissioner, of such nature, or occurred in such circumstances, that the infliction of it is likely to bring the force into disrepute or diminish public confidence in it. 3 -- 5 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 5 85B Testing of members in certain circumstances (1) This section applies to a member of the force if the Chief Commissioner reasonably believes that the member— (a) because of the consumption of alcohol or a drug of dependence by the member, is incapable of performing his or her duties, or is inefficient in performing his or her duties; or (b) has been involved in a critical incident; or (c) ought to be tested for alcohol or a drug of dependence for the good order or discipline of the force. (2) The Chief Commissioner may, in accordance with the regulations, direct a member of the force to whom this section applies to do one or more of the following— (a) furnish a sample of breath; or (b) furnish a sample of urine; or (c) allow a registered medical practitioner to take from the member a sample of the member's blood— for the purpose of testing for the presence of alcohol or a drug of dependence. (3) The Chief Commissioner— (a) must not give a direction under subsection (2) unless satisfied that the results of the testing may be relevant to— 4 -- 6 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 5 (i) the management of the member's performance of his or her duties; or (ii) an investigation under Part IV or IVA in respect of the member; or (iii) a proceeding arising out of, or connected with, any such investigation; and (b) may give a direction in the circumstances referred to in subsection (1)(b) only if— (i) in the case of a critical incident referred to in paragraph (b)(iii) of the definition of critical incident, the direction is given within 3 hours after the critical incident occurred; or (ii) in the case of any other critical incident, the direction is given within a reasonable time after the critical incident occurred. (4) No action lies against a registered medical practitioner in respect of anything properly and necessarily done by the practitioner in the course of taking any sample which the practitioner believes on reasonable grounds was required or allowed to be taken from any member under this Division. (5) Nothing in this section affects the operation of Part 5 of the Road Safety Act 1986. 85C Chief Commissioner may have regard to evidence in certain circumstances The Chief Commissioner may have regard to evidence derived from a sample obtained in 5 -- 7 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 5 accordance with a direction made under this Division in— (a) managing the member's performance of his or her duties; or (b) in any investigation under Part IV or IVA in respect of the member; or (c) in any proceeding arising out of, or connected with, any such investigation. 85D Taking of sample when member is unconscious or otherwise unable to comply with direction (1) If a member of the force whom the Chief Commissioner believes was involved in a critical incident is unconscious or is otherwise unable to comply with a direction given to him or her, the Chief Commissioner may direct a registered medical practitioner to take from the member a sample of the member's blood for analysis for the purpose of testing for the presence of alcohol or a drug of dependence. (2) If a sample of a member's blood is taken in the circumstances referred to in subsection (1), the Chief Commissioner must, upon the member regaining consciousness or otherwise becoming able to comply with a direction given to him or her, advise the member— (a) of the taking of the sample; and (b) that he or she may refuse to consent to the use of any evidence derived from the sample; and (c) that a refusal to consent to the use of the evidence constitutes a breach of discipline under section 69. 6 -- 8 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 5 (3) Evidence derived from a sample obtained in accordance with a direction under subsection (1) must be destroyed if the member from whom the sample was taken refuses to consent to the use of the evidence in the circumstances set out in that subsection. (4) The Chief Commissioner must cause any sample taken under subsection (1) and in respect of which consent is refused under subsection (2) to be destroyed. (5) Nothing in this section affects the operation of Part 5 of the Road Safety Act 1986. 85E Admissibility of test result in certain proceedings (1) Evidence derived from a sample obtained in accordance with a direction made under section 85B or 85D is inadmissible in any proceeding in a court, tribunal or before a person or body authorised to hear and receive evidence. (2) Subsection (1) does not apply— (a) in a proceeding under the Accident Compensation Act 1985 to rebut or support an allegation that the presence of alcohol or a drug of dependence contributed to the injury in respect of which the proceeding was commenced; or (b) in a prosecution under the Occupational Health and Safety Act 2004 to rebut or support an allegation 7 -- 9 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 5 that the presence of alcohol or a drug of dependence contributed to the occurrence of the act, matter or thing constituting the offence in respect of which the prosecution is brought; or (c) in a proceeding arising out of, or connected with, an investigation under Part IV or IVA in respect of the member; or (d) in a proceeding arising out of, or connected with, a critical incident. (3) Subsection (2) does not apply to evidence derived from a sample obtained in accordance with a direction made under section 85D if the member from whom the sample was taken refuses or has refused to consent to the use of the evidence in the circumstances set out in section 85D(2). (4) In this section, a proceeding includes a coronial inquest or inquiry. 85F Confidentiality of test results The Chief Commissioner must ensure that the result of any test conducted in accordance with a direction given under this section is handled in accordance with the regulations. 85G Offence to disclose identifying information (1) A person must not, other than as required or authorised by this Act or the regulations, disclose to any other person the identity of a person to whom or in respect of whom a direction is given under this Division. Penalty: 60 penalty units. 8 -- 10 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 5 (2) Subsection (1) does not apply to disclosure by— (a) the person to whom or in respect of whom a direction is given under this Division; or (b) the Director or a member of staff of the Office of Police Integrity. Note See section 102G(4) for a corresponding offence applicable to the Director and members of staff of the Office of Police Integrity. (3) Subsection (1) does not apply to the disclosure of information in a proceeding of a kind referred to in section 85E(2). 85H Regulations The regulations may make provision for or with respect to— (a) the persons authorised— (i) to administer breath tests or to conduct breath analyses or other tests for the purpose of detecting the presence of alcohol or drugs of dependence; and (ii) to operate equipment for that purpose; (b) the circumstances in which a breath sample, a urine sample or a blood sample may be taken; (c) the procedure for the taking of samples of breath, urine or blood; 9 -- 11 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 6 (d) the devices used in carrying out the breath tests, breath analyses and other tests, including the calibration, inspection and testing of those devices; (e) the accreditation of persons conducting analyses for the presence of drugs of dependence; (f) the procedure for the handling and analysis of samples of urine or blood; (g) offences relating to interference with test results or the testing procedure; (h) the handling and confidentiality of test results.". 6 Continuation of contempt provisions Section 86KD of the Police Regulation Act 1958 is repealed. 7 Investigations by Director After section 86P(5) of the Police Regulation Act 1958 insert— "(6) The Director must not include in any report under subsection (5)(a)(ii) or (iii) any information that discloses the identity of a person to whom, or in respect of whom, a direction has been given under Division 4A of Part IV.". 8 Office of Police Integrity In section 102A of the Police Regulation Act 1958— (a) in subsection (2) omit ", who is to be the same person as the person who holds office as Ombudsman"; (b) subsections (3) and (4) are repealed. 10 -- 12 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 9 9 New sections 102AB to 102AG inserted After section 102A of the Police Regulation Act 1958 insert— "102AB Appointment of Director, Police Integrity (1) The Governor in Council may appoint an eligible person as Director. (2) A person is an eligible person if the Governor in Council is satisfied that he or she— (a) has been, or is qualified for appointment as a judge of— (i) the High Court; or (ii) the Federal Court; or (iii) the Supreme Court of a State or Territory; or (iv) the County Court or a court of another State or Territory of equivalent status to the County Court; and (b) has the ability to carry out the functions and powers of the Director; and (c) is not a member of the Parliament of Victoria or of the Commonwealth or of another State or a Territory of the Commonwealth; and (d) is not, and has not been, a member of the force; and (e) is not, and has not been in the period of 5 years immediately preceding the 11 -- 13 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 9 proposed date of appointment, a member of the police force of the Commonwealth or of another State or Territory of the Commonwealth. (3) The Director must not, without the written approval of the Governor in Council— (a) apply for, or hold, a licence or permit to conduct any trade, business or profession; or (b) conduct any trade, business or profession; or (c) accept any other employment. 102AC Remuneration and allowances (1) The Director is entitled to be paid the remuneration and allowances that are determined by the Governor in Council. (2) The remuneration of the Director cannot be reduced during his or her term of office unless he or she consents to the reduction. 102AD Terms and Conditions (1) Subject to sections 102AE and 102AF, the Director— (a) holds office for the period, not exceeding 5 years, specified in his or her instrument of appointment; and (b) is eligible for re-appointment; and (c) holds office on the terms and conditions specified in his or her instrument of appointment. (2) If a person who has been a judge of the Supreme Court or County Court is appointed as Director, the appointment does not affect 12 -- 14 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 9 any pension or other rights or privileges the person has as a former judge. 102AE Vacancy and resignation The Director ceases to hold office if he or she— (a) resigns by notice in writing delivered to the Governor in Council; or (b) becomes an insolvent under administration; or (c) is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or (d) nominates for election for the Parliament of Victoria or of the Commonwealth or of any other State or any Territory of the Commonwealth; or (e) is removed from office under section 102AF. 102AF Suspension and removal from office (1) The Governor in Council may suspend the Director from office on any of the following grounds— (a) misconduct; (b) neglect of duty; (c) disability; (d) any other ground on which the Governor in Council is satisfied that the Director is unfit to hold office. 13 -- 15 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 9 (2) The Minister must cause to be laid before each House of Parliament a full statement of the grounds of suspension within 7 sitting days of that House after the suspension. (3) The Director must be removed from office by the Governor in Council if each House of Parliament, within 20 sitting days after the day when the statement is laid before it, declares by resolution that the Director ought to be removed from office. (4) The Governor in Council must remove the suspension and restore the Director to office unless each House makes a declaration of the kind specified in subsection (3) within the time specified in that subsection. 102AG Acting appointment (1) The Governor in Council may appoint a person to act in the office of Director— (a) during a vacancy in that office; or (b) during a period or all periods when the person holding that office is absent from duty or is, for any reason, unable to perform the duties of the office. (2) An appointment under subsection (1) is for the period, not exceeding 6 months, that is specified in the instrument of appointment. (3) A person appointed under subsection (1) is eligible for reappointment. (4) The Governor in Council may at any time remove the acting Director from office. (5) While a person is acting in the office of Director, the person— 14 -- 16 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 10 (a) has, and may exercise, all the powers and must perform all the duties of that office; and (b) is entitled to be paid the remuneration and allowances that the Director would have been entitled to for performing those duties.". 10 Section 102C repealed Section 102C of the Police Regulation Act 1958 is repealed. 11 Confidentiality After section 102G(3) of the Police Regulation Act 1958 insert— "(4) The Director or a member of staff of the Office of Police Integrity must not, other than as required or authorised by this Act or the regulations, disclose to any other person the identity of a person to whom or in respect of whom a direction is given under Division 4A of Part IV. Penalty: 120 penalty units or imprisonment for 12 months or both. (5) Subsection (4) does not apply to the disclosure of information in a proceeding of a kind referred to in section 85E(2).". 12 New section 102IA inserted After section 102I of the Police Regulation Act 1958 insert— "102IA Disclosure of information to the Ombudsman 15 -- 17 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 s. 13 The Director may disclose to the Ombudsman any information obtained or received in the course of or as a result of the exercise of the functions of the Director under this Act, being information relevant to the performance of functions or duties by the Ombudsman.". 13 Director's reports to Parliament After section 102J(2) of the Police Regulation Act 1958 insert— "(3) The Director must not include in any report under this section any information that discloses the identity of a person to whom, or in respect of whom, a direction has been given under Division 4A of Part IV.". 14 New section 135 inserted After section 134 of the Police Regulation Act 1958 insert— "135 Transitional provision—Police Regulation Amendment Act 2007 Despite anything to the contrary in section 102AB, the person who held the office of Director immediately before the commencement of that section continues to hold office as Director on and after that commencement on the same terms and conditions until the earliest of the following— (a) a new appointment is made under section 102AB; or (b) the person's term of office ends; or (c) the person resigns or is removed from office.". 15 Repeal of Act 16 -- 18 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 This Act is repealed on 1 January 2010. ═══════════════ 17 -- 19 of 20 -- Police Regulation Amendment Act 2007 No. 67 of 2007 Endnotes ENDNOTES † Minister's second reading speech— Legislative Assembly: 1 November 2007 Legislative Council: 22 November 2007 The long title for the Bill for this Act was "A Bill for an Act to amend the Police Regulation Act 1958 to provide for alcohol and drug testing and to further provide for the Office of Police Integrity and for other purposes." 18 -- 20 of 20 --