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Independent Broad-based Anti-
corruption Commission Amendment
(Investigative Functions) Bill 2011
Introduction Print
EXPLANATORY MEMORANDUM
General
The main purpose of this Bill is to amend the Independent Broad-based
Anti-corruption Commission Act 2011 (IBACA) to provide further
functions and powers for IBAC to identify, expose and investigate serious
corrupt conduct and police personnel misconduct, assess police personnel
conduct, and prevent corrupt conduct and police personnel misconduct.
The Bill also consequentially amends the Parliamentary Committees Act
2003 to provide further oversight of IBAC's investigative functions. The Bill
consequentially amends the Police Regulation Act 1958 (PRA) to ensure
IBAC can oversee police personnel conduct, and amends the Surveillance
Devices Act 1999 (SDA) and the Telecommunications (Interception)
(State Provisions) Act 1988 (TISPA) to include IBAC as an agency under
those Acts. The Bill also provides for the repeal of the Police Integrity Act
2008.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are to amend the IBACA
to provide further functions and powers for the Independent
Broad-based Anti-corruption Commission (IBAC) to identify,
expose and investigate serious corrupt conduct and police
personnel misconduct, assess police personnel conduct, and
prevent corrupt conduct and police personnel misconduct.
The Bill also consequentially amends the Parliamentary
Committees Act 2003 to provide further oversight of IBAC's
571192 1 BILL LA INTRODUCTION 8/12/2011
investigative functions. The Bill consequentially amends the
PRA to ensure IBAC can oversee police personnel conduct, and
amends the SDA and the TISPA to include IBAC as an agency
under those Acts. The Bill also provides for the repeal of the
Police Integrity Act 2008.
Clause 2 provides for the Bill to come into operation on a day or days to
be proclaimed. The date of proclamation is dependent on the
passage of Commonwealth legislation to allow for
telecommunication interception powers for IBAC.
PART 2--AMENDMENT OF THE INDEPENDENT BROAD-
BASED ANTI-CORRUPTION COMMISSION ACT 2011
Clause 3 amends the IBACA to provide definitions of key words or terms
introduced by this Bill.
breach of discipline in relation to a member of the police force,
means a breach of discipline committed under section 69 of the
PRA.
critical incident means an incident involving an IBAC Officer,
other than the Commissioner, while the IBAC Officer was
performing a function or exercising a power under the IBACA
which--
resulted in the death of, or serious injury to, a person;
and
also involved any one or more of the following--
the discharge of a firearm by the IBAC Officer;
the use of force by the IBAC Officer;
the use of a motor vehicle by the IBAC Officer
(including as a passenger) in the course of
performing the IBAC Officer's duties or
exercising the IBAC Officer's powers;
the death of, or serious injury to, the person
while the person was in the custody of the IBAC
Officer;
2
defensive equipment means one or more of the following--
an article designed or adapted to discharge oleoresin
capsicum spray;
body armour within the meaning of the Control of
Weapons Act 1990;
an extendable baton designed or adapted so that the
length of the baton extends by gravity or centrifugal
force or by any pressure applied to a button, spring or
device in or attached to the handle of the baton;
handcuffs or cable ties;
detained person means--
a person in prison in the legal custody of the Secretary
to the Department of Justice in accordance with the
Corrections Act 1986; or
a person in a police gaol in the legal custody of the
Chief Commissioner of Police in accordance with the
Corrections Act 1986; or
a person in a remand centre, youth justice centre or
youth residential centre in the legal custody of the
Department of Human Services in accordance with the
Children, Youth and Families Act 2005; or
a patient in an approved mental health service within the
meaning of the Mental Health Act 1986; or
a patient in a residential service, residential institution
or residential treatment facility within the meaning of
the Disability Act 2006; or
a person detained at a treatment centre under a detention
and treatment order made under section 20 of the
Severe Substance Dependence Treatment Act 2010;
judicial officer means--
a Judge of the Supreme Court;
an Associate Judge of the Supreme Court;
a judicial registrar of the Supreme Court;
a judge of the County Court;
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an associate judge of the County Court;
a magistrate;
police force means--
the Chief Commissioner of Police;
a Deputy Commissioner of Police or an Assistant
Commissioner of Police;
other members of the force within section 3(1) of the
PRA;
a police reservist appointed under Part VI of the PRA;
a protective services officer appointed under Part VIA
of the PRA;
police personnel means--
a member of the police force;
an executive or employee employed under Part 3 of the
Public Administration Act 2004 (PAA) in the office of
the Chief Commissioner of Police;
a police recruit appointed under section 8A of the PRA.
police personnel premises means any premises or the part of
any premises occupied by police personnel for the purposes of
use as an office, a police station, a police gaol, a locker room, a
command and control centre, an educational and training
complex, a forensic laboratory, a storage facility, or a special
purpose facility, whether or not occupied by any other person or
body, but does not include any residential premises;
privilege means--
any privilege that a person is entitled to claim in any
proceedings before a court or tribunal; and
public interest immunity;
relevant head of jurisdiction means--
in relation to the Supreme Court, a Judge of the
Supreme Court, an Associate Judge of the Supreme
Court or a judicial registrar of the Supreme Court--
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the Chief Justice; or
if the Chief Justice is the person whose conduct
is being investigated, the President of the Court
of Appeal; or
in relation to the County Court, a judge of the County
Court or an associate judge of the County Court--
the Chief Judge of the County Court; or
if the Chief Judge is the person whose conduct is
being investigated, the next most senior judge of
the County Court;
in relation to the Magistrates' Court or a magistrate--
the Chief Magistrate; or
if the Chief Magistrate is the person whose
conduct is being investigated, the most senior
Deputy Chief Magistrate;
relevant offence means an indictable offence against an Act or
any of the following common law offences committed in
Victoria--
attempt to pervert the course of justice;
bribery of a public official;
perverting the course of justice;
relevant principal officer means--
the public sector body Head within the meaning of
section 4(1) of the Public Administration Act 2004, in
relation to the public body of which they are the public
sector body Head; and the public officers employed by
that public body;
the Chief Executive Officer of a Council, in relation to
members of Council staff employed by that Council;
for the avoidance of doubt the Chief Commissioner of
Police is the public sector body head for all members of
police personnel;
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senior IBAC Officer means a sworn IBAC Officer who is the
holder of a prescribed office or position or is the holder of an
office or position of a prescribed class of offices or positions;
serious injury includes an injury that--
is life threatening; or
is likely to result in permanent impairment; or
is likely to require long-term rehabilitation; or
is, in the opinion of the IBAC, of such nature, or
occurred in such circumstances, that the infliction of it
is likely to bring the IBAC into disrepute or diminish
public confidence in it;
sworn IBAC Officer means an IBAC Officer who has taken an
oath or made an affirmation under the IBACA;
This clause also amends the IBACA to add a person employed or
engaged by the IBAC under section 29(2) and a person engaged
as a consultant under section 30 to the existing definition of
IBAC Officer in the IBACA.
Subclause 3(3) also amends the IBACA to provide that a
reference to "investigative functions" in respect of corrupt
conduct is a reference to the functions specified in the new
sections 9(2)(a) and (3)(a); and a reference to "investigative
functions" in respect of police personnel conduct is a reference to
the functions specified in the new sections 9(2)(b), (2)(c)
and (3)(b).
Clause 4 inserts a new section 3A into the IBACA to define corrupt
conduct as conduct--
of any person that adversely affects the honest
performance by a public officer or public body of his or
her or its functions as a public officer or public body; or
of a public officer or public body that constitutes or
involves the dishonest performance of his or her or its
functions as a public officer or public body; or
of a public officer or public body that constitutes or
involves knowingly or recklessly breaching public trust;
or
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of a public officer or a public body that involves the
misuse of information or material acquired in the course
of the performance of his or her or its functions as a
public officer or public body, whether or not for the
benefit of the public officer or public body or any other
person; or
that could constitute a conspiracy or an attempt to
engage in any of the conduct above; and
being conduct that would, if the facts were found proved
beyond reasonable doubt at a trial, constitute a relevant
offence.
Subclause 2 provides that the IBACA does not apply to any
conduct of any person that can be considered by the Court of
Disputed Returns in proceedings in relation to a petition under
Part 8 of the Electoral Act 2002.
This clause also inserts a new section 3B into the IBACA to
define police personnel conduct for members of the police force
as--
an act or decision or the failure or refusal by the
member of the police force to act or make a decision in
the exercise, performance or discharge, or purported
exercise, performance or discharge, whether within or
outside Victoria, of a power, function or duty which the
member of the police force has as or, by virtue of being,
a member of the police force; or
conduct which constitutes an offence punishable by
imprisonment; or
conduct which is likely to bring the police force into
disrepute or diminish public confidence in it; or
disgraceful or improper conduct (whether in the
member's official capacity or otherwise).
For members of police personnel who are not members of the
police force police personnel conduct means--
an act or decision or the failure or refusal by the
member of police personnel to act or make a decision in
the exercise, performance or discharge, or purported
exercise, performance or discharge, whether within or
7
outside Victoria, of a power, function or duty which the
member of police personnel has as or, by virtue of
being, a member of police personnel; or
conduct which is likely to bring police personnel into
disrepute or diminish public confidence in police
personnel.
This clause defines police personnel conduct complaint as--
a complaint made to IBAC under section 86L of the
PRA, being a complaint about police personnel
misconduct about a member of the police force
(section 86L outlines the process for the making of
complaints about members of the police force, the types
of complaints that can be made and to whom they may
be made);
a complaint made to the IBAC in relation to the police
personnel conduct of a member of police personnel
other than a member of the police force.
This clause defines police personnel misconduct for members of
the police force as--
conduct which constitutes an offence punishable by
imprisonment; or
conduct which is likely to bring the police force into
disrepute or diminish public confidence in it; or
disgraceful or improper conduct (whether in the
member's official capacity or otherwise).
This clause defines police personnel misconduct for police
personnel who are not members of the police force as--
conduct which is likely to bring police personnel into
disrepute or diminish public confidence in police
personnel.
This clause also inserts a new section 3C into the IBACA to
define public sector as the sector comprising all public bodies
and public officers.
8
This new section defines public body as--
a public sector body as defined in the PAA;
a body, whether corporate or unincorporated,
established by or under an Act for a public purpose,
including a university;
the Electoral Boundaries Commission;
a Council;
a body that is performing a public function on behalf
of the State or a public body or public officer (whether
under contract or otherwise);
any other body or entity prescribed.
This new section defines public officer as--
a person employed in any capacity or holding any office
in the public sector within the meaning of section 4(1)
of the PAA;
a person to whom a provision of the PAA applies as a
result of the application of Part 7 of the PAA;
an ongoing employee or temporary employee of the
teaching service under the Education and Training
Reform Act 2006;
a judicial employee employed under Division 3 of
Part 6 of the PAA;
a Ministerial officer employed under Division 1 of
Part 6 of the PAA;
an electorate officer within the meaning of the
Parliamentary Administration Act 2005;
a Parliamentary adviser employed under Division 2 of
Part 6 of the PAA;
a Parliamentary officer within the meaning of the
Parliamentary Administration Act 2005;
a member of police personnel;
a responsible Minister of the Crown;
9
a member of the Legislative Assembly or the
Legislative Council;
a Councillor within the meaning of section 3(1) of the
Local Government Act 1989;
a member of Council staff employed under the Local
Government Act 1989;
a judge, a magistrate, a coroner or member of VCAT;
an associate judge or a judicial registrar;
a Crown Prosecutor;
the Chief Crown Prosecutor;
the Director of Public Prosecutions;
the Governor, the Lieutenant-Governor or the
Administrator of the State;
the Auditor-General;
the Ombudsman;
the Electoral Commissioner;
the holder of any other statutory office or any other
prerogative office;
any other person in the service of the Crown or a public
entity;
a person performing a public function on behalf of the
State, public body or public officer (whether under
contract or otherwise);
a person, or a person who is a member of a class of
persons, who holds an office prescribed to be a public
office;
an employee of, or any person otherwise engaged by, or
acting on behalf of, or acting as a deputy or delegate of,
a public body or a public officer.
The new section 3C(2) excludes from the definition of public
officer and public body--
IBAC;
an IBAC Officer;
10
a Public Interest Monitor;
the Office of the Special Investigations Monitor;
the Special Investigations Monitor;
the Victorian Inspectorate;
a Victorian Inspectorate Officer;
a court.
The new section 3C(3) provides factors, that are not exhaustive
and not indicative in and of themselves, that may be taken into
account to determine whether a function is a public function, that
is--
that the function is conferred on the body or person by
or under a statutory provision;
that the function is of a regulatory nature;
that the body that performs the function is a company
(within the meaning of the Corporations Act) all of the
shares in which are held on behalf of the State.
The new section 3C(5) provides that the fact that a person, body
or entity receives public funds does not of itself make that
person, body or other entity a public body or public officer for
the purposes of the IBACA.
Clause 5 amends the IBACA to substitute a new section 4 with updated
objects which are to--
provide for the identification, investigation and
exposure of serious corrupt conduct and police
personnel misconduct;
assist in the prevention of corrupt conduct and police
personnel misconduct;
facilitate the education of the public sector and the
community about the detrimental effects of corrupt
conduct and police personnel misconduct on public
administration and the community and the ways in
which corrupt conduct and police personnel misconduct
can be prevented;
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assist in improving the capacity of the public sector to
prevent corrupt conduct and police personnel
misconduct;
provide for the IBAC to assess police personnel
conduct.
Clause 6 amends the IBACA to substitute a new section 9.
The new subsection (1) establishes that IBAC has the functions
conferred on it by the Bill or any other Act. The new subsection
(2) establishes that IBAC has functions to--
identify, expose and investigate serious corrupt conduct;
identify, expose and investigate police personnel
misconduct;
assess police personnel conduct.
The new subsection (3) specifies further functions. It does not
limit the generality of subsection (2), but rather establishes the
following functions under subsection (2)--
to receive complaints and notifications in relation to
corrupt conduct;
in relation to police personnel conduct--
to receive police personnel conduct complaints
and notifications;
to ensure that the highest ethical and professional
standards are maintained by members of the
police force;
to ensure that members of the police force have
regard to the human rights set out in the Charter
of Human Rights and Responsibilities Act
2006.
Subsection (4) establishes that IBAC has education and
prevention functions for the purposes of achieving the objects of
the IBACA.
12
The new subsection (5) specifies further functions. It does not
limit the generality of subsection (4), but rather establishes the
following functions under subsection (4)--
to examine systems and practices in the public sector
and public sector legislation;
to provide information to, consult with and make
recommendations to, the public sector;
to assist the public sector to increase capacity to prevent
corrupt conduct and police personnel misconduct by
providing advice, training and education services;
to provide information and education services to the
community about the detrimental effects of corruption
on public administration and ways in which to assist in
preventing corrupt conduct;
to provide information and education services to
members of police personnel and the community about
police personnel conduct, including the detrimental
effects of police personnel misconduct and ways in
which to assist in preventing police personnel
misconduct;
to publish information on ways to prevent corrupt
conduct and police personnel misconduct.
The new subsection (6) establishes that IBAC has functions
through which the IBAC may meet the objects of the Act--
to receive information, conduct research and collect
intelligence, and to use that information, research and
intelligence in support of investigations;
to report on, and make recommendations as a result of
the performance of its duties and functions.
Clause 7 amends section 11 of the IBACA by inserting a new subsection
restricting IBAC's delegation to Deputy Commissioners of the
new duties functions and powers under new IBACA sections 86,
89 or 106 (inserted by clause 9) and the power of delegation.
13
Clause 8 amends section 26 of the IBACA by substituting a new
delegation section delineating the Commissioner, Deputy
Commissioner and Chief Executive Officer's delegation powers
in the following ways--
providing for the Commissioner's delegation to Deputy
Commissioners or the CEO of the new duties, functions
and powers under new IBACA other than sections 54,
60, 86, 89 or 106 (inserted by clause 9) and the power
of delegation;
restricting the Commissioner's delegation to a senior
IBAC Officer of the new duties, functions and powers
under new IBACA sections 50, 53, 54, 60, 86, 89,
or 106 (inserted by clause 9) and the power of
delegation;
allowing a Deputy Commissioner to delegate, by
instrument to the CEO;
allowing the CEO to delegate, by instrument, to a senior
IBAC Officer.
Subsection (5) provides for an exception to the restrictions in the
case of a declaration under section 23 of the IBACA.
Subsection (6) provides for an exception to the restrictions in the
case of an investigation into a judicial officer under the new
section 42.
Subsection (7) provides that a delegation under this section to a
former judge or Chief Magistrate does not affect any pension or
other rights or privileges that the person has as a former judge or
Chief Magistrate.
Clause 9 amends the IBACA by replacing the existing Parts 3 (Reports)
and 4 (General) with new Parts--
Part 3 (Investigations);
Part 4 (Investigative Powers);
Part 5 (Defensive Equipment and Firearms);
Part 6 (Recommendations, Actions and Reports); and
Part 7 (General).
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NEW PART 3--INVESTIGATIONS
The new section 34 allows a person to make a complaint to IBAC
about conduct the person believes may be corrupt conduct.
The new section 35 allows a person to make a police personnel
conduct complaint (as defined in the new section 3B inserted by
clause 3 above).
The new section 36 provides that a complaint to IBAC must be in
writing unless IBAC determines that exceptional circumstances
exist.
The new section 37 provides that a letter written by a detained
person to IBAC, or by IBAC to a detained person, 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,
unopened, 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.
The new section 38 provides that a person who makes a
complaint may withdraw the complaint, but that IBAC may
continue to investigate the matter as an own motion investigation.
The new section 39 provides that IBAC may receive information
relevant to performing the IBAC's investigative functions or
intelligence gathering functions irrespective of whether the
information forms part of a complaint. IBAC may use
information so received in carrying out its investigative
functions.
The new section 40 provides that the relevant principal officer
may notify IBAC of any matter that the person believes on
reasonable grounds constitutes corrupt conduct.
The Chief Commissioner of Police must notify IBAC, as soon as
practicable, of any complaint received about corrupt conduct or
police personnel misconduct by a member of police personnel
who is not a member of the police force (there is an equivalent
provision in the PRA for members of the police force).
In addition, the Chief Commissioner of Police must in writing,
report to IBAC on the results of an investigation of a complaint
about police personnel misconduct (other than by a member of
the police force which is provided for in section 86O of the
15
PRA). The Chief Commissioner of Police must notify IBAC, as
soon as practicable, of any complaint made to a member of the
police for under section 86L of the PRA about conduct of the
Chief, a Deputy, or an Assistant Commissioner of Police.
In addition, the Chief Commissioner of Police may notify IBAC
about police personnel conduct of a member of police personnel.
This new section 40 will have effect despite any duty of secrecy
or other restriction on disclosure.
The new section 41 provides that IBAC may conduct an
investigation into corrupt conduct on a complaint under
section 34, notification under section 40(1) or on its own motion.
The section also provides that the IBAC must not conduct an
investigation unless resonably satisfied that the conduct is serious
corrupt conduct.
The new section 42 restricts an investigation into a judicial
officer to a sworn IBAC Officer who is a former judge or
magistrate of a court from the same level (but from a different
jurisdiction) or a higher court. In addition the IBAC Officer must
not be an Australian legal practitioner. The new section further
provides that in such investigations, IBAC must have proper
regard to the preservation of the independence of judicial officers
and must notify, and may consult with, the relevant head of
jurisdiction of the investigation, unless to do so would prejudice
the investigation.
The new section 43 restricts IBAC from making a finding of
corrupt conduct or any other adverse finding about a judicial
officer arising from an investigation in a special report under
section 86 or an annual report under section 89.
The new section 44 prevents IBAC investigating a complaint or
notification about the conduct of a judicial officer that directly
relates to the merits of a decision, an order or a judgment made
by the judicial officer.
The new section 45 provides that IBAC may conduct an
investigation into police personnel conduct on a police personnel
conduct complaint under section 35, notification under section
40(2), (4) or (6) or under section 86M of the PRA or on its own
motion.
16
The new section further provides that IBAC may attempt to
resolve a police personnel conduct complaint by conciliation.
IBAC must notify the Chief Commissioner before commencing
the conciliation and must inform the Chief Commissioner of its
results. In addition, IBAC may conduct an investigation in
relation to police personnel conduct of, or in relation to, a person
who was a member of police personnel, at the time of the
conduct, even if that person is no longer a member of police
personnel.
The new section 46 provides that IBAC must, subject to the
factors listed below, investigate a complaint or a notification to
the IBAC or a complaint made under section 86L of the PRA in
accordance with the IBACA if that complaint or notification is
of conduct of the Chief Commissioner, a Deputy Commissioner
or an Assistant Commissioner of Police. The new section 46
outlines the circumstances in which these specific types of police
personnel conduct complaint or notification need not be
investigated, if IBAC considers on reasonable grounds that any
of the following criteria apply--
the subject matter of the complaint or notification is
trivial or unrelated to the functions of IBAC; or
the complaint or notification is frivolous or vexatious;
or
the complaint or notification lacks substance or
credibility; or
the matter has already been the subject of a complaint or
notification which has been investigated or otherwise
dealt with; or
the complaint or notification relates to conduct that
occurred at too remote a time to justify investigation; or
the complaint or notification was not made genuinely or
was made primarily for a mischievous purpose; or
in all the circumstances, the conduct does not warrant an
investigation.
IBAC may notify a person that makes a complaint or notification
of a decision under this section that the complaint or notification
does not warrant investigation.
17
The new section 47, subject to new sections 41(2), 44 and 46,
outlines the circumstances in which a complaint or notification
made to IBAC need not be investigated, in its absolute discretion,
including if--
the subject matter of the complaint or notification is
trivial or unrelated to the functions of IBAC; or
the complaint or notification is frivolous or vexatious;
or
the complaint or notification lacks substance or
credibility; or
the matter has already been the subject of a complaint or
notification which has been investigated or otherwise
dealt with; or
the complaint or notification relates to conduct that
occurred at too remote a time to justify investigation; or
the complaint or notification was not made genuinely or
was made primarily for a mischievous purpose;
investigation of the conduct is not warranted in all the
circumstances;
a person who makes a complaint to IBAC, other than a
complaint referred to in section 46, has delayed making
the complaint by more than a year. IBAC may require
the person to give an explanation, and if not satisfied,
may decide not to investigate.
IBAC may notify a person that makes a complaint or notification
of a decision under this section that the complaint or notification
does not warrant investigation.
The new section 48 provides that IBAC may discontinue an
investigation at any time.
The new section 49 provides that IBAC may commence or
continue to investigate a matter despite the fact that any civil or
criminal proceedings are on foot in relation to the subject matter
of the investigation. IBAC must take all reasonable steps to
ensure that the conduct of an investigation does not prejudice
those proceedings.
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NEW PART 4--INVESTIGATIVE POWERS
The new section 50 provides that IBAC may, generally or in a
specific case, subject to any conditions that IBAC considers
appropriate, appoint by instrument a sworn IBAC Officer to be
an authorised officer, if the sworn IBAC Officer is suitably
trained to perform the functions and to exercise the powers as
authorised.
The new section 51 provides that IBAC must issue identity cards
to authorised officers containing a photograph of the authorised
officer and signatures of the authorised officer and
Commissioner.
The new section 52 provides that an authorised officer must
produce his or her identity card before exercising a power under
Divisions 3 or 4 of Part 4 of the IBACA unless it is not
practicable to so, and if requested to do so to produce his or her
identity card, must do so unless it would endanger safety or
frustrate an investigation. If an authorised officer does not
comply with a request, he or she must immediately cease
exercising the powers under Divisions 3 or 4 of Part 4 of the
IBACA unless the noncompliance is because compliance would
endanger safety or frustrate an investigation.
If exercising a power under Division 2, the authorised officer
must produce his or her identity card on request by a person who
is subject to the exercise of that power unless it is not practicable
to do so.
The new section 53 provides that IBAC may direct any member
of the police force to give any relevant information, produce any
relevant document or answer any relevant question in the
investigation of a possible breach of police discipline under
section 69 of the PRA involving corrupt conduct of a member of
the police force or police personnel conduct of a member of the
police force. A member of the police force 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 11(2) below).
The new section further provides that any information, document
or answer given in accordance with a direction under section 53
is not admissible in evidence before any court or person acting
judicially, except in proceedings for--
19
perjury; or
a breach of discipline by a member of the police force;
or
an offence under the IBACA for failure to comply with
a direction of the IBAC; or
review proceedings for the dismissal of a member of the
police force under Division 1 of Part IV of the PRA.
The new section 54 provides that powers under this Division
must not be exercised by an authorised officer without written
authority from the Commissioner.
The new section 55 provides that, if an authorised officer
reasonably believes that documents or other things relevant to an
investigation are on police personnel premises, the officer may
enter those premises at any time, and enter any vehicle, vessel or
aircraft on those premises. It provides that an authorised officer
can search those premises and any vehicle, vessel or aircraft on
those premises, for documents or other things relevant to an
investigation, and can inspect or copy any document or thing
found at those premises and any vehicle, vessel or aircraft on
those premises. The authorised officer is allowed to do anything
necessary or convenient to enable the search or inspection.
On exercising a power of entry, the authorised officer must
identify him or herself to a person at those police personnel
premises who is apparently in charge. The Chief Commissioner
of Police must ensure that all members of police personnel
provide any assistance reasonably required by the authorised
officer in order to exercise his or her powers under this section.
This section does not allow authorised officers to enter the parts
of police personnel premises which are used for residential
purposes.
The new section 56 provides that an authorised officer who
enters police personnel premises under the new section 55 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. The Chief
Commissioner of Police must ensure that each member of police
personnel at the police personnel premises makes available to the
authorised officer any facilities or equipment that are necessary
20
for the authorised officer to seize a document or other thing under
this section.
The new section 57 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
section 56, 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 authorised officer has notified
IBAC and IBAC is satisfied that copying the item or the
information will substantially and unreasonably interfere with the
performance of IBAC's functions. The request may also be
refused if IBAC 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
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 IBAC 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.
The new section 57 also provides that IBAC must, on request,
permit the Chief Commissioner of Police to access the item or
information. However, IBAC need not provide the Chief
Commissioner of Police with such access if it believes that it is
not in the public interest to do so. IBAC must not refuse a
request by the Chief Commissioner of Police for access to the
item or the information unless IBAC has--
provided the Chief Commissioner of Police with a
written notice stating an intention to refuse to the person
making the request; and
given the Chief Commissioner of Police a reasonable
chance to make a further request in a form which would
eliminate the ground of refusal; and
21
as far as is reasonably practicable, provided the Chief
Commissioner of Police with any information which
would assist the Chief Commissioner of Police in
making a further request. However, this information
need not be provided if IBAC is of the opinion that it is
not in the public interest to do so.
Neither an authorised officer nor IBAC is required to give
reasons for refusing a request under this clause.
The new section 58 provides that, within 7 days after an item is
seized, an interested person may apply to the Supreme Court for
an order setting aside the seizure and requiring IBAC 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 section also provides a definition of interested
person for the purposes of the section.
The new section 59 provides that IBAC must take all reasonable
steps to return a seized document or thing which is required as
evidence in a legal proceeding to the Chief Commissioner of
Police. IBAC must also immediately take all reasonable steps to
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. This is subject to any order
of the Supreme Court under section 58.
The new section 60 provides that a Supreme Court Judge may
issue a search warrant upon application by an authorised officer.
The Supreme Court Judge must be satisfied by evidence on oath
that there are reasonable grounds for authorised officer's belief
that entry to the premises (or vehicle, vessel or aircraft) is
necessary for the purpose of an investigation. If so, the Judge
may issue a search warrant authorising any person named in the
warrant to enter and search premises (or vehicle, vessel or
aircraft) 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.
22
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.
Section 60 also provides that, except as provided for in the
IBACA, the rules with respect to search warrants under the
Magistrates' Court Act 1989 apply to search warrants under this
section. It further provides that if the warrant is issued in relation
to court premises, IBAC must notify the relevant head or heads
of jurisdiction, unless to do so would prejudice the investigation.
The new section 61 provides a procedure for executing a search
warrant under Division 4. The person executing the warrant must
state that he or she is authorised by the warrant to enter the
premises (or vehicle, vessel or aircraft), and must give any person
present at the premises the chance to allow entry. An exception
to these requirements is when the person executing 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 vehicle, vessel or aircraft), (or no adult person) the
person executing the warrant must leave a copy of the warrant in
a clearly noticeable place on the premises (or vehicle, vessel or
aircraft). IBAC 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.
The new section 62 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, unless it
would be contrary to the public interest to do so. 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.
23
The new section 63 provides that, if an item taken during the
execution of a search warrant is required as evidence in a legal
proceeding, IBAC must take all reasonable steps to return the
item. The section further provides that IBAC must immediately
take all reasonable steps to return an item if it 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.
The new section 64 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 person executing the search
warrant may also take onto the premises any equipment, vehicle
or animal that the person reasonably requires. The section 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 cannot authorise the assistant to arrest a person.
The person executing the warrant must tell the assistant the
action or powers which the assistant is authorised to implement.
The new section 65 provides that the Chief Commissioner must
ensure that members of the police force provide all assistance
that is reasonably required by a person to exercise all powers
included in a search warrant granted under section 60.
The new section 66 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 Commissioner immediately, and deliver the sealed item to the
proper officer of the Supreme Court. The item must not be
opened by any person prior to delivery to the proper officer of the
court.
The new section 67 relates to the exercise of powers under
sections 53, 55 or 56. For these powers, the Crown is not entitled
to any privilege in respect of the documents or other things, and
any obligation of a member of police personnel to maintain
secrecy or any other restriction on disclosure of information is
24
also overridden, and does not apply in respect of the exercise of a
power under section 53 or to the inspection, copying or seizure of
any document or thing under sections 55 and 56.
The new section 68 provides a procedure for bringing a claim of
privilege before the Supreme Court. Within 7 days after the
sealed document is given to the proper officer of the court, as
provided in section 66, IBAC may apply to the court to determine
whether or not the document is subject to privilege. If IBAC
does not make such an application within 7 days, the proper
officer of the court must return the document to the claimant.
If the IBAC 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.
The new section 69 provides that the court must determine
whether or not the sealed document is subject to privilege, as
defined in section 68. The judge or a person authorised by the
court may open the sealed document to inspect it for this purpose.
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 IBAC. This section 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.
NEW PART 5--DEFENSIVE EQUIPMENT AND FIREARMS
The new section 70 provides that IBAC may authorise a suitably
trained senior IBAC Officer to possess, carry and use defensive
equipment for the purposes of investigating police personnel
conduct by any member of the police force. 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;
25
an extendable baton;
handcuffs or cable ties.
IBAC may only issue an authorisation under the new section 70
if it is satisfied that the senior IBAC Officer reasonably requires
that equipment to--
perform functions and exercise powers of IBAC or an
authorised officer in investigations; and
ensure the safety of that senior IBAC Officer in
performing those functions or exercising those powers.
IBAC's authorisation must specify which article or articles of
defensive equipment the officer is authorised to possess, carry
and use. IBAC may make an authorisation subject to any
conditions. A senior IBAC Officer must not use defensive
equipment in the course of a police personnel conduct
investigations unless authorised to do so under this section, for
which there is a penalty of 60 penalty units or 6 months
imprisonment, or both.
The new section 71 provides that IBAC may authorise a suitably
trained senior IBAC Officer to possess, carry and use defensive
equipment for the purposes of an investigation into corrupt
conduct. IBAC may only issue an authorisation under the new
section 71 if it is satisfied that--
requesting assistance from the Chief Commissioner may
compromise the investigation; and
the senior IBAC Officer reasonably requires the
defensive equipment to perform functions and exercise
powers of IBAC or an authorised officer in an
investigation; and
the senior IBAC Officer reasonably requires the
defensive equipment to ensure the safety of that senior
IBAC Officer in performing IBAC functions or
exercising IBAC powers.
IBAC's authorisation must specify which article or articles of
defensive equipment the officer is authorised to possess, carry
and use. IBAC may make an authorisation subject to any
conditions. A senior IBAC Officer must not use defensive
equipment in the course of a corrupt conduct investigation unless
26
authorised to do so under this section, for which there is a penalty
of 60 penalty units or 6 months imprisonment, or both.
The new section 72 provides that IBAC may authorise a senior
IBAC Officer to possess, carry and use defensive equipment for
the purposes of providing or receiving training in relation to the
use of that equipment or testing and maintaining that equipment.
IBAC's authorisation must specify which article or articles of
defensive equipment the officer is authorised to possess, carry
and use. IBAC may make an authorisation subject to any
conditions.
The new section 73 provides that IBAC may authorise a senior
IBAC Officer to possess, carry and use defensive equipment for
the purposes of the purchase or acquisition of that equipment, the
maintenance of that equipment and storage of that equipment.
IBAC's authorisation must specify which article or articles of
defensive equipment the officer is authorised to possess, carry
and use. IBAC may make an authorisation subject to any
conditions.
The new section 74 provides that IBAC may authorise a suitably
trained senior IBAC Officer to possess, carry and use a firearm
for the purposes of investigations into police personnel conduct
by any member of the police force. A firearm is defined in
clause 3 as having the same meaning as in the Firearms Act
1996. IBAC may only issue an authorisation under the new
section 74 if it satisfied that the senior IBAC Officer reasonably
requires that firearm to--
perform functions and exercise powers of IBAC or an
authorised officer in investigations; and
ensure the safety of that senior IBAC Officer in
performing those functions or exercising those powers.
IBAC's authorisation must specify the type of firearm the officer
is authorised to possess, carry and use. IBAC may make an
authorisation subject to any conditions. A senior IBAC Officer
must not use firearms in the course of a police personnel conduct
investigation unless authorised to do so under this section, for
which there is a penalty of 60 penalty units or 6 months
imprisonment, or both.
27
The new section 75 provides that IBAC may authorise a suitably
trained senior IBAC Officer to possess, carry and use a firearm
for the purposes of investigating corrupt conduct. A firearm is
defined in clause 3 as having the same meaning as in the
Firearms Act 1996. IBAC may only issue an authorisation
under the new section 75 if it is satisfied that--
requesting assistance from the Chief Commissioner may
compromise the investigation; and
the senior IBAC Officer reasonably requires the firearm
to perform functions and exercise powers of IBAC or an
authorised officer in an investigation; and
the senior IBAC Officer reasonably requires the firearm
to ensure the safety of that senior IBAC Officer in
performing IBAC functions or exercising IBAC powers.
IBAC's authorisation must specify the type of firearm the officer
is authorised to possess, carry and use. IBAC may make an
authorisation subject to any conditions. A senior IBAC Officer
must not use defensive equipment in the course of a corrupt
conduct investigation unless authorised to do so under this
section, for which there is a penalty of 60 penalty units or
6 months imprisonment, or both.
The new section 76 provides that IBAC may authorise a senior
IBAC Officer to possess, carry and use a firearm for the
purposes of providing or receiving training in relation to the use
of that equipment or testing and maintaining that equipment.
IBAC's authorisation must specify the type of firearm the officer
is authorised to possess, carry and use. IBAC may make an
authorisation subject to any conditions.
The new section 77 allows IBAC, subject to any conditions that
may be imposed, to authorise a senior IBAC Officer to acquire or
dispose of firearms, and possess and carry firearms for the
purpose of acquisition or disposal, maintaining or storing those
firearms.
The new section 77 also provides that any firearm acquired under
the section is taken to be acquired by IBAC and must be
registered in IBAC's name under the Firearms Act 1996.
28
The new section 78 provides that an authorised senior IBAC
Officer must not possess, carry or use defensive equipment or a
firearm except under the conditions authorised, for which there is
a penalty of 60 penalty units or 6 months imprisonment or both.
The new section 79 requires IBAC to notify the Chief
Commissioner of Police of the acquisition or disposal of firearms
within 7 days and to provide full details of that firearm.
The new section 80 requires that IBAC and a senior IBAC
Officer authorised to possess, carry and use firearms must store
those firearms in accordance with the storage requirements under
Schedule 4 to the Firearms Act 1996.
The new section 81 requires that IBAC and a senior IBAC
Officer authorised to possess, carry and use firearms must store
all cartridge ammunition in accordance with the storage
requirements under Schedule 4 to the Firearms Act 1996.
The new section 82 requires IBAC to notify the Chief
Commissioner of Police within 24 hours of becoming aware of
any loss, theft or destruction of any firearm acquired by IBAC.
NEW PART 6--RECOMMENDATIONS, ACTIONS AND
REPORTS
The new section 83 enables IBAC to make recommendations in
relation to a matter arising out of an investigation at any time to
the relevant principal officer, the responsible Minister or the
Premier in relation to any action that IBAC considers should be
taken. In addition, IBAC may require a person who has received
a recommendation (other than the Chief Commissioner of Police)
to give a report to the IBAC within a reasonable time, stating
whether or he or she has taken or intends to take the
recommended action, or if not, the reason for not taking or not
intending to take the recommended action. This section also
provides that recommendations that are not contained in a report
(under the new sections 86 and 89) must be made in private, but
that this requirement does not prevent IBAC subsequently
making these recommendations public in a special report or
annual report if there has been a failure to take action in relation
to them.
29
The new section 84 provides that after receiving the report on
any investigation completed by the Chief Commissioner under
Part IVA of the PRA or a report under section 40(3) of the
IBACA, IBAC may request in writing that the Chief
Commissioner take any action that IBAC considers appropriate,
in addition to, or instead of, any action proposed to be taken by
the Chief Commissioner. This could include a request for the
Chief Commissioner of Police to conduct a further investigation
in accordance with section 86O of the PRA.
The new section 85 provides that following a recommendation
made under the new section 83, or a request under the new
section 84, the Chief Commissioner must take the recommended
action or give a written response to IBAC specifying the reason
why the Chief Commissioner does not propose to take the
requested action or adopt the recommendation.
The new section 86 provides that IBAC may at any time report to
Parliament on any matter relating to the performance of its duties
and functions. This section enables IBAC to make special
reports, separate from its annual report. The new section 86
provides a protection to allow an opportunity for any person the
subject of any adverse opinion or comment to respond to adverse
findings made by IBAC and for all elements of this response to
be set out in a report. If IBAC intends to include adverse
findings about a public body in a report, IBAC must give the
relevant principal officer of that body an opportunity to respond
to the adverse material and fairly set out each element of the
response in its report.
Any person IBAC intends to name in the report but not comment
on adversely must be provided with the material related to that
person. The new section provides that IBAC should be satisfied
it is in the public interest and will not unreasonably damage the
person's reputation, safety or wellbeing before identifying an
individual who is not the subject of any adverse comment.
The report must also state that the person is not the subject of any
adverse comment or opinion. The new section 86 also prevents
IBAC from including in reports any information that could
prejudice a criminal investigation or criminal proceedings.
In addition IBAC must not include a statement as to a finding or
opinion that a person should be prosecuted for, or has committed,
is committing or is about to commit, a criminal or disciplinary
offence. IBAC must not include in a report any information that
30
discloses the identity of a person to who a direction has been
given under Division 1 of Part 7 of the IBACA or Division 4A
of Part IV the PRA.
The new section 86 also outlines the processes for the
transmission of any such report and for it to be laid before each
House of Parliament. It also provides that if neither House of
Parliament is sitting on the day on which it transmits a report,
that IBAC must give one day's notice to the clerk of each House,
and publish the report on the IBAC's Internet website. A report
given under this subclause is taken to be published under the
authority of Parliament. The publication of a report by the IBAC
on its Internet website in accordance with this subclause carries
absolute Parliamentary privilege.
The new section 87 provides that IBAC may advise the
complainant, or one or more of a relevant principal officer,
responsible Minister or the Premier of the outcome of the
investigation. However, this section is subject to IBAC's view
that to advise the complainant or other person as described above
would not be contrary to the public interest, put a person's safety
at risk, cause unreasonable damage to a person's reputation,
prejudice an investigation under the IBACA, lead to the
disclosure of any secret investigative method used by IBAC or
the police, or otherwise contravene statutory secrecy obligation
or privacy laws.
The new section 88 enables IBAC to deal with the outcome of an
investigation as follows--
make a recommendation in accordance with the new
section 83; or
transmit a special report under the new section 86;
advise a complainant or other person in accordance with
new section 87;
do any combination of the above; or
determine to make no finding or take no action.
31
The new section 89 provides that IBAC in its annual report must
include--
prescribed information relating to the performance of its
duties and functions;
any recommendations for changes to any Act or law in
force in Victoria, or for specified administrative actions
to be taken which the IBAC considers necessary as a
result of the performance of its duties and functions;
a description of its activities in relation to the
performance of its duties and functions.
The new section 89 provides a protection to allow an opportunity
for any person the subject of any adverse opinion or comment to
respond to adverse findings made by IBAC and for all elements
of this response to be set out in a report. If IBAC intends to
include adverse findings about a public body in a report, IBAC
must give the relevant principal officer of that body an
opportunity to respond to the adverse material and fairly set out
each element of the response in its report. Any person IBAC
intends to name in the report but not comment on adversely must
be provided with the material related to that person. The new
section provides that IBAC should be satisfied it is in the public
interest and will not unreasonably damage the person's
reputation, safety or wellbeing before identifying an individual
who is not the subject of any adverse comment. The report must
also state that the person is not the subject of any adverse
comment or opinion. The new section 89 also prevents IBAC
from including in reports any information that could prejudice a
criminal investigation or criminal proceedings. In addition IBAC
must not include a statement as to a finding or opinion that a
person should be prosecuted for, or has committed, is committing
or is about to commit, a criminal or disciplinary offence.
IBAC must not include in a report any information that discloses
the identity of a person to whom a direction has been given under
Division 1 of Part 7 of the IBACA or Division 4A of Part IV the
PRA.
The new section 89 also prevents IBAC from including in reports
any information that could prejudice a criminal investigation or
criminal proceedings. In addition IBAC must not include a
statement as to a finding or opinion that a person should be
prosecuted for, or has committed, is committing or is about to
32
commit, a criminal or disciplinary offence. IBAC must not
include in a report any information that discloses the identity of
a person to who a direction has been given under Division 1 of
Part 7 of the IBACA or Division 4A of Part IV of the PRA.
NEW PART 7--GENERAL
The new section 90 ensures that Division 1 does not apply to the
Commissioner.
The new section 91 provides a power for IBAC to direct an
IBAC Officer to provide a sample of breath, urine or blood for
testing for the presence of a drug of dependence or alcohol in
certain circumstances. IBAC can only require such tests if
satisfied that the result is relevant to the IBAC Officer's capacity
to perform his or her duties or exercise his or her powers, or that
the IBAC Officer has been involved in a critical incident.
Critical incident is defined in clause 3.
The new section 91(4) also provides that nothing in the section
affects the operation of Part 5 of the Road Safety Act 1986.
This means that an IBAC Officer 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 section of the IBACA.
The new section 92 provides that IBAC may consider the result
of a sample taken under Division 1 when managing the IBAC
Officer's performance of his or her duties or exercise of powers,
or in taking any disciplinary action against the IBAC Officer.
The new section 93 provides that a registered medical
practitioner may, at the direction of IBAC, take a blood sample
for testing for the presence of alcohol or a drug of dependence
from an IBAC Officer 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 IBAC
Officer cannot consent at that time. However, the IBAC Officer
may refuse to consent to the use of any evidence derived from the
sample when he or she becomes conscious. The section provides
that, when the IBAC Officer regains consciousness or becomes
able to comply with a direction, the IBAC Officer must be
advised that--
33
a sample has been taken; and
he or she may refuse to consent to the use of any
evidence derived from such sample; and
refusal may constitute grounds for disciplinary action
against the IBAC Officer.
The section also provides that evidence obtained from a sample
under the section must be destroyed if the IBAC Officer refuses
to consent to the use of the sample. The section 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.
The new section 94 provides that evidence from a sample
obtained under the new sections 91 and 93 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 an
IBAC Officer's system; or
prosecutions under the Occupational Health and
Safety Act 2004 to rebut or support a claim that alcohol
or drugs in an IBAC Officer's system contributed to the
offence charged; or
proceedings arising out of, or connected with a critical
incident; or
in a proceeding to the extent that the evidence is
relevant to the defence of a person, other that the IBAC
Officer who provided the sample, to rebut or support an
allegation that the presence of alcohol or a drug of
dependence affected the performance of the duties or
the exercise of the powers of the IBAC Officer as an
IBAC Officer;
disciplinary proceedings against the IBAC Officer.
34
Evidence obtained under section 93(1) cannot be used for these
proceedings if the member from whom the sample was taken
refuses to consent to its use.
The new section 95 provides that IBAC must ensure that the
result of any test must be handled in accordance with the
regulations in respect of the confidentiality of test results.
The new section 96 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 IBACA or the regulations. 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.
The new section 97 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.
The new section 98 makes it an offence for a person who is not
an IBAC Officer to hold themselves out to be an IBAC Officer.
The maximum penalty for this offence is 120 penalty units or
imprisonment for 12 months or both.
The new section 99 makes it an offence for a person without
reasonable excuse to hinder or obstruct an IBAC Officer in the
exercise of powers under the IBACA or the regulations in
performing a function under Part 4 or 5. The maximum penalty
for this offence is 120 penalty units or imprisonment for
12 months or both.
The new section 100 makes it an offence for a person without
reasonable excuse to fail to comply with any direction or any
requirement of the IBAC Officer in the exercise of his or her
powers under the IBACA or the regulations. The maximum
penalty for this offence is 120 penalty units or imprisonment
for 12 months or both.
The new section 101 makes it an offence for a person to wilfully
make a statement that the person knows to be false or misleading
in a material particular or mislead or attempt to mislead the IBAC
Commissioner or an IBAC Officer in the exercise of his or her
powers under the IBACA. The maximum penalty for this
35
offence is 120 penalty units or imprisonment for 12 months or
both.
The new section 102 provides that if a corporation is guilty of
an offence under the IBACA or the regulations, officers of
corporations who were knowingly concerned in or party to the
commission of the offence will be guilty of the offence and liable
for the penalty.
The new section 103 provides that a body corporate can have a
fine imposed up to five times the maximum fine set for a person
under the IBACA or the regulations.
The new section 104 provides that in circumstances in which
proceedings are brought against the Crown for an offence against
the IBACA or the regulations, a responsible agency will be
determined.
The new section 105 provides for proceedings to continue against
the successor body to a public body that has been dissolved.
The new section 106 provides that proceedings for an offence
against IBACA or the regulations may be brought by IBAC, an
authorised sworn IBAC Officer, or a member of the police force
as authorised by the IBAC Commissioner.
The new section 107 provides for a process of service of IBAC
documents.
The new section 108 deems that the validity of IBAC documents
served is not affected by any inadequacy if a court considers is
not likely to mislead or in fact does not mislead.
The new section 109 provides that the Freedom of Information
Act 1982 does not apply to a document which discloses
information that relates to--
a complaint;
an investigation under the IBACA;
a recommendation made by IBAC under the IBACA; or
a report, including a draft report, on an investigation
under the IBACA.
36
The new section 110 enables the Governor in Council to make
regulations for or with respect to any matter or thing required or
permitted by the IBACA to be prescribed or necessary to be
prescribed to give effect to the IBACA. The new section will
ensure that regulations may be made to prescribe prerequisites,
procedures and other matters to ensure the probity of persons
employed or engaged by the IBAC, and to ensure that such
persons do not have an actual or perceived conflict of interest by
their pecuniary interests. In addition, the section preserves the
force of any regulations made before the commencement of this
Bill.
The new section 111 provides that without limiting the new
section 110, the regulations may prescribe--
public officers and public bodies to which IBACA
applies;
security checks for IBAC Officers;
requirements relating to the issue of identity cards IBAC
Officers and the use of the identity cards;
requirements for the disclosure and reporting of
pecuniary interests by IBAC Officers, including
providing for the manner of disclosure (whether by
statutory declaration or otherwise) and the compilation,
maintenance and publication of registers of pecuniary
interests;
the information to be included by IBAC in its annual
report;
an appropriate course of training in the use of defensive
equipment;
an appropriate course of training in the use of firearms;
in relation to detecting the presence of alcohol or drugs
of dependence--
who may be authorised to take tests and analyse
samples;
how the type of test is to be determined;
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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.
PART 3--AMENDMENT TO OTHER ACTS AND REPEAL
Clause 10 amends section 12A of the Parliamentary Committees Act
2003 to restrict the IBAC Committee from--
investigating a matter relating to particular conduct the
subject of a report made by the IBAC under the
IBACA;
reviewing any decision to investigate a complaint made
to the IBAC under the IBACA;
reviewing any findings, recommendations,
determinations or other decisions of the IBAC in
relation to a complaint or investigation under the
IBACA;
disclosing any information relating to the performance
of a function or the exercise of a power by the IBAC
which may prejudice any criminal investigation or
proceedings, or IBAC investigation, or contravene any
secrecy provision in any relevant Act.
Clause 11 amends the PRA. Subclause (1) amends the definitions in
section 3(1) to--
repeal definitions relating to the Office of Police
Integrity under the Police Integrity Act 2008 (PIA);
insert definitions relating to IBAC and IBAC Officer
under the IBACA; and
replaces the reference to the "Director Police Integrity"
with "IBAC" in the definition of law enforcement
agency.
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Subclauses (2) to (4) amend section 69 of the PRA, to replace
reference to the PIA with references to the IBACA in detailing
what amounts to a "breach of discipline" for members of the
police force--
failing to comply with a direction given under the power
to require police to give information and documents and
answer questions under the new IBACA section 53
(inserted by clause 9);
failing to comply with a direction given under the new
Division 1 of Part 7 (inserted by clause 9);
refusing to consent to the use of evidence derived from
a sample in the circumstances referred to in the
direction given under the new section 93 of the IBACA.
Subsection (5) repeals section 69(3) of the PRA which provides
that a member of the police force may commit a breach of
discipline in respect of conduct engaged in while seconded to
the OPI.
Subclause (6) amends section 85G(2)(b) of the PRA, to replace
reference to the "Director Police Integrity" and "staff of the OPI"
with references to "IBAC" and "IBAC Officers" for the purpose
of members of the police force disclosing "breach of discipline"
information.
Subclauses (7) to (12) amend sections 86L, 86M, 86O, 86T
and 86(V)(1)(b) of the PRA, to replace references to the
"Director Police Integrity" with references to "IBAC" and
references to the PIA with references to the IBACA in detailing
complaints made to the IBAC about members of the police force.
Subclause (9)(b) repeals a reference in section 86L(2) of the
PRA to a complaint to the Director Police Integrity under the
Whistleblowers Protection Act 2001.
Subclause (13) repeals section 136 of the PRA which contains
transitional provisions for the operation of the PIA.
Clause 12 amends section 9 of the Major Crimes (Investigative Powers)
Act 2004 to ensure that a coercive powers order specifies that the
Supreme Court has regarded any submissions made by a Public
Interest Monitor, in determining the coercive powers order.
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Clause 13 amends section 3 of the SDA in order to enable IBAC, the
Commissioner and IBAC Officers to apply for surveillance
devices under the SDA. Section 3 is amended to--
repeal definitions relating to the Director, Police
Integrity and Office of Police Integrity under the PIA;
insert definitions relating to IBAC and IBAC Officer
under the IBACA, including senior officer which will
include the Commissioner and other prescribed classes
of IBAC Officers, and prescribed IBAC Officer which
will include a sworn IBAC Officer within the meaning
of the IBACA in a prescribed position or class.
Clause 14 amends the TISPA to include IBAC within certain requirements
of the TISPA. Pending Commonwealth approval, it is intended
that IBAC will be a body that is eligible to intercept
telecommunications in accordance with Telecommunications
(Interception and Access) Act 1979 (Commonwealth)
("the Commonwealth Act"). Accordingly, Section 1 of the
TISPA is amended to add the IBAC to the bodies whom the
TISPA enables to intercept telecommunications in accordance
with the Commonwealth Act.
The definition of permitted purpose section 3 of the TISPA is
amended to place obligations on IBAC regarding restricted
records (as defined in the TISPA) relating to--
an investigation by IBAC under the IBACA; or
a report by IBAC on an investigation by IBAC under
the IBACA; or
any recommendation made by IBAC under the IBACA;
or
an investigation by IBAC of a prescribed offence within
the meaning of the Commonwealth Act; or
the making by an authority, body or person of a decision
whether or not to begin a relevant proceeding in relation
to IBAC; or
a relevant proceeding in relation to IBAC; or
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the exercise by IBAC of the powers conferred by
section 68 of the Commonwealth Act; or
the keeping of records by IBAC under sections 9F, 9G
and 9H of the TISPA (as inserted by clause 15 below).
Clause 15 amends the TISPA by inserting a new Part 2B (comprising of
sections 9F, 9H and 9G) describing functions of IBAC under the
TISPA.
The new section 9F provides that IBAC must cause to be kept in
the records of IBAC--
each warrant issued to IBAC; and
a copy of each notification by IBAC under section 59A
of the Commonwealth Act; and
each instrument revoking a warrant issued to the IBAC;
and
a copy of each certificate issued under section 61(4) of
the Commonwealth Act by a certifying officer; and
a copy of each authorisation by the IBAC under
section 66(2) of the Commonwealth Act; and
particulars of any telephone application for a Part 2-5
TISPA warrant made by IBAC.
The new section 9G provides that IBAC must also cause to be
recorded in writing or by means of a computer as soon as
practicable after the happening of the events to which the
particulars relate or the statement relates--
in relation to each application by the IBAC for a warrant
under Part 2-5 of the Commonwealth Act a statement as
to whether--
the application was withdrawn or refused; or
a warrant was issued on the application; and
in relation to each warrant under Part 2-5 of the
Commonwealth Act, whose authority is exercised by
the IBAC, particulars of--
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the warrant;
and the day on which, and the time at which,
each interception under the warrant began; and
the duration of each such interception; and
the name of the person who carried out each such
interception; and
in relation to a named person warrant, each
service to or from which communications have
been intercepted under the warrant; and
in relation to each restricted record (as defined in the
TISPA) that has at any time been in the possession of
the IBAC, particulars of--
if the restricted record is a record obtained by an
interception under a warrant issued to the IBAC,
that warrant; and
each occasion when the restricted record came
(whether by its making or otherwise) to be in the
possession of the IBAC; and
each occasion (if any) when the restricted record
ceased (whether by its destruction or otherwise)
to be in the possession of the IBAC; and
each agency or other body (if any) from or to
which, or other person (if any) from or to whom,
the IBAC received or supplied the restricted
record; and particulars of each use made by the
IBAC of lawfully intercepted information; and
particulars of each communication of lawfully
intercepted information by an IBAC Officer to a person
or body other than an IBAC Officer; and
particulars of each occasion when, to the knowledge of
an IBAC Officer, lawfully intercepted information was
given in evidence in a relevant proceeding in relation to
IBAC.
Section 9G also requires IBAC to cause to be kept in the records
of IBAC each record that the IBAC has caused to be made under
this section.
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The new section 9H provides that IBAC must cause a restricted
record (as defined in the TISPA) that is in the possession of
IBAC to be kept, except when it is being otherwise dealt with in
accordance with the Commonwealth Act and the TISPA, in a
secure place where it is not accessible to persons other than
persons who are entitled so to deal with it. IBAC must also cause
a restricted record of the above kind to be destroyed forthwith if
IBAC is satisfied that the restricted record is not likely to be
required for a permitted purpose in relation to IBAC.
Clause 16 repeals the Police Integrity Act 2008.
Clause 17 repeals the Bill on the day that is the first anniversary of the first
day in which all the provisions of the Bill are in operation.
The repeal does not affect the continuing operation of the
amendments made by it (see section 15(1) of the Interpretation
of Legislation Act 1984).
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