Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
i
Major Crime (Investigative Powers) and Other Acts
Amendment Act 2008
No. 60 of 2008
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2—AMENDMENT OF MAJOR CRIME (INVESTIGATIVE
POWERS) ACT 2004 3
3 Major Crime (Investigative Powers) Act 2004 3
PART 3—POLICE INTEGRITY 4
Division 1—Police Integrity Act 2008 4
4 New sections 51A and 51B inserted in Police Integrity Act 2008 4
51A Director and staff may prosecute 4
51B Immunity 5
5 Protection of persons, documents and things 5
6 New section 109A inserted 6
109A Compellability of protected persons as witnesses 6
7 Supreme Court—limitation of jurisdiction 6
8 Consequential repeal 7
Division 2—Police Regulation Act 1958 7
9 Protection of persons, documents and things 7
10 New section 86KJA inserted 7
86KJA Compellability of protected persons as witnesses 7
11 New sections 86TB and 86TC inserted in Police Regulation
Act 1958 8
86TB Director and staff may prosecute 8
86TC Immunity 9
12 Supreme Court—limitation of jurisdiction 10
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Section Page
ii
PART 4—WHISTLEBLOWERS PROTECTION ACT 2001 11
13 New sections 61H and 61I inserted and 61J substituted 11
61H Contempt of Director 11
61I No double jeopardy 14
61J Sunset of contempt provisions 14
PART 5—REPEAL OF AMENDING ACT 15
14 Repeal of Act 15
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ENDNOTES 16
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1
Major Crime (Investigative Powers) and
Other Acts Amendment Act 2008 †
No. 60 of 2008
[Assented to 22 October 2008]
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 to extend the operation of
sections 49 and 50 of that Act;
Victoria
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Part 1—Preliminary
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
2
(b) to amend the Police Integrity Act 2008 in
relation to—
(i) the commencement of criminal
proceedings arising out of
investigations;
(ii) the protection of the Director and staff
of the Office of Police Integrity;
(c) to amend the Police Regulation Act 1958 in
relation to the protection of the Director and
staff of the Office of Police Integrity;
(d) to amend the Whistleblowers Protection
Act 2001 to re-enact provisions relating to
contempt of the Director, Police Integrity
that have expired.
2 Commencement
(1) This Act (other than Division 1 of Part 3) comes
into operation on the day after the day on which
this Act receives the Royal Assent.
(2) Division 1 of Part 3 comes into operation on the
day on which section 104 of the Police Integrity
Act 2008 comes into operation.
__________________
s. 2
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Part 2—Amendment of Major Crime (Investigative Powers) Act 2004
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
3
PART 2—AMENDMENT OF MAJOR CRIME
(INVESTIGATIVE POWERS) ACT 2004
3 Major Crime (Investigative Powers) Act 2004
(1) In section 49(12) of the Major Crime
(Investigative Powers) Act 2004, for "42 months
after the day on which it comes into operation"
substitute "on 1 January 2012".
(2) In section 50(2) of the Major Crime
(Investigative Powers) Act 2004, for "42 months
after the day on which it comes into operation"
substitute "on 1 January 2012".
__________________
See:
Act No.
79/2004.
Reprint No. 1
as at
16 February
2006
and
amending
Act Nos
29/2006,
48/2006,
28/2007 and
4/2008.
LawToday:
www.
legislation.
vic.gov.au
s. 3
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Part 3—Police Integrity
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
4
PART 3—POLICE INTEGRITY
Division 1—Police Integrity Act 2008
4 New sections 51A and 51B inserted in Police
Integrity Act 2008
After section 51 of the Police Integrity Act 2008
insert—
"51A Director and staff may prosecute
(1) The Director or a member of staff of the
Office of Police Integrity authorised under
subsection (2) may commence criminal
proceedings against a person for an offence
in relation to any matter arising out of an
investigation.
(2) The Director may authorise in writing a
member of staff of the Office of Police
Integrity to exercise powers under
subsection (1)—
(a) in relation to a specified person or
specified investigation; or
(b) generally.
(3) Nothing in this section—
(a) affects or limits the ability of a person
other than the Director or a person
authorised under subsection (2) to
commence criminal proceedings
against a person for an offence in
relation to any matter arising out of
an investigation; or
See:
Act No.
34/2008.
LawToday:
www.
legislation.
vic.gov.au
s. 4
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Part 3—Police Integrity
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
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(b) affects or limits the ability of the
Director or a member of staff of the
Office of Police Integrity to bring
criminal proceedings against a person
for any other offence.
51B Immunity
(1) The Director or a member of staff of the
Office of Police Integrity authorised under
section 51A(2) is not personally liable for
anything necessarily or reasonably done or
omitted to be done in good faith—
(a) in the exercise of a power under
section 51A(1); or
(b) in the reasonable belief that the act or
omission was in the exercise of a power
under section 51A(1).
(2) Any liability resulting from an act or
omission that, but for subsection (1), would
attach to the Director or a member of staff
of the Office of Police Integrity authorised
under section 51A(2) attaches instead to the
State.".
5 Protection of persons, documents and things
(1) In section 104 of the Police Integrity Act 2008—
(a) after "is" insert "a person who is or was";
(b) for "(c) a person" substitute "(d) a person";
(c) for "(d) a person" substitute "(e) a person";
(d) for "(e) the members" substitute "(f) the
members".
(2) Section 109(7) of the Police Integrity Act 2008 is
repealed.
s. 5
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Part 3—Police Integrity
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
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6 New section 109A inserted
After section 109 of the Police Integrity Act
2008 insert—
"109A Compellability of protected persons as
witnesses
(1) Except as permitted by subsection (2),
a protected person cannot be compelled to
give evidence in any legal proceeding in
respect of any matter coming to his or her
knowledge in the performance of functions
under this Act.
(2) A protected person may be compelled to give
evidence in a legal proceeding if the Director
certifies in writing that the giving of
evidence by the protected person is in the
public interest.
(3) For the avoidance of doubt, this section
applies, on and after its commencement, to a
legal proceeding whether the legal
proceeding was commenced before, on or
after that commencement.
(4) In this section—
legal proceeding includes—
(a) a civil proceeding;
(b) a criminal proceeding;
(c) a proceeding before the Appeals
Board.".
7 Supreme Court—limitation of jurisdiction
At the end of section 130 of the Police Integrity
Act 2008 insert—
"(2) It is the intention of section 109, as it applies
on and after the commencement of section 5
of the Major Crime (Investigative Powers)
s. 6
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Part 3—Police Integrity
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
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and Other Acts Amendment Act 2008,
to alter or vary section 85 of the
Constitution Act 1975.".
8 Consequential repeal
After section 142(16) of the Police Integrity Act
2008 insert—
"(16A) Sections 86TB and 86TC of the Police
Regulation Act 1958 are repealed.".
Division 2—Police Regulation Act 1958
9 Protection of persons, documents and things
(1) In section 86KE of the Police Regulation Act
1958—
(a) after "is" insert "a person who is or was";
(b) for "(c) a person" substitute "(d) a person";
(c) for "(d) a person" substitute "(e) a person";
(d) for "(e) the members" substitute "(f) the
members".
(2) Section 86KJ(6) of the Police Regulation Act
1958 is repealed.
10 New section 86KJA inserted
After section 86KJ of the Police Regulation Act
1958 insert—
"86KJA Compellability of protected persons as
witnesses
(1) Except as permitted by subsection (2),
a protected person cannot be compelled to
give evidence in any legal proceeding in
respect of any matter coming to his or her
knowledge in the performance of functions
under this Act.
s. 8
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Part 3—Police Integrity
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
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(2) A protected person may be compelled to give
evidence in a legal proceeding if the Director
certifies in writing that the giving of
evidence by the protected person is in the
public interest.
(3) For the avoidance of doubt, this section
applies, on and after its commencement, to a
legal proceeding whether the legal
proceeding was commenced before, on or
after that commencement.
(4) In this section—
legal proceeding includes—
(a) a civil proceeding;
(b) a criminal proceeding;
(c) a proceeding before the Appeals
Board.".
11 New sections 86TB and 86TC inserted in Police
Regulation Act 1958
After section 86TA of the Police Regulation Act
1958 insert—
"86TB Director and staff may prosecute
(1) The Director or a member of staff of the
Office of Police Integrity authorised under
subsection (2) may commence criminal
proceedings against a person for an offence
in relation to any matter arising out of an
investigation by the Director under this Part.
(2) The Director may authorise in writing a
member of staff of the Office of Police
Integrity to exercise powers under
subsection (1)—
s. 11
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Part 3—Police Integrity
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
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(a) in relation to a specified person or
specified investigation; or
(b) generally.
(3) Nothing in this section—
(a) affects or limits the ability of a person
other than the Director or a person
authorised under subsection (2) to
commence criminal proceedings
against a person for an offence in
relation to any matter arising out of an
investigation by the Director under this
Part; or
(b) affects or limits the ability of the
Director or a member of staff of the
Office of Police Integrity to bring
criminal proceedings against a person
for any other offence.
86TC Immunity
(1) The Director or a member of staff of the
Office of Police Integrity authorised under
section 86TB(2) is not personally liable for
anything necessarily or reasonably done or
omitted to be done in good faith—
(a) in the exercise of a power under
section 86TB(1); or
(b) in the reasonable belief that the act or
omission was in the exercise of a power
under section 86TB(1).
(2) Any liability resulting from an act or
omission that, but for subsection (1), would
attach to the Director or a member of staff of
the Office of Police Integrity authorised
under section 86TB(2) attaches instead to the
State.".
s. 11
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Part 3—Police Integrity
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No. 60 of 2008
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12 Supreme Court—limitation of jurisdiction
After section 129A(5) of the Police Regulation
Act 1958 insert—
"(6) It is the intention of section 86KJ, as it
applies on and after the commencement of
section 9 of the Major Crime (Investigative
Powers) and Other Acts Amendment Act
2008, to alter or vary section 85 of the
Constitution Act 1975.".
__________________
s. 12
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Part 4—Whistleblowers Protection Act 2001
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
11
PART 4—WHISTLEBLOWERS PROTECTION ACT 2001
13 New sections 61H and 61I inserted and 61J
substituted
For section 61J of the Whistleblowers Protection
Act 2001 substitute—
"61H Contempt of Director
(1) A person attending an investigation in
answer to a summons under section 17 of the
Evidence Act 1958 is guilty of a contempt
of the Director if the person—
(a) fails without reasonable excuse to
produce any document or thing the
person is required by the summons to
produce; or
(b) being called or examined as a witness,
refuses to be sworn or to make an
affirmation or, without reasonable
excuse, refuses or fails to answer any
question relevant to the subject-matter
of the investigation; or
(c) engages in any other conduct that
would, if the Director were the
Supreme Court, constitute a contempt
of that Court.
(2) If it is alleged or appears to the Director that
a person is guilty of contempt of the
Director, the Director may—
(a) issue a written certificate charging the
person with contempt and setting out
or attaching details of the alleged
contempt (certificate of charge); and
(b) issue a warrant to arrest the person
(arrest warrant).
s. 13
See:
Act No.
36/2001.
Reprint No. 1
as at
21 July 2005
and
amending
Act Nos
18/2005,
24/2006,
48/2006,
28/2007 and
34/2008.
LawToday:
www.
legislation.
vic.gov.au
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Part 4—Whistleblowers Protection Act 2001
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
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(3) An arrest warrant—
(a) may be directed to—
(i) a named member of the police
force; or
(ii) generally all members of the
police force; and
(b) authorises the person to whom it is
directed to arrest the person named in
the warrant.
(4) A person who is arrested under an arrest
warrant—
(a) is to be brought before the Supreme
Court forthwith to be dealt with
according to law; and
(b) may be detained in police custody in
the meantime.
(5) If the Director is satisfied that there are
reasonable grounds to believe that it is
necessary to prevent the arrested person from
escaping from police custody or to ensure the
safety of the person, the Director may direct
that the person be detained in a prison or a
police gaol for the purpose of ensuring his or
her appearance before the Supreme Court.
(6) If a person detained in police custody under
this section, other than a person detained in
accordance with a direction under subsection
(5), is required to be detained overnight, the
Chief Commissioner of Police must arrange
for the person to be provided with
accommodation and meals to a standard
comparable to that generally provided to
jurors kept together overnight.
s. 13
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Part 4—Whistleblowers Protection Act 2001
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
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(7) If a person is detained in a prison in
accordance with a direction under subsection
(5), the Director may give a written direction
for the person to be delivered into the
custody of a member of the police force for
the purpose of bringing the person before the
Supreme Court.
(8) If it is not practicable for the person to be
brought before the Supreme Court forthwith
after he or she is arrested—
(a) the person for the time being in charge
of the place where he or she is detained
must—
(i) advise the person that he or she is
entitled to apply to a bail justice
for discharge from custody; and
(ii) give the person a written
statement of his or her right to
apply; and
(b) if the person elects to apply, the person
for the time being in charge of the place
where he or she is detained must—
(i) cause the person to be brought
before a bail justice as soon as
practicable; and
(ii) cause to be produced before the
bail justice the arrest warrant and
the certificate of charge for the
person; and
(iii) abide by the decision of the bail
justice in relation to the person.
s. 13
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Part 4—Whistleblowers Protection Act 2001
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
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(9) When a person is brought before a bail
justice under subsection (8), the bail justice
may discharge the person from custody on
bail in accordance with the Bail Act 1977 as
if the person had been accused of an offence.
(10) A contempt of the Director is to be dealt with
by the Supreme Court as if—
(a) the contempt were a contempt of an
inferior court; and
(b) the certificate of charge were an
application to the Supreme Court for
punishment for the contempt.
(11) A certificate of charge is evidence of the
matters set out in or attached to it.
61I No double jeopardy
If an act or omission constitutes both an
offence against this Act or the Evidence Act
1958 and a contempt of the Director, the
offender is liable to be proceeded against for
the offence or for contempt or both, but is
not liable to be punished more than once for
the same act or omission.
61J Sunset of contempt provisions
Sections 61H, 61I and this section are
repealed on the day that is the third
anniversary of the day on which section 13
of the Major Crime (Investigative Powers)
and Other Acts Amendment Act 2008
comes into operation.".
__________________
s. 13
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Part 5—Repeal of Amending Act
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
15
PART 5—REPEAL OF AMENDING ACT
14 Repeal of Act
This Act is repealed on 1 December 2010.
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).
═══════════════
s. 14
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Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
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ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 9 October 2008
Legislative Council: 10 October 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 Police Integrity Act
2008, the Police Regulation Act 1958 and the Whistleblowers
Protection Act 2001 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 9 October 2008
Legislative Council: 10 October 2008
Absolute majorities:
Legislative Assembly: 9 October 2008
Legislative Council: 16 October 2008
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