Victorian Numbered Acts Victorian Numbered ActsFor sections 18, 18A, 18B, 18C, 18D, 18E, 18F and 18G of the Ombudsman Act 1973 substitute —
(1) For the purposes of an investigation under this Act, the Ombudsman may issue a witness summons to a person requiring the person to—
(a) attend at a specified time and place on a specified date to produce documents or other things to the Ombudsman; or
(b) attend at a specified time and place on a specified date to give evidence before the Ombudsman; or
(c) attend at a specified time and place on a specified date before the Ombudsman, to give evidence and to produce documents or other things.
(2) A witness summons issued by the Ombudsman must—
(a) be in the prescribed form; and
(b) unless subsection (3) applies, if the witness summons requires the person to whom it is directed to give evidence—state the nature of the matters about which the person is required to give evidence; and
(c) include—
(i) a statement that failure to comply with the witness summons without reasonable excuse may be an offence to which penalties apply; and
(ii) a reference to section 18B(2) and (3) as examples of what may constitute a reasonable excuse for failing to comply with the witness summons; and
(iii) a statement of how the person may object to the witness summons; and
(iv) any other prescribed matter; and
(d) be served in accordance with section 18A.
(3) The Ombudsman is not required to state the nature of the matters about which a person is to give evidence if the Ombudsman considers on reasonable grounds that doing so may—
(a) prejudice the conduct of the investigation to which the witness summons relates; or
(b) be contrary to the public interest.
(4) A person whose attendance has been required by a witness summons served under this section is required to attend at the time and place to which the investigation is adjourned or postponed without the issue or service of a further witness summons.
(1) A witness summons must be served at a reasonable time, being not less than 7 days, before the date on which the person is required to attend or otherwise comply with the witness summons.
(2) A witness summons directed to a natural person must be served by giving a copy of the witness summons to the person personally.
(3) A witness summons directed to a body corporate must be served by leaving a copy of the witness summons at the registered office or principal place of business of the body corporate with a person who, apparently—
(a) is employed at that office or place; and
(b) is at least 18 years of age.
(1) A person on whom a witness summons is served may make a claim to the Ombudsman—
(a) that the person has a reasonable excuse for failing to comply with the witness summons; or
(b) in the case of a witness summons to produce a document or other thing—that the document or other thing specified in the witness summons is not relevant to the subject matter of the investigation.
(2) Without limiting subsection (1)(a), it is a reasonable excuse for a natural person to fail to comply with a witness summons by refusing to give information to the Ombudsman if the information might tend to incriminate the person or make the person liable to a penalty in relation to—
(a) a proceeding for an offence with which the person has been charged and that has not been finally disposed of; or
(b) a proceeding for the imposition or recovery of a penalty that has been commenced against the person but not finally disposed of.
(3) Without limiting subsection (1)(a), it is a reasonable excuse for a person to fail to comply with a witness summons if the person provides proof of age to the Ombudsman in accordance with section 18E(2).
(4) If the Ombudsman is satisfied that the person's claim is made out, the Ombudsman, by further written notice served on the person, may vary or revoke the witness summons.
(5) The Ombudsman, by further written notice served on a person, may at any time on the Ombudsman's own initiative vary or revoke a witness summons served on the person.
(6) A notice varying or revoking a witness summons must be served in accordance with section 18A.
(1) If it appears that it is not reasonably practicable to serve a witness summons in accordance with section 18A, the Ombudsman may apply to the Supreme Court for an order that the witness summons be served by another means.
(2) On an application under subsection (1), if the Supreme Court is satisfied that it is not reasonably practicable to serve a witness summons in accordance with section 18A, the Court may—
(a) order that the witness summons be served by any other means the Court considers appropriate; or
(b) make an order for substituted service.
Within 3 days after the issue of a witness summons, the Ombudsman must give a written report to the Victorian Inspectorate specifying—
(a) the name of the person summoned; and
(b) the reasons why the summons was issued.
(1) A witness summons directed to a person under the age of 16 years at the date of issue of the witness summons has no effect.
(2) A person who claims to be under the age of 16 years at the date of issue of a witness summons directed to the person must provide proof of age to the Ombudsman.
(1) This section applies to a compulsory appearance or a voluntary appearance.
(2) The Ombudsman may require a person attending an investigation of the Ombudsman, whether in accordance with a witness summons or otherwise, to give evidence or answer questions on oath or affirmation.
(3) The Ombudsman, or a member of the Ombudsman's staff who is authorised to do so by the Ombudsman, may administer an oath or affirmation to a person for the purposes of subsection (2).
(4) This section does not apply to a voluntary appearance of a child witness under section 18O.
A person who is duly served with a witness summons must not, without reasonable excuse, refuse or fail to comply with the witness summons.
Penalty: 240 penalty units or imprisonment for 2 years.
Note
See also section 72 of the Criminal Procedure Act 2009 which deals with the evidential burden of proof.
(1) A person who is duly served with a witness summons under section 18(1) must not, without reasonable excuse—
(a) refuse or fail to take an oath or make an affirmation when required to do so; or
(b) refuse or fail to answer a question that the person is required to answer by the Ombudsman.
Penalty: 240 penalty units or imprisonment for 2 years.
Note
See also section 72 of the Criminal Procedure Act 2009 which deals with the evidential burden of proof.
(2) A person does not commit an offence against subsection (1) unless, before the person is required to take the oath or make the affirmation or answer the question, the Ombudsman informs the person that refusal or failure to do so without reasonable excuse is an offence.
(1) The Ombudsman may apply to the Supreme Court for an order under subsection (2), if the Ombudsman is satisfied that a person has, without reasonable excuse, failed to comply with a witness summons or a requirement under section 18F.
(2) On an application under subsection (1), the Supreme Court may order the person to comply with the witness summons or the requirement within the period specified by the Court.
For the purposes of an investigation under this Act, the Ombudsman may take a statutory declaration from—
(a) a person appearing at a compulsory appearance or a voluntary appearance; or
(b) any other person.
(1) Any provision of another enactment or any rule of law that—
(a) prohibits the disclosure of information or production of a document or other thing by a person in the service of the Crown, an authority or a public interest disclosure entity; or
(b) imposes an obligation to maintain secrecy on a person in the service of the Crown, an authority or a public interest disclosure entity; or
(c) imposes a duty of confidentiality in relation to the disclosure of information or production of a document or other thing—
does not apply to the disclosure of information or production of a document or other thing for the purposes of an investigation under this Act or a witness summons.
(2) The Crown is not entitled to assert any privilege in relation to a requirement to produce a document or other thing or to give information in relation to an investigation under this Act or a witness summons.
(3) Any privilege referred to in subsection (2) is abrogated.
(4) A person is not, in relation to an investigation under this Act or a witness summons, entitled to the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008 .
(5) Subject to subsections (1), (2), (3) and (4), a person must not be compelled to produce any document or other thing or to give any evidence for the purposes of an investigation under this Act or a witness summons which the person could not be compelled to produce or give in a proceeding before a court.
(1) An employer must not dismiss or threaten to dismiss an employee or take or threaten to take any other detrimental action against an employee because, or in the belief that, the employee has given information to the office of the Ombudsman.
Penalty: 120 penalty units or imprisonment for 12 months.
(2) It is a defence in a proceeding for an offence against subsection (1) if the reason referred to in subsection (1) was not a reason for the dismissal or other detrimental action.
(3) Subsection (1) does not apply if an employer dismisses or threatens to dismiss an employee or takes or threatens to take any other detrimental action against an employee because the employee unlawfully gave information to the office of the Ombudsman.
(1) A person may seek legal advice from, and be represented by, a legal practitioner in relation to—
(a) an enquiry or investigation conducted by the Ombudsman under this Act; and
(b) the person's rights, liabilities, obligations and privileges under this Act or the Public Interest Disclosures Act 2012 .
(2) Without limiting subsection (1) but subject to subsection (3), a person may seek legal advice from, and be represented by, a legal practitioner in relation to—
(a) the issue of a witness summons directed to the person; or
(b) a compulsory appearance or a voluntary appearance by the person; or
(c) a proposed report, or draft or part of a proposed report, under this Act received by the person.
(3) The Ombudsman may direct a person in writing not to seek legal advice or representation from a specified legal practitioner in relation to any or all of the matters referred to in subsection (2) if the Ombudsman considers on reasonable grounds that the enquiry or investigation to which the matter relates may be prejudiced because the legal practitioner is—
(a) appearing at a compulsory appearance; or
(b) representing another person who is appearing at a compulsory appearance; or
(c) involved, or suspected of being involved, in a matter—
(i) that is the subject of an enquiry or investigation by the Ombudsman under this Act; or
(ii) that is being investigated by the IBAC or the Victorian Inspectorate; or
(d) representing a person involved, or suspected of being involved, in a matter—
(i) that is the subject of an enquiry or investigation by the Ombudsman under this Act; or
(ii) that is being investigated by the IBAC or the Victorian Inspectorate.
(4) A direction under subsection (3)—
(a) may be given to a person at any time; and
(b) takes effect at the time it is given to the person.
(5) If the Ombudsman gives a direction to a person under subsection (3) in relation to the issue of a witness summons or a compulsory appearance, the Ombudsman must allow the person at least 3 days after the day the direction is given to obtain representation by another legal practitioner before requiring the person to comply with the witness summons or appear at the compulsory appearance.
(6) Within 24 hours after giving a direction under subsection (3), the Ombudsman must inform the Victorian Inspectorate in writing of the direction and the reasons for giving it.
(1) Within a reasonable time before a person makes a voluntary appearance, the Ombudsman must advise the person of the nature of the matters in respect of which the person is to be asked questions.
(2) Despite subsection (1), the Ombudsman is not required to advise the person if the Ombudsman forms the opinion on reasonable grounds that this may prejudice the conduct of the investigation to which the appearance relates or may be contrary to the public interest.
(3) To avoid doubt, the Ombudsman is not required to give reasons for forming the opinion referred to in subsection (2).
(1) A person who is under the age of 16 years but of or over the age of 10 years (a child witness ) may appear in an investigation by voluntary appearance.
(2) Within a reasonable time before the voluntary appearance of a child witness, the Ombudsman must give the advice required under section 18N to—
(a) the child witness; and
(b) either—
(i) a parent or guardian of the child witness; or
(ii) an independent person if the Ombudsman—
(A) is unable to advise a parent or guardian because the parent or the guardian is unable to be found or is unavailable; or
(B) considers on reasonable grounds that to advise a parent or guardian would prejudice the conduct of the investigation or cause a risk to the safety of the child witness.
(3) In addition, the Ombudsman must advise the child witness how the Ombudsman may use any information provided by the child witness during the appearance.
(4) During the voluntary appearance by the child witness—
(a) any answer given or any information, document or thing produced by the child witness; or
(b) any evidence obtained as a direct or indirect consequence of an answer given or information, document or thing produced by the child witness—
that might tend to incriminate the child witness or make the child witness liable to a penalty is not admissible in evidence against the child witness before any court or any person acting judicially.
(5) For the purposes of this section, an independent person is—
(a) a person nominated by, or who is acceptable to, the child witness; or
(b) if no person has been nominated by, or is acceptable to, the child witness, a person chosen by the Ombudsman who—
(i) is not involved in the subject matter of the investigation; and
(ii) where practicable, is—
(A) involved in the care or supervision of the child witness; and
(B) of the same gender as the child witness or, if the child witness identifies as being of a particular gender, of that gender.
(1) This section applies to a compulsory appearance and a voluntary appearance.
(2) Before the person appearing is asked any questions or required to produce any document, the presiding officer must—
(a) confirm the age of the person if the presiding officer considers that the person may be under the age of 18 years; and
(b) release the person from the appearance if the person—
(i) is under the age of 10 years; or
(ii) in the case of a compulsory appearance—is under the age of 16 years; and
(c) give the person a copy of the statement (if any) prescribed for the purposes of this subsection; and
(d) inform a legal practitioner who is representing the person of—
(i) any non-disclosure requirements that apply under this Act; and
(ii) in the case of an investigation on a public interest complaint, the confidentiality requirements under Part 7 of the Public Interest Disclosures Act 2012 ; and
(e) in the case of a voluntary appearance, inform the person that—
(i) the person's participation is voluntary and the person may leave at any time; and
(ii) the person cannot be compelled to answer any question or provide any document; and
(f) take any other actions prescribed for the purposes of this subsection.
(3) In an investigation on a public interest complaint, before the person appearing is asked any questions or required to produce any document, the presiding officer must—
(a) advise the person that the person may be subject to further confidentiality obligations under Part 7 of the Public Interest Disclosures Act 2012 ; and
(b) advise the person of the nature of those requirements.
( 4) The presiding officer must immediately release a person from an appearance if, at any time during the appearance, the presiding officer becomes aware that the person appearing—
(a) is under the age of 10 years; or
(b) in the case of a compulsory appearance—is under the age of 16 years.
(5) The presiding officer must immediately release a person from a voluntary appearance if, at any time during the appearance, the person advises the presiding officer that the person—
(a) wants to leave the appearance; or
(b) does not want to answer a question; or
(c) does not want to produce a document.
(6) If, before the questioning commences or at any time during the appearance, the person appearing does not have sufficient knowledge of the English language to enable the person to understand questions asked or to answer those questions, the presiding officer must provide for a competent interpreter to be present.
(7) If the person appearing is under the age of 18 years, the person must be accompanied by a parent, guardian or an independent person.
(8) The presiding officer must direct that an independent person be present during the appearance if—
(a) the presiding officer believes the person appearing has a mental impairment; or
(b) the person appearing provides the presiding officer with reasonably satisfactory medical evidence that the person has a mental impairment.
(9) The Ombudsman may, at the request of the person appearing, allow a person who is chosen by the person appearing to be present during the appearance for the purpose of providing support to the person appearing.
(10) For the purposes of this section, an independent person is—
(a) a person nominated by, or who is acceptable to, the person appearing; or
(b) if no person has been nominated by, or is acceptable to, the person appearing, a person chosen by the Ombudsman who—
(i) is not involved in the subject matter of the investigation; and
(ii) in the case of a person appearing who is under the age of 18 years and where practicable, is—
(A) involved in the care or supervision of the person appearing; and
(B) of the same gender as the person appearing or, if the person appearing identifies as being of a particular gender, of that gender.
(1) This section applies to a compulsory appearance.
(2) The presiding officer must ensure that an audio or video recording of the appearance is made.
(3) Subject to subsection (4), evidence of anything said by the person appearing during the appearance is inadmissible as evidence against any person in any proceeding before a court or tribunal unless—
(a) an audio or video recording of the appearance is made; and
(b) the audio or video recording is available to be tendered in evidence.
(4) A court may admit evidence of anything said by the person appearing during the appearance that is otherwise inadmissible because of subsection (3) if the court is satisfied that there are exceptional circumstances that justify the admission of the evidence.
(5) Unless the Ombudsman considers on reasonable grounds that doing so may prejudice an investigation under this Act, the Ombudsman must provide the person appearing with a copy of—
(a) the audio or video recording; and
(b) any transcript created.
(6) If the Ombudsman determines not to provide the person with a copy of the audio or video recording and any transcript in accordance with subsection (5), the Ombudsman must allow the person to listen to or view the recording of the person's evidence at the premises of the Ombudsman at any reasonable time.
(7) As soon as possible after the appearance, the Ombudsman must provide the Victorian Inspectorate with a copy of the audio or video recording and any transcript of the appearance.
(1) This section applies to a compulsory appearance.
(2) A legal practitioner representing the person appearing or assisting the presiding officer at the appearance has the same protection and immunity as a legal practitioner has in representing a party in a proceeding in the Supreme Court.
(3) The person appearing has the same protection and immunity as a witness has in a proceeding in the Supreme Court.
(1) Any document (other than a witness summons or a confidentiality notice) under this Act or the regulations required or authorised to be given to or served on any person (other than a body corporate) may be served by—
(a) giving it or serving it personally on the person; or
(b) sending it by post or electronic communication to the person at that person's usual or last known place of residence or business; or
(c) leaving it at that person's usual or last known place of residence with a person on the premises who is apparently at least 16 years old; or
(d) leaving it at that person's usual or last known place of business with a person who is apparently employed at the premises and who is apparently at least 16 years old.
(2) Any document under this Act or the regulations required or authorised to be given to or served on a body corporate may be served by—
(a) giving it or serving it on the body corporate at the head office, registered office or principal office of the body corporate; or
(b) sending it by post or electronic communication to the body corporate at the head office, registered office or principal office of the body corporate.
(3) Subsection (2) is in addition to, and not in derogation from, sections 109X and 601CX of the Corporations Act.".