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ROYAL COMMISSION (POLICE SERVICE) BILL 1994*
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
On 13 May 1994, the Governor issued a Royal Commission of inquiry by letters
patent under the Public Seal of the State, appointing the Honourable James Roland
Tomson Wood sole commissioner to make inquiry into, and report on, the operations of
the New South Wales Police Service. This Bill applies to and in respect of that Royal
Commission ("the Police Royal Commission").
The objects of this Bill are:
(a) to confer additional powers on the Police Royal Commission paralleling powers
conferred on the Independent Commission Against Corruption by the
Independent Commission Against Corruption Act 1988 ("the ICAC Act"); and
(b) to facilitate the co-operation of public authorities and officials (such as the
Ombudsman) with the Commission's inquiry; and
(c) to assist generally the conduct of the Commission's inquiry.
The functions conferred and imposed on the Police Royal Commission by this Bill
are in addition to those conferred and imposed on Royal Commissions generally by the
Royal Commissions Act 1923.
PART 1--PRELIMINARY
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to
be appointed by proclamation.
* Amended in committee--see table at end of volume.
Clause 3 provides that the Act applies to the Police Royal Commission, including
any Royal Commission by which the Police Royal Commission is altered, extended,
continued or replaced (on the same or similar terms as the Police Royal Commission).
The Act also applies to any other Royal Commission by which a Commissioner is
appointed to report to or otherwise assist the Police Royal Commission.
Clause 4 contains definitions of terms used in the proposed Act and interpretation
provisions. The clause also provides that notes in the text of the proposed Act are
explanatory notes and do not form part of the proposed Act.
Clause 5 explains the relationship between the proposed Act and the Royal
Commissions Act. The functions conferred or imposed on the Police Royal Commission
by the proposed Act are in addition to those conferred or imposed on Royal
Commissions generally by the Royal Commissions Act and nothing in that Act
constrains the exercise of a function conferred or imposed by the proposed Act.
PART 2--OBTAINING INFORMATION, DOCUMENTS AND OTHER
THINGS
Clause 6 gives the Commissioner power to require public authorities and officials to
provide information. (This provision parallels section 21 of the ICAC Act.)
Clause 7 gives the Commissioner power to require any person to attend before the
Commissioner or an officer of the Commission and produce a specified document or
other thing. (This provision parallels section 22 of the ICAC Act.)
Clause 8 allows claims of privilege to be made in respect of certain information,
documents or other things produced to the Commission under clause 6 or 7. (This
provision parallels section 24 of the ICAC Act.)
Clause 9 protects persons from prosecution in respect of certain self-incriminating
statements, documents or other things produced to the Commission. (This provision
parallels section 26 of the ICAC Act.)
Clause 10 gives the Commissioner or an authorised officer of the Commission
power to enter the premises of a public authority or official and inspect and copy
documents for the purpose of investigating conduct which may involve a criminal
offence. A claim of privilege may be made in respect of such documents. (This
provision parallels sections 23 and 25 of the ICAC Act.)
PART 3--ATTENDANCE BEFORE THE COMMISSION
Clause 11 authorises the Commissioner to issue a warrant for the arrest of a person
who fails to attend in answer to a summons to appear before the Commission. This
power is broadly similar to powers conferred on a commissioner under the Royal
Commissions Act. The clause goes on however to confer power on the Commissioner,
for the purposes of investigating conduct which may involve a criminal offence, to issue
a warrant for the arrest of a person whose evidence is required in connection with that
investigation if the Commissioner is satisfied the person is unlikely to attend in answer
to a summons. (This provision parallels section 36 of the ICAC Act.)
Clause 12 empowers the making of a declaration that answers, documents or other
things are given or produced subject to a general objection by the witness concerned, so
as to avoid repeated objections. (This provision parallels section 38 of the ICAC Act. )
Clause 13 provides for the payment of the expenses of a witness attending or
appearing before the Commission. (This provision parallels section 51 of the ICAC
Act.)
Clause 14 provides for the attendance of prisoners before the Commission. (This
provision parallels section 39 of the ICAC Act.)
PART 4--SEARCH AND LISTENING DEVICE WARRANTS
Clause 15 authorises the issue of search warrants by an authorised justice or the
Commissioner in connection with the investigation by the Commission of conduct
which may involve a criminal offence. (This provision parallels section 40 of the ICAC
Act.)
Clause 16 sets out the powers conferred by a search warrant. (This provision
parallels section 41 of the ICAC Act.)
Clause 17 provides for the production of search warrants to the occupier of the
premises being searched. (This provision parallels section 42 of the ICAC Act.)
Clause 18 allow the use of reasonably necessary force to execute a search warrant.
(This provision parallels section 43 of the ICAC Act.)
Clause 19 allows the use of assistants to execute a search warrant. (This provision
parallels section 44 of the ICAC Act.)
Clause 20 provides that a warrant is not to authorise execution by night except in
certain special circumstances. (This provision parallels section 45 of the ICAC Act and
section 19 of the Search Warrants Act 1985.)
Clause 21 specifies when a search warrant expires. (This provision parallels section
46 of the ICAC Act.)
Clause 22 provides for the seizure of certain documents or other things found in the
course of executing a search warrant. (This provision parallels section 47 (1) of the
ICAC Act.)
Clause 23 applies certain provisions of the Search Warrants Act 1985 to search
warrants issued under the proposed Act. (This provision parallels section 48 of the
ICAC Act.)
Clause 24 makes it an offence to obstruct or hinder a person executing a search
warrant. (This provision parallels section 84 of the ICAC Act.)
Clause 25 provides that the Commissioner or an officer of the Commission may
apply for the issue of a warrant authorising the use of a listening device under the
Listening Devices Act 1984. (This provision parallels section 19 (2) of the ICAC Act.)
PART 5--PROTECTION OF WITNESSES AND EVIDENCE
Clause 26 allows the Commissioner to make arrangements for the protection of
witnesses or other persons whose safety may be prejudiced because they have assisted
or are assisting the Commission. (This provision parallels section 50 of the ICAC Act.)
Clause 27 allows the Commissioner to give directions prohibiting the publication of
certain information or evidence given to the Commission. (This section parallels section
112 of the ICAC Act.)
Clause 28 makes it an offence for a person who receives a summons or a notice to
produce information or documents to the Commission to disclose information about the
notice or summons that is likely to prejudice the Commission's inquiry or any aspect of
that inquiry. (This provision parallels section 114 of the ICAC Act.)
Clause 29 provides that the Attorney General may, on the recommendation of the
Commissioner, grant an indemnity from prosecution to a person or give an undertaking
not to use statements made to the Commission as evidence in other proceedings. (This
provision parallels section 49 of the ICAC Act.)
PART 6--SECRECY, DISCLOSURE, ADMISSIBILITY
Clause 30 imposes a duty of secrecy on certain persons who obtain information in
connection with the Commission's inquiry. (This provision parallels section 111 of the
ICAC Act.)
Clause 31 provides that the Ombudsman may furnish certain information obtained
by the Ombudsman to the Commission and may give evidence before the Commission
and produce documents to the Commission. However, the Ombudsman (and his or her
officers) cannot be compelled to give evidence or produce a document.
Clause 32 provides that certain secrecy provisions in other Acts do not apply to the
divulging of information, or the production of any document or other thing, pursuant to
a requirement made by or under the proposed Act or the Royal Commissions Act.
Clause 33 provides that certain documents relating to complaints about police
conduct are admissible in evidence before the Commission.
Clause 34 creates an exception to secrecy provisions contained in the
Telecommunications (Interception) (New South Wales) Act 1987 for proceedings for an
offence under the proposed Act. (This provision parallels an existing exception for
proceedings for an offence under the Royal Commissions Act.)
Clause 35 relates to the competence and compellability of certain witnesses. At
present, the Legal Profession Act 1987 provides that certain persons involved in the
administration of that Act are neither competent nor compellable to give evidence in any
proceedings in respect of any matter in which they were involved in the course of that
administration. This clause creates an exception for proceedings for an offence under the
proposed Act. (This parallels an existing exception for proceedings for an offence under
the Royal Commissions Act.)
Clause 36 creates an exception to secrecy provisions contained in the Privacy
Committee Act 1975 for proceedings for an offence under the proposed Act. In addition,
that Act also provides that certain persons involved in the execution or administration of
that Act are neither competent nor compellable to give evidence in any proceedings in
respect of any information obtained in that execution or administration. This clause
creates an exception for proceedings for an offence under the proposed Act. (These
exceptions parallel existing exceptions for proceedings for an offence under the Royal
Commissions Act.)
Clause 37 applies a provision in the Evidence Act 1898 (which gives members of
the clergy the right to refuse to give evidence of a religious confession) to any hearing
or proceedings to which the proposed Act applies. The provision currently applies to
hearings or proceedings to which the Royal Commissions Act applies.
PART 7--MISCELLANEOUS
Clause 38 authorises the Commissioner to carry out the Commission's inquiry even
though court proceedings are in progress, subject to certain requirements that, as far as
practicable, the inquiry be held in private. (This provision parallels section 18 of the
ICAC Act.)
Clause 39 allows the Commissioner to delegate certain powers to Senior Counsel
Assisting the Commission, to be exercisable only during the illness of the
Commissioner or the absence of the Commissioner from Sydney or the State. (This
provision
section 107 of the ICAC Act.)
Clause 40 provides protection from liability to the Commissioner, any person acting
under the direction of the Commission or the Commissioner and other persons involved
in the Commission's inquiry. (This provision parallels section 109 of the ICAC Act.)
Clause 41 provides that proceedings for an offence under the proposed Act are to be
dealt with summarily before a Local Court.
Clause 42 contains a regulation making power.