Western Australian Numbered Acts Western Australian Numbered Acts After section 11B
insert:
Division 3 — Removal of custodial officers due to
loss of confidence
In this Division,
unless the contrary intention appears —
appeal means an appeal under section 11CH;
appellant means a person who institutes an appeal;
Chief Commissioner has the same meaning as in the
Industrial Relations Act 1979 ;
decision notice has the meaning given in
section 11CD(3)(b);
industrial commissioner means a commissioner as
defined in the Industrial Relations Act 1979 section 7(1);
maintenance payment has the meaning given in
section 11CE(1);
maintenance period has the meaning given in
section 11CE(1);
new evidence , on an appeal against the removal of
a custodial officer, means evidence other than evidence of any of the
following —
(a) a
document or other material that was examined and taken into account by the
chief executive officer in making the removal decision;
(b) the
notice given under section 11CD(1);
(c) a
written submission made to the chief executive officer by the custodial
officer under section 11CD(2);
(d) a
decision notice;
(e) a
notification of the removal;
removal action , in relation to a custodial
officer, means the removal of the custodial officer under section 11CC;
removal decision means a decision of the chief
executive officer to take removal action;
suitability to continue as a custodial officer
means suitability to continue as a custodial officer having regard to the
officer’s integrity, honesty, competence, performance or conduct;
WAIRC means The Western Australian Industrial
Relations Commission continued and constituted under the Industrial Relations
Act 1979 .
Subdivision 2 — Removal of custodial officers
11CB. Application of Subdivision
(1) This Subdivision
applies if —
(a) the
chief executive officer does not have confidence in a custodial
officer’s suitability to continue as a custodial officer; and
(b) the
chief executive officer —
(i)
decides not to take, or continue to take, disciplinary
proceedings referred to in section 11(1b)(b) against a custodial officer;
and
(ii)
decides instead to take removal action in relation to the
custodial officer.
(2) If regulations are
made under section 11(1C), this Subdivision applies despite the
Public Sector Management Act 1994 section 76(2).
(1) If the chief
executive officer does not have confidence in a custodial officer’s
suitability to continue as a custodial officer, the chief executive officer
may remove the custodial officer.
(2)
Subsection (1) applies in addition to, and does not limit the operation
of, the Public Sector Management Act 1994 .
(3) The chief
executive officer may conduct any necessary investigation to determine a
custodial officer’s suitability to continue as a custodial officer.
(4) For the purpose of
the investigation the chief executive officer may require the custodial
officer to do all or any of the following —
(a)
provide the chief executive officer with any information or answer any
question that the chief executive officer requires;
(b)
produce to the chief executive officer any document in the custody or under
the control of the custodial officer.
(5) The custodial
officer is not excused from giving information, answering any question or
producing a document when required to do so under subsection (4) on the
ground that the information, answer or document might —
(a)
incriminate the custodial officer; or
(b)
render the custodial officer liable to a disciplinary measure under
section 11 or removal under this Division.
(6) The information,
answer or document is not admissible in evidence against the custodial officer
in any criminal proceedings except in proceedings for an offence under
subsection (7).
(7) A custodial
officer must not, in response to a requirement under
subsection (4) —
(a) fail
or refuse to provide the required information or answer or produce the
required document; or
(b) give
information or an answer that is false or misleading in a material particular;
or
(c)
produce a document that the custodial officer knows is false or misleading in
a material particular —
(i)
without indicating that the document is false or
misleading and, to the extent the custodial officer can, how the document is
false or misleading; and
(ii)
if the custodial officer has, or can reasonably obtain,
the correct information — without providing the correct
information.
Penalty: a fine of $4 000 and imprisonment
for 12 months.
11CD. Notice of loss of confidence
(1) The chief
executive officer may give the custodial officer a written notice setting out
the grounds on which the chief executive officer does not have confidence in
the custodial officer’s suitability to continue as a custodial officer.
(2) The custodial
officer may make written submissions to the chief executive officer in
relation to the notice within the following period (the submission period
) —
(a)
21 days after the day on which the notice is given; or
(b) any
longer period after that day allowed by the chief executive officer.
(3) After the
submission period, the chief executive officer must —
(a)
decide whether or not to take removal action against the custodial officer;
and
(b) give
the custodial officer written notice of the decision (the decision notice ).
(4) The chief
executive officer must not decide to take removal action against the custodial
officer unless the chief executive officer —
(a) has
taken into account any written submissions received from the custodial officer
during the submission period; and
(b)
still does not have confidence in a custodial officer’s suitability to
continue as a custodial officer.
(5) If the chief
executive officer decides to take removal action against the custodial
officer, the decision notice must contain the reasons for the decision.
(6) Except as provided
in the regulations, the chief executive officer must, within 7 days after
giving the decision notice —
(a) give
to the custodial officer a copy of any documents that were considered by the
chief executive officer in making the decision; and
(b) make
available to the custodial officer for inspection any other materials that
were considered by the chief executive officer in making the decision.
(7) The removal action
may be carried out when the notice is given or at any time after that.
(1) If a custodial
officer is removed as a result of removal action, the custodial officer is
entitled to receive a payment (a maintenance payment ) for the period of
28 days after the day on which the custodial officer is removed (the
maintenance period ).
(2) The Minister may,
in exceptional circumstances, direct that a maintenance payment must be paid
to the custodial officer for a specified period after the maintenance period.
(3) For the purpose of
subsection (2), the specified period is a period not exceeding
6 months specified by the Minister but in any event ending on the day any
appeal is determined by the WAIRC.
(4) Any maintenance
payment must be determined on the basis of the salary of the custodial officer
at the time of the removal.
11CF. Withdrawal of removal action and revocation
of removal
(1) If a custodial
officer is removed as a result of removal action, the chief executive officer
may, by notice in writing to the custodial officer, revoke the removal.
(2)
Subsection (1) applies even if an appeal has been instituted against the
removal.
(3) Despite any other
enactment, if the removal is revoked under subsection (1), the removal is
to be taken to be of no effect and to have never had any effect.
(4) If the chief
executive officer revokes the removal of a custodial officer under
subsection (1), the custodial officer is not entitled to be paid his or
her salary for any period the custodial officer received a maintenance
payment.
11CG. Resignation of custodial officer who has
been removed
(1) Even if a
custodial officer is removed as a result of removal action, the custodial
officer may resign at any time before the end of the maintenance period.
(2)
Subsection (1) does not apply if an appeal has been instituted against
the removal.
(3) A resignation
under subsection (1) takes effect at the end of the maintenance period.
(4) Despite any other
enactment, if a custodial officer resigns under subsection (1), the
removal of the custodial officer is to be taken to be of no effect and to have
never had any effect.
Subdivision 3 — Appeal against removal of custodial
officer
(1) If a custodial
officer is removed as a result of removal action, the custodial officer may
appeal to the WAIRC against the removal decision on the ground that it was
harsh, oppressive or unfair.
(2) The custodial
officer may institute the appeal by a notice to the chief executive officer
stating —
(a) the
reasons for the removal decision being harsh, oppressive or unfair; and
(b) the
nature of the relief sought.
(3) The appeal cannot
be instituted —
(a)
after the maintenance period; or
(b) if
the custodial officer has resigned under section 11CG(1).
(4) For the purposes
of proceedings relating to the appeal, the WAIRC is to be constituted by not
less than 3 industrial Commissioners, at least one of whom must
be —
(a) the
Chief Commissioner; or
(b) the
Senior Commissioner within the meaning of that term in the
Industrial Relations Act 1979 .
(5) The only parties
to the appeal are the custodial officer and the chief executive officer.
(6) The custodial
officer does not have any right of appeal against the removal decision other
than under this section.
(1) On the hearing of
an appeal, the WAIRC must proceed in the following manner —
(a)
first, it must consider the chief executive officer’s reasons for the
removal decision;
(b)
second, it must consider the case presented by the appellant as to why the
removal decision was harsh, oppressive or unfair;
(c)
third, it must consider the case presented by the chief executive officer in
answer to the appellant’s case.
(2) The appellant has
at all times the burden of establishing that the removal decision was harsh,
oppressive or unfair.
(3)
Subsection (2) has effect despite any law or practice to the contrary.
(4) Without limiting
the matters to which the WAIRC is otherwise required or permitted to have
regard in determining the appeal, it must have regard to —
(a) the
interests of the appellant; and
(b) the
public interest, which is to be taken to include —
(i)
the importance of maintaining public confidence in the
integrity, honesty, conduct and standard of performance of custodial officers;
and
(ii)
the special nature of the relationship between the chief
executive officer and custodial officers.
11CJ. Leave to tender new evidence on appeal
(1) New evidence
cannot be tendered to the WAIRC during a hearing of an appeal unless the WAIRC
grants leave under subsection (2) or (3).
(2) The WAIRC may
grant the chief executive officer leave to tender new evidence if —
(a) the
appellant consents; or
(b) it
is satisfied that it is in the interests of justice to do so.
(3) The WAIRC may
grant the appellant leave to tender new evidence if —
(a) the
chief executive officer consents; or
(b) the
WAIRC is satisfied that —
(i)
the appellant is likely to be able to use the new
evidence to show that the chief executive officer has acted upon wrong or
mistaken information; or
(ii)
the new evidence might materially have affected the chief
executive officer’s removal decision; or
(iii)
it is in the interests of justice to do so.
(4) In the exercise of
its discretion under subsection (3), the WAIRC must have regard
to —
(a)
whether or not the appellant was aware of the substance of the new evidence
before the appellant’s removal; and
(b)
whether or not the substance of the new evidence was contained in a document
to which the appellant had reasonable access before the appellant’s
removal.
11CK. Opportunity to consider new evidence
(1) If the chief
executive officer is given leave to tender new evidence under
section 11CJ(2) —
(a) the
WAIRC must give the appellant a reasonable opportunity to consider the new
evidence; and
(b) the
appellant may, without the leave of the WAIRC, tender new evidence under this
section in response to the new evidence tendered by the chief executive
officer.
(2) If the appellant
is given leave to tender new evidence under section 11CJ(3), the WAIRC
must give the chief executive officer a reasonable opportunity to consider the
new evidence.
11CL. Revocation of removal after consideration of
new evidence
(1) If, having
considered any new evidence, the chief executive officer revokes the removal
under section 11CF(1) —
(a) the
chief executive officer must give the WAIRC notice of the revocation; and
(b) the
hearing of the appeal is discontinued when the WAIRC receives the notice.
(2) If the chief
executive officer does not give notice under subsection (1), the hearing
of the appeal must continue but the chief executive officer may —
(a)
reformulate his or her reasons for not having confidence in the
appellant’s suitability to continue as a custodial officer; and
(b)
without the leave of the WAIRC, tender new evidence under this section in
response to the new evidence tendered by the appellant.
(3) Reasons
reformulated under subsection (2)(a) may differ from, or be additional
to, the reasons given to the appellant in the decision notice.
(4) If the chief
executive officer reformulates reasons under
subsection (2)(a) —
(a) the
chief executive officer must give the WAIRC and the appellant notice in
writing of the reasons before the resumption of the hearing of the appeal; and
(b) the
WAIRC must consider the reasons as if they had been reasons given to the
appellant in the decision notice.
11CM. Application of Industrial Relations
Act 1979 to appeals
The provisions of the
Industrial Relations Act 1979 listed in the Table apply to, and in
relation to, an appeal and its determination, subject to —
(a) any
specific modifications set out in the Table; and
(b) all
other necessary modifications.
Table
|
s. 26(1)(a) and (b) | |
|
s. 26(3) | |
|
s. 27(1)(b), (c), (d), (e), (f), (h), (ha), (hb), (l), (m), (n), (o)
and (v) | |
|
s. 27(1a) | |
|
s. 28 |
The section applies only in relation to powers conferred by section 27
listed in this Table. |
|
s. 31(1) |
Paragraphs (b) and (c) do not apply but the subsection is to be read as
if it contained the following paragraphs — “ (b)
with the leave of the Commission, by an agent; or (c) by a
legal practitioner. ”. |
|
s. 31(3) | |
|
s. 31(5) | |
|
s. 32 |
Section 32(1) is to be read as if a reference to “Where an
industrial matter has been referred to the Commission the Commission shall,
unless it” were a reference to “Where the Commission is dealing
with an appeal instituted under the Young Offenders Act 1994
section 11CH, a member of the Commission may recommend that the parties
to the appeal, unless he or she”. References to “the matter” and “an industrial matter”
are to be read as if they were references to “the appeal”. |
| |
For the purposes of subsections (2) and (3), Commission does not
include an industrial commissioner constituting the WAIRC to hear the appeal. Subsections (4), (6), (7) and (8) do not apply. |
|
s. 33 |
A summons must not be issued under section 33(1)(a) to the Governor. A summons may be issued to the chief executive officer or the Minister but
only at the direction of a commissioner appointed under the Industrial
Relations Act 1979 if that commissioner is satisfied that there are
extraordinary grounds for doing so. A summons may not be issued to any other person except at the direction of a
commissioner. |
|
s. 34 |
A reference in subsection (1) to “an award, order, or
declaration” is to be read as if it were a reference to “an
order”. A reference in subsection (3) to “the President, the Full Bench, or
the Commission” is to be read as if it were a reference to “the
Commission”. |
| |
A reference in subsection (4) to “no award, order, declaration,
finding, or proceeding of the President, the Full Bench, or the
Commission” is to be read as if it were a reference to “no
decision, order, finding or proceeding of the Commission”. |
|
s. 35 | |
|
s. 36 | |
|
s. 86 |
The section does not apply in relation to costs and expenses, other than
expenses of witnesses. |
|
s. 90 |
A reference in subsection (1) to “any decision of the President,
the Full Bench, or the Commission in Court Session” is to be read as if
it were a reference to “a decision of the Commission under the Young
Offenders Act 1994 section 11CP”. |
11CN. Adjournment of appeal if appellant charged
with offence
(1) The chief
executive officer or an appellant may apply to the WAIRC for an adjournment of
the hearing of an appeal if the appellant has been —
(a)
charged with an offence relating to any matter, act or omission that was taken
into account by the chief executive officer in deciding that he or she did not
have confidence in the appellant’s suitability to continue as a
custodial officer; and
(b) the
charge has not been finally determined by a court or otherwise disposed of.
(2) If an adjournment
application is made by the chief executive officer, the WAIRC may adjourn the
hearing of the appeal if it considers that it is in the interests of justice
to do so.
(3) If an adjournment
application is made by the appellant, the WAIRC must adjourn the hearing of
the appeal for the period (not exceeding 12 months) requested by the
appellant.
(4) Before the end of
the period of an adjournment under this section, the chief executive officer
or the appellant may apply to the WAIRC for a further adjournment and, if it
is in the interests of justice to do so, the WAIRC may grant a further
adjournment for the period specified by it.
(5)
Subsections (2) and (4) do not affect any other power of the WAIRC to
grant an adjournment.
11CO. Resumption of appeal before end of
adjournment
If the charge is
finally determined by a court or otherwise disposed of before the end of the
period of an adjournment under section 11CN, the chief executive officer
or the appellant may apply to the WAIRC for the hearing of the appeal to be
resumed on a date specified by the WAIRC.
(1) This section
applies if the WAIRC decides on an appeal that the decision to take removal
action relating to the appellant was harsh, oppressive or unfair.
(2) The WAIRC
may —
(a)
order that the appellant’s removal is, and is to be taken to have always
been, of no effect; or
(b) if
it is impracticable to make an order under paragraph (a), order the chief
executive officer to pay the appellant an amount of compensation for loss or
injury caused by the removal.
(3) In considering
whether or not it is impracticable to make an order under
subsection (2)(a), it is relevant to consider —
(a)
whether, at the time of the appellant’s removal, the position occupied
by the appellant is vacant; and
(b)
whether there is another suitable vacant position in the Department.
(4) If the WAIRC makes
an order under subsection (2)(a), the appellant is not entitled to be
paid his or her remuneration as a custodial officer for any period the
appellant received a maintenance payment.
(5) An order under
this section may require that it be complied with within a specified time.
11CQ. Determining amount of compensation
(1) An amount of
compensation ordered under section 11CP(2)(b) must be determined in
accordance with this section.
(2) In determining the
amount, the WAIRC must have regard to all of the following —
(a) the
efforts, if any, of the chief executive officer and the appellant to mitigate
the loss suffered by the appellant as a result of the removal;
(b) any
maintenance payment received by the appellant;
(c) any
redress the appellant has obtained under another enactment where the evidence
necessary to establish that redress is also the evidence necessary to
establish on the appeal that the removal was harsh, oppressive or unfair;
(d) any
other matter that the WAIRC considers relevant.
(3) In determining the
amount, the WAIRC may have regard to the average rate of remuneration as a
custodial officer received by the appellant during any relevant period of
service.
(4) The amount must
not exceed 12 months’ remuneration as a custodial officer.
11CR. Restriction on publication
(1) If the WAIRC is
satisfied that it is in the public interest, it may direct that any evidence
given before it, or the contents of any document produced to it, on an
appeal —
(a) must
not be published; or
(b) must
not be published except in a manner, and to persons, specified by the WAIRC.
(2) A person must not
contravene a direction given under this section.
Penalty: a fine of $4 000 and imprisonment
for 12 months.
11CS. Effect of charge for, or conviction or
acquittal of, offence
The chief executive
officer can take removal action in relation to a custodial officer for a
particular matter, act or omission even if the matter, act or omission is an
element of an offence —
(a) with
which the custodial officer has been charged; or
(b) of
which the custodial officer has been convicted or acquitted.
11CT. Failure to comply with procedure
An act or omission of
the chief executive officer is not invalid, and cannot be called in question,
if —
(a) the
act or omission comprises a failure to comply with procedure prescribed for
the purposes of this Division; and
(b) the
failure is not substantive.
11CU. Transfer, standing down and leave of
custodial officer
(1) This Division does
not derogate from the chief executive officer’s power to —
(a)
transfer a custodial officer; or
(b)
stand a custodial officer down from performing that custodial officer’s
usual duties, with or without pay, until the custodial officer is directed by
the chief executive officer to return to those duties; or
(c)
allocate duties to a custodial officer other than the custodial
officer’s usual duties.
(2) If the chief
executive officer stands down a custodial officer in relation to whom removal
action is being taken, the chief executive officer must review the decision to
stand the custodial officer down every 60 days and advise the custodial
officer in writing of the result of the review.
(3) The chief
executive officer must not direct a custodial officer in relation to whom
removal action is being taken to take leave during the removal action unless
the leave accrues during any period that the custodial officer is stood down
from performing the custodial officer’s usual duties.
(1) In this
section —
commencement day means the day on which the
Custodial Legislation (Officers Discipline) Amendment Act 2014
Part 3 comes into operation.
(2) The Minister must
carry out a review of the operation and effectiveness of this Division as soon
as is practicable after the expiry of 24 months after the commencement
day and in the course of that review the Minister must consider and have
regard to —
(a) the
effectiveness of this Division; and
(b) the
need for the retention of the Division; and
(c) any
other matters that appear to the Minister to be relevant to the operation and
effectiveness of this Division.
(3) Without limiting
subsection (2), in carrying out the review, the Minister must consult
with and have regard to the views of the Chief Commissioner of the WAIRC, the
chief executive officer and any union that has custodial officers as some or
all of its members.
(4) The Minister must
prepare a report based on the review and, as soon as is practicable after the
report is prepared (and in any event not more than 30 months after the
commencement day), cause a copy of it to be laid before each House of
Parliament.