POLICE SERVICE ADMINISTRATION AND OTHER LEGISLATION AMENDMENT BILL 2008 Explanatory Notes
POLICE SERVICE ADMINISTRATION AND OTHER LEGISLATION AMENDMENT BILL 2008
Police Service Administration and Other Legislation Amendment Bill 2008
Police Service Administration and Other
Legislation Amendment Bill 2008
Explanatory Notes
General Outline
Objective of the Legislation
The Police Service Administration and Other Legislation Amendment Bill
2008 (the Bill) aims to provide for an Act which:
(a) allows the Queensland Police Service to participate in national
information sharing initiatives; and
(b) facilitates the exchange of information between the Queensland Police
Service and other police services of the Commonwealth and other
States and specified agencies, approved by Government, for use when
performing a policing function or a law enforcement function.
Means of Achieving Policy Objectives
The Bill achieves the objectives by amending the Police Service
Administration Act 1990 (the Act).
Alternative Means of Achieving Policy Objectives
There are no alternative means of achieving the policy objectives other than
by legislative reform.
The Bill removes legislative barriers to the communication and sharing of
detailed nationwide police information via a secure electronic exchange. It
also allows for the continued provision of specific policing information to
selected Commonwealth and State Departments without interfering in
current requirements for the Commissioner to provide policing information
under various existing Acts.
Additionally, the design of the Queensland Police Service (QPS) data base
known as QPRIME is such that the terminology currently utilised in the
Act when referencing the present databases, will be redundant, therefore
requiring update to ensure the legislation remains workable.
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Police Service Administration and Other Legislation Amendment Bill 2008
Estimated Cost of Implementation
There are no foreseeable increased financial implications for government
expenditure from implementation of this proposal.
Consistency with Fundamental Legislative Principles
The proposed legislation overrides the provisions of the Criminal Law
(Rehabilitation of Offenders) Act 1986 and the Juvenile Justice Act 1992 to
allow for the disclosure of information relating to spent convictions and
information relevant to investigations relating to juveniles. This is
information that would not normally be disclosed such as cautions and
conferences relating to juveniles and information provided to law
enforcement agencies other than police departments relating to convictions
for adults where the rehabilitation period has expired. As a result it is
acknowledged that information normally protected by the Criminal Law
(Rehabilitation of Offenders) Act and the Juvenile Justice Act will be
released to an information processing service provider. The information
will then be provided by CrimTrac to a police service or force or approved
law enforcement agency, however, will be limited to that information listed
in the nationally agreed 26 points will be released to law enforcement
agencies. The information is then limited for use for a policing purpose or
law enforcement purpose.
The sharing of information with non-police law enforcement agencies will
be limited to those government agencies approved by Cabinet and
prescribed by regulation. Additionally, the information provided to these
agencies will be limited to the same 26 data points as is available to police
jurisdictions through CrimTrac. Similar regulation making powers are
contained in section 289 `Disclosure by police of information about
cautions and youth justice conferences and agreements' of the Juvenile
Justice Act which is concerned with information disclosure, under which
regulations have been made, and the Justice and Other Information
Disclosure Act 2008 where there is a power to prescribe by regulation
purposes for which information may be shared between criminal justice
agencies.
Consultation
Extensive Queensland Departmental consultation was undertaken on the
contents of the Bill. Community consultation was not undertaken.
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Police Service Administration and Other Legislation Amendment Bill 2008
Notes on Provisions
Part 1 Preliminary
Short title
Clause 1 provides for the citation of the Bill.
Commencement
Clause 2 provides that the Bill is to commence on 6 October 2008.
Part 2 Amendment of Police Service
Administration Act 1990
Act amended in pt 2
Clause 3 indicates Part 2 of the Bill amends the Police Service
Administration Act 1990.
Amendment of s 1.4 (Definitions)
Clause 4 inserts the definitions in the Definitions provisions of the Act.
Amendment of s 5AA.9 (Commissioner may request
information from other authorities)
Clause 5 removes the term "declared law enforcement agency" inserts the
term declared agency". The declared agencies are those found in the Police
Powers and Responsibilities Act 2000.
Amendment of s 5AA.11 (Assessment of suitability)
Clause 6 removes the term "declared law enforcement agency" inserts the
term declared agency". The declared agencies are those found in the Police
Powers and Responsibilities Act 2000.
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Police Service Administration and Other Legislation Amendment Bill 2008
Amendment of s 10.2A (Disclosure of criminal history for
employment screening under commercial or other
arrangement)
Clause 7 removes the term "CrimTrac Agency" and inserts the term
"CrimTrac". This change standardises the name of the agency in
legislation.
Insertion of new pt 10, div 1A
Clause 8 inserts a new Division 1A (Provisions about the exchange of
policing information) to ensure the Queensland Police Service is able to
participate in national information sharing initiatives and arrangements by
providing and sharing policing information with nominated agencies
through an information processing service provider. While an information
processing service provider undertakes an information brokering role,
collecting and collating policing information to be shared among
nominated agencies, this brokering may be seen as a disclosure of the
information. This Division introduces provisions to accommodate the bulk
electronic transfer of information for these initiatives and any incidental
information disclosure associated with the information transfer.
Division 1A Provisions about exchange of
policing information
Subdivision 1 Preliminary
10.2G Definitions for div 1A
"Approved agency' for this division means a Commonwealth or State
entity prescribed by regulation as an approved agency.
"Approved information" for this division means information prescribed by
regulation. Clause 13 inserts the schedule listing the approved information.
"Condition" includes a prohibition or restriction placed in the use of
information under Division 1A of the Act.
"End user" means a Police Service or Force of the Commonwealth or State,
or an agency prescribed by regulation to be a law enforcement agency or an
approved agency.
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Police Service Administration and Other Legislation Amendment Bill 2008
"Head" means the Commissioner of a Commonwealth or State Police
Service or Force, or the chief executive officer of a law enforcement
agency, approved agency, IPSP, or other Commonwealth or State entity.
"IPSP" means CrimTrac or information processing service provider
prescribed under regulation.
"Law enforcement agency" for this division means a Commonwealth or
State agency prescribed under regulation to be a law enforcement agency.
"Law enforcement purpose" means using the information for a purpose
authorised under a law of the Commonwealth or the State.
"Member" of an entity includes a person employed or engaged by the
entity.
"MINDA" is an acronym for the Mobile Integrated Network Data Access
System which is administered by Queensland Transport.
"Policing purpose" means using the approved information for a purpose
similar to a purpose for which a member of the Queensland Police Service
would be authorised to use the approved information.
"Use" in addition to its ordinary meaning includes to disclose, give or give
access to, make available, publish or record the information.
10.2H Meaning of CrimTrac
Clause 9 provides a definition for CrimTrac. The definition is meant to
ensure that should another entity replace CrimTrac or it be renamed, the
references to CrimTrac in the Act will apply to that entity or the new entity.
Subdivision 2 Giving of policing information
10.2I Giving information to an IPSP to enable use of approved
information by police services and law enforcement agencies for
particular purposes
This provision gives the Commissioner of Police authority to transfer any
information held in a QPS database, to an IPSP, to allow the sharing of
approved information between Commonwealth and State police services
and nominated law enforcement agencies. Where information in excess of
the approved information is required by the policing agency or nominated
law enforcement agency, this section does not restrict the Commissioner's
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Police Service Administration and Other Legislation Amendment Bill 2008
power to authorise specific information disclosures on a case-by-case or
class basis having regard to the circumstances of each case or class under
the current provisions of the Act.
The use of the information is limited to a policing purpose or a law
enforcement purpose, depending on the agency.
This section does not limit the application of section 10.2J.
10.2J Giving approved information to police services and law
enforcement agencies to enable use of approved information for
particular purposes
This provision provides that the Commissioner may give approved
information to Commonwealth and other State police services to use for a
policing purpose or law enforcement agencies to use for a law enforcement
purpose. This provision does not require the engagement of an IPSP in
giving the approved information.
Where information in excess of the approved information is required by the
policing agency or nominated law enforcement agency, this section does
not restrict the Commissioner's power to authorise specific information
disclosures on a case-by-case and class basis having regard to the
circumstances of each case or class under the current provisions of the Act.
10.2K Giving information to Queensland Transport to enable
Queensland Transport to administer MINDA
This provision provides that the Commissioner may give information to
Queensland Transport for the purpose of making the information available
to members of the Queensland Police Service and authorised officers
excising a power under a Transport Act with an officer of the Queensland
Police Service.
In administering MINDA, Queensland Transport does not access the
information but transmits it back to the Queensland Police Service for use
by members of the Queensland Police Service when performing a function
of the Service.
10.2L Giving information to approved agencies to enable use of
information for particular purposes
This provision indicates the Commissioner is not limited in the information
he can give to the chief executive of an approved agency, for the approved
agency to use for a law enforcement purpose. This includes direct
computer access to a QPS database.
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Police Service Administration and Other Legislation Amendment Bill 2008
The Commissioner may appoint, in writing, nominated persons within an
approved agency to access a QPS database. These persons are authorised
members. Only authorised members within the approved agency are
authorised to access the QPS database. The information made available for
the use of the approved agency through the authorised members, is not
limited to the approved information.
10.2M Commissioner may impose conditions
The provision allows the Commissioner to impose conditions that the
Commissioner considers appropriate when giving information under Part
1A, Subdivision 2 of this Act.
Subdivision 3 Relationship with other provisions
10.2N Use of information permitted despite other provisions
This provision gives the Commissioner of Police specific authorisation to
give information to specified entities under Part1A, Subdivision 2 of this
Act despite any other law prohibiting or restricting the disclosure of
information. The Commissioner is permitted to undertake bulk transfers of
information to an IPSP, provide approved information to a police service or
law enforcement agency, provide specific members of an approved agency
with direct access to a QPS database and transfer information to
Queensland Transport to administer MINDA. Therefore this clause
overrides the provisions of any Act prohibiting the transfer or disclosure of
information to an IPSP, law enforcement agency or authorised agency.
A police service or force may use the information for a policing purpose
and a law enforcement agency or approved agency may use information for
a law enforcement purpose, despite an Act that imposes a condition or
restriction on the use of the information.
Additionally, this provision affects section 10.2A `Disclosure of criminal
history for employment screening under commercial arrangement' of the
Act. As the criminal history information relevant to section 10.2A is
forwarded to CrimTrac via the bulk electronic transfer to facilitate the
information sharing under this Division, this section allows that
information to be used to facilitate the criminal history disclosures under
section 10.2A of the Act. A criminal history provided under section 10.2A
will continue to be in accordance with section 3 of the Criminal Law
(Rehabilitation of Offenders) Act.
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Police Service Administration and Other Legislation Amendment Bill 2008
10.2O Condition imposed under another Act may apply
This provision limits the use of the information a member has gained under
this Division of the Act. Where the information is the subject of a
prohibition or restriction when in the possession of the Queensland Police
Service under another Act, the member or entity who receives that
information through this division is subject to the same prohibition or
restriction. For example, if the information is subject to publishing
restrictions in Queensland, the entity is also subject to those restrictions on
publishing the information.
Subdivision 4 General
10.2P Misuse of information given under this division
This provision creates an offence for a person to use information obtained
under this division contrary to the purpose for which is was given, that is, a
policing purpose or a law enforcement purpose, or any purpose permitted
under an Act, or using the information in contravention of any conditions
imposed by the Commissioner. The maximum penalty for an offence
committed under this provision is 100 penalty units.
Furthermore a person must not use the information contrary to a condition
imposed by another Act, as outlined in section 10.2O. The maximum
penalty for an offence committed under this provision is 100 penalty units.
10.2Q Extra-territorial application of offence provision
This provision gives clear indication that a person commits an offence
against section 10.2S for misusing information under this division whether
or not the offence was committed in Queensland.
10.2R Protection from liability
This provision indicates that a person who is acting in honestly and without
negligence will not be liable civilly or criminally for the transfer or giving
of the information under this division. However, this provision does not
limit the application of disciplinary action under this Act in respect to a
member acting honestly in the giving of the information but outside the
scope of this Division.
Replacement of pt 11, hdg (Transitional provisions)
Clause 9 amends the existing heading for Part 11 of the Act.
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Police Service Administration and Other Legislation Amendment Bill 2008
Insertion of new pt 11 div 3
Clause 10 inserts a new division in the part.
Division 3 Declaratory provision for Police Service Administration and
Other Legislation Amendment Act 2008
11.6 Amendment of regulation by the Police Service Administration
and Other Legislation Amendment Act 2008 does not affect powers of
Governor in Council
The inclusion of the regulations in the Bill and introduced to Parliament
does not affect the power of the Governor in Council to further amend or
repeal the regulations.
Amendment of schedule (relevant information)
Clause 11 omits out-dated terminology and inserts current terminology
required to support the recruiting and employment provisions in the Act.
Part 3 Amendment of Police Service
Administration Regulation 1990
Regulation amended in pt 3
Clause 12 indicates Part 3 of the Bill amends the Police Service
Administration Regulation 1990.
Insertion of new pt 7D
Clause 13 inserts a new Part 7D after part 7C.
Part 7D Provisions about exchange of
policing information
7C.2 Law enforcement agencies-Act, s 10.2G
This provision lists the agencies to be included in the definition of law
enforcement agency.
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Police Service Administration and Other Legislation Amendment Bill 2008
7C.2 Approved information-Act, s 10.2G
This provision indicates that the definition of approved information is the
information contained in the schedule.
Insertion of new schedule
Clause 14 inserts a new schedule listing the approved information to which
Division 1A applies. The schedule lists 26 points of information that
defines approved information to which section 7C.3 of the Regulation
applies.
The approved information includes the broadened definition of `criminal
history'. The term criminal history for this Division adopts a meaning to
include any offence alleged to have been committed by the person,
including expired convictions subject to the Criminal Law (Rehabilitation
of Offenders) Act and caution and conference information under the
Juvenile Justice Act.
© State of Queensland 2008
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