Police Integrity Act 2008 - Victorian Legislation and …€¦ · and answer questions 40 48...

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Police Integrity Act 2008 No. 34 of 2008

TABLE OF PROVISIONS

Section Page

PART 1—PRELIMINARY 1 1 Purpose 1 2 Commencement 2 3 Definitions 2 4 Act binds the Crown 8

PART 2—OFFICE OF POLICE INTEGRITY 9 Division 1—Office of Police Integrity 9

5 Office of Police Integrity 9 6 Functions and powers 9

Division 2—Director, Police Integrity 10 7 Director, Police Integrity 10 8 Objects, functions and powers of Director 10 9 Independence of Director 10 10 Appointment of Director 11 11 Remuneration and allowances 12 12 Terms and conditions 13 13 Vacancy and resignation 13 14 Suspension and removal from office 13 15 Acting appointment 14 16 Oath or affirmation by Director and Acting Director 15

Division 3—Staffing and other matters 15 17 Staffing 15 18 Oath or affirmation by staff and contractors 16 19 Secondment of police 17 20 Effect of secondment 17 21 Delegation by Director 19

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Division 4—Confidentiality and reporting 20 22 Disclosure by Office of Police Integrity personnel 20 23 Disclosure by others 21 24 Disclosure of information to law enforcement agencies and

corresponding authorities 23 25 Disclosure of information to the Privacy Commissioner 25 26 Disclosure of information to the Ombudsman 25 27 Disclosure of information to the Auditor-General 26 28 Annual and other reports to Parliament 26 29 Transmission of reports to Parliament 26

Division 5—Testing of OPI personnel for alcohol or drugs of dependence 28

30 Definitions 28 31 Testing of members of OPI personnel in certain circumstances 29 32 Director may have regard to evidence in certain circumstances 31 33 Taking of sample when member is unconscious or otherwise

unable to comply with direction 31 34 Admissibility of test result in certain proceedings 32 35 Confidentiality of test results 33 36 Offence to disclose identifying information 33 37 Regulations 34

PART 3—POLICE COMPLAINTS AND INVESTIGATIONS 36 Division 1—Complaints 36

38 Application of Division 36 39 Whistleblowers Protection Act 2001 applies to certain

complaints 36 40 Dealing with complaints 36 41 Advice to complainant 38 42 Jurisdiction 38

Division 2—Investigations 38 43 Application of Division 38 44 Own motion investigations 39 45 Consultation with Chief Commissioner 40 46 Investigation when other proceedings on foot 40 47 Power to require police to give information and documents

and answer questions 40 48 Further investigations 41 49 Chief Commissioner to respond to Director 42 50 Report on investigation 43 51 Exemption from Freedom of Information Act 1982 43

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PART 4—GENERAL INVESTIGATORY POWERS 45 Division 1—Preliminary 45

52 Application of Part 45 Division 2—Witness summonses 45

53 Witness summons 45 54 Content and form of witness summons 46 55 Witness summons directed to person under 16 46 56 Service of witness summons 47 57 Witness already held in custody 48 58 Confidentiality of witness summons 49 59 Person must comply with confidentiality notice 50 60 When does confidentiality notice cease to have effect? 51

Division 3—Examinations 52 61 Director may conduct examinations 52 62 Preliminary requirements 53 63 Witness under 16 55 64 Representation of witness 55 65 Private and public examinations 57 66 Taking of evidence 58 67 Video-recording of examination 58 68 Failure of witnesses to attend and answer questions 60

Division 4—Privileges and secrecy provisions 60 69 Privilege against self-incrimination abrogated 60 70 Legal professional privilege 61 71 Procedure for determining claims of legal professional

privilege 62 72 Application to court to determine legal professional privilege 63 73 Determination of legal professional privilege 64 74 Secrecy provisions and Crown privilege 65

Division 5—Legal assistance for witnesses 65 75 Definitions 65 76 Provision of legal assistance to witnesses 66 77 Regulations 66

Division 6—Contempt 66 78 What constitutes contempt of Director? 66 79 Charging and arresting a person for contempt 67 80 Bail pending court appearance for contempt 68 81 Custody pending court appearance for contempt 69 82 Supreme Court to deal with contempt 69 83 No double jeopardy 70

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Division 7—Arrest of recalcitrant witnesses 70 84 Warrant to arrest of recalcitrant witnesses 70 85 Bail for person arrested 71 86 Person held in custody 72

Division 8—Powers of entry, search and seizure 72 87 Definitions 72 88 Power to enter public authority premises 73 89 Power to seize documents or things at public authority

premises 74 90 Copying of, access to or receipt for things seized 75 91 Application for return of things seized 77 92 Return of things seized 78 93 Powers with search warrant 78 94 Procedure for executing warrant 80 95 Copies or receipts to be given 81 96 Return of documents and other things 81 97 Assistance in executing search warrants 82 98 Police must provide reasonable assistance 83 99 Privilege claims in relation to search warrants 83 100 Application to court to determine privilege 84 101 Determination of privilege claims 85

Division 9—Defensive equipment and firearms 86 102 Authority to possess, carry and use defensive equipment 86 103 Authority to possess, carry and use firearms 87

Division 10—Protection of persons, documents and other things 88 104 Who is a protected person? 88 105 What is a protected document or other thing? 88 106 Protected documents and other things—legal proceedings

other than criminal proceedings 89 107 Production and inspection of protected documents and

things—criminal proceedings 90 108 Appointment of special counsel 92 109 General protection of protected persons 93 110 Protection of protected persons in relation to critical incidents 94 111 Protection of legal practitioners and witnesses 95

Division 11—General 95 112 Referral of matters to DPP 95 113 Offences 96

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PART 5—OVERSIGHT BY SPECIAL INVESTIGATIONS MONITOR 97

114 Role of Special Investigations Monitor 97 115 Director must report summonses to Special Investigations

Monitor 97 116 Director must report arrest warrants to Special Investigations

Monitor 98 117 Director must report other matters to Special Investigations

Monitor 98 118 Complaints to Special Investigations Monitor 99 119 Special Investigations Monitor may refuse to investigate

complaint 99 120 Investigation of complaints 100 121 Recommendations by Special Investigations Monitor 100 122 Requirement to provide assistance 101 123 Powers of entry and access 102 124 Requirement to answer questions and produce documents 103 125 Privileges do not apply 104 126 Annual and other reports by Special Investigations Monitor 105 127 Delegation 106

PART 6—GENERAL 108 128 Provisions of this Act prevail 108 129 Letters by people in custody 108 130 Supreme Court—limitation of jurisdiction 109 131 Regulations 109

PART 7—TRANSITIONAL PROVISIONS 110 132 Transitional provisions 110

PART 8—AMENDMENT OF POLICE REGULATION ACT 1958 AND OTHER ACTS 111 Division 1—Amendment of Police Regulation Act 1958 111

133 Definitions 111 134 Repeal of current protection provisions 112 135 New Division 1A inserted in Part IVA 112

Division 1A—Protection of persons, documents and other things 112 86KE Who is a protected person? 112 86KF What is a protected document or other thing? 113 86KG Protected documents and other things—legal

proceedings other than criminal proceedings 114

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86KH Production and inspection of protected documents and things—criminal proceedings 114

86KI Appointment of special counsel 118 86KJ General protection of protected persons 119 86KK Protection of legal practitioners and witnesses 120

136 Evidence in Director investigations 120 137 New section 86PF inserted 121

86PF Failure of witnesses to attend and answer questions 121 138 New Divisions 2A and 2B inserted in Part IVA 122

Division 2A—Legal assistance for witnesses 122 86VAA Definitions 122 86VAB Provision of legal assistance to witnesses 122 86VAC Regulations 123 Division 2B—Privileges and secrecy provisions 123 86VAD Privilege against self-incrimination abrogated 123 86VAE Legal professional privilege 124 86VAF Procedure for determining claims of legal

professional privilege 126 86VAG Application to court to determine legal professional

privilege 127 86VAH Determination of legal professional privilege 127 86VAI Secrecy provisions and Crown privilege 128

139 New Division 3 substituted in Part IVA 129 Division 3—Powers of entry, search and seizure 129 86VA Definition 129 86VB Power to enter public authority premises 129 86VC Power to seize documents or things at public

authority premises 130 86VD Copying of, access to or receipt for things seized 131 86VE Application for return of things seized 134 86VF Return of things seized 135 86VG Powers with search warrant 136 86VH Procedure for executing warrant 137 86VI Copies or receipts to be given 138 86VJ Return of documents and other things 139 86VK Assistance in executing search warrants 139 86VL Police must provide reasonable assistance 140 86VM Privilege claims in relation to search warrants 140 86VN Application to court to determine privilege 142 86VO Determination of privilege claim 143

140 Supreme Court—limitation of jurisdiction 144 141 New section 136 inserted 144

136 Transitional provisions for Police Integrity Act 2008 144 142 Further amendments 146

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Division 2—Amendment of other Acts 149 143 Amendment of other Acts 149

Division 3—Repeal of Part 149 144 Self-repeal of Part 149

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SCHEDULES 150 SCHEDULE 1—Transitional Provisions 150

1 Definitions 150 2 General transitional provisions 150 3 Director, Police Integrity 150 4 Staff and consultants 151 5 Confidentiality 152 6 Annual reports 153 7 Complaints 153 8 Own motion investigations 154 9 Direction to require answers etc. of police 155 10 Witness summonses 155 11 Witness already held in custody 156 12 Examinations 156 13 Further investigations 157 14 Chief Commissioner to respond to Director 157 15 Freedom of Information Act exemption 157 16 Legal professional privilege 158 17 Legal assistance for witnesses 159 18 Contempt of Director 159 19 Arrest of recalcitrant witness 160 20 Powers of entry, search and seizure 161 21 Protection of persons, documents and other things 162 22 Reports to Special Investigations Monitor 163 23 Complaints to Special Investigations Monitor 163 24 Other powers of Special Investigations Monitor 164 25 Annual report by Special Investigations Monitor 165

SCHEDULE 2—Amendment of Acts 166 1 Commissioner for Law Enforcement Data Security

Act 2005 166 2 Confiscation Act 1997 166 3 Crimes Act 1958 166 4 Crimes (Assumed Identities) Act 2004 166 5 Crimes (Controlled Operations) Act 2004 167 6 Drugs, Poisons and Controlled Substances Act 1981 167 7 Firearms Act 1996 167 8 Magistrates' Court Act 1989 168

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9 Ombudsman Act 1973 168 10 Sex Offenders Registration Act 2004 168 11 Surveillance Devices Act 1999 169 12 Telecommunications (Interception) (State Provisions)

Act 1988 169 13 Terrorism (Community Protection) Act 2003 170 14 Whistleblowers Protection Act 2001 171 15 Witness Protection Act 1991 173

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ENDNOTES 174 INDEX 175

1

Police Integrity Act 2008†

No. 34 of 2008

[Assented to 1 July 2008]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purpose The purpose of this Act is—

(a) to re-establish the Office of Police Integrity;

(b) to set out the functions of the Office and of the Director, Police Integrity;

(c) to amend the Police Regulation Act 1958 and other Acts.

Victoria

Part 1—Preliminary


2

2 Commencement (1) Section 1 and this section and Division 1 of Part 8

(except section 142) come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3) the remaining provisions of this Act (including the items in Schedule 2) come into operation on a day or days to be proclaimed.

(3) If a provision referred to in subsection (2) (including an item or provision of an item in Schedule 2) does not come into operation before 31 December 2009, it comes into operation on that day.

3 Definitions In this Act—

Acting Director means a person appointed under section 15 to act in the office of Director;

Appeals Board has the same meaning as in the Police Regulation Act 1958;

authorised officer has the meaning given in section 87;

breach of discipline, in relation to a member of Victoria Police, means a breach of discipline committed under section 69 of the Police Regulation Act 1958;

Chief Commissioner means the Chief Commissioner of Police under the Police Regulation Act 1958;

s. 2



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chief executive of a public authority means—

(a) in relation to Victoria Police—the Chief Commissioner; or

(b) in relation to a public service body within the meaning of the Public Administration Act 2004—the public service body Head within the meaning of that Act; or

(c) in relation to any other body, whether or not incorporated, established by or under an Act for a public purpose—the chief executive officer, by whatever name called, of the body;

coercive power of the Director means a power of the Director under any of the following provisions—

(a) section 47 (power to require police to give information and documents and answer questions);

(b) section 48 (further investigations);

(c) Division 2 of Part 4 (witness summonses);

(d) Division 3 of Part 4 (examinations);

(e) Division 6 of Part 4 (contempt);

(f) Division 7 of Part 4 (arrest of recalcitrant witnesses);

(g) section 106 (protected documents and other things—legal proceedings other than criminal proceedings);

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conduct, in relation to a member of Victoria Police, means—

(a) an act or decision or the failure or refusal by the member 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 has as, or by virtue of being, a member of Victoria Police; or

(b) conduct which constitutes an offence punishable by imprisonment; or

(c) conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or

(d) disgraceful or improper conduct (whether in the member's official capacity or otherwise);

confidentiality notice has the meaning given in section 58;

critical incident has the meaning given in section 30;

defensive equipment means—

(a) an article designed or adapted to discharge oleoresin capsicum spray; or

(b) body armour within the meaning of the Control of Weapons Act 1990; or

(c) an extendable baton; or

(d) handcuffs or cable ties; or

(e) a combination of one or more of the items referred to in paragraphs (a), (b), (c) and (d);

s. 3



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Director means the Director, Police Integrity under section 7;

examination means an examination under Part 4;

extendable baton means a 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;

firearm has the same meaning as in the Firearms Act 1996;

investigation means an investigation under Part 3;

law practice has the same meaning as in the Legal Profession Act 2004;

legal practitioner means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;

member of OPI personnel means any of the following—

(a) the Director;

(b) the Acting Director;

(c) a member of staff of the Office of Police Integrity;

(d) a person or body engaged under section 17(1)(b);

(e) a member, officer or employee of a person or body engaged under section 17(1)(b);

s. 3



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member of staff of the Office of Police Integrity means—

(a) an employee in the Office of Police Integrity; or

(b) a person who is seconded to the Office of Police Integrity;

member of Victoria Police means any of the following (within the meaning of the Police Regulation Act 1958)—

(a) a member of the force;

(b) a police reservist;

(c) a protective services officer;

mental impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury;

Ombudsman means the Ombudsman appointed under section 3 of the Ombudsman Act 1973;

police gaol has the same meaning as in the Corrections Act 1986;

prison has the same meaning as in the Corrections Act 1986 but includes a youth justice centre established under section 478 of the Children, Youth and Families Act 2005;

proper officer means—

(a) in the case of the Supreme Court—the prothonotary;

(b) in the case of the County Court—a registrar of that court;

protected person has the meaning given in section 104;

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public authority means—

(a) Victoria Police; or

(b) a public service body within the meaning of the Public Administration Act 2004; or

(c) any other body, whether or not incorporated, established by or under an Act for a public purpose;

public officer means—

(a) a member of Victoria Police; or

(b) a person who is employed by or in a public authority or acting on behalf of a public authority;

serious misconduct, in relation to a member of Victoria Police, means—

(a) conduct which constitutes an offence punishable by imprisonment; or

(b) conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or

(c) disgraceful or improper conduct (whether in the member's official capacity or otherwise);

Special Investigations Monitor means the Special Investigations Monitor appointed under section 5 of the Major Crime (Special Investigations Monitor) Act 2004;

Victoria Police means the force within the meaning of the Police Regulation Act 1958;

witness summons means a summons issued under section 53.

s. 3



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4 Act binds the Crown (1) This Act binds the Crown in right of Victoria and,

so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2) Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence.

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s. 4

Part 2—Office of Police Integrity


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PART 2—OFFICE OF POLICE INTEGRITY

Division 1—Office of Police Integrity

5 Office of Police Integrity (1) There continues to be an Office of Police

Integrity.

(2) The Office is the same body as that established by section 102A of the Police Regulation Act 1958.

6 Functions and powers (1) The Office of Police Integrity has the functions

conferred on it by this Act or any other Act.

(2) Without limiting the functions of the Office, those functions include—

(a) analysing and using intelligence collected by the Director and members of staff of the Office in support of investigations into police corruption and serious misconduct;

(b) analysing systems used within Victoria Police to prevent police corruption and serious misconduct;

(c) providing information and advice to, and consulting with, Victoria Police to increase the capacity of Victoria Police to prevent police corruption and serious misconduct;

(d) publicly exposing police corruption and serious misconduct;

(e) providing information to the general community about the performance of the functions of the Office and of the Director.

(3) The Office has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions.

s. 5



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Division 2—Director, Police Integrity

7 Director, Police Integrity The Office of Police Integrity is to have a Director, called the Director, Police Integrity.

8 Objects, functions and powers of Director (1) The objects of the Director are—

(a) to ensure that the highest ethical and professional standards are maintained in Victoria Police; and

(b) to ensure that police corruption and serious misconduct are detected, investigated and prevented; and

(c) to educate Victoria Police and the general community regarding police corruption and serious misconduct, including the effect of police corruption and serious misconduct; and

(d) to ensure that members of Victoria Police have regard to the human rights set out in the Charter of Human Rights and Responsibilities.

(2) The Director has the functions conferred on the Director by this Act or any other Act.

(3) The Director has power to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions.

9 Independence of Director (1) The Director is an independent officer of the

Parliament.

(2) The functions, powers, rights, immunities and obligations of the Director are as specified in this Act and other laws of the State.

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(3) There are no implied functions, powers, rights, immunities or obligations arising from the Director being an independent officer of the Parliament.

(4) The powers of the Parliament to act in relation to the Director are as specified in this Act.

(5) There are no implied powers of the Parliament arising from the Director being an independent officer of the Parliament.

(6) Subject to this Act and other laws of the State, the Director has complete discretion in the performance or exercise of his or her functions or powers.

(7) In particular, and without limiting subsection (6), the Director is not subject to the direction or control of the Minister in respect of the performance or exercise of the Director's functions or powers.

10 Appointment of Director (1) The Governor in Council may appoint an eligible

person as Director.

(2) A person is an eligible person if the Governor in Council is satisfied that he or she—

(a) has been, or is qualified for appointment as, a judge of—

(i) the High Court; or

(ii) the Federal Court; or

(iii) the Supreme Court of a State or Territory; or

(iv) the County Court or a court of another State or Territory of equivalent status to the County Court; and

s. 10



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(b) has the ability to carry out the functions and powers of the Director; and

(c) is not a member of the Parliament of Victoria or of the Commonwealth or of another State or a Territory of the Commonwealth; and

(d) is not, and has not been, a member of Victoria Police; and

(e) is not, and has not been in the period of 5 years immediately preceding the proposed date of appointment, a member of the police force of the Commonwealth or of another State or Territory of the Commonwealth.

(3) The Director must not, without the written approval of the Governor in Council—

(a) apply for, or hold, a licence or permit to conduct any trade, business or profession; or

(b) conduct any trade, business or profession; or

(c) accept any other employment.

(4) The Public Administration Act 2004 does not apply to the Director in respect of his or her office as such except as provided in section 16 of that Act. Note

Section 16 of the Public Administration Act 2004 provides that the Director has the powers of a public service body Head under that Act in relation to employees in the Office of Police Integrity.

11 Remuneration and allowances (1) The Director is entitled to be paid the

remuneration and allowances that are determined by the Governor in Council.

(2) The remuneration of the Director cannot be reduced during his or her term of office unless he or she consents to the reduction.

s. 11



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12 Terms and conditions (1) Subject to sections 13 and 14, the Director—

(a) holds office for the period, not exceeding 5 years, specified in his or her instrument of appointment; and

(b) is eligible for reappointment; and

(c) holds office on the terms and conditions specified in his or her instrument of appointment.

(2) If a person who has been a judge of the Supreme Court or County Court is appointed as Director, the appointment does not affect any pension or other rights or privileges the person has as a former judge.

13 Vacancy and resignation The Director ceases to hold office if he or she—

(a) resigns by notice in writing delivered to the Governor in Council; or

(b) becomes an insolvent under administration; or

(c) is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or

(d) nominates for election for the Parliament of Victoria or of the Commonwealth or of any other State or any Territory of the Commonwealth; or

(e) is removed from office under section 14.

14 Suspension and removal from office (1) The Governor in Council may suspend the

Director from office on any of the following grounds—

s. 12



14

(a) misconduct;

(b) neglect of duty;

(c) inability to perform the duties of office;

(d) any other ground on which the Governor in Council is satisfied that the Director is unfit to hold office.

(2) The Minister must cause a full statement of the grounds of suspension to be presented to each House of Parliament within 7 sitting days of that House after the suspension.

(3) The Director must be removed from office by the Governor in Council if each House of Parliament, within 20 sitting days after the day when the statement is presented to it, declares by resolution that the Director ought to be removed from office.

(4) The Governor in Council must remove the suspension and restore the Director to office unless each House makes a declaration of the kind specified in subsection (3) within the time specified in that subsection.

15 Acting appointment (1) The Governor in Council may appoint a person to

act in the office of Director—

(a) during a vacancy in that office; or

(b) during a period or all periods when the person holding that office is absent from duty or is, for any reason, unable to perform the duties of the office.

(2) An appointment under subsection (1) is for the period, not exceeding 6 months, that is specified in the instrument of appointment.

(3) A person appointed under subsection (1) is eligible for reappointment.

s. 15



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(4) The Governor in Council may at any time remove the acting Director from office.

(5) While a person is acting in the office of Director, the person—

(a) has, and may exercise, all the powers and must perform all the duties of that office; and

(b) is entitled to be paid the remuneration and allowances that the Director would have been entitled to for performing those duties.

16 Oath or affirmation by Director and Acting Director

(1) Before the Director or Acting Director performs any of the duties of the Director, he or she must take an oath or make an affirmation that he or she—

(a) will faithfully and impartially perform the duties of office of Director; and

(b) will not disclose, except as authorised by law, any information received in the performance of those duties.

(2) The oath or affirmation is to be administered by the Speaker of the Legislative Assembly.

Division 3—Staffing and other matters

17 Staffing (1) For the purpose of performing the functions of the

Office of Police Integrity or the functions of the Director, the Director may—

(a) employ persons under Part 3 of the Public Administration Act 2004;

(b) engage persons or bodies to provide services;

(c) take members of Victoria Police on secondment in accordance with section 19;

s. 16



16

(d) take persons on secondment from other bodies.

(2) The Public Administration Act 2004 does not apply to—

(a) a member of Victoria Police who is seconded to the Office of Police Integrity in respect of the secondment; or

(b) a person or body engaged under subsection (1)(b).

(3) The Director may terminate a secondment (including a secondment of a member of Victoria Police) at will.

18 Oath or affirmation by staff and contractors (1) Before a member of staff of the Office of Police

Integrity performs any duties as a member of staff, he or she must take an oath or make an affirmation that he or she—

(a) will faithfully and impartially perform his or her duties; and


(2) The Director may require a person engaged under section 17(1)(b), or a member of a body engaged under that section, or an officer or employee of such a person or body, to take an oath or make an affirmation that the person, member, officer or employee—

(a) will faithfully and impartially perform his or her duties; and


s. 18



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(3) An oath or affirmation under this section is to be administered by the Director.

19 Secondment of police (1) The Director may request the Chief Commissioner

to make members of Victoria Police available for secondment to the Office of Police Integrity to assist the Director in the performance of the functions of the Office or the Director under this or any other Act.

(2) The Chief Commissioner must make available for secondment to the Office of Police Integrity as many members of Victoria Police as the Chief Commissioner thinks necessary.

(3) The Director may decline to take on secondment a member made available by the Chief Commissioner under subsection (2) and may require the Chief Commissioner to make another member available for secondment.

(4) If the Director reasonably suspects that a member of Victoria Police who is seconded to the Office of Police Integrity has committed a breach of discipline while seconded, the Director may refer the matter to the Chief Commissioner to determine whether action should be taken under Part IV of the Police Regulation Act 1958 in respect of the member.

20 Effect of secondment (1) During any period of secondment of a member of

Victoria Police to the Office of Police Integrity—

(a) the member is subject to the sole direction and control of the Director; and

(b) the member's remuneration is to be paid by the Director; and

s. 19



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(c) subject to this section, the member retains—

(i) all his or her powers and duties as a member of Victoria Police, including all the powers and duties of a constable at common law; and

(ii) his or her immunity under section 123 of the Police Regulation Act 1958 in respect of the exercise of those powers or performance of those duties; and

(d) the member does not commit a breach of discipline by failing to comply with a standing order or instruction of the Chief Commissioner; and

(e) neither the Chief Commissioner nor any other member of Victoria Police has authority to give the member an instruction in respect of the member's performance of his or her functions or duties.

(2) Despite subsection (1)(a) or (e), a member of Victoria Police who is seconded to the Office of Police Integrity may, if authorised by the Director to do so, give an instruction to another member of Victoria Police who is also seconded to the Office of Police Integrity.

(3) The Chief Commissioner cannot require a member of Victoria Police who is or has been seconded to the Office of Police Integrity to disclose any information that relates to the performance of the member's functions or duties during the secondment, other than, with the consent of the Director, for the purposes of an investigation or inquiry under Part IV of the Police Regulation Act 1958 in relation to a breach of discipline by the member or by another member of Victoria Police.

s. 20



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(4) A member's rank is not affected by a secondment to the Office of Police Integrity and any period of secondment is to be taken to be a period of service with Victoria Police.

21 Delegation by Director (1) The Director, by instrument, may delegate to a

relevant person any power of the Director under this or any other Act, other than—

(a) a coercive power; or

(b) a power under section 24 (disclosure of information to law enforcement agencies and corresponding authorities); or

(c) this power of delegation.

(2) The Director, by instrument, may delegate to a senior relevant person—

(a) a coercive power; or

(b) a power under section 24 (disclosure of information to law enforcement agencies and corresponding authorities)—

if the Director is of the opinion that the person has the ability to exercise satisfactorily the powers that are the subject of the delegation.

(3) In this section—

relevant person means—

(a) a member of staff of the Office of Police Integrity; or

(b) a person who has taken an oath or made an affirmation under section 18(2);

s. 21



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senior relevant person means a relevant person who—

(a) has been, or is qualified for appointment as, a judge of—

(i) the High Court; or

(ii) the Federal Court; or

(iii) the Supreme Court of a State or Territory; or

(iv) the County Court or a court of another State or Territory of equivalent status to the County Court; and

(b) is not a member of the Parliament of Victoria or of the Commonwealth or of another State or a Territory of the Commonwealth; and

(c) is not, and has not been, a member of Victoria Police; and

(d) is not, and has not been in the period of 5 years immediately preceding the proposed date of appointment, a member of the police force of the Commonwealth or of another State or Territory of the Commonwealth.

Division 4—Confidentiality and reporting

22 Disclosure by Office of Police Integrity personnel (1) A member of OPI personnel who obtains or

receives information in the course or as a result of the performance of the functions of the Director under this Act must not disclose that information except—

(a) for the purposes of the performance of the functions of the Director under this Act; or

s. 22



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(b) for the purpose of the taking of any action requested by the Director in a report made under section 50; or

(c) as authorised by section 24, 25, 26 or 27; or

(d) for the purposes of any proceedings for—

(i) perjury or giving false information; or

(ii) a breach of discipline (including failure to comply with a direction under section 47); or

(iii) an offence against this Act; or

(e) as otherwise authorised by law.

Penalty: 120 penalty units or imprisonment for 12 months or both.

(2) Proceedings for an offence against subsection (1) may be instituted only—

(a) by the Director; or

(b) by or with the consent of the Director of Public Prosecutions.

23 Disclosure by others (1) A person must not disclose a restricted matter

except as permitted by this section.


(2) Unless the Director orders otherwise, a restricted matter may be disclosed if that matter has already been disclosed as part of an examination that was open to the public.

s. 23



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(3) A restricted matter may be disclosed—

(a) in accordance with a direction of the Director; or

(b) to a legal practitioner for the purpose of obtaining legal advice or representation relating to a notice, witness summons or matter; or

(c) to a person for the purpose of obtaining legal aid relating to a notice, witness summons or matter; or

(d) to an officer or agent of a body corporate by the body corporate or another officer or agent of the body corporate for the purpose of ensuring compliance with a notice or witness summons; or

(e) to the Ombudsman for the purpose of, or in connection with, a complaint to the Ombudsman; or

(f) by a legal practitioner for the purpose of complying with a legal duty of disclosure arising from his or her professional relationship with a client; or

(g) by a legal practitioner referred to in paragraph (b) for the purpose of giving legal advice, making representations, or obtaining legal aid, relating to the notice, witness summons or matter; or

(h) by a person referred to in paragraph (c) for the purpose of obtaining legal aid relating to a notice, witness summons or matter; or

(i) if that disclosure is otherwise authorised or required under this Act.

(4) This section does not apply to a member of OPI personnel.

s. 23



23


restricted matter means—

(a) any evidence given before the Director;

(b) the contents of any statement of information or document, or a description of any thing, produced to the Director;

(c) the contents of any document, or a description of any thing, seized under this Act;

(d) any information that might enable a person who has been, or is about to be, examined before the Director to be identified or located;

(e) the fact that a person has been, or may be about to be, examined before the Director;

(f) the existence of a witness summons;

(g) the subject matter of an investigation in relation to which a witness summons has been issued.

24 Disclosure of information to law enforcement agencies and corresponding authorities

(1) The Director may disclose to the Chief Commissioner or another member of Victoria Police any information obtained or received in the course or as a result of the performance of the functions of the Director under this Act, being information relating to a matter—

(a) relevant to the performance of functions or duties by the Chief Commissioner or other member; or

s. 24



24

(b) arising out of a joint undertaking between the Office of Police Integrity and Victoria Police.

(2) The Director may disclose to a law enforcement agency, a law enforcement officer or a corresponding authority of another jurisdiction any information obtained or received in the course or as a result of the performance of the functions of the Director under this Act, being information relating to a matter—

(a) arising under an Act of the other jurisdiction; or

(b) arising out of a joint undertaking between Victoria and the other jurisdiction.


corresponding authority of another jurisdiction, means—

(a) the Australian Crime Commission;

(b) the Australian Commission for Law Enforcement Integrity;

(c) the Corruption and Crime Commission of Western Australia;

(d) the Crime and Misconduct Commission of Queensland;

(e) the Independent Commission Against Corruption of New South Wales;

(f) the New South Wales Crime Commission;

(g) the Police Integrity Commission of New South Wales;

(h) any other person or body having the function under the law of that other jurisdiction of investigating the conduct

s. 24



25

of law enforcement agencies or law enforcement officers of that other jurisdiction;

jurisdiction means the Commonwealth or a State or Territory of the Commonwealth;

law enforcement agency of another jurisdiction, means—

(a) the police force or police service (however described) of that jurisdiction; or

(b) a body prescribed by the regulations as a law enforcement agency of that jurisdiction;

law enforcement officer of another jurisdiction, means a member, officer, employee or member of staff (however described) of a law enforcement agency of that jurisdiction.

25 Disclosure of information to the Privacy Commissioner

The Director may disclose to the Privacy Commissioner appointed under the Information Privacy Act 2000 any information obtained or received in the course or as a result of the performance of the functions of the Director under this Act, being information relevant to the performance of functions or duties by the Privacy Commissioner.

26 Disclosure of information to the Ombudsman The Director may disclose to the Ombudsman any information obtained or received in the course of or as a result of the performance of the functions of the Director under this Act, being information relevant to the performance of functions or duties by the Ombudsman.

s. 25



26

27 Disclosure of information to the Auditor-General The Director may disclose to the Auditor-General any information obtained or received in the course of or as a result of the performance of the functions of the Director under this Act, being information relevant to the performance of functions or duties by the Auditor-General.

28 Annual and other reports to Parliament (1) The Director must make a report to Parliament on

the performance of his or her functions under this Act during each financial year.

(2) The Director may at any time make a report to Parliament on any matter arising in connection with the performance of his or her functions under this Act.

(3) The Director must not include in any report under this section any information that discloses the identity of a person to whom, or in respect of whom, a direction has been given under Division 5 of this Part or Division 4A of Part IV of the Police Regulation Act 1958.

29 Transmission of reports to Parliament (1) The Director must cause a report under section 28

to be transmitted to each House of Parliament—

(a) in the case of a report under section 28(1)—as soon as practicable after the end of the financial year to which it relates;

(b) in the case of a report under section 28(2)—as soon as practicable after it is completed.

(2) The clerk of each House of Parliament must cause the report to be presented to the House on the day on which it is received or on the next sitting day of the House.

s. 27



27

(3) If the Director proposes to transmit a report to Parliament when Parliament is in recess, the Director must—

(a) give one business day's notice of his or her intention to do so to the clerk of each House of Parliament; and

(b) give the report to the clerk of each House on the day indicated in the notice; and

(c) publish the report on the Director's Internet site as soon as practicable after giving it to the clerks.

(4) The clerk of each House must—

(a) notify each member of the House of the receipt of a notice under subsection (3)(a) on the same day that the clerk receives that notice; and

(b) give a copy of a report to each member of the House as soon as practicable after the report is received under subsection (3)(b); and

(c) cause the report to be presented to the House on the next sitting day of the House.

(5) A report that is given to the clerks under subsection (3)(b) is taken to have been published by order, or under the authority, of the Houses of Parliament.

(6) The publication of a report by the Director under subsection (3)(c) is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and any other enactment or rule of law relating to the publication of the proceedings of Parliament apply to and in relation to the publication of the report as if it were a report to which those sections applied and had

s. 29



28

been published by the Government Printer under the authority of Parliament.

(7) For the purposes of this section, Parliament is in recess when each House stands adjourned to a date to be fixed by the presiding officer of that House.

Division 5—Testing of OPI personnel for alcohol or drugs of dependence

30 Definitions In this Division—

critical incident means an incident involving a member of OPI personnel while that member was on duty which—

(a) resulted in the death of, or serious injury to, a person; and

(b) also involved any one or more of the following—

(i) the discharge of a firearm by the member;

(ii) the use of force by the member;

(iii) the use of a motor vehicle by the member (including as a passenger) in the course of the member's duties;

(iv) the death of, or serious injury to, the person while the person was in the custody of the member;

drug of dependence has the same meaning as it has in the Drugs, Poisons and Controlled Substances Act 1981;

s. 30



29

registered medical practitioner has the same meaning as it has in the Health Professions Registration Act 2005;

serious injury includes an injury that—

(a) is life threatening; or

(b) is likely to result in permanent impairment; or

(c) is likely to require long-term rehabilitation; or

(d) is, in the opinion of the Director, of such nature, or occurred in such circumstances, that the infliction of it is likely to bring the Office of Police Integrity into disrepute or diminish public confidence in it.

31 Testing of members of OPI personnel in certain circumstances

(1) This section applies to a member of OPI personnel if the Director reasonably believes that the member—

(a) because of the consumption of alcohol or a drug of dependence by the member, is incapable of performing his or her duties, or is inefficient in performing his or her duties; or

(b) has been involved in a critical incident; or

(c) ought to be tested for alcohol or a drug of dependence in order for the Director—

(i) to manage the member's performance of his or her duties; or

(ii) to take disciplinary action against the member.

s. 31



30

(2) The Director may, in accordance with the regulations, direct a member of OPI personnel to whom this section applies to do one or more of the following—

(a) furnish a sample of breath; or

(b) furnish a sample of urine; or

(c) allow a registered medical practitioner to take from the member a sample of the member's blood—

for the purpose of testing for the presence of alcohol or a drug of dependence.

(3) The Director—

(a) must not give a direction under subsection (2) unless satisfied that the results of the testing may be relevant to—

(i) the management of the member's performance of his or her duties; or

(ii) any disciplinary action that may be taken, or is being taken, against the member; and

(b) may give a direction in the circumstances referred to in subsection (1)(b) only if—

(i) in the case of a critical incident referred to in paragraph (b)(iii) of the definition of critical incident, the direction is given within 3 hours after the critical incident occurred; or

(ii) in the case of any other critical incident, the direction is given within a reasonable time after the critical incident occurred.

(4) No action lies against a registered medical practitioner in respect of anything properly and necessarily done by the practitioner in the course

s. 31



31

of taking any sample which the practitioner believes on reasonable grounds was required or allowed to be taken from any member under this Division.

(5) Nothing in this section affects the operation of Part 5 of the Road Safety Act 1986.

32 Director may have regard to evidence in certain circumstances

The Director may have regard to evidence derived from a sample obtained in accordance with a direction made under this Division in—

(a) managing the member's performance of his or her duties; or

(b) taking any disciplinary action against the member.

33 Taking of sample when member is unconscious or otherwise unable to comply with direction

(1) If a member of OPI personnel whom the Director reasonably believes was involved in a critical incident is unconscious or is otherwise unable to comply with a direction given to him or her, the Director may direct a registered medical practitioner to take from the member a sample of the member's blood for analysis for the purpose of testing for the presence of alcohol or a drug of dependence.

(2) If a sample of a member's blood is taken in the circumstances referred to in subsection (1), the Director must, upon the member regaining consciousness or otherwise becoming able to comply with a direction given to him or her, advise the member—

(a) of the taking of the sample; and

s. 32



32

(b) that he or she may refuse to consent to the use of any evidence derived from the sample; and

(c) if the member is a member of Victoria Police—that a refusal to consent to the use of the evidence constitutes a breach of discipline; and

(d) if the member is not a member of Victoria Police—that a refusal to consent to the use of the evidence may constitute grounds for disciplinary action against the member.

(3) Evidence derived from a sample obtained in accordance with a direction under subsection (1) must be destroyed if the member from whom the sample was taken refuses to consent to the use of the evidence in the circumstances set out in that subsection.

(4) The Director must cause any sample taken under subsection (1) and in respect of which consent is refused under subsection (2) to be destroyed.

(5) Nothing in this section affects the operation of Part 5 of the Road Safety Act 1986.

34 Admissibility of test result in certain proceedings (1) Evidence derived from a sample obtained in

accordance with a direction made under section 31 or 33 is inadmissible in any proceeding in a court, tribunal or before a person or body authorised to hear and receive evidence.

(2) Subsection (1) does not apply—

(a) in a proceeding under the Accident Compensation Act 1985 to rebut or support an allegation that the presence of alcohol or a drug of dependence contributed to the injury in respect of which the proceeding was commenced; or

s. 34



33

(b) in a prosecution under the Occupational Health and Safety Act 2004 to rebut or support an allegation that the presence of alcohol or a drug of dependence contributed to the occurrence of the act, matter or thing constituting the offence in respect of which the prosecution is brought; or

(c) in a proceeding arising out of, or connected with, a critical incident.

(3) Subsection (2) does not apply to evidence derived from a sample obtained in accordance with a direction made under section 33 if the member from whom the sample was taken refuses or has refused to consent to the use of the evidence in the circumstances set out in section 33(2).

(4) In this section, a proceeding includes a coronial inquest or inquiry.

35 Confidentiality of test results The Director must ensure that the result of any test conducted in accordance with a direction given under this section is handled in accordance with the regulations.

36 Offence to disclose identifying information (1) A person must not, other than as required or

authorised by this Act or the regulations, disclose to any other person the identity of a person to whom or in respect of whom a direction is given under this Division.

Penalty: 60 penalty units.

(2) Subsection (1) does not apply to the disclosure of information in a proceeding of a kind referred to in section 34(2).

s. 35



34

37 Regulations (1) The regulations may make provision for or with

respect to—

(a) the persons authorised—

(i) to administer breath tests or to conduct breath analyses or other tests for the purpose of detecting the presence of alcohol or drugs of dependence; and

(ii) to operate equipment for that purpose;

(b) the circumstances in which a breath sample, a urine sample or a blood sample may be taken;

(c) the procedure for the taking of samples of breath, urine or blood;

(d) the devices used in carrying out the breath tests, breath analyses and other tests, including the calibration, inspection and testing of those devices;

(e) the accreditation of persons conducting analyses for the presence of drugs of dependence;

(f) the procedure for the handling and analysis of samples of urine or blood;

(g) offences relating to interference with test results or the testing procedure;

(h) the handling and confidentiality of test results.

(2) Regulations for the purposes of this section may—

(a) require matters affected by the regulations to be—

(i) in accordance with specified standards or specified requirements; or

s. 37



35

(ii) approved by or to the satisfaction of specified persons or bodies or specified classes of persons or bodies; or

(iii) as specified in both subparagraphs (i) and (ii);

(b) apply, adopt or incorporate any matter contained in any document whether—

(i) wholly or partially or as amended by the regulations;

(ii) as in force at a particular time or as in force from time to time;

(c) impose a penalty not exceeding 20 penalty units for contraventions of the regulations.

__________________

s. 37

Part 3—Police Complaints and Investigations


36

PART 3—POLICE COMPLAINTS AND INVESTIGATIONS

Division 1—Complaints

38 Application of Division This Division applies to a complaint made to the Director under section 86L of the Police Regulation Act 1958.

39 Whistleblowers Protection Act 2001 applies to certain complaints

(1) This Act and the Whistleblowers Protection Act 2001 apply to a complaint made by a member of Victoria Police in accordance with section 86L(2A) of the Police Regulation Act 1958 to the Director about the Chief Commissioner, as if the complaint were a disclosure made to the Director in accordance with Part 2 of the Whistleblowers Protection Act 2001.

(2) This Act and the Whistleblowers Protection Act 2001 apply to a complaint made by a member of Victoria Police in accordance with section 86L(2A) of the Police Regulation Act 1958 to the Director about any other member of Victoria Police, as if the complaint were a disclosure made to the Director in accordance with Part 2 of the Whistleblowers Protection Act 2001.

40 Dealing with complaints (1) The Director may determine that a complaint does

not warrant investigation—

(a) if in the Director's opinion—

(i) the subject-matter of the complaint is trivial; or

(ii) the complaint is frivolous or vexatious or is not made in good faith; or

s. 38



37

(b) if the complainant had had knowledge for more than a year of the conduct complained of and fails to give a satisfactory explanation for the delay in making the complaint.

(2) Subject to subsection (4), the Director must refer a complaint warranting investigation to the Chief Commissioner.

(3) If the Director refers a complaint to the Chief Commissioner under subsection (2), the Chief Commissioner must investigate the complaint under Division 2 of Part IVA of the Police Regulation Act 1958.

(4) The Director—

(a) must investigate a complaint if the conduct complained of is conduct of the Chief Commissioner or of a Deputy or Assistant Commissioner; and

(b) may investigate a complaint if the conduct complained of—

(i) is of such a nature that the Director considers that investigation of the complaint by the Director is in the public interest; or

(ii) is in accordance with established practices or procedures of Victoria Police and the Director considers that those practices or procedures should be reviewed.

(5) In a case to which subsection (4) applies, if the complaint was not first made to a member of Victoria Police, the Director may give the Chief Commissioner details of the complaint.

s. 40



38

(6) The Director may attempt to resolve a complaint by conciliation and must—

(a) before commencing to conciliate, notify the Chief Commissioner of the proposed attempt; and

(b) notify the Chief Commissioner of the results of the attempt.

41 Advice to complainant (1) The Director must advise a complainant in writing

of the results of the investigation of the complaint and of any further investigation under section 48 and of the action taken or proposed to be taken.

(2) Subsection (1) does not apply if the Director is of the opinion that it would be contrary to the public interest to advise the complainant of the results of the investigation or of the action taken or proposed to be taken.

42 Jurisdiction (1) If the question arises of whether or not the

Director has jurisdiction to investigate a complaint, the Director, the Chief Commissioner or any member of Victoria Police who is the subject of the complaint may apply to the Supreme Court for a determination of that question.

(2) The Supreme Court may make any order it considers proper on an application under subsection (1).

Division 2—Investigations

43 Application of Division This Division applies to—

(a) an investigation by the Director of a complaint referred to in section 38; or

s. 41



39

(b) an investigation initiated by the Director under section 44.

Note

The general investigatory powers in Part 4 also apply to these investigations—see section 52.

44 Own motion investigations (1) The Director may conduct an investigation on his

or her own motion in respect of any matter that is relevant to the achievement of his or her objects, including but not limited to—

(a) an investigation into the conduct of a member of Victoria Police; or

(b) an investigation into police corruption or serious misconduct generally; or

(c) an investigation into any of the policies, practices or procedures of Victoria Police or of a member of Victoria Police, or the failure of those policies, practices or procedures.

(2) For the purposes of subsection (1), the Director may conduct an investigation—

(a) whether or not any particular member of Victoria Police or other person has been implicated;

(b) whether or not any serious misconduct or other misconduct is suspected;

(c) whether or not any person under investigation who was a member of Victoria Police at any relevant time is still a member of Victoria Police at the time of the investigation.

(3) The Director may give written notice of an investigation on his or her own motion to the Minister and the Chief Commissioner.

s. 44



40

45 Consultation with Chief Commissioner If, at any time during the course of an investigation, it appears to the Director that there may be grounds for making a report adverse to Victoria Police, the Director may, before making the report, give the Chief Commissioner the opportunity to comment on the subject-matter of the investigation.

46 Investigation when other proceedings on foot (1) The Director may commence or continue to

conduct an investigation despite the fact that any proceedings are on foot, or are instituted, in any court or tribunal that relate to or are otherwise connected with the subject-matter of the investigation.

(2) If the Director is or becomes aware that proceedings referred to in subsection (1) are on foot or have been instituted, the Director must take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings.

47 Power to require police to give information and documents and answer questions

(1) For the purposes of an investigation into a complaint concerning a possible breach of discipline, the Director may direct any member of Victoria Police to give the Director any relevant information, produce any relevant document or answer any relevant question. Note

Failure to comply with a direction is a breach of discipline—see section 69(1)(ac) of the Police Regulation Act 1958.

s. 45



41

(2) Any information, document or answer given in accordance with a direction is not admissible in evidence before any court or person acting judicially, except in proceedings for—

(a) perjury or giving false information; or

(b) a breach of discipline by a member of Victoria Police; or

(c) an offence under section 113(2) concerning failure to comply with the direction; or

(d) review proceedings under Division 1 of Part IV of the Police Regulation Act 1958.

48 Further investigations (1) After receiving the report on an investigation

completed by the Chief Commissioner under Part IVA of the Police Regulation Act 1958, the Director may—

(a) request the Chief Commissioner to conduct a further investigation into the complaint; or

(b) conduct such an investigation himself or herself under this Part.

(2) The Chief Commissioner must—

(a) in accordance with section 86O of the Police Regulation Act 1958, conduct the further investigation as requested; or

(b) report in writing to the Director as to why such an investigation is not considered necessary.

(3) After receiving the report on an investigation or further investigation completed by the Chief Commissioner, the Director may—

(a) in writing request the Chief Commissioner to take any action the Director considers appropriate in addition to any action taken or

s. 48



42

proposed to be taken by the Chief Commissioner or in substitution for any action proposed to be taken by the Chief Commissioner;

(b) refer to the Director of Public Prosecutions any matter that is relevant to the performance of functions or duties by the Director of Public Prosecutions.

(4) If the Director refers a matter to the Director of Public Prosecutions under subsection (3)(b)—

(a) the Director must notify the Chief Commissioner in writing—

(i) of the referral; and

(ii) of the advice received from the Director of Public Prosecutions in respect of the referral; and

(b) the Chief Commissioner must not take any disciplinary action, or further disciplinary action, against a member of Victoria Police who is the subject of the referral until the Chief Commissioner has received the Director's notification under paragraph (a)(ii).

49 Chief Commissioner to respond to Director If, under this Part, the Director requests the Chief Commissioner to take any action, or to conduct a further investigation, the Chief Commissioner must give a written response to the Director stating—

(a) whether or not the Chief Commissioner proposes to take the action or conduct the further investigation; and

(b) if the Chief Commissioner does not propose to take the action or conduct the further investigation, the reasons for that decision.

s. 49



43

50 Report on investigation (1) After completing an investigation, the Director—

(a) may make a written report on the results of the investigation to any one or more of—

(i) the Chief Commissioner;

(ii) the Minister;

(iii) the Premier; and

(b) in the report, may request the taking of any action that the Director considers should be taken.

(2) The Director must not include in any report under subsection (1)(a)(ii) or (iii) any information that discloses the identity of a person to whom, or in respect of whom, a direction has been given under Division 4A of Part IV of the Police Regulation Act 1958.

51 Exemption from Freedom of Information Act 1982 (1) The Freedom of Information Act 1982 does not

apply to a document that is in the possession of a relevant person or body to the extent to which the document discloses information that relates to—

(a) a complaint investigated by the Director under this Part; or

(b) an investigation under this Part (whether in relation to a complaint or otherwise); or

(c) a report on that investigation, including a report on the progress of the investigation.


document has the same meaning as in the Freedom of Information Act 1982;

s. 50



44

relevant person or body means—

(a) the Special Investigations Monitor;

(b) an employee in the office of the Special Investigations Monitor;

(c) the Director;

(d) the Acting Director;

(e) a member of staff of the Office of Police Integrity;

(f) a person engaged under section 17(1)(b), or an officer or employee of such a person;

(g) a body engaged under section 17(1)(b), or a member, officer or employee of such a body.

__________________

s. 51

Part 4—General investigatory powers


45

PART 4—GENERAL INVESTIGATORY POWERS

Division 1—Preliminary

52 Application of Part This Part applies for the purposes of an investigation by the Director under Part 3.

Division 2—Witness summonses

53 Witness summons (1) The Director may issue the following witness

summonses—

(a) a summons to attend an examination before the Director to give evidence;

(b) a summons to attend at a specified time and place to produce specified documents or other things to the Director;

(c) a summons to attend an examination before the Director to give evidence and produce specified documents or other things.

(2) The Director may issue a summons directed to a person, other than a person referred to in subsection (3), if the Director is satisfied that it is reasonable in the circumstances to do so, after consideration of—

(a) the evidentiary or intelligence value of the information sought to be obtained from the person; and

(b) the age of the person, and any mental impairment to which the person is known to be subject.

(3) The Director must not issue a summons directed to a person known to be under the age of 16 years.

s. 52



46

54 Content and form of witness summons (1) A witness summons must require the person to

whom it is directed to attend at a specified place on a specified date and at a specified time and from day to day unless excused or released from further attendance—

(a) to give evidence before the Director; or

(b) to produce for examination by the Director any documents or other things described in the summons that are in the person's possession or control; or

(c) both to give evidence and produce for examination any documents or other things described in the summons that are in the person's possession or control.

(2) A summons must state the general nature of the matters about which the person to whom it is directed is to be questioned, except to the extent to which the Director considers that statement would prejudice the conduct of the investigation to which the summons relates.

(3) A summons—

(a) must be in the prescribed form (if any); and

(b) must include a statement that if the person summoned is under the age of 16 years at the date of issue of the summons, the person need not comply with the summons.

55 Witness summons directed to person under 16 (1) A witness summons directed to a person under the

age of 16 years at the date of issue of the summons has no effect.

s. 54



47

(2) A person who claims to be under the age of 16 years at the date of issue of a summons directed to the person must give notice in writing and proof of age to the Director.

56 Service of witness summons (1) A witness summons directed to a natural person

must be served by delivering a copy of the summons to the person personally.

(2) A witness summons directed to a body corporate must be served by sending a copy of the summons by registered post to the head office, a registered office, a principal office or a principal place of business of the body corporate or to a postal address of the body corporate.

(3) A summons, other than a summons referred to in subsection (4), must be served a reasonable time before the date on which the person is required to attend.

(4) The Director may issue a summons that requires the immediate attendance before the Director of the person to whom it is directed if the Director reasonably believes that a delay in the person's attendance is likely to result in—

(a) evidence being lost or destroyed; or

(b) the commission of an offence; or

(c) the escape of an offender; or

(d) serious prejudice to the conduct of the investigation to which the summons relates.

s. 56



48

57 Witness already held in custody (1) This section applies if—

(a) a witness summons is issued for the purposes of an investigation; and

(b) the summons is directed to a person who is held in a prison or police gaol.

(2) The Director may give a written direction that the person be delivered into the custody of a member of Victoria Police for the purpose of bringing the person before the Director to provide information, produce a document or thing or give evidence as required by the summons.

(3) A direction under subsection (2)—

(a) must be in the prescribed form (if any); and

(b) must include a statement that if the person who is the subject of the direction is under the age of 16 years at the date the direction is given, the direction is of no effect and the person is not required to attend the Director; and

(c) if the person is aged 16 years or over, has effect as a suspension of a direction in a warrant of commitment to deliver the person to the place of detention specified in the warrant or to hold the person in that place (as the case may be).

(4) The person is to be detained in police custody until he or she is excused by the Director from attendance.

(5) When the person is excused from attendance by the Director, the member of Victoria Police must deliver the person who is the subject of the direction to the place of detention at which the person was held or detained at the time the direction was given.

s. 57



49

58 Confidentiality of witness summons (1) Subject to subsections (2) and (3), the Director

may issue a written notice (a confidentiality notice) directed to a person to whom a witness summons is directed, stating—

(a) that the summons is a confidential document; and

(b) that it is an offence to disclose to anyone else, except in the circumstances, if any, specified in the notice, the existence of the document or the subject-matter of the investigation in relation to which the summons was issued, unless the person has a reasonable excuse.

(2) The Director must issue a confidentiality notice if satisfied that failure to do so would reasonably be expected to prejudice—

(a) the safety or reputation of a person; or

(b) the fair trial of a person who has been or may be charged with an offence; or

(c) the effectiveness of the investigation in relation to which the summons was issued.

(3) The Director may issue a confidentiality notice if satisfied that failure to do so—

(a) might prejudice—

(i) the safety or reputation of a person; or

(ii) the fair trial of a person who has been or may be charged with an offence; or

(iii) the effectiveness of the investigation in relation to which the summons was issued; or

(b) might otherwise be contrary to the public interest.

s. 58



50

(4) A confidentiality notice directed to a natural person must be served by delivering a copy of the notice to the person personally.

(5) A confidentiality notice directed to a body corporate must be served by sending a copy of the notice by registered post to the head office, a registered office, a principal office or a principal place of business of the body corporate or to a postal address of the body corporate.

(6) If the Director has issued a confidentiality notice directed to a person and the Director is satisfied that the circumstances referred to in subsection (2) or (3) that led to the issuing of the notice no longer apply, the Director must give written notice of that fact to the person to whom the confidentiality notice was directed.

(7) Notice under subsection (6) may be given to a person by sending it by registered post to the person's address last known to the Director.

59 Person must comply with confidentiality notice (1) While a confidentiality notice has effect, the

person to whom it is directed must not, without reasonable excuse, disclose to anyone else, except in the circumstances, if any, specified in the notice—

(a) the existence of the witness summons; or

(b) the subject-matter of the investigation in relation to which the witness summons was issued.


(2) It is a reasonable excuse for a person to disclose the existence of the witness summons or the subject-matter of the investigation in relation to which it was issued if—

s. 59



51

(a) the disclosure is made for the purposes of—

(i) seeking legal advice or legal aid in relation to the summons or an offence against subsection (1); or

(ii) obtaining information in order to comply with the summons; or

(iii) complying with, or disclosing information as permitted by, this Act, the Police Regulation Act 1958 or the Whistleblowers Protection Act 2001; and

(b) the person informs the person to whom the disclosure is made that it is an offence to disclose to anyone else the existence of the summons or the subject-matter of the investigation in relation to which it was issued unless the person has a reasonable excuse.

(3) It is a reasonable excuse for a person to disclose the existence of the witness summons or the subject-matter of the investigation in relation to which it was issued if the disclosure is made to the Ombudsman for the purposes of, or in connection with, a complaint to the Ombudsman.

60 When does confidentiality notice cease to have effect?

(1) A confidentiality notice ceases to have effect on the earliest to occur of the following—

(a) a period of 5 years (or that period as extended under subsection (2)) elapses after the notice is given; or

(b) notice is given under section 58(6); or

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52

(c) the investigation to which the witness summons relates has been concluded and a decision is made not to commence any criminal proceedings in which evidence obtained in the investigation would be relevant.

(2) A court, on the application of the Director, may extend the 5-year period referred to in subsection (1)(a), if the court is satisfied that an extension is necessary to protect—

(a) an investigation that is continuing (whether or not the investigation is, or is related to, the investigation in relation to which the witness summons was issued); or

(b) any proceedings that have been commenced but not finally determined.

(3) If a confidentiality notice ceases to have effect under subsection (1)(c), the Director must give notice in writing of that fact to each person to whom the confidentiality notice was directed.

(4) Notice under subsection (3) may be given to a person by sending it by registered post to the person's address last known to the Director.

Division 3—Examinations

61 Director may conduct examinations (1) The Director may conduct an examination for the

purposes of an investigation.

(2) The Director is not bound by the rules of evidence in conducting an examination and, subject to this Division, may regulate the conduct of the examination as he or she thinks fit.

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53

62 Preliminary requirements (1) Before any question is asked of a witness at an

examination, or a witness produces a document or other thing to the Director, the Director must—

(a) confirm the age of the witness, if the Director suspects that the witness may be under the age of 18 years; and

(b) if the witness is under the age of 16 years, release the witness from all compliance with the witness summons; and

(c) inform the witness of the general scope and purpose of the investigation to which the examination relates; and

(d) inform the witness that the privilege against self-incrimination does not apply but that there are restrictions on the use that can be made of evidence obtained in the course of the examination or from production of documents or other things in accordance with the witness summons and specify those restrictions; and

(e) subject to paragraph (f), inform the witness that legal professional privilege applies but that, subject to that privilege, it is an offence not to answer questions or produce documents or other things when required or give false or misleading evidence and state the penalties for those offences; and

(f) if the witness is a public officer or giving evidence or producing a document or other thing on behalf of a public authority—

(i) inform the witness that legal professional privilege does not apply (except to the extent provided in section 70(4)) and that it is an offence not to answer questions or produce

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54

documents or other things when required or give false or misleading evidence and state the penalties for those offences; and

(ii) inform the witness of the provisions of section 74; and

(g) inform the witness of any confidentiality requirements applying to evidence or the fact of the issue of the witness summons; and

(h) where applicable, inform the witness of his or her right to legal representation, to an interpreter or to have his or her parent or guardian or an independent person present with whom he or she may communicate before giving any evidence; and

(i) inform the witness of his or her right of complaint to the Special Investigations Monitor and that the exercise of this right will not breach any confidentiality requirements referred to in paragraph (g).

(2) Subsection (1)(c) does not apply if the Director is of the opinion that in the circumstances it would be undesirable to inform the witness of the general scope and purpose of the investigation because to do so might prejudice the effectiveness of the investigation or otherwise be contrary to the public interest.

(3) For the avoidance of doubt, the Director is not required to give reasons for forming the opinion referred to in subsection (2).

(4) The Director is not required to inform the witness of the matters referred to in subsection (1)(d), (e), (f), (g), (h) and (i) if—

(a) prior to the examination, the Director has given the witness a document that informs the witness of those matters; and

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55

(b) the witness is represented at the examination by a legal practitioner; and

(c) before any question is asked of the witness, or the witness produces a document or other thing, the witness informs the Director that the legal practitioner explained the document referred to in paragraph (a) to the witness.

63 Witness under 16 If, at any time during an examination, the Director becomes aware that a witness is under the age of 16 years, the Director must immediately release the person from all compliance with the witness summons.

64 Representation of witness (1) A witness giving evidence, providing information

or producing a document or thing at an examination may be represented by a legal practitioner.

(2) If a witness does not have knowledge of the English language that is sufficient to enable the witness to understand questions asked of him or her, the Director must, before the examination commences, arrange for the presence of a competent interpreter and defer the examination until the interpreter is present.

(3) If a witness is under the age of 18 years, the Director must direct—

(a) that a parent or guardian of the witness or an independent person is to be present during the examination, if the witness so wishes; and

(b) that the witness may confer with the parent, guardian or independent person before giving any evidence, providing any

s. 63



56

information or producing any document or thing.

(4) If a witness is believed by the Director to have a mental impairment, the Director must direct—

(a) that an independent person is to be present during the examination, if the witness so wishes; and

(b) that the witness may confer with the independent person before giving any evidence, providing any information or producing any document or thing.

(5) If the Director considers that there are special circumstances, the Director may allow a person (other than the witness) to be represented by a legal practitioner while a witness is being examined.

(6) The Director may refuse to allow a witness to be represented by a person who is, or is representing—

(a) another witness in the examination; or

(b) a witness in another examination (whether or not in relation to the same investigation); or

(c) a person who is involved or suspected of being involved in a matter being investigated (whether as part of the investigation to which the examination relates or any other investigation).

(7) The Director may refuse to allow a witness to be represented by a specified person or law practice in the interests of the investigation to which the examination relates.

(8) The Director must inform a person who is representing a witness of the requirements of section 23.

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65 Private and public examinations (1) An examination is not open to the public except as

provided by this section.

(2) The Director may open an examination to the public if, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, the Director considers that it is in the public interest to do so.

(3) The Director may give directions as to the persons who may be present during an examination or part of an examination.

(4) Nothing in a direction given by the Director under subsection (3) prevents the presence, when evidence is being taken at an examination, of—

(a) a legal practitioner representing the witness giving evidence; or

(b) a member of staff of the Office of Police Integrity.

(5) If an examination is not open to the public, a person must not be present at the examination unless he or she is—

(a) entitled to be present by reason of a direction given by the Director under subsection (3) or section 64; or

(b) a legal practitioner, or other person, appointed by the Director to assist the Director in the examination; or

(c) authorised to be present by subsection (4) or section 64.

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66 Taking of evidence (1) At an examination—

(a) the Director; or

(b) a legal practitioner representing the witness; or

(c) any person authorised by the Director to do so—

may, so far as the Director thinks appropriate, examine or cross-examine any witness on any matter that the Director considers relevant to the investigation to which the examination relates.

(2) The Director may take evidence on oath or affirmation and, for that purpose, may—

(a) require a person appearing at the examination to give evidence either to take an oath or make an affirmation; and

(b) administer an oath or affirmation to a person so appearing at the examination.

(3) The Director may take a statutory declaration from any witness or other person.

(4) Subject to Division 4, a person cannot be compelled to give any evidence or produce any document or thing in an examination or in accordance with a witness summons that he or she could not be compelled to give or produce in proceedings before a court.

67 Video-recording of examination (1) This section applies if—

(a) a person attends the Director in an examination, or otherwise, in accordance with a witness summons; or

s. 66



59

(b) a person attending an examination voluntarily is required—

(i) to be sworn or to make an affirmation; or

(ii) to answer a question.

(2) The Director must ensure that the person's attendance is video-recorded.

(3) Subject to subsection (4), evidence of anything said by the person during the attendance after the relevant time is inadmissible as evidence against any person in any proceeding unless the attendance was video-recorded from the relevant time and the video-recording is available to be tendered in evidence.

(4) A court may admit evidence of anything said by a person during an attendance that is otherwise inadmissible because of subsection (3) if the court is satisfied on the balance of probabilities that the circumstances—

(a) are exceptional; and

(b) justify the reception of the evidence.


relevant time means—

(a) in the circumstances set out in subsection (1)(a)—the time the person began giving evidence or producing a document or thing in compliance with the summons;

(b) in the circumstances set out in subsection (1)(b)—the time the requirement was made.

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68 Failure of witnesses to attend and answer questions (1) A person duly served with a witness summons to

appear as a witness at an examination before the Director must not, without reasonable excuse—

(a) fail to attend as required by the summons; or

(b) fail to attend from day to day unless excused, or released from further attendance, by the Director.

(2) A person appearing as a witness before the Director must not—

(a) at an examination, without reasonable excuse, refuse or fail to answer a question that he or she is required to answer by the Director; or

(b) without reasonable excuse, refuse or fail to produce a document or other thing that he or she was required to produce by the witness summons.

(3) A person who contravenes subsection (1) or (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

(4) A person does not contravene subsection (2)(b) if the Director withdraws the requirement to produce the document or other thing that the person was required to produce by the summons.

(5) A person does not contravene subsection (1) or (2) if the person is under the age of 16 years at the date of issue of the summons.

Division 4—Privileges and secrecy provisions

69 Privilege against self-incrimination abrogated (1) A person is not excused from answering a

question or giving information at an examination, or from producing a document or other thing at an

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examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.

(2) Subsection (3) limits the use that can be made of any answers or information given at an examination or any documents or other things produced at an examination or in accordance with a witness summons.

(3) The answer, information, document or thing is not admissible in evidence against the person before any court or person acting judicially, except in proceedings for—


(b) a breach of discipline by a member of Victoria Police; or

(c) failure to comply with a direction under section 47; or

(d) an offence referred to in section 68(3); or

(e) contempt of the Director under Division 6.

70 Legal professional privilege (1) If—

(a) a person is required to answer a question at an examination or produce a document before the Director; and

(b) the answer to the question would disclose, or the document contains, a communication that is recognised at law as privileged on the ground of legal professional privilege—

the person is, subject to subsections (2) and (3), entitled to refuse to comply with the requirement.

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62

(2) If—

(a) a legal practitioner is required to answer a question at an examination or produce a document before the Director; and

(b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner—

the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, if the legal practitioner refuses to comply with the requirement, he or she, if so required by the Director, must give the Director the name and address of the person to whom or by whom the communication was made.

(3) Subsections (1) and (2) do not apply to any privilege of a public authority or public officer.

(4) Nothing in subsection (3) affects the right of a public authority or public officer to object to the answering of a question or production of a document in relation to a criminal proceeding to which the authority or officer is a party on the ground of legal professional privilege, whether that proceeding commenced before, on or after the requirement referred to in subsection (1) or (2) was made.

71 Procedure for determining claims of legal professional privilege

(1) If a person claims at an examination or on production of a document before the Director that the document is the subject of legal professional privilege (other than privilege of a public

s. 71



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authority or a public officer), the procedure set out in this section applies.

(2) The claimant must attend before the Director in accordance with the witness summons.

(3) The Director must consider the claim of privilege and either—

(a) withdraw the requirement to produce the document; or

(b) apply to the Supreme Court or County Court in accordance with section 72 for determination of the claim of privilege.

(4) The Director must not inspect the document in considering the claim of privilege.

(5) If the Director does not withdraw the requirement to produce the document, the Director must require the claimant to seal the document immediately, and give it to the Director.

(6) As soon as practicable and in any event within 3 days after the sealing of the document, the Director must 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 to be held in safe custody.

(7) A person must not open a sealed document or other thing prior to delivery to the proper officer.

72 Application to court to determine legal professional privilege

(1) Within 7 days after the Director gives a sealed document to the proper officer of a court in accordance with section 71, the Director may apply to the court to determine whether or not the document is the subject of legal professional privilege.

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64

(2) If no application is made under subsection (1) within the period of 7 days, the proper officer must return the document to the claimant for legal professional privilege.

(3) The Director must give notice of the application to the claimant for legal professional 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.

73 Determination of legal professional privilege (1) The court must determine whether or not the

sealed document is the subject of legal professional privilege and for that purpose the judge and any other person authorised by the court may open and inspect the sealed document.

(2) If the court determines that the sealed document is the subject of legal professional privilege, the court must order that the document be returned to the claimant and the proper officer must return it to the claimant.

(3) If the court determines that the sealed document is not the subject of legal professional privilege, the court must order that the document 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 otherwise have access to the document before—

(a) the court determines the claim of legal professional privilege; or

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65

(b) the document or thing is returned to the claimant.


74 Secrecy provisions and Crown privilege (1) No obligation to maintain secrecy or other

restriction on the disclosure of information obtained by or given to a public authority or public officer, where imposed by any enactment or any rule of law, applies to the disclosure of information for the purposes of an examination or investigation.

(2) The Crown is not, in relation to an examination or investigation, entitled to any privilege in respect of the production of documents or the giving of evidence as is allowed by law in legal proceedings.

Division 5—Legal assistance for witnesses

75 Definitions (1) In this Division—

approved law practice means a law practice approved by the Secretary under subsection (2);

legal assistance means payment by the Secretary to an approved law practice for legal advice and representation provided to a person appearing as a witness in an examination;

Secretary means the Secretary to the Department of Justice.

(2) The Secretary may approve a law practice to be an approved law practice for the purposes of this Division.

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66

76 Provision of legal assistance to witnesses (1) A person appearing as a witness in an examination

may apply to the Secretary for legal assistance in connection with his or her appearance as a witness.

(2) The Secretary may approve an application made under subsection (1) and in doing so may impose—

(a) a limit on the legal assistance to be provided; and

(b) any other condition on the approval.

77 Regulations The regulations may make provision for or with respect to the manner of calculating the amount of legal assistance provided by the Secretary including—

(a) by agreement as a result of a tender process;

(b) under a costs agreement;

(c) in accordance with an applicable practitioner remuneration order or scale of costs.

Division 6—Contempt

78 What constitutes contempt of Director? A person who, in answer to a witness summons, is attending an examination or otherwise attending the Director is guilty of a contempt of the Director if the person—

(a) fails without reasonable excuse to produce any document or other thing the person is required by the summons to produce; or

(b) being called or examined as a witness, refuses to be sworn or to make an affirmation or, without reasonable excuse,

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67

refuses or fails to answer any question relevant to the subject-matter of the investigation; or

(c) engages in any other conduct that would, if the Director were the Supreme Court, constitute a contempt of that Court.

79 Charging and arresting a person for contempt (1) If it is alleged or appears to the Director that a

person is guilty of a contempt of the Director, the Director may—

(a) issue a written certificate charging the person with contempt and setting out or attaching details of the alleged contempt (certificate of charge); and

(b) issue a warrant to arrest the person (arrest warrant).

(2) An arrest warrant—

(a) may be directed to—

(i) a named member of Victoria Police; or

(ii) generally all members of Victoria Police; and

(b) authorises the person to whom it is directed to arrest the person named in the warrant.

(3) A person who is arrested under an arrest warrant—

(a) is to be brought before the Supreme Court forthwith to be dealt with according to law; and

(b) may be detained in police custody in the meantime.

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80 Bail pending court appearance for contempt (1) If it is not practicable for a person who is arrested

under an arrest warrant to be brought before the Supreme Court forthwith after he or she is arrested—

(a) the person for the time being in charge of the place where he or she is detained must—

(i) advise the person that he or she is entitled to apply to a bail justice for discharge from custody; and

(ii) give the person a written statement, in the prescribed form (if any), of his or her right to apply; and

(b) if the person elects to apply, the person for the time being in charge of the place where he or she is detained must—

(i) give written notice to the Director of the person's election to apply; and

(ii) cause the person to be brought before a bail justice as soon as practicable; and

(iii) cause to be produced before the bail justice the arrest warrant and the certificate of charge for the person; and

(iv) abide by the decision of the bail justice in relation to the person.

(2) When a person is brought before a bail justice under subsection (1), the bail justice may, subject to this section, discharge the person from custody on bail in accordance with the Bail Act 1977 as if the person had been accused of an offence.

(3) A bail justice must not determine a bail application under this section unless satisfied that the Director has had sufficient time after receiving notice under subsection (1)(b)(i) to determine

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whether to oppose the grant of bail and if so to state that opposition to the bail justice.

81 Custody pending court appearance for contempt (1) If the Director is satisfied that there are reasonable

grounds to believe that it is necessary to prevent a person who is arrested under an arrest warrant from escaping from police custody or to ensure the safety of the person, the Director may direct that the person be detained in a prison or a police gaol for the purpose of ensuring his or her appearance before the Supreme Court.

(2) If a person detained in police custody under this Division, other than a person detained in accordance with a direction under subsection (1), is required to be detained overnight, the Chief Commissioner must arrange for the person to be provided with accommodation and meals to a standard comparable to that generally provided to jurors kept together overnight.

(3) If a person is detained in a prison in accordance with a direction under subsection (1), the Director may give a written direction for the person to be delivered into the custody of a member of Victoria Police for the purpose of bringing the person before the Supreme Court.

82 Supreme Court to deal with contempt (1) A contempt of the Director is to be dealt with by

the Supreme Court as if—

(a) the contempt were a contempt of an inferior court; and

(b) the certificate of charge were an application to the Supreme Court for punishment for the contempt.

(2) A certificate of charge is evidence of the matters set out in or attached to it.

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83 No double jeopardy If an act or omission constitutes both an offence against this Act and a contempt of the Director, the offender is liable to be proceeded against for the offence or for contempt or both, but is not liable to be punished more than once for the same act or omission.

Division 7—Arrest of recalcitrant witnesses

84 Warrant to arrest of recalcitrant witnesses (1) The Director may apply to a magistrate for the

issue of a warrant to arrest a person (an arrest warrant), if the Director believes on reasonable grounds that the person has been duly served with a witness summons and has failed to appear before or attend the Director in answer to the summons.

(2) A magistrate may issue an arrest warrant if satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for the belief under subsection (1).

(3) The authority given by, and the rules to be observed with respect to, warrants to arrest under Subdivision 2 of Division 3 of Part 4 of the Magistrates' Court Act 1989 (other than section 62 or 64(2), (3) or (4)) extend and apply to an arrest warrant.

(4) The issue of an arrest warrant, or the arrest of a person under the warrant, does not relieve the person from any liability for non-compliance with a witness summons.

(5) A person arrested under an arrest warrant—

(a) must be brought before the Director as soon as practicable; and

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(b) may be detained in police custody until excused from attendance by the Director.

85 Bail for person arrested (1) If it is not practicable for a person arrested under

an arrest warrant to be brought before the Director as soon as practicable after he or she is arrested—

(a) the person for the time being in charge of the place where he or she is detained must—

(i) advise the person that he or she is entitled to apply to a bail justice for discharge from custody; and

(ii) give the person a written statement, in the prescribed form (if any), of his or her right to apply; and

(b) if the person elects to apply, the person for the time being in charge of the place where he or she is detained must—

(i) give written notice to the Director of the person's election to apply; and

(ii) cause the person to be brought before a bail justice as soon as practicable; and

(iii) cause to be produced before the bail justice the arrest warrant for the person; and

(iv) abide by the decision of the bail justice in relation to the person.

(2) When a person is brought before a bail justice under subsection (1), the bail justice may, subject to this section, discharge the person from custody on bail in accordance with the Bail Act 1977 as if the person had been accused of an offence.

(3) A bail justice must not determine a bail application under this section unless satisfied that the Director has had sufficient time after receiving

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notice under subsection (1)(b)(i) to determine whether to oppose the grant of bail and if so to state that opposition to the bail justice.

86 Person held in custody (1) If the Director is satisfied that there are reasonable

grounds to believe that it is necessary to prevent a person arrested under an arrest warrant from escaping from police custody or to ensure the safety of the person, the Director may direct that the person be detained in a prison or a police gaol for the purpose of ensuring his or her attendance at the investigation.

(2) If a person detained in police custody under this section, other than a person detained in accordance with a direction under subsection (1), is required to be detained overnight, the Chief Commissioner must arrange for the person to be provided with accommodation and meals to a standard comparable to that generally provided to jurors kept together overnight.

(3) If a person is detained in a prison in accordance with a direction under subsection (1), the Director may give a written direction for the person to be delivered into the custody of a member of Victoria Police for the purpose of bringing the person before the Director.

Division 8—Powers of entry, search and seizure

87 Definitions (1) In this Division—

authorised officer means—


(b) a member of staff of the Office of Police Integrity who is authorised under subsection (2); or

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(c) a person who has taken an oath or made an affirmation under section 18(2) 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 18(2) to exercise the powers of an authorised officer under this Division.

88 Power to enter public authority premises (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; and

(b) search the premises for documents or other things that are relevant to an investigation; 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.

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(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.

89 Power to seize documents or things at public authority premises

(1) An authorised officer who exercises a power of entry under section 88 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; 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 91 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

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facilities or equipment that are reasonably necessary for the authorised officer to seize a document or other thing under this section.

90 Copying of, access to or receipt for things seized (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 89, 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

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76

(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

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(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.

91 Application for return of things seized (1) Within 7 days after a document or other thing is

seized by an authorised officer under section 89, 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.


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

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78

(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.

92 Return of things seized (1) The Director must return a document or other

thing seized under section 89 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 89 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; or

(b) a report on an investigation; or

(c) a legal proceeding arising out of, or connected with, an investigation.

(3) This section is subject to any order of the Magistrates' Court under section 91.

93 Powers with search warrant (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.

(2) If a magistrate is satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for the belief under

s. 92



79

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.

s. 93



80

94 Procedure for executing warrant (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.

s. 94



81

(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.

95 Copies or receipts to be given (1) If a person takes possession of—



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.

96 Return of documents and other things (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.

s. 95



82

(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; or

(b) a report on an investigation; or

(c) a legal proceeding arising out of, or connected with, an investigation.

97 Assistance in executing search warrants (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).

s. 97



83

98 Police must provide reasonable assistance 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 97, to exercise the powers authorised by the warrant.

99 Privilege claims in relation to search warrants (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

(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

s. 98



84

soon as practicable and in any event within 3 days after receiving it from the claimant, to be held in safe custody.



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.

100 Application to court to determine privilege (1) Within 7 days after the sealed document or other

thing is given to the proper officer of a court in accordance with section 99, 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.



s. 100



85


privilege has the same meaning as in section 99.

101 Determination of privilege claims (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




privilege has the same meaning as in section 99.

s. 101



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Division 9—Defensive equipment and firearms

102 Authority to possess, carry and use defensive equipment

(1) The Director, by instrument, may authorise a member of staff of the Office of Police Integrity to possess, carry and use defensive equipment for the purposes of an investigation.

(2) The Director may authorise a member under subsection (1) only if, in the opinion of the Director, the member reasonably requires to possess, carry and use defensive equipment—

(a) to enable the member to perform functions and exercise powers of the Director or an authorised officer in relation to the investigation; and

(b) for the protection of the member when performing those functions or exercising those powers.

(3) An authorisation under this section must specify the type of defensive equipment to which it applies.

(4) The Director may make an authorisation under this section subject to any conditions the Director considers appropriate.

(5) A member of staff of the Office of Police Integrity who is authorised under this section must comply with any conditions to which the authorisation is subject.

(6) A member of staff of the Office of Police Integrity may use defensive equipment in the course of an investigation only if authorised to do so under this section.

s. 102



87

103 Authority to possess, carry and use firearms (1) The Director, by instrument, may authorise a

member of staff of the Office of Police Integrity to possess, carry and use a firearm for the purposes of an investigation.

(2) The Director may authorise a member under subsection (1) only if, in the opinion of the Director, the member reasonably requires to possess, carry and use a firearm—

(a) to enable the member to perform functions and exercise powers of the Director or an authorised officer in relation to the investigation; and

(b) for the protection of the member when performing those functions or exercising those powers.

(3) An authorisation under this section must specify the type of firearm to which it applies.

(4) The Director may make an authorisation under this section subject to any conditions the Director considers appropriate.

(5) A member of staff of the Office of Police Integrity who is authorised under this section must comply with any conditions to which the authorisation is subject.

(6) A member of staff of the Office of Police Integrity may use a firearm in the course of an investigation only if authorised to do so under this section.

s. 103



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Division 10—Protection of persons, documents and other things

104 Who is a protected person? For the purposes of this Division, a protected person is—

(a) the Director;



(c) a person who has taken an oath or made an affirmation under section 18(2);

(d) a person (other than a natural person) engaged under section 17(1)(b), if any officer or employee of the person has taken an oath or made an affirmation under section 18(2);

(e) the members of a body engaged under section 17(1)(b), if any member, officer or employee of the body has taken an oath or made an affirmation under section 18(2).

105 What is a protected document or other thing? For the purposes of this Division, a protected document or other thing is a document or other thing the production or inspection of which (as the case requires)—

(a) is likely to—

(i) reveal the identity of an informer or put an informer's safety at risk; or

(ii) reveal the identity of a person who has been called, or who has appeared, as a witness in an examination, or put such a person's safety at risk; or

s. 104



89

(iii) reveal the identity of a person who has provided the Director with information relating to an investigation, or put such a person's safety at risk; or

(iv) reveal the identity of a person whose name appears in any evidence given or information provided to the Director relating to an investigation, or put such a person's safety at risk; or

(v) reveal the identity of a person who is or has been the subject of an investigation, or put such a person's safety at risk; or

(b) is likely to place at risk an ongoing investigation—

(i) under this Act by the Director; or

(ii) by Victoria Police; or

(c) is likely to risk the disclosure of any investigative method used by the Director or by Victoria Police; or

(d) is otherwise not in the public interest.

106 Protected documents and other things—legal proceedings other than criminal proceedings

(1) This section applies to any legal proceeding (other than a criminal proceeding) or to any proceeding before the Appeals Board.

(2) In any proceeding to which this section applies, a protected person cannot be compelled to produce any document or other thing that has come into his or her possession in the performance of functions under this Act, if the Director certifies in writing that, in the Director's opinion, the document or thing is a protected document or other thing.

s. 106



90

(3) In this section a reference to a document or other thing includes a reference to part of a document or other thing.

107 Production and inspection of protected documents and things—criminal proceedings

(1) This section applies if, in a criminal proceeding—

(a) a subpoena is issued for a protected person to produce any document or other thing that has come into his or her possession in the performance of functions under this Act; and

(b) the protected person objects to the production of the document or other thing in the proceeding, or to the inspection of the document or other thing by one or more parties to the proceeding, on the basis that the document or other thing is a protected document or other thing.

(2) The protected person must give notice of the objection to each party to the proceeding, indicating the category of the document or other thing, and apply to the court to determine the application—

(a) by confidential affidavit that is not disclosed to one or more of the parties or any representative of those parties; or

(b) at a hearing held in closed court in which the protected person and each party to the proceeding has a right to be heard by the court regarding the objection; or

(c) at a hearing held without notice to, and without the presence of, one or more of the parties or any representative of those parties; or

(d) by any combination of the methods set out in paragraphs (a), (b) and (c).

s. 107



91

(3) If the court is satisfied that it is not in the public interest to determine the application by the method elected by the protected person, the court may determine the application by any other method set out in subsection (2).

(4) In deciding which method to determine the application, the court must take into account—

(a) the public interest in protecting the confidentiality of the Director's investigative techniques and documents and other things in the Director's possession; and

(b) the extent to which the method of determining the objection may disclose information that—

(i) reveals the identity of an informer or put an informer's safety at risk; or

(ii) reveals the identity of a person who has been called, or who has appeared, as a witness in an examination, or put such a person's safety at risk; or

(iii) reveals the identity of a person who has provided the Director with information relating to an investigation, or put such a person's safety at risk; or

(iv) reveals the identity of a person whose name appears in any evidence given or information provided to the Director relating to an investigation, or put such a person's safety at risk; or

(v) reveals the identity of a person who is or has been the subject of an investigation, or put such a person's safety at risk; or

s. 107



92

(vi) places at risk an ongoing investigation—

(A) under this Act by the Director; or

(B) by Victoria Police; or

(vii) places at risk the disclosure of any investigative method used by the Director or by Victoria Police; or

(viii) it would otherwise not be in the public interest to disclose.

(5) If the court determines the objection by the method set out in subsection (2)(a), the court may require the protected person to provide the court with any further confidential affidavits the court requires to determine the objection.

(6) Without limiting any other basis on which the court may refuse to require production of the document or other thing, or to allow a party to the proceeding to inspect the document or other thing, the court must refuse to so require or allow if the court determines that the document or other thing is a protected document or other thing.

(7) Subsection (6) does not apply if the party seeking production or inspection of the document or other thing satisfies the court that exceptional circumstances exist that require the production or inspection of the document or other thing.


108 Appointment of special counsel (1) If a court decides to determine an objection at a

hearing referred to in section 107(2)(c), the court may appoint a special counsel to represent the interests of a party to the proceeding at the hearing.

s. 108



93

(2) A special counsel must be a barrister within the meaning of the Legal Profession Act 2004 who, in the opinion of the court, has the appropriate skills and ability to represent the interests of the party at the hearing.

(3) At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the objection, the special counsel may communicate with the party whose interests he or she is representing, or any representative of that party, for the purpose of obtaining information from the party or representative in relation to the criminal proceeding.

(4) At any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the objection, the special counsel—

(a) must not take instructions from the party whose interests he or she is representing, or from any representative of that party; and

(b) may communicate to that party or a representative of that party any order made by the court at or in relation to the hearing; and

(c) must not communicate any other information in relation to the hearing to that party or a representative of that party without leave of the court.

109 General protection of protected persons (1) A protected person is not liable, whether on the

ground of lack of jurisdiction or on any other ground, to any civil or criminal proceedings to which they would have been liable apart from this section in respect of any act purported to be done under this Act unless the act was done in bad faith.

s. 109



94

(2) Subsection (1) does not apply to an act done in the course of, or that results in, a critical incident.

(3) No civil or criminal proceedings may be brought against a protected person in respect of any act of a kind referred to in subsection (1) without the leave of the Supreme Court.

(4) The Supreme Court may not give leave unless it is satisfied that there is substantial ground to believe that the person to be proceeded against has acted in bad faith.

(5) Without limiting the generality of subsections (1) and (3), no civil or criminal proceeding may be brought against the Director in respect of the giving of a certificate by the Director under section 106, unless the certificate was given in bad faith.

(6) Despite anything in this section—

(a) an order cannot be issued restraining the Director from carrying out or compelling the Director to carry out any investigation; and

(b) a proceeding cannot be brought against the Director seeking the issue of such an order.

(7) A protected person cannot be called to give evidence in any court or in any legal proceedings or before the Appeals Board in respect of any matter coming to his or her knowledge in the exercise of functions under this Act.

110 Protection of protected persons in relation to critical incidents

(1) A protected person is not personally liable for anything done or omitted to be done in good faith—

(a) in the performance of a function or exercise of a power under this Act; or

s. 110



95

(b) in the reasonable belief that the act or omission was in the performance of a function or exercise of a power under this Act—

if the thing was done or omitted to be done in the course of, or resulted in, a critical incident.

(2) Any liability resulting from the act or omission that, but for subsection (1), would attach to a protected person attaches instead to the State.

111 Protection of legal practitioners and witnesses (1) A legal practitioner representing a person at an

examination or otherwise in the course of an investigation, or a legal practitioner assisting the Director at an examination or otherwise in the course of an investigation, has the same protection and immunity as a legal practitioner has in representing a party in a proceeding in the Supreme Court.

(2) A person appearing as a witness at an examination or otherwise in the course of an investigation has the same protection and immunity as a witness has in a proceeding in the Supreme Court.

Division 11—General

112 Referral of matters to DPP (1) At any time during or after completing an

investigation, the Director may refer to the Director of Public Prosecutions any matter that is relevant to the performance of functions or duties by the Director of Public Prosecutions.

(2) If the Director refers a matter to the Director of Public Prosecutions under subsection (1), the Director may include that fact, and any details of the referral that the Director considers

s. 111



96

appropriate, in any report of the investigation under this Act.

113 Offences (1) A person must not, without lawful excuse (proof

of which lies on the person), wilfully obstruct, hinder or resist the Director or any other person in the exercise of his or her powers under this Act.


(2) A person must not, without lawful excuse (proof of which lies on the person), refuse or wilfully fail to comply with any lawful requirement of the Director or any other person in the exercise of his or her powers under this Act.


(3) A person must not wilfully make a statement that the person knows to be false or misleading in a material particular or mislead or attempt to mislead the Director or any other person in the exercise of his or her powers under this Act.


__________________

s. 113

Part 5—Oversight by special investigations monitor


97

PART 5—OVERSIGHT BY SPECIAL INVESTIGATIONS MONITOR

114 Role of Special Investigations Monitor The role of the Special Investigations Monitor under this Part is to—

(a) monitor compliance with this Act by the Director, members of staff of the Office of Police Integrity and persons engaged by the Director under section 17(1)(b); and

(b) assess the questioning of persons attending the Director in an examination concerning the relevance of the questioning and its appropriateness in relation to the purpose of the investigation to which the examination relates; and

(c) assess requirements made by the Director for persons to produce documents or other things in the course of an investigation concerning the relevance of the requirements and their appropriateness in relation to the purpose of the investigation; and

(d) investigate any complaints made to the Special Investigations Monitor under this Part; and

(e) formulate recommendations and make reports as a result of performing functions under paragraphs (a), (b), (c) and (d).

115 Director must report summonses to Special Investigations Monitor

The Director must give a written report to the Special Investigations Monitor within 3 days after the issue of a witness summons setting out—

s. 114



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(a) the name of the person summoned; and

(b) the reasons the summons was issued.

116 Director must report arrest warrants to Special Investigations Monitor

The Director must give a written report to the Special Investigations Monitor within 3 days after the issue of an arrest warrant under section 79 or 84, setting out—

(a) the reasons the warrant was issued; and

(b) the relevance of the warrant to the purpose of the investigation in relation to which it was issued.

117 Director must report other matters to Special Investigations Monitor

(1) This section applies if—

(a) a person attends the Director at an examination, or otherwise, in accordance with a witness summons; or

(b) a person attending an examination voluntarily is required—

(i) to be sworn or to make an affirmation; or

(ii) to answer a question.

(2) As soon as practicable after the person is excused from attendance, the Director must give a written report to the Special Investigations Monitor setting out—

(a) the reasons the person attended and the place and time the person attended; and

(b) the name of the person and of any other person who was present during the attendance; and

s. 116



99

(c) the relevance of the attendance to the purpose of the investigation; and

(d) any other prescribed matters.

(3) A report under subsection (2) must include a copy of the video-recording made under section 67 and, if a transcript is prepared, a copy of the transcript.

118 Complaints to Special Investigations Monitor (1) This section applies to a person who has attended

the Director at an examination, or otherwise in the course of an investigation for the purposes of providing information, producing a document or other thing or giving evidence (whether voluntarily or in answer to a witness summons).

(2) The person may make a complaint to the Special Investigations Monitor, within 90 days after the person was excused from attendance, that the person was not afforded adequate opportunity to convey his or her appreciation of the relevant facts to the Director.

(3) A complaint may be made orally or in writing.

(4) If a complaint is made orally, the Special Investigations Monitor may require the person making it to confirm the complaint in writing.

119 Special Investigations Monitor may refuse to investigate complaint

The Special Investigations Monitor may refuse to investigate a complaint if he or she considers that—

(a) the subject-matter of the complaint is trivial; or

(b) the complaint is frivolous or vexatious or is not made in good faith.

s. 118



100

120 Investigation of complaints (1) The Special Investigations Monitor must

investigate a complaint unless he or she refuses to investigate it under section 119.

(2) For the purposes of the investigation of a complaint, the Special Investigations Monitor—

(a) may, but is not required to, hold a hearing; and

(b) may obtain information from any persons and in any manner he or she considers appropriate; and

(c) may regulate the procedure as he or she thinks fit.

(3) An investigation, including any hearing, is to be conducted in private.

(4) The Special Investigations Monitor may commence or continue to investigate a complaint despite the fact that any proceedings are on foot, or are instituted, in any court or tribunal that relate to or are otherwise connected with the subject-matter of the complaint.

(5) If the Special Investigations Monitor is or becomes aware that proceedings referred to in subsection (4) are on foot or have been instituted, the Special Investigations Monitor must take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings.

121 Recommendations by Special Investigations Monitor

(1) The Special Investigations Monitor may at any time make recommendations to the Director as to the taking of any action that the Special Investigations Monitor considers should be taken.

s. 120



101

(2) Without limiting subsection (1), recommended action may include—

(a) taking steps to prevent any conduct from continuing or occurring in the future;

(b) taking action to remedy any harm or loss arising from any conduct.

(3) The Special Investigations Monitor may require the Director to give a report to the Special Investigations Monitor, within the time specified by the Special Investigations Monitor, stating—

(a) whether or not the Director has taken, or proposes to take, any action recommended by the Special Investigations Monitor; and

(b) if the Director has not taken any recommended action, or proposes not to take any recommended action, the reasons for not taking or proposing to take the action.

(4) The Director must comply with a requirement of the Special Investigations Monitor under subsection (3).

122 Requirement to provide assistance The Director must give, and must ensure that each member of staff of the Office of Police Integrity and each person engaged under section 17(1)(b) gives, the Special Investigations Monitor any assistance the Special Investigations Monitor reasonably requires to enable the Special Investigations Monitor to perform functions under this Part.

s. 122



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123 Powers of entry and access (1) For the purpose of performing his or her functions

under this Part, the Special Investigations Monitor—

(a) after notifying the Director, may enter at any reasonable time premises occupied by the Office of Police Integrity; and

(b) is entitled to have full and free access at all reasonable times to all records of the Office of Police Integrity that are relevant to the performance of the Special Investigations Monitor's functions; and

(c) may require the Director, a member of staff of the Office of Police Integrity or a person engaged under section 17(1)(b) to give the Special Investigations Monitor any information that the Special Investigations Monitor considers necessary, being information—

(i) that is in the person's possession, or to which the person has access; and

(ii) that is relevant to the performance of the Special Investigations Monitor's functions.

(2) The Special Investigations Monitor may exercise a power under this section only if he or she considers that the Director has wilfully—

(a) failed to provide information that the Director is required to provide in a report to the Special Investigations Monitor under this Division; or

(b) failed to comply with section 122.

s. 123



103

124 Requirement to answer questions and produce documents

(1) The Special Investigations Monitor may, by written notice, require a member of OPI personnel to—

(a) attend the Special Investigations Monitor at a specified time and place to answer any questions or provide any information; or

(b) produce any document or other thing that is in the person's possession or control and that is relevant to the functions of the Special Investigations Monitor under this Part.

(2) A person who is given a notice under subsection (1) must not, without reasonable excuse—

(a) fail to attend or to produce any document or other thing as required by the notice; or

(b) refuse or fail to answer a question that he or she is required to answer by the Special Investigations Monitor; or

(c) refuse or fail to provide any information that he or she is required to provide by the Special Investigations Monitor.

(3) A person who is given a notice under subsection (1) must not give any answer or provide any information that he or she knows is false or misleading in a material particular.

(4) A person who contravenes subsection (2) or (3) is guilty of an indictable offence and is liable to level 6 imprisonment (5 years maximum).

(5) The Special Investigations Monitor may exercise a power under this section only if he or she considers that the Director has wilfully—

s. 124



104

(a) failed to provide information that the Director is required to provide in a report to the Special Investigations Monitor under this Division; or

(b) failed to comply with section 122.

125 Privileges do not apply (1) It is not a reasonable excuse for a member of OPI

personnel to fail to produce a document or other thing, or to answer a question, or to provide any information under section 124, for the member to claim that production of the document or other thing, the answer to the question or the information might tend to incriminate the member or make the member liable to a penalty.

(2) It is not a reasonable excuse for a member of OPI personnel to fail to produce a document or other thing, or to answer a question, or to provide any information under section 124 on the ground of legal professional privilege.

(3) Subsection (4) limits the use that can be made of any documents or other things produced, or any answers to questions, or to any information provided under section 124.

(4) The document, thing, answer or information is not admissible in evidence against the member of OPI personnel before any court or person acting judicially, except in proceedings for—


(b) an offence referred to in section 124(4); or

(c) a breach of discipline, in the case of a member of OPI personnel who is a member of Victoria Police.

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105

(5) Nothing in subsection (2) affects the right of a member of OPI personnel to object to the answering of a question or production of a document in relation to a criminal proceeding to which the member is a party on the ground of legal professional privilege, whether that proceeding commenced before, on or after the requirement under section 124 was made.

126 Annual and other reports by Special Investigations Monitor

(1) As soon as practicable after the end of each financial year, the Special Investigations Monitor must cause a report to be presented to each House of Parliament in relation to the performance of the Special Investigations Monitor's functions under this Part.

(2) The report must include details of the following matters—

(a) compliance with this Act during the financial year by the Director, members of staff of the Office of Police Integrity and persons engaged by the Director under section 17(1)(b); and

(b) the extent to which—

(i) any questions asked of persons summoned; and

(ii) any requirements to produce documents or other things under a summons—

during the financial year were relevant to the investigation in relation to which the questions were asked or the requirements were made; and

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106

(c) the comprehensiveness and adequacy of reports made to the Special Investigations Monitor by the Director under this Part during the financial year; and

(d) the extent to which action recommended by the Special Investigations Monitor to be taken by the Director has been taken during the financial year.

(3) The Special Investigations Monitor may at any time cause a report to be presented to each House of Parliament on any matter relevant to the performance of the Special Investigations Monitor's functions under this Part.

(4) A report under this section must not contain any information that identifies, or is likely to identify—

(a) a person who has attended the Director at an examination or otherwise in the course of an investigation; or

(b) a person to whom, or in respect of whom, a direction has been given under Division 5 of Part 2 of this Act or Division 4A of Part IV of the Police Regulation Act 1958; or

(c) the nature of any ongoing investigation under this Act or any ongoing investigation by Victoria Police or members of Victoria Police.

127 Delegation The Special Investigations Monitor, by instrument, may delegate to an employee in the office of the Special Investigations Monitor any function, duty or power of the Special Investigations Monitor under this Act other than—

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(a) a power under section 124 (Requirement to answer questions and produce documents); or

(b) a duty or power to make a report under section 126; or

(c) this power of delegation.

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s. 127

Part 6—General


108

PART 6—GENERAL

128 Provisions of this Act prevail A provision of this Act that is inconsistent with a provision of the Ombudsman Act 1973 prevails, to the extent of the inconsistency, over the provision of that Act.

129 Letters by people in custody (1) Subject to subsection (4), if a letter written by a

person in custody on a charge or after conviction of an offence is addressed to the Director it must immediately be forwarded unopened to the Director by the person in charge.

(2) Subject to subsection (4), if a letter written by the Director is addressed to a person in custody on a charge or after conviction of an offence, it must immediately be forwarded unopened to the person to whom it is addressed by the person in charge.

(3) A person must not prevent or hinder the forwarding of a letter referred to in subsection (1) or (2).


(4) If a letter referred to in subsection (1) or (2) is suspected by the person in charge of containing drugs, weapons or other contraband, the letter may be opened by the person in charge or his or her delegate in the presence of—

(a) the person who wrote the letter and the Director or a member of staff of the Office of Police Integrity; or

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Part 6—General


109

(b) the person to whom the letter is addressed and the Director or a member of staff of the Office of Police Integrity—

as the case requires.

(5) A person who opens a letter in accordance with subsection (4) is not guilty of an offence under subsection (3).


person in charge means the person who is for the time being in charge of the place or institution where the writer of the letter or the person to whom the letter is addressed (as the case requires) is detained.

130 Supreme Court—limitation of jurisdiction It is the intention of section 109 to alter or vary section 85 of the Constitution Act 1975.

131 Regulations (1) The Governor in Council may make regulations

for or with respect to—

(a) the investigation of complaints about members of Victoria Police;

(b) any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations—

(a) may be of general or specially limited application;

(b) may differ according to differences in time, place or circumstances.

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s. 130

Part 7—Transitional Provisions


110

PART 7—TRANSITIONAL PROVISIONS

132 Transitional provisions Schedule 1, which contains transitional provisions, has effect.

__________________

s. 132

Part 8—Amendment of Police Regulation Act 1958 and other Acts


111

PART 8—AMENDMENT OF POLICE REGULATION ACT 1958 AND OTHER ACTS

Division 1—Amendment of Police Regulation Act 1958

133 Definitions Insert the following definitions in section 3(1) of the Police Regulation Act 1958—

"chief executive of a public authority means—

(a) in relation to the force—the Chief Commissioner; or

(b) in relation to a public service body within the meaning of the Public Administration Act 2004—the public service body Head within the meaning of that Act; or

(c) in relation to any other body, whether or not incorporated, established by or under an Act for a public purpose—the chief executive officer, by whatever name called, of the body;

public authority means—

(a) the force; or

(b) a public service body within the meaning of the Public Administration Act 2004; or

(c) any other body, whether or not incorporated, established by or under an Act for a public purpose;

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112

public officer means—

(a) a member of the force; or

(b) a person who is employed by or in a public authority or acting on behalf of a public authority;".

134 Repeal of current protection provisions Sections 86J and 86JA of the Police Regulation Act 1958 are repealed.

135 New Division 1A inserted in Part IVA After Division 1 of Part IVA of the Police Regulation Act 1958 insert—

"Division 1A—Protection of persons, documents and other things

86KE Who is a protected person? For the purposes of this Division, a protected person is—

(a) the Director;



(c) a person who has taken an oath or made an affirmation under section 102D(3);

(d) a person (other than a natural person) engaged under section 102E(1)(b), if any officer or employee of the person has taken an oath or made an affirmation under section 102D(3);

(e) the members of a body engaged under section 102E(1)(b), if any member, officer or employee of the body has taken an oath or made an affirmation under section 102D(3).

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86KF What is a protected document or other thing? For the purposes of this Division, a protected document or other thing is a document or other thing the production or inspection of which (as the case requires)—

(a) is likely to—

(i) reveal the identity of an informer or put an informer's safety at risk; or

(ii) reveal the identity of a person who has been called, or who has appeared, as a witness in an investigation by the Director under this Part, or put such a person's safety at risk; or

(iii) reveal the identity of a person who has provided the Director with information relating to an investigation by the Director under this Part, or put such a person's safety at risk; or

(iv) reveal the identity of a person whose name appears in any evidence given or information provided to the Director relating to an investigation by the Director under this Part, or put such a person's safety at risk; or

(v) reveal the identity of a person who is or has been the subject of an investigation by the Director under this Part, or put such a person's safety at risk; or

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(b) is likely to place at risk an ongoing investigation—

(i) under this Part by the Director; or

(ii) by the force; or

(c) is likely to risk the disclosure of any investigative method used by the Director or by the force; or

(d) is otherwise not in the public interest.

86KG Protected documents and other things—legal proceedings other than criminal proceedings

(1) This section applies to any legal proceeding (other than a criminal proceeding) or to any proceeding before the Appeals Board.

(2) In any proceeding to which this section applies, a protected person cannot be compelled to produce any document or other thing that has come into his or her possession in the performance of functions under this Act, if the Director certifies in writing that, in the Director's opinion, the document or thing is a protected document or other thing.


86KH Production and inspection of protected documents and things—criminal proceedings

(1) This section applies if, in a criminal proceeding—

(a) a subpoena is issued for a protected person to produce any document or other thing that has come into his or her

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possession in the performance of functions under this Act; and

(b) the protected person objects to the production of the document or other thing in the proceeding, or to the inspection of the document or other thing by one or more parties to the proceeding, on the basis that the document or other thing is a protected document or other thing.

(2) The protected person must give notice of the objection to each party to the proceeding, indicating the category of the document or other thing, and apply to the court to determine the application—

(a) by confidential affidavit that is not disclosed to one or more of the parties or any representative of those parties; or

(b) at a hearing held in closed court in which the protected person and each party to the proceeding has a right to be heard by the court regarding the objection; or

(c) at a hearing held without notice to, and without the presence of, one or more of the parties or any representative of those parties; or

(d) by any combination of the methods set out in paragraphs (a), (b) and (c).

(3) If the court is satisfied that it is not in the public interest to determine the application by the method elected by the protected person, the court may determine the application by any other method set out in subsection (2).

s. 135



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(4) In deciding which method to determine the application, the court must take into account—

(a) the public interest in protecting the confidentiality of the Director's investigative techniques and documents and other things in the Director's possession; and

(b) the extent to which the method of determining the objection may disclose information that—

(i) reveals the identity of an informer or put an informer's safety at risk; or

(ii) reveals the identity of a person who has been called, or who has appeared, as a witness in an investigation by the Director under this Part, or put such a person's safety at risk; or

(iii) reveals the identity of a person who has provided the Director with information relating to an investigation by the Director under this Part, or put such a person's safety at risk; or

(iv) reveals the identity of a person whose name appears in any evidence given or information provided to the Director relating to an investigation by the Director under this Part, or put such a person's safety at risk; or

(v) reveals the identity of a person who is or has been the subject of an investigation by the Director

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under this Part, or put such a person's safety at risk; or

(vi) places at risk an ongoing investigation—

(A) under this Part by the Director; or

(B) by the force; or

(vii) places at risk the disclosure of any investigative method used by the Director or by the force; or

(viii) it would otherwise not be in the public interest to disclose.

(5) If the court determines the objection by the method set out in subsection (2)(a), the court may require the protected person to provide the court with any further confidential affidavits the court requires to determine the objection.

(6) Without limiting any other basis on which the court may refuse to require production of the document or other thing, or to allow a party to the proceeding to inspect the document or other thing, the court must refuse to so require or allow if the court determines that the document or other thing is a protected document or other thing.

(7) Subsection (6) does not apply if the party seeking production or inspection of the document or other thing satisfies the court that exceptional circumstances exist that require the production or inspection of the document or other thing.


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86KI Appointment of special counsel (1) If a court decides to determine an objection

at a hearing referred to in section 86KH(2)(c), the court may appoint a special counsel to represent the interests of a party to the proceeding at the hearing.

(2) A special counsel must be a barrister within the meaning of the Legal Profession Act 2004 who, in the opinion of the court, has the appropriate skills and ability to represent the interests of the party at the hearing.

(3) At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the objection, the special counsel may communicate with the party whose interests he or she is representing, or any representative of that party, for the purpose of obtaining information from the party or representative in relation to the criminal proceeding.

(4) At any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the objection, the special counsel—

(a) must not take instructions from the party whose interests he or she is representing, or from any representative of that party; and

(b) may communicate to that party or a representative of that party any order made by the court at or in relation to the hearing; and

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119

(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.

86KJ General protection of protected persons (1) A protected person is not liable, whether on

the ground of lack of jurisdiction or on any other ground, to any civil or criminal proceedings to which they would have been liable apart from this section in respect of any act purported to be done under this Act unless the act was done in bad faith.

(2) No civil or criminal proceedings may be brought against a protected person in respect of any act of a kind referred to in subsection (1) without the leave of the Supreme Court.

(3) The Supreme Court may not give leave unless it is satisfied that there is substantial ground to believe that the person to be proceeded against has acted in bad faith.

(4) Without limiting the generality of subsections (1) and (2), no civil or criminal proceeding may be brought against the Director in respect of the giving of a certificate by the Director under section 86KG, unless the certificate was given in bad faith.

(5) Despite anything in this section—

(a) an order cannot be issued restraining the Director from carrying out or compelling the Director to carry out any investigation; and

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120

(b) a proceeding cannot be brought against the Director seeking the issue of such an order.

(6) A protected person cannot be called to give evidence in any court or in any legal proceedings or before the Appeals Board in respect of any matter coming to his or her knowledge in the exercise of functions under this Act.

86KK Protection of legal practitioners and witnesses

(1) A legal practitioner representing a person in the course of an investigation by the Director under this Part, or a legal practitioner assisting the Director in the course of an investigation by the Director under this Part, has the same protection and immunity as a legal practitioner has in representing a party in a proceeding in the Supreme Court.

(2) A person appearing as a witness in the course of an investigation by the Director under this Part has the same protection and immunity as a witness has in a proceeding in the Supreme Court.".

136 Evidence in Director investigations (1) For section 86PA(1) of the Police Regulation Act

1958 substitute—

"(1) Sections 17, 18, 19A, 19B and 20A of the Evidence Act 1958 apply to and in relation to an investigation conducted by the Director as if the Director were the sole commissioner issued with a commission by the Governor in Council.".

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121

(2) In section 86PA of the Police Regulation Act 1958—

(a) in subsection (3), for "and section 86Q" insert ", section 86Q and Division 2B";

(b) subsections (4), (5), (5A), (6), (7) and (8) are repealed.

137 New section 86PF inserted After section 86PE of the Police Regulation Act 1958 insert—

"86PF Failure of witnesses to attend and answer questions

(1) A person duly served with a summons under section 17 of the Evidence Act 1958 in relation to an investigation by the Director under this Part must not, without reasonable excuse—

(a) fail to attend as required by the summons; or

(b) fail to attend from day to day unless excused, or released from further attendance, by the Director.

(2) A person appearing as a witness before the Director must not, without reasonable excuse—

(a) refuse or fail to answer a question that he or she is required to answer by the Director; or

(b) refuse or fail to produce a document or other thing that he or she was required to produce by the summons.

(3) A person who contravenes subsection (1) or (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

s. 137



122

(4) A person does not contravene subsection (2)(b) if the Director withdraws the requirement to produce the document or other thing that the person was required to produce by the summons.

(5) A person does not contravene subsection (1) or (2) if the person is under the age of 16 years at the date of issue of the summons.".

138 New Divisions 2A and 2B inserted in Part IVA After Division 2 of Part IVA of the Police Regulation Act 1958 insert—

"Division 2A—Legal assistance for witnesses

86VAA Definitions (1) In this Division—

approved law practice means a law practice approved by the Secretary under subsection (2);

legal assistance means payment by the Secretary to an approved law practice for legal advice and representation provided to a person appearing as a witness in an investigation by the Director under this Part;

Secretary means the Secretary to the Department of Justice.

(2) The Secretary may approve a law practice to be an approved law practice for the purposes of this Division.

86VAB Provision of legal assistance to witnesses (1) A person appearing as a witness in an

investigation by the Director under this Part may apply to the Secretary for legal

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123

assistance in connection with his or her appearance as a witness.

(2) The Secretary may approve an application made under subsection (1) and in doing so may impose—

(a) a limit on the legal assistance to be provided; and

(b) any other condition on the approval.

86VAC Regulations The regulations may make provision for or

with respect to the manner of calculating the amount of legal assistance provided by the Secretary including—

(a) by agreement as a result of a tender process;

(b) under a costs agreement;

(c) in accordance with an applicable practitioner remuneration order or scale of costs.

Division 2B—Privileges and secrecy provisions

86VAD Privilege against self-incrimination abrogated

(1) A person is not excused from answering a question, producing a document or other thing or giving information for the purposes of an investigation by the Director under this Part on the ground that the answer to the question, the production of the document or other thing or the giving of the information might tend to incriminate the person or make the person liable to a penalty.

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124

(2) Subsection (3) limits the use that can be made of any answers or information given, or documents or other things produced, in accordance with a summons issued under section 17 of the Evidence Act 1958 in relation to an investigation by the Director under this Part.

(3) The answer, information, document or thing is not admissible in evidence against the person before any court or person acting judicially, except in proceedings for—


(b) a breach of discipline by a member of the force; or

(c) failure to comply with a direction under section 86Q; or

(d) an offence referred to in section 86PF(3); or

(e) contempt of the Director under section 86KB.

86VAE Legal professional privilege (1) If—

(a) a person is required to answer a question or produce a document in an investigation by the Director under this Part; and

(b) the answer to the question would disclose, or the document contains, a communication that is recognised at law as privileged on the ground of legal professional privilege—

the person is, subject to subsections (2) and (3), entitled to refuse to comply with the requirement.

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125

(2) If—

(a) a legal practitioner is required to answer a question or produce a document in an investigation by the Director under this Part; and

(b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner—

the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, if the legal practitioner refuses to comply with the requirement, he or she, if so required by the Director, must give the Director the name and address of the person to whom or by whom the communication was made.

(3) Subsections (1) and (2) do not apply to any privilege of a public authority or public officer.

(4) Nothing in subsection (3) affects the right of a public authority or public officer to object to the answering of a question or production of a document in relation to a criminal proceeding to which the authority or officer is a party on the ground of legal professional privilege, whether that proceeding commenced before, on or after the requirement referred to in subsection (1) or (2) was made.

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126

86VAF Procedure for determining claims of legal professional privilege

(1) If a person claims on production of a document before the Director that the document is the subject of legal professional privilege (other than privilege of a public authority or a public officer), the procedure set out in this section applies.

(2) The claimant must attend before the Director in accordance with the summons under section 17 of the Evidence Act 1958 (if any).

(3) The Director must consider the claim of privilege and either—

(a) withdraw the requirement to produce the document; or

(b) apply to the Supreme Court or County Court in accordance with section 86VAG for determination of the claim of privilege.

(4) The Director must not inspect the document in considering the claim of privilege.

(5) If the Director does not withdraw the requirement to produce the document, the Director must require the claimant to seal the document immediately, and give it to the Director.

(6) As soon as practicable and in any event within 3 days after the sealing of the document, the Director must 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 to be held in safe custody.

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127


86VAG Application to court to determine legal professional privilege

(1) Within 7 days after the Director gives a sealed document to the proper officer of a court in accordance with section 86VAF, the Director may apply to the court to determine whether or not the document is the subject of legal professional privilege.

(2) If no application is made under subsection (1) within the period of 7 days, the proper officer must return the document to the claimant for legal professional privilege.

(3) The Director must give notice of the application to the claimant for legal professional privilege a reasonable time before the hearing of the application.



86VAH Determination of legal professional privilege

(1) The court must determine whether or not the sealed document is the subject of legal professional privilege and for that purpose the judge and any other person authorised by the court may open and inspect the sealed document.

(2) If the court determines that the sealed document is the subject of legal professional privilege, the court must order that the

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document be returned to the claimant and the proper officer must return it to the claimant.

(3) If the court determines that the sealed document is not the subject of legal professional privilege, the court must order that the document 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 otherwise have access to the document before—

(a) the court determines the claim of legal professional privilege; or



86VAI Secrecy provisions and Crown privilege (1) No obligation to maintain secrecy or other

restriction on the disclosure of information obtained by or given to a public authority or public officer, where imposed by any enactment or any rule of law, applies to the disclosure of information for the purposes of an investigation by the Director under this Part.

(2) The Crown is not, in relation to an investigation by the Director under this Part, entitled to any privilege in respect of the production of documents or the giving of evidence as is allowed by law in legal proceedings.".

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129

139 New Division 3 substituted in Part IVA For Division 3 of Part IVA of the Police Regulation Act 1958 substitute—

"Division 3—Powers of entry, search and seizure

86VA Definition (1) In this Division—

authorised officer means—


(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.

86VB Power to enter public authority premises (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

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(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.

86VC Power to seize documents or things at public authority premises

(1) An authorised officer who exercises a power of entry under section 86VB may seize a document or other thing at the premises if

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131

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.

86VD Copying of, access to or receipt for things seized

(1) If an authorised officer seizes—


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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

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(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

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(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.

86VE Application for return of things seized (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.

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135


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.

86VF Return of things seized (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.

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(3) This section is subject to any order of the Magistrates' Court under section 86VE.

86VG Powers with search warrant (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

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(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.

86VH Procedure for executing warrant (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.

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(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.

86VI Copies or receipts to be given (1) If a person takes possession of—



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

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as soon as practicable after taking possession of it.

86VJ Return of documents and other things (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.

86VK Assistance in executing search warrants (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.

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(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).

86VL Police must provide reasonable assistance 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.

86VM Privilege claims in relation to search warrants

(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

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(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

(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.


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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.

86VN Application to court to determine privilege

(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.



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privilege has the same meaning as in section 86VM.

86VO Determination of privilege claim (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



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privilege has the same meaning as in section 86VM.".

140 Supreme Court—limitation of jurisdiction After section 129A(4) of the Police Regulation Act 1958 insert—

"(5) It is the intention of section 86KJ to alter or vary section 85 of the Constitution Act 1975.".

141 New section 136 inserted At the end of Part VII of the Police Regulation Act 1958 insert—

"136 Transitional provisions for Police Integrity Act 2008

(1) Section 86KH applies, on and after the commencement day, in respect of any subpoena issued on or after 13 March 2008.

(2) Section 86PF applies, on and after the commencement day, in respect of a summons issued under section 17 of the Evidence Act 1958 whether the summons was issued before, on or after that day.

(3) Sections 86VAD and 86VAE apply, on and after the commencement day, whether the requirement to answer the question, produce the document or other thing or give the information was made before, on or after that day.

(4) An authorisation of a person under section 86VA(2) that was in force immediately before the commencement day is taken, on and after that day, to be an authorisation of the person under section

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86VA(2) as substituted by section 139 of the Police Integrity Act 2008.

(5) An application made under section 86VE as in force immediately before the commencement day that had not been determined before that day is to be determined on or after that day as if section 139 of the Police Integrity Act 2008 had not been enacted.

(6) An application for return of a document or thing made under section 86VG before the commencement day that had not been determined before that day is to be determined on or after that day as if it were an application for return of a document or other thing made under section 86VE as substituted by section 139 of the Police Integrity Act 2008.

(7) An application for a search warrant made under section 86W before the commencement day that had not been determined before that day is to be determined on or after that day as if it were an application for a search warrant under section 86VG as substituted by section 139 of the Police Integrity Act 2008.

(8) A search warrant issued under section 86W before the commencement day that is in force immediately before that day is taken, on and after that day, to be a search warrant issued under section 86VG as substituted by section 139 of the Police Integrity Act 2008.

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commencement day means the day after the day on which the Police Integrity Act 2008 receives the Royal Assent.".

142 Further amendments (1) In section 3(1) of the Police Regulation Act

1958—

(a) in the definition of Director, for "section 102A(2)" substitute "section 6 of the Police Integrity Act 2008";

(b) in the definition of Office of Police Integrity, for "established by section 102A(1)" substitute "within the meaning of the Police Integrity Act 2008";

(c) for the definition of member of staff of the Office of Police Integrity substitute—

"member of staff of the Office of Police Integrity has the same meaning as it has in the Police Integrity Act 2008;".

(2) In section 69(1) of the Police Regulation Act 1958—

(a) after paragraph (ab) insert—

"(ac) fails to comply with a direction given under section 47 of the Police Integrity Act 2008; or";

(b) before paragraph (c) insert—

"(bc) fails to comply with a direction given under Division 5 of Part 2 of the Police Integrity Act 2008; or

(bd) refuses to consent to the use of evidence derived from a sample in the circumstances referred to in section 33 of the Police Integrity Act 2008; or".

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147

(3) The note at the foot of section 85G(2) of the Police Regulation Act 1958 is repealed.

(4) In section 86K of the Police Regulation Act 1958, for "the Director or any other" (wherever occurring) substitute "any".

(5) Section 86KA of the Police Regulation Act 1958 is repealed.

(6) Sections 86KB and 86KC of the Police Regulation Act 1958 are repealed.

(7) Division 1A of Part IVA of the Police Regulation Act 1958 is repealed.

(8) In section 86L of the Police Regulation Act 1958—

(a) at the foot of section 86L(1) insert— "Note

Complaints made to the Director are investigated under Part 3 of the Police Integrity Act 2008.";

(b) subsections (5), (5A), (6), (7), (8) and (9) are repealed.

(9) Sections 86LA(3) and (4) of the Police Regulation Act 1958 are repealed.

(10) Section 86N of the Police Regulation Act 1958 is repealed.

(11) Section 86NA of the Police Regulation Act 1958 is repealed.

(12) Sections 86P, 86PA, 86PB, 86PC, 86PD, 86PE and 86PF of the Police Regulation Act 1958 are repealed.

(13) In section 86Q(1) of the Police Regulation Act 1958, for "the Director or the Chief Commissioner (as the case may be)" substitute "the Chief Commissioner".

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(14) Sections 86QA, 86R and 86S of the Police Regulation Act 1958 are repealed.

(15) In section 86T of the Police Regulation Act 1958—

(a) at the foot of subsection (1) insert— "Note

See section 48 of the Police Integrity Act 2008 for an equivalent provision applicable in the case of a complaint made to the Director.";

(b) subsection (2) is repealed;

(c) in subsection (3), for "Subsection (1) or (2) does not apply if the Chief Commissioner or the Director (as the case requires)" substitute "Subsection (1) does not apply if the Chief Commissioner".

(16) Section 86TA of the Police Regulation Act 1958 is repealed.

(17) Section 86U of the Police Regulation Act 1958 is repealed.

(18) In section 86V(1)(b) of the Police Regulation Act 1958, after "under this Part" insert "or Part 3 of the Police Integrity Act 2008".

(19) Division 2A of Part IVA of the Police Regulation Act 1958 is repealed.

(20) Division 2B of Part IVA of the Police Regulation Act 1958 is repealed.

(21) Division 3 of Part IVA of the Police Regulation Act 1958 is repealed.

(22) Division 4 of Part IVA of the Police Regulation Act 1958 is repealed.

(23) Part VB of the Police Regulation Act 1958 is repealed.

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(24) Sections 129A(2), (3) and (4) of the Police Regulation Act 1958 are repealed.

(25) Sections 132, 133 and 135 of the Police Regulation Act 1958 are repealed.

Division 2—Amendment of other Acts

143 Amendment of other Acts An Act specified in the heading to an item in Schedule 2 is amended, on the commencement of that item or a provision of that item, as set out in that item or provision.

Division 3—Repeal of Part

144 Self-repeal of Part This Part and Schedule 2 are repealed on 31 December 2010.

Note

The repeal of this Part and Schedule 2 does not affect the continuing operation of the amendments made by this Part or Schedule 2 (see section 15(1) of the Interpretation of Legislation Act 1984).

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SCHEDULES

SCHEDULE 1

Section 132

TRANSITIONAL PROVISIONS

1 Definitions In this Schedule—

PRA means the Police Regulation Act 1958;

PRA investigation means an investigation under Part IVA of the PRA.

2 General transitional provisions (1) Except where the contrary intention appears, this

Schedule does not affect or take away from the Interpretation of Legislation Act 1984.

(2) If a repealed provision of the PRA continues to apply by force of this Schedule, the following provisions also continue to apply in relation to the provision—

(a) any other repealed provisions of the PRA necessary to give effect to that continued provision; and

(b) any regulation made under the PRA for the purposes of that continued provision.

3 Director, Police Integrity (1) The person who held the office of Director under

section 102AB of the PRA immediately before the commencement of section 10 of this Act continues to hold office as Director on and after that commencement on the same terms and conditions as if he or she had been appointed under section 10 of this Act.

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(2) If the person referred to in subclause (1) has taken the oath or made the affirmation that was required by section 102D(1) of the PRA as in force immediately before the commencement of section 16 of this Act, he or she is taken to have complied with the requirements of section 16 of this Act.

4 Staff and consultants (1) A person who was a member of staff of the Office

of Police Integrity immediately before the commencement of section 17 of this Act, remains a member of staff of the Office of Police Integrity on and after that commencement on the same terms and conditions that applied to his or her employment or secondment immediately before that commencement.

(2) A person who or body that was engaged in the Office of Police Integrity under section 102E(1)(b) of the PRA immediately before the commencement of section 17 of this Act, remains engaged in the Office of Police Integrity on and after that commencement on the same terms and conditions that applied to the engagement immediately before that commencement.

(3) If a person referred to in subclause (1) or (2), or a member of a body referred to in subclause (2), or an officer or employee of such a person or body has taken the oath or made the affirmation that was required by section 102D(2) or (3) of the PRA as in force immediately before the commencement of section 18 of this Act, he or she is taken to have complied with the requirements of section 18(1) or (2) of this Act (as the case requires).

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5 Confidentiality (1) A reference in section 22 of this Act to

information obtained or received by a member of OPI personnel in the course of or as a result of the performance of the functions of the Director under this Act includes a reference to information obtained or received by the person before the commencement day in the course of, or as a result of, the performance of the functions of the Director under the PRA.

(2) A reference in section 23 of this Act to a restricted matter includes a reference to the following—

(a) any evidence given before the Director before the commencement day in the course of a PRA investigation;

(b) the contents of any statement of information or document, or a description of any thing, produced to the Director before the commencement day in the course of a PRA investigation;

(c) the contents of any document, or a description of any thing, seized under the PRA before the commencement day;

(d) any information that might enable a person who was examined before the Director in the course of a PRA investigation before the commencement day to be identified or located;

(e) the fact that a person was examined before the Director in the course of a PRA investigation before the commencement day;

(f) the existence of a summons issued before the commencement day under section 17 of the Evidence Act 1958 for the purposes of a PRA investigation;

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(g) the subject matter of a PRA investigation in relation to which a summons was issued under section 17 of the Evidence Act 1958 before the commencement day.

(3) A reference in section 24, 25, 26 or 27 of this Act to information obtained or received in the course of or as a result of the performance of the functions of the Director under this Act includes a reference to information obtained or received before the commencement day in the course of, or as a result of, the performance of the functions of the Director under the PRA.

(4) In this clause—

commencement day means the day on which Part 2 of this Act comes into operation.

6 Annual reports (1) Sections 102J(1) and 102K of the PRA continue

to apply, despite their repeal, in relation to the financial year ending before the commencement of section 28 of this Act.

(2) For the purposes of the first annual report of the Director under section 28 of this Act, a reference in that section to the performance of the Director's functions under this Act includes a reference to the performance of his or her functions under the PRA during the financial year to which that report relates.

7 Complaints (1) If, before the commencement day, the Director

had—

(a) received a complaint made under section 86L of the PRA but not commenced a PRA investigation into the complaint; or

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(b) commenced but not completed a PRA investigation into a complaint made to the Director under section 86L of the PRA—

the Director may investigate or complete the investigation of that complaint on and after the commencement day under Part 3 of this Act.

(2) In an investigation referred to in subclause (1), the Director is entitled to have regard to any evidence given or document or other thing produced in relation to that investigation under Part IVA of the PRA.

(3) Section 41 of this Act applies to a complaint if, before the commencement day, the Director had completed a PRA investigation into the complaint but had not advised the complainant under section 86T(2) of the PRA, unless the Director had not advised the complainant under that section because of section 86T(3) of the PRA.

(4) An application made under section 86U(1) of the PRA before the commencement day that had not been determined by the Supreme Court before that day is to be determined under section 42 of this Act as if it were an application under section 42(1) of this Act.


commencement day means the day on which section 38 of this Act comes into operation.

8 Own motion investigations (1) An investigation initiated by the Director under

section 86N of the PRA before the commencement day that had not been completed before that day may be continued and completed by the Director on and after that day under Part 3 of this Act as if it were an investigation initiated under section 44 of this Act.

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(2) An investigation may be initiated by the Director under section 44 of this Act on or after the commencement day even if the conduct or anything else to which the investigation relates occurred before the commencement day.

(3) In an investigation referred to in subclause (1), the Director is entitled to have regard to any evidence given or document or other thing produced in relation to that investigation under Part IVA of the PRA.



9 Direction to require answers etc. of police (1) A direction given to a person under section 86Q of

the PRA for the purposes of a PRA investigation that was in force immediately before the commencement day is taken, on and after that day, to be a direction given to the person under section 47 of this Act for the purposes of an investigation under Part 3 of this Act.



10 Witness summonses (1) A summons issued under section 17 of the

Evidence Act 1958 in relation to a PRA investigation that was in force immediately before the commencement day is taken, on and after that day, to be a witness summons issued under section 53 of this Act for the purposes of an examination, or attending the Director, under Part 4 of this Act.

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(2) A notice given by the Director under section 86KA(2) of the PRA before the commencement day in respect of a summons issued under section 17 of the Evidence Act 1958 is taken, on and after that day, to be a confidentiality notice issued by the Director under section 58 of this Act in respect of a witness summons issued under section 53 of this Act.

(3) For the avoidance of doubt, for the purposes of section 60 of this Act, a notice referred to in subclause (2) is taken to have been given on the day it was given under section 86KA(2) of the PRA.



11 Witness already held in custody (1) A direction given to a person under

section 86PE(2) of the PRA that was in force immediately before the commencement day is taken, on and after that day, to be a direction given to the person under section 57(2) of this Act.



12 Examinations (1) If, immediately before the commencement day, a

person was attending the Director in the course of a PRA investigation and had not been excused from attendance, then on and after the commencement day—

(a) the person is taken to be attending an examination under Division 3 of Part 4 of this Act; and

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(b) section 62 of this Act applies before any question is asked of the person or the person produces a document or other thing.


commencement day means the day on which Division 3 of Part 4 of this Act comes into operation.

13 Further investigations (1) Section 48 of this Act applies on and after the

commencement day to a request made by the Director under section 86R(1) or (3) of the PRA before the commencement day that has not been fully complied with by the Chief Commissioner before that day.



14 Chief Commissioner to respond to Director (1) Section 49 of this Act applies on and after the

commencement day to a request referred to in section 86S of the PRA made by the Director before the commencement day unless the Chief Commissioner had given a written response to the Director in accordance with section 86S of the PRA before that day.



15 Freedom of Information Act exemption (1) A reference in section 51 of this Act to a

complaint investigated under Part 3 of this Act or to an investigation under Part 3 is taken to include a reference to a complaint investigated, or to an investigation, under Part IVA of the PRA.

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(2) Section 51 of this Act applies to a document in the possession of a relevant person or body, within the meaning of that section, whether the document came into the possession of the relevant person or body before, on or after the commencement of that section.

16 Legal professional privilege (1) If, before the commencement day—

(a) a person made a claim of legal professional privilege under section 86VAF of the PRA; and

(b) the Director had not withdrawn the requirement to produce the document or applied to the Supreme Court under section 86VAG of the PRA—

the Director may, on or after the commencement day—

(c) withdraw the requirement to produce the document under section 71 of this Act; or

(d) apply to the Supreme Court under section 72 of this Act to determine the claim.

(2) If, before the commencement day—

(a) the Director applied to the Supreme Court under section 86VAG of the PRA to determine a privilege claim; and

(b) the Supreme Court had not determined the claim under section 86VAH of the PRA—

the Supreme Court is to determine the claim on or after the commencement day under section 73 of this Act as if the Director had applied under section 72 of this Act.

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17 Legal assistance for witnesses (1) An approval of a law practice by the Secretary

under section 86VAA(2) of the PRA that was in force immediately before the commencement day continues in force on and after that day as if it were an approval under section 75(2) of this Act.

(2) An approval by the Secretary under section 86VAB of the PRA that was in force immediately before the commencement day continues in force on and after that day as if it were an approval under section 76 of this Act.



18 Contempt of Director (1) If—

(a) the Director issued a certificate of charge under section 86KB(2)(a) of the PRA before the commencement day; and

(b) the person charged with contempt had been brought before the Supreme Court under section 86KB(4)(a) of the PRA before the commencement day; and

(c) the Supreme Court had not determined the charge before the commencement day—

the charge is to be determined on or after the commencement day by the Supreme Court under 86KB of the PRA as if that section had not been repealed.

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(2) An arrest warrant issued under section 86KB(2)(b) of the PRA that is in force immediately before the commencement day continues in force in accordance with its terms on and after that day as if it were an arrest warrant issued under section 79(1)(b) of this Act.



19 Arrest of recalcitrant witness (1) If—

(a) before the commencement day, the Director applied to a magistrate under section 86PD(1) of the PRA for a warrant to arrest a person; and

(b) the magistrate had not determined the application before the commencement day—

the application is to be determined on or after the commencement day under section 84 of this Act as if it were an application for an arrest warrant under that section.

(2) A warrant to arrest a person issued under section 86PD(2) of the PRA that is in force immediately before the commencement day continues in force in accordance with its terms on and after that day as if it were an arrest warrant issued under section 84(2) of this Act.



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20 Powers of entry, search and seizure (1) An authorisation of a person under

section 86VA(2) of the PRA that was in force immediately before the commencement day is taken, on and after that day, to be an authorisation of the person under section 87(2) of this Act.

(2) If a document or thing seized under section 86VC of the PRA before the commencement day has not been returned under section 86VF of the PRA before that day, section 92 of this Act applies to the document or thing on and after that day as if the document or thing had been seized under section 89 of this Act.

(3) If an application under section 86VE(1) of the PRA in relation to a document or thing seized under section 86VC of the PRA had not been determined before the commencement day, the application is to be determined on or after that day as if it were an application under section 91 of this Act in relation to a document or other thing seized under section 89 of this Act.

(4) An application for a search warrant made under section 86VG of the PRA before the commencement day that had not been determined before that day is to be determined on or after that day as if it were an application for a search warrant under section 93 of this Act.

(5) A search warrant issued under section 86VG of the PRA before the commencement day that is in force immediately before that day is taken, on and after that day, to be a search warrant issued under section 93 of this Act.



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21 Protection of persons, documents and other things (1) A reference in Division 10 of Part 4 of this Act to

a document or other thing that has come into a person's possession in the performance of functions under this Act includes a reference to a document or other thing that has come into a person's possession (whether before or after the commencement day) in the performance of functions under Part IVA of the PRA.

(2) A reference in section 105 of this Act—

(a) to an investigation includes a reference to a PRA investigation;

(b) to a person who has been called, or who has appeared, as a witness in an examination, includes a reference to a person who has been called, or who has appeared, as a witness in a PRA investigation.

(3) A certificate given by the Director under section 86KG(2) of the PRA that was in force immediately before the commencement day remains in force on and after that day as if it were a certificate given by the Director under section 106(2) of this Act.

(4) An objection made before the commencement day under section 86KH of the PRA to the production or inspection of a document or other thing that has not been determined under section 86KH of the PRA before that day is to be determined under section 107 of this Act.



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22 Reports to Special Investigations Monitor (1) Section 115 of this Act applies on and after the

commencement day in relation to a summons issued under section 17 of the Evidence Act 1958 in relation to a PRA investigation as if it were a witness summons, unless the Director has given a written report on the summons under section 86ZB of the PRA before that day.

(2) Section 116 of this Act applies on and after the commencement day in relation to a warrant issued under section 86KB(2)(b) or 86PD(2) of the PRA as if it were a warrant issued under section 79 or 84 of this Act (as the case requires), unless the Director has given a written report on the warrant under section 86ZC of the PRA before that day.

(3) Section 117 of this Act applies on and after the commencement day in relation to a person who was attending the Director under Part IVA of the PRA before that day as if the person were attending the Director at an examination, or otherwise, in relation to a witness summons, or attending an examination voluntarily under this Act, unless the Director has given a written report in relation to the person under section 86ZD of the PRA before that day.



23 Complaints to Special Investigations Monitor (1) A person referred to in section 86ZE(1) of the

PRA who, immediately before the commencement day, could have made a complaint to the Special Investigations Monitor under section 86ZE(2) of the PRA may make a complaint to the Special Investigations Monitor under section 118(2) of

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this Act as if he or she were a person referred to in section 118(1) of this Act.

(2) A complaint referred to in subclause (1) may be made within 90 days after the day on which the person was excused from attendance under the PRA.

(3) If, before the commencement day, the Special Investigations Monitor had—

(a) received a complaint made under section 86ZE of the PRA but not commenced an investigation into the complaint; or

(b) commenced but not completed an investigation into a complaint made to the Special Investigations Monitor under section 86ZE of the PRA—

the Special Investigations Monitor may investigate or complete the investigation of that complaint on and after the commencement day under Part 5 of this Act.



24 Other powers of Special Investigations Monitor (1) A written notice given by the Special

Investigations Monitor that was in force under section 86ZK(1) of the PRA immediately before the commencement day remains in force on and after that day as if it were a written notice given to the person under section 124 of this Act.



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25 Annual report by Special Investigations Monitor (1) Section 86ZL(1) of the PRA continues to apply,

despite its repeal, in relation to the financial year ending before the commencement of Part 5 of this Act.

(2) For the purposes of the first annual report of the Special Investigations Monitor under section 126 of this Act, a reference in that section to the performance of the Special Investigations Monitor's functions under this Act includes a reference to the performance of his or her functions under the PRA during the financial year to which that report relates.

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SCHEDULE 2

Section 143

AMENDMENT OF ACTS

1 Commissioner for Law Enforcement Data Security Act 2005

In section 13(1)(a), for "section 102A(2) of the Police Regulation Act 1958" substitute "section 7 of the Police Integrity Act 2008".

2 Confiscation Act 1997 In section 115(1AA), in the definition of the DPI, for "section 102A(2) of the Police Regulation Act 1958" substitute "section 7 of the Police Integrity Act 2008".

3 Crimes Act 1958 3.1 In section 464ZGH(2)(g)(iv), for "Police

Regulation Act 1958" substitute "Police Integrity Act 2008".

3.2 In section 464ZGK(2)(g)(iv), for "Police Regulation Act 1958" substitute "Police Integrity Act 2008".

4 Crimes (Assumed Identities) Act 2004 4.1 In section 3—

(a) in the definition of Director, for "section 102A(2) of the Police Regulation Act 1958" substitute "section 7 of the Police Integrity Act 2008";

(b) in the definition of Office of Police Integrity, for "established by section 102A(1) of the Police Regulation Act 1958" substitute "within the meaning of the Police Integrity Act 2008".

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4.2 In section 34(4)—

(a) omit "or 102F";

(b) after "1958" insert "and section 21 of the Police Integrity Act 2008".

5 Crimes (Controlled Operations) Act 2004 5.1 In section 3—



5.2 In section 36(1)(c)(iv), after "1958" insert ", the Police Integrity Act 2008".

5.3 In section 49, in proposed section 131Q(1)(c)(iv), after "1958" insert ", the Police Integrity Act 2008".

5.4 In section 51, in proposed section 74M(1)(c)(iv), after "1958" insert ", the Police Integrity Act 2008".

6 Drugs, Poisons and Controlled Substances Act 1981 In section 95, for "Police Regulation Act 1958" (wherever occurring) substitute "Police Integrity Act 2008".

7 Firearms Act 1996 7.1 Insert the following definitions in section 3(1)—

"Director, Police Integrity means the Director, Police Integrity under section 7 of the Police Integrity Act 2008;

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member of staff of the Office of Police Integrity has the same meaning as it has in the Police Integrity Act 2008;".

7.2 After item 13 in Schedule 3 insert—

" 14 A member of

staff of the Office of Police Integrity.

When possessing, carrying or using a firearm in the course of his or her official duties when authorised to do so by the Director, Police Integrity under Division 9 of Part 4 of the Police Integrity Act 2008.

".

8 Magistrates' Court Act 1989 In clause 8(1)(b)(iva) of Schedule 5, for "established by section 102A(1) of the Police Regulation Act 1958" substitute "within the meaning of the Police Integrity Act 2008".

9 Ombudsman Act 1973 Section 12(2) is repealed.

10 Sex Offenders Registration Act 2004 10.1 In section 3, in the definition of Director, for

"section 102A(2) of the Police Regulation Act 1958" substitute "section 7 of the Police Integrity Act 2008".

10.2 In section 66C(2)—

(a) in paragraph (b), for "Police Regulation Act 1958" substitute "Police Integrity Act 2008";

(b) in paragraph (c), for "section 102D(3) of the Police Regulation Act 1958" substitute "section 18(2) of the Police Integrity Act 2008".

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10.3 In section 66C(3), for "section 102D(3) of the Police Regulation Act 1958" substitute "section 18(2) of the Police Integrity Act 2008".

11 Surveillance Devices Act 1999 In section 3(1)—



12 Telecommunications (Interception) (State Provisions) Act 1988

12.1 In section 3(1)—


(b) in the definition of Office of Police Integrity, for "established by section 102A(1) of the Police Regulation Act 1958" substitute "within the meaning of the Police Integrity Act 2008";

(c) in paragraph (b) of the definition of permitted purpose, for "Police Regulation Act 1958" (wherever occurring) substitute "Police Integrity Act 2008".

12.2 In section 3(1), for the definition of member of staff of the Office of Police Integrity substitute—

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13 Terrorism (Community Protection) Act 2003 13.1 In section 13F(10), for "Part IVA of the Police

Regulation Act 1958" substitute "section 7 of the Police Integrity Act 2008".

13.2 In section 13L(7)(a), for "Part IVA of the Police Regulation Act 1958" substitute "section 7 of the Police Integrity Act 2008".

13.3 In section 13M(7)(a), for "Part IVA of the Police Regulation Act 1958" substitute "section 7 of the Police Integrity Act 2008".

13.4 In section 13P(7)(b), for "Police Regulation Act 1958" substitute "Police Integrity Act 2008".

13.5 In section 13ZC(2), for "Police Regulation Act 1958" substitute "Police Integrity Act 2008".

13.6 In section 13ZE, for "Police Regulation Act 1958" substitute "Police Integrity Act 2008".

13.7 In sections 13ZF(1)(c) and 13ZJ(2)(d)(ii), for "or the Director, Police Integrity under Part IVA of the Police Regulation Act 1958" substitute ", a complaint to the Director, Police Integrity under Part IVA of the Police Regulation Act 1958 or an investigation by the Director, Police Integrity under Part 3 of the Police Integrity Act 2008".

13.8 For section 13ZR(2)(d) substitute—

"(d) particulars of—

(i) any complaints made or referred during the year to the Ombudsman under the Ombudsman Act 1973;

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(ii) any complaints made or referred during the year to the Director, Police Integrity under Part IVA of the Police Regulation Act 1958;

(iii) any investigations during the year by the Director, Police Integrity under Part 3 of the Police Integrity Act 2008—

in relation to the detention of a person under a preventative detention order;".

13.9 In section 13ZS, after "Police Regulation Act 1958" insert "or Part 3 or 4 of the Police Integrity Act 2008".

14 Whistleblowers Protection Act 2001 14.1 In section 3(1), in the definition of Director, for

"section 102A(2) of the Police Regulation Act 1958" substitute "section 7 of the Police Integrity Act 2008".

14.2 In section 3(1), for the definition of member of staff of the Office of Police Integrity substitute—


14.3 In section 26, for "despite anything to the contrary in Part IVA of the Police Regulation Act 1958, the subject-matter of the disclosure must be investigated under this Act instead of under Part IVA of the Police Regulation Act 1958" substitute "despite anything to the contrary in Part IVA of the Police Regulation Act 1958 or Part 3 of the Police Integrity Act 2008, the subject-matter of the disclosure must be investigated under this Act instead of under Part IVA of the Police Regulation Act 1958 or Part 3 of the Police Integrity Act 2008".

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14.4 In section 61AA(1), in paragraph (c) of the definition of authorised officer, for "section 102D(3) of the Police Regulation Act 1958" substitute "section 18(2) of the Police Integrity Act 2008".

14.5 In section 61AA(2), for "section 102D(3) of the Police Regulation Act 1958" substitute "section 18(2) of the Police Integrity Act 2008".

14.6 In section 105A(a), for "section 102E(1)(b) of the Police Regulation Act 1958" substitute "section 17(1)(b) of the Police Integrity Act 2008".

14.7 In section 105I, for "section 102E(1)(b) of the Police Regulation Act 1958" substitute "section 17(1)(b) of the Police Integrity Act 2008".

14.8 In section 105J(1)(c), for "section 102E(1)(b) of the Police Regulation Act 1958" substitute "section 17(1)(b) of the Police Integrity Act 2008".

14.9 In section 105K(1), for "section 102E(1)(b) of the Police Regulation Act 1958" substitute "section 17(1)(b) of the Police Integrity Act 2008".

14.10 In section 105L(2)(a), for "section 102E(1)(b) of the Police Regulation Act 1958" substitute "section 17(1)(b) of the Police Integrity Act 2008".

14.11 Section 105M is repealed.

14.12 In section 107(1)—

(a) in paragraph (e), for "section 102D(3) of the Police Regulation Act 1958" substitute "section 18(2) of the Police Integrity Act 2008";

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(b) in paragraphs (f) and (g)—

(i) for "section 102E(1)(b) of the Police Regulation Act 1958" substitute "section 17(1)(b) of the Police Integrity Act 2008";

(ii) for "section 102D(3)" substitute "section 18(2)".

14.13 In section 109(2), in paragraph (e) of the definition of relevant person or body, for "section 102E(1)(b) of the Police Regulation Act 1958" substitute "section 17(1)(b) of the Police Integrity Act 2008".

15 Witness Protection Act 1991 In section 3(1), in the definition of Director, for "section 102A(2) of the Police Regulation Act 1958" substitute "section 7 of the Police Integrity Act 2008".

═══════════════

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ENDNOTES

† Minister's second reading speech—

Legislative Assembly: 13 March 2008

Legislative Council: 10 April 2008

The long title for the Bill for this Act was "A Bill for an Act to re-establish the Office of Police Integrity, to set out the functions of the Office and of the Director, Police Integrity, to amend the Police Regulation Act 1958 and other Acts and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 13 March 2008

Legislative Council: 10 April 2008

Absolute majorities:

Legislative Assembly: 9 April 2008

Legislative Council: 24 June 2008

Endnotes


175

INDEX Subject

Section

Act amendment of other Acts 143, Sch. 2 amendment of Police Regulation Act 1958 133–142 commencement 2 Crown bound by 4 prevails over Ombudsman Act 1973 128 purpose 1 regulations 37, 77, 131 repeal 144 transitional provisions 132, Sch. 1 Alcohol and drug testing – OPI personnel confidentiality of test results 35 definitions 30 directions to undergo testing 31, 33 directions when member unable to comply 33 Director's actions as result of testing 32 evidence obtained from samples 33, 34 regulations regarding 37 Arrest 79, 84, 116 Authorised officers 87–90 Bail 80, 85 Chief Commissioner definition 3 powers, duties regarding

detention of persons charged with contempt 81 detention of recalcitrant witnesses 86 investigations 40, 48 search warrants 98 secondment of Victoria Police to OPI 19, 20

Complaints advice to complainant of results of investigations 41 application of Division 1 of Part 3 38 as disclosure under Whistleblowers Protection

Act 2001 39

made to Director 39 made to Special Investigations Monitor 118–121 jurisdiction 42 referral to Chief Commissioner 40 regulations 131 resolution by conciliation 40 Contempt of Director 78, 79, 82, 83 Critical incidents 30, 110 Defensive equipment 102


176

Subject

Section

Definitions 3, 21, 23, 24, 30, 34, 51, 58, 67, 75, 79, 87, 91, 99, 100, 101, 104, 105, 129

Director, Police Integrity acting Director 15, 16 appointment 10 coercive powers (def.) 3 contempt of 78 delegation 21 establishment 7 independent officer 9 oath, affirmation 16 objects, functions, powers 8, 9 powers, duties regarding

alcohol and drug testing of OPI personnel 31–33, 35 annual reports 28, 29 arrest 79, 84 assistance to Special Investigations Monitor 122 authorised officers 87 detention of persons 81, 85 disclosure of information 23–27 letters by, to people in custody 129 privilege claims 100 recalcitrant witnesses 84–86 recommendations made by Special

Investigations Monitor 121

referral of matters to DPP 112 reports to Special Investigations Monitor 115–117 search warrants 93, 94 secondment of Victoria Police to OPI 17, 19, 20 seizure 90–92, 96 staff 17, 18

remuneration, allowances 11 suspension, removal from office 14 terms and conditions of appointment 12 vacancy, resignation 13 See also Examinations; Investigations; Witness

summonses

Entry, search and seizure copies of documents seized 90 of Special Investigations Monitor 123 police to assist authorised officers 98 powers of authorised officers regarding public

authorities 88, 89

privilege claims regarding search warrants 99–101 return of things seized 91, 92, 96 with search warrant 93–98


177

Subject

Section

Evidence 33, 34 Examinations arrest warrants for witnesses 84 conduct 61 evidence in

Crown privilege 74 inadmissibility 67, 69 legal professional privilege 62, 70–73 self-incrimination privilege 62, 69 taking of 66

failure to attend, answer questions, produce documents

68, 78

holding of 65 information for witnesses 62 legal assistance for witnesses 75–77 preliminary requirements 62 representation of witnesses at 62, 64 secrecy provisions 74 video-recording 67 witnesses under 16 62, 63 witnesses under 18 62, 64 witnesses with mental impairment 64 Firearms 103 Freedom of Information Act 1982 51 Imprisonment 57, 81, 86 Investigations application of Division 2 of Part 3 43 conducted by Chief Commissioner 40, 48, 49 conducted by Director

advice to complainant on completion 41 consultation with Chief Commissioner 45 exemption from Freedom of Information

Act 1982 51

not affected by proceedings 46 on own motion 44 power to demand information, documents 47 reports 50

protection of legal practitioners, witnesses 111 referral of matters to DPP 112 regarding

breaches of discipline 47 complaints made to Special Investigations

Monitor 120

police corruption 44 policies, practices, procedure of Victoria

Police 44

use of defensive equipment, firearms during 102, 103


178

Subject

Section

Offences and penalties regarding

confidentiality notices 59 contempt of Director 78, 83 disclosure of identifying information 36 disclosure of information 22 disclosure of restricted matters 23 examinations 68, 73 failure to comply with directions of Director 113 false, misleading statements 113, 124 letters by, to people in custody 129 non-compliance with Special Investigations

Monitor 124

obstruction, hindrance of Director 113 opening sealed documents 101

Office of Police Integrity continuation of 5 disclosure of information 22 functions, powers 6 personnel - alcohol, drug testing of 31 secondment of Victoria Police 19, 20 staff 17, 18 Police custody 57, 79, 81, 86 Protected documents, things 105–108 Protected persons critical incidents 110 definition 104 general protection of 109 production of protected documents, things by 106, 107 Public authorities 3, 88, 89 Regulations 37, 77, 131 Secretary 75, 76 Special counsel 108 Special Investigations Monitor annual report 126 complaints regarding examinations 118–120 definition 3 delegation 127 powers of entry, access to OPI 123 privileges do not apply to OPI personnel 125 recommendations to Director 121 reports by Director to 115–117 requirement to answer questions, produce

documents 124

role under Part 5 of Act 114 Supreme Court limitation of jurisdiction 130 powers regarding

contempt of Director 82 jurisdiction of Director 42 proceedings against protected persons 109


179

Subject

Section

Transitional provisions 132, Sch. 1 Victoria Police 3, 19, 20, 98 Witness summonses application to investigations 52 confidentiality notices 58, 59, 60 directed to persons in custody 57 directed to persons under 16 55 form 54 issue by Director 53 matters stated in, required by 54 reports to Special Investigations Monitor on 115, 117 service 56 See also Investigations

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