INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION AMENDMENT (INVESTIGATIVE FUNCTIONS) ACT 2012 (NO. 13 OF 2012) - SECT 4 New sections 3A to 3C inserted

INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION AMENDMENT (INVESTIGATIVE FUNCTIONS) ACT 2012 (NO. 13 OF 2012) - SECT 4

After section 3 of the Independent Broad-based Anti-corruption Commission Act 2011 insert —

        " 3A     Corrupt conduct

    (1)     For the purposes of this Act, "corrupt conduct" means conduct—

        (a)     of any person that adversely affects the honest performance by a public officer or public body of his or her or its functions as a public officer or public body; or

        (b)     of a public officer or public body that constitutes or involves the dishonest performance of his or her or its functions as a public officer or public body; or

        (c)     of a public officer or public body that constitutes or involves knowingly or recklessly breaching public trust; or

        (d)     of a public officer or a public body that involves the misuse of information or material acquired in the course of the performance of his or her or its functions as a public officer or public body, whether or not for the benefit of the public officer or public body or any other person; or

        (e)     that could constitute a conspiracy or an attempt to engage in any conduct referred to in paragraph (a), (b), (c) or (d)—

being conduct that would, if the facts were found proved beyond reasonable doubt at a trial, constitute a relevant offence.

    (2)     This Act does not apply to any conduct of any person that can be considered by the Court of Disputed Returns in proceedings in relation to a petition under Part 8 of the Electoral Act 2002 .

        3B     Meaning of police personnel conduct , police personnel conduct complaint and police personnel misconduct

For the purposes of this Act—

"police personnel conduct", in relation to a public officer who is a member of the police force, means—

        (a)     an act or decision or the failure or refusal by the member of the police force to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the member of the police force has as or, by virtue of being, a member of the police force; or

        (b)     conduct which constitutes an offence punishable by imprisonment; or

        (c)     conduct which is likely to bring the police force into disrepute or diminish public confidence in it; or

        (d)     disgraceful or improper conduct (whether in the member of the police force's official capacity or otherwise);

"police personnel conduct", in relation to a public officer who is a member of police personnel other than a member of the police force, means—

        (a)     an act or decision or the failure or refusal by the member of police personnel to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the member of police personnel has as or, by virtue of being, a member of police personnel; or

        (b)     conduct which is likely to bring police personnel into disrepute or diminish public confidence in police personnel;

"police personnel conduct complaint" means—

        (a)     a complaint made to the IBAC under section 86L of the Police Regulation Act 1958 in relation to the conduct of a member of the police force; or

        (b)     a complaint made to the IBAC in relation to the police personnel conduct of a member of police personnel other than a member of the police force;

"police personnel misconduct", in relation to a public officer who is a member of the police force, means—

        (a)     conduct which constitutes an offence punishable by imprisonment; or

        (b)     conduct which is likely to bring the police force into disrepute or diminish public confidence in it; or

        (c)     disgraceful or improper conduct (whether in the member of the police force's official capacity or otherwise);

"police personnel misconduct", in relation to a public officer who is a member of police personnel other than a member of the police force, means conduct which is likely to bring police personnel into disrepute or diminish public confidence in police personnel.

        3C     Definitions of public body , public officer and public sector

    (1)     For the purposes of this Act—

"public body" means, subject to this section—

        (a)     a public sector body within the meaning of section 4(1) of the Public Administration Act 2004 ;

        (b)     a body, whether corporate or unincorporated, established by or under an Act for a public purpose, including a university;

        (c)     the Electoral Boundaries Commission constituted under the Electoral Boundaries Commission Act 1982 ;

        (d)     a Council;

        (e)     a body that is performing a public function on behalf of the State or a public body or public officer (whether under contract or otherwise);

        (f)     any other body or entity prescribed for the purposes of this definition;

"public officer" means, subject to this section—

        (a)     a person employed in any capacity or holding any office in the public sector within the meaning of section 4(1) of the Public Administration Act 2004 ;

        (b)     a person to whom a provision of the Public Administration Act 2004 applies as a result of the application of Part 7 of that Act;

        (c)     an ongoing employee or temporary employee in the teaching service under the Education and Training Reform Act 2006 ;

        (d)     a judicial employee employed under Division 3 of Part 6 of the Public Administration Act 2004 ;

        (e)     a Ministerial officer employed under Division 1 of Part 6 of the Public Administration Act 2004 ;

        (f)     an electorate officer within the meaning of the Parliamentary Administration Act 2005 ;

        (g)     a Parliamentary adviser employed under Division 2 of Part 6 of the Public Administration Act 2004 ;

        (h)     a Parliamentary officer within the meaning of the Parliamentary Administration Act 2005 ;

              (i)     a member of police personnel;

        (j)     a responsible Minister of the Crown;

        (k)     a member of the Legislative Assembly or the Legislative Council;

        (l)     a Councillor within the meaning of section 3(1) of the Local Government Act 1989 ;

        (m)     a member of Council staff employed under the Local Government Act 1989 ;

        (n)     a judge, a magistrate, a coroner or a member of VCAT;

        (o)     an associate judge or a judicial registrar;

        (p)     a Crown Prosecutor;

        (q)     the Chief Crown Prosecutor;

        (r)     the Director of Public Prosecutions;

        (s)     the Governor, the Lieutenant-Governor or the Administrator of the State;

        (t)     the Auditor-General;

        (u)     the Ombudsman;

              (v)     the Electoral Commissioner;

        (w)     the holder of any other statutory office or any other prerogative office;

              (x)     any other person in the service of the Crown or a public body;

        (y)     a person that is performing a public function on behalf of the State or a public officer or public body (whether under contract or otherwise);

        (z)     a person who holds, or a person who is a member of a class of persons who hold, an office prescribed to be a public office for the purposes of this definition;

        (za)     an employee of, or any person otherwise engaged by, or acting on behalf of, or acting as a deputy or delegate of, a public body or a public officer;

"public sector" means the sector comprising all public bodies and public officers.

    (2)     The following are not a public body or a public officer for the purposes of this Act—

        (a)     the IBAC;

        (b)     an IBAC Officer;

        (c)     a Public Interest Monitor;

        (d)     the Office of the Special Investigations Monitor;

        (e)     the Special Investigations Monitor appointed under section 5 of the Major Crime (Special Investigations Monitor) Act 2004 ;

        (f)     the Victorian Inspectorate;

        (g)     a Victorian Inspectorate Officer within the meaning of section 3 of the Victorian Inspectorate Act 2011 ;

        (h)     a court.

    (3)     In determining if a function is a public function the factors that may be taken into account include—

        (a)     that the function is conferred on the body or person by or under a statutory provision;

        (b)     that the function is of a regulatory nature;

        (c)     that the body that performs the function is a company (within the meaning of the Corporations Act) all of the shares in which are held by or on behalf of the State.

    (4)     To avoid doubt—

        (a)     the factors listed in subsection (3) are not exhaustive of the factors that may be taken into account in determining if a function is a public function; and

        (b)     the fact that one or more of the factors set out in subsection (3) are present in relation to a function does not necessarily result in the function being a public function.

    (5)     The fact that a body or person receives public funds does not of itself make that body or person a public body or public officer for the purposes of this Act.".