Wednesday, 15 November 2023

Bills

Justice Legislation Amendment (Police and Other Matters) Bill 2023

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (11:43): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Justice Legislation Amendment (Police and Other Matters) Bill 2023.

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 Justice Legislation Amendment (Police and Other Matters) Bill 2023.

In my opinion, the Justice Legislation Amendment (Police and Other Matters) Bill 2023, 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 Bill amends the Victoria Police Act 2013 to:

a. Empower a Victoria Police Discipline Inquiry Officer to direct a police officer or protective services officer (PSO) to undertake an independent medical assessment if they are satisfied that the assessment is necessary to determine whether the officer is physically and mentally fit to participate in a discipline inquiry.

b. Amend provisions relating to the conditions Victoria Police may attach to a good behaviour bond that applies to a police officer in a disciplinary context, including adding a non-exhaustive list of relevant conditions (including drug and alcohol testing for up to two years); specifying that conditions must be reasonably linked to the relevant breach of discipline or criminal offence; and confirming how non-compliance with a bond may be addressed.

c. Exempt the Secretary of the Department of Justice and Community Safety from a requirement to notify IBAC of any matter that involves corrupt conduct, if the Secretary has knowledge of the matter only by reason of information received by the Restorative Engagement and Redress Scheme for Victoria Police (the Scheme).

d. Amend section 227 to extend the statute of limitations for the offence of Victoria police personnel accessing, using or disclosing police information from 12 months to three years.

The Bill amends the Firearms Act 1996 to:

a. Provide for a Licensed Firearms Dealer to receive/accept/take possession of a firearm from an unlicensed person who is not exempt by the Firearms Act for the purposes of sale, registration or destruction, consistent with the existing permanent national firearms amnesty which commenced on 1 July 2021.

b. Restrict the use of bolt action shotguns in combination with detachable magazines greater than five shots.

The Bill amends the Road Safety Act 1986 to provide additional powers to police officers to deploy vehicle immobilising devices (VIDs). VIDs include a device that is capable of causing a vehicle to stop or preventing a vehicle from moving, including by deflating tires.

The Bill also amends the Fire Rescue Victoria Act 1958 to enable the transfer of rights, liabilities and obligations associated with certain staff that were transferred from the Country Fire Authority (CFA) to Fire Rescue Victoria (FRV); the Terrorism (Community Protection) Act 2003 to clarify and address limitations around information sharing under the Countering Violent Extremism Multi-Agency Panel (CVE MAP); and the Worker Screening Act 2020 and the Child Employment Act 2003 to exempt police custody officers and police custody officer supervisors from the requirement to obtain a Working with Children Check.

Human Rights Issues

The Bill engages the following human rights under the Charter:

• the right to protection from torture and cruel, inhuman or degrading treatment (section 10)

• the right to freedom of movement (section 12)

• the right to privacy and reputation (section 13)

• the right to property (section 20)

• the right to be presumed innocent (section 25(1)).

For the reasons outlined below, I am of the view that the Bill is compatible with each of these human rights.

The right to protection from torture and cruel, inhuman or degrading treatment

Section 10(c) of the Charter provides that a person must not be subjected to medical or scientific experimentation or treatment without their full, free and informed consent. ‘Treatment’ has a wide meaning, including giving medical care or attention or applying a process or substance to someone. This right may be engaged where treatment is required of a person as a condition relating to their employment.

Medical assessment direction

A police officer or protective services officer (PSO) who is the subject of a discipline inquiry can request an adjournment of that inquiry on medical grounds. The person conducting the discipline inquiry (the Discipline Inquiry Officer) makes a decision about whether to grant that adjournment based on information provided by the officer under investigation. Clause 46 of the Bill inserts new section 130A into the Victoria Police Act to empower a Discipline Inquiry Officer to direct the officer to undertake an independent medical assessment if they are satisfied that it is necessary to determine whether the officer is physically and mentally fit to participate in the inquiry. Subject to the officer consenting to the assessment, an independent medical officer will perform a medical assessment of the officer and provide a report on the officer’s fitness to participate in the discipline inquiry.

The purpose of this amendment is to ensure that when making a decision about whether to grant an adjournment on medical grounds, a Discipline Inquiry Officer has the benefit of an independent assessment in circumstances where they consider it necessary in addition to information provided by the officer under investigation. This will assist to ensure that those officers who legitimately require an adjournment receive one, and to avoid undue delay of inquiries that do not need to be adjourned. Given that up to one third of internal disciplinary matters at Victoria Police are currently adjourned on ill health grounds, often for up to 12 months, this amendment will significantly improve the discipline process.

While officers may be directed to undergo an assessment where a Discipline Inquiry Officer considers it necessary, in my view this does not amount to medical treatment without consent. The requirement will only arise at the request of an officer for an adjournment of a discipline inquiry. The officer may refuse to undergo the assessment and have their adjournment application determined without the benefit of it. They could also withdraw the adjournment application and proceed with the inquiry. New section 130A(4) expressly provides that failing to comply with a direction to undergo an assessment does not constitute a breach of discipline.

New section 130A(3) provides that the medical assessment is undertaken for the sole purpose of providing an assessment of the officer’s physical and mental fitness to participate in a discipline inquiry. It will not involve the conduct of any medical procedure or administration of medication or other treatment. Any medical assessment will be performed by an independent medical officer registered under the Health Practitioner Regulation National Law to practise in the medical or psychology profession (other than as a student).

For these reasons, I am satisfied that although this amendment may engage the right to protection from torture and cruel, inhuman or degrading treatment under the Charter, it does not give rise to any limitation on that right.

The right to freedom of movement

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria. The right extends, generally, to movement without impediment throughout the State, and a right of access to places and services used by members of the public, subject to compliance with regulations legitimately made in the public interest. The right may also extend to protection of access to, or use of, facilities necessary to enjoy freedom of movement (such as vehicles).

Additional powers to deploy VIDs

Part 5 of the Bill amends the Road Safety Act to provide additional powers to police officers to deploy VIDs in order to facilitate the exercise of their powers and functions under the Act. VIDs include a device that is capable of causing a vehicle to stop or preventing a vehicle from moving, including by deflating tires.

Section 63B of the Road Safety Act sets out the circumstances where a police officer may deploy a VID, which currently include to prevent the use of a vehicle by a person for the purpose of escaping lawful custody or avoiding arrest, stopping or assisting to stop a vehicle being pursued by police, or stopping or assisting to stop a vehicle from entering a place where there is a public gathering or non-road activity.

Part 5 of the Bill expands these purposes to authorise police to deploy a VID in a precautionary and pro-active manner to stop a dangerous driver from endangering themselves, other passengers, police officers or other community members. This includes using a VID in the following scenarios to ensure a driver of a vehicle stops when requested and/or remains stationary so that the following existing inspection, monitoring or enforcement activities by police pursuant to the Road Safety Act can be safely undertaken:

• inspecting a motor vehicle or trailer on a highway pursuant to section 13 of the Road Safety Act on a reasonable belief that there has been a failure to comply with the RSA or regulations or rules made under the Road Safety Act;

• requiring specified persons to undergo of a preliminary breath test pursuant to section 53 of the Road Safety Act;

• signalling a person driving a motor vehicle to stop at a preliminary breath testing station pursuant to section 54 of the Road Safety Act;

• requiring a person driving a motor vehicle to furnish samples for analysis or undergo assessment or testing for impairment in various circumstances pursuant to sections 55, 55A, 55B, 55BA, 55D and 55E;

• requesting a driver on a highway to produce for inspection their driver licence document or learner permit and state their name and address pursuant to section 59 of the Road Safety Act;

• preventing a person who is driving, or about to drive, a motor vehicle from driving on a reasonable belief that they are incapable of having proper control of a motor vehicle pursuant to section 62 of the Road Safety Act;

• entering a vehicle by reasonable force if a driver refuses to comply with specified lawful police directions pursuant to section 63 of the Road Safety Act;

• requiring a driver to stop a motor vehicle and remain stopped until indicated to proceed pursuant to section Road Safety Act;

• searching, seizing and impounding or immobilising a motor vehicle on a reasonable belief that the vehicle has been used to commit a ‘hoon’ offence, including in the course of entering or searching land or premises for this purpose pursuant to sections 84F, 84G and 84GA; and

• stopping or assisting in stopping a vehicle in connection with effecting an arrest pursuant to new section 63B(1)(ba) of the Road Safety Act.

The VID could be deployed, for example, in front of, under or behind the relevant vehicle or, in the case where a premises is being searched, in a driveway or car park at the premises. This expansion of the circumstances in which a VID may be deployed is relevant to the right to freedom of movement.

It is questionable as to whether the new provisions in Part 5 of the Bill constitute any additional interference with the right to freedom of movement where the existing provisions of the Road Safety Act already require a person to stop their vehicle for inspection, monitoring or enforcement activities (to which penalties apply for non-compliance). In relation to the power under new section 63B(1)(ba) to use VIDs for the purpose of effecting arrest, it is arguable that this provision constitutes additional interference with the right to freedom of movement as the circumstances in which a VID may be deployed are broadened from where a person is ‘avoiding arrest’ to include where police are ‘effecting’ an arrest, whether the person to be arrested is actively avoiding arrest or not. To the extent that deploying a VID constitutes an additional level of interference, by placing a further barrier to movement, it is my opinion that any limit will be reasonably justified and subject to adequate safeguards.

The deployment of a VID can only occur in circumstances specified in the Road Safety Act and for the limited protective purpose of ensuring a vehicle stops or remains stopped for the required police activity. Under new section 63B(1)(ba), VIDs can be deployed for the purpose of effecting an arrest. Under new section 63B(1A)–(1D), VIDs may be used if the police officer suspects on reasonable grounds that a person, by driving or attempting to drive a motor vehicle, is likely to endanger or cause injury to themselves, a police officer or any other person. Further, the use of a VID pursuant to section 63B(1A)–(1D) is temporary and is only authorised for as long as the police officer holds the requisite reasonable suspicion for exercising the relevant enforcement power and a police officer is required to take reasonable steps to notify the driver of the placement and removal of a VID, unless that is impracticable in the circumstances. The deployment of VIDs serves the legitimate objectives of preventing harm to police, drivers, passengers and the community, and of assisting Victoria Police’s capacity to deal with the dangerous use of vehicles.

Accordingly, I am satisfied that these provisions are compatible with the right to freedom of movement.

The right to privacy and reputation

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) states that a person has the right not to have their reputation unlawfully attacked. A number of amendments in the Bill may engage this right.

An interference with the right to privacy and reputation does not amount to a limitation on that right if it is lawful and is not arbitrary. An interference will be lawful if it is permitted by law which is precise and appropriately circumscribed and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Medical assessment direction

As outlined above, clause 46 of the Bill inserts new section 130A into the Victoria Police Act to empower a Discipline Inquiry Officer to direct an officer under investigation to undertake an independent medical assessment if they are satisfied that the assessment is necessary to determine whether the officer is medically fit to participate in a discipline inquiry. It can be expected that the independent medical assessment will involve personal and health information of the officer, which may be shared with the Discipline Inquiry Officer in the report prepared by the assessor. However, new section 130A(3) provides that any information obtained is provided for the purpose of assessing the officer’s physical and mental fitness to participate in a discipline inquiry, and will not be used in any other context within or outside the discipline inquiry. Any medical assessment will be performed by an independent medical officer registered under the Health Practitioner Regulation National Law to practise in the medical or psychology profession, who is subject to relevant professional obligations in relation to their practise. For all of these reasons, I consider that any interference with privacy occasioned by the medical assessment direction is both lawful and not arbitrary, and therefore does not limit the right.

Adjournment bonds

Clause 48 of the Bill inserts section 132A(1)(a) into the Victoria Police Act to provide that where a police officer or PSO has committed a breach of discipline by returning a positive test for alcohol and/or a drug of dependence, they may be subject to further testing as a condition of a good behaviour bond, for a period of up to two years.

This provision engages the right to privacy and reputation, but in my view does not limit the right as such a condition would only be imposed in cases where the existing threshold for drug and alcohol testing in the Victoria Police Act had already been met, and where the police officer or PSO had already returned a positive test. The condition would not be imposed arbitrarily, and the scope of the imposed testing regime would be clearly established prior to the imposition of the bond and associated conditions. It is important that the option to impose drug and alcohol testing conditions is available to Victoria Police where an officer has already returned a positive test, to ensure that the officer’s capacity to maintain community safety is not impaired.

Amendments related to the Restorative Engagement and Redress Scheme for Victoria Police

Part 9A of the Victoria Police Act was inserted in 2022 to establish a legislative framework for the Scheme. The Scheme had previously been operating administratively since December 2019. Clauses 53–54 of the Bill make amendments to Part 9A to strengthen the privacy of applicants to the Scheme.

The amendments to the legislative framework for the Scheme also interfere with the right to privacy and reputation; however, in my view they do not limit the right as none of the relevant amendments are unlawful or arbitrary. The amendments engage the right in the following ways:

• New section 174PA exempts the Secretary from a requirement in the IBAC Act to notify IBAC of any matter that the Secretary suspects on reasonable grounds involves corrupt conduct, if the Secretary has knowledge of the matter only by reason of information received by the Scheme.

• New section 174PB allows the Secretary of the Department of Justice and Community Safety to provide certain de-identified information received by the Scheme to IBAC.

Clause 54 inserts new sections 174A(3A) and 174PA into the Victoria Police Act to exempt the Secretary from a requirement in section 57 of the IBAC Act to notify IBAC of any matter that the Secretary suspects on reasonable grounds involves corrupt conduct occurring or having occurred, if the Secretary has knowledge of the matter only by reason of information provided by an applicant, provided by a prospective applicant, or disclosed for the purpose of, or in the course of, a restorative engagement process. This protects the privacy and reputation of the applicant and any prospective applicants and the privacy and reputation of any alleged perpetrators of sexual harassment and sex discrimination. Clause 54 also inserts new section 174PB into the Victoria Police Act. New section 174PB allows the Secretary to provide information to IBAC to support IBAC with its education and prevention functions. However, this section upholds the right to privacy by prohibiting the Secretary from providing information to IBAC that identifies or is likely to lead to the identification of an applicant, without the consent of the applicant to the Scheme.

The Scheme was established to provide current and former members of police personnel who have experienced sexual harassment or sex discrimination in connection with being a current or former member, to apply to the Scheme to obtain a therapeutic outcome. These provisions aim to allow current and former members to document their experience, without fear that information may be disclosed to another agency for a different purpose. They also ensure the Secretary can continue to support IBAC in its education and prevention functions.

In my opinion these amendments are consistent with the right to privacy and reputation.

Amendments to the Terrorism (Community Protection) Act 2003

The Terrorism (Community Protection) Act 2003 (Terrorism Act) provides for two early intervention schemes for persons assessed to be at low to medium risk of radicalising towards violent extremism – the Voluntary Case Management (VCM) and Support and Engagement Order (SEO) schemes. It establishes the CVE MAP to provide coordinated case management of participants in the VCM and SEO schemes by lead government agencies.

The Terrorism Act also contains a standalone information sharing scheme providing for the collection, use and disclosure of personal, sensitive and health information about participants in the VCM and SEO schemes. This ensures that the schemes can operate effectively, and that people participating them can be appropriately assessed to identify and address the underlying causes of their radicalisation.

Currently, information may only be shared with the CVE MAP by ‘authorised disclosers’ – including the Secretary of DJCS, a member of CVE MAP and specified program or service providers – for a defined purpose. This means that information cannot be shared by a home entity represented on the CVE MAP (such as Victoria Police) if their CVE MAP member is unavailable. This compromises the ability of the CVE MAP to receive and share information in a timely manner, and make critical case management decisions on the basis of all available information.

The Bill will amend the Terrorism Act to allow information sharing by a ‘representative’ (appointed to attend a CVE MAP meeting on behalf of a CVE MAP member), and by a ‘central contact’ (appointed by a CVE MAP member to collect and share information on their behalf).

These changes will facilitate the efficient sharing of information by the CVE MAP, which will enable it to make decisions, manage risk and provide advice in a timely manner. Importantly, allowing information sharing by representatives and central contacts will enhance the CVE MAP’s ability to respond quickly to any escalations of risk. This promotes community safety by facilitating intervention before an act of violent extremism or terrorism occurs.

The Bill does not expand the information sharing scheme under the Terrorism Act to allow a person’s personal, sensitive and health information to be disclosed at large. Rather, the sharing of information will remain tightly prescribed. In particular, both representatives and central contacts may only share information for the duration of their appointment, which is strictly limited under the Bill (for example, a representative can only act for a specified time before and after a specific CVE MAP meeting and central contacts can only be appointed for up to a year).

Although the Bill facilitates the more efficient sharing of information to the CVE MAP, it maintains the existing robust constraints on the collection, use and disclosure of personal, sensitive and health information and provides appropriate safeguards.

In my view, any resulting impacts on the right to privacy are appropriately circumscribed to the objectives of the VCM and SEO schemes. These aims are to support the person to disengage from engaging in behaviours consistent with radicalisation towards violent extremism and preserve community safety. The amendments reflect and are proportionate to these legitimate purposes. Therefore, while the right to privacy will be engaged by these changes, in that additional persons will be able to collect, share and be privy to information, any interference with privacy will be lawful and not arbitrary for the reasons outlined above.

Amendments to the Worker Screening Act 2020

Clauses 4 and 62 of the Bill engage the right to privacy by requiring certain persons to notify other persons or agencies of certain matters arising in connection with an exemption from the Working with Children (WWC) check.

Specifically, clause 62 of the Bill exempts a person employed by Victoria Police as a police custody officer or a police custody officer supervisor from the requirement to obtain a WWC check. As a consequence of this, clause 62 requires that a police custody officer or supervisor must notify any employer or agency for whom they do child-related work (other than as a police custody officer or supervisor) if they are suspended or their authority to act as a police custody officer or supervisor is revoked.

Similarly, clause 4 makes consequential amendments to the Child Employment Act 2003 to provide a person who is permitted by reason of his or her employment as a police custody officer or supervisor to supervise a child in employment (other than as a police custody officer or supervisor) must notify any person by whom he or she is employed in that supervision of any suspension or revocation of their authority to act as a police custody officer or supervisor.

While clauses 62 and 4 interfere with the right to privacy, the interference is neither unlawful nor arbitrary. The interference is authorised under the legislation and the instances in which sharing of information must occur are clearly delineated by the Bill. The notification requirement is necessary to ensure that agencies and people who employ certain persons in child-related work are kept informed of the status of the person’s exemption from a WWC check and, in the instance where a person is no longer exempt but wishes to continue engaging in child-related work, the status of an application and subsequent WWC clearance.

Clauses 62 and 4 assists those people and agencies to ensure that they only engage persons who are fit and proper to work with children. Consequently, in my view the clauses do not result in an arbitrary or unlawful interference with the right to privacy.

The right to property

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with the law. Property includes a bundle of property rights, including the right to enjoyment of property. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

Amendments to the Fire Rescue Victoria Act

The Bill will enable the transfer of rights, liabilities and obligations associated with certain staff that were transferred from the CFA to FRV, and this may affect the property rights of individuals (for example, claims that may be made under historical insurance policies).

As the Bill is not intended to alter any existing rights, liabilities or obligations of persons or entities other than to enable the transfer of those rights, liabilities and obligations from CFA to FRV, section 20 of the Charter is not engaged.

Limitation on detachable magazines when used in conjunction with a bolt action shotgun

The Bill will amend the Firearms Act to place a special condition on the holder of a category A or A&B longarms licence who has obtained the licence for the reason of hunting or sport or target shooting.

The special condition will state that a licensee cannot carry, possess or use a detachable magazine greater than five shots in combination with a bolt action shotgun, unless it is for the purpose of participating in a Chief Commissioner approved event.

Some category A or A&B longarms licensees who have obtained their firearms licence for the reason of hunting or sport or target shooting may need to dispose of a detachable magazine with a capacity greater than five shots as a result of this amendment.

Although these changes may engage the right to property in that they may impact the way a person can use their property or require the disposal of that property, in my view the changes do not limit the right to property. This is because any conditions on or possible disposal of a detachable magazine will be under the Firearms Act and therefore in accordance with law. The relevant provisions are clear and confined to the legitimate purpose of regulating firearms in the interests of safety of the community.

Additional powers to deploy VIDs

These provisions engage this right by placing a further, albeit temporary, restriction on a person’s enjoyment of their vehicle, including by allowing police officers to damage the vehicle if a person does not comply with this restriction. However, in my view, to the extent that these provisions constitute a deprivation of a proprietary right (such as enjoyment of property) this Bill does not act to limit the right to property as any interference with this right is done according to legislation which clearly specifies the scope and circumstances in which a VID can be deployed in relation to a person’s vehicle and does so for legitimate purposes relating to protection of safety (as outlined above).

For these reasons, I consider that these provisions are compatible with the right to property in the Charter.

The right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

Amendment to the offences for disclosing police information

Section 227 of the Victoria Police Act establishes an offence for the unauthorised access to, use of, or disclosure of police information by current or former members of Victoria Police personnel. A member or former member of Victoria Police personnel must not, without reasonable excuse, access, use or disclose any police information if it is the duty of the member or former member not to access, make use of or disclose that information. Clause 56 of the Bill amends section 227 to extend the statute of limitations for charging a person with this offence from 12 months to three years.

Although the Bill does not amend the elements of the offence established by section 227, as it increases the amount of time available for Victoria Police to charge a person with the offence, I consider it prudent to discuss the impact of the existing offence on the right to be presumed innocent.

The existing offence places an evidentiary burden on the accused to demonstrate that they had a reasonable excuse to access, use or disclosure of police information. The current legal authority is that section 25(1) of the Charter is not engaged or limited by a provision which places only an evidentiary burden on an accused. This is because such an onus only requires an accused to point to some evidence which raises a reasonable doubt, at which point the legal onus is on the prosecution to disprove the defence.

I am therefore of the opinion that the amendment to extend the statute of limitations for the offence established by section 227 of the Victoria Police Act does not limit the right to be presumed innocent.

The Hon Anthony Carbines MP – Minister for Police

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (11:44): 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 a range of policing reforms which are aimed at strengthening the integrity of the Victoria Police discipline system and supporting Victoria Police and other agencies to maintain community safety. It does this through a number of amendments, including improving the internal Victoria Police discipline process, strengthening Victoria Police’s capacity to regulate firearms, expanding the circumstances in which Victoria Police can deploy a vehicle immobilising device, and supporting the function of the Countering Violent Extremism Multi-Agency Panel (CVE MAP). The Bill also introduces amendments to a number of other Acts which I will outline below.

Victoria Police discipline system

The Bill amends the Victoria Police Act 2013 (the Police Act) to enhance Victoria Police’s discipline system. In 2022, Victoria Police reported an increase in disciplinary hearings for police officers and protective services officers (PSOs) who were charged with a breach of discipline under the Police Act or a criminal offence. The majority of Victoria Police officers are upholding the values and standards the community expects of our police personnel. However, it is important that Victoria Police has a robust discipline system in place to ensure that any officers who do not do the right thing can be held to account. Police officers have significant powers to maintain and protect community safety and it is important that there are strong protections for members of the public in relation to the use of police powers. To strengthen the Victoria Police discipline system, the Bill makes the following reforms to the Police Act:

1. Enshrining the Victoria Police Code of Conduct and prescribing non-compliance as a breach of discipline

The Victoria Police Code of Conduct is an important organisational standard that establishes the Victoria Police values and the professional obligations that flow from them. The Bill amends the Police Act to enshrine the Chief Commissioner of Police’s ability to issue a code of conduct for Victoria Police that is binding on Victoria Police personnel, and to expressly prescribe that failure to comply with this code of conduct can constitute a breach of discipline. These amendments will consolidate the importance of the Code of Conduct as an organisational standard at Victoria Police, establish clear consequences for failing to comply with professional obligations set out in the Code of Conduct and ensure that Victoria Police’s behavioural expectations are communicated to the community they serve.

2. Medical assessment direction

A police officer or PSO who is subject to a discipline inquiry may request an adjournment of that inquiry on medical grounds. To support their request for an adjournment, police officers and PSOs may provide medical evidence. As the officers who conduct discipline inquiries are not medically trained, sometimes they are unable to determine whether the evidence provided demonstrates that an adjournment is required. Adjournments can lead to delays of the disciplinary process for over 12 months, including in cases where the officer is suspended with pay, so it is important that they are only adjourned in cases where it is genuinely needed.

To assist discipline inquiry officers to determine whether to grant an adjournment, the Bill amends the Police Act to authorise a discipline inquiry officer to direct a police officer or PSO to undertake an independent medical assessment of their physical and mental fitness to participate in disciplinary hearings.

3. Including a non-exhaustive list of conditions which Victoria Police may attach to a good behaviour bond

Where a police officer or PSO has committed a breach of discipline or a criminal offence, the Police Act provides that Victoria Police may place them on a good behaviour bond with conditions. Good behaviour bonds are an important tool for Victoria Police to use to ensure that police officers and PSOs who have committed a breach of discipline or a criminal offence understand what they need to do to change their behaviour so they are meeting the standard the community expects. To ensure good behaviour bonds work appropriately, the Bill provides examples of conditions which can be imposed alongside these bonds, without limiting Victoria Police’s decision-making scope. These example conditions will include drug and alcohol testing, for a period of up to two years, in circumstances where the breach or offence includes having returned a positive test for alcohol or drugs. In all other cases, the bonds and conditions will be limited to a period of 12 months.

The Bill also provides that any conditions imposed alongside a good behaviour bond must be reasonably linked to the conduct of the officer that gave rise to the discipline inquiry and that Victoria Police must take all actions necessary to enable compliance with the bond conditions. The Bill also clarifies steps to be taken in circumstances where the officer or PSO has not complied with the bond or conditions.

4. Extending the statute of limitations for the offence of accessing, using or disclosing police information

Police information is highly sensitive in nature and it is important that the Police Act strongly protects the access to and use of this information. Victoria’s integrity agencies have emphasised the importance of maintaining confidentiality of police information in a number of recent reports:

• The Independent Broad-based Anti-corruption Commission (IBAC) identified in two recent reports that the misuse of police information can be a key enabler of other improper conduct with more serious consequences.

• In October 2022, the Victorian Inspectorate published a Special Report on IBAC’s referral and oversight of Victoria Police’s response to a matter involving family violence perpetrated by a police officer. As the Victorian Inspectorate identified, violence occurred following the inappropriate disclosure of police information.

Section 227 of the Police Act establishes an offence for current and former Victoria Police personnel to access, use or disclose police information when it is not in line with their current duty to do so. It can be difficult to identify this type of offending, as it is often well concealed by the offender and not easily identifiable through traditional auditing processes. The offence is often only uncovered during the investigation of more serious offending, by which time the 12-month timeframe for charging a person with the offence under section 227 may have expired.

To ensure the confidentiality of police information is protected, and in recognition of the serious consequences which can flow from the misuse of police information, the Bill extends the statute of limitations for the offence established by section 227 of the Police Act from 12 months to three years.

Restorative Engagement and Redress Scheme for Victoria Police

In addition to the amendments to the police discipline system, the Bill amends the Police Act to support participants in the Restorative Engagement and Redress Scheme for Victoria Police to maintain their privacy and autonomy in reporting. The Scheme is operated by the Department of Justice and Community Safety (DJCS).

Since the Redress Scheme commenced operating, information privacy and confidentiality issues have continued to emerge. Participants share private and sensitive information with DJCS to seek personal support and redress in a private, non-adversarial and non-inquisitorial setting and they do not intend to disclose information for the purposes of reporting wrong-doing or to inform disciplinary, criminal or other legal proceedings. The Bill amends the Police Act to exempt the Secretary of DJCS from a requirement in the Independent Broad-based Anti-corruption Commission Act 2011 (IBAC Act) to notify IBAC of any matter they are aware of which is suspected to involve corrupt or improper conduct. Mandatory reporting of information shared in applications to the Redress Scheme would undermine the victim-focused nature of the Redress Scheme, risk re-traumatising participants, breach privacy, erode trust and reduce the likelihood of eligible applicants applying. Redress Scheme participants already have the option to voluntarily report possible corrupt conduct within Victoria Police to IBAC. This amendment will ensure the privacy of participants and ownership over their personal and sensitive information is protected. However, in recognition of IBAC’s important role in identifying themes of potential misconduct, the Secretary will be authorised to provide de-identified and thematic information from the Redress Scheme to IBAC to assist it to perform its education and prevention functions.

Amendments to the Firearms Act 1996

Victoria has some of the strongest firearms controls in the world and the Government is committed to working with Victoria Police and licensed firearms holders to ensure firearms regulation remains contemporary and able to respond to changing community needs.

To support the ongoing National Firearms Amnesty, the Bill will amend the Firearms Act to allow a Licensed Firearms Dealer to receive/accept/take possession of a firearm from an unlicensed person who is not exempt by the Firearms Act for the purposes of sale, registration, or destruction. Licensed Firearms Dealers are playing a pivotal role in the ongoing National Firearms Amnesty and the Bill will remove any concern Licensed Firearms Dealers may have with participating in the amnesty, by formalising their ability to accept firearms from unlicensed persons.

The Bill will also place a special condition on the holder of a category A or A&B long arms firearms licence who has obtained the licence for the reason of hunting or sport or target shooting. The special condition will state that a licensee cannot carry, possess or use a detachable magazine greater than five shots in combination with a bolt action shotgun, unless it is for the purpose of participating in a Chief Commissioner approved event. This is a proactive community safety reform to limit the ability of opportunistic misuse of bolt action shotguns which can be paired with large capacity detachable magazines.

Vehicle immobilising devices

In addition to the Firearms Act amendments, the Bill further enhances Victoria Police’s capacity to maintain community safety by making amendments to vehicle immobilising devices (VIDs). Victoria Police has limited power to use VIDs, such as tyre deflating road spikes, to ensure that Victorians are safe on our roads. At present, police are only able to use VIDs in situations where they are trying to prevent a driver from escaping custody or avoiding arrest, and to stop a moving vehicle in limited circumstances.

The Bill will expand the situations in which VIDs may be used to include situations where police suspect on reasonable grounds that a person, by driving or attempting to drive a motor vehicle, is likely to endanger or cause injury to themselves, a police officer or any other person. The presence of a suspicion on reasonable grounds requirement achieves an appropriate balance between the road safety benefits of the increased use of VIDs with the associated limitation on the right of freedom of movement under the Charter of Human Rights and Responsibilities. Police officers will be required to take reasonable steps to advise the driver of the vehicle that the immobilising device has been deployed and removed unless it is impracticable for them to do so in the circumstances.

Strengthening the operation of the Countering Violent Extremism Multi-Agency Panel

The Terrorism (Community Protection) Act 2003 (TCPA) provides Victoria’s countering violent extremism laws. The TCPA currently provides for two early intervention pathways for persons who have been assessed to be at low to medium risk of engaging in violent extremism – the Voluntary Case Management (VCM) and Support and Engagement Order (SEO) schemes. The TCPA establishes the CVE MAP which provides coordinated case management by key government agencies for participants in these schemes. The Bill makes important changes to facilitate the operation of the CVE MAP and the VCM and SEO schemes to ensure they operate efficiently and effectively.

In particular, current restrictions on information sharing under the TCPA have created unnecessary barriers to the appropriate sharing of risk information where a CVE MAP member is not available. This impacts on the ability of the CVE MAP to receive and share information in a timely manner and make critical case management decisions on the basis of all available information.

The Bill amends the TCPA to allow information about participants in the scheme to be shared and received by a ‘representative’ appointed to attend a CVE MAP meeting on behalf of a CVE MAP member, and shared by a ‘central contact’ who is appointed by a CVE MAP member to collect and share information on their behalf. These changes will ensure that people participating in the schemes can be properly assessed so their underlying causes of radicalisation can be identified and addressed. This will also enable CVE MAP and law enforcement to respond quickly and appropriately in response to any escalations of risk.

At the same time, the Bill places restrictions on the appointment of a representative and central contact to ensure information sharing under the TCPA remains limited. This allows the Bill to strike an appropriate balance between enabling the necessary sharing of risk information to and from CVE MAP and protecting the privacy of participants in the schemes.

The Bill will also make minor miscellaneous amendments to the TCPA to facilitate the effective operation of the CVE MAP. This includes giving the Secretary greater flexibility in the appointment of CVE MAP members for a term for less than three years, allowing the CVE MAP to make decisions out of session and allowing the appointment of acting CVE MAP members when a CVE MAP Member is unavailable.

By facilitating the effective operation of the CVE MAP, the Bill will promote community safety by providing support and case management to people at risk of radicalising to violent extremism and facilitating intervention before an act of violent extremism or terrorism occurs.

Other amendments

The Bill also introduces minor and technical amendments to the Worker Screening Act 2020, Child Employment Act 2003, Fire Rescue Victoria Act 1958 (FRV Act) and Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). I will outline each of these amendments.

The Worker Screening Act 2020 and Child Employment Act 2003 will be amended to exempt police custody officer supervisors and police custody officers (PCOs) from a requirement to obtain a Working with Children check. Although PCOs are subject to the same security vetting requirements as police officers and protective services officers (PSOs), they are not currently exempt from a Working with Children check in the same way.

PCOs will no longer be required to obtain a Working with Children check if they are engaged in child-related work, including as part of their role as a PCO. This will provide consistency between key frontline Victoria Police roles regarding Working with Children check exemptions and will remove the current duplication of worker screening requirements for PCOs. The Bill also makes consequential amendments to the Child Employment Act 2003 to ensure that the child employment and Working with Children check schemes continue to be aligned. As is the case with police officers and PSOs, a PCO who is suspended from their role or whose employment is terminated as a Victoria Police employee, and who is engaged in child-related work in another capacity, such as a junior sports coach, would need to apply for a Working with Children check to continue to engage in that child-related work.

As part of Fire Services Reforms in 2019, the FRV Act provided for the transfer of Country Fire Authority staff to Fire Rescue Victoria. These transferred staff were broken down into two categories of staff, those assigned to a particular station and those that were not assigned to a particular station. All necessary transfers of these staff have been completed. The FRV Act provided for the Minister to direct that an allocation statement be prepared for rights, liabilities and obligations associated with Country Fire Authority staff that were assigned to particular stations to be allocated from the Country Fire Authority to the new Fire Rescue Victoria. However, the FRV Act did not provide for the Minister to direct that an allocation statement be prepared allocating these rights, liabilities and obligations of staff that were not assigned to a particular station. The Bill amends the FRV Act to enable the Minister to ensure that the allocation of rights, liabilities and obligations for staff not assigned to a particular station, is captured, and will ensure consistency with arrangements legislated for staff assigned to a particular station.

The Bill will make minor technical amendments to the VCAT Act, to address a potential ambiguity as to the operation of section 77. Section 77 of the VCAT Act was recently amended in the Justice Legislation Amendment Act 2023, to provide courts the power to extend the limitation period for federal jurisdictional matters referred to them by VCAT. Following the introduction of those amendments into Parliament, the Court of Appeal handed down its decision in Krongold Constructions (Aust) Pty Ltd v Thurin [2023] VSCA 191, which raised ambiguity as to whether this power to extend limitation periods applied to third parties who were not joined to a VCAT proceeding, where that proceeding was then referred to the court under section 77(3). The Bill clarifies that if a matter is referred to a court under section 77(3), the court has the power to extend any limitation period, including to any party that was not joined to a VCAT proceeding before the matter was referred.

I commend the Bill to the house.

James NEWBURY (Brighton) (11:44): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 29 November.