Victorian Inspectorate Act 2011

Authorised by the Chief Parliamentary Counsel Authorised Version i Victorian Inspectorate Act 2011 No. 70 of 2011 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purpose 1 2 Commencement 2 3 Definitions 2 4 Objects of Act 3 5 Act binds the Crown 3 PART 2—THE VICTORIAN INSPECTORATE 5 6 Establishment of the Victorian Inspectorate 5 7 The Victorian Inspectorate is a body corporate 5 8 Constitution of the Victorian Inspectorate 5 9 Functions of the Victorian Inspectorate 6 10 Powers of the Victorian Inspectorate 6 11 Delegation 7 12 Victorian Inspectorate not subject to direction or control 7 13 Independence of the Inspector 7 14 Appointment of the Inspector 8 15 Veto of proposed Inspector 9 16 Duties, functions and powers of the Inspector 10 17 Terms and conditions 10 18 Vacancy and resignation 12 19 Suspension and removal from office 13 20 Declaration of inability to act 14 21 Acting appointment 14 22 Oath or affirmation of office 15 23 Delegation 15 24 Staff 16 25 Consultants 16 26 Oath or affirmation by staff and consultants 17 27 Obligation on persons employed or engaged under section 24 17 28 Obligation to avoid actual or perceived conflicts of interest 18 -- 1 of 38 -- Section Page ii Authorised by the Chief Parliamentary Counsel PART 3—INVESTIGATIONS 19 29 Complaints 19 30 Investigation of complaint 19 31 Own motion investigation 20 32 Conduct of investigation 20 33 Requirement to provide assistance 21 PART 4—RECOMMENDATIONS AND REPORTS 22 34 Recommendation to IBAC 22 35 Recommendation for further action 23 36 Special reports 23 37 Outcome of investigation 26 38 Matters to be included in annual report 26 PART 5—GENERAL 29 Division 1—Miscellaneous 29 39 Immunity 29 40 Exemption from Freedom of Information Act 1982 29 41 Regulations 30 42 Regulations—specific matters 31 Division 2—Amendments to other Acts 32 43 Amendment of the Independent Broad-based Anti-corruption Commission Act 2011 32 5A Application of Act 32 44 Amendment of the Parliamentary Committees Act 2003 32 45 Amendment of the Juries Act 2000 34 46 Amendment of the Ombudsman Act 1973 34 47 Amendment of Public Administration Act 2004 34 48 Amendment of the Whistleblowers Protection Act 2001 35 49 Repeal of amending provisions 35 ═══════════════ ENDNOTES 36 -- 2 of 38 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Victorian Inspectorate Act 2011 † No. 70 of 2011 [Assented to 29 November 2011] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purpose The purpose of this Act is to establish the Victorian Inspectorate to provide oversight of the Independent Broad-based Anti-corruption Commission. Victoria -- 3 of 38 -- Part 1—Preliminary Victorian Inspectorate Act 2011 No. 70 of 2011 2 Authorised by the Chief Parliamentary Counsel 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 July 2012, it comes into operation on that day. 3 Definitions In this Act— Australian legal practitioner has the same meaning as it has in the Legal Profession Act 2004; Commissioner has the same meaning as it has in section 3 of the Independent Broad-based Anti-corruption Commission Act 2011; Deputy Commissioner has the same meaning as it has in section 3 of the Independent Broad- based Anti-corruption Commission Act 2011; IBAC has the same meaning as it has in section 3 of the Independent Broad-based Anti- corruption Commission Act 2011; IBAC Committee means the Joint House Committee established under section 5(fa) of the Parliamentary Committees Act 2003; IBAC Officer has the same meaning as it has in section 3 of the Independent Broad-based Anti-corruption Commission Act 2011; IBAC personnel means— (a) an IBAC Officer; (b) a person engaged by the IBAC under section 29(2) or 30 of the Independent Broad-based Anti-corruption Commission Act 2011 to provide the s. 2 -- 4 of 38 -- Part 1—Preliminary Victorian Inspectorate Act 2011 No. 70 of 2011 3 Authorised by the Chief Parliamentary Counsel IBAC with services, information or advice; (c) a person who was formerly a person referred to in paragraph (a) or (b); Inspector means the person appointed under section 14; Victorian Inspectorate means the Victorian Inspectorate established under section 6; Victorian Inspectorate Officer means— (a) the Inspector; (b) a member of staff of the Victorian Inspectorate; (c) a person engaged by the Victorian Inspectorate to provide the Inspectorate with services, information or advice. 4 Objects of Act The objects of this Act are to— (a) enhance the compliance of the IBAC and IBAC personnel with the Independent Broad-based Anti-corruption Commission Act 2011 and other laws; and (b) assist in improving the capacity of the IBAC and IBAC personnel in the performance of their duties and functions and the exercise of their powers. 5 Act binds the Crown (1) This Act binds the Crown— (a) in right of the State of Victoria; and (b) to the extent that the legislative power of the Parliament permits, in all its other capacities. s. 4 -- 5 of 38 -- Part 1—Preliminary Victorian Inspectorate Act 2011 No. 70 of 2011 4 Authorised by the Chief Parliamentary Counsel (2) To avoid doubt, the Crown is a body corporate for the purposes of this Act and the regulations. __________________ s. 5 -- 6 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 5 Authorised by the Chief Parliamentary Counsel PART 2—THE VICTORIAN INSPECTORATE 6 Establishment of the Victorian Inspectorate (1) The Victorian Inspectorate is established. (2) The Victorian Inspectorate does not represent the Crown. 7 The Victorian Inspectorate is a body corporate (1) The Victorian Inspectorate— (a) is a body corporate with perpetual succession; (b) has an official seal; (c) may sue and be sued; (d) may acquire, hold and dispose of real and personal property; (e) may do and suffer all acts and things that a body corporate may by law do and suffer. (2) All courts must take judicial notice of the official seal of the Victorian Inspectorate affixed to a document and, until the contrary is proved, must presume that it was duly affixed. (3) The official seal of the Victorian Inspectorate must— (a) be kept in such custody as the Victorian Inspectorate determines; and (b) not be used except as authorised by the Victorian Inspectorate. Note The Victorian Inspectorate is a special body under section 6(1) of the Public Administration Act 2004. 8 Constitution of the Victorian Inspectorate The Victorian Inspectorate consists of one Inspector appointed by the Governor in Council in accordance with section 14. s. 6 -- 7 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 6 Authorised by the Chief Parliamentary Counsel 9 Functions of the Victorian Inspectorate (1) The Victorian Inspectorate has the functions conferred on the Victorian Inspectorate under this Act or any other Act. (2) Without limiting the generality of subsection (1), the Victorian Inspectorate has the following functions— (a) to monitor the compliance of the IBAC and IBAC personnel with the Independent Broad-based Anti-corruption Commission Act 2011 and other laws; (b) to assess the effectiveness and appropriateness of the policies and procedures of the IBAC which relate to the legality and propriety of IBAC's activities; (c) to receive complaints under this Act in accordance with this Act; (d) to investigate and assess the conduct of the IBAC and IBAC personnel in the performance or exercise or purported performance or purported exercise of their duties, functions and powers; (e) to report on, and make recommendations as a result of, the performance of its duties and functions. 10 Powers of the Victorian Inspectorate The Victorian Inspectorate has power to do all things that are necessary or convenient to be done for or in connection with, or as incidental to, the achievement of the objects of this Act and the performance of its duties and functions. s. 9 -- 8 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 7 Authorised by the Chief Parliamentary Counsel 11 Delegation (1) The Victorian Inspectorate by instrument may delegate to the Inspector any duty, function or power of the Victorian Inspectorate under this Act or any other Act or the regulations under this Act other than this power of delegation. (2) A delegation under this section to a former judge of the Supreme Court or the County Court or a former Chief Magistrate does not affect any pension or other rights or privileges that the person has as a former judge or Chief Magistrate. 12 Victorian Inspectorate not subject to direction or control The Victorian Inspectorate is not subject to the direction or control of the Minister in respect of the performance of its duties and functions and the exercise of its powers. 13 Independence of the Inspector (1) The Inspector is an independent officer of the Parliament. (2) The functions, powers, immunities and obligations of the Inspector are as specified in this Act and other laws of the State. (3) There are no implied functions, powers, rights, immunities or obligations arising from the Inspector being an independent officer of the Parliament. (4) The powers of the Parliament to act in relation to the Inspector are as specified in or applying under this Act, the Constitution Act 1975 and other laws of the State. (5) There are no implied powers of the Parliament arising from the Inspector being an independent officer of the Parliament. s. 11 -- 9 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 8 Authorised by the Chief Parliamentary Counsel (6) Subject to this Act and other laws of the State, the Inspector has complete discretion in the performance or exercise of his or her duties, functions or powers. (7) In particular and without limiting subsection (6), the Inspector is not subject to the direction or control of the Minister in respect of the performance or exercise of his or her duties, functions or powers. 14 Appointment of the Inspector (1) Subject to section 15, the Governor in Council on the recommendation of the Minister may by instrument appoint an eligible person to be the Inspector. (2) A person is an eligible person if he or she— (a) is or has been, or is qualified for appointment as, a judge of— (i) the High Court; or (ii) the Federal Court; or (iii) the Supreme Court of Victoria or another State or a Territory; (b) is not a member of the Parliament of Victoria or of the Commonwealth or of another State or a Territory; (c) is not, and has not been, a Commissioner, Acting Commissioner, Deputy Commissioner, or Acting Deputy Commissioner, of the IBAC. (3) A person holding a judicial office immediately before being appointed to be the Inspector must cease to hold that judicial office upon being appointed to be the Inspector. s. 14 -- 10 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 9 Authorised by the Chief Parliamentary Counsel 15 Veto of proposed Inspector (1) Subject to subsection (4), the Minister must not make a recommendation under section 14 unless— (a) the Minister has submitted details of the proposed recommendation to the IBAC Committee; and (b) either— (i) within the time specified in subsection (2) the IBAC Committee has informed the Minister that it has decided not to veto the recommendation; or (ii) the time specified in subsection (2) has elapsed and the IBAC Committee has not vetoed the recommendation. (2) The IBAC Committee must make a decision under this section within 30 days after the Minister has submitted details of the proposed recommendation to the IBAC Committee. (3) The IBAC Committee— (a) may decide to veto or not to veto the proposed recommendation; (b) must notify the Minister in writing of its decision within the period specified in subsection (2). (4) Subsections (1) to (3) do not apply to the appointment of the first Inspector under this Act and the Minister may make the recommendation for the appointment of the first Inspector after the Premier has consulted in relation to the proposed recommendation with the member of the Legislative Assembly who is for the time being the Leader of Her Majesty's Opposition. s. 15 -- 11 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 10 Authorised by the Chief Parliamentary Counsel 16 Duties, functions and powers of the Inspector The Inspector— (a) constitutes the Victorian Inspectorate under section 8; (b) is responsible for undertaking the strategic leadership of the Victorian Inspectorate for the purpose of achieving the objects of this Act; (c) is the public service body Head of the Victorian Inspectorate for the purposes of section 16 of the Public Administration Act 2004. (d) has the duties, functions and powers delegated to the Inspector by the Victorian Inspectorate; (e) has any other duties, functions and powers conferred on the Inspector under this Act or any other Act. 17 Terms and conditions (1) The Inspector holds office for the period not exceeding 5 years as is specified in the instrument of appointment. (2) The Inspector is eligible to be re-appointed. (3) Subject to this section, the Inspector is appointed on a full-time or part-time basis on the terms and conditions (including remuneration and allowances) that are specified in the instrument of appointment. (4) The remuneration of the Inspector cannot be reduced during his or her term of office unless he or she consents to the reduction. (5) If a person who has been a judge of the Supreme Court or the County Court or has been the Chief Magistrate is appointed as the Inspector, the s. 16 -- 12 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 11 Authorised by the Chief Parliamentary Counsel appointment does not affect any pension or other rights or privileges the person has as a former judge or Chief Magistrate. (6) If the Inspector was immediately before his or her appointment a judge of the Supreme Court, his or her service as the Inspector shall count as service in the office of judge of the Supreme Court for the purposes of entitlement to a pension under section 83 of the Constitution Act 1975. (7) If the Inspector was immediately before his or her appointment a judge of the County Court, his or her service as the Inspector shall count as service in the office of judge of the County Court for the purposes of entitlement to a pension under section 14 of the County Court Act 1958. (8) If the Inspector was immediately before his or her appointment the Chief Magistrate, his or her service as the Inspector shall count as service in the office of Chief Magistrate for the purposes of entitlement to a pension under section 10A of the Magistrates' Court Act 1989. (9) If the Inspector was immediately before his or her appointment an officer within the meaning of the State Superannuation Act 1988, he or she continues to be such an officer during his or her term of office as the Inspector. (10) The Inspector must not engage in any employment, business or community activity outside the Victorian Inspectorate that may create an actual or perceived conflict of interest with his or her role as the Inspector. (11) Without limiting the generality of subsection (10), the Inspector must not enter into a contract by which he or she is to provide services or provide services under any contract if the provision of s. 17 -- 13 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 12 Authorised by the Chief Parliamentary Counsel services may create an actual or perceived conflict of interest with his or her role as the Inspector. (12) In addition to subsection (10), the Inspector must not, without the approval of the Governor in Council— (a) apply for, or hold, a licence or permit to conduct any trade, business or profession; or Note This includes a legal practising certificate under the Legal Profession Act 2004. (b) conduct any trade, business or profession; or (c) accept any other employment. (13) The Public Administration Act 2004 does not apply to the Inspector in respect of the office of Inspector as such except for the purposes of section 16 of that Act. 18 Vacancy and resignation (1) The Inspector ceases to hold office if he or she— (a) resigns by writing delivered to the Governor; or (b) becomes an insolvent under administration; or (c) is convicted, or found guilty, of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or (d) nominates for election for the Parliament of Victoria or of the Commonwealth or of another State or a Territory; or (e) is appointed to a judicial office; or (f) is appointed as Commissioner, Acting Commissioner, Deputy Commissioner or Acting Deputy Commissioner, of the IBAC; or s. 18 -- 14 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 13 Authorised by the Chief Parliamentary Counsel (g) becomes a represented person within the meaning of the Guardianship and Administration Act 1986. (2) The Inspector ceases to hold office if he or she is removed from office under section 19. 19 Suspension and removal from office (1) The Governor in Council may suspend the Inspector from office on any of the following grounds— (a) misconduct; (b) neglect of duty; (c) inability to perform the duties of the office; (d) any other ground on which the Governor in Council is satisfied that the Inspector is unfit to hold office. (2) The Minister must cause a full statement of the grounds of suspension to be presented to each House of the Parliament on or before the 7th sitting day of that House of the Parliament after the suspension. (3) The Governor in Council must remove the Inspector from office if each House of the Parliament on or before the 7th sitting day of that House of the Parliament after the statement of the grounds of suspension is presented to it, declares by resolution that the Inspector ought to be removed from office. (4) The Governor in Council must remove the suspension and restore the Inspector to office unless each House of the Parliament makes a declaration of the kind specified in subsection (3) within the time specified in that subsection. (5) The Inspector can only be removed from office in accordance with this section. s. 19 -- 15 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 14 Authorised by the Chief Parliamentary Counsel 20 Declaration of inability to act The Inspector may declare himself or herself unable to act in respect of a particular matter by reason of an actual or perceived conflict of interest. 21 Acting appointment (1) The Governor in Council may on the recommendation of the Minister appoint a person to act in the office of Inspector during— (a) any vacancy in the office of the Inspector; or (b) any period when the person holding the office— (i) is absent from duty; or (ii) is for any other reason unable to perform the duties of the office. (2) Subject to this section, a person appointed under subsection (1) can be appointed for a period not exceeding 6 months. (3) An acting appointment or acting appointments in respect of each vacancy referred to in subsection (1)(a) or each period referred to in subsection (1)(b) must not exceed a total of 6 months in duration. (4) A vacancy in the office of the Inspector must be filled by a person appointed in accordance with section 14 within the period of 6 months after the vacancy occurred. (5) The Governor in Council may at any time remove a person acting in the office of the Inspector from the office. s. 20 -- 16 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 15 Authorised by the Chief Parliamentary Counsel (6) While a person is acting in the office of Inspector the person— (a) has and may exercise all the powers, and must perform all the functions and duties, of that office; and (b) is entitled to be paid the remuneration and allowances which the Inspector would have been entitled to. 22 Oath or affirmation of office (1) Before a person appointed to be the Inspector or to act in the office of the Inspector assumes the office, he or she must have taken an oath or made an affirmation that he or she— (a) will faithfully and impartially perform the duties and functions and exercise the powers of the office; and (b) will not disclose, except as authorised or required by law, any information received in the performance of the duties and functions or the exercise of the powers of the office. (2) The oath or affirmation is to be administered by the Speaker of the Legislative Assembly. 23 Delegation (1) The Inspector by instrument may delegate to a member of staff employed or engaged under section 24 or a person engaged as a consultant under section 25 any duty, function or power of the Inspector under this Act or any other Act other than, unless subsection (2) applies, the following— (a) this power of delegation; or (b) the duty or power to make a report under section 36 or 38. s. 22 -- 17 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 16 Authorised by the Chief Parliamentary Counsel (2) If the Inspector makes a declaration under section 20 in respect of any matter, the Inspector may delegate under subsection (1) to any Victorian Inspectorate Officer who would be qualified under section 14 to be appointed as the Inspector any duty, function or power of the Inspector under this Act or any other Act which is necessary to enable that matter to be dealt with. (3) A delegation under this section to a former judge of the Supreme Court or the County Court or a former Chief Magistrate does not affect any pension or other rights or privileges that the person has as a former judge or Chief Magistrate. 24 Staff (1) Any employees that are necessary for the purposes of this Act may be employed under Part 3 of the Public Administration Act 2004. (2) The Victorian Inspectorate may enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body. 25 Consultants (1) The Victorian Inspectorate may engage persons with suitable qualifications and experience as consultants. (2) Without limiting the generality of subsection (1), the Victorian Inspectorate may appoint an Australian legal practitioner to assist the Victorian Inspectorate as counsel, either generally or in reference to a particular matter. (3) An engagement under this section may be on any terms and conditions the Victorian Inspectorate considers appropriate. s. 24 -- 18 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 17 Authorised by the Chief Parliamentary Counsel 26 Oath or affirmation by staff and consultants (1) Before commencing employment with the Victorian Inspectorate, a person referred to in section 24 must take an oath or make an affirmation that he or she— (a) will faithfully and impartially perform their duties and functions and exercise their powers; and (b) will not disclose, except as authorised or required by law, any information received in the performance of their duties and functions or the exercise of their powers. (2) The Victorian Inspectorate may require a person engaged under section 24(2) or 25 or an officer, sub-contractor, agent or employee of a person engaged under section 25 to take an oath or make an affirmation that he or she— (a) will faithfully and impartially perform their duties and functions and exercise their powers in the course of the engagement; and (b) will not disclose, except as authorised or required by law, any information received in the performance of their duties and functions or the exercise of their powers in the course of the engagement. (3) The oath or affirmation is to be administered by the Inspector. 27 Obligation on persons employed or engaged under section 24 A person employed or engaged under section 24 must not— (a) publicly comment upon the administration of this Act or the performance of functions or the exercise of powers by the Victorian Inspectorate; s. 26 -- 19 of 38 -- Part 2—The Victorian Inspectorate Victorian Inspectorate Act 2011 No. 70 of 2011 18 Authorised by the Chief Parliamentary Counsel (b) make use of, or disclose, any information obtained in the course of their employment or engagement under section 24, except in the course of the performance of their functions or the exercise of their powers in accordance with the law. 28 Obligation to avoid actual or perceived conflicts of interest A Victorian Inspectorate Officer must ensure that any actual or perceived conflicts of interest are avoided in the performance of their duties and functions and in the exercise of their powers as a Victorian Inspectorate Officer. __________________ s. 28 -- 20 of 38 -- Part 3—Investigations Victorian Inspectorate Act 2011 No. 70 of 2011 19 Authorised by the Chief Parliamentary Counsel PART 3—INVESTIGATIONS 29 Complaints (1) A person may make a complaint to the Victorian Inspectorate about the conduct of the IBAC or IBAC personnel in respect of the— (a) performance or exercise; or (b) failure to perform or exercise; or (c) purported performance or purported exercise— by the IBAC or IBAC personnel of the duties, functions or powers conferred on the IBAC or IBAC personnel in relation to any matter. (2) Without limiting the generality of subsection (1), a complaint may be made on the basis that specified conduct of the IBAC or IBAC personnel was— (a) contrary to law; or (b) unreasonable, unjust, oppressive or improperly discriminatory; or (c) based on improper motives; or (d) an abuse of power; or (e) otherwise improper. 30 Investigation of complaint (1) The Victorian Inspectorate may investigate a complaint made under section 29 in order to assess the conduct in respect of which the complaint is made or any other conduct relevant to the matter. (2) If the Victorian Inspectorate decides to investigate a complaint, the Victorian Inspectorate must notify the IBAC in writing unless the Victorian Inspectorate reasonably believes that giving notice s. 29 -- 21 of 38 -- Part 3—Investigations Victorian Inspectorate Act 2011 No. 70 of 2011 20 Authorised by the Chief Parliamentary Counsel of the investigation could prejudice the investigation of the complaint. 31 Own motion investigation The Victorian Inspectorate may on its own motion in the course of performing its functions investigate the conduct of the IBAC or IBAC personnel in respect of the— (a) performance or exercise; or (b) failure to perform or exercise; or (c) purported performance or purported exercise— by the IBAC or IBAC personnel of the duties, functions or powers conferred on the IBAC or IBAC personnel in relation to any matter. 32 Conduct of investigation (1) For the purposes of conducting an investigation, the Victorian Inspectorate— (a) may investigate any aspect of the IBAC's operations or any conduct of IBAC personnel; (b) has full and free access to all the records of the IBAC; (c) may require the IBAC or any IBAC personnel to give the Victorian Inspectorate any information in its or that person's possession which the Victorian Inspectorate considers is relevant to the investigation; (d) may require any IBAC personnel to attend before the Victorian Inspectorate to answer questions or to produce documents or other things relating to IBAC's operations or the conduct of IBAC personnel. s. 31 -- 22 of 38 -- Part 3—Investigations Victorian Inspectorate Act 2011 No. 70 of 2011 21 Authorised by the Chief Parliamentary Counsel (2) The Victorian Inspectorate may commence or continue an investigation despite the fact that any proceedings are on foot, or are instituted, in any court or tribunal that relate to or are otherwise connected with the subject-matter of the investigation. (3) If the Victorian Inspectorate is or becomes aware that proceedings referred to in subsection (2) are on foot or have been instituted, the Victorian Inspectorate must take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings. (4) The Victorian Inspectorate may adjourn or suspend the conduct of an investigation if the Victorian Inspectorate considers that it is in the interests of justice to do so. (5) If the Victorian Inspectorate considers that it is necessary to do so, the Victorian Inspectorate may conduct an investigation even though the IBAC is investigating a related matter. 33 Requirement to provide assistance The IBAC must— (a) give any assistance; and (b) ensure that IBAC personnel give any assistance— to the Victorian Inspectorate which the Victorian Inspectorate reasonably requires to enable the Victorian Inspectorate to conduct any investigation under this Part. __________________ s. 33 -- 23 of 38 -- Part 4—Recommendations and Reports Victorian Inspectorate Act 2011 No. 70 of 2011 22 Authorised by the Chief Parliamentary Counsel PART 4—RECOMMENDATIONS AND REPORTS 34 Recommendation to IBAC (1) The Victorian Inspectorate may at any time make recommendations to the IBAC in relation to any action that the Victorian Inspectorate considers should be taken. (2) Without limiting subsection (1), the Victorian Inspectorate may recommend taking action— (a) to prevent specified conduct from continuing or occurring in the future; (b) to remedy any harm or loss arising from the conduct of the IBAC or any IBAC personnel. (3) A recommendation to IBAC which is not contained in a report must be made in private. (4) Subsection (3) does not limit the power of the Victorian Inspectorate to make a public recommendation if the Victorian Inspectorate considers that the IBAC has failed to take appropriate action in relation to the recommendation. (5) The Victorian Inspectorate may require the IBAC to give a report to the Victorian Inspectorate, within a reasonable specified time, stating— (a) whether or not the IBAC has taken, or intends to take, action recommended by the Victorian Inspectorate; and (b) if the IBAC has not taken the recommended action, or does not intend to take the recommended action, the reason for not taking or intending to take the action. (6) The IBAC must comply with a requirement of the Victorian Inspectorate under subsection (5). s. 34 -- 24 of 38 -- Part 4—Recommendations and Reports Victorian Inspectorate Act 2011 No. 70 of 2011 23 Authorised by the Chief Parliamentary Counsel 35 Recommendation for further action (1) The Victorian Inspectorate may at any time recommend in private to the IBAC the taking of disciplinary action against any IBAC personnel other than the Commissioner. (2) Subsection (1) does not limit the power of the Victorian Inspectorate to make a public recommendation if the Victorian Inspectorate considers that the IBAC has failed to take appropriate action in relation to the recommendation. (3) If the Victorian Inspectorate is satisfied that any conduct of any IBAC personnel which has been the subject of a complaint, investigation or other finding should be the subject of any further investigatory or enforcement action, the Victorian Inspectorate may make a recommendation to that effect to any or all of the following— (a) Victoria Police; (b) the Director of Public Prosecutions; (c) the Australian Federal Police; (d) the Auditor-General. 36 Special reports (1) The Victorian Inspectorate may at any time cause a report to be transmitted to each House of the Parliament on any matter relating to the performance of its duties and functions. (2) If the Victorian Inspectorate intends to include in a report under this section a comment or opinion which is adverse to the IBAC or any IBAC personnel, the Victorian Inspectorate must first provide the IBAC or the relevant IBAC personnel a reasonable opportunity to respond to the adverse material and fairly set out the defence in its report. s. 35 -- 25 of 38 -- Part 4—Recommendations and Reports Victorian Inspectorate Act 2011 No. 70 of 2011 24 Authorised by the Chief Parliamentary Counsel (3) If the Victorian Inspectorate is aware of a criminal investigation or criminal proceedings in relation to a matter or person to be included in a report under this section the Victorian Inspectorate must not include in the report any information which would prejudice the criminal investigation or criminal proceedings. (4) If the Victorian Inspectorate is aware of an IBAC investigation in relation to a matter or person to be included in a report under this section the Victorian Inspectorate must not include in the report any information which would prejudice the IBAC investigation. (5) The Victorian Inspectorate must not include in a report under this section a statement as to— (a) a finding or opinion that a specified person is guilty of or has committed, is committing or is about to commit, any criminal offence or disciplinary offence; or (b) a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence. (6) The clerk of each House of the Parliament must cause the report to be laid before the House of the Parliament on the day on which it is received or on the next sitting day of that House of the Parliament. (7) If the Victorian Inspectorate proposes to transmit a report to the Parliament on a day on which neither House of the Parliament is actually sitting, the Victorian Inspectorate must— (a) give one business day's notice of intention to do so to the clerk of each House of the Parliament; and s. 36 -- 26 of 38 -- Part 4—Recommendations and Reports Victorian Inspectorate Act 2011 No. 70 of 2011 25 Authorised by the Chief Parliamentary Counsel (b) give the report to the clerk of each House of the Parliament on the day indicated in the notice; and (c) publish the report on the Victorian Inspectorate's Internet website as soon as practicable after giving it to the clerks. (8) The clerk of each House of the Parliament must— (a) notify each member of the House of the Parliament of the receipt of the notice under subsection (7)(a) on the same day that the clerk receives that notice; and (b) give a copy of the report to each member of the House of the Parliament as soon as practicable after the report is received under subsection (7)(b); and (c) cause the report to be laid before the House of the Parliament on the next sitting day of the House of the Parliament. (9) A report that is given to the clerks under subsection (7)(b) is taken to have been published by order, or under the authority, of the Houses of the Parliament. (10) The publication of a report by the Victorian Inspectorate under subsection (7)(c) is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and any other enactment or rule of law relating to the publication of the proceedings of the Parliament apply to and in relation to the publication of the report as if it were a document to which those sections applied and had been published by the Government Printer under the authority of the Parliament. s. 36 -- 27 of 38 -- Part 4—Recommendations and Reports Victorian Inspectorate Act 2011 No. 70 of 2011 26 Authorised by the Chief Parliamentary Counsel 37 Outcome of investigation After conducting an investigation, the Victorian Inspectorate may— (a) make a recommendation to the IBAC in accordance with section 34; (b) make a recommendation to the IBAC in accordance with section 35; (c) make a recommendation to Victoria Police in accordance with section 35; (d) make a recommendation to the Director of Public Prosecutions in accordance with section 35; (e) make a recommendation to the Australian Federal Police in accordance with section 35; (f) make a recommendation to the Auditor- General in accordance with section 35; (g) transmit a special report under section 36; (h) do any combination or all of the matters referred to in paragraphs (a) to (g); (g) determine to make no finding or take no action following the investigation. 38 Matters to be included in annual report (1) The Victorian Inspectorate in its annual report for a financial year under Part 7 of the Financial Management Act 1994 must include— (a) the prescribed information relating to the performance of its duties and functions; (b) a description of its activities in relation to the performance of its duties and functions; (c) details of the IBAC's compliance with this Act and the Independent Broad-based Anti-corruption Commission Act 2011; s. 37 -- 28 of 38 -- Part 4—Recommendations and Reports Victorian Inspectorate Act 2011 No. 70 of 2011 27 Authorised by the Chief Parliamentary Counsel (d) details of the comprehensiveness and adequacy of reports made to the Victorian Inspectorate by the IBAC under this Act; (e) details of the extent to which action recommended by the Victorian Inspectorate to be taken by the IBAC has been taken. (2) If the Victorian Inspectorate intends to include in its annual report a comment or opinion which is adverse to the IBAC or any IBAC personnel, the Victorian Inspectorate must first provide the IBAC or the relevant IBAC personnel a reasonable opportunity to respond to the adverse material and fairly set out the defence in its annual report. (3) If the Victorian Inspectorate is aware of a criminal investigation or criminal proceedings in relation to a matter or person to be included in its annual report the Victorian Inspectorate must not include in the annual report any information which would prejudice the criminal investigation or criminal proceedings. (4) If the Victorian Inspectorate is aware of an IBAC investigation in relation to a matter or person to be included in its annual report the Victorian Inspectorate must not include in the annual report any information which would prejudice the IBAC investigation. (5) The Victorian Inspectorate must not include in its annual report a statement as to— (a) a finding or opinion that a specified person is guilty of or has committed, is committing or is about to commit, any criminal offence or disciplinary offence; or s. 38 -- 29 of 38 -- Part 4—Recommendations and Reports Victorian Inspectorate Act 2011 No. 70 of 2011 28 Authorised by the Chief Parliamentary Counsel (b) a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence. __________________ s. 38 -- 30 of 38 -- Part 5—General Victorian Inspectorate Act 2011 No. 70 of 2011 29 Authorised by the Chief Parliamentary Counsel PART 5—GENERAL Division 1—Miscellaneous 39 Immunity (1) The Victorian Inspectorate or a Victorian Inspectorate Officer is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith— (a) in the performance of a function or the exercise of a power under this Act; or (b) in the reasonable belief that the act or omission was in the course of the performance of a function or the exercise of a power under this Act. (2) Any liability resulting from an act or omission that, but for subsection (1), would attach to the Victorian Inspectorate or a Victorian Inspectorate Officer attaches instead to the State. 40 Exemption from Freedom of Information Act 1982 (1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of a relevant person or body to the extent to which the document discloses information that relates to— (a) a complaint made under this Act; or (b) an investigation conducted under this Act; or (c) a recommendation made by the Victorian Inspectorate under this Act; or (d) a report, including a progress report, on an investigation conducted under this Act. s. 39 -- 31 of 38 -- Part 5—General Victorian Inspectorate Act 2011 No. 70 of 2011 30 Authorised by the Chief Parliamentary Counsel (2) In this section— document has the same meaning as in the Freedom of Information Act 1982; relevant person or body means— (a) the Victorian Inspectorate; (b) a Victorian Inspectorate Officer; (c) the IBAC; (d) Victoria Police; (e) the Director of Public Prosecutions; (f) the Australian Federal Police; (g) the Auditor-General. 41 Regulations (1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) The regulations— (a) may be of general or specially limited application; (b) may differ according to differences in time, place or circumstance; (c) may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person or class of persons; (d) may provide in a specified case or class of case for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to the extent specified; s. 41 -- 32 of 38 -- Part 5—General Victorian Inspectorate Act 2011 No. 70 of 2011 31 Authorised by the Chief Parliamentary Counsel (e) may confer powers or impose duties in connection with the regulations on any specified person or specified class of persons; (f) may apply, adopt or incorporate with or without modification, any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person— (i) wholly or partially or as amended by the regulations; or (ii) as formulated, issued, prescribed or published at the time the regulations are made or at any time before then; or (iii) as formulated, issued, prescribed or published from time to time; (g) may impose a penalty not exceeding 20 penalty units for a contravention of the regulations. 42 Regulations—specific matters Without limiting the generality of section 41, the regulations may prescribe— (a) security checks for Victorian Inspectorate Officers; (b) requirements relating to the issue of identity cards to Victorian Inspectorate Officers and the use of the identity cards; (c) requirements for the disclosure and reporting of pecuniary interests by Victorian Inspectorate Officers, including providing for the manner of disclosure (whether by statutory declaration or otherwise) and the compilation, maintenance and publication of registers of pecuniary interests; s. 42 -- 33 of 38 -- Part 5—General Victorian Inspectorate Act 2011 No. 70 of 2011 32 Authorised by the Chief Parliamentary Counsel (d) the information to be included by the Victorian Inspectorate in its annual report. Division 2—Amendments to other Acts 43 Amendment of the Independent Broad-based Anti- corruption Commission Act 2011 After section 5 of the Independent Broad-based Anti-corruption Commission Act 2011 insert— "5A Application of Act This Act does not apply to the Victorian Inspectorate or any Victorian Inspectorate Officer within the meaning of the Victorian Inspectorate Act 2011.". 44 Amendment of the Parliamentary Committees Act 2003 (1) In section 3 of the Parliamentary Committees Act 2003 insert the following definitions— "Inspector has the same meaning as it has in section 3 of the Victorian Inspectorate Act 2011; Victorian Inspectorate means the Victorian Inspectorate established under the Victorian Inspectorate Act 2011;". (2) In section 12A of the Parliamentary Committees Act 2003— (a) for "2011." substitute "2011;"; (b) after paragraph (e) insert— "(f) to monitor and review the performance of the duties and functions of the Victorian Inspectorate; (g) to report to both Houses of the Parliament on any matter connected with the performance of the duties and s. 43 -- 34 of 38 -- Part 5—General Victorian Inspectorate Act 2011 No. 70 of 2011 33 Authorised by the Chief Parliamentary Counsel functions of the Victorian Inspectorate that require the attention of the Parliament; (h) to examine any reports made by the Victorian Inspectorate; (i) to consider any proposed appointment of an Inspector and to exercise a power of veto in accordance with the Victorian Inspectorate Act 2011.". (3) At the end of section 12A of the Parliamentary Committees Act 2003 insert— "(2) Despite anything to the contrary in subsection (1), the IBAC Committee cannot— (a) investigate a matter relating to particular conduct the subject of any report made by the Victorian Inspectorate; (b) review any decision to investigate, not to investigate, or to discontinue the investigation of a particular complaint made to the Victorian Inspectorate in accordance with the Victorian Inspectorate Act 2011; (c) review any findings, recommendations, determinations or other decisions of the Victorian Inspectorate in relation to a particular complaint made to, or investigation conducted by, the Victorian Inspectorate in accordance with the Victorian Inspectorate Act 2011; (d) disclose any information relating to the performance of a function or exercise of a power by the Victorian Inspectorate which may— s. 44 -- 35 of 38 -- Part 5—General Victorian Inspectorate Act 2011 No. 70 of 2011 34 Authorised by the Chief Parliamentary Counsel (i) prejudice any criminal investigation or criminal proceedings; or (ii) prejudice an investigation being conducted by the IBAC; or (iii) contravene any secrecy or confidentiality provision in any relevant Act.". 45 Amendment of the Juries Act 2000 In Schedule 2 to the Juries Act 2000, after clause 1(ld) insert— "(le) the Inspector of the Victorian Inspectorate within the meaning of the Victorian Inspectorate Act 2011;". (lf) any other Victorian Inspectorate Officer within the meaning of the Victorian Inspectorate Act 2011;". 46 Amendment of the Ombudsman Act 1973 After section 13(3)(db) of the Ombudsman Act 1973 insert— "(dc) by the Inspector within the meaning of the Victorian Inspectorate Act 2011; (dd) by any other Victorian Inspectorate Officer within the meaning of the Victorian Inspectorate Act 2011;". 47 Amendment of Public Administration Act 2004 (1) After section 6(1)(j) of the Public Administration Act 2004 insert— "(ja) the Victorian Inspectorate within the meaning of the Victorian Inspectorate Act 2011;". s. 45 -- 36 of 38 -- Part 5—General Victorian Inspectorate Act 2011 No. 70 of 2011 35 Authorised by the Chief Parliamentary Counsel (2) After section 16(1)(f) of the Public Administration Act 2004 insert— "(fa) the Inspector in relation to the Victorian Inspectorate within the meaning of the Victorian Inspectorate Act 2011;". (3) In section 52(1)(c) of the Public Administration Act 2004 after "2011" insert "or the Victorian Inspectorate within the meaning of the Victorian Inspectorate Act 2011". 48 Amendment of the Whistleblowers Protection Act 2001 (1) In section 4(1) of the Whistleblowers Protection Act 2001— (a) for "2011." substitute "2011;"; (b) after paragraph (c) insert— "(d) the Victorian Inspectorate within the meaning of the Victorian Inspectorate Act 2011.". (2) After section 4(2)(ic) of the Whistleblowers Protection Act 2001 insert— "(id) a Victorian Inspectorate Officer within the meaning of the Victorian Inspectorate Act 2011;". 49 Repeal of amending provisions This Division is repealed on 1 July 2013. Note The repeal of these provisions does not affect the continuing operation of the amendments made by those provisions (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 48 -- 37 of 38 -- Victorian Inspectorate Act 2011 No. 70 of 2011 36 Authorised by the Chief Parliamentary Counsel ENDNOTES † Minister's second reading speech— Legislative Assembly: 27 October 2011 Legislative Council: 10 November 2011 The long title for the Bill for this Act was "A Bill for an Act to establish the Victorian Inspectorate to provide oversight of the Independent Broad- based Anti-corruption Commission, to amend certain Acts and for other purposes." Endnotes -- 38 of 38 --