Royal Commission (Police) Act 2002

In this Act unless the contrary intention appears —

the Royal Commission constituted by the person appointed by the commission dated 12 December 2001 and published in the Gazette of 28 December 2001 to inquire into and report on whether since 1 January 1985 there has been corrupt conduct or criminal conduct by any Western Australian police officer; and

any Royal Commission with the same or similar terms of reference as the Royal Commission referred to in paragraph (a) and which replaces that Royal Commission,

a legal practitioner appointed to assist the Commission; and

any other person appointed, employed, seconded or engaged to assist the Commission;

For the purposes of this Act the Commission is taken to have ended on a day fixed by order of the Governor published in the Gazette.

At the time the Commission ends under subsection (2), section 4B of the Surveillance Devices Act 1998, as inserted by section 36, and section 3A of the Telecommunications (Interception) Western Australia Act 1996, as inserted by section 38, shall each expire.

For the purposes of the operation of the Commission, this Act is to be read as if it formed part of the 1968 Act.

The provisions of this Act are in addition to, and not in derogation of, any provisions of the 1968 Act, except as specifically provided by this Act.

Nothing in the 1968 Act operates to constrain or restrict the exercise of a function conferred or imposed by or under this Act.

For the purposes of the Commission’s inquiry, the Commissioner or an officer of the Commission authorised in writing by the Commissioner may, at any time —

enter and inspect any premises occupied or used by a public authority or public officer in that capacity;

inspect any document or other thing in or on the premises; and

take copies of any document in or on the premises.

The powers conferred by this section must not be exercised other than for the purpose of investigating any conduct of a person that constitutes or involves or may constitute or involve corrupt conduct or criminal conduct.

A public authority or public officer must make available to the Commissioner or authorised officer such facilities as are necessary to enable the powers conferred by subsection (1) to be exercised.

Subject to subsection (5), the powers conferred by this section may be exercised despite —

any rule of law which, in proceedings in a court, might justify an objection to an inspection of the premises or to the production of a document or other thing on grounds of public interest;

any privilege of a public authority or public officer in that capacity which the authority or official could have claimed in a court of law; or

any duty of secrecy or other restriction on disclosure applying to a public authority or public official.

Nothing in this section affects the operation of the Parliamentary Privileges Act 1891.

Subject to subsection (2), nothing in this Act prevents a person who is required under section 5, 6 or 7 to produce a statement of information, document or other thing or make facilities available from claiming legal professional privilege as a reason for not complying with that requirement.

Subsection (1) does not apply to any privilege of a public authority or public officer in that capacity.

If a person served with a summons under section 9 of the 1968 Act fails to attend as required by the summons and section 10 of that Act, the Commissioner may, on proof by statutory declaration of the service of the summons, issue a warrant for the apprehension of that person.

The Commissioner may issue a warrant for the apprehension of a person whose evidence is desired and is necessary and relevant to the Commission’s inquiry if the Commissioner is satisfied by evidence on oath or affirmation that it is probable that the person —

will not attend before the Commission to give evidence without being compelled to do so; or

is about to or is making preparation to leave the State and the person’s evidence will not be obtained by the Commission if the person departs.

The powers conferred by subsection (2) must not be exercised unless the Commissioner is satisfied that the evidence of the person concerned is required for the purpose of investigating any conduct of a person that constitutes or involves or may constitute or involve corrupt conduct or criminal conduct.

A warrant may be issued under subsection (2) without or before the issue of a summons to the person whose evidence is desired.

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 specified in the summons for the person to attend has not yet passed.

A warrant under this section authorises the apprehension of the person and his or her being promptly brought before the Commission and detained in custody for that purpose until released by order of the Commissioner.

A warrant issued under this section may be executed by a member of the Police Force, 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.

The apprehension of a witness under this section does not prevent the witness from being dealt with for contempt under section 41 for non‑compliance with the summons.

This section operates in place of section 16 of the 1968 Act.

The release of a witness by order of the Commission under section 9(6) may be made subject to one or more of the following conditions —

that the witness appear and report before the Commission in accordance with the terms of the order unless excused from attendance or until released from further attendance by the Commissioner or an officer of the Commission;

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);

any other condition that the Commissioner thinks appropriate.

The Commissioner may by order amend, revoke or add to those conditions.

A witness who without reasonable excuse fails to comply with a condition to which the release of the witness under section 9(6) is subject is guilty of an offence.

A witness who has not been released by the Commissioner under section 9(6) or whose release under that provision is subject to one or more conditions may apply to the Supreme Court for a review of the decision not to release the witness or of the terms of one or more of those conditions.

The Supreme Court may do either or both of the following —

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;

make any order that the Commissioner may make in relation to the detention or release of the witness.

The Supreme Court may also exercise its powers under subsection (2) where the Commissioner has not made a decision within a reasonable time on the release of a witness.

An order under subsection (2) is taken to be an order of the Commissioner.

The Commissioner may direct that —

any evidence given before the Commission;

the contents of any statement of information, document, or a description of any thing, produced to the Commission;

the contents of any document, or a description of any thing, seized under a search warrant issued under the 1968 Act;

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;

the fact that any person has given or may be about to give evidence before the Commission,

A person must not make a publication in contravention of a direction given under this section.

This section operates in place of section 19B of the 1968 Act.

The Commissioner may include a restriction on disclosure in —

a notice under section 5(1) or 6(1) to produce a statement of information or to attend and produce a document or other thing; or

a summons to attend the Commission to give evidence or produce a document or other thing.

A restriction on disclosure is a direction that the person required to comply with the notice or summons must not disclose to any person except a person specified in the notice or summons or a person to whom the information may be disclosed under subsection (4) —

the existence or nature of the notice or summons;

the part or aspect of the Commission’s inquiry to which the notice or summons relates; or

any information from which a person could reasonably be expected to infer the existence or nature of the notice or summons or of the part or aspect of the Commission’s inquiry to which it relates.

A person served with a notice under section 5(1) or 6(1), or a summons to attend the Commission, that includes a restriction on disclosure must comply with the restriction on disclosure.

A person does not contravene subsection (3) if —

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;

the disclosure is made to obtain legal advice or representation in relation to the notice or summons; or

the disclosure is made for the purposes of, or in the course of, legal proceedings.