Victorian Numbered Acts Victorian Numbered ActsSee:
Act
No.
6353.
Reprint
No. 13
as
at
31 December
2005
and
amending
Act
Nos
45/2003, 40/2006, 80/2006, 18/2007 and
12/2008.
LawToday:
www.
legislation.
vic.gov.au
s. 15
After section 35D of the Racing Act 1958 insert —
(1) This section applies if an application is made to a court for review of a decision by the Chief Commissioner under section 33 to make an exclusion order.
(2) If the Chief Commissioner objects to the disclosure or production of protected information at the hearing of the application for review, the Chief Commissioner may apply before the hearing to the court to hear and determine the application for review—
(a) at a hearing at which evidence given by a member of the police force is given on the basis of a confidential affidavit that is not disclosed to one or more of the parties or any representative of those parties; or
(b) at a hearing held in closed court in which the Chief Commissioner and each party to the proceeding has a right to make submissions; or
(c) at a hearing held without notice to, and without the presence of, one or more of the parties or any representative of those parties; or
(d) by any combination of the methods set out in paragraphs (a), (b) and (c).
(3) If the court is satisfied that it is not in the public interest to hear and determine the application for review by the method elected by the Chief Commissioner, the court may hear and determine the application by any other method set out in subsection (2).
(4) In deciding which method to hear and determine the application for review, the court must take into account—
(a) the public interest in protecting the confidentiality of police investigative techniques and protected information in the possession of the police; and
(b) the extent to which the method of hearing and determining the matter may disclose any intelligence information, or document or thing the disclosure of which—
(i) reveals the identity of the member of the police force who provided information on the basis of which the exclusion order was made or puts that member's safety at risk; or
(ii) reveals the identity of a person who has provided a member of the police force with information on the basis of which the exclusion order was made, or puts that person's safety at risk; or
(iii) reveals the identity of a person whose name appears in any evidence given or information provided to a member of the police force relating to an investigation, or puts that person's safety at risk; or
(iv) reveals the identity of a person who is or has been the subject of an investigation by a member of the police force, or puts that person's safety at risk; or
(v) places at risk an ongoing investigation by a member of the police force; or
(vi) risks the disclosure of any investigative method used by members of the police force; or
(vii) is otherwise not in the public interest.
(5) If the court decides to hear and determine the application for review by the method set out in subsection (2)(a), the court may require the member of the police force to provide the court with any further confidential affidavits the court requires to determine the application.
(6) In this section "protected information "means any intelligence information, document or thing the production or inspection of which—
(a) is likely to reveal any matter referred to in subsection (4)(b)(i) to (iv); or
(b) is likely to place at risk an ongoing investigation by a member of the police force; or
(c) is likely to risk the disclosure of any investigative method used by members of the police force; or
(d) is otherwise not in the public interest.
(1) If a court decides to hear and determine an application for review at a hearing referred to in section 35E(2)(c), the court may appoint a special counsel to represent the interests of a party to the proceeding at the hearing.
(2) A special counsel must be a barrister within the meaning of the Legal Profession Act 2004 who, in the opinion of the court, has the appropriate skills and ability to represent the interests of the party at the hearing.
(3) At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the application, the special counsel may communicate with the party whose interests he or she is representing, or any representative of that party, for the purpose of obtaining information from the party or representative in relation to the proceeding.
(4) At any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the application, the special counsel—
(a) must not take instructions from the party whose interests he or she is representing, or from any representative of that party; and
(b) may communicate to that party or a representative of that party any order made by the court at or in relation to the hearing; and
(c) must not communicate any other information in relation to the hearing to that party or a representative of that party without leave of the court.".