Delete Part X and
insert:
Part X — Discipline of prison officers
In this
Part —
prison officer means a person engaged to be a
prison officer under section 13(1).
Division 2 — General discipline
97. Regulations, rules to be strictly observed
A prison officer must
use his or her best endeavours to ensure that this Act, regulations made under
this Act, rules and standing orders are strictly observed.
98. Application of Public Sector Management
Act 1994 Part 5
Prison officers are
prescribed for the purposes of the Public Sector Management Act 1994
section 76(1)(b).
Division 3 — Removal of prison officers due to loss
of confidence
In this Division,
unless the contrary intention appears —
appeal means an appeal under section 106;
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 102(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 103(1);
maintenance period has the meaning given in
section 103(1);
new evidence , on an appeal against the removal of
a prison 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 102(1);
(c) a
written submission made to the chief executive officer by the prison officer
under section 102(2);
(d) a
decision notice;
(e) a
notification of the removal;
prison officer includes a superintendent, or other
officer with custodial functions, appointed under section 6(3);
removal action has the meaning given in
section 101;
removal decision means a decision of the chief
executive officer to take removal action;
suitability to continue as a prison officer means
suitability to continue as a prison 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 prison officers
100. Application of Subdivision
(1) This Subdivision
applies if —
(a) the
chief executive officer does not have confidence in a prison officer’s
suitability to continue as a prison officer; and
(b) the
chief executive officer —
(i)
decides not to take, or continue to take, disciplinary
proceedings under the Public Sector Management Act 1994 Part 5
against a prison officer; and
(ii)
decides instead to take removal action in relation to the
prison officer;
and
(c) in
the case of a prison officer engaged under section 13(1), the Minister
consents to the taking of removal action in relation to the prison officer.
(2) 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 prison officer’s
suitability to continue as a prison officer, the chief executive officer may
take the following action ( removal action ) —
(a) in
the case of a prison officer appointed under section 6(3) —
remove the prison officer;
(b) in
the case of a prison officer engaged under section 13(1) —
recommend to the Minister that the prison officer be removed under
section 13(3).
(2)
Subsection (1)(a) 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
prison officer’s suitability to continue as a prison officer.
(4) For the purpose of
the investigation the chief executive officer may require the prison 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 prison officer.
(5) The prison 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 prison officer; or
(b)
render the prison officer liable to a disciplinary measure under
Division 2 or removal under this Division.
(6) The information,
answer or document is not admissible in evidence against the prison officer in
any criminal proceedings except in proceedings for an offence under
subsection (7).
(7) A prison 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 prison 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 prison officer can, how the document is
false or misleading; and
(ii)
if the prison officer has, or can reasonably obtain, the
correct information — without providing the correct information.
Penalty: a fine of $4 000 or
12 months’ imprisonment, or both.
102. Notice of loss of confidence
(1) The chief
executive officer may give a prison officer a written notice setting out the
grounds on which the chief executive officer does not have confidence in the
prison officer’s suitability to continue as a prison officer.
(2) The prison 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 prison officer; and
(b) give
the prison officer written notice of the decision (the decision notice ).
(4) The chief
executive officer must not decide to take removal action against the prison
officer unless the chief executive officer —
(a) has
taken into account any written submissions received from the prison officer
during the submission period; and
(b)
still does not have confidence in a prison officer’s suitability to
continue as a prison officer.
(5) If the chief
executive officer decides to take removal action against the prison 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 prison officer a copy of any documents that were considered by the
chief executive officer in making the decision; and
(b) make
available to the prison 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 prison
officer is removed as a result of removal action, the prison officer is
entitled to receive a payment (a maintenance payment ) for the period of
28 days after the day on which the prison officer is removed (the
maintenance period ).
(2) The Minister may,
in exceptional circumstances, direct that a maintenance payment must be paid
to the prison 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 prison officer at
the time of the removal.
104. Withdrawal of removal action and revocation
of removal
(1) If removal action
does not result in the removal of a prison officer, the chief executive
officer may, by notice in writing to the prison officer, withdraw the removal
action.
(2) If a prison
officer is removed as a result of removal action, the chief executive officer
may, by notice in writing to the prison officer, revoke the removal.
(3)
Subsection (2) applies even if an appeal has been instituted against the
removal.
(4) Despite any other
enactment, if the removal is revoked under subsection (2), the removal is
to be taken to be of no effect and to have never had any effect.
(5) If the chief
executive officer revokes the removal of a prison officer under
subsection (2), the prison officer is not entitled to be paid his or her
salary for any period the prison officer received a maintenance payment.
105. Resignation of prison officer who has been
removed
(1) Even if a prison
officer is removed as a result of removal action, the prison 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 prison officer resigns under subsection (1), the removal
of the prison officer is to be taken to be of no effect and to have never had
any effect.
Subdivision 3 — Appeal against removal of prison officer
(1) If a prison
officer is removed as a result of removal action, the prison officer may
appeal to the WAIRC against the removal decision on the ground that it was
harsh, oppressive or unfair.
(2) The prison 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 prison officer has resigned under section 105(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 prison officer and the chief executive officer.
(6) The prison 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 prison officers;
and
(ii)
the special nature of the relationship between the chief
executive officer and prison officers.
108. 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.
109. Opportunity to consider new evidence
(1) If the chief
executive officer is given leave to tender new evidence under
section 108(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 108(3), the WAIRC
must give the chief executive officer a reasonable opportunity to consider the
new evidence.
110A. Revocation of removal after consideration of
new evidence
(1) If, having
considered any new evidence, the chief executive officer revokes the removal
under section 104(2) —
(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 prison 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.
110B. 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 Prisons Act 1981 section 106, 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 Prisons
Act 1981 section 110E”. |
110C. 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 prison
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.
110D. Resumption of appeal before end of
adjournment
If the charge is
finally determined by a court or otherwise disposed of before the end of an
adjournment under section 110C, 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 prison 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.
110F. Determining amount of compensation
(1) An amount of
compensation ordered under section 110E(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
prison officer received by the appellant during any relevant period of
service.
(4) The amount must
not exceed 12 months’ remuneration as a prison officer.
110G. 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 or
12 months’ imprisonment, or both.
110H. Effect of charge for, or conviction or
acquittal of, offence
The chief executive
officer can take removal action in relation to a prison 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 prison officer has been charged; or
(b) of
which the prison officer has been convicted or acquitted.
110I. 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.
110J. Transfer, standing down and leave of prison
officer
(1) This Division does
not derogate from the chief executive officer’s power to —
(a)
transfer a prison officer; or
(b)
stand a prison officer down from performing that prison officer’s usual
duties, with or without pay, until the prison officer is directed by the chief
executive officer to return to those duties; or
(c)
allocate duties to a prison officer other than the prison officer’s
usual duties.
(2) If the chief
executive officer stands down a prison officer in relation to whom removal
action is being taken, the chief executive officer must review the decision to
stand the prison officer down every 60 days and advise the prison officer
in writing of the result of the review.
(3) The chief
executive officer must not direct a prison 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 prison officer is stood down from
performing the prison officer’s usual duties.
(1) In this
section —
commencement day means the day on which the
Custodial Legislation (Officers Discipline) Amendment Act 2014
Part 2 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 prison 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.