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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Police Legislation Amendment (Civil
Liability) Bill 2003
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Acts 2
Schedule 1 Amendment of Employees Liability Act 1991 No 4 3
Schedule 2 Amendment of Law Reform (Vicarious Liability) Act 1983
No 38 4
Schedule 3 Amendment of Police Act 1990 No 47 9
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2003
New South Wales
Police Legislation Amendment (Civil
Liability) Bill 2003
Act No , 2003
An Act to amend the Employees Liability Act 1991 to confirm that police officers
are employees of the Crown for the purposes of that Act; to amend the Law
Reform (Vicarious Liability) Act 1983 to require persons seeking damages for
torts committed by police officers in the performance or purported performance
of their official functions generally to sue the Crown instead of the police
officers concerned; to amend the Police Act 1990 to extend the exclusion from
civil liability of members of NSW Police; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Police Legislation Amendment (Civil Liability) Bill 2003
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Police Legislation Amendment (Civil Liability)
Act 2003.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Acts
The Acts specified in Schedules 13 are amended as set out in those
Schedules.
Page 2
Police Legislation Amendment (Civil Liability) Bill 2003
Amendment of Employees Liability Act 1991 No 4 Schedule 1
Schedule 1 Amendment of Employees Liability
Act 1991 No 4
(Section 3)
Section 2A
Insert after section 2:
2A Police officers
For the avoidance of doubt, a police officer is declared to be
an employee of the Crown for the purposes of this Act.
Page 3
Police Legislation Amendment (Civil Liability) Bill 2003
Schedule 2 Amendment of Law Reform (Vicarious Liability) Act 1983 No 38
Schedule 2 Amendment of Law Reform (Vicarious
Liability) Act 1983 No 38
(Section 3)
[1] Part 1, heading
Insert before section 1:
Part 1 Preliminary
[2] Section 5 Definitions
Insert in alphabetical order in section 5 (1):
court includes a tribunal, and in relation to a claim for
damages means any court or tribunal by or before which the
claim falls to be determined.
legal proceedings means proceedings in a court.
originating process means any statement of claim, summons,
application or other process by means of which legal
proceedings are commenced.
police tort claim--see section 9B (1).
[3] Part 2, heading
Insert before section 7:
Part 2 Vicarious liability of masters for
independent functions
[4] Part 3, heading
Insert before section 8:
Part 3 Vicarious liability of Crown for persons
in its service
Page 4
Police Legislation Amendment (Civil Liability) Bill 2003
Amendment of Law Reform (Vicarious Liability) Act 1983 No 38 Schedule 2
[5] Part 4
Insert after section 8:
Part 4 Legal proceedings for damages for torts
by police officers
9 When torts committed by police officers
In this Part, a tort is committed, or allegedly committed, by a
police officer if the tort is committed, or allegedly committed,
by a person who was a police officer at the time of the tort or
alleged tort (whether or not acting in a personal or official
capacity).
9A Part extends to former police officers
A reference in this Part to a claim against a police officer in
respect of a tort or alleged tort includes a reference to a claim
against a person who was a police officer at the time of the tort
or alleged tort, but who has ceased to be a police officer since
that time.
9B How can police tort claims be made?
(1) A police tort claim is a claim for damages for a tort allegedly
committed by a police officer (the police officer concerned)
in the performance or purported performance of the officer's
functions (including an independent function) as a police
officer, whether or not committed jointly or severally with
any other person.
(2) Except as provided by this Part, a person may not in any legal
proceedings make a police tort claim against the police officer
concerned, but may instead make the claim against the
Crown.
(3) A person who makes a police tort claim against the Crown in
any legal proceedings may join the police officer concerned
as a party to the proceedings only if the Crown denies that it
would be vicariously liable for the alleged tort if it were
established that the police officer concerned had committed
the tort.
Page 5
Police Legislation Amendment (Civil Liability) Bill 2003
Schedule 2 Amendment of Law Reform (Vicarious Liability) Act 1983 No 38
(4) If a person seeks to join a police officer under subsection (3)
as a party to legal proceedings:
(a) the person is not required to file a new originating
process, but may instead amend the existing originating
process, and
(b) the court is to make such orders as it considers
appropriate to enable the existing originating process to
be duly amended, and
(c) nothing in the Limitation Act 1969 precludes the
making of a claim in the amended originating process
for damages against the police officer for the alleged
tort if the amendment to the originating process is made
within 2 months after the Crown denies that it would be
vicariously liable for the alleged tort if it were
established that the police officer had committed the
tort.
9C Court required to make initial determination as to vicarious
liability in any legal proceedings where in issue
If the vicarious liability of the Crown is in issue in any legal
proceedings in which a claim is made for damages for a tort
allegedly committed by a police officer (whether or not it is a
police tort claim) and the Crown and the police officer are
both parties to the proceedings:
(a) subject to paragraph (b)--the court must make an initial
determination as to whether or not the Crown would be
vicariously liable for the tort if it were established that
the tort was committed by the police officer, and
(b) that determination is to be made as soon as is
reasonably practicable during the proceedings unless
the court considers it impracticable in the
circumstances to make such a determination before it
determines whether or not the tort was committed.
9D When court to strike out or dismiss claims against police
officer or Crown
(1) Subject to section 9E, a court must make such orders as it
considers appropriate to ensure that a claim before it for
damages against a police officer for a tort allegedly
committed by the officer is struck out or dismissed if:
Page 6
Police Legislation Amendment (Civil Liability) Bill 2003
Amendment of Law Reform (Vicarious Liability) Act 1983 No 38 Schedule 2
(a) the court makes an initial determination under section
9C that the Crown would be vicariously liable for the
tort if it were established that the tort was committed by
the police officer, or
(b) the Crown concedes that it would be vicariously liable
for the tort if it were established that the tort was
committed by the police officer.
(2) A court must make such orders as it considers appropriate to
ensure that a claim before it for damages against the Crown
for a tort allegedly committed by a police officer is struck out
or dismissed if it makes an initial determination under section
9C that the Crown would not be vicariously liable for the tort
if it were established that the tort was committed by the police
officer.
9E Part does not affect certain claims and legal proceedings
Nothing in this Part:
(a) makes the Crown vicariously liable for a tort committed
by a police officer if it would not otherwise be
vicariously liable for that tort, or
(b) prevents the Crown from bringing legal proceedings
against, or claiming damages or a contribution or
indemnity in any legal proceedings from, a police
officer for a tort committed by the officer, or
(c) prevents the Crown from joining a police officer to
proceedings claiming damages for a tort committed by
the police officer, or
(d) prevents a person from bringing legal proceedings, or
claiming damages in any legal proceedings, against
another person who is not a police officer but who is
jointly or severally liable for a tort committed by a
police officer, or
(e) prevents a person from making a police tort claim
against a police officer in any legal proceedings brought
against the person by the police officer, or
(f) prevents a person from bringing legal proceedings, or
claiming damages in any legal proceedings, against a
police officer for a tort committed by the police officer
otherwise than in the circumstances referred to in
section 8 (1).
Page 7
Police Legislation Amendment (Civil Liability) Bill 2003
Schedule 2 Amendment of Law Reform (Vicarious Liability) Act 1983 No 38
9F Effect of Part on other laws
The provisions of this Part have effect despite any other Act
or law (whether written or unwritten). However, nothing in
this Part affects the operation of the Limitation Act 1969,
except as provided by section 9B (4).
9G Application of Part to pre-commencement torts
(1) This Part extends to torts allegedly committed by police
officers before the commencement of this Part (a pre-
commencement tort).
(2) This Part (other than sections 9B (2), 9C and 9D (2)) also
extends to any legal proceedings to which the Crown is a
party concerning a pre-commencement tort, but only if:
(a) the proceedings are pending on the commencement of
this Part, and
(b) the court has not yet begun a hearing on the merits in the
proceedings.
[6] Part 5, heading
Insert before section 10:
Part 5 Miscellaneous
Page 8
Police Legislation Amendment (Civil Liability) Bill 2003
Amendment of Police Act 1990 No 47 Schedule 3
Schedule 3 Amendment of Police Act 1990 No 47
(Section 3)
[1] Section 213
Omit the section. Insert instead:
213 Protection from personal liability
A member of NSW Police is not liable for any injury or
damage caused by any act or omission of the member in the
exercise by the member in good faith of a function conferred
or imposed by or under this or any other Act or law (whether
written or unwritten).
[2] Schedule 4 Savings, transitional and other provisions
Insert at the end of clause 2 (1):
Police Legislation Amendment (Civil Liability) Act 2003
[3] Schedule 4, Part 20
Insert after Part 19:
Part 20 Provisions consequent on enactment of
Police Legislation Amendment (Civil
Liability) Act 2003
66 Application of amendment to section 213
(1) Section 213 (as substituted by the Police Legislation
Amendment (Civil Liability) Act 2003) extends to any act or
omission of a member of NSW Police that was done, or
omitted to be done, before the commencement of that section.
(2) However, section 213 (as substituted by the Police
Legislation Amendment (Civil Liability) Act 2003) does not
extend to any proceedings in respect of any such act or
omission brought before the commencement of that section.
Page 9
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