Major Crime (Investigative Powers) Regulations 2015 (Vic)
Version No. 003
Major Crime (Investigative Powers) Regulations 2015
S.R. No. 65/2015
Version incorporating amendments as at
1 March 2019
TABLE OF PROVISIONS
Regulation Page
1Objective
2Authorising provision
3Commencement
4Revocations
5Definition
6Witness summons—Supreme Court
7Witness summons—Chief Examiner
8Order to bring a witness held in custody before the Chief Examiner
9Taking of evidence
10Chief Examiner must report other matters to Victorian Inspectorate
11Records to be kept by Chief Commissioner
12Register for retained documents and other things
13Chief Commissioner's report to the Victorian Inspectorate
14Information sharing
Schedule 1—Forms
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Endnotes
1 General information
2 Table of Amendments
3 Amendments Not in Operation
4 Explanatory details
Version No. 003
Major Crime (Investigative Powers) Regulations 2015
S.R. No. 65/2015
Version incorporating amendments as at
1 March 2019
1Objective
The objective of these Regulations is to prescribe forms and other matters for the purposes of the Major Crime (Investigative Powers) Act 2004.
2Authorising provision
These Regulations are made under section 70 of the Major Crime (Investigative Powers) Act 2004.
3Commencement
These Regulations come into operation on
27 June 2015.
4Revocations
(1)The Major Crime (Investigative Powers) Regulations 2005[1] are revoked.
(2)The following Regulations are revoked—
(a)Major Crime (Investigative Powers) Amendment Regulations 2009[2];
(b)Major Crime (Investigative Powers) Amendment Regulations 2013[3];
(c)Major Crime (Investigative Powers) Amendment Regulations 2014[4].
5Definition
In these Regulations—
the Actmeans the Major Crime (Investigative Powers) Act 2004.
6Witness summons—Supreme Court
For the purposes of section 14(12) of the Act, the prescribed form of a witness summons is Form 1 in Schedule 1.
7Witness summons—Chief Examiner
For the purposes of section 15(11) of the Act, the prescribed form of a witness summons is Form 1 in Schedule 1.
8Order to bring a witness held in custody before the Chief Examiner
For the purposes of section 18(5) of the Act, the prescribed form of an order is Form 2 in Schedule 1.
9Taking of evidence
For the purposes of section 36(2)(a) of the Act—
(a)the prescribed form of an oath is Form 3 in Schedule 1;
(b)the prescribed form of an affirmation is Form 4 in Schedule 1;
(c)the prescribed form of an oath to be taken by the interpreter of a person appearing at an examination is Form 5 in Schedule 1;
(d)the prescribed form of an affirmation to be made by the interpreter of a person appearing at an examination is Form 6 in Schedule 1.
10Chief Examiner must report other matters to Victorian Inspectorate
For the purposes of section 53(1)(d) of the Act, the following matters are prescribed—
(a)if a witness summons has been issued—
(i)the date and time at which the witness summons was served on the person; and
(ii)if the summons is directed to a person suspected to be under the age of 18 years, the reason recorded under section 15(6)(b) of the Act;
(b)if an order has been made on application under section 18(2) of the Act—
(i)if the order was made in relation to a person suspected to be under the age of 18 years, the recorded reason for suspecting or believing that the person is aged 16 years or above; and
(ii)the statement, if any, in the order as to the general nature of the matters about which the person is to be questioned;
(c)if the examination ceases because of the revocation of a coercive powers order, the date of revocation, the reason for the revocation, if known, and the date of cessation of the examination;
(d)if the person required to give evidence at the examination was released from attendance or further attendance because of the revocation of a coercive powers order, the date of release and the manner of giving notice of the release;
(e)whether the Chief Examiner has complied with the requirements of section 31 of the Act;
(f)the duration of the examination;
(g)whether the person required to give evidence at the examination was aged under 18 years and if so—
(i)whether the person was released because the Chief Examiner became aware that the person was under the age of 16 years; and
(ii)whether a parent or a guardian of the person or an independent person was present during the person's examination; and
(iii)whether it reasonably appeared to the Chief Examiner that the person exercised his or her right to communicate with the parent, guardian or independent person (as the case may be) before giving any evidence or producing any document or thing;
(h)whether the Chief Examiner believed the person required to give evidence at the examination to have a mental impairment and if so—
(i)whether an independent person was present during the person's examination; and
(ii)whether it reasonably appeared to the Chief Examiner that the person exercised his or her right to communicate with the independent person before giving any evidence or producing any document or thing;
(i)whether the person required to give evidence at the examination had legal representation and if the person did not—
(i)whether the person was asked if he or she had sought legal advice; and
(ii)whether the person was given an opportunity to seek legal advice;
(j)whether the person required to give evidence at the examination appeared to the Chief Examiner to have insufficient knowledge of the English language to enable him or her to understand the questioning during the examination, and if so what arrangements were made for the presence of a competent interpreter;
(k)whether, during the examination, the Chief Examiner considered a claim for legal professional privilege and if so—
(i)the name of the claimant; and
(ii)the time when the claim for legal professional privilege was made; and
(iii)the outcome of the consideration of the claim by the Chief Examiner and the date on which the outcome was reached;
(l)whether the Chief Examiner has issued a certificate of charge and an arrest warrant under section 49 of the Act and if so—
(i)details of the alleged contempt of the Chief Examiner as set out in the certificate of charge; and
(ii)whether the arrest warrant was executed and if so, how long the person was detained under the warrant and whether the person is still in detention; and
(iii)details of the outcome of the alleged contempt of the Chief Examiner being dealt with by the Supreme Court (to the extent known at the time the report is made).
11Records to be kept by Chief Commissioner
For the purposes of section 66(a) of the Act, computerised records on the following matters must be kept—
(a)the number of applications made for a coercive powers order under section 5 of the Act, including—
(i)the type of organised crime offences in relation to which applications for a coercive powers order were made under section 5 of the Act;
(ii)the number of applications for a coercive powers order made under section 5(6) of the Act before an affidavit is prepared or sworn;
(iii)the number of remote applications for a coercive powers order made under section 6 of the Act;
(iv)the number of coercive powers orders made by the Supreme Court under section 8 of the Act;
(v)the number of applications for a coercive powers order refused by the Supreme Court and the reasons for refusal, if given;
(b)the number of applications for an extension of a coercive powers order, including—
(i)the type of organised crime offences in relation to which applications for an extension of a coercive powers order were made;
(ii)the number of extensions granted by the Supreme Court;
(iii)the number of applications refused and the reasons for refusal, if given;
(iv)for each coercive powers order that has been extended, the total period for which the order has been effective;
(c)the number of applications for a variation of a coercive powers order, including—
(i)the type of organised crime offences in relation to which applications for a variation of a coercive powers order were made;
(ii)the number of variations granted by the Supreme Court;
(iii)the number of applications refused by the Supreme Court and the reasons for refusal, if given;
(d)the number of notices to the Supreme Court under section 11 of the Act that a coercive powers order is no longer required, including the reasons for giving each notice;
(e)the number of applications to the Supreme Court for the revocation of a coercive powers order notified to the Chief Commissioner under section 12(2) of the Act, including—
(i)the number of coercive powers orders revoked by the Supreme Court; and
(ii)the reasons for the revocation, if given;
(f)the number of applications made to the Supreme Court for the issue of a witness summons under section 14 of the Act, including—
(i)the number of applications refused by the Supreme Court and the reasons for refusal, if given;
(ii)the number of witness summonses issued by the Supreme Court;
(iii)the number of witness summonses issued by the Supreme Court under section 14(10) of the Act which require immediate attendance before the Chief Examiner of the person to whom the summons is directed;
(g)the number of applications made to the Chief Examiner for the issue of a witness summons under section 15 of the Act, including—
(i)the number of applications refused by the Chief Examiner;
(ii)the number of witness summonses issued by the Chief Examiner on the application of a member of the police force;
(iii)the number of witness summonses issued by the Chief Examiner under section 15(9) of the Act on the application of a member of the police force which require the immediate attendance before the Chief Examiner of the person to whom the summons is directed;
(h)the number of applications made to the Supreme Court or the Chief Examiner for an order under section 18 of the Act to bring a witness already held in custody before the Chief Examiner to give evidence, including—
(i)the number of orders granted by the Supreme Court or the Chief Examiner;
(ii)the number of applications refused and the reasons for refusal, if given;
(i)the number of applications made under section 46 of the Act to the Supreme Court or to the County Court for the issue of an arrest warrant, including—
(i)the number of applications refused by the Supreme Court or the County Court and the reasons for refusal;
(ii)the number of arrest warrants issued by the Supreme Court or the County Court;
(iii)the number of arrest warrants which were executed, how long the person was detained and whether the person is still in detention;
(j)the number of prosecutions for offences against sections 20(5), 35(4), 36(4), 37(3), 38(3), 42(8), 43(3), 44 and 48(3) of the Act;
(k)the number of examinations conducted by the Chief Examiner;
(l)the number of occasions on which information has been shared by the Chief Commissioner under section 67 of the Act, including—
(i)details of the information shared;
(ii)details of the recipient of the shared information;
(m)the number of applications made to a Court for release of restricted evidence under sections 43A and 43B of the Act, including—
(i)the number of applications refused by the Court and the reasons for refusal, if given;
(ii)the number of applications granted by the Court and the reasons, if given;
(n)within three years of the expiry of a coercive powers order, unless previously reported on—
(i)the number of prosecutions that were commenced in respect of the organised crime offences specified in the coercive powers order; and
(ii)the outcome, if known, of those prosecutions; and
(iii)the evidentiary and intelligence value of the information obtained pursuant to the coercive powers order.
12Register for retained documents and other things
For the purposes of section 66(b) of the Act, a computerised register of the following matters must be kept—
(a)a description of all documents or other things which were produced at an examination or to the Chief Examiner and which were retained by a police member under section 47(1)(d) of the Act;
(b)the reasons for retaining the documents or other things described in accordance with paragraph (a);
(c)the current location of all documents or other things described in accordance with paragraph (a);
(d)whether any of the documents or other things described in accordance with paragraph (a) were brought before the Magistrates' Court under section 47(3) of the Act and if so—
(i)the date when the document or other thing was brought before the Magistrates' Court; and
(ii)details of any direction given by the Magistrates' Court in relation to the return of the document or other thing to the person who produced it.
13Chief Commissioner's report to the Victorian Inspectorate
For the purposes of section 66(c) of the Act, the prescribed matters on which the Chief Commissioner must report in writing to the Victorian Inspectorate are the matters prescribed in paragraphs (a) to (n) in regulation 11.
14Information sharing
For the purposes of section 67(1)(c) of the Act, the following agencies and bodies are prescribed for the purpose of receiving information derived under a coercive powers order—
(a)the Director of Public Prosecutions for Victoria;
(b)the Director of Public Prosecutions however designated for another State or a Territory;
(c)the Coroners Court;
(d)the Coroners Court or its equivalent in another State or a Territory;
(e)the Racing Integrity Commissioner appointed under section 37A of the Racing Act 1958;
(f)the Youth Parole Board continued under section 442 of the Children, Youth and Families Act 2005;
(g)the Adult Parole Board established under section 61 of the Corrections Act 1986.
Schedule 1—Forms
FORM 1
WITNESS SUMMONS
Regulations 6 and 7
Major Crime (Investigative Powers) Act 2004
Sections 14 and 15
To: (insert name of person to whom summons is directed)
*Male/*Female
Address:
A coercive powers order has been made under section 8 of the Major Crime (Investigative Powers) Act 2004 by the Supreme Court of Victoria on (date).
You must attend
at (insert address)
*immediately or *on (insert date) at (insert time) *a.m./*p.m. and from day to day unless excused or released from further attendance—
*to give evidence before the Chief Examiner in relation to (state general nature of the matters about which the witness is to be questioned, unless the *Supreme Court/*Chief Examiner considers that this disclosure would prejudice the conduct of the investigation of the organised crime offence);
*to produce for examination by the Chief Examiner the following documents or things that are in your possession or control:
(specify documents or things)
*to give evidence before the Chief Examiner in relation to (state general nature of the matters about which the witness is to be questioned, unless the *Supreme Court/*Chief Examiner considers that this disclosure would prejudice the conduct of the investigation of the organised crime offence) and to produce for examination by the Chief Examiner the following documents or things that are in your possession or control:
(specify documents or things)
Take note: If you are under the age of 16 years at the date of issue of this summons, you do not have to comply with the summons, but you must—
(a)if this summons is issued by the Supreme Court, give notice in writing and proof of age to the Court at (insert address) and to the Chief Examiner at (insert address); or
(b)if this summons is issued by the Chief Examiner, give notice in writing and proof of age to the Chief Examiner at (insert address).
Dated:
*Supreme Court
*Chief Examiner
*Delete if inapplicable
FORM 2
ORDER TO BRING A PERSON HELD IN CUSTODY BEFORE THE CHIEF EXAMINER
Regulation 8
Major Crime (Investigative Powers) Act 2004
Section 18
To: (insert name of person in charge of place where person is held in custody)
at (insert name of place where person is held in custody)
Under section 18 of the Major Crime (Investigative Powers) Act 2004
I order that (insert name of person in custody) born on (insert date of birth)
who is detained at (insert name of place where person is held in custody)
be delivered into the custody of (insert name of member of police force who applies for the order)
to be brought before the Chief Examiner
at (insert address)
on (insert date) at *a.m./*p.m.
to give evidence at an examination in relation to (state general nature of the matters about which witness is to be questioned, unless the *Supreme Court/*Chief Examiner considers that this disclosure would prejudice the conduct of the investigation of the organised crime offence).
A coercive powers order has been made under section 8 of the Major Crime (Investigative Powers) Act 2004 by the Supreme Court of Victoria on (date).
Take note: If the person named in this order to attend before the Chief Examiner is under the age of 16 years at the date of issue of this order, the order is of no effect and the person is not required to attend the examination.
Dated:
*Supreme Court
*Chief Examiner
*Delete if inapplicable
FORM 3
OATH
Regulation 9(a)
Major Crime (Investigative Powers) Act 2004
Section 36
I swear by Almighty God that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
FORM 4
AFFIRMATION
Regulation 9(b)
Major Crime (Investigative Powers) Act 2004
Section 36
I do solemnly, sincerely, and truly declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
FORM 5
OATH BY INTERPRETER
Regulation 9(c)
Major Crime (Investigative Powers) Act 2004
Section 36
I swear by Almighty God that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this examination to the best of my ability.
FORM 6
AFFIRMATION BY INTERPRETER
Regulation 9(d)
Major Crime (Investigative Powers) Act 2004
Section 36
I do solemnly, sincerely, and truly declare and affirm that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this examination to the best of my ability.
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Endnotes
1 General information
The Major Crime (Investigative Powers) Regulations 2015, S.R. No. 65/2015 were made on 23 June 2015 by the Governor in Council under section 70 of the Major Crime (Investigative Powers) Act 2004, No. 79/2004 and came into operation on 27 June 2015: regulation 3.
The Major Crime (Investigative Powers) Regulations 2015 will sunset 10 years after the day of making on 23 June 2025 (see section 5 of the Subordinate Legislation Act 1994).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).
• Examples, diagrams or notes
All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).
• Punctuation
All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).
• Provision numbers
All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Major Crime (Investigative Powers) Regulations 2015 by statutory rules, subordinate instruments and Acts.
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Major Crime (Investigative Powers) Amendment Regulations 2018, S.R. No. 173/2018
Date of Making: 23.10.18 Date of Commencement: 23.10.18
Major Crime (Investigative Powers) Amendment Regulations 2019, S.R. No. 10/2019
Date of Making: 26.2.19 Date of Commencement: 1.3.19: reg. 3
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3 Amendments Not in Operation
There are no amendments which were Not in Operation at the date of this publication.
4 Explanatory details
[1] Reg. 4(1): S.R. No. 73/2005 as amended by S.R. Nos 156/2009, 12/2013 and 7/2014.
[2] Reg. 4(2)(a): S.R. No. 156/2009.
[3] Reg. 4(2)(b): S.R. No. 12/2013.
[4] Reg. 4(2)(c): S.R. No. 7/2014.
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