VICTORIAN INSPECTORATE BILL 2011 Explanatory Memoranda
VICTORIAN INSPECTORATE BILL 2011
Victorian Inspectorate Bill 2011
Introduction Print
EXPLANATORY MEMORANDUM
General
The main purpose of this Bill is to establish the Victorian Inspectorate to
oversee the Independent Broad-based Anti-corruption Commission (IBAC).
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill, which is to establish the Victorian
Inspectorate.
Clause 2 provides for the Bill to come into operation on a day or days to
be proclaimed, or if not proclaimed sooner, on 1 July 2012.
Clause 3 sets out the definitions of key words or terms used in the Bill.
Australian legal practitioner has the same meaning as it has in
the Legal Profession Act 2004;
Commissioner has the same meaning as in the Independent
Broad-based Anti-corruption Commission Act 2011;
Deputy Commissioner has the same meaning as in the
Independent Broad-based Anti-corruption Commission Act
2011;
IBAC has the same meaning as in the Independent Broad-based
Anti-corruption Commission Act 2011;
IBAC Committee means the Joint House Committee established
under section 5(fa) of the Parliamentary Committees Act 2003;
571188 1 BILL LA INTRODUCTION 25/10/2011
IBAC Officer has the same meaning as in the Independent
Broad-based Anti-corruption Commission Act 2011;
IBAC personnel means--
an IBAC Officer;
a person engaged by the IBAC under section 29(2) or 30
under the Independent Broad-based Anti-corruption
Commission Act 2011;
a person who is formerly an IBAC Officer or a
person engaged under the Independent Broad-based
Anti-corruption Commission Act 2011.
Inspector means the person appointed under clause 14;
Victorian Inspectorate means the Victorian Inspectorate
established under the clause 6;
Victorian Inspectorate Officer means--
the Inspector;
a member of staff of the Victorian Inspectorate;
a person engaged by the Victorian Inspectorate to
provide services, information or advice.
Clause 4 sets out the objects of the Act, which are to--
enhance the compliance of IBAC and IBAC personnel
with the Independent Broad-based Anti-corruption
Commission Act 2011 and other laws; and
assist in improving the capacity of IBAC and IBAC
personnel in the performance of their duties and
function and in the exercise of their powers.
Clause 5 provides that the Bill when passed will bind the Crown in all its
capacities.
PART 2--THE VICTORIAN INSPECTORATE
Clause 6 provides that the Victorian Inspectorate is established and that it
does not represent the Crown.
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Clause 7 provides that the Victorian Inspectorate is a body corporate that
has perpetual succession and an official seal and may do and
suffer all things a body corporate may do and suffer.
Clause 8 establishes that the Victorian Inspectorate consists of one
Inspector appointed by the Governor in Council in accordance
with clause 14. The effect of this is that the Victorian
Inspectorate is a legal entity which is constituted by the
Inspector, and the Victorian Inspectorate acts through the
Inspector.
Clause 9 Subclause (1) establishes that the Victorian Inspectorate has the
functions conferred on it by the Bill or any other Act.
Subclause (2) does not limit the generality of subclause (1), but
rather establishes the following functions through which the
Victorian Inspectorate may meet the objects of the Act--
monitor the compliance of IBAC and IBAC personnel
with the Independent Broad-based Anti-corruption
Commission Act 2011 and other laws;
assess the effectiveness and appropriateness of the
policies and procedures of IBAC;
receive complaints;
investigate and assess the conduct of IBAC and IBAC
personnel;
report on and make recommendations as a result of the
performance of the Victorian Inspectorate's functions.
Clause 10 establishes that the Victorian Inspectorate has the power to do all
things that are necessary or convenient to be done in order to
achieve the objects of the Bill and the performance of its duties
and functions.
Clause 11 Subclause (1) provides that the Victorian Inspectorate may by
instrument delegate to the Inspector any duty, function or power,
other than the power of delegation.
Subclause (2) protects the pension or other rights and privileges
of a former judge or Chief Magistrate to whom a duty, function
or power has been delegated.
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Clause 12 establishes that the Victorian Inspectorate is not subject to the
direction or control of the Minister in respect of the performance
of its duties and functions and the exercise of its powers.
This clause confirms the independence of the Victorian
Inspectorate from the Executive Government.
Clause 13 establishes that the Inspector is an independent officer of the
Parliament. Subclause (6) establishes that the Inspector has
complete discretion in the performance or exercise of his or her
functions or powers. Subclause (7) clarifies that the Inspector is
not subject to the direction or control of the Minister. This clause
is modelled on the independent officer of Parliament provisions
of the Constitution Act 1975, and confirms the Inspector's
independence from the Executive Government.
Clause 14 establishes the process for the Governor in Council to appoint an
Inspector.
Subclause (1) establishes that the Governor in Council, on the
recommendation of the Minister, may by instrument appoint an
eligible person to be the Inspector. This subclause is subject to
clause 15.
Subclause (2) provides that an eligible person for appointment is
one who has been, is or is qualified for appointment as, a judge of
the High Court, Federal Court, or the Supreme Court of Victoria
or another State or Territory; and is not a member of the
Parliament of Victoria, the Commonwealth or another State or
Territory; and is not and has not been the IBAC Commissioner,
Acting Commissioner, Deputy Commissioner or Acting Deputy
Commissioner.
Subclause (3) provides that a person holding a judicial office
immediately before being appointed to be the Inspector must
cease to hold that judicial office upon being appointed to be the
Inspector. This subclause is intended to ensure that the Inspector
does not hold a judicial position which would create an actual or
perceived conflict of interest with his or her role as the Inspector.
Clause 15 establishes a process whereby the IBAC Joint House Committee
may veto the proposed appointment of an Inspector.
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Subclause (1) requires the Minister to submit details of a
proposed recommendation as to the appointment of an Inspector
under clause 14 to the IBAC Committee, and allow it the
opportunity to veto the recommendation within the timeframe set
out in subclause (2), which is 30 days.
Subclause (3) holds that the IBAC Committee must notify the
Minister in writing of its decision within the period specified in
subclause (2).
Subclause (4) provides for a special process for the making of a
recommendation as to the first appointment of the Inspector
under clause 14, whereby the Premier is first required to consult
with the Leader of the Opposition. The requirement for
consultation does not require the Premier to obtain the approval
of the Leader of the Opposition.
Clause 16 sets out the duties, functions and powers of the Inspector.
It clarifies that the Inspector constitutes the Victorian
Inspectorate under clause 8, and states that the Inspector is
responsible for undertaking the strategic leadership of the
Victorian Inspectorate. The Inspector is also the public service
body head of the Victorian Inspectorate, and has the duties,
functions and powers delegated by the Victorian Inspectorate, or
conferred by this Bill or any other Act.
Clause 17 Subclauses (1) to (4) set out the terms and conditions of the
appointment of the Inspector. The Inspector will hold office for a
period not exceeding 5 years, and is eligible for re-appointment.
The instrument of appointment will govern the terms and
conditions of the appointment. The remuneration of the
Inspector cannot be reduced during his or her term unless he or
she consents to the reduction.
Subclauses (5) to (9) establish the Inspector's rights and
entitlements in relation to pensions and other matters arising out
of previous employment as a judge of the Supreme or County
Court, or the Chief Magistrate, or an officer within the meaning
of the State Superannuation Act 1988.
Subclauses (10) to (11) prohibit the Inspector from engaging in
any employment, business or community activity, or from
entering into a contract to provide services, that may create an
actual or perceived conflict of interest with his or her role.
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Subclause (12) requires the Inspector to seek the approval of the
Governor in Council to apply for or hold any professional, trade
or business licence (including a legal practising certificate under
the Legal Profession Act 2004), and to conduct any trade,
business or profession, or accept any other employment.
Subclause (13) establishes that the Public Administration Act
2004 does not apply to the Inspector in respect of that office.
The Public Administration Act 2004 only applies to the
Inspector in relation to his or her role as a public service
body Head under that Act, as explained below at clause 24.
This clause will ensure that the independence of the Inspector is
maintained, by exempting the role from provisions of that Act
which could compromise the Inspector's autonomy from the
Executive Government.
Clause 18 establishes the circumstances in which the Inspector ceases to
hold office. These are if he or she--
resigns by writing to the Governor in Council;
becomes an insolvent under administration;
is convicted or found guilty of an indictable offence;
nominates for election to Parliament;
is appointed to judicial office;
is appointed as the IBAC Commissioner, Acting
Commissioner, Deputy Commissioner or Acting Deputy
Commissioner;
becomes a represented person within the meaning of the
Guardianship and Administration Act 1986.
Subclause (2) provides that the Inspector ceases to hold office if
he or she is removed in accordance with clause 19.
Clause 19 establishes a process for suspension and removal from office of
the Inspector.
Subclause (1) holds that the Governor in Council may suspend
the Inspector from office on the grounds of misconduct, neglect
of duty, or inability to perform the duties of the office; or any
other ground on which the Governor in Council is satisfied the
Inspector is unfit to hold office.
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Subclause (2) requires the Minister to present to each House of
Parliament, within 7 sitting days of the suspension, a full
statement of the grounds of suspension. If both Houses of
Parliament, within a further 7 sitting days of that statement,
declare by resolution that the Inspector ought to be removed from
office, the Governor in Council must remove the Inspector.
Otherwise the Governor in Council must remove the suspension
and restore the Inspector to office.
Subclause (5) clarifies that the Inspector can only be removed
from office in accordance with this section.
Clause 20 enables the Inspector to declare himself or herself unable to act in
respect of a particular matter by reason of an actual or perceived
conflict of interest.
Clause 21 establishes a process by which the Governor in Council may, on
the recommendation of the Minister, appoint a person to act in
the office of Inspector upon a vacancy or absence from duty.
An acting appointment under this clause may not exceed
6 months. This will guard against the clause being used as a
de facto appointment process for an Inspector.
Subclause (4) requires a vacancy in the office of the Inspector to
be filled by a person appointed in accordance with clause 14 no
later than 6 months after the vacancy occurred.
An acting Inspector may be removed at any time by the Governor
in Council.
Clause 22 requires an Inspector or a person acting in the office of the
Inspector, before taking office, to have taken an oath or made an
affirmation to the Speaker of the Legislative Assembly that he or
she--
will faithfully and impartially perform the duties and
functions and exercise the powers of the office; and
will not disclose, except as authorised by law, any
information received while in office.
The requirement under clause 22 is that the oath or affirmation
referred to therein must have been taken, that is, it is sufficient
that such an oath or affirmation be made once, rather than each
time that person is appointed to such a position.
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Clause 23 Subclause (1) establishes that the Inspector may delegate to a
member of staff or consultant any of his or her duties, functions
or powers, except--
the power of delegation;
the duty or power to make a report under clause 36
or 38.
Subclause (2) provides that if the Inspector has declared himself
or herself unable to act in a particular matter, he or she may
delegate the above exceptional powers to another person
qualified to be an Inspector under clause 14. The pension and
other rights and privileges that this person has as a former judge
or former Chief Magistrate will not be affected by this
delegation.
Clause 24 enables the Victorian Inspectorate to employ staff as necessary,
and establishes that those staff may be employed under the
Public Administration Act 2004. The Victorian Inspectorate
may also enter into agreements or arrangements for the use of the
services of any staff of a Department, statutory authority or other
public body.
Clause 25 enables the Victorian Inspectorate to engage persons with
suitable qualifications and experience as consultants, including
an Australian legal practitioner.
Clause 26 requires that a person employed under clause 24, and enables the
Victorian Inspectorate to require for a person engaged under
clause 24(2) or 25, to take an oath or affirmation, administered by
the Inspector, that he or she--
will faithfully and impartially perform their duties and
functions and exercise their powers; and
will not disclose, except as authorised by law, any
information received in the performance of their duties
and functions or the exercise of their powers.
Clause 27 requires that a person employed or engaged under clause 24 must
not publicly comment on the administration of this Bill or the
performance of functions or exercise of powers by the Victorian
Inspectorate. It also provides that such a person must not
disclose any information obtained in the course of their
engagement or employment unless authorised.
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Clause 28 requires Victorian Inspectorate Officers to ensure that any actual
or perceived conflicts of interest are avoided in the performance
of their duties and functions and in the exercise of their powers as
Victorian Inspectorate Officers.
PART 3--INVESTIGATIONS
Clause 29 Subclause (1) enables a person to make a complaint to the
Victorian Inspectorate about the conduct of IBAC or IBAC
personnel in respect of the performance or exercise, or failure to
perform or exercise, or purported performance or exercise, of the
duties, functions or powers of IBAC or IBAC personnel.
Subclause (2), without limiting the generality of subclause (1),
specifies that a complaint may be made on the basis that the
conduct was--
contrary to law; or
unreasonable, unjust, oppressive or improperly
discriminatory; or
based on improper motives; or
an abuse of power; or
otherwise improper.
Clause 30 Subclause (1) enables the Victorian Inspectorate to conduct an
investigation, at its discretion, following the receipt of a
complaint to assess the conduct as specified in the complaint or
any other relevant conduct.
Subclause (2) provides that if the Victorian Inspectorate decides
to investigate a complaint, the Victorian Inspectorate must notify
IBAC in writing unless this would prejudice the investigation of
the complaint.
Clause 31 enables the Victorian Inspectorate to conduct an own motion
investigation, at its discretion, in the course of performing its
functions. This investigation can be undertaken into the conduct
of IBAC or IBAC personnel in respect of the performance or
exercise, or failure to perform or exercise, or purported
performance or exercise, of the duties, functions or powers of
IBAC or IBAC personnel.
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Clause 32 Subclause (1) provides powers to the Victorian Inspectorate in
the conduct of an investigation to--
investigate any aspect of IBAC's operations or any
conduct of IBAC personnel;
have full and free access to the records of IBAC;
require information from IBAC personnel; and
require attendance of IBAC personnel to answer
questions and produce documents.
Subclauses (2) to (5) enable the Victorian Inspectorate to
commence or continue an investigation despite investigation by
IBAC or proceedings in a court or tribunal relating to the same
matter. The Victorian Inspectorate must take all reasonable steps
to ensure that the conduct of its investigation does not prejudice
court or tribunal proceedings of which it is aware.
Clause 33 establishes that the IBAC Commissioner must provide any
assistance, and ensure that IBAC personnel give any assistance,
to enable the Victorian Inspectorate to carry out an investigation
under Part 3 of this Bill.
PART 4--RECOMMENDATIONS AND REPORTS
Clause 34 Subclauses (1) to (2) enable the Victorian Inspectorate to make
recommendations at any time to IBAC in relation to any action
that the Victorian Inspectorate considers should be taken.
This may include action--
to prevent specified conduct from continuing in the
future; or
to remedy any harm or loss arising from the conduct of
IBAC or any IBAC personnel.
Subclauses (3) to (4) provide that Victorian Inspectorate
recommendations to IBAC that are not contained in a report must
be made in private, but that this requirement does not prevent the
Victorian Inspectorate subsequently making these
recommendations public if IBAC fails to implement them.
Subclauses (5) to (6) provide that Victorian Inspectorate may
require IBAC to give a report to the Victorian Inspectorate,
within a reasonable time, stating whether or not IBAC has taken
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or intends to take the recommended action, and if not, to provide
reasons. IBAC must comply with such a request.
Clause 35 Subclauses (1) to (2) enable the Victorian Inspectorate to make
recommendations at any time to IBAC, in private, in relation to
the taking of disciplinary action against any IBAC personnel
other than the Commissioner. This does not prevent the
Victorian Inspectorate subsequently making these
recommendations public if IBAC fails to implement them.
Subclause (3) enables the Victorian Inspectorate to make
recommendations to Victoria Police, the Director of Public
Prosecutions, the Australian Federal Police and the Auditor-
General in relation to any further investigatory or enforcement
action that the Victorian Inspectorate considers should be taken.
Clause 36 Subclause (1) provides that the Victorian Inspectorate may at any
time report to Parliament on any matter relating to the
performance of its duties and functions. This clause enables the
Victorian Inspectorate to make special reports, separate from its
annual report under clause 38.
Subclause (2) provides a protection for IBAC and IBAC
personnel to allow an opportunity to respond to adverse findings
made by the Victorian Inspectorate and for this defence to be set
out in a report.
Subclauses (3) to (5) prevent the Victorian Inspectorate from
including in reports any information that could prejudice a
criminal investigation or criminal proceedings or an IBAC
investigation. In addition the Victorian Inspectorate must not
include a statement as to a finding or opinion that a person should
be prosecuted for, or has committed, is committing or is about to
commit, a criminal or disciplinary offence.
Subclauses (6) to (10) outline the processes for the transmission
of any such report and for it to be laid before each House of
Parliament. Subclause (7) provides that if neither House of
Parliament is sitting on the day on which it transmits a report, the
Victorian Inspectorate must give one day's notice to the clerk of
each House, and publish the report on the Victorian Inspectorate's
Internet website. A report given under this subclause is taken to
be published under the authority of Parliament. The publication
of a report by the Victorian Inspectorate on its Internet website in
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accordance with this subclause carries absolute Parliamentary
privilege.
Clause 37 enables the Victorian Inspectorate to deal with the outcome of an
investigation as follows--
make a recommendation to the IBAC in accordance
with clauses 34 or 35; or
make a recommendation to Victoria Police, the Director
of Public Prosecutions, the Australian Federal Police or
the Auditor-General in accordance with clause 35;
transmit a special report under clause 36;
do any combination of the above; or
determine to make no finding or take no action.
Clause 38 Subclause (1) provides that the Victorian Inspectorate in its
annual report must include--
prescribed information relating to the performance of its
duties and functions;
a description of its activities in relation to the
performance of its duties and functions;
details of IBAC's compliance with this Bill and the
Independent Broad-based Anti-corruption
Commission Act 2011;
details of the comprehensiveness and adequacy of the
reports made to the Victorian Inspectorate by IBAC
under this Bill; and
details of the extent to which action recommended by
the Victorian Inspectorate to be taken by IBAC has been
taken.
Subclause (2) provides that if the Victorian Inspectorate intends
to include in its annual report a comment or opinion which is
adverse to the IBAC or an IBAC personnel, the Victorian
Inspectorate must provide them with an opportunity to respond to
adverse material and for their defence to be set out in the annual
report.
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Subclauses (3) to (5) prevent the Victorian Inspectorate from
including in reports any information that could prejudice a
criminal investigation or criminal proceedings or an IBAC
investigation. In addition the Victorian Inspectorate must not
include a statement as to a finding or opinion that a person is
guilty of, should be prosecuted for, or has committed, is
committing or is about to commit, a criminal or disciplinary
offence.
PART 5--GENERAL
Division 1--Miscellaneous
Clause 39 provides an immunity for the Victorian Inspectorate and
Victorian Inspectorate Officers for the good faith performance of
a function or exercise of a power under this Bill, or the
reasonable belief that an act or omission was the good faith
performance of a function or exercise of a power under this Bill.
Any liability attaches to the State rather than the Victorian
Inspectorate and Victorian Inspectorate Officers in these
circumstances.
Clause 40 provides that the Freedom of Information Act 1982 does not
apply to a document which discloses information that relates to--
a complaint;
an investigation;
a recommendation made by the Victorian Inspectorate;
or
a report, including a progress report, on an investigation
under this Bill. The exemption relates to a document in the
possession of the Victorian Inspectorate, a Victorian Inspectorate
Officer, the IBAC or any other person to whom the Victorian
Inspectorate may make a recommendation under the Bill.
Clause 41 enables the Governor in Council to make regulations for or with
respect to any matter or thing required or permitted by the Bill to
be prescribed or necessary to be prescribed to give effect to the
Bill.
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Clause 42 provides that, without limiting the generality of clause 41, the
regulations may prescribe--
security checks for Victorian Inspectorate Officers;
requirements relating to the issue of identity cards for
Victorian Inspectorate Officers and the use of the
identity cards;
requirements for the disclosure and reporting of
pecuniary interests by Victorian Inspectorate Officers,
including providing for the manner of disclosure
(whether by statutory declaration or otherwise) and the
compilation, maintenance and publication of registers of
pecuniary interests;
the information to be included by the Victorian
Inspectorate in its annual report.
The clause will ensure that regulations may be made to prescribe
prerequisites, procedures and other matters to ensure the probity
of persons employed or engaged by the Victorian Inspectorate,
and to ensure that such persons do not have an actual or
perceived conflict of interest between their public duty and their
private pecuniary interests.
Division 2--Amendments to other Acts
Clause 43 amends the Independent Broad-based Anti-corruption
Commission Act 2011 to exempt the Victorian Inspectorate from
IBAC's jurisdiction.
Clause 44 Subclause (1) amends the Parliamentary Committees Act 2003
to include the following definitions--
"Inspector has the same meaning as it has in section 3 of the
Victorian Inspectorate Act 2011;
Victorian Inspectorate means the Victorian Inspectorate
established under the Victorian Inspectorate Act 2011;"
Subclause (2) amends the Parliamentary Committees Act 2003
to provide further functions for the IBAC Committee--
to monitor and review the performance of the duties and
functions of the Victorian Inspectorate;
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to report to both Houses of the Parliament on any matter
connected with the performance of the duties and
functions of the Victorian Inspectorate that require the
attention of the Parliament;
to examine any reports made by the Victorian
Inspectorate;
to consider any proposed appointment of an Inspector
and to exercise a power of veto in accordance with the
Bill.
Subclause (3) amends the Parliamentary Committees Act 2003
to restrict the IBAC Committee from--
investigating a matter relating to particular conduct the
subject of a report made by the Victorian Inspectorate;
reviewing any decision to investigate a complaint under
this Bill;
review any findings, recommendations, determinations
or other decisions of the Victorian Inspectorate in
relation to a complaint or investigation under this Bill;
disclosing any information relating to the performance
of a function or the exercise of a power by the Victorian
Inspectorate which may prejudice any criminal
investigation or proceedings, or IBAC investigation, or
contravene any secrecy provision in any relevant Act.
Clause 45 amends the Juries Act 2000 to establish that the Inspector, and
any other Victorian Inspectorate Officers, are ineligible for jury
service.
Clause 46 amends the Ombudsman Act 1973 to provide that the
Ombudsman has no jurisdiction in relation to the Inspector or a
Victorian Inspectorate Officer.
Clause 47 amends the Public Administration Act 2004 to hold that--
the Victorian Inspectorate is a special body for the
purposes of that Act;
the Inspector is a public service body Head for the
purposes of that Act in relation to employees of the
Victorian Inspectorate;
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the Victorian Inspectorate cannot be subject to a special
inquiry under section 52 of that Act.
This clause will mean that Victorian Inspectorate Officers will
not be subject to usual requirements for the public sector under
this Act, including the requirement to follow Ministerial
directions. Designation as a special body and exemption from
the special inquiry provisions will assist in maintaining the
independence the Victorian Inspectorate from the Executive
Government.
Clause 48 amends the Whistleblowers Protection Act 2001 to establish
that--
the Victorian Inspectorate is not a public body for the
purposes of that Act; and
Victorian Inspectorate Officers are not public officers
for the purposes of that Act;
so that the Victorian Inspectorate and its Officers are not subject
to the Whistleblowers Protection Act 2001.
Clause 49 repeals Division 2 of the Bill as of 1 July 2013.
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