Section 55 of the Police Act 1998 is separate from the discipline system in Part IV. It addresses performance and ability, not misconduct.
Section 55(1)
Where the Commissioner, after inquiry, is satisfied that a member of the Regular Constabulary Branch, other than a Deputy Commissioner, has failed to meet reasonable standards of performance or ability, the Commissioner may —
- dismiss that member; or
- reduce that member in rank to a rank having a lower classification, and to a salary within that classification.
| s 55 — performance | Part IV — discipline | |
|---|---|---|
| Basis | Failure to meet reasonable standards of performance or ability | Commission of a disciplinary offence under s 20 |
| Applies to | Regular Constabulary only, excluding the Deputy Commissioner | All categories in s 18, including trainees |
| Process | Inquiry by the Commissioner | Charge, investigation and report by a disciplinary officer |
| Notice | Written notice of the alleged failures; 14 days to respond | Copy of the charge; 14 days to reply |
| Outcomes | Dismissal or reduction in rank only | The full s 26 range |
| Severance | One to three months’ salary — s 55(5) | None on dismissal |
| Suspension | Pending review, on full pay — s 55(10) | Pay continues unless ordered otherwise — s 29 |
Sections 55(2) to (4) — the procedural protections
(2) The member shall be informed in writing of the nature of the failure or failures alleged, and may within 14 days, or such further time as the Commissioner allows, respond in writing.
(3) The Commissioner shall not proceed to a decision until after the expiry of the time referred to in subsection (2).
(4) Before reaching a decision, the Commissioner shall take into account any response made.
Subsection (3) is unusually explicit. A decision made before the 14 days expire is made contrary to the section, whatever its merits.
Subsection (2) requires notice of the nature of the failure or failures alleged — specific matters, not a general assertion of poor performance. Without that, a member cannot respond meaningfully, and subsection (4) requires the response to be taken into account.
Together these give effect to section 59 of the Constitution, which makes the principles of natural justice part of the underlying law.
The requirement of an inquiry in subsection (1) is a fourth protection. The Commissioner must be satisfied after inquiry, not on assertion — and the section 14 powers to summon witnesses and require documents are available for it.
Section 55(5) — severance pay
There shall be paid to a member dismissed under this section, by way of severance pay, such amount, being not less than one month’s salary and not more than three months’ salary, as the Commissioner may determine.
The words are “there shall be paid”, with a floor of one month and a ceiling of three. A dismissal under section 55 without severance pay is not in accordance with the section.
This is a significant distinction from disciplinary dismissal under section 26(1)(g), and from the mandatory dismissal on conviction under section 33(2) — neither of which carries severance.
The reason is that section 55 is not punitive. A member who cannot meet the standards of the role has not committed an offence.
Note also section 55(11): section 101 does not apply to a person dismissed under this section — a modification of the pension provisions in Part V Division 8.
Sections 55(6) to (10) — review
(6) A member dismissed or demoted may, within seven days of notification, or such further time as the Commissioner allows, apply in writing to the Commissioner for a review.
(7) The application may be delivered in person to a disciplinary officer, sent by ordinary post to the Commissioner, or delivered in an approved manner — and is deemed made on the day delivered or posted.
(8) On review the Commissioner may confirm or annul the dismissal or demotion, and the decision is final.
Section 55(9) — pending the hearing of a review against dismissal, the dismissal shall be held in abeyance, though the Commissioner may suspend the member from duty.
Section 55(10) — a suspension under this section shall be on full pay.
So a member who applies for review is not out of employment or out of pay while it is decided. Contrast the position on a criminal charge suspension under section 32(2), where the default is no pay.
Note also what section 55(8) does not say. It allows the Commissioner to confirm or annul — there is no power to increase, unlike section 26(9) and section 22(8). A member demoted under section 55 who seeks review cannot end up dismissed on that review.
Beyond the review, the decision is final, and the remaining remedy is judicial review in the National Court — see appeals and finality.
For a member facing a section 55 inquiry
- Ask for particulars. Section 55(2) entitles you to written notice of the nature of the failures alleged.
- Respond in writing within 14 days, or seek an extension before the period expires. Section 55(4) requires the response to be taken into account.
- Address ability separately from performance. The section covers both, and they call for different answers — training and support on one hand, output on the other.
- Apply for review within seven days of any adverse decision. The dismissal is held in abeyance and any suspension is on full pay.
- Confirm severance pay if dismissed — between one and three months’ salary is mandatory.
Sources
- Police Act 1998 — ss 14, 22, 26, 29, 32, 33, 49, 55, 101
- Constitution — ss 37, 59, 155(4)
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.