Victorian Numbered Acts Victorian Numbered ActsFor Division 3 of Part IVA of the Police Regulation Act 1958 substitute —
(1) In this Division—
"authorised officer" means—
(a) the Director; or
(b) a member of staff of the Office of Police Integrity who is authorised under subsection (2); or
(c) a person who has taken an oath or made an affirmation under section 102D(3) and who is authorised under subsection (2).
(2) The Director may authorise a member of staff of the Office of Police Integrity or a person who has taken an oath or made an affirmation under section 102D(3) to exercise the powers of an authorised officer under this Division.
(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 that are relevant to an investigation by the Director under this Part; and
(b) search the premises for documents or other things that are relevant to an investigation by the Director under this Part; and
(c) inspect or copy any document or other thing found at the premises; and
(d) do anything that it is necessary or convenient to do to enable a search and 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 who is apparently—
(i) in charge of the premises; or
(ii) a public officer of the public authority; and
(b) announce that he or she is authorised to enter the premises.
(3) The chief executive of a public authority must give, and must ensure that every other public officer of the authority gives, an authorised officer any assistance the authorised officer reasonably requires to enable the authorised officer to exercise powers under this section.
(4) An authorised officer does not have authority under this section to enter any part of premises that is used for residential purposes.
(1) An authorised officer who exercises a power of entry under section 86VB may seize a document or other thing at the premises if the authorised officer reasonably suspects that—
(a) the document or other thing is relevant to an investigation by the Director under this Part; 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) A document or other thing seized under this section cannot be used for the purposes of any investigation until—
(a) the period for making an application under section 86VE 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.
(3) The chief executive of the public authority must make available, and must ensure that every other public officer of the authority at the premises makes available, to the authorised officer any facilities or equipment that are reasonably necessary for the authorised officer to seize a document or other thing under this section.
(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 86VC, 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 subsection (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 subsection (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 for access in such a form.
(4) An authorised officer is not required to provide any information under subsection (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 subsection (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 subsection (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 for access in such a form.
(7) The Director is not required to provide any information under subsection (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) Within 7 days after a document or other thing is seized by an authorised officer under section 86VC, 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 other thing to the interested person.
(2) On an application under subsection (1), the Magistrates' Court may make an order setting aside the seizure and requiring the Director to deliver the document or other thing to the interested person if the Court is satisfied that the grounds for the seizure did not, or no longer, exist.
(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 other thing, means—
(a) the chief executive of the public authority at whose premises the document or other 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 other thing.
(1) The Director must return a document or other thing seized under section 86VC to the chief executive of the public authority at whose premises it was seized if the document or other thing is required as evidence relating to a legal proceeding.
(2) The Director must immediately return a document or other thing seized under section 86VC to the chief executive of the public authority at whose premises it was seized if the Director stops being satisfied that its retention is necessary for the purposes of—
(a) an investigation by the Director under this Part; or
(b) a report on an investigation by the Director under this Part; or
(c) a legal proceeding arising out of, or connected with, an investigation by the Director under this Part.
(3) This section is subject to any order of the Magistrates' Court under section 86VE.
(1) The Director may apply to a magistrate for the issue of a search warrant in relation to particular premises if the Director believes, on reasonable grounds that entry to the premises is necessary for the purpose of an investigation by the Director under this Part.
(2) If a magistrate is satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for the belief under subsection (1), the magistrate may issue a search warrant authorising any person named in the warrant—
(a) to enter and search the premises named or described in the warrant and inspect any document or other thing at those premises; and
(b) to make a copy of any document relevant, or that the person reasonably considers may be relevant, to the investigation; and
(c) to take possession of any document or other thing that the person considers relevant to the investigation.
(3) A search warrant issued under this section must state—
(a) the purpose for which the search is required; and
(b) any conditions to which the warrant is subject; and
(c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and
(d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.
(4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this section.
(1) On executing a search warrant, the person executing the warrant—
(a) must announce that he or she is authorised by the warrant to enter the premises; and
(b) if the person has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.
(2) A person executing a warrant need not comply with subsection (1) if he or she believes, on reasonable grounds that immediate entry to the premises is required to ensure—
(a) the safety of any person; or
(b) that the effective execution of the search warrant is not frustrated.
(3) If the occupier is present at premises where a search warrant is being executed, the person executing the warrant must—
(a) identify himself or herself to the occupier; and
(b) give the occupier a copy of the warrant.
(4) If the occupier is not present at premises where a search warrant is being executed, the person executing the warrant must—
(a) identify himself or herself to a person at the premises who is apparently over the age of 18 years; and
(b) give that person a copy of the warrant.
(5) If there is no person apparently over the age of 18 years present at premises where a search warrant is being executed, the person executing the warrant must leave a copy of the warrant in a conspicuous place at the premises, unless the Director has given a direction under subsection (6).
(6) The Director may direct that a copy of a search warrant not be left at premises where no person apparently over the age of 18 years is present if the Director is satisfied that it would be contrary to the public interest for the copy to be left at the premises.
(1) If a person takes possession of—
(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 a warrant the person, on request by the occupier, must give a copy of the thing or information to the occupier as soon as practicable after taking possession of it.
(2) If a person takes possession of a thing under a warrant and has not provided a copy of the thing or information under subsection (1) the person must provide a receipt for that thing as soon as practicable after taking possession of it.
(1) The Director must take all reasonable steps to return a document or other thing seized under a warrant to the person from whom it was seized if the document or other thing is required as evidence relating to a legal proceeding.
(2) The Director must immediately take all reasonable steps to return a document or other thing seized under a warrant to the person from whom it was seized if the Director stops being satisfied that its retention is necessary for the purposes of—
(a) an investigation by the Director under this Part; or
(b) a report on an investigation by the Director under this Part; or
(c) a legal proceeding arising out of, or connected with, an investigation by the Director under this Part.
(1) A person executing a search warrant may—
(a) seek the assistance of another person (an assistant ) over the age of 18 years who possesses specialised skills or technical knowledge necessary for exercising a power authorised by the warrant; or
(b) take onto premises any equipment, vehicle, animal or material the person reasonably requires for exercising the power.
(2) The person may authorise the assistant—
(a) to take stated action at the premises; and
(b) to exercise stated powers the person is authorised by the warrant to exercise.
(3) However, the person cannot authorise the assistant to arrest a person.
(4) The person must inform the assistant—
(a) of action the assistant is authorised to take; and
(b) of the assistant's powers under this section.
(5) Subsection (1) applies, in relation to animals, despite any other Act or law (other than the Charter of Human Rights and Responsibilities).
The Chief Commissioner of Police must ensure that members of Victoria Police give the person executing a search warrant any assistance that person reasonably requires to enable that person, or an assistant authorised under section 86VK, to exercise the powers authorised by the warrant.
(1) This section applies if—
(a) a person executing a search warrant (the searcher ) wishes to inspect, copy or seize a document or other thing under the warrant; and
(b) a person who is entitled to claim the privilege (the claimant ) claims that the document or other thing is subject to privilege.
(2) The searcher must consider the claim of privilege and either—
(a) withdraw the requirement in relation to which the claim is made; or
(b) require the claimant to seal the document or other thing immediately, and give it to the searcher.
(3) The searcher must not inspect the document or other thing in considering the claim of privilege.
(4) If the searcher requires the claimant to give the document or other thing to the searcher under subsection (2)(b), the searcher must—
(a) notify the Director as soon as
practicable; and
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(b) give the sealed document or other thing, or cause it to be given, to the proper officer of the Supreme Court or the County Court as soon as practicable and in any event within 3 days after receiving it from the claimant, to be held in safe custody.
(5) A person must not open a sealed document or other thing prior to delivery to the proper officer.
(6) In this section—
"privilege" includes—
(a) legal professional privilege (other than legal professional privilege of a public authority or a public officer);
(b) self-incrimination privilege;
(c) public interest immunity;
(d) parliamentary privilege—
but does not include privilege on the ground of confidentiality.
(1) Within 7 days after the sealed document or other thing is given to the proper officer of a court in accordance with section 86VM, the Director may apply to the court to determine whether or not the document or other thing is the subject of privilege.
(2) If no application is made under subsection (1) within the period of 7 days, the proper officer must return the document or other thing to the claimant for privilege.
(3) The Director must give notice of the application to the claimant for privilege a reasonable time before the hearing of the application.
(4) Notice under subsection (3) must be in the prescribed form (if any).
(5) The claimant is entitled to appear and be heard on the hearing of the application.
(6) In this section—
"privilege" has the same meaning as in section 86VM.
(1) The court must determine whether or not the sealed document or other thing is the subject of privilege and for that purpose the judge and any other person authorised by the court may open and inspect the sealed document or other thing.
(2) If the court determines that the sealed document or other thing is the subject of privilege, the court must order that the document or other thing be returned to the claimant and the proper officer must return it to the claimant.
(3) If the court determines that the sealed document or other thing is not the subject of privilege, the court must order that the document or thing be given to the Director and the proper officer must release it accordingly.
(4) Subject to subsection (1), a person must not open a sealed document or other thing or otherwise have access to the document or thing before—
(a) the court determines the claim of privilege; or
(b) the document or thing is returned to the claimant.
Penalty: 120 penalty units or imprisonment for 12 months or both.
(5) In this section—
"privilege" has the same meaning as in section 86VM.".