Western Australian Consolidated Acts Western Australian Consolidated Acts (1) New evidence shall
not be tendered to the WAIRC during a hearing of an appeal instituted under
this Part unless the Commission grants leave under subsection (2)
or (3).
(2) The WAIRC may
grant the Commissioner of Police leave to tender new evidence if —
(a) the
appellant consents; or
(b) it
is satisfied that it is in the interests of justice to do so.
(3) The WAIRC may
grant the appellant leave to tender new evidence if —
(a) the
Commissioner of Police consents; or
(b) the
Commission is satisfied that —
(i)
the appellant is likely to be able to show that the
Commissioner of Police has acted upon wrong or mistaken information;
(ii)
the new evidence might materially have affected the
Commissioner of Police’s decision to take removal action; or
(iii)
it is in the interests of justice to do so.
(4) In the exercise of
its discretion under subsection (3) the Commission shall have regard
to —
(a)
whether or not the appellant was aware of the substance of the new evidence;
and
(b)
whether or not the substance of the new evidence was contained in a document
to which the appellant had reasonable access,
before his or her
removal from office.
(5) If the
Commissioner of Police is given leave to tender new evidence under
subsection (2), the WAIRC shall give the appellant a reasonable
opportunity to consider the new evidence and the appellant may tender new
evidence without the leave of the WAIRC under this section in response to the
new evidence tendered by the Commissioner.
(6) If the appellant
is given leave to tender new evidence under subsection (3), the WAIRC
shall give the Commissioner a reasonable opportunity to consider the new
evidence.
(7) If, having
considered any new evidence, the Commissioner of Police revokes the removal
action under section 33N(2), the Commissioner shall give the WAIRC notice
of the revocation and the hearing of the appeal is discontinued when the WAIRC
receives the notice.
(8) If the
Commissioner of Police does not give notice under subsection (7), the
hearing of the appeal shall continue but the Commissioner of Police
may —
(a)
reformulate his or her reasons for not having confidence in the
appellant’s suitability to continue as a member, having regard to the
appellant’s integrity, honesty, competence, performance or conduct; and
(b)
tender new evidence without the leave of the WAIRC under this section in
response to the new evidence tendered by the appellant.
(9) Reasons
reformulated under subsection (8)(a) may differ from, or be additional
to, the reasons given to the appellant under section 33L(5)(a).
(10) If the
Commissioner of Police reformulates reasons under
subsection (8)(a) —
(a) the
Commissioner shall give the WAIRC and the appellant notice in writing of the
reasons before the resumption of the hearing of the appeal; and
(b) the
WAIRC shall consider the reasons as if they had been reasons given to the
appellant under section 33L(5)(a).
(11) In this
section —
new evidence means evidence other than evidence
of —
(a) any
document or other material that was examined and taken into account by the
Commissioner of Police in making a decision to take removal action;
(b) the
notice given under section 33L(1);
(c) a
written submission made to the Commissioner of Police by the appellant under
section 33L(2);
(d) the
notice given under section 33L(3)(b); and
(e) a
notification of the removal from office.
[Section 33R inserted by No. 7 of 2003
s. 6.]