Untitled document
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1Purposes
2Commencement
PART 2—AMENDMENT OF MAJOR CRIME (INVESTIGATIVE POWERS) ACT 2004
3Major Crime (Investigative Powers) Act 2004
PART 3—POLICE INTEGRITY
Division 1—Police Integrity Act 2008
4New sections 51A and 51B inserted in Police Integrity Act 2008
51ADirector and staff may prosecute
51BImmunity
5Protection of persons, documents and things
6New section 109A inserted
109ACompellability of protected persons as witnesses
7Supreme Court—limitation of jurisdiction
8Consequential repeal
Division 2—Police Regulation Act 1958
9Protection of persons, documents and things
10New section 86KJA inserted
86KJACompellability of protected persons as witnesses
11New sections 86TB and 86TC inserted in Police Regulation
Act 195886TBDirector and staff may prosecute
86TCImmunity
12Supreme Court—limitation of jurisdiction
PART 4—WHISTLEBLOWERS PROTECTION ACT 2001
13New sections 61H and 61I inserted and 61J substituted
61HContempt of Director
61INo double jeopardy
61JSunset of contempt provisions
PART 5—REPEAL OF AMENDING ACT
14Repeal of Act
═══════════════
ENDNOTES
Major Crime (Investigative Powers) and Other Acts Amendment Act 2008
No. 60 of 2008
[Assented to 22 October 2008]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1Purposes
The main purposes of this Act are—
(a)to amend the Major Crime (Investigative Powers) Act 2004 to extend the operation of sections 49 and 50 of that Act;
(b)to amend the Police Integrity Act 2008 in relation to—
(i)the commencement of criminal proceedings arising out of investigations;
(ii)the protection of the Director and staff of the Office of Police Integrity;
(c)to amend the Police Regulation Act 1958 in relation to the protection of the Director and staff of the Office of Police Integrity;
(d)to amend the Whistleblowers Protection Act 2001 to re-enact provisions relating to contempt of the Director, Police Integrity that have expired.
2Commencement
(1)This Act (other than Division 1 of Part 3) comes into operation on the day after the day on which this Act receives the Royal Assent.
(2)Division 1 of Part 3 comes into operation on the day on which section 104 of the Police Integrity Act 2008 comes into operation.
__________________
PART 2—AMENDMENT OF MAJOR CRIME (INVESTIGATIVE POWERS) ACT 2004
3Major Crime (Investigative Powers) Act 2004
(1)In section 49(12) of the Major Crime (Investigative Powers) Act 2004, for "42 months after the day on which it comes into operation" substitute "on 1 January 2012".
(2)In section 50(2) of the Major Crime (Investigative Powers) Act 2004, for "42 months after the day on which it comes into operation" substitute "on 1 January 2012".
__________________
PART 3—POLICE INTEGRITY
Division 1—Police Integrity Act 2008
4New sections 51A and 51B inserted in Police Integrity Act 2008
After section 51 of the Police Integrity Act 2008 insert—
"51A Director and staff may prosecute
(1)The Director or a member of staff of the Office of Police Integrity authorised under subsection (2) may commence criminal proceedings against a person for an offence in relation to any matter arising out of an investigation.
(2)The Director may authorise in writing a member of staff of the Office of Police Integrity to exercise powers under subsection (1)—
(a)in relation to a specified person or specified investigation; or
(b)generally.
(3)Nothing in this section—
(a)affects or limits the ability of a person other than the Director or a person authorised under subsection (2) to commence criminal proceedings against a person for an offence in relation to any matter arising out of an investigation; or
(b)affects or limits the ability of the Director or a member of staff of the Office of Police Integrity to bring criminal proceedings against a person for any other offence.
51BImmunity
(1)The Director or a member of staff of the Office of Police Integrity authorised under section 51A(2) is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith—
(a)in the exercise of a power under section 51A(1); or
(b)in the reasonable belief that the act or omission was in the exercise of a power under section 51A(1).
(2)Any liability resulting from an act or omission that, but for subsection (1), would attach to the Director or a member of staff of the Office of Police Integrity authorised under section 51A(2) attaches instead to the State.".
5Protection of persons, documents and things
(1)In section 104 of the Police Integrity Act 2008—
(a)after "is" insert "a person who is or was";
(b)for "(c) a person" substitute "(d) a person";
(c)for "(d) a person" substitute "(e) a person";
(d)for "(e) the members" substitute "(f) the members".
(2)Section 109(7) of the Police Integrity Act 2008 is repealed.
6New section 109A inserted
After section 109 of the Police Integrity Act 2008 insert—
"109A Compellability of protected persons as witnesses
(1)Except as permitted by subsection (2), a protected person cannot be compelled to give evidence in any legal proceeding in respect of any matter coming to his or her knowledge in the performance of functions under this Act.
(2)A protected person may be compelled to give evidence in a legal proceeding if the Director certifies in writing that the giving of evidence by the protected person is in the public interest.
(3)For the avoidance of doubt, this section applies, on and after its commencement, to a legal proceeding whether the legal proceeding was commenced before, on or after that commencement.
(4)In this section—
legal proceeding includes—
(a)a civil proceeding;
(b)a criminal proceeding;
(c)a proceeding before the Appeals Board.".
7Supreme Court—limitation of jurisdiction
At the end of section 130 of the Police Integrity Act 2008 insert—
"(2)It is the intention of section 109, as it applies on and after the commencement of section 5 of the Major Crime (Investigative Powers) and Other Acts Amendment Act 2008, to alter or vary section 85 of the Constitution Act 1975.".
8Consequential repeal
After section 142(16) of the Police Integrity Act 2008 insert—
"(16A)Sections 86TB and 86TC of the Police Regulation Act 1958 are repealed.".
Division 2—Police Regulation Act 1958
9Protection of persons, documents and things
(1)In section 86KE of the Police Regulation Act 1958—
(a)after "is" insert "a person who is or was";
(b)for "(c) a person" substitute "(d) a person";
(c)for "(d) a person" substitute "(e) a person";
(d)for "(e) the members" substitute "(f) the members".
(2)Section 86KJ(6) of the Police Regulation Act 1958 is repealed.
10New section 86KJA inserted
After section 86KJ of the Police Regulation Act 1958 insert—
"86KJA Compellability of protected persons as witnesses
(1)Except as permitted by subsection (2), a protected person cannot be compelled to give evidence in any legal proceeding in respect of any matter coming to his or her knowledge in the performance of functions under this Act.
(2)A protected person may be compelled to give evidence in a legal proceeding if the Director certifies in writing that the giving of evidence by the protected person is in the public interest.
(3)For the avoidance of doubt, this section applies, on and after its commencement, to a legal proceeding whether the legal proceeding was commenced before, on or after that commencement.
(4)In this section—
legal proceeding includes—
(a)a civil proceeding;
(b)a criminal proceeding;
(c)a proceeding before the Appeals Board.".
11New sections 86TB and 86TC inserted in Police Regulation Act 1958
After section 86TA of the Police Regulation Act 1958 insert—
"86TB Director and staff may prosecute
(1)The Director or a member of staff of the Office of Police Integrity authorised under subsection (2) may commence criminal proceedings against a person for an offence in relation to any matter arising out of an investigation by the Director under this Part.
(2)The Director may authorise in writing a member of staff of the Office of Police Integrity to exercise powers under subsection (1)—
(a)in relation to a specified person or specified investigation; or
(b)generally.
(3)Nothing in this section—
(a)affects or limits the ability of a person other than the Director or a person authorised under subsection (2) to commence criminal proceedings against a person for an offence in relation to any matter arising out of an investigation by the Director under this Part; or
(b)affects or limits the ability of the Director or a member of staff of the Office of Police Integrity to bring criminal proceedings against a person for any other offence.
86TCImmunity
(1)The Director or a member of staff of the Office of Police Integrity authorised under section 86TB(2) is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith—
(a)in the exercise of a power under section 86TB(1); or
(b)in the reasonable belief that the act or omission was in the exercise of a power under section 86TB(1).
(2)Any liability resulting from an act or omission that, but for subsection (1), would attach to the Director or a member of staff of the Office of Police Integrity authorised under section 86TB(2) attaches instead to the State.".
12Supreme Court—limitation of jurisdiction
After section 129A(5) of the Police Regulation Act 1958 insert—
"(6)It is the intention of section 86KJ, as it applies on and after the commencement of section 9 of the Major Crime (Investigative Powers) and Other Acts Amendment Act 2008, to alter or vary section 85 of the Constitution Act 1975.".
__________________
PART 4—WHISTLEBLOWERS PROTECTION ACT 2001
13New sections 61H and 61I inserted and 61J substituted
For section 61J of the Whistleblowers Protection Act 2001 substitute—
"61H Contempt of Director
(1)A person attending an investigation in answer to a summons under section 17 of the Evidence Act 1958 is guilty of a contempt of the Director if the person—
(a)fails without reasonable excuse to produce any document or thing the person is required by the summons to produce; or
(b)being called or examined as a witness, refuses to be sworn or to make an affirmation or, without reasonable excuse, refuses or fails to answer any question relevant to the subject-matter of the investigation; or
(c)engages in any other conduct that would, if the Director were the Supreme Court, constitute a contempt of that Court.
(2)If it is alleged or appears to the Director that a person is guilty of contempt of the Director, the Director may—
(a)issue a written certificate charging the person with contempt and setting out or attaching details of the alleged contempt (certificate of charge); and
(b)issue a warrant to arrest the person (arrest warrant).
(3)An arrest warrant—
(a)may be directed to—
(i)a named member of the police force; or
(ii)generally all members of the police force; and
(b)authorises the person to whom it is directed to arrest the person named in the warrant.
(4)A person who is arrested under an arrest warrant—
(a)is to be brought before the Supreme Court forthwith to be dealt with according to law; and
(b)may be detained in police custody in the meantime.
(5)If the Director is satisfied that there are reasonable grounds to believe that it is necessary to prevent the arrested person from escaping from police custody or to ensure the safety of the person, the Director may direct that the person be detained in a prison or a police gaol for the purpose of ensuring his or her appearance before the Supreme Court.
(6)If a person detained in police custody under this section, other than a person detained in accordance with a direction under subsection (5), is required to be detained overnight, the Chief Commissioner of Police must arrange for the person to be provided with accommodation and meals to a standard comparable to that generally provided to jurors kept together overnight.
(7)If a person is detained in a prison in accordance with a direction under subsection (5), the Director may give a written direction for the person to be delivered into the custody of a member of the police force for the purpose of bringing the person before the Supreme Court.
(8)If it is not practicable for the person to be brought before the Supreme Court forthwith after he or she is arrested—
(a)the person for the time being in charge of the place where he or she is detained must—
(i)advise the person that he or she is entitled to apply to a bail justice for discharge from custody; and
(ii)give the person a written statement of his or her right to apply; and
(b)if the person elects to apply, the person for the time being in charge of the place where he or she is detained must—
(i)cause the person to be brought before a bail justice as soon as practicable; and
(ii)cause to be produced before the bail justice the arrest warrant and the certificate of charge for the person; and
(iii)abide by the decision of the bail justice in relation to the person.
(9)When a person is brought before a bail justice under subsection (8), the bail justice may discharge the person from custody on bail in accordance with the Bail Act 1977 as if the person had been accused of an offence.
(10)A contempt of the Director is to be dealt with by the Supreme Court as if—
(a)the contempt were a contempt of an inferior court; and
(b)the certificate of charge were an application to the Supreme Court for punishment for the contempt.
(11)A certificate of charge is evidence of the matters set out in or attached to it.
61INo double jeopardy
If an act or omission constitutes both an offence against this Act or the Evidence Act 1958 and a contempt of the Director, the offender is liable to be proceeded against for the offence or for contempt or both, but is not liable to be punished more than once for the same act or omission.
61JSunset of contempt provisions
Sections 61H, 61I and this section are repealed on the day that is the third anniversary of the day on which section 13 of the Major Crime (Investigative Powers) and Other Acts Amendment Act 2008 comes into operation.".
__________________
PART 5—REPEAL OF AMENDING ACT
14Repeal of Act
This Act is repealed on 1 December 2010.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
═══════════════
ENDNOTES
Minister's second reading speech—
Legislative Assembly: 9 October 2008
Legislative Council: 10 October 2008
The long title for the Bill for this Act was "A Bill for an Act to amend the Major Crime (Investigative Powers) Act 2004, the Police Integrity Act 2008, the Police Regulation Act 1958 and the Whistleblowers Protection Act 2001 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 9 October 2008
Legislative Council: 10 October 2008
Absolute majorities:
Legislative Assembly: 9 October 2008
Legislative Council: 16 October 2008
0
0
0