Victorian Numbered Acts Victorian Numbered ActsAfter Division 1 of Part IVA of the Police Regulation Act 1958 insert —
For the purposes of this Division, a "protected person" is—
(a) the Director;
(b) the Acting Director;
(c) a member of staff of the Office of Police Integrity;
(c) a person who has taken an oath or made an affirmation under section 102D(3);
(d) a person (other than a natural person) engaged under section 102E(1)(b), if any officer or employee of the person has taken an oath or made an affirmation under section 102D(3);
(e) the members of a body engaged under section 102E(1)(b), if any member, officer or employee of the body has taken an oath or made an affirmation under section 102D(3).
For the purposes of this Division, a protected document or other thing is a document or other thing the production or inspection of which (as the case requires)—
(a) is likely to—
(i) reveal the identity of an informer or put an informer's safety at risk; or
(ii) reveal the identity of a person who has been called, or who has appeared, as a witness in an investigation by the Director under this Part, or put such a person's safety at risk; or
(iii) reveal the identity of a person who has provided the Director with information relating to an investigation by the Director under this Part, or put such a person's safety at risk; or
(iv) reveal the identity of a person whose name appears in any evidence given or information provided to the Director relating to an investigation by the Director under this Part, or put such a person's safety at risk; or
(v) reveal the identity of a person who is or has been the subject of an investigation by the Director under this Part, or put such a person's safety at risk; or
(b) is likely to place at risk an ongoing investigation—
(i) under this Part by the Director; or
(ii) by the force; or
(c) is likely to risk the disclosure of any investigative method used by the Director or by the force; or
(d) is otherwise not in the public interest.
(1) This section applies to any legal proceeding (other than a criminal proceeding) or to any proceeding before the Appeals Board.
(2) In any proceeding to which this section applies, a protected person cannot be compelled to produce any document or other thing that has come into his or her possession in the performance of functions under this Act, if the Director certifies in writing that, in the Director's opinion, the document or thing is a protected document or other thing.
(3) In this section a reference to a document or other thing includes a reference to part of a document or other thing.
(1) This section applies if, in a criminal proceeding—
(a) a subpoena is issued for a protected person to produce any document or other thing that has come into his or her possession in the performance of functions under this Act; and
(b) the protected person objects to the production of the document or other thing in the proceeding, or to the inspection of the document or other thing by one or more parties to the proceeding, on the basis that the document or other thing is a protected document or other thing.
(2) The protected person must give notice of the
objection to each party to the proceeding, indicating the category of the
document or other thing, and apply to the court to determine the
application—
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(a) by confidential affidavit that is not disclosed to one or more of the parties or any representative of those parties; or
(b) at a hearing held in closed court in which the protected person and each party to the proceeding has a right to be heard by the court regarding the objection; or
(c) at a hearing held without notice to, and without the presence of, one or more of the parties or any representative of those parties; or
(d) by any combination of the methods set out in paragraphs (a), (b) and (c).
(3) If the court is satisfied that it is not in the public interest to determine the application by the method elected by the protected person, the court may determine the application by any other method set out in subsection (2).
(4) In deciding which method to determine the application, the court must take into account—
(a) the public interest in protecting the confidentiality of the Director's investigative techniques and documents and other things in the Director's possession; and
(b) the extent to which the method of determining the objection may disclose information that—
(i) reveals the identity of an informer or put an informer's safety at risk; or
(ii) reveals the identity of a person who has been called, or who has appeared, as a witness in an investigation by the Director under this Part, or put such a person's safety at risk; or
(iii) reveals the identity of a person who has provided the Director with information relating to an investigation by the Director under this Part, or put such a person's safety at risk; or
(iv) reveals the identity of a person whose name appears in any evidence given or information provided to the Director relating to an investigation by the Director under this Part, or put such a person's safety at risk; or
(v) reveals the identity of a person who is or has been the subject of an investigation by the Director under this Part, or put such a person's safety at risk; or
(vi) places at risk an ongoing investigation—
(A) under this Part by the Director; or
(B) by the force; or
(vii) places at risk the disclosure of any investigative method used by the Director or by the force; or
(viii) it would otherwise not be in the public interest to disclose.
(5) If the court determines the objection by the method set out in subsection (2)(a), the court may require the protected person to provide the court with any further confidential affidavits the court requires to determine the objection.
(6) Without limiting any other basis on which the court may refuse to require production of the document or other thing, or to allow a party to the proceeding to inspect the document or other thing, the court must refuse to so require or allow if the court determines that the document or other thing is a protected document or other thing.
(7) Subsection (6) does not apply if the party seeking production or inspection of the document or other thing satisfies the court that exceptional circumstances exist that require the production or inspection of the document or other thing.
(8) In this section a reference to a document or other thing includes a reference to part of a document or other thing.
(1) If a court decides to determine an objection at a hearing referred to in section 86KH(2)(c), the court may appoint a special counsel to represent the interests of a party to the proceeding at the hearing.
(2) A 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.
(3) At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the objection, the special counsel may communicate with the party whose interests he or she is representing, or any representative of that party, for the purpose of obtaining information from the party or representative in relation to the criminal proceeding.
(4) At any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the objection, the special counsel—
(a) must not take instructions from the party whose interests he or she is representing, or from any representative of that party; and
(b) may communicate to that party or a representative of that party any order made by the court at or in relation to the hearing; and
(c) 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.
(1) A protected person is not liable, whether on the ground of lack of jurisdiction or on any other ground, to any civil or criminal proceedings to which they would have been liable apart from this section in respect of any act purported to be done under this Act unless the act was done in bad faith.
(2) No civil or criminal proceedings may be brought against a protected person in respect of any act of a kind referred to in subsection (1) without the leave of the Supreme Court.
(3) The Supreme Court may not give leave unless it is satisfied that there is substantial ground to believe that the person to be proceeded against has acted in bad faith.
(4) Without limiting the generality of subsections (1) and (2), no civil or criminal proceeding may be brought against the Director in respect of the giving of a certificate by the Director under section 86KG, unless the certificate was given in bad faith.
(5) Despite anything in this section—
(a) an order cannot be issued restraining the Director from carrying out or compelling the Director to carry out any investigation; and
(b) a proceeding cannot be brought against the Director seeking the issue of such an order.
(6) A protected person cannot be called to give evidence in any court or in any legal proceedings or before the Appeals Board in respect of any matter coming to his or her knowledge in the exercise of functions under this Act.
(1) A legal practitioner representing a person in the course of an investigation by the Director under this Part, or a legal practitioner assisting the Director in the course of an investigation by the Director under this Part, has the same protection and immunity as a legal practitioner has in representing a party in a proceeding in the Supreme Court.
(2) A person appearing as a witness in the course of an investigation by the Director under this Part has the same protection and immunity as a witness has in a proceeding in the Supreme Court.".