Tuesday, 8 March 2022

Bills

Victoria Police Amendment Bill 2022

Introduction and first reading

Ms NEVILLE (Bellarine—Minister for Water, Minister for Police) (12:04): I move:

That I introduce a bill for an act to amend the Victoria Police Act 2013 to address defects in relation to the appointment of police officers to act as assistant commissioners and for other purposes.

Motion agreed to.

Mr BATTIN (Gembrook) (12:04): I just request a brief explanation of the bill.

Ms NEVILLE (Bellarine—Minister for Water, Minister for Police) (12:05): Yes, this bill is a very targeted piece of legislation that we have briefed the opposition and other parties on. It focuses on a change that was made in the legislation in 2013 that was different to what was previously in place in relation to the ability of deputy commissioners to appoint acting assistant commissioners. Unfortunately that was not delegated from the Chief Commissioner of Police through to deputy commissioners, but the practice continued. As a result of legal advice, that impacted on both some criminal matters but also, most importantly, the ability of those acting assistant commissioners to do the oath and affirmation for new police officers and affected about 1200. It is not changing the substance of the legislation but providing a retrospective capacity to make right those appointments and to render any as if they were correct as at the time of their oath and affirmation, thus impacting any future prosecutions; they can continue in good faith.

Read first time.

Ms NEVILLE (Bellarine—Minister for Water, Minister for Police) (12:06): Under standing order 61(3)(b) I advise the house that the other parties and independent members have been provided with a copy of the bill and a briefing in accordance with the standing order. I therefore move:

That the bill be read a second time immediately.

Motion agreed to.

Statement of compatibility

Ms NEVILLE (Bellarine—Minister for Water, Minister for Police) (12:08): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Victoria Police Amendment Bill 2022.

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Victoria Police Amendment Bill 2022.

In my opinion, the Victoria Police Amendment Bill 2022, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The purpose of the Bill is to amend the Victoria Police Act 2013 (the Act) to address defects in relation to the appointment of police officers to act as Assistant Commissioners and validate acts done, or omitted to be done, which may be invalid or unlawful by reason of certain defects in the appointment of those officers.

Human Rights Issues

The Bill engages the following human rights under the Charter:

• Property rights (section 20)

• The right to a fair trial (section 24)

• The right to no retrospective criminal laws (section 27).

For the following reasons, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, those limitations are reasonable and demonstrably justified having regard to section 7(2) of the Charter.

Retrospective validation of instruments of appointment of police officers to act as Assistant Commissioners and any actions or omissions by police officers purportedly appointed as Assistant Commissioners in the course of acting as an Assistant Commissioner pursuant to that instrument

Clause 3 of the Bill inserts new section 276B(1) into the Victoria Police Act 2013, which retrospectively validates:

• purported appointments of police officers to act as Assistant Commissioners (the applicable officers) during the period beginning on 1 July 2014 and ending on 31 August 2021 (the relevant period) so that they are taken to have, and always to have had, the same force and effect as if they were made by the Chief Commissioner;

• acts and things done or omitted to be done during the relevant period by an applicable officer in the course of purportedly acting as an Assistant Commissioner pursuant to a purported appointment by a Deputy Commissioner; and

• acts and omissions that relied on evidence obtained, directly or indirectly, as a result of things done or omitted to be done by an applicable officers regardless of the acts and omissions relying on such evidence were done or omitted to be done under a power conferred under an enactment or otherwise and whether they occurred on or before the commencement of the Bill.

The purported appointments of applicable officers by Deputy Commissioners were unlawful because that power of appointment was only vested in the Chief Commissioner. That power of appointment was not properly delegated to Deputy Commissioners. The actions and authorisations of applicable officers included administering the oath or affirmation of office to police officers and protective services officers when they took the oath before commencing duty.

New section 276B(2) deems the purported appointments made by the Deputy Commissioners to applicable officers to be taken to have, and always to have had, the same force and effect as if they had been made by the Chief Commissioner. New section 276B(3) ensures that any act or thing done or omitted to be done by an applicable officer, is not invalid by reason only that but, for section 276B(2), the applicable officer was not validly and lawfully appointed to act as an Assistant Commissioner. New section 276B(4) ensures that any act or thing done:

• in reliance on evidence obtained, directly or indirectly, as a result of evidence obtained by an applicable officer; or

• whether done or omitted to be done under a power conferred under an enactment or otherwise

on or before the commencement of this Bill is not invalid by reason only that but, for section 276B(2), an applicable officer was not validly and lawfully appointed to act as an Assistant Commissioner. New section 276B(5) provides non-exclusive examples of acts or things done that will not be invalid by reason only of the applicable officer not being a validly appointed as Assistant Commissioner.

New section 276B(6) ensures that in determining the evidence to be admitted in a criminal or civil proceeding, the fact that an Assistant Commissioner was invalidly or unlawfully appointed is to be disregarded but, under new section 276B(7), the discretion of the court to exclude evidence or stay a proceeding is otherwise unaffected. New section 276B(8) provides that a tribunal in determining whether to consider anything obtained directly or indirectly as the result of an applicable act or omission must disregard the invalid or unlawful appointment of the Assistant Commissioner. New Section 276B(9) clarifies that section 276B affects the rights of parties in civil or criminal proceedings before a court or proceedings before a tribunal. Section 276B(10) provides that section 276B does not apply to nominated cases where a court has found that an Assistant Commissioner was invalidly appointed and excluded evidence for that reason. Similarly, any other proceedings where a court has ruled on the validity of a purported appointment of an Assistant Commissioner are also excluded from the operation of section 276B.

Property rights (s 20), a fair trial (s 24), and no retrospective criminal laws (s 27)

The retrospective validation of appointments of applicable officers and acts or omissions consequent on the invalid and unlawful appointments extends to the exercise of powers under various legislation, and the administration and taking of the oath by police officers and protective officers. The provisions extend, therefore, to validating the administration of the oath or affirmation of office to police officers and protective services and the exercise of powers by those officers.

This validation in and of itself does not limit human rights. It does, however, have the result that interferences with human rights that may have otherwise been unlawful (due to being based on exercises of power not lawfully authorised) are now lawful in retrospect. The exercise of powers by police officers and protective services officers who were invalidly administered the oath or affirmation and are being validated potentially engages numerous Charter rights.

For example, the execution of a search warrant by a police officer may engage the rights to privacy and property, and the execution of an arrest warrant by an officer will engage the right to liberty. However, interferences with these rights only require justification in circumstances where the relevant interference is ‘unlawful’ or ‘other than in accordance with law’. The Charter rights are not prescriptive as to the content of the laws governing the administration of the oath or affirmation to those officers. However, the execution of a warrant that was based on a defective appointment is unlawful or invalid. The effect of the Bill is to remedy this situation by deeming the administration of the oath or affirmation effective and the resultant exercises of power valid so that no unlawfulness arises.

It should be emphasised that in rendering procedurally defective appointments and consequential exercises of power valid, it is not the intention of the Bill to extinguish any criminal offence or civil liability arising from the conduct of an applicable officer in the exercise of their powers. For example, the Bill will not extinguish any potential claim for false imprisonment or other tortious wrong that a person may have against a police officer that the officer may have carried out in reliance on powers resulting from their appointment or administration of the oath or affirmation of office.

The potential interferences with Charter rights include:

• property rights (s. 20) to the extent that the validation of the acts or omissions of applicable officers, police officers or protective services officers could affect an accrued right to bring legal action against unlawful acts by those officers,

• no retrospective criminal laws (s. 27) by validating any act or omission done or omitted to be done in a criminal proceeding, or in the evidence related to a criminal proceeding.

Section 20 of the charter provides that a person must not be deprived of his or her property other than in accordance with law. This right is not limited where there is a law which authorises a deprivation of property, and that law is adequately accessible, clear and certain, and sufficiently precise to enable a person to regulate their conduct.

To the extent that this Bill may deprive a person of their property—that is, to the extent that a right to some cause of action against a police officer arising from their invalid appointment or the invalid administration of the oath or affirmation to them, during the relevant period may constitute property—that deprivation would be authorised by, and in accordance with, the amended legislation. The Bill therefore does not limit the property right protected by section 20 of the Charter.

Section 27 applies to changes in the law that create an offence for acts done before the legislation comes into force, or broadens an existing offence by altering the activities to which it applies or amends criminal procedure in a way that affects the fairness of trial procedures.

The extent to which this Bill operates retrospectively is to validate the appointment of applicable officers, the administration of the oath or affirmation to police officers and protective services officers and the actions they have taken pursuant to an applicable purported appointment or his or her duty. The Bill does not amend the criminal law or procedure in a way that limits the rights protected by section 27 of the Charter.

The Bill does not alter the nature or severity of any interferences with Charter rights that are provided by existing legislation. Instead, the Bill only affects a precondition for conducting these interferences with rights, which is that powers are exercised by a validly and lawfully appointed Assistant Commissioner and by validly appointed police officers and protective services officers.

In my opinion, clause 3 has a nominal effect on human rights. This is because the retrospective validation does not significantly affect the circumstances in which the powers of invalidly and unlawfully appointed Assistant Commissioners, and police officers and protective services officers who were invalidly administered the oath or affirmation, were exercised or the outcome of the exercise of those powers. Despite the invalid appointment of Assistant Commissioners, and the invalid administration of the oath or affirmation to police officers and protective services officers, these officers who possessed the requisite training and skills to carry out the powers and functions vested in them, and they acted in good faith that they were properly appointed and properly ‘sworn in’. The Bill merely addresses the invalidity of the appointment of police officers to act as Assistant Commissioners and in turn the invalidity of the administration of the oath or affirmation to police officers and protective services officers. The Bill validates acts or omissions of these officers only to the extent of the invalidity created by the invalid appointment of police officers to act as Assistant Commissioners but not otherwise.

Even if the Bill was considered to limit human rights, I am of the view that such a limit will be reasonably and demonstrably justified under s 7(2) of the Charter. The Bill remedies an error of an administrative nature. However, despite the technical nature of the error, it has resulted in evidence being obtained unlawfully and act or omissions carried out by police officers and protective services officers in good faith in the course of their duties also being unlawful. There is a potential for a significant number of enforcement actions by police officers and protective services officers being compromised. This will have adverse resource implications for prosecutorial bodies and the court system as affected accused seek to mount legal challenges. I am satisfied that the limit is reasonable given the nominal interference with rights it constitutes balanced against the adverse consequences that may occur if this remedial legislation is not introduced.

Directions concerning admissibility of evidence

Clause 3 inserts new subsection 276B(6) into the Act, which provides that for the prosecution of a offence, the fact that an applicable officer was not validly and lawfully appointed to act as an Assistant Commissioner is to be disregarded in determining whether evidence obtained by the applicable officer is to be admitted into evidence.

Right to fair trial (s 24)

It is arguable that this clause deprives an accused of the ability to argue that evidence obtained as a result of an impropriety should not be admitted at trial, leading to a limit on the accused’s right to a fair hearing under s 24 of the charter. However, I am of the opinion that the clause is not inconsistent with the right to a fair hearing. In Rich v. R (2014) 312 ALR 429, the Court of Appeal held that similar retrospective validation provision concerning unsworn affidavits were consistent with the right to a fair hearing. In that decision, the Court found that an applicant’s inability to contest the admissibility of subject evidence is incapable of depriving the applicant of a fair trial, unless the admission of the subject evidence itself was productive of an unfair trial.

This Bill, while requiring a court to disregard the fact that an appointment of an applicable officer would have been invalid or unlawful but for this Bill, explicitly preserves the Court’s discretion to exclude evidence in criminal proceedings or stay criminal proceedings in the interests of justice. The Bill will also not affect the rights of parties in any proceeding where a court has ruled on a matter of validity of the appointment of an applicable officer (or the swearing in of a police officer or protective services officer by an applicable officer) before the enactment of this Bill (new subsection 276B(9)).

In my view, the admission of the evidence obtained in reliance of actions conducted pursuant to invalid appointments is not productive of an unfair trial and will not lead to any unfairness to an accused.

Accordingly, I am satisfied that the Bill is consistent with the right to fair hearing in s 24 of the Charter.

The Hon Lisa Neville MP—Minister for Police

Second reading

Ms NEVILLE (Bellarine—Minister for Water, Minister for Police) (12:08): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Bill before the House introduces urgent amendments into the Victoria Police Act 2013 (VPA) to address an administrative error with the appointment of Acting Assistant Commissioners (AACs).

Section 26 of the VPA authorises the Chief Commissioner to appoint a police officer to the role of AAC. Section 19 of the VPA allows the Chief Commissioner to delegate this power of appointment to Deputy Commissioners. Once appointed, AACs are authorised to exercise all powers of Assistant Commissioners.

The VPA commenced on 1 July 2014. Prior to its commencement, the Police Regulation Act 1958 governed the operations of Victoria Police. Section 6(1) of that Act authorised Deputy Commissioners to exercise all powers of the Chief Commissioner, including appointment powers.

Between 1 July 2014 and August 2021, Deputy Commissioners appointed a number of police officers to the role of AACs, in an acting capacity, under the assumption that they had the power to do so based on the operation of the former Act. They were not aware that the Chief Commissioner was required to delegate his power of appointment to them under the new Act, or that the instrument of delegation had not been signed.

In August 2021, it was identified that the purported appointments of AACs by Deputy Commissioners were invalid. The Chief Commissioner then signed an instrument of delegation to effectively delegate the power to appoint AACs to Deputy Commissioners from August 2021.

As the appointments of AACs by Deputy Commissioners before September 2021 are not considered to be valid, all exercises of power by AACs during that time are considered invalid. This includes powers exercised relating to criminal matters which have the potential to affect the admissibility of evidence. Retrospective validating legislation is necessary to ensure that otherwise successful prosecutions will not be impacted by an administrative error.

Subsequent auditing by Victoria Police identified another power exercised by AACs between July 2014 and August 2021 is the power to ‘swear in’ new police officers and protective services officers (PSOs). Section 50 of the VPA provides that before a police officer or PSO performs any duties or exercises any powers that they have as a police officer or PSO, they must take an oath or make an affirmation and subscribe to it. Section 50 provides that the oath or affirmation is to be administered by a Magistrate, the Chief Commissioner, a Deputy Commissioner or an Assistant Commissioner. Once a police officer or PSO has taken and subscribed to the oath or affirmation under section 50 of the VPA, they receive the duties and powers of a police officer or PSO under section 51 of the VPA.

In mid-February Victoria Police identified that AACs whom had been invalidly appointed had administered the oath for a significant number of new sworn members. As a consequence, 1213 police officers and PSOs are not considered to have been validly sworn in as required by the VPA, and do not have the powers and duties of a police officer or PSO. There were also 29 police custody officers who were not sworn in.

Victoria Police has since taken urgent action to re-swear affected sworn officers at the commencement of their next shift. This action has ensured these officers are validly sworn and can continue to use their police powers to keep Victorians safe.

Victoria Police also wrote directly to each of the affected police officers and PSOs to assure them that it is recognised that they have acted in good faith in undertaking their duties in the belief they had been validly sworn. The Victorian Government has also given affected officers the assurance that all protections that are normally afforded to sworn members including entitlements like superannuation, will not be diminished by this issue.

The Bill will retrospectively validate the appointments of AACs by Deputy Commissioners from 1 July 2014 to 31 August 2021, and any acts or omissions performed by AACs during that time, pursuant to their invalid appointments. This includes the power to swear in police officers and PSOs and will have the retrospective effect of validating all appointments of police officers and PSOs sworn in by AACs during this time, and all police/PSO powers they have exercised to date. It also includes the power for AACs to authorise a person to act as a police custody officer.

The Bill will not limit judicial independence, including in relation to pending litigation, as the provision will retrospectively alter the substantive law and will not interfere with the judicial process. The new provisions will apply to pending litigation, so that any exercises of power or decisions made in reliance on evidence obtained as a result of an exercise of power by an AAC, before the Act commences, will not be invalid due to their invalid appointment.

For the purposes of the prosecution of an alleged offence, the fact that the appointment was invalid is to be disregarded in determining whether evidenced obtained as a result of an exercise of power by an invalidly appointed AAC should be admitted. The provisions will not cure other forms of invalidity and will ensure the discretion of a court to exclude evidence in a criminal proceeding or stay a criminal proceeding in the interests of justice is retained.

The provisions will not apply to any proceedings that were already final before the commencement of the Act, where a court has made a ruling on the validity of an invalid appointment of an AAC.

The Bill will ensure the work of AACs and any police officers/PSOs sworn in by AACs during this time will not be affected by this administrative error.

I commend the Bill to the House.

Mr BATTIN (Gembrook) (12:08): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned until later this day.