Victorian Numbered Acts Victorian Numbered ActsAfter section 61B of the Whistleblowers Protection Act 2001 insert —
(1) This section applies if a person attends the Director in the course of an investigation for the purposes of providing information, producing a document or thing or giving evidence (whether voluntarily or in answer to a summons issued under section 17 of the Evidence Act 1958 or otherwise).
(2) The Director must ensure that the person's attendance is video-recorded.
(3) Subject to sub-section (4), evidence of anything said by the person during the attendance is inadmissible as evidence against any person in any proceedings unless the attendance in its entirety was video-recorded and the video-recording is available to be tendered in evidence.
(4) A court may admit evidence of anything said by a person during an attendance that is otherwise inadmissible by reason of sub-section (3) if the court is satisfied on the balance of probabilities that the circumstances—
(a) are exceptional; and
(b) justify the reception of the evidence.
(1) Despite anything to the contrary in the Evidence Act 1958 —
(a) the Director must not issue a summons under section 17 of that Act directed to a person known to be under the age of 16 years; and
(b) a summons issued under that section must include a statement that if the person summoned is under the age of 16 years at the date of issue of the summons, the person need not comply with the summons; and
(c) a summons directed to a person under the age of 16 years at the date of issue of the summons has no effect.
(2) A person who claims to be under the age of 16 years at the date of issue of a summons directed to the person must give notice in writing and proof of age to the Director.
(3) If the Director suspects that a person attending the Director in answer to a summons may be under the age of 18 years, the Director must confirm the person's age before any question is asked of the person or the person produces a document or other thing.
(4) If, at any time during the attendance of a person in answer to a summons, the Director becomes aware that the person is under the age of 16 years, the Director must immediately release the person from all compliance with the summons.
(5) If a person required to attend the Director is a person under the age of 18 years, the Director must direct—
(a) that a parent or guardian of the person or an independent person is to be present during the person's attendance, if the person so wishes; and
(b) that the person may confer with the parent, guardian or independent person before providing any information, producing any document or thing or giving any evidence.
(6) If a person required to attend the Director is a person believed by the Director to have a mental impairment, the Director must direct—
(a) that an independent person is to be present during the person's attendance, if the person so wishes; and
(b) that the person may confer with the independent person before providing any information, producing any document or thing or giving any evidence.
(7) In this section—
"mental impairment" includes impairment because of mental illness, intellectual disability, dementia or brain injury.
(1) An authorised officer may—
(a) enter at any time premises occupied by a public authority at which the authorised officer reasonably believes there are documents or other things at the premises that are relevant to an investigation; and
(b) inspect or copy any document or other thing found at any premises entered under paragraph (a); and
(c) do anything that it is necessary or convenient to do to enable an inspection to be carried out under this section.
(2) On exercising a power of entry under this section, the authorised officer must—
(a) identify himself or herself to a person at the premises; and
(b) announce that he or she is authorised to enter the premises.
(3) An authorised officer must not inspect or copy a document or thing under sub-section (1)(b) if—
(a) a person at the premises claims that the document or thing is the subject of legal professional privilege; or
(b) no claim is made that the document or thing is the subject of legal professional privilege but—
(i) it appears to the authorised officer that the document or thing may be the subject of legal professional privilege; and
(ii) it does not appear to the authorised officer that the person entitled to the benefit of that privilege has consented to the inspection or production.
Note: Section 61BE sets out the procedure to be followed if the authorised officer wants to inspect or copy a document or thing that may be the subject of legal professional privilege.
(4) An authorised officer does not have authority under this section to enter any part of the premises that is used for residential purposes.
(1) An authorised officer who exercises a power of entry under section 61BB may seize a document or thing at the premises if the authorised officer reasonably suspects that—
(a) the document or other thing is relevant to an investigation; and
(b) if the document or other thing is not immediately seized—
(i) it may be concealed or destroyed; or
(ii) its forensic value may be diminished.
(2) An authorised officer must not seize a document or thing under sub-section (1) if—
(a) a person at the premises claims that the document or thing is the subject of legal professional privilege; or
(b) no claim is made that the document or thing is the subject of legal professional privilege but—
(i) it appears to the authorised officer that the document or thing may be the subject of legal professional privilege; and
(ii) it does not appear to the authorised officer that the person entitled to the benefit of that privilege has consented to the seizure.
Note: Section 61BE sets out the procedure to be followed if the authorised officer wants to seize a document or thing that may be the subject of legal professional privilege.
(3) A document or other thing seized under this section cannot be used for the purposes of any investigation Part until—
(a) the period for making an application under section 61BG for return of the document or thing has expired; or
(b) if an application is made within that period—the application and any appeal in relation to it have been finally determined.
(1) If an authorised officer seizes—
(a) a document, disk or tape or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied—
under section 61BC, the authorised officer, on request by a person at the premises, must give a copy of the thing or information to the person as soon as practicable after the seizure.
(2) The authorised officer may refuse a request under sub-section (1) if—
(a) the Director is satisfied that the work involved in copying the thing or information would substantially and unreasonably—
(i) divert the resources of the Office of Police Integrity from its other operations; or
(ii) interfere with the performance of the Director's functions; or
(b) the Director is of the opinion that it is not in the public interest to give a copy of the thing or information to the person.
(3) An authorised officer must not refuse a request under sub-section (1), unless the authorised officer has—
(a) given the person who made the request a written notice stating an intention to refuse the request; and
(b) given the person a reasonable opportunity to make a further request for a copy of the thing or information in a form that would remove the ground for refusal; and
(c) as far as is reasonably practicable, provided the person with any information that would assist the making of the further request in such a form.
(4) An authorised officer is not required to provide any information under sub-section (3)(c) if the Director is of the opinion that it is not in the public interest for the information to be provided.
(5) If an authorised officer refuses a request under sub-section (1)—
(a) the authorised officer must provide a receipt for the thing seized; and
(b) the Director, on request by the chief executive of the public authority at whose premises the thing was seized, must permit the chief executive to have access to the thing or information unless the Director is of the opinion that it is not in the public interest for the chief executive to have access.
(6) The Director must not refuse a request for access under sub-section (5)(b), unless the Director has—
(a) given the chief executive a written notice stating an intention to refuse to give access; and
(b) given the chief executive a reasonable opportunity to make a further request for access in a form that would remove the ground for refusal; and
(c) as far as is reasonably practicable, provided the chief executive with any information that would assist the making of the further request in such a form.
(7) The Director is not required to provide any information under sub-section (6)(c) if the Director is of the opinion that it is not in the public interest for the information to be provided.
(8) For the avoidance of doubt, an authorised officer or the Director is not required to give reasons for refusing a request under this section.
(1) This section applies if—
(a) any of the circumstances referred to in section 61BB(3) or 61BC(2) apply; and
(b) the authorised officer still wants to inspect, copy or seize the document or thing (as the case requires).
(2) In the circumstances referred to in section 61BB(3)(a) or 61BC(2)(a), the authorised officer must require the person claiming that the document or thing is the subject of legal professional privilege (the "claimant" ) to seal the document or thing immediately, or arrange for it to be sealed immediately, and give it, or arrange for it to be given, to the authorised officer.
(3) The claimant must immediately seal the document or thing, or arrange for it to be sealed, under the authorised officer's supervision and give it, or arrange for it to be given, to the authorised officer.
Penalty: 120 penalty units or imprisonment for 12 months or both.
(4) In the circumstances referred to in section 61BB(3)(b) or 61BC(2)(b), the authorised officer may take possession of the document or thing and must seal the document or thing immediately.
(5) The authorised officer must immediately give the sealed document or thing to a registrar of the Magistrates' Court to be held in safe custody.
(6) The registrar must keep the sealed document or thing in safe custody until—
(a) an application is made to the Magistrates' Court under section 61BF to decide whether or not the document or thing is the subject of legal professional privilege; or
(b) the end of 3 court days after the day on which the sealed document or thing is given to the registrar, if an application has not been made under section 61BF; or
(c) the registrar is told by a person who appears to be entitled to the benefit of legal professional privilege and the authorised officer that agreement has been reached on the disposal of the sealed document or thing.
(7) The registrar must—
(a) if an application is made to the Magistrates' Court under section 61BF—dispose of the sealed document or thing in the way ordered by the court; or
(b) if an application is not made by the end of 3 court days after the day on which the sealed document or thing is given to the registrar—give the sealed document or thing to a person who appears to be entitled to the benefit of legal professional privilege; or
(c) if a person who appears to be entitled to the benefit of legal professional privilege and the authorised officer give the registrar notice that an agreement on the disposal of the sealed document or thing has been reached—dispose of the sealed document or thing in the way agreed.
(8) The registrar is entitled to open and inspect the sealed document or thing solely for the purpose of performing a function under sub-section (6)(c) or (7)(b) or (c).
(9) A person must not open a sealed document or thing unless authorised to open it under this Act or a court order.
Penalty: 120 penalty units or imprisonment for 12 months or both.
(1) Within 3 court days after an authorised officer gives a sealed document or thing to a registrar of the Magistrates' Court under section 61BE, the Director must apply to the Magistrates' Court to determine whether or not the document or thing is the subject of legal professional privilege.
(2) The Magistrates' Court must decide whether or not the sealed document or thing is the subject of legal professional privilege and for that purpose the magistrate and any other person authorised by the Court may open and inspect the sealed document or thing.
(3) If the Magistrates' Court decides that the sealed document or thing is the subject of legal professional privilege, the Court may order that the document or thing be given to a person entitled to the benefit of the privilege.
(4) If the Magistrates' Court decides that the sealed document or thing is not the subject of legal professional privilege, the Court may order that the document or thing be released to an authorised officer for the purpose of the exercise of the authorised officer's powers under this Division.
(1) Within 7 days after a document or thing is seized by an authorised officer under section 61BC, an interested person may apply to the Magistrates' Court for an order setting aside the seizure and requiring the Director to deliver the document or thing to the interested person.
(2) On an application under sub-section (1), the
Magistrates' Court may make an order setting aside the seizure and requiring
the Director to deliver the document or thing to the interested person if the
Court is satisfied that the grounds for the seizure did not, or no longer,
exist.
s. 113
(3) The interested person has the burden of proving that the grounds for the seizure did not, or no longer, exist.
(4) In this section—
"interested person" in relation to a document or thing, means—
(a) the chief executive of the public authority at whose premises the document or thing was seized; or
(b) a person authorised by the chief executive to apply under this section on the chief executive's behalf; or
(c) any other person who claims to have a legal or equitable interest in the document or thing.
(1) The Director must return a document or thing seized under section 61BC to the chief executive of the public authority at whose premises it was seized—
(a) if the thing is required as evidence relating to a prosecution or an appeal from a prosecution; or
(b) immediately the Director stops being satisfied that its retention is necessary for the purposes of—
(i) an investigation; or
(ii) a report on an investigation.
(2) This section is subject to any order of the Magistrates' Court under section 61BG.'.