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PARLIAMENT OF VICTORIA
Ombudsman Legislation (Police Ombudsman) Act
2004
Act No.
Victorian Legislation Parliamentary Documents
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2--OMBUDSMAN ACT 1973 3
3. Definitions 3
4. New sections 6A and 6B substituted 3
6A. Police Ombudsman 3
6B. Acting Police Ombudsman 4
5. Consequential repeals and amendments 4
6. New section 10 substituted 5
10. Oath or affirmation 5
7. Delegation and outside employment 6
8. Removal of reference to Deputy Ombudsman 6
PART 3--POLICE REGULATION ACT 1958 7
9. Definitions 7
10. References to Deputy Ombudsman 7
11. Conciliation of complaints 8
12. New section 86NA inserted 8
86NA. Investigations initiated by Police Ombudsman 8
13. Investigations by Chief Commissioner 9
14. New section 86P substituted and 86PA inserted 9
86P. Investigations by the Police Ombudsman 9
86PA. Evidence in Police Ombudsman investigations 10
15. Power to require answers of members of the force 12
16. New section 86QA inserted 12
86QA. Referral of matters to DPP 12
17. Further amendments regarding investigations 13
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Clause Page
18. New Division 3 inserted in Part IVA 14
Division 3--Powers of Entry, Search and Seizure 14
86W. Powers with search warrant 14
86X. Procedure for executing warrant 15
Victorian Legislation Parliamentary Documents
86Y. Copies or receipts to be given 16
86Z. Retention and return of documents and other things 17
19. Supreme Court--limitation of jurisdiction 17
20. New section 132 inserted 17
132. Transitional provision on creation of office of Police
Ombudsman 17
PART 4--WHISTLEBLOWERS PROTECTION ACT 2001 19
21. Definitions and application of Act 19
22. References to Deputy Ombudsman 19
23. Investigations by Police Ombudsman 19
24. New Division 3A inserted in Part 5 20
Division 3A--Further Provisions for Investigations by
Police Ombudsman 20
61A. Application of Division 20
61B. Evidence in Police Ombudsman investigations 20
61C. Powers with search warrant 22
61D. Procedure for executing warrant 23
61E. Copies or receipts to be given 24
61F. Retention and return of documents and other things 25
25. Further references to Deputy Ombudsman 25
26. Supreme Court--limitation of jurisdiction 25
27. New section 111A inserted 26
111A. Transitional provision on creation of office of Police
Ombudsman 26
ENDNOTES 27
ii
551185B.I1-14/5/2004 BILL LA CIRCULATION 14/5/2004
PARLIAMENT OF VICTORIA
Initiated in Assembly 11 May 2004
Victorian Legislation Parliamentary Documents
A BILL
to amend the Ombudsman Act 1973, the Police Regulation Act
1958 and the Whistleblowers Protection Act 2001 to create the
office of Police Ombudsman, abolish the office of Deputy
Ombudsman (Police Complaints) and broaden the powers of
investigation into police matters and conduct and for other purposes.
Ombudsman Legislation (Police
Ombudsman) Act 2004
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
(a) to amend the Ombudsman Act 1973 to
create the office of Police Ombudsman and
5
1
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Ombudsman Legislation (Police Ombudsman) Act 2004
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Part 1--Preliminary
s. 2
abolish the office of Deputy Ombudsman
(Police Complaints);
(b) to amend the Police Regulation Act 1958
and the Whistleblowers Protection Act
Victorian Legislation Parliamentary Documents
2001 to broaden the powers of investigation
5
into police matters and conduct.
2. Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
__________________
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Ombudsman Legislation (Police Ombudsman) Act 2004
Act No.
Part 2--Ombudsman Act 1973
s. 3
See:
PART 2--OMBUDSMAN ACT 1973
Act No.
8414.
3. Definitions Reprint No. 6
as at
Victorian Legislation Parliamentary Documents
In section 2 of the Ombudsman Act 1973-- 1 January
2002 and
(a) the definition of "Deputy Ombudsman" is amending
Act Nos
repealed;
5 2/2001,
23/2002 and
(b) after the definition of "Government 103/2003.
LawToday:
Department" insert-- www.dms.
dpc.vic.
' "Police Ombudsman" means the person gov.au
holding the office of Police
Ombudsman established by
10
section 6A;'.
4. New sections 6A and 6B substituted
For sections 6A and 6B of the Ombudsman Act
1973 substitute--
"6A. Police Ombudsman
15
(1) The office of Police Ombudsman is
established.
(2) The office of Police Ombudsman is to be
held by the person who holds office as
Ombudsman.
20
(3) The Police Ombudsman has the functions
conferred on the office by this Act, the
Police Regulation Act 1958 or any other
Act.
(4) If the person holding office as Police
25
Ombudsman ceases to hold office as
Ombudsman under section 3, he or she also
ceases to hold office as Police Ombudsman.
3
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s. 5
(5) If the person holding office as Police
Ombudsman is suspended from office as
Ombudsman under section 4, he or she is
also suspended from office as Police
Victorian Legislation Parliamentary Documents
Ombudsman.
5
6B. Acting Police Ombudsman
(1) If, for any reason, the person holding the
office of Ombudsman is unable to perform
the duties of the Police Ombudsman, or if the
office of Ombudsman is vacant, the person
10
appointed as Acting Ombudsman under
section 6 (if any) is to act as the Police
Ombudsman.
(2) While acting as Police Ombudsman, the
Acting Ombudsman has all the powers and
15
must perform all the duties of the Police
Ombudsman.".
5. Consequential repeals and amendments
(1) In the Ombudsman Act 1973--
(a) sections 6C, 6D, 6E and 6F are repealed;
20
(b) in section 7, for "Deputy Ombudsman"
substitute "Police Ombudsman".
(2) For section 8(1) of the Ombudsman Act 1973
substitute--
"(1) A person who is the Ombudsman, the Acting
25
Ombudsman or the Police Ombudsman is
not, in respect of the office of Ombudsman,
Acting Ombudsman or Police Ombudsman,
subject to the Public Sector Management
and Employment Act 1998.".
30
4
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s. 6
(3) In the Ombudsman Act 1973--
(a) in section 8(2), for "Ombudsman, the Acting
Ombudsman or the Acting Deputy
Ombudsman" (wherever occurring)
Victorian Legislation Parliamentary Documents
substitute "Ombudsman or Acting
5
Ombudsman";
(b) in section 9(1)--
(i) for "Ombudsman, the Deputy
Ombudsman, the Acting Ombudsman
or the Acting Deputy Ombudsman"
10
(where twice occurring) substitute
"Ombudsman or Acting Ombudsman";
(ii) after "his" (where twice occurring)
insert "or her".
6. New section 10 substituted
15
For section 10 of the Ombudsman Act 1973
substitute--
"10. Oath or affirmation
(1) Before the Ombudsman or Acting
Ombudsman performs any of the duties of
20
office of Ombudsman or Police
Ombudsman, he or she must take an oath or
make an affirmation that he or she--
(a) will faithfully and impartially perform
the duties of office of Ombudsman and
25
Police Ombudsman; and
(b) will not divulge, except according to
law, any information received in the
performance of those duties.
(2) Before an officer of the Ombudsman
30
performs any of the duties of office, he or
she must take an oath or make an affirmation
that he or she--
5
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s. 7
(a) will faithfully and impartially perform
his or her duties of office; and
(b) will not divulge, except according to
law, any information received in the
Victorian Legislation Parliamentary Documents
performance of those duties.
5
(3) The oath or affirmation is to be administered
by--
(a) the Speaker of the Legislative
Assembly, in the case of the
Ombudsman or Acting Ombudsman;
10
(b) the Ombudsman or Acting
Ombudsman, in the case of an officer
of the Ombudsman.".
7. Delegation and outside employment
(1) In section 11(4) of the Ombudsman Act 1973,
15
for "Deputy Ombudsman" (where twice
occurring) substitute "Police Ombudsman".
(2) At the end of section 12 of the Ombudsman Act
1973 insert--
"(2) Nothing in sub-section (1) prevents the
20
Ombudsman or Acting Ombudsman from
holding the office, or performing the duties
of office, of Police Ombudsman.".
8. Removal of reference to Deputy Ombudsman
In section 29A(1) of the Ombudsman Act 1973,
25
omit ", the Deputy Ombudsman".
__________________
6
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Ombudsman Legislation (Police Ombudsman) Act 2004
Act No.
Part 3--Police Regulation Act 1958
s. 9
See:
PART 3--POLICE REGULATION ACT 1958
Act No.
6338.
9. Definitions Reprint No. 9
as at
Victorian Legislation Parliamentary Documents
(1) Insert the following definitions in section 3(1) of 1 January
2003
the Police Regulation Act 1958-- and
amending
' "Ombudsman" means the Ombudsman
5 Act No.
appointed under section 3 of the 52/2003.
LawToday:
Ombudsman Act 1973; www.dms.
dpc.vic.
"Police Ombudsman" means the Police gov.au
Ombudsman under section 6A of the
Ombudsman Act 1973;'.
10
(2) In section 86A of the Police Regulation Act
1958, the definitions of "Deputy Ombudsman"
and "Ombudsman" are repealed.
10. References to Deputy Ombudsman
(1) For the heading to Part IVA of the Police
15
Regulation Act 1958 substitute--
"PART IVA--COMPLAINTS AND
INVESTIGATIONS".
(2) In the Police Regulation Act 1958--
(a) in sections 86I, 86J, 86K, 86L, 86LA and
20
86M, for "Deputy Ombudsman" (wherever
occurring) substitute "Police Ombudsman";
(b) in section 86N--
(i) for "Deputy Ombudsman" (wherever
occurring) substitute "Police
25
Ombudsman";
(ii) in sub-section (1)(a), for "Deputy
Ombudsman's" substitute "Police
Ombudsman's".
7
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Act No.
Part 3--Police Regulation Act 1958
s. 11
11. Conciliation of complaints
After section 86N(5) of the Police Regulation
Act 1958 insert--
Victorian Legislation Parliamentary Documents
"(6) The Police Ombudsman may attempt to
resolve a complaint by conciliation and
5
must--
(a) before commencing to conciliate, notify
the Chief Commissioner of the
proposed attempt; and
(b) notify the Chief Commissioner of the
10
results of the attempt.".
12. New section 86NA inserted
After section 86N of the Police Regulation Act
1958 insert--
"86NA. Investigations initiated by Police
15
Ombudsman
(1) The Police Ombudsman may conduct an
investigation under this Part on his or her
own motion, being--
(a) an investigation into the conduct of a
20
member of the force; or
(b) an investigation into any of the policies,
practices or procedures of the force.
(2) Before conducting an investigation on his or
her own motion, the Police Ombudsman
25
must inform the Minister and the Chief
Commissioner in writing of his or her
intention to conduct the investigation.
(3) After completing an investigation on his or
her own motion, the Police Ombudsman
30
must give the Minister a copy of the report
given to the Chief Commissioner under
section 86P(5).".
8
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Part 3--Police Regulation Act 1958
s. 13
13. Investigations by Chief Commissioner
In section 86O of the Police Regulation Act
1958, for "Deputy Ombudsman" (wherever
occurring) substitute "Police Ombudsman".
Victorian Legislation Parliamentary Documents
14. New section 86P substituted and 86PA inserted
5
For section 86P of the Police Regulation Act
1958 substitute--
"86P. Investigations by the Police Ombudsman
(1) For the purposes of an investigation under
this Part, the Police Ombudsman--
10
(a) may, but is not required to, hold any
hearing; and
(b) may obtain information from any
persons and in any manner he or she
considers appropriate; and
15
(c) may determine whether a person may
have legal or other representation.
(2) If, at any time during the course of an
investigation, it appears to the Police
Ombudsman that there may be grounds for
20
making a report adverse to the force, the
Police Ombudsman must, before making the
report, give the Chief Commissioner the
opportunity to comment on the subject-
matter of the investigation.
25
(3) At the request of the Police Ombudsman, the
Chief Commissioner must make available to
the Police Ombudsman any members of the
force that the Chief Commissioner thinks
necessary to assist the Police Ombudsman in
30
the conduct of the investigation.
9
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Part 3--Police Regulation Act 1958
s. 14
(4) A member of the force made available under
sub-section (3)--
(a) remains under the direction and control
of the Chief Commissioner; but
Victorian Legislation Parliamentary Documents
(b) in assisting the Police Ombudsman,
5
must have regard to the wishes of the
Police Ombudsman concerning the
conduct of the investigation.
(5) After completing an investigation, the Police
Ombudsman--
10
(a) must make a report in writing to the
Chief Commissioner on the results of
the investigation; and
(b) in the report, may request the taking of
any action that the Police Ombudsman
15
considers should be taken.
86PA. Evidence in Police Ombudsman
investigations
(1) Sections 17, 18, 19, 19A, 19B, 20 and 20A
of the Evidence Act 1958 apply to and in
20
relation to an investigation conducted by the
Police Ombudsman as if he or she were the
sole commissioner issued with a commission
by the Governor in Council.
(2) For the purposes of an investigation, the
25
Police Ombudsman may take a statutory
declaration from any witness or other person.
(3) Subject to this section and section 86Q, a
person cannot be compelled, for the purposes
of an investigation, to produce any document
30
or give any evidence that he or she could not
be compelled to produce or give in
proceedings before a court.
10
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Part 3--Police Regulation Act 1958
s. 14
(4) It is not a reasonable excuse for a person to
fail to provide information, produce a
document or thing or give evidence for the
purposes of an investigation, on the ground
Victorian Legislation Parliamentary Documents
that the information, document, thing or
5
evidence may tend to incriminate the person,
if the Police Ombudsman certifies in writing
that, in his or her opinion, the provision of
the information, production of the document
or thing or giving of the evidence is
10
necessary in the public interest.
(5) In determining whether or not to certify
under sub-section (4), the Police
Ombudsman may take into account, amongst
other things, whether--
15
(a) the investigation involves the review of
established policies, practices or
procedures of the force; and
(b) it is unlikely that the information,
document, thing or evidence could be
20
obtained by other means.
(6) Sub-section (4) applies despite anything to
the contrary in this Act or Division 5 of
Part I of the Evidence Act 1958.
(7) If the Police Ombudsman certifies under
25
sub-section (4), he or she must give a copy
of the certificate to the person before
requiring the person to provide information,
produce a document or thing or give
evidence.
30
(8) Any information provided, or document or
thing produced, or evidence given to the
Police Ombudsman by a person in
circumstances where the Police Ombudsman
has certified under sub-section (4) is not
35
admissible in evidence against that person
11
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s. 15
before any court or person acting judicially,
except in proceedings for--
(a) perjury or giving false information; or
Victorian Legislation Parliamentary Documents
(b) a breach of discipline under section 69;
or
5
(c) failure to comply with a direction under
section 86Q; or
(d) an offence against section 19 of the
Evidence Act 1958.".
15. Power to require answers of members of the force
10
In section 86Q(1) of the Police Regulation Act
1958, for "Deputy Ombudsman" substitute
"Police Ombudsman".
16. New section 86QA inserted
After section 86Q of the Police Regulation Act
15
1958 insert--
"86QA. Referral of matters to DPP
(1) At any time during or after completing an
investigation under this Part, the Police
Ombudsman may refer to the Director of
20
Public Prosecutions the question of whether
or not criminal proceedings should be taken
against a member of the force.
(2) If the Police Ombudsman refers a question to
the Director of Public Prosecutions under
25
sub-section (1), the Police Ombudsman must
include that fact, and any details of the
referral that he or she considers appropriate,
in the report on the investigation under
section 86P(5).".
30
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Part 3--Police Regulation Act 1958
s. 17
17. Further amendments regarding investigations
In the Police Regulation Act 1958--
(a) in section 86R--
Victorian Legislation Parliamentary Documents
(i) for "Deputy Ombudsman" (wherever
occurring) substitute "Police
5
Ombudsman";
(ii) in sub-section (1)(b), for "in accordance
with section 86P" substitute "under
this Part";
(iii) in sub-section (4)(b), for "Deputy
10
Ombudsman's" substitute "Police
Ombudsman's";
(b) in sections 86S, 86T and 86TA, for "Deputy
Ombudsman" (wherever occurring)
substitute "Police Ombudsman";
15
(c) for section 86TA(1)(b) substitute--
"(b) an investigation under this Part
(whether in relation to a complaint or
otherwise); or";
(d) in section 86U(1), for "Deputy Ombudsman"
20
(where twice occurring) substitute "Police
Ombudsman";
(e) for section 86V(1)(b) substitute--
"(b) because the member has given
information or evidence to the Chief
25
Commissioner or Police Ombudsman in
the course of an investigation or further
investigation under this Part; or".
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Part 3--Police Regulation Act 1958
s. 18
18. New Division 3 inserted in Part IVA
After Division 2 of Part IVA of the Police
Regulation Act 1958 insert--
Victorian Legislation Parliamentary Documents
"Division 3--Powers of Entry, Search and
Seizure
5
86W. Powers with search warrant
(1) The Police Ombudsman may apply to a
magistrate for the issue of a search warrant
in relation to particular premises if the Police
Ombudsman believes, on reasonable grounds
10
that entry to the premises is necessary for the
purpose of an investigation under this Part.
(2) If a magistrate is satisfied by evidence on
oath, whether oral or by affidavit, that there
are reasonable grounds for the belief under
15
sub-section (1), the magistrate may issue a
search warrant authorising any person named
in the warrant--
(a) to enter and search the premises named
or described in the warrant and inspect
20
any document or thing at those
premises; and
(b) to make a copy of any document
relevant, or that the person reasonably
considers may be relevant, to the
25
investigation; and
(c) to take possession of any document or
thing that the person considers relevant
to the investigation.
(3) A search warrant issued under this section
30
must state--
(a) the purpose for which the search is
required; and
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Part 3--Police Regulation Act 1958
s. 18
(b) any conditions to which the warrant is
subject; and
(c) whether entry is authorised to be made
at any time of the day or night or during
Victorian Legislation Parliamentary Documents
stated hours of the day or night; and
5
(d) a day, not later than 28 days after the
issue of the warrant, on which the
warrant ceases to have effect.
(4) Except as provided by this Act, the rules to
be observed with respect to search warrants
10
under the Magistrates' Court Act 1989
(other than section 78 of that Act) extend and
apply to warrants under this section.
86X. Procedure for executing warrant
(1) On executing a search warrant, the person
15
executing the warrant--
(a) must announce that he or she is
authorised by the warrant to enter the
premises; and
(b) if the person has been unable to obtain
20
unforced entry, must give any person at
the premises an opportunity to allow
entry to the premises.
(2) A person executing a warrant need not
comply with sub-section (1) if he or she
25
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
30
search warrant is not frustrated.
15
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Part 3--Police Regulation Act 1958
s. 18
(3) If the occupier is present at premises where a
search warrant is being executed, the person
executing the warrant must--
(a) identify himself or herself to the
Victorian Legislation Parliamentary Documents
occupier; and
5
(b) give the occupier a copy of the warrant.
(4) If the occupier is not present at premises
where a search warrant is being executed, the
person executing the warrant must--
(a) identify himself or herself to a person at
10
the premises; and
(b) give that person a copy of the warrant.
86Y. Copies or receipts to be given
(1) If a person takes possession of--
(a) a document, disk or tape or other thing
15
that can be readily copied; or
(b) a storage device the information in
which can be readily copied--
under a warrant the person, on request by the
occupier, must give a copy of the thing or
20
information to the occupier as soon as
practicable after taking possession of it.
(2) If a person takes possession of a thing under
a warrant and has not provided a copy of the
thing or information under sub-section (1)
25
the person must provide a receipt for that
thing as soon as practicable after taking
possession of it.
16
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s. 19
86Z. Retention and return of documents and
other things
(1) If a person takes possession of a document or
other thing under a warrant, the Police
Victorian Legislation Parliamentary Documents
Ombudsman may keep it until the
5
investigation in relation to which the warrant
was issued has been completed and the
report of that investigation has been made
under section 86P(5).
(2) When the report has been made, the Police
10
Ombudsman must take all reasonable steps
to return the document or other thing to the
person from whom it was taken.".
19. Supreme Court--limitation of jurisdiction
At the end of section 129A of the Police
15
Regulation Act 1958 insert--
"(2) It is the intention of section 86J, as that
section applies on and after the
commencement of the Ombudsman
Legislation (Police Ombudsman) Act
20
2004, to alter or vary section 85 of the
Constitution Act 1975.".
20. New section 132 inserted
After section 131 of the Police Regulation Act
1958 insert--
25
'132. Transitional provision on creation of
office of Police Ombudsman
(1) A complaint about the conduct of a member
of the force that was made under Part IVA
before the commencement day must, if the
30
investigation of the complaint was not
finalised before that day, be dealt with in
accordance with Part IVA as amended by the
amending Act, whether or not any
17
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Part 3--Police Regulation Act 1958
s. 20
investigation into that complaint had begun
before the commencement day.
(2) In this section--
Victorian Legislation Parliamentary Documents
"amending Act" means the Ombudsman
Legislation (Police Ombudsman) Act
5
2004;
"commencement day" means the day on
which the amending Act comes into
operation.'.
__________________
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Ombudsman Legislation (Police Ombudsman) Act 2004
Act No.
Part 4--Whistleblowers Protection Act 2001
s. 21
See:
PART 4--WHISTLEBLOWERS PROTECTION ACT 2001
Act No.
36/2001
21. Definitions and application of Act and
amending
Victorian Legislation Parliamentary Documents
(1) In section 3(1) of the Whistleblowers Protection Act No.
110/2003.
Act 2001-- LawToday:
www.dms.
(a) the definition of "Deputy Ombudsman" is
5 dpc.vic.
repealed; gov.au
(b) after the definition of "Police Minister"
insert--
' "Police Ombudsman" means the Police
Ombudsman under section 6A of the
10
Ombudsman Act 1973;'.
(2) After section 4(2)(i) of the Whistleblowers
Protection Act 2001 insert--
"(ia) the Police Ombudsman;".
22. References to Deputy Ombudsman
15
In sections 6, 13(2)(d), 22(1)(a), 23(2), 27(5), 33,
34, 35(1), 36, 37(2) and 43 (including in the
heading to section 43) of the Whistleblowers
Protection Act 2001, for "Deputy Ombudsman"
(wherever occurring) substitute "Police
20
Ombudsman".
23. Investigations by Police Ombudsman
After section 43(3) of the Whistleblowers
Protection Act 2001 insert--
"(4) Division 3A also applies to an investigation
25
referred to the Police Ombudsman under this
section.".
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24. New Division 3A inserted in Part 5
After Division 3 of Part 5 of the Whistleblowers
Protection Act 2001 insert--
Victorian Legislation Parliamentary Documents
"Division 3A--Further Provisions for
Investigations by Police Ombudsman
5
61A. Application of Division
(1) This Division applies to an investigation
referred to the Police Ombudsman under
section 43.
(2) This Division applies to the investigation in
10
addition to Division 3, and, except where
otherwise indicated, nothing in this Division
affects or takes away from anything in
Division 3.
61B. Evidence in Police Ombudsman
15
investigations
(1) Sections 19A and 19B of the Evidence Act
1958 apply to and in relation to an
investigation as if the Police Ombudsman
were the sole commissioner issued with a
20
commission by the Governor in Council.
Note: The provisions of sections 17, 18, 19, 20 and
20A of the Evidence Act 1958 also apply to
the investigation--see section 54(2).
(2) Subject to this section, section 55 and
25
section 56(1) and (2), a person cannot be
compelled, for the purposes of an
investigation, to produce any document or
give any evidence that he or she could not be
compelled to produce or give in proceedings
30
before a court.
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(3) It is not a reasonable excuse for a person to
fail to provide information, produce a
document or thing or give evidence for the
purposes of an investigation, on the ground
Victorian Legislation Parliamentary Documents
that the information, document, thing or
5
evidence may tend to incriminate the person,
if the Police Ombudsman certifies in writing
that, in his or her opinion, the provision of
the information, production of the document
or thing or giving of the evidence is
10
necessary in the public interest.
(4) In determining whether or not to certify
under sub-section (3), the Police
Ombudsman may take into account, amongst
other things, whether--
15
(a) the investigation involves the review of
established policies, practices or
procedures of the force; and
(b) it is unlikely that the information,
document, thing or evidence could be
20
obtained by other means.
(5) Sub-section (3) applies despite anything to
the contrary in this Act or Division 5 of
Part I of the Evidence Act 1958.
(6) If the Police Ombudsman certifies under
25
sub-section (3), he or she must give a copy
of the certificate to the person before
requiring the person to provide information,
produce a document or thing or give
evidence.
30
(7) Any information provided, or document or
thing produced, or evidence given to the
Police Ombudsman by a person in
circumstances where the Police Ombudsman
has certified under sub-section (3) is not
35
admissible in evidence against that person
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before any court or person acting judicially,
except in proceedings for--
(a) perjury or giving false information; or
Victorian Legislation Parliamentary Documents
(b) a breach of discipline under section 69
of the Police Regulation Act 1958; or
5
(c) failure to comply with a direction under
section 55(1) of this Act; or
(d) an offence against section 19 of the
Evidence Act 1958.
61C. Powers with search warrant
10
(1) The Police Ombudsman may apply to a
magistrate for the issue of a search warrant
in relation to particular premises if the Police
Ombudsman believes, on reasonable grounds
that entry to the premises is necessary for the
15
purpose of an investigation.
(2) If a magistrate is satisfied by evidence on
oath, whether oral or by affidavit, that there
are reasonable grounds for the belief under
sub-section (1), the magistrate may issue a
20
search warrant authorising any person named
in the warrant--
(a) to enter and search the premises named
or described in the warrant and inspect
any document or thing at those
25
premises; and
(b) to make a copy of any document
relevant, or that the person reasonably
considers may be relevant, to the
investigation; and
30
(c) to take possession of any document or
thing that the person considers relevant
to the investigation.
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(3) A search warrant issued under this section
must state--
(a) the purpose for which the search is
required; and
Victorian Legislation Parliamentary Documents
(b) any conditions to which the warrant is
5
subject; and
(c) whether entry is authorised to be made
at any time of the day or night or during
stated hours of the day or night; and
(d) a day, not later than 28 days after the
10
issue of the warrant, on which the
warrant ceases to have effect.
(4) Except as provided by this Act, the rules to
be observed with respect to search warrants
under the Magistrates' Court Act 1989
15
(other than section 78 of that Act) extend and
apply to warrants under this section.
(5) For the avoidance of doubt, this section
applies to any premises, whether or not
occupied by a public officer or public body.
20
61D. Procedure for executing warrant
(1) On executing a search warrant, the person
executing the warrant--
(a) must announce that he or she is
authorised by the warrant to enter the
25
premises; and
(b) if the person has been unable to obtain
unforced entry, must give any person at
the premises an opportunity to allow
entry to the premises.
30
(2) A person executing a warrant need not
comply with sub-section (1) if he or she
believes, on reasonable grounds that
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immediate entry to the premises is required
to ensure--
(a) the safety of any person; or
Victorian Legislation Parliamentary Documents
(b) that the effective execution of the
search warrant is not frustrated.
5
(3) If the occupier is present at premises where a
search warrant is being executed, the person
executing the warrant must--
(a) identify himself or herself to the
occupier; and
10
(b) give the occupier a copy of the warrant.
(4) If the occupier is not present at premises
where a search warrant is being executed, the
person executing the warrant must--
(a) identify himself or herself to a person at
15
the premises; and
(b) give that person a copy of the warrant.
61E. Copies or receipts to be given
(1) If a person takes possession of--
(a) a document, disk or tape or other thing
20
that can be readily copied; or
(b) a storage device the information in
which can be readily copied--
under a warrant the person, on request by the
occupier, must give a copy of the thing or
25
information to the occupier as soon as
practicable after taking possession of it.
(2) If a person takes possession of a thing under
a warrant and has not provided a copy of the
thing or information under sub-section (1)
30
the person must provide a receipt for that
thing as soon as practicable after taking
possession of it.
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61F. Retention and return of documents and
other things
(1) If a person takes possession of a document or
other thing under a warrant, the Police
Victorian Legislation Parliamentary Documents
Ombudsman may keep it until the
5
investigation in relation to which the warrant
was issued has been completed and the
report of that investigation has been made
under section 62.
(2) When the report has been made, the Police
10
Ombudsman must take all reasonable steps
to return the document or other thing to the
person from whom it was taken.".
25. Further references to Deputy Ombudsman
In sections 62 (including in the heading to
15
section 62), 63(4), 102(e)(iii), 106(d), 107,
108(1)(a) and 109 of the Whistleblowers
Protection Act 2001, for "Deputy Ombudsman"
(wherever occurring) substitute "Police
Ombudsman".
20
26. Supreme Court--limitation of jurisdiction
At the end of section 110 of the Whistleblowers
Protection Act 2001 insert--
"(2) It is the intention of section 107 of this Act,
as amended by section 25 of the
25
Ombudsman Legislation (Police
Ombudsman) Act 2004, to alter or vary
section 85 of the Constitution Act 1975.".
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27. New section 111A inserted
After section 111 of the Whistleblowers
Protection Act 2001 insert--
Victorian Legislation Parliamentary Documents
'111A. Transitional provision on creation of
office of Police Ombudsman
5
(1) This Act, as amended by the amending Act,
applies on and after the commencement day
to a disclosure under this Act, whether the
disclosure was made before, on or after the
commencement day.
10
(2) In this section--
"amending Act" means the Ombudsman
Legislation (Police Ombudsman) Act
2004;
"commencement day" means the day on
15
which the amending Act comes into
operation.'.
26
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Endnotes
ENDNOTES
Victorian Legislation Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
27
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