Major Crime (Investigative Powers) Act 2004

Victorian Legislation Parliamentary Documents i Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 3. Definitions 2 PART 2—COERCIVE POWERS ORDERS AND WITNESS SUMMONSES 4 4. Authority given by coercive powers order 4 5. Application for order 4 6. Remote application 6 7. Offence to publish report of proceedings 6 8. Determination of application 6 9. Coercive powers order 7 10. Extension or variation of coercive powers order 8 11. Discontinuance of use of powers under coercive powers order 9 12. Revocation of coercive powers order 9 13. Chief Examiner must act on revocation 10 14. Supreme Court may issue witness summons 10 15. Chief Examiner may issue witness summons 14 16. Witness summons directed to person under 16 16 17. Service of witness summons 17 18. Witness already held in custody 17 19. Witness expenses 19 20. Confidentiality of witness summons and orders 19 PART 3—CHIEF EXAMINER AND EXAMINERS 23 21. Appointment of Chief Examiner and Examiners 23 22. Remuneration and allowances 23 23. Terms and conditions 24 24. Vacancy, resignation, removal 24 25. Validity of acts and decisions 25 26. Conflict of interest 25 27. Management of Examiners 25 28. Police assistance to Chief Examiner 26 -- 1 of 184 -- Victorian Legislation Parliamentary Documents Section Page ii PART 4—EXAMINATIONS 27 29. When Chief Examiner may conduct examinations 27 30. Conduct of examination 28 31. Preliminary requirements 28 32. Witness under 16 29 33. Protection of legal practitioners and witnesses 29 34. Representation of witness 30 35. Examination to be held in private 31 36. Taking of evidence 31 37. Failure of witnesses to attend and answer questions 32 38. False or misleading evidence 33 39. Privilege against self-incrimination abrogated 34 40. Legal professional privilege 35 41. Procedure for determining claims of legal professional privilege 36 42. Application to Magistrates' Court to determine legal professional privilege 37 43. Restriction on publication of evidence 38 44. Hindering or obstructing Chief Examiner or disrupting examination 40 45. Video-recording of examination 40 46. Warrant for arrest of witness 41 47. Documents or other things produced to Chief Examiner 43 48. Magistrates' Court proceedings 45 49. Contempt of Chief Examiner 46 50. No double jeopardy 49 PART 5—OVERSIGHT BY SPECIAL INVESTIGATIONS MONITOR 50 51. Role of Special Investigations Monitor 50 52. Chief Examiner must report witness summonses and orders to Special Investigations Monitor 50 53. Chief Examiner must report other matters to Special Investigations Monitor 51 54. Complaints to Special Investigations Monitor 51 55. Special Investigations Monitor may refuse to investigate complaint 52 56. Investigation of complaints 52 57. Recommendations by Special Investigations Monitor 53 58. Requirement to provide assistance 54 59. Powers of entry and access 54 60. Requirement to answer questions and produce documents 55 61. Annual and other reports by Special Investigations Monitor 56 62. Report on operation of this Part 58 63. Crown privilege or secrecy does not apply 59 64. Obstruction 59 -- 2 of 184 -- Victorian Legislation Parliamentary Documents Section Page iii PART 6—MISCELLANEOUS 60 65. Delegation 60 66. Obligations of Chief Commissioner 60 67. Information sharing 61 68. Secrecy 63 69. Exemption from Freedom of Information Act 1982 64 70. Regulations 65 PART 7—OMBUDSMAN ACT 1973 66 71. Consequential amendments in relation to the Sex Offenders Registration Act 2004 66 72. Procedure on completion of investigation 66 73. New section 25 substituted and section 25AA inserted 66 25. Annual and other reports to Parliament 66 25AA. Transmission of reports to Parliament 67 PART 8—POLICE REGULATION ACT 1958 69 74. Definitions 69 75. Amendment of existing immunity provision 69 76. Protection of Director etc. 70 77. New section 86JA inserted 70 86JA. Protection of legal practitioners and witnesses 70 78. Offences 71 79. New sections 86KA to 86KD inserted 71 86KA. Confidentiality of summons 71 86KB. Contempt of Director 73 86KC. No double jeopardy 76 86KD. Sunset of contempt provisions 76 80. Complaints 76 81. Investigations 77 82. Evidence in Director investigations 79 83. New sections 86PB to 86PE inserted 80 86PB. Video-recording of examination 80 86PC. Underage and impaired witnesses 81 86PD. Arrest of recalcitrant witnesses 83 86PE. Witness already held in custody 85 84. Referrals to the DPP 86 85. New section 86S substituted 87 86S. Chief Commissioner to respond to Director 87 86. Advice to complainant 88 -- 3 of 184 -- Victorian Legislation Parliamentary Documents Section Page iv 87. New sections 86VA to 86VH inserted 88 86VA. Definitions 88 86VB. Power to enter public authority premises 89 86VC. Power to seize documents or things at public authority premises 91 86VD. Copying of, access to or receipt for things seized 92 86VE. Procedure for documents that may be subject to legal professional privilege 95 86VF. Application to Magistrates' Court to decide on legal professional privilege 97 86VG. Application for return of things seized 98 86VH. Return of things seized 99 88. New section 86Z substituted 100 86Z. Return of documents and other things 100 89. New Division 4 inserted in Part IVA 100 Division 4—Oversight by Special Investigations Monitor 100 86ZA. Role of Special Investigations Monitor 100 86ZB. Director must report summonses to Special Investigations Monitor 101 86ZC. Director must report arrest warrants to Special Investigations Monitor 102 86ZD. Director must report other matters to Special Investigations Monitor 102 86ZE. Complaints to Special Investigations Monitor 103 86ZF. Special Investigations Monitor may refuse to investigate complaint 104 86ZG. Investigation of complaints 104 86ZH. Recommendations by Special Investigations Monitor 105 86ZI. Requirement to provide assistance 106 86ZJ. Powers of entry and access 106 86ZK. Requirement to answer questions and produce documents 107 86ZL. Annual and other reports by Special Investigations Monitor 109 86ZM. Report on operation of this Part 110 90. New section 102BA inserted 111 102BA. Objects of Director 111 91. Oath or affirmation 111 92. Staffing 112 93. New sections 102EA and 102EB inserted 112 102EA. Secondment of members of the force 112 102EB. Effect of secondment 113 94. Delegation 114 95. New sections 102J and 102K inserted 115 102J. Annual and other reports to Parliament 115 102K. Transmission of reports to Parliament 115 -- 4 of 184 -- Victorian Legislation Parliamentary Documents Section Page v 96. New section 126 inserted 117 126. Deliberations of Ministers and Parliamentary committees not to be disclosed 117 97. Supreme Court—limitation of jurisdiction 118 98. Supreme Court—further limitation of jurisdiction 118 99. Transitional provision 118 PART 9—SEX OFFENDERS REGISTRATION ACT 2004 120 100. Director, Police Integrity to replace Police Ombudsman 120 101. New sections 66A, 66B and 66C inserted 120 66A. Director to monitor compliance 120 66B. Director to be given reasonable assistance 121 66C. Powers in relation to monitoring 121 66D. Reports on monitoring compliance 122 102. Further amendment 123 103. Supreme Court—limitation of jurisdiction 123 PART 10—WHISTLEBLOWERS PROTECTION ACT 2001 124 104. Definitions 124 105. Chief Examiner and Examiners are not public officers 124 106. Dis-application of certain provisions to investigations by Director 124 107. Notice of investigation of police matters 125 108. New section 50A inserted 125 50A. Notice of the investigation—police matters 125 109. Obstruction 126 110. Opportunity to be heard 126 111. New section 61AA inserted 127 61AA. Definitions 127 112. Evidence in Director investigations 128 113. New sections 61BA to 61BH inserted 129 61BA. Video-recording of examination 129 61BAB. Underage and impaired witnesses 130 61BB. Power to enter public authority premises 132 61BC. Power to seize documents or things at public authority premises 133 61BD. Copying of, access to or receipt for things seized 135 61BE. Procedure for documents that may be subject to legal professional privilege 137 61BF. Application to Magistrates' Court to decide on legal professional privilege 140 61BG. Application for return of things seized 141 61BH. Return of things seized 142 114. New section 61F substituted 142 61F. Return of documents and other things 142 -- 5 of 184 -- Victorian Legislation Parliamentary Documents Section Page vi 115. New sections 61G to 61N inserted 143 61G. Confidentiality of summons 143 61H. Contempt of Director 144 61I. No double jeopardy 147 61J. Sunset of contempt provisions 147 61K. Arrest of recalcitrant witnesses 148 61L. Witness already held in custody 150 61M. Consultation and comment 151 61N. Simultaneous investigation and proceedings 152 116. New section 62 substituted 152 62. Director may report to Ombudsman 152 117. Reports on investigations 152 118. New section 63A inserted 153 63A. Report on investigation—police matters 153 119. Further amendment about reports 154 120. New section 65 substituted and section 65A inserted 154 65. Chief Commissioner of Police to respond to Ombudsman 154 65A. Referral of matters to DPP 154 121. Informing person who made disclosure 155 122. Referral of Part 7 matters to Director 155 123. New section 94 substituted and section 94A inserted 156 94. Disagreement between Ombudsman and Chief Commissioner on implementation of recommendations 156 94A. Referral of matters to DPP 156 124. Report to person making disclosure 157 125. New section 103A inserted 157 103A. Transmission of certain reports to Parliament 157 126. New Part 9A inserted 159 PART 9A—OVERSIGHT BY SPECIAL INVESTIGATIONS MONITOR 159 105A. Role of Special Investigations Monitor 159 105B. Director must report summonses to Special Investigations Monitor 160 105C. Director must report arrest warrants to Special Investigations Monitor 160 105D. Director must report other matters to Special Investigations Monitor 160 105E. Complaints to Special Investigations Monitor 162 105F. Special Investigations Monitor may refuse to investigate complaint 162 105G. Investigation of complaints 163 105H. Recommendations by Special Investigations Monitor 164 105I. Requirement to provide assistance 165 105J. Powers of entry and access 165 -- 6 of 184 -- Victorian Legislation Parliamentary Documents Section Page vii 105K. Requirement to answer questions and produce documents 166 105L. Annual and other reports by Special Investigations Monitor 167 105M. Report on operation of this Part 169 127. New section 107A inserted 170 107A. Protection of legal practitioners and witnesses 170 128. Evidence not admissible 171 129. Supreme Court—limitation of jurisdiction 171 PART 11—OTHER AMENDMENTS 172 130. Major Crime Legislation (Office of Police Integrity) Act 2004 172 131. Information Privacy Act 2000 172 ═══════════════ ENDNOTES 173 INDEX 174 -- 7 of 184 -- Victorian Legislation Parliamentary Documents 1 Major Crime (Investigative Powers) Act 2004 † [Assented to 16 November 2004] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The purposes of this Act are— (a) to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences; and Victoria No. 79 of 2004 -- 8 of 184 -- Victorian Legislation Parliamentary Documents Part 1—Preliminary Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 2 (b) to amend the Ombudsman Act 1973, the Police Regulation Act 1958, the Sex Offenders Registration Act 2004, the Whistleblowers Protection Act 2001 and other Acts to make further provision for the Director, Police Integrity. 2. Commencement (1) Subject to this section, this Act (except sections 75, 97 and 130) comes into operation on a day or days to be proclaimed. (2) Sections 75 and 97 come into operation on the day on which this Act receives the Royal Assent. (3) Section 130 is deemed to have come into operation on the day on which the Major Crime Legislation (Office of Police Integrity) Act 2004 received the Royal Assent. (4) If a provision of this Act, other than section 75, 97 or 130, does not come into operation before 1 July 2005, it comes into operation on that day. 3. Definitions In this Act— "Chief Commissioner" means the Chief Commissioner of Police for Victoria; "Chief Examiner" means the Chief Examiner appointed under Part 3; "coercive powers order" means an order made under section 8 approving the use of coercive powers to investigate an organised crime offence; "mental impairment" includes impairment because of mental illness, intellectual disability, dementia or brain injury; s. 2 -- 9 of 184 -- Victorian Legislation Parliamentary Documents Part 1—Preliminary Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 3 "organised crime offence" means an indictable offence against the law of Victoria, irrespective of when the offence is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more and that— (a) involves 2 or more offenders; and (b) involves substantial planning and organisation; and (c) forms part of systemic and continuing criminal activity; and (d) has a purpose of obtaining profit, gain, power or influence; "police gaol" has the same meaning as in the Corrections Act 1986; "prison" has the same meaning as in the Corrections Act 1986 but includes a youth training centre established under section 249 of the Children and Young Persons Act 1989; "Special Investigations Monitor" means the Special Investigations Monitor appointed under Part 2 of the Major Crime (Special Investigations Monitor) Act 2004; "witness summons" means a summons issued under section 14 or 15. __________________ s. 3 -- 10 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 4 PART 2—COERCIVE POWERS ORDERS AND WITNESS SUMMONSES 4. Authority given by coercive powers order A coercive powers order authorises the use in accordance with this Act of powers provided by this Act for the purpose of investigating the organised crime offence in respect of which the order is made. 5. Application for order (1) Subject to sub-section (2), a member of the police force may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, is being or is likely to be committed. (2) An application under sub-section (1) may only be made with the approval of the Chief Commissioner or a delegate of the Chief Commissioner. (3) An application under sub-section (1) must be in writing and must specify— (a) the name and rank of the applicant; and (b) the name and rank of the person who approved the application; and (c) particulars of the organised crime offence in respect of which the coercive powers order is sought; and (d) the name of each alleged offender or, if the name is unknown, state that the offender is unknown; and (e) the period, not exceeding 12 months, that is sought for the duration of the coercive powers order. s. 4 -- 11 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 5 (4) An application under sub-section (1) must be supported by an affidavit of the applicant— (a) stating that he or she suspects that an organised crime offence has been, is being, or is likely to be committed, as the case requires; and (b) setting out the grounds on which the applicant holds that suspicion; and (c) setting out the reason why the use of coercive powers is sought. (5) The Supreme Court may require the applicant to provide any additional information that the Court requires in relation to the application. (6) If the applicant believes that— (a) the delay caused in complying with sub- section (4) may prejudice the success of the investigation into the relevant organised crime offence; and (b) it is impracticable for an affidavit to be prepared or sworn before the application is made— the application for a coercive powers order may be made before an affidavit is prepared or sworn. (7) If sub-section (6) applies, the applicant must— (a) provide as much information as the Supreme Court considers is reasonably practicable in the circumstances; and (b) if an affidavit has been prepared but not sworn, provide a copy of the unsworn affidavit to the Supreme Court; and s. 5 -- 12 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 6 (c) not later than the day following the making of the application, send the duly sworn affidavit to the Supreme Court, whether or not a coercive powers order has been made. (8) An application under sub-section (1) must be heard in closed court. 6. Remote application (1) If a member of the police force believes that it is impracticable for an application for a coercive powers order to be made in person, the application may be made under section 5 by telephone, fax, e-mail or any other means of communication. (2) If transmission by fax is available and an affidavit has been prepared, the applicant must transmit a copy of the affidavit, whether sworn or unsworn, to the judge of the Supreme Court who is to determine the application. 7. Offence to publish report of proceedings (1) Unless the Supreme Court orders otherwise, a person who publishes a report of a proceeding in respect of an application for a coercive powers order or any information derived from such a proceeding is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). (2) The Supreme Court may make an order under sub-section (1) if it considers it appropriate to do so. 8. Determination of application The Supreme Court may make a coercive powers order if satisfied— (a) that there are reasonable grounds for the suspicion founding the application for the order; and s. 6 -- 13 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 7 (b) that it is in the public interest to make the order, having regard to— (i) the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and (ii) the impact of the use of coercive powers on the rights of members of the community. 9. Coercive powers order (1) A coercive powers order must state that the Supreme Court is satisfied of the matters referred to in section 8(a) and (b) having regard to the matters referred to in section 8(b)(i) and (ii). (2) A coercive powers order must also specify— (a) the organised crime offence in respect of which the order is made; and (b) the name of each alleged offender or, if the name is unknown, state that the offender is unknown; and (c) the name and rank of the applicant; and (d) the name and rank of the person who approved the application; and (e) the date on which the order is made; and (f) the period for which the order remains in force, being a period not exceeding 12 months; and (g) any conditions on the use of coercive powers under the order. (3) A coercive powers order must be signed by the judge of the Supreme Court who makes it and include his or her name. s. 9 -- 14 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 8 (4) If the Supreme Court makes a coercive powers order, the applicant must cause a copy of the order to be given to the Chief Examiner as soon as practicable after the making of the order. 10. Extension or variation of coercive powers order (1) Subject to sub-section (2), a member of the police force on whose application a coercive powers order has been made, or another person on his or her behalf, may apply to the Supreme Court for— (a) an extension of the order for a period not exceeding 12 months from the day on which it would otherwise expire; or (b) a variation of any of the other terms of the order. (2) An application under sub-section (1) may only be made with the approval of the Chief Commissioner or a delegate of the Chief Commissioner. (3) Section 5 applies to an application for extension or variation of a coercive powers order as if it were an application for an order. (4) On an application under this section, the Supreme Court may, at any time before the expiry of a coercive powers order, make a new order providing for— (a) the extension of the original order for a period not exceeding 12 months from the day on which it would otherwise expire; or (b) variation of the other terms of the original order. (5) A coercive powers order may be extended or varied more than once. s. 10 -- 15 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 9 (6) If the Supreme Court makes an order under this section, the applicant must cause a copy of the order to be given to the Chief Examiner as soon as practicable after the making of the order. 11. Discontinuance of use of powers under coercive powers order (1) If the Chief Commissioner or the delegate of the Chief Commissioner who approved an application for a coercive powers order, or an application for extension or variation of a coercive powers order, is satisfied that the powers under the order are no longer required for the purpose for which the order was made, the Chief Commissioner or delegate must immediately give notice in writing to the Supreme Court that the person giving notice has formed the view that the coercive powers order is no longer required. (2) A notice under sub-section (1) must be filed with the Supreme Court. (3) On the filing of a notice under sub-section (1), the coercive powers order is revoked. 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. (2) 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 s. 11 -- 16 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 10 (c) give notice in writing of the revocation of each witness summons to the person to whom the summons was directed. 13. Chief Examiner must act on revocation If the Chief Examiner is given notice under section 12(2) that a coercive powers order has been revoked, the Chief Examiner must— (a) revoke any witness summons issued under section 15 in reliance on the coercive powers order if the witness summons has not been served or the date for attendance has not passed; and (b) give notice in writing of the revocation of each witness summons to the person to whom the summons was directed; and (c) release from attendance or further attendance each witness who has been summoned to attend an examination in reliance on the order. 14. Supreme Court may issue witness summons (1) This section applies if a coercive powers order is in force in respect of an organised crime offence. (2) On application under sub-section (3), the Supreme Court may issue the following witness summonses— (a) a summons to attend an examination before the Chief Examiner to give evidence; (b) a summons to attend at a specified time and place to produce specified documents or other things to the Chief Examiner; (c) a summons to attend an examination before the Chief Examiner to give evidence and produce specified documents or other things. s. 13 -- 17 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 11 (3) A member of the police force may apply to the Supreme Court for the issue of a summons referred to in sub-section (2)— (a) at the time of the making of the coercive powers order; or (b) at any later time while the coercive powers order is in force. (4) An application for a summons— (a) must be in writing; and (b) must state the name and rank of the applicant; and (c) must state the reason why a summons is needed for the person to whom it is to be directed; and (d) must indicate the evidentiary or intelligence value of the information sought to be obtained from the person to whom the summons is to be directed; and (e) if the applicant suspects that the person to whom the summons is to be directed has a mental impairment, must state that suspicion; and (f) if the applicant suspects or knows that the person to whom the summons is to be directed is under the age of 18 years, must state that suspicion or knowledge and the suspected or known age of the person. (5) The Supreme Court may require the applicant to provide any additional information that the Court requires in relation to the application. s. 14 -- 18 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 12 (6) On application under sub-section (3), the Supreme Court may issue a summons directed to a person, other than a person referred to in sub-section (7), if the Court is satisfied that it is reasonable in the circumstances to do so, after consideration of— (a) the evidentiary or intelligence value of the information sought to be obtained from the person; and (b) the age of the person, and any mental impairment to which the person is known to be subject. (7) The Supreme Court must not issue a summons directed to a person known to be under the age of 16 years. (8) A summons must require the person to whom it is directed to attend at a specified place on a specified date and at a specified time and from day to day unless excused or released from further attendance— (a) to give evidence before the Chief Examiner; or (b) to produce for examination by the Chief Examiner any documents or other things described in the summons that are in the person's possession or control; or (c) both to give evidence and produce for examination any documents or other things described in the summons that are in the person's possession or control. (9) A summons, other than a summons referred to in sub-section (10), must be served a reasonable time before the date on which the person is required to attend. s. 14 -- 19 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 13 (10) The Supreme Court may issue a summons that requires the immediate attendance before the Chief Examiner of the person to whom it is directed if the Court reasonably believes that a delay in the person's attendance is likely to result in— (a) evidence being lost or destroyed; or (b) the commission of an offence; or (c) the escape of an offender; or (d) serious prejudice to the conduct of the investigation of the organised crime offence. (11) A summons directed to a person must state— (a) the general nature of the matters about which the person is to be questioned, unless the Supreme Court considers that this disclosure would prejudice the conduct of the investigation of the organised crime offence; and (b) that a coercive powers order has been made under this Act by the Supreme Court and the date on which the order was made. (12) A summons— (a) must be in the prescribed form; and (b) must include a statement that if the person summoned is under the age of 16 years at the date of issue of the summons the person need not comply with the summons but must— (i) if the Supreme Court issued the summons, give notice in writing and proof of age to the Supreme Court and the Chief Examiner; or (ii) if the Chief Examiner issued the summons, give notice in writing and proof of age to the Chief Examiner. s. 14 -- 20 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 14 (13) The applicant must cause a copy of a summons to be given to the Chief Examiner as soon as practicable after the summons is issued. 15. Chief Examiner may issue witness summons (1) This section applies if a coercive powers order is in force in respect of an organised crime offence. (2) The Chief Examiner may issue the following witness summonses on his or her own motion or on the application of a member of the police force— (a) a summons to attend an examination before the Chief Examiner to give evidence; (b) a summons to attend at a specified time and place to produce specified documents or other things to the Chief Examiner; (c) a summons to attend an examination before the Chief Examiner to give evidence and produce specified documents or other things. (3) The Chief Examiner may determine the procedure for making an application for the issue of a summons under this section. (4) The Chief Examiner may issue a summons directed to a person, other than a person referred to in sub-section (5), if the Chief Examiner is satisfied that it is reasonable in the circumstances to do so, after consideration of— (a) the evidentiary or intelligence value of the information sought to be obtained from the person; and (b) the age of the person, and any mental impairment to which the person is known to be subject. s. 15 -- 21 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 15 (5) The Chief Examiner must not issue a summons directed to a person known to be under the age of 16 years. (6) On issuing a summons, the Chief Examiner must record in writing— (a) the grounds on which the summons is issued; and (b) if the summons is directed to a person suspected to be under the age of 18 years, the reason for suspecting or believing that the person is aged 16 years or above. (7) A summons must require the person to whom it is directed to attend at a specified place on a specified date and at a specified time and from day to day unless excused or released from further attendance— (a) to give evidence before the Chief Examiner; or (b) to produce for examination by the Chief Examiner any documents or other things described in the summons that are in the person's possession or control; or (c) both to give evidence and produce for examination any documents or other things described in the summons that are in the person's possession or control. (8) A summons, other than a summons referred to in sub-section (9), must be served a reasonable time before the date on which the person is required to attend. (9) The Chief Examiner may issue a summons that requires the immediate attendance before the Chief Examiner of the person to whom it is directed if the Chief Examiner reasonably believes s. 15 -- 22 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 16 that a delay in the person's attendance is likely to result in— (a) evidence being lost or destroyed; or (b) the commission of an offence; or (c) the escape of an offender; or (d) serious prejudice to the conduct of the investigation of the organised crime offence. (10) A summons directed to a person must state— (a) the general nature of the matters about which the person is to be questioned, unless the Chief Examiner considers that this disclosure would prejudice the conduct of the investigation of the organised crime offence; and (b) that the coercive powers order has been made under this Act by the Supreme Court and the date on which the order was made. (11) A summons must be in the prescribed form and must include a statement that if the person summoned is under the age of 16 years at the date of issue of the summons, the person need not comply with the summons. 16. Witness summons directed to person under 16 (1) A witness summons directed to a person under the age of 16 years at the date of issue of the summons has no effect. (2) A person who claims to be under the age of 16 years at the date of issue of a summons directed to the person must— (a) if the Supreme Court issued the summons, give notice in writing and proof of age to the Supreme Court and the Chief Examiner; or s. 16 -- 23 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 17 (b) if the Chief Examiner issued the summons, give notice in writing and proof of age to the Chief Examiner. 17. Service of witness summons (1) A witness summons directed to a natural person must be served by delivering a copy of the summons to the person personally. (2) A witness summons directed to a body corporate must be served by sending a copy of the witness summons by registered post to the head office, a registered office, a principal office or a principal place of business of the body corporate or to a postal address of the body corporate. (3) If it appears to the Supreme Court that service of a witness summons has not been or is unlikely to be effected, the Court may make an order for substituted service. 18. Witness already held in custody (1) This section applies if a coercive powers order is in force in respect of an organised crime offence. (2) If a person is held in a prison or police gaol, a member of the police force may apply to the Supreme Court or the Chief Examiner for an order that the person be delivered into the custody of the member for the purpose of bringing the person before the Chief Examiner to give evidence at an examination. (3) If the application under sub-section (2) is made to the Supreme Court, section 14(4), (5), (6), (7) and (11) apply as if a reference to— (a) a summons were a reference to an order referred to in sub-section (2); and (b) issuing a summons were a reference to making an order referred to in sub- section (2). s. 17 -- 24 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 18 (4) If the application under sub-section (2) is made to the Chief Examiner, section 15(3), (4), (5), (6) and (10) apply as if a reference to— (a) a summons were a reference to an order referred to in sub-section (2); and (b) issuing a summons were a reference to making an order referred to in sub- section (2). (5) An order made on application under sub- section (2)— (a) must be in the prescribed form; and (b) must include a statement that if the person who is the subject of the application is under the age of 16 years at the date of issue of the order, the order is of no effect and the person is not required to attend the examination; and (c) if the person is aged 16 years or over, has effect as a suspension of a direction in a warrant of commitment to deliver the person to the place of detention specified in the warrant or to hold the person in that place (as the case may be). (6) If the Supreme Court makes an order on application under sub-section (2), the applicant must cause a copy of the order to be given to the Chief Examiner as soon as practicable after the order is made. (7) At the cessation of giving evidence at an examination before the Chief Examiner or on release from compliance with the order by the Chief Examiner, the member of the police force must deliver the person who is the subject of the order to the place of detention at which the person was held or detained at the time of the application for the order. s. 18 -- 25 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 19 19. Witness expenses (1) A person who attends before the Chief Examiner in answer to a witness summons is entitled to be paid the same allowances and expenses that would be payable to a Crown witness in a criminal proceeding in the Magistrates' Court. (2) The allowances and expenses are to be paid by the Chief Commissioner. 20. Confidentiality of witness summons and orders (1) Subject to sub-sections (2) and (3), the Supreme Court or the Chief Examiner may give a person to whom a witness summons is issued under this Part or in respect of whom an order is made under section 18 or any person who executes an order under section 18 a written notice stating— (a) that the summons or order is a confidential document; and (b) that it is an offence to disclose to anyone else, except in the circumstances, if any, specified in the notice, the existence of the document or the subject-matter of the organised crime offence in relation to which the summons was issued or the order was made or any official matter connected with the summons or order, unless the person has a reasonable excuse. (2) The Supreme Court or the Chief Examiner must give a notice under sub-section (1) if satisfied that failure to do so would reasonably be expected to prejudice— (a) the safety or reputation of a person; or (b) the fair trial of a person who has been or may be charged with an offence; or s. 19 -- 26 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 20 (c) the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order was made. (3) The Supreme Court or the Chief Examiner may give a notice under sub-section (1) if satisfied that failure to do so— (a) might prejudice— (i) the safety or reputation of a person; or (ii) the fair trial of a person who has been or may be charged with an offence; or (iii) the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order was made; or (b) might otherwise be contrary to the public interest. (4) If the Supreme Court gives a notice under sub- section (1), the applicant for the witness summons or order under section 18, as the case may be, must give a copy of the notice to the Chief Examiner. (5) If the Supreme Court or the Chief Examiner gives a notice under sub-section (1), a person must not, without reasonable excuse, disclose to anyone else, except in the circumstances, if any, specified in the notice— (a) the existence of the witness summons or order; or (b) the subject-matter of the organised crime offence in relation to which the witness summons was issued or the order was made; or s. 20 -- 27 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 21 (c) any official matter connected with the witness summons or order. Penalty: 120 penalty units or imprisonment for 12 months or both. (6) It is a reasonable excuse for a person to disclose the existence of the witness summons or order or the subject-matter of the organised crime offence in relation to which it was issued or made or any official matter connected with the summons or order if— (a) the disclosure is made for the purposes of— (i) seeking legal advice in relation to the summons or order or an offence against sub-section (5); or (ii) obtaining information in order to comply with the summons or order; or (iii) the administration of this Act; and (b) the person informs the person to whom the disclosure is made that it is an offence to disclose to anyone else the existence of the summons or order or the subject-matter of the organised crime offence in relation to which it was issued or made or any official matter connected with the summons or order, unless the person has a reasonable excuse. (7) A notice under sub-section (1) ceases to have effect if after the conclusion of the police investigation of the organised crime offence— (a) no evidence of an offence has been obtained; or (b) evidence of one or more offences has been obtained but a decision has been made not to commence any criminal proceedings in which the evidence would be relevant; or s. 20 -- 28 of 184 -- Victorian Legislation Parliamentary Documents Part 2—Coercive Powers Orders and Witness Summonses Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 22 (c) evidence of one or more offences committed by only one person has been obtained and criminal proceedings have commenced against that person; or (d) evidence of one or more offences committed by 2 or more persons has been obtained and— (i) criminal proceedings have commenced against all those persons; or (ii) criminal proceedings have commenced against one or more of those persons and the Chief Commissioner has been advised that no other persons will be prosecuted. (8) If a notice under sub-section (1) ceases to have effect under sub-section (7), the Chief Examiner must give notice in writing of that fact to each person who was given the notice under sub- section (1). (9) In this section— "official matter" means any of the following— (a) the coercive powers order in reliance on which the witness summons was issued or the order under section 18 was made; (b) the investigation of the organised crime offence in relation to which the witness summons was issued or the order under section 18 was made; (c) an examination by the Chief Examiner for the purposes of that investigation; (d) any court proceedings in relation to the witness summons or the order under section 18. __________________ s. 20 -- 29 of 184 -- Victorian Legislation Parliamentary Documents Part 3—Chief Examiner and Examiners Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 23 PART 3—CHIEF EXAMINER AND EXAMINERS 21. Appointment of Chief Examiner and Examiners (1) The Governor in Council may appoint— (a) a Chief Examiner; and (b) as many Examiners as are necessary for the purposes of this Act. (2) A person is eligible for appointment as Chief Examiner or an Examiner if he or she— (a) is an Australian lawyer of at least 5 years' standing; and (b) is not a member of the Parliament of Victoria or of the Commonwealth or of another State or a Territory of the Commonwealth. (3) The Chief Examiner or an Examiner may be appointed on a full-time, part-time or sessional basis. (4) In this section— "Australian lawyer" means a person who is admitted to legal practice in Victoria or in another State or a Territory of the Commonwealth. 22. Remuneration and allowances The Chief Examiner or an Examiner is entitled to be paid the remuneration and allowances that are determined by the Governor in Council. s. 21 -- 30 of 184 -- Victorian Legislation Parliamentary Documents Part 3—Chief Examiner and Examiners Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 24 23. Terms and conditions (1) Subject to this Part, the Chief Examiner or an Examiner— (a) holds office for the period, not exceeding 5 years, specified in his or her instrument of appointment; and (b) is eligible for re-appointment; and (c) holds office on the terms and conditions determined by the Governor in Council. (2) If the Chief Examiner or an Examiner is appointed on a full-time basis, he or she must not engage, directly or indirectly, in paid employment outside the duties of Chief Examiner or Examiner without the consent of the Governor in Council. (3) The Public Sector Management and Employment Act 1998 does not apply to the Chief Examiner or an Examiner in respect of his or her office as such. 24. Vacancy, resignation, removal (1) The Chief Examiner or an Examiner ceases to hold office if he or she— (a) resigns by notice in writing delivered to the Governor in Council; or (b) becomes an insolvent under administration within the meaning of the Corporations Act; or (c) is found guilty of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or (d) ceases to be an Australian lawyer; or s. 23 -- 31 of 184 -- Victorian Legislation Parliamentary Documents Part 3—Chief Examiner and Examiners Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 25 (e) nominates for election for the Parliament of Victoria or of the Commonwealth or of any other State or any Territory of the Commonwealth; or (f) is removed from office under sub-section (2). (2) The Governor in Council may suspend or remove the Chief Examiner or an Examiner from office at any time. (3) If the Chief Examiner or an Examiner is suspended from office under sub-section (2), he or she is deemed not to be the Chief Examiner or an Examiner during the period of suspension. 25. Validity of acts and decisions An act or decision of the Chief Examiner or an Examiner is not invalid only because of a defect or irregularity in or in connection with his or her appointment. 26. Conflict of interest The Chief Examiner or an Examiner must not perform any function or duty or exercise any power under this Act in relation to a matter if— (a) he or she has a personal interest (whether pecuniary or otherwise) in the matter; and (b) the interest appears to raise a conflict of interest with the proper performance of his or her function or duty, or the proper exercise of his or her power, in relation to the matter. 27. Management of Examiners Subject to any consultation with the Examiners that is appropriate and practicable, the Chief Examiner may make arrangements as to the Examiner who is to be able to exercise the powers of the Chief Examiner under this Act in relation to a coercive powers order. s. 25 -- 32 of 184 -- Victorian Legislation Parliamentary Documents Part 3—Chief Examiner and Examiners Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 26 28. Police assistance to Chief Examiner For the purposes of section 68, a member of the police force who assists or supports the Chief Examiner in relation to the performance of functions and duties and the exercise of powers of the Chief Examiner under this Act or is otherwise involved in an examination conducted by the Chief Examiner under this Act is performing a function under this Act. __________________ s. 28 -- 33 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 27 PART 4—EXAMINATIONS 29. When Chief Examiner may conduct examinations (1) The Chief Examiner may conduct an examination of a person in relation to an organised crime offence if— (a) the Chief Examiner has received a copy of a coercive powers order made in relation to the offence; and (b) any of the following has occurred— (i) the Chief Examiner has received a copy of a witness summons directed to the person requiring him or her to appear before the Chief Examiner at an examination to give evidence or produce specified documents or other things or do both; or (ii) the Chief Examiner has issued such a witness summons directed to the person; or (iii) the Chief Examiner has received a copy of an order made under section 18 in respect of the person; or (iv) the Chief Examiner has made such an order in respect of the person. (2) The Chief Examiner may commence or continue to conduct an examination of a person 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 examination. s. 29 -- 34 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 28 (3) If the Chief Examiner is or becomes aware that proceedings referred to in sub-section (2) are on foot or have been instituted, the Chief Examiner must take all reasonable steps to ensure that the conduct of the examination does not prejudice those proceedings. 30. Conduct of examination (1) The Chief Examiner is not bound by the rules of evidence in conducting an examination and may regulate the conduct of proceedings as he or she thinks fit. (2) An examination must not be conducted at a police station or at a police gaol. 31. Preliminary requirements Before any question is asked of the witness at an examination, or the witness produces a document or other thing, the Chief Examiner must— (a) confirm the age of the witness, if the Chief Examiner suspects that the witness may be under the age of 18 years; (b) if the person is under the age of 16 years, release the person from all compliance with the witness summons or the order made under section 18, as the case may be; (c) inform the witness that the privilege against self-incrimination does not apply but that there are the restrictions on the use that can be made of evidence obtained in the course of the examination or from production of documents in accordance with the witness summons and specify those restrictions; (d) inform the witness that legal professional privilege applies and of the effect of that privilege but that, subject to that privilege, it is an offence not to answer questions or s. 30 -- 35 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 29 produce documents or other things when required or give false or misleading evidence and state the penalties for those offences; (e) inform the witness of any confidentiality requirements applying to evidence or the fact of the issue of the witness summons or the making of the order under section 18, as the case may be; (f) where applicable, inform the witness of his or her right to legal representation, to an interpreter or to have his or her parent or guardian or an independent person present with whom he or she may communicate before giving any evidence; (g) inform the witness of his or her right of complaint to the Special Investigations Monitor and that the exercise of this right will not breach any confidentiality requirements referred to in paragraph (e). 32. Witness under 16 If at any time during an examination the Chief Examiner becomes aware that a witness is under the age of 16 years, the Chief Examiner must immediately release the person from all compliance with the witness summons or the order made under section 18, as the case may be. 33. Protection of legal practitioners and witnesses (1) A legal practitioner representing a witness at an examination or a legal practitioner assisting the Chief Examiner in the examination, has the same protection and immunity as a legal practitioner has in representing a party in proceedings in the Supreme Court. s. 32 -- 36 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 30 (2) A person appearing as a witness at an examination before the Chief Examiner has the same protection and immunity as a witness has in proceedings in the Supreme Court. 34. Representation of witness (1) A witness giving evidence at an examination may be represented by a legal practitioner. (2) If a person required to give evidence at an examination does not have knowledge of the English language that is sufficient to enable him or her to understand the questioning, the Chief Examiner must, before the examination commences, arrange for the presence of a competent interpreter and defer the examination until the interpreter is present. (3) If a person required to give evidence at an examination is a person believed to have a mental impairment, the Chief Examiner must direct— (a) that an independent person is to be present during the examination, if the witness so wishes; and (b) that the witness may communicate with the independent person before giving any evidence at the examination. (4) If a person required to give evidence at an examination is a person under the age of 18 years, the Chief Examiner must direct— (a) that a parent or guardian of the witness or an independent person is to be present during the examination, if the witness so wishes; and (b) that the witness may communicate with the parent, guardian or independent person before giving any evidence at the examination. s. 34 -- 37 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 31 35. Examination to be held in private (1) An examination must be held in private and the Chief Examiner may give directions as to the persons who may be present during the examination or a part of the examination. (2) Nothing in a direction given by the Chief Examiner under sub-section (1) prevents the presence, when evidence is being taken at an examination before the Chief Examiner, of a legal practitioner representing the witness, an interpreter in accordance with section 34(2) or a parent or guardian of the witness or an independent person in accordance with section 34(3) or (4). (3) If an examination before the Chief Examiner is being held, a person must not be present at the examination unless he or she is entitled to be present by reason of a direction given by the Chief Examiner under sub-section (1) or is otherwise authorised by the Chief Examiner to be present. (4) A person who is present at an examination in contravention of sub-section (3) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). 36. Taking of evidence (1) At an examination— (a) the Chief Examiner; or (b) a legal practitioner representing the witness; or (c) any person authorised by the Chief Examiner to do so— may, so far as the Chief Examiner thinks appropriate, examine or cross-examine any witness on any matter that the Chief Examiner considers relevant to the investigation of the s. 35 -- 38 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 32 organised crime offence to which the examination relates. (2) The Chief Examiner may, at an examination, take evidence on oath or affirmation and for that purpose— (a) the Chief Examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in the prescribed form; and (b) the Chief Examiner may administer an oath or affirmation to a person so appearing at the examination. (3) A person appearing as a witness at an examination before the Chief Examiner must not, when required in accordance with sub-section (2) either to take an oath or make an affirmation, refuse or fail to comply with the requirement. (4) A person who, without reasonable excuse, contravenes sub-section (3) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). 37. Failure of witnesses to attend and answer questions (1) A person served, as prescribed by this Act, with a witness summons to appear as a witness at an examination before the Chief Examiner must not, without reasonable excuse— (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by the Chief Examiner. s. 37 -- 39 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 33 (2) A person appearing as a witness before the Chief Examiner must not— (a) at an examination, refuse or fail to answer a question that he or she is required to answer by the Chief Examiner; or (b) without reasonable excuse, refuse or fail to produce a document or other thing that he or she was required to produce by the witness summons. (3) A person who contravenes sub-section (1) or (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). (4) A person does not contravene sub-section (2)(b) if under section 41— (a) the Chief Examiner withdraws the requirement to produce the document or other thing that the person was required to produce by the witness summons; or (b) the person seals the document or other thing and gives it to the Chief Examiner. (5) A person does not contravene sub-section (1) or (2) if the person is under the age of 16 years at the date of issue of the witness summons. 38. False or misleading evidence (1) A person appearing as a witness at an examination before the Chief Examiner must not give evidence that the person knows is false or misleading in a material particular. (2) A person must not produce to the Chief Examiner in accordance with a witness summons a document or other thing that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information. s. 38 -- 40 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 34 (3) A person who contravenes sub-section (1) or (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). 39. Privilege against self-incrimination abrogated (1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty. (2) Sub-section (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons. (3) The answer, or the document or other thing, is not admissible in evidence against the person in— (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty— other than— (c) proceedings in respect of an offence against this Act; or (d) proceedings under the Confiscation Act 1997; or (e) a proceeding in respect of— (i) in the case of an answer, the falsity of the answer; or (ii) in the case of the production of a document, the falsity of any statement contained in the document. s. 39 -- 41 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 35 40. Legal professional privilege (1) If— (a) a person is required to answer a question at an examination or produce a document before the Chief Examiner; and (b) the answer to the question would disclose, or the document contains, a communication that is recognised at law as privileged on the ground of legal professional privilege— the person is, subject to sub-section (2), entitled to refuse to comply with the requirement. (2) Where— (a) a legal practitioner is required to answer a question at an examination or produce a document before the Chief Examiner; and (b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner— the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she must, if so required by the Chief Examiner, give the Chief Examiner the name and address of the person to whom or by whom the communication was made. s. 40 -- 42 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 36 41. Procedure for determining claims of legal professional privilege (1) If a person claims at an examination or on production of a document or other thing before the Chief Examiner that the document or thing is the subject of legal professional privilege, the procedure set out in this section applies. (2) The claimant must attend before the Chief Examiner in accordance with the witness summons. (3) The Chief Examiner must consider the claim of privilege and either— (a) withdraw the requirement to produce the document or other thing in relation to which the claim is made; or (b) apply to the Magistrates' Court in accordance with section 42 for determination of the claim of privilege. (4) The Chief Examiner must not inspect the document or other thing in considering the claim of privilege and may not make an authorisation under section 47. (5) If the Chief Examiner does not withdraw the requirement to produce the document or other thing in relation to which the claim of privilege is made, the Chief Examiner must require the claimant to seal the document or other thing immediately, and give it to the Chief Examiner. (6) As soon as practicable and in any event within 3 days after the sealing of the document or other thing, the Chief Examiner must give the sealed document or other thing, or cause it to be given, to a registrar of the Magistrates' Court to be held in safe custody. s. 41 -- 43 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 37 (7) A person must not open a sealed document or other thing prior to delivery to the Magistrates' Court. 42. Application to Magistrates' Court to determine legal professional privilege (1) Within 7 days after the Chief Examiner gives a sealed document or other thing to a registrar of the Magistrates' Court in accordance with section 41, the Chief Examiner may apply to the Magistrates' Court to determine whether or not the document or thing is the subject of legal professional privilege. (2) If no application is made under sub-section (1) within the period of 7 days, the registrar having safe custody of the sealed document or other thing must return the document or thing to the claimant for legal professional privilege. (3) The Chief Examiner must give notice in the prescribed form of the application to the claimant for legal professional privilege a reasonable time before the hearing of the application. (4) The claimant is entitled to appear and be heard on the hearing of the application. (5) The Magistrates' Court must determine whether or not the sealed document or other thing is the subject of legal professional privilege and for that purpose the magistrate and any other person authorised by the Court may open and inspect the sealed document or other thing. (6) If the Magistrates' Court determines that the sealed document or other thing is the subject of legal professional privilege, the Court must order that the document or other thing be returned to the claimant and the registrar of the Court who has safe custody of the document or thing must return it to the claimant. s. 42 -- 44 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 38 (7) If the Magistrates' Court determines that the sealed document or other thing is not the subject of legal professional privilege, the Court must order that the document or thing be given to the Chief Examiner and the registrar having safe custody of the document or thing must release it accordingly. (8) Subject to sub-section (5), a person must not open a sealed document or other thing or otherwise have access to the document or thing before— (a) the Magistrates' Court determines the claim of legal professional privilege; or (b) the document or thing is returned to the claimant. Penalty: 120 penalty units or imprisonment for 12 months or both. 43. Restriction on publication of evidence (1) The Chief Examiner may direct that— (a) any evidence given before the Chief Examiner; or (b) the contents of any document, or a description of any thing, produced to the Chief Examiner; or (c) any information that might enable a person who has given evidence before the Chief Examiner to be identified; or (d) the fact that any person has given or may be about to give evidence at an examination— must not be published or communicated, or must not be published or communicated except in such manner, and to such persons, as the Chief Examiner specifies. s. 43 -- 45 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 39 (2) The Chief Examiner must give a direction under sub-section (1) if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence. (3) A person who makes a publication or communication in contravention of a direction given under sub-section (1) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). (4) If— (a) a person has been charged with an offence before a court; and (b) the court considers that it may be desirable in the interests of justice that particular evidence given before the Chief Examiner, being evidence in relation to which the Chief Examiner has given a direction under sub- section (1), be made available to the person or to a legal practitioner representing the person— the court may give to the Chief Examiner or the Chief Commissioner a certificate to that effect and, if the court does so, the Chief Examiner or the Chief Commissioner (as the case requires) must make the evidence available to the court. (5) If— (a) the Chief Examiner or the Chief Commissioner makes evidence available to a court in accordance with sub-section (4); and s. 43 -- 46 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 40 (b) the court, after examining the evidence, is satisfied that the interests of justice so require— the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person. (6) Nothing in this section empowers the Chief Examiner to give a direction under sub-section (1) that would restrict the exercise of powers or the performance of duties by the Special Investigations Monitor under this Act or affect a person's right under this Act to complain to the Special Investigations Monitor. 44. Hindering or obstructing Chief Examiner or disrupting examination A person must not— (a) hinder or obstruct the Chief Examiner in the exercise of his or her functions, powers or duties; or (b) disrupt an examination before the Chief Examiner. Penalty: 10 penalty units or imprisonment for 12 months or both. 45. Video-recording of examination (1) The Chief Examiner must ensure that the examination of a witness before the Chief Examiner is video-recorded. (2) Subject to sub-section (3), evidence of anything said by a witness at an examination before the Chief Examiner is inadmissible as evidence against any person in any proceedings unless the examination of the witness in its entirety was video-recorded and the video-recording is available to be tendered in evidence. s. 44 -- 47 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 41 (3) A court may admit evidence of anything said by a witness at an examination before the Chief Examiner that is otherwise inadmissible by reason of sub-section (2) if the court is satisfied on the balance of probabilities that the circumstances— (a) are exceptional; and (b) justify the reception of the evidence. (4) The Chief Examiner must ensure that a copy of the video-recording of an examination of a witness is provided, on request, to the member of the police force who applied for the coercive powers order with respect to which the examination was conducted. 46. Warrant for arrest of witness (1) Where, on application by a member of the police force, the Supreme Court is satisfied by evidence on oath that there are reasonable grounds to believe— (a) that a person in relation to whom a witness summons has been issued under Part 2— (i) has absconded or is likely to abscond; or (ii) is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or (b) that a person has committed an offence under section 37(1) or is likely to do so— the Court may issue a warrant for the arrest of the person. s. 46 -- 48 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 42 (2) The warrant may be executed by any member of the police force and the person executing it has power to break into and enter any premises, vessel, aircraft or vehicle for the purpose of executing it. (3) The warrant may be executed even if the warrant is not at the time in the possession of the person executing it. (4) A person executing the warrant may only use the reasonable force that is necessary for the execution of the warrant. (5) Where a person is arrested under the warrant, he or she must be brought, as soon as practicable, before the Supreme Court and the Court may— (a) admit the person to bail, with any security that the Court thinks fit, on any conditions that the Court thinks necessary to ensure the appearance of the person as a witness before the Chief Examiner; or (b) order the continued detention of the person in police custody for the purpose of ensuring his or her appearance as such a witness until the person has concluded giving evidence; or (c) if the Court is satisfied that there are reasonable grounds to believe that it is necessary to prevent the person from escaping from police custody or to ensure the safety of the person, order the detention of the person in a prison or a police gaol for the purpose of ensuring his or her appearance as such a witness until the person has concluded giving evidence; or (d) order the release of the person. s. 46 -- 49 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 43 (6) Where a person is under detention under this section, the person must, within 14 days after he or she was brought, or last brought, before the Supreme Court in accordance with this section, or within such shorter or longer time as the Court has fixed on the last previous appearance of the person before the Court under this section, be again brought before the Court and the Court may then exercise any of the powers of the Court under sub-section (5). (7) If a person under detention in police custody under this section, other than a person detained in accordance with an order made under sub-section (5)(c), is required to be detained overnight, the Chief Commissioner 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. (8) If a person is detained in a prison in accordance with an order made under sub-section (5)(c), the Supreme Court may make an order 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 Chief Examiner. 47. Documents or other things produced to Chief Examiner (1) If a document or other thing is produced at an examination or to the Chief Examiner in accordance with a witness summons, the Chief Examiner may inspect the document or thing and may then authorise in writing a member of the police force to do any one or more of the following— (a) inspect the document or thing; s. 47 -- 50 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 44 (b) in the case of a document, take extracts from it or make copies of, if the member of the police force considers it necessary for the purposes of the investigation of the organised crime offence; (c) take any photographs or audio or visual recordings of the document or thing that the member of the police force considers necessary for the purposes of the investigation of the organised crime offence; (d) subject to this section, retain the document or thing if, and for so long as, the member of the police force considers that retention of the document or thing is reasonably necessary— (i) for the purposes of an investigation into an organised crime offence; or (ii) to enable evidence of an organised crime offence to be obtained for the purposes of any proceeding in relation to that offence. (2) For the purpose of doing anything referred to in sub-section (1)(a), (b) or (c), the Chief Examiner may authorise the member to retain the document or other thing for a period not exceeding 7 days that is necessary to do that thing. (3) If a member of the police force retains a document or other thing under sub-section (1)(d) for a period exceeding 7 days, he or she must, as soon as practicable, bring the document or thing before the Magistrates' Court so that the matter may be dealt with according to law. s. 47 -- 51 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 45 (4) A thing that is bulky or cumbersome may be brought before the Magistrates' Court by giving evidence on oath to the Court as to the present whereabouts of the thing and by producing a photograph of it. (5) The Magistrates' Court may direct that the thing be returned to the person who produced it to the Chief Examiner, subject to any condition that the Court thinks fit, if in the opinion of the Court it can be returned consistently with the interests of justice. (6) If a member of the police force retains a document or other thing under sub-section (1)(d), he or she must take reasonable steps to return the document or thing to the person who produced it to the Chief Examiner if the reason for its retention no longer exists. (7) If the document or thing retained has not been returned to the person who produced it to the Chief Examiner, the person may apply to the Magistrates' Court at any time for its return. 48. Magistrates' Court proceedings (1) Proceedings in the Magistrates' Court under section 42 or 47 must not be conducted in open court. (2) Unless the Magistrates' Court otherwise orders, a person must not publish a report of the whole or any part of a proceeding in the Magistrates' Court under section 42 or 47 or of any information derived from such a proceeding. (3) A person who contravenes sub-section (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum). s. 48 -- 52 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 46 49. Contempt of Chief Examiner (1) A person attending before the Chief Examiner in answer to a witness summons is guilty of a contempt of the Chief Examiner if the person— (a) fails without reasonable excuse to produce any document or other thing the person is required by the witness summons to produce; or (b) being called or examined as a witness at an examination, 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 examination; or (c) engages in any other conduct that would, if the Chief Examiner were the Supreme Court, constitute a contempt of that Court. (2) If it is alleged or appears to the Chief Examiner that a person is guilty of contempt of the Chief Examiner, the Chief Examiner 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"). (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. s. 49 -- 53 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 47 (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 Chief Examiner 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 Chief Examiner 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 sub-section (5), is required to be detained overnight, the Chief Commissioner 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. (7) If a person is detained in a prison in accordance with a direction under sub-section (5), the Chief Examiner 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. s. 49 -- 54 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 48 (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. (9) When a person is brought before a bail justice under sub-section (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 Chief Examiner 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. s. 49 -- 55 of 184 -- Victorian Legislation Parliamentary Documents Part 4—Examinations Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 49 (11) A certificate of charge is evidence of the matters set out in or attached to it. (12) This section ceases to have effect 42 months after the day on which it comes into operation. 50. No double jeopardy (1) If an act or omission constitutes both an offence against this Act or the Evidence Act 1958 and a contempt of the Chief Examiner, 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. (2) This section ceases to have effect 42 months after the day on which it comes into operation. __________________ s. 50 -- 56 of 184 -- Victorian Legislation Parliamentary Documents Part 5—Oversight by Special Investigations Monitor Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 50 PART 5—OVERSIGHT BY SPECIAL INVESTIGATIONS MONITOR 51. Role of Special Investigations Monitor The role of the Special Investigations Monitor under this Part is to— (a) monitor compliance with this Act by the Chief Examiner, Examiners, the Chief Commissioner and other members of the police force; and (b) assess the relevance of any questions asked by the Chief Examiner or an Examiner during an examination to the investigation of the organised crime offence in relation to which the coercive powers order was made; and (c) assess the relevance of any requirement made by the Chief Examiner or an Examiner for a person to produce a document or other thing to the investigation of the organised crime offence in relation to which the coercive powers order was made; and (d) investigate any complaints made to the Special Investigations Monitor under this Part; and (e) formulate recommendations and make reports as a result of performing functions under paragraphs (a), (b), (c) and (d). 52. Chief Examiner must report witness summonses and orders to Special Investigations Monitor The Chief Examiner must give a written report to the Special Investigations Monitor within 3 days after the issue of a witness summons, or the making of an order under section 18, by the Chief Examiner setting out— s. 51 -- 57 of 184 -- Victorian Legislation Parliamentary Documents Part 5—Oversight by Special Investigations Monitor Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 51 (a) the name of the person summoned or in respect of whom the order was made; and (b) the reasons the summons was issued or the order was made. 53. Chief Examiner must report other matters to Special Investigations Monitor (1) As soon as practicable after an examination has been completed, the Chief Examiner must give a written report to the Special Investigations Monitor, setting out— (a) the reasons for the examination and the place and time of the examination; and (b) the name of the witness and of any other person who was present during the examination; and (c) the relevance of the examination to the organised crime offence in relation to which the coercive powers order was made; and (d) any other prescribed matters. (2) A report under sub-section (1) must be accompanied by a copy of the video-recording made under section 45 and, if a transcript is prepared, a copy of the transcript. 54. Complaints to Special Investigations Monitor (1) A person who has been examined under this Act may make a complaint to the Special Investigations Monitor, within 3 days after the completion of the examination, about either or both of the following— (a) the relevance of any questions asked of the person to the investigation of the organised crime offence in relation to which the coercive powers order was made; s. 53 -- 58 of 184 -- Victorian Legislation Parliamentary Documents Part 5—Oversight by Special Investigations Monitor Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 52 (b) the relevance of any requirement to produce a document or other thing to the investigation of the organised crime offence in relation to which the coercive powers order was made. (2) A complaint may be made orally or in writing. 55. Special Investigations Monitor may refuse to investigate complaint The Special Investigations Monitor may refuse to investigate a complaint if he or she considers that— (a) the subject-matter of the complaint is trivial; or (b) the complaint is frivolous or vexatious or is not made in good faith. 56. Investigation of complaints (1) The Special Investigations Monitor must investigate a complaint unless he or she refuses to investigate it under section 55. (2) For the purposes of the investigation of a complaint the Special Investigations Monitor— (a) may, but is not required to, hold a hearing; and (b) may obtain information from any persons and in any manner he or she considers appropriate; and (c) may regulate the procedure as he or she thinks fit. (3) An investigation, including any hearing, is to be conducted in private. s. 55 -- 59 of 184 -- Victorian Legislation Parliamentary Documents Part 5—Oversight by Special Investigations Monitor Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 53 (4) The Special Investigations Monitor may commence or continue to investigate a complaint 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 complaint. (5) If the Special Investigations Monitor is or becomes aware that proceedings referred to in sub-section (4) are on foot or have been instituted, the Special Investigations Monitor must take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings. 57. Recommendations by Special Investigations Monitor (1) The Special Investigations Monitor may at any time make recommendations to the Chief Examiner or the Chief Commissioner as to the taking of any action that the Special Investigations Monitor considers should be taken. (2) Without limiting sub-section (1), recommended action may include— (a) taking steps to prevent any conduct from continuing or occurring in the future; (b) taking action to remedy any harm or loss arising from any conduct. (3) The Special Investigations Monitor may require the Chief Examiner or the Chief Commissioner to give a report to the Special Investigations Monitor, within the time specified by the Special Investigations Monitor stating— (a) whether or not the Chief Examiner or Chief Commissioner has taken, or proposes to take, any action recommended by the Special Investigations Monitor; and s. 57 -- 60 of 184 -- Victorian Legislation Parliamentary Documents Part 5—Oversight by Special Investigations Monitor Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 54 (b) if the Chief Examiner or Chief Commissioner has not taken any recommended action, or proposes not to take any recommended action, the reasons for not taking or proposing to take the action. (4) The Chief Examiner or the Chief Commissioner must comply with a requirement of the Special Investigations Monitor under sub-section (3). 58. Requirement to provide assistance (1) The Chief Examiner must give, and must ensure that each Examiner gives, the Special Investigations Monitor any assistance the Special Investigations Monitor reasonably requires to enable the Special Investigations Monitor to perform functions under this Act. (2) The Chief Commissioner must give, and must ensure that each member of the police force gives, the Special Investigations Monitor any assistance the Special Investigations Monitor reasonably requires to enable the Special Investigations Monitor to perform functions under this Act. 59. Powers of entry and access (1) For the purpose of performing his or her functions under this Part, the Special Investigations Monitor— (a) after notifying the Chief Examiner or the Chief Commissioner (as the case requires), may enter at any reasonable time premises occupied by the Chief Examiner or the police force; and (b) is entitled to have full and free access at all reasonable times to all records of the Chief Examiner or the police force that are relevant to the performance of the Special Investigations Monitor's functions; and s. 58 -- 61 of 184 -- Victorian Legislation Parliamentary Documents Part 5—Oversight by Special Investigations Monitor Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 55 (c) may require the Chief Examiner, an Examiner or a member of the police force to give the Special Investigations Monitor any information that the Special Investigations Monitor considers necessary, being information— (i) that is in the person's possession, or to which the person has access; and (ii) that is relevant to the performance of the Special Investigations Monitor's functions. (2) The Special Investigations Monitor may exercise a power under this section only if he or she considers that the Chief Examiner or the Chief Commissioner (as the case requires) has wilfully— (a) failed to provide information that the Chief Examiner or Chief Commissioner is required to provide in a report to the Special Investigations Monitor under this Act; or (b) failed to comply with section 58. 60. Requirement to answer questions and produce documents (1) The Special Investigations Monitor may, by written notice, require the Chief Examiner, an Examiner or a member of the police force to— (a) attend the Special Investigations Monitor at a specified time and place to answer any questions or provide any information; or (b) produce any document or other thing that is in the person's possession or control and that is relevant to the functions of the Special Investigations Monitor under this Part. s. 60 -- 62 of 184 -- Victorian Legislation Parliamentary Documents Part 5—Oversight by Special Investigations Monitor Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 56 (2) A person who is given a notice under sub-section (1) must not, without reasonable excuse— (a) fail to attend or to produce any document or other thing as required by the notice; or (b) refuse or fail to answer a question that he or she is required to answer by the Special Investigations Monitor; or (c) refuse or fail to provide any information that he or she is required to provide by the Special Investigations Monitor. (3) A person who is given a notice under sub- section (1) must not give any answer or provide any information that he or she knows is false or misleading in a material particular. (4) A person who contravenes sub-section (2) or (3) is guilty of an indictable offence and is liable to level 6 imprisonment (5 years maximum). (5) The Special Investigations Monitor may exercise a power under this section only if he or she considers that the Chief Examiner or the Chief Commissioner (as the case requires) has wilfully— (a) failed to provide information that the Chief Examiner or Chief Commissioner is required to provide in a report to the Special Investigations Monitor under this Act; or (b) failed to comply with section 58. 61. Annual and other reports by Special Investigations Monitor (1) As soon as practicable after the end of each financial year, the Special Investigations Monitor must cause a report to be laid before each House of the Parliament in relation to the performance of the Special Investigations Monitor's functions under this Part. s. 61 -- 63 of 184 -- Victorian Legislation Parliamentary Documents Part 5—Oversight by Special Investigations Monitor Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 57 (2) The report must include details of the following matters— (a) compliance with this Act during the financial year by the Chief Examiner, Examiners, the Chief Commissioner and other members of the police force; and (b) the extent to which— (i) any questions asked in examinations; and (ii) any requirements to produce documents or other things— during the financial year were relevant to the investigation of the organised crime offence in relation to which the relevant coercive powers order was made; (c) the comprehensiveness and adequacy of reports made to the Special Investigations Monitor by the Chief Examiner or the Chief Commissioner under this Act during the financial year; and (d) the extent to which action recommended by the Special Investigations Monitor to be taken by the Chief Examiner or the Chief Commissioner has been taken during the financial year. (3) The Special Investigations Monitor may at any time cause a report to be laid before each House of the Parliament on any matter relevant to the performance of the Special Investigations Monitor's functions under this Part. s. 61 -- 64 of 184 -- Victorian Legislation Parliamentary Documents Part 5—Oversight by Special Investigations Monitor Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 58 (4) A report under this section must not contain any information that identifies, or is likely to identify— (a) any person who has been examined under this Act; or (b) the nature of any ongoing investigation of an organised crime offence. 62. Report on operation of this Part (1) The Special Investigations Monitor must cause a report to be laid before each House of the Parliament on the operation of this Part. (2) The report must be laid before each House after the second anniversary of the commencement of this Part but before the third anniversary of that commencement. (3) The report must include the opinion of the Special Investigations Monitor as to— (a) the need for this Act; and (b) the adequacy of the performance of the Chief Examiner, Examiners and members of the police force of functions and powers under this Act. (4) The report under this section must not contain any information that identifies, or is likely to identify— (a) any person who has been examined under this Act; or (b) the nature of any ongoing investigation of an organised crime offence. s. 62 -- 65 of 184 -- Victorian Legislation Parliamentary Documents Part 5—Oversight by Special Investigations Monitor Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 59 63. Crown privilege or secrecy does not apply (1) No obligation to maintain secrecy or other restriction on the disclosure of information obtained by or furnished to a person, where imposed by any enactment or any rule of law, applies to the disclosure of information to the Special Investigations Monitor under this Act. (2) A person is not, in relation to a requirement by the Special Investigations Monitor to answer a question, provide information or produce a document or other thing, entitled to any privilege in respect of the production of documents or the giving of evidence as is allowed to the Crown by law in legal proceedings. (3) Subject to sub-sections (1) and (2), a person cannot be compelled by the Special Investigations Monitor under this Act to produce any document or give any evidence that the person could not be compelled to produce or give in proceedings before a court. 64. Obstruction (1) A person must not, without reasonable excuse, obstruct, hinder, threaten or abuse the Special Investigations Monitor in the performance of the Special Investigations Monitor's functions under this Act. Penalty: 10 penalty units or imprisonment for 12 months or both. (2) Proceedings may only be instituted for an offence under sub-section (1)— (a) by the Special Investigations Monitor; or (b) by or with the consent of the Director of Public Prosecutions. __________________ s. 63 -- 66 of 184 -- Victorian Legislation Parliamentary Documents Part 6—Miscellaneous Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 60 PART 6—MISCELLANEOUS 65. Delegation (1) The Chief Commissioner may, by instrument, delegate to a member of the police force of or above the rank of Assistant Commissioner of Police a power of the Chief Commissioner to approve applications for a coercive powers order or applications for the extension or variation of a coercive powers order. (2) The Chief Commissioner may, by instrument, delegate to a member of the police force of or above the rank of Commander a power of the Chief Commissioner under section 67. (3) Section 6A of the Police Regulation Act 1958 does not apply to any power, discretion, function, authority or duty of the Chief Commissioner under this Act. (4) The Chief Examiner may, by instrument, delegate to an Examiner any function, duty or power of the Chief Examiner under this Act other than— (a) the duty to make reports under section 52 or 53; or (b) this power of delegation. 66. Obligations of Chief Commissioner The Chief Commissioner must— (a) ensure that records are kept as prescribed on any prescribed matter; and (b) ensure that a register is kept as prescribed of the prescribed matters in relation to all documents or other things retained under section 47 and that the register is available for inspection by the Special Investigations Monitor; and s. 65 -- 67 of 184 -- Victorian Legislation Parliamentary Documents Part 6—Miscellaneous Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 61 (c) report in writing to the Special Investigations Monitor every 6 months on such matters as are prescribed and on any other matter that the Special Investigations Monitor considers appropriate for inclusion in the report. 67. Information sharing (1) The Chief Commissioner may give to— (a) any law enforcement agency; or (b) any foreign law enforcement agency; or (c) any other agency or body of the State, the Commonwealth, another State or a Territory prescribed by the regulations— any information derived under a coercive powers order that is in the possession of the Chief Commissioner and that is relevant to the activities of that agency or body if— (d) it appears to the Chief Commissioner to be appropriate to do so; and (e) to do so would not be contrary to a law of the State, the Commonwealth or that other State or that Territory that would otherwise apply. (2) The Chief Commissioner may, whenever it appears to the Chief Commissioner to be appropriate to do so, furnish to authorities and persons responsible for taking civil remedies by or on behalf of the Crown in right of the State or of the Commonwealth or of another State or of a Territory any information derived under a coercive powers order that is in the possession of the Chief Commissioner and that may be relevant for the purposes of so taking such remedies in respect of matters connected with, or arising out of, offences against the laws of the State, the Commonwealth or that other State or the Territory, as the case requires. s. 67 -- 68 of 184 -- Victorian Legislation Parliamentary Documents Part 6—Miscellaneous Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 62 (3) Where any information relating to the performances of the functions of— (a) a Department of State of the State or of the Commonwealth; or (b) the Administration of a Territory; or (c) an instrumentality of the State, the Commonwealth, another State or a Territory— comes into the possession of the Chief Commissioner under a coercive powers order, the Chief Commissioner may, if he or she considers it desirable to do so, furnish that information to the Department, the Administration or the instrumentality. (4) The Chief Commissioner may, whenever it appears to the Chief Commissioner to be appropriate to do so, furnish to the Australian Security Intelligence Organisation any information derived under a coercive powers order that is in the possession of the Chief Commissioner and that is relevant to security as defined in section 4 of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth. (5) In this section— "foreign law enforcement agency" means— (a) a police force (however described) of a foreign country; or (b) any other authority or person responsible for the enforcement of the laws of the foreign country; s. 67 -- 69 of 184 -- Victorian Legislation Parliamentary Documents Part 6—Miscellaneous Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 63 "law enforcement agency" means— (a) the Australian Federal Police; or (b) a police force of a State or a Territory; or (c) any other authority or person responsible for the enforcement of the laws of the Commonwealth or of a State or a Territory. 68. Secrecy (1) This section applies to— (a) the Chief Examiner; and (b) an Examiner; and (c) the Special Investigations Monitor; and (d) any employee referred to in section 13 of the Major Crime (Special Investigations Monitor) Act 2004; and (e) a member of the police force. (2) A person to whom this section applies who, either directly or indirectly, except for the purposes of this Act or otherwise in connection with the performance of his or her functions under this Act or, in the case of a member of the police force, for the purposes of investigating or prosecuting an offence, and either while he or she is or after he or she ceases to be a person to whom this section applies— (a) makes a record of any information; or (b) divulges or communicates to any person any information— being information acquired by him or her by reason of, or in the course of, the performance of his or her functions under this Act, is guilty of an s. 68 -- 70 of 184 -- Victorian Legislation Parliamentary Documents Part 6—Miscellaneous Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 64 indictable offence and liable to level 6 imprisonment (5 years maximum). (3) A person to whom this section applies cannot be required to produce in any court any document that has come into his or her custody or control in the course of, or by reason of, the performance of his or her functions under this Act, or to divulge or communicate to a court a matter or thing that has come to his or her notice in the performance of those functions, except where the Chief Examiner, an Examiner, the Special Investigations Monitor or the member of the police force in his or her official capacity, is a party to the relevant proceeding or it is necessary to do so— (a) for the purpose of carrying into effect the provisions of this Act; or (b) for the purposes of a prosecution instituted as a result of an investigation carried out by the police force into an organised crime offence. (4) In this section— "court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions; "produce" includes permit access to, and "production" has a corresponding meaning. 69. Exemption from Freedom of Information Act 1982 The Freedom of Information Act 1982 does not apply to a document that is in the possession of the Special Investigations Monitor or any employee of the Special Investigations Monitor to the extent to which the document discloses information that relates to an examination under this Act. s. 69 -- 71 of 184 -- Victorian Legislation Parliamentary Documents Part 6—Miscellaneous Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 65 70. 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 limited application; and (b) may differ according to differences in time, place or circumstance. __________________ s. 70 -- 72 of 184 -- Victorian Legislation Parliamentary Documents Part 7—Ombudsman Act 1973 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 66 PART 7—OMBUDSMAN ACT 1973 71. Consequential amendments in relation to the Sex Offenders Registration Act 2004 In the Ombudsman Act 1973— (a) in section 13(3A)(c)(i), for ", (2AB) or section 6A(3A)" substitute "or (2AB)"; (b) Division 3B of Part IV is repealed; (c) section 25B is repealed. 72. Procedure on completion of investigation (1) In section 23(3) of the Ombudsman Act 1973, after "municipality" insert "and may send a copy to the Premier". (2) For section 23(6) of the Ombudsman Act 1973 substitute— "(6) If a copy of any report and recommendations together with a copy of any comments has been sent to the Governor in Council under sub-section (5), the Ombudsman may make a report to the Parliament on any of the matters to which the report and recommendations relate that the Ombudsman thinks fit.". 73. New section 25 substituted and section 25AA inserted For section 25 of the Ombudsman Act 1973 substitute— "25. Annual and other reports to Parliament (1) The Ombudsman must make a report to Parliament on the performance of his or her functions during each financial year. See: Act No. 8414. Reprint No. 6 as at 1 January 2002 and amending Act Nos 2/2001, 23/2002, 103/2003, 26/2004, 32/2004 and 56/2004. LawToday: www.dms. dpc.vic. gov.au s. 71 -- 73 of 184 -- Victorian Legislation Parliamentary Documents Part 7—Ombudsman Act 1973 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 67 (2) The Ombudsman may at any time make a report to Parliament on any matter arising in connection with the performance of his or her functions. (3) Nothing in this section limits the Ombudsman's right to make a report to Parliament under any other provision of this Act. 25AA. Transmission of reports to Parliament (1) The Ombudsman must cause a report under section 23(6) or 25 to be transmitted to each House of the Parliament— (a) in the case of a report under section 25(1)—as soon as practicable after the end of the financial year to which it relates; (b) in the case of a report under sub- section 23(6) or 25(2)—as soon as practicable after it is completed. (2) The clerk of each House of the Parliament must cause the report to be laid before the House on the day on which it is received or on the next sitting day of the House. (3) If the Ombudsman proposes to transmit a report to Parliament when Parliament is in recess, the Ombudsman must— (a) give one business day's notice of his or her intention to do so to the clerk of each House of the Parliament; and (b) give the report to the clerk of each House on the day indicated in the notice; and (c) publish the report on the Ombudsman's Internet website as soon as practicable after giving it to the clerks. s. 73 -- 74 of 184 -- Victorian Legislation Parliamentary Documents Part 7—Ombudsman Act 1973 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 68 (4) The clerk of each House must— (a) notify each member of the House of the receipt of a notice under sub-section (3)(a) on the same day that the clerk receives that notice; and (b) give a copy of a report to each member of the House as soon as practicable after the report is received under sub- section (3)(b); and (c) cause the report to be laid before the House on the next sitting day of the House. (5) A report that is given to the clerks under sub- section (3)(b) is taken to have been published by order, or under the authority, of the Houses of the Parliament. (6) The publication of a report by the Ombudsman under sub-section (3)(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 report to which those sections applied and had been published by the Government Printer under the authority of the Parliament. (7) For the purposes of this section, Parliament is in recess when each House stands adjourned to a date to be fixed by the presiding officer of that House.". __________________ s. 73 -- 75 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 69 PART 8—POLICE REGULATION ACT 1958 74. Definitions In section 3(1) of the Police Regulation Act 1958 insert the following definitions— ' "police gaol" has the same meaning as in the Corrections Act 1986; "prison" has the same meaning as in the Corrections Act 1986 but includes a youth training centre established under section 249 of the Children and Young Persons Act 1989; "Special Investigations Monitor" means the Special Investigations Monitor appointed under section 5 of the Major Crime (Special Investigations Monitor) Act 2004;'. 75. Amendment of existing immunity provision After section 86J(5) of the Police Regulation Act 1958 insert— '(6) In this section— "officer of the Ombudsman" means a person who has taken an oath or made an affirmation under section 10(2) of the Ombudsman Act 1973. (7) Sub-section (6) applies, and must be taken always to have applied, at all times on and after 11 May 1988.'. See: Act No. 6338. Reprint No. 9 as at 1 January 2003 and amending Act Nos 52/2003, 10/2004 and 32/2004. LawToday: www.dms. dpc.vic. gov.au s. 74 -- 76 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 70 76. Protection of Director etc. (1) For section 86J(2) and (3) of the Police Regulation Act 1958 substitute— "(2) No civil or criminal proceedings may be brought against a person referred to in sub- section (1) in respect of any act of a kind referred to in that sub-section without the leave of the Supreme Court. (3) The Supreme Court may not give leave unless it is satisfied that there is substantial ground to believe that the person to be proceeded against has acted in bad faith.". (2) For section 86J(5) of the Police Regulation Act 1958 substitute— "(5) A person referred to in sub-section (1) may not be called to give evidence in any court or in any legal proceedings or before the Appeals Board in respect of any matter coming to his or her knowledge in the exercise of functions under this Act.". (3) Section 86J(6) and (7) of the Police Regulation Act 1958 are repealed. 77. New section 86JA inserted After section 86J of the Police Regulation Act 1958 insert— "86JA. Protection of legal practitioners and witnesses (1) A legal practitioner representing a person in an investigation under this Part, or a legal practitioner assisting the Director in the investigation, has the same protection and immunity as a legal practitioner has in representing a party in proceedings in the Supreme Court. s. 76 -- 77 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 71 (2) A person appearing as a witness in an investigation under this Part has the same protection and immunity as a witness has in proceedings in the Supreme Court.". 78. Offences In section 86K of the Police Regulation Act 1958— (a) in sub-section (1)(b), after "Director" insert "or any other person"; (b) sub-section (2) is repealed. 79. New sections 86KA to 86KD inserted After section 86K of the Police Regulation Act 1958 insert— '86KA. Confidentiality of summons (1) This section applies if the Director issues a summons to a person under section 17 of the Evidence Act 1958 in relation to an investigation under this Part. (2) The Director may give the person to whom the summons is issued a written notice stating— (a) that the summons is a confidential document; and (b) that it is an offence to disclose to anyone else the existence of the summons or the subject-matter of the investigation to which it relates unless the person has a reasonable excuse. s. 78 -- 78 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 72 (3) If the Director gives a notice under sub- section (2), a person must not disclose to anyone else the existence of the summons or the subject-matter of the investigation to which it relates, unless the person has a reasonable excuse. Penalty: 120 penalty units or imprisonment for 12 months or both. (4) It is a reasonable excuse for a person to disclose the existence of the summons or the subject-matter of the investigation to which it relates if— (a) the disclosure is made for the purposes of— (i) seeking legal advice in relation to the summons or an offence against sub-section (3); or (ii) obtaining or providing information in order to comply with the summons; or (iii) the administration of this Act; and (b) the person informs the person to whom the disclosure is made that it is an offence to disclose to anyone else the existence of the summons or the subject-matter of the investigation to which it relates unless the person has a reasonable excuse. s. 79 -- 79 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 73 86KB. Contempt of Director (1) A person attending an investigation under this Part 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. 79 -- 80 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 74 (3) An arrest warrant— (a) may be directed to— (i) a named member of the force; or (ii) generally all members of the 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 sub- section (5), is required to be detained overnight, the Chief Commissioner 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. 79 -- 81 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 75 (7) If a person is detained in a prison in accordance with a direction under sub- section (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. 79 -- 82 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 76 (9) When a person is brought before a bail justice under sub-section (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. 86KC. 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. 86KD. Sunset of contempt provisions Sections 86KB and 86KC cease to have effect 42 months after the day on which section 79 of the Major Crime (Investigative Powers) Act 2004 comes into operation.'. 80. Complaints In section 86N(5) of the Police Regulation Act 1958, for "must in writing give the Chief Commissioner the prescribed details" substitute "may give the Chief Commissioner details". s. 80 -- 83 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 77 81. Investigations (1) For section 86NA(1) of the Police Regulation Act 1958 substitute— "(1) The Director may conduct an investigation under this Part on his or her own motion in respect of any matter that is relevant to the achievement of his or her objects, including but not limited to— (a) an investigation into the conduct of a member of the force; or (b) an investigation into police corruption or serious misconduct generally; or (c) an investigation into any of the policies, practices or procedures of the force or of a member of the force, or the failure of those policies, practices or procedures. (1A) For the purposes of sub-section (1), the Director may conduct an investigation— (a) whether or not any particular member of the force or other person has been implicated; (b) whether or not any serious misconduct or other misconduct is suspected; (c) whether or not any person under investigation who was a member of the force at any relevant time is still a member of the force at the time of the investigation.". (2) Section 86NA(3) of the Police Regulation Act 1958 is repealed. s. 81 -- 84 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 78 (3) In section 86P(1) of the Police Regulation Act 1958— (a) in paragraph (c), for "representation." substitute "representation; and"; (b) after paragraph (c) insert— "(d) subject to this Act, may regulate the procedure as he or she thinks fit.". (4) In section 86P(2) of the Police Regulation Act 1958, for "must" substitute "may". (5) For section 86P(3) and (4) of the Police Regulation Act 1958 substitute— "(3) The Director may commence or continue to conduct an investigation under this Part 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. (4) If the Director is or becomes aware that proceedings referred to in sub-section (3) are on foot or have been instituted, the Director must take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings.". (6) For section 86P(5)(a) of the Police Regulation Act 1958 substitute— "(a) may make a written report on the results of the investigation to any one or more of— (i) the Chief Commissioner; (ii) the Minister; (iii) the Premier; and". s. 81 -- 85 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 79 82. Evidence in Director investigations (1) For section 86PA(1) of the Police Regulation Act 1958 substitute— "(1) Sections 17, 18, 19, 19A, 19B, 20 and 20A of the Evidence Act 1958 apply to and in relation to an investigation conducted by the Director as if— (a) the Director were the sole commissioner issued with a commission by the Governor in Council; and (b) a reference in section 20 of the Evidence Act 1958 to a law officer were a reference to the Director of Public Prosecutions.". (2) After section 86PA(5) of the Police Regulation Act 1958 insert— "(5A) For the purposes of sub-section (4), the Director may certify in respect of— (a) particular information, or any or all information of a particular class, to be provided by a particular person; or (b) particular evidence, or any or all evidence of a particular class, to be given by a particular person. Example For example, the Director could certify under sub- section (4) in respect of a single question to be asked of a witness, or in respect of all questions on a particular topic to be asked of a witness. (5B) For the avoidance of doubt, the Director is not required to give reasons for certifying under sub-section (4).". s. 82 -- 86 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 80 (3) In section 86PA(8) of the Police Regulation Act 1958— (a) in paragraph (d), for "1958." substitute "1958; or"; (b) after paragraph (d) insert— "(e) contempt of the Director under section 86KB.". 83. New sections 86PB to 86PE inserted After section 86PA of the Police Regulation Act 1958 insert— '86PB. Video-recording of examination (1) This section applies if a person attends the Director in the course of an investigation under this Part for the purposes of providing information, producing a document or thing or giving evidence (whether voluntarily or in answer to a summons issued under section 17 of the Evidence Act 1958 or otherwise). (2) The Director must ensure that the person's attendance is video-recorded. (3) Subject to sub-section (4), evidence of anything said by the person during the attendance is inadmissible as evidence against any person in any proceedings unless the attendance in its entirety was video- recorded and the video-recording is available to be tendered in evidence. s. 83 -- 87 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 81 (4) A court may admit evidence of anything said by a person during an attendance that is otherwise inadmissible by reason of sub- section (3) if the court is satisfied on the balance of probabilities that the circumstances— (a) are exceptional; and (b) justify the reception of the evidence. 86PC. Underage and impaired witnesses (1) Despite anything to the contrary in the Evidence Act 1958— (a) the Director must not issue a summons under section 17 of that Act directed to a person known to be under the age of 16 years; and (b) a summons issued under that section must include a statement that if the person summoned is under the age of 16 years at the date of issue of the summons, the person need not comply with the summons; and (c) a summons directed to a person under the age of 16 years at the date of issue of the summons has no effect. (2) A person who claims to be under the age of 16 years at the date of issue of a summons directed to the person must give notice in writing and proof of age to the Director. (3) If the Director suspects that a person attending the Director in answer to a summons may be under the age of 18 years, the Director must confirm the person's age before any question is asked of the person or the person produces a document or other thing. s. 83 -- 88 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 82 (4) If, at any time during the attendance of a person in answer to a summons, the Director becomes aware that the person is under the age of 16 years, the Director must immediately release the person from all compliance with the summons. (5) If a person required to attend the Director is a person under the age of 18 years, the Director must direct— (a) that a parent or guardian of the person or an independent person is to be present during the person's attendance, if the person so wishes; and (b) that the person may confer with the parent, guardian or independent person before providing any information, producing any document or thing or giving any evidence. (6) If a person required to attend the Director is a person believed by the Director to have a mental impairment, the Director must direct— (a) that an independent person is to be present during the person's attendance, if the person so wishes; and (b) that the person may confer with the independent person before providing any information, producing any document or thing or giving any evidence. (7) In this section— "mental impairment" includes impairment because of mental illness, intellectual disability, dementia or brain injury. s. 83 -- 89 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 83 86PD. Arrest of recalcitrant witnesses (1) The Director may apply to a magistrate for the issue of a warrant to arrest a person, if the Director believes on reasonable grounds that the person has been duly served with a summons under section 17 of the Evidence Act 1958 and has failed to attend before the Director in answer to the summons. (2) A magistrate may issue a warrant to arrest a person if satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for the belief under sub- section (1). (3) The authority given by, and the rules to be observed with respect to, warrants to arrest under Subdivision 2 of Division 3 of Part 4 of the Magistrates' Court Act 1989 (other than section 62 or 64(2), (3) or (4)) extend and apply to warrants under this section. (4) The person arrested— (a) must be brought before the Director as soon as practicable; and (b) may be detained in police custody until excused from attendance by the Director. (5) If the Director is satisfied that there are reasonable grounds to believe that it is necessary to prevent the 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 attendance at the investigation. s. 83 -- 90 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 84 (6) If a person detained in police custody under this section, other than a person detained in accordance with a direction under sub- section (5), is required to be detained overnight, the Chief Commissioner 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. (7) If a person is detained in a prison in accordance with a direction under sub- section (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 Director. (8) If it is not practicable for the person to be brought before the Director as soon as practicable 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 s. 83 -- 91 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 85 (ii) cause to be produced before the bail justice the arrest warrant for the person; and (iii) abide by the decision of the bail justice in relation to the person. (9) When a person is brought before a bail justice under sub-section (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) The issue of a warrant under this section, or the arrest of a person under the warrant, does not relieve the person from any liability for non-compliance with a summons. 86PE. Witness already held in custody (1) This section applies if— (a) a summons is issued under section 17 of the Evidence Act 1958 for the purposes of an investigation under this Part; and (b) the summons is directed to a person who is held in a prison or police gaol. (2) The Director may give a written direction that the person be delivered into the custody of a member of the force for the purpose of bringing the person before the Director to provide information, produce a document or thing or give evidence as required by the summons. s. 83 -- 92 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 86 (3) A direction under sub-section (2)— (a) must be in the prescribed form; and (b) must include a statement that if the person who is the subject of the direction is under the age of 16 years at the date the direction is given, the direction is of no effect and the person is not required to attend the Director; and (c) if the person is aged 16 years or over, has effect as a suspension of a direction in a warrant of commitment to deliver the person to the place of detention specified in the warrant or to hold the person in that place (as the case may be). (4) The person is to be detained in police custody until he or she is excused by the Director from attendance in the investigation. (5) When the person is excused from attendance by the Director, the member of the force must deliver the person who is the subject of the direction to the place of detention at which the person was held or detained at the time the direction was given.'. 84. Referrals to the DPP (1) In section 86QA(1) of the Police Regulation Act 1958, for "the question of whether or not criminal proceedings should be taken against a member of the force" substitute "any matter that is relevant to the performance of functions or duties by the Director of Public Prosecutions". s. 84 -- 93 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 87 (2) For section 86QA(2) of the Police Regulation Act 1958 substitute— "(2) If the Director refers a matter to the Director of Public Prosecutions under sub-section (1), the Director may include that fact, and any details of the referral that the Director considers appropriate, in any report of the investigation under section 86P(5).". (3) In section 86R(3)(b) of the Police Regulation Act 1958, for "the question of whether or not criminal proceedings should be taken against any member of the force" substitute "any matter that is relevant to the performance of functions or duties by the Director of Public Prosecutions". (4) In section 86R(4) of the Police Regulation Act 1958, for "question" substitute "matter". 85. New section 86S substituted For section 86S of the Police Regulation Act 1958 substitute— "86S. Chief Commissioner to respond to Director If, under this Part, the Director requests the Chief Commissioner to take any action, or to conduct a further investigation, the Chief Commissioner must give a written response to the Director stating— (a) whether or not the Chief Commissioner proposes to take the action or conduct the further investigation; and (b) if the Chief Commissioner does not propose to take the action or conduct the further investigation, the reasons for that decision.". s. 85 -- 94 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 88 86. Advice to complainant After section 86T(2) of the Police Regulation Act 1958 insert— "(3) Sub-section (1) or (2) does not apply if the Chief Commissioner or the Director (as the case requires) is of the opinion that it would be contrary to the public interest to advise the complainant of the results of the investigation or of the action taken or proposed to be taken.". 87. New sections 86VA to 86VH inserted After the heading to Division 3 of Part IVA of the Police Regulation Act 1958 insert— '86VA. Definitions (1) In this Division— "authorised officer" means— (a) the Director; or (b) a member of staff of the Office of Police Integrity who is authorised under sub-section (2); or (c) a person who has taken an oath or made an affirmation under section 102D(3) and who is authorised under sub-section (2); "chief executive", of a public authority, means— (a) in relation to the force—the Chief Commissioner; or (b) in relation to an Agency within the meaning of the Public Sector Management and Employment Act 1998—the Agency Head of s. 86 -- 95 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 89 the Agency within the meaning of that Act; or (c) in relation to any other body, whether or not incorporated, established by or under an Act for a public purpose—the chief executive officer, by whatever name called, of the body; "court day" means a day on which the registry of the Magistrates' Court is open for business; "public authority" means— (a) the force; or (b) an Agency within the meaning of the Public Sector Management and Employment Act 1998; or (c) any other body, whether or not incorporated, established by or under an Act for a public purpose. (2) The Director may authorise a member of staff of the Office of Police Integrity or a person who has taken an oath or made an affirmation under section 102D(3) to exercise the powers of an authorised officer under this Division. 86VB. Power to enter public authority premises (1) An authorised officer may— (a) enter at any time premises occupied by a public authority at which the authorised officer reasonably believes there are documents or other things that are relevant to an investigation under this Part; and s. 87 -- 96 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 90 (b) inspect or copy any document or other thing found at any premises entered under paragraph (a); and (c) do anything that it is necessary or convenient to do to enable an inspection to be carried out under this section. (2) On exercising a power of entry under this section, the authorised officer must— (a) identify himself or herself to a person at the premises; and (b) announce that he or she is authorised to enter the premises. (3) An authorised officer must not inspect or copy a document or thing under sub- section (1)(b) if— (a) a person at the premises claims that the document or thing is the subject of legal professional privilege; or (b) no claim is made that the document or thing is the subject of legal professional privilege but— (i) it appears to the authorised officer that the document or thing may be the subject of legal professional privilege; and (ii) it does not appear to the authorised officer that the person entitled to the benefit of that privilege has consented to the inspection or production. Note: Section 86VE sets out the procedure to be followed if the authorised officer wants to inspect or copy a document or thing that may be the subject of legal professional privilege. s. 87 -- 97 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 91 (4) An authorised officer does not have authority under this section to enter any part of premises that is used for residential purposes. 86VC. Power to seize documents or things at public authority premises (1) An authorised officer who exercises a power of entry under section 86VB may seize a document or thing at the premises if the authorised officer reasonably suspects that— (a) the document or other thing is relevant to an investigation under this Part; and (b) if the document or other thing is not immediately seized— (i) it may be concealed or destroyed; or (ii) its forensic value may be diminished. (2) An authorised officer must not seize a document or thing under sub-section (1) if— (a) a person at the premises claims that the document or thing is the subject of legal professional privilege; or (b) no claim is made that the document or thing is the subject of legal professional privilege but— (i) it appears to the authorised officer that the document or thing may be the subject of legal professional privilege; and s. 87 -- 98 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 92 (ii) it does not appear to the authorised officer that the person entitled to the benefit of that privilege has consented to the seizure. Note: Section 86VE sets out the procedure to be followed if the authorised officer wants to seize a document or thing that may be the subject of legal professional privilege. (3) A document or other thing seized under this section cannot be used for the purposes of any investigation under this Part until— (a) the period for making an application under section 86VG for return of the document or thing has expired; or (b) if an application is made within that period—the application and any appeal in relation to it have been finally determined. 86VD. Copying of, access to or receipt for things seized (1) If an authorised officer seizes— (a) a document, disk or tape or other thing that can be readily copied; or (b) a storage device the information in which can be readily copied— under section 86VC, the authorised officer, on request by a person at the premises, must give a copy of the thing or information to the person as soon as practicable after the seizure. s. 87 -- 99 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 93 (2) The authorised officer may refuse a request under sub-section (1) if— (a) the Director is satisfied that the work involved in copying the thing or information would substantially and unreasonably— (a) divert the resources of the Office of Police Integrity from its other operations; or (b) interfere with the performance of the Director's functions; or (b) the Director is of the opinion that it is not in the public interest to give a copy of the thing or information to the person. (3) An authorised officer must not refuse a request under sub-section (1), unless the authorised officer has— (a) given the person who made the request a written notice stating an intention to refuse the request; and (b) given the person a reasonable opportunity to make a further request for a copy of the thing or information in a form that would remove the ground for refusal; and (c) as far as is reasonably practicable, provided the person with any information that would assist the making of the further request in such a form. s. 87 -- 100 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 94 (4) An authorised officer is not required to provide any information under sub-section (3)(c) if the Director is of the opinion that it is not in the public interest for the information to be provided. (5) If an authorised officer refuses a request under sub-section (1)— (a) the authorised officer must provide a receipt for the thing seized; and (b) the Director, on request by the chief executive of the public authority at whose premises the thing was seized, must permit the chief executive to have access to the thing or information unless the Director is of the opinion that it is not in the public interest for the chief executive to have access. (6) The Director must not refuse a request for access under sub-section (5)(b), unless the Director has— (a) given the chief executive a written notice stating an intention to refuse to give access; and (b) given the chief executive a reasonable opportunity to make a further request for access in a form that that would remove the ground for refusal; and (c) as far as is reasonably practicable, provided the chief executive with any information that would assist the making of the further request in such a form. s. 87 -- 101 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 95 (7) The Director is not required to provide any information under sub-section (6)(c) if the Director is of the opinion that it is not in the public interest for the information to be provided. (8) For the avoidance of doubt, an authorised officer or the Director is not required to give reasons for refusing a request under this section. 86VE. Procedure for documents that may be subject to legal professional privilege (1) This section applies if— (a) any of the circumstances referred to in section 86VB(3) or 86VC(2) apply; and (b) the authorised officer still wants to inspect, copy or seize the document or thing (as the case requires). (2) In the circumstances referred to in section 86VB(3)(a) or 86VC(2)(a), the authorised officer must require the person claiming that the document or thing is the subject of legal professional privilege (the "claimant") to seal the document or thing immediately, or arrange for it to be sealed immediately, and give it, or arrange for it to be given, to the authorised officer. (3) The claimant must immediately seal the document or thing, or arrange for it to be sealed, under the authorised officer's supervision and give it, or arrange for it to be given, to the authorised officer. Penalty: 120 penalty units or imprisonment for 12 months or both. s. 87 -- 102 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 96 (4) In the circumstances referred to in section 86VB(3)(b) or 86VC(2)(b), the authorised officer may take possession of the document or thing and must seal the document or thing immediately. (5) The authorised officer must immediately give the sealed document or thing to a registrar of the Magistrates' Court to be held in safe custody. (6) The registrar must keep the sealed document or thing in safe custody until— (a) an application is made to the Magistrates' Court under section 86VF to decide whether or not the document or thing is the subject of legal professional privilege; or (b) the end of 3 court days after the day on which the sealed document or thing is given to the registrar, if an application has not been made under section 86VF; or (c) the registrar is told by a person who appears to be entitled to the benefit of legal professional privilege and the authorised officer that agreement has been reached on the disposal of the sealed document or thing. (7) The registrar must— (a) if an application is made to the Magistrates' Court under section 86VF—dispose of the sealed document or thing in the way ordered by the court; or s. 87 -- 103 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 97 (b) if an application is not made by the end of 3 court days after the day on which the sealed document or thing is given to the registrar—give the sealed document or thing to a person who appears to be entitled to the benefit of legal professional privilege; or (c) if a person who appears to be entitled to the benefit of legal professional privilege and the authorised officer give the registrar notice that an agreement on the disposal of the sealed document or thing has been reached—dispose of the sealed document or thing in the way agreed. (8) The registrar is entitled to open and inspect the sealed document or thing solely for the purpose of performing a function under sub- section (6)(c) or (7)(b) or (c). (9) A person must not open a sealed document or thing unless authorised to open it under this Act or a court order. Penalty: 120 penalty units or imprisonment for 12 months or both. 86VF. Application to Magistrates' Court to decide on legal professional privilege (1) Within 3 court days after an authorised officer gives a sealed document or thing to a registrar of the Magistrates' Court under section 86VE, the Director must apply to the Magistrates' Court to determine whether or not the document or thing is the subject of legal professional privilege. s. 87 -- 104 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 98 (2) The Magistrates' Court must decide whether or not the sealed document or thing is the subject of legal professional privilege and for that purpose the magistrate and any other person authorised by the Court may open and inspect the sealed document or thing. (3) If the Magistrates' Court decides that the sealed document or thing is the subject of legal professional privilege, the Court may order that the document or thing be given to a person entitled to the benefit of the privilege. (4) If the Magistrates' Court decides that the sealed document or thing is not the subject of legal professional privilege, the Court may order that the document or thing be released to an authorised officer for the purpose of the exercise of the authorised officer's powers under this Division. 86VG. Application for return of things seized (1) Within 7 days after a document or thing is seized by an authorised officer under section 86VC, an interested person may apply to the Magistrates' Court for an order setting aside the seizure and requiring the Director to deliver the document or thing to the interested person. (2) On an application under sub-section (1), the Magistrates' Court may make an order setting aside the seizure and requiring the Director to deliver the document or thing to the interested person if the Court is satisfied that the grounds for the seizure did not, or no longer, exist. s. 87 -- 105 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 99 (3) The interested person has the burden of proving that the grounds for the seizure did not, or no longer, exist. (4) In this section— "interested person" in relation to a document or thing, means— (a) the chief executive of the public authority at whose premises the document or thing was seized; or (b) a person authorised by the chief executive to apply under this section on the chief executive's behalf; or (c) any other person who claims to have a legal or equitable interest in the document or thing. 86VH. Return of things seized (1) The Director must return a document or thing seized under section 86VC to the chief executive of the public authority at whose premises it was seized— (a) if the thing is required as evidence relating to a prosecution or an appeal from a prosecution; or (b) immediately the Director stops being satisfied that its retention is necessary for the purposes of— (i) an investigation under this Part; or (ii) a report on an investigation under this Part. (2) This section is subject to any order of the Magistrates' Court under section 86VG.'. s. 87 -- 106 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 100 88. New section 86Z substituted For section 86Z of the Police Regulation Act 1958 substitute— "86Z. Return of documents and other things (1) The Director must take all reasonable steps to return a document or thing seized under a warrant to the person from whom it was seized— (a) if the thing is required as evidence relating to a prosecution or an appeal from a prosecution; or (b) immediately the Director stops being satisfied that its retention is necessary for the purposes of— (i) an investigation under this Part; or (ii) a report on an investigation under this Part.". 89. New Division 4 inserted in Part IVA After Division 3 of Part IVA of the Police Regulation Act 1958 insert— "Division 4—Oversight by Special Investigations Monitor 86ZA. Role of Special Investigations Monitor The role of the Special Investigations Monitor under this Part is to— (a) monitor compliance with this Act by the Director, members of staff of the Office of Police Integrity and persons engaged by the Director under section 102E(1)(b); and s. 88 -- 107 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 101 (b) assess the questioning of persons attending the Director in the course of an investigation under this Part concerning the relevance of the questioning and its appropriateness in relation to the purpose of the investigation; and (c) assess requirements made by the Director for persons to produce documents or other things in the course of an investigation under this Part concerning the relevance of the requirements and their appropriateness in relation to the purpose of the investigation; and (d) investigate any complaints made to the Special Investigations Monitor under this Division; and (e) formulate recommendations and make reports as a result of performing functions under paragraphs (a), (b), (c) and (d). 86ZB. Director must report summonses to Special Investigations Monitor The Director must give a written report to the Special Investigations Monitor within 3 days after the issue of a summons under section 17 of the Evidence Act 1958 in relation to an investigation under this Part, setting out— (a) the name of the person summoned; and (b) the reasons the summons was issued. s. 89 -- 108 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 102 86ZC. Director must report arrest warrants to Special Investigations Monitor The Director must give a written report to the Special Investigations Monitor within 3 days after the issue of a warrant under section 86KB(2)(b) or 86PD(2), setting out— (a) the reasons the warrant was issued; and (b) the relevance of the warrant to the purpose of the investigation in relation to which it was issued. 86ZD. Director must report other matters to Special Investigations Monitor (1) This section applies if— (a) a person attends the Director in the course of an investigation under this Part in answer to a summons issued under section 17 of the Evidence Act 1958; or (b) a person attending the Director voluntarily in the course of an investigation under this Part is required— (i) to be sworn or to make an affirmation; or (ii) to answer a question; or (c) a person attends the Director in the course of an investigation under this Part and the Director issues a certificate under section 86PA(4) in relation to the provision of information, production of a document or thing or the giving of evidence by the person. s. 89 -- 109 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 103 (2) As soon as practicable after the person is excused from attendance, the Director must give a written report to the Special Investigations Monitor, setting out— (a) the reasons the person attended and the place and time the person attended; and (b) the name of the person and of any other person who was present during the attendance; and (c) the relevance of the attendance to the purpose of the investigation; and (d) if sub-section (1)(c) applies— (i) the reasons why the certificate was issued; and (ii) the relevance of the certificate to the purpose of the investigation; and (e) any other prescribed matters. (3) A report under sub-section (2) must be accompanied by a copy of the video- recording made under section 86PB and, if a transcript is prepared, a copy of the transcript. 86ZE. Complaints to Special Investigations Monitor (1) This section applies to a person who has attended the Director in the course of an investigation under this Part for the purposes of providing information, producing a document or thing or giving evidence (whether voluntarily or in answer to a summons issued under section 17 of the Evidence Act 1958 or otherwise). s. 89 -- 110 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 104 (2) The person may make a complaint to the Special Investigations Monitor, within 3 days after the person was excused from attendance, that the person was not afforded adequate opportunity to convey his or her appreciation of the relevant facts to the Director. (3) A complaint may be made orally or in writing. 86ZF. Special Investigations Monitor may refuse to investigate complaint The Special Investigations Monitor may refuse to investigate a complaint if he or she considers that— (a) the subject-matter of the complaint is trivial; or (b) the complaint is frivolous or vexatious or is not made in good faith. 86ZG. Investigation of complaints (1) The Special Investigations Monitor must investigate a complaint unless he or she refuses to investigate it under section 86ZF. (2) For the purposes of the investigation of a complaint the Special Investigations Monitor— (a) may, but is not required to, hold a hearing; and (b) may obtain information from any persons and in any manner he or she considers appropriate; and (c) may regulate the procedure as he or she thinks fit. (3) An investigation, including any hearing, is to be conducted in private. s. 89 -- 111 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 105 (4) The Special Investigations Monitor may commence or continue to investigate a complaint 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 complaint. (5) If the Special Investigations Monitor is or becomes aware that proceedings referred to in sub-section (5) are on foot or have been instituted, the Special Investigations Monitor must take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings. 86ZH. Recommendations by Special Investigations Monitor (1) The Special Investigations Monitor may at any time make recommendations to the Director as to the taking of any action that the Special Investigations Monitor considers should be taken. (2) Without limiting sub-section (1), recommended action may include— (a) taking steps to prevent any conduct from continuing or occurring in the future; (b) taking action to remedy any harm or loss arising from any conduct. (3) The Special Investigations Monitor may require the Director to give a report to the Special Investigations Monitor, within the time specified by the Special Investigations Monitor stating— s. 89 -- 112 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 106 (a) whether or not the Director has taken, or proposes to take, any action recommended by the Special Investigations Monitor; and (b) if the Director has not taken any recommended action, or proposes not to take any recommended action, the reasons for not taking or proposing to take the action. (4) The Director must comply with a requirement of the Special Investigations Monitor under sub-section (3). 86ZI. Requirement to provide assistance The Director must give, and must ensure that each member of staff of the Office of Police Integrity and each person engaged under section 102D(1)(b) gives, the Special Investigations Monitor any assistance the Special Investigations Monitor reasonably requires to enable the Special Investigations Monitor to perform functions under this Act. 86ZJ. Powers of entry and access (1) For the purpose of performing his or her functions under this Part, the Special Investigations Monitor— (a) after notifying the Director, may enter at any reasonable time premises occupied by the Office of Police Integrity; and (b) is entitled to have full and free access at all reasonable times to all records of the Office of Police Integrity that are relevant to the performance of the Special Investigations Monitor's functions; and s. 89 -- 113 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 107 (c) may require the Director, a member of staff of the Office of Police Integrity or a person engaged under section 102D(1)(b) to give the Special Investigations Monitor any information that the Special Investigations Monitor considers necessary, being information— (i) that is in the person's possession, or to which the person has access; and (ii) that is relevant to the performance of the Special Investigations Monitor's functions. (2) The Special Investigations Monitor may exercise a power under this section only if he or she considers that the Director has wilfully— (a) failed to provide information that the Director is required to provide in a report to the Special Investigations Monitor under this Division; or (b) failed to comply with section 86ZI. 86ZK. Requirement to answer questions and produce documents (1) The Special Investigations Monitor may, by written notice, require the Director, a member of staff of the Office of Police Integrity or a person engaged under section 102D(1)(b) to— (a) attend the Special Investigations Monitor at a specified time and place to answer any questions or provide any information; or s. 89 -- 114 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 108 (b) produce any document or other thing that is in the person's possession or control and that is relevant to the functions of the Special Investigations Monitor under this Part. (2) A person who is given a notice under sub- section (1) must not, without reasonable excuse— (a) fail to attend or to produce any document or other thing as required by the notice; or (b) refuse or fail to answer a question that he or she is required to answer by the Special Investigations Monitor; or (c) refuse or fail to provide any information that he or she is required to provide by the Special Investigations Monitor. (3) A person who is given a notice under sub- section (1) must not give any answer or provide any information that he or she knows is false or misleading in a material particular. (4) A person who contravenes sub-section (2) or (3) is guilty of an indictable offence and is liable to level 6 imprisonment (5 years maximum). (5) The Special Investigations Monitor may exercise a power under this section only if he or she considers that the Director has wilfully— (a) failed to provide information that the Director is required to provide in a report to the Special Investigations Monitor under this Division; or (b) failed to comply with section 86ZI. s. 89 -- 115 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 109 86ZL. Annual and other reports by Special Investigations Monitor (1) As soon as practicable after the end of each financial year, the Special Investigations Monitor must cause a report to be laid before each House of the Parliament in relation to the performance of the Special Investigations Monitor's functions under this Part. (2) The report must include details of the following matters— (a) compliance with this Act during the financial year by the Director, members of staff of the Office of Police Integrity and persons engaged by the Director under section 102E(1)(b); and (b) the extent to which— (i) any questions asked of person summoned; and (ii) any requirements to produce documents or other things under a summons— during the financial year were relevant to the investigation in relation to which the questions were asked or the requirements were made; and (c) the comprehensiveness and adequacy of reports made to the Special Investigations Monitor by the Director under this Division during the financial year; and s. 89 -- 116 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 110 (d) the extent to which action recommended by the Special Investigations Monitor to be taken by the Director has been taken during the financial year. (3) The Special Investigations Monitor may at any time cause a report to be laid before each House of the Parliament on any matter relevant to the performance of the Special Investigations Monitor's functions under this Part. (4) A report under this section must not contain any information that identifies, or is likely to identify— (a) any person who has attended the Director in the course of an investigation under this Part; or (b) the nature of any ongoing investigation under this Part or any investigation by the force or members of the force. 86ZM. Report on operation of this Part (1) The Special Investigations Monitor must cause a report to be laid before each House of the Parliament on the operation of this Part. (2) The report must be laid before each House after the second anniversary of the commencement of this Division but before the third anniversary of that commencement. (3) The report must include the opinion of the Special Investigations Monitor as to— (a) the need for the Director to have the powers conferred in him by sections 86KA, 86KB, 86PA(1) and (4), 86PD and 86PE and Division 3; and s. 89 -- 117 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 111 (b) the adequacy of the performance of the Director, members of staff of the Office of Police Integrity and persons engaged by the Director under section 102E(1)(b) in exercising those powers. (4) The report under this section must not contain any information that identifies, or is likely to identify— (a) any person who has attended the Director in the course of an investigation under this Part; or (b) the nature of any ongoing investigation under this Part or any investigation by the force or members of the force.". 90. New section 102BA inserted After section 102B of the Police Regulation Act 1958 insert— "102BA. Objects of Director The objects of the Director are— (a) to ensure that the highest ethical and professional standards are maintained in the force; and (b) to ensure that police corruption and serious misconduct is detected, investigated and prevented.". 91. Oath or affirmation In section 102D(1)(b), (2)(b) and (3)(b) of the Police Regulation Act 1958, for "divulge, except according to law" substitute "disclose, except as authorised by law". s. 90 -- 118 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 112 92. Staffing (1) After section 102E(1)(b) of the Police Regulation Act 1958 insert— "(ba) take members of the force on secondment in accordance with section 102EA;". (2) After section 102E(2) of the Police Regulation Act 1958 insert— "(3) The Director may terminate a secondment (including a secondment of a member of the force) at will.". 93. New sections 102EA and 102EB inserted After section 102E of the Police Regulation Act 1958 insert— "102EA. Secondment of members of the force (1) The Director may request the Chief Commissioner to make members of the force available for secondment to the Office of Police Integrity to assist the Director in the performance of the functions of the Office or the Director under this or any other Act. (2) The Chief Commissioner must make available for secondment to the Office of Police Integrity as many members of the force as the Chief Commissioner thinks necessary. (3) The Director may decline to take on secondment a member made available by the Chief Commissioner under sub-section (2) and may require the Chief Commissioner to make another member available for secondment. (4) If the Director reasonably suspects that a member of the force who is seconded to the Office of Police Integrity has committed a s. 92 -- 119 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 113 breach of discipline under section 69 while seconded, the Director may refer the matter to the Chief Commissioner to determine whether action should be taken under Part IV in respect of the member. 102EB. Effect of secondment (1) During any period of secondment of a member of the force to the Office of Police Integrity— (a) the member is subject to the sole direction and control of the Director; and (b) the member's remuneration is to be paid by the Director; and (c) subject to this section, the member retains— (i) all his or her powers and duties as a member of the force, including all the powers and duties of a constable at common law; and (ii) his or her immunity under section 123 in respect of the exercise of those powers or performance of those duties; and (d) the member does not commit a breach of discipline under section 69 by failing to comply with a standing order or instruction of the Chief Commissioner; and (e) neither the Chief Commissioner nor any other member of the force has authority to give the member an instruction in respect of the member's performance of his or her functions or duties. s. 93 -- 120 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 114 (2) Despite sub-section (1)(a) or (e), a member of the force who is seconded to the Office of Police Integrity may, if authorised by the Director to do so, give an instruction to another member of the force who is also seconded to the Office of Police Integrity. (3) The Chief Commissioner cannot require a member of the force who is or has been seconded to the Office of Police Integrity to disclose any information that relates to the performance of the member's functions or duties during the secondment, other than, with the consent of the Director, for the purposes of an investigation or inquiry under Part IV in relation to a breach of discipline by the member or by another member of the force. (4) A member's rank is not affected by a secondment to the Office of Police Integrity and any period of secondment is to be taken to be a period of service with the force.". 94. Delegation (1) In section 102F of the Police Regulation Act 1958— (a) for "any person" substitute "a relevant person"; (b) after "this power of delegation" insert "or a power under section 86KB(2) or under section 61H(2) of the Whistleblowers Protection Act 2001". (2) At the end of section 102F of the Police Regulation Act 1958 insert— '(2) For the avoidance of doubt and without limiting the generality of sub-section (1), the Director may delegate to a relevant person any of the Director's powers under the s. 94 -- 121 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 115 Evidence Act 1958, whether or not the Director has delegated to the member of staff the power to conduct an investigation under Part IVA of this Act or Part 5 or 7 of the Whistleblowers Protection Act 2001. (3) In this section— "relevant person" means— (a) a member of staff of the Office of Police Integrity; or (b) a person who has taken an oath or made an affirmation under section 102D(3).'. 95. New sections 102J and 102K inserted After section 102I of the Police Regulation Act 1958 insert— "102J. Annual and other reports to Parliament (1) The Director must make a report to Parliament on the performance of his or her functions under this Act during each financial year. (2) The Director may at any time make a report to Parliament on any matter arising in connection with the performance of his or her functions under this Act. 102K. Transmission of reports to Parliament (1) The Director must cause a report under section 102J to be transmitted to each House of the Parliament— (a) in the case of a report under section 102J(1)—as soon as practicable after the end of the financial year to which it relates; s. 95 -- 122 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 116 (b) in the case of a report under section 102J(2)—as soon as practicable after it is completed. (2) The clerk of each House of the Parliament must cause the report to be laid before the House on the day on which it is received or on the next sitting day of the House. (3) If the Director proposes to transmit a report to Parliament when Parliament is in recess, the Director must— (a) give one business day's notice of his or her intention to do so to the clerk of each House of the Parliament; and (b) give the report to the clerk of each House on the day indicated in the notice; and (c) publish the report on the Director's Internet website as soon as practicable after giving it to the clerks. (4) The clerk of each House must— (a) notify each member of the House of the receipt of a notice under sub-section (3)(a) on the same day that the clerk receives that notice; and (b) give a copy of a report to each member of the House as soon as practicable after the report is received under sub- section (3)(b); and (c) cause the report to be laid before the House on the next sitting day of the House. (5) A report that is given to the clerks under sub- section (3)(b) is taken to have been published by order, or under the authority, of the Houses of the Parliament. s. 95 -- 123 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 117 (6) The publication of a report by the Director under sub-section (3)(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 report to which those sections applied and had been published by the Government Printer under the authority of the Parliament. (7) For the purposes of this section, Parliament is in recess when each House stands adjourned to a date to be fixed by the presiding officer of that House.". 96. New section 126 inserted After section 125 of the Police Regulation Act 1958 insert— "126. Deliberations of Ministers and Parliamentary committees not to be disclosed (1) A person shall not be required or authorised by virtue of this Act— (a) to furnish any information or answer any question; or (b) to produce or inspect so much of any document— which relates to the deliberations of Ministers or any committee consisting of Members of Parliament where the committee is formed for the purpose of advising the Ministers in respect of their deliberations. s. 96 -- 124 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 118 (2) A certificate issued by the Attorney-General certifying that any information or question or any document or part of a document relates to the deliberations of Ministers or of a committee referred to in sub-section (1) is conclusive of the fact so certified.". 97. Supreme Court—limitation of jurisdiction After section 129A(3) of the Police Regulation Act 1958 insert— "(4) It is the intention of section 86J, as amended by section 75 of the Major Crime (Investigative Powers) Act 2004, to alter or vary section 85 of the Constitution Act 1975.". 98. Supreme Court—further limitation of jurisdiction For section 129A(4) of the Police Regulation Act 1958 substitute— "(4) It is the intention of section 86J, as amended by section 76 of the Major Crime (Investigative Powers) Act 2004 and as it applies on or after the commencement of that section 76, to alter or vary section 85 of the Constitution Act 1975.". 99. Transitional provision In section 133 of the Police Regulation Act 1958— (a) in sub-section (1), after "Part IVA" (where secondly occurring) insert "as amended by the Major Crime Legislation (Office of Police Integrity) Act 2004 and the Major Crime (Investigative Powers) Act 2004,"; s. 97 -- 125 of 184 -- Victorian Legislation Parliamentary Documents Part 8—Police Regulation Act 1958 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 119 (b) in sub-section (2), after "Part IVA" (where secondly occurring) insert "as amended by the Major Crime Legislation (Office of Police Integrity) Act 2004 and the Major Crime (Investigative Powers) Act 2004". __________________ s. 99 -- 126 of 184 -- Victorian Legislation Parliamentary Documents Part 9—Sex Offenders Registration Act 2004 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 120 PART 9—SEX OFFENDERS REGISTRATION ACT 2004 100. Director, Police Integrity to replace Police Ombudsman (1) In section 3 of the Sex Offenders Registration Act 2004— (a) after the definition of "detainee" insert— ' "Director" means the Director, Police Integrity under section 102A(2) of the Police Regulation Act 1958;'; (b) the definition of "Police Ombudsman" is repealed. (2) In the Sex Offenders Registration Act 2004— (a) in section 59— (i) in sub-sections (1) and (2), for "Police Ombudsman" substitute "Director"; (ii) in sub-section (3), for "Police Ombudsman's" substitute "Director's"; (b) in section 60(2)(c), for "Police Ombudsman" substitute "Director". 101. New sections 66A, 66B and 66C inserted After section 66 of the Sex Offenders Registration Act 2004 insert— '66A. Director to monitor compliance The Director is to monitor compliance with this Part by the Chief Commissioner of Police and other persons authorised by the Chief Commissioner of Police to have access to the Register of Sex Offenders or any part of that Register. See: Act No. 56/2004. Law Today: www.dms. dpc.vic. gov.au s. 100 -- 127 of 184 -- Victorian Legislation Parliamentary Documents Part 9—Sex Offenders Registration Act 2004 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 121 66B. Director to be given reasonable assistance The Chief Commissioner of Police must ensure that members of the police force and other persons authorised by him or her to have access to the Register of Sex Offenders or any part of that Register give the Director any assistance that the Director reasonably requires to enable the Director to perform the Director's functions under this Part. 66C. Powers in relation to monitoring (1) An authorised officer may, after notifying the Chief Commissioner of Police of the intended entry— (a) enter at any time premises occupied by the police force at which the Director reasonably believes there are documents that contain, or relate to, the Register of Sex Offenders or any part of that Register or that are relevant to the Director's functions under this Part; and (b) inspect or copy any document found at any premises entered under paragraph (a); and (c) do anything that it is necessary or convenient to do to enable an inspection to be carried out under this section. (2) For the purposes of this section, an "authorised officer" is— (a) the Director; or (b) a member of staff of the Office of Police Integrity within the meaning of the Police Regulation Act 1958 who is authorised under sub-section (3); or s. 101 -- 128 of 184 -- Victorian Legislation Parliamentary Documents Part 9—Sex Offenders Registration Act 2004 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 122 (c) a person who has taken an oath or made an affirmation under section 102D(3) of the Police Regulation Act 1958 and who is authorised under sub-section (3). (3) The Director may authorise a member of staff of the Office of Police Integrity or a person who has taken an oath or made an affirmation under section 102D(3) of the Police Regulation Act 1958 to exercise the powers of an authorised officer under this section. 66D. Reports on monitoring compliance (1) The Director may at any time give the Minister a written report on— (a) the results of any inspections carried out under section 66C; and (b) compliance with this Part in the period to which the report relates by the Chief Commissioner of Police and other persons authorised by the Chief Commissioner of Police to have access to the Register of Sex Offenders or any part of that Register. (2) If requested by the Minister to do so, the Director must give the Minister a report under sub-section (1) as soon as practicable after receiving the request. (3) The Director must give a copy of any report under sub-section (1) to the Chief Commissioner of Police.'. s. 101 -- 129 of 184 -- Victorian Legislation Parliamentary Documents Part 9—Sex Offenders Registration Act 2004 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 123 102. Further amendment For section 71(2) of the Sex Offenders Registration Act 2004 substitute— "(2) Section 86J of the Police Regulation Act 1958 extends to any act purporting to be done by the Director or any other person referred to in that section in pursuance of the Director's functions under Part 4 of this Act.". 103. Supreme Court—limitation of jurisdiction At the end of section 74 of the Sex Offenders Registration Act 2004 insert— "(2) It is the intention of section 71, as amended by section 102 of the Major Crime (Investigative Powers) Act 2004, to alter or vary section 85 of the Constitution Act 1975.". __________________ s. 102 -- 130 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 124 PART 10—WHISTLEBLOWERS PROTECTION ACT 2001 104. Definitions In section 3(1) of the Whistleblowers Protection Act 2001 insert the following definitions— ' "police gaol" has the same meaning as in the Corrections Act 1986; "prison" has the same meaning as in the Corrections Act 1986 but includes a youth training centre established under section 249 of the Children and Young Persons Act 1989; "Special Investigations Monitor" means the Special Investigations Monitor appointed under section 5 of the Major Crime (Special Investigations Monitor) Act 2004;'. 105. Chief Examiner and Examiners are not public officers Before section 4(2)(j) of the Whistleblowers Protection Act 2001 insert— "(ic) the Chief Examiner or an Examiner under the Major Crime (Investigative Powers) Act 2004;". 106. Dis-application of certain provisions to investigations by Director In section 43(3) of the Whistleblowers Protection Act 2001, after "Division 3" insert "(except section 48 or 59)". See: Act No. 36/2001 and amending Act Nos 110/2003 and 32/2004. LawToday: www.dms. dpc.vic. gov.au s. 104 -- 131 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 125 107. Notice of investigation of police matters (1) In section 50(2) of the Whistleblowers Protection Act 2001— (a) in paragraph (e), for "council; or" substitute "council."; (b) paragraphs (f) and (g) are repealed. (2) After section 50(2) of the Whistleblowers Protection Act 2001 insert— "(3) This section does not apply to an investigation of a disclosed matter that relates to a member of the police force.". 108. New section 50A inserted After section 50 of the Whistleblowers Protection Act 2001 insert— "50A. Notice of the investigation—police matters (1) This section applies to an investigation of a disclosed matter that relates to a member of the police force. (2) The Ombudsman may inform the relevant person in writing of the investigation. (3) The relevant person is— (a) if the disclosed matter relates to the Chief Commissioner of Police, the Police Minister; or (b) if the disclosed matter relates to any other member of the police force, the Chief Commissioner of Police.". s. 107 -- 132 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 126 109. Obstruction In section 60 of the Whistleblowers Protection Act 2001— (a) in sub-section (1), after "Ombudsman" (wherever occurring) insert "or any other person"; (b) sub-section (2) is repealed. 110. Opportunity to be heard At the end of section 61 of the Whistleblowers Protection Act 2001 insert— "(2) Despite sub-section (1), the Ombudsman is not required in relation to a report arising out of an investigation by the Director to— (a) give a person an opportunity to be heard before making a comment adverse to the person in the report; or (b) set out the person's defence in the report. (3) Nothing in sub-section (2) prevents the Ombudsman from giving the person an opportunity to be heard, or setting out the person's defence in the report, if the Ombudsman so chooses.". s. 109 -- 133 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 127 111. New section 61AA inserted After the heading to Division 3A of Part 5 of the Whistleblowers Protection Act 2001 insert— '61AA. Definitions (1) In this Division— "authorised officer" means— (a) the Director; or (b) a member of staff of the Office of Police Integrity who is authorised under sub-section (2); or (c) a person who has taken an oath or made an affirmation under section 102D(3) of the Police Regulation Act 1958 and who is authorised under sub-section (2); "chief executive", of a public authority, means— (a) in relation to the police force—the Chief Commissioner of Police; or (b) in relation to an Agency within the meaning of the Public Sector Management and Employment Act 1998—the Agency Head of the Agency within the meaning of that Act; or (c) in relation to any other body, whether or not incorporated, established by or under an Act for a public purpose—the chief executive officer, by whatever name called, of the body; s. 111 -- 134 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 128 "court day" means a day on which the registry of the Magistrates' Court is open for business. "public authority" means— (a) the police force; or (b) an Agency within the meaning of the Public Sector Management and Employment Act 1998; or (c) any other body, whether or not incorporated, established by or under an Act for a public purpose. (2) The Director may authorise a member of staff of the Office of Police Integrity or a person who has taken an oath or made an affirmation under section 102D(3) of the Police Regulation Act 1958 to exercise the powers of an authorised officer under this Division.'. 112. Evidence in Director investigations (1) In the note at the foot of section 61B(1) of the Whistleblowers Protection Act 2001, after "section 54(2)" insert "and sub-section (1A) below". (2) After section 61B(1) of the Whistleblowers Protection Act 2001 insert— "(1A) Despite anything to the contrary in section 54(2) of this Act, section 20 of the Evidence Act 1958 applies to and in relation to an investigation by the Director as if a reference in that section 20 to a law officer were a reference to the Director of Public Prosecutions.". s. 112 -- 135 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 129 (3) After section 61B(4) of the Whistleblowers Protection Act 2001 insert— "(4A) For the purposes of sub-section (3), the Director may certify in respect of— (a) particular information, or any or all information of a particular class, to be provided by a particular person; or (b) particular evidence, or any or all evidence of a particular class, to be given by a particular person. Example For example, the Director could certify under sub- section (3) in respect of a single question to be asked of a witness, or in respect of all questions on a particular topic to be asked of a witness. (4B) For the avoidance of doubt, the Director is not required to give reasons for certifying under sub-section (3).". (4) In section 61B(7) of the Whistleblowers Protection Act 2001— (a) in paragraph (d), for "1958." substitute "1958; or"; (b) after paragraph (d) insert— "(e) contempt of the Director under section 61H.". 113. New sections 61BA to 61BH inserted After section 61B of the Whistleblowers Protection Act 2001 insert— '61BA. Video-recording of examination (1) This section applies if a person attends the Director in the course of an investigation for the purposes of providing information, producing a document or thing or giving evidence (whether voluntarily or in answer s. 113 -- 136 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 130 to a summons issued under section 17 of the Evidence Act 1958 or otherwise). (2) The Director must ensure that the person's attendance is video-recorded. (3) Subject to sub-section (4), evidence of anything said by the person during the attendance is inadmissible as evidence against any person in any proceedings unless the attendance in its entirety was video- recorded and the video-recording is available to be tendered in evidence. (4) A court may admit evidence of anything said by a person during an attendance that is otherwise inadmissible by reason of sub- section (3) if the court is satisfied on the balance of probabilities that the circumstances— (a) are exceptional; and (b) justify the reception of the evidence. 61BAB. Underage and impaired witnesses (1) Despite anything to the contrary in the Evidence Act 1958— (a) the Director must not issue a summons under section 17 of that Act directed to a person known to be under the age of 16 years; and (b) a summons issued under that section must include a statement that if the person summoned is under the age of 16 years at the date of issue of the summons, the person need not comply with the summons; and (c) a summons directed to a person under the age of 16 years at the date of issue of the summons has no effect. s. 113 -- 137 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 131 (2) A person who claims to be under the age of 16 years at the date of issue of a summons directed to the person must give notice in writing and proof of age to the Director. (3) If the Director suspects that a person attending the Director in answer to a summons may be under the age of 18 years, the Director must confirm the person's age before any question is asked of the person or the person produces a document or other thing. (4) If, at any time during the attendance of a person in answer to a summons, the Director becomes aware that the person is under the age of 16 years, the Director must immediately release the person from all compliance with the summons. (5) If a person required to attend the Director is a person under the age of 18 years, the Director must direct— (a) that a parent or guardian of the person or an independent person is to be present during the person's attendance, if the person so wishes; and (b) that the person may confer with the parent, guardian or independent person before providing any information, producing any document or thing or giving any evidence. (6) If a person required to attend the Director is a person believed by the Director to have a mental impairment, the Director must direct— (a) that an independent person is to be present during the person's attendance, if the person so wishes; and s. 113 -- 138 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 132 (b) that the person may confer with the independent person before providing any information, producing any document or thing or giving any evidence. (7) In this section— "mental impairment" includes impairment because of mental illness, intellectual disability, dementia or brain injury. 61BB. Power to enter public authority premises (1) An authorised officer may— (a) enter at any time premises occupied by a public authority at which the authorised officer reasonably believes there are documents or other things at the premises that are relevant to an investigation; and (b) inspect or copy any document or other thing found at any premises entered under paragraph (a); and (c) do anything that it is necessary or convenient to do to enable an inspection to be carried out under this section. (2) On exercising a power of entry under this section, the authorised officer must— (a) identify himself or herself to a person at the premises; and (b) announce that he or she is authorised to enter the premises. s. 113 -- 139 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 133 (3) An authorised officer must not inspect or copy a document or thing under sub- section (1)(b) if— (a) a person at the premises claims that the document or thing is the subject of legal professional privilege; or (b) no claim is made that the document or thing is the subject of legal professional privilege but— (i) it appears to the authorised officer that the document or thing may be the subject of legal professional privilege; and (ii) it does not appear to the authorised officer that the person entitled to the benefit of that privilege has consented to the inspection or production. Note: Section 61BE sets out the procedure to be followed if the authorised officer wants to inspect or copy a document or thing that may be the subject of legal professional privilege. (4) An authorised officer does not have authority under this section to enter any part of the premises that is used for residential purposes. 61BC. Power to seize documents or things at public authority premises (1) An authorised officer who exercises a power of entry under section 61BB may seize a document or thing at the premises if the authorised officer reasonably suspects that— (a) the document or other thing is relevant to an investigation; and s. 113 -- 140 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 134 (b) if the document or other thing is not immediately seized— (i) it may be concealed or destroyed; or (ii) its forensic value may be diminished. (2) An authorised officer must not seize a document or thing under sub-section (1) if— (a) a person at the premises claims that the document or thing is the subject of legal professional privilege; or (b) no claim is made that the document or thing is the subject of legal professional privilege but— (i) it appears to the authorised officer that the document or thing may be the subject of legal professional privilege; and (ii) it does not appear to the authorised officer that the person entitled to the benefit of that privilege has consented to the seizure. Note: Section 61BE sets out the procedure to be followed if the authorised officer wants to seize a document or thing that may be the subject of legal professional privilege. (3) A document or other thing seized under this section cannot be used for the purposes of any investigation Part until— (a) the period for making an application under section 61BG for return of the document or thing has expired; or s. 113 -- 141 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 135 (b) if an application is made within that period—the application and any appeal in relation to it have been finally determined. 61BD. Copying of, access to or receipt for things seized (1) If an authorised officer seizes— (a) a document, disk or tape or other thing that can be readily copied; or (b) a storage device the information in which can be readily copied— under section 61BC, the authorised officer, on request by a person at the premises, must give a copy of the thing or information to the person as soon as practicable after the seizure. (2) The authorised officer may refuse a request under sub-section (1) if— (a) the Director is satisfied that the work involved in copying the thing or information would substantially and unreasonably— (i) divert the resources of the Office of Police Integrity from its other operations; or (ii) interfere with the performance of the Director's functions; or (b) the Director is of the opinion that it is not in the public interest to give a copy of the thing or information to the person. s. 113 -- 142 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 136 (3) An authorised officer must not refuse a request under sub-section (1), unless the authorised officer has— (a) given the person who made the request a written notice stating an intention to refuse the request; and (b) given the person a reasonable opportunity to make a further request for a copy of the thing or information in a form that would remove the ground for refusal; and (c) as far as is reasonably practicable, provided the person with any information that would assist the making of the further request in such a form. (4) An authorised officer is not required to provide any information under sub-section (3)(c) if the Director is of the opinion that it is not in the public interest for the information to be provided. (5) If an authorised officer refuses a request under sub-section (1)— (a) the authorised officer must provide a receipt for the thing seized; and (b) the Director, on request by the chief executive of the public authority at whose premises the thing was seized, must permit the chief executive to have access to the thing or information unless the Director is of the opinion that it is not in the public interest for the chief executive to have access. s. 113 -- 143 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 137 (6) The Director must not refuse a request for access under sub-section (5)(b), unless the Director has— (a) given the chief executive a written notice stating an intention to refuse to give access; and (b) given the chief executive a reasonable opportunity to make a further request for access in a form that would remove the ground for refusal; and (c) as far as is reasonably practicable, provided the chief executive with any information that would assist the making of the further request in such a form. (7) The Director is not required to provide any information under sub-section (6)(c) if the Director is of the opinion that it is not in the public interest for the information to be provided. (8) For the avoidance of doubt, an authorised officer or the Director is not required to give reasons for refusing a request under this section. 61BE. Procedure for documents that may be subject to legal professional privilege (1) This section applies if— (a) any of the circumstances referred to in section 61BB(3) or 61BC(2) apply; and (b) the authorised officer still wants to inspect, copy or seize the document or thing (as the case requires). s. 113 -- 144 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 138 (2) In the circumstances referred to in section 61BB(3)(a) or 61BC(2)(a), the authorised officer must require the person claiming that the document or thing is the subject of legal professional privilege (the "claimant") to seal the document or thing immediately, or arrange for it to be sealed immediately, and give it, or arrange for it to be given, to the authorised officer. (3) The claimant must immediately seal the document or thing, or arrange for it to be sealed, under the authorised officer's supervision and give it, or arrange for it to be given, to the authorised officer. Penalty: 120 penalty units or imprisonment for 12 months or both. (4) In the circumstances referred to in section 61BB(3)(b) or 61BC(2)(b), the authorised officer may take possession of the document or thing and must seal the document or thing immediately. (5) The authorised officer must immediately give the sealed document or thing to a registrar of the Magistrates' Court to be held in safe custody. (6) The registrar must keep the sealed document or thing in safe custody until— (a) an application is made to the Magistrates' Court under section 61BF to decide whether or not the document or thing is the subject of legal professional privilege; or s. 113 -- 145 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 139 (b) the end of 3 court days after the day on which the sealed document or thing is given to the registrar, if an application has not been made under section 61BF; or (c) the registrar is told by a person who appears to be entitled to the benefit of legal professional privilege and the authorised officer that agreement has been reached on the disposal of the sealed document or thing. (7) The registrar must— (a) if an application is made to the Magistrates' Court under section 61BF—dispose of the sealed document or thing in the way ordered by the court; or (b) if an application is not made by the end of 3 court days after the day on which the sealed document or thing is given to the registrar—give the sealed document or thing to a person who appears to be entitled to the benefit of legal professional privilege; or (c) if a person who appears to be entitled to the benefit of legal professional privilege and the authorised officer give the registrar notice that an agreement on the disposal of the sealed document or thing has been reached—dispose of the sealed document or thing in the way agreed. (8) The registrar is entitled to open and inspect the sealed document or thing solely for the purpose of performing a function under sub- section (6)(c) or (7)(b) or (c). s. 113 -- 146 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 140 (9) A person must not open a sealed document or thing unless authorised to open it under this Act or a court order. Penalty: 120 penalty units or imprisonment for 12 months or both. 61BF. Application to Magistrates' Court to decide on legal professional privilege (1) Within 3 court days after an authorised officer gives a sealed document or thing to a registrar of the Magistrates' Court under section 61BE, the Director must apply to the Magistrates' Court to determine whether or not the document or thing is the subject of legal professional privilege. (2) The Magistrates' Court must decide whether or not the sealed document or thing is the subject of legal professional privilege and for that purpose the magistrate and any other person authorised by the Court may open and inspect the sealed document or thing. (3) If the Magistrates' Court decides that the sealed document or thing is the subject of legal professional privilege, the Court may order that the document or thing be given to a person entitled to the benefit of the privilege. (4) If the Magistrates' Court decides that the sealed document or thing is not the subject of legal professional privilege, the Court may order that the document or thing be released to an authorised officer for the purpose of the exercise of the authorised officer's powers under this Division. s. 113 -- 147 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 141 61BG. Application for return of things seized (1) Within 7 days after a document or thing is seized by an authorised officer under section 61BC, an interested person may apply to the Magistrates' Court for an order setting aside the seizure and requiring the Director to deliver the document or thing to the interested person. (2) On an application under sub-section (1), the Magistrates' Court may make an order setting aside the seizure and requiring the Director to deliver the document or thing to the interested person if the Court is satisfied that the grounds for the seizure did not, or no longer, exist. (3) The interested person has the burden of proving that the grounds for the seizure did not, or no longer, exist. (4) In this section— "interested person" in relation to a document or thing, means— (a) the chief executive of the public authority at whose premises the document or thing was seized; or (b) a person authorised by the chief executive to apply under this section on the chief executive's behalf; or (c) any other person who claims to have a legal or equitable interest in the document or thing. s. 113 -- 148 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 142 61BH. Return of things seized (1) The Director must return a document or thing seized under section 61BC to the chief executive of the public authority at whose premises it was seized— (a) if the thing is required as evidence relating to a prosecution or an appeal from a prosecution; or (b) immediately the Director stops being satisfied that its retention is necessary for the purposes of— (i) an investigation; or (ii) a report on an investigation. (2) This section is subject to any order of the Magistrates' Court under section 61BG.'. 114. New section 61F substituted For section 61F of the Whistleblowers Protection Act 2001 substitute— "61F. Return of documents and other things (1) The Director must take all reasonable steps to return a document or thing seized under a warrant to the person from whom it was seized— (a) if the thing is required as evidence relating to a prosecution or an appeal from a prosecution; or (b) immediately the Director stops being satisfied that its retention is necessary for the purposes of— (i) an investigation; or (ii) a report on an investigation.". s. 114 -- 149 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 143 115. New sections 61G to 61N inserted After section 61F of the Whistleblowers Protection Act 2001 insert— '61G. Confidentiality of summons (1) This section applies if the Director issues a summons to a person under section 17 of the Evidence Act 1958 in relation to an investigation. (2) The Director may give the person to whom the summons is issued a written notice stating— (a) that the summons is a confidential document; and (b) that it is an offence to disclose to anyone else the existence of the summons or the subject-matter of the investigation to which it relates unless the person has a reasonable excuse. (3) If the Director gives a notice under sub- section (2), a person must not disclose to anyone else the existence of the summons or the subject-matter of the investigation to which it relates, unless the person has a reasonable excuse. Penalty: 120 penalty units or imprisonment for 12 months or both. (4) It is a reasonable excuse for a person to disclose the existence of the summons or the subject-matter of the investigation to which it relates if— s. 115 -- 150 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 144 (a) the disclosure is made for the purposes of— (i) seeking legal advice in relation to the summons or an offence against sub-section (3); or (ii) obtaining or providing information in order to comply with the summons; or (iii) the administration of this Act; and (b) the person informs the person to whom the disclosure is made that it is an offence to disclose to anyone else the existence of the summons or the subject-matter of the investigation to which it relates unless the person has a reasonable excuse. 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. s. 115 -- 151 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 145 (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"). (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. s. 115 -- 152 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 146 (6) If a person detained in police custody under this section, other than a person detained in accordance with a direction under sub- section (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. (7) If a person is detained in a prison in accordance with a direction under sub- section (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 s. 115 -- 153 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 147 (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. (9) When a person is brought before a bail justice under sub-section (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 and 61I cease to have effect 42 months after the day on which section 115 of the Major Crime (Investigative Powers) Act 2004 comes into operation. s. 115 -- 154 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 148 61K. Arrest of recalcitrant witnesses (1) The Director may apply to a magistrate for the issue of a warrant to arrest a person, if the Director believes on reasonable grounds that the person has been duly served with a summons under section 17 of the Evidence Act 1958 and has failed to attend before the Director in answer to the summons. (2) A magistrate may issue a warrant to arrest a person if satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for the belief under sub- section (1). (3) The authority given by, and the rules to be observed with respect to, warrants to arrest under Subdivision 2 of Division 3 of Part 4 of the Magistrates' Court Act 1989 (other than section 62 or 64(2), (3) or (4)) extend and apply to warrants under this section. (4) The person arrested— (a) must be brought before the Director as soon as practicable; and (b) may be detained in police custody until excused from attendance by the Director. (5) If the Director is satisfied that there are reasonable grounds to believe that it is necessary to prevent the 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 attendance at the investigation. s. 115 -- 155 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 149 (6) If a person detained in police custody under this section, other than a person detained in accordance with a direction under sub- section (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. (7) If a person is detained in a prison in accordance with a direction under sub- section (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 Director. (8) If it is not practicable for the person to be brought before the Director as soon as practicable 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 s. 115 -- 156 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 150 (ii) cause to be produced before the bail justice the arrest warrant for the person; and (iii) abide by the decision of the bail justice in relation to the person. (9) When a person is brought before a bail justice under sub-section (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) The issue of a warrant under this section, or the arrest of a person under the warrant, does not relieve the person from any liability for non-compliance with a summons. 61L. Witness already held in custody (1) This section applies if— (a) a summons is issued under section 17 of the Evidence Act 1958 for the purposes of an investigation; and (b) the summons is directed to a person who is held in a prison or police gaol. (2) The Director may give a written direction that the person be delivered into the custody of a member of the police force for the purpose of bringing the person before the Director to provide information, produce a document or thing or give evidence as required by the summons. s. 115 -- 157 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 151 (3) A direction under sub-section (2)— (a) must be in the prescribed form; and (b) must include a statement that if the person who is the subject of the direction is under the age of 16 years at the date the direction is given, the direction is of no effect and the person is not required to attend the Director; and (c) if the person is aged 16 years or over, has effect as a suspension of a direction in a warrant of commitment to deliver the person to the place of detention specified in the warrant or to hold the person in that place (as the case may be). (4) The person is to be detained in police custody until he or she is excused by the Director from attendance in the investigation. (5) When the person is excused from attendance by the Director, the member of the police force must deliver the person who is the subject of the direction to the place of detention at which the person was held or detained at the time the direction was given. 61M. Consultation and comment If at any time during the course of an investigation, it appears to the Director that there may be grounds for making a report adverse to the police force, the Director may, before making the report, give the Chief Commissioner of Police the opportunity to comment on the subject-matter of the investigation. s. 115 -- 158 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 152 61N. Simultaneous investigation and proceedings (1) The Director may commence or continue to conduct 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. (2) If the Director is or becomes aware that proceedings referred to in sub-section (2) are on foot or have been instituted, the Director must take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings.'. 116. New section 62 substituted For section 62 of the Whistleblowers Protection Act 2001 substitute— "62. Director may report to Ombudsman The Director may make a report to the Ombudsman on an investigation of a disclosed matter by the Director.". 117. Reports on investigations (1) In section 63(2) of the Whistleblowers Protection Act 2001— (a) in paragraph (b), for "council;" substitute "council."; (b) paragraphs (c) and (d) are repealed. (2) For section 63(4) of the Whistleblowers Protection Act 2001 substitute— "(4) This section does not apply to an investigation of a disclosed matter that relates to a member of the police force.". s. 116 -- 159 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 153 118. New section 63A inserted After section 63 of the Whistleblowers Protection Act 2001 insert— "63A. Report on investigation—police matters (1) On the completion of an investigation of a disclosed matter that relates to a member of the police force, the Ombudsman— (a) may make a written report on the results of the investigation to any one or more of— (i) the Chief Commissioner; (ii) the Police Minister; (iii) the Premier; and (b) may make recommendations as to the action to be taken as a result of the investigation. (2) Recommendations under sub-section (1) may include— (a) a recommendation that the disclosed matter be referred to an appropriate authority for further consideration; (b) a recommendation that action be taken to remedy any harm or loss arising from the conduct; (c) a recommendation that action be taken to prevent the conduct from continuing or occurring in the future. (3) This section applies to an investigation of a disclosed matter by the Ombudsman or the Director.". s. 118 -- 160 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 154 119. Further amendment about reports (1) In section 64 of the Whistleblowers Protection Act 2001, after "section 63" insert "or 63A". 120. New section 65 substituted and section 65A inserted For section 65 of the Whistleblowers Protection Act 2001 substitute— "65. Chief Commissioner of Police to respond to Ombudsman If, under section 63A, the Ombudsman makes a recommendation to the Chief Commissioner of Police as to the taking of any action, the Chief Commissioner of Police must give a written response to the Ombudsman stating whether or not the Chief Commissioner of Police proposes to take the action. 65A. Referral of matters to DPP (1) At any time during or after completing an investigation, the Ombudsman or the Director may refer to the Director of Public Prosecutions any matter that is relevant to the performance of functions or duties by the Director of Public Prosecutions. (2) If the Ombudsman or the Director refers a matter to the Director of Public Prosecutions under sub-section (1), the Ombudsman may include that fact, and any details of the referral that the Ombudsman considers appropriate, in any report of the investigation under section 63 or 63A.". s. 119 -- 161 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 155 121. Informing person who made disclosure After section 67(5) of the Whistleblowers Protection Act 2001 insert— "(6) This section does not apply to an investigation, report or other action taken under this Part in relation to a disclosed matter that relates to a member of the police force, but nothing in this or any other Act prevents the Ombudsman, if he or she so chooses, from informing the person who made the disclosure of— (a) the result of the investigation or other action; or (b) any recommendations made by the Ombudsman and any comments on them that the Ombudsman thinks appropriate.". 122. Referral of Part 7 matters to Director (1) In section 88(1)(d) of the Whistleblowers Protection Act 2001, before "another public body" insert "the Director or". (2) After section 88(3) of the Whistleblowers Protection Act 2001 insert— "(4) In addition to sub-section (3), Division 3A of Part 5 applies to an investigation commenced by the Director on a referral from the Ombudsman under this Division.". s. 121 -- 162 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 156 123. New section 94 substituted and section 94A inserted For section 94 of the Whistleblowers Protection Act 2001 substitute— "94. Disagreement between Ombudsman and Chief Commissioner on implementation of recommendations (1) If the Ombudsman disagrees with the Chief Commissioner as to what steps (if any) should be taken, the Ombudsman may make recommendations in writing to the Chief Commissioner of Police as to what steps should be taken. (2) If, under sub-section (1), the Ombudsman makes a recommendation to the Chief Commissioner of Police as to the taking of any steps, the Chief Commissioner of Police must give a written response to the Ombudsman stating whether or not the Chief Commissioner of Police proposes to take the steps. 94A. Referral of matters to DPP The Ombudsman may refer to the Director of Public Prosecutions any matter coming to the Ombudsman's attention under this Division that is relevant to the performance of functions or duties by the Director of Public Prosecutions.". s. 123 -- 163 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 157 124. Report to person making disclosure After section 95(2) of the Whistleblowers Protection Act 2001 insert— "(3) Sub-section (1) does not apply if the Chief Commissioner of Police is of the opinion that it would be contrary to the public interest to advise the person who made the disclosure of the findings of the investigation or of the steps proposed to be taken.". 125. New section 103A inserted After section 103 of the Whistleblowers Protection Act 2001 insert— "103A. Transmission of certain reports to Parliament (1) This section applies to a report to the Parliament of the Ombudsman under this Act if the report arose from a disclosed matter referred by the Ombudsman to the Director. (2) The Director must cause the report to be transmitted to each House of the Parliament as soon as practicable after it is completed. (3) The clerk of each House of the Parliament must cause the report to be laid before the House on the day on which it is received or on the next sitting day of the House. (4) If the Director proposes to transmit the report to Parliament when Parliament is in recess, the Director must— (a) give one business day's notice of his or her intention to do so to the clerk of each House of the Parliament; and (b) give the report to the clerk of each House on the day indicated in the notice; and s. 124 -- 164 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 158 (c) publish the report on the Director's Internet website as soon as practicable after giving it to the clerks. (5) The clerk of each House must— (a) notify each member of the House of the receipt of a notice under sub-section (4)(a) on the same day that the clerk receives that notice; and (b) give a copy of a report to each member of the House as soon as practicable after the report is received under sub- section (4)(b); and (c) cause the report to be laid before the House on the next sitting day of the House. (6) A report that is given to the clerks under sub- section (4)(b) is taken to have been published by order, or under the authority, of the Houses of the Parliament. (7) The publication of a report by the Director under sub-section (4)(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 report to which those sections applied and had been published by the Government Printer under the authority of the Parliament. (8) For the purposes of this section, Parliament is in recess when each House stands adjourned to a date to be fixed by the presiding officer of that House.". s. 125 -- 165 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 159 126. New Part 9A inserted After Part 9 of the Whistleblowers Protection Act 2001 insert— "PART 9A—OVERSIGHT BY SPECIAL INVESTIGATIONS MONITOR 105A. Role of Special Investigations Monitor The role of the Special Investigations Monitor under this Part is to— (a) monitor compliance with this Act by the Director, members of staff of the Office of Police Integrity and persons engaged by the Director under section 102E(1)(b) of the Police Regulation Act 1958; and (b) assess the questioning of persons attending the Director in the course of an investigation under Part 5 or 7 concerning the relevance of the questioning and its appropriateness in relation to the purpose of the investigation; and (c) assess requirements made by the Director for persons to produce documents or other things in the course of an investigation under Part 5 or 7 concerning the relevance of the requirements and their appropriateness in relation to the purpose of the investigation; and (d) investigate any complaints made to the Special Investigations Monitor under this Part; and s. 126 -- 166 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 160 (e) formulate recommendations and make reports as a result of performing functions under paragraphs (a), (b), (c) and (d). 105B. Director must report summonses to Special Investigations Monitor The Director must give a written report to the Special Investigations Monitor within 3 days after the issue of a summons under section 17 of the Evidence Act 1958 in relation to an investigation by the Director under Part 5 or 7, setting out— (a) the name of the person summoned; and (b) the reasons the summons was issued. 105C. Director must report arrest warrants to Special Investigations Monitor The Director must give a written report to the Special Investigations Monitor within 3 days after the issue of a warrant under section 61H(2)(b) or 61K(2), setting out— (a) the reasons the warrant was issued; and (b) the relevance of the warrant to the purpose of the investigation in relation to which it was issued. 105D. Director must report other matters to Special Investigations Monitor (1) This section applies if— (a) a person attends the Director in the course of an investigation by the Director under Part 5 or 7 in compliance with a summons issued under section 17 of the Evidence Act 1958; or s. 126 -- 167 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 161 (b) a person attending the Director voluntarily in the course of an investigation by the Director under Part 5 or 7 is required— (i) to be sworn or to make an affirmation; or (ii) to answer a question; or (c) a person attends the Director in the course of an investigation by the Director under Part 5 or 7 and the Director issues a certificate under section 61B(3) in relation to the provision of information, production of a document or thing or the giving of evidence by the person. (2) As soon as practicable after the person is excused from attendance, the Director must give a written report to the Special Investigations Monitor, setting out— (a) the reasons the person attended and the place and time the person attended; and (b) the name of the person and of any other person who was present during the attendance; and (c) the relevance of the attendance to the purpose of the investigation; and (d) if sub-section (1)(c) applies— (i) the reasons why the certificate was issued; and (ii) the relevance of the certificate to the purpose of the investigation; and (e) any other prescribed matters. s. 126 -- 168 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 162 (3) A report under sub-section (2) must be accompanied by a copy of the video- recording made under section 61BA and, if a transcript is prepared, a copy of the transcript. 105E. Complaints to Special Investigations Monitor (1) This section applies to a person who has attended the Director in the course of an investigation by the Director under Part 5 or 7 for the purposes of providing information, producing a document or thing or giving evidence (whether voluntarily or in answer to a summons issued under section 17 of the Evidence Act 1958 or otherwise). (2) The person may make a complaint to the Special Investigations Monitor, within 3 days after the person was excused from attendance, that the person was not afforded adequate opportunity to convey his or her appreciation of the relevant facts to the Director. (3) A complaint may be made orally or in writing. 105F. Special Investigations Monitor may refuse to investigate complaint The Special Investigations Monitor may refuse to investigate a complaint if he or she considers that— (a) the subject-matter of the complaint is trivial; or (b) the complaint is frivolous or vexatious or is not made in good faith. s. 126 -- 169 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 163 105G. Investigation of complaints (1) The Special Investigations Monitor must investigate a complaint unless he or she refuses to investigate it under section 105F. (2) For the purposes of the investigation of a complaint the Special Investigations Monitor— (a) may, but is not required to, hold a hearing; and (b) may obtain information from any persons and in any manner he or she considers appropriate; and (c) may regulate the procedure as he or she thinks fit. (3) An investigation, including any hearing, is to be conducted in private. (4) The Special Investigations Monitor may commence or continue to investigate a complaint 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 complaint. (5) If the Special Investigations Monitor is or becomes aware that proceedings referred to in sub-section (5) are on foot or have been instituted, the Special Investigations Monitor must take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings. s. 126 -- 170 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 164 105H. Recommendations by Special Investigations Monitor (1) The Special Investigations Monitor may at any time make recommendations to the Director as to the taking of any action that the Special Investigations Monitor considers should be taken. (2) Without limiting sub-section (1), recommended action may include— (a) taking steps to prevent any conduct from continuing or occurring in the future; (b) taking action to remedy any harm or loss arising from any conduct. (3) The Special Investigations Monitor may require the Director to give a report to the Special Investigations Monitor, within the time specified by the Special Investigations Monitor stating— (a) whether or not the Director has taken, or proposes to take, any action recommended by the Special Investigations Monitor; and (b) if the Director has not taken any recommended action, or proposes not to take any recommended action, the reasons for not taking or proposing to take the action. (4) The Director must comply with a requirement of the Special Investigations Monitor under sub-section (3). s. 126 -- 171 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 165 105I. Requirement to provide assistance The Director must give, and must ensure that each member of staff of the Office of Police Integrity and each person engaged under section 102D(1)(b) of the Police Regulation Act 1958 gives, the Special Investigations Monitor any assistance the Special Investigations Monitor reasonably requires to enable the Special Investigations Monitor to perform functions under this Act. 105J. Powers of entry and access (1) For the purpose of performing his or her functions under this Part, the Special Investigations Monitor— (a) after notifying the Director, may enter at any reasonable time premises occupied by the Office of Police Integrity; and (b) is entitled to have full and free access at all reasonable times to all records of the Office of Police Integrity that are relevant to the performance of the Special Investigations Monitor's functions; and (c) may require the Director, a member of staff of the Office of Police Integrity or a person engaged under section 102D(1)(b) of the Police Regulation Act 1958 to give the Special Investigations Monitor any information that the Special Investigations Monitor considers necessary, being information— (i) that is in the person's possession, or to which the person has access; and s. 126 -- 172 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 166 (ii) that is relevant to the performance of the Special Investigations Monitor's functions. (2) The Special Investigations Monitor may exercise a power under this section only if he or she considers that the Director has wilfully— (a) failed to provide information that the Director is required to provide in a report to the Special Investigations Monitor under this Part; or (b) failed to comply with section 105I. 105K. Requirement to answer questions and produce documents (1) The Special Investigations Monitor may, by written notice, require the Director, a member of staff of the Office of Police Integrity or a person engaged under section 102D(1)(b) of the Police Regulation Act 1958 to— (a) attend the Special Investigations Monitor at a specified time and place to answer any questions or provide any information; or (b) produce any document or other thing that is in the person's possession or control and that is relevant to the functions of the Special Investigations Monitor under this Part. (2) A person who is given a notice under sub- section (1) must not, without reasonable excuse— (a) fail to attend or to produce any document or other thing as required by the notice; or s. 126 -- 173 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 167 (b) refuse or fail to answer a question that he or she is required to answer by the Special Investigations Monitor; or (c) refuse or fail to provide any information that he or she is required to provide by the Special Investigations Monitor. (3) A person who is given a notice under sub- section (1) must not give any answer or provide any information that he or she knows is false or misleading in a material particular. (4) A person who contravenes sub-section (2) or (3) is guilty of an indictable offence and is liable to level 6 imprisonment (5 years maximum). (5) The Special Investigations Monitor may exercise a power under this section only if he or she considers that the Director has wilfully— (a) failed to provide information that the Director is required to provide in a report to the Special Investigations Monitor under this Part; or (b) failed to comply with section 105I. 105L. Annual and other reports by Special Investigations Monitor (1) As soon as practicable after the end of each financial year, the Special Investigations Monitor must cause a report to be laid before each House of the Parliament in relation to the performance of the Special Investigations Monitor's functions under this Part. s. 126 -- 174 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 168 (2) The report must include details of the following matters— (a) compliance with this Act during the financial year by the Director, members of staff of the Office of Police Integrity and persons engaged by the Director under section 102E(1)(b) of the Police Regulation Act 1958; and (b) the extent to which— (i) any questions asked of person summoned; and (ii) any requirements to produce documents or other things under a summons— during the financial year were relevant to the investigation in relation to which the questions were asked or the requirements were made; and (c) the comprehensiveness and adequacy of reports made to the Special Investigations Monitor by the Director under this Part during the financial year; and (d) the extent to which action recommended by the Special Investigations Monitor to be taken by the Director has been taken during the financial year. (3) The Special Investigations Monitor may at any time cause a report to be laid before each House of the Parliament on any matter relevant to the performance of the Special Investigations Monitor's functions under this Part. s. 126 -- 175 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 169 (4) A report under this section must not contain any information that identifies, or is likely to identify— (a) any person who has attended the Director in the course of an investigation by the Director under Part 5 or 7; or (b) the nature of any ongoing investigation under this Act or any ongoing investigation by the police force or members of the police force. 105M. Report on operation of this Part (1) The Special Investigations Monitor must cause a report to be laid before each House of the Parliament on the operation of this Part. (2) The report must be laid before each House after the second anniversary of the commencement of this Part but before the third anniversary of that commencement. (3) The report must include the opinion of the Special Investigations Monitor as to— (a) the need for the Director to have the powers conferred in him by sections 54(2), 61B(1) and (3), 61BB, 61BC, 61BD, 61BE, 61C, 61G, 61H, 61K and 61L; and (b) the adequacy of the performance of the Director, members of staff of the Office of Police Integrity and persons engaged by the Director under section 102E(1)(b) of the Police Regulation Act 1958 in exercising those powers. s. 126 -- 176 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 170 (4) The report under this section must not contain any information that identifies, or is likely to identify— (a) any person who has attended the Director in the course of an investigation under Part 5 or 7; or (b) the nature of any ongoing investigation under this Act or any ongoing investigation by the police force or members of the police force.". 127. New section 107A inserted After section 107 of the Whistleblowers Protection Act 2001 insert— "107A. Protection of legal practitioners and witnesses (1) A legal practitioner representing a person in an investigation by the Ombudsman or the Director under Part 5 or 7, or a legal practitioner assisting the Ombudsman or the Director in the investigation, has the same protection and immunity as a legal practitioner has in representing a party in proceedings in the Supreme Court. (2) A person appearing as a witness in an investigation by the Ombudsman or the Director under Part 5 or 7 has the same protection and immunity as a witness has in proceedings in the Supreme Court.". s. 127 -- 177 of 184 -- Victorian Legislation Parliamentary Documents Part 10—Whistleblowers Protection Act 2001 Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 171 128. Evidence not admissible In section 108(2) of the Whistleblowers Protection Act 2001— (a) in paragraph (c), for "Part 7." substitute "Part 7; or"; (b) after paragraph (c) insert— "(d) proceedings for contempt of the Director under section 61H.". 129. Supreme Court—limitation of jurisdiction After section 110(3) of the Whistleblowers Protection Act 2001 insert— "(4) It is the intention of section 107, as it applies on or after the commencement of Part 10 of the Major Crime (Investigative Powers) Act 2004, to alter or vary section 85 of the Constitution Act 1975.". __________________ s. 128 -- 178 of 184 -- Victorian Legislation Parliamentary Documents Part 11—Other Amendments Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 172 PART 11—OTHER AMENDMENTS 130. Major Crime Legislation (Office of Police Integrity) Act 2004 In section 3 of the Major Crime Legislation (Office of Police Integrity) Act 2004— (a) in proposed section 102I, for "Commissioner." substitute "Commissioner.'."; (b) proposed section 102J is repealed. 131. Information Privacy Act 2000 In section 3 of the Information Privacy Act 2000, in the definition of "law enforcement agency", after paragraph (f) insert— "(fa) the Chief Examiner and Examiners appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004; (fb) the Special Investigations Monitor appointed under Part 2 of the Major Crime (Special Investigations Monitor) Act 2004;". ═══════════════ s. 130 -- 179 of 184 -- Victorian Legislation Parliamentary Documents Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 173 ENDNOTES † Minister's second reading speech— Legislative Assembly: 5 October 2004 Legislative Council: 10 November 2004 The long title for the Bill for this Act was "to provide for coercive powers in relation to the investigation of organised crime and to amend certain Acts to make further provision for the Director, Police Integrity and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 5 October 2004 Legislative Council: 10 November 2004 Absolute majorities: Legislative Assembly: 4 November 2004 Legislative Council: 11 November 2004 Endnotes -- 180 of 184 -- Victorian Legislation Parliamentary Documents Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 174 INDEX Subject Section Actamendments to other Acts 71–131 commencement 2 purposes 1 Arrest 46, 49 Bail 46, 49 Chief Commissioner definition 3 delegation 65 powers, functions, approvals regarding arrested witnesses 46, 49 assistance to Special Investigations Monitor 58 availability of evidence to courts 43 coercive powers orders 5, 10–11 information sharing 67 register, records 66 reports to Special Investigations Monitor 57, 66 witness expenses 19 recommendations by Special Investigations Monitor to 57 reports by Special Investigations Monitor on 61 Chief Examiner appointment 21 conflicts of interest 26 contempt of 49–50 definition 3 delegation 65 entry to premises occupied by, access to records of 59 hindrance, obstruction 44 police assistance to 28 powers, functions, duties regarding arrest 49 coercive powers orders 9, 10, 27 reports 52–53, 57 Special Investigations Monitor 57–60 witness summonses, orders 13–16, 18, 20, 52 recommendations by Special Investigations Monitor to 57 remuneration, allowances 22 reports by Special Investigations Monitor on 61–62 resignation, removal, suspension 24 secrecy 68 terms and conditions of office 23 validity of acts, decisions 25 See also Examinations Coercive powers orders applications 5–6 authority given by 4 definition 3 -- 181 of 184 -- Victorian Legislation Parliamentary Documents Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 175 Subject Section discontinuance of use of powers under 11 extension 10 making of 8 matters to be stated in 9 publication of reports of proceedings for 7 remote applications 6 revocation 11–12 sharing of information derived under 67 variation 10 See also Witness summonses Contempt of Chief Examiner 49–50 Definitions 3, 20, 21, 49, 67, 68 Entry powers 46, 59 Examinations arrest warrants for witnesses 46, 49 commencement, continuation 29 complaints regarding 31, 43, 54–56 conduct 30 disruption 44 documents, other things produced at 38–39, 47–48, 66 evidence in availability to courts 43 false, misleading evidence, documents 38 inadmissibility 39, 45 legal professional privilege 31, 40–42, 48 publication 43 self-incrimination privilege abrogated 31, 39 taking of 36 exemption from Freedom of Information Act 1982 for documents regarding 69 failure to attend, answer questions, produce documents 37, 46, 49 holding of 35 information for witnesses 31 preliminary requirements 31 protection of legal practitioners, witnesses 33 reports to, by Special Investigations Monitor on 53, 61 representation of witnesses at 31, 34–35 video recordings, transcripts 45, 53 witnesses under 16 31, 32, 37 witnesses under 18 31, 34 witnesses with mental impairment 34 See also Witness summonses Examiners appointment 21 conflicts of interest 26 duties regarding Special Investigations Monitor 58–60 exercise of Chief Examiner's powers regarding coercive powers orders 27 remuneration, allowances 22 reports by Special Investigations Monitor on 61–62 -- 182 of 184 -- Victorian Legislation Parliamentary Documents Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 176 Subject Section resignation, removal, suspension 24 secrecy 68 terms and conditions of office 23 validity of acts, decisions 25 See also Examinations Freedom of Information Act 1982 69 Guardians 31, 34–35 Imprisonment arrested witnesses 46, 49 definitions of police gaols, prisons 3 witness orders for persons in prison 18 Information Privacy Act 2000 131 Interpreters 31, 34–35 Legal practitioners legal professional privilege 40–42, 48 protection 33 representation of witnesses at examinations 31, 34–35 right to cross-examine in examinations 36 Magistrates' Court 41–42, 47–48 Major Crime Legislation (Office of Police Integrity Act 2004 130 Mental impairment definition 3 evidence given at examinations by persons with 34 witness summonses for persons with 14, 15 Offences regarding coercive powers orders 7 contempt of Chief Examiner 49–50 examinations 35–38, 42–44 reports of proceedings in Magistrates' Court 48 secrecy 68 Special Investigations Monitor 60, 64 witness summonses, orders 20 Ombudsman Act 1973 71–73 Organised crime offences (def.) 3 Parents 31, 34–35 Police entry to premises occupied by, access to records of 59 powers, duties regarding arrest warrants 46, 49 assistance to Chief Examiner 28 coercive powers orders 5–6, 10 documents, things produced at examinations 47, 66 Special Investigations Monitor 58–60 witness summonses, orders 14–15, 18 reports by Special Investigations Monitor on 61–62 secrecy 68 Police custody arrested witnesses 46, 49 witness orders for persons already held in 18 -- 183 of 184 -- Victorian Legislation Parliamentary Documents Major Crime (Investigative Powers) Act 2004 Act No. 79/2004 177 Subject Section Police Regulation Act 1958 amendments to 74–99 Prisons, prisoners See Imprisonment Regulations 70 Sex Offenders Registration Act 2004 100–103 Special Investigations Monitor assistance to 58 complaints regarding examinations to 31, 43, 54–56 definition 3 exemption from Freedom of Information Act 1982 for documents in possession of 69 hindrance, obstruction 64 information, documents, answers required by 59–60, 63 powers of entry, access to records 59 recommendations 57 report on operation of Part 5 by 62 reports by Chief Commissioner to 57, 66 reports by Chief Examiner to 52–53, 57 reports on performance of own functions by 61 reports on examinations to 53 reports on witness summonses to 52 role 51 secrecy 68 Supreme Court jurisdiction, powers regarding arrest, bail 46, 49 coercive powers orders 5–12 contempt of Chief Examiner 49 witness summonses, orders 14, 16–18, 20 Whistleblowers Protection Act 2001 amendments to 104–129 Witness orders 18, 20 Witness summonses applications 14–15 confidentiality 20 definition 3 form 14–15 issue by Chief Examiner 15 issue by Supreme Court 14 matters stated in, required by 14–15 directed to persons under 16 14–16 directed to persons under 18 14–15 directed to persons with mental impairment 14–15 reports to Special Investigations Monitor on 52 revocation 12–13 service 14–15, 17 witness expenses 19 See also Examinations Witnesses under 16, under 18 years of age See Examinations; Witness summonses -- 184 of 184 --