Scrutiny of Acts and Regulations Committee

Alert Digest No 7 of 2004

Tuesday, 14 September 2004

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Aboriginal Lands (Amendment) Bill

Introduced: 24 August 2004
Second Reading Speech: 26 August 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Steve Bracks MLA
Portfolio responsibility: Minister for Aboriginal Affairs

Purpose

The Bill amends the Aboriginal Lands Act 1970 (the “Act”) to —

• empower the Minister to appoint an Administrator to manage the affairs of the Lake Tyers Aboriginal Trust in place of the committee of management in certain circumstances.

• enable certain persons to enter and remain in designated places within the Lake Tyers reserve to provide certain services to the residents of that reserve.

• provide for certain roads within the Lake Tyers reserve to be public roads for the purposes of the Road Management Act 2004 and for the local municipal council to have care and management of those roads.

• increase the general penalty applying to offences under the Act.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 July 2005.

[7]. Inserts new sections 23A–23L into the Act dealing with the appointment of an Administrator for a specified period. The ‘relevant grounds’ necessitating the appointment of an Administrator are provided in new section 23B. New section 23I provides that the Administrator may not sell or mortgage Lake Tyers reserve. New section 23J provides the Administrator with a personal immunity for any power or function performed in good faith.

[8]. Inserts a new section 24A enabling the Minister to designate certain places on the Lake Tyers reserve as accessible to "public officials" and "non-government health and community service providers" when they are performing functions or providing services.

[9]. Inserts new sections 24B to 24E into the Act. New section 24D protects the Lake Tyers Aboriginal Trust from liability as an occupier of the Lake Tyers reserve roads. New section 24E provides that the Lake Tyers Aboriginal Trust is not liable for the maintenance of the Lake Tyers reserve roads only by reason of tenure over the land in those roads.

The Committee makes no further comment

Constitution (Recognition of Aboriginal People) Bill

Introduced: 24 August 2004
Second Reading Speech: 26 August 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Steve Bracks MLA
Portfolio responsibility: Premier

Purpose

The Bill amends the Constitution Act 1975 (the “Act”) to recognise Victoria's Aboriginal people and their contribution to the State of Victoria.

Content and Committee comment

[Clauses]

[2]. Provides that the provisions in the Bill come into operation the day after Royal Assent.

[3]. Inserts a new section 1A into the Act to recognize that the events described in the preamble to the Victorian Constitution did not involve proper consultation, recognition or involvement of the Aboriginal people of Victoria.

The new section provides –

"1A. Recognition of Aboriginal people

(1) The Parliament acknowledges that the events described in the preamble to this Act occurred without proper consultation, recognition or involvement of the Aboriginal people of Victoria.

(2) The Parliament recognises that Victoria's Aboriginal people, as the original custodians of the land on which the Colony of Victoria was established —

(a) have a unique status as the descendants of Australia's first people; and

(b) have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and

(c) have made a unique and irreplaceable contribution to the identity and well-being of Victoria.

(3) The Parliament does not intend by this section—

(a) to create in any person any legal right or give rise to any civil cause of action; or

(b) to affect in any way the interpretation of this Act or of any other law in force in Victoria.".

[4]. Inserts a new section 18(2)(aa) into the Act to require that any Bill purporting to repeal, alter or vary the statement of acknowledgment and recognition described in new section 1A, will require a special majority of 3/5ths of the whole number of the members of both Houses of Parliament before it can be lawfully presented for Royal Assent.

The Committee makes no further comment

Evidence (Witness Identity Protection) Bill

Introduced: 24 August 2004
Second Reading Speech: 26 August 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Evidence Act 1958 (the “Act”) to allow witness identity protection certificates to be issued to Victorian operatives who are to give evidence in interstate proceedings, and to provide for interstate witness identity protection certificates to be used for interstate operatives in Victorian proceedings.

The Committee notes the Second Reading Speech –

In the autumn 2004 sittings, the Victorian Parliament passed the first three Bills of the major crime and terrorism package: the Crimes (Assumed Identities) Act 2004; the Crimes (Controlled Operations) Act 2004; and the Surveillance Devices (Amendment) Act 2004.

This Bill is the final part of major crime and terrorism package and implements the model laws relating to witness identity protection.

Witness identity protection is a process that enables undercover operatives to give evidence in court without disclosing their true name or address.

This is important because undercover operatives can have their lives placed in danger, or their personal safety threatened, if their names or addresses are revealed. This Bill introduces a statutory regime to protect undercover operatives' identities in court, and the circumstances in which this may occur.

…

Victorian common law currently recognises that a judge or magistrate has a discretion to allow a witness to give evidence without revealing their true identity in appropriate circumstances. This judicial discretion, based on the doctrine of 'public interest immunity', allows the court to rule that identifying information about the witness is immune from disclosure on public interest grounds. This approach works well. Accordingly, the common law will be retained for purely local situations. As a result, the Bill will only apply to cross-border situations.

A cross-border situation arises where –

• a Victorian operative, working undercover under Victorian law, is giving evidence in another jurisdiction; or

• a witness from interstate, working undercover under the law of another jurisdiction, is giving evidence in Victoria.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill will come into operation on a day or days to be proclaimed. An open-ended proclamation provision is necessary because the Bill confers powers and duties on officers of the Australian Crime Commission, which will necessitate the making of regulations by the Commonwealth under the Australian Crime Commission Act 2002 (Cth).

[3]. Inserts new 'Part IIAA – Witness Identity Protection' in the Act consisting of new sections 42BA to 42BS.

There are two separate Divisions in the new Part that provide for certificates issued to Victorian operatives giving evidence interstate (Division 2) and for interstate operatives giving evidence in Victoria (Division 3).

Division 2—Witness Identity Protection Certificates for Local Operatives

New section 42BC provides that a local undercover operative must make a statutory declaration about a range of matters before a witness identity protection certificate may be given. These matters include prior convictions and findings of guilt, pending or outstanding charges, proven and outstanding allegations of professional misconduct, adverse court comments about his or her credibility, false representations, and other particulars relevant to his or her credibility.

New section 42BD sets out the information that must be included in a witness identity protection certificate.

New section 42BE(1) provides that a decision to give a witness identity protection certificate is final, and cannot be appealed against, reviewed, called into question, quashed or invalidated in any court. Given the decision to issue a certificate is based on highly sensitive operational information, the decision could not be reviewed without disclosing this information. New section 42BE(2) provides that this does not prevent a decision to be called into question in the course of a disciplinary proceeding against the person who made the decision. (Refer to section 85 Constitution Act 1975 statement and report below).

New section 42BH creates two offences that relate to the disclosure of a local operative's identity or address where the operative has been given a witness identity protection certificate.

New section 42BJ allows the Chief Commissioner to delegate his or her power to a Deputy Commissioner.

Division 3—Interstate Witness Identity Protection Certificates

New section 42BK(2) preserves the operation of the common law in relation to the protection of the identity of a person who is not an interstate operative who gives or intends to give evidence in a Victorian proceeding.

New section 42BL sets out the filing and notification requirements in relation to interstate witness identity protection certificates for interstate operatives prior to giving evidence in Victorian proceedings.

New section 42BN provides that a court in which an interstate witness identity protection certificate is filed may make any order necessary to protect the identity or address of the interstate operative. A person commits an offence if he or she knows that, or is reckless as to whether, an order has been made, and intentionally, knowingly or recklessly contravenes the order. The maximum penalty for this offence is 2 years imprisonment.

New section 42BO provides that the presiding officer in a proceeding may require an interstate operative to disclose his or her true identity to the presiding officer, and to provide the presiding officer with photographic evidence of that identity.

New section 42BP allows a party to the proceeding to apply to the court or leave to ask a witness a question; or for leave to request that a person involved in the proceeding make a statement; or for an order requiring a witness to answer a question, give evidence, or provide information that discloses or leads to the disclosure of the operative's identity or address.

The application must be heard in the absence of any jury.

Unless the court decides otherwise, the court must also be closed when an application is made, and, if leave is given or an order made, when the question is asked, the evidence is given, the information is provided or the statement is made.

New section 42BQ(1) provides that a court must make a suppression order in relation to applications, and questions, evidence, information or statements made as a consequence of applications, under new section 42BP.

New section 42BS creates two offences that relate to the disclosure of an interstate operative's identity or address where the operative has been given a witness identity protection certificate.

Section 85 Report to the Parliament pursuant to section 17(b)(i) and (ii) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court).

[4]. Inserts new section 151A which declares that it is the intention of new section 42BE(1) to alter or vary section 85 of the Constitution Act 1975.

The Committee notes the section 85 statement in the Minister’s Second Reading Speech –

Section 42BE(1) provides that a decision to issue a witness identity certificate is final and cannot be appealed against, reviewed, called into question, quashed or invalidated in any court. It is the intention of section 42BE(1) to limit the jurisdiction of the Supreme Court so that the decision by a chief or senior officer of a law enforcement agency to issue a witness identity protection certificate is not reviewable by the courts.

The reason for the limitation of the Supreme Court's jurisdiction is that, given the decision to issue a certificate is based on highly sensitive operational information, the decision could not be reviewed without disclosing this information. This would defeat the purpose of the witness identity protection scheme.

The Committee makes no further comment

Gambling Regulation (Amendment) Bill

Introduced: 24 August 2004
Second Reading Speech: 26 August 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Tim Holding MLA
Portfolio responsibility: Minister for Gaming

Purpose

The Bill amends the Gambling Regulation Act 2003 (the ‘Act’). The amendments will change the structure of the estate of the late George Adams (Tatersall’s) from a trust to a corporation and permit it to be listed on the Australian Stock Exchange. The current Act prohibits the transfer of the gaming operator’s licence and the public lotteries licence held by the trustees.

The Bill will regulate shareholding and cross ownership interests in the new corporation and will make provision for its financial recording and reporting requirements. The Bill also provides for probity checks to be undertaken as part of the transfer process.

Content and Committee comment

[Clauses]

[2]. Sections 1, 2, 3 and 13 come into operation on the day after Royal Assent. The remaining provisions come into operation on a day or days to be proclaimed. Clause 13 provides that the provisions in the Bill will expire if they have not come into force by 30 November 2005.

[5]. Inserts new Divisions 3A and 3B into Part 4 of Chapter 3 of the Act to regulate the shareholding interests of a gaming operator in the Corporation.

Section 85 Report to the Parliament pursuant to section 17(b)(i) and (ii) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court)

[10]. Inserts a new sub-section (2) in section 11.1.7 of the Act that provides that it is the intention of new section 3.4.37I(6) (as inserted by clause 5) to alter or vary section 85 of the Constitution Act 1975.

The Committee notes the section 85 statement in the Minister’s Second Reading Speech –

Clause 10 of the Bill inserts a new subsection (2) into section 11.1.7 of the Gambling Regulation Act 2003. It states that it is the intention of the new section 3.4.37I(6) to alter or vary section 85 of the Constitution Act 1975.

Clause 5 of the Bill inserts two new divisions, being Divisions 3A and 3B, into Part 4 of Chapter 3 of the Gambling Regulation Act 2003.

Division 3A relates to the regulation of shareholding interests in the holder of a gaming operator's licence under chapter 3 of the act. Under that Division, the Minister can make declarations relating to the regulation of shareholding interests in the holder of a gaming operator's licence. New section 3.4.37I in that Division provides for certain appeals to the Supreme Court against those declarations and also provides in subsection (6) that, except as provided in the Division, a declaration of the Minister may not be challenged or called into question.

The provisions in that Division to enforce the restrictions on shareholdings, including the making of declarations by the Minister and the limitation of appeals to the Supreme Court against such declarations, are an essential mechanism for achieving the objects of the legislation and, in particular, for ensuring probity in the conduct of the business of the licensee and in dealings in shares of the licensee.

Chapter 4 of the Gambling Regulation Act 2003 already contains an equivalent limitation of appeals in relation to the holder of the gaming and wagering licence under that Chapter.

The new section will ensure that the limitation will apply to both the holder of a gaming operator's licence under Chapter 3 and the holder of the wagering and gaming licence under Chapter 4.

The Bill as drafted will remove the legislative impediment to the restructure of Tattersall's that is currently imposed by the Gambling Regulation Act 2003, while ensuring that appropriate reporting and probity measures are retained.

In addition, the corporatisation of Tattersall's will provide, for the first time, transparency of the ownership of the Tattersall's business.

The Committee makes no further comment

Magistrates’ Court (Family Violence) Bill

Introduced: 24 August 2004
Second Reading Speech: 26 August 2004
House: Legislative
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Magistrates' Court Act 1989 to establish the Family Violence Court Division of the Magistrates' Court.

The Bill amends Crimes (Family Violence) Act 1987 to provide for orders to attend counselling for defendants to intervention orders and to increase court powers in regard to intervention orders for children.

The provisions (in both Acts) relating to counselling orders (a pilot program) sunset in October 2007.

Content and Committee comment

[Clauses]

[2]. Other than Part 4 the provisions in the Bill commence operation on proclamation but not later than 1 April 2005 if it is not proclaimed earlier. Part 4 comes into operation on 30 October 2007 which has the effect of repealing the provisions of the Bill relating to counselling orders.

The Committee notes the explanatory memorandum –

The counselling order program is a pilot program. On 30 October 2007 the provisions establishing this pilot program will be repealed.

Amendments to the Magistrates' Court Act 1989

[4]. Inserts new sections 4H to 4L in the Act establishing the Family Violence Court Division of the Magistrates' Court and provide that it has such of the powers of the Magistrates' Court as are necessary to enable it to exercise its jurisdiction.

New section 4K provides alternative arrangements that may be used for the giving of evidence in any proceeding in the Family Violence Court Division including permitting evidence to be given by closed circuit television or other facilities that enable communication between that place and the courtroom, and permitting only persons specified by the Family Violence Court Division to be present while the witness is giving evidence.

New section 4L protects children from involvement in proceedings in the Family Violence Court Division where possible.

Amendments to the Crimes (Family Violence) Act 1987

[10]. Inserts a new section 4A in the Act providing for additional grounds for making a protection order where the court is satisfied that the child has heard or witnessed family violence and is likely to do so again.

[13]. Substitutes a new section 8(2) of the Act to allow evidence to be given by affidavit for interim intervention orders. This will only be available for complaints arising from the grounds set out under section 4(1) and not those that arise under section 21A of the Crimes Act 1958 (the offence of stalking).

[14]. Inserts new Part 2A in the Act which contains new sections 8A to 8S. The Part deals with the assessment and the eligibility of defendants to intervention orders for counselling and, if appropriate, to order such defendants to attend counselling.

The new Part will only apply to defendants to intervention orders (excluding interim intervention orders) who are 17 years of age or over and whose residence is within a postcode area which is specified by notice in the Government Gazette.

New section 8C requires the Family Violence Court Division to make orders to assess eligibility for counselling of defendants to intervention orders, unless certain conditions exist.

New section 8D provides for counselling orders where the Family Violence Court Division receives a report under section 8C and is satisfied that the defendant is eligible to attend counselling.

New section 8O protects the privacy of defendants who attend an eligibility interview as ordered under new section 8C.

New section 8P protects the privacy of defendants ordered to attend counselling under new section 8D.

New section 8Q protects the privacy of defendants by restricting the use any court may make of information that the Family Violence Court Division obtains from a report as to eligibility to attend counselling or in respect of attendance at counselling.

New section 8R clarifies that the Act allows for the collection of health information within the bounds provided in the Health Records Act 2001. A person or body that conducts an interview or prepares a report as to eligibility to attend counselling, or a person or body who provides counselling, is authorised to collect health information to the extent that it is necessary for those activities.

New section 8S allows the Secretary to delegate powers (other than the power of delegation itself) under the new Part to a person employed under the Public Sector Management and Employment Act 1998.

[27]. Inserts new section 21A such that evidence may be given by affidavit in intervention order proceedings. People who do give evidence by affidavit may still be subject to cross-examination.

[34 to 40]. Provides for the repeal of counselling order provisions inserted into the Magistrates' Court Act 1989 and the Crimes (Family Violence) Act 1987 by this Bill.

[41]. Inserts new section 28 into the Crimes (Family Violence) Act 1987 to save orders that are made under the provisions to be repealed at the conclusion of the pilot program.

The Committee makes no further comment

Magistrates’ Court (Increased Civil Jurisdiction) Bill

Introduced: 24 August 2004
Second Reading Speech: 26 August 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Magistrates’ Court Act 1989 (the “Act”) and increases the civil jurisdiction of the Magistrates' Court from $40,000 to $100,000 and increases the amount under which the Court must refer a small claim to arbitration from $5,000 to $10,000.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill commence operation on 1 January 2005.

[3]. Substitutes the figure of $100,000 for the figure of $40,000 in the definition of 'jurisdictional limit' in section 3(1) of the Act.

[4]. Substitutes the figure of $10,000 for the figure of $5,000 in section 102(1) of the Act. Section 102(1) requires the Court to refer a complaint to arbitration where the monetary relief sought is less than the amount specified.

[5]. Is a transitional clause stating that the amendments apply only with respect to proceedings commenced on or after the commencement of the Bill.

The Committee makes no further comment

Major Crime Legislation (Office of Police Integrity) Bill

Introduced: 24 August 2004
Second Reading Speech: 25 August 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Andre Haermeyer MLA
Portfolio responsibility: Minister for Police

Purpose

The Bill amends the –

• Police Regulation Act 1958 and the Ombudsman Act 1973 to establish the Office of Police Integrity and the Director, Police Integrity to replace the Police Ombudsman.

• Surveillance Devices Act 1999, the Surveillance Devices (Amendment) Act 2004, the Crimes (Assumed Identities) Act 2004 and the Crimes (Controlled Operations) Act 2004, to allow the Office of Police Integrity and the Director, Police Integrity to use powers under those Acts;

• Telecommunications (Interception) (State Provisions) Act 1988 to make provision for the Office of Police Integrity and the Director, Police Integrity in relation to the use of powers under the Telecommunications (Interception) Act 1979 (Cth).

Submission

The Committee received a submission from the Office of the Victorian Privacy Commissioner, Mr Paul Chadwick (see Appendix 4).

Content and Committee comment

[Clauses]

[2]. Other than certain Parts, the provisions in the Bill come into effect on proclamation but not later than by 1 July 2005.

The provisions that have no default commencement are those relating to the Telecommunications (Interception) (State Provisions) Act 1988, the Surveillance Devices (Amendment) Act 2004, the Crimes (Assumed Identities) Act 2004 and the Crimes (Controlled Operations) Act 2004. The latter 3 Acts require Commonwealth action before they can be implemented and those Acts have open-ended commencement dates. Accordingly the provisions in this Act that amend those Acts also have open ended commencement.

Amendments to the Police Regulation Act 1958

[3]. Inserts a new Part VB (new sections 102A to 102J.

New section 102A establishes the Office of Police Integrity and requires there to be a Director of the Office, called the Director, Police Integrity (the ‘Director’). The Director is to be the same person as the person who holds the office of Ombudsman.

New section 102F enables the Director to delegate powers under this or any other Act to any person (other than the power of delegation).

New section 102G provides that information obtained in the course of or as a result of the functions of the Director under the Police Regulation Act 1958 must not be disclosed except in a limited range of circumstances. A prosecution for an offence may only be brought by the Director or by the Director of Public Prosecutions.

New section 102H permits the disclosure of information to corresponding authorities of other jurisdictions.

New section 102I permits the Director to disclose information to the Privacy Commissioner, where that information is relevant to the performance of functions or duties by the Privacy Commissioner.

[4]. Makes consequential amendments to the Act, substituting references to the Director and members of staff of the Office of Police Integrity for references to the Police Ombudsman and officers of the Ombudsman. Clause 4(2) clarifies that a police member may be subject to discipline in respect of conduct engaged in whilst seconded to the Office of Police Integrity.

Clause 4(4) substitutes a new section 86J and provides an immunity for civil and criminal proceedings to the Director and the staff of thew Office of Police Integrity in respect of any act done under the Act unless the act was done in bad faith. (Refer to section 85 of the Constitution Act 1975 declaration and statement below).

Section 85 Report to the Parliament pursuant to section 17(b)(i) and (ii) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court)

[5]. Inserts new section 129A(3) in the Act as a consequence of the amendments to section 86J made by clause 4(4) (above) and declares that it is the intention of section 86J as amended to limit the jurisdiction of the Supreme Court.

The Committee notes the section 85 statement in the Minister’s Second Reading Speech –

Clause 5 of the Bill will insert a new section 129A(3) into the Police Regulation Act 1958.

It will provide that it is the intention of section 86J of the Police Regulation Act as amended by clause 4 of the Bill to alter or vary section 85 of the Constitution Act.

Section 86J currently limits the liability of the Police Ombudsman and the capacity of any person to bring proceedings against the Police Ombudsman to those acts that are done in bad faith. It also limits the scope of orders that may be made by a court in relation to the Police Ombudsman and prohibits the Police Ombudsman from being called to give evidence.

The Bill will make consequential amendments to section 86J by replacing references to the Police Ombudsman with references to the Director, Police Integrity.

It also includes reference to the staff of the Office of Police Integrity and those engaged by the Director who have taken an oath or affirmation under section 102D. As the Director will be performing the current functions of the Police Ombudsman, the protection afforded to the Police Ombudsman under the current law should also be provided to the Director. Staff and persons and bodies assisting the director in performing his functions should also be covered by those protections. The Director's investigations may otherwise be thwarted by numerous legal challenges and proceedings on grounds other than allegations of bad faith.

[7]. Amends the Ombudsman Act 1973 in respect to removing references to the Police Ombudsman and the substituting new references to the Director, Police Integrity.

[9]. Amends section 3(1) of the Surveillance Devices Act 1999 to include the Office of Police Integrity in the list of law enforcement agencies defined under that Act. This enables the Office to obtain warrants or emergency authorisations to use surveillance devices, subject to the same control and reporting regimes that apply to the other agencies listed.

[13]. Amends the Surveillance Devices (Amendment) Act 2004 to include the Office of Police Integrity in the list of law enforcement agencies defined in that Act.

[17]. Amends the Crimes (Assumed Identities) Act 2004 to include the Office of Police Integrity, the Director and certain members of staff of the Office in the list of law enforcement agencies and law enforcement officers defined in that Act.

[20]. Amends section 3 of the Crimes (Controlled Operations) Act 2004 to insert definitions of "Director", " Office of Police Integrity", "prescribed member of staff of the Office of Police Integrity" and "Special Investigations Monitor" into that Act.

[24]. Provides that the chief officer of the Office of Police Integrity (that is, the Director) may delegate to a senior officer within the Office the function of notifying a property owner of damage to their property as a result of a controlled operation, under section 34(2) of the Crimes (Controlled Operations) Act 2004.

Amendments to the Telecommunications (Interception) (State Provisions) Act 1988 (the ‘Act’)

[25]. Inserts a reference to the Office of Police Integrity into section 1 of the Act which sets out the purpose of that Act.

[26]. Inserts various definitions into the Act including an expanded definition of "permitted purpose" which sets out the purposes for which information collected by use of a telecommunications device under an authorisation under the Telecommunications (Interception) Act 1979 (Cwlth) may be used in Victoria.

[27]. Inserts new Parts 3A and 3B into the Act.

New Part 3A (new sections 20A to 20E) provides for the Office of Police Integrity to keep records in relation to the issue of warrants and other matters in connection with interceptions and to report to the State Minister in relation to the issue and revocation of warrants and the use that has been made of the information obtained under those warrants; requires the State Minister to provide the Commonwealth Minister with copies of all warrants and reports provided to the State Minister; and places requirements on the Director in relation to the keeping and destruction of restricted records.

New Part 3B (new sections 20F to 20O) sets out the oversight functions of the Special Investigations Monitor in relation to the use of telephone intercepts conducted by the Office of Police Integrity.

New section 20F provides that the Special Investigations Monitor may inspect records of the Office of Police Integrity to ascertain the extent to which staff of the Office have complied with the requirements of Part 3A, and report to the Minister on his or her findings.

New section 20H provides for the Special Investigations Monitor to report to the Minister, in writing, about the results of the regular inspections within 3 months of the end of the financial year, may report at any time about the results of an inspection, and must do so if requested by the Minister or the Attorney General.

New section 20K sets out the powers of the Special Investigations Monitor to obtain relevant information, including the power to require information, by notice in writing, and to require attendance at a specified time and place to answer questions.

Self-incrimination

New section 20L provides that a person is not excused from giving information to the Special Investigations Monitor on the grounds that it would contravene a law, or not be in the public interest or tend to incriminate the person. However any self-incriminating information provided is subject to a use immunity for the person who provided it. Any information or answer provided may only be used for a prosecution under section 23 (failure to attend, furnish information or answer a question without reasonable excuse).

New section 20N provides immunity for the Special Investigations Monitor in the exercise of functions performed under the new Part.

New section 20O makes provision for delegation by the Special Investigations Monitor to another inspecting officer other than the power of delegation and the power to report to the Minister.

[30]. Makes consequential amendments to the Whistleblowers Protection Act 2001 including amendments to section 107 which provides a criminal and civil immunity to the Ombudsman, Director of Police Integrity and the officers and staff of their respective offices (unless an act is done in bad faith). (Note: section 85 of the Constitution Act 1975 declaration and statement below).

Section 85 Report to the Parliament pursuant to section 17(b)(i) and (ii) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court).

[31]. Inserts a new section 110(3) into the Whistleblowers Protection Act 2001, as a consequence of the amendments to section 107 made by clause 30 of the Bill, to declare that it is the intention of section 110 as amended to limit the jurisdiction of the Supreme Court.

The Committee notes the section 85 statement in the Minister’s Second Reading Speech –

Clause 31 of the Bill will insert a new section 110(3) into the Whistleblowers Protection Act 2001. It will provide that it is the intention of section 107 of the Whistleblowers Protection Act 2001, as amended by clause 30 of the Bill, to alter or vary section 85 of the constitution. Section 107 of the Whistleblowers Protection Act 2001 currently provides for the protection of the Police Ombudsman in relation to legal proceedings in a similar manner to that of the Police Regulation Act 1958. The Bill will make consequential amendments to the Whistleblowers Protection Act 2001 by replacing references to the Police Ombudsman with references to the Director, Police Integrity. It will also include reference to the staff of the Office of Police Integrity and those engaged who have taken an oath or affirmation under section 102D of the Police Regulation Act 1958.

The amended section 107 also continues the current immunity for the Ombudsman, officers of the Ombudsman and the Chief Commissioner of Police. As these bodies will be continuing to perform their current functions, it is necessary that the protection afforded to them under the current law continues. Similarly, the Director, Police Integrity will be performing the current functions of the police ombudsman and the protection afforded to the Police Ombudsman under the current law should also be provided to the director. Staff and persons and bodies assisting the director in performing his functions should also be covered by these protections. The Director's investigations may otherwise be thwarted by numerous legal challenges and proceedings on grounds other than allegations of bad faith.

The Committee makes no further comment

Major Crime (Special Investigations Monitor) Bill

Introduced: 24 August 2004
Second Reading Speech: 25 August 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The provisions of the Bill provide for the appointment of a Special Investigations Monitor as a new statutory office to oversee the use of covert investigation powers by the Director, Police Integrity. The Bill also makes consequential amendments to the Public Sector Management and Employment Act 1998 and the Whistleblowers Protection Act 2001 and the Juries Act 2000.

The Committee notes the Second Reading Speech –

The Major Crime Legislation (Office of Police Integrity) Bill transforms the Police Ombudsman into the new statutory office of Director, Police Integrity. It also provides the Director, Police Integrity with new covert powers to investigate police corruption.

Those covert investigative powers relate to the use of surveillance devices, assumed identities, controlled operations and telecommunications interception. Some of the investigative powers legislation provides for independent oversight of law enforcement agencies exercising powers under those schemes.

That legislation is the Surveillance Devices (Amendment) Act 2004, the Crimes (Controlled Operations) Act 2004 and the telecommunications interception scheme. This oversight is necessary because of the intrusive and covert nature of the powers contained in these schemes. Due to the covert nature of these investigative tools, people being investigated using these powers would not be aware that the powers had been used against them. For example, a person would not be aware if a hidden camera was secretly installed in his or her house under a surveillance devices warrant. As people who have been subjected to these powers are not in a position to observe or complain about the manner in which the powers were exercised, effective external oversight of these powers is required.

The Major Crime Legislation (Office of Police Integrity) Bill will include the Office of Police Integrity as a law enforcement agency under these schemes. An appropriate oversight body is needed to oversee the Office of Police Integrity's use of these powers.

The Ombudsman is the relevant oversight body under these schemes in relation to Victoria Police. However, it would not be appropriate for the Ombudsman to exercise this function in relation to the Office of Police Integrity. This is because it is proposed that the same person would hold office as both the Ombudsman and the Director, Police Integrity.

This Bill establishes a new independent statutory office, the Special Investigations Monitor, to exercise the relevant oversight functions in relation to the Office of Police Integrity.

Submission

The Committee received a submission from the Office of the Victorian Privacy Commissioner, Mr Paul Chadwick (see Appendix 4).

Content and Committee comment

[Clauses]

[2]. Provides that the provisions in the Bill commence on proclamation.

The Committee notes the explanatory memorandum –

The commencement date is open-ended because the associated Major Crime Legislation (Office of Police Integrity) Bill will confer functions on the Special Investigations Monitor under Acts that have open-ended commencement dates. Those Acts are the Surveillance Devices (Amendment) Act 2004 and the Crimes (Controlled Operations) Act 2004. Functions will also be conferred on the Special Investigations Monitor under the Telecommunications (Interception) (State Provisions) Act 1988. Although that Act is in operation, amendments to the corresponding Commonwealth Act will be necessary before the amendments to the Victorian Act can come into operation.

[4 to 14]. Provides for the appointment, terms, conditions, functions and powers of the Special Investigations Monitor (the ‘SIM’). Clause 5 provides that a person may be appointed as the SIM if they are not a Member of an Australian Parliament and they are an Australian lawyer of at least 5 years standing.

The Committee makes no further comment

Parliamentary Salaries and Superannuation (Amendment) Bill

Introduced: 24 August 2004
Second Reading Speech: 25 August 2004
House: Legislative Assembly
Minister introducing Bill: Hon. Steve Bracks MLA
Portfolio responsibility: Premier

Purpose

The Bill amends the Parliamentary Salaries and Superannuation Act 1968 (the “Act”) to limit the increase in the salary payable to members of the Parliament of Victoria to 3% for the 2004–2005 financial year.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill are deemed to have come into operation on 1 July 2004.

[4]. Repeals section 3A of the Act. This is a spent provision applying to the period 14 December 1992 and 31 December 1993.

The Committee makes no further comment

Water Industry (Environmental Contributions) Bill

Introduced: 24 August 2004
Second Reading Speech: 26 August 2004
House: Legislative
Minister introducing Bill: Hon. Rob. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Water Industry Act 1994 (the “Act”) to provide for environmental contributions to be paid by water supply authorities. The contributions will be based on a percentage of each authority’s revenues. "Water supply authorities" in this context is intended to refer to the publicly owned authorities which provide water and water related services.

The purpose of such contributions is to fund initiatives that seek to –

• promote the sustainable management of water, and

• address adverse water-related environmental impacts.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

[3]. Inserts a new Part 9 in the Act to provide for the environmental contributions to be made by water supply authorities. It also sets out the various arrangements for environmental contributions including review and reporting requirements.

New section 192 establishes the obligation for the authorities to pay into the Consolidated Fund annual contributions for the first period, from 1 October 2004 to 30 June 2008, as specified in new Schedule 4.
New section 193 provides that contributions in subsequent years (i.e. from 1 July 2008) are to be determined by Ministerial Order and calculated as a percentage of the revenue of an Authority.

[4]. Inserts a new Schedule 4 in the Act and sets out the environmental contributions to be made each year by each of the water supply authorities named in the Schedule for the first period from 1 October 2004 to 30 June 2008.

The Committee makes no further comment.

Committee Room
13 September 2004

Scrutiny of Acts and Regulations Committee
© Parliament of Victoria