November 1999 Volume 80 Number 11 "serving the protectors"
By Sean Richter  Legal Officer

Transfers

The introduction of the Police Act 1998 (on the July 1, 1999) has given the Commissioner of Police much broader powers in relation to the transfer of police officers - at all ranks - across the State.

Section 47 of the act gives the Commissioner the power to transfer members from position to position at the same rank without conducting any selection process. This is what has been commonly referred to as “lateral transfer”. SAPOL appears to have embraced this process from its earliest opportunity. While there are those members who will be disadvantaged from time to time, there are others who are seeing the benefit of transfers taking place with limited delay.

It is important to note that under these provisions one cannot be transferred to a position of lower rank, unless one agrees. There will be occasions when members will want to take this course of action to get a change of geographic location.

The Police Association has been contacted by a number of members who feel that they have been aggrieved by the lateral transfer of another member. It is important to point out that while there is a grievance process for transfers of this type, it is only available for the person who has been transferred and not others who feel they have been disadvantaged by the transfer.

If you are transferred by the Commissioner under the Section 47 provision, the grievance process is available by appeal to the Police Review Tribunal (section 52 of the act) where you believe that your transfer is as a punishment for particular conduct. In simple terms this means is that, while you can be transferred as a result of disciplinary proceedings, you are protected from being transferred merely on suspicion of having committed an offence, or instead of being dealt with through the disciplinary system.

In dealing with a section 47 transfer grievance, the Police Review Tribunal has the power to:

• Quash the transfer.
• Remit the decision of transfer back to the Commissioner of Police for consideration.
• Make recommendations for settlement of the matter.

For reviews of these types of transfers, the Police Review Tribunal will be constituted by a magistrate selected by the Chief Magistrate. While this system of review has not been tested at this time, we anticipate that it will be an appropriate mechanism to protect members’ rights.

Civil Liability

The incidents of “criminal defendants” taking civil action against police officers appears to be on the increase. One of the primary difficulties with this increase is that many police officers are not prepared financially or emotionally for the experience of being a defendant in a civil matter.

There is limited comfort in the provisions of the Police Act which indemnify members in the event of civil claims. While section 65 of the Police Act 1998 provides that members do not incur “any civil liability for an honest act or omission in the exercise of...duty”, the policy of the Crown Solicitor’s Office is that the government will only meet reasonable costs and expenses where:

a. The matter relates directly to “on duty” conduct, and
b. The employee has been acquitted, and
c. No dereliction of duty has been revealed.

Where the Crown and a police officer are named as the joint defendants, the Crown will often not represent the member due to potential conflict of interest (but there are occasions when they do represent police officer defendants). This leads to the necessity of the member having to obtain legal counsel on their own behalf.

The Police Association’s legal indemnity scheme ensures that members confronted with this situation are able to have legal counsel advise them and protect their legal rights without having to commit the money “up front”. It is unfortunate that the association shoulders this burden rather than the Government pending the outcome of the matter at court.

It is fair to say that in the vast majority of matters, members are successful in court and the plaintiffs do not succeed. In those cases the Crown then indemnifies the costs retrospectively. It is our view that it would be appropriate for costs to be indemnified, or legal representation provided on an “up-front” basis.

PASA has been lobbying at the highest levels of Government - including the Crown Solicitor’s office - in an attempt to have members represented by the Crown at the first available opportunity.

It is most important that if you are unfortunate enough to be served with civil proceedings as a result of “on-duty” acts that you give the Crown the opportunity to make a decision in relation to funding/representation.

To that end, I recommend that members take the following steps if they are served with papers in a civil case:

• Send a copy of the proceedings, and a report seeking representation/indemnity to your LSA Commander.
• Fax a copy of the proceedings to Police Solicitors Services (for its information).

After you have completed those steps, contact PASA for assistance through the process.

PASA will assist you in making representations to the Crown for representations. Should those representations be unsuccessful, your application for legal funding will be considered by the PASA committee.

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