Scrutiny of Acts and Regulations Committee

Alert Digest No 5 of 2008

Ministerial Correspondence

[Back to Table of Contents]


Education and Training Reform Amendment Bill 2008

The Bill was introduced into the Legislative Assembly on 11 March 2008 by the Hon. Bronwyn Pike MLA. The Committee considered the Bill on 7 April 2008 and made the following comments in Alert Digest No. 4 of 2008 tabled in the Parliament on 8 April 2008.

Committee’s Comment

Charter Report

Recognition and equality before the law – Age discrimination – Privacy – Information on the Student Register – Scheme limited to students aged less than 25

Charter s.8(3) provides that everyone ‘is entitled to the equal protection of the law without discrimination’. Discrimination includes discrimination on the basis of age and ‘occurs if a person treats someone with an attribute less favourably than the person treats or would treat someone without that attribute in the same or similar circumstances’. Charter s.13 gives people the right not to have their ‘privacy unlawfully or arbitrarily interfered with’.

The Committee notes that clause 11, inserting new sections 5.3.A.4 and 5.3.A.7 into the Education and Training Reform Act 2006, requires that education and training providers (other than universities) supply the full name, date of birth, gender, enrolment and cancellation dates of Victorian students to the Secretary of the Department of Education, and to notify the Secretary of any changes to that information. The Committee also notes that new section 5.3.A.9 authorises the disclosure of that information to various bodies for various purposes.

The Statement of Compatibility remarks:

The restrictions imposed on the type of information that must be provided in order for a student to be allocated a Victorian student number, coupled with the safeguards surrounding the maintenance and use of that information in the Victorian student register, clearly show that any interference with the right to privacy, in the context of the operation of this bill, is reasonable and not arbitrary. In addition, there are clear and reasonable policy objectives behind the collection, maintenance and use of such information, namely for the overall purpose of more effective program evaluation and improved delivery of education and training services in order to increase retention rates to lead to a more highly skilled and educated workforce.

The Committee considers that clause 11 does not limit Victorian students’ Charter right to privacy.

The Committee also notes clause 11, inserting a new section 5.3.A.2, limits the Victorian student number scheme ‘to students of less than 25 years of age.’ The Statement of Compatibility remarks that this section:

does not raise the right to equal protection of the law without discrimination under section 8 of the charter because the requirement to provide personal information, which is imposed on students under the age of 25 years does not adversely affect those students so as to cause them disadvantage in comparison to students over 25 years who are not required to provide such information.

The Committee observes that the effect of new section 5.3.A.2 is that students under 25 will have their personal information placed on a student register, when otherwise identical students 25 or over (e.g. who may be enrolled in the same class at a Victorian TAFE) will not have their information placed on such a register. The Committee therefore considers that new section 5.3.A.2 may cause some students to be treated less favourably than differently aged but otherwise identical students.

The Committee will seek further information from the Minister as to why students aged 25 and over are not included in the Victorian Student Numbers and Student Register scheme. Pending the Minister’s response, the Committee draws attention to new section 5.3.A.2. The Committee makes no further comment.

Minister’s Response

Thank you for your letter of 8 April 2008 outlining the Scrutiny of Acts and Regulations Committee's comments in relation to the Education and Training Reform Amendment Bill 2008 (‘the Bill’).

In your correspondence you seek further information as to why students aged 25 and over are not included in the Victorian Student Number and Victorian Student Register Scheme (‘the Scheme’) pursuant to section 5.3A.2 of the Bill.

The objective of the Scheme is to produce more effective program evaluation and improved delivery of education and training services in order to increase retention rates of students completing year 12 or an equivalent qualification, and to improve existing pathways between secondary and post secondary education.

The age of 25 years has been nominated as the upper age limit for the allocation of Victorian student numbers on the basis that the age of 24 is a commonly used standard for defining the maximum age of “young people”. Student progress is monitored using the nationally comparable measure of the proportion of 20-24 year olds that have completed Year 12 or equivalent. This measure is calculated by the Australian Bureau of Statistics using their annual Survey of Education and Work. Furthermore, this age range is most relevant for the purposes of the Department of Education and Early Childhood Development as most students undertaking year 12 or equivalent are aged below 25 years.

In the past 5 years fewer than 1% of students completing VCE have been aged 25 years or over. These students have generally returned to study of their own volition and are therefore not at the same risk of leaving the education system without obtaining a qualification.

The introduction of the Scheme is pivotal to the development of the Victorian Government’s Ultranet, an online knowledge management framework for schools. It is envisaged that the Ultranet will provide important opportunities for teachers, students and parents to access and share curriculum content, collaborate in learning activities and record progress against individual learning plans. It is proposed that Department of Education and Early Childhood Development officers will be authorised to utilise the Victorian Student Number for research purposes, to better support schools. It is for this reason that a legislative framework for the implementation of the VSN-VSR Scheme is in place prior to the scheduled introduction of the Ultranet in 2009.

I have discussed the scope of the Scheme with the Minister for Skills and Workforce Participation. We recognised that the process of expanding the range of users was a complex one and could only take place after extensive consultation with all stakeholders in the post compulsory sector. We agreed that the Bill should go forward in its current form on the condition that the proposed extension of the Scheme to students aged 25 and over be explored in the near future.

I trust this addresses the concerns of the Committee and thank you for drawing these matters to my attention.

Hon Bronwyn Pike MP,
Minister for Education

16 April 2008

The Committee thanks the Minister for her response.

Return to the Table of Contents


 

Essential Services Commission Amendment Bill 2008

The Bill was introduced into the Legislative Assembly on 12 March 2008 by the Hon. Tim Holding MLA. The Committee considered the Bill on 7 April 2008 and made the following comments in Alert Digest No. 4 of 2008 tabled in the Parliament on 8 April 2008.

Committee’s Comment

[2]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vi) of the Parliamentary Committees Act 2003, – ‘inappropriately delegates legislative power’.

The Committee refers to its Practice Note No. 1 of 2005 concerning provisions that delay the commencement of a Bill by more than 12 months.

The Committee once again draws attention to Practice Note No. 1 of 2005.

The Committee will seek further advice from the Minister as to the necessity or desirability of including a delayed commencement provision and point out that the reasoning justifying such a provision should be available to Members at the time the Bill is introduced in the Parliament.

Minister’s Response

Thank you for your letter of 8 April 2008 seeking clarification on the delayed commencement date of the Essential Services Commission (ESC) Amendment Bill 2008 ('the Bill').

The default commencement date for the Bill is 1 July 2009. As noted in your letter this does not appear to be compatible with the Committee Practice Note – No. 1 of 17 October 2005, as the commencement date is more than 12 months from Royal Assent.

I understand the default commencement date was conservatively selected to allow sufficient time to adequately consult all affected stakeholders. This includes preparation of the new procedures the ESC will implement after this Bill is passed. It is expected that it will he possible to proclaim this Bill before 1 July 2009. This will be well within the 12 months recommended by the Committee.

Thank you for the opportunity to respond to the issues raised by the Committee in relation to this Bill. If you require a further briefing or further information, please contact Mr Steve Martin from the Department of Treasury and Finance on 9651 6470.

Tim Holding MP
Minister for Finance, WorkCover
and the Transport Accident Commission

17 April 2008

The Committee thanks the Minister for this response.

Return to the Table of Contents


 

Justice Legislation Amendment (Sex Offences Procedure) Bill 2008

The Bill was introduced into the Legislative Assembly on 11 March 2008 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 7 April 2008 and made the following comments in Alert Digest No. 4 of 2008 tabled in the Parliament on 8 April 2008.

Committee’s Comment

Charter Report

Retrospective increases in penalty – Life-long reporting obligation – Adequacy of Statement of Compatibility

Charter s. 27(2) bars the imposition of a penalty ‘for a criminal offence that is greater than the penalty that applied to the offence when it was committed’.

The Committee notes that clause 18, amending s. 34 of the Sex Offenders Registration Act 2004, provides that offenders who commit the offence of persistent child sexual abuse will be subject to a life-long reporting obligation, replacing the existing law that requires at least two sexual offences before a reporting obligation becomes life-long. The Committee also notes that clause 19, inserting a new section 73C into the Sex Offenders Registration Act 2004, provides for the retrospective operation of clause 18 to persons who are yet to be sentenced for a registrable offence.

The Statement of Compatibility remarks:

Section 27 applies to penalties only, and the clause does not impose any new or increased penalties on offenders. Reporting obligations as a sex offender are not considered a penalty under Sentencing Act 1991 and the Sex Offenders Monitoring Act 2004. Accordingly, the right is not engaged and therefore not limited.

The Committee observes that overseas courts, interpreting similar provisions to Charter s. 27(2), have held that the meaning of ‘penalty’ is not determined by local statutes. Rather, whether an imposition is a penalty also depends on whether or not it is imposed following conviction for a criminal offence, its nature and purpose, the procedures involved in its making and implementation and its severity. The Committee also observes that courts in the United States, Canada and Europe have all held that similar reporting requirements for sex offenders are not a penalty, due to their protective purpose and the relatively mild nature of their imposition.

The Committee further observes that the offence of persistent child sexual abuse requires proof that the defendant committed at least three sexual offences and that conviction for any two such offences automatically triggers a life-long reporting obligation under the existing law. The Committee therefore considers that clause 19 is compatible with defendants’ Charter rights not to be subject to retrospective penalties.

The Committee further notes that clause 5, amending Schedule 8 to the Crimes Act 1958, expands the categories of offences that can attract an order for a forensic sample upon conviction or mental impairment verdict under existing ss. 464ZF & 464ZFAAA. The Committee observes that the bill does not provide for the transitional operation of clause 5. The Committee also observes that the effect of s. 114 of the Sentencing Act 1991 is that, to the extent that this provision increases the penalty for an offence, its effect will be prospective only. The Committee therefore considers that clause 5 is compatible with defendants’ Charter rights not to be subject to retrospective penalties.

The Committee observes that the Statement incorrectly states that ‘clause 10 does not apply retrospectively’, whereas clause 13, inserting a new section 160 into the Evidence Act 1958, provides for the retrospective operation of clause 10 to offences committed before its commencement. The Committee also observes that the Statement of Compatibility, in discussing transitional provisions of the Bill, incorrectly refers to clause 19 as clause 9 and to clause 16 as clause 10. The Committee further observes that the Statement incorrectly refers to the Sex Offenders Registration Act 2004 as the ‘Sex Offenders Monitoring Act 2004’; the Serious Sex Offenders Monitoring Act 2005 provides for much stronger controls on certain sex offenders.

The Committee will write to the Minister expressing its concern about these errors in the Statement of Compatibility.

Minister’s Response

Thank you for your letter dated 8 April 2008 regarding your Committee's consideration of the Justice Legislation Amendment (Sex Offences Procedure) Bill 2008.

You have drawn my attention to the Committee's report (Alert Digest No. 4 of 2008) in which it identified some typographical errors in the Statement of Compatibility.

I thank the Committee for bringing these issues to my attention. The typographical errors have been amended and a revised version will be tabled in the Legislative Council and Hansard has also been notified of the changes.

ROB HULLS MP
Attorney-General

21 April 2008

The Committee thanks the Minister for this response.

Return to the Table of Contents


 

Police Integrity Bill 2008

The Bill was introduced into the Legislative Assembly on 11 March 2008 by the Hon. Bob Cameron MLA. The Committee considered the Bill on 7 April 2008 and made the following comments in Alert Digest No. 4 of 2008 tabled in the Parliament on 8 April 2008.

Committee’s Comment

Charter Report

Deprivation of life – Authority for Office of Police Integrity personnel to use firearms – Effect of authority – Use for purposes other than protection

Charter s. 9 provides that everyone has the right ‘not to be arbitrarily deprived of life.’

The Committee notes that clause 103(1) provides that the Director of Police Integrity may ‘authorise’ a member of the staff of the Office of Police integrity to ‘use a firearm for the purposes of an investigation’. The Committee observes that the ‘use’ of a firearm may include the discharge of the firearm in the direction of another person. The Committee considers that clause 103 may engage the Charter right of anyone investigated by the Director not to be arbitrarily deprived of life.

The Committee also notes that clause 109(2) provides that staff of the Office of Police Integrity can be sued or prosecuted in respect of a ‘critical incident’, including where a person is killed or serious injured as the result of the discharge of a firearm. The Committee observes that, whilst this clause allows such proceedings to be initiated, it does not identify whether or not an authorisation under clause 103(1) provides a defence to civil or criminal liability.

The Committee further notes that clause 103(2) provides that an authority under clause 103(1) may only be given:

‘if, in the opinion of the Director, the member reasonably requires to 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.’

The Committee additionally notes that the explanatory memorandum remarks that authorisations under clause 103 are only available where the Director is satisfied that the use is required:

‘to perform the functions or exercise powers of the Director or an authorised officer in an investigation, or to ensure the safety of that member in performing those functions or exercising those powers.’

The Committee observes that it is not clear whether or not the Director can authorise a person to use firearms for purposes other than the protection of the person.

The Committee will seek further advice from the Minister as follows:

1. Will the Director of Police Integrity’s authority under clause 103(1) for a member of staff of the Office Police Integrity to use a firearm provide a defence to civil or criminal liability (to the extent of the authority) resulting from the discharge of that firearm by that member?

2. For what purposes other than protection of the member will the Director of Police Integrity be able to authorise the discharge of a firearm by a member of the staff of the Office of Police Integrity?

Pending the Minister’s response, the Committee draws attention to these provisions.


Fair hearing – Compelled self-incrimination – Use of evidence derived from compulsory self-incriminatory questioning in criminal proceedings – Function of Director of Police Integrity to publicly expose serious misconduct – Compulsory questioning during ongoing criminal proceedings

Charter s.24(1) provides that people charged with a criminal offence have ‘the right to have the charge decided after a fair hearing.’ Charter s. 25(2)(k) provides that such people are entitled to a guarantee that they cannot ‘be compelled to testify against’ themselves.

The Committee notes that clauses 69(1) and 125(1) provide that a person being examined by the Director of Police Integrity or the Special Investigations Monitor must answer questions even if those answers might tend to incriminate him or her. The Committee notes that clauses 69(3) and 125(4) provide that any answers given by a person under compulsory examination cannot be admitted as evidence against him or her in most judicial proceedings, apart from proceedings relating to compliance with the directives of the Director of Police Integrity, the Special Investigations Monitor or Victoria Police disciplinary proceedings.

The Statement of Compatibility remarks, in relation to Charter s. 25(2)(k):

The right has been interpreted as not precluding compulsory questioning, in separate proceedings, provided there is a use immunity: see particularly the decision of the Court of Final Appeal of Hong Kong (including Sir Anthony Mason) in HKSAR v Lee Ming Tee [2001] HKFCA 14… The use immunity is sufficient to ensure the accused is not indirectly made a witness against himself.

The Committee therefore considers that clauses 69(1) and 125(1) are compatible with the Charter right of witnesses who are or become criminal defendants not to be compelled to testify against themselves.

The Committee also notes that clause 24 permits the Director to disclose information obtained from an examination to a law enforcement agency and that clause 121(1) provides that the Special Investigations Monitor may make recommendations to the Director. The Committee therefore observes that answers compelled from a person under clauses 69(1) and 125(1) may be used by law enforcement agencies to identify and obtain other evidence that can be used against that person in a prosecution.

The Committee further notes that clauses 69(3) and 125(4) do not prevent the admission of such evidence. The Committee observes that Australian evidence law does not provide a basis for a court to refuse to admit evidence merely because it was obtained as a result of information obtained during a compulsory examination of the person being tried. The Committee also observes that United States and Canadian courts have held that the use of evidence derived from compelled answers (where such evidence could not have been obtained but for those answers) is incompatible with defendants’ rights to due process in those countries’ respective constitutions: Kastigar v United States 406 US 441, (1972); R v S.(R.J.) [1995] 1 SCR 451. The Committee therefore considers that clauses 69(1) and 125(1) may limit the Charter rights of criminal defendants who have previously been compulsorily examined about subjects that could have led to or aided their investigation or prosecution to a fair hearing of the charge against them.

The Committee additionally observes that overseas decisions have held the admission of evidence derived from compulsory questioning in a later criminal prosecution of the person questioned may be compatible with fair hearing rights where the compulsory questioning was for a narrow regulatory purpose and directed to persons who had freely chosen to make themselves subject to such inquiries. For example, the Hong Kong decision cited by the Statement of Compatibility related to questioning by an agency responsible for regulating public share trading about public share trading activities and occurred long before any criminal prosecution.

The Committee notes that the relevant function of the Special Investigations Monitor’s is limited to ensuring compliance with the Police Integrity Act by staff of the Office of Police Integrity. The Committee therefore considers that clause 125(4) is compatible with Charter s. 24(1).

However, the Committee also notes that the relevant function of the Director of Police Integrity is to ‘publicly expose serious misconduct’ (clause 6(2)(d)) and that ‘serious misconduct’ is defined by clause 3 to include any indictable offence punishable by imprisonment, any conduct that affects Victoria Police’s reputation or public confidence and any disgraceful or improper conduct (whether in the member’s official capacity or otherwise.) The Committee observes that the function in clause 6(2)(d) may extend to the investigation of virtually any crime committed by a police officer, including crimes that are committed privately by the police officer. The Committee also observes that the Director’s function in clause 6(2)(d) may also include investigating criminal conduct by private citizens, to the extent that that conduct relates to possible misconduct by a police officer. The Committee considers that clause 69(1), by permitting this function to be exercised through the compulsory self-incriminating questioning of all such persons and not providing for the inadmissibility in a later prosecution of such a person of evidence that would not have been obtained but for that questioning, may be incompatible with the Charter right of compulsorily questioned people to a fair hearing on any criminal charges they later face.

The Committee further notes that clause 46 provides that the Director of Police Integrity can exercise his or her compulsory questioning powers on a person even though that person is currently the subject of criminal proceedings that relate to the matter being investigated. The Statement of Compatibility remarks:

That is not to say that the DPI or SIM could use the compulsory questioning powers for the purpose of gathering further evidence against an accused for the purposes of the criminal proceeding. It may only use its powers for the purposes set out in the Bill. However, the fact that a person has been charged with an offence relating to a complaint, should not prevent the OPI from conducting or continuing to conduct an investigation and identifying, for example, the extent of the involvement of other persons in corrupt police practices…

The Committee observes that the Director’s function under clause 6(2)(d) of ‘publicly exposing serious misconduct’ may encompass assisting prosecutors in ongoing prosecutions in relation to such misconduct, including the use of compulsory questioning of the defendant under clause 69(1) and the disclosure of intelligence derived from that questioning to police and prosecutors under clause 24. The Committee also observes that the goal of investigating ‘other persons in corrupt practices’ through the compulsory questioning of a person presently facing criminal charges would still be served if evidence that would not have been obtained but for that compulsory questioning was inadmissible in any prosecution of the person who was questioned.

The Committee will seek advice from the Minister as follows:

1. Where the Director of Police Integrity compels a police officer or summonsed witness to give self-incriminatory information under clause 69(1), why is the immunity provided by clause 69(3) limited to the use of that information in a later criminal prosecution of the witness, rather than extending to other evidence that could not otherwise have been obtained?

2. Where the Director of Police Integrity compulsorily examines a person under clause 69(1) in relation to whom other proceedings are on foot, will intelligence derived from that questioning be available to State agencies who are involved in or a party to those proceedings?

Pending the Minister’s response, the Committee draws attention to these provisions.


Fair hearing – Inadmissibility of drug and alcohol testing – Protected documents procedure

Charter s.24(1) provides that people charged with a criminal offence have ‘the right to have the charge decided after a fair hearing.’

The Committee notes that clause 34 provides that evidence derived from the drug or alcohol testing of a member of staff of the Office of Police Integrity is inadmissible except in certain proceedings.

The Committee recalls its Alert Digest No 15 of 2007, which reported on a similar provision in the Police Regulation Amendment Bill 2007 (clause 5, inserting a new section 85E into the Police Regulation Act 1958.) The Committee expressed a concern that such a rule of evidence may engage the Charter right of some criminal defendants to a fair hearing by excluding evidence that might be relevant to the defence case.

In his response to the Committee’s concern, the Minister remarked that the section:

Section 85E is necessary to protect what is primarily akin to a health record from being adduced in evidence where it is irrelevant. Failure to protect such test results from production would place the underlying program at risk and discourage police officers who have an alcohol or drug of dependence problem from seeking treatment and rehabilitation.

The protections offered by the new provisions are important to protect what is primarily a welfare-based program, which provides appropriate punitive responses to police officers who behave inappropriately.

The Committee observes that clauses 107 and 108 of the present Bill provide a procedure for permitting courts to determine whether or not to admit ‘protected documents’. The Statement of Compatibility remarks:

The procedures for criminal proceedings in clauses 107 to 108 replace the existing procedures adopted by courts in dealing with public interest immunity claims. They give effect to the balancing exercise required when competing interests are at issue and enable greater participation of an accused without undermining the reasons why the documents should be kept confidential.

The Committee also observes that a document setting out the results of drug or alcohol testing may be a ‘protected document’ where it is held by the Office of Police Integrity.

The Committee will seek further advice from the Minister as follows:

1. Will defendants who want to inspect or adduce documents that set out the results of drug and alcohol testing of police (under Division 4A of Part IV of the Police Regulation Act 1958) or OPI personnel (under Division 5 of Part 2 of the Bill) be able to use the ‘protected document’ procedure in clauses 107 and 108 to gain access to those documents in order to adduce them in court?

2. Given the procedure in clauses 107 and 108, what is the need for clause 34?

Pending the Minister’s response, the Committee draws attention to these provisions.

Minister’s Response

Thank you for your letter of 8 April 2008 in which you seek advice in relation to the Police Integrity Bill 2008.

The Police Integrity Bill 2008 (‘the Bill’):

• re-establishes the Office of Police Integrity (OPI) under a stand-alone Act and sets out the functions of the OPI and of the Director, Police Integrity (Director);

• amends the Police Regulation Act 1958 (PRA) to consolidate provisions relating to the Director and the OPI into the new Act; and

• makes necessary consequential amendments to other Acts.

I note that your letter includes six questions which I will respond to in turn below.

Will the Director, Police Integrity’s authority under clause 103(1) for a member of staff of the Office of Police Integrity to use a firearm provide a defence to civil or criminal liability (to the extent of the authority) resulting from the discharge of that firearm by that member?

An authority under clause 103 does not provide a defence for any criminal or civil liability for the discharge of a firearm. The purpose of the section is to provide a scheme to regulate when OPI staff may possess, carry and use firearms. If a firearm is possessed, carried or used by OPI staff without an authority from the Director under clause 103, this may be evidence of bad faith.

For what purposes other than protection of the member will the Director, Police Integrity be able to authorise the discharge of a firearm by a member of the staff of the Office of Police Integrity?

The Director can only authorise the possession, carrying or use of a firearm for the purpose of protecting the member. The use of the word ‘and’ in clause 103(2)(a) prevails over the use of the word ‘or’ in the explanatory memorandum.

Where the Director, Police Integrity compels a police officer or summonsed witness to give self-incriminatory information under clause 69(1), why is the immunity provided by 69(3) limited to the use of that information in a later criminal prosecution of a witness, rather than extending to other evidence that could not otherwise have been obtained?

The purpose of the immunity in clause 69(3) is to protect the human rights of a witness subject to compulsory questioning during an examination by the Director. Clause 69(3) prevents the use of a self-incriminating answer, document or thing in any criminal proceeding, except those in respect of a failure to provide the information or in respect of giving false information. The ‘use’ immunity provided by clause 69(3) does not extend to derivative evidence (evidence that would not have been obtained but for the self-incriminating evidence) and is drafted in this way for two reasons.

First, the immunity is consistent with the Charter of Human Rights and Responsibilities (the Charter). Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled ‘not to be compelled to testify against himself or herself or to confess guilt’. Accordingly, the immunity from self-incrimination is limited in the Bill to criminal proceedings to which the witness is a party.

Second, the ‘direct use’ immunity is consistent with the approach generally taken in Australia. Statutory restrictions on the indirect or derivative use of evidence compelled from an accused against an accused are rare. Superior courts in other jurisdictions have accepted that the right to a fair trial may preclude the use of certain types of derivative evidence. However, as you note in your letter, Australian courts have not taken this approach. Ultimately, if the prosecution seeks to lead evidence derived from answers given in response to coercive questioning, the court retains its discretion whether the evidence should be admitted in the particular case.

Where the Director, Police Integrity compulsorily examines a person under clause 69(1) in relation to whom other proceedings are on foot, will intelligence derived from that questioning be available to State agencies who are involved in or a party to those proceedings?

Where a proceeding is on foot, the prosecuting authority is already of the view that sufficient evidence exists for the prosecution to succeed. Clause 46 states that the Director must take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings. This provision reflects the common law position that coercive questioning on matters which form the basis of criminal proceedings constitutes an interference with the due administration of criminal justice (see Hammond v Commonwealth (1982) CLR 188). Accordingly, if coercive questioning powers are used to bolster a prosecution’s case and obtain additional evidence where proceedings have commenced, the risk of interference in the administration of justice would only be overcome in extraordinary circumstances.

Where intelligence, as opposed to evidence, is inadvertently obtained during an examination and not from the Director’s path of questioning, the Director may be obliged to share the intelligence with the relevant prosecuting agency. However, this would only arise where the public interest requires the Director to forward the information to the relevant agency.

Will defendants who want to inspect or adduce documents that set out the results of drug and alcohol testing of police (under Division 4A of the Police Regulation Act 1958) or OPI personnel (under Division 5 of Part 2 of the Bill) be able to use the ‘protected document’ procedure in clauses 107 and 108 to gain access to those documents in order to adduce them in court?

The procedures in clauses 107 and 108 (‘protected document procedures’) do not circumvent the inadmissibility of drug and alcohol testing under clause 34 of the Bill and section 85E of the PRA. If a defendant seeks to obtain the results of tests of OPI personnel or police, the evidence will be inadmissible except in the circumstances set out in subclause 34(2) (for OPI personnel) and subsection 85E(2) of the PRA (for police). These provisions operate to protect the privacy of OPI personnel and police in all but a limited list of proceedings. For example, drug and alcohol test results may be admissible in a criminal proceeding that arises out of, or is connected with a critical incident.

The purpose of the protected document procedures is to provide the courts with special procedures for dealing with public interest immunity claims by the OPI. The procedures clarify how OPI objections may be determined and do not give defendants additional avenues or grounds for obtaining evidence.

Clauses 107 and 108 will only apply to documents containing test results where the admissibility of the document is not restricted (as explained above) and the OPI claims the document is a ‘protected document’. For example, where a member of OPI personnel seriously injures a person with the discharge of a firearm, a drug or alcohol test result will be admissible under clause 34. However, the OPI may object to the production of the test result on the grounds that it is a protected document or thing. The court would then determine the OPI’s claim using one or more of the procedures in clauses 107 and 108.

Given the procedure in clauses 107 and 108, what is the need for clause 34?

I refer to and repeat the response to the previous question. The procedures in clauses 107 and 108 serve the purpose of protecting the public interest in keeping sensitive OPI information confidential. Clause 34, on the other hand, operates to protect the personal privacy of OPI operatives.

Bob Cameron MP
Minister for Police & Emergency Services

18 April 2008

The Committee thanks the Minister for his response.

Committee Room
5 May 2008

Return to the Table of Contents


 

Scrutiny of Acts and Regulations Committee
Parliament of Victoria