Major Crime Legislation Amendment Act 2009

i Major Crime Legislation Amendment Act 2009 No. 3 of 2009 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENTS TO THE MAJOR CRIME (INVESTIGATIVE POWERS) ACT 2004 3 3 Definitions 3 4 New section 12 substituted and sections 12A, 12B and 12C inserted 3 12 Revocation of coercive powers order 3 12A Procedure for revocation hearing 4 12B Appointment of special counsel 7 12C Actions following revocation of coercive powers order 8 5 Chief Examiner must act on revocation 8 6 Confidentiality of witness summons 8 7 Police assistance to Chief Examiner 10 8 Conduct of examination 10 9 Legal professional privilege 10 10 Restriction on publication of evidence 12 11 Warrant for arrest of witness 12 12 Delegation 12 13 Secrecy 13 PART 3—AMENDMENTS TO OTHER ACTS AND REPEAL 14 14 Amendment to Casino Control Act 1991 14 74A Procedure on application for review 14 74B Appointment of special counsel 17 15 Amendment to Racing Act 1958 18 35E Procedure on application for review 18 35F Appointment of special counsel 21 -- 1 of 25 -- Section Page ii 16 Amendment to Surveillance Devices Act 1999 22 17 Repeal of amending Act 22 ═══════════════ ENDNOTES 23 -- 2 of 25 -- 1 Major Crime Legislation Amendment Act 2009 † No. 3 of 2009 [Assented to 10 February 2009] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The main purposes of this Act are— (a) to amend the Major Crime (Investigative Powers) Act 2004— (i) to make it clear that an indictable offence that has a purpose of sexual gratification involving a child is an organised crime offence; and Victoria -- 3 of 25 -- Part 1—Preliminary Major Crime Legislation Amendment Act 2009 No. 3 of 2009 2 (ii) to prescribe procedures for the revocation of coercive powers orders; and (iii) to improve the operation of confidentiality provisions; and (iv) to improve generally the operation of that Act; and (b) to amend the Casino Control Act 1991 and the Racing Act 1958 in relation to the review of decisions making exclusion orders; and (c) to amend the Surveillance Devices Act 1999 in relation to assistance to law enforcement officers. 2 Commencement (1) This Part and Part 3 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), Part 2 commences on a day or days to be proclaimed. (3) If a provision of Part 2 does not come into operation before 1 February 2010, it comes into operation on that day. __________________ s. 2 -- 4 of 25 -- Part 2—Amendments to the Major Crime (Investigative Powers) Act 2004 Major Crime Legislation Amendment Act 2009 No. 3 of 2009 3 PART 2—AMENDMENTS TO THE MAJOR CRIME (INVESTIGATIVE POWERS) ACT 2004 3 Definitions (1) In section 3 of the Major Crime (Investigative Powers) Act 2004 insert the following definition— "member of police personnel has the same meaning that it has in the Police Regulation Act 1958 and includes a person engaged by the Chief Commissioner to provide services;". (2) In section 3 of the Major Crime (Investigative Powers) Act 2004, in the definition of organised crime offence, in paragraph (d), after "influence" insert "or of sexual gratification where the victim is a child". (3) In section 3 of the Major Crime (Investigative Powers) Act 2004 insert the following definition— "proper officer means— (a) in the case of the Supreme Court—the prothonotary; (b) in the case of the County Court—a registrar of that Court;". 4 New section 12 substituted and sections 12A, 12B and 12C inserted For section 12 of the Major Crime (Investigative Powers) Act 2004 substitute— "12 Revocation of coercive powers order (1) The Supreme Court may revoke a coercive powers order at any time before the expiry of the order. See: Act No. 79/2004. Reprint No. 1 as at 16 February 2006 and amending Act Nos 29/2006, 48/2006, 28/2007, 4/2008 and 60/2008. LawToday: www. legislation. vic.gov.au s. 3 -- 5 of 25 -- Part 2—Amendments to the Major Crime (Investigative Powers) Act 2004 Major Crime Legislation Amendment Act 2009 No. 3 of 2009 4 (2) The Supreme Court must give notice of the application for the revocation of a coercive powers order to the Chief Examiner and the Chief Commissioner setting out the time and date of the hearing of the application. 12A Procedure for revocation hearing (1) If the Chief Commissioner objects to the disclosure or production of protected information at a hearing for the revocation of a coercive powers order, the Chief Commissioner may apply before the hearing to the Supreme Court to determine the matter of the revocation— (a) at a hearing at which evidence given by a member of the police force is given on the basis of confidential affidavit that is not disclosed to one or more of the parties or any representative of those parties; or (b) at a hearing held in closed court in which the Chief Commissioner and each party to the proceeding has a right to make submissions; or (c) at a hearing held without notice to, and without the presence of, one or more of the parties or any representative of those parties; or (d) by any combination of the methods set out in paragraphs (a), (b) and (c). (2) If the Supreme Court is satisfied that it is not in the public interest to hear and determine the matter by the method specified by the Chief Commissioner in the application under subsection (1), the Court may decide to hear and determine the matter by any other method set out in subsection (1). s. 4 -- 6 of 25 -- Part 2—Amendments to the Major Crime (Investigative Powers) Act 2004 Major Crime Legislation Amendment Act 2009 No. 3 of 2009 5 (3) In deciding which method to hear and determine the matter of the revocation of a coercive powers order, the Supreme Court must take into account— (a) the public interest in protecting the confidentiality of any intelligence information or any document or thing provided to the Court for the purposes of obtaining the coercive powers order or obtained or to be obtained under the coercive powers order; and (b) the extent to which the method of hearing and determining the matter may disclose any intelligence information, or document or thing the disclosure of which— (i) reveals the identity of the member of the police force who applied for the coercive powers order or puts that member's safety at risk; or (ii) reveals the identity of a person who has been called, or who has appeared, as a witness in an examination conducted under the coercive powers order, or puts that person's safety at risk; or (iii) reveals the identity of a person who has provided a member of the police force with information relating to an investigation, or puts that person's safety at risk; or (iv) reveals the identity of a person whose name appears in any evidence given or information provided to a member of the police force relating to an s. 4 -- 7 of 25 -- Part 2—Amendments to the Major Crime (Investigative Powers) Act 2004 Major Crime Legislation Amendment Act 2009 No. 3 of 2009 6 investigation, or puts that person's safety at risk; or (v) reveals the identity of a person who is or has been the subject of an investigation by a member of the police force, or puts that person's safety at risk; or (vi) places at risk an ongoing investigation by a member of the police force; or (vii) risks the disclosure of any investigative method used by members of the police force; or (viii) is otherwise not in the public interest. (4) If the Supreme Court decides to hear and determine the matter of the revocation by the method set out in subsection (1)(a), the Court may require the member of the police force to provide the Court with any further confidential affidavits the Court requires to determine the matter. (5) In this section protected information means any intelligence information, document or thing the production or inspection of which— (a) is likely to reveal any matter referred to in subsection (3)(b)(i) to (v); or (b) is likely to place at risk an ongoing investigation by a member of the police force; or (c) is likely to risk the disclosure of any investigative method used by members of the police force; or (d) is otherwise not in the public interest. s. 4 -- 8 of 25 -- Part 2—Amendments to the Major Crime (Investigative Powers) Act 2004 Major Crime Legislation Amendment Act 2009 No. 3 of 2009 7 12B Appointment of special counsel (1) If the Supreme Court decides to hear and determine an application for the revocation of a coercive powers order at a hearing referred to in section 12A(1)(c), the Court may appoint a special counsel to represent the interests of a party to the proceeding at the hearing. (2) A special counsel must be a barrister within the meaning of the Legal Profession Act 2004 who, in the opinion of the Supreme Court, has the appropriate skills and ability to represent the interests of the party at the hearing. (3) At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the application, the special counsel may communicate with the party whose interests he or she is representing, or any representative of that party, for the purpose of obtaining information from the party or representative in relation to the proceeding. (4) At any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the application, the special counsel— (a) must not take instructions from the party whose interests he or she is representing, or from any representative of that party; and (b) may communicate to that party or a representative of that party any order made by the Supreme Court at or in relation to the hearing; and s. 4 -- 9 of 25 -- Part 2—Amendments to the Major Crime (Investigative Powers) Act 2004 Major Crime Legislation Amendment Act 2009 No. 3 of 2009 8 (c) must not communicate any other information in relation to the hearing to that party or a representative of that party without leave of the Supreme Court. 12C Actions following revocation of coercive powers order If the Supreme Court revokes a coercive powers order or a notice under section 11(1) is filed, the Court must— (a) cause notice of the revocation to be given to the Chief Examiner and the Chief Commissioner immediately; and (b) revoke any witness summons issued under section 14 in reliance on the coercive powers order if the witness summons has not been served or the date for attendance has not passed; and (c) give notice in writing of the revocation of each witness summons to the person to whom the summons was directed.". 5 Chief Examiner must act on revocation In section 13 of the Major Crime (Investigative Powers) Act 2004 for "section 12(2)" substitute "section 12C". 6 Confidentiality of witness summons After section 20(8) of the Major Crime (Investigative Powers) Act 2004 insert— "(8A) If the Supreme Court or the Chief Examiner is satisfied that the circumstances referred to in subsection (2) or (3) that led to the giving of a notice under subsection (1) no longer apply, the Court or the Chief Examiner, as the case may be, must give written notice of s. 5 -- 10 of 25 -- Part 2—Amendments to the Major Crime (Investigative Powers) Act 2004 Major Crime Legislation Amendment Act 2009 No. 3 of 2009 9 that fact to the person to whom the notice under subsection (1) was given. (8B) On the giving of the notice under subsection (8A), the notice under subsection (1) ceases to have effect. (8C) A notice under subsection (1) ceases to have effect at the end of the period of 5 years after the notice is given (or that period as extended under subsection (8E)) unless the notice has ceased to have effect earlier. (8D) Subsection (8C) applies to a notice given on or after, or which is in effect on, the commencement of section 6 of the Major Crime Legislation Amendment Act 2009. (8E) If the Chief Examiner or the Chief Commissioner is satisfied that an extension to the 5-year period referred to in subsection (8C) is necessary to protect a matter specified in subsection (8F)(a), (b), (c) or (d), the Chief Examiner or the Chief Commissioner must apply to the Supreme Court for an extension of that period. (8F) The Supreme Court, on the application of the Chief Examiner or the Chief Commissioner under subsection (8E), may extend the 5-year period referred to in subsection (8C), if the Court is satisfied that an extension is necessary to protect— (a) an investigation that is continuing (whether or not the investigation is, or is related to, the investigation in relation to which the witness summons was issued); or (b) any proceeding that has been commenced but not finally determined; or s. 6 -- 11 of 25 -- Part 2—Amendments to the Major Crime (Investigative Powers) Act 2004 Major Crime Legislation Amendment Act 2009 No. 3 of 2009 10 (c) the safety or reputation of a person; or (d) the fair trial of a person who has or may be charged with an offence.". 7 Police assistance to Chief Examiner In section 28 of the Major Crime (Investigative Powers) Act 2004 for "a member of the police force" substitute "a member of police personnel". 8 Conduct of examination After section 30(2) of the Major Crime (Investigative Powers) Act 2004 insert— "(3) In subsection (2), police station means any police premises where a counter inquiry service for the public is provided.". 9 Legal professional privilege (1) In the Major Crime (Investigative Powers) Act 2004— (a) in section 41(3)(b) for "Magistrates' Court" substitute "County Court or the Supreme Court"; (b) in section 41(6) for "a registrar of the Magistrates' Court" substitute "the proper officer of the County Court or the Supreme Court"; (c) in section 41(7) for "Magistrates' Court" substitute "County Court or the Supreme Court"; (d) in the heading to section 42 for "Magistrates' Court" substitute "County Court or Supreme Court"; (e) in section 42(1) for "a registrar of the Magistrates' Court" substitute "the proper officer of the County Court or the Supreme Court"; s. 7 -- 12 of 25 -- Part 2—Amendments to the Major Crime (Investigative Powers) Act 2004 Major Crime Legislation Amendment Act 2009 No. 3 of 2009 11 (f) in section 42(1) for "the Magistrates' Court" (where secondly occurring) substitute "that Court"; (g) in sections 42(2), 42(6) and 42(7) for "registrar" substitute "proper officer"; (h) in section 42(5) for "The Magistrates' Court" substitute "The County Court or the Supreme Court, as the case may be,"; (i) in section 42(5) for "the magistrate and" substitute "the judge (not being an associate judge) and"; (j) in sections 42(6), 42(7) and 42(8) for "Magistrates' Court" substitute "County Court or the Supreme Court, as the case may be,". (2) After section 42(8) of the Major Crime (Investigative Powers) Act 2004 insert— "(9) Section 41 and this section as in force immediately before the commencement of section 9 of the Major Crime Legislation Amendment Act 2009 continue to apply to— (a) any application made to the Magistrates' Court under this section before that commencement; and (b) any document or thing given to the registrar of the Magistrates' Court under section 41 before that commencement.". s. 9 -- 13 of 25 -- Part 2—Amendments to the Major Crime (Investigative Powers) Act 2004 Major Crime Legislation Amendment Act 2009 No. 3 of 2009 12 10 Restriction on publication of evidence After section 43(4) of the Major Crime (Investigative Powers) Act 2004 insert— "(4A) Before a court gives a certificate under subsection (4), the court must give— (a) Chief Examiner and the Chief Commissioner; and (b) if a direction under subsection (1) involves the interests of a witness, the witness— an opportunity to make submissions to the court as to whether or not the evidence should be made available, in full or in part, to the person charged or a legal practitioner representing the person.". 11 Warrant for arrest of witness (1) In sections 46(1), 46(5), 46(6) and 46(8) of the Major Crime (Investigative Powers) Act 2004 for "Supreme Court" substitute "Court". (2) After section 46(8) of the Major Crime (Investigative Powers) Act 2004 insert— "(9) In this section Court means— (a) in the case of a witness summons issued under section 14, the Supreme Court; and (b) in the case of a witness summons issued under section 15, the Supreme Court or the County Court.". 12 Delegation In section 65(1) of the Major Crime (Investigative Powers) Act 2004 after "order" (where secondly occurring) insert "or to make applications under section 20(8E)". s. 10 -- 14 of 25 -- Part 2—Amendments to the Major Crime (Investigative Powers) Act 2004 Major Crime Legislation Amendment Act 2009 No. 3 of 2009 13 13 Secrecy For section 68(1)(e) of the Major Crime (Investigative Powers) Act 2004 substitute— "(e) a member of police personnel.". __________________ s. 13 -- 15 of 25 -- Part 3—Amendments to Other Acts and Repeal Major Crime Legislation Amendment Act 2009 No. 3 of 2009 14 PART 3—AMENDMENTS TO OTHER ACTS AND REPEAL 14 Amendment to Casino Control Act 1991 After section 74 of the Casino Control Act 1991 insert— "74A Procedure on application for review (1) This section applies if an application is made to a court for review of a decision by the Chief Commissioner under section 74 to make an exclusion order. (2) If the Chief Commissioner objects to the disclosure or production of protected information at the hearing of the application for review, the Chief Commissioner may apply before the hearing to the court to hear and determine the application for review— (a) at a hearing at which evidence given by a member of the police force is given on the basis of a confidential affidavit that is not disclosed to one or more of the parties or any representative of those parties; or (b) at a hearing held in closed court in which the Chief Commissioner and each party to the proceeding has a right to make submissions; or (c) at a hearing held without notice to, and without the presence of, one or more of the parties or any representative of those parties; or (d) by any combination of the methods set out in paragraphs (a), (b) and (c). See: Act No. 47/1991. Reprint No. 7 as at 5 April 2006 and amending Act Nos 24/2006, 79/2006, 22/2007 and 72/2007. LawToday: www. legislation. vic.gov.au s. 14 -- 16 of 25 -- Part 3—Amendments to Other Acts and Repeal Major Crime Legislation Amendment Act 2009 No. 3 of 2009 15 (3) If the court is satisfied that it is not in the public interest to hear and determine the application for review by the method specified by the Chief Commissioner in the application under subsection (2), the court may hear and determine the application by any other method set out in subsection (2). (4) In deciding which method to hear and determine the application for review, the court must take into account— (a) the public interest in protecting the confidentiality of police investigative techniques and protected information in the possession of the police; and (b) the extent to which the method of hearing and determining the application may disclose any intelligence information, or document or thing the disclosure of which— (i) reveals the identity of the member of the police force who provided information on the basis of which the exclusion order was made or puts that member's safety at risk; or (ii) reveals the identity of a person who has provided a member of the police force with information on the basis of which the exclusion order was made, or puts that person's safety at risk; or (iii) reveals the identity of a person whose name appears in any evidence given or information provided to a member of the police force relating to an s. 14 -- 17 of 25 -- Part 3—Amendments to Other Acts and Repeal Major Crime Legislation Amendment Act 2009 No. 3 of 2009 16 investigation, or puts that person's safety at risk; or (iv) reveals the identity of a person who is or has been the subject of an investigation by a member of the police force, or puts that person's safety at risk; or (v) places at risk an ongoing investigation by a member of the police force; or (vi) risks the disclosure of any investigative method used by members of the police force; or (vii) is otherwise not in the public interest. (5) If the court decides to hear and determine the application for review by the method set out in subsection (2)(a), the court may require the member of the police force to provide the court with any further confidential affidavits the court requires to determine the application. (6) In this section protected information means any intelligence information, document or thing the production or inspection of which— (a) is likely to reveal any matter referred to in subsection (4)(b)(i) to (iv); or (b) is likely to place at risk an ongoing investigation by a member of the police force; or (c) is likely to risk the disclosure of any investigative method used by members of the police force; or (d) is otherwise not in the public interest. s. 14 -- 18 of 25 -- Part 3—Amendments to Other Acts and Repeal Major Crime Legislation Amendment Act 2009 No. 3 of 2009 17 74B Appointment of special counsel (1) If a court decides to hear and determine an application for review at a hearing referred to in section 74A(2)(c), the court may appoint a special counsel to represent the interests of a party to the proceeding at the hearing. (2) A special counsel must be a barrister within the meaning of the Legal Profession Act 2004 who, in the opinion of the court, has the appropriate skills and ability to represent the interests of the party at the hearing. (3) At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the application, the special counsel may communicate with the party whose interests he or she is representing, or any representative of that party, for the purpose of obtaining information from the party or representative in relation to the proceeding. (4) At any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the application, the special counsel— (a) must not take instructions from the party whose interests he or she is representing, or from any representative of that party; and (b) may communicate to that party or a representative of that party any order made by the court at or in relation to the hearing; and (c) must not communicate any other information in relation to the hearing to that party or a representative of that party without leave of the court.". s. 14 -- 19 of 25 -- Part 3—Amendments to Other Acts and Repeal Major Crime Legislation Amendment Act 2009 No. 3 of 2009 18 15 Amendment to Racing Act 1958 After section 35D of the Racing Act 1958 insert— "35E Procedure on application for review (1) This section applies if an application is made to a court for review of a decision by the Chief Commissioner under section 33 to make an exclusion order. (2) If the Chief Commissioner objects to the disclosure or production of protected information at the hearing of the application for review, the Chief Commissioner may apply before the hearing to the court to hear and determine the application for review— (a) at a hearing at which evidence given by a member of the police force is given on the basis of a confidential affidavit that is not disclosed to one or more of the parties or any representative of those parties; or (b) at a hearing held in closed court in which the Chief Commissioner and each party to the proceeding has a right to make submissions; or (c) at a hearing held without notice to, and without the presence of, one or more of the parties or any representative of those parties; or (d) by any combination of the methods set out in paragraphs (a), (b) and (c). See: Act No. 6353. Reprint No. 13 as at 31 December 2005 and amending Act Nos 45/2003, 40/2006, 80/2006, 18/2007 and 12/2008. LawToday: www. legislation. vic.gov.au s. 15 -- 20 of 25 -- Part 3—Amendments to Other Acts and Repeal Major Crime Legislation Amendment Act 2009 No. 3 of 2009 19 (3) If the court is satisfied that it is not in the public interest to hear and determine the application for review by the method elected by the Chief Commissioner, the court may hear and determine the application by any other method set out in subsection (2). (4) In deciding which method to hear and determine the application for review, the court must take into account— (a) the public interest in protecting the confidentiality of police investigative techniques and protected information in the possession of the police; and (b) the extent to which the method of hearing and determining the matter may disclose any intelligence information, or document or thing the disclosure of which— (i) reveals the identity of the member of the police force who provided information on the basis of which the exclusion order was made or puts that member's safety at risk; or (ii) reveals the identity of a person who has provided a member of the police force with information on the basis of which the exclusion order was made, or puts that person's safety at risk; or (iii) reveals the identity of a person whose name appears in any evidence given or information provided to a member of the police force relating to an s. 15 -- 21 of 25 -- Part 3—Amendments to Other Acts and Repeal Major Crime Legislation Amendment Act 2009 No. 3 of 2009 20 investigation, or puts that person's safety at risk; or (iv) reveals the identity of a person who is or has been the subject of an investigation by a member of the police force, or puts that person's safety at risk; or (v) places at risk an ongoing investigation by a member of the police force; or (vi) risks the disclosure of any investigative method used by members of the police force; or (vii) is otherwise not in the public interest. (5) If the court decides to hear and determine the application for review by the method set out in subsection (2)(a), the court may require the member of the police force to provide the court with any further confidential affidavits the court requires to determine the application. (6) In this section protected information means any intelligence information, document or thing the production or inspection of which— (a) is likely to reveal any matter referred to in subsection (4)(b)(i) to (iv); or (b) is likely to place at risk an ongoing investigation by a member of the police force; or (c) is likely to risk the disclosure of any investigative method used by members of the police force; or (d) is otherwise not in the public interest. s. 15 -- 22 of 25 -- Part 3—Amendments to Other Acts and Repeal Major Crime Legislation Amendment Act 2009 No. 3 of 2009 21 35F Appointment of special counsel (1) If a court decides to hear and determine an application for review at a hearing referred to in section 35E(2)(c), the court may appoint a special counsel to represent the interests of a party to the proceeding at the hearing. (2) A special counsel must be a barrister within the meaning of the Legal Profession Act 2004 who, in the opinion of the court, has the appropriate skills and ability to represent the interests of the party at the hearing. (3) At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the application, the special counsel may communicate with the party whose interests he or she is representing, or any representative of that party, for the purpose of obtaining information from the party or representative in relation to the proceeding. (4) At any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the application, the special counsel— (a) must not take instructions from the party whose interests he or she is representing, or from any representative of that party; and (b) may communicate to that party or a representative of that party any order made by the court at or in relation to the hearing; and (c) must not communicate any other information in relation to the hearing to that party or a representative of that party without leave of the court.". s. 15 -- 23 of 25 -- Part 3—Amendments to Other Acts and Repeal Major Crime Legislation Amendment Act 2009 No. 3 of 2009 22 16 Amendment to Surveillance Devices Act 1999 In section 19(3)(g) of the Surveillance Devices Act 1999 after "expertise" insert "by any person (whether or not a law enforcement officer)". 17 Repeal of amending Act This Act is repealed on 1 February 2011. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ See: Act No. 21/1999. Reprint No. 1 as at 1 July 2006 and amending Act Nos 70/2006, 9/2008 and 34/2008. LawToday: www. legislation. vic.gov.au s. 16 -- 24 of 25 -- Major Crime Legislation Amendment Act 2009 No. 3 of 2009 23 ENDNOTES † Minister's second reading speech— Legislative Assembly: 12 November 2008 Legislative Council: 4 December 2008 The long title for the Bill for this Act was "A Bill for an Act to amend the Major Crime (Investigative Powers) Act 2004, the Casino Control Act 1991, the Racing Act 1958 and the Surveillance Devices Act 1999 and for other purposes." Endnotes -- 25 of 25 --