Police Act 1998

The Act directly regulates a wide cohort. At the apex are the Commissioner, Deputy Commissioner and Assistant Commissioners (Part 3), whose appointments, contracts, performance standards, termination and resignation are governed by ss 12-19. "Members of SA Police" (defined in s 3) encompass all officers of or above inspector rank and other appointed personnel under Part 4, but exclude cadets, medical officers, special constables and police security officers for certain purposes.

Rank-and-file officers, sergeants and constables are affected by appointment (ss 20-22), probation (s 27), performance standards (s 28), resignation (s 29) and the drug and alcohol testing regime (s 41B). Community constables, who may be appointed for the whole or part of the State (s 24), operate under tailored limitations on powers, responsibilities and immunities (s 30) and easier suspension or termination (s 31).

Police cadets (Part 5) are trainees who are neither members nor public servants; they are subject to appointment, suspension, termination, resignation and relinquishment rules (ss 33-35) and drug testing. Police medical officers are appointed on terms fixed by the Commissioner and perform agreed duties (s 36).

Police security officers, whose regime was absorbed from the former Protective Security Act 2007, form a distinct uniformed service with their own rank structure (s 63F), oath (s 63G), identification requirements (s 63I) and powers limited to protective security of designated persons, places and vehicles (Division 4 of Part 9A). Special constables are engaged for short-term or emergency needs and have equivalent powers to members subject to Commissioner-imposed limitations (s 61).

The Commissioner’s management obligations extend to all these categories (s 9 and s 10). Review rights in Part 8 are available to members, former members, police security officers and unsuccessful promotion applicants. The Minister exercises limited oversight through directions (s 8), performance standards for the Commissioner (s 13) and determinations of protected persons, places and vehicles (s 63B).

Indirectly the Act affects the public. Citizens must comply with reasonable directions given by police security officers in protected areas or near protected persons or vehicles, or face prosecution under s 63V. The community benefits from the statutory statement of police purpose (s 5) and the liability shield in s 65, which channels claims to the Crown. Impersonation and unlawful possession of uniforms or property are offences applicable to any person (s 74). Criminal intelligence and terrorism notification provisions (ss 74A-74B) affect persons subject to such intelligence or notifications in court proceedings.

Finally, the legislation binds other public authorities through cross-references: superannuation trustees under the Police Superannuation Act 1990 must be consulted before incapacity terminations (s 45(2)), SAET determines review applications (ss 48 and 52), and the Police Review Tribunal hears promotion reviews (s 55 et seq).

Duties are both organisational and individual. The Commissioner must pursue general management aims directed to efficient service delivery, adaptable structures, staff development, accountable resource use and continuous improvement (s 10(1)). Personnel practices must be merit-based, fair, non-discriminatory, diversity-positive, free of nepotism and provide safe conditions and redress avenues (s 10(2)). The Commissioner must also ensure drug and alcohol testing occurs in prescribed circumstances (s 41B) and maintain guidelines for criminal intelligence assessment (s 74A(1)).

Individual members owe duties to obey orders (s 11), meet performance standards (s 28 for officers below Assistant Commissioner), undergo testing when required, and not relinquish duties without authorisation or incapacity (s 29(2), penalty $1,250 or three months imprisonment). Police security officers must perform Commissioner-imposed duties, which may extend interstate or overseas (s 63M), and comply with the Code of conduct imported from the Police Complaints and Discipline Act 2016.

Rights include merit-based selection and promotion (ss 10(2)(a) and 54), probation confirmation rights (s 27(5)), review of termination (s 48), punitive transfer (s 52) and promotion decisions (s 55). Resignation rights are conferred on members (14 days’ notice under s 29(1)), Assistant Commissioners (three months under s 18(2)) and the Commissioner (three months under s 18(1)). Members enjoy statutory immunity for honest acts or omissions in the exercise of powers (s 65(1)), with the burden of proving dishonesty lying on the plaintiff (s 65(4)). Police security officers receive parallel immunity.

The Act confers positive powers. Members have all common-law and statutory police powers unless divested or suspended (s 67). Police security officers may give reasonable directions for security of protected persons (s 63P), places (s 63Q) or vehicles (s 63S), conduct searches (including physical searches and scanning), detain and hand persons to police, and use reasonable force (ss 63P(3), 63Q(8), 63R(2)). Special constables have the same powers as members subject to limitations (s 61(1)(b)).

Review rights before SAET and the Police Review Tribunal are significant procedural rights. The Tribunal must act according to equity, good conscience and the substantial merits, unbound by technicalities or evidence rules (Schedule 1 cl 3(5)), although legal representation is barred in promotion reviews (cl 3(3)).

The Act creates both disciplinary and criminal enforcement pathways. Disciplinary breaches of the Code (defined in s 3 by reference to the Police Complaints and Discipline Act 2016) can lead to termination, reduction in rank or other sanctions, with testing results admissible in such proceedings (s 41E(1)(c)). Suspension without pay is permitted for up to three months, or longer where serious criminal charges or Code breaches likely to result in termination exist (s 70(2)).

Criminal offences include:

• Relinquishing duties without authorisation (ss 29(2) and 35(2)): $1,250 or three months imprisonment.
• Failure to return identity cards (s 63I(3)): $1,250.
• False statements in appointment applications (s 69(1)): $2,500 or six months imprisonment (strict liability subject to reasonable-belief defence).
• Failure to deliver up Crown property on termination or suspension (s 68(1)): $2,500 or six months imprisonment, enforceable by search warrant.
• Impersonation of police or police security officers or unlawful possession of uniforms or property (s 74(1)-(2)): $2,500 or six months imprisonment (theatrical exception in s 74(3)).
• Non-compliance with police security officer directions, obstruction or false information (s 63V): $2,500 or six months imprisonment, with power to detain and hand to police.

Enforcement of process levying fines or forfeited recognisances is mandatory (s 72). The Commissioner may suspend or terminate appointments after due inquiry (ss 31, 34, 62, 63J). Evidentiary aids include certificates of appointment (s 71), common reputation (s 71(1)) and ministerial or Commissioner certificates regarding protected status or terrorism notifications (ss 71A and 74B(9)).

The Police Review Tribunal can impose penalties up to $2,500 for non-compliance with its summonses or contempt (Schedule 1 cl 4(2)). Regulations may impose fines not exceeding $1,250 (s 76(2)(c)) or, under the police security officer modification power, up to $10,000 (s 63D(4)(b)).

The Act is not standalone. It expressly cross-references the Police Complaints and Discipline Act 2016 for the Code of conduct, minor misconduct (now repealed) and disciplinary processes; many termination and suspension powers are stated to be subject to that Act (e.g. s 63J(2)). Superannuation legislation is engaged before incapacity terminations (s 45(2) referring to the Police Superannuation Act 1990 and Southern State Superannuation Act 1994).

Review jurisdiction was transferred from the former Police Review Tribunal and District Court to SAET by the Statutes Amendment (South Australian Employment Tribunal) Act 2016; ss 48 and 52 now route applications under the South Australian Employment Tribunal Act 2014. Drug and alcohol testing procedures are prescribed by regulation but reference apparatus approved under the Road Traffic Act 1961 (s 41A).

Protective security functions were absorbed from the Protective Security Act 2007; transitional provisions in the 2021 Budget Measures Act deem former protective security officers to be police security officers under this Act (Schedule 2 cll 56-64) and continue existing determinations and orders. Emergency appointments of special constables require a declaration under the Emergency Management Act 2004 (s 59(2)).

Criminal intelligence provisions interact with other Acts that classify information as criminal intelligence (s 74A(10)). Terrorism intelligence provisions (s 74B) engage the Commonwealth Criminal Code definitions of terrorist act and terrorist offence and permit closed-court procedures. The liability shield in s 65 operates alongside general Crown immunity principles and requires plaintiffs to sue the Crown first in most cases.

The Subordinate Legislation Act 1978 does not apply to Commissioner orders (s 11(3)), but regulations under this Act can modify the operation of this or any other Act in relation to police security officers (s 63D). Schedule 2 applies the Acts Interpretation Act 1915 to the 1952 repeal. Interaction with anti-discrimination, work health and safety and public sector management legislation is implicit through the merit and fairness obligations in s 10(2).

The most significant recent overhaul occurred via the Statutes Amendment and Repeal (Budget Measures) Act 2021 (commencing 10 October 2022). Part 9A was inserted to consolidate protective security functions previously housed in the Protective Security Act 2007. This brought police security officers fully within the Police Act framework, aligned their governance, oath, identification, suspension, resignation and liability provisions with those of sworn members, and granted them specific statutory powers to search, detain and direct in protected environments (ss 63P-63T). The change was driven by administrative efficiency and the desire to unify policing and protective security under one Commissioner.

The Police (Drug Testing) Amendment Act 2017 (commencing 1 April 2019) expanded Part 6 to include drug screening tests using oral fluid, broadened the definition of critical incidents, and refined testing triggers. This responded to community and internal concerns about substance use impairing operational safety, particularly after serious incidents.

The Statutes Amendment (Terror Suspect Detention) Act 2017 inserted s 74B, creating a framework for terrorism intelligence classification, closed-court procedures and inter-jurisdictional notification agreements. It was part of a national response to terrorism threats and aligns with Commonwealth Criminal Code concepts.

Earlier, the Police Complaints and Discipline Act 2016 substituted the Code definition, removed the former Police Disciplinary Tribunal and minor misconduct concepts, and integrated disciplinary processes. The Statutes Amendment (South Australian Employment Tribunal) Act 2016 transferred review functions to SAET, reducing the Police Review Tribunal’s role to promotion matters only (Schedule 1 cl 1B).

The 2013 Statutes Amendment (Police) Act refined probation, selection processes, special constable appointments and liability provisions to improve administrative fairness and align with contemporary human resources practice. These amendments collectively reflect a legislative trend toward modernisation, risk management (drugs, terrorism, critical incidents), unification of security functions and enhanced external oversight while preserving Commissioner operational independence.

Although the provided text does not contain judicial decisions, several provisions have generated litigation and controversy. The promotion review jurisdiction under Part 8 Division 3 has been a frequent source of Tribunal proceedings. The strict evidentiary limits in s 56(2)—barring evidence or submissions on qualifications or merits except by parties and restricting documents to those before the original panel—have been criticised as overly restrictive, yet the Tribunal must apply them. Determinations that qualifications set by the Commissioner are binding on the Tribunal (s 58) have curtailed merits review, leading to arguments that the process is more procedural than substantive.

Termination and transfer reviews before SAET have raised questions about the interaction between s 46 (unsatisfactory performance) and superannuation incapacity pathways. The requirement for a three-to-six-month improvement period and independent panel confirmation (s 46(5)) has been challenged on procedural fairness grounds, although the Act’s equity and good conscience directive in Schedule 1 cl 3(5) gives SAET flexibility.

The liability protection in s 65 has been tested in civil claims. The statutory presumption that the Crown is the proper defendant, the onus on plaintiffs to prove dishonesty, and the indemnity obligation where the Crown does not defend but the officer is found honest, have generated interlocutory disputes. Courts have emphasised that the immunity extends to purported exercises of power, mirroring common-law principles but with a statutory burden shift.

Drug and alcohol testing provisions have raised privacy and self-incrimination concerns. The limitation on use of results to disciplinary proceedings only (s 41E(2)) and the destruction of samples (contemplated in regulations under s 41D) were designed to address these, but challenges have occurred where testing follows critical incidents involving death or serious injury.

The police security officer search powers (s 63Q) contain detailed safeguards against humiliation and cultural offence, reflecting controversies over previous protective security practices. The ability to use scanning devices without physical contact, the prohibition on removing inner clothing or introducing anything into orifices, and the same-sex and two-person requirements for physical searches respond to earlier complaints under human rights and anti-discrimination legislation.

Controversy has also surrounded the criminal intelligence guidelines and annual review by a retired judicial officer (s 74A). The confidentiality obligations and the exclusion of such intelligence from ordinary proceedings have been criticised by civil liberties groups as reducing transparency. Similarly, the closed-court provisions for terrorism intelligence under s 74B have raised natural justice issues, although the Act mandates steps to maintain confidentiality.

Overall, litigation has tended to focus on procedural compliance rather than the validity of the statutory framework itself. The transitional provisions validating past reduction-in-rank orders under the repealed s 40 (Police Complaints and Discipline Act 2016 Schedule 1 cl 53) illustrate legislative attempts to pre-empt challenges to historical disciplinary actions.

Most practitioners assume that police security officers possess the full suite of police powers; in fact their powers are limited to those expressly conferred by Part 9A, regulations or other Acts, and the Commissioner may wholly exclude powers by limitation under s 63O. The statutory definition in s 63L(1)(a) that a reference to a police security officer includes a police officer does not work reciprocally—sworn members exercising protective security functions are not automatically subject to the same search protocols unless acting in that capacity.

The probation carry-over rule in s 27(8) is often overlooked. If a probationary member is appointed to another position of the same rank during probation, the unexpired probation period transfers, potentially exposing the member to termination without the full two-year clock restarting.

Section 41E(2) renders drug and alcohol test results and related admissions inadmissible in any proceedings other than disciplinary ones under this Act. This creates a trap in parallel criminal or coronial proceedings arising from a critical incident: investigators must maintain a strict information barrier.

The “honest act or omission” immunity in s 65(1) places the burden of proving dishonesty on the plaintiff once the officer claims the immunity (s 65(4)). However, if the Crown disputes its own liability in its defence, the plaintiff may then sue the officer personally—an unusual pleading dynamic that has caught plaintiff lawyers unaware.

Promotion review applicants frequently fail to appreciate the mandatory internal grievance process under s 55(3) and the regulation-prescribed time limits. Late applications can only be saved by Tribunal dispensation “in an appropriate case”, a discretion exercised sparingly. Further, s 56(1)(b) requires the applicant to prove they “should have been selected based on a proper assessment of the respective merits”, yet s 56(2) prohibits evidence or submissions on merits except by parties and limits documents to those before the original panel—an almost insurmountable evidentiary hurdle in practice.

Commissioner orders under s 11 are not subordinate legislation, yet they can create binding obligations whose breach constitutes a Code offence. Because they need not be published beyond internal dissemination, members can find themselves disciplined for breaching an order they never saw.

Finally, the terrorism notification certificate under s 74B(9) is prima facie proof of the fact certified. In suppression or bail applications, counsel must be alert that the certificate itself may be tendered in closed court, with the underlying intelligence protected from disclosure even to the court in the presence of the parties.

Compliance begins with the Commissioner issuing comprehensive general and special orders under s 11 that are kept current, accessible and consistent with the Act and the Code. All selection, appointment and promotion processes must be documented to demonstrate merit assessment as defined in s 3 (good conduct, abilities, aptitude, skills, qualifications, knowledge, experience, potential and personal qualities). Records must show that selection panels had access only to material that will later be admissible before the Police Review Tribunal.

For drug and alcohol testing, authorised testers must follow regulations made under s 41D. Chain-of-custody protocols, accredited laboratories and destruction regimes for biological samples are mandatory. Managers must ensure that testing after critical incidents occurs promptly and that members are not returned to duty until results are known where safety so requires. Test results must be stored separately from personnel files and used only for permitted purposes.

Termination or transfer for unsatisfactory performance requires meticulous documentation: written advice of deficiencies, specific performance standards, a measurable improvement plan, at least three months for remediation, and a properly constituted panel under the regulations confirming procedural fairness and reasonableness (s 46(5)). Failure at any step risks successful SAET review.

Police security officers must receive identity cards complying with s 63I and be trained in the graduated use of powers under ss 63P-63T. Every direction given must be “reasonable” for the statutory purpose; officers should articulate the security objective contemporaneously. Physical searches require same-sex officers, two additional persons present (where practicable), and avoidance of inner clothing removal or orifices. Scanning device searches are the default where no specific suspicion exists. All detentions must be handed to sworn police “as soon as reasonably practicable”.

Annual reports under s 75 must include all Ministerially or regulatorily required data. Criminal intelligence guidelines must be maintained and records kept to enable the retired judicial officer’s annual review (s 74A). Terrorism notification guidelines must be provided to the Crime and Public Integrity Policy Committee.

Appointment documentation must record the taking of the oath or affirmation; without it the appointment is void (ss 25, 60, 63G). Equipment issue and return registers are essential to enforce s 68. Members seconded or on extended leave should have their powers formally suspended or preserved by written instrument under s 67.

Organisations that engage SA Police or police security officers should maintain clear memoranda of understanding that delineate respective responsibilities, especially around protected places that straddle public and private land (s 63B(4) requires owner consent for non-public areas). Legal practitioners advising members should stress that the statutory immunity is not absolute and that dishonest acts remain personally actionable.

Regular audits of probation files, testing registers, search use logs and review application outcomes will identify systemic non-compliance before it crystallises into Tribunal or SAET findings. Training on cultural sensitivity is required to meet the search safeguards in s 63Q(3)(d) and (5)(d). In short, compliance is achieved through detailed, documented, auditable processes that track every statutory precondition, limitation and safeguard the Act imposes on the exercise of policing and protective security authority.