In these notes references to amendments of sections are, except where otherwise indicated, references to amendments to the Police Regulation Act, 1899, as amended. The Police Regulation Act, 1899, as amended, is referred to as the Police Regulation Act. The Police Offences Act, 1901, as amended, is referred to as the Police Offences Act.
Sec.2(b),(c) - Amendment of sec.3 - Interpretation
These amendments make clear that special constables, although appointed under the Police Regulation Act, are not "members of the police force". They also enable the generic term "special constable" to be used for a special constable of any category.
Sec.2(d) - Amendment of sec.4 - Appointment and authority of Commissioner
See paragraph 25 of the report.
Although the Bill vests in the Commissioner power to appoint, discipline and dismiss special constables, the effect of this amendment is that, the Commissioner is subject to the direction of the Minister (at present the Premier) in respect of superintendence of special constables - as he is in respect of the superintendence of members of the police force.
Sec.2(e) - Amendment of sec.12D - Enforcement of judgments
Section 12D of the Police Regulation Act empowers the Commissioner to apply, to a limited extent, moneys due to any special constable, employed by him, towards satisfaction of unsatisfied judgments of the special constable. The purpose of the amendments is to adapt the section to the new categories of special constables. The effect of them is to apply the section to special constables in regular service in the Police Department. The section is not applied to special constables on call as their employment would be of an intermittent nature and the provisions of the section as to minimum pay would be inappropriate.
Sec.2(f) - Amendment of sec.15 - Penalty for taking a bribe &c.
Section 15 renders liable to imprisonment any member of the police force who permits a prisoner to escape, who deserts his post or who assaults his superior officer. The amendments extend this liability to any special constable in regular service in the Police Department and to any special constable on call. Section 15 also renders liable to imprisonment any member of the police force who takes a bribe. The amendments extend this liability to any special constable of any category.
Sec.2(g) - Amendment of sec.16 - Exemption from tolls
Section 16 exempts from road, bridge and ferry tolls any member of the police force on actual duty. The amendment extends the exemption to any special constable, other than a private special constable, who is on actual duty.
Sec.2(h) - Amendment of sec.17 - Penalty for unlawful possession of accoutrements or wearing uniform. &c.
Section 17 of the Police Regulation Act imposes penalties in respect of the possession of the accoutrements or equipment of a member of the police force, wearing the uniform of a member of the police force, impersonating a member of the police force bribing or attempting to bribe a member of the police force or posing as a member of the police-force. The amendments relate these provisions to special constables as well as to members of the police force.
The amendments also substitute the expression "part of the uniform" for "article of clothing" in the offence of possession without satisfactory explanation (s.17(a)). The expression "article of clothing" is unnecessarily wide, particularly in respect of private special constables who may not wear special clothing.
Sec.2(i) - Amendment of sec.17A - Penalty for unlawful possession of police wireless code
Section 17A of the Police Regulation Act provides penalties for offences relating to the police wireless code by "a special constable appointed under the Police Offences Act, 1901, as amended by subsequent Acts, who is employed in the Police Department". The amendment substitutes the appropriate new categories of special constables, namely "a special constable in regular service in the Police Department, and a special constable on call".
Sec.2(j) - Amendment of sec.26 - For protection of constables
Section 26 of the Police Regulation Act protects members of the police force from liability for any act done in obedience to a warrant of any justice issued irregularly or without jurisdiction. The amendments extend this protection to special constables.
The amendments also adapt the section to the new Supreme Court procedure which will come into effect when the Supreme Court Act, 1970, is proclaimed to commence. The amendments are, in this respect drafted on the assumption that the Supreme Court Act, 1970, will be proclaimed to commence before the commencement of an Act in the form of the draft Bill.
Sec.3 - New PART IV. - SPECIAL CONSTABLES
Section 3 inserts a new Part, Part IV, into the Police Regulation Act. Part IV relates exclusively to special constables. It is divided into five Divisions, namely -
Division 1. - Special Constables in Regular Service in the Police Department - ss.37-42.
Division 2. - Special Constables on Call - ss.43-48.
Division 3. - Visiting Special Constables - ss.49-55.
Division 4. - Private Special Constables - ss.56-71.
Division 5. - General - ss.72-79.
Division 1. - Special Constables in Regular Service in the Police Department
See paragraphs 16, 21, 22, 30 and 31 of the report.
New sec.37 - Appointment
See paragraph 26 of the report.
The Commissioner is, by section 4 of the Police Regulation Act as amended by section 3(d) of the draft Bill, charged with the superintendence of special constables but is subject, in that superintendence, to the direction of the Minister. We do not consider it necessary to provide that the appointment of a special constable be "subject to disallowance by the Governor" (as is the case in respect of the appointment of members of the police force - Police Regulation Act, s.6 ). No like provision is contained, in respect of the appointment of special constables, in the present legislation (Police Offences Act, Part IV). Appointment to the office of special constable is, in comparison with appointment as a member of the police force, a relatively minor appointment which, especially in the case of appointment to the office of visiting special constable, may be of short duration.
New sec.38 - Oath
Compare the form of the oath with that required to be taken by members of the police force (Police Regulation Act, s.9). She form of oath is simpler and takes into account that the special constables duties may be limited by rules made under the new section 77. The oath may be administered by a member of the police force of or above the rank of inspector as well as by a justice.
New sec.39 - Class
See paragraphs 33 and 34 of the report.
Classes may be prescribed pursuant to the new section 77.
New sec.40 - Powers, immunities and duties
See paragraphs 33 and 34 of the report.
Duties may be prescribed pursuant to the new section 77.
It is at least doubtful whether a special constable in regular service in the Police Department or, a fortiori, a special constable of any other category, is a "member of the Police Force" of New South Wales within the meaning of the Commonwealth extradition legislation - the Extradition (Commonwealth Countries) Act 1966-1968, the Extradition (Foreign States) Act 1966-1968. Further Commonwealth legislation would be needed to extend to special constables, at least clearly, the powers of arrest conferred by these Acts.
Apart, however, from the Commonwealth extradition legislation, a member of the police force is not entirely without powers of arrest where a crime has been committed abroad. Where a crime has been committed abroad and the offender flees to New South Wales, he may offend against the criminal law of this State. For example, a thief who brings into New South Wales any of the stolen goods is guilty of the crime, in New South Wales, of being in possession of stolen goods (Crimes Act, 1900, s.189A) and is susceptible to arrest for this breach of the law of this State. He may be arrested, on reasonable suspicion that he has committed this offence, by a member of the police force - even without warrant (Crimes Act, 1900, s.352). A special constable in regular service in the Police Department has the powers and authorities, for this purpose, of a member of the police force.
New sec.41 - Control
See paragraph 32 of the report.
New sec.42 - Transition
The Police Regulation Act refers to the special constables, with which section 42 is concerned, by two descriptions - special constables employed in the Police Department (s.17A(7)) and special constables employed by the Commissioner (s.12D(12)). To avoid doubt, both descriptions are used in section 42.
Division 2. - Special Constables on Call
See paragraphs 6, 7, 8, 9, 10, 11, 30, 35, 36, 37 and 38 of the report.
New sec.43 - Appointment
See the notes to new section 37.
New sec.44 - Oath
See the notes to new section 38.
New sec.45 - Class
See paragraph 38 of the report.
New sec.46 - Periods of duty
See paragraph 35 of the report.
New sec.47 - Powers, duties and immunities
See paragraphs 38 and 40 of the report.
See also the notes to new section 40.
New sec.48 - Control
See paragraph 39 of the report.
Division 3. - Visiting Special Constables
See paragraphs 16, 17, 18, 19, 20, 30 and 41 of the report.
New sec.49 - Appointment
See notes to new section 37.
New sec.50 - Oath
The simple oath provided for by this section does not include an oath of allegiance to the Queen. Such an oath may be inappropriate for a member of a foreign police force.
It may not be convenient for a visiting special constable to have the oath administered to him by a justice for New South Wales or by a member of the police force of New South Wales of or above the rank of inspector. The section therefore provides that it may be administered by a member (who is of or above the rank of inspector) of the police force of which the special constable is a member. This would be convenient, for example, for the administration of the oath to a member of the police force of Queensland who is appointed by the Commissioner a visiting special constable for New South Wales for the purpose of "border" police work (see para.18 of the report).
New sec.51 - Definition
See paragraph 43 of the report.
New sec.52 - Powers and immunities
See paragraphs 42 and 45 of the report.
See also the notes to new section 40.
New sec.53 - Control
See paragraph 44 of the report.
New sec.54 - Resignation
A requirement as to a period of notice before resignation is not requisite and could cause difficulty - for example, where the visiting special constable is required by a superior officer of the police force of New South Wales to resign forthwith his office as a special constable for New South Wales.
New sec.55 - Transition
No comment is necessary.
Division 4. - Private Special Constables
See paragraphs 12, 13, 14, 15, 30, 46, 47, 48 and 49 of the report.
New sec.56 - Application by employer
The section uses the expressions "employer" and "employee" in preference to such expressions as "master" and "servant". In this respect the drafting follows the present law (Police Offences Act, s.101(1A)). The purpose of this choice of expressions is to preclude an argument that the appointment of a person to the office of private special constable is invalid, where he has no duties to his employer which are isolated from his office as a private special constable. It could be argued that in such a case the legal relationship of master and servant would not exist between the employer and the employee (Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) [1955] A.C. 457).
The section enables the Crown as well as other employers or proposed employers to make application. The Crown is not limited to the Crown in right of New South Wales. It would extend, for example, to the Crow in right of Queensland. Thus if the Crown in right of Queensland occupies premises in New South Wales, it could apply in respect of an employee whose appointment is desired to guard the premises.
New sec.57 - Appointment
The power of the Commissioner to appoint is subject to the restrictions provided by section 58.
See the notes to new section 62.
New sec.58 - Restrictions upon power to appoint
See paragraphs 47 and 48 of the report.
By section 21(e) of the Interpretation Act, 1897, the word "land" includes "messages, tenements, and hereditaments, corporeal, of any tenure or description, and whatever may be the estate or interest therein".
New sec.59 - Application by individual
See paragraph 49 of the report.
New sec.60 - Appointment
The power of the Commissioner to appoint is subject to the restrictions provided by section 61.
See the notes to new section 62.
New sec.61 - Restriction s upon power to appoint
See paragraphs 47, 48 and 49 of the report. See also the notes to new section 58.
New sec.62 - Fixing of period of office
A private special constable is appointed because of special interests (see new s.58 and new s.61). The tenure of office of a private special constable should cone to an end when those special interests cease to exist. It is not sufficient to confer upon the Commissioner power to terminate the appointment of any person to the office of special constable (see new s.73). The Commissioner may be unaware, or not immediately aware, of the cessation of the special interests by reason of which a person has been appointed to the office of private special constable. For example, if a person has been appointed because he is an inspector of the R.S.P.C.A., he should cease to hold the office of private special constable forthwith upon ceasing to be an inspector of that body. He should not continue to have the powers and authorities of a private special constable until the Commissioner becomes aware that he has ceased to be an inspector of the R.S.P.C.A. and terminates his appointment to the office of private special constable.
Section 62 enables the period of office to be appropriately defined. Thus in the case of the R.S.P.C.A. inspector it can be defined so as to endure only until he ceases to be an inspector of that body.
New sec.63 - Information as to expiration of period of office
See the notes to new section 62.
New section 63 is intended to ensure that the Commissioner is not left unaware that a person has ceased to hold the office of private special constable. The section, as drafted provides for a maximum penalty of $100. We do not, however, feel called upon to make any positive recommendation as to quantum of penalty.
New sec.64 - Terms of appointment
See paragraph 51 of the report.
New Sec.65 - Restrictions upon office
See paragraph 50 of the report.
New sec.66 - Oath
No comment is necessary.
New sec.67 - Powers and immunities
See paragraph 50 of the report.
See also the notes to new section 40.
New sec.68 - Control
See paragraph 52 of the report.
New sec.69 - Resignation
No comment is necessary.
New sec.70 - Termination at request of applicant
No comment is necessary.
New sec.71 - Transition
No comment is necessary.
Division 5. - General
New sec.72 - Suspension
No comment is necessary.
New sec.73 - Termination
No comment is necessary.
New sec.74 - Resignation
Compare section 18 of the Police Regulation Act.
New section 74 applies only to special constables in regular service in the Police Department and special constables on call. These special constables perform functions which otherwise would fall upon members of the police force. Four weeks notice of intention to resign would seem, a reasonable requirement. We make no positive recommendation as to the amount of the penalty.
New sec.75 - Cesser of powers and authorities
No comment is necessary.
New sec.76 - Handing over equipment
Compare section 19 of the Police Regulation Act. We make no positive recommendation as to the amount of the penalty.
New sec.77 - Rules
See paragraphs 27, 28, 34, 38, 54, 55 and 56 of the report.
The rule-making power extends to the making of rules providing for the imposition by the Commissioner of penalties for breach by a special constable of any provision of new Part IV of the Act, such as new section 68, or of a rule. We make no positive recommendation as to the amount of the penalties. Matters of procedure to be followed in inquiring into an alleged breach, including the rights in that regard of a person charged, can be prescribed by rule as conditions precedent to the imposition of a penalty.
New sec.78 - Register
See paragraph 57 of the report.
New sec.79 - Certificate
Section 11 of the Police Regulation Act provides that
"(i)f any question arises as to any member of the police force to hold or execute his office, common reputation shall be deemed evidence of such right, and it shall not be necessary to have or produce any written appointment, or any oath, affidavit, or other matter whatsoever in proof of such right".
We do not consider that this provision should be extended to special constables.
A certificate under new section 73 would be evidence of the matters stated in it. It is not made conclusive evidence. It could be contraverted by other evidence.
Sec.4 - Amendment of the Police Offences Act
This section repeals the provisions of the Police Offence Act as to special constables.
Sec.5 - Amendment of the Crimes Act, 1900
Sections 58 and 494 of the Crimes Act, 1900 relate to assault upon, amongst others, a "constable, or other peace officer", The amendments remove any room for doubt that the section relates to like assault upon a special constable.
Sec. 6 - Amendment of the Public Service Act. 1902
Parking police and "blue uniform" special constables (see para.21 of the report) are ministerial employees. Ministerial employees are not appointed under the Public Service Act, 1902 (hereafter referred to as the Public Service Act), and the provisions of that Act do not apply to them. The Public Service Board has no power, under section 14B of the Public Service Act, to enter into agreements in respect of ministerial employees. Section 14B, so far as relevant, provides -
"14B. The Board may enter into an agreement with any association or organisation representing any group or class of officer or employee as to salaries, fees, allowances, and grades, and may by regulations prescribe the salaries, fees, allowances and grades so agreed upon ..."
But a ministerial employee is neither an "officer" or an "employee" for the purposes of this section. The Crown, however, as the employer of ministerial employees may, by the responsible Minister, authorise members of the Public Service Board to act as its agent to negotiate with and, on its behalf, to enter into agreements with associations or organisations representing groups or classes of ministerial employees. This, in practice, happens. Pursuant to such authority agreements have been made with the Public Service Association of New South Wales representing parking policemen. The current agreement is dated 23rd April, 1971.
Members of the police force, also, are not within the provisions of the Public Service Act. Section 5 of that Act expressly excludes from the provisions of the Act "any person employed under the Police Regulation Act of 1899". Agreements in respect of them are, as in the case of the parking police, entered into by members of the Public Service Board, not pursuant to section 14B of the Public Service Act, but as authorised agents on behalf of the Crown.
It is not within our terms of reference to consider whether any problems exist as to the determination of salaries and other matters the subject of agreements entered into by members of the Public Service Board on behalf of the Crown. It is, however, an incidental matter within our terms of reference that our proposals, if implemented, do not disturb such determination.
Unless section 5 of the Public Service Act is amended, difficulty might arise in respect of the application of that Act to special constables on call. An officer or employee subject to the provisions of the Public Service Act might be appointed, under the Police Regulation Act, as amended pursuant to our proposals, to the office of special constable on call. It might than be argued that such an officer or employee is thereby excluded from the Public Service Act, because he thereby becomes a "person employed under the Police Regulation Act of 1899" within the meaning of section 5 of the Public Service Act.
The amendment to section 5 of the Public Service Act precludes this argument. It precludes also, for more abundant precaution, a like argument in respect of a private special constable - although an argument that a private special constable is "employed" under the Police Regulation Act is, in any event, unattractive.
Sec.7 - Amendment of the Police Regulation (Superannuation) Act 1906
The Police Regulation (Superannuation) Act, 1906, applies only to members of the police force. The amendment precludes any argument that our proposals, if implemented, extend its operation to any special constable.
Sec.8 - Amendment of the Police Regulation (Appeals) Act, 1923
This section must be considered in conjunction with section 10 which, amends the Crown Employees Appeal Board Act, 1944.
The Commissioner may, if our proposals are implemented, and appropriate rules are made, impose fines upon special constables. Under the present law he cannot do so. We consider that, as an incidental matter to the conferring upon the Commissioner of this power, the Police Regulation (Appeals) Act, 1923 and the Crown Employees Appeal Board Act, 1944, should be amended so as to confer upon any special constable the right to appeal to the Crown Employees Appeal Board against any fine imposed upon him by the Commissioner. The amendments so provide.
It would seem that, under the present law, a parking policeman or "blue uniform" special constable (see para.21 of the report), who has been continuously employed in the service of the Commissioner for not less than one year, is an "officer" as defined by section 2 of the Crown Employees Appeal Board Act, 1944, and may appeal to the Board against dismissal. We consider that any special constable in regular service in the Police Department, who has been continuously in service in that Department for not less than one year, should have a clear right to appeal to the Board not only against dismissal but also against suspension (cf. s.6 of the Police Regulation (Appeals) Act, 1923). The amendments so provide.
Sec.9 - Amendment of the Workers' Compensation Act, 1926
The Workers' Compensation Act, 1926 at present applies to parking police and "blue uniform" special constables (see para.21 of the report). We consider that it should apply to all special constables in regular service in the Police Department and to all special constables on call. The amendments so provide.
We also consider that an employer upon whose application an employee has been appointed a private special constable should not be able successfully to argue that the employee is not entitled to the benefits of the Workers' Compensation Act, 1926, because the injury received by the employee was suffered in the execution of his office as a private special constable. The amendments preclude such an argument.
Sec. 10 - Amendment of the Crown Employees Appeal Board Act, 1944
See the notes to section 8.
A person who is an "officer" as defined by section 2 of the Crown Employees Appeal Board Act, 1944 (such as an officer in the public service) may be appointed to be also a special constable on call. This should not deprive him of any rights of appeal which he has in respect of decisions concerning the first-mentioned office. The drafting of the new subsection (6) of section 10 of the Crown Employees Appeal Board Act, 1944, prevents any possibility of this occurring.
Amendment of the Transport Employees Retirement Benefits Act, 1967
Parking police, though not entitled to the benefits of the Police Regulation (Superannuation) Act, 1906, are entitled to the benefits of the Transport Employees Retirement Benefits Act, 1967. "Blue uniform" special constables are also entitled to the benefits of this Act even though their duties have little connection with "Transport". Parking police and "blue uniform" special constables become, under the draft Bill, special constables in regular service in the Police Department. The amendments entitle all special constables in regular service in the Police Department, no matter of what class, to the benefits of the Act and preserve the continuity of service of persons presently entitled.
Sec.12 - Amendment of the Summary Offences Act, 1970
The amendment extends the offence of resisting a member of the police force to resisting a special constable.
Sec.13 - Amendment of Various Acts
These amendments are consequential to the amendment of the Police Offences Act.
