Democrats Move to Disallow Police Regulations

	Extract from Hansard Legislative Council 28 July 1999

Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 1999 Budget Session Index Browse by Subject About the SA Parliament Hansard on line

That the general regulations under the Police Act 1998, made on 30 June 1999 and laid on the table of this Council on 6 July 1999, be disallowed.

No doubt there will be a variety of reasons why these regulations should be disallowed. I was interested to hear the Hon. Paul Holloway mention a couple of reasons which I have considered but which I do not necessarily regard as on their own being a substantial enough argument to move for disallowance. However, there are three particular regulations that I want to mention and I make it plain that upon inquiry I have found that these regulations have taken advantage of section 10AA(2) of the relevant Act to enable them to be brought in forthwith before consideration by the Legislative Review Committee. The Legislative Review Committee will, no doubt, address these regulations in due course, but I do not believe we can wait for that, and that is why the Democrats have moved for disallowance.

The three regulations that we believe significantly add to the argument for disallowance of the regulations are regulations 20, 29 and 36. I repeat to this Council an anomaly that I hope we can address sooner or later. If one seeks to change or amend a regulation, the only available means is to reject the whole lot, which is a very unsatisfactory process for the Minister, the departments involved and this Parliament. However, reverting to the substance of the three regulations that I consider to be unacceptable, I refer to regulation 20, which provides:

An employee must treat information obtained as confidential and disclose only in proper execution of duties.

I understand that the Police Association believes that this regulation is not restricted to confidential issues and will stifle debate over management practices and industrial issues—free speech. It may, in its opinion, even prohibit whistleblower type disclosures. These concerns are legitimate. The whistleblower protection Act affords protection for whistleblowers exposing serious illegality or corruption, but there are potentially controversial issues of policy less serious than that, public discussion of which may well be stifled by this regulation. Contrary to Government assurances, the wording of this regulation also seems to be wide enough to cover industrial issues. I regard this regulation as totally unacceptable. Regulation 29 provides:

The Commissioner may (under section 47 of the Act) transfer a member to a position of higher rank for up to three years.

I am advised that the Police Association believes that this permits the Commissioner to circumvent the promotional selection and appeal process under sections 53 to 58. It permits `contracts by stealth, nepotism, patronage'. Apparently there was no previous equivalent in regulations: I have not checked that myself. This section was the subject of much discussion in this place in Committee on 4 August last year and my amendment, which was accepted, provided a safeguard for any persons aggrieved by a transfer decision, not merely the person transferred: an aggrieved person might be someone who feels they might have missed out on a promotion. Their grievance may be dealt with in accordance with a process which is specified in the regulations, rather than merely in general orders, and indeed the Police Association is not complaining about any process specified in the regulations.

So, the regulation is a type within the scope envisaged by the Act and by my amendment, but the significant question is whether three years is a term long enough to be regarded as subverting or circumventing the normal promotion or selection and appeal process. I very clearly believe that it does. It cannot be regarded as a temporary, ad hoc period of a substantial promotion, so I believe that regulation 29 is unacceptable and therefore should be grounds for disallowance.

Regulation 36 concerns the Unsatisfactory Performance Review Panel. Section 46 of the Act outlines a process for dealing with officers' `unsatisfactory performance'. Part of the process is a determination by a panel of persons that the processes followed and assessments made conform with statute and were reasonable in the circumstances. Regulation 36 provides that all three persons on the panel are to be appointed by the Police Commissioner, and that is the issue with which I take exception.

I am advised that the Police Association believes that this does not have the appearance of independence, which is required to give it credibility. It suggests that only one should be appointed by the Commissioner, one by the association and that one should be independent. Incidentally, this section of the Act was passed without debate. It does not apply if under performance is due to `lack of necessary resources or training'. No action may be taken unless the member has first been given six months to improve. After that time, the penalty for continuing unsatisfactory performance is demotion or, if demotion is not practicable, termination.

These safeguards in the Act may be viewed as sufficient protection for an officer accused of under performance. However, on the other hand, this is a new procedure introduced for the first time and, in my opinion, it would aid confidence in the process if it were seen to be a clearly impartial panel by having a selection of people, at least in part, from authority or sources other than the Commissioner of Police.

There are other reasons why the Police Association feels uneasy about the regulations, some of which I understand, but I do not believe that on their own they would qualify for an argument for disallowance. Because we are unable to move for partial disallowance, I have to move that they be disallowed in their totality and that is the purpose of my motion.