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Western Australia
Royal Commission (Police) Bill 2002
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Relationship with Royal Commissions Act 1968 4
Part 2 -- Obtaining information,
documents and other things
5. Power to obtain information 5
6. Power to obtain documents etc. 6
7. Power to enter public premises 6
8. Legal professional privilege 7
Part 3 -- Attendance before the
Commission
9. Arrest of witness 9
10 . Conditional release of a witness 10
11 . Review by Supreme Court 11
Part 4 -- Secrecy, disclosure and
admissibility
12 . Restriction on publication of evidence 12
13 . Restriction on disclosure 12
14 . Application of ACC Act 13
15 . Disclosure of information and giving of evidence by
Parliamentary Commissioner 14
16 . Application of Telecommunications (Interception)
Western Australia Act 1996 14
page i
111--3
Royal Commission (Police) Bill 2002
Contents
Part 5 -- Investigation of police
complaints by Commission
17 . Interpretation 15
18 . Termination of police investigation 15
19 . Termination of Parliamentary Commissioner
investigation 16
20 . This Part does not require information to be disclosed
by Commission 17
Part 6 -- Assumed identities
21 . Interpretation 18
22 . Approval for assumed identity 18
23 . What an approval authorises 19
24 . Duties of agencies and organisations 19
25 . Identity of certain officers not to be disclosed in legal
proceedings 20
26 . Protection from liability 21
27 . Report to Attorney General 22
Part 7 -- Controlled operations and
integrity testing programmes
28 . Interpretation 23
29 . Authorisation of controlled operation 23
30 . Commissioner may authorise integrity testing
programmes 24
31 . Effect of authorisation 26
32 . Protection from liability 26
33 . Evidence 27
34 . Report to Attorney General 27
Part 8 -- Surveillance Devices Act 1998
amended
35 . The Act amended 28
36 . Section 4B inserted 28
page ii
Royal Commission (Police) Bill 2002
Contents
Part 9 -- Telecommunications
(Interception) Western Australia Act
1996 amended
37 . The Act amended 31
38 . Section 3A inserted 31
Part 10 -- Prisons Act 1981 amended
39 . The Act amended 33
40 . Section 22 amended 33
Part 11 -- Miscellaneous
41 . Contempt 34
42 . Victimisation 35
43 . Secrecy 36
44 . Delegation 37
45 . Protection from liability 38
46 . Matter exempt from access 38
47 . Powers do not extend beyond end of Commission 39
48 . Regulations 39
Defined Terms
page iii
Western Australia
LEGISLATIVE COUNCIL
(Transmitted from the Legislative Assembly)
(As amended during consideration in detail)
Royal Commission (Police) Bill 2002
A Bill for
An Act to --
· confer additional powers on the Royal Commission appointed by
a commission dated 12 December 2001 and published in the
Gazette of 28 December 2001;
· assist the conduct of that Royal Commission;
· amend the Surveillance Devices Act 1998 and the
Telecommunications (Interception) Western Australia Act 1996 for
the purposes of the Royal Commission; and
· amend the Prisons Act 1981,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Royal Commission (Police) Bill 2002
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Royal Commission (Police) Act
2002.
5 2. Commencement
This Act comes into operation on the day on which it receives
the Royal Assent.
3. Interpretation
(1) In this Act unless the contrary intention appears --
10 "ACC Act" means the Anti-Corruption Commission Act 1988;
"Commission" means --
(a) the Royal Commission constituted by the person
appointed by the commission dated
12 December 2001 and published in the Gazette of
15 28 December 2001 to inquire into and report on
whether since 1 January 1985 there has been corrupt
conduct or criminal conduct by any Western
Australian police officer; and
(b) any Royal Commission with the same or similar
20 terms of reference as the Royal Commission referred
to in paragraph (a) and which replaces that Royal
Commission,
and includes the person appointed to be the Commission
acting in the exercise of his duty as a Commissioner;
25 "Commissioner" means the person appointed to be the
Commission;
"corrupt conduct" and "criminal conduct" include, but are
not limited to, the meanings given to those phrases by
section 3 of the ACC Act;
page 2
Royal Commission (Police) Bill 2002
Preliminary Part 1
s. 3
"Deputy Parliamentary Commissioner" means a person for
the time being holding the office of Deputy Parliamentary
Commissioner for Administrative Investigations under the
Parliamentary Commissioner Act 1971;
5 "disciplinary measures" means measures under section 8 or 23
of the Police Act 1892 and any related proceedings, hearing
or inquiry;
"legal practitioner" means a practitioner within the meaning of
the Legal Practitioners Act 1893;
10 "1968 Act" means the Royal Commissions Act 1968;
"officer of the Commission" means --
(a) a legal practitioner appointed to assist the
Commission; and
(b) any other person appointed, employed, seconded or
15 engaged to assist the Commission;
"officer of the Parliamentary Commissioner" has the
meaning given to "officer of the Commissioner" by the
Parliamentary Commissioner Act 1971;
"Parliamentary Commissioner" means a person for the time
20 being holding or acting in the office of the Parliamentary
Commissioner for Administrative Investigations under the
Parliamentary Commissioner Act 1971;
"premises" includes any structure, building, aircraft, vehicle,
vessel and place (whether built or not), and any part of it;
25 "public authority" has the same meaning as in the ACC Act;
"public officer" has the same meaning as in The Criminal Code
and includes a former public officer.
(2) For the purposes of this Act the Commission is taken to have
ended when it has delivered its final report under the terms of
30 reference as set out in the commission dated 12 December 2001
or, if those terms are amended, under those terms as so
amended.
page 3
Royal Commission (Police) Bill 2002
Part 1 Preliminary
s. 4
(3) At the time the Commission ends under subsection (2), section
4B of the Surveillance Devices Act 1998, as inserted by section
36, and section 3A of the Telecommunications (Interception)
Western Australia Act 1996, as inserted by section 38, shall
5 each expire.
4. Relationship with Royal Commissions Act 1968
(1) For the purposes of the operation of the Commission, this Act is
to be read as if it formed part of the 1968 Act.
(2) The provisions of this Act are in addition to, and not in
10 derogation of, any provisions of the 1968 Act, except as
specifically provided by this Act.
(3) Nothing in the 1968 Act operates to constrain or restrict the
exercise of a function conferred or imposed by or under this
Act.
page 4
Royal Commission (Police) Bill 2002
Obtaining information, documents and other things Part 2
s. 5
Part 2 -- Obtaining information, documents and
other things
5. Power to obtain information
(1) For the purposes of the Commission's inquiry, the
5 Commissioner may, by written notice served on a public
authority or public officer, require the authority or officer to
produce a statement of information.
(2) A notice under this section must --
(a) specify or describe the information concerned;
10 (b) fix a time and date by which the statement of
information must be produced; and
(c) specify the person (being the Commissioner or an
officer of the Commission) to whom the production is to
be made.
15 (3) The notice --
(a) may provide that the requirement may be satisfied by
some other person acting on behalf of the public
authority or public officer; and
(b) may specify the person or class of persons who may so
20 act.
(4) Subject to section 41, a person who --
(a) fails to comply with a notice served on the person under
this section; or
(b) in purported compliance with a notice served on the
25 person or some other person under this section,
furnishes information knowing it to be false or
misleading in a material particular,
is guilty of a contempt of the Commission.
(5) A statement of information produced by a person in compliance
30 with a notice served under this section is not admissible in
page 5
Royal Commission (Police) Bill 2002
Part 2 Obtaining information, documents and other things
s. 6
evidence against that person in any civil or criminal proceedings
except --
(a) contempt proceedings;
(b) proceedings for an offence against this Act or the 1968
5 Act; or
(c) disciplinary measures.
6. Power to obtain documents etc.
(1) For the purposes of the Commission's inquiry, the
Commissioner may, by written notice served on a person,
10 require the person --
(a) to attend, at a time and place specified in the notice,
before the Commission or an officer of the Commission
as specified in the notice; and
(b) to produce at that time and place to the person so
15 specified a document or other thing specified in the
notice.
(2) The notice --
(a) may provide that the requirement may be satisfied by
some other person acting on behalf of the person on
20 whom it was imposed; and
(b) may specify the person or class of person who may so
act.
(3) Subject to section 41, a person who fails to comply with a notice
served on the person under this section is guilty of a contempt
25 of the Commission.
7. Power to enter public premises
(1) For the purposes of the Commission's inquiry, the
Commissioner or an officer of the Commission authorised in
writing by the Commissioner may, at any time --
30 (a) enter and inspect any premises occupied or used by a
public authority or public officer in that capacity;
page 6
Royal Commission (Police) Bill 2002
Obtaining information, documents and other things Part 2
s. 8
(b) inspect any document or other thing in or on the
premises; and
(c) take copies of any document in or on the premises.
(2) The powers conferred by this section must not be exercised
5 other than for the purpose of investigating any conduct of a
person that constitutes or involves or may constitute or involve
corrupt conduct or criminal conduct.
(3) A public authority or public officer must make available to the
Commissioner or authorised officer such facilities as are
10 necessary to enable the powers conferred by subsection (1) to be
exercised.
(4) Subject to subsection (5), the powers conferred by this section
may be exercised despite --
(a) any rule of law which, in proceedings in a court, might
15 justify an objection to an inspection of the premises or to
the production of a document or other thing on grounds
of public interest;
(b) any privilege of a public authority or public officer in
that capacity which the authority or official could have
20 claimed in a court of law; or
(c) any duty of secrecy or other restriction on disclosure
applying to a public authority or public official.
(5) Nothing in this section affects the operation of the
Parliamentary Privileges Act 1891.
25 8. Legal professional privilege
(1) Subject to subsection (2), nothing in this Act prevents a person
who is required under section 5, 6 or 7 to produce a statement of
information, document or other thing or make facilities
available from claiming legal professional privilege as a reason
30 for not complying with that requirement.
page 7
Royal Commission (Police) Bill 2002
Part 2 Obtaining information, documents and other things
s. 8
(2) Subsection (1) does not apply to any privilege of a public
authority or public officer in that capacity.
page 8
Royal Commission (Police) Bill 2002
Attendance before the Commission Part 3
s. 9
Part 3 -- Attendance before the Commission
9. Arrest of witness
(1) If a person served with a summons under section 9 of the
1968 Act fails to attend as required by the summons and
5 section 10 of that Act, the Commissioner may, on proof by
statutory declaration of the service of the summons, issue a
warrant for the apprehension of that person.
(2) The Commissioner may issue a warrant for the apprehension of
a person whose evidence is desired and is necessary and
10 relevant to the Commission's inquiry if the Commissioner is
satisfied by evidence on oath or affirmation that it is probable
that the person --
(a) will not attend before the Commission to give evidence
without being compelled to do so; or
15 (b) is about to or is making preparation to leave the State
and the person's evidence will not be obtained by the
Commission if the person departs.
(3) The powers conferred by subsection (2) must not be exercised
unless the Commissioner is satisfied that the evidence of the
20 person concerned is required for the purpose of investigating
any conduct of a person that constitutes or involves or may
constitute or involve corrupt conduct or criminal conduct.
(4) A warrant may be issued under subsection (2) without or before
the issue of a summons to the person whose evidence is desired.
25 (5) A warrant may be issued under subsection (2) after the issue of
a summons to the person whose evidence is desired, even
though the time specified in the summons for the person to
attend has not yet passed.
(6) A warrant under this section authorises the apprehension of the
30 person and his or her being promptly brought before the
Commission and detained in custody for that purpose until
released by order of the Commissioner.
page 9
Royal Commission (Police) Bill 2002
Part 3 Attendance before the Commission
s. 10
(7) A warrant issued under this section may be executed by a
member of the Police Force, or by any person to whom it is
addressed, and the person executing it may use such force as is
reasonably necessary for the purpose of entering any premises
5 for the purpose of executing it.
(8) The apprehension of a witness under this section does not
prevent the witness from being dealt with for contempt under
section 41 for non-compliance with the summons.
(9) This section operates in place of section 16 of the 1968 Act.
10 10. Conditional release of a witness
(1) The release of a witness by order of the Commission under
section 9(6) may be made subject to one or more of the
following conditions --
(a) that the witness appear and report before the
15 Commission in accordance with the terms of the order
unless excused from attendance or until released from
further attendance by the Commissioner or an officer of
the Commission;
(b) conditions for the purpose of ensuring the further
20 attendance of the witness before the Commission (for
example, the provision of sureties by the witness, the
surrender of any passport held by the witness, a
requirement as to where the witness is to live and
regular reporting by the witness to the Commission);
25 (c) any other condition that the Commissioner thinks
appropriate.
(2) The Commissioner may by order amend, revoke or add to those
conditions.
(3) A witness who without reasonable excuse fails to comply with a
30 condition to which the release of the witness under section 9(6)
is subject is guilty of an offence.
Penalty: Imprisonment for 2 years and a fine of $8 000.
page 10
Royal Commission (Police) Bill 2002
Attendance before the Commission Part 3
s. 11
11. Review by Supreme Court
(1) A witness who has not been released by the Commissioner
under section 9(6) or whose release under that provision is
subject to one or more conditions may apply to the Supreme
5 Court for a review of the decision not to release the witness or
of the terms of one or more of those conditions.
(2) The Supreme Court may do either or both of the following --
(a) affirm or set aside a decision by the Commissioner not
to release the witness or any condition imposed by the
10 Commissioner on the release of the witness;
(b) make any order that the Commissioner may make in
relation to the detention or release of the witness.
(3) The Supreme Court may also exercise its powers under
subsection (2) where the Commissioner has not made a decision
15 within a reasonable time on the release of a witness.
(4) An order under subsection (2) is taken to be an order of the
Commissioner.
page 11
Royal Commission (Police) Bill 2002
Part 4 Secrecy, disclosure and admissibility
s. 12
Part 4 -- Secrecy, disclosure and admissibility
12. Restriction on publication of evidence
(1) The Commissioner may direct that --
(a) any evidence given before the Commission;
5 (b) the contents of any statement of information, document,
or a description of any thing, produced to the
Commission;
(c) the contents of any document, or a description of any
thing, seized under a search warrant issued under the
10 1968 Act;
(d) any information that might enable a person who has
given or may be about to give evidence before the
Commission to be identified or located;
(e) the fact that any person has given or may be about to
15 give evidence before the Commission,
must not be published or must not be published except in such
manner, and to such persons, as the Commissioner specifies.
(2) A person must not make a publication in contravention of a
direction given under this section.
20 Penalty: Imprisonment for 12 months and a fine of $4 000.
(3) This section operates in place of section 19B of the 1968 Act.
13. Restriction on disclosure
(1) The Commissioner may include a restriction on disclosure in --
(a) a notice under section 5(1) or 6(1) to produce a
25 statement of information or to attend and produce a
document or other thing; or
(b) a summons to attend the Commission to give evidence
or produce a document or other thing.
page 12
Royal Commission (Police) Bill 2002
Secrecy, disclosure and admissibility Part 4
s. 14
(2) A "restriction on disclosure" is a direction that the person
required to comply with the notice or summons must not
disclose to any person except a person specified in the notice or
summons or a person to whom the information may be
5 disclosed under subsection (4) --
(a) the existence or nature of the notice or summons;
(b) the part or aspect of the Commission's inquiry to which
the notice or summons relates; or
(c) any information from which a person could reasonably
10 be expected to infer the existence or nature of the notice
or summons or of the part or aspect of the Commission's
inquiry to which it relates.
(3) A person served with a notice under section 5(1) or 6(1), or a
summons to attend the Commission, that includes a restriction
15 on disclosure must comply with the restriction on disclosure.
Penalty: Imprisonment for 12 months and a fine of $4 000.
(4) A person does not contravene subsection (3) if --
(a) the disclosure is made to an employee, agent or other
person in order to obtain information to comply with the
20 notice or summons and the employee, agent or other
person is directed not to inform the person to whom the
information relates about the matter;
(b) the disclosure is made to obtain legal advice or
representation in relation to the notice or summons; or
25 (c) the disclosure is made for the purposes of, or in the
course of, legal proceedings.
14. Application of ACC Act
(1) Section 14 of the ACC Act does not apply to the Commissioner
or to any officer of the Commission.
30 (2) The ACC Act does not apply to prevent the Commissioner or an
officer of the Commission authorised for the purposes of this
page 13
Royal Commission (Police) Bill 2002
Part 4 Secrecy, disclosure and admissibility
s. 15
section by the Commissioner from furnishing, divulging or
communicating evidence or information, or producing a
document, for the purposes of a function of the Commission.
15. Disclosure of information and giving of evidence by
5 Parliamentary Commissioner
(1) The Parliamentary Commissioner, the Deputy Parliamentary
Commissioner or an officer of the Parliamentary Commissioner
authorised for the purposes of this section by the Parliamentary
Commissioner or Deputy Parliamentary Commissioner, may --
10 (a) disclose to the Commission information obtained in the
course of, or for the purposes of, the Parliamentary
Commissioner Act 1971 or any other Act to the
Commission; and
(b) give evidence before the Commission and produce any
15 document to the Commission, in respect of that
information.
(2) This section applies despite section 23 of the Parliamentary
Commissioner Act 1971 and any other law.
16. Application of Telecommunications (Interception) Western
20 Australia Act 1996
Section 22 of the Telecommunications (Interception) Western
Australia Act 1996 does not apply to prevent the disclosure of
any information or record for the purposes of any proceedings
for an offence under this Act.
page 14
Royal Commission (Police) Bill 2002
Investigation of police complaints by Commission Part 5
s. 17
Part 5 -- Investigation of police complaints
by Commission
17. Interpretation
In this Part --
5 "police complaint" means an allegation or complaint which
concerns or may concern corrupt conduct or criminal
conduct by a person who is or has been a member of the
Police Force of the State.
18. Termination of police investigation
10 (1) If the Commissioner gives to the Commissioner of Police
notification that the Commissioner is investigating a police
complaint or part of a police complaint ("the matter") --
(a) the Commissioner of Police must not commence any
investigation of the matter or, if an investigation of the
15 matter has already commenced, must discontinue the
investigation;
(b) the Commissioner of Police must take all reasonable
steps to ensure that an investigation of the matter is not
conducted by a police officer; and
20 (c) the notification absolves the Commissioner of Police
and other police officers from any duty with respect to
crime and the preservation of the peace so far as it
relates to investigation of the matter or to the bringing of
an offender concerned before the courts to be dealt with
25 according to law.
(2) Subsection (1)(b) does not apply to a special constable who is
an officer of the Commission.
(3) Subsection (1) does not prevent an investigation of the matter
that is conducted in accordance with arrangements made
30 between the Commission and the Commissioner of Police.
page 15
Royal Commission (Police) Bill 2002
Part 5 Investigation of police complaints by Commission
s. 19
(4) Despite subsection (1), an investigation of the matter by the
Commissioner of Police may be commenced or resumed --
(a) if the Commissioner notifies the Commissioner of
Police that the Commissioner has completed or
5 discontinued investigation of the matter; or
(b) after the end of the Commission.
19. Termination of Parliamentary Commissioner investigation
(1) If the Commissioner gives to the Parliamentary Commissioner
notification that the Commissioner is investigating a police
10 complaint or part of a police complaint ("the matter") --
(a) the Parliamentary Commissioner must not commence
any investigation of the matter or, if an investigation of
the matter has already commenced, must discontinue the
investigation;
15 (b) the Parliamentary Commissioner must take all
reasonable steps to ensure that an investigation of the
matter is not conducted by the Deputy Parliamentary
Commissioner or an officer of the Parliamentary
Commissioner; and
20 (c) the notification absolves the Parliamentary
Commissioner from any duty under the Parliamentary
Commissioner Act 1971 so far as it relates to
investigation of the matter.
(2) Subsection (1) does not prevent an investigation of the matter
25 that is conducted in accordance with arrangements made
between the Commission and the Parliamentary Commissioner.
(3) Despite subsection (1), an investigation of the matter by the
Parliamentary Commissioner may be commenced or
resumed --
30 (a) if the Commissioner notifies the Parliamentary
Commissioner that the Commissioner has completed or
discontinued investigation of the matter; or
page 16
Royal Commission (Police) Bill 2002
Investigation of police complaints by Commission Part 5
s. 20
(b) after the end of the Commission.
20. This Part does not require information to be disclosed by
Commission
Nothing in this Part is to be construed as requiring the
5 Commission to disclose any information to the Commissioner
of Police or the Parliamentary Commissioner.
page 17
Royal Commission (Police) Bill 2002
Part 6 Assumed identities
s. 21
Part 6 -- Assumed identities
21. Interpretation
In this Part --
"agency", "chief employee", "chief executive officer" and
5 "organisation" have the same meanings as in the Public
Sector Management Act 1994.
22. Approval for assumed identity
(1) The Commissioner may grant an approval (an "assumed
identity approval") for the acquisition and use of an assumed
10 identity by an officer of the Commission.
(2) The approval --
(a) must be in writing;
(b) may specify documents that may be acquired for use as
evidence of the assumed identity;
15 (c) can cover more than one assumed identity;
(d) must be signed by the Commissioner.
(3) The approval may be granted subject to conditions specified in
the approval.
(4) The Commissioner may, in writing, vary or cancel the approval.
20 (5) Unless it is sooner cancelled, the approval remains in force until
the Commission ends.
(6) If an approval ceases to be in force the Commissioner must
notify each chief executive officer and chief employee who
issued a document under section 24 in accordance with the
25 approval.
page 18
Royal Commission (Police) Bill 2002
Assumed identities Part 6
s. 23
23. What an approval authorises
(1) An assumed identity approval authorises the officer to whom it
applies to acquire and use an assumed identity specified in the
approval if the acquisition or use --
5 (a) is in the course of duty; and
(b) is in accordance with the assumed identity approval.
(2) The officer can use an assumed identity under the authority of
an assumed identity approval without having actually acquired
the identity.
10 (3) An assumed identity approval also authorises --
(a) the making (by the officer to whom the approval applies
or by the Commissioner) of any false or misleading
representation about the officer, for the purposes of or in
connection with the acquisition or use of the assumed
15 identity by the officer; and
(b) the use by the officer of the assumed identity to obtain
evidence of the identity.
24. Duties of agencies and organisations
(1) The chief executive officer or chief employee of an agency or
20 organisation to whom an assumed identity approval is presented
is authorised and required --
(a) to prepare and provide to the Commissioner or an
officer of the Commission the documents specified in
the approval; and
25 (b) to make an appropriate entry in respect of the assumed
identity in each register or record, relevant to those
documents, kept by the agency or organisation.
(2) On being directed by the Commissioner to cancel an assumed
identity, a chief executive officer or chief employee, is
30 authorised and required to cancel any evidence of identity or
entry in a register or record provided or made in respect of the
assumed identity.
page 19
Royal Commission (Police) Bill 2002
Part 6 Assumed identities
s. 25
(3) In subsection (1) --
"appropriate entry", in respect of an assumed identity, means
a written or electronic entry that, either alone or with other
entries, is not inconsistent with the assumed identity being
5 a real identity.
25. Identity of certain officers not to be disclosed in legal
proceedings
(1) If, in proceedings before a court, the identity of an officer in
respect of whom an assumed identity approval is or was in force
10 may be disclosed, the court must, unless it considers that the
interests of justice otherwise require --
(a) ensure that such parts of the proceedings as relate to the
real identity of the officer are held in private; and
(b) make such orders as to the suppression of evidence
15 given before it as, in its opinion, will ensure that the
identity of the officer is not disclosed.
(2) In particular, the court --
(a) may allow an officer in respect of whom an assumed
identity approval was or is in force to appear before it
20 under the assumed identity or under a code name or
code number; and
(b) may make orders prohibiting the publication of any
information (including information derived from
evidence before it) that identifies, or might facilitate the
25 identification of, any person who has been or is
proposed to be called to give evidence.
(3) A person who discloses information in contravention of an order
in force under this section is guilty of a crime.
Penalty: Imprisonment for 5 years and a fine of $100 000.
page 20
Royal Commission (Police) Bill 2002
Assumed identities Part 6
s. 26
(4) In this section --
"court" includes any tribunal, authority or person having power
to require the production of documents or the answering of
questions.
5 26. Protection from liability
(1) Despite any other law --
(a) an officer of the Commission who acquires and uses an
assumed identity under this Part is not criminally liable
for any act the officer does in good faith in accordance
10 with the assumed identity approval; and
(b) a chief executive officer or chief employee who engages
in conduct that, apart from this section, would constitute
an offence against a law of the State is not criminally
liable for the offence if the chief executive officer or
15 chief employee engages in the conduct in response to an
assumed identity approval.
(2) Conduct of --
(a) the Commissioner;
(b) a chief executive officer or chief employee; or
20 (c) an officer of the Commission,
does not, if the conduct was in good faith and for the purpose of
executing this Part, subject the Commissioner, chief executive
officer, chief employee or officer of the Commission to any
action, claim, liability or demand.
25 (3) A certificate signed by the Commissioner stating that --
(a) a chief executive officer or chief employee is authorised
by section 23 to prepare and provide a specified
document or make a specified entry; or
page 21
Royal Commission (Police) Bill 2002
Part 6 Assumed identities
s. 27
(b) on a specified date, or during a specified period, a
specified officer of the Commissioner was authorised to
acquire and use a specified assumed identity in
accordance with specified conditions,
5 is admissible in any legal proceedings and is conclusive
evidence of the matters specified in the certificate.
27. Report to Attorney General
(1) The Commission may furnish to the Attorney General a report
containing information relating to --
10 (a) assumed identity approvals issued under this Part; and
(b) such other matters relating to the approvals as the
Commission considers appropriate.
(2) The Attorney General is to cause a report furnished by the
Commission under subsection (1) to be laid before each House
15 of Parliament as soon as practicable.
page 22
Royal Commission (Police) Bill 2002
Controlled operations and integrity testing programmes Part 7
s. 28
Part 7 -- Controlled operations and integrity testing
programmes
28. Interpretation
In this Part --
5 "controlled activity" means an activity that, but for section 32,
would be unlawful;
"controlled operation" means an operation --
(a) in which one or more officers of the Commission
participate for the purpose of obtaining or facilitating
10 the obtaining of evidence of corrupt conduct or
criminal conduct by a police officer; and
(b) which involves or may involve a controlled activity.
29. Authorisation of controlled operation
(1) The Commissioner may authorise a controlled operation.
15 (2) The authorisation must --
(a) be in writing;
(b) specify the officer of the Commission responsible for
the operation;
(c) specify the names of any officers of the Commission
20 who are authorised to participate in the operation;
(d) identify the controlled operation;
(e) specify the nature of the particular controlled activities
in which officers of the Commission are authorised to
engage;
25 (f) specify a period, not exceeding 6 months, for which the
authorisation is given;
(g) specify a date and time, being not earlier than its
signing, when the authorisation comes into force; and
(h) be signed by the Commissioner.
page 23
Royal Commission (Police) Bill 2002
Part 7 Controlled operations and integrity testing programmes
s. 30
(3) For the purposes of subsection (2)(d) a controlled operation may
be identified by reference to a plan of the controlled operation
held by the Commissioner.
(4) A person is sufficiently identified for the purposes of
5 subsection (2)(b) or (c) if the person is identified --
(a) by an assumed identity under which the person is
operating; or
(b) by a code name or number,
so long as the assumed identity, code name or code number can
10 be matched to the person's identity by reference to
documentation kept by the Commissioner.
(5) The authorisation may be granted subject to conditions specified
in the authorisation.
(6) The Commissioner may, in writing, vary or cancel the
15 authorisation.
(7) Unless it is sooner cancelled, an authorisation remains in force
for the period specified in the authority.
30. Commissioner may authorise integrity testing programmes
(1) The Commissioner may authorise an officer of the Commission
20 or another person to conduct a programme (an "integrity
testing programme") to test the integrity of any particular
police officer or class of police officers.
(2) An integrity testing programme may involve an act or omission
(by a person who is participating in the programme) that offers a
25 police officer whose integrity is being tested the opportunity to
engage in behaviour, whether lawful or unlawful, in
contravention of the principles of integrity required of a police
officer.
(3) The authorisation must --
30 (a) be in writing;
page 24
Royal Commission (Police) Bill 2002
Controlled operations and integrity testing programmes Part 7
s. 30
(b) specify the officer of the Commission responsible for
the programme;
(c) specify the names of any persons who are authorised to
participate in the programme;
5 (d) identify the integrity testing programme;
(e) specify the nature of the particular activities in which
the persons specified in the authorisation are authorised
to engage;
(f) specify a period, not exceeding 6 months, for which the
10 authorisation is given;
(g) specify a date and time, being not earlier than its
signing, when the authorisation comes into force; and
(h) be signed by the Commissioner.
(4) For the purposes of subsection (3)(d) an integrity testing
15 programme may be identified by reference to a plan of the
programme held by the Commissioner.
(5) A person is sufficiently identified for the purposes of
subsection (3)(b) or (c) if the person is identified --
(a) by an assumed identity under which the person is
20 operating; or
(b) by a code name or number,
so long as the assumed identity, code name or code number can
be matched to the person's identity by reference to
documentation kept by the Commissioner.
25 (6) The authorisation may be granted subject to conditions specified
in the authorisation.
(7) The Commissioner may, in writing, vary or cancel the
authorisation.
(8) Unless it is sooner cancelled, an authorisation remains in force
30 for the period specified in the authority.
page 25
Royal Commission (Police) Bill 2002
Part 7 Controlled operations and integrity testing programmes
s. 31
31. Effect of authorisation
(1) While it is in force, an authorisation for a controlled operation
or integrity testing programme authorises each person
authorised to participate in the operation or programme to
5 engage in the activities identified in the authorisation.
(2) In any criminal proceedings, no evidence is to be excluded and
no proceedings are to be stayed only by reason of the fact that a
person who participated in an authorised controlled operation or
authorised integrity testing programme was not authorised to
10 participate in the operation.
32. Protection from liability
(1) Despite any other law --
(a) a person who is authorised to participate in an
authorised controlled operation or authorised integrity
15 testing programme is not criminally liable for any act
the person does, in good faith and in accordance with
the terms of the authorisation, in the course of the
operation or programme; and
(b) an activity engaged in by a person who is authorised to
20 participate in an authorised controlled operation or
authorised integrity testing programme in the course of
or for the purpose of the operation or programme does
not constitute corrupt conduct or criminal conduct if the
activity is engaged in in good faith and in accordance
25 with the terms of the authorisation.
(2) Conduct of --
(a) the Commissioner; or
(b) a participant in an authorised controlled operation or
authorised integrity testing programme,
30 does not, if the conduct was in good faith and for the purpose of
executing this Part, subject the Commissioner or participant to
any action, claim, liability or demand.
page 26
Royal Commission (Police) Bill 2002
Controlled operations and integrity testing programmes Part 7
s. 33
33. Evidence
A certificate signed by the Commissioner stating that, on a
specified date or during a specified period, a specified person
was authorised under this Part to participate in a controlled
5 operation or integrity testing programme involving a specified
act or omission is admissible in any legal proceedings and is
conclusive evidence of the matters specified in the certificate.
34. Report to Attorney General
(1) The Commission may furnish to the Attorney General a report
10 containing information relating to --
(a) authorisations issued under this Part; and
(b) such other matters relating to authorised controlled
operations and integrity testing as the Commission
considers appropriate.
15 (2) The Attorney General is to cause a report furnished by the
Commission under subsection (1) to be laid before each House
of Parliament as soon as practicable.
page 27
Royal Commission (Police) Bill 2002
Part 8 Surveillance Devices Act 1998 amended
s. 35
Part 8 -- Surveillance Devices Act 1998 amended
35. The Act amended
The amendments in this Part are to the Surveillance Devices
Act 1998*.
5 [* Act No. 56 of 1998.
For subsequent amendments see Act No. 35 of 2001.]
36. Section 4B inserted
After section 4A the following section is inserted in Part 1 --
"
10 4B. Application of Act to Royal Commission into the
Police
(1) In this section --
"corrupt conduct" has the same meaning as in the
Royal Commission (Police) Act 2002;
15 "Royal Commission" has the same meaning as
"Commission" in the Royal Commission (Police)
Act 2002.
(2) This Act operates as if --
(a) a reference in this Act to the Anti-Corruption
20 Commission, other than in a provision listed in
the Table to this subsection, included a
reference to the Royal Commission;
(b) a reference in this Act to an Anti-Corruption
Commission officer, other than in the
25 definitions in section 3(1) of "Anti-Corruption
Commission Officer" and "authorised person",
included a reference to an officer of the
Commission within the meaning of the Royal
Commission (Police) Act 2002; and
page 28
Royal Commission (Police) Bill 2002
Surveillance Devices Act 1998 amended Part 8
s. 36
(c) a reference in this Act to an authorised person
included, in the case of the Royal Commission,
a reference to a person authorised by the Royal
Commission.
5 Table
s. 3(1) "Anti-Corruption Commission" s. 43(2)
s. 3(1) "authorised person" s. 43(4)
s. 9(2)(a)(iii) s. 44(1)(f)
s. 15(3)(b)
(3) This Act operates as if, for the purposes of the Royal
Commission, in the provisions listed in the Table to
this subsection --
(a) a reference to a suspected criminal offence
10 included a reference to suspected corrupt
conduct;
(b) a reference to an offence included a reference
to an act of corrupt conduct; and
(c) a reference to a suspected offence included a
15 reference to suspected corrupt conduct.
Table
s. 5(3)(b) s. 13(8)(a)
s. 6(3)(b)(ii) s.17(1)(a) and (b)
s. 13(1)(a) and (b)
(4) Section 9(2)(a) operates as if it included the following
subparagraph --
"
20 (iiia) to the Royal Commission or to any
person or persons authorised for the
purpose by the Royal Commission;
".
page 29
Royal Commission (Police) Bill 2002
Part 8 Surveillance Devices Act 1998 amended
s. 36
(5) Section 15(3) operates as if it included the following
paragraph --
"
(ba) in the case of an application by an officer of the
5 Royal Commission, is required to attach an
authorisation of the Royal Commission or a
person delegated by the Royal Commission for
the action proposed;
".
10 (6) The Royal Commission may furnish to the Attorney
General a report containing information relating to --
(a) applications for warrants and extensions of
warrants, including the number of such
applications and the orders made in respect of
15 such applications;
(b) applications for emergency authorisations,
including the number of such applications and
the authorisations issued in respect of such
applications; and
20 (c) such other matters relating to the use of
surveillance devices and the administration of
this Act as the Commission considers
appropriate.
(7) The Attorney General shall cause a report furnished by
25 the Royal Commission under subsection (6) to be laid
before each House of Parliament as soon as practicable.
(8) Section 44(1) operates as if the reference in
paragraph (f) to the chairman of the Anti-Corruption
Commission included a reference to the Royal
30 Commission.
".
page 30
Royal Commission (Police) Bill 2002
Telecommunications (Interception) Western Australia Act 1996 Part 9
amended
s. 37
Part 9 -- Telecommunications (Interception) Western
Australia Act 1996 amended
37. The Act amended
The amendments in this Part are to the Telecommunications
5 (Interception) Western Australia Act 1996*.
[* Act No. 44 of 1996.
For subsequent amendments see Act No. 1 of 2000.]
38. Section 3A inserted
After section 3 the following section is inserted in Part 1 --
10 "
3A. Application of Act to Royal Commission into the
Police
This Act operates as if in section 3(1) --
(a) the following definition were included --
15 "
"Royal Commission" has the same meaning as
"Commission" in the Royal Commission (Police)
Act 2002;
";
20 (b) the definition of "agency" included the
following paragraph --
" (bb) the Royal Commission; ";
(c) the definitions of "certifying officer" and "chief
officer" included the following paragraph --
25 "
(aa) in relation to the Royal Commission, the
person appointed to be the Royal
Commission;
";
page 31
Royal Commission (Police) Bill 2002
Part 9 Telecommunications (Interception) Western Australia Act 1996
s. 38
(d) instead of the definition of "eligible authority"
the following definition were included --
"
"eligible authority" means the Anti-Corruption
5 Commission, the Royal Commission or the Police
Force;
";
(e) the definition of "officer" included the
following paragraph --
10 "
(aa) in relation to the Royal Commission, an
officer of the Commission within the
meaning of the Royal Commission (Police)
Act 2002;
15 ";
and
(f) the definition of "responsible Minister"
included the following paragraph --
"
20 (aa) in relation to the Royal Commission, the
Attorney General;
".
".
page 32
Royal Commission (Police) Bill 2002
Prisons Act 1981 amended Part 10
s. 39
Part 10 -- Prisons Act 1981 amended
39. The Act amended
The amendments in this Part are to the Prisons Act 1981*.
[* Reprinted as at 22 December 2000.]
5 40. Section 22 amended
Section 22 is amended as follows:
(a) by inserting before "Where" the subsection designation
"(1)";
(b) by deleting ", inquest or Royal Commission" and
10 inserting instead --
" or inquest ";
(c) at the end of the section by inserting the following
subsection --
"
15 (2) Where the presence of a prisoner is required for the
purposes of a Royal Commission, a Commissioner
appointed to be the Commission or to be a member of
the Commission, or the superintendent of the prison in
which the prisoner is confined, may, by order in
20 writing, direct that the prisoner be brought up for those
purposes to the place named in the order.
".
page 33
Royal Commission (Police) Bill 2002
Part 11 Miscellaneous
s. 41
Part 11 -- Miscellaneous
41. Contempt
(1) Where a contempt of the Commission is alleged to have taken
place, the Commissioner may present to the Supreme Court a
5 certificate setting out the details of the act or omission that the
Commissioner considers constitutes the alleged contempt.
(2) A certificate presented under subsection (1) is prima facie
evidence of the matters certified within it.
(3) Where a certificate is presented under subsection (1), the
10 Supreme Court has jurisdiction as if the contempt were a
contempt of that Court.
(4) If, in relation to the Commission, there is any failure, refusal or
contravention referred to in section 13(1), 14(1) or 18(10) of the
1968 Act, it may be dealt with under this section as a contempt
15 of the Commission, and any defence that would have been
available in proceedings under those sections in respect of the
failure, refusal or contravention is available under this section.
(5) A person is not liable to be punished for contempt under this
section in respect of failure to comply with a notice served
20 under section 5 or 6 of this Act if --
(a) the person establishes that there was a reasonable excuse
for the act or omission concerned; or
(b) in the case of a failure without reasonable excuse to
produce any document or other thing under section 6,
25 the person proves that the document or other thing was
not relevant to the inquiry.
(6) Except as otherwise provided in this Act, a person required to
comply with a notice served under section 5 or 6 has the same
protection, and is subject to the same liabilities in any civil or
30 criminal proceedings, as a witness in any case tried in the
Supreme Court.
page 34
Royal Commission (Police) Bill 2002
Miscellaneous Part 11
s. 42
(7) In this section --
"reasonable excuse" means an excuse that would excuse a
similar failure by a witness, or a person summoned as a
witness, before the Supreme Court except that it does not
5 include as an excuse for failing to comply with a notice
that --
(a) the production of the statement of information,
document or other thing as required in the notice or
summons might incriminate or tend to incriminate the
10 person or render the person liable to a penalty; or
(b) the production of the document or other thing would
be in breach of an obligation of the person not to
disclose information, or not to disclose the existence
or contents of a document, whether the obligation
15 arose under an enactment or otherwise.
42. Victimisation
(1) A person who --
(a) prejudices, or threatens to prejudice, the safety or career
of another person;
20 (b) intimidates or harasses, or threatens to intimidate or
harass another person; or
(c) does any act that is, or is likely to be, to the detriment of
another person,
because that other person --
25 (d) has assisted, is assisting or will or may in the future
assist the Commission in the performance of its
functions; or
(e) has furnished, is furnishing or will or may in the future
furnish information to the Commission,
30 is guilty of a crime.
Penalty: Imprisonment for 5 years and a fine of $100 000.
page 35
Royal Commission (Police) Bill 2002
Part 11 Miscellaneous
s. 43
(2) This section operates in place of sections 29 and 30 of the
1968 Act.
43. Secrecy
(1) An officer of the Commission must not, directly or indirectly --
5 (a) make a record of any information; or
(b) divulge or communicate any information,
being information acquired by the person by reason of, or in the
course of, the exercise of the person's functions as an officer of
the Commission.
10 Penalty: Imprisonment for 2 years and a fine of $8 000.
(2) The Commissioner or an officer of the Commission cannot be
required --
(a) to produce in any court any document or other thing that
has come into the person's possession, custody or
15 control by reason of, or in the course of, the exercise of
the person's functions as Commissioner or an officer of
the Commission; or
(b) to divulge or communicate to any court any matter or
thing that has come to the person's notice in the exercise
20 of the person's functions as Commissioner or an officer
of the Commission,
except for the purposes of --
(c) a prosecution in respect of corrupt conduct or criminal
conduct; or
25 (d) disciplinary measures.
(3) Subsection (1) does not prevent the recording, divulging or
communicating of information or the production of a
document --
(a) for the purposes of the Commission's inquiry and report
30 or otherwise for the purposes of and in accordance with
this Act or the 1968 Act;
page 36
Royal Commission (Police) Bill 2002
Miscellaneous Part 11
s. 44
(b) for the purposes of a prosecution or disciplinary
measures;
(c) for the purposes of compliance with the
Telecommunications (Interception) Western Australia
5 Act 1996;
(d) in accordance with a direction of the Commissioner, if
the Commissioner certifies that it is necessary to do so
in the public interest; or
(e) to any prescribed authority or person.
10 (4) An authority or person to whom information is divulged or
communicated or a document is given under subsection (3), and
any person or employee under the control of that authority or
person, is subject to the same rights, privileges, obligations and
liabilities under subsections (1) and (2) in respect of that
15 information as if he or she were a person to whom this section
applies and had acquired the information in the exercise of the
person's functions as Commissioner or an officer of the
Commission.
(5) In this section --
20 "court" includes any tribunal, authority or person having power
to require the production of documents or the answering of
questions;
"produce" includes permit access to.
44. Delegation
25 (1) The Commissioner may delegate any of the Commission's
functions under --
(a) section 5, 6 or 7 of this Act; or
(b) section 9 or 10 of the 1968 Act,
to the person appointed as Senior Counsel Assisting the
30 Commission.
page 37
Royal Commission (Police) Bill 2002
Part 11 Miscellaneous
s. 45
(2) The person to whom a function is delegated under
subsection (1) may only perform that function during the illness
of the Commissioner or the absence of the Commissioner from
Perth or the State.
5 45. Protection from liability
(1) A matter or thing done by the Commission, the Commissioner
or any person acting under the direction of the Commission or
Commissioner which was done in good faith for the purposes of
the Commission's inquiry or report or for the purpose of
10 executing this or any other Act does not subject the
Commissioner or the person so acting personally to any action,
liability, claim or demand.
(2) No criminal or civil liability attaches to any person for
compliance or purported compliance in good faith with any
15 requirement made under this Act.
(3) In particular, if a person gives any statement of information or
produces any document or other thing under section 5 or 6, no
civil liability attaches to the person for doing so, whether that
liability would arise under a contract or otherwise.
20 (4) Any protection or immunity afforded by the 1968 Act and any
protection existing apart from that Act and this section apply to
any matter or thing done by the Commission, the Commissioner
or any person acting under the direction of the Commission or
Commissioner as if the matter or thing were done under that
25 Act.
46. Matter exempt from access
Without limiting Schedule 1 clause 5(1) of the Freedom of
Information Act 1992, matter created or maintained for the
purposes of Part 6 or 7 is exempt matter for the purposes of that
30 Act.
page 38
Royal Commission (Police) Bill 2002
Miscellaneous Part 11
s. 47
47. Powers do not extend beyond end of Commission
The powers conferred by sections 5, 6, 7, 9, 12, 18, 19, 22, 29
and 30 cannot be exercised after the end of the Commission.
48. Regulations
5 The Governor may make regulations prescribing all matters that
are required or permitted by this Act, or are necessary or
convenient for giving effect to the purposes of this Act and in
particular for the further implementation of Parts 6 and 7.
page 39
Royal Commission (Police) Bill 2002
Part 11 Miscellaneous
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
1968 Act ..................................................................................................... 3(1)
ACC Act ..................................................................................................... 3(1)
agency............................................................................................................ 21
appropriate entry ........................................................................................24(3)
assumed identity approval ..........................................................................22(1)
chief employee ............................................................................................... 21
chief executive officer .................................................................................... 21
Commission ................................................................................................ 3(1)
Commissioner ............................................................................................. 3(1)
controlled activity........................................................................................... 28
controlled operation........................................................................................ 28
corrupt conduct ......................................................................................3(1), 36
court ............................................................................................... 25(4), 43(5)
criminal conduct.......................................................................................... 3(1)
Deputy Parliamentary Commissioner........................................................... 3(1)
disciplinary measures .................................................................................. 3(1)
eligible authority ............................................................................................ 38
integrity testing programme........................................................................30(1)
legal practitioner ......................................................................................... 3(1)
officer of the Commission ........................................................................... 3(1)
officer of the Parliamentary Commissioner .................................................. 3(1)
organisation ................................................................................................... 21
Parliamentary Commissioner ....................................................................... 3(1)
police complaint............................................................................................. 17
premises...................................................................................................... 3(1)
produce ......................................................................................................43(5)
public authority ........................................................................................... 3(1)
public officer............................................................................................... 3(1)
reasonable excuse.......................................................................................41(7)
restriction on disclosure..............................................................................13(2)
Royal Commission ................................................................................... 36, 38
the matter ........................................................................................ 18(1), 19(1)
page 40
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