173Commissioner may take action with respect to police officer’s misconduct or unsatisfactory performance

#### 173 Commissioner may take action with respect to police officer’s misconduct or unsatisfactory performance 173 Commissioner may take action with respect to police officer’s misconduct or unsatisfactory performance > > (1) In this section— > > > > non-reviewable action means action referred to in Schedule 1. > > > > reviewable action means action referred to in subsection (2), other than non-reviewable action. > > > (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct— > > > > > (a) a reduction of the police officer’s rank or grade, > > > > > (b) a reduction of the police officer’s seniority, > > > > > (c) a deferral of the police officer’s salary increment, > > > > > (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate. > > > (3) The Commissioner may also order that action referred to in subsection (2) be taken with respect to a police officer whom the Commissioner has required to participate in a remedial performance program prescribed by the regulations and whose performance as a police officer after having participated in that program is, in the Commissioner’s opinion, still unsatisfactory. > > > (4) The Commissioner may make an order under subsection (2) or (3) whether or not the misconduct or unsatisfactory performance has been the subject of a misconduct matter or investigation under Part 8A or the [Law Enforcement Conduct Commission Act 2016](/view/html/inforce/current/act-2016-061) and whether or not the police officer has been prosecuted or convicted for an offence in relation to the misconduct or unsatisfactory performance. > > > (5) Before making an order for reviewable action, the Commissioner— > > > > > (a) must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and > > > > > (b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and > > > > > (c) must take into consideration any written submissions received from the police officer— > > > > > > > (i) during the period of 7 days referred to in paragraph (b), or > > > > > > > (ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served. > > > (6) As soon as practicable after making an order for reviewable action, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post. > > > (7) The written notice must contain the terms of the order and must indicate— > > > > > (a) the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the order has been made, and > > > > > (b) whether the order results from a misconduct matter that has been investigated, or is being investigated, under Part 8A or the [Law Enforcement Conduct Commission Act 2016](/view/html/inforce/current/act-2016-061), and > > > > > (c) the Commissioner’s reasons for making the order. > > > (8) An order for action referred to in subsection (2) takes effect— > > > > > (a) in the case of non-reviewable action, when the order is made, or > > > > > (b) in the case of reviewable action, at the expiry of the time within which an application for a review of the order may be made under section 174 or, if such an application is made within that time, when the application is finally determined. > > > (9) Except as provided by Division 1A— > > > > > (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and > > > > > (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. > > > > In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. > > > (10) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. > > > (11) Nothing in Division 1A limits or otherwise affects the Commissioner’s power to vary or revoke an order in force under this section. > > > (12) Despite section 31, the Commissioner’s functions under this section may only be delegated to a member of the NSW Police Force who is senior to the police officer in respect of whom those functions are being exercised. > > **s 173:** Ins 1993 No 38, Sch 1 (3). Subst 1998 No 123, Sch 1 \[5\]. Am 2010 No 54, Sch 3.9 \[10\]; 2016 No 61, Sch 5.1 \[38\] \[39\].