Police Regulation Act 1958

Section Page

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

S. 1

amended by Nos 6957

s. 4(1)(a), 7081

s. 15(2)(a)(b), 10250 s. 20.

1. Short title and commencement

This Act may be cited as the Police Regulation Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

S. 2

amended by No. 10087 s. 3(1)(Sch. 1 item 182), repealed by No. 35/1993

s. 4.

* * * * *

No. 3750 s. 3.

S. 3

amended by No. 120/1994

s. 7(1).

3. Definitions

(1) In this Act unless inconsistent with the context or subject-matter--

S. 3(1) def. of "appointed member" inserted by No. 30/1999 s. 4.

"appointed member" of the Police Board, means a member of the Police Board other than the Chief Commissioner;

S. 3(1) def. of "ESS Board" inserted by No. 120/1994

s. 6(1)(a).

"ESS Board" means the Emergency Services Superannuation Board established under the Emergency Services Superannuation Act 1986;

"the force" means officers and other members of the police force of Victoria whether employed upon land or upon water;

"member of the force" shall apply to every person (whether male or female) employed in the force;

"Part" means Part of this Act;

S. 3(1) def. of "Police Board" inserted by No. 72/1992

s. 4.

"Police Board" means the Police Board of Victoria;

S. 3(1) def. of "Scheme" inserted by No. 120/1994

s. 6(1)(a).

"Scheme" means the Emergency Services Superannuation Scheme established under the Emergency Services Superannuation Act 1986;

S. 3(1) def. of "spouse" inserted by No. 8722

s. 2(a), substituted by No. 120/1994

s. 6(1)(b).

"spouse" means in relation to a person--

(a) that person's husband, wife, widower or widow; or

(b) a person of the opposite sex who, though not legally married to the first mentioned person, in the opinion of the ESS Board lives or lived with the first mentioned person as at the relevant date (being, in the case of a deceased person, the date of death) on a bona fide domestic basis as the husband or wife of the first mentioned person.

S. 3(2) inserted by No. 120/1994

s. 7(2).

(2) In this Act (other than in sections 59 and 62)--

(a) words importing the feminine gender include the masculine gender; and

(b) words importing the masculine gender include the feminine gender.

S. 3(3) inserted by No. 120/1994

s. 7(2).

(3) Without limiting the generality of sub-section (2), in this Act (other than in sections 59 and 62) a reference to "his widow" is to be construed as a reference to "his or her spouse" where the member of the force or pensioner is deceased and other parts of speech and grammatical forms of "widow" are to be construed as having a corresponding meaning.

Pt 1 (Heading) substituted by No. 7081

s. 15(3).

4. Constitution of the police force

S. 4(1) substituted by No. 6975

s. 2(a).

(1) The Governor in Council may from time to time appoint a Chief Commissioner of Police (hereinafter referred to as the Chief Commissioner) and may from time to time suspend reduce discharge or dismiss any such Chief Commissioner.

S. 4(1A) inserted by No. 8179

s. 3(a)(i).

(1A) The appointment of the Chief Commissioner shall be for such term not exceeding five years as the Governor in Council thinks fit on and from such date as is specified in the appointment.

S. 4(2) amended by Nos 8097

s. 2, 9066

s. 2(a), 9527

s. 2, 10031 s. 4.

(2) The Governor in Council may from time to time appoint so many Deputy Commissioners (not exceeding four) and so many Assistant Commissioners (not exceeding ten) as he thinks fit and may from time to time suspend reduce discharge or dismiss any such Deputy or Assistant Commissioner:

S. 4(2) Proviso amended by No. 35/1993

s. 5, repealed by No. 30/1999 s. 5(1).

* * * * *

S. 4(2AA) inserted by No. 72/1992

s. 5(a).

(2AA) The appointment of a Deputy Commissioner or an Assistant Commissioner is to be for the term, not exceeding 5 years, that the Governor in Council thinks fit on and from the date specified in the appointment[1].

S. 4(2A) inserted by No. 9646

s. 2(1).

(2A) In addition to any Assistant Commissioners appointed pursuant to sub-section (2) the Governor in Council may appoint a member of the Police Force who is seconded to the position of Director of the body known as the Australian Bureau of Criminal Intelligence to the rank of Assistant Commissioner for the duration of the period of secondment.

S. 4(3) amended by Nos 8179

s. 3(a)(ii), 8487 s. 2, substituted by No. 9906 s. 2, repealed by No. 10250

s. 4(1), new

s. 4(3) inserted by No. 15/1989 s. 4, substituted by Nos 73/1996 s. 64(1), 30/1999 s. 5(2).

(3) If--

(a) there is a vacancy in the office of a Deputy Commissioner; or

(b) a Deputy Commissioner is suspended, sick or absent from office; or

(c) a Deputy Commissioner has been appointed as Acting Chief Commissioner--

a member of the force may be appointed as an Acting Deputy Commissioner in accordance with sub-section (3A).

S. 4(3A) inserted by No. 72/1992

s. 5(b), substituted by No. 30/1999 s. 5(2).

(3A) The appointment of an Acting Deputy Commissioner may be made by the Chief Commissioner, for a period not exceeding 4 weeks, or by the Governor in Council, for a period not exceeding 12 months.

S. 4(3B) inserted by No. 30/1999 s. 5(2).

(3B) The Governor in Council may, at any time, revoke the appointment of a member of the force as an Acting Deputy Commissioner (including an appointment made by the Chief Commissioner).

S. 4(3C) inserted by No. 30/1999 s. 5(2).

(3C) A person appointed as an Acting Deputy Commissioner is eligible for re-appointment, but a person appointed as an Acting Deputy Commissioner by the Chief Commissioner may only be re-appointed by the Governor in Council.

S. 4(4) repealed by No. 10250

s. 4(1), new

s. 4(4) inserted by No. 15/1989 s. 4, amended by No. 73/1996 s. 64(2)(a).

(4) An Acting Deputy Commissioner ceases to hold office--

(a) if the appointment is revoked; or

S. 4(4)(b) amended by No. 73/1996 s. 64(2)(b).

(b) on the Deputy Commissioner being restored to office after the suspension or recommencing the duties of the office after the temporary absence.

(5) An Acting Deputy Commissioner while so acting has all the responsibilities, powers, authorities and duties and may perform all the functions of the Deputy Commissioner in whose place he or she acts.

S. 4(6) inserted by No. 15/1989

s. 4, repealed by No. 73/1996 s. 64(2)(c).

* * * * *

S. 4AA inserted by No. 73/1996 s. 65.

4AA. Appointment of Acting Assistant Commissioner

(1) The Chief Commissioner may appoint a member of the force to be an Acting Assistant Commissioner--

(a) while an office of Assistant Commissioner is vacant; or

(b) during any period when an Assistant Commissioner is suspended, sick or absent from his office.

(2) An Acting Assistant Commissioner while so acting has all the responsibilities, powers, authorities and duties and may perform all the functions of the Assistant Commissioner in whose place he or she acts.

(3) The Chief Commissioner may, at any time, revoke the appointment of a member of the force as an Acting Assistant Commissioner.

S. 4AB inserted by No. 30/1999 s. 6.

4AB. Appointment of Acting Chief Commissioner

(1) The Governor in Council may appoint a member of the force as Acting Chief Commissioner--

(a) while the office of Chief Commissioner is vacant; or

(b) during any period when the Chief Commissioner is suspended, sick or absent from office.

(2) An Acting Chief Commissioner while so acting has all the responsibilities, powers, authorities and duties and may perform all the functions of the Chief Commissioner.

(3) A person appointed as Acting Chief Commissioner is eligible for re-appointment.

(4) The Governor in Council may, at any time, revoke the appointment of a member of the force as Acting Chief Commissioner.

S. 4A

inserted by No. 72/1992 s. 6.

4A. Establishment of Police Board

There is established a Board to be called the Police Board of Victoria.

S. 4B

inserted by No. 72/1992

s. 6.

4B. Functions and Duties of the Police Board

(1) The functions of the Police Board are--

(a) to advise the Minister and the Chief Commissioner on ways in which the administration of the force might be improved; and

(b) for the purpose of providing advice under paragraph (a), to inquire into the structure, organisation and management policies of the force, including the rules and policies governing recruitment, appointments, promotions, seniority, classification, training and development; and

S. 4B(1)(ba) inserted by No. 30/1999 s. 7.

(ba) to conduct reviews under Division 1 of Part IV; and

(c) to carry out any other function conferred on it by this Act.

(2) The Police Board--

(a) must inquire into any matter relating to the administration of the force which is referred to it by the Minister or the Chief Commissioner, and must report on that matter to the person who referred it to the Board; and

(b) if so requested by the Minister, must inquire into whether or not it should have any and, if so, what additional functions, duties or powers, and must report on that matter to the Minister.

S. 4C

inserted by No. 72/1992

s. 6.

4C. Powers of the Board

(1) The Police Board has all the powers necessary to enable it to perform its duties and functions.

(2) The Board may, in writing, authorise a member of the Board to exercise a power of entry under this section.

(3) For the purposes of enabling the Board to carry out its functions or duties, a person authorised under sub-section (2)--

(a) may, at any reasonable time, enter any police premises;

(b) may inspect those premises;

(c) may inspect and take copies of or extracts from any documents that he or she finds on those premises;

(d) may take away from those premises any document found there, for as long as is necessary to take copies of it.

(4) A person entering premises under sub-section (3)--

(a) must cause as little damage as possible to the land and anything on it; and

(b) must remain on the premises only so long as is reasonably necessary; and

(c) must, if possible, give notice of the intended entry to the person in charge of the premises at least 7 days before entering the premises.

(5) A member of the force must not hinder or obstruct a person authorised under this section in the exercise of a power of entry given by this section.

Penalty: 10 penalty units.

(6) A person authorised under sub-section (2) must, if requested to do so by a member of the force, produce to that member his or her instrument of authority under that sub-section.

S. 4D

inserted by No. 72/1992

s. 6, substituted by No. 30/1999 s. 8.

4D. Membership of Police Board

(1) For the purposes of performing its functions other than those under Division 1 of Part IV, the Police Board is to be constituted by--

(a) 3 persons appointed by the Governor in Council, of whom 1 is to be appointed as chairperson; and

(b) the Chief Commissioner.

(2) For the purpose only of performing its functions under Division 1 of Part IV, the Police Board is to be constituted by--

(a) the persons referred to in sub-section (1)(a); and

(b) a legal practitioner (within the meaning of the Legal Practice Act 1996) of at least 5 years' standing appointed by the Governor in Council.

(3) An appointed member holds office for the term, not exceeding 5 years, specified in his or her instrument of appointment and is eligible for re-appointment.

(4) Schedule 1A applies to the Board.

S. 4E

inserted by No. 72/1992

s. 6.

4E. Staff

S. 4E(1) amended by No. 26/1997

s. 48(a), substituted by No. 46/1998

s. 7(Sch. 1).

(1) Any employees that are necessary to enable the Police Board to carry out its functions, powers and duties may be employed under Part 3 of the Public Sector Management and Employment Act 1998.

(2) For the purposes of carrying out its functions, powers and duties the Board may, in consultation with the Minister and with the consent of the Chief Commissioner, make use of the services of any member of the force.

S. 4F

inserted by No. 72/1992

s. 6, amended by No. 30/1999 s. 9.

4F. Delegations

The Police Board may, in writing delegate any of its functions, duties or powers other than this power of delegation or any functions under Division 1 of Part IV to--

(a) a member of the Board; or

(b) a member of the staff of the Board; or

(c) a person whose services are being made use of by the Board under section 4E(2).

S. 4G

inserted by No. 72/1992

s. 6.

4G. Report of the Board

(1) The Police Board must prepare a report in respect of each year ending on 30 June on its own work and activities for that year.

(2) The Board must submit the report to the Minister not later than 30 September in that year.

(3) The Minister must cause each report submitted to him under this section to be laid before the Legislative Council and the Legislative Assembly as soon as possible after the report has been received by the Minister.

No. 3750 s. 5.

S. 5

amended by No. 11/1992 s. 4(1).

5. Authority of Chief Commissioner and officers

(1) The Chief Commissioner shall have, subject to the directions of the Governor in Council, the superintendence and control of the force, and all officers of police shall have the superintendence and control of that portion of the force which is placed under their charge subject to the authority herein conferred upon the Chief Commissioner and to the regulations made or to be made by the Governor in Council as is hereinafter provided.

S. 5(2) inserted by No. 11/1992

s. 4(2).

(2) Without limiting the generality of sub-section (1), the Chief Commissioner may determine--

(a) the type or design of any uniform or equipment to be worn or carried by members of the force, police recruits, police reservists and protective services officers; and

(b) the conditions under which any uniform or equipment is to be worn or carried.

S. 6 substituted by No. 6957

s. 2(b).

6. Powers of Deputy Commissioner

S. 6(1) amended by Nos 9066

s. 2(b), 10250

s. 5(1).

(1) Anything by this or any other Act or by any regulation made under this or any other Act appointed or authorized or required to be done or signed by the Chief Commissioner may be done or signed by a Deputy Commissioner and shall be as valid and effectual as if done or signed by the Chief Commissioner.

S. 6(1A) inserted by No. 30/1999 s. 10(1).

(1A) Sub-section (1) does not apply to the Chief Commissioner's power to dismiss a member of the force under section 68 or suspend a member under section 68A.

S. 6(2) amended by Nos 9066

s. 2(b), 15/1989

s. 5, 30/1999 s. 10(2).

(2) All courts judges and persons acting judicially shall take judicial notice of the seal and signature of the Chief Commissioner, of a Deputy Commissioner, of an Assistant Commissioner, of an Acting Chief Commissioner, of an Acting Deputy Commissioner and of an Acting Assistant Commissioner.

S. 6A

inserted by No. 6570

s. 2, amended by No. 10250

s. 5(2), substituted by No. 15/1989

s. 6.

6A. Delegation by Chief Commissioner

S. 6A(1) amended by No. 30/1999 s. 10(3).

(1) The Chief Commissioner may delegate, by instrument, to--

(a) a member of the force; or

(b) a police reservist; or

(c) a protective services officer; or

S. 6A(1)(d) amended by No. 26/1997

s. 48(a), substituted by No. 46/1998

s. 7(Sch. 1).

(d) an employee within the meaning of the Public Sector Management and Employment Act 1998; or

(e) a class of the people specified in paragraphs (a) to (d)--

(2) A delegation may be made to a person or a class of people by name, or by reference to the office, offices or employment held.

Nos 3750 s. 8, 4592 s. 5(2).

7. Medical Board

S. 7(1) amended by No. 23/1994

s. 118 (Sch. 1 item 43.1).

(1) The Governor in Council may from time to time appoint three registered medical practitioners within the meaning of the Medical Practice Act 1994 as a Board hereinafter designated the Medical Board for the purpose of examining the members of the force at such periods as the regulations for the time being in force may require; and the Governor in Council may from time to time remove any member of such Board, and appoint another in his stead.

(2) Any two members of such Board shall form a quorum and shall have and may exercise and perform all or any of the powers and duties of such Board.

Nos 3750 s. 8, 4592 s. 3, 5126 s. 23(1)(b).

S. 8

amended by Nos 6957

s. 2(c)(d), 8179 s. 3(b)(c), 8745

s. 2, substituted by Nos 9906 s. 3, 10250 s. 4(2), 42/1990 s. 4(1).

8. Appointments to and promotions and transfers within the force

(1) The Chief Commissioner may, in accordance with the regulations, appoint, promote and transfer--

(a) so many commanders, chief superintendents, superintendents, chief inspectors and inspectors; and

(b) so many senior sergeants, sergeants, senior constables and constables--

as the Governor in Council thinks necessary.

(2) A person appointed or promoted under sub-section (1)(a) shall on the certification of the Governor in Council, be an officer of the force.

S. 8(3) repealed by No. 30/1999 s. 11(1).

* * * * *

(4) Every appointment as a constable is subject to two years' probation, and every other appointment and every promotion to one year's probation.

(5) The Chief Commissioner may disallow a promotion or terminate an appointment at any time during an initial or further period of probation.

(6) Unless a promotion is earlier disallowed (under this section or on an appeal) or an appointment is earlier terminated--

(a) at the end of the initial period of probation, the Chief Commissioner must--

(i) confirm the promotion or appointment; or

(ii) disallow the promotion or terminate the appointment; or

(iii) extend the probation for a period not exceeding one year; and

(b) at the end of the further period of probation, the Chief Commissioner must--

(i) confirm the promotion or appointment; or

(ii) disallow the promotion or terminate the appointment.

(7) If a promotion is disallowed, from the time of disallowance the member's rank is the rank he or she held immediately before promotion.

(8) If the Chief Commissioner terminates the appointment of a person who was not a member of the force immediately before being appointed, the appointee must be dismissed from the force.

(9) In determining whether or not an initial or further period of probation has ended, any period of suspension, leave without pay, sick leave of one month or more continuously, maternity leave or long service leave must be disregarded.

S. 8AA inserted by No. 42/1990

s. 4(1).

8AA. Appeals against non-selection for promotion

S. 8AA(1) amended by Nos 72/1992

s. 7, 35/1993

s. 6.

(1) Subject to the regulations, a member of the force who considers that he or she has a better claim to promotion or transfer under section 8 than the member selected for promotion or transfer may appeal to the Police Review Commission.

(2) No appeal may be had in relation to the rank of superintendent, chief superintendent or commander.

S. 8AA(2A) inserted by No. 23/1996

s. 3.

(2A) No appeal may be had in relation to a position of constable (general duties) or senior constable (general duties).

S. 8AA(2B) inserted by No. 30/1999 s. 11(2).

(2B) No appeal may be had in relation to the promotion of a constable who holds a position to the rank of senior constable in the same position.

(3) The only grounds for appeal are--

(a) in relation to the rank of senior sergeant, sergeant or senior constable--

(i) superior efficiency; or

(ii) equal efficiency and greater seniority;

(b) in relation to the rank of inspector or chief inspector--superior efficiency.

S. 8AB inserted by No. 42/1990

s. 4(1).

8AB. Grounds for promotion or transfer

(1) In a promotion or transfer under section 8 and in an appeal under section 8AA--

(a) regard shall be had to the efficiency of the candidates; and

(b) regard shall not be had to their relative seniority unless, in relation only to the rank of senior sergeant, sergeant or senior constable, they are considered to be equally efficient.

S. 8AB(1A) inserted by No. 23/1996

s. 4(1).

(1A) This section does not apply to a promotion or transfer to a position of constable (general duties) or senior constable (general duties).

S. 8AB(1B) inserted by No. 30/1999 s. 11(3).

(1B) This section does not apply to a promotion of a constable who holds a position to the rank of senior constable in the same position.

(2) For the purposes of this section and sections 8 and 8AA--

"efficiency" means--

(a) the aptitude and special qualifications necessary for the discharge of the duties of the position in question, together with merit, diligence, good conduct, quality of service, mental capacity and physical fitness; and

(b) potential to develop the executive ability and leadership and management skills essential in senior executive positions--in relation to the rank of inspector; and

(c) the executive ability and leadership and management skills essential in senior executive positions--in relation to the rank of commander, chief superintendent, superintendent or chief inspector;

S. 8AB(2) def. of "general duties" inserted by No. 23/1996

s. 4(2).

"general duties" means primary response and general patrol duties;

"transfer" means the transfer of a member of the force from one position in the force to another at the same rank.

S. 8A

inserted by No. 10250

s. 6.

8A. Police recruits

(1) Subject to this Act and the regulations, the Chief Commissioner may from time to time appoint so many police recruits as the Chief Commissioner thinks necessary to meet the needs of the force.

(2) A police recruit may be appointed for such period as the Chief Commissioner determines.

(3) The Chief Commissioner may terminate an appointment at any time or extend it for such further period as the Chief Commissioner determines.

(4) A police recruit is not a member of the force.

S. 8A(5) repealed by No. 11/1992

s. 5.

* * * * *

S. 9

amended by No. 6957

s. 2(e)(i)(ii), repealed by No. 42/1990

s. 12(1)(a).

* * * * *

No. 3750 s. 9.

10. Women to receive salaries etc. at same rate as menWomen who are members of the force shall be entitled to receive salaries wages and allowances at the same rates as men of corresponding rank who are members of the force are entitled to receive.

No. 3750 s. 10.

11. Authority of constables

Every constable shall have such powers and privileges and be liable to all such duties as any constable duly appointed now has or hereafter may have either by the common law or by virtue of any Act of Parliament now or hereafter to be in force in Victoria, and any member of the police force of higher rank than a constable shall have all the powers and privileges of a constable whether conferred by this Act or otherwise.

S. 12

repealed by No. 42/1990 s. 12(2).

* * * * *

No. 3750

ss 12, 13.

13. Oath to be taken by members of the force

S. 13(1) amended by No. 9527

s. 3.

(1) Any person appointed to be a member of the force shall not be capable of acting in any way as such member until he has taken and subscribed the oath set forth in Form A of the Second Schedule.

S. 13(2) amended by Nos 9902

s. 2(1)(Sch. item 204), 15/1989 s. 7(1)(a)(b), 57/1989

s. 3(Sch. item 156.1), 30/1999 s. 12(a).

(2) The said oath shall be administered by any magistrate (or, in the case of appointment of a person to a rank other than Chief Commissioner or Deputy Commissioner, by any Deputy Commissioner or Assistant Commissioner) and such oath shall in all cases be subscribed by the person taking the same; and the oath so taken by the Chief Commissioner shall be forthwith transmitted to the Minister by the magistrate before whom the same was taken, and the oaths so taken and subscribed by all other persons appointed to any office under this Act shall be forwarded by the magistrate, Deputy Commissioner or Assistant Commissioner before whom the same were taken to the Chief Commissioner.

S. 13(3) amended by Nos 8179

s. 3(d), 10250

s. 7.

(3) Every person who has taken and subscribed such oath shall be taken to have, from the day on which such oath has been taken and subscribed, thereby entered into a written agreement with, and shall be thereby bound to serve Her Majesty as a member of the force, and in whatsoever capacity he is hereinafter required to serve, and at the current rate of pay of any rank to which he is appointed or reduced until legally discharged; and such agreement shall not be set aside cancelled or annulled for want of reciprocity, but every such agreement shall be determined by the discharge dismissal or other removal from office of any such person, or by the acceptance of the resignation of the Chief Commissioner or of any Deputy or Assistant Commissioner by the Governor in Council, or by the acceptance of the resignation of any other member of the force by the Chief Commissioner.

No. 3750 s. 14.

S. 14 amended by Nos 8097 s. 3, 15/1989 s. 8(1), 42/1990 s. 8(a).

14. One month's notice of resignation to be given by members of the forceNo member of the force shall be at liberty to resign his office or to withdraw himself from the duties thereof notwithstanding the period of his engagement has expired unless expressly authorized in writing so to do by the Chief Commissioner or unless he gives to such Chief Commissioner 3 months' notice in writing of his intention so to resign or withdraw.

Penalty: 20 penalty units.

No. 3750 s. 15.

15. Repute to be evidence of appointment

If any question arises as to the right of the Chief Commissioner or other member of the force to hold or exercise the duties of his office, common reputation shall be deemed prima facie evidence of such right, and it shall not be necessary to have or produce any written appointment or other document or matter whatsoever in proof of such right.

No. 3750 s. 16.

16. All powers vested in members of the force to cease upon discharge

When any member of the force is discharged or dismissed from or otherwise ceases to hold and exercise his office, all powers and authorities vested in him as a member of the force shall immediately cease.

S. 16A inserted by No. 7081

s. 15(1), amended by Nos 7142 s. 2, 8179

s. 3(e)(i)-(iii), 9460 s. 4(a), 10258 s. 7(1)(a)-(c), 50/1988

s. 93(2)(Sch. 2 Pt 2 item 45), substituted by No. 42/1995

s. 224(Sch. 2 item 30).

16A. Right to early retirement

(1) Any member holding the rank of Chief Commissioner shall be entitled to elect to retire upon attaining the age of 55 years or at any time thereafter.

(2) Any member of the force who becomes an officer within the meaning of the State Superannuation Act 1988 shall be entitled to elect to retire upon attaining the age of 50 years or at any time thereafter.

S. 16B inserted by No. 9646 s. 3, amended by Nos 50/1988 s. 93(2)(Sch. 2 Pt 2 item 45), 23/1994

s. 118(Sch. 1 item 43.2), substituted by No. 26/1997

s. 39.

16B. Incapacitated officers

(1) The Chief Commissioner may of his or her own volition or at the request of a member of the force inquire into the fitness and capacity of the member to discharge the duties of his or her office.

(2) In connection with that inquiry the Chief Commissioner may require the member to submit himself or herself for examination by the Police Medical Officer or by a registered medical practitioner (within the meaning of the Medical Practice Act 1994) nominated by the Chief Commissioner.

(3) If the Chief Commissioner is satisfied that the member is incapacitated for the performance of his or her duty by infirmity of mind or body he or she may cause the member to be retired.

No. 3750 s. 17.

S. 17 amended by No. 6833

s. 2(a)(b), substituted by No. 42/1990

s. 5.

17. Standing orders etc.The Chief Commissioner may from time to time issue, amend and revoke--

(a) orders, to be known as standing orders, for the general administration of the force;

(b) instructions for the effective and efficient conduct of the force's operations.

S. 18 amended by Nos 7876

s. 2(3), 8179

s. 3(f)(i)(ii), 57/1989

s. 3(Sch. item 156.2), repealed by No. 42/1990

s. 12(2).

* * * * *

S. 18A inserted by No. 10257

s. 91(a).

18A. Assistance to coroners

The Chief Commissioner of Police shall direct that a sufficient number of members of the police force be present at any place at which an inquest may be held (whether or not an inquest is being held) whenever a coroner so requests.

No. 3750 s. 19.

S. 19 amended by Nos 7876

s. 2(3), 8179

s. 3(g), 57/1989

s. 3(Sch. item 156.3), 30/1999 s. 12(b).

19. Members of police force who may execute process and warrants

Every member of the force shall execute all process to him directed for levying the amount of any recognisance forfeited to Her Majesty or of any fine imposed on any persons at any sitting of the Supreme Court whether in Melbourne or elsewhere or at any other court or of any other fine imposed under any Act in force in Victoria, and every member of the force shall obey and execute all the lawful summonses warrants executions orders and commands of the Magistrates' Court in all cases civil or criminal.

No. 3750 s. 20.

S. 20 amended by Nos 8179

s. 3(h), 10250

s. 8(a)(b), 10257 s. 91(b), 57/1989

s. 3(Sch. item 156.4), 30/1999 s. 12(b).

20. Process directed to one may be executed by anotherAny process or any warrant order or command of any court or any coroner under the Coroners Act 1985 or any board tribunal commission or other body (whether constituted by one or by more than one person) established by or under any Act or any member or officer of any such board tribunal commission or body directed delivered or given to any member of the force may be executed and enforced by any other member of the force or his assistants, and every such last-mentioned member of the force and his assistants shall have the same rights powers and authorities for and in the execution of such process warrant order or command, as if the same had been originally directed to him or them expressly by name.

Pt 3 (Heading) amended by No. 7081

s. 15(4).

No. 3750 s. 21.

21. Division to apply to appointments before 25 November 1902Subject to the provisions of section forty this Division shall apply to members of the force appointed before the twenty-fifth day of November One thousand nine hundred and two who were serving as such on the first day of January One thousand nine hundred and twenty-four or subsequently to the said date and shall not apply to members of the force appointed on or after the twenty-fifth day of November One thousand nine hundred and two.

No. 3750 s. 22.

22. Rate of superannuation allowance

Any member of the force who has served for a period of not less than ten years and has attained the full age of fifty-five years may be superannuated, and shall on retirement receive at his option either a gratuity of one month's pay for each year's service, or a yearly pension according to the following scale; that is to say, after ten year's service ten-fiftieths of the pay received by him during the period of twelve consecutive months immediately preceding the date of his retirement and an increase of one-fiftieth for each succeeding year up to thirty years' service completed.

No. 3750 s. 23.

23. Superannuation on account of ill health

(1) When any member of the force has served for ten years and has not attained the full age of fifty-five years, if a certificate to the effect set forth in the Third Schedule signed by the members of the Medical Board is forwarded to the Governor in Council by the said Board, the Governor in Council may superannuate such member, and he shall thereupon be entitled to receive at his option the gratuity or the pension provided by the last preceding section for members of the force who have attained the full age of fifty-five years.

(2) Should any member of the force to whom a pension has on or after the twenty-first day of September One thousand nine hundred and fourteen been granted die before the sum to which he would have been entitled on his retirement as a gratuity has been received by him by way of pension then the difference between such sum and the amount actually received by him shall be paid to his widow and children.

No. 3750 s. 24.

S. 24 amended by No. 120/1994 s. 6(1)(c).

24. Gratuity or yearly pension to members disabled in the performance of duty

When any member of the force has served for a less period than ten years, if without his own default and in the discharge of his duty he receives such bodily injury as to incapacitate him for active service, he may retire from the force, and the ESS Board may grant to such member a gratuity not exceeding one month's pay for each year's service or a yearly pension not exceeding half the pay received by him during the year preceding his retirement, or in the event of his death before so retiring such gratuity shall be granted to his widow and children.

No. 3750 s. 25.

25. Gratuity to members retiring from ill healthWhen any member of the force has served for a less period than ten years, if a certificate to the effect set forth in the Third Schedule signed by the members of the Medical Board is forwarded to the Chief Commissioner, such member shall be entitled to his discharge and to receive a gratuity of one month's pay for each year of service at his then rate of pay.

No. 3750 s. 26.

26. Conditions on which pensions are withdrawable

Any pension or retiring allowance shall be granted to members of the force only upon the condition that it is liable to be forfeited and may be withdrawn by the Governor in Council in any of the following cases--

(a) on conviction of the grantee for any indictable offence;

(b) on his knowingly associating with suspected persons thieves or other offenders;

(c) on his refusing to give information and assistance to the police whenever in his power for the detection and apprehension of criminals, and for the suppression of any disturbance of the public peace;

(d) on his refusing to resume his duties in his former office in the force when required by the Governor in Council;

(e) if he enters into or continues to carry on any business occupation or employment which in the opinion of the Governor in Council is disgraceful or injurious to the public or in which he makes use of the fact of his former employment in the police force in a manner which the Governor in Council considers to be discreditable and improper.

No. 3750 s. 27.

27. Members retiring after twenty years' serviceEvery member of the force who has attained the age of forty years, and who has served not less than twenty years, shall be entitled to retire upon a gratuity at the rate of one month's pay for every year of service.

No. 3750 s. 28.

S. 28 amended by No. 120/1994

s. 6(1)(c).

28. Gratuity or pension to relatives where life lost on duty

Should any member of the force lose his life in the discharge of his duty, a gratuity or pension equal to what he would have been entitled to if he had reached the age of fifty-five years shall be paid to his widow or children or to any other relative of such member depending upon him for support as the ESS Board may determine.

No. 3750 s. 29.

S. 29 amended by No. 120/1994

s. 6(1)(c).

29. Allowances of retiring members to be considered when estimating gratuity etc.

Where under this Act the amount of any gratuity or retiring allowance to be granted to any member of the force is based upon the rate of pay of such member of the force, such rate of pay shall be understood to include not only the salary or wages which he may receive but likewise a money equivalent for the several allowances to which he is entitled as a member of the force, and the rate of this equivalent shall be estimated for each year by the ESS Board.

No. 3750 s. 30.

30. Dismissed members not entitled to pension

No member of the force who has been discharged or dismissed therefrom for misconduct of any kind shall be entitled to any pension gratuity or allowance.

S. 31

repealed by No. 120/1994

s. 6(1)(d).

* * * * *

S. 32 amended by No. 9902

s. 2(1)(Sch. item 205), repealed by No. 120/1994

s. 6(1)(d).

* * * * *

S. 33 amended by Nos 9902

s. 2(1)(Sch. item 205), 57/1989

s. 3(Sch. item 156.5(a)(b)), repealed by No. 120/1994

s. 6(1)(d).

* * * * *

S. 34 amended by No. 9902

s. 2(1)(Sch. item 205), repealed by No. 120/1994

s. 6(1)(d).

* * * * *

S. 35

repealed by No. 120/1994

s. 6(1)(d).

* * * * *

No. 3750 s. 36.

36. Time in other branches to countAny member of the force claiming a gratuity or pension shall be entitled to count as service in the force any period served by him in any other branch of the public service of Victoria before he became a member of the force.

No. 3750 s. 37.

37. Provision not to apply to transfer to police force from other public departments

The last preceding section shall not apply to any person who after the first day of November One thousand eight hundred and ninety-five has been or is transferred to the police force from any other branch of the public service unless such person was appointed to some office in the public service prior to the passing of the Act No. 710 and was employed continuously in the public service until such transfer.

For the purposes of this and the last preceding section the departments corresponding to the departments subject to the Railways Act 1958 respectively and to Part IX of The Constitution Act Amendment Act 1958 respectively and the department formerly subject to the Defence Act 1890 shall be deemed to have been branches of the public service.

No. 3750 s. 38.

38. Definition of service in this DivisionIn this Division the words "service" or "served" wherever occurring shall, as from the first day of November One thousand eight hundred and ninety-five and so far only as regards any persons transferred to the police force as hereinbefore mentioned, be taken to refer to service in the police force.

Nos 3750

s. 39, 4592

s. 5(1).

39. Definitions

(1) In this Division unless inconsistent with the context or subject-matter--

"medical certificate" means a certificate in the form or to the effect of Form A or Form B of the Third Schedule to this Act, signed by not less than two of the members of the Medical Board;

"pay" means only salary or wages and does not include any allowances or any money equivalent for any allowances which (in addition to his salary or wages) a member of the force is entitled to receive as such;

S. 39(1) def. of "Police Pensions Fund" repealed by No. 120/1994

s. 6(1)(e).

* * * * *

S. 39(1) def. of "Police Superann-uation Board" repealed by No. 120/1994

s. 6(1)(e).

* * * * *

(2) For the purposes of this Division--

(a) the expression "total disablement" means total loss of earning capacity in any employment, and in the case of partial disablement the degree of disablement shall be based upon the degree to which earning capacity is affected; (b) any injury suffered by a member of the force--

(i) whilst on duty or whilst on a journey necessary to enable him to report for duty or to return home after duty; or

(ii) whilst not on duty in the performance of some act which is within the scope of his ordinary duties; or

(iii) in consequence of some act performed in the execution of his duty;

shall be deemed to have been suffered in the execution of his duty; and

(c) any injury intentionally inflicted or incurred in the performance of a duty involving special risks shall be deemed to be a non-accidental injury.

No. 3750 s. 40.

40. Application to members of the force

(1) This Division shall apply to members of the force appointed on or after the twenty-fifth day of November One thousand nine hundred and two who were serving as such on the first day of January One thousand nine hundred and twenty-four and to members of the force appointed after the said date and save as hereinafter provided shall not apply to members of the force appointed before the twenty-fifth day of November One thousand nine hundred and two.

S. 40(2) repealed by No. 42/1990

s. 13(a).

* * * * *

(3) The provisions of this Division, unless otherwise expressly stated, shall apply to the Chief Commissioner in like manner, so nearly as circumstances admit, as they apply to any other member of the force, except that the certificate of approved service may be given by the Chief Secretary and that the Chief Commissioner shall be entitled after not less than ten years' approved service to receive an ordinary pension for life calculated in accordance with scale number two in the table in the Fourth Schedule to this Act and subject to the provisions and the general rules in the said Schedule.

S. 40(4) inserted by No. 7081 s. 16.

(4) Notwithstanding anything in the foregoing provisions of this section the provisions of this Part shall not apply--

(a) to any person appointed to be a member of the police force other than a police cadet on or after the appointed day within the meaning of Part I of the Superannuation Act 1963; or

(b) to any member of the force who becomes an officer within the meaning of the Superannuation Act 1958 pursuant to Part I of the Superannuation Act 1963--

but this Part shall continue on and after the said day to apply to--

(i) police cadets; and

(ii) members of the force who do not become officers within the meaning of the Superannuation Act 1958;

S. 41

repealed by No. 8722

s. 2(b).

* * * * *

42. Entitlement to pensions

(1) Every member of the force to whom this Part applies shall upon his retirement be entitled to receive an ordinary pension for life.

S. 42(2) substituted by No. 7081

s. 17.

(2) Any member of the police force to whom this Part continues to apply after the transfer day within the meaning of Part I of the Superannuation Act 1963 and who at that time or at any time thereafter holds the rank of Chief Commissioner and who elects to retire at any time after attaining the age of sixty years and before attaining the age of sixty-five years shall notwithstanding anything to the contrary in this Act be entitled upon his retirement to receive a pension for life in accordance with the following provisions--

(a) the pension shall be a percentage as hereinafter provided of the pension which he would have received on retirement upon attaining the age of sixty-five years if his salary and years of service at that time were the same as on the actual day of retirement;

(b) if he retires on his sixtieth birthday the appropriate percentage shall be Seventy-five per centum;

(c) if he retires at any time after his sixtieth birthday the appropriate percentage shall be Seventy-five per centum plus an additional Five-twelfths per centum for every completed calendar month by which his age at the day of retirement is greater than on his sixtieth birthday.

S. 42A inserted by No. 9640

s. 4(b).

42A. Pensioner may elect to convert part of pension entitlement to lump sum payment entitlement

S. 42A(1) amended by Nos 9672

s. 49(a), 120/1994

s. 9(1).

(1) Notwithstanding anything in this Act but subject to this section a pensioner who is receiving a pension under section 42 provided that he has not made an election under sub-section (3) may, within the period of three months immediately prior to his attaining the age of 65 years, elect in writing to convert not more than 30 per centum of his fortnightly pension entitlement or $46.50, whichever is the greater to an equivalent entitlement by way of a lump sum payment as determined by an actuary appointed by the ESS Board.

(2) Where a pensioner makes an election under sub-section (1) he shall be entitled to the lump sum payment when he attains the age of 65 years and his pension shall thereupon be reduced by the amount of the pension entitlement converted to a lump sum.

S. 42A(3) amended by No. 9672

s. 49(b), 120/1994

s. 9(1).

(3) Notwithstanding anything in this Act but subject to this section a contributor or pensioner (not being a pensioner at the commencement of the Superannuation Act 1980) who is or will be entitled to a pension under section 42 may, within the period commencing three months prior to his retirement and ending three months after his retirement, elect in writing to convert not more than 30 per centum of his fortnightly pension entitlement or $46.50, whichever is the greater to an equivalent entitlement by way of a lump sum payment as determined by an actuary appointed by the ESS Board.

(4) Where a contributor or pensioner makes an election under sub-section (3) he shall be entitled to the lump sum payment on retirement or on the day on which he makes the election (whichever is the later) and his pension shall be reduced by the amount of the pension entitlement converted to a lump sum on the day on which he becomes entitled to the lump sum payment.

(5) Any election under this section shall apply only in relation to that part of the entitlement of the applicant which relates to the pension that would be payable to him after he becomes entitled to the lump sum payment, until his death.

(6) The provisions of this section shall not apply to enable a contributor or pensioner, who, at any time after he has attained the age of 55 years, has received a pension under section 43 to elect to convert any of his fortnightly pension entitlement under section 42 to a lump sum entitlement.

S. 42A(9)

re-numbered as s. 42A(7) by No. 9549

s. 2(1)(Sch. item 161).

(7) A person shall not be entitled to make more than one election under this section.

No. 3750 s. 43.

43. Pensions and gratuities to members of the forceSubject to the provisions of this Division every member of the force--

(a) if he has completed ten years' approved service and is incapacitated for the performance of his duty by infirmity of mind or body, shall be entitled on a medical certificate to retire and receive an ordinary pension for life; and

(b) if at any time he is incapacitated for the performance of his duty by infirmity of mind or body occasioned by an injury received in the execution of his duty without his own default, shall be entitled on a medical certificate to retire and receive a special pension for life; and

(c) if he has not completed ten years' approved service and is incapacitated for the performance of his duty by infirmity of mind or body not occasioned by such injury as aforesaid, shall be entitled on a medical certificate to retire and receive a gratuity.

S. 44 amended by No. 7538 s. 2, substituted by Nos 8722

s. 2(c), 9066

s. 3.

44. Entitlement of spouse to pension or gratuity

(1) Where a member of the force dies--

(a) whilst serving in the force;

(b) whilst entitled to a pension under this Division; or

(c) in consequence of any disease or injury on account of which he retired from the force--

his spouse shall, unless she is entitled under sub-section (2) to a spouse's special pension, be entitled, subject to this Division, to a spouse's ordinary pension.

(2) Where a member or retired member of the force dies from the effect of an injury received in the execution of his duty without his own default, his spouse shall, if the injury was non-accidental, be entitled, subject to this Division, to a spouse's special pension.

S. 44(3) amended by No. 120/1994

s. 6(1)(f)(i)(ii).

(3) A spouse who is entitled to a pension under this Division may apply to the ESS Board for a gratuity in lieu of the whole or any part thereof; and the ESS Board may if it thinks fit grant to any spouse who is entitled to such a pension a gratuity in lieu of the whole or any part thereof.

S. 44(4) inserted by No. 120/1994

s. 8(1).

(4) No benefit is payable under this Division to a spouse who became the spouse of a retired member of the force only after he or she had finally ceased to be a member of the force and within 2 years of the death of the retired member of the force.

S. 44(5) inserted by No. 120/1994

s. 8(1).

(5) If a spouse who became the spouse of a retired member of the force after he or she had finally ceased to be a member of the force was more than 5 years younger than the retired member of the force then any pension payable to that spouse is to be reduced to the pension that, in the opinion of an actuary appointed by the ESS Board, is the actuarial equivalent at the date of becoming the spouse of the retired member of the force of the pension that would have been payable if the spouse was 5 years younger than the member of the force.

S. 44(6) inserted by No. 120/1994

s. 8(1).

(6) A person is not entitled to receive under this Division at the same time more than one pension but is entitled to whichever of those pensions is the greater.

S. 44(7) inserted by No. 120/1994

s. 8(1).

(7) Despite anything in this Division, only one spouse pension is payable in the case of the death of any one member of the force or retired member of the force, and if after the ESS Board has made reasonable enquiries more than one person should appear to the ESS Board to qualify for a spouse pension then--

(a) if the member of the force or retired member of the force has by request in writing to the ESS Board directed that the spouse pension be paid wholly to one of the persons qualified to receive it or that each be paid part, the ESS Board must give effect to the expressed intentions;

(b) if paragraph (a) does not apply, the ESS Board must in its absolute discretion determine which of the persons who qualifies is to receive the pension or must apportion it between them as the ESS Board considers appropriate.

S. 44A inserted by No. 8722

s. 2(c), repealed by No. 120/1994

s. 8(2).

* * * * *

S. 44B inserted by No. 8722

s. 2(c), amended by No. 19/1989 s. 16(Sch. items 44.1-44.6), repealed by No. 120/1994

s. 8(2).

* * * * *

Nos 3750

s. 45, 4592

s. 7(2).

45. Allowances and gratuities to children and dependantsSubject to the provisions of this Division--

S. 45(a) amended by No. 7910

s. 11(2).

(a) where a member of the force dies whilst in the force, or where a member of the force having been granted a pension dies his children--

(i) who are under the age of eighteen years; or

a gratuity not exceeding the value of the allowance payable under paragraph (a) as calculated by an actuary appointed by the ESS Board; and

(c) where a member of the force dies whilst in the force, or where a member of the force (having been granted a pension) dies within twelve months after the grant of the pension, or at any time from the effects of an injury received in the execution of his duty without his own default, and the said Board recommends the grant of a gratuity to any relative who has been wholly or mainly dependent upon such member the Governor in Council may grant such a gratuity.

Nos 3750

s. 46, 4592 s. 6, 5460 s. 3.

46. Scales of pensions, allowances and gratuitiesThe pensions allowances and gratuities payable under this Division shall be in accordance with the scales and provisions contained in the Fourth Schedule to this Act; and the general rules contained in Part III of the said Schedule shall apply to such pensions allowances and gratuities.

S. 46A inserted by No. 7538

s. 3, amended by No. 8722

s. 2(e)(i)-(v), substituted by No. 9460

s. 4(c).

46A. Member may elect to increase spouse's pension entitlement in certain circumstances

S. 46A(1) amended by No. 42/1990

s. 13(b).

(1) A member of the police force to whom this Part applies may at any time not more than six months and not less than three months before attaining the age of his retirement make a proposal to increase the pension that would be payable to his spouse should he predecease the spouse after his retirement in consideration of--

(a) a reduction of the amount of pension that would be payable to him after his retirement; or

S. 46A(1)(b) amended by No. 120/1994

s. 6(1)(g).

(b) a payment to the ESS Board.

(2) A member may not propose an increase in the pension payable to the spouse if the increase in the spouse's pension would make the spouse's pension more than two-thirds of the pension that would be payable to the member upon his retirement disregarding the reduction (if any) proposed to be made.

S. 46A(3) amended by No. 120/1994

s. 6(1)(g).

(3) Every such proposal shall be in writing in the prescribed form signed by the member, shall be lodged with the ESS Board and shall specify (as the case requires) the amount by which the member proposes to reduce his pension or the amount he proposes to pay to the Board for the purchase of an increase in his spouse's pension or both the amount so proposed to be reduced and the amount so proposed to be paid.

S. 46A(4) amended by No. 23/1994

s. 118 (Sch. 1 item 43.3), substituted by No. 120/1994 s. 9(2).

(4) The ESS Board must--

(a) arrange for the member to be examined by a registered medical practitioner appointed by the ESS Board; and

(b) forward to an actuary appointed by the ESS Board the medical report prepared under paragraph (a) together with any information that the ESS Board considers the actuary may require in relation to the member's proposal.

S. 46A(5) amended by No. 120/1994

s. 9(3).

(5) The actuary shall consider the information and medical report and shall advise the Board on the member's proposal and certify the amount of the increase in the spouse's pension that would in the opinion of the actuary be justified as a result of the proposed reduction in the member's pension or the proposed payment by the member.

S. 46A(6) amended by No. 120/1994

s. 9(3).

(6) If the Board approves the member's proposal the Board shall notify the member in writing of such approval and of the amount certified to the Board by the actuary in accordance with the provisions of sub-section (5).

S. 46A(7) amended by No. 120/1994

s. 9(3).

(7) If the member notifies the Board in writing prior to his retirement that he accepts the amount of increase certified by the actuary--

S. 46A(7)(a) amended by No. 120/1994

s. 9(3).

(a) the pension payable to him on his retirement shall be reduced by the amount proposed by him and the amount of his spouse's pension shall be increased by the amount certified to the Board by the actuary and accepted by the member prior to his retirement; and

46B. Amount of pension payable to pensioner

(1) Notwithstanding any other provision of this Act the pension payable to any pensioner who is employed in the service of the Crown shall be reduced by the amount by which five-sevenths of the amount of his pension together with the remuneration he receives from his employment in the service of the Crown exceed the current equivalent of his salary on retirement.

S. 46B(2) amended by No. 8179

s. 3(i).

(2) In this section--

"current equivalent of the salary on retirement" in relation to a pensioner means such salary as applies from time to time to the rank which the pensioner held on the day prior to his retirement, but, in the case of a pensioner who retired before the coming into operation of section 2 of the Police Regulation (Amendment) (No. 2) Act 1971 and on the day prior to such retirement held the rank of--

(a) superintendent, grade I--means such salary as applies from time to time to the rank of chief superintendent;

(b) superintendent, grade II--means such salary as applies from time to time to the rank of superintendent;

(c) inspector, grade I--means such salary as applies from time to time to the rank of inspector;

(d) inspector, grade II--means such salary as applies from time to time to the rank of inspector;

(e) sergeant--means such salary as applies from time to time to the rank of senior sergeant;

(f) senior constable--means such salary as applies from time to time to the rank of sergeant;

(g) first constable--means such salary as applies from time to time to the rank of senior constable;

S. 46B(2) def. of "employed in the service of the Crown" amended by Nos 9019 s. 2(Sch. item 185), 120/1994 s. 13, 46/1998

s. 7(Sch. 1).

"employed in the service of the Crown" in relation to a pensioner means a person employed under a contract of service--

(a) by the Crown whether employed pursuant to the Public Sector Management and Employment Act 1998, the Teaching Service Act 1981 or otherwise; or

(b) by any public statutory authority constituted under the law of the State--

whether the contract relates to permanent temporary casual full-time part-time or other type of employment.

(3) This section does not apply to the payment of a pension to a pensioner--

(a) who is in receipt of a pension under this Act as a widow of a member of the force or a pensioner;

(b) who being a pensioner became employed in the service of the Crown prior to the commencement of section 6 of the Superannuation (Amendment) Act 1969.

Nos 3750

s. 47, 5448 s. 2.

47. Service to be reckoned for pension

(1) The service of a member of the force for the purposes of this Division (including service during any period declared by regulations to be a period of probationary service) shall be subject to such deductions in respect of sickness misconduct or neglect of duty as may be made therefrom in pursuance of any regulations, not exceeding the period during which he is absent from duty on account of sickness misconduct or neglect of duty (as the case may be).

(2) The expression "approved service" shall, for the purposes of this Division, mean such service as may, after such deductions as aforesaid (if any), be certified by the Chief Commissioner to have been diligent and faithful service and, in the case of a member of the police force who having been a member of the land sea or air forces of any part of the Queen's dominions joined the police force within a period of twelve months from the date of his discharge from such forces, shall include his war service.

(3) Where a deduction is made from the service of a member of the force in respect of sickness misconduct or neglect of duty, notice of the deduction shall be given to him as soon as may be after the occurrence of the cause for which the deduction is made; and he may appeal to the Chief Commissioner against any act of any superior officer which prevents him from reckoning any period of actual service as approved service and any period of actual service allowed by the Chief Commissioner on such appeal shall be deemed to be approved service.

(4) For the purposes of this section "war service" means service with the land sea or air forces of any part of the Queen's dominions during the war which commenced in the year One thousand nine hundred and fourteen or during the war which commenced in the year One thousand nine hundred and thirty-nine or any continuation thereof.

S. 48 amended by No. 23/1994

s. 118 (Sch. 1 item 43.4), repealed by No. 120/1994 s. 6(1)(d).

* * * * *

No. 3750 s. 49.

S. 49 amended by No. 120/1994

s. 6(1)(g).

49. Power to reduce pension etc. where infirmity is due to misconductWhere a member of the force retires on account of infirmity of mind or body and the ESS Board is satisfied on a medical certificate that he has brought about or contributed to the infirmity by his own default or his vicious habits the Governor in Council may in his discretion reduce the amount of his pension or gratuity by an amount not exceeding one-half of that to which he would be otherwise entitled.

No. 3750 s. 50.

S. 50 substituted by No. 120/1994

s. 10.

50. Assignment of benefits

Benefits under this Part cannot in any way be assigned, charged or passed by operation of law other than under an Act of the Commonwealth.

S. 51

repealed by No. 7081

s. 18, new

s. 51

inserted by No. 120/1994 s. 10.

51. Payment of benefits if person is incapableIf a person who would ordinarily be entitled to receive benefits is--

(a) a person who is in the opinion of the ESS Board incapable of managing his or her affairs or of unsound mind; or

(b) an involuntary patient or a security patient within the meaning of the Mental Health Act 1986; or

S. 51(c) amended by No. 52/1998

s. 311(Sch. 1 item 74).

(c) a represented person under the Guardianship and Administration Act 1986--

the ESS Board may cause his or her benefits or any part of the benefits to be paid to his or her guardian or administrator, or, if there is no guardian or administrator, to a person nominated by the ESS Board for the benefit of that person and his or her dependants or any of them until he or she ceases to be incapable or of unsound mind, a patient or a represented person.

No. 3750 s. 52.

52. Penalty for obtaining pension etc. by fraud

(1) Every person who obtains or attempts to obtain for himself or for any other person--

(a) any pension gratuity or allowance under this Division or any payment on account thereof; or

(b) the return of any rateable deductions from pay under this Division--

by means of any false declaration, false certificate, false representation, false evidence, or personation, or by malingering or feigning disease or infirmity, or by maiming or injuring himself, or causing himself to be maimed or injured, or otherwise producing disease or infirmity, or by any other fraudulent conduct, shall be liable on conviction on presentment to imprisonment for a term of not more than two years, or on summary conviction to imprisonment for a term of not more than three months or to a penalty of not more than $50, and in any case to forfeit any pension gratuity allowance or other sum so obtained.

S. 52(2) amended by No. 120/1994

s. 6(1)(h).

(2) Any penalty imposed or sum forfeited for an offence under this section shall be paid into the Scheme.

S. 53

repealed by No. 120/1994

s. 6(1)(d).

* * * * *

Nos 3750

s. 54, 4592 s. 9.

54. Dismissal etc. for misconduct

S. 54(1) amended by No. 6957

s. 3(a)(i).

(1) A member of the force who for misconduct of any kind has been discharged or dismissed therefrom shall not be entitled to any pension or gratuity under this Division.

S. 54(2) amended by No. 6957

s. 3(a)(ii).

(2) Where a member of the force not having been discharged or dismissed for misconduct of any kind leaves the force without a pension or gratuity, there shall be paid to him the whole of the rateable deductions which have been made from his pay without any interest thereon:

S. 54(2) Proviso amended by Nos 6957

s. 3(a)(iii), 8722 s. 2(f)(i).

Provided that where a member of the force is for misconduct of any kind discharged or dismissed, the whole or any part of such rateable deductions as aforesaid may be applied in such manner as the said Board recommends for the benefit of his spouse or children (if any).

S. 54(3) amended by No. 8722

s. 2(f)(ii), 120/1994

s. 6(1)(g).

(3) On the death before retirement of a member of the force who leaves no spouse there shall be paid to the personal representative of such member the whole of the rateable deductions which have been made from the pay of such member without any interest thereon, less the amount certified by the ESS Board to be necessary to pay any allowance or gratuity payable to the children or any relative of such member.

Heading preceding s. 55

repealed by No. 26/1997

s. 48(b).

* * * * *

S. 55 amended by Nos 7081

s. 19, 8047

s. 16(a)(b), 8722 s. 2(g), 9460 s. 4(d)(e)(i)(ii), 9902 s. 2(1)(Sch. item 205), repealed by No. 120/1994

s. 6(1)(d).

* * * * *

No. 3750 s. 56.

S. 56 amended by No. 6957

s. 3(b).

56. Saving of right of dismissal and reduction in rankNothing in this Division shall prejudice any existing right of suspending reducing discharging or dismissing a member of the force or shall prevent his claim to pension or gratuity from being refused on account of misconduct or on account of any of the grounds on which a pension (if granted) would be liable to be forfeited and withdrawn.

No. 5359 s. 2.

57. DefinitionsIn the next two succeeding sections unless inconsistent with the context or subject-matter--

"pay" means only salary or wages and does not include any allowance or any money equivalent for any allowance which (in addition to his salary or wages) a member of the force is entitled to receive as such;

"pensioner" means a person who has retired from the force and is receiving a pension pursuant to this Act or any corresponding previous enactment.

Nos 5359 s. 3, 5448 s. 3.

58. Pensions of members who retired before 2 January 1948

(1) In the case of a pensioner who became a member of the force on or after the twenty-fifth day of November One thousand nine hundred and two and retired from the force before the second day of January One thousand nine hundred and forty-eight, as on and from the said second day of January and so long as a pension is payable to him the rate of such pension shall be calculated as if--

(a) the pay on the said second day of January for the rank he held at retirement were his pay at the date of retirement; and

(b) sub-paragraph (i) of the proviso to paragraph (a) of rule 19 of the Fourth Schedule to this Act were not applicable to the calculation of such pension--

(2) Subject to the next succeeding sub-section, in the case of a pensioner who became a member of the force before the twenty-fifth day of November One thousand nine hundred and two and retired from the force before the second day of January One thousand nine hundred and forty-eight, as on and from the said second day of January and so long as a pension is payable to him the rate of such pension shall be calculated as if--

(a) he were a person to whom the provisions of Division two of Part III of this Act apply and who on the said second day of January retired from the force with the same rank and service as such pensioner; and (b) sub-paragraph (i) of the proviso to paragraph (a) of rule 19 of the Fourth Schedule to this Act were not applicable to the calculation of such pension--

and the necessary adjustments shall be made in respect of payments of pension made to any such pensioner on or after the said second day of January.

S. 58(3) repealed by No. 42/1990

s. 13(c).

* * * * *

(4) For the purposes of this section any pensioner who--

(a) served as a member of the force for not less than ten years;

(b) was not reduced in rank while a member of the force; and

(c) held the rank of constable at the time of his retirement--

shall be deemed to have held the rank of first constable at the time of his retirement.

(5) Notwithstanding anything in the foregoing provisions of this section--

(a) except insofar as paragraph (b) of this sub-section applies, the rate of pension payable to any pensioner shall not at any time by virtue of this section be more than twenty-five per centum greater than the rate of pension payable to him immediately before the second day of January One thousand nine hundred and forty-eight;

(b) in the case of a pensioner who has elected as mentioned in sub-section (3) of this section, as from and after the coming into operation of the Police Regulation (Amendment) Act 1949 the rate of pension payable to him shall not by virtue of this section be more than twenty-five per centum greater than the rate of pension which would have been payable to him at the date of his retirement if (apart from sub-section (3) of this section) he had then been a person to whom Division two of Part III of the Police Regulation Act 1928 applied;

(c) no pensioner shall by virtue of this section (except by virtue of an election mentioned in sub-section (3) of this section) suffer any reduction of the pension which he was receiving before the said second day of January.

Nos 5359 s. 4, 5488 s. 4.

59. Retrospective increase in certain widows' pensions

(1) (a) Where immediately before the second day of January One thousand nine hundred and forty-eight the widow of a member of the force or of a pensioner was not entitled to receive any pension or was entitled to receive a pension of not more than $83.20 per annum, then as on and from the said second day of January and as long as a pension is payable to her a pension of $104 per annum shall be payable to such widow, and the necessary adjustments shall be made in respect of payments of pension to any such widow on and after the said second day of January;

(b) Where a member of the force or pensioner has died on or after the second day of January One thousand nine hundred and forty-eight and before the commencement of the Police Regulation (Amendment) Act 1948 and his widow was not entitled to receive any pension or was entitled to receive a pension of not more than $83.20 per annum, then as on and from the date of the death of the member or pensioner and as long as a pension is payable to her a pension of $104 per annum shall be payable to such widow, and the necessary adjustments shall be made in respect of payments of pension to any such widow on and after the date of the death of the pensioner.

(2) (a) The pension of any widow (other than a widow referred to in the last preceding sub-section) of a member of the force or pensioner who died before the second day of January One thousand nine hundred and forty-eight shall as on and from the said second day of January and as long as a pension is payable to her be the pension payable immediately before the said second day of January plus twenty-five per centum, and the necessary adjustments shall be made in respect of payments of pension to any such widow on and after the said second day of January;

(b) Where a member of the force or pensioner has died on or after the second day of January One thousand nine hundred and forty-eight and before the commencement of the Police Regulation (Amendment) Act 1948 the pension of his widow (not being a widow referred to in the last preceding sub-section) shall as on and from the date of the death of the member or pensioner and as long as a pension is payable to her be the pension payable as at the date of the death of the member or pensioner plus twenty-five per centum, and the necessary adjustments shall be made in respect of payments of pension to any such widow on and after the date of the death of the member or pensioner; (c) Notwithstanding anything in the foregoing provisions of this sub-section no pension payable to a widow shall by virtue of this sub-section be so increased as to exceed at any time after the second day of January One thousand nine hundred and forty-eight--

(i) in the case of a widow's ordinary pension, the maximum pension payable under this Act appropriate to the relevant rank and service of her husband in the force;

(ii) in the case of a widow's special pension, an amount equal to one-third of the annual pay which would have been payable on the said second day of January to a member of the force having the same rank and service as her husband had at the time of his death or retirement; and in calculating the annual pay for the purposes of this sub-paragraph, sub-paragraph (i) of the proviso to paragraph (a) of rule 19 of the Fourth Schedule to this Act shall not apply--

(3) The foregoing provisions of this section shall not apply in the case of a widow whose husband was not a person to whom the provisions of Division two of Part III of this Act or any corresponding previous enactment applied.

(4) Where immediately before the second day of January One thousand nine hundred and forty-eight the widow of a member of the force was receiving a pension pursuant to the provisions of section twenty-eight of the Police Regulation Act 1928 then as on and from the said second day of January and so long as a pension is payable to her the pension of such widow shall be the pension payable to her immediately before the said second day of January plus twenty-five per centum; and the necessary adjustments shall be made in respect of payments of pension made to any such widow on or after the said second day of January.

S. 59(5) repealed by No. 42/1990

s. 13(d).

* * * * *

No. 5460 s. 2.

60. Definitions

(1) In the next three succeeding sections unless inconsistent with the context or subject-matter--

"appointed day" means the thirtieth day of June One thousand nine hundred and fifty;

"pensioner" means a person who has retired from the force before the appointed day and who on or after the appointed day is receiving a pension pursuant to the provisions of this Act or any corresponding previous enactment.

S. 60(2) amended by No. 7332

s. 2(Sch. 1 item 95).

(2) For the purposes of the said sections and paragraph 5 of the Fourth Schedule to this Act any member of the force who held for any material period the rank of--

(a) constable (with at least ten years service and not having been reduced in rank)--shall be deemed to have held the rank of first constable;

(b) second-class sergeant or first-class sergeant--shall be deemed to have held the rank of sergeant;

(c) sub-inspector--shall be deemed to have held the rank of inspector--

for such period.

No. 5460 s. 4.

61. Increase of rates of pension to pensioners who retired before 30 June 1950

(1) The rate of pension payable under this Act to each pensioner shall be--

(a) the rate payable under Division two of Part III of this Act to a member of the force who--

(i) on the appointed day first became entitled to a similar pension; and

(ii) during the three years immediately preceding the appointed day held the same rank or ranks for the same period or periods as the pensioner held during the three years immediately prior to the date of his retirement; or

(b) the rate payable to the pensioner immediately before the appointed day plus twenty per centum--

whichever is the lower rate.

(2) No pensioner shall by virtue of this section suffer any reduction of the rate of pension which he was receiving immediately before the appointed day.

Nos 5460 s. 6, 5467 s. 2.

62. Increase of rates of pension to widows entitled to pension before 30 June 1950

(1) The rate of pension payable under this Act to any widow who became entitled to a widow's ordinary pension before the appointed day shall be--

(a) the rate which would be payable to her if she had first become entitled to the pension on the appointed day; or

(b) the rate payable to her immediately before the appointed day plus twenty per centum--

whichever is the lower rate.

(2) The rate of pension payable under this Act to any widow who became entitled to a widow's special pension before the appointed day shall be--

(a) the rate which would be payable to her if her husband--

(i) had on the appointed day while serving in the force died from the effects of a non-accidental injury received in the execution of his duty without his own default; and

(ii) during the three years immediately preceding the appointed day held the same rank or ranks for the same period or periods as he held during the three years immediately prior to the date of his actual death or retirement; or

(b) the rate payable to her immediately before the appointed day plus twenty per centum--

whichever is the lower rate.

(3) The rate of pension payable under this Act to any widow to whom the foregoing sub-sections of this section do not apply shall be the rate payable to such widow immediately before the appointed day plus twenty per centum.

No. 5460 s. 7.

63. Appropriate retrospective adjustments to be made

(1) Any necessary adjustments shall be made in respect of payments of pension made to any pensioner or widow after the appointed day.

(2) In respect of any such adjustments or of any adjustments authorized under the Police Regulation (Amendment) Act 1948 as amended by any Act payments shall (where the case so requires) be made to the personal representatives of a deceased recipient of pension in respect of the period up to death.

Heading preceding

s. 64

amended by No. 6486

s. 2(2).

No. 5897 s. 2.

64. Retrospective payments to pensioners widows and children already entitled to pensions etc.

S. 64(1) amended by No. 6486

s. 2(1)(a).

(1) Notwithstanding anything in this Act the pension or allowance payable to or in respect of any pensioner widow or child to or in respect of whom a pension or allowance was payable under the Police Regulation Acts immediately before the commencement of the Police Regulation (Pensions) Act 1955 shall be at the respective rates provided by this section.

(2) In this section "then rate of pension" means the rate of pension, including any additional amount payable under the Superannuation Police and State Pensions Act 1953, that was payable (apart from the operation of this section) to or in respect of the pensioner or widow concerned immediately before the commencement of the Police Regulation (Pensions) Act 1955.

(3) Subject to this section the rate of pension payable to such a pensioner shall be--

(a) if his then rate of pension was not more than $364--such then rate increased by one-seventh thereof;

(b) if his then rate of pension was more than $364 but not more than $728--such then rate increased by $52;

S. 64(3)(c) amended by No. 6486

s. 2(1)(b).

(c) if his then rate of pension was more than $728--a rate of $780 or such then rate (excluding any additional amount payable under the Superannuation Police and State Pensions Act 1953) increased by one-sixth thereof (whichever is the greater).

(4) Subject to this section the rate of pension payable to such a widow shall be her then rate of pension increased by one-quarter thereof.

S. 64(5) repealed by No. 6486

s. 2(1)(c).

* * * * *

(6) Notwithstanding anything in the foregoing provisions of this section--

(a) the rate of pension payable to any such pensioner shall not exceed the rate payable under Division two of Part III of this Act to a member of the force who--

(i) on the commencement of the Police Regulation (Pensions) Act 1955 first became entitled to a similar pension; and

(ii) during the three years immediately preceding the commencement of that Act held the same rank or ranks for the same period or periods as the pensioner held during the three years immediately prior to the date of his retirement;

(b) the rate of pension payable to any such widow shall not exceed the rate which would be payable to her if she had first become entitled to the pension on the commencement of that Act.

Heading preceding

s. 64A

inserted by No. 6695

s. 2.

S. 64A inserted by No. 6695

s. 2.

64A. Basic rate of pension

S. 64A(1) amended by No. 8722 s. 2(h)(i).

(1) In this section "basic rate of pension" means the pension payable per annum to any pensioner or spouse under the provisions of this Act other than the provisions of this section.

(2) (a) Where the basic rate of pension payable to a pensioner is not more than $728 the rate of pension payable to such pensioner shall be his basic rate of pension plus $65 or the rate of $728 per annum whichever is the less.

S. 64A(2)(b) amended by No. 8722

s. 2(h)(ii)(iii).

(b) Where the basic rate of pension payable to a widow is not more than $388.27 the rate of pension payable to such widow shall be her basic rate of pension plus $44.37 or the rate of $388.27 per annum whichever is the less.

S. 64B inserted by No. 15/1989

s. 9.

64B. Final salary for superannuation benefit purposes

(1) Despite anything in this or any other Act, or in any regulations made under any other Act, for the purposes of determining the amount of superannuation benefits payable to a member of the force whose service is terminated by resignation during the period for which that member remains on probation for the rank to which he or she was most recently appointed, the final salary of that member must be taken to be the salary applicable, on the day before the resignation takes effect, to the previous rank of the member.

(2) In this section--

S. 64B(2) def. of "disability" amended by Nos 49/1992

s. 112, 23/1994 s. 118 (Sch. 1 item 43.5).

"disability", in relation to a member of the force, means the inability of the member, due to a continuing or recurring injury, disease or infirmity, to perform his or her duties, or any other duties as directed by the Chief Commissioner, for which he or she is suited by education, training or experience, or for which he or she would be suited as a result of retraining as certified by at least 2 registered medical practitioners within the meaning of the Medical Practice Act 1994;

"previous rank", in relation to a member, means the rank of the member immediately before his or her most recent promotion on probation, whether or not his or her probationary appointment to that previous rank had been confirmed;

"resignation" means the termination of service by a member of the force other than by reason of death or disability.

Heading preceding

s. 64C inserted by No. 42/1990

s. 6(1).

S. 64C inserted by No. 42/1990

s. 6(1).

64C. Indexation of pensions[3]

(1) In this section--

S. 64C(1) def. of "consumer price index" amended by No. 120/1994

s. 11.

"consumer price index" means the all groups consumer price index number for all Capital Cities published by the Commonwealth statistician in respect of the June quarter and the December quarter for each year;

"prescribed half year" means the half year ended 30 June 1989 or any subsequent half year ending on 31 December or 30 June in which the consumer price index is higher than the previous highest consumer price index in or since the half year ended 30 June 1989;"prescribed percentage" in relation to a prescribed half year after 30 June 1989 means the percentage calculated to two decimal places in accordance with the formula--

where A is the consumer price index number for the prescribed half year and B is the consumer price index for the next preceding prescribed half year.

S. 64C(2) amended by No. 120/1994

s. 12.

(2) A pension under this Act, together with any supplementary pension granted under the Pensions Supplementation Act 1966 (whether granted before on or after the repeal of the Pensions Supplementation Act 1966), must--

(a) if it is then payable, be increased on the payment of the first instalment of pension in the month of December or June by an amount equal to one-sixth of the prescribed percentage for the next preceding prescribed half year (if any) of the pension for every whole month or part of a month during the preceding half year in respect of which a pension has been payable; or

(b) if for any reason it is not then payable, be notionally so increased as if then payable.

S. 64C(3) amended by No. 120/1994

s. 6(1)(g).

(3) If a pensioner becomes liable to have the amount of any pension, allowance, subsidy, concession or other benefit payable to the pensioner under the Social Security Act 1947 of the Commonwealth or the Veterans' Entitlements Act 1986 of the Commonwealth reduced by reason of an increase in the amount of the pensioner's fortnightly pension entitlement under this Act, the ESS Board may, on the application in writing of the pensioner at any time within the period commencing 3 months before the date on which the reduction is due to take effect and ending 3 months after the date on which the reduction took effect, convert the amount of the increase in the pensioner's fortnightly pension entitlement to an equivalent entitlement by way of a lump sum payment as determined by an actuary appointed by the Board.

S. 64C(4) amended by No. 120/1994

s. 6(1)(g).

(4) If an application by a pensioner under sub-section (3) is approved by the ESS Board, the pensioner is entitled to the lump sum payment on the day on which the reduction in the amount of the Commonwealth pension or other benefit is due to take effect or on the day on which the approval is given (whichever is the later) and the pensioner's pension is to be reduced by the amount of the pension entitlement converted to a lump sum on the day on which the pensioner becomes entitled to the lump sum payment. (5) An approval under this section operates to convert the proportion of the fortnightly pension entitlement of the pensioner's spouse following the pensioner's death that is identical to the proportion of the pensioner's fortnightly pension entitlement that is converted.

Pt 3 Div. 4 (Heading) substituted by No. 26/1997

s. 48(c).

S. 65 amended by No. 7332

s. 2(Sch. 1 item 96), repealed by No. 120/1994

s. 6(1)(d).

* * * * *

No. 3750 s. 58.

S. 66 amended by Nos 9460

s. 4(f), 120/1994

s. 6(1)(i).

66. Applications for pensions, gratuities etc.All applications for pensions, gratuities, allowances or lump sums under this Act or any corresponding previous enactment shall be made to the ESS Board.

S. 67 amended by No. 7538

s. 4(a)(b), 9460 s. 4(f), 9902

s. 2(1)(Sch. item 206), 49/1992

s. 114, repealed by No. 120/1994

s. 6(1)(d).

* * * * *

S. 67A inserted by No. 49/1992

s. 115, amended by No. 120/1994 s. 6(1)(g), repealed by No. 4/1996

s. 134(7)(a).

* * * * *

S. 67B inserted by No. 49/1992

s. 115.

67B. Preservation of minimum benefit

S. 67B(1) amended by Nos 120/1994

s. 6(1)(g)(j), 4/1996

s. 134(7)(b).

(1) If the amount of the benefit paid or payable under this Act in respect of any contributor or former contributor is less than the amount contributed by him or her to the Scheme and interest as determined by the ESS Board on that amount, there is to be paid out of the Scheme to that person in the manner that the ESS Board determines the difference between the two amounts.

S. 67B(2) repealed by No. 4/1996

s. 134(7)(a).

* * * * *

S. 67C inserted by No. 49/1992

s. 115, amended by No. 120/1994

s. 6(1)(g), repealed by No. 4/1996

s. 134(7)(a).

* * * * *

S. 67D inserted by No. 49/1992

s. 115, repealed by No. 4/1996

s. 134(7)(a).

* * * * *

Pt 4 (Heading) amended by No. 6957

s. 4(1)(b), substituted by No. 35/1993

s. 7.

New Pt 4 Div. 1 (Heading) inserted by No. 30/1999 s. 13.

S. 68 amended by Nos 6957

s. 4(1)(c), 9646 s. 7 (as amended by No. 9902 s. 2(1)(Sch. item 208)), 15/1989

s. 10(1)(2), 42/1990

s. 4(2)(a)(b), 11/1992 s. 6, repealed by No. 35/1993

s. 8, new s. 68 inserted by No. 30/1999 s. 13.

68. Chief Commissioner may dismiss unsuitable members

(1) The Chief Commissioner, by written order, may dismiss a member of the force (other than a Deputy Commissioner or an Assistant Commissioner) if the Chief Commissioner is satisfied that the member is unsuitable to continue as a member of the force, having regard to--

(a) the member's integrity; and

(b) the potential loss of community confidence in the force were the member to continue as a member of the force.

(2) Before dismissing a member under this section, the Chief Commissioner--

(a) must give the member a notice setting out the grounds on which the Chief Commissioner considers the member is unsuitable to continue as a member of the force; and

(b) must give the member at least 21 days in which to make written submissions in relation to the proposed dismissal; and

(c) must take into account any submissions made by the member during that period.

(3) The order must set out the reasons why the Chief Commissioner is satisfied that the member is unsuitable to continue as a member of the force.

(4) The dismissal takes effect when the order is made.

(5) The Chief Commissioner must give written notice of the order to the member as soon as practicable after it is made.

(6) A notice under sub-section (2)(a) or (5) may be given to a member--

(a) in person; or

(b) by sending it by post, facsimile or other electronic means to the member at his or her usual or last known residential address; or (c) by leaving it at the member's usual or last known residential address with a person on the premises apparently at least 16 years old and apparently residing there.

(7) A notice under sub-section (2)(a) or (5) is to be taken to have been given to a member--

(a) in the case of delivery in person--at the time of delivery;

(b) in the case of posting--2 business days after the day on which the document was posted;

(c) in the case of facsimile or other electronic transmission--at the time the transmission is received.

(8) If a facsimile or other electronic transmission is received after 4.00 p.m. on any day, it is to be taken to have been received on the next business day.

(9) In this section--

"business day" means a day other than--

(a) a Saturday or Sunday; or

(b) a public holiday or public half-holiday in the place to where the notice is sent or delivered.

Pt 4 Div. 1 (Heading) inserted by No. 35/1993 s. 9, repealed by No. 59/1996 s. 10(Sch. 2 item 18).

* * * * *

S. 68A inserted by No. 11/1992, s. 7,

amended by Nos 47/1992 s. 25(7)(a)(b), 83/1992 s. 184 (Sch. 6 item 17.1(a)(b)), repealed by No. 59/1996 s. 10(Sch. 2 item 18),

new s. 68A inserted by No. 30/1999 s. 13.

68A. Suspension pending decision

(1) If the Chief Commissioner gives a member of the force a notice under section 68(2)(a), the Chief Commissioner may suspend the member with pay pending the making of an order under section 68(1).

(2) A suspension under sub-section (1) lasts until the earliest of--

(a) the making of an order under section 68(1) dismissing the member; and

(b) the lifting of the suspension by the Chief Commissioner; and

(c) the expiration of the period of 60 days after the giving of the notice under section 68(2)(a).

(3) The Chief Commissioner may apply to the chairperson of the Police Board for an extension of the time specified in sub-section (2)(c).

(4) The chairperson may give the extension if he or she reasonably believes it is necessary for the proper consideration of the matter by the Chief Commissioner.

(5) An extension may be given more than once.

S. 68B

inserted by No. 30/1999 s. 13.

68B. Application for review of dismissal order

(1) A member of the force who is dismissed from the force by an order under section 68(1) may apply to the Police Board for a review of the Chief Commissioner's decision to make the order on the ground that the decision was not sound, defensible or well-founded.

(2) An application for review must be made within 14 days after the member is notified of the making of the order to which the application relates.

(3) An application for review does not stay the operation of the order to which it relates.

S. 68C

inserted by No. 30/1999 s. 13.

68C. Procedure on review

(1) In conducting a review, the Police Board must proceed as follows--

(a) first, it must consider the Chief Commissioner's reasons for the decision to dismiss the applicant from the force;

(b) secondly, it must consider the case presented by the applicant as to why the decision was not sound, defensible or well-founded;

(c) thirdly, it must consider the case presented by the Chief Commissioner in answer to the applicant's case.

(2) In conducting a review--

(a) the Board must proceed with as little formality and technicality, and as much speed, as a proper consideration of the matters relevant to the review permits; and

(b) the Board is bound by the rules of natural justice.

(3) The applicant has at all times the burden of establishing that the decision to dismiss the applicant from the force was not sound, defensible or well-founded.

(4) Without limiting the matters to which the Board is otherwise required or permitted to have regard in making its decision, the Board must have regard to--

(a) the public interest (which is taken to include the interest of maintaining the integrity of, and community confidence in, the force and the fact that the Chief Commissioner made an order under section 68(1)); and

(b) the interests of the applicant.

S. 68D

inserted by No. 30/1999 s. 13.

68D. What may the Police Board order?

(1) If the Police Board is satisfied that the decision to dismiss the applicant from the force was not sound, defensible or well-founded, the Board may--

(a) order the Chief Commissioner to re-instate the applicant as a member of the force on terms not less favourable to the applicant than those that would have been applicable if he or she had not been dismissed; or

(b) if the Board considers that it would be impracticable to re-instate the applicant, order the Chief Commissioner to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 12 months immediately before being dismissed; or

(c) refer the matter back to the Chief Commissioner for re-consideration in accordance with any directions or recommendations that the Board considers appropriate.

(2) If the Board makes an order under sub-section (1)(a), it may also--

(a) order the Chief Commissioner to pay the applicant an amount stated in the order that does not exceed the amount that the applicant would, but for being dismissed, have received before being re-instated; and

(b) order that the period of service of the applicant as a member of the force is taken not to have been broken by the dismissal.

(3) If the applicant was on leave without full pay during any part of the period of 12 months immediately before being dismissed, the maximum amount of compensation that may be ordered under sub-section (1)(b) to be paid is to be determined as if the applicant had received full pay while on leave. (4) When assessing any compensation payable, the Board must take into account--

(a) whether the applicant made a reasonable attempt to find alternative employment; and

(b) the remuneration received in any alternative employment or that would have been payable if the applicant had succeeded in obtaining alternative employment.

(5) If the Board is not satisfied that the decision to dismiss the applicant from the force was not sound, defensible or well-founded, the Board must confirm the order of the Chief Commissioner.

S. 68E

inserted by No. 30/1999 s. 13.

68E. Evidence

(1) The Police Board is not bound by the rules of evidence or any practices or procedures applicable to courts of record and, subject to this section, may inform itself on any matter as it sees fit.

(2) The Board may require evidence to be given on oath and, for that purpose, a member of the Board may administer an oath or cause an oath to be administered.

(3) Subject to sub-section (4), evidence is not to be adduced before the Board unless--

(a) notice of intention to do so, and of the substance of the evidence, has been given to the Board before the commencement of the hearing of the review; and

(b) the Board gives leave.

(4) Sub-section (3) does not apply to the following--

(a) the Chief Commissioner's order;

(b) the notice given under section 68(2)(a);

(c) any information before the Chief Commissioner at the time of making the order, including any submissions made under section 68(2)(c).

(5) The Board--

(a) may give leave under sub-section (3)(b) in such circumstances as it thinks fit and having regard to the nature of the review; and

(b) without limiting paragraph (a), must give leave under sub-section (3)(b) if it is satisfied--

(i) that there is a real probability that the applicant may be able to show that the Chief Commissioner has acted on wrong or mistaken information; or

(ii) that there is cogent evidence to suggest that the information before the Chief Commissioner was unreliable, having been placed before the Chief Commissioner maliciously, fraudulently or vexatiously; or

(iii) that the evidence sought to be adduced might materially have affected the Chief Commissioner's decision.

S. 68F

inserted by No. 30/1999 s. 13.

68F. Witnesses

(1) None of the following is a compellable witness in a review unless the Board gives leave--

(a) the Chief Commissioner;

(b) a member of the force;

(c) a person employed in the office of the Chief Commissioner.

(2) The Board may give leave only if it considers that extraordinary grounds exist that warrant leave being given.

(3) Subject to sub-section (1) and section 68E, the chairperson of the Board may issue a summons to a person to attend the Board to give evidence and produce any documents that are referred to in the summons.

(4) A person who has been properly served with a summons to attend must not, without reasonable excuse, fail to--

(a) attend as required by the summons until he or she has been excused or released from attendance by the Board; or

(b) produce any document referred to in the summons that is in his or her possession.

Penalty: Imprisonment for 1 month or 10 penalty units or both.

S. 68G

inserted by No. 30/1999 s. 13.

68G. Representation and costs

(1) In a review, the Chief Commissioner and the applicant may appear personally or be represented by a legal practitioner or, with the leave of the Board, by any other person.

(2) Subject to sub-section (3), each party is to bear their own costs of the review.

(3) The Board may order that a party pay all or a specified part of the other party's costs of a review if satisfied that the first party has conducted themselves in the review in a way that unnecessarily disadvantaged the other party.

(4) An order for costs may be enforced as a debt in a court of competent jurisdiction.

S. 68H

inserted by No. 30/1999 s. 13.

68H. Contempt of Police Board

A person must not--

(a) insult a member of the Police Board while that member is performing functions as member under this Division; or

(b) insult, harass, intimidate, obstruct or hinder a person attending a hearing of the Board in a review; or

(c) misbehave at a hearing of the Board in a review; or

(d) do any other act in relation to a review that would, if the Board were the Supreme Court, constitute contempt of that Court.

S. 68I

inserted by No. 30/1999 s. 13.

68I. Protection of review participants

(1) A member of the Police Board has, in the performance of his or her functions as member in a review, the same protection and immunity as a judge of the Supreme Court has in the performance of his or her duties as judge.

(2) A person representing a party in a review has the same protection and immunity as a legal practitioner has in representing a party in proceedings in the Supreme Court.

(3) A party to a review has the same protection and immunity as a party to proceedings in the Supreme Court.

(4) A person appearing as a witness in a review has the same protection and immunity as a witness has in proceedings in the Supreme Court.

Pt 4 Div. 2 (Heading) inserted by No. 35/1993

s. 10.

Nos 5126 s. 3, 5260 s. 3(1), 6091 s. 3(1).

S. 69 amended by Nos 6833 s. 3, 6957

s. 4(1)(d)(e), 8179

s. 3(j)(i)(ii), 8487 s. 3, 8745 s. 5, 9066 s. 4, 9433 s. 2, 9646 s. 4(a)-(d), 9906 s. 4, 9975 s. 4(a)(b), 10250

s. 9(a)(b), 32/1987

s. 5(1)(a)(b), 15/1989 s. 11, 42/1990

s. 4(3)(a)(i)(ii) (b)(c), 11/1992 s. 8(1)(a)(b)(2), substituted by No. 35/1993

s. 10.

69. Breaches of discipline

(1) A member of the force commits a breach of discipline if he or she--

(a) contravenes a provision of this Act or the regulations; or

(b) fails to comply with a standing order or instruction of the Chief Commissioner; or

(c) engages in conduct that is likely to bring the force into disrepute or diminish public confidence in it; or

(d) fails to comply with a lawful instruction given by the Chief Commissioner, a member of or above the rank of senior sergeant or a person having the authority to give the instruction; or

(e) is guilty of disgraceful or improper conduct (whether in his or her official capacity or otherwise); or

(f) is negligent or careless in the discharge of his or her duty; or

(g) without the approval of the Chief Commissioner--

(i) applies for or holds a licence or permit to conduct any trade, business or profession; or

(ii) conducts any trade, business or profession; or

(iii) accepts any other employment; or

(h) acts in a manner prejudicial to the good order or discipline of the force; or

(i) has been charged with an offence (whether under a Victorian law or under a law of another place) and the offence has been found proven.

(2) A member of the force who aids, abets, counsels or procures, or who, by any act or omission, is directly or indirectly knowingly concerned in or a party to the commission of a breach of discipline, also commits a breach of discipline.

No. 5126 s. 4.

S. 70 amended by Nos 6957

s. 4(1)(f), 8097 s. 4, 8179

s. 3(k), 9433

s. 3(a)-(c), 9646 s. 5(a)(b)(i)(ii) (c)-(f), 15/1989 s. 12, 42/1990 s. 4(4)(a)-(d), 11/1992 s. 9, 83/1992 s. 184 (Sch. 6 item

17.2(a)-(c)), substituted by No. 35/1993

s. 10.

70. Preliminary investigation

(1) If the Chief Commissioner reasonably believes that a member of the force may have committed a breach of discipline, the Chief Commissioner may begin an investigation of the matter.

S. 70(2) amended by No. 30/1999 s. 14(1)(a)(i).

(2) At any time during an investigation into a matter the Chief Commissioner may--

(a) transfer the member to other duties; or

S. 70(2)(b) amended by No. 30/1999 s. 14(1)(a)(ii).

(b) direct the member to take any leave which has accrued to him or her; or

(c) suspend the member from the Force with pay.

(3) If the Chief Commissioner has not charged a member within 3 months of taking action under sub-section (2), the Chief Commissioner must withdraw the transfer, direction or suspension.

(4) The Chief Commissioner may apply to the Chairperson of the Police Review Commission for an extension of the time specified in sub-section (3).

(5) The Chairperson may give the extension if he or she reasonably believes it is necessary for the inquiry.

No. 5126 s. 5.

S. 71 amended by No. 9019

s. 2(1)(Sch. item 185), substituted by No. 35/1993

s. 10.

71. Charging

(1) If, after conducting a preliminary investigation, the Chief Commissioner or an officer authorised by the Chief Commissioner reasonably believes that a member of the force has committed a breach of discipline, the Chief Commissioner or authorised officer may charge the member with the commission of that breach of discipline.

S. 71(2) repealed by No. 30/1999 s. 14(1)(b)(i).

* * * * *

(3) Upon charging a member, the Chief Commissioner or authorised officer may--

(a) transfer the member to other duties; or

S. 71(3)(b) amended by No. 30/1999 s. 14(1)(b)(ii).

(b) direct the member to take any leave which has accrued to him or her; or

(c) suspend the member from the Force with or without pay.

(4) Any action taken under sub-section (3) remains in force until the charge has been finally determined.

No. 5126 s. 7.

S. 72 amended by Nos 6957

s. 4(1)(g), 9902

s. 2(1)(Sch. item 207), 42/1990 s. 13(e), substituted by No. 35/1993

s. 10.

72. Form of charge

(1) A charge must--

(a) be in writing; and

(b) contain particulars of the alleged breach of discipline; and

(c) specify when and where an inquiry into the charge is to be conducted; and

(d) specify that the member must state in writing whether or not he or she admits or denies the truth of the charge; and

(e) specify the time within which the member must make the statement under paragraph (d).

(2) If a member has not made the statement required under sub-section (1)(d) within the time specified under sub-section (1)(e), the Chief Commissioner can proceed without the statement.

No. 5126 s. 8.

S. 73 amended by No. 9646 s. 7 (as amended by No. 9902 s. 2(1)(Sch. item 208)), substituted by No. 35/1993

s. 10.

73. Inquiry into a charge

The Chief Commissioner or an officer authorised by the Chief Commissioner must inquire into and determine a charge.

No. 5126 s. 9.

S. 74 substituted by No. 35/1993

s. 10, amended by No. 46/1998

s. 7(Sch. 1).

74. Authorised officers

The Chief Commissioner may authorise any member of the force or any person employed under the Public Sector Management and Employment Act 1998 to charge a member or to inquire into and determine a charge under section 73.

No. 5126 s. 10.

S. 75 substituted by No. 35/1993

s. 10.

75. Procedure on an inquiry

S. 75(1) amended by No. 35/1996 s. 453(Sch. 1 item 65.1).

(1) A member of the force who is charged with a breach of discipline may appear at the inquiry into the charge or may be represented by any person other than a legal practitioner.

(2) If a member who is the subject of an inquiry does not attend in person or by representative at the time and place fixed for the inquiry, the person conducting the inquiry may proceed in his or her absence.

(3) At an inquiry--

(a) subject to this section, the procedure of the inquiry is at the discretion of the person conducting it; and

(b) the proceedings must be conducted with as little formality and technicality as the requirements of this Act and the proper consideration of the matter permit; and

(c) the person conducting the inquiry is not bound by the rules of evidence but may inform himself or herself in any way he or she sees fit; and

(d) the person conducting the inquiry is bound by the rules of natural justice.

(4) Sections 14, 15, 16 and 21A of the Evidence Act 1958 apply to the conduct of an inquiry as if the person conducting the inquiry were a Board or the Chairman of a Board appointed by the Governor in Council.

No. 5126 s. 11.

S. 76 amended by Nos 7349

s. 2(a), 9646

s. 7 (as amended by No. 9902 s. 2(1)(Sch. item 208)), substituted by No. 35/1993

s. 10.

76. Determination of the inquiry

(1) If, after considering all the submissions made at an inquiry the person conducting the inquiry finds that the charge has been proved, the person conducting the inquiry may make one or more of the following determinations--

(a) to reprimand the member; or

S. 76(1)(b) amended by No. 30/1999 s. 14(1)(c).

(b) to adjourn the hearing of the inquiry into the charge on the condition that the member be of good behaviour for a period not exceeding 12 months or on any other condition specified in the determination; or

(c) to impose a fine not exceeding 40 penalty units; or

(2) The person conducting the inquiry may also determine that the member make any restitution or pay any compensation or costs that are appropriate for that matter.

(3) If the person conducting the inquiry reduces a member in rank, the Chief Commissioner must determine the seniority of that member in relation to other members of that rank to which he or she has been reduced.

(4) If the person conducting the inquiry finds that the charge has not been proved--

(a) any suspension against the member relating to the charge expires; and

(b) if the member has been suspended without pay, an amount equal to the pay the member would have received during that period of suspension must be paid to the member; and

(c) if the member has been directed to take leave, the member must be credited with any leave taken at that direction.

No. 5126 s. 12.

S. 77 amended by Nos 7349

s. 2(b), 9646

s. 7 (as amended by No. 9902 s. 2(1)(Sch. item 208)), substituted by No. 35/1993

s. 10.

77. Enforcement of the determination

(1) The Chief Commissioner and, where the Chief Commissioner has not conducted the inquiry, the person conducting the inquiry must take all action necessary to give effect to a determination made on an inquiry.

S. 77(2) amended by No. 30/1999 s. 14(1)(e).

(2) A fine or requirement to pay compensation or costs or make restitution may be recovered in the Magistrates' Court as a civil debt or by deducting the amount from the pay of the member or from any other amount payable to the member by the State.

No. 5126 s. 13.

S. 78 amended by No. 42/1990 s. 4(5), substituted by No. 35/1993

s. 10.

78. Adjournment of charge

(1) If the hearing of an inquiry into a charge has been adjourned under section 76(1)(b), the time and place of the further hearing must be fixed at the time of the adjournment.

(2) If, at the further hearing of the inquiry into the charge, the person conducting the hearing is satisfied that the member has been of good behaviour, he or she must dismiss the charge, but in any other case the hearing must be continued in the same manner as if it had not been adjourned.

Pt 4 Div. 3 (Heading) inserted by No. 35/1993

s. 10.

No. 5126 s. 14.

S. 79 amended by No. 6505 s. 2, substituted by No. 35/1993

s. 10.

79. Where member believed to have committed a criminal offence punishable by imprisonment

S. 79(1) amended by No. 30/1999 s. 14(1)(f)(i).

(1) If the Chief Commissioner reasonably believes a member of the force to have committed an offence punishable by imprisonment the Chief Commissioner may cause an investigation into the matter under the criminal law to be commenced and may, at any time during that investigation--

(a) transfer the member to other duties; or

S. 79(1)(b) amended by No. 30/1999 s. 14(1)(f)(ii).

(b) direct the member to take any leave which has accrued to him or her; or

(c) suspend the member from the Force with pay.

(2) If a member of the force has been charged under the criminal law with an offence punishable by imprisonment (whether or not within the State or within any other jurisdiction) the Chief Commissioner may--

(a) transfer the member to other duties; or

S. 79(2)(b) amended by No. 30/1999 s. 14(1)(f)(ii).

(b) direct the member to take any leave which has accrued to him or her; or

(c) suspend the member from the Force, with or without pay.

No. 5126 s. 15.

S. 80 substituted by No. 35/1993

s. 10.

80. Where charge found proven against a member

(1) If a member of the force has been charged under the criminal law with an offence punishable by imprisonment (whether or not within the State or in any other jurisdiction) and the offence has been found proven, the Chief Commissioner may--

S. 80(1)(a) substituted by No. 26/1997

s. 40.

(a) do one or more of the following--

(i) reprimand the member;

(ii) reduce rank or seniority of the member;

(iii) reduce the remuneration of the member; or

S. 80(1)(c) substituted by No. 26/1997

s. 40.

(c) impose a fine not exceeding 40 penalty units; or

S. 80(1)(ca) inserted by No. 30/1999 s. 14(1)(h).

(ca) to impose a period, not exceeding 2 years, during which the member will not be eligible for promotion or transfer to other duties; or

S. 80(1)(e) substituted by No. 26/1997

s. 40.

(e) dismiss the member.

S. 80(1)(f)(g) repealed by No. 26/1997

s. 40.

* * * * *

(2) If a member who has been dismissed under this section is subsequently pardoned or the conviction of the member is subsequently quashed or otherwise nullified, the member may be re-appointed to the force at the rank the member held before dismissal.

(3) Upon a re-appointment under sub-section (2), the member is deemed to have continued in the force as if not dismissed and as if, during the period during which the member was not performing his or her duties because of the dismissal, the member had been on leave of absence without pay.

(4) For the purposes of sub-section (3), a member is not to be taken to be entitled to any other leave credits for any period during which he or she is to be taken to have been on leave of absence without pay.

S. 80(5) inserted by No. 30/1999 s. 14(2).

(5) A fine imposed under this section may be recovered in the Magistrates' Court as a civil debt or by deducting the amount from the pay of the member or from any other amount payable to the member by the State.

No. 5126 s. 16.

S. 81 substituted by No. 35/1993

s. 10.

81. Action not to be taken against a member twice

The Chief Commissioner must not take action against a member under Division 2 in respect of an act for which that member has had action taken against him or her under section 80(1).

Pt 4 Div. 4 (Heading) inserted by No. 35/1993

s. 10.

No. 5126 s. 17.

S. 82 amended by Nos 9066 s. 5, 9646 s. 6(a)-(f), 9975 s. 5, 32/1987

s. 5(2)(a)(b), substituted by No. 15/1989

s. 13, amended by Nos 42/1990

s. 4(6)(a)(b), 11/1992 s. 10, substituted by No. 35/1993

s. 10.

82. Inquiry into fitness for duty

(1) If the Chief Commissioner reasonably believes that a member is incapable of performing his or her duties or inefficient in performing his or her duties and that incapacity or inefficiency is not caused by any infirmity of mind or body, the Chief Commissioner must inquire into the matter.

S. 82(2) amended by No. 46/1998

s. 7(Sch. 1).

(2) The Chief Commissioner may authorise a member of the force or a person employed under the Public Sector Management and Employment Act 1998 to inquire into a matter under this Division.

No. 5126 s. 18.

S. 83

repealed by No. 11/1992 s. 11, new s. 83 inserted by No. 35/1993

s. 10.

83. Notice of the inquiry

(1) The person conducting the inquiry must give notice of the inquiry in writing to the member who is the subject of the inquiry.

(2) A notice under sub-section (1) must--

(a) state the time and place at which the inquiry is to be conducted; and

(b) give particulars of the alleged incapacity or inefficiency.

No. 5126 s. 19.

S. 84

repealed by No. 11/1992 s. 12, new s. 84 inserted by No. 35/1993

s. 10.

84. Procedure at an inquiry

S. 84(1) amended by No. 35/1996 s. 453(Sch. 1 item 65.1).

(1) A member of the force who is the subject of an inquiry may appear at the inquiry or may be represented by any person other than a legal practitioner.

(2) If a member who is the subject of an inquiry does not attend in person or by representative at the time and place fixed for the inquiry, the person conducting the inquiry may proceed in his or her absence.

(3) At an inquiry--

(a) subject to this section, the procedure of the inquiry is at the discretion of the person conducting it;

(b) the proceedings must be conducted with as little formality and technicality as the requirements of this Act and the proper consideration of the matter permit;

(c) the person conducting the inquiry is not bound by the rules of evidence but may inform himself or herself in any way he or she sees fit; and

(d) the person conducting the inquiry is bound by the rules of natural justice.

(4) Sections 14, 15, 16 and 21A of the Evidence Act 1958 apply to the conduct of an inquiry as if the person conducting the inquiry were a Board or the Chairman of a Board appointed by the Governor in Council.

No. 5126 s. 20.

S. 85 substituted by Nos 8745 s. 3, 35/1993 s. 10.

85. Determination of the inquiryIf, after considering all the submissions made at the inquiry, the person conducting the inquiry finds that the member is incapable of performing his or her duties or inefficient in performing his or her duties, the person conducting the inquiry may--

(a) transfer the member to other duties; or

(b) reduce the member in rank; or

(c) dismiss the member.

S. 85A inserted by No. 8745 s. 3, repealed by No. 35/1993

s. 10.

* * * * *

Pt 4 Div. 5 (Heading) inserted by No. 35/1993

s. 10.

No. 5126 s. 21.

S. 86 amended by Nos 6886 s. 3, 11/1992 s. 13, substituted by No. 35/1993

s. 10.

86. Suspension of a member

(1) Despite anything to the contrary in this or any other Act or regulation, a member of the force who has been suspended without pay under section 71(3)(c) or 79(2)(c), may, with the approval of the Chief Commissioner, undertake paid employment during the period of that suspension.

S. 86(2) amended by No. 30/1999 s. 14(3)(a).

(2) Immediately upon being suspended, a member must surrender his or her certificate of identity, uniform and equipment issued to him or her for the performance of his or her duties.

Penalty: 50 penalty units.

S. 86(3)-(5) repealed by No. 30/1999 s. 14(3)(b).

* * * * *

(6) A member who has been suspended from the Force must comply with an order from a superior officer to temporarily return to work. A member who does not comply with such an order is guilty of an offence and liable upon conviction to a penalty of 5 penalty units.

(7) A member who is suspended must not, while on suspension, enter any police premises, other than those areas available to the public, unless under a direction to do so.

Penalty: 5 penalty units.

S. 86AAA inserted by No. 30/1999 s. 15.

86AAA. Forfeiture of salary by suspended member

(1) If--

(a) a charge is proven against a member of the force under Division 2; or

(b) a member of the force has been charged with an offence referred to in section 80 and the offence has been found proven; or

(c) a member resigns from the force before any charge under Division 2 or any criminal charge referred to in section 80 is finalised--

and the member has been suspended, the member forfeits all salary that accrued to him or her during the member's suspension and must repay any salary that has been paid to him or her during the suspension.

(2) Any salary not repaid under sub-section (1) may be recovered by the Chief Commissioner, as a debt due to the State, in a court of competent jurisdiction.

(3) The Chief Commissioner may, on application to him or her in writing, determine that sub-section (1) does not apply to a member of the force.

S. 86AA inserted by No. 35/1993

s. 10.

86AA. No compensation for dismissal or reduction of rankA member of the force is not entitled to any compensation for a reduction in his or her salary which is consequent upon a reduction in his or her rank or his or her dismissal under this Part except in accordance with any arrangement made with the employer of members of the force about the termination of employment of members of the force.

Pt 4 Div. 6 (Heading) inserted by No. 35/1993

s. 10.

S. 86AB inserted by No. 35/1993

s. 10.

86AB. Annual report of Chief Commissioner

S. 86AB(1) amended by No. 30/1999 s. 16.

(1) The Chief Commissioner must prepare a report in respect of each year ending on 30 June on any action taken by the Chief Commissioner or an authorised officer under this Part and on the outcome of any such action and on any action taken by the Chief Commissioner upon reviews by the Police Review Commission or the Police Board.

(2) The Chief Commissioner must submit the report to the Minister not later than 30 September in that year.

Pt 4A (Heading) inserted by No. 10250 s. 10, substituted by No. 14/1988 s. 18(Sch. 1 item 1).

Pt 4A (ss 86A-86U)

inserted by No. 10250 s. 10.

S. 86A inserted by No. 10250

s. 10.

86A. DefinitionsIn this Part--

S. 86A def. of "Authority" repealed by No. 14/1988

s. 14(a).

* * * * *

S. 86A def. of "conduct" substituted by No. 26/1997

s. 41(1).

"conduct", in relation to a member of the force, means--

(a) an act or decision or the failure or refusal by the member to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the member has as or, by virtue of being, a member of the force; or

(b) conduct which constitutes an offence punishable by imprisonment; or

(c) conduct which is likely to bring the force into disrepute or diminish public confidence in it; or

(d) disgraceful or improper conduct (whether in the member's official capacity or otherwise);

S. 86A def. of "Deputy Ombudsman" inserted by No. 14/1988

s. 14(b).

"Deputy Ombudsman" means the Deputy Ombudsman (Police Complaints) appointed under section 6A of the Ombudsman Act 1973;

S. 86A def. of "Ombudsman" inserted by No. 14/1988

s. 14(b).

"Ombudsman" means the Ombudsman appointed under section 3 of the Ombudsman Act 1973;

S. 86A def. of "serious misconduct " inserted by No. 26/1997

s. 41(2).

"serious misconduct", in relation to a member of the force, means--

(a) conduct which constitutes an offence punishable by imprisonment; or

(b) conduct which is likely to bring the force into disrepute or diminish public confidence in it; or

(c) disgraceful or improper conduct (whether in the member's official capacity or otherwise).

S. 86B inserted by No. 10250

s. 10, substituted by No. 14/1988

s. 15.

86B. Provisions of this Act prevailA provision of this Act that is inconsistent with a provision of the Ombudsman Act 1973 prevails, to the extent of the inconsistency, over the provision of that Act.

Ss 86C-86H inserted by No. 10250

s. 10, repealed by No. 14/1988

s. 18(Sch. 1 items 2-7).

* * * * *

S. 86I

inserted by No. 10250

s. 10, substituted by No. 14/1988

s. 16.

86I. Reports

(1) The Ombudsman must include in the annual report made under section 25 of the Ombudsman Act 1973 a report on the operations of the Deputy Ombudsman under this Part during the preceding 12 months.

(2) The Ombudsman may at any time cause a report on any matter arising in connection with the operations of the Deputy Ombudsman under this Part to be laid before each House of Parliament.

S. 86J

inserted by No. 10250

s. 10.

86J. Protection of Deputy Ombudsman etc.

S. 86J(1) amended by No. 14/1988

s. 18(Sch. 1 item 8(a)(b)).

(1) Neither the Deputy Ombudsman nor any officer of the Ombudsman shall be liable, whether on the ground of lack of jurisdiction or on any other ground, to any civil or criminal proceedings to which the Deputy Ombudsman or officer would have been liable apart from this section in respect of any act purported to be done under this Act unless the act was done in bad faith.

S. 86J(2) amended by No. 14/1988

s. 18(Sch. 1 item 9).

(2) No civil or criminal proceedings may be brought against the Deputy Ombudsman in respect of any act of the kind referred to in sub-section (1) without leave of the Supreme Court.

S. 86J(3) amended by No. 14/1988

s. 18(Sch. 1 item 10).

(3) The Supreme Court may not give leave unless it is satisfied that there is substantial ground for the contention that the Deputy Ombudsman has acted in bad faith.

(4) Notwithstanding this section--

S. 86J(4)(a) amended by Nos 14/1988

s. 18(Sch. 1 item 11), 57/1989 s. 3(Sch. item 156.6(a)).

(a) no order may be issued restraining the Deputy Ombudsman from carrying out or compelling the Deputy Ombudsman to carry out any investigation; and

S. 86J(4)(b) amended by Nos 14/1988

s. 18(Sch. 1 item 11), 57/1989 s. 3(Sch. item 156.6(b)).

(b) no proceedings may be brought against the Deputy Ombudsman whereby the issue of such an order is sought.

S. 86J(5) inserted by No. 15/1989

s. 14.

(5) The Deputy Ombudsman may not be called to give evidence in any court or in any judicial proceedings or before the Police Service Board or the Police Discipline Board in respect of any matter coming to his or her knowledge in the exercise of his or her functions under this Act.

S. 86K inserted by No. 10250

s. 10, amended by No. 15/1989

s. 15(1)(a).

86K. Offences

S. 86K(1) amended by No. 30/1999 s. 17(1).

(1) A person who--

S. 86K(1)(a) amended by No. 14/1988

s. 18(Sch. 1 item 12).

(a) without lawful excuse (proof of which lies upon the person) wilfully obstructs hinders or resists the Deputy Ombudsman or any other person in the exercise of his or her powers under this Part; or

S. 86K(1)(b) inserted by No. 15/1989

s. 15(1)(b).

(b) without lawful excuse (proof of which lies upon the person) refuses or wilfully fails to comply with any lawful requirement of the Deputy Ombudsman in the exercise of his or her powers under this Part; or

is guilty of an offence.

Penalty: 10 penalty units or imprisonment for 12 months or both.

S. 86K(2) inserted by No. 15/1989

s. 15(2).

(2) In sub-section (1)(b), "lawful requirement" means a requirement of a kind that is agreed between the Ombudsman and the Chief Commissioner to be appropriate for the Deputy Ombudsman to make.

Pt 4A Div. 2 (Heading) substituted by No. 30/1999 s. 17(2).

S. 86L inserted by No. 10250