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PARLIAMENT OF VICTORIA
Police, Major Crime and Whistleblowers
Legislation Amendment Bill 2008
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
PART 2--CONSTITUTION OF THE FORCE 4
3 Constitution of the police force 4
4 Authority of Chief Commissioner and officers 4
5 New section 5A inserted 6
5A Employment powers 6
6 Delegation by the Chief Commissioner 6
7 Appointments to and promotions and transfers within the force 6
8 Police recruits 7
9 Authority of constables 8
10 Section 16 substituted 9
16 Cessation or suspension of police powers 9
11 New Part heading substituted 10
12 Role of protective services officers 10
13 Removal of limit on number of protective services officers 10
14 Oath or affirmation 10
PART 3--PERFORMANCE AND PROFESSIONAL
DEVELOPMENT 12
15 Definition 12
16 New sections 18, 18AA and 18AB inserted 12
18 Professional development process 12
18AA A member may seek internal review 14
18AB Internal review 15
561270B.I-10/9/2008 i BILL LA INTRODUCTION 10/9/2008
Clause Page
PART 4--REMEDIAL PROCEDURES AND DISMISSAL 17
17 New Part heading substituted 17
18 Dismissal of unsuitable members 17
19 New Division 2 of Part IV substituted 18
Division 2--Misconduct 18
69 Misconduct 18
70 Investigation of members of the force 21
71 Show cause notice for dismissal 22
72 Dismissal following show cause notice 24
73 Other remedial action following show cause notice 24
74 Admissibility of evidence 25
Division 2A--Underperformance 27
75 Investigation or assessment of members of the force 27
76 Show cause notice for dismissal 28
77 Dismissal following show cause notice 29
78 Other remedial action following show cause notice 29
78A Admissibility of evidence 30
78B Natural justice 31
20 Criminal charge or investigation 32
80 Chief Commissioner not prevented from taking
action 32
21 New Division 4 substituted in Part IV 32
Division 4--Information-gathering powers 32
82 Power to require answers and information from
members of the force 32
22 Further amendment of Part IV 34
23 Complaints and investigations 34
24 Reviews by Appeals Board 35
25 New section 91FA inserted 36
91FA Review of dismissal 36
26 New section 91FB inserted and section 91G substituted 37
91FB Appeal Board's powers on review of decision to
dismiss or terminate 37
91G Appeals Board's powers on review of a decision other
than a decision to dismiss or terminate 39
27 Appeal Board's powers and constitution on review 40
28 Reinstatement of members 40
29 Consequential amendments for misconduct 41
30 Further consequential amendments 42
561270B.I-10/9/2008 ii BILL LA INTRODUCTION 10/9/2008
Clause Page
PART 5--PROCEEDINGS AGAINST MEMBERS OF THE
FORCE 43
31 New Part VID inserted 43
PART VID--PROCEEDINGS AGAINST MEMBERS OF
THE FORCE 43
118ZB Interpretation 43
118ZC Crown cannot deny vicarious liability for tort
committed in performance of independent function 44
118ZD Commencement of proceedings 44
118ZE Circumstances in which court must not find Crown
vicariously liable 46
118ZF Relationship of this Part to Limitation of Actions
Act 1958 46
118ZG Effect of Part 46
32 Immunity of members 47
PART 6--TRANSITIONAL AND MISCELLANEOUS
AMENDMENTS 49
33 Regulations 49
34 Statute law revision 50
35 New section 137 inserted 50
137 Transitional provision--Police, Major Crime and
Whistleblowers Legislation Amendment Act 2008 50
PART 7--CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 53
36 Melbourne City Link Act 1995 53
37 Police Integrity Act 2008 53
38 Whistleblowers Protection Act 2001 54
PART 8--AMENDMENT OF MAJOR CRIME (INVESTIGATIVE
POWERS) ACT 2004 57
39 Major Crime (Investigative Powers) Act 2004 57
PART 9--POLICE INTEGRITY 58
Division 1--Police Integrity Act 2008 58
40 New sections 51A and 51B inserted in Police Integrity
Act 2008 58
51A Director and staff may prosecute 58
51B Immunity 59
41 Protection of persons, documents and things 59
561270B.I-10/9/2008 iii BILL LA INTRODUCTION 10/9/2008
Clause Page
42 New section 109A inserted 60
109A Compellability of protected persons as witnesses 60
43 Supreme Court--limitation of jurisdiction 60
44 Consequential repeal 61
Division 2--Police Regulation Act 1958 61
45 Protection of persons, documents and things 61
46 New section 86KJA inserted 61
86KJA Compellability of protected persons as witnesses 61
47 New sections 86TB and 86TC inserted in Police Regulation
Act 1958 62
86TB Director and staff may prosecute 62
86TC Immunity 63
48 Supreme Court--limitation of jurisdiction 64
PART 10--WHISTLEBLOWERS PROTECTION ACT 2001 65
49 New sections 61H and 61I inserted and 61J substituted 65
61H Contempt of Director 65
61I No double jeopardy 68
61J Sunset of contempt provisions 68
PART 11--REPEAL OF AMENDING ACT 69
50 Repeal of Act 69
ENDNOTES 70
561270B.I-10/9/2008 iv BILL LA INTRODUCTION 10/9/2008
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Police, Major Crime and
Whistleblowers Legislation Amendment
Bill 2008
A Bill for an Act to amend the Police Regulation Act 1958, the
Major Crime (Investigative Powers) Act 2004, the Police Integrity
Act 2008 and the Whistleblowers Protection Act 2001, to make
consequential amendments to other Acts and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The purpose of this Act is--
(a) to amend the Police Regulation Act 1958 in
5 relation to--
(i) the constitution of Victoria Police;
(ii) remedial procedures under the Act;
561270B.I-10/9/2008 1 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 1--Preliminary
s. 2
(iii) the professional development of
members of Victoria Police;
(iv) civil proceedings against members of
Victoria Police;
5 (v) the role of protective services officers;
(vi) other minor matters;
(b) to amend the Major Crime (Investigative
Powers) Act 2004 to extend the operation of
sections 49 and 50 of that Act;
10 (c) to amend the Police Integrity Act 2008 in
relation to--
(i) the commencement of criminal
proceedings arising out of
investigations;
15 (ii) 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
20 that have expired;
(e) to make consequential amendments to other
Acts.
2 Commencement
(1) This Act (other than sections 4, 8, 9 and 10,
25 Part 3, Part 4, section 34(2), Part 7 and Division 1
of Part 9) comes into operation on the day after
the day on which this Act receives the Royal
Assent.
(2) Subject to subsection (6), sections 4, 8, 9 and 10,
30 Part 3, Part 4 (other than section 30(1)) and Part 7
come into operation on a day or days to be
proclaimed.
561270B.I-10/9/2008 2 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 1--Preliminary
s. 2
(3) Division 1 of Part 9 comes into operation on the
day on which section 104 of the Police Integrity
Act 2008 comes into operation.
(4) Section 30(1) comes into operation on the later
5 of--
(a) the day on which section 19 of this Act
comes into operation;
(b) the day on which section 47 of the Police
Integrity Act 2008 comes into operation.
10 (5) Section 34(2) comes into operation on the later
of--
(a) the day after the day on which this Act
receives the Royal Assent;
(b) the day on which section 237 of the
15 Accident Towing Services Act 2007
comes into operation.
(6) If section 4, 8, 9 or 10 or a provision of Part 3,
Part 4 (other than section 30(1)) or Part 7 does not
come into operation before 1 December 2009, it
20 comes into operation on that day.
__________________
561270B.I-10/9/2008 3 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 2--Constitution of the Force
s. 3
PART 2--CONSTITUTION OF THE FORCE
3 Constitution of the police force
See: In section 4(2) of the Police Regulation Act
Act No.
6338. 1958--
Reprint No. 12
5 as at 14 July (a) omit "(not exceeding four)";
2008 and
amending (b) omit "(not exceeding ten)".
Act Nos
30/2007,
4/2008 and
34/2008.
LawToday:
www.
legislation.
vic.gov.au
4 Authority of Chief Commissioner and officers
For section 5(2) of the Police Regulation Act
1958 substitute--
10 "(2) Without limiting the Chief Commissioner's
powers under subsection (1) or section 5A
or 17, the Chief Commissioner may--
(a) appoint, promote and transfer members
of the force under section 8(1);
15 (b) reduce or waive a period of probation
under section 8(4B);
(c) disallow a promotion or terminate an
appointment at any time during an
initial or further period of probation
20 under section 8(5);
(d) assign work to members of the force;
(e) deploy members of the force where
necessary for the effective and efficient
conduct of the operations of the force;
561270B.I-10/9/2008 4 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 2--Constitution of the Force
s. 4
(f) issue, amend and revoke orders and
instructions to members of the force
under section 17;
(g) determine the remuneration
5 (including an increase or reduction
in remuneration) and other terms and
conditions of appointment of any
individual member of the force;
(h) pay allowances or gratuities to
10 members of the force;
(i) transfer members of the force under
section 70(3)(a), 73(1)(c), 78(1)(c)
or 79(1)(a);
(j) suspend members of the force in
15 accordance with section 68A, 70(3)(c)
or 79(2)(c);
(k) dismiss members of the force in
accordance with section 68, 72 or 77;
(l) second members of the force to other
20 bodies or take persons on secondment
from other bodies;
(m) grant members of the force periods of
leave of absence or make payments to
members of the force in lieu of leave of
25 absence;
(n) determine--
(i) the type or design of any uniform
or equipment to be worn or carried
by members of the force, police
30 recruits, police reservists and
protective services officers; and
(ii) the conditions under which any
uniform or equipment is to be
worn or carried.".
561270B.I-10/9/2008 5 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 2--Constitution of the Force
s. 5
5 New section 5A inserted
After section 5 of the Police Regulation Act 1958
insert--
"5A Employment powers
5 (1) Without limiting any power of the Chief
Commissioner under this Act, the Chief
Commissioner, on behalf of the Crown,
has all the rights, powers, authorities and
duties of an employer in respect of the force
10 and the members of the force, as if the Chief
Commissioner were an employer and
members of the force were employees of
the Chief Commissioner.
(2) Nothing in subsection (1)--
15 (a) makes a member of the force an
employee of the Chief Commissioner;
or
(b) limits the independence of the office of
constable.".
20 6 Delegation by the Chief Commissioner
After section 6A(1) of the Police Regulation Act
1958 insert--
"(1AA) The Chief Commissioner may delegate,
by instrument, to a Deputy Commissioner,
25 the power to dismiss a member of the force
under section 68.".
7 Appointments to and promotions and transfers
within the force
(1) After section 8(2) of the Police Regulation Act
30 1958 insert--
"(3) An appointment under subsection (1)--
(a) may be on a full-time or part-time
basis; and
561270B.I-10/9/2008 6 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 2--Constitution of the Force
s. 8
(b) may be for a fixed term or on an on-
going basis.
(3A) An appointment, promotion or transfer is on
the terms and conditions determined by the
5 Chief Commissioner.".
(2) For section 8(4) of the Police Regulation Act
1958 substitute--
"(4) Subject to subsection (4B), an appointment
as a constable is subject to probation for--
10 (a) 2 years in the case of a full-time
appointee; or
(b) a period that is equivalent to 2 years
of full-time service in the case of a
part-time appointee.
15 (4A) Subject to subsection (4B), an appointment
at any other rank or a promotion is subject to
probation for--
(a) 1 year in the case of a full-time
appointee or member; or
20 (b) a period that is equivalent to 1 year
of full-time service in the case of a
part-time appointee or member.
(4B) The Chief Commissioner may reduce or
waive the period of probation applicable
25 to any appointment or promotion.".
8 Police recruits
For section 8A(4) of the Police Regulation Act
1958 substitute--
"(4) A police recruit is a member of the force.
30 (5) Subject to subsection (6), a police recruit
has--
561270B.I-10/9/2008 7 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 2--Constitution of the Force
s. 9
(a) the powers and privileges of a constable
either by the common law or by virtue
of any Act of Parliament; and
(b) the powers of a member of the force
5 under any enactment.
(6) The Chief Commissioner, by written notice,
may suspend the powers and privileges of a
police recruit referred to in subsection (5).".
9 Authority of constables
10 At the end of section 11 of the Police Regulation
Act 1958 insert--
"(2) Despite subsection (1), the Chief
Commissioner, by written notice, may
suspend the powers and privileges of any
15 member of the force as a constable, or under
any enactment, if the member is--
(a) on secondment to any organisation or
body; or
(b) on leave without pay.
20 (3) A suspension under subsection (2) remains
in force for the period determined by the
Chief Commissioner and specified in the
notice.
(4) While a member's powers and privileges are
25 suspended, neither the Chief Commissioner
nor any other member of the force has
authority to give the member an instruction
in respect of the member's performance of
his or her functions or duties.
30 (5) A member whose powers and privileges are
suspended under this section does not engage
in misconduct for the purposes of Division 2
of Part IV by failing to comply with a
standing order or instruction of the Chief
35 Commissioner.
561270B.I-10/9/2008 8 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 2--Constitution of the Force
s. 10
(6) Nothing in this section affects the ability of
the Chief Commissioner--
(a) to end a member's secondment or leave
without pay; or
5 (b) to lift a suspension under this section.
(7) A member whose powers and privileges are
suspended under this section must, as soon
as practicable after receiving the notice
under subsection (2), surrender his or her
10 police identification and any police
equipment that is required by the Chief
Commissioner to be surrendered under this
subsection.
(8) In this section--
15 police equipment means equipment issued
to members of the force for use in the
performance of their duties;
police identification means any thing that
identifies, or purports to identify,
20 a person who carries, holds or wears it,
as a member of the force.".
10 Section 16 substituted
For section 16 of the Police Regulation Act 1958
substitute--
25 "16 Cessation or suspension of police powers
(1) All powers and authorities vested in a person
as a member of the force cease at the time
the person is discharged or dismissed from or
otherwise ceases to hold and exercise his or
30 her office as a member of the force.
(2) All powers and authorities vested in a person
as a member of the force are suspended
during--
561270B.I-10/9/2008 9 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 2--Constitution of the Force
s. 11
(a) any period of suspension under
section 8A(6) or 11(2); or
(b) any period for which the person is
suspended under section 68A, 70(3)(c)
5 or 79(2)(c).
(3) Despite subsection (2), a person remains a
member of the force during any period of
suspension.".
11 New Part heading substituted
10 For the heading to Part II of the Police
Regulation Act 1958 substitute--
"PART II--DUTIES AND PROFESSIONAL
DEVELOPMENT".
12 Role of protective services officers
15 In section 118B(1) of the Police Regulation
Act 1958, after "importance" insert "and other
security services as determined by the Chief
Commissioner".
13 Removal of limit on number of protective services
20 officers
Section 118B(1A) of the Police Regulation Act
1958 is repealed.
14 Oath or affirmation
(1) For section 13(1) of the Police Regulation Act
25 1958 substitute--
"(1) Any person appointed to be a member of the
force shall not be capable of acting in any
way as such member until he or she has--
(a) in the case of a member (other than
30 a fixed term member), taken and
subscribed the oath set forth in Form A
of the Second Schedule;
561270B.I-10/9/2008 10 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 2--Constitution of the Force
s. 14
(b) in the case of a fixed term member,
taken and subscribed the oath, or made
and subscribed the affirmation, set out
in Form D of the Second Schedule.".
5 (2) In the Second Schedule to the Police Regulation
Act 1958, after Form C insert--
"FORM D
OATH FOR FIXED TERM MEMBERS OF THE
POLICE FORCE OF VICTORIA
10 I swear by Almighty God
that I will well and truly serve our Sovereign Lady the
Queen as a member of the Police Force of Victoria in such
capacity as I may be hereafter appointed without favour or
affection malice or ill-will for the period of from this
15 date, and until I am legally discharged at the end of the
period to which this oath relates; that I will see and cause
Her Majesty's peace to be kept and preserved; and that I will
prevent to the best of my power all offences against the
same, and that while I shall continue to be a member of the
20 Police Force of Victoria I will to the best of my skill and
knowledge discharge all the duties legally imposed upon me
faithfully and according to law.
AFFIRMATION FOR FIXED TERM MEMBERS OF
THE POLICE FORCE OF VICTORIA
25 I do solemnly and sincerely
affirm that I will well and truly serve our Sovereign Lady
the Queen as a member of the Police Force of Victoria in
such capacity as I may be hereafter appointed without
favour or affection malice or ill-will for the period of
30 from this date, and until I am legally discharged at the end
of the period to which this affirmation relates; that I will see
and cause Her Majesty's peace to be kept and preserved; and
that I will prevent to the best of my power all offences
against the same, and that while I shall continue to be a
35 member of the Police Force of Victoria I will to the best of
my skill and knowledge discharge all the duties legally
imposed upon me faithfully and according to law.
__________________".
__________________
561270B.I-10/9/2008 11 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 3--Performance and Professional Development
s. 15
PART 3--PERFORMANCE AND PROFESSIONAL
DEVELOPMENT
15 Definition
Insert the following definition in section 3(1) of
5 the Police Regulation Act 1958--
"professional development process means the
process established under section 18;".
16 New sections 18, 18AA and 18AB inserted
After section 17 of the Police Regulation Act
10 1958 insert--
"18 Professional development process
(1) The Chief Commissioner must establish a
process (professional development process)
for the professional development of members
15 of the force.
(2) The purpose of the professional development
process is--
(a) to educate members of the force
about--
20 (i) the mission, values and strategic
and organisational goals of the
force so as to achieve consistency
between that mission and those
values and goals and the manner
25 in which members of the force
perform their duties; and
(ii) their responsibilities as members
of the force; and
(b) to facilitate the professional
30 development of members of the force
by providing for the assessment of a
member's performance on a regular
basis; and
561270B.I-10/9/2008 12 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 3--Performance and Professional Development
s. 16
(c) to identify opportunities for
professional development and
improved performance so as to increase
the capacity of the force to deliver
5 policing services in accordance with the
needs and expectations of the
community; and
(d) to develop a professional culture that is
focussed on maintaining and improving
10 performance standards and on the
professional development of members.
(3) The professional development process may
provide for--
(a) professional development plans for
15 members of the force; and
(b) the inclusion of a remedial plan in a
member's professional development
plan; and
(c) any matters the Chief Commissioner
20 thinks appropriate, in addition to the
matters specified in subsection (2),
in relation to the management of the
performance of members of the force.
(4) The regulations may--
25 (a) specify persons, or classes of persons,
authorised to approve professional
development plans; and
(b) specify the matters to be included in a
professional development plan; and
30 (c) specify the standards required of
members in performing their duties,
which may include different standards
for different classes of members of the
force; and
561270B.I-10/9/2008 13 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 3--Performance and Professional Development
s. 16
(d) provide a process for dealing with
members who--
(i) may be underperforming in their
duties; or
5 (ii) demonstrate behavioural or other
attributes that impact adversely on
the performance of their duties; or
(iii) have engaged in misconduct.
(5) In this section, misconduct has the meaning
10 given in section 69.
18AA A member may seek internal review
(1) A member of the force is entitled to an
internal review, in accordance with the
regulations, of--
15 (a) any requirement of a professional
development plan;
(b) any requirement of a remedial plan;
(c) any action taken with respect to the
member (other than dismissal);
20 (d) any determination that a member of the
force has failed to comply with any
requirement of a professional
development plan or a remedial plan--
if that requirement, action or determination
25 has had, or is likely to have, an adverse
effect on the member's remuneration, rank or
seniority.
(2) Regulations made for the purposes of this
section may prescribe exceptions to the
30 entitlement to a review in circumstances
where--
(a) the matter is frivolous, vexatious or
lacking in substance; or
561270B.I-10/9/2008 14 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 3--Performance and Professional Development
s. 16
(b) the applicant does not have sufficient
personal interest; or
(c) the applicant has not sought an initial
review from the person who imposed
5 the requirement, took the action or
made the determination; or
(d) the application is not made within a
specified period; or
(e) the matter is the subject of a complaint
10 under the Equal Opportunity Act
1995 or a proceeding in any court or
tribunal initiated by the applicant; or
(f) the matter could more appropriately be
the subject of a complaint under the
15 Equal Opportunity Act 1995 or a
proceeding in any court or tribunal.
18AB Internal review
(1) An internal review referred to in section
18AA must be conducted--
20 (a) in accordance with the rules of natural
justice;
(b) by a person unconnected with the
decision or action that is the subject
of the review;
25 (c) in accordance with the regulations.
(2) A formal hearing may be held, but is not
required to be held, on an internal review.
(3) If a formal hearing is held, the applicant for
internal review may be represented at the
30 hearing by any person other than a legal
practitioner.
561270B.I-10/9/2008 15 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 3--Performance and Professional Development
s. 16
(4) After conducting an internal review,
the person who conducted the review--
(a) must report to the Chief Commissioner;
and
5 (b) may include in his or her report any
recommendation in relation to the
member.".
__________________
561270B.I-10/9/2008 16 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 4--Remedial Procedures and Dismissal
s. 17
PART 4--REMEDIAL PROCEDURES AND DISMISSAL
17 New Part heading substituted
For the heading to Part IV of the Police
Regulation Act 1958 substitute--
5 "PART IV--REMEDIAL PROCEDURES AND
DISMISSAL".
18 Dismissal of unsuitable members
(1) In section 68A of the Police Regulation Act
1958--
10 (a) in subsection (3), for "the chairperson"
substitute "a member";
(b) in subsection (4), for "The chairperson"
substitute "The member".
(2) After section 68C(3) of the Police Regulation Act
15 1958 insert--
"(4) Without limiting the matters to which the
Appeals Board is otherwise required or
permitted to have regard in a review under
this Division, the Board must have regard
20 to--
(a) the public interest; and
(b) the interests of the applicant for review.
(5) For the purposes of this section, public
interest includes--
25 (a) the interest of maintaining the integrity
of, and community confidence in,
the force; and
(b) the interest of protecting the
community from the wrongful acts
30 of members of the force; and
561270B.I-10/9/2008 17 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 4--Remedial Procedures and Dismissal
s. 19
(c) the interest of maintaining high
self-esteem of serving members of
the force; and
(d) the fact that the Chief Commissioner
5 made an order under section 68(1).".
(3) For sections 68D(1) and (2) of the Police
Regulation Act 1958 substitute--
"(1) The Appeals Board must affirm the order of
the Chief Commissioner unless the Board is
10 satisfied that the decision to dismiss the
applicant was not sound, defensible or
well-founded.
(2) If the Appeals Board is satisfied that the
decision to dismiss the applicant from the
15 force was not sound, defensible or
well-founded, the Appeals Board may order
the Chief Commissioner to pay to the
applicant an amount of compensation not
exceeding the amount of remuneration of the
20 applicant during the period of 12 months
immediately before being dismissed.".
(4) In section 68D(3) of the Police Regulation Act
1958, for "subsection (1)(b)" substitute
"subsection (2)".
25 (5) Section 68D(5) of the Police Regulation Act
1958 is repealed.
19 New Division 2 of Part IV substituted
For Division 2 of Part IV of the Police
Regulation Act 1958 substitute--
30 "Division 2--Misconduct
69 Misconduct
(1) In this Division--
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Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 4--Remedial Procedures and Dismissal
s. 19
misconduct, in relation to a member of the
force, means--
(a) contravention by the member of
a provision of this Act or the
5 regulations; or
(b) failure by the member to comply
with a standing order or
instruction of the Chief
Commissioner; or
10 Note
See section 11(5) for the application of
paragraph (b) to a member who is on
secondment or leave without pay.
(c) failure by the member to comply
15 with a lawful instruction given
by--
(i) the Chief Commissioner; or
(ii) a member who has the
authority to give the
20 instruction; or
(d) negligence or carelessness by the
member in the discharge of his or
her duty; or
(e) action by the member in a manner
25 prejudicial to the good order or
discipline of the force; or
(f) engaging by the member in
conduct (whether in his or her
official capacity or otherwise) that
30 is likely to bring the force into
disrepute or diminish public
confidence in it; or
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(g) engaging by the member in
disgraceful or improper conduct
(whether in his or her official
capacity or otherwise); or
5 (h) commission by the member of an
offence (whether under the law of
Victoria or of another jurisdiction)
and the offence has been found
proven; or
10 (i) the doing of any of the following
by the member without the
approval of the Chief
Commissioner--
(i) applying for or holding a
15 licence or permit to conduct
any trade, business or
profession; or
(ii) conducting any trade,
business or profession; or
20 (iii) accepting any other
employment; or
(j) failure by the member to comply
with a direction under section 55
or 90 of the Whistleblowers
25 Protection Act 2001; or
(k) failure by the member to comply
with a direction given under
Division 4A; or
(l) refusal by the member to consent
30 to the use of evidence derived
from a sample in the
circumstances referred to in
section 85D(2).
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(2) Conduct engaged in by a member of the
force while seconded to the Office of Police
Integrity or any other body may amount to
misconduct for the purposes of this Division.
5 70 Investigation of members of the force
(1) The Chief Commissioner may investigate
a member of the force if the Chief
Commissioner has reason to believe that the
member may have engaged in misconduct.
10 (2) For the purposes of an investigation,
the Chief Commissioner may--
(a) interview the member;
(b) collect statements or other information
from any person;
15 (c) inform himself or herself of any matter
he or she considers relevant.
(3) At any time during an investigation,
the Chief Commissioner may--
(a) transfer the member to other duties; or
20 (b) direct the member to take any leave that
the member has accrued; or
(c) suspend the member with pay.
(4) A suspension under subsection (3)(c)--
(a) takes effect at the time written notice of
25 the suspension is given to the member,
or at the later time specified in the
notice; and
(b) remains in effect until--
(i) if subsection (5)(a) applies, the
30 Chief Commissioner determines
whether or not to dismiss the
member under section 72 or take
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remedial action in relation to the
member under section 73; or
(ii) if subsection (5)(b) applies, the
member returns to duty under the
5 professional development
process--
unless the suspension is lifted earlier by
the Chief Commissioner.
(5) Following an investigation--
10 (a) if the Chief Commissioner considers
that the member may have engaged in
misconduct, and that misconduct is of
such a nature, or occurred in such
circumstances, that it may warrant
15 dismissal, the Chief Commissioner may
give a show cause notice to the member
under section 71;
(b) in any other case, the Chief
Commissioner may deal with the
20 member under the professional
development process by--
(i) including a remedial plan in
the member's professional
development plan; or
25 (ii) amending any existing remedial
plan in the member's professional
development plan.
71 Show cause notice for dismissal
(1) This section applies if--
30 (a) after an investigation of a member of
the force under section 70, the Chief
Commissioner considers--
(i) that the member has engaged in
misconduct; and
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(ii) that misconduct is of such a
nature, or occurred in such
circumstances, that it may
warrant dismissal; or
5 (b) that the member has committed an
offence (whether under the law of
Victoria or of another jurisdiction) and
the offence has been found proven.
(2) If this section applies, the Chief
10 Commissioner may give a written notice
(show cause notice) to the member requiring
the member to show cause, within the time
specified in the notice, why the member
should not be dismissed.
15 (3) The regulations may prescribe the minimum
time that must be allowed for a member to
respond to a show cause notice.
(4) If the member responds to the show cause
notice within the time allowed by the notice,
20 or within any further time allowed by the
Chief Commissioner, the Chief
Commissioner must consider the member's
response before dismissing the member
under section 72.
25 (5) If the Chief Commissioner reasonably
believes that a member has committed an
offence referred to in the First Schedule,
the Chief Commissioner must not give a
show cause notice to the member until the
30 Chief Commissioner has consulted the
Director of Public Prosecutions.
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(6) If the Chief Commissioner reasonably
believes that the member has committed any
other offence, the Chief Commissioner may
consult the Director of Public Prosecutions
5 before giving a show cause notice to the
member.
72 Dismissal following show cause notice
If the Chief Commissioner is satisfied that a
member to whom a show cause notice has
10 been given under section 71--
(a) has engaged in misconduct; and
(b) that misconduct is of such a nature, or
occurred in such circumstances, that it
warrants dismissal--
15 the Chief Commissioner may dismiss the
member from the force.
73 Other remedial action following show
cause notice
(1) If the Chief Commissioner is satisfied that a
20 member to whom a show cause notice has
been given under section 71 has engaged in
misconduct, but is not satisfied that it
warrants dismissal, the Chief Commissioner
may take any one or more of the following
25 remedial actions--
(a) adjourn the matter for a period not
exceeding 2 years on condition that the
member give an undertaking to be of
good behaviour during that period;
30 (b) impose a remedial plan on the member
as part of his or her professional
development plan or amend any
existing remedial plan in the member's
professional development plan;
35 (c) transfer the member to other duties.
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(2) If the Chief Commissioner takes the action
referred to in subsection (1)(a) and the Chief
Commissioner is satisfied that the member
has breached his or her undertaking, the
5 Chief Commissioner may--
(a) dismiss the member under section 72;
or
(b) take any one or more of the remedial
actions referred to in subsection (1) in
10 relation to the member.
(3) If the Chief Commissioner takes the action
referred to in subsection (1)(b) and the Chief
Commissioner is satisfied that the member
has failed to comply with a requirement of
15 his or her professional development plan,
including a requirement of his or her
remedial plan, the Chief Commissioner
may--
(a) dismiss the member under section 72;
20 or
(b) take any one or more of the remedial
actions referred to in subsection (1) in
relation to the member.
74 Admissibility of evidence
25 (1) Subject to subsection (2), the following are
not admissible in evidence before any court
or person acting judicially--
(a) anything said or done during or for the
purposes of--
30 (i) an investigation under section 70;
or
(ii) dealing with a member under
section 70(5)(b); or
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(iii) dismissing a member under
section 72; or
(iv) taking remedial action in relation
to a member under section 73; or
5 (b) any document produced during or for
the purposes of--
(i) an investigation under section 70;
or
(ii) dealing with a member under
10 section 70(5)(b); or
(iii) dismissing a member under
section 72; or
(iv) taking remedial action in relation
to a member under section 73.
15 (2) Subsection (1) does not apply to--
(a) a proceeding for perjury; or
(b) a criminal proceeding against a person
(other than a person who is the subject
of an investigation or other process
20 referred to in subsection (1)), if the
court determines that the admission of
the evidence is necessary for a fair
hearing; or
(c) a criminal proceeding against a person
25 who is the subject of an investigation or
other process referred to in subsection
(1), if the person seeks to rely on the
evidence; or
(d) a proceeding for an offence under
30 section 113(2) of the Police Integrity
Act 2008 concerning a failure to
comply with a direction under
section 47 of that Act; or
(e) a review under Division 1; or
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(f) a review under Division 2 of Part V in
relation to a decision to dismiss a
member under section 72 or take
remedial action in relation to a member
5 under section 73.
Division 2A--Underperformance
75 Investigation or assessment of members of
the force
(1) The Chief Commissioner may--
10 (a) investigate a member of the force, if the
Chief Commissioner has reason to
believe that the member--
(i) may be underperforming in their
duties; or
15 (ii) demonstrates behavioural or other
attributes that impact adversely on
the performance of his or her
duties; or
(iii) has failed to comply with a
20 requirement of his or her
professional development plan,
including a requirement of any
remedial plan; or
(b) assess the performance of duties by a
25 member at any time.
(2) For the purposes of an investigation or
assessment, the Chief Commissioner may--
(a) interview the member;
(b) collect statements or other information
30 from any person;
(c) inform himself or herself of any matter
he or she considers relevant.
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76 Show cause notice for dismissal
(1) This section applies if, after an investigation
or assessment of a member of the force
under section 75, the Chief Commissioner
5 considers--
(a) that the member has failed to comply
with a requirement of his or her
professional development plan,
including a requirement of any
10 remedial plan; and
(b) that failure may warrant dismissal.
(2) If this section applies, the Chief
Commissioner may give a written notice
(show cause notice) to the member requiring
15 the member to show cause, within the time
specified in the notice, why the member
should not be dismissed.
(3) The regulations may prescribe the--
(a) form of a show cause notice;
20 (b) details to be included in a show cause
notice;
(c) manner and form in which a member
may respond to a show cause notice;
(d) minimum time that must be allowed for
25 a member to respond to a show cause
notice.
(4) If the member responds to the show cause
notice within the time allowed by the notice,
or within any further time allowed by the
30 Chief Commissioner, the Chief
Commissioner must consider the member's
response before dismissing the member
under section 77 or taking remedial action in
relation to the member under section 78.
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77 Dismissal following show cause notice
If the Chief Commissioner is satisfied--
(a) that a member to whom a show cause
notice has been given under section 76
5 has failed to comply with a requirement
of his or her professional development
plan, including a requirement of any
remedial plan; and
(b) that that failure warrants dismissal--
10 the Chief Commissioner may dismiss the
member from the force.
78 Other remedial action following show
cause notice
(1) If the Chief Commissioner is satisfied that a
15 member to whom a show cause notice has
been given under section 76 has failed to
comply with a requirement of his or her
professional development plan, including a
requirement of any remedial plan, but is not
20 satisfied that it warrants dismissal, the Chief
Commissioner may take any one or more of
the following remedial actions--
(a) adjourn the matter for a period not
exceeding 2 years on condition that the
25 member give an undertaking to be of
good behaviour during that period;
(b) impose a further remedial plan on
the member as part of his or her
professional development plan;
30 (c) transfer the member to other duties.
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(2) If the Chief Commissioner takes the action
referred to in subsection (1)(a) and the Chief
Commissioner is satisfied that the member
has breached his or her undertaking, the
5 Chief Commissioner may--
(a) dismiss the member under section 77;
or
(b) take any one or more of the remedial
actions referred to in subsection (1) in
10 relation to the member.
78A Admissibility of evidence
(1) Subject to subsection (2), the following are
not admissible in evidence before any court
or person acting judicially--
15 (a) anything said or done during or for the
purposes of--
(i) an investigation or assessment
under section 75; or
(ii) dismissing a member under
20 section 77; or
(iii) taking remedial action in relation
to a member under section 78; or
(b) any document produced during or for
the purposes of--
25 (i) an investigation or assessment
under section 75; or
(ii) dismissing a member under
section 77; or
(iii) taking remedial action in relation
30 to a member under section 78.
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(2) Subsection (1) does not apply to--
(a) a proceeding for perjury; or
(b) a criminal proceeding against a person
(other than a person who is the subject
5 of an investigation or other process
referred to in subsection (1)), if the
court determines that the admission of
the evidence is necessary for a fair
hearing; or
10 (c) a criminal proceeding against a person
who is the subject of an investigation or
other process referred to in subsection
(1), if the person seeks to rely on the
evidence; or
15 (d) a proceeding for an offence under
section 113(2) of the Police Integrity
Act 2008 concerning a failure to
comply with a direction under
section 47 of that Act; or
20 (e) a dismissal under section 68; or
(f) a review under Division 2 of Part V
in relation to a decision to dismiss a
member under section 77 or take
remedial action in relation to a member
25 under section 78.
78B Natural justice
The Chief Commissioner is bound by the
rules of natural justice in making any
decision or taking any action under
30 Division 1 or 2 or this Division.".
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20 Criminal charge or investigation
(1) For section 80 of the Police Regulation Act 1958
substitute--
"80 Chief Commissioner not prevented from
5 taking action
Nothing in this Division prevents the Chief
Commissioner from taking any action under
Division 1, 2 or 2A in relation to a member
in respect of whom--
10 (a) an investigation under the criminal law
has been commenced (whether under
section 79(1) or otherwise); or
(b) a charge for an offence (whether under
the law of Victoria or of another
15 jurisdiction) is pending.".
(2) Section 81 of the Police Regulation Act 1958 is
repealed.
21 New Division 4 substituted in Part IV
For Division 4 of Part IV of the Police
20 Regulation Act 1958 substitute--
"Division 4--Information-gathering powers
82 Power to require answers and information
from members of the force
(1) The Chief Commissioner may give a
25 direction under this section only if the Chief
Commissioner considers it necessary to do
so for the purposes of--
(a) determining whether to dismiss a
member of the force under section 68;
30 or
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(b) an investigation or assessment of a
member of the force under section 70
or 75; or
(c) determining whether to dismiss a
5 member of the force under section 72
or 77 or take remedial action in relation
to a member of the force under
section 73 or 78.
(2) The Chief Commissioner may direct any
10 member of the force to give to the Chief
Commissioner any relevant information,
produce any relevant document or answer
any relevant question.
(3) A member of the force must comply with a
15 direction under subsection (2).
(4) Any information, document or answer given
or produced under this section is not
admissible in evidence before any court or
person acting judicially, except in--
20 (a) a proceeding for perjury; or
(b) a criminal proceeding against a person
(other than a person who has been
given a direction under this section or
section 86Q(1)), if the court determines
25 that the admission of the evidence is
necessary for a fair hearing; or
(c) a criminal proceeding against a person
who has been given a direction under
this section or section 86Q(1), if the
30 person seeks to rely on the evidence; or
(d) a proceeding for an offence under
section 113(2) of the Police Integrity
Act 2008 concerning a failure to
comply with a direction under
35 section 47 of that Act; or
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(e) a review under Division 1; or
(f) a review under Division 2 of Part V in
relation to a decision to dismiss a
member under section 72 or 77 or take
5 remedial action in relation to a member
under section 73 or 78.".
22 Further amendment of Part IV
(1) In section 85D(2)(c) of the Police Regulation Act
1958, for "a breach of discipline" substitute
10 "misconduct".
(2) In section 86(1) of the Police Regulation Act
1958 omit "section 71(3)(c) or".
(3) Section 86AAA of the Police Regulation Act
1958 is repealed.
15 23 Complaints and investigations
(1) In section 86Q(1) of the Police Regulation Act
1958, for "a possible breach of discipline under
section 69" substitute "possible misconduct
within the meaning of section 69".
20 (2) For section 86Q(2) and (3) of the Police
Regulation Act 1958 substitute--
"(2) A member of the force must comply with a
direction under subsection (1).
(3) Any information, document or answer
25 furnished, produced or given in accordance
with a direction under subsection (1) is not
admissible in evidence before any court or
person acting judicially, except in--
(a) a proceeding for perjury; or
30 (b) a criminal proceeding against a person
(other than a person who has been
given a direction under this section or
section 82(1) or (2)) if the court
determines that the admission of the
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evidence is necessary for a fair hearing;
or
(c) a criminal proceeding against a person
who has been given a direction under
5 this section or section 82(1) or (2),
if the person seeks to rely on the
evidence; or
(d) a proceeding for an offence under
section 113(2) of the Police Integrity
10 Act 2008 concerning failure to comply
with a direction under section 47 of that
Act; or
(e) a review under Division 1 of Part IV; or
(f) a review under Division 2 of Part V in
15 relation to a decision to dismiss a
member under section 72 or 77 or take
remedial action in relation to a member
under section 73 or 78.".
24 Reviews by Appeals Board
20 (1) In section 91F(1) of the Police Regulation Act
1958--
(a) for paragraph (c) substitute--
"(c) in the case of a member to whom
section 8(4) or 8(4A) applies, to
25 terminate the member's appointment
under section 8(5); or";
(b) in paragraph (d), after "member" insert
"(other than a transfer under section 70)";
(c) paragraph (e) is repealed.
30 (2) In section 91F(4) of the Police Regulation Act
1958, in the definition of member of the force
omit "his or her dismissal or".
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25 New section 91FA inserted
After section 91F of the Police Regulation Act
1958 insert--
"91FA Review of dismissal
5 (1) A person who is dismissed from the force
under section 72 or 77 may apply to the
Appeals Board for a review of the Chief
Commissioner's decision to dismiss the
person on the ground that the decision was
10 harsh, unjust or unreasonable.
(2) An application for review must be made
within 14 days after the person is notified
of the making of the decision to which the
application relates.
15 (3) In determining on a review whether the
decision to dismiss a person was harsh,
unjust or unreasonable, the Appeals Board--
(a) must have regard to--
(i) whether the person's conduct was
20 such as to give the Chief
Commissioner reason to lack
confidence in the member's--
(A) integrity; or
(B) ability or willingness to
25 comply with lawful
instructions; or
(C) ability or willingness to
refrain from conduct that
adversely reflects on the
30 force; or
(D) ability or willingness to
refrain from conduct that is
prejudicial to the good order
or discipline of the force; or
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(E) ability or willingness to
carry out his or her duties
efficiently or effectively; and
(ii) whether there was a valid reason
5 for the dismissal related to the
person's capacity or conduct
(including the effect of the
person's capacity or conduct on
the safety and welfare of other
10 employees); and
(iii) whether the person was notified of
that reason; and
(iv) whether the person was given an
opportunity to respond to any
15 reason related to his or her
capacity or conduct; and
(b) may have regard to any other matter it
thinks fit.".
26 New section 91FB inserted and section 91G
20 substituted
For section 91G of the Police Regulation Act
1958 substitute--
"91FB Appeal Board's powers on review of
decision to dismiss or terminate
25 (1) Subject to subsections (2) and (3), on a
review of a decision to dismiss a person from
the force under section 72 or 77, or to
terminate a person's appointment under
section 8(5), the Appeals Board may--
30 (a) set aside the decision under review and
order the Chief Commissioner to
re-instate the applicant as a member of
the force; or
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(b) set aside the decision under review and
refer the matter for determination by
the Chief Commissioner in accordance
with any recommendations of the
5 Appeals Board; or
(c) order the Chief Commissioner to pay
the applicant an amount of
compensation not exceeding the
amount of remuneration of the
10 applicant during the period of 6 months
immediately before being dismissed; or
(d) affirm the decision under review.
(2) The Appeals Board must not order the Chief
Commissioner to re-instate the applicant as a
15 member of the force unless the Appeals
Board is satisfied that it is in the public
interest to do so.
(3) Subsections (1)(a) and (1)(b) do not apply to
a review of a decision to dismiss a person
20 from the force under section 72 where the
conduct that warranted dismissal was the
commission of an offence punishable by
imprisonment (whether under a Victorian
law or under a law of another place) where
25 the offence has been found proven.
(4) If the applicant was on leave without full pay
during any part of the period of 12 months
immediately before being dismissed, the
maximum amount of compensation that may
30 be ordered under subsection (1)(c) to be paid
is to be determined as if the applicant had
received full pay while on leave.
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(5) While assessing any compensation payable,
the Appeals Board must take into account--
(a) whether the applicant made a
reasonable attempt to find alternative
5 employment; and
(b) the remuneration received in any
alternative employment or that would
have been payable if the applicant had
succeeded in obtaining alternative
10 employment.
(6) For the purposes of this section, public
interest includes--
(a) the interest of maintaining the integrity
of, and community confidence in, the
15 force; and
(b) the interest of protecting the
community from the wrongful acts
of members of the force; and
(c) the interest of maintaining high
20 self-esteem of serving members of
the force.
91G Appeals Board's powers on review of a
decision other than a decision to dismiss
or terminate
25 On a review under this Division (other than
a review to which section 91FB applies),
the Appeals Board may--
(a) affirm the decision under review; or
(b) set aside the decision under review and,
30 in substitution for it, make any other
decision or determination that the
person who made the decision could
have made; or
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(c) set aside the decision under review and
refer the matter for determination by
the Chief Commissioner in accordance
with any recommendations of the
5 Appeals Board.".
27 Appeal Board's powers and constitution on review
(1) Section 91I of the Police Regulation Act 1958 is
repealed.
(2) After section 91K(1) of the Police Regulation
10 Act 1958 insert--
"(1A) This section does not apply to--
(a) a review under Division 1 of Part IV; or
(b) a review under section 91FA.".
(3) In section 91K(2) of the Police Regulation Act
15 1958--
(a) in paragraph (a), for "force; and" substitute
"force.";
(b) paragraph (b) is repealed.
(4) For section 91M(1)(a) of the Police Regulation
20 Act 1958 substitute--
"(a) in the case of a member to whom
section 8(4) or 8(4A) applies, a review of
a decision to terminate the member's
appointment under section 8(5);".
25 28 Reinstatement of members
Division 1 of Part VA of the Police Regulation
Act 1958 is repealed.
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29 Consequential amendments for misconduct
(1) In the Police Regulation Act 1958--
(a) in section 102EA(4), for "committed a
breach of discipline under section 69"
5 substitute "engaged in misconduct within
the meaning of section 69";
(b) in section 102EB(1)(c), for "those duties;
and" substitute "those duties.";
(c) sections 102EB(1)(d) and (e) are repealed;
10 (d) in section 102EB(2), for "or (e)," substitute
"or section 11(4),";
(e) in section 102EB(3), for "an investigation or
inquiry under Part IV in relation to a breach
of discipline by the member" substitute
15 "the taking of any action under Part IV in
relation to misconduct engaged in by the
member";
(f) for section 102G(1)(d)(ii) substitute--
"(ii) misconduct under Division 2 of
20 Part IV; or";
(g) section 102G(1)(d)(iii) is repealed.
(2) For section 102P(1) of the Police Regulation Act
1958 substitute--
"(1) If the Chief Commissioner reasonably
25 believes that a special constable may have
engaged in misconduct within the meaning
of section 69, the Chief Commissioner may
conduct or cause to be conducted an
investigation of the matter.".
30 (3) In the note at the foot of section 102P(1) of the
Police Regulation Act 1958, for "a breach of
discipline" substitute "misconduct".
561270B.I-10/9/2008 41 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 4--Remedial Procedures and Dismissal
s. 30
(4) In section 127(b) of the Police Regulation Act
1958, for "commit breaches of discipline"
substitute "engage in misconduct (within the
meaning of section 69)".
5 30 Further consequential amendments
(1) In section 69 of the Police Regulation Act 1958,
in the definition of misconduct--
(a) in paragraph (l), for "85D(2)." substitute
"85D(2); or";
10 (b) after paragraph (l) insert--
"(m) failure by the member to comply with a
direction under section 47 of the Police
Integrity Act 2008; or
(n) failure by the member to comply with a
15 direction given under Division 5 of
Part 2 of the Police Integrity Act 2008;
or
(o) refusal by the member to consent to the
use of evidence derived from a sample
20 in the circumstances referred to in
section 33 of the Police Integrity Act
2008.".
(2) In section 86VAD(3)(b) of the Police Regulation
Act 1958, for "a breach of discipline" substitute
25 "misconduct".
__________________
561270B.I-10/9/2008 42 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 5--Proceedings against Members of the Force
s. 31
PART 5--PROCEEDINGS AGAINST MEMBERS OF THE
FORCE
31 New Part VID inserted
After Part VIC of the Police Regulation Act 1958
5 insert--
"PART VID--PROCEEDINGS AGAINST
MEMBERS OF THE FORCE
118ZB Interpretation
(1) In this section--
10 court includes a tribunal and, in relation to a
claim for damages, means any court or
tribunal by or before which the claim
falls to be determined;
independent function, in relation to a
15 member of the force, means a function
conferred or imposed on the member
by the common law or statute
independently of the will of the Crown;
legal proceeding means a proceeding in a
20 court;
member concerned in relation to a police
tort claim, means the member of the
force in respect of whom the police tort
claim is made;
25 originating process means any statement of
claim, summons, application or other
process by means of which a legal
proceeding is commenced;
police tort claim means a claim for damages
30 for a tort allegedly committed by a
member of the force, in the
performance or purported performance
561270B.I-10/9/2008 43 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 5--Proceedings against Members of the Force
s. 31
of his or her functions (including an
independent function) as a member of
the force, whether or not committed
jointly or severally with any other
5 person.
(2) In this Part, a reference to--
(a) a function includes a reference to a
power, authority and duty; and
(b) the performance of a function includes
10 a reference to the exercise of a power
and the failure to perform the function
or exercise the power.
118ZC Crown cannot deny vicarious liability for
tort committed in performance of
15 independent function
(1) The Crown cannot deny that it is vicariously
liable for a tort that is alleged to have been
committed by a member of the force in the
performance, or purported performance,
20 by the member of his or her duties as a
member--
(a) on the ground that the member is not an
employee of the Crown or the Crown is
not the employer of the member; or
25 (b) on the ground that the conduct giving
rise to the claim occurred in the
performance by the member of an
independent function.
(2) Nothing in this Part makes a member of the
30 force an employee of the Crown.
118ZD Commencement of proceedings
(1) A person may not in any legal proceeding
make a police tort claim against the member
concerned, but may instead make the claim
35 against the Crown.
561270B.I-10/9/2008 44 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 5--Proceedings against Members of the Force
s. 31
(2) A proceeding for a police tort claim may be
instituted only under this Part.
(3) A person who makes a police tort claim
against the Crown in any legal proceeding
5 may join the member concerned as a party to
the proceeding only if the Crown denies that
it would be vicariously liable for the alleged
tort if it were established that the member
concerned had committed the tort.
10 (4) If a person seeks to join the member
concerned as a party to a proceeding, the
person must seek to do so within 2 months
after the Crown denies that it would be
vicariously liable for the alleged tort if it
15 were established that the member had
committed the tort.
(5) A person seeking to join the member
concerned as a party to a legal proceeding--
(a) is not required to file a new originating
20 process; but
(b) may instead amend the existing
originating process--
and the court is to make such orders as it
considers appropriate to enable the existing
25 originating process to be duly amended.
(6) Nothing in this section prevents the Crown
from joining the member concerned as a
party to the proceeding if the Crown denies
that it would be vicariously liable for the
30 alleged tort if it were established that the
member had committed the tort.
561270B.I-10/9/2008 45 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 5--Proceedings against Members of the Force
s. 31
118ZE Circumstances in which court must not
find Crown vicariously liable
A court must not find the Crown vicariously
liable for a tort committed by a member
5 concerned if the court is satisfied that the
conduct giving rise to the tort--
(a) was serious and wilful misconduct; or
(b) was not committed by the member
concerned in the performance, or
10 purported performance, of his or her
duties as a member or in the
performance by the member of an
independent function.
118ZF Relationship of this Part to Limitation of
15 Actions Act 1958
Nothing in the Limitation of Actions Act
1958 precludes the making of a claim in the
amended originating process for damages
against the member concerned for the
20 alleged tort if the amendment to the
originating process is made within 2 months
after the Crown denies that it would be
vicariously liable for the alleged tort if it
were established that the member had
25 committed the tort.
118ZG Effect of Part
Nothing in this Part--
(a) prevents the Crown from bringing a
legal proceeding against, or claiming
30 damages or a contribution or indemnity
in any legal proceeding from, a member
of the force for a tort committed by the
member; or
561270B.I-10/9/2008 46 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 5--Proceedings against Members of the Force
s. 32
(b) prevents the Crown from joining a
member of the force to a proceeding
claiming damages for a tort committed
by the member; or
5 (c) prevents a person from bringing a legal
proceeding, or claiming damages in any
legal proceeding, against another
person who is not a member of the
force but who is jointly or severally
10 liable for a tort committed by a member
of the force; or
(d) prevents a person from making a police
tort claim against a member of the force
in any legal proceeding brought against
15 the person by the member; or
(e) prevents a person from bringing a legal
proceeding, or claiming damages in any
legal proceeding, against a member of
the force for a tort committed by the
20 member otherwise than in the course of
the member's service with the Crown or
incidental to the member's service.
__________________".
32 Immunity of members
(1) Section 123 of the Police Regulation Act 1958 is
25 repealed.
(2) In the Police Regulation Act 1958--
(a) in section 102EB(1)(c)(ii) and the note at the
foot of section 102N(2), for "section 123"
substitute "Part VID";
30 (b) in section 103(3)--
(i) omit ", 123";
(ii) for "and V" substitute ", V and VID";
561270B.I-10/9/2008 47 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 5--Proceedings against Members of the Force
s. 32
(c) in section 118B(2), for "section 123"
substitute "Part VID".
(3) In section 20(1)(c)(ii) of the Police Integrity Act
2008, for "section 123" substitute "Part VID".
__________________
561270B.I-10/9/2008 48 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 6--Transitional and Miscellaneous Amendments
s. 33
PART 6--TRANSITIONAL AND MISCELLANEOUS
AMENDMENTS
33 Regulations
At the end of section 85H of the Police
5 Regulation Act 1958 insert--
"(2) Regulations for the purposes of this section
may--
(a) require matters affected by the
regulations to be--
10 (i) in accordance with specified
standards or specified
requirements; or
(ii) approved by or to the satisfaction
of specified persons or bodies or
15 specified classes of persons or
bodies; or
(iii) as specified in both subparagraphs
(i) and (ii);
(b) apply, adopt or incorporate any matter
20 contained in any document whether--
(i) wholly or partially or as amended
by the regulations;
(ii) as in force at a particular time or
as in force from time to time;
25 (c) confer a discretionary authority or
impose a duty on specified persons or
bodies or specified classes of persons
or bodies;
(d) impose a penalty not exceeding
30 20 penalty units for contraventions
of the regulations.".
561270B.I-10/9/2008 49 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 6--Transitional and Miscellaneous Amendments
s. 34
34 Statute law revision
(1) In the Police Regulation Act 1958, in
section 85F, for "this section" substitute
"this Division".
5 (2) In the Police Regulation Act 1958, in section
127A(1F), for "that Act," substitute "that Act".
35 New section 137 inserted
After section 136 of the Police Regulation Act
1958 insert--
10 "137 Transitional provision--Police, Major
Crime and Whistleblowers Legislation
Amendment Act 2008
(1) Section 68D, as amended by section 18
of the Police, Major Crime and
15 Whistleblowers Legislation Amendment
Act 2008, applies only in respect of an order
under section 68(1), notice of which was
given under section 68(2)(a) on or after the
commencement of section 18 of the Police,
20 Major Crime and Whistleblowers
Legislation Amendment Act 2008.
(2) Section 68D, as in force immediately before
the commencement of section 18 of the
Police, Major Crime and Whistleblowers
25 Legislation Amendment Act 2008,
continues to apply to an order under
section 68(1), notice of which was given
under section 68(2)(a) before that
commencement.
561270B.I-10/9/2008 50 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 6--Transitional and Miscellaneous Amendments
s. 35
(3) An investigation may be commenced under
Division 2 of Part IV, as substituted by
section 19 of the Police, Major Crime and
Whistleblowers Legislation Amendment
5 Act 2008, whether the conduct being
investigated occurred before or after the
commencement of that section, except
where--
(a) the Chief Commissioner has given
10 notice to a member before that
commencement of the Chief
Commissioner's intention to take action
in relation to the member under
section 80, as in force immediately
15 before that commencement; or
(b) a charge was brought under Division 2
of Part IV before that commencement
in relation to that conduct.
(4) Section 80, as in force immediately before
20 the commencement of section 20 of the
Police, Major Crime and Whistleblowers
Legislation Amendment Act 2008,
continues to apply with respect to a member
if the Chief Commissioner has given notice
25 to the member before that commencement of
the Chief Commissioner's intention to take
action in relation to the member under
section 80.
(5) Division 2 of Part IV, as in force
30 immediately before the commencement of
section 19 of the Police, Major Crime and
Whistleblowers Legislation Amendment
Act 2008, continues to apply with respect to
a charge that was brought against a member
35 before that commencement.
561270B.I-10/9/2008 51 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 6--Transitional and Miscellaneous Amendments
s. 34
(6) If an investigation into a breach of discipline
under Division 2 of Part IV had commenced
but was not completed before the
commencement of section 19 of the Police,
5 Major Crime and Whistleblowers
Legislation Amendment Act 2008,
the investigation may be continued under
Division 2 of Part IV as substituted by that
section, as if the investigation were an
10 investigation into misconduct.
(7) Division 2 of Part V, as in force immediately
before the commencement of section 24 of
the Police, Major Crime and
Whistleblowers Legislation Amendment
15 Act 2008, continues to apply to a review of a
decision by the Chief Commissioner, or a
person authorised by the Chief
Commissioner, that was made before that
commencement.
20 (8) Part VID, as inserted by section 31 of the
Police, Major Crime and Whistleblowers
Legislation Amendment Act 2008, applies
only to a proceeding that is commenced on
or after the commencement of that section.".
__________________
561270B.I-10/9/2008 52 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 7--Consequential amendments to Other Acts
s. 36
PART 7--CONSEQUENTIAL AMENDMENTS TO OTHER
ACTS
36 Melbourne City Link Act 1995
In section 90F(2) of the Melbourne City Link
5 Act 1995, for "a breach of discipline within the
meaning of" substitute "misconduct within the
meaning of section 69 of".
37 Police Integrity Act 2008
In the Police Integrity Act 2008--
10 (a) in section 3, the definition of breach of
discipline is repealed;
(b) in section 19(4), for "committed a breach
of discipline" substitute "engaged in
misconduct (within the meaning of
15 section 69 of the Police Regulation Act
1958)";
(c) in section 20(1)(d), for "commit a breach of
discipline" substitute "engage in misconduct
for the purposes of Division 2 of Part IV of
20 the Police Regulation Act 1958";
(d) in section 20(3), for "an investigation or
inquiry under Part IV of the Police
Regulation Act 1958 in relation to a breach
of discipline by the member" substitute
25 "the taking of any action under Part IV of the
Police Regulation Act 1958 in relation to
misconduct engaged in by the member";
(e) for section 22(1)(d)(ii) substitute--
"(ii) misconduct under Division 2 of Part IV
30 of the Police Regulation Act 1958;
or";
561270B.I-10/9/2008 53 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 7--Consequential amendments to Other Acts
s. 38
(f) in section 33(2)(c), for "a breach of
discipline" substitute "misconduct for the
purposes of Division 2 of Part IV of the
Police Regulation Act 1958";
5 (g) in section 47(1), for "a possible breach of
discipline" substitute "possible misconduct
within the meaning of section 69 of the
Police Regulation Act 1958";
(h) for the note at the foot of section 47(1)
10 substitute--
"Note
Failure to comply with a direction is misconduct--
see paragraph (m) of the definition of misconduct in
section 69 of the Police Regulation Act 1958.";
15 (i) in sections 47(2)(b), 69(3)(b) and 125(4)(c),
for "a breach of discipline" substitute
"misconduct";
(j) sections 142(2)(a) and (b) are repealed.
38 Whistleblowers Protection Act 2001
20 (1) At the foot of section 55(1) of the
Whistleblowers Protection Act 2001 insert--
"Note
Failure to comply with a direction is misconduct for the
purposes of Division 2 of Part IV of the Police Regulation
25 Act 1958--see paragraph (j) of the definition of misconduct
in section 69 of that Act.".
(2) Section 55(2) of the Whistleblowers Protection
Act 2001 is repealed.
(3) For section 55(3) of the Whistleblowers
30 Protection Act 2001 substitute--
"(3) Any information, document or answer
furnished, produced or given in accordance
with a direction under subsection (1) is not
admissible in evidence before any court or
35 person acting judicially, except in--
561270B.I-10/9/2008 54 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 7--Consequential amendments to Other Acts
s. 38
(a) a proceeding for perjury; or
(b) a review under Division 1 of Part IV of
the Police Regulation Act 1958; or
(c) a review under Division 2 of Part V of
5 the Police Regulation Act 1958 in
relation to a decision to dismiss a
member under section 72 of that Act or
take other remedial action in relation to
a member under section 73 of that
10 Act.".
(4) At the foot of section 90(1) of the
Whistleblowers Protection Act 2001 insert--
"Note
Failure to comply with a direction is misconduct for the
15 purposes of Division 2 of Part IV of the Police Regulation
Act 1958--see paragraph (j) of the definition of misconduct
in section 69 of that Act.".
(5) Section 90(2) of the Whistleblowers Protection
Act 2001 is repealed.
20 (6) For section 90(3) of the Whistleblowers
Protection Act 2001 substitute--
"(3) Any information, document or answer
furnished, produced or given in accordance
with a direction under subsection (1) is not
25 admissible in evidence before any court or
person acting judicially, except in--
(a) a proceeding for perjury; or
(b) a review under Division 1 of Part IV of
the Police Regulation Act 1958; or
561270B.I-10/9/2008 55 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 7--Consequential amendments to Other Acts
s. 38
(c) a review under Division 2 of Part V of
the Police Regulation Act 1958 in
relation to a decision to dismiss a
member under section 72 of that Act or
5 take other remedial action in relation to
a member under section 73 of that
Act.".
__________________
561270B.I-10/9/2008 56 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 8--Amendment of Major Crime (Investigative Powers) Act 2004
s. 39
PART 8--AMENDMENT OF MAJOR CRIME
(INVESTIGATIVE POWERS) ACT 2004
39 Major Crime (Investigative Powers) Act 2004 See:
Act No.
79/2004.
(1) In section 49(12) of the Major Crime Reprint No. 1
5 (Investigative Powers) Act 2004, for "42 months as at
16 February
after the day on which it comes into operation" 2006
substitute "on 1 January 2012". and
amending
(2) In section 50(2) of the Major Crime Act Nos
29/2006,
(Investigative Powers) Act 2004, for "42 months 48/2006,
10 after the day on which it comes into operation" 28/2007 and
4/2008.
substitute "on 1 January 2012". LawToday:
www.
legislation.
vic.gov.au
__________________
561270B.I-10/9/2008 57 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 9--Police Integrity
s. 40
PART 9--POLICE INTEGRITY
Division 1--Police Integrity Act 2008
See: 40 New sections 51A and 51B inserted in Police
Act No.
34/2008. Integrity Act 2008
LawToday:
5 www. After section 51 of the Police Integrity Act 2008
legislation.
vic.gov.au
insert--
"51A Director and staff may prosecute
(1) The Director or a member of staff of the
Office of Police Integrity authorised under
10 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
15 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
20 (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
25 commence criminal proceedings
against a person for an offence in
relation to any matter arising out of
an investigation; or
561270B.I-10/9/2008 58 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 9--Police Integrity
s. 41
(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
5 for any other offence.
51B Immunity
(1) The Director or a member of staff of the
Office of Police Integrity authorised under
section 51A(2) is not personally liable for
10 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
15 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
20 of the Office of Police Integrity authorised
under section 51A(2) attaches instead to the
State.".
41 Protection of persons, documents and things
(1) In section 104 of the Police Integrity Act 2008--
25 (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".
30 (2) Section 109(7) of the Police Integrity Act 2008 is
repealed.
561270B.I-10/9/2008 59 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 9--Police Integrity
s. 42
42 New section 109A inserted
After section 109 of the Police Integrity Act
2008 insert--
"109A Compellability of protected persons as
5 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
10 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
15 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
20 proceeding was commenced before, on or
after that commencement.
(4) In this section--
legal proceeding includes--
(a) a civil proceeding;
25 (b) a criminal proceeding;
(c) a proceeding before the Appeals
Board.".
43 Supreme Court--limitation of jurisdiction
At the end of section 130 of the Police Integrity
30 Act 2008 insert--
"(2) It is the intention of section 109, as it applies
on and after the commencement of
section 41 of the Police, Major Crime and
561270B.I-10/9/2008 60 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 9--Police Integrity
s. 44
Whistleblowers Legislation Amendment
Act 2008, to alter or vary section 85 of the
Constitution Act 1975.".
44 Consequential repeal
5 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
10 45 Protection 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";
15 (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.
20 46 New section 86KJA inserted
After section 86KJ of the Police Regulation Act
1958 insert--
"86KJA Compellability of protected persons as
witnesses
25 (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
30 under this Act.
561270B.I-10/9/2008 61 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 9--Police Integrity
s. 47
(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
5 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
10 after that commencement.
(4) In this section--
legal proceeding includes--
(a) a civil proceeding;
(b) a criminal proceeding;
15 (c) a proceeding before the Appeals
Board.".
47 New sections 86TB and 86TC inserted in Police
Regulation Act 1958
After section 86TA of the Police Regulation Act
20 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
25 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
30 Integrity to exercise powers under
subsection (1)--
561270B.I-10/9/2008 62 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 9--Police Integrity
s. 47
(a) in relation to a specified person or
specified investigation; or
(b) generally.
(3) Nothing in this section--
5 (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
10 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
15 Office of Police Integrity to bring
criminal proceedings against a person
for any other offence.
86TC Immunity
(1) The Director or a member of staff of the
20 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
25 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
30 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.".
561270B.I-10/9/2008 63 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 9--Police Integrity
s. 48
48 Supreme 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
5 applies on and after the commencement of
section 45 of the Police, Major Crime and
Whistleblowers Legislation Amendment
Act 2008, to alter or vary section 85 of the
Constitution Act 1975.".
__________________
561270B.I-10/9/2008 64 BILL LA INTRODUCTION 10/9/2008
Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 10--Whistleblowers Protection Act 2001
s. 49
PART 10--WHISTLEBLOWERS PROTECTION ACT 2001
49 New sections 61H and 61I inserted and 61J
substituted
For section 61J of the Whistleblowers Protection See:
Act No.
5 Act 2001 substitute-- 36/2001.
Reprint No. 1
"61H Contempt of Director as at
21 July 2005
(1) A person attending an investigation in and
amending
answer to a summons under section 17 of the Act Nos
Evidence Act 1958 is guilty of a contempt 18/2005,
24/2006,
10 of the Director if the person-- 48/2006,
28/2007 and
(a) fails without reasonable excuse to 34/2008.
produce any document or thing the LawToday:
www.
person is required by the summons to legislation.
produce; or vic.gov.au
15 (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
20 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.
25 (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
30 or attaching details of the alleged
contempt (certificate of charge); and
(b) issue a warrant to arrest the person
(arrest warrant).
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Part 10--Whistleblowers Protection Act 2001
s. 49
(3) An arrest warrant--
(a) may be directed to--
(i) a named member of the police
force; or
5 (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.
10 (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
15 (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
20 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.
25 (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
30 for the person to be provided with
accommodation and meals to a standard
comparable to that generally provided to
jurors kept together overnight.
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Part 10--Whistleblowers Protection Act 2001
s. 49
(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
5 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
10 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
15 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
20 (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
25 practicable; and
(ii) cause to be produced before the
bail justice the arrest warrant and
the certificate of charge for the
person; and
30 (iii) abide by the decision of the bail
justice in relation to the person.
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Part 10--Whistleblowers Protection Act 2001
s. 49
(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
5 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
10 (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.
15 61I No double jeopardy
If an act or omission constitutes both an
offence against this Act or the Evidence Act
1958 and a contempt of the Director, the
offender is liable to be proceeded against for
20 the offence or for contempt or both, but is
not liable to be punished more than once for
the same act or omission.
61J Sunset of contempt provisions
Sections 61H, 61I and this section are
25 repealed on the day that is the third
anniversary of the day on which section 49
of the Police, Major Crime and
Whistleblowers Legislation Amendment
Act 2008 comes into operation.".
__________________
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Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Part 11--Repeal of Amending Act
s. 50
PART 11--REPEAL OF AMENDING ACT
50 Repeal of Act
This Act is repealed on 1 December 2010.
Note
5 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).
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Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561270B.I-10/9/2008 70 BILL LA INTRODUCTION 10/9/2008
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