Tuesday, 8 March 2022
Bills
Victoria Police Amendment Bill 2022
Victoria Police Amendment Bill 2022
Introduction and first reading
The DEPUTY PRESIDENT (19:09): I have a message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘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’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
That the bill be treated as an urgent bill.
Motion agreed to.
Statement of compatibility
Ms TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (19:10): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
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 Council, 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 Gayle Tierney MP
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms TIERNEY: I move:
That the bill be now read a second time.
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 Ondarchie: On a point of order, Deputy President, we have only just got the second-reading speech. While the bill went through another place today, we have not had a chance to absorb it. Can we just have a moment to read this before we commence our second-reading speeches, please?
Thank you, Deputy President. We have had time to read it now, and we wish to proceed.
Dr BACH (Eastern Metropolitan) (19:12): It is good to rise to make a contribution on the Victoria Police Amendment Bill 2022. This is an important bill. It is a bill that the opposition has been pushing for. Quite frankly it is a bill that I think we could have debated, if it was prepared, last sitting week. But nonetheless we were contacted very recently by the government asking for our support to have this bill debated and to suspend standing orders in the other place in order to have this bill debated just today. Of course we gave our consent to that, and it is good that the bill has been able to move into this chamber as quickly as this.
I want to flag at the outset that the opposition will be supporting this bill because it fixes a significant administrative error. In opposition we recognise of course that one of our most significant focuses here in this place must be the protection of the community, and in doing so the role of Victoria Police is paramount. I do not intend to speak for long this evening because I have no desire to hold up this bill on this side of the house, and I know it is the same on the other side of the house. We have no desire to hold up this bill. We would like it dealt with as expeditiously as possible because, as I say, the government has become aware and the community has become aware of an administrative error, and the government has sought to fix it through this bill. We wholeheartedly support that endeavour, as we wholeheartedly support the outstanding men and women of Victoria Police.
I might just make one or two points that relate to my portfolios regarding the incredibly complex work of Victoria Police. Across the fraught spaces of child protection and youth justice our men and women of Victoria Police do such extraordinary work in very complex circumstances. I know that members of the other place have spoken about other areas where members of Victoria Police do really complex and difficult work. The work they do in seeking to prevent, and then deal with once it has occurred, family violence has been mentioned, and I think that is apt.
For me, however, I have a particular focus on seeking to prevent the abuse and neglect of children and then also seeking to support young people who oftentimes have experienced trauma and disadvantage and then been drawn into our youth justice system. In these areas the work of Victoria Police is so important and yet so complex, so I was gratified by the debate in the other place and the contributions of members across the chamber, the support in that place that was shown for our police forces and also the deep level of understanding across the chamber about the extent to which the membership of Victoria Police seeks to engage with the community in a really productive and proactive manner wherever that is possible. Now, sometimes it is not of course; indeed oftentimes it is not. Oftentimes the members of Victoria Police are called to matters that are grave and dreadful and seek to mop up, if you like, following the commission of dreadful crimes. But I like to focus instead—and I know that the membership of Victoria Police like to focus instead, the leadership of the Police Association Victoria like to focus instead—on community policing, and in doing that work I think that in actual fact we do the most beneficial work in seeking to prevent crime and therefore in seeking to ensure that the community is kept safe.
Our members of Victoria Police go out every day and put themselves into harm’s way. This is something that has been rammed home to certainly all members of this house, all members of the Victorian community, over the very recent period. So they deserve not only the respect of the community but also the swift action of this place whenever issues arise, as issues have arisen in this instance, that impinge upon the ability of members of Victoria Police to do the important work they do to keep the community safe.
The principal change that will be enacted through this legislation will protect liability and ensure that the members of Victoria Police can continue to go about their jobs and can continue to do the important work they do every day on behalf of the rest of us to keep the rest of us safe. Ultimately of course it is the government’s responsibility to ensure that members of Victoria Police are protected, but right across this chamber we also have a responsibility. That is why it is really important, I think, that this bill has certainly bipartisan support, and my expectation is that it will also receive support from the crossbench.
As I said at the outset, I do not wish to take up any more time than is necessary. This is an important bill. I welcome both the bill and the fact that we are able to have a discussion—my hope is a brief discussion—this evening in order to then seek to ensure that this measure is enacted as swiftly as possible.
Ms TAYLOR (Southern Metropolitan) (19:18): I too will speak briefly on this bill, owing to the fact that we have unity on these matters being addressed expediently for the betterment of Victoria. Really, fundamentally it is about providing clarity and certainty for affected police officers and the broader justice sector—that is what it is about. What the bill does is introduce a new provision into the Victoria Police Act 2013 to retrospectively validate the appointment of police members invalidly appointed to the role of acting assistant commissioner by deputy commissioners between July 2014 and August 2021 and validate all exercises of power by police members invalidly appointed to the role of acting assistant commissioner between July 2014 and August 2021, including the power to swear in police officer and protective services officer recruits. This will cure the period of time between July 2014 and August 2021 and mean that actions and conduct by affected police and PSOs, approximately 1200, who acted in good faith will be considered lawful and authorised, and it will provide certainty and clarity for the affected members and for the justice sector more broadly, which is what I said from the outset. Ms Tierney will speak to the actual purpose behind why the bill is needed, so I am not going to double up on those aspects of our discussion today.
The only thing that I would like to say further to round off my presentation—but in the interests of expediency I will not protract it—is just that one of the keys to our community safety strategy has been police resourcing. We have funded 3135 new police officers. This has included general duty police officers working in local communities, but also specialist officers, including hundreds of family violence police officers—because I know there was a little mention about family violence and managing that, in the chamber—more PSOs for mobile patrols and new stations for our growing force. We worked closely with force command on developing this recruitment pipeline. This includes the development of the staffing allocation model, a sophisticated allocation and forecasting model that accounts for population growth, geography, police activity and crime trends. This model was developed by Victoria Police in consultation with the Police Association Victoria and endorsed by government.
What really is important about this is that this approach has seen the end of the boom-and-bust cycle of police resourcing. It has seen police resourcing determined by experts and by need rather than on election cycles, and we can all agree that that is a really important development. It has also changed the Victoria Police Academy from a ghost town into the busy centre of excellence that it is today. This strategy is also delivering results.
Ms TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (19:21): I thank Ms Taylor for her introduction in terms of the government’s position in respect of this. The introduction of the new Victoria Police Act 2013 changed the powers of deputy commissioners to appoint acting assistant commissioners. However, in practice Victoria Police continued this practice. Legal advice sought by Victoria Police identified this as a potential issue in late 2020, but they believed it to be limited to a small number of powers used by the acting assistant commissioners. Further auditing and legal advice sought by Victoria Police and finalised in February 2022 identified the issue as it related to the swearing in of sworn officers by acting assistant commissioners, and at that point the government was made aware. From the audit we know that 1076 police officers and 157 protective services officers were sworn in by invalidly appointed acting assistant commissioners. Twenty-nine police custody officers were also affected.
Actions taken by Victoria Police have corrected this issue prospectively, with the vast majority of affected officers re-sworn. This bill will fix the issue retrospectively by making valid all of the lawful conduct and use of their powers by these officers for the period between 1 July 2014 and August 2021. Retrospective action is required to ensure that evidence gathered and enforcement outcomes from this period are not compromised by technical administrative error. All sworn officers affected by this matter are well-trained officers who have exercised their powers in good faith. There is no suggestion that they have done anything but serve their communities to the best of their abilities. This bill will provide certainty and clarity for all of the affected officers and for the broader justice sector.
The Police Association Victoria has been engaged very much on this matter. They support the actions of the government to provide certainty and clarity for all of their members caught up in this matter. The government and Victoria Police have worked very closely with the police association to assure members that their legal, industrial and superannuation protections and entitlements are not diminished by this administrative error.
When this matter was brought to the attention of the Victorian government we acted to resolve it. The impacted officers have always considered themselves to be sworn. They are well trained. They have kept the community safe. This is an administrative issue that is no fault of the officers impacted. We have moved quickly to resolve this issue. Victoria Police moved to re-swear the vast bulk of the 1200 sworn officers so that they could continue their work. The government and Victoria Police have worked closely to draft the bill and correct the matter retrospectively as well. This administrative error should not have occurred, but it has to be dealt with. We cannot speak for the breakdown that occurred in 2013 when the change in legislation created this issue, but we can tonight fix this, which is what this bill does.
Can I say that I did have the opportunity to listen in on the debate in the Assembly during the course of the afternoon, and what also struck me was the breadth of knowledge that members of Parliament have in respect to the work that the police do in this state. I was incredibly impressed by that and of course by examples time and time again of the close connections and working relationships that members of Parliament have with their local police.
I take this opportunity also to record my appreciation for the work of Victoria Police right across this state. It is a vocation. I think we are all thankful for all of the efforts that they undertake day in and day out. We thank them so much for it. I do commend this bill to the house.
Motion agreed to.
Read second time.
Third reading
Ms TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (19:26): I move, by leave:
That the bill be now read a third time.
Motion agreed to.
Read third time.
The PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the same without amendment.