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Police Integrity Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill will re-establish the Office of Police Integrity under a new principal
Act, set out the functions of the Office and of the Director, Police Integrity,
implement recommendations from the Special Investigation Monitor's Report
and make amendments to the Police Regulation Act 1958 (the "PRA") and
other Acts.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill. The purposes of the Bill are
to--
· re-establish the Office of Police Integrity under a
stand-alone Act and to set out the functions of the
Office and of the Director, Police Integrity;
· amend the PRA to consolidate provisions relating to the
Director, Police Integrity and Office of Police Integrity
into the stand-alone Act; and
· make consequential amendments to other Acts.
Clause 2 is the commencement provision. It provides that Division 1 of
Part 8 of the Bill (except clause 142) comes into operation on
the day after the day on which this Bill receives Royal Assent.
That Division makes amendments to the PRA, intended to come
into operation as soon as practicable after the passage of the Bill.
Clause 142 makes amendments to the PRA to reflect the
commencement of the remainder of the Bill. Clause 142 will
commence with the remainder of the Bill on a day or days to be
proclaimed. All provisions of the Bill must commence by
31 December 2009.
561267 1 BILL LA INTRODUCTION 13/3/2008
The commencement of the remainder of the Bill has been
delayed to allow the Commonwealth to amend its
Telecommunications (Interception and Access) Act 1979 to
replace references to the PRA with references to this Bill.
Clause 3 defines various terms used in the Bill.
Clause 4 provides that the Bill will bind the Crown in all its capacities.
PART 2--OFFICE OF POLICE INTEGRITY
Division 1--Office of Police Integrity
Clause 5 provides that there continues to be an Office of Police Integrity
("OPI"). The Office is the same body as that established by
section 102A of the PRA.
Clause 6 sets out the functions and powers of the OPI. This section is
modelled on section 102B of the PRA, although that section did
not enumerate the functions of the OPI.
Division 2--Director, Police Integrity
Clause 7 provides that the OPI is to have a Director, called the Director,
Police Integrity (the Director).
Clause 8 sets out the objects, functions and powers of the Director. It is
modelled on section 102BA of the PRA and includes in clause
8(1)(c) an additional object of the Director: "to educate Victoria
Police and the general community regarding police corruption
and serious misconduct, including the effect of police corruption
and serious misconduct".
Clause 9 provides that the Director is an independent officer of the
Parliament. Subject to the Bill and other laws of the State of
Victoria, the Director has complete discretion in performing his
or her functions. In particular, the Director is not subject to the
direction or control of the Minister in respect of his or her
performance or exercise of the Director's functions or powers.
Clause 10 provides that the Governor in Council may appoint an eligible
person as Director. A person is eligible to be appointed as
Director if the Governor in Council is satisfied that the person
meets the requirements of subclause (2). The Director must
receive the written approval of the Governor in Council before
undertaking any other employment, business, trade or profession.
The Public Administration Act 2004 does not apply to the
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Director in respect of his or her office except as provided in
section 16 of that Act.
Clause 10 is modelled on section 102AB of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 11 provides that the Director is entitled to be paid the remuneration
and allowances that are determined by the Governor in Council.
The remuneration cannot be reduced during the Director's term in
office unless the Director consents to the reduction.
Clause 11 is modelled on section 102AC of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 12 provides that the Director holds office on the terms and
conditions specified in his or her instrument of appointment.
Clause 12 is modelled on section 102AD of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 13 provides that the Director will cease to hold office in certain
circumstances. The Director may resign from his office by notice
in writing delivered to the Governor in Council. The Director
will cease to hold office if he or she becomes an insolvent under
administration, is convicted of an indictable offence (or an
offence that, if committed in Victoria, would be an indictable
offence) or nominates for election for the Parliament of the
Commonwealth or a State or Territory of the Commonwealth.
It provides that the Director may be removed from office under
clause 14.
Clause 13 is modelled on section 102AE of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 14 permits the Governor in Council to suspend the Director on the
grounds of misconduct, neglect of duty, inability to perform the
duties of office, or any other ground on which the Governor in
Council is satisfied that the Director is unfit to hold office.
The Minister must cause a full statement of the grounds of
suspension to be presented to each House of Parliament.
The Governor in Council must remove the Director from office
if, within 20 sitting days, each House of Parliament declares that
the Director ought to be removed from office. If such a
declaration is not made within the time specified, the Governor
in Council must remove the suspension and restore the Director
to office.
Clause 14 is modelled on section 102AF of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
3
Clause 15 provides that an Acting Director may be appointed during a
vacancy in the office of Director, during periods when the
Director is absent from duty, or where the Director is unable to
perform the duties of the office. The period of the acting
appointment must not exceed 6 months, and the Acting Director
is eligible for reappointment. The Governor in Council may
remove the Acting Director from office at any time.
It provides that the Acting Director has the same powers and
duties as the Director, and is entitled to be paid the remuneration
and allowances that the Director would have been entitled to for
performing those duties.
Clause 15 is modelled on section 102AG of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 16 requires the Director or Acting Director to take an oath or make
an affirmation before performing any of the duties of the office of
Director.
Clause 16 is modelled on section 102D(1) and (4)(a) of the PRA.
Division 3--Staffing and other matters
Clause 17 provides that the Director may employ and second staff, and
engage persons or bodies to provide services. The Director may
employ persons under Part 3 of the Public Administration Act
2004, engage persons or bodies to provide services, take
members of Victoria Police on secondment, or take persons on
secondment from other bodies.
The Public Administration Act 2004 does not apply to a
member of Victoria Police who is seconded to the OPI or a
person or body engaged to provide services under this Bill.
The Director may terminate a secondment at will.
Clause 17 is modelled on section 102E of the PRA.
Clause 18 requires a member of staff of the OPI to take an oath or make an
affirmation before performing any of the duties of a member of
staff of the OPI.
The Director may require a person or member of a body engaged
to provide services under clause 17(1)(b), or an officer or
employee of such a person or body, to take an oath or make an
affirmation administered by the Director.
Clause 18 is modelled on sections 102D(2), (3) and (4)(b) of the
PRA.
4
Clause 19 provides that the Director may request the Chief Commissioner
of Victoria Police to second members of Victoria Police to the
OPI to assist the Director in the performance of the functions of
the Office or the Director.
The Chief Commissioner must make available for secondment as
many members of Victoria Police as the Chief Commissioner
thinks necessary.
The Director may decline to take on a member seconded by the
Chief Commissioner and may require the Chief Commissioner to
make another member available for secondment.
The Director may, if he or she reasonably suspects that a
seconded member of Victoria Police has committed a breach of
discipline while seconded, refer the matter to the Chief
Commissioner to determine whether disciplinary action should be
taken under Part IV of the PRA.
Clause 19 is modelled on section 102EA of the PRA.
Clause 20 sets out the effect of a secondment of a member Victoria Police
to the OPI.
During a secondment, a seconded member of Victoria Police
is subject to the sole direction and control of the Director.
The Director will pay the member's remuneration during the
period of secondment.
The seconded member retains all his or her powers and duties as
a member of Victoria Police and his or her immunity in respect
of the exercise of those powers or performance of those duties.
Neither the Chief Commissioner nor any other member of
Victoria Police has the authority to give instructions to the
seconded member. The member does not commit a breach of
discipline for failing to comply with a standing order or
instruction of the Chief Commissioner.
The Chief Commissioner cannot require a member of Victoria
Police who is or has been seconded to the OPI to disclose any
information that relates to the performance of the member's
duties while on secondment, except where the Director consents
to the use of the information for the purposes of a disciplinary
investigation or inquiry under Part IV of the PRA.
A member's rank is not affected by a secondment to the OPI.
Any period of secondment is taken to be a period of service with
Victoria Police.
Clause 20 is modelled on section 102EB of the PRA.
5
Clause 21 permits the Director to delegate certain powers of the Director
under certain circumstances by instrument. The Director may
only delegate a coercive power (as defined in clause 3) or a
power under clause 24 (allowing disclosure of information to law
enforcement agencies and corresponding authorities) to a senior
relevant person as defined. A senior relevant person is a person
who has the qualifications that would make the eligible for
appointment as the Director under clause 10. The Director may
delegate any other power other than a coercive power or power
under clause 24 to a relevant person as defined.
Division 4--Confidentiality and reporting
Clause 22 imposes confidentiality requirements on members of OPI
personnel. It provides that it is an offence for a member of OPI
personnel to disclose information obtained or received in the
course or as a result of the performance of the functions of the
Director, except as permitted by the clause. The maximum
penalty for this offence is 120 penalty units or imprisonment for
12 months or both.
Proceedings for the offence may only be instituted by the
Director, or by or with the consent of the Director of Public
Prosecutions.
Clause 22 is modelled on section 102G of the PRA.
Clause 23 imposes confidentiality requirements on persons other than
members of OPI personnel. It provides that it is an offence for a
person to disclose a restricted matter except as permitted by the
section. It defines restricted matter for the purposes of the
clause. The maximum penalty for this offence is 120 penalty
units or imprisonment for 12 months or both.
Clause 24 permits the Director to disclose information to the Chief
Commissioner or another member of Victoria Police where that
information--
· relates to a matter relevant to the performance of
functions or duties by the Chief Commissioner or
another member; or
· arises out of a joint undertaking between the OPI and
Victoria Police.
It also permits the disclosure of information to corresponding
authorities of other jurisdictions, where that information relates to
a matter under an Act of that jurisdiction or arising out of a joint
undertaking between Victoria and that other jurisdiction.
Clauses 24(2) and (3) are modelled on section 102H of the PRA.
6
Clause 25 provides that the Director may disclose information to the
Privacy Commissioner, where that information is relevant to the
performance of functions or duties by the Privacy Commissioner.
Clause 25 is modelled on section 102I of the PRA.
Clause 26 ensures that in appropriate circumstances the Director may share
relevant information with the Ombudsman similar to other
information sharing provisions with the Privacy Commissioner
and corresponding authorities.
Clause 26 is modelled on section 102IA of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 27 provides that the Director may disclose information to the
Auditor-General, where that information is relevant to the
performance of functions or duties by the Auditor-General.
Clause 28 provides that the Director must report to Parliament on the
performance of his or her functions during each financial year.
It further provides that the Director may report to Parliament at
any time on any matter arising in connection with the
performance of his or her functions.
Clauses 28(1) and (2) are modelled on section 102J of the PRA.
Clause 29 outlines the process for the transmission of reports to Parliament
under clause 28.
Clause 29 is modelled on section 102K of the PRA.
Division 5--Testing of OPI personnel for alcohol or drugs of
dependence
Clause 30 defines the terms critical incident, drug of dependence,
registered medical practitioner and serious injury for the
purposes of Division 5 of Part 2.
The definitions are closely modelled on the definitions of these
terms for the drug and alcohol testing scheme for members of
Victoria Police in Division 4A of Part IV of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 31 provides a power for the Director to direct a member of OPI
personnel to provide a sample of breath, urine or blood for testing
for the presence of drugs of dependence or alcohol in certain
circumstances.
7
The Director can only require such tests if satisfied that the result
is relevant to the member's performance of his or her duties or to
any disciplinary action that may be taken or is being taken,
against the member.
Clause 31(3) requires that, in the case of a critical incident
involving the use of a motor vehicle by a member (including as a
passenger), the direction must be given within 3 hours after the
incident occurred, and in the case of any other critical incident,
within a reasonable time after the critical incident occurred.
Clause 31(4) provides a protection against liability for a
registered medical practitioner in respect of anything done by
him or her in the course of taking a sample which he or she
believes on reasonable grounds was required or allowed to be
taken under this Division.
Clause 31(5) provides that nothing in Division 5 affects the
operation of Part 5 of the Road Safety Act 1986. This means
that a member of OPI personnel involved in a critical incident
will still be subject to all relevant road safety processes, charges
and requirements and that these will take precedence over the
processes of this Bill. A driver may be tested under both testing
regimes, as the road safety testing only applies to a limited range
of drugs, whereas the new regime will apply to all drugs of
dependence as defined in this Bill.
Clause 31 is modelled on section 85B of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 32 provides that the Director may consider the result of a sample
taken under Division 5 when managing the member's
performance of his or her duties or in taking any disciplinary
action against the member.
Clause 32 is modelled on section 85C of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 33 provides that a registered medical practitioner may, at the
direction of the Director, take a blood sample for testing for the
presence of alcohol or a drug of dependence from a member of
OPI personnel involved in a critical incident who is unconscious
or otherwise unable to comply with a direction to provide a
sample. This will allow a sample to be taken in a relevant time
period for analysis purposes even if the member cannot consent
at that time.
However, the member may refuse to consent to the use of any
evidence derived from the sample when they become conscious.
Clause 33(2) provides that, when the member regains
8
consciousness or becomes able to comply with a direction, the
member must be advised that--
· a sample has been taken; and
· he or she may refuse to consent to the use of any
evidence derived from such sample; and
· if the member is a member of Victoria Police, refusal to
consent to the use of the evidence constitutes a breach
of discipline; and
· if the member is not a member of Victoria Police,
refusal may constitute grounds for disciplinary action
against the member.
The clause provides that evidence obtained from a sample under
clause 33 must be destroyed if the member refuses to consent
to the use of the sample. The Director must destroy any sample
taken under clause 33 where the member refuses to consent to the
use of the sample.
The clause further provides that the operation of the clause does
not affect the operation of Part 5 of the Road Safety Act 1986
with respect to a sample taken under that Part from a person who
is unconscious or otherwise unable to provide a sample. That is,
a sample or evidence taken under road safety legislation whilst a
person is unconscious will not have to be destroyed.
Clause 33 is modelled on section 85D of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 34 provides that evidence from a sample obtained under clauses 31
or 33 is generally inadmissible in any proceedings, including
coronial inquests and inquiries, except for--
· proceedings under the Accident Compensation Act
1985 to rebut or support a claim that an injury was
contributed to by the presence of alcohol or drugs in a
member's system; or
· prosecutions under the Occupational Health and
Safety Act 2004 to rebut or support a claim that alcohol
or drugs in a member's system contributed to the
offence charged; or
· proceedings arising out of a critical incident.
9
Evidence obtained under clause 33 cannot be used for these
proceedings if the member from whom the sample was taken
refuses to consent to its use.
Clause 34 is modelled on section 85E of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 35 provides that the Director must ensure that the result of any test
must be handled in accordance with the regulations in respect of
the confidentiality of test results.
Clause 35 is modelled on section 85F of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 36 provides that it is an offence for any person to disclose the
identity of a person directed to provide a sample, or a person
from whom a sample was taken, except as permitted by the Bill.
This prohibition applies to persons such as contractors or others,
but does not apply to the person to whom the direction to provide
a sample was given. This clause does not apply to the disclosure
of information in a proceeding referred to in clause 34(2).
Clause 36 is included to comply with obligations relating to
the Charter of Human Rights and Responsibilities rights of
information privacy, and treatment of health records.
The maximum penalty for the offence (60 penalty units) is
consistent with a similar offence applying to the disclosure of
information relating to health records.
Clause 36 is modelled on section 85G of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
Clause 37 allows for the making of regulations that specify--
· who may be authorised to take tests and analyse
samples;
· how the type of test is to be determined;
· the procedures for the taking of tests and handling of
samples;
· the types of devices that may be used and the
accreditation of persons operating those devices;
· offences relating to interfering with samples;
· confidentiality requirements for test results.
Clause 37 is modelled on section 85H of the PRA (as inserted
into the PRA by the Police Regulation Amendment Act 2007).
10
PART 3--POLICE COMPLAINTS AND INVESTIGATIONS
Division 1--Complaints
Clause 38 provides that Division 1 of Part 3 applies to a complaint made
about a member of Victoria Police to the Director under section
86L of the PRA.
Section 86L is located in Part IVA of the PRA. Part IVA deals
with complaints about, and investigations of, members of
Victoria Police. Section 86L outlines the process for the making
of complaints about members of Victoria Police, the types of
complaints that can be made and to whom they may be made.
Clause 39 provides that the Whistleblowers Protection Act 2001 and this
Bill apply to a complaint made about the Chief Commissioner or
any other member of Victoria Police under section 86L(2A) of
the PRA, as though the complaint were a disclosure made under
Part 2 of the Whistleblowers Protection Act 2001.
Clause 39 is modelled on section 86LA of the PRA insofar as it
relates to complaints made to the Director.
Clause 40 outlines the circumstances in which a complaint made to the
Director need not be investigated.
It provides that a complaint warranting investigation must be
referred to the Chief Commissioner, who must investigate the
complaint under Division 2 of Part IVA of the PRA.
The Director must investigate complaints about the conduct of
the Chief Commissioner or a Deputy or Assistant Commissioner.
The Director may investigate a complaint if the Director
considers this to be in the public interest, or if the conduct
complained of was in accordance with established practices or
procedures of Victoria Police that the Director considers should
be reviewed. If the complaint was not first made to a member of
Victoria Police, then the Director may give the Chief
Commissioner details of the complaint.
The clause further provides that the Director may attempt to
resolve a complaint by conciliation. The Director must notify the
Chief Commissioner before commencing the conciliation and
must inform the Chief Commissioner of its results.
Clause 40 is modelled on section 86N of the PRA.
11
Clause 41 provides that the Director must advise the complainant of the
outcome of the investigation. The Director must also advise the
complainant in writing of any further investigation under
clause 48 and of any action that has been taken or is planned.
However, clause 41 does not apply if the Director is of the view
that it would be contrary to the public interest to advise the
complainant as described above.
Clause 41 is modelled on section 86T of the PRA.
Clause 42 provides that the Director, the Chief Commissioner or any
member of Victoria Police who is the subject of a complaint
may apply to the Supreme Court for a determination of whether
or not the Director has jurisdiction to investigate a complaint.
The Supreme Court may then make any order it consider proper.
Clause 42 re-enacts section 86U of the PRA.
Division 2--Investigations
Clause 43 provides that Division 2 of Part 3 applies to an investigation by
the Director of a complaint referred to in clause 38, or initiated
by the Director under clause 44.
Clause 44 provides that the Director may conduct an investigation on his or
her own motion in respect of a matter that is relevant to achieving
the Director's objects. This includes--
· an investigation into the conduct of a member of
Victoria Police; or
· an investigation into police corruption or serious
misconduct generally; or
· an investigation into any of the policies, practices or
procedures of Victoria Police or of a member of
Victoria Police.
It outlines the circumstances in which the Director may conduct
such an investigation. The Director may conduct an investigation
whether or not a particular member of the Victoria Police has
been implicated, whether or not serious or other misconduct is
suspected, or whether or not a person under investigation remains
a member of Victoria Police.
The clause allows the Director to give written notice of an own
motion investigation to the Minister and the Chief Commissioner.
Clause 44 is modelled on section 86NA of the PRA.
12
Clause 45 provides that, before making a report, the Director must give the
Chief Commissioner the opportunity to comment on the subject-
matter of the investigation if it appears that there may be grounds
for making a report adverse to Victoria Police.
Clause 45 is modelled on section 86P(2) of the PRA.
Clause 46 provides that the Director may continue with an investigation
regardless of whether proceedings have been instituted in any
court of tribunal in relation to the subject-matter of the
investigation. However, the Director must take all reasonable
steps to ensure that the conduct of the investigation does not
prejudice those proceedings.
Clause 46 is modelled on section 86P(3) and (4) of the PRA.
Clause 47 provides that the Director may direct any member of Victoria
Police to give any relevant information, produce any relevant
document or answer any relevant question for an investigation
into a possible breach of discipline.
A member of Victoria Police who does not comply with such a
direction will have committed a breach of discipline under
section 69(1)(ac) of the PRA (as inserted into the PRA by
clause 142(2)(a)).
The clause further provides that any information, document or
answer given in accordance with a direction under clause 47 is
not admissible in evidence before any court or person acting
judicially, except in proceedings for--
· perjury; or
· a breach of discipline by a member of Victoria Police;
or
· failure to comply with a direction; or
· review proceedings for the dismissal of a member of
Victoria Police under Division 1 of Part IV of the PRA.
Clause 47 re-enacts section 86Q of the PRA insofar as it relates
to the power of the Director to issue a direction to a member of
Victoria Police.
Clause 48 provides that, after receiving the report on an investigation by the
Chief Commissioner under Part IVA of the PRA, the Director
may--
· ask the Chief Commissioner to conduct a further
investigation into the complaint; or
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· conduct such an investigation himself or herself under
Part 3.
If requested, the Chief Commissioner must conduct the further
investigation in accordance with section 86O of the PRA, or
explain in writing why such an investigation is not considered
necessary.
The clause also provides that, after receiving the report on any
investigation completed by the Chief Commissioner, the Director
may--
· request in writing that the Chief Commissioner take any
action that the Director considers appropriate, in
addition to, or instead of, any action proposed to be
taken by the Chief Commissioner; or
· refer a matter to the Director of Public Prosecutions
("DPP"), if that matter is relevant to the performance of
the DPP's functions or duties. If the Director does so,
he or she must notify the Chief Commissioner of the
referral in writing. The Director must also notify the
Chief Commissioner of any advice received from the
DPP in relation to the referral.
The Chief Commissioner must not take any disciplinary action
against a member who is the subject of the referral until the Chief
Commissioner has received the Director's notification of the
advice received from the DPP.
Clause 48 is modelled on section 86R of the PRA.
Clause 49 provides that, if the Director requests the Chief Commissioner to
take any action or to conduct a further investigation under Part 3,
the Chief Commissioner must give a written response to the
Director stating whether or not the Chief Commissioner intends
to do so or the reasons for a decision by the Chief Commissioner
not to do so.
Clause 49 is modelled on section 86S of the PRA.
Clause 50 provides that after completing an investigation, the Director may
make a written report on the outcome of the investigation to any
one or more of the Chief Commissioner, the Minister or the
Premier. The report may request the taking of any action
considered necessary by the Director.
14
In any report under this section (except a report to the Chief
Commissioner), the Director must not include information that
discloses the identity of a person to whom, or respect of whom, a
direction has been given under Division 4A of Part IV of the
PRA.
Clause 50 is modelled on section 86P(5) and (6) of the PRA.
Clause 51 provides that the Freedom of Information Act 1982 does not
apply to a document that discloses information that relates to--
· a complaint investigated by the Director under Part 3; or
· an investigation under Part 3 a report on that
investigation (including a progress report)--
which is in the possession of--
· the SIM or an employee in the office of the SIM; or
· the Director or Acting Director; or
· a member of staff of the OPI; or
· a person or body engaged by the Director, or an officer
or employee of such a person.
Clause 51 is modelled on section 86TA of the PRA.
PART 4--GENERAL INVESTIGATORY POWERS
Division 1--Preliminary
Clause 52 provides that Part 4 applies for the purposes of an investigation
by the Director under Part 3.
Division 2--Witness summonses
Clause 53 provides that the Director may issue a person with a witness
summons--
· to attend an examination before the Director to give
evidence; or
· to attend at a specified time and place to produce
specified documents of things to the Director; or
· to attend at an examination before the Director to give
evidence and produce specified documents or things.
15
The Director may issue a summons to a person where satisfied
that it is reasonable to do so. In determining reasonableness, the
Director must consider the evidentiary or intelligence value of the
information sought and the age and any mental impairment of the
person.
The Director must not issue a summons to a person known to be
under the age of 16.
Section 86PA of the PRA currently provides that sections 17
and 20A (and other sections) of the Evidence Act 1958 apply in
relation to investigations conducted by the Director (as if the
Director were the sole commissioner of a Royal Commission).
Clause 53 implements part of Recommendation 5 of the Special
Investigation Monitor's Report (recommendation to include a
new provision that replaces the powers provided in sections 17
and 20A of the Evidence Act 1958).
Clause 54 provides the content and form of a witness summons issued by
the Director under clause 53.
A summons issued by the Director must specify the place, time
and date the person summonsed is required to attend the Director
to give evidence or produce documents.
The summons should state the general nature of the matters about
which the summoned person is to be questioned (unless the
Director considers that such a statement would prejudice the
conduct of the investigation to which the summons relates).
The summons must include a statement that, if the summonsed
person is under 16 at the date of issue of the summons, the person
does not need to comply with the summons.
Clause 54 implements part of Recommendation 5 of the Special
Investigation Monitor's Report (recommendation regarding the
content and form of a witness summons).
Clause 55 provides that a witness summons issued to a person under the age
of 16 years at the date of issue of the summons has no effect. If a
person claims to be under 16 at the date the summons is issued,
the person must give notice in writing and proof of age to the
Director.
Clause 55 is modelled on section 86PC(1) and(2) of the PRA.
Clause 56 sets out the required procedure and method for the service of a
witness summons. A summons must be served a reasonable time
before the date the person summonsed is required to attend the
Director. The Director may, however, issue a summons for
16
immediate attendance if the Director reasonably believes
delaying the attendance is likely to result in--
· evidence being lost or destroyed; or
· an offence being commissioned; or
· an offender's escape; or
· serious prejudice to the conduct of the investigation to
which the summons relates.
Clause 56 implements part of Recommendation 5 of the
Special Investigation Monitor's Report.
Clause 57 provides that, if the Director issues a summons to a person who
is in a prison or police gaol, the Director may give a written
direction that the person be delivered into the custody of a
member of Victoria Police for the purpose of bringing the person
before the Director.
It further provides that the person is to be detained in police
custody until he or she is excused by the Director from
attendance. When excused, the member of Victoria Police must
return the person to the place of detention from which they were
taken.
Clause 57 is modelled on section 86PE of the PRA.
Clause 58 provides that the Director may issue a confidentiality notice.
It outlines the circumstances in which a confidentiality notice
must, or may, be issued.
A confidentiality notice is a written notice to a summoned person
stating that the summons is a confidential document. It is an
offence to disclose to anyone the existence of the document or
the subject-matter of the investigation to which the summons
relates, except in the circumstances specified in the notice or
where the person has a reasonable excuse.
Clause 58 prescribes the circumstances in which the Director
must issue a confidentiality notice. The Director must issue a
notice if failure to issue the notice would reasonably be expected
to prejudice--
· a person's safety or reputation; or
· prejudice a person's fair trial; or
· the effectiveness of the investigation to which the
summons relates.
17
It prescribes the circumstances in which the Director may issue a
confidentiality notice. The Director may issue a notice if the
Director is satisfied that failure to issue the notice might--
· prejudice a person's safety or reputation; or
· prejudice a person's fair trial; or
· prejudice the effectiveness of the investigation to which
the summons relates; or
· might otherwise be contrary to the public interest.
If the Director is satisfied that the circumstances that led to the
issuing of the notice no longer apply, the Director must give
written notice of this fact to the person to whom the
confidentiality notice was directed.
It sets out the required procedure and method for the service of a
confidentiality notice.
Clause 58 re-enacts the substance of section 86KA(2)(a) of the
PRA and further provides that the Director must issue a
confidentiality notice with a summons in certain circumstances.
Clause 58 implements part of the changes proposed in
Recommendation 1 of the Special Investigations Monitor's
Report.
Clause 59 makes it an offence for a person to whom a confidentiality notice
is directed to fail, without reasonable excuse, to comply with the
notice while it has effect.
It sets out the circumstances in which a person has a reasonable
excuse for failing to comply with a confidentiality notice.
For example, a person may disclose the existence of the witness
summons or subject-matter of the investigation for the purposes
of seeking legal advice in relation to the summons or making a
complaint to the Ombudsman.
Clause 59 re-enacts the substance of sections 86KA(2)(b), (3)
and (4) of the PRA.
Clause 60 sets out the circumstances in which a confidentiality notice issued
by the Director will cease to have effect.
A confidentiality notice ceases to have effect on the earliest of
the following--
· a period of 5 years since the issue of the notice; or
18
· the time at which the Director gives written notice under
clause 58(6) that the circumstances requiring the
confidentiality notice no longer apply; or
· the decision by the State not to commence criminal
proceedings in which evidence obtained in a
investigation that has concluded would be relevant.
The clause further provides that a court, on the application of the
Director, may extend the effect of the notice beyond the 5 year
period provided in the Act. The court may extend the period if it
is satisfied the extension is necessary to protect a continuing
investigation (whether related or not to the investigation in
relation to which the witness summons was issued) or any
proceedings that have been commenced but not finally
determined.
If a confidentiality notice ceases to have effect, the Director must
notify in writing each person issued with the notice.
Division 3--Examinations
Clause 61 provides that the Director may conduct an examination for the
purposes of an investigation.
It provides that the Director is not bound by the rules of evidence
in conducting an examination, and allows the Director to regulate
the conduct of the examination as he or she thinks fit (subject to
Division 3 of Part 4).
Clause 61 implements part of the recommendation in
Recommendation 7 of the Special Investigation Monitor's Report.
It also re-enacts the substance of section 86P(1)(d) of the PRA.
Clause 62 requires the Director to comply with certain preliminary
requirements before asking a question of a witness at an
examination or receiving a document or other thing from a
witness.
The preliminary requirements generally require the Director to--
· confirm the age of a witness if they may be under the
age of 18 years;
· release any witness under the age of 16 years from
compliance with the witness summons;
· inform a witness of the general scope and purpose of the
investigation to which the examination relates;
19
· inform the witness that the privilege against self-
incrimination does not apply, although there are
restrictions on the use of the evidence obtained in the
course of the examination;
· inform the witness that legal professional privilege can
be claimed (except by public authorities and public
officers). If the witness is a public officer, the Director
must inform the witness that legal professional privilege
does not apply);
· inform the witness of any confidentiality requirements
applying to the evidence or the issue of the witness
summons;
· inform the witness, where applicable, to his or her right
to legal representation at the examination;
· inform the witness, where applicable, to his or her right
to have an interpreter, parent or guardian or independent
person present at the examination;
· inform the witness of his or her right to complain to the
Special Investigations Monitor.
It provides for circumstances in which the Director will not be
required to fulfil all the preliminary requirements. For example,
the Director is not required to inform the witness of the general
scope and purpose of the investigation if this would prejudice the
effectiveness of the investigation or would otherwise be contrary
to the public interest.
Clause 62 implements part of the recommendation in
Recommendation 7 of the Special Investigation Monitor's Report.
Clause 63 provides that the Director must immediately release a witness
who the Director becomes aware is under the age of 16 years
from all compliance with the witness summons.
Clause 63 re-enacts section 86PC(4) of the PRA.
Clause 64 provides that witnesses may be represented or accompanied by
certain people in an examination.
It provides that a witness giving evidence, providing information
or producing a document or thing at an examination may be
represented by a legal practitioner.
20
It also provides that, if a witness does not have sufficient
knowledge of the English language to understand the questions
that will be asked of him or her, the Director must arrange for an
interpreter to be present prior to beginning the examination.
If the witness so wishes, the Director must direct that a parent or
guardian of a witness under the age of 18 be present for the
examination of that witness.
If the Director believes a witness has a mental impairment, the
Director must direct an independent person to be present for the
examination of that witness.
Before the witness gives any evidence, provides information or
produces a document or thing, a witness who is under 18 or a
mentally impaired may confer with an attending parent or
guardian or, in the latter case, an attending independent person.
In special circumstances, the Director may allow a person (other
than the witness) to be represented by a legal practitioner during
the examination of the witness.
The Director may refuse to allow a witness to be represented by
someone who is, or who is representing, another witness (in the
same or a different examination).
The Director may refuse to allow a witness to be represented by
someone who is, or who is representing, a person involved (or
suspected of being involved) in a matter being investigated.
The Director may refuse to allow a witness to be represented by a
person who is, or is representing, another witness in the same
examination or another examination.
The Director may refuse to allow a witness to be represented by a
specific person or law practice.
Clause 64 implements part of the recommendation in
Recommendation 7 of the Special Investigation Monitor's Report.
It also re-enacts the substance of section 86P(1)(c) of the PRA
in relation to representation of witnesses and section 86PC(5)
and (6) of the PRA regarding the examination of a person under
the age of 18 years or believed to have a mental impairment.
Clause 65 provides that an examination is not generally open to the public.
However, the Director may open the examination to the public
if he or she considers that it is in the public interest to do so.
The Director must weigh the benefits of public exposure and
public awareness against the potential for prejudice or privacy
infringements.
21
The clause also provides that the Director can give directions as
to who may be present during an examination (or part of an
examination). Such a direction does not affect the presence of a
legal practitioner representing a witness who is giving evidence,
nor does it affect the presence of a member of the staff of the
Office of Police Integrity.
The clause provides that if an examination is not open to the
public, a person must not be present unless the person is entitled
to attend because--
· the Director given a direction under this clause or
clause 64 that he or she may be present; or
· the person has been appointed by the Director to assist
the Director in the examination; or
· the person is authorised to be present by this clause or
clause 64.
Clause 65 implements part of the recommendation in
Recommendation 7 of the Special Investigation Monitor's Report.
Clause 66 provides that a witness may be examined or cross-examined by
the Director, a legal practitioner representing a witness, or by
another person authorised by the Director to the extent that the
Director thinks appropriate.
It also provides that the Director may take evidence on oath or
affirmation. The Director may require a witness to take an oath
or make an affirmation. The Director may also take a statutory
declaration.
It also provides that, subject to Division 4 (Privileges and secrecy
provisions), a person cannot be made to give any evidence or
produce any document or thing that he or she could not be
compelled to give or produce in a court proceeding.
Clause 117 requires the Director to report to the Special
Investigations Monitor as soon as practical after a person is
excused from questioning under clause 66. The report must
include the video-recording of the examination made under
clause 67.
The appropriateness and relevance of the Director's questioning
in an examination may be assessed by the Special Investigations
Monitor under clause 114(b).
22
Clause 67 requires a person's attendance of the Director to be video-
recorded if a person is summonsed to attend the Director in an
examination, or if a person voluntarily attending the Director is
required to swear an oath or make an affirmation or answer a
question.
Any evidence of anything said by the person during the
attendance is inadmissible against him or her in any proceeding
unless the attendance was video-recorded from the relevant time
(as defined in this clause) and the video-recording is available to
be tendered in evidence.
The court may admit such evidence, however, if the court is
satisfied that there are exceptional circumstances that justify the
reception of such evidence.
Clause 67 re-enacts the substance of section 86PB of the PRA.
Clause 68 makes it an indictable offence for a person to fail to attend the
Director as required by a witness summons. It also makes it an
indictable offence for a witness to fail to answer a question he or
she is required to answer by the Director, or to fail to produce a
document or other thing required to be produced by the
summons, unless the Director withdraws the requirement to so
produce. The penalty for these offences is level 6 imprisonment
(5 years maximum).
A person does not contravene this clause if he or she is under the
age of 16 years at the date the summons is issued.
It is intended that a person may be charged under clause 68 in
the alternative to a charge of contempt of the Director under
clause 78. Clause 83 prevents double jeopardy, providing that if
an act or omission constitutes both an offence under this Bill and
a contempt of the Director (under clause 78), proceedings can be
brought against the offender for the offence, for contempt, or for
both. However, the person cannot be punished more than once
for the same act or omission.
Clause 68 re-enacts the substance of section 19 of the Evidence
Act 1958 which applied by reference in the Police Regulations
Act 1958, and is also modelled on section 37 of the Major
Crime (Investigative Powers) Act 2004.
Clause 68 implements part of recommendation 6 of the Special
Investigation Monitor's Report.
23
Division 4--Privileges and secrecy provisions
Clause 69 provides that a person cannot claim the privilege against self-
incrimination as the basis for refusing to give information or
answer a question at an examination, or to produce a document or
thing that is required by a witness summons.
The clause restricts the use that can be made of information,
documents or things given in an examination. Such answers,
information, documents or things cannot be used against the
person in any court, except in proceedings for--
· perjury or giving false information; or
· a breach of discipline by a member of Victoria Police;
or
· failure to comply with a direction under clause 47 (the
provision that allows the Director to require a member
of Victoria Police to give information and documents or
answer questions for the purposes of an investigation
into a complaint concerning a possible breach of
discipline); or
· an offence referred to in clause 68(3) (failure to attend
the Director as required by a witness summons; failure
to answer a question or produce a document at an
examination); or
· contempt of the Director.
Clause 69 implements part of recommendation 8 of the Special
Investigation Monitor's Report. It is also modelled on section
39(1) of the Major Crime (Investigative Powers) Act 2004.
Clause 70 provides that a person may refuse to comply with a requirement
to answer a question at an examination or produce a document
before the Director if doing so would disclose a communication
that is subject to legal professional privilege.
The clause also provides that a legal practitioner may refuse to
answer a question at an examination or produce a document
before the Director if the answer or the document contains a
privileged communication made by or to the legal practitioner.
In these circumstances, the legal practitioner must give the
Director the name and address of the person to whom or by
whom the communication was made.
24
The clause also provides that a public authority or public officer
may not claim legal professional privilege under this clause.
However, a public authority or public officer is not prevented
from objecting to answering a question or producing a document
in relation to a criminal proceeding to which the authority or
officer is a party on the ground of legal professional privilege.
Clause 70(1) and (2) are modelled on section 40 of the Major
Crime (Investigative Powers) Act 2004.
Clause 70 also implements part of recommendation 9 of the
Special Investigation Monitor's Report.
Clause 71 sets out a procedure for dealing with documents over which legal
professional privilege is claimed. When a person makes such a
claim, the Director can either withdraw the requirement to
produce, or apply for a determination of the claim before the
Supreme or County Court. The Director must not inspect the
document.
If the Director does not withdraw the requirement, the document
must be sealed and given to the Director. As soon as practicable,
and at most within 3 days of the sealing of the document, the
Director must give the document to the proper officer of a court
to be held in safe custody. The document must not be opened
prior to the delivery to the proper officer of the court.
Clause 71 is modelled on section 41 of the Major Crime
(Investigative Powers) Act 2004.
It also implements part of recommendation 9 of the Special
Investigation Monitor's Report.
Clause 72 provides a procedure for bringing a claim of legal professional
privilege before a court. Within 7 days after the Director gives
the sealed document to the proper officer of the court, as
provided for in clause 71, the Director may apply to the court to
determine whether or not the document is subject to legal
professional privilege.
If the Director does not make such an application within 7 days,
the proper officer of the court must return the document to the
claimant.
If the Director applies for a determination, he or she must notify
the person claiming the privilege a reasonable time before the
hearing. The claimant is entitled to appear and make submissions
to the court on the hearing of the application.
25
Clause 72 is modelled on section 42 of the Major Crime
(Investigative Powers) Act 2004.
It also implements part of recommendation 9 of the Special
Investigation Monitor's Report.
Clause 73 provides that the court must determine whether or not the sealed
document is subject to legal professional privilege. For this
purpose, the judge or a person authorised by the court may open
and inspect the sealed document.
It provides that the court must order that the document be
returned by the proper officer of the court to the claimant if the
court determines that the document is subject to legal
professional privilege. If the document is not subject to legal
professional privilege, the court must order that the proper officer
of the court release the document to the Director.
It makes it an offence to open or access a sealed document before
the court determines the claim of legal professional privilege or
the document is returned to the claimant. The maximum penalty
for this offence is 120 penalty units, imprisonment for 12 months,
or both.
Clause 73 is modelled on sections 41(7) and 42(8) of the Major
Crime (Investigative Powers) Act 2004.
It also implements part of recommendation 9 of the Special
Investigation Monitor's Report.
Clause 74 provides that no statutory or common law requirement of
confidentiality or secrecy applies to the disclosure of information
for the purposes of an examination or investigation.
It also provides that, in an examination or investigation, the
Crown is not entitled to any privilege in respect of the production
of documents or the giving of evidence as allowed by law in legal
proceedings.
Division 5--Legal assistance for witnesses
Clause 75 defines various terms for the purposes of Division 5.
Clause 76 provides that a person appearing as a witness in an examination
may apply to the Secretary to the Department of Justice for legal
assistance in relation to that appearance. The Secretary may
approve the application, and in doing so may impose restrictions
on the legal assistance to be provided, and may also impose other
conditions on the approval.
26
Clause 77 provides that the regulations may provide for the manner of
calculating the amount of legal assistance to be provided.
Division 6--Contempt
Clause 78 provides that a person is guilty of contempt of the Director if the
person fails, without reasonable excuse, to comply with a
summons by--
· failing to produce a document or thing; or
· refusing to be sworn or to make an affirmation when
called or examined as a witness; or
· failing to answer any question relevant to the subject-
matter of the investigation when called or examined as a
witness.
A person is also guilty of contempt of the Director if he or she
engages in any other conduct which would constitute contempt of
the Supreme Court if the Director were the Supreme Court.
It is intended that a person may be charged under clause 78 in the
alternative to a charge for an offence under another provision of
this Bill (for example, the offence of a failure of a witness to
attend and answer questions under clause 68). Clause 83
prevents double jeopardy, that is, if an act or omission constitutes
both an offence under this Bill and a contempt of the Director
(under clause 78), proceedings can be brought against the
offender for the offence, for contempt, or for both. However, the
person cannot be punished more than once for the same act or
omission.
Clause 78 re-enacts section 86KB of the PRA.
Clause 79 sets out the process for charging and arresting a person for
contempt of the Director. If it appears to the Director that a
person is guilty of contempt, the Director may issue a written
certificate charging the person with contempt and including
details of the alleged contempt.
It also provides that the Director may issue an arrest warrant,
directed to either a specific member of Victoria Police or to all
members of Victoria Police. The warrant authorises the person to
whom it is directed to arrest the person named in the warrant.
The person arrested must be brought before the Supreme Court
without delay and may be detained until then in police custody.
Clause 79 is modelled on sub-sections 86KB(2),(3) and (4) of the
PRA.
27
Clause 80 provides a bail application process where a person is arrested and
detained on a charge of contempt of the Director and it is not
practicable for the person to be brought immediately before the
Supreme Court.
In such circumstances, the person in charge of the place of
detention must inform the arrested person that he or she has the
right to apply to a bail justice to be released from custody, and
must give the person a written statement of that right.
If the person elects to apply for bail, the person in charge of the
place of detention must notify the Director in writing and ensure
the arrested person is brought before a bail justice as soon as
practicable.
The bail justice may discharge the arrested person on bail in
accordance with the Bail Act 1977 as if the person had been
accused of an offence.
The bail justice must not determine the application unless
satisfied that the Director has had enough time after receiving
notice of the bail application to decide whether or not to oppose
the grant of bail, and state any opposition to the granting of bail
to the bail justice.
Clause 80 is modelled on sub-sections 86KB(8) and (9) of the
PRA.
Clause 81 provides that the Director may direct that a person who is
arrested for contempt be detained in prison or police custody
until his or her appearance before the Supreme Court.
The Director may do so only if satisfied that there are reasonable
grounds to believe that such detention is necessary either to
prevent a person who is arrested for contempt from escaping
police custody or for the person's own safety.
If a person is detained overnight under this section, the Chief
Commissioner must arrange for the person to be given food and
accommodation comparable to that generally provided to jurors
kept together overnight.
If a person is detained in prison under this section, the Director
may direct in writing that the person be delivered into the custody
of a member of Victoria Police in order for the person to be
brought to the Supreme Court.
28
Clause 82 provides that the Supreme Court should deal with contempt of
the Director as if the contempt were of an inferior court, and as
though the certificate of charge were an application to the
Supreme Court for punishment for the contempt. A certificate of
charge is treated as evidence of the matters set out in or attached
to it.
Clause 82 is modelled on sub-section 86KB(10) of the PRA.
Clause 83 provides that if an act or omission constitutes both an offence
under this Bill and a contempt of the Director (under clause 78),
proceedings can be brought against the offender for the offence,
for contempt, or for both. However, the person cannot be
punished more than once for the same act or omission.
Division 7--Arrest of recalcitrant witnesses
Clause 84 provides that the Director may apply to a magistrate seeking the
issue of an arrest warrant for a person whom the Director
reasonably believes has been duly served with a witness
summons and who has failed to appear as required.
The magistrate may issue the warrant if satisfied by evidence
on oath that there are reasonable grounds for that belief.
The clause extends the authority given by, and rules relating to,
Subdivision 2 of Division 3 of Part 4 of the Magistrates' Court
Act 1989 (other than sections 62 or 64(2), (3) or (4) of that Act)
to apply to an arrest warrant.
A person is still liable for any non-compliance with a witness
summons even if an arrest warrant has been issued or the person
has been arrested.
Clause 84 re-enacts sections 86PD(1),(2),(3) and (4) of the PRA.
Clause 85 provides a bail application process where a person is arrested and
detained for failing to comply with a witness summons and it is
not practicable for the person to be brought immediately before
the Director.
In such circumstances, the person in charge of the place where
the person is detained must inform the arrested person that he or
she has the right to apply to a bail justice to be released from
custody, and must give the person a written statement of that
right.
If the person elects to apply for bail, the person in charge of the
place of detention must notify the Director in writing and ensure
the arrested person is brought before a bail justice as soon as
practicable.
29
The bail justice may discharge the arrested person on bail in
accordance with the Bail Act 1977 as if the person had been
accused of an offence.
The bail justice must not determine the application unless
satisfied that the Director has had enough time after receiving
notice of the bail application to decide whether or not to oppose
the grant of bail, and to state any opposition to the granting of
bail to the bail justice.
Clause 85 re-enacts sections 86PD(8) and (9) of the PRA.
Clause 86 provides that the Director may direct that a person arrested for
failing to attend as required by a witness summons be detained in
prison or police custody pending appearance before the Director.
The Director may do so only if satisfied that there are reasonable
grounds to believe that detention in prison or police gaol is
necessary to prevent a person who is arrested for contempt from
escaping police custody or for the person's own safety.
If a person is detained overnight under this section, the Chief
Commissioner must arrange for the person to be given food and
accommodation comparable to that generally provided to jurors
kept together overnight.
If a person is detained in prison under this section, the Director
may direct in writing that the person be delivered into the custody
of a member of Victoria Police in order for the person to be
brought to the Supreme Court.
Clause 86 is modelled on sections 86PD(5),(6) and (7) of the
PRA.
Division 8--Powers of entry, search and seizure
Clause 87 defines authorised officer for the purposes of this Division.
Clause 88 provides that, if an authorised officer reasonably believes that
documents or other things relevant to an investigation are on
premises occupied by a public authority, the officer may enter
those premises at any time.
It provides that an authorised officer can search the premises for
documents or other things relevant to an investigation, and can
inspect or copy any document or thing found at the premises.
The authorised officer is allowed to do anything necessary or
convenient to enable the search or inspection.
30
The authorised officer must identify his or herself to the person
who is apparently in charge of the premises, or a public officer of
the public authority, and inform the person in charge or public
officer that he or she has authority to enter.
The chief executive of a public authority must ensure that all
public officers of the authority provide any assistance reasonably
required by the authorised officer in order to exercise his or
powers under this section.
Clause 88 does not allow authorised officers to enter parts of
premises which are used for residential purposes.
Clause 89 provides that an authorised officer who enters premises under
clause 88 may seize documents or things at the premises.
The authorised officer must reasonably suspect that the document
or thing is relevant to the investigation, and that if it is not seized
it may be concealed or destroyed, or its forensic value
diminished.
Items seized under this clause cannot be used for the purpose of
an investigation until either the period for making a clause 91
application for return of the item has expired, or the application
for return and any appeal emerging from it has been finally
determined.
The chief executive of a public authority must ensure that all
public officers of the authority provide any assistance reasonably
required by the authorised officer in order to exercise his or
powers under this clause.
Clause 90 provides that if an item that can be easily copied, or a storage
device containing information which can easily be copied, is
seized by an authorised officer under clause 89, the authorised
officer must, on request, provide a copy to a person at the
premises from which it was seized.
A copy need not be made if the Director is satisfied that copying
the item or the information will substantially and unreasonably
divert the resources of the OPI from its other operations, or
interfere with the Director's functions. The request may also be
refused if the Director believes that it is in the public interest to
do so.
A request for a copy cannot be refused unless the authorised
officer has--
· provided a written notice stating an intention to refuse
to the person making the request; and
31
· given the person a reasonable chance to make a further
request in a form which would eliminate the ground of
refusal; and
· as far as is reasonably practicable, provided the person
with any information which would assist the person in
making a further request. However, this information
need not be provided if the Director is of the opinion
that it is not in the public interest to do so.
If a request is refused, the authorised officer must provide a
receipt for the item seized, and the Director must, on request,
permit the chief executive of the public authority at whose
premises the item was seized, to access the item or information.
However, the Director need not provide the chief executive with
such access if he or she believes that it is not in the public interest
to do so.
The Director must not refuse a request by the chief executive for
access to the item or the information unless the Director has--
· provided the chief executive with a written notice
stating an intention to refuse to the person making the
request; and
· given the chief executive a reasonable chance to make a
further request in a form which would eliminate the
ground of refusal; and
· as far as is reasonably practicable, provided the person
with any information which would assist the person in
making a further request. However, this information
need not be provided if the Director is of the opinion
that it is not in the public interest to do so.
Neither an authorised officer nor the Director is required to give
reasons for refusing a request under this clause.
Clause 91 provides that, within 7 days after an item is seized, an interested
person may apply to the Magistrates Court for an order setting
aside the seizure and requiring the Director to hand over the item
to the interested person. The interested person must satisfy the
Court that the grounds for seizure did not, or no longer exist.
The clause also provides a definition of interested person for the
purposes of the clause.
32
Clause 92 provides that a seized document or thing which is required as
evidence in a legal proceeding must be returned to the chief
executive of the public authority from whose premises it was
seized.
The Director must also immediately return a document or thing if
he or she is no longer satisfied that keeping the item is necessary
for the purposes of an investigation, a report on an investigation,
or a legal proceeding arising out of, or connected with, an
investigation.
Clause 92 is subject to any order of the Magistrates' Court under
clause 91.
Clause 92 is modelled on section 86VH of the PRA.
Clause 93 provides that a magistrate may issue a search warrant upon
application by the Director. The magistrate must be satisfied by
evidence on oath that there are reasonable grounds for the
Director's belief that entry to the premises is necessary for the
purpose of an investigation. If so, the magistrate may issue a
search warrant authorising any person named in the warrant to
enter and search premises identified in the warrant, and to make a
copy of a document, or take a document or other thing, which the
person reasonably considers may be relevant to the investigation.
The warrant must state--
· the purpose of the search; and
· any conditions to which it is subject; and
· the time of day or night at which entry is authorised to
be made; and
· a day, not later than 28 days after the issue of the
warrant, on which the warrant expires.
Clause 93 also provides that, except as provided for in this Act,
the rules with respect to search warrants under the Magistrates'
Court Act 1989 apply to search warrants under this section.
Clause 93 is modelled on section 86W of the PRA, except that
section 78 of the Magistrates' Court Act 1989 now applies to
search warrants issued for the purposes of this Act.
Clause 94 provides a procedure for executing a search warrant under this
Division. The person executing the warrant must state that he or
she is authorised by the warrant to enter the premises, and must
give any person present at the premises the chance to allow entry.
An exception to these requirements is when the person executing
33
the warrant believes on reasonable grounds that immediate entry
is necessary to ensure the safety of a person or to ensure that the
effective execution of the warrant is not thwarted.
It provides that the person executing the warrant must tell the
occupier (or, if the occupier is not present, a person on the
premises who is apparently over the age of 18) and give the
occupier (or other adult person) a copy of the warrant. If there
is no person on the premises (or no adult person) the person
executing the warrant must leave a copy of the warrant in a
clearly noticeable place on the premises. The Director has the
discretion to direct that no copy of the warrant be left at the
premises if satisfied that to do so would not be in the public
interest.
Clause 94 is modelled on section 86X of the PRA.
Clause 95 provides that, if an item or storage device taken during a search
can be readily copied, the person who has taken possession of
the item must, if requested, give a copy of the document or
information to the occupier of the premises. If a copy is not
given of an item which is taken during a search, then a receipt for
the item must be given to the occupier as soon as is practicable.
Clause 95 is modelled on section 86Y of the PRA.
Clause 96 provides that, if an item taken during the execution of a search
warrant is required as evidence in a legal proceeding, the Director
must take all reasonable steps to return the item.
The clause further provides that the Director must immediately
take all reasonable steps to return an item if he or she is no longer
satisfied that keeping the document or thing is necessary for the
purposes of an investigation, a report on an investigation, or a
legal proceeding arising out of, or connected with, an
investigation.
Clause 96 is modelled on section 86Z of the PRA.
Clause 97 provides that a person executing a search warrant may seek the
help of another person who has specialised skills or technical
knowledge which are required to execute a power contained in
the warrant.
The clause further provides that the person may authorise the
assistant to do specific things at the premises, and to exercise
specific powers set out in the warrant, but this cannot include a
power to arrest a person. The person executing the warrant must
tell the assistant the action or powers which the assistant is
authorised to implement.
An animal can be an assistant for the purposes of clause 97.
34
Clause 98 provides that the Chief Commissioner must ensure that Victoria
Police provides all assistance that is reasonably required by a
person to exercise all powers included in a search warrant
granted under clause 93.
Clause 99 applies if a person executing a search warrant (the searcher)
seeks to inspect, copy or seize an item which another person
(the claimant) claims is subject to privilege.
The searcher must consider the claim and decide to either
withdraw the requirement to inspect, copy or seize the item, or to
require the claimant to seal the item and give it to the searcher.
The searcher must not inspect the item. If the searcher requires
the item to be sealed and handed over, the searcher must notify
the Director as soon as practicable, and deliver the sealed item to
the proper officer of the Supreme Court or the County Court
within 3 days of receiving it. The item must not be opened by
any person prior to delivery to the proper officer of the court.
Clause 99 defines privilege to include legal professional privilege
(other than that of a public authority or officer), privilege against
self-incrimination, public interest immunity, and parliamentary
privilege. It does not include confidentiality as a ground for a
claim of privilege.
Clause 99 is modelled on sections 86VB(3), 86VC(2) and
86VE(2), (3), (4) and (5) of the PRA.
Clause 100 provides a procedure for bringing a claim of privilege before a
court. Within 7 days after the sealed document is given to the
proper officer of the court, as provided in clause 99, the Director
may apply to the court to determine whether or not the document
is subject to legal professional privilege.
If the Director does not make such an application within 7 days,
the proper officer of the court must return the document to the
claimant.
If the Director does apply for a determination, he or she must
notify the claimant of that application a reasonable amount of
time before the hearing. The claimant is entitled to appear and
make submissions to the court on the hearing of the application.
Clause 100 is modelled on sections 86VE(6), 86VE(7)(b) and
86VF(1) of the PRA.
Clause 101 provides that the court must determine whether or not the sealed
document is subject to privilege, as defined in clause 99.
The judge or a person authorised by the court may open the
sealed document to inspect it for this purpose.
35
It provides that if the court determines that the document is
subject to privilege, it must order that it be returned by the proper
officer of the court to the claimant. If the document is not subject
to privilege, the court must order that the proper officer of the
court release the document to the Director.
Clause 101 makes it an offence to open or access a sealed
document before the court determines the claim of privilege or
the document is returned to the claimant. The maximum penalty
for this offence is 120 penalty units, imprisonment for 12 months,
or both.
Clause 101 is modelled on sections 86VF(2), (3) and (4) and
86VE(9) of the PRA.
Division 9--Defensive equipment and firearms
Clause 102 provides that the Director may authorise a member of staff of the
OPI to possess, carry and use defensive equipment for the
purposes of an investigation.
A member of staff of the OPI is defined in clause 3 to mean an
employee in the OPI or a person who is seconded to the OPI.
Defensive equipment is defined in clause 3 to mean any one or
more of the following items--
· an article designed or adapted to discharge oleoresin
capsicum spray;
· body armour within the meaning of the Control of
Weapons Act 1991;
· an extendable baton;
· handcuffs or cable ties.
The Director may only issue an authorisation under clause 102 if
he or she is satisfied that the member reasonably requires that
equipment to perform functions and exercise powers of the
Director or an authorised officer in an investigation, or to ensure
the safety of that member in performing those functions or
exercising those powers.
The Director's authorisation must specify which article or articles
of defensive equipment the officer is authorised to possess, carry
and use. The Director may make an authorisation subject to any
conditions.
A member of staff of the Office of Public Integrity cannot use
defensive equipment in the course of an investigation unless
authorised to do so under this section.
36
Clause 103 provides that the Director may authorise a member of staff of the
OPI to possess, carry and use a firearm for the purposes of an
investigation. A member of staff of the OPI is defined in
clause 3 to mean an employee in the OPI or a person who is
seconded to the OPI. A firearm is defined in clause 3 as having
the same meaning as in the Firearms Act 1996.
The Director may only issue an authorisation under clause 103
if he or she satisfied that the member reasonably requires that
firearm to perform the functions and exercise powers of the
Director or an authorised officer in an investigation, or to ensure
the safety of that member in performing those functions or
exercising those powers.
The Director's authorisation must specify the type of firearm the
officer is authorised to possess, carry and use. The Director may
make an authorisation subject to any conditions.
A member of staff of the Office of Public Integrity cannot use a
firearm in the course of an investigation unless authorised to do
so under this section.
Division 10--Protection of persons, documents and other things
Clause 104 defines a protected person as--
· the Director;
· the Acting Director;
· a member of staff of the OPI;
· a person who has taken an oath or made an affirmation
under section 18(2);
· a person (other than a natural person) engaged under
section 17(1)(b), if any officer or employee of the
person has taken an oath or made an affirmation under
section 18(2);
· the members of a body engaged under section 17(1)(b),
if any member, officer or employee of the body has
taken an oath or made an affirmation under
section 18(2).
These classes of persons are modelled on the classes of persons
covered by the "Protection of Director etc" provision in section
86J(1) of the PRA.
37
Clause 105 sets out what is a protected document or other thing for the
purposes of Division 10. An item is a protected document or
other thing if the production or inspection of the item--
· is likely to disclose the identity of, or endanger the
safety of--
· an informer; or
· a person who has been called, or who has
appeared, as a witness in an examination; or
· a person who has provided the Director with
information relating to an investigation; or
· a person whose name appears in any evidence
given or information provided to the Director
relating to an investigation; or
· a person who is or has been the subject of an
investigation; or
· is likely to place at risk an ongoing investigation by the
Director or Victoria Police; or
· is likely to risk revealing an investigative method used
by the Director or Victoria Police; or
· is not otherwise in the public interest.
Clause 106 applies to all legal proceedings other than criminal proceedings,
and to appeals before the Appeals Board.
It provides that in such proceedings, a protected person cannot
be forced to produce an item he or she has acquired through
performance of functions under this Bill if the Director certifies
in writing that in his or her opinion, the item is a protected
document or thing.
This clause provides that a reference to a document or other thing
in this section includes a reference part of a document or other
thing.
Clause 107 applies in criminal proceedings. It provides a procedure for
determining objections to production or inspection of items by
protected persons where the protected person objects on the
grounds that item is a protected document or thing. The item
must have been acquired by a protected person in the
performance of functions under this Bill.
38
In these circumstances, the protected person must notify each
party to the proceeding of the objection, and of the category of
item to which the objection applies.
The protected person must apply to the court to determine the
application using one or more of the following methods--
· by confidential affidavit; or
· at a hearing held in closed court where the protected
person and each party to the proceeding has a right to
make submissions to the court regarding the objection;
or
· at a hearing held without notice to, and without the
presence of, one or more of the parties or any
representative of those parties.
If the court is of the view that the method of hearing chosen by
the protected person is not in the public interest, the court may
hear the application by one or more of the other methods set out
above.
When deciding whether the protected person's chosen method of
hearing is in the public interest, the court must consider--
· the public interest in protecting the confidentiality of the
Director's investigative techniques and items in the
Director's possession; and
· the extent to which the method of determining the
objection may disclose information that would classify a
document or thing as protected under clause 105.
If the court decides to determine the objection via confidential
affidavit, it may require the protected person to provide the court
with further confidential affidavits.
The clause provides that, without limiting any other basis for
refusing production or inspection, the court must refuse to
compel a protected person to disclose an item for inspection or
production if the court determines that the item is a protected
document or thing. An exception to this is where the party
seeking production or inspection satisfies the court that there are
exceptional circumstances requiring the production or inspection
of the item.
The clause also provides that a reference to a document or other
thing in this section includes a reference to part of a document or
other thing.
39
Clause 108 provides that if the court decides to determine an objection at a
hearing without the presence of a party to the proceeding or
representative of that party, the court may appoint a special
counsel to represent the interests of the absent party at the
hearing. The appointment is subject to the following
conditions--
· special counsel must be a barrister within the meaning
of the Legal Profession Act 2004 who, in the opinion
of the court, has the appropriate skills and ability to
represent the interests of the party at the hearing;
· upon appointment and prior to attending any hearing or
obtaining any confidential affidavits, a special counsel
may communicate with the party whose interests he or
she is representing, or any representative of that party,
to obtain information in relation to the criminal
proceeding.
· once a special counsel attends any hearing or obtains
any confidential affidavits, the special counsel--
· must not take instructions from the party whose
interests he or she is representing, or from any
representative of that party; and
· may communicate any order made by the court at
or in relation to the hearing to that party or a
representative of that party; and
· must not communicate any other information in
relation to the hearing to that party or a
representative of that party without leave of the
court.
Clause 109 provides a protected person with an immunity against civil
and criminal proceedings in respect of any act professed to be
done under this Bill, unless that act was done in bad faith.
This immunity does not extend to acts done in the course of, or
which result in, critical incidents (defined in clause 30).
Neither civil nor criminal proceedings arising from acts done
under this Bill (except acts involving critical incidents) may be
brought against protected persons without leave of the Supreme
Court. Before granting leave, the Court must be satisfied that
there are substantial reasons to believe that the protected person
has acted in bad faith.
40
Clause 109 provides proceedings may not be brought against the
Director in relation to the issuing of a certificate under clause 106
unless it was issued in bad faith. Nor can the court order that the
Director be restrained from carrying out or compelled to carry
out any investigation.
The clause further provides that a protected person cannot be
called to give evidence about any matter which has come to his
or her knowledge in the course of carrying out functions under
the Bill.
Clause 109 is modelled on sections 86J of the PRA.
Clause 110 provides that, in relation to critical incidents (defined in
clause 30), a protected person is not personally liable for an act
or omission done in good faith if it is done while the person is
performing a function or exercising a power under the Bill, or
if it is done in the reasonable belief that he or is performing a
function or exercising a power under the Bill.
Any liability that would attach to a protected person, but for
clause 110, attaches instead to the State.
Clause 111 provides that a legal practitioner who represents the Director or
another person during an examination or for the purposes of an
investigation has the equivalent protection and immunity as a
legal practitioner when representing a party in a Supreme Court
proceeding. A witness in an examination or during an
investigation also has the same protection and immunity as a
witness in a Supreme Court proceeding.
Clause 111 is modelled on section 86JA of the PRA.
Division 11--General
Clause 112 provides that the Director may refer relevant matters to the
Director of Public Prosecutions. The Director may include the
fact of a referral and any relevant details in a report of the
investigation under this Bill.
Clause 112 is modelled on section 86QA of the PRA.
Clause 113 Clause 113(1) makes it an offence for a person without lawful
excuse to wilfully obstruct, hinder or resist the Director or
another person in the exercise of powers under this Act.
The burden of proving a lawful excuse lies on the person
accused. The maximum penalty for this offence is 120 penalty
units or imprisonment for 12 months or both. This offence
re-enacts the offence enacted in section 86K(1)(a) of the PRA.
41
Clause 113(2) makes it an offence for a person without lawful
excuse to wilfully fail to comply with any lawful requirement of
the Director or other person in the exercise of his or her powers
under the Bill. The burden of proving a lawful excuse lies on the
person accused. The maximum penalty for this offence is
120 penalty units or imprisonment for 12 months or both.
This offence re-enacts the offence enacted in section 86K(1)(b)
of the PRA.
Clause 113(3) makes it an offence to wilfully and knowingly
make a false or misleading statement on a material matter, or to
mislead or attempt to mislead the Director or any other person in
the exercise of his or her powers under this Bill. The maximum
penalty for this offence is 120 penalty units or imprisonment for
12 months or both. This offence re-enacts the offence enacted in
section 86K(1)(c) of the PRA.
PART 5--OVERSIGHT BY SPECIAL INVESTIGATIONS
MONITOR
Clause 114 sets out the role of the Special Investigations Monitor under the
Bill. The Special Investigations Monitor's role is to--
· monitor compliance with the Bill;
· assess the relevance and appropriateness of questioning
in examinations by the Director, and of the Director's
decisions to require the production of documents or
other things;
· investigate complaints;
· make reports and recommendations as a result of the
performance of his or her other functions under this Bill.
Clause 114 is modelled on section 86ZA of the PRA.
Clause 115 requires the Director to report to the Special Investigations
Monitor in writing within 3 days after the issue of a witness
summons. The report must contain the name of the person
summoned and the reason for the summons.
Clause 115 is modelled on section 86ZB of the PRA.
Clause 116 requires the Director to report to the Special Investigations
Monitor in writing within 3 days after the issue of an arrest
warrant. The report must set out the reasons the warrant was
issued and why it is relevant to the investigation.
Clause 116 is modelled on section 86ZC of the PRA.
42
Clause 117 requires the Director to give a written report to the Special
Investigations Monitor as soon as practical after a person is
excused from attendance after--
· attending an examination, or otherwise, in accordance
with a witness summons; or
· voluntarily attending an examination and being required
to be sworn, make an affirmation or answer questions.
The written report must set out why the person attended, the time
and place of attendance, the name of everyone who was present
during the attendance, the relevance of the attendance to the
investigation and any other matters required by the Regulations.
It must include a copy of the video-recording made under
clause 67 and a copy of any transcript prepared.
Clause 117 is modelled on section 86ZD of the PRA.
Clause 118 applies to a person who has attended the Director, either
voluntarily or in accordance with a witness summons, to provide
information, produce a document or other thing, or to give
evidence.
If the person believes that the Director did not allow an adequate
opportunity to explain his or her understanding of the relevant
facts, the person may make a complaint to the Special
Investigations Monitor.
The complaint may be made orally or in writing, and must be
made within 90 days from the end of the attendance. The Special
Investigations Monitor may require that an oral complaint be
confirmed in writing.
Clause 118 is modelled on section 86ZE of the PRA.
Clause 119 provides that the Special Investigations Monitor may refuse to
investigate a complaint if he or she considered that the subject
matter of the complaint is trivial, the complaint is frivolous,
vexatious or not made in good faith.
Clause 119 is modelled on section 86ZF of the PRA.
Clause 120 provides a process for the investigation of complaints by the
Special Investigations Monitor.
Complaints must be investigated unless the Special Investigations
Monitor has decided not to investigate under clause 119.
43
In conducting an investigation, the Special Investigations
Monitor may decide to hold a hearing, obtain information for any
persons, and manage the procedure as he or she thinks
appropriate. Investigations, including hearings, must be held in
private.
The fact that there are proceedings underway which relate to the
complaint does not prevent the Special Investigations Monitor
from investigating, but he or she must ensure that the
investigation does not prejudice those proceedings.
Clause 120 is modelled on section 86ZG of the PRA.
Clause 121 provides that the Special Investigations Monitor may, at any
time, recommend to the Director that particular action be taken.
The Special Investigations Monitor may require the Director to
report back on whether he or she has taken or intends to take any
recommended action, and, if a recommendation is not followed,
to provide reasons. The Director must comply with such a
requirement within a time specified by the Special Investigations
Monitor.
Clause 121 is modelled on section 86ZH of the PRA.
Clause 122 requires the Director to ensure any reasonably required assistance
is provided to the Special Investigations Monitor to enable the
Special Investigations Monitor to perform his or her functions.
Clause 122 is modelled on section 86ZI of the PRA.
Clause 123 provides that the Special Investigations Monitor may, after
notifying the Director, enter at any premises occupied by the
OPI.
To the extent necessary for the performance of his or her
functions, the Special Investigations Monitor--
· is entitled to complete access to all records of the OPI;
and
· may require the Director, a member of staff of the OPI
or a person engaged by the Office under the Act to give
any relevant information in the person's possession.
The powers of entry and access may only by exercised if the
Special Investigations Monitor considers that the Director has
deliberately failed to provide information required in a report, or
has failed to provide assistance as required by clause 122.
Clause 123 is modelled on section 86ZJ of the PRA.
44
Clause 124 requires a member of OPI personnel to comply with a written
notice to attend before the Special Investigations Monitor to
answer questions, provide any information or to produce any
document or thing in his or her possession.
It makes it an offence for a member of OPI personnel to--
· without reasonable excuse, fail to attend or to produce a
document required by the notice; or
· without reasonable excuse, refuse or fail to answer a
question as required; or
· without reasonable excuse, refuse or fail to provide
information as required; or
· give false or misleading information on a material issue.
The penalty for these offences is level 6 imprisonment (5 years
maximum).
The Special Investigations Monitor may only exercise powers
under this section if he or she considers that the Director has
deliberately failed to provide information required in a report, or
has failed to provide assistance as required by clause 122.
Clause 125 is modelled on section 86ZK of the PRA.
Clause 125 provides that neither the privilege against self-incrimination nor
legal professional privilege provide a reasonable excuse for
refusing to produce a document or thing, to answer a question, or
to provide information under clause 124.
Documents or things produced, answers to questions, and
information provided under section 124 cannot be used in legal
proceedings against the member of OPI personnel, except in
proceedings for--
· perjury or giving false information; or
· an offence referred to in section 124(4); or
· breach of discipline actions where a member of OPI
personnel is also a member of Victoria Police.
Clause 125 does not affect the right of the member to object to
claim legal professional privilege in relation to a criminal
proceedings to which the member is a party.
45
Clause 126 provides that the Special Investigations Monitor--
· must report to Parliament on the performance of his or
her functions during each financial year; and
· may at any time make a report to Parliament on any
matter relevant to the performance of his or her
functions; and
· must not include in any report any information that is
likely to disclose the identity any person who has
attended before the Director, the nature of any ongoing
investigation under this Bill, or the nature of any
ongoing investigation by Victoria Police or members of
Victoria Police.
Clause 126 is modelled on section 86ZL of the PRA.
Clause 127 provides that the Special Investigations Monitor may, by
instrument, delegate to an employee in the office of the Special
Investigations Monitor any functions, duties and powers of the
Special Investigations Monitor under the Act, except the powers
under clauses 124 and 126 and the power of delegation.
Clause 127 is modelled on section 86ZN of the PRA.
PART 6--GENERAL
Clause 128 provides that a provision of this Bill prevails over any
inconsistent provision of the Ombudsman Act 1973.
Clause 128 is modelled on section 86B of the PRA.
Clause 129 provides that a letter written by a person in custody to the
Director, or by the Director to a person in custody, must be
immediately forwarded unopened to the intended recipient by the
person in charge of the institution where the person is detained.
A person who prevents or hinders the forwarding of a letter is
guilty of an offence.
If the person in charge suspects that a letter contains drugs,
weapons or other contraband, the letter may be opened and the
person opening the letter is not guilty of an offence.
Clause 129 defines person in charge for the purposes of the
section.
Clause 129 is modelled on sections 86L(5), (5A), (6), (7), (8)
and (9) of the PRA.
46
Clause 130 provides that it is the intention of clause 109 to alter or vary
section 85 of the Constitution Act 1975.
Clause 131 provides that the Governor in Council may make regulations for
or about certain matters.
PART 7--TRANSITIONAL PROVISIONS
Clause 132 provides that Schedule 1 of the Act, containing transitional
provisions, has effect.
PART 8--AMENDMENT OF PRA AND OTHER ACTS
Division 1--Amendment of Police Regulation Act 1958
Clause 133 inserts definitions for chief executive, public authority and
public officer into section 3(1) of the PRA. These definitions
replicate those in clause 3.
Clause 134 repeals sections 86J and 86JA of the PRA. These sections
concern protection of the Director and OPI personnel, and of
legal practitioners and witnesses. Clause 135 inserts a new
scheme for the protection of these persons with the insertion of
86KJ and 86KK.
Clause 135 inserts a new Division IA, into Part IVA of the PRA. Division 1A
replicates Division 10 in Part 4 of this Bill, except in so far as
Division 10 relates to critical incidents.
The new sections replicate clauses of this Bill as follows--
· Section 86KE of the PRA replicates clause 104 and sets
out who is a protected person;
· Section 86KF of the PRA replicates clause 105 and sets
out what is a protected document or other thing;
· Section 86KG of the PRA replicates clause 106 and
provides for the production and inspection of protected
documents in legal proceedings other than criminal
proceedings;
· Section 86KH of the PRA replicates clause 107 and
provides for the production and inspection of protected
documents in criminal proceedings;
47
· Section 86KI of the PRA replicates clause 108 and
provides for the appointment of special counsel in
hearings of objections under section 86KI where one or
more parties is not present or represented;
· Section 86KJ of the PRA replicates clause 109, except
in so far as clause 109 relates to critical incidents.
This section provides for the general protection of
protected persons;
· Section 86KK of the PRA replicates clause 111 and
provides for the protection of legal practitioners and
witnesses.
Clause 136 amends section 86PA(1) of the PRA. The amendment removes
the references in section 86PA(1) to sections 19 and 20 of the
Evidence Act 1958 so that the Director may no longer report the
failure of a witness to attend a summons or give evidence to the
Director of Public Prosecutions. A new scheme dealing with
failure to attend a witness summons and answer questions is
inserted into the PRA by clause 137.
Clause 137 inserts a new section, section 86PF, into the PRA. Section 86PF
replicates clause 68, making it an offence to fail to attend a
summons, answer a question, or produce a document as required
by the Director under this Bill.
Clause 138 inserts new Division 2A and 2B into Part IVA of the PRA.
Division 2A replicates Division 5 in Part 4 of this Bill.
Division 2B is modelled on Division 4 in Part 4 of this Bill.
The new sections replicate clauses of this Bill as follows--
Division 2A--Legal assistance for witnesses
· Section 86VAA of the PRA replicates clause 75 and
provides definitions for various terms for the purposes
of the Division.
· Section 86VAB of the PRA replicates clause 76 and
provides for the provision of legal assistance to
witnesses.
· Section 86VAC of the PRA replicates clause 77 and
provides a power to make regulations.
48
Division 2B--Privileges and secrecy provisions
· Section 86VAD of the PRA replicates clause 69 and
provides that the privilege against self-incrimination is
abrogated.
· Section 86VAE of the PRA replicates clause 70 and
provides that legal professional privilege applies.
· Section 86VAF of the PRA replicates clause 71 and
provides a procedure for determining claims of legal
professional privilege.
· Section 86VAG of the PRA replicates clause 72 and
provides for applications to court to determine legal
professional privilege.
· Section 86VAH of the PRA replicates clause 73 and
provides for the determination of legal professional
privilege.
· Section 86VAI of the PRA replicates clause 74 and
provides for the application of secrecy provisions and
Crown privilege.
Clause 139 inserts a new Division 3 into Part IVA in the PRA to replace the
existing Division 3. The new division replicates Division 8 in
Part 4 of this Bill.
The new sections replicate clauses of this Bill as follows--
· 86VA of the PRA replicates clause 87 and provides a
definition of authorised officer for the purposes of
Division 3 of Part IVA of the PRA;
· 86VB of the PRA replicates clause 88 and provides for
the power to enter public authority premises;
· 86VC of the PRA replicates clause 89 and provides for
the power to seize documents or things at public
authority premises;
· 86VD of the PRA replicates clause 90 and provides for
the copying of, access to or receipt for things seized
during a search;
· 86VE of the PRA replicates clause 91 and provides for
applications for return of things seized during a search;
49
· 86VF of the PRA replicates clause 92 and provides for
the return of things seized during a search;
· 86VG of the PRA replicates clause 93 and provides for
the powers which may attach to a search warrant;
· 86VH of the PRA replicates clause 94 and provides the
procedure for executing a search warrant;
· 86VI of the PRA replicates clause 95 and provides for
copies or receipts to be given for items seized during a
search;
· 86VJ of the PRA replicates clause 96 and provides for
the return of documents and other things;
· 86VK of the PRA replicates clause 97 and provides for
assistance in executing search warrants;
· 86VL of the PRA replicates clause 98 and provides that
police must provide reasonable assistance to the OPI;
· 86VM of the PRA replicates clause 99 and relates to
privilege claims in relation to search warrants;
· 86VN of the PRA replicates clause 100 and provides for
applications to court to determine privilege;
· 86VO of the PRA replicates clause 101 and provides for
the determination of privilege claims.
Clause 140 inserts a new subsection, section 129A(5), into the PRA which
provides that it is the intention of section 86KJ of the PRA to
alter or vary section 85 of the Constitution Act 1975.
Clause 141 inserts a new section, section 136, into the PRA. This section
sets out the effect of commencement dates for certain transitional
provisions inserted into the PRA by this Bill.
Clause 142 amends various sections of the PRA (the PRA) to--
· insert references to relevant sections of this Bill in
definitions sections and elsewhere; and
· to repeal sections of the PRA which are replaced by
sections in this Bill.
50
Division 2--Amendment of other Acts
Clause 143 provides that an Act specified in the heading of an item in
Schedule 2 is amended as set out in that item or provision.
The amendments take effect on the commencement of the item
or provision.
Division 3--Repeal of Part
Clause 144 provides that Part 8 and Schedule 2 are repealed on 31 December
2010. The repeal does not affect the continuing operation of the
amendments made by the Part and the Schedule (see section
15(1) of the Interpretation of Legislation Act 1984).
SCHEDULES
SCHEDULE 1--TRANSITIONAL PROVISIONS
Clause 1 defines PRA and PRA investigation for the purposes of
Schedule 1.
Clause 2 provides that the Schedule does not affect or take away from the
Interpretation of Legislation Act 1984, except where the
contrary intention appears.
The clause further provides that if a repealed provision of the
PRA continues to apply by force of Schedule 1, then any other
repealed provisions of the PRA necessary to give continued
effect to that provision and any regulation made under the PRA
for the purposes of that continued provision will also continue to
apply.
Clause 3 provides that the person holding the office of Director under the
PRA immediately before the commencement of clause 10 of this
Bill continues to hold office as Director on and after that
commencement. The person holds the office of Director on the
same terms and conditions as if he or she was appointed under
clause 10 of this Bill.
The clause further provides that where the Director has taken and
oath or made an affirmation under the PRA, he or she is taken to
have complied with the requirement to take an oath or make an
affirmation under clause 16 of this Bill.
Clause 4 provides that a member of staff of the OPI under the PRA
remains a member of staff of the OPI on and after the
commencement of clause 17 of this Bill. The clause further
provides that person or body engaged in the OPI under the PRA
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remains engaged in the OPI on and after the commencement of
clause 17 of this Bill.
The terms and conditions that apply to the employment,
secondment of engagement are the same as those that applied
immediately before the commencement of this Bill.
Where a person has taken and oath or made an affirmation under
the PRA, he or she is taken to have complied with the
requirement to take an oath or make an affirmation under
clause 18 of this Bill.
Clause 5 provides that a reference to information received by a member of
OPI personnel while performing functions of the Director under
this Bill includes a reference to information received by the
person before the commencement day in the course of
performing functions under the PRA.
The clause provides that the restricted matters referred to in
clause 23 extend to restricted matters which have arisen under the
PRA before the commencement day. References in clauses 24,
25, 26 and 27 to information obtained in the performance of, or
as a result of, functions under this Bill includes a reference to
information obtained before the commencement day in the
performance of, or as a result of, functions under the PRA.
The clause defines commencement day for the purposes of the
section.
Clause 6 provides that the Director's obligation to report to Parliament on
the performance of his or her functions under the PRA continues
to apply, despite its repeal, in relation to the financial year ending
before the commencement of clause 28 of this Bill.
The procedure for the transmission of reports to Parliament under
the PRA will also continue to apply, despite the fact that the
relevant sections have been repealed.
Clause 7 provides that complaints received by the Director under the PRA
before the commencement day may be investigated under Part 3
of this Bill. An incomplete investigation commenced by the
Director under the PRA may be completed by the Director under
Part 3 of this Bill.
In investigating a complaint or completing an investigation, the
Director may have regard to any evidence given or document or
other thing produced in relation to that investigation under the
PRA.
52
The clause further provides that if, before the commencement
day, the Director has completed an investigation under the PRA
but had not advised the complainant of the results of the
investigation and any action taken or proposed to be taken, the
Director must advise the complainant under clause 48 of this Bill.
The Director is not required to advise the complainant under
clause 48 if he or she had not advised the complainant under the
PRA because he or she was of the opinion that it would be
contrary to the public interest to do so.
The clause further provides that, if an application to determine
whether or not the Director has jurisdiction to investigate a
complaint under the PRA has not been determined by the
Supreme Court before the commencement day, the Supreme
Court will determine the application under clause 50 of this Bill.
The clause defines commencement day for the purposes of the
clause.
Clause 8 provides that the Director can continue an own motion
investigation initiated under the PRA that has not been completed
before the commencement day. The Director may complete such
an investigation under Part 3 of this Bill as if the investigation
was initiated under this Bill.
The clause further allows the Director to initiate an investigation
under this Act even if the conduct or anything else to which the
investigation relates occurred before the commencement day.
If the Director continues an own motion investigation initiated
under the PRA under this Bill, he or she is entitled to have regard
to any evidence given or document or other thing produced in
relation to that investigation under Part IV of the PRA.
The clause defines commencement day for the purposes of the
clause.
Clause 9 provides that a direction given to a member of the police force to
furnish any relevant information, produce any relevant document
or answer any relevant question under the PRA is taken, on and
after the commencement day, to be a direction given under this
Bill for the purposes of an investigation under Part 3 of this Bill.
The clause defines commencement day for the purposes of the
clause.
53
Clause 10 provides that a witness summons issued under section 17 of the
Evidence Act 1958 for the purposes of an investigation under the
PRA that was in force immediately before the commencement
day is taken, on and after that day, to be a witness summons
issued under this Bill for the purposes of an examination or
attending the Director under this Bill.
The clause further provides that a confidentiality notice issued by
the Director under the PRA is taken, on and after the
commencement day, to be a confidentiality notice issued by the
Director under clause 58 of this Bill in respect of a witness
summons issued under clause 53 of this Bill.
The clause defines commencement day for the purposes of the
clause.
Clause 11 provides that a direction given to a person under section 86PE(2)
the PRA that was in force immediately before the
commencement day, is taken to be, on and after the
commencement, to be a direction under clause 57(2) of this Bill.
The clause defines commencement day for the purposes of the
clause.
Clause 12 provides that, if immediately before the commencement day, a
person attending the Director as part of a PRA investigation and
he or she has not yet been excused from attendance, he or she is
taken to be attending an examination under Division 3 of Part 4
of this Bill.
The clause also provides that clause 62 (Preliminary
Requirements) of this Bill applies before any question is asked of
the person or before the person produces a document or thing.
The clause defines commencement day for the purposes of the
clause.
Clause 13 provides that if a request made by the Director under section
86R(1) or (3) of the PRA but has not been complied with by the
Chief Commissioner immediately before the commencement day,
then clause 48 of this Bill applies to that request on and after the
commencement day.
Clause 14 provides that clause 49 of this Bill applies on and after the
commencement day to a request referred to in section 86S of the
PRA, where the Chief Commissioner has not yet given a written
response to the Director in accordance with that section.
54
Clause 15 provides that clause 51 of this Bill applies to complaints
investigated and to investigations under Part IVA of the PRA.
Clause 51 of this Bill also applies to a document in the
possession of a relevant person or body, irrespective of whether
the document came into possession of the relevant person or
body before, on or after the commencement of clause 51.
Clause 16 provides that if a person makes a claim for legal professional
privilege under section 86VAF of the PRA prior to the
commencement day and the Director had not withdrawn the
requirement to produce the document, then the Director may
either withdraw the requirement under clause 71 of this Bill, or
apply to the Supreme Court under clause 72 of this Bill to
determine the claim.
If an application to the Supreme Court to determine the claim
was made under the PRA but the Court had not made a
determination prior to the commencement day, then the Supreme
Court is to determine the claim under clause 73 of this Bill on or
after the commencement day, as though the Director had applied
under s 72 of this Bill.
The clause defines commencement day for the purposes of the
clause.
Clause 17 provides that an approval of a law practice granted under the
PRA and in force prior to the commencement day continues in
force after that day, as though it were an approval under clause
75(2) of this Bill.
The clause also provides that an approval for legal assistance
given under the PRA and which was in force immediately before
the commencement day, continues in force after that day, as
though the approval were given under clause 76 of this Bill.
The clause defines commencement day for the purposes of the
clause.
Clause 18 provides that where the Director has issued a certificate of charge
under the PRA prior to the commencement day, and the person
so charged has been brought before the Supreme Court but the
Court has not yet made its determination before the
commencement day, then the charge is to be determined on or
after the commencement day by the Supreme Court under section
86KB of the PRA as if that section had not been repealed.
55
The clause further provides that a warrant issued under the PRA
that is in force immediately before the commencement day
continues in force in accordance with its terms as if it were an
arrest warrant issued under section 79(1)(b) of this Bill.
The clause defines commencement day for the purposes of the
clause.
Clause 19 provides that if the Director has applied for a warrant to arrest a
recalcitrant witness under the PRA and the magistrate has not
determined the application before the commencement of
clause 84 of this Bill, the application will be determined under
clause 84.
The clause further provides that a warrant issued under the PRA
that is in force immediately before the commencement of
clause 84 of this Bill continues in force in accordance with its
terms as if it were an arrest warrant issued under clause 84(2) of
this Bill.
Clause 20 provides that upon the commencement of Division 8 of Part 4 of
this Bill, an authorisation made by the Director under the PRA
for a member of staff to exercise the powers of an authorised
officer, continues as an authorisation under clause 87(2) of this
Bill.
The clause also provides that if a document or thing is seized
under the PRA before the commencement of Division 8 of Part of
this Bill and the document or thing has not been returned, the
document or thing must be returned in accordance with clause 92
of this Bill as if it had been seized under clause 89.
The clause also provides that if an application was made under
the PRA for the return of a document or thing seized but the
application had not been decided before the commencement of
Division 8 of Part this Bill, then the application is to be
determined as if it were an application under clause 91 of this
Bill as though the document or thing had been seized under
clause 89.
The clause also provides that where an application for a search
warrant was made under the PRA but that application had not
been determined before the commencement of Division 8 of
Part 4 of this Bill, then the determination is to be made as if it
were an application under clause 93 of this Bill.
A search warrant issued under the PRA is taken to be a search
warrant issued under clause 93 of this Bill upon its
commencement.
56
Clause 21 provides that the provisions of this Bill that protect persons,
documents and other things (Division 10 of Part 4) also apply to
a document of thing that has come into a person's possession in
the performance of functions under Part IVA of the PRA.
The clause also provides that clause 105 of this Bill applies to a
PRA investigation and to a person who has been called, or who
has appeared as a witness in PRA investigation.
A certificate given by the Director under the PRA that was in
force immediately before the commencement day remains in
force as if it were a certificate given by the Director under clause
106(2) of this Bill.
An objection made under the PRA to the production or inspection
of a document or thing that has not been determined prior to the
commencement day is to be determined under clause 107 of this
Bill.
The clause defines commencement day for the purposes of the
clause.
Clause 22 provides clause 115 of this Bill applies on and after the
commencement day in relation to a summons issued under
section 17 of the Evidence Act 1958 in relation to a PRA
investigation as if it were a witness summons, unless the Director
has given a written report on the summons under section 86ZB of
the PRA.
The clause also provides that clause 116 of this Act applies on
and after the commencement day in relation to a warrant issued
under the PRA as if it were a warrant issued under clause 79
or 84 of this Bill, unless the Director has given a written report
on the warrant under section 86ZC of the PRA prior to the
commencement day.
The clause also provides that clause 117 of the Bill applies on
and after the commencement day in relation to a person who was
attending the Director under the PRA, as if the person were
attending the Director at an examination, in relation to a witness
summons, or attending an examination voluntarily under this
Bill, unless the Director has given a report in relation to the
person under section 86ZD of the PRA prior to the
commencement day.
The clause defines commencement day for the purposes of the
clause.
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Clause 23 provides that a person who could have made a complaint to the
Special Investigations Monitor (SIM) under the PRA may make
a complaint to SIM under clause 118(2) of this Bill upon its
commencement. If the SIM had received a complaint but had
not commenced or completed an investigation prior to the
commencement day, then the SIM may investigate or complete
the investigation under Part 5 of this Bill.
The clause defines commencement day for the purposes of the
clause.
Clause 24 provides that a written notice of the SIM that was in force under
the PRA remains in force on and after the commencement day as
if it were a written notice under clause 124 of this Bill.
The clause defines commencement day for the purposes of the
clause.
Clause 25 provides that section 86ZL(1) of the PRA continues to apply in
relation to the financial year ending before the commencement of
Part 5 of this Bill. This is so despite the fact that 86ZL(1) is to be
repealed.
The clause also provides that for the SIM's first annual report
under clause 125 of this Bill, reference to the performance of the
SIM's functions includes the performance of his or her functions
under the PRA during the financial year to which the report
relates.
SCHEDULE 2--AMENDMENT OF ACTS
Clause 1 substitutes "section 7 of the Police Integrity Act 2008" for
"section 102A(2) of the Police Regulation Act 1958" in section
13(1)(a) of the Commissioner for Law Enforcement and Data
Security Act 2005.
Clause 2 makes a consequential amendment to the definition of the DPI in
section 115(1AA) of the Confiscation Act 1997.
Clause 3 substitutes "Police Integrity Act 2008" for "Police Regulation
Act 1958" in sections 464ZGH(2)(g)(iv) and 464ZGK(2)(g)(iv)
of the Crimes Act 1958.
Clause 4 makes consequential amendments to the definitions of Director
and Office of Police Integrity in section 3 of the Crimes
(Assumed Identities) Act 2004. The clause also makes a
consequential omission and addition to section 34(4) of the
Crimes (Assumed Identities) Act 2004.
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Clause 5 makes consequential amendments to the definitions of Director
and Office of Police Integrity in section 3 of the Crimes
(Controlled Operations) Act 2004. It also makes consequential
amendments to various other sections within the Act.
Clause 6 substitutes "Police Integrity Act 2008" for "Police Regulation
Act 1958" in section 95 of the Drugs, Poisons and Controlled
Substances Act 1981.
Clause 7 inserts definitions for Director, Police Integrity and member of
staff of the Office of Police Integrity into section 3(1) of the
Firearms Act 1996. It also inserts a new clause after clause 13
in Schedule 3 of the Firearms Act 1996.
Clause 8 substitutes "within the meaning of the Police Integrity Act
2008" for "established by section 102A(1) of the Police
Regulation Act 1958" in clause 8(1)(b)(iva) of Schedule 5 of the
Magistrates' Court Act 1989.
Clause 9 Clause 9 of Schedule 2 repeals section 12(2) of the Ombudsman
Act 1973.
Clause 10 makes a consequential amendment to the definition of Director
in section 3 of the Sex Offender Registration Act 2004.
The clause further substitutes "Police Integrity Act 2008" for
"Police Regulation Act 1958"; "section 18(2) of the Police
Integrity Act 2008" for "section 102D(3) of the PRA" and
"section 18(2) of the Police Integrity Act 2008" for "section
102D(3) of the Police Regulation Act 1958" in section 66C of
that Act.
Clause 11 makes consequential amendments to the definitions of Director
and Office of Police Integrity in section 3(1) of the Surveillance
Devices Act 1999.
Clause 12 makes consequential amendments to the definitions of Director
and Office of Police Integrity, member of staff of the Office of
Police Integrity and permitted purpose in section 3 of the
Telecommunications (Interception) (State Provisions)
Act 1988.
Clause 13 substitutes "section 7 of the Police Integrity Act 2008" for
"Part IVA of the Police Regulation Act 1958" and "Police
Integrity Act 2008" for "PRA" in various sections of the
Terrorism (Community Protection) Act 2003. The clause also
makes various other substitutions and insertions to the Act to
replace references to various provisions of the Police Regulation
Act 1958 with references to the sections of the Police Integrity
Act 2008.
59
Clause 14 makes consequential amendments to the definitions of Director,
member of staff of the Office of Police Integrity, authorised
officer and relevant person or body in the Whistleblowers
Protection Act 2001.
The clause further replaces references to various provisions of the
PRA with references to the sections of the Police Integrity Act
2008 that re-enact those provisions.
The clause repeals section 105M of the Whistleblowers
Protection Act 2001.
Clause 15 makes a consequential amendment to the definition of Director in
section 3(1) of the Witness Protection Act 1991.
60