Section 34 of the Police Act 1998 is the counterpart to the automatic dismissal in section 33(2). It is a genuinely restorative provision.
Section 34(1) — the four triggers
(a) a person has been dismissed from the Force or reduced to a lower rank as a result of having been convicted of a criminal offence; and
(b) subsequently —
(i) the conviction is quashed; or
(ii) the person receives a pardon; or
(iii) the conviction is otherwise nullified; or
(iv) the person is released from prison as a result of an inquiry into the conviction.
Quashed covers the ordinary appellate outcome — the Supreme Court setting aside a conviction on appeal.
Pardon covers the exercise of mercy. Section 151 of the Constitution provides for the grant of pardon by the Head of State on the advice of the Advisory Committee on the Power of Mercy.
Otherwise nullified is a catch-all covering any other means by which the conviction ceases to stand.
Released from prison as a result of an inquiry is the broadest limb. It does not require the conviction to have been formally set aside — release following an inquiry into the conviction is enough.
Note that section 34 also covers a person reduced in rank, not only one dismissed. It applies to the consequences of conviction under section 26(1)(d) as well as to dismissal under section 33(2).
Section 34(2) — what may be restored
A person to whom this section applies may be re-appointed to the Force or re-instated in the Force by the Commissioner —
(a) in the rank equivalent to the rank held immediately before dismissal or reduction in rank; or
(b) where the person was reduced in salary alone, at the rate of salary to which he was entitled immediately before the reduction.
The word is “may”. Section 34 does not confer a right to re-appointment; it confers a power on the Commissioner, and removes the obstacles that would otherwise stand in the way.
The most important obstacle removed is section 33(1), which bars the appointment or reappointment of a person convicted of an offence involving dishonesty or for which imprisonment was imposed. Section 33(1) is expressly “subject to section 34”.
A person refused re-appointment may seek judicial review of that decision in the National Court, but there is no appeal on the merits.
Sections 34(3) and (4) — procedural relief
(3) A person may be re-appointed without being required to undergo any medical examination.
(4) A person may be re-appointed without probation where the Commissioner thinks it desirable to do so.
Both remove requirements that would ordinarily apply to appointment under Part V. A person wrongly convicted should not have to re-enter the Force as a new recruit, and subsections (3) and (4) ensure they need not.
Sections 34(5) to (8) — the fiction of continuous service
(5) A person re-appointed under this section is deemed to have continued in the Force as if that person had not been dismissed, but had been on leave of absence without pay during the period from the day the dismissal became effective to and including the day of re-appointment.
(6) That period forms part of the member’s period of service for all purposes.
| Restored | Not restored |
|---|---|
| Continuity of service for all purposes — s 34(6) | Pay for the intervening period — the deeming is of leave without pay |
| Rank, on re-instatement — s 34(2)(a) | — |
| Seniority in that rank, as if never reduced — s 34(7) | — |
| Salary, as if never reduced — ss 34(7), (8) | — |
“For all purposes” is a wide expression. The intervening period counts towards everything in the Act that depends on length of service — seniority under section 37, eligibility for furlough under section 85, retirement entitlements, and pension rights under Part V Division 8.
Sections 34(7) and (8) then deal with rank and salary directly: a person re-instated in rank has the same seniority and the same salary as if he had not been reduced, and a person re-instated in salary is entitled to the same salary as if he had not been reduced.
The one thing not restored is the pay for the period out of the Force, because the deeming is of leave without pay. That is a notable gap. Compare section 32(4), which allows the Commissioner to direct repayment of pay lost during a suspension where the member is acquitted — a discretion that has no counterpart in section 34.
Whether other avenues exist for compensation — for example under section 58 of the Constitution, which provides for compensation for infringement of guaranteed rights — is a separate question turning on the circumstances of the conviction.
For a former member whose conviction is set aside
- Apply to the Commissioner in writing, identifying which limb of section 34(1)(b) applies and enclosing the court order, pardon or inquiry outcome.
- Ask for re-instatement in the previous rank under section 34(2)(a), and for the section 34(3) and (4) waivers.
- Confirm that the period counts as service under section 34(6) — it affects seniority, furlough and pension.
- Raise section 32(4) separately if pay was lost during a suspension before conviction; that discretion is distinct from section 34.
Sources
- Police Act 1998 — ss 26, 32–34, 37, 85
- Constitution — ss 37, 57, 58, 151
Before relying on anything here, read the current text of the Police Act 1998 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.