Special Investigator Act 2021 (Vic)

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Version No. 002

Special Investigator Act 2021

No. 50 of 2021

Version incorporating amendments as at


1 December 2022

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

4Meaning of Royal Commission record

5Act binds the Crown

Part 2—Office of the Special Investigator

Division 1—Establishment, functions and powers

6Establishment of Office of the Special Investigator

7Official seal

8Constitution of Office of the Special Investigator

9Functions of Office of the Special Investigator

10Powers of Office of the Special Investigator

11Office of the Special Investigator not subject to direction or control

Division 2—Special Investigator and OSI officers

12Appointment of Special Investigator

13Terms and conditions

14Salary sacrifice

15Vacancy and resignation

16Removal of Special Investigator

17Suspension of Special Investigator

18Declaration of inability to act

19Acting appointment

20Oath or affirmation of office

21Delegation

22Staff

23Consultants

24Oath and affirmation by staff and consultants

25Obligation to avoid actual or perceived conflicts of interest

26Immunity of OSI officers

27Appointment of investigating OSI officers

28Identity cards

Part 3—Investigation and enforcement

Division 1—Criminal investigations

29Investigations into the commission of offences

30Power to require person to state name and address

31Search warrants

32Search warrant may authorise direction to person to provide assistance with computer or network

33Further order to provide assistance with computer or network

34Announcement before entry

35Details of warrant to be given to occupier

36Privilege claims in relation to search warrants

37Arrest warrants—Part 5 offences

38Warrant to arrest under Criminal Procedure Act 2009

39Report to Victorian Inspectorate on issue of arrest warrants

40Brief of evidence may be provided to DPP

41Commencement of criminal proceedings and prosecution of persons for offences

Division 2—Disciplinary investigations

42Investigations into breach of discipline by police officers

43Power to require information, documents and answers

44Privilege against self-incrimination abrogated

45Requirement to report to Victorian Inspectorate after direction given

46Breach of discipline charges

47Form of breach of discipline charge

48Referral of breach of discipline charge to person authorised by Chief Commissioner

49Inquiry and determination of breach of discipline charge

50Notification of related investigations and charges

51Sharing of information and evidence

52Chief Commissioner to report on breach of discipline charge outcomes

53Powers of Chief Commissioner, etc. not otherwise limited

Division 3—General

54Criminal and disciplinary investigations may be conducted concurrently

55Investigation when other proceedings on foot

56Request for information by Victorian Inspectorate

57Referral of improper conduct to Chief Commissioner

Division 4—Public interest disclosures and complaints

58Making of public interest disclosures

59Duty to investigate public interest complaints referred by IBAC

60Investigation procedures

61Public interest complainant may request information about investigation

62Public interest complainant to be informed of investigation outcome

63Information not to be disclosed to public interest complainant in certain cases

64Chief Commissioner may be notified of public interest disclosure or complaint

65Complaints about OSI officers

Part 4—Information—Royal Commission records, IBAC records and other documents

Division 1—Royal Commission records

66Access to Royal Commission records

67Retention, management and storage of Royal Commission records

68Information acquired by Royal Commission officers engaged under this Act

Division 2—IBAC records

69Provision of IBAC records

70Notification by the IBAC of Public Interest Disclosures Act 2012 protections

71Retention, management and storage of IBAC records

72Information acquired by current or former IBAC Officers engaged under this Act

Division 3—Protected documents received from IBAC

73Provision of protected document or other thing by IBAC

74Referral of production requests in relation to proceedings, processes or actions other than criminal proceedings

75Referral of production and inspection requests in respect of criminal proceedings

76Compellability of OSI officers as witnesses

Division 4—Use of privileged documents

Subdivision 1—Privilege claims in respect of documents obtained under search warrant

77Application to Supreme Court to determine privilege in respect of document or thing

78Notice given to Attorney-General in some circumstances—document or thing

79Determination of privilege claims—document or thing

80Offence to open sealed or secured document

Subdivision 2—Privilege and secrecy provision claims in respect of relevant records

81Notification regarding use of Royal Commission records and IBAC records

82Application to Supreme Court to determine privilege claim in respect of relevant records

83Notice given to Attorney-General in some circumstances—relevant record

84Application to Supreme Court to determine whether secrecy provision applies

85Determination of privilege claims—relevant record

86Determination of secrecy provision claims

Part 5—Offences

87Offence to hinder or obstruct Office of the Special Investigator or OSI officer

88Statement which is false or misleading

89Unauthorised use or disclosure of Office of Special Investigator information

90Offence to cause or threaten harm or detriment to person who assists Office of the Special Investigator or OSI officer

91Destruction or concealing of evidence

92Corporate criminal responsibility for offence against section 91

93Responsible agency for the Crown

94Proceeding against successors to public bodies

95Liability of officers of partnerships and unincorporated bodies or associations

96Maximum fine for body corporate

Part 6—General

97Implementation Monitor reporting

98Annual report

99Special reports

100Tabling of special reports

101Regulations

102Access to Royal Commission records—validation

═════════════

Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 002

Special Investigator Act 2021

No. 50 of 2021

Version incorporating amendments as at


1 December 2022

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to establish the Office of the Special Investigator to investigate potential criminal conduct and breaches of discipline relating to the recruitment, management and use by Victoria Police of Nicola Maree Gobbo as a human source; and

(b)to enable access to all records held by the Royal Commission into the Management of Police Informants by the Office of the Special Investigator and the Independent Broad-based Anti-corruption Commission; and

(c)to confer on the Victorian Inspectorate oversight functions in respect of the Office of the Special Investigator; and

(d)to make related amendments to other Acts.

2Commencement

This Act comes into operation on the day after the day on which it receives the Royal Assent.

3Definitions

(1)In this Act—

arrest warrant means a warrant referred to in section 37;

breach of discipline, in relation to a police officer, has the meaning given by section 125 of the Victoria Police Act 2013;

breach of discipline charge means a charge under section 46;

business day means a day other than a Saturday, a Sunday or a public holiday within the meaning of the Public Holidays Act 1993;

Chief Commissioner means the Chief Commissioner of Police appointed under section 17 of the Victoria Police Act 2013;

claimant includes a relevant person;

DPP means the Director of Public Prosecutions appointed under section 87AB of the Constitution Act 1975;

former police officer includes a person who was but is no longer—

(a)a police officer; or

(b)a member of police personnel (within the meaning of the Police Regulation Act 1958 as it was known before that Act was renamed by the Victoria Police Act 2013);

human source means a person who—

(a)is known to a law enforcement agency and has an expectation that their identity will be kept confidential; and

(b)supplies, or intends to supply, information about crime or persons involved in criminal activity to the law enforcement agency; and

(c)may be registered as a human source, informer or informant with the law enforcement agency;

Implementation Monitor has the same meaning as in the Police Informants Royal Commission Implementation Monitor Act 2021;

IBAC has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;

IBAC Officer has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;

IBAC record means any answer, information document or other thing acquired by the IBAC by reason of, or in the course of, the performance of its duties and functions or the exercise of its powers under the Independent Broad-based Anti-corruption Commission Act 2011;

investigating OSI officer means an OSI officer appointed as an investigating OSI officer under section 27;

Kellam inquiry means the inquiry conducted in 2014 by the Honourable Murray Kellam AO QC on behalf of the IBAC into the conduct of current and former Victoria Police officers in relation to the management of Nicola Maree Gobbo as a human source, the findings of which were detailed in a confidential report dated 6 February 2015;

member of Victoria Police personnel has the same meaning as in the Victoria Police Act 2013;

Office of the Special Investigator means Office of the Special Investigator established under section 6;

OSI officer means any of the following—

(a)the Special Investigator;

(b)a member of staff of the Office of the Special Investigator;

(c)a consultant engaged under section 23;

person includes an unincorporated body or association and a partnership;

privilege means—

(a)any privilege that a person is entitled to claim in any proceeding before a court or tribunal; or

(b)public interest immunity;

protected document or other thing means an IBAC record that is a protected document or other thing (within the meaning of section 46 of the Independent Broad-based Anti-corruption Commission Act 2011) given to the Office of the Special Investigator in accordance with section 73;

public interest complaint has the same meaning as in the Public Interest Disclosures Act 2012;

public interest disclosure has the same meaning as in the Public Interest Disclosures Act 2012;

relevant offence means an offence arising from, or out of, the conduct of persons involved in the use of Nicola Maree Gobbo as a human source and includes the following—

(a)an offence arising from, or out of, the conduct of Nicola Maree Gobbo herself;

(b)an offence arising from, or out of, the conduct of police officers and former police officers named in the complete and unredacted submissions of Counsel Assisting the Royal Commission into the Management of Police Informants and the Royal Commission's final report;

(c)an offence arising from conduct involving the concealment or non‑disclosure of the use of Nicola Maree Gobbo as a human source;

relevant person means a person who receives a notification under section 81 and includes the following—

(a)the IBAC;

(b)Victoria Police;

(c)the Australian Federal Police within the meaning of the Australian Federal Police Act 1979 of the Commonwealth;

(d)the Australian Crime Commission—

(i)established under section 7 of the Australian Crime Commission Act 2002 of the Commonwealth; and

(ii)commonly known as the Australian Criminal Intelligence Commission;

(e)any other law enforcement agency;

relevant record means—

(a)a Royal Commission record or part of that record; or

(b)an IBAC record or part of that record;

Royal Commission record has the meaning given by section 4;

Royal Commission's final report means the Report of the Royal Commission into the Management of Police Informants delivered to the Governor on 30 November 2020;

Royal Commission into the Management of Police Informants means the inquiry conducted by the Commissioner appointed under section 5 of the Inquiries Act 2014 by the Letters Patent dated 13 December 2018 and the amendments to the Letters Patent dated 7 February 2019, copies of which were published in the Government Gazette on those dates;

search warrant means a warrant referred to in section 31;

secrecy provision means a provision of an Act that restricts or prohibits the disclosure of information (whether that restriction or prohibition is absolute or subject to qualifications or exceptions);

Special Investigator means the person appointed under section 12;

Victoria Police has the same meaning as it has in section 3(1) of the Victoria Police Act 2013.

(2)In this Act, a reference to Nicola Maree Gobbo is a reference to the individual named Nicola Maree Gobbo identified as the party EF in the proceeding known as AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58.

4Meaning of Royal Commission record

(1)For the purposes of this Act, Royal Commission record means—

(a)any answer, information, document or other thing given or produced to the Royal Commission into the Management of Police Informants; and

(b)any document or other thing produced by the Royal Commission into the Management of Police Informants; and

(c)any copy of an answer, document or other thing given or produced in accordance with paragraph (a) or (b).

(2)To avoid doubt, the production of any information, document or other thing to the Royal Commission into the Management of Police Informants under subsection (1)(a) includes any information, document or other thing originally produced to the Kellam Inquiry.

5Act binds the Crown

(1)This Act binds the Crown in right of Victoria and, to the extent that the legislative power of the Parliament permits, the Crown in all its other capacities.

(2)The Crown is a body corporate for the purposes of this Act and the regulations.


Part 2—Office of the Special Investigator

Division 1—Establishment, functions and powers

6Establishment of Office of the Special Investigator

(1)The Office of the Special Investigator is established.

(2)The Office of the Special Investigator—

(a)is a body corporate with perpetual succession; and

(b)has an official seal; and

(c)may sue and be sued; and

(d)may acquire, hold and dispose of real and personal property; and

(e)may do and suffer all acts and things that a body corporate may by law do and suffer.

Note

The Office of the Special Investigator is a special body under section 6(1) of the Public Administration Act 2004.

7Official seal

(1)The official seal of the Office of the Special Investigator—

(a)must be kept in custody as directed by the Office of the Special Investigator; and

(b)must not be used except as authorised by the Office of the Special Investigator.

(2)All courts must take judicial notice of the seal of the Office of the Special Investigator affixed to a document and, until the contrary is proved, must presume that it was duly affixed.

8Constitution of Office of the Special Investigator

The Office of the Special Investigator consists of one Special Investigator appointed by the Governor in Council in accordance with section 12.

9Functions of Office of the Special Investigator

(1)The Office of the Special Investigator has the functions conferred on the Office of the Special Investigator under this Act or any other Act.

(2)Without limiting subsection (1), the Office of the Special Investigator has the following functions—

(a)to access, receive, assess and deal with Royal Commission records to determine whether—

(i)evidence of the commission of one or more relevant offences or offences against this Act exist; or

(ii)evidence of a breach of discipline exists;

(b)to investigate and gather further evidence in respect of any relevant offence or an offence against this Act—

(i)to determine whether a relevant offence or an offence against this Act may have been committed; and

(ii)to compile briefs of evidence to give to the DPP for the purposes of determining whether charges should be filed; and

(iii)to commence any criminal proceedings;

(c)to investigate, and (if appropriate) charge, any police officer with the commission of a breach of discipline by the police officer arising from, or out of, the conduct of persons involved in the use of Nicola Maree Gobbo as a human source;

(d)to access, receive, assess and deal with IBAC records provided to the Office of the Special Investigator;

(e)to receive public interest disclosures and investigate public interest complaints;

(f)to provide reports to the Implementation Monitor;

(g)to cooperate, coordinate and consult with the IBAC at the request of the IBAC for the purposes of a coordinated investigation within the meaning of section 72 of the Independent Broad-based Anti-corruption Commission Act 2011 in accordance with that Act to determine whether a relevant offence or breach of discipline has been committed;

(h)to report to Parliament on any matter relating to the functions and duties of the Office of the Special Investigator.

(3)Without limiting subsection (1), the Office of the Special Investigator must investigate whether there is sufficient evidence to establish—

(a)the commission of a relevant offence by Nicola Maree Gobbo; and

(b)the commission of a relevant offence by any police officers and former police officers named in the following documents—

(i)the complete and unredacted submissions of Counsel Assisting the Royal Commission into the Management of Police Informants;

(ii)the Royal Commission's final report; and

(c)the commission of a breach of discipline by any police officers named in the following documents in connection with the use of Nicola Maree Gobbo as a human source by Victoria Police—

(i)the complete and unredacted submissions of Counsel Assisting the Royal Commission into the Management of Police Informants;

(ii)the Royal Commission's final report.

(4)The Office of the Special Investigator must be guided by the following principles for the purposes of performing its functions—

(a)it should act fairly, impartially and independently;

(b)it should act in the public interest;

(c)it should exercise its powers efficiently, effectively and as promptly as possible.

10Powers of Office of the Special Investigator

The Office of the Special Investigator has power to do all things that are necessary or convenient to be done for, or in connection with, or as incidental to, the performance of its duties and functions.

11Office of the Special Investigator not subject to direction or control

The Office of the Special Investigator is not subject to the direction or control of the Minister in respect of the performance of its duties and functions and the exercise of its powers.

Division 2—Special Investigator and OSI officers

12Appointment of Special Investigator

(1)On the recommendation of the Minister, the Governor in Council may appoint a person to be the Special Investigator.

(2)A person is qualified to be the Special Investigator if—

(a)the person has been an Australian lawyer for not less than 10 years; and

(b)in the opinion of the Minister, the person has special knowledge or experience in—

(i)criminal legal practice; or

(ii)criminal investigations.

(3)The Special Investigator is the public service body Head of the Office of the Special Investigator for the purposes of section 16 of the Public Administration Act 2004.

13Terms and conditions

(1)The Special Investigator holds office for the period not exceeding 5 years.

(2)The Special Investigator is eligible to be reappointed.

(3)Subject to this section, the Special Investigator is appointed on the terms and conditions (including remuneration and allowances) specified in the instrument of appointment.

(4)The remuneration of the Special Investigator cannot be reduced during the Special Investigator's term of office unless the Special Investigator consents to the reduction.

(5)If a person who has been a judge of the Supreme Court or the County Court or has been the Chief Magistrate is appointed as the Special Investigator, the appointment does not affect any pension or other rights or privileges the person has as a former judge or Chief Magistrate.

(6)The Special Investigator must not engage in any employment, business or community activity outside the office of the Special Investigator that may create an actual or perceived conflict of interest with their role as the Special Investigator.

(7)Without limiting subsection (6), the Special Investigator must not enter into a contract by which the Special Investigator is to provide services, or provide services under any contract, if the provision of services may create an actual or perceived conflict of interest with their role as the Special Investigator.

14Salary sacrifice

(1)The Special Investigator, by written notice to the Minister, may enter into an arrangement under which the Special Investigator agrees to receive the whole or part of the Special Investigator's total amount of future salary as non-salary benefits of an equivalent value.

(2)A notice under subsection (1) must specify a date from which the arrangement is to take effect which must be—

(a)the date on which the notice is given; or

(b)a later date.

(3)The Special Investigator may vary or revoke a notice the Special Investigator has given under subsection (1) by written notice to the Minister.

(4)A notice of variation or revocation under subsection (3) must specify a date from which the variation or revocation is to take effect which must be—

(a)the date on which the notice is given; or

(b)a later date.

(5)In this section—

non-salary benefits has the same meaning as it has in clause 3(5) and (6) of Schedule 1A to the Public Administration Act 2004.

15Vacancy and resignation

(1)The Special Investigator ceases to hold office if the Special Investigator—

(a)resigns by writing delivered to the Governor; or

(b)becomes an insolvent; or

(c)is convicted or found guilty of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or

(d)nominates for election for the Parliament of Victoria or of the Commonwealth or of another State or a Territory; or

(e)is appointed to a judicial office.

(2)The Special Investigator ceases to hold office if the Special Investigator is removed from office under section 16.

16Removal of Special Investigator

On the recommendation of the Minister, the Governor in Council may remove the Special Investigator from office on any of the following grounds—

(a)misconduct;

(b)neglect of duty;

(c)inability to perform the duties of the office;

(d)any other ground on which the Special Investigator is unfit to hold office.

17Suspension of Special Investigator

(1)On the recommendation of the Minister, the Governor in Council may suspend the Special Investigator from office if the Minister believes that grounds may exist for the removal of the Special Investigator under section 16.

(2)The Governor in Council may lift the suspension and restore the Special Investigator to office at any time.

(3)The Governor in Council must lift the suspension and restore the Special Investigator to office at the expiry of the period of 30 days after the date of the suspension unless—

(a)the suspension has been lifted earlier under subsection (2); or

(b)the Special Investigator has been removed from office under section 16.

18Declaration of inability to act

The Special Investigator may declare they are unable to act in respect of a particular matter by reason of an actual or perceived conflict of interest.

19Acting appointment

(1)On the recommendation of the Minister, the Governor in Council may appoint a person to act in the office of Special Investigator—

(a)during any vacancy (including an initial vacancy) in the office of Special Investigator; or

(b)during any period when the person holding the office—

(i)is absent from duty; or

(ii)is for any other reason unable to perform the duties of the office.

(2)Subject to this section, a person appointed under subsection (1) can be appointed for a period not exceeding 3 months.

(3)An acting appointment or acting appointments in respect of each vacancy referred to in subsection (1)(a) or each period referred to in subsection (1)(b)—

(a)must not exceed a total of 3 months in duration; and

(b)must only be made once before the office of Special Investigator is filled by a person in accordance with section 12.

Note

See also section 41AA of the Interpretation of Legislation Act 1984 regarding acting appointments.

20Oath or affirmation of office

(1)Before a person appointed to be the Special Investigator or to act in the office of Special Investigator assumes office, the person must have taken an oath or made an affirmation that the person—

(a)will faithfully and impartially perform the duties and functions and exercise the powers of the office; and

(b)will not disclose, except as authorised or required by law, any information received in the performance of the duties and functions or the exercise of powers of the office.

(2)The oath or affirmation must be administered by the Speaker of the Legislative Assembly.

21Delegation

(1)The Office of the Special Investigator, by instrument, may delegate to an OSI officer any duty, function or power of the Office of the Special Investigator under this Act, or any other Act, other than this power of delegation.

(2)The Special Investigator, by instrument, may delegate to a person qualified as specified in subsection (3) any duty, function or power that will enable the person to act in respect of a matter the Special Investigator has declared under section 18 they are unable to act by reason of an actual or perceived conflict of interest.

(3)A person is qualified for the purposes of subsection (2) if—

(a)the person is a member of staff employed or engaged under section 22 or a person engaged as a consultant under section 23; and

(b)the person has been an Australian lawyer for not less than 10 years; and

(c)in the opinion of the Special Investigator, the person has special knowledge or experience in—

(i)criminal legal practice; or

(ii)criminal investigations.

22Staff

(1)There may be employed under Part 3 of the Public Administration Act 2004 any employees who are necessary for the purposes of this Act.

(2)The Office of the Special Investigator may enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body.

(3)A person employed or engaged in accordance with this section may include—

(a)a person who was employed or engaged by the Royal Commission into the Management of Police Informants; or

(b)a person who was an IBAC Officer.

23Consultants

(1)The Office of the Special Investigator may engage persons with suitable qualifications and experience as consultants.

(2)A person engaged as a consultant under this section may include—

(a)a person who was employed or engaged by the Royal Commission into the Management of Police Informants; or

(b)a person who was an IBAC Officer.

24Oath and affirmation by staff and consultants

(1)Before commencing employment with the Office of the Special Investigator, a person referred to in section 22 must take an oath or make an affirmation that the person—

(a)will faithfully and impartially perform their duties and functions and exercise their powers; and

(b)will not disclose, except as authorised or required by law, any information received in the performance of their duties and functions or the exercise of their powers.

(2)The Office of the Special Investigator may require a person engaged under section 22(2) or 23, or an officer, subcontractor, agent or employee of a person engaged under section 23, to take an oath or make an affirmation that the person—

(a)will faithfully and impartially perform their duties and functions and exercise their powers in the course of the engagement; and

(b)will not disclose, except as authorised or required by law, any information received in the performance of their duties and functions or the exercise of their powers in the course of the engagement.

(3)The oath or affirmation is to be administered by the Special Investigator.

25Obligation to avoid actual or perceived conflicts of interest

An OSI officer must ensure that any actual or perceived conflicts of interest are avoided in the performance of their duties and functions and the exercise of their powers as an OSI officer.

26Immunity of OSI officers

(1)An OSI officer is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith—

(a)in the performance of a duty or a function or the exercise of power under this Act or the regulations made under this Act; or

(b)in the reasonable belief that the act or omission was in the performance of a duty or a function or the exercise of a power under this Act or the regulations made under this Act.

(2)Any liability resulting from an act or omission that would, but for subsection (1), attach to an OSI officer attaches instead to the State.

27Appointment of investigating OSI officers

(1)The Office of the Special Investigator by instrument may appoint an OSI officer to be an investigating OSI officer for the purposes of Part 3.

(2)The Office of the Special Investigator must not appoint an OSI officer to be an investigating OSI officer under this section unless satisfied that the OSI officer is suitably qualified and trained to perform the duties and functions, and exercise the powers, of an investigating OSI officer for the purposes of Part 3.

(3)An appointment of an OSI officer as an investigating OSI officer—

(a)may, generally or in a particular case, specify the duties, functions or powers under this Act or the regulations in respect of which that person is an investigating OSI officer; and

(b)may be made subject to any conditions that the Office of the Special Investigator considers appropriate.

28Identity cards

(1)The Office of the Special Investigator must issue an identity card to each investigating OSI officer.

(2)An identity card must—

(a)contain a photograph of the investigating OSI officer; and

(b)contain the signature of the investigating OSI officer; and

(c)be signed by the Special Investigator.


Part 3—Investigation and enforcement

Division 1—Criminal investigations

29Investigations into the commission of offences

The Office of the Special Investigator may investigate whether any person has committed a relevant offence or an offence against this Act.

30Power to require person to state name and address

(1)In connection with the investigation of a relevant offence or an offence against this Act, an investigating OSI officer may require a person to state and provide evidence of the person's name and address if the investigating OSI officer believes on reasonable grounds that the person—

(a)has committed or is about to commit a relevant offence or an offence against this Act; or

(b)may be able to assist in the investigation of a relevant offence or an offence against this Act which has been committed or is suspected of having been committed.

(2)An investigating OSI officer who makes a requirement under subsection (1) must—

(a)state their name and inform the person that they are an investigating OSI officer; and

(b)produce their identity card or other proof of identity for inspection by the person; and

(c)inform the person of the grounds for the officer's belief in sufficient detail to allow the person to understand the nature of the relevant offence or offence against this Act or suspected relevant offence or offence against this Act; and

(d)inform the person that a failure to comply with the requirement, or the provision of a false name or address, is an offence.

(3)A person, in response to a requirement made in accordance with this section, must not—

(a)refuse or fail to comply with the request; or

(b)state a name that is false in a material particular; or

(c)state an address other than the full and correct address of the person's ordinary place of residence or business.

Penalty:5 penalty units.

31Search warrants

(1)An investigating OSI officer may apply to a magistrate for the issue of a search warrant in relation to any premises or vehicle if the investigating OSI officer believes on reasonable grounds that there is, or will be within the next 72 hours, any thing at the premises or in the vehicle that may afford evidence of the commission of a relevant offence or an offence against this Act.

(2)A magistrate may issue a search warrant if satisfied by evidence on oath or affirmation, whether oral or by affidavit, that there are reasonable grounds for the belief under subsection (1).

(3)A search warrant may be executed by any investigating OSI officer.

(4)A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and, unless a form is prescribed under this Act, in the form prescribed by the rules under the Magistrates' Court Act 1989.

(5)The rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to a search warrant under this section.

(6)In addition to any authority conferred by section 78(1)(a)(ii) and (b)(iii) of the Magistrates' Court Act 1989, a search warrant authorises any investigating OSI officer to use reasonable force and any assistance necessary to apprehend and detain and search the person apparently having possession, custody or control of any thing named or described in the warrant.

32Search warrant may authorise direction to person to provide assistance with computer or network

(1)A search warrant may authorise an investigating OSI officer to direct a person to provide any information or assistance that is reasonable and necessary to allow the investigating OSI officer to—

(a)access data held in, or accessible from, a computer or data storage device that—

(i)is at the premises or in the vehicle specified in the warrant; or

(ii)has been seized from the premises or vehicle under the warrant; and

(b)copy data described in paragraph (a) to another data storage device; and

(c)convert data described in paragraph (a) or (b) into documentary form or another form intelligible to an investigating OSI officer.

(2)A search warrant may authorise the giving of a direction under subsection (1) if the magistrate issuing the warrant is satisfied that—

(a)there are reasonable grounds for suspecting that data held in, or accessible from, a computer or data storage device described in subsection (1)(a) will afford evidence as to the commission of a relevant offence or an offence against this Act; and

(b)the specified person is—

(i)reasonably suspected of having committed a relevant offence or an offence against this Act in relation to which the search warrant was issued; or

(ii)the owner or lessee of the computer or device; or

(iii)an employee of the owner or lessee of the computer or device; or

(iv)a person engaged under a contract for services by the owner or lessee of the computer or device; or

(v)a person who uses or has used the computer or device; or

(vi)a person who is or was a system administrator for the computer network of which the computer or device forms or formed a part; and

(c)the specified person has relevant knowledge of—

(i)the computer or device or a computer network of which the computer or device forms or formed a part; or

(ii)measures applied to protect data held in, or accessible from, the computer or device.

(3)A person without reasonable excuse must not fail to comply with a direction if—

(a)the person has relevant knowledge of—

(i)the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part; or

(ii)measures applied to protect data held in, or accessible from, the computer or data storage device; and

(b)the person was informed by an investigating OSI officer—

(i)of the authorisation to give the direction and of its terms; and

(ii)that it is an offence to fail to comply with the direction.

Penalty:240 penalty units or level 7 imprisonment (2 years maximum) or both.

(4)A person is not excused from complying with a direction under this section on the ground that complying with it may result in information being provided that might incriminate the person.

(5)In this section and section 33, access, data, data held in a computer and data storage device have the meanings given by section 247A(1) of the Crimes Act 1958.

33Further order to provide assistance with computer or network

(1)If a magistrate has issued a search warrant under section 32 in relation to a premises or vehicle, an investigating OSI officer may apply to the Magistrates' Court for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the investigating OSI officer to do any of the things described in section 32(1) in relation to the premises or vehicle.

(2)An application may be made under subsection (1) at the same time as an application is made for the search warrant or at any time after the issue of the search warrant.

(3)The Magistrates' Court may make an order under this section if satisfied—

(a)as to the matters described in section 32(2); and

(b)for the purposes of section 32(2)(b)(i), the offence is an indictable offence.

(4)An order granted before the seizure under the search warrant of a computer or data storage device does not have effect on or after the completion of the execution of the warrant.

Note

An application for another order under this section relating to the computer or data storage device may be made after the completion of the execution of the warrant.

(5)If the computer or data storage device is not on the premises or in the vehicle specified in the search warrant, the order must—

(a)specify the period within which the person must provide the information or assistance; and

(b)specify the place at which the person must provide the information or assistance; and

(c)specify the conditions (if any) to which the requirement to provide the information or assistance is subject.

(6)A person without reasonable excuse must not fail to comply with an order under this section if—

(a)the person has relevant knowledge of—

(i)the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part; or

(ii)measures applied to protect data held in, or accessible from, the computer or data storage device; and

(b)the person was informed by an investigating OSI officer—

(i)of the order made under this section and of its terms; and

(ii)that it is an indictable offence punishable by imprisonment to fail to comply with the order.

Penalty:600 penalty units or level 6 imprisonment (5 years maximum) or both.

(7)A person is not excused from complying with a direction under this section on the ground that complying with it may result in information being provided that might incriminate the person.

(8)A person may be charged with an offence against this section or section 32, but not both.

34Announcement before entry

(1)On executing a search warrant, the investigating OSI officer—

(a)must announce that the officer is authorised by the warrant to enter the premises; and

(b)if the officer has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.

(2)An investigating OSI officer is not required to comply with subsection (1) if the officer believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a)the safety of any person; or

(b)that the effective execution of the search warrant is not frustrated.

35Details of warrant to be given to occupier

(1)If the occupier is present at premises where a search warrant is being executed, the investigating OSI officer must—

(a)identify themselves to the occupier; and

(b)give to the occupier a copy of the warrant.

(2)If the occupier is not present at premises where a search warrant is being executed, the investigating OSI officer must—

(a)identify themselves to a person at the premises; and

(b)give to the person a copy of the warrant.

36Privilege claims in relation to search warrants

(1)This section applies if—

(a)an investigating OSI officer executing a search warrant (the searcher) wishes to inspect, copy or seize a document or other thing under the search warrant; and

(b)a person who is entitled to claim the privilege (the claimant) claims that the document or other thing is the subject of privilege.

(2)The searcher must consider the claim of privilege and either—

(a)cease exercising the power under the search warrant in relation to the document or other thing over which the claim of privilege is made; or

(b)require the claimant to immediately seal the document or other thing in an envelope, or otherwise secure it if it cannot be sealed in an envelope, and give it to the searcher.

(3)The searcher must not inspect the document or other thing in considering the claim of privilege.

(4)If the searcher requires the claimant to give the document or other thing to the searcher under subsection (2)(b), the searcher must—

(a)notify the Special Investigator as soon as practicable; and

(b)immediately give the document or other thing to the proper officer of the Supreme Court to be held in safe custody.

(5)Subject to section 79, a person must not open a sealed envelope or interfere with a document or thing secured otherwise than in an envelope before delivery to the proper officer of the Supreme Court.

37Arrest warrants—Part 5 offences

(1)An investigating OSI officer may apply to a magistrate for the issue of a warrant to arrest a person if the investigating OSI officer believes on reasonable grounds that the person has committed an offence under Part 5.

(2)A magistrate may issue an arrest warrant if satisfied by evidence on oath or affirmation, whether oral or by affidavit, that there are reasonable grounds for the belief under subsection (1).

(3)An arrest warrant may be executed by any investigating OSI officer.

(4)An arrest warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act.

(5)The rules to be observed with respect to warrants to arrest under the Magistrates' Court Act 1989 extend and apply to an arrest warrant under this section.

(6)In addition to any authority conferred by section 64 of the Magistrates' Court Act 1989, an arrest warrant authorises any investigating OSI officer to use reasonable force and any assistance necessary to apprehend and detain and search the person described in the warrant.

38Warrant to arrest under Criminal Procedure Act 2009

(1)This section applies if a warrant to arrest has been issued to an investigating OSI officer under section 12 of the Criminal Procedure Act 2009.

(2)Without limiting section 12 of the Criminal Procedure Act 2009, a warrant to arrest authorises any investigating OSI officer to use reasonable force and any assistance necessary to apprehend and detain and search the person described in the warrant.

(3)A warrant to arrest may be executed by any investigating OSI officer.

39Report to Victorian Inspectorate on issue of arrest warrants

Within 3 days after the issue of an arrest warrant, or a warrant to arrest under section 12 of the Criminal Procedure Act 2009 in respect of a relevant offence or an offence against this Act, the Office of the Special Investigator must give a written report to the Victorian Inspectorate specifying—

(a)the identity of the person named in the warrant; and

(b)the reasons why the warrant was issued.

40Brief of evidence may be provided to DPP

The Office of the Special Investigator, after conducting an investigation under this Part, may provide a brief of evidence to the DPP.

41Commencement of criminal proceedings and prosecution of persons for offences

(1)If the DPP determines that a charge-sheet should be filed against the person in relation to a relevant offence or an offence against this Act, the Office of the Special Investigator may commence a proceeding in accordance with section 6 of the Criminal Procedure Act 2009.

(2)A prosecution against a person for a relevant offence or an offence against this Act, once commenced by the Office of the Special Investigator under section 6 of the Criminal Procedure Act 2009, is to be conducted by the DPP.

(3)Nothing in subsection (2) limits the powers or alters the functions of the DPP.

Division 2—Disciplinary investigations

42Investigations into breach of discipline by police officers

The Office of the Special Investigator may investigate whether any police officer has committed a breach of discipline arising from, or out of, the conduct of persons involved in the use of Nicola Maree Gobbo as a human source.

43Power to require information, documents and answers

(1)For the purposes of an investigation under this Division, an investigating OSI officer may direct a police officer to—

(a)give any specified information; or

(b)produce any specified document; or

(c)answer any specified question—

relevant to the subject matter of the investigation.

(2)If a police officer is suspected by the Office of the Special Investigator of having committed a relevant offence and the police officer is or has been the subject of an investigation under Division 1, a direction under subsection (1) must not be given unless—

(a)the Office of the Special Investigator has—

(i)concluded any investigation under Division 1 into the matter; and

(ii)determined that there is insufficient evidence to charge the police officer for such an offence; or

(b)the DPP has advised the Office of the Special Investigator that the DPP will not prosecute the police officer for such an offence; or

(c)any criminal charges against the police officer for such an offence have been discontinued or proven; or

(d)the police officer has been acquitted of any charge in relation to such an offence.

(3)A direction under subsection (1) must—

(a)be in writing; and

(b)specify—

(i)the information to be given; and

(ii)the documents to be provided; and

(iii)the questions to be answered; and

(c)specify—

(i)in the case of a direction under subsection (1)(a), whether any specified information or answers are to be given orally or in writing; and

(ii)in the case of a direction under subsection (1)(b), that a copy of a specified document may be produced; and

(iii)that any specified information, document or answer be given by a specified date, being a date not less than 14 days after the date of the direction; and

(iv)where, or the manner in which, any specified information, document or answer is to be given or produced.

(4)A police officer who does not comply with a direction under this section commits a breach of discipline and is liable to be charged under section 46.

(5)If an investigating OSI officer directs a police officer under subsection (1)—

(a)no person or body is entitled to make a claim in response to that direction that the information, document or answer is the subject of public interest immunity; and

(b)any secrecy provision under Victorian law—

(i)is overridden; and

(ii)does not apply in respect of the direction.

(6)To avoid doubt, nothing in this section affects legal professional privilege.

44Privilege against self-incrimination abrogated

(1)A police officer is not excused from giving any information, document or answer in response to a direction under section 43(1) on the ground that the giving of the information, document or answer might tend to incriminate the police officer or make the police officer liable to a penalty.

(2)Any information, document or answer given in response to a direction under section 43(1) is not admissible in evidence against the police officer before any court or person acting judicially, except in a proceeding for—

(a)perjury or giving false information; or

(b)an offence against this Act; or

(c)breach of discipline.

(3)Any evidence obtained as a direct or indirect consequence of any information, document or answer given in response to a direction under section 43(1) is not admissible against the police officer in a criminal proceeding or proceeding for the imposition of a penalty brought against that police officer.

45Requirement to report to Victorian Inspectorate after direction given

Within 5 days after giving a direction under section 43(1), the Office of the Special Investigator must give to the Victorian Inspectorate—

(a)a copy of the direction; and

(b)the reasons why the police officer was directed.

46Breach of discipline charges

The Office of the Special Investigator may charge a police officer with a breach of discipline if the Office of the Special Investigator reasonably believes—

(a)after conducting an investigation under section 42, that the police officer has committed a breach of discipline arising from, or out of, the conduct of persons involved in the use of Nicola Maree Gobbo as a human source; or

(b)that the police officer has failed to comply with a direction given under section 43(1).

47Form of breach of discipline charge

(1)A breach of discipline charge must—

(a)be in writing; and

(b)contain particulars of the alleged breach of discipline; and

(c)specify that the police officer must state in writing whether or not the officer admits or denies the truth of the charge; and

(d)specify the time within which the police officer must make the statement under paragraph (c).

(2)If a police officer has not made the statement required under subsection (1)(c) within the time specified under subsection (1)(d), the Office of the Special Investigator may proceed without the statement and refer the charge under section 48.

48Referral of breach of discipline charge to person authorised by Chief Commissioner

(1)The Office of the Special Investigator must refer a breach of discipline charge for inquiry and determination to a person authorised by the Chief Commissioner.

(2)Subsection (1) applies despite any other charge or proceeding for an offence relating to the subject of the breach of discipline charge.

(3)At any time during which the Office of the Special Investigator is in existence, a breach of discipline charge referred under this section must not be amended by the person authorised by the Chief Commissioner without the written approval of the Office of the Special Investigator.

49Inquiry and determination of breach of discipline charge

(1)The person authorised by the Chief Commissioner must—

(a)inquire into and determine a breach of discipline charge referred under section 48 in accordance with Part 7 of the Victoria Police Act 2013; and

(b)take all action necessary to give effect to the determination in accordance with the Victoria Police Act 2013.

(2)Despite subsection (1), if the person authorised by the Chief Commissioner is notified that the police officer has been charged, or may be charged, with a relevant offence, the person authorised by the Chief Commissioner—

(a)must consult the DPP before inquiring into and determining the breach of discipline charge; and

(b)may defer the inquiry and determination of the breach of discipline charge until after the criminal charge has been finalised or discontinued.

(3)The person authorised by the Chief Commissioner must notify the charged police officer in writing as to when and where the inquiry into the breach of discipline charge is to be conducted.

(4)The person authorised by the Chief Commissioner may take any action under section 127(4) of the Victoria Police Act 2013 in respect of the charged police officer.

Note

Section 127(4) of the Victoria Police Act 2013 enables the charged police officer to be transferred to other duties, directed to take leave or suspended with or without pay until the charge has been finally determined.

50Notification of related investigations and charges

The Office of the Special Investigator must notify the person authorised by the Chief Commissioner of—

(a)any related investigation into the charged police officer under Division 1; and

(b)any charges filed against the police officer for a relevant offence.

51Sharing of information and evidence

(1)Subject to subsection (2), the Office of the Special Investigator may give to the person authorised by the Chief Commissioner—

(a)any evidence gathered during the course of an investigation conducted under this Division in relation to a breach of discipline charge referred under section 48; and

(b)any information reasonably necessary to facilitate an inquiry and determination.

(2)The Office of the Special Investigator must obtain the written approval of the IBAC before giving a protected document or other thing under subsection (1).

52Chief Commissioner to report on breach of discipline charge outcomes

The Chief Commissioner must give a written report on the outcome of a determination of a breach of discipline charge referred under section 48 within a reasonable time to—

(a)the Office of the Special Investigator; and

(b)the Implementation Monitor.

53Powers of Chief Commissioner, etc. not otherwise limited

Nothing in this Division otherwise limits the powers under Part 7 of the Victoria Police Act 2013 of—

(a)the Chief Commissioner; or

(b)the person authorised by the Chief Commissioner.

Division 3—General

54Criminal and disciplinary investigations may be conducted concurrently

The Office of the Special Investigator may conduct investigations into a matter under both Divisions 1 and 2 at the same time.

55Investigation when other proceedings on foot

(1)The Office of the Special Investigator may commence or continue to investigate a matter despite the fact that any proceeding (whether civil or criminal) is on foot, or has been commenced in any court or tribunal that relates to, or is otherwise connected with, the subject matter of the investigation.

(2)If the Office of the Special Investigator is or becomes aware that such a proceeding is on foot or has been commenced, the Office of the Special Investigator must take all reasonable steps to ensure that the conduct of its investigation does not prejudice that proceeding.

56Request for information by Victorian Inspectorate

(1)The Victorian Inspectorate may request the Office of the Special Investigator to give the Victorian Inspectorate information about a direction given under section 43.

(2)Information given to the Victorian Inspectorate under this section may be oral or in writing.

(3)To avoid doubt, this section does not limit the powers of the Victorian Inspectorate under section 12 of the Victorian Inspectorate Act 2011.

57Referral of improper conduct to Chief Commissioner

If, in the course of its investigations under this Part, the Office of the Special Investigator uncovers conduct by a person that does not arise from, or out of, the conduct of persons involved in the use of Nicola Maree Gobbo as a human source, but which may still constitute an offence or a breach of discipline, the Office of the Special Investigator may refer the matter to the Chief Commissioner.

Division 4—Public interest disclosures and complaints

58Making of public interest disclosures

Any person may make a public interest disclosure to the Office of the Special Investigator about the conduct of a member of Victoria Police personnel.

Note

The protections under Part 6 of the Public Interest Disclosures Act 2012 apply to a disclosure made in accordance with this section.

59Duty to investigate public interest complaints referred by IBAC

The Office of the Special Investigator must investigate in accordance with this Part every public interest complaint that the IBAC has referred to the Office of the Special Investigator under Division 5 of Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011.

60Investigation procedures

(1)The Office of the Special Investigator must establish procedures for or with respect to the investigation of public interest complaints.

(2)The procedures referred to in subsection (1) must be consistent with—

(a)the Public Interest Disclosures Act 2012; and

(b)the guidelines in force for the time being under section 57 of that Act.

(3)The Office of the Special Investigator must ensure that the procedures referred to in subsection (1) are readily available to the public.

61Public interest complainant may request information about investigation

(1)The person who made a public interest complaint referred to in section 59 may request information about the investigation of that complaint from the Office of the Special Investigator.

(2)Subject to section 63, on receiving a request under subsection (1), the Office of the Special Investigator may give the person the requested information.

62Public interest complainant to be informed of investigation outcome

(1)Subject to section 63, on completing an investigation under this Part, the Office of the Special Investigator must inform the person who made the public interest complaint of the outcome of the investigation.

(2)Subsection (1) does not apply if—

(a)the public interest complaint was made anonymously; or

(b)the IBAC has not disclosed the identity of the person who made the public interest complaint to the Office of the Special Investigator under section 77(2A) of the Independent Broad-based Anti-corruption Commission Act 2011.

63Information not to be disclosed to public interest complainant in certain cases

The Office of the Special Investigator must not disclose any information under section 61 or 62 if the Office of the Special Investigator considers that disclosure of the information would—

(a)not be in the public interest or in the interests of justice; or

(b)put a person's safety at risk; or

(c)prejudice an investigation under this Act or the Independent Broad-based Anti‑corruption Commission Act 2011 or an investigation by Victoria Police; or

(d)otherwise contravene a secrecy provision.

64Chief Commissioner may be notified of public interest disclosure or complaint

The Office of the Special Investigator may notify the Chief Commissioner of a public interest disclosure or a public interest complaint referred to in this Division if—

(a)the Office of the Special Investigator considers it appropriate to do so; and

(b)the person who made the public interest disclosure or public interest complaint consents to the notification.

65Complaints about OSI officers

The Office of the Special Investigator must notify the Victorian Inspectorate of any complaint or notification to the Office of the Special Investigator if that complaint or notification involves conduct of—

(a)the Office of the Special Investigator; or

(b)any person who is, or was at the time of the conduct, an OSI officer.

Part 4—Information—Royal Commission records, IBAC records and other documents

Division 1—Royal Commission records

66Access to Royal Commission records

(1)The Office of the Special Investigator may access, receive, assess and deal with Royal Commission records for the purposes of performing its functions under this Act regardless of who the custodian of those records is.

Notes

1.See section 124 of the Inquiries Act 2014 which provides for the transfer of records of a Royal Commission to the Department of Premier and Cabinet once the Royal Commission ceases to exist.

2.See also section 10A of the Public Records Act 1973.

(2)Subject to subsection (3), section 40 of the Inquiries Act 2014 and section 144 of the Independent Broad-based Anti-corruption Commission Act 2011 continue to apply to Royal Commission records accessed, received, assessed and dealt with by the Office of the Special Investigator for the purposes of performing its functions under this Act.

(3)Nothing in section 40 of the Inquiries Act 2014 and section 144 of the Independent Broad-based Anti-corruption Commission Act 2011 prevents—

(a)the admissibility of any evidence obtained as a direct or indirect consequence of the Office of the Special Investigator accessing, receiving, assessing or dealing with a Royal Commission record in a criminal proceeding or proceeding for the imposition of a penalty; or

(b)the Office of the Special Investigator from relying on a Royal Commission record for the purposes of applying for a warrant under this Act, the Crimes Act 1958, the Criminal Procedure Act 2009 or the Surveillance Devices Act 1999.

67Retention, management and storage of Royal Commission records

(1)The Office of the Special Investigator may retain any Royal Commission records accessed by the Office of the Special Investigator—

(a)for the purposes of performing its functions under this Act; and

(b)for as long as the Office of the Special Investigator requires those records to perform its functions under this Act.

(2)For the purposes of subsection (1), the Office of the Special Investigator may retain a Royal Commission record despite any request being made for the return of the record by a person who appears to be entitled to it.

(3)The Office of the Special Investigator must ensure that any Royal Commission records are kept securely and that access to those records is appropriately managed.

68Information acquired by Royal Commission officers engaged under this Act

To avoid doubt, a person specified in section 22(3)(a) or 23(2)(a) is authorised to disclose information for the purposes of performing duties and functions under this Act if the information was acquired—

(a)by reason of the person being employed or engaged by the Royal Commission into the Management of Police Informants; or

(b)in the course of performing functions under the Inquiries Act 2014 for the purposes of the Royal Commission into the Management of Police Informants.

Note

See section 43(d) of the Inquiries Act 2014.

Division 2—IBAC records

69Provision of IBAC records

(1)The Office of the Special Investigator may access, receive, assess and deal with IBAC records provided to the Office of the Special Investigator for the purposes of the Office of the Special Investigator performing its functions under this Act.

Note

See section 41 of the Independent Broad-based Anti-corruption Commission Act 2011.

(2)Subject to subsection (3), section 144 of the Independent Broad-based Anti-corruption Commission Act 2011 continues to apply to IBAC records accessed, received, assessed and dealt with by the Office of the Special Investigator for the purposes of performing its functions under this Act.

(3)Unless an IBAC record is of a kind specified in subsection (4), nothing in section 144 of the Independent Broad-based Anti-corruption Commission Act 2011 prevents—

(a)the admissibility of any evidence obtained as a direct or indirect consequence of the Office of the Special Investigator accessing, receiving, assessing or dealing with an IBAC record in a criminal proceeding or proceeding for the imposition of a penalty; or

(b)the Office of the Special Investigator from relying on an IBAC record for the purposes of applying for a warrant under this Act, the Crimes Act 1958, the Criminal Procedure Act 2009 or the Surveillance Devices Act 1999.

(4)To avoid doubt, section 144 of the Independent Broad-based Anti-corruption Commission Act 2011 continues to apply to IBAC records provided to the Office of the Special Investigator by the IBAC for the purposes of a coordinated investigation within the meaning of section 72 of that Act that the IBAC is conducting in consultation, coordination and cooperation with the Special Investigator.

Note

Parts 6 and 7 of the Public Interest Disclosures Act 2012 continue to apply in respect of information referred to in this section.

70Notification by the IBAC of Public Interest Disclosures Act 2012 protections

(1)This section applies if—

(a)the IBAC provides an IBAC record to the Office of the Special Investigator; and

(b)the protections under Parts 6 and 7 of the Public Interest Disclosures Act 2012 apply in respect of the information in the IBAC record.

(2)If this section applies, the IBAC must give written notification to the Office of the Special Investigator that the protections under Parts 6 and 7 of the Public Interest Disclosures Act 2012 apply in respect of the information in the IBAC record.

71Retention, management and storage of IBAC records

(1)The Office of the Special Investigator may retain any IBAC records provided to the Office of the Special Investigator—

(a)for the purposes of performing its functions under this Act; and

(b)for as long as the Office of the Special Investigator requires those records to perform its functions under this Act.

(2)For the purposes of subsection (1), the Office of the Special Investigator may retain an IBAC record despite any request being made for the return of the record by a person who appears to be entitled to it.

(3)The Office of the Special Investigator must ensure that any IBAC records are kept securely and that access to those records is appropriately managed.

72Information acquired by current or former IBAC Officers engaged under this Act

To avoid doubt, a person specified in section 22(2), 22(3)(b) or 23(2)(b) is authorised to disclose information for the purposes of performing duties and functions under this Act if the information was acquired by reason of the person being currently or previously employed or engaged as an IBAC Officer.

Note

See section 40 of the Independent Broad-based Anti-corruption Commission Act 2011.

Division 3—Protected documents received from IBAC

73Provision of protected document or other thing by IBAC

(1)If the IBAC gives a protected document or other thing to the Office of the Special Investigator, the IBAC must include with the document or other thing a statement specifying—

(a)that the document or other thing has been provided to the Office of the Special Investigator in accordance with this section; and

(b)the nature of the document or other thing; and

(c)that the document or other thing is a protected document under Division 4 of Part 2 of the Independent Broad-based Anti-corruption Commission Act 2011.

(2)The IBAC must retain a copy of a statement given to the Office of the Special Investigator under subsection (1).

74Referral of production requests in relation to proceedings, processes or actions other than criminal proceedings

(1)This section applies to the following—

(a)any legal proceeding other than a criminal proceeding;

(b)any proceeding, other than a criminal proceeding, of any tribunal, authority or person having power to require the production of documents or the answering of questions, other than the Victorian Inspectorate;

(c)any disciplinary process or action.

(2)In respect of any proceeding, process or action to which this section applies, if an OSI officer receives a request to produce a protected document or other thing given to the Office of the Special Investigator, the OSI officer—

(a)is not required to respond to the request; and

(b)must refer the request to the IBAC as soon as reasonably practicable after receiving the request.

(3)For the purposes of this section, a request referred to the IBAC under subsection (2) is taken to be a request received by a protected person within the meaning of section 45 of the Independent Broad-based Anti-corruption Commission Act 2011 and Division 4 of Part 2 of that Act applies to that request accordingly.

75Referral of production and inspection requests in respect of criminal proceedings

(1)This section applies if, in a criminal proceeding, a production or inspection notice is issued (including the issue of a subpoena) in respect of an OSI officer to produce any document or other thing—

(a)that has come into the possession or control of the officer in accordance with this Division for the purposes of performing functions under this Act; and

(b)the document or other thing is a protected document or other thing.

(2)If this section applies, the OSI officer—

(a)is not required to respond to the notice; and

(b)must refer the notice to the IBAC as soon as reasonably practicable after receiving the notice.

(3)For the purposes of this section, a notice referred to the IBAC under subsection (2) is taken to be a notice received by a protected person within the meaning of section 45 of the Independent Broad‑based Anti-corruption Commission Act 2011 and Division 4 of Part 2 of that Act applies to that request accordingly.

76Compellability of OSI officers as witnesses

(1)This section applies to the following—

(a)any legal proceeding;

(b)any proceeding of any tribunal, authority or person having power to require the production of documents or the answering of questions, other than the Victorian Inspectorate;

(c)any disciplinary process or action.

(2)In any proceeding, process or action to which this section applies, an OSI officer is not compellable to disclose any matter or thing of which the OSI officer has knowledge as a result of being given a protected document or thing.

Division 4—Use of privileged documents

Subdivision 1—Privilege claims in respect of documents obtained under search warrant

77Application to Supreme Court to determine privilege in respect of document or thing

(1)The Office of the Special Investigator may apply to the Supreme Court to determine whether a document or thing, or part of that document or thing, is the subject of privilege if the application is made within 14 days after the proper officer has received a sealed envelope or document or thing otherwise secured than in an envelope in accordance with section 36.

(2)If no application is made under subsection (1) within the period of 14 days, the proper officer must return the document or thing to the claimant of the privilege.

(3)If an application to the Supreme Court is made under subsection (1), the Office of the Special Investigator must give written notice of the application to the claimant of the privilege within a reasonable time before the hearing of the application.

(4)Notice under subsection (3) must be in the prescribed form (if any).

(5)The claimant is entitled to appear and be heard on the hearing of the application.

78Notice given to Attorney-General in some circumstances—document or thing

(1)The Office of the Special Investigator must give notice of an application made to the Supreme Court under section 77 to the Attorney-General within a reasonable time before the hearing of the application if the Office of the Special Investigator is advised or has reason to believe the privilege claimed by the claimant in respect of a document, thing, or part of a document or thing—

(a)is public interest immunity; or

(b)is on the basis that the document, or part of the document, may be taken to relate to matters of state within the meaning of section 130 of the Evidence Act 2008.

(2)The Attorney-General is entitled to appear and be heard on the hearing of the application if the Attorney-General is given notice under subsection (1).

79Determination of privilege claims—document or thing

(1)On an application made under section 77, the Supreme Court must determine whether the document in the sealed envelope or the document or thing secured otherwise than in an envelope is the subject of privilege.

(2)For the purposes of making a determination of a kind specified under subsection (1), the Judge constituting the Supreme Court and any other person authorised by the Court may—

(a)open the sealed envelope or access the document or thing secured otherwise than in an envelope; and

(b)inspect the document or thing.

(3)If the Supreme Court determines that the document or thing referred to in subsection (1) is—

(a)the subject of privilege—

(i)the Court must order that the document or thing be returned to the claimant; and

(ii)the proper officer must release the document or thing to the claimant; or

(b)not the subject of privilege—

(i)the Court must order that the document or thing be given to the Office of the Special Investigator; and

(ii)the proper officer must release the document or thing accordingly.

(4)If the Supreme Court determines that the document or thing referred to in subsection (1) is not the subject of privilege, the Office of the Special Investigator—

(a)may include the document or thing in a brief of evidence; and

(b)must notify the claimant that the document or thing may be used in a brief of evidence.

(5)The Supreme Court may make any order in relation to how a document or thing, or part of a document or thing, is to be dealt with that it considers appropriate in the circumstances.

80Offence to open sealed or secured document

(1)Subject to section 79(2), a person must not open a sealed envelope or otherwise have access to the document or thing contained in the sealed envelope before—

(a)the Supreme Court determines the claim of privilege; or

(b)the document or thing is returned to the claimant.

Penalty:120 penalty units or level 8 imprisonment (1 year maximum) or both.

(2)Subject to section 79(2), a person must not open or otherwise have access to a document or thing secured otherwise than in an envelope before—

(a)the Supreme Court determines the claim of privilege; or

(b)the document or thing is returned to the claimant.

Penalty:120 penalty units or level 8 imprisonment (1 year maximum) or both.

Subdivision 2—Privilege and secrecy provision claims in respect of relevant records

81Notification regarding use of Royal Commission records and IBAC records

(1)In the course of preparing a brief of evidence to give to the DPP under section 40, the Office of the Special Investigator must notify a relevant person in accordance with this section if the Office of the Special Investigator is of the opinion that a relevant record produced to the Royal Commission into the Management of Police Informants or to the IBAC (as appropriate) by the relevant person is a record that—

(a)may be used in the brief of evidence; and

(b)may be subject to—

(i)a claim of privilege; or

(ii)a secrecy provision.

(2)For the purposes of subsection (1) and if Victoria Police would otherwise not be a relevant person in respect of a relevant record, the Office of the Special Investigator must notify Victoria Police as a relevant person in accordance with this section if—

(a)the relevant record was produced to the Royal Commission into the Management of Police Informants or to the IBAC by a police officer or former police officer; and

(b)the Office of the Special Investigator considers the relevant record to be a record of interest.

(3)A notification to a relevant person under this section must—

(a)be in writing; and

(b)be provided to the person before the brief of evidence is given to the DPP; and

(c)specify that—

(i)the Office of the Special Investigator intends to use in a brief of evidence a relevant record the person produced to the Royal Commission into the Management of Police Informants or the IBAC (as appropriate); and

(ii)the person may review the relevant record, or a copy of that record; and

(iii)in respect of the relevant record, the person may have grounds to claim that—

(A)it is subject to privilege; or

(B)that a secrecy provision applies to it; and

(iv)the person's claim may prevent the use of the relevant record in the brief of evidence.

(4)If a relevant person intends to claim privilege or that a secrecy provision applies in respect of a relevant record after receiving a notification under subsection (1), the relevant person must advise the Office of the Special Investigator of that intention.

(5)An advice under subsection (4) must—

(a)be in writing; and

(b)be given to the Office of the Special Investigator within 14 days after the relevant person receives a notification under subsection (1); and

(c)specify (as appropriate)—

(i)the category of privilege being claimed in respect of the relevant record; or

(ii)the secrecy provision claimed to apply in respect of the relevant record.

Note

See Part 3.10 of the Evidence Act 2008 for categories of privilege.

(6)In this section—

record of interest, in relation to Victoria Police, means a relevant record Victoria Police may have an interest in and includes any of the following—

(a)a record to which legal professional privilege may apply and Victoria Police would be considered to be the holder of that privilege;

(b)a record that may be considered to relate to matters of state within the meaning of section 130 of the Evidence Act 2008 and Victoria Police is likely to have an interest in protecting the subject matter of the record;

(c)a record to which a secrecy provision may apply and the outcome of any proceeding to determine application of the provision is likely to be of interest to Victoria Police.

82Application to Supreme Court to determine privilege claim in respect of relevant records

(1)The Office of the Special Investigator may apply to the Supreme Court to determine whether a relevant record is the subject of privilege—

(a)if the application is made within 14 days after the Office of the Special Investigator receives written advice from a relevant person in accordance with section 81 advising that the person intends to claim privilege; or

(b)on its own initiative.

(2)If no application of a kind referred to under subsection (1)(a) is made within the period of 14 days, the Office of the Special Investigator must—

(a)as soon as practicable, advise the claimant that the Office of the Special Investigator accepts that the relevant record is the subject of privilege; and

(b)not use the relevant record in a brief of evidence.

(3)If an application to the Supreme Court is made under subsection (1), the Office of the Special Investigator must—

(a)give written notice of the application to the claimant of the privilege within a reasonable time before the hearing of the application; and

(b)give a copy of the relevant record to the Court.

(4)Notice under subsection (3) must be in the prescribed form (if any).

(5)The claimant is entitled to appear and be heard on the hearing of the application.

83Notice given to Attorney-General in some circumstances—relevant record

(1)The Office of the Special Investigator must give notice of an application made to the Supreme Court under section 82 to the Attorney-General within a reasonable time before the hearing of the application if the Office of the Special Investigator is advised or has reason to believe the privilege claimed by the claimant in respect of a relevant record—

(a)is public interest immunity; or

(b)is on the basis that the record, or part of the record, may be taken to relate to matters of state within the meaning of section 130 of the Evidence Act 2008.

(2)For the purposes of subsection (1), the Office of the Special Investigator must give the Attorney-General a copy of the record at the time of giving the Attorney-General notice of the application.

(3)The Attorney-General is entitled to appear and be heard on the hearing of the application if the Attorney-General is given notice under subsection (1).

84Application to Supreme Court to determine whether secrecy provision applies

(1)The Office of the Special Investigator may apply to the Supreme Court to determine whether a secrecy provision applies in respect of a relevant record the Office of the Special Investigator has accessed—

(a)if the application is made within 14 days after the Office of the Special Investigator receives written notice from a relevant person in accordance with section 81 advising that the person intends to claim that a secrecy provision applies; or

(b)on its own initiative.

(2)If no application of a kind referred to under subsection (1)(a) is made within the period of 14 days, the Office of the Special Investigator must—

(a)as soon as practicable, advise the claimant that the Office of the Special Investigator accepts that a secrecy provision applies to the relevant record; and

(b)not use the relevant record in a brief of evidence.

(3)If an application to the Supreme Court is made under subsection (1), the Office of the Special Investigator must—

(a)give written notice of the application to the claimant within a reasonable time before the hearing of the application; and

(b)give a copy of that record or part to the Court.

(4)Notice under subsection (3) must be in the prescribed form (if any).

(5)The claimant is entitled to appear and be heard on the hearing of the application.

85Determination of privilege claims—relevant record

(1)On an application made under section 82, the Supreme Court must determine whether the relevant record proposed to be used in a brief of evidence by the Office of the Special Investigator is the subject of privilege.

(2)For the purposes of making a determination under subsection (1), the Judge constituting the Supreme Court and any other person authorised by the Court—

(a)must be given the relevant record, or a copy of that record; and

(b)may inspect the relevant record, or a copy of that record.

(3)If the Supreme Court determines that the relevant record referred to in subsection (1) is—

(a)the subject of privilege, the Office of the Special Investigator—

(i)must not include the record in a brief of evidence; and

(ii)must notify the claimant that the record is the subject of privilege and will not be used in a brief of evidence; or

(b)not the subject of privilege, the Office of the Special Investigator—

(i)may include the record in a brief of evidence; and

(ii)must notify the claimant that the record, or part of the record, is not the subject of privilege and may be used in a brief of evidence.

(4)A relevant record must be returned to the Office of the Special Investigator after the Supreme Court has made a determination under this section.

(5)To avoid doubt, the Supreme Court may make any order in relation to how a relevant record is to be dealt with that it considers appropriate in the circumstances.

86Determination of secrecy provision claims

(1)On an application made under section 84, the Supreme Court must determine whether the relevant record proposed to be used in a brief of evidence by the Office of the Special Investigator—

(a)is subject to a secrecy provision; and

(b)if the relevant record is subject to such a provision, whether that provision operates to exclude the record from the brief of evidence.

(2)For the purposes of making a determination of a kind specified under subsection (1), the Judge constituting the Supreme Court and any other person authorised by the Court—

(a)must be given the relevant record, or a copy of that record; and

(b)may inspect the relevant record or a copy of that record.

(3)If the Supreme Court determines that the relevant record referred to in subsection (1) is subject to a secrecy provision and that the provision operates to exclude the record from inclusion in a brief of evidence, the Office of the Special Investigator—

(a)must not include the record in the brief of evidence; and

(b)must notify the claimant that the record is subject to a secrecy provision and will not be used in a brief of evidence.

(4)If the Supreme Court determines that the relevant record referred to in subsection (1) is subject to a secrecy provision but that the provision does not operate to exclude the record from a brief evidence or that the record is not subject to a secrecy provision, the Office of the Special Investigator—

(a)may include the record in a brief of evidence; and

(b)must notify the claimant that the record may be included in a brief of evidence because (as appropriate)—

(i)the secrecy provision does not operate to prevent the inclusion of the record in the brief; or

(ii)the record is not subject to a secrecy provision.

(5)A relevant record, or copy of the record, must be returned to the Office of the Special Investigator after the Supreme Court has made a determination under this section.

(6)To avoid doubt, the Supreme Court may make any order in relation to how a relevant record is to be dealt with that it considers appropriate in the circumstances.

Part 5—Offences

87Offence to hinder or obstruct Office of the Special Investigator or OSI officer

A person must not, without reasonable excuse, hinder or obstruct the Office of the Special Investigator or an OSI officer in the performance of a function or the exercise of a power under this Act.

Penalty:120 penalty units or level 8 imprisonment (1 year maximum) or both.

88Statement which is false or misleading

A person must not wilfully make a statement that the person knows to be false or misleading in a material particular or mislead or attempt to mislead the Office of the Special Investigator or an OSI officer in the exercise of their powers under this Act or the regulations.

Penalty:120 penalty units or level 8 imprisonment (1 year maximum) or both.

89Unauthorised use or disclosure of Office of Special Investigator information

(1)Unless expressly authorised to do so by the Office of the Special Investigator, an OSI officer, a former OSI officer or a service provider must not, without reasonable excuse, use or disclose any Office of Special Investigator information about investigations of the Office of the Special Investigator or the functions and powers of that office.

Penalty:240 penalty units or level 7 imprisonment (2 years maximum) or both.

(2)Subsection (1) does not apply to any Office of Special Investigator information—

(a)that is in the public domain, other than because of an unauthorised use or disclosure of information; or

(b)that is in the public domain because its use or disclosure had been previously expressly authorised by the Office of the Special Investigator.

(3)Without limiting what may be a reasonable excuse, it is a reasonable excuse if the OSI officer, former OSI officer or service provider took reasonable steps not to use or disclose the Office of Special Investigator information.

(4)In this section—

Office of Special Investigator information means—

(a)in relation to an OSI officer or a former OSI officer, any information that has come to the knowledge or into the possession of the officer—

(i)in the performance of functions or the exercise of powers as an OSI officer; or

(ii)otherwise as a result of being an OSI officer; or

(b)in relation to a service provider, any information given or made available to the service provider by the Office of the Special Investigator or an OSI officer for the purposes of the provision of services by the service provider;

service provider means—

(a)a contractor, consultant or other person who is or has been engaged to provide services to the Office of the Special Investigator or to the Special Investigator; or

(b)a person who is or has been employed by or engaged to provide services to a contractor, consultant or other person referred to in paragraph (a).

90Offence to cause or threaten harm or detriment to person who assists Office of the Special Investigator or OSI officer

(1)A person must not cause, or threaten to cause (whether expressly or impliedly), any harm or detriment to a specified person—

(a)intentionally or knowing that the conduct is likely to cause or threaten to cause any harm or detriment to the specified person; and

(b)because of the knowledge or belief that the person is a specified person.

Penalty:1200 penalty units or level 5 imprisonment (10 years maximum) or both.

(2)For the purposes of subsection (1), a specified person is a person who, at the time of the offence—

(a)is or was a person who—

(i)provides or provided information, a document or an answer to the Office of the Special Investigator or an OSI officer, whether voluntarily or pursuant to any warrant or investigation power under this Act or any other Act or law; or

(ii)otherwise assists, assisted, cooperates or cooperated with the Office of the Special Investigator or an OSI officer in any way; or

(b)is, or was at any time, an OSI officer.

(3)Subsection (1) does not apply to conduct engaged in by a person performing official duties for the purpose of any of the following that, but for this subsection, would constitute an offence against subsection (1)—

(a)the enforcement of the criminal law;

(b)the administration of any Act;

(c)the enforcement of a law imposing a pecuniary penalty;

(d)the execution of a warrant;

(e)the protection of public revenue.

(4)For the purposes of this section, "harm or detriment" includes any action causing, comprising or involving any of the following—

(a)injury, damage or loss;

(b)intimidation or harassment;

(c)ostracism;

(d)discrimination, disadvantage or adverse treatment in relation to employment;

(e)dismissal from, or prejudice in, employment;

(f)disciplinary proceedings.

(5)In a proceeding for an offence against subsection (1), it is a defence to the charge for the accused to prove that the conduct is a lawful action, including—

(a)any action in the normal course of a lawful employment or industrial action; or

(b)any other action which is otherwise in accordance with law.

91Destruction or concealing of evidence

(1)A person who—

(a)knows that a document or other thing of any kind is, or is reasonably likely to be, required in evidence in connection with a function of the Office of the Special Investigator or an investigation under this Act; and

(b)either—

(i)destroys or conceals it or renders it illegible, undecipherable or incapable of identification; or

(ii)expressly, tacitly or impliedly authorises or permits another person to destroy or conceal it or render it illegible, undecipherable or incapable of identification and that other person does so; and

(c)acts as described in paragraph (b) with the intention of preventing it from being used in evidence in connection with a function of the Office of the Special Investigator or any part of an investigation under this Act—

is guilty of an indictable offence and liable to a fine of 600 penalty units or level 6 imprisonment (5 years maximum) or both.

(2)This section applies in connection with a function of the Office of the Special Investigator or an investigation under this Act, whether the function or investigation—

(a)is in progress; or

(b)is to be, or may be, exercised or conducted in the future.

(3)Nothing in this section limits the operation of section 254 of the Crimes Act 1958.

92Corporate criminal responsibility for offence against section 91

(1)For the purposes of a proceeding against a body corporate for an offence against section 91—

(a)relevant conduct engaged in by an associate of the body corporate must also be attributed to the body corporate; and

(b)knowledge of an associate of the body corporate must also be attributed to the body corporate; and

(c)intention—

(i)of the body corporate's board of directors; or

(ii)of an officer of the body corporate; or

(iii)of any other associate of the body corporate if a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the formation of that intention—

must also be attributed to the body corporate.

(2)If an officer of a body corporate contravenes section 91, the body corporate must be taken to have also contravened that section and may be proceeded against and found guilty of an offence against that section whether or not the officer has been proceeded against or found guilty of that offence.

(3)In a proceeding against a body corporate for an offence against section 91 commenced in reliance on subsection (2), it is a defence to the charge for the body corporate to prove that it exercised due diligence to prevent the contravention of that section by the officer.

(4)The means by which authorisation or permission as required by section 91(1)(b)(ii) may be established include—

(a)proving that an officer of the body corporate gave that authorisation or permission; or

(b)proving that the body corporate's board of directors gave that authorisation or permission; or

(c)proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the relevant conduct being carried out.

(5)Subsection (4)(a) does not apply if the body corporate proves that it exercised due diligence to prevent the authorisation or permission being given.

(6)Factors relevant to the application of subsection (1)(c)(iii) or (4)(c) include—

(a)whether authority to commit an offence against section 91 or an offence of a similar character had been given by an officer of the body corporate; and

(b)whether the associate of the body corporate who carried out the relevant conduct or formed the relevant intention believed on reasonable grounds, or entertained a reasonable expectation, that an officer of the body corporate would have authorised or permitted the relevant conduct being carried out with the relevant intention.

(7)Subject to subsection (8), it is not necessary that each element of an offence against section 91 that is attributed to a body corporate by force of subsection (1) be supplied by the same associate of the body corporate.

(8)It is necessary that the elements referred to in section 91(1)(b)(i) and (c) be supplied by the same associate of the body corporate.

93Responsible agency for the Crown

(1)If a proceeding is commenced against the Crown for an offence against this Act, the responsible agency in respect of the offence may be specified in any document commencing, or relating to, the proceeding.

(2)In this section, the responsible agency in respect of an offence is the agency of the Crown—

(a)whose acts or omissions are alleged to constitute the offence; or

(b)if that agency has ceased to exist, that is the successor of that agency; or

(c)if that agency has ceased to exist and there is no clear successor, that the court declares to be the responsible agency.

(3)The responsible agency in respect of an offence is entitled to act in any proceeding against the Crown for the offence and, subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused in the proceeding are conferred or imposed on the responsible agency.

(4)The person prosecuting the offence may change the responsible agency during the proceeding with the leave of the court.

94Proceeding against successors to public bodies

A proceeding for an offence against this Act that was commenced against a public body before its dissolution, or that could have been commenced against a public body if not for its dissolution, may be continued or commenced against its successor if the successor is a public body.

95Liability of officers of partnerships and unincorporated bodies or associations

(1)Subject to subsection (2), if this Act provides that a person is guilty of an offence and the person is a partnership or an unincorporated body or association (including a partnership or an unincorporated body or association representing the Crown), the reference to the person is taken to be a reference to each officer of the partnership, body or association (as the case requires).

(2)If an offence against this Act is committed by an officer of a partnership or an unincorporated body or association because of subsection (1), the officer is only guilty of the offence if the commission of the offence is attributable to the officer failing to take reasonable care.

(3)The penalty to which an officer of a partnership or an unincorporated body or association is liable for an offence committed by the officer because of subsection (1) is a fine not exceeding the maximum fine that could be imposed by a court on a natural person found guilty of the same offence committed at the same time (otherwise than because of subsection (1)).

(4)In determining whether an officer of a partnership or unincorporated body or association is guilty of an offence, regard must be had to—

(a)what the officer knew about the matter concerned; and

(b)the extent of the officer's ability to make, or participate in the making of, decisions that affect the partnership, body or association in relation to the matter concerned; and

(c)whether the commission of the offence is also attributable to an act or omission of any other person; and

(d)any other relevant matter.

(5)An officer of a partnership or unincorporated body or association who is acting on a voluntary basis (irrespective of whether the officer received out-of-pocket expenses) is not liable to be prosecuted under this section for anything done or not done by the officer as a person acing on a voluntary basis.

(6)In this section—

officer of an unincorporated body or association or a partnership has the meaning given by section 9 of the Corporations Act.

96Maximum fine for body corporate

(1)If a body corporate is found guilty of an offence against this Act and the court has power to fine the body corporate, unless the contrary intention appears, it may impose on the body corporate a fine not greater than 5 times the amount of the maximum fine that could be imposed by the court on a natural person found guilty of the same offence committed at the same time.

(2)This section has effect despite—

(a)anything to the contrary in the Sentencing Act 1991; and

(b)the prescription of a maximum fine for the offence applicable to all offenders.


Part 6—General

97Implementation Monitor reporting

(1)The Office of the Special Investigator must provide written reports to the Implementation Monitor in accordance with, and in relation to the matters specified in, subsection (2).

(2)The following requirements and matters are specified for the purposes of subsection (1)—

(a)progress reports, to be provided every 6 months, in relation to the establishment of the Office of the Special Investigator, until the Office is fully established;

(b)the outcomes of criminal and disciplinary investigations conducted under Part 3 within a reasonable time of the conclusion of those investigations.

98Annual report

(1)The Office of the Special Investigator, in its annual report for a financial year under Part 7 of the Financial Management Act 1994, must include the number of investigations carried out under Divisions 1 and 2 of Part 3.

Note

Section 69 of the Public Interest Disclosures Act 2012 requires the Office of the Special Investigator to include other specified information in its annual report.

(2)If the Office of the Special Investigator is aware of a criminal investigation, criminal proceeding or other legal proceeding in relation to a matter or person to be included in an annual report, the Office of the Special Investigator must not include in the report any information which would prejudice the investigation or proceeding.

99Special reports

(1)The Office of the Special Investigator may at any time give to the clerk of each House of Parliament in accordance with section 100 a report on any matter relating to the performance of its duties and functions.

(2)If the Office of the Special Investigator intends to include in a report under this section adverse findings about a person or a public body, the Office of the Special Investigator must—

(a)give the person or the relevant principal officer of the public body (as the case requires) a reasonable opportunity to respond to the adverse findings; and

(b)fairly set out each element of the response in its report.

(3)If the Office of the Special Investigator intends to include in a report under this section a comment or an opinion which is adverse to any person or a public body, the Office of the Special Investigator must—

(a)give the person or the relevant principal officer of the public body (as the case requires) a reasonable opportunity to respond to the adverse material; and

(b)fairly set out each element of the response in its report.

(4)If the Office of the Special Investigator is aware of a criminal investigation, criminal proceeding or other legal proceeding in relation to a matter or person to be included in a report under this section, the Office of the Special Investigator must not include in the report any information which would prejudice the criminal investigation, criminal proceeding or other legal proceeding.

(5)The Office of the Special Investigator must not include in a report under this section a statement as to—

(a)a finding or an opinion that a specified person is guilty of or has committed, is committing or is about to commit, an offence or a breach of discipline; or

(b)a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for an offence or a breach of discipline.

(6)The Office of the Special Investigator must not include in a report under this section any information that would identify a person who is not the subject of any adverse comment or opinion unless the Office of the Special Investigator—

(a)is satisfied that it is necessary or desirable to do so in the public interest; and

(b)is satisfied that it will not cause unreasonable damage to the person's reputation, safety or wellbeing; and

(c)states in the report that the person is not the subject of any adverse comment or opinion.

100Tabling of special reports

(1)The clerk of each House of Parliament must table a report received under section 99 in the House on the day on which it is received or on the next sitting day of the House.

(2)If the Office of the Special Investigator proposes to give a copy of the report on a day when the Parliament is in recess, the Office of the Special Investigator must—

(a)give at least one business day's notice of intention to do so to the clerk of each House; 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 Office of the Special Investigator's Internet website as soon as practicable after giving it to the clerk of each House.

(3)The clerk of each House must—

(a)notify each member of the House of the receipt of the notice under subsection (2)(a) on the same day that the clerk receives that notice; and

(b)give a copy of the report to each member of the House as soon as practicable after the report is received under subsection (2)(b); and

(c)table the report in the House on the next sitting day of the House.

(4)A report that is given to the clerk of each House under subsection (2)(b) is taken to have been published by order, or under the authority, of the Houses of the Parliament.

(5)The publication of a report by the Office of the Special Investigator under subsection (2)(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 Houses of Parliament apply to and in relation to the publication of the report as if it were a document to which those sections applied and had been published by the Government Printer under the authority of the Parliament.

(6)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.

101Regulations

(1)The Governor in Council may make regulations for or with respect to anything required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2)The regulations may—

(a)be of general or limited application;

(b)differ according to differences in time, place or circumstances;

(c)confer a discretionary authority or impose a duty on a specified person or a specified class of person.

102Access to Royal Commission records—validation

(1)In this section—

actions means to access, receive, assess and deal with.

(2)If, on or after 19 July 2021, the person appointed to be the Special Investigator performed actions in respect of Royal Commission records—

(a)those actions are taken to have been performed in accordance with section 66 as if section 66 had been in operation at the time of those actions; and

(b)any evidence obtained as a direct or indirect consequence of those actions is taken to have been obtained as if section 66 was in force at the time that evidence was obtained.

*                *                *                *                *

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Endnotes

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 13 October 2021

Legislative Council: 28 October 2021

The long title for the Bill for this Act was "A Bill for an Act to establish the Office of the Special Investigator to investigate potential criminal conduct and breaches of discipline relating to the recruitment, management and use by Victoria Police of Nicola Maree Gobbo as a human source, to amend certain other Acts and for other purposes."

The Special Investigator Act 2021 was assented to on 30 November 2021 and came into operation on 1 December 2021: section 2.

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 section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms.  See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act.  See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act.  Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001.  Provision numbers include section numbers, subsection 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 an Act 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 an Act. 
See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Special Investigator Act 2021 by Acts and subordinate instruments.

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Special Investigator Act 2021, No. 50/2021

Assent Date: 30.11.21
Commencement Date: S. 148 on 1.12.21: s. 2
Note: S. 148 repealed Pt 7 (ss 103–148) on 1.12.22
Current State: This information relates only to the provision/s amending the Special Investigator Act 2021

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3   Explanatory details

No entries at date of publication.

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AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58