Division 1Functions
generally
13Principal
functions
(1)
The principal functions of the Commission are as
follows:
(a)
to prevent officer
misconduct,
(b)
to detect or investigate, or manage or oversee
other agencies in the detection or investigation of, officer
misconduct,
(c)
to receive and assess all matters not completed
by the Police Royal Commission, to treat any investigations or assessments of
the Police Royal Commission as its own, to initiate or continue the
investigation of any such matters where appropriate, and otherwise to deal
with those matters under this Act, and to deal with records of the Police
Royal Commission as provided by this Act.
(2)
The Commission is, as far as practicable,
required to turn its attention principally to serious officer
misconduct.
(3)
The reference in this section to managing other agencies in the
detection or investigation of officer misconduct is a reference to the
provision by the Commission of detailed guidance in the planning and execution
of such detection or investigation.
(4)
The reference in this section to overseeing other agencies in the
detection or investigation of officer misconduct is a reference to the
provision by the Commission of a lower level of such guidance, relying rather
on a system of guidelines prepared by it and progress reports and final
reports furnished to it.
(5)
In managing or overseeing other agencies for the
purposes of this section, the Commission does not have a power of control or
direction, and any such management or oversight is to be achieved by
agreement. However, it is the duty of members of the NSW Police Force and
Crime Commission officers to co-operate with the Commission in the exercise of
its management and oversight functions and any other functions of the
Commission.
(6)
However, nothing in subsection (2), (3), (4) or
(5):
(a)
affects the capacity of the Commission to
exercise any of the functions referred to in subsection (1),
or
(b)
provides a ground for any appeal or other legal
or administrative challenge to the exercise by the Commission of any of those
functions.
s 13: Am 1998 No 21,
Sch 1 [1]; 2006 No 94, Sch 3.25 [5]. Subst 2012 No 26, Sch 1
[5].
13A–13C
s 13A: Ins 2006 No
64, Sch 1 [4]. Rep 2012 No 26, Sch 1 [5].
s 13B: Ins 2008 No
60, Sch 1 [3]. Rep 2012 No 26, Sch 1 [5].
s 13C: Ins 2008 No
60, Sch 1 [3]. Rep 2012 No 26, Sch 1 [5].
14Other functions regarding
police activities and education programs
Other functions of the Commission include the
following:
(a)
to undertake inquiries into or audits of any
aspect of police activities for the purpose of ascertaining whether there is
police misconduct or any circumstances that may be conducive to police
misconduct,
(b)
in particular, to monitor the quality of the
management of investigations conducted within the NSW Police Force and to
undertake audits of those investigations,
(c)
to make recommendations concerning police
corruption education programs, police corruption prevention programs, and
similar programs, conducted within the NSW Police Force or by the Ombudsman or
the Independent Commission Against Corruption for the NSW Police
Force,
(d)
to advise police and other authorities on ways in
which police misconduct may be eliminated.
(e), (f)
s 14: Am 1998 No 64,
Sch 1 [4]; 1998 No 67, Sch 2; 2006 No 94, Sch 3.25 [4].
14A
s 14A: Ins 1998 No
64, Sch 1 [5]. Am 1999 No 85, Sch 1.21 [3] [4]. Rep 2008 No 62, Sch
2.41.
15Other functions regarding
evidence and information collected
(cf ICAC Act s 14)
(1)
Other functions of the Commission include the
following:
(a)
to assemble evidence that may be admissible in
the prosecution of a person for a criminal offence against the law of the
State and to furnish any such evidence to the Director of Public
Prosecutions,
(b)
to assemble evidence that may be used in:
(i)
the investigation of a police complaint, Crime
Commission officer complaint or administrative officer complaint,
or
(ii)
deciding whether to take action under section 173
or 181D of the Police Act
1990,
and to furnish any such evidence to the Minister, the
Commissioner of Police or other appropriate authority in the
State,
(c)
to assemble evidence that may be admissible in
the prosecution of a person (other than a police officer) for a disciplinary
offence under the law of the State and to furnish any such evidence to the
appropriate authority in the State,
(d)
to furnish evidence obtained in the course of its
investigations (being evidence that may be admissible in the prosecution of a
person for a criminal offence against or a disciplinary offence under the law
of the Commonwealth or another State or Territory) to the Attorney General or
to the appropriate authority in the jurisdiction
concerned.
(2)
Evidence of the kind referred to in subsection
(1) (d) may be accompanied by any observations that the Commission thinks
appropriate and (in the case of evidence furnished to the Attorney General)
recommendations as to what action the Commission considers should be taken in
relation to the evidence.
(3)
A copy or detailed description of any evidence
furnished to the appropriate authority in another jurisdiction, together with
a copy of any accompanying observations, is to be furnished to the Attorney
General.
(4)
If the Commission obtains any information in the
course of its investigations relating to the exercise of the functions of a
public authority (other than the Ombudsman in the exercise of its functions in
relation to police misconduct or police complaints), the Commission may, if it
thinks it desirable to do so:
(a)
furnish the information or a report of the
information to the authority or the Minister for the authority,
and
(b)
make to the authority or the Minister for the
authority such recommendations (if any) relating to the exercise of the
functions of the authority as the Commission thinks
appropriate.
(5)
A copy of any information or report furnished to
a public authority under subsection (4), together with a copy of any such
recommendation, is to be furnished to the Minister for the
authority.
(6)
If the Commission furnishes any evidence or
information to a person under this section on the understanding that the
information is confidential, the person is subject to the secrecy provisions
of section 56 in relation to the evidence or
information.
s 15: Am 1996 No 108,
Sch 2.4 [1]; 1999 No 85, Sch 1.21 [5]; 2006 No 64, Sch 1 [5]; 2008 No 60, Sch
1 [4].
16Provisions regarding
assessments, opinions and recommendations
(1)
The Commission may:
(a)
make assessments and form opinions, on the basis
of its investigations or those of the Police Royal Commission or of agencies
of which it has management or oversight under this Act, as to whether police
misconduct or other misconduct, misconduct of a Crime Commission officer or
corrupt conduct of an administrative officer:
•
has or may have occurred, or
•
is or may be occurring, or
•
is or may be about to occur,
or
•
is likely to occur,
and
(b)
make recommendations as to whether consideration
should or should not be given to the prosecution of or the taking of action
under Part 9 of the Police Act 1990 or
other disciplinary action against particular persons, and
(c)
make recommendations for the taking of other
action that the Commission considers should be taken in relation to the
subject-matter of its assessments or opinions or the results of any such
investigations.
(2)
However, the Commission may not:
(a)
make a finding or form an opinion that a
specified person is guilty of or has committed, is committing or is about to
commit a criminal offence or disciplinary offence (whether or not a specified
criminal offence or disciplinary offence), or
(b)
make a recommendation that a specified person be,
or an opinion that a specified person should be, prosecuted for a criminal
offence or disciplinary offence (whether or not a specified criminal offence
or disciplinary offence).
(3)
An opinion that a person has engaged, is engaging
or is about to engage:
(a)
in police misconduct, misconduct of a Crime
Commission officer or corrupt conduct of an administrative officer (whether or
not specified conduct), or
(b)
in specified conduct (being conduct that
constitutes or involves or could constitute or involve police misconduct,
misconduct of a Crime Commission officer or corrupt conduct of an
administrative officer),
is not a finding or opinion that the person is guilty of
or has committed, or is committing or is about to commit a criminal offence or
disciplinary offence.
(4)
Nothing is this section prevents or affects the
exercise of any function by the Commissioner that it considers appropriate for
the purposes of or in the context of Division 2 of Part 9 of the Police Act 1990.
s 16: Am 1998 No 123,
Sch 2.2 [2]; 1999 No 85, Sch 1.21 [6]; 2006 No 64, Sch 1 [6] [7]; 2008 No 60,
Sch 1 [5].
17Task
forces
(cf ICAC Act s 15)
The Commission may, in connection with its
functions:
(a)
arrange for the establishment of task forces
within the State, and
(b)
seek the establishment of joint task forces with
authorities of the Commonwealth or other States or Territories,
and
(c)
co-operate with State task forces, Commonwealth
task forces, joint task forces or other task forces,
(d)
co-ordinate or co-operate in co-ordinating any
such task forces.
18Co-operation with other
agencies
(cf ICAC Act s 16)
(1)
In exercising its investigative functions, the
Commission may work in co-operation with investigative agencies and such other
persons and bodies as the Commission thinks appropriate (whether or not they
are in or of the State).
(2)
In exercising its other functions, the Commission
may work in co-operation with the educational institutions and such other
persons and bodies as the Commission thinks appropriate (whether or not they
are in or of the State).
(3)
The Commission may consult with and disseminate
intelligence and information to investigative agencies and such other persons
and bodies (including any task force and any member of a task force) as the
Commission thinks appropriate (whether or not they are in or of the
State).
(4)
If the Commission disseminates information to a
person or body under this section on the understanding that the information is
confidential, the person or body is subject to the secrecy provisions of
section 56 in relation to the information.
(5)
In this section:
investigative agency means:
(a)
the Ombudsman, or
(b)
the New South Wales Crime Commission,
or
(c)
the Independent Commission Against Corruption,
or
(d)
the Auditor-General, or
(e)
the NSW Police Force (or any unit or other part
of it), or
(f)
a police force of another State or Territory (or
any unit or other part of it), or
(g)
the Australian Federal Police (or any unit or
other part of it), or
(h)
the Australian Crime Commission,
or
(i)
the Australian Bureau of Crime Intelligence,
or
(j)
any other authority or person responsible for the
enforcement of laws of the Commonwealth or of the State, another State or a
Territory or charged under any such laws with investigating or detecting
police or other misconduct.
s 18: Am 2003 No 13,
Sch 1.23.
18AReports concerning proposed
police appointments
(1)
The Commission may include in a report under
section 24 (7), 39 (4) or 71 (3) of the Police Act
1990 a statement that the report is furnished on the
understanding that the information in the report is confidential to the
following authorised persons:
(a)
the recipient of the report,
and
(b)
any persons specified in the
statement.
(2)
Each authorised person is subject to the secrecy
provisions of section 56 in relation to the information, but the information
may despite that section be divulged to any other such authorised
person.
(3)
For the purposes of section 56, the authorised
persons are taken to have acquired the information in the exercise of
functions under this Act.
(4)
A person may be specified under this section by
reference to the person’s name or office.
s 18A: Ins 1998 No
64, Sch 1 [6]. Am 2006 No 58, Sch 2.40 [1]; 2009 No 106, Sch 2.27
[1].
19Application of Criminal Assets Recovery Act
1990
(1)
The Criminal Assets
Recovery Act 1990 applies to the Police Integrity
Commission in the same way as it applies to the New South Wales Crime
Commission.
(2)
Accordingly, references in that Act to the Crime
Commission are taken to include references to the Police Integrity Commission,
so that functions exercisable by the Crime Commission may be exercised by
either body.
(3)
The Police Integrity Commission may exercise a
function under that Act only:
(a)
after the PIC Commissioner has consulted with the
Crime Commission, or
(b)
in conformity with an arrangement referred to in
section 84 of this Act,
and must consider whether any such function should
instead be exercised by the Crime Commission.
(3A)
Subsection (3) does not apply if the exercise of
the function by the PIC under that Act relates to an investigation by the PIC
concerning misconduct of a Crime Commission officer.
(4)
It is intended that the Police Integrity
Commission will exercise a function under that Act only in connection with
matters arising during or out of its own investigations. However, this
subsection does not provide any grounds for an appeal against or any other
challenge to the exercise by the Commission of any such
function.
s 19: Am 2004 No 55,
Sch 2.29; 2008 No 60, Sch 1 [6].
20Evidence and
procedure
(cf ICAC Act s 17)
(1)
The Commission is not bound by the rules or
practice of evidence and can inform itself on any matter in such manner as it
considers appropriate.
(2)
The Commission is required to exercise its
functions with as little formality and technicality as is possible, and, in
particular, the Commission is required to accept written submissions as far as
is possible and hearings are to be conducted with as little emphasis on an
adversarial approach as is possible.
(3)
Despite subsection (1), section 127 (Religious
confessions) of the Evidence Act 1995
applies to any hearing before the Commission.
21Court
proceedings
(cf ICAC Act s 18; RC (PS) Act s
38)
(1)
The Commission may do any or all of the
following, despite any proceedings that may be in or before any court,
tribunal, coroner, Magistrate or other person:
(a)
commence, continue, discontinue or complete any
investigation,
(b)
furnish reports in connection with any
investigation,
(c)
do all such acts and things as are necessary or
expedient for those purposes.
(2)
If the proceedings are proceedings for an
indictable offence and are conducted by or on behalf of the Crown, the
Commission may, to the extent to which the Commission thinks it necessary to
do so to ensure the accused’s right to a fair trial is not
prejudiced:
(a)
ensure that, as far as practicable, any hearing
or other matters relating to the investigation are conducted in private during
the currency of the proceedings, and
(b)
give directions under section 52, having effect
during the currency of the proceedings, and
(c)
defer making a report to Parliament in relation
to the investigation during the currency of the
proceedings.
(3)
Subsection (2) does not apply:
(a)
in the case of committal proceedings—before
the commencement of the committal hearing, that is, the commencement of the
taking of the evidence for the prosecution in the committal proceedings,
and
(b)
in any other case—after the proceedings
cease to be proceedings for the trial of a person before a
jury.
(4)
This section has effect whether or not the
proceedings commenced before or after the relevant investigation commenced and
has effect whether or not the Commission or an officer of the Commission is a
party to the proceedings.
s 21: Am 2001 No 121,
Sch 2.167 [2]; 2008 No 107, Sch 29.7.
22Incidental
powers
(cf ICAC Act s 19 (1))
(1)
The Commission has power to do all things
necessary to be done for or in connection with, or reasonably incidental to,
the exercise of its functions. Any specific powers conferred on the Commission
by this Act are not taken to limit by implication the generality of this
section.
(2)
s 22: Am 2006 No 2,
Sch 4.51 [5]; 2015 No 58, Sch 3.70 [3].
Division 5Attendance before
Commission
39Arrest of
witness
(cf ICAC Act s 36; RC (PS) Act s 11)
(1)
If a person served with a summons to attend the
Commission as a witness fails to attend in answer to the summons, the
Commissioner may, on proof by statutory declaration of the service of the
summons, issue a warrant for the arrest of the witness.
(2)
The Commissioner may issue a warrant for the
arrest of a person whose evidence is desired and is necessary and relevant to
an investigation, if the Commissioner is satisfied by evidence on oath or
affirmation that it is probable that the person:
(a)
will not attend before the Commission to give
evidence without being compelled to do so, or
(b)
is about to or is making preparations to leave
the State and the person’s evidence will not be obtained by the
Commission if the person departs.
(3)
The Commissioner is authorised to administer an
oath or affirmation for the purposes of subsection (2).
(4)
A warrant may be issued under subsection (2)
without or before the issue of a summons to the person whose evidence is
desired.
(5)
A warrant may be issued under subsection (2)
after the issue of a summons to the person whose evidence is desired, even
though the time named in the summons for the person to attend has not yet
passed.
(6)
A warrant under this section authorises the
arrest of the witness and his or her being promptly brought before the
Commission and detained in a prison or elsewhere for that purpose until
released by order of the Commissioner.
(7)
A warrant issued under this section may be
executed by any police officer, or by any person to whom it is addressed, and
the person executing it may use such force as is reasonably necessary for the
purpose of entering any premises for the purpose of executing
it.
(8)
The issue of a warrant or the arrest of a witness
does not relieve the witness from any liability incurred by the witness for
non-compliance with a summons.
s 39: Am 1997 No 60,
Sch 1 [2] [3].
39AConditional release of
witness
(1)
The release of a witness by order of the
Commissioner under section 39 (6) may (but need not) be made subject to one or
more of the following conditions (or to any other conditions):
(a)
that the witness appear and report himself or
herself before the Commission in accordance with the terms of the order unless
excused from attendance or until released from further attendance by the
person presiding at the relevant hearing of the Commission,
and
(b)
conditions for the purpose of ensuring the
further attendance of the witness before the Commission (for example the
provision of sureties by the witness, the surrender of any passport held by
the witness, a requirement as to where the witness is to live and regular
reporting by the witness to the Commission).
(2)
From time to time, the Commissioner may by order
amend, revoke or add to those conditions.
s 39A: Ins 1997 No
60, Sch 1 [4].
39BReview by Supreme
Court
(1)
A witness who has not been released by the
Commissioner under section 39 (6) or whose release under that subsection is
subject to one or more conditions may apply to the Supreme Court for a review
of the decision not to release or failure to release the witness or of the
terms of one or more of those conditions.
(2)
The Supreme Court may affirm or set aside a
decision by the Commissioner not to release the witness or any condition
imposed by the Commissioner on the release of the witness. The Supreme Court
may also or instead make any order that the Commissioner may make in relation
to the detention or release of the witness. The Court may do so also where the
Commissioner has not made any decision within a reasonable time on the release
of the witness.
(3)
Such an order is taken to be an order of the
Commissioner.
s 39B: Ins 1997 No
60, Sch 1 [4].
40Privilege as regards answers,
documents etc
(cf ICAC Act s 37)
(1)
A witness summoned to attend or appearing before
the Commission at a hearing is not entitled to refuse:
(a)
to be sworn or to make an affirmation,
or
(b)
to answer any question relevant to an
investigation put to the witness by the Commissioner or other person presiding
at a hearing, or
(c)
to produce any document or other thing in the
witness’s custody or control that the witness is required by the summons
or by the person presiding to produce.
(2)
A witness summoned to attend or appearing before
the Commission at a hearing is not excused from answering any question or
producing any document or other thing on the ground that the answer or
production may incriminate or tend to incriminate the witness, or on any other
ground of privilege, or on the ground of a duty of secrecy or other
restriction on disclosure, or on any other ground.
(3)
An answer made, or document or other thing
produced, by a witness at a hearing before the Commission is not (except as
otherwise provided in this section) admissible in evidence against the person
in any civil or criminal proceedings, but may be used in deciding whether to
make an order under section 173 or 181D of the Police Act
1990 and is admissible in any proceedings under Division
1A or 1C of Part 9 of that Act, an order under section 183A of that Act or any
proceedings for the purposes of Division 2A of Part 9 of that Act with respect
to an order under section 183A of that Act and in any disciplinary proceedings
(including for the purposes of taking action under section 69 of the Government Sector Employment Act
2013).
(4)
Nothing in this section makes
inadmissible:
(a)
any answer, document or other thing in
proceedings for an offence against this Act or in proceedings for contempt
under this Act, or
(b)
any answer, document or other thing in any civil
or criminal proceedings if the witness does not object to giving the answer or
producing the document or other thing irrespective of the provisions of
subsection (2), or
(c)
any document in any civil proceedings for or in
respect of any right or liability conferred or imposed by the document or
other thing.
(5)
Where:
(a)
an Australian legal practitioner or other person
is required to answer a question or produce a document or other thing at a
hearing before the Commission, and
(b)
the answer to the question would disclose, or the
document or other thing contains, a privileged communication passing between
an Australian legal practitioner (in his or her capacity as an Australian
legal practitioner) and a person for the purpose of providing or receiving
legal professional services in relation to the appearance, or reasonably
anticipated appearance, of a person at a hearing before the
Commission,
the Australian legal practitioner or other person is
entitled to refuse to comply with the requirement, unless the privilege is
waived by a person having authority to do so.
s 40: Am 2005 No 98,
Sch 3.47 [3] [6]; 2008 No 60, Sch 1 [10].
s 40: Am 1997 No 23,
Sch 2; 1999 No 85, Sch 1.21 [7]; 2001 No 114, Sch 2; 2015 No 58, Sch 3.70
[4].
41Declaration as to objection by
witness
(cf ICAC Act s 38; RC (PS) Act s 12)
The Commissioner or person presiding at the
hearing may declare that all or any classes of answers given by a witness or
that all or any classes of documents or other things produced by a witness
will be regarded as having been given or produced on objection by the witness,
and there is accordingly no need for the witness to make an objection in
respect of each such answer, document or other thing.
42Reimbursement of expenses of
witnesses
(cf ICAC Act s 51; RC (PS) Act s 13
(1))
A witness attending or appearing before the
Commission is to be paid, out of money provided by Parliament, in respect of
the expenses of the witness’s attendance an amount ascertained in
accordance with the scale prescribed for the purposes of section 51 of the
Independent Commission Against Corruption Act
1988 or, if there is no such prescribed scale, such amount
as the Commission determines.
43Legal and financial assistance
for witness
(cf ICAC Act s 52)
(1)
A witness who is appearing or about to appear
before the Commission may apply to the Attorney General for legal or financial
assistance.
(2)
The Attorney General may approve the provision of
legal or financial assistance to the applicant if of the opinion that this is
appropriate, having regard to any one or more of the following:
(a)
the prospect of hardship to the witness if
assistance is declined,
(b)
the significance of the evidence that the witness
is giving or appears likely to give,
(c)
any other matter relating to the public
interest.
(3)
On giving the approval, the Attorney General may
authorise the provision to the witness of legal or financial assistance
determined by the Attorney General in respect of the witness’s
appearance before the Commission. The assistance is to be provided out of
money provided by Parliament for the purpose.
(4)
The assistance may be provided unconditionally or
subject to conditions determined by the Attorney
General.
(5)
The Attorney General may delegate one or more of
his or her functions under this section to the Secretary of the Department of
Justice.
s 43: Am 1997 No 60,
Sch 1 [5]; 2015 No 58, Sch 3.70 [5].
44Attendance of prisoner before
Commission
(cf ICAC Act s 39; RC (PS) Act s 14)
(1)
If the Commissioner requires the attendance at a
hearing before the Commission of a prisoner, the Commissioner may, by order in
writing served on the governor of the prison in whose custody the prisoner is,
direct the governor to produce the prisoner, or have the prisoner produced, at
the time and place stated in the order.
(2)
Such an order is sufficient authority to the
governor of the prison for producing the prisoner or having the prisoner
produced, and the prisoner must be produced accordingly.
(3)
A prisoner is, when produced under this section
in the actual custody of the governor of the prison, a prison officer or a
police officer, taken to be in lawful custody.
(4)
The governor, prison officer or police officer
must in due course return the prisoner to the prison.
(5)
In this section, governor of a prison, prison and prisoner have the same meanings as
governor, correctional centre and inmate have in the Crimes (Administration of Sentences) Act
1999.
s 44: Am 1999 No 94,
Sch 4.48 [1].
Division 8Protection of witnesses and
evidence
51Protection of witnesses and
persons assisting Commission
(1)Arrangements for
protection
(cf ICAC Act s 50; RC (PS) Act s 26
(1))
If it appears to the Commissioner that, because a
person is assisting the Commission, the safety of the person or any other
person may be prejudiced or the person or any other person may be subject to
intimidation or harassment, the Commissioner may make such arrangements as are
necessary:
(a)
to protect the safety of any such person,
or
(b)
to protect any such person from intimidation or
harassment.
(2)Meaning of “assisting
the Commission”
(cf RC (PS) Act s 26 (2))
In this section, a reference to a person who is
assisting the Commission is a reference to a person who:
(a)
has appeared, is appearing or is to appear before
the Commission to give evidence or to produce a document or other thing,
or
(b)
has produced or proposes to produce a document or
other thing to the Commission under this Act, or
(c)
has assisted, is assisting or is to assist the
Commission in some other manner.
(3)Directions
Any such arrangements may (but need not) involve
the Commissioner directing the Commissioner of Police or a prescribed public
authority or prescribed public official:
(a)
to provide any protection referred to in
subsection (1), or
(b)
to provide personnel or facilities or both to
assist in providing that protection, or
(c)
to otherwise assist in the provision of that
protection.
(4)Duty to comply with
directions
The Commissioner of Police, or such a public
authority or public official, is under a duty to comply with any such
direction as far as reasonably possible.
(5)Orders
Any such arrangements may (but need not) involve
the Commissioner making orders applying to a specified person for the purpose
of protecting the safety of a person referred to in subsection (1) or of
protecting such a person from intimidation or harassment. Such an order is not
limited to directions of a kind referred to in subsection
(3).
(6)Offence
A person who contravenes an order applying to the
person under subsection (5) without reasonable excuse is guilty of an
indictable offence.
Maximum penalty: 200 penalty units or
imprisonment for 5 years, or both.
(7)Witness Protection Act not
affected
Nothing in this section affects the Witness Protection Act
1995.
s 51: Am 1997 No 60,
Sch 1 [6].
52Restriction on publication of
evidence
(1)Direction regarding
publication
(cf ICAC Act s 112 (1); RC (PS) Act s 27
(1))
The Commission may direct that:
(a)
any evidence given before the Commission,
or
(b)
the contents of any document, or a description of
any thing, produced to the Commission, or seized under a search warrant issued
under this Act, or
(c)
any information that might enable a person who
has given or may be about to give evidence before the Commission to be
identified or located, or
(d)
the fact that any person has given or may be
about to give evidence before the Commission,
must not be published except in such manner, and to such
persons, as the Commission specifies.
(2)Public
interest
(cf RC (PS) Act s 27 (2))
The Commission is not to give a direction under
this section unless satisfied that the direction is necessary or desirable in
the public interest.
(3)Offence
(cf ICAC Act s 112 (2); RC (PS) Act s 27
(3))
A person must not make a publication in
contravention of a direction given under this section.
Maximum penalty: 50 penalty units or imprisonment
for 12 months, or both.
(4)Exception
It is not a contravention of a direction given
under this section to publish any evidence, contents of a document or
information to a registered medical practitioner or registered psychologist
for the purposes of that health practitioner providing medical or psychiatric
care, treatment or counselling (including but not limited to psychological
counselling) to a person who has given or may be about to give evidence before
the Commission.
s 52: Am 1997 No 60,
Sch 1 [7]; 2016 No 61, Sch 7.4 [1].
53Publication of evidence given
at private hearing
(1)
A person who was present at a hearing of the
Commission held in private must not publish, or permit or allow to be
published, any evidence given before the Commission at the hearing or any of
the contents of a document produced at the hearing, except to an officer of
the Commission or as permitted by the Commission or by the
regulations.
Maximum penalty: 50 penalty units or imprisonment
for 12 months, or both.
(2)
Nothing in this section affects section 52, but a
person cannot be punished under both sections for the same
publication.
(3)
This section does not apply to an officer of the
Commission.
(4)
It is not a contravention of this section to
publish any evidence or contents of a document to a registered medical
practitioner or registered psychologist for the purposes of that health
practitioner providing medical or psychiatric care, treatment or counselling
(including but not limited to psychological counselling) to a person who has
given or may be about to give evidence at a hearing of the Commission held in
private.
s 53: Am 2016 No 61,
Sch 7.4 [2].
54Disclosures prejudicing
investigations
(cf ICAC Act s 114; RC (PS) Act s
28)
(1)
A person who is required:
(a)
by a notice under section 25 or 26 to produce a
document or other thing, or
(b)
by a summons under section 38 to give evidence or
to produce a document or other thing,
must not disclose any information about the notice or
summons that is likely to prejudice the investigation to which it
relates.
Maximum penalty: 50 penalty units or imprisonment
for 12 months, or both.
(2)
Subsection (1) does not apply to a notice or
summons unless it specifies that information about the notice or summons must
not be disclosed.
(3)
A person does not contravene this section
if:
(a)
the disclosure is made to an employee, agent or
other person in order to obtain information to comply with the notice or
summons and the employee, agent or other person is directed not to inform the
person to whom the information relates about the matter,
or
(b)
the disclosure is made to obtain legal advice or
representation in relation to the notice of summons, or
(c)
the disclosure is made for the purposes of, or in
the course of, legal proceedings, or
(c1)
the disclosure is made to a registered medical
practitioner or registered psychologist in relation to the provision by that
health practitioner of medical or psychiatric care, treatment or counselling
(including but not limited to psychological counselling) to a person required
to give evidence by a summons under section 38, or
(d)
the disclosure is made in accordance with
guidelines issued by the Commission or in accordance with the
regulations.
(4)
A reference in this section to the disclosure of
any information about a notice or summons includes a reference to:
(a)
a disclosure about the existence or nature of the
notice or summons or of the investigation to which it relates,
and
(b)
a disclosure of any information to a person from
which the person could reasonably be expected to infer the existence or nature
of the notice or summons or of the investigation to which it
relates.
s 54: Am 2016 No 61,
Sch 7.4 [3].
55Indemnities and
undertakings
(cf ICAC Act s 49; RC (PS) Act s
29)
(1)
The Commission may recommend to the Attorney
General that a person be granted (under section 32 of the Criminal Procedure Act 1986) an
indemnity from prosecution.
(2)
The Commission may recommend to the Attorney
General that a person be given (under section 33 of the Criminal Procedure Act 1986) an
undertaking that:
(a)
an answer, statement or disclosure in proceedings
before the Commission, or
(b)
the fact of a disclosure or production of a
document in proceedings before the Commission, will not be used in evidence
against the person.
(3)
Section 33 of the Criminal
Procedure Act 1986 applies in relation to proceedings
before the Commission in the same way as it applies in relation to proceedings
for an offence.
(4)
A reference in this section to proceedings before
the Commission includes a reference to a hearing before the Commission or any
other investigative activity involving the Commission or an officer of the
Commission.
s 55: Am 1999 No 94,
Sch 4.48 [2]–[4]; 2001 No 121, Sch 2.167 [3] [4].
Division 9Secrecy, disclosure,
admissibility
56Secrecy
(cf ICAC Act s 111; RC (PS) Act s
30)
(1)
This section applies to:
(a)
a person who is or was an officer of the
Commission, and
(b)
a person who is or was an officer of the
Inspector, and
(c)
a person who is or was an Australian legal
practitioner appointed to assist the Commission or who is or was a person who
assists, or performs services for or on behalf of, such an Australian legal
practitioner in the exercise of the Australian legal practitioner’s
functions as counsel to the Commission, and
(d)
a person or body referred to in section 15 (6),
18 (4), 77 (5) or 83 (6), and
(e)
an authorised person referred to in section 18A,
and
(f)
a person who conducts a review under section
136B, but only in relation to the exercise of the person’s functions
under that section.
(2)
A person to whom this section applies must not,
directly or indirectly, except for the purposes of this Act or otherwise in
connection with the exercise of the person’s functions under this
Act:
(a)
make a record of any information,
or
(b)
divulge or communicate to any person any
information,
being information acquired by the person by reason of,
or in the course of, the exercise of the person’s functions under this
Act.
Maximum penalty: 50 penalty units or imprisonment
for 12 months, or both.
(3)
A person to whom this section applies cannot be
required:
(a)
to produce in any court any document or other
thing that has come into the person’s possession, custody or control by
reason of, or in the course of, the exercise of the person’s functions
under this Act, or
(b)
to divulge or communicate to any court any matter
or thing that has come to the person’s notice in the exercise of the
person’s functions under this Act,
except for the purposes of a prosecution, disciplinary
proceedings or proceedings under Division 1A or 1C of Part 9 of the Police Act 1990, arising out of an
investigation conducted by the Commission in the exercise of its
functions.
(4)
Despite this section, a person to whom this
section applies may divulge any such information:
(a)
for the purposes of and in accordance with this
Act, or
(b)
for the purposes of:
(i)
a prosecution, or
(ii)
disciplinary proceedings, or
(iii)
the making of an order under section 173 or 181D
of the Police Act 1990,
or
(iv)
proceedings under Division 1A or 1C of Part 9 of
that Act,
arising out of an investigation conducted by the
Commission in the exercise of its functions, or
(c)
in accordance with a direction of the
Commissioner or Inspector, if the Commissioner or Inspector certifies that it
is necessary to do so in the public interest, or
(d)
to any prescribed authority or person,
or
(e)
to a registered medical practitioner or
registered psychologist for the purposes of that health practitioner providing
medical or psychiatric care, treatment or counselling (including but not
limited to psychological counselling) to a person to whom this section
applies.
(5)
An authority or person to whom information is
divulged under subsection (4), and any person or employee under the control of
that authority or person, is subject to the same rights, privileges,
obligations and liabilities under subsections (2) and (3) in respect of that
information as if he or she were a person to whom this section applies and had
acquired the information in the exercise of functions under this
Act.
(6)
In this section:
court includes any tribunal,
authority or person having power to require the production of documents or the
answering of questions.
produce includes permit access
to.
s 56: Am 1997 No 60,
Sch 1 [8]; 1998 No 64, Sch 1 [8]; 1999 No 85, Sch 1.21 [8] [9]; 2005 No 98,
Sch 3.47 [3] [7]; 2013 No 35, Sch 5 [2]; 2016 No 61, Sch 7.4
[4].
57Disclosure of information and
giving of evidence by Ombudsman to Commission
(cf RC (PS) Act s 31)
(1)
The Ombudsman, and any officer of the Ombudsman
acting with the approval of the Ombudsman, may:
(a)
furnish to the Commission information obtained by
the Ombudsman or officer in exercising functions under the Ombudsman Act 1974, Part 8A (Complaints
about conduct of police officers) of the Police Act
1990 or any other Act, or
(b)
give evidence before the Commission and produce
any document to the Commission, in respect of any such
information.
(2)
Neither the Ombudsman nor any officer of the
Ombudsman can be compelled to give any evidence before the Commission or
produce any document before the Commission in respect of information obtained
by the Ombudsman or officer in exercising functions as referred to in
subsection (1).
(3)
This section applies despite sections 34
(Disclosure by Ombudsman or officer) and 35 (Ombudsman, officer or expert as
witness) of the Ombudsman Act
1974 or sections 163 (Ombudsman not to publish certain
information) and 165 (Ombudsman and officers of Ombudsman not competent or
compellable witnesses in respect of certain matters) of the Police Act 1990, and any other
law.
(4)
Section 35 of the Ombudsman Act
1974 and section 165 of the Police
Act 1990 do not apply in respect of any proceedings for an
offence under this Act.
s 57: Am 1998 No 123,
Sch 2.2 [3]; 2006 No 58, Sch 2.40 [2] [3].
58Disclosure of information and
giving of evidence by Police Royal Commission to
Commission
(cf RC (PS) Act s 31)
(1)
The Police Royal Commissioner, and any officer of
the Police Royal Commissioner acting with the approval of the Police Royal
Commissioner, may:
(a)
furnish to the Commission information obtained by
the Police Royal Commissioner or officer in exercising functions in relation
to the Police Royal Commission, or
(b)
give evidence before the Commission and produce
any document to the Commission, in respect of any such
information.
(2)
Neither the Police Royal Commissioner nor any
officer of the Police Royal Commissioner can be compelled to give any evidence
before the Commission or produce any document before the Commission in respect
of information obtained by the Police Royal Commissioner or officer in
exercising functions as referred to in subsection (1).
(3)
This section applies despite section 30 (Secrecy)
of the Royal Commission (Police Service) Act
1994, and any other law.
(4)
Section 30 of the Royal Commission
(Police Service) Act 1994 does not apply in respect of any
proceedings for an offence under this Act.
59Disclosure of information and
giving of evidence by Commission to Police Royal
Commission
(1)
The PIC Commissioner, and any officer of the
Commission acting with the approval of the Commissioner, may:
(a)
furnish to the Police Royal Commission
information obtained by the PIC Commissioner or officer in exercising
functions in relation to the Police Integrity Commission,
or
(b)
give evidence before the Police Royal Commission
and produce any document to the Police Royal Commission, in respect of any
such information.
(2)
Neither the PIC Commissioner nor any officer of
the Commission can be compelled to give any evidence before the Police Royal
Commission or produce any document before the Police Royal Commission in
respect of information obtained by the PIC Commissioner or officer in
exercising functions as referred to in subsection (1).
(3)
This section applies despite section 56 and any
other law.
(4)
Section 56 does not apply in respect of any
proceedings for an offence under this Act.
60Disclosure of information and
giving of evidence by Commission to Ombudsman
(1)
The PIC Commissioner, and any officer of the
Commission acting with the approval of the Commissioner, may:
(a)
furnish to the Ombudsman information obtained by
the Commissioner or officer in exercising functions in relation to the Police
Integrity Commission, or
(b)
give evidence before the Ombudsman and produce
any document to the Ombudsman in respect of any such
information.
(2)
The PIC Commissioner, and any officer of the
Commission, can be compelled to give evidence before the Ombudsman or produce
a document before the Ombudsman in respect of information obtained by the PIC
Commissioner or officer in exercising functions as referred to in subsection
(1) only if:
(a)
a matter has been referred by the Inspector of
the Police Integrity Commission, or the Inspector of the Crime Commission, to
the Ombudsman for investigation, and
(b)
the evidence or document is relevant to the
matter referred.
(2A)
The Ombudsman may exercise the Ombudsman’s
powers under section 19 (2) of the Ombudsman Act
1974 for the purposes of subsection
(2).
(3)
This section applies despite section 56 and any
other law.
(4)
Section 56 does not apply in respect of any
proceedings for an offence under this Act.
s 60: Am 2012 No 100,
Sch 3 [1].
61Secrecy provisions in other
Acts
(cf RC (PS) Act s 32)
(1)
The following provisions do not apply to the
divulging of information, or the production of any document or other thing,
pursuant to a requirement made by or under this Act:
(a)
section 17 of the Gaming and Liquor
Administration Act 2007,
(b)–(e)
(f)
sections 19 (Hearings) and 80 (Secrecy) of the
Crime Commission Act
2012.
(2)
For the purposes of section 13 (Unlawful
disclosure of information concerning spent convictions) of the Criminal Records Act 1991, the
Commission is taken to be a law enforcement agency.
(3)
For the purposes of section 149 (Information
gathering for law enforcement purposes) of the Casino Control
Act 1992, the Commission is taken to be a law enforcement
agency.
s 61: Am 1996 No 108,
Sch 2.4 [2]; 1998 No 64, Sch 1 [9] [10]; 2008 No 60, Sch 1 [11]; 2009 No 106,
Sch 5.14; 2011 No 72, Sch 5.8; 2012 No 66, Sch 5.11 [6].
62Admissibility of documents
relating to complaints about police
(cf RC (PS) Act s 33)
(1)
A document brought into existence for the
purposes of Part 8A (Complaints about conduct of police officers) of the
Police Act 1990 is admissible in
evidence before the Commission.
(2)
This section applies despite section 170 (Certain
documents privileged) of the Police Act
1990.
s 62: Am 2006 No 58,
Sch 2.40 [4].
63Admissibility of documents
from Police Royal Commission
A document brought into existence for the
purposes of or in relation to the Police Royal Commission is admissible in
evidence before the Commission.
64Telecommunications (Interception) (New South Wales) Act
1987
(cf RC (PS) Act s 34)
Section 21 (Disclosure by persons under the
Minister’s administration) of the Telecommunications (Interception) (New South Wales) Act
1987 does not apply to prevent the disclosure of any
information or record for the purposes of any proceedings for an offence under
this Act.
65
s 65: Subst 2005 No
98, Sch 3.47 [8]. Rep 2015 No 7, Sch 2.33 [1].
66Privacy and Personal Information Protection Act
1998
Section 67 of the Privacy and
Personal Information Protection Act 1998 does not apply to
the disclosure of information for the purposes of any proceedings for an
offence under this Act.
s 66: Subst 1998 No
133, Sch 3.6.