PROTECTED DISCLOSURE ACT 2012 (NO. 85 OF 2012) - SECT 133 New Part IVB inserted
PROTECTED DISCLOSURE ACT 2012 (NO. 85 OF 2012) - SECT 133
New Part IVB insertedAfter Part IVA of the Police Regulation Act 1958 insert —
" PART IVB—INVESTIGATION OF PROTECTED DISCLOSURE COMPLAINTS
Division 1—Preliminary
86W Definitions
In this Part—
police force has the meaning given in section 3 of the Protected Disclosure Act 2012 ;
police personnel has the meaning given in section 3 of the Protected Disclosure Act 2012 .
Division 2—Investigations
86X Duty to investigate
The Chief Commissioner must investigate, in accordance with this Part, every protected disclosure complaint that the IBAC has referred to the Chief Commissioner under Division 4 of Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011 .
86Y Power to require answers etc. of specified members of police personnel in certain investigations
(1) For the purposes of an investigation of a protected disclosure complaint relating to a member of the police force, the Chief Commissioner may direct a member of the police force to—
(a) give the Chief Commissioner any relevant information; or
(b) produce any relevant document to the Chief Commissioner; or
(c) answer any relevant question.
Note
Failure to comply with a direction of the Chief Commissioner under this subsection is a breach of discipline. See section 69(1)(bba).
(2) Before directing a member of the police force under subsection (1), the Chief Commissioner must—
(a) advise the member that additional obligations under the Protected Disclosure Act 2012 relating to confidentiality may apply to the member; and
(b) inform the member of the nature of those obligations.
(3) Any information, document or answer given or produced in accordance with a direction under subsection (1) is not admissible in evidence before any court or person acting judicially, except in proceedings for—
(a) perjury or giving false information; or
(b) a breach of discipline by a member of the police force under section 69 ; or
(c) a failure to comply with a direction of the Chief Commissioner; or
(d) review proceedings under Division 1 of Part IV.
(4) To avoid doubt, nothing in this section authorises the giving of a direction to the Chief Commissioner.
86Z Person who made disclosure may request information about investigation
(1) During an investigation under this Part, the person who made the protected disclosure complaint may request information about that investigation from the Chief Commissioner.
(2) Subject to section 86ZE, on receiving a request under subsection (1), the Chief Commissioner may give the person the requested information.
Division 3—Action on investigation
86ZA Chief Commissioner must take action
(1) If, on completing an investigation under this Part, the Chief Commissioner finds that the conduct that was the subject of the investigation has occurred, the Chief Commissioner—
(a) must take all reasonable steps to prevent the conduct from continuing or occurring in the future; and
(b) may take action to remedy any harm or loss arising from the conduct.
(2) The steps to be taken under subsection (1)(a) may include the bringing of disciplinary proceedings against the person responsible for the conduct that was the subject of the investigation.
86ZB Chief Commissioner must report to the IBAC and may give Premier and Minister information
(1) Subject to this section, on completing an investigation under this Part, the Chief Commissioner—
(a) must report to the IBAC, in writing—
(i) the findings of the investigation; and
(ii) the steps (if any) taken or proposed to be taken under section 86ZA(1)(a); and
(b) may, if he or she considers it necessary to do so, give the Premier or the Minister information, in writing, about a matter relating to or arising out of the investigation.
(2) The Chief Commissioner must not give the Premier or the Minister information under subsection (1)(b)—
(a) that the Chief Commissioner considers would cause unreasonable damage to a person's reputation; or
(b) that is likely to lead to the identification of a person who has made an assessable disclosure.
(3) However, the Chief Commissioner may give the Premier or the Minister information under subsection (1)(b) that is information to which section 53(2)(a) , (c) or (d) of the Protected Disclosure Act 2012 applies.
(4) The Chief Commissioner must notify the IBAC, in writing, of any information given to the Premier or the Minister under subsection (1)(b).
86ZC Premier and Minister may disclose information for purpose of obtaining advice
The Premier or Minister may disclose any information given to him or her under section 86ZB(1)(b) for the purpose of obtaining advice on the matter or matters to which the information relates.
86ZD Chief Commissioner must inform person who made disclosure of outcome of investigation
Subject to section 86ZE, on completing an investigation under this Part, the Chief Commissioner must inform the person who made the protected disclosure complaint of the outcome of the investigation.
86ZE Chief Commissioner must not disclose information in certain cases
The Chief Commissioner must not disclose any information under section 86Z or 86ZD if the Chief Commissioner considers that disclosure of the information would—
(a) not be in the public interest or in the interests of justice; or
(b) put a person's safety at risk; or
(c) cause unreasonable damage to a person's reputation; or
(d) prejudice—
(i) an investigation under this Part; or
(ii) an investigation under the Independent Broad-based Anti-corruption Commission Act 2011 ; or
(iii) an investigation by the police force; or
(e) be likely to lead to the disclosure of any secret investigative method used by the Chief Commissioner or other members of police personnel; or
(f) otherwise contravene any applicable statutory secrecy obligations; or
(g) involve the unreasonable disclosure of information relating to the personal affairs of any person.
Division 4—Disclosure of information
86ZF Definitions
(1) In this Division—
"applicable law" means—
(a) the Protected Disclosure Act 2012 ; or
(b) a provision of another Act that confers a function or power or imposes a duty on the Chief Commissioner in relation to a protected disclosure complaint;
"Australian legal practitioner" has the same meaning as it has in the Legal Profession Act 2004 ;
domestic partner has the meaning given in section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011 ;
"investigating entity" means—
(a) the IBAC;
(b) the Ombudsman;
(c) the Victorian Inspectorate;
"investigation request" means a request from the Chief Commissioner for a person to give any information, produce any document or thing, answer any question, or otherwise participate in an investigation under this Part;
law enforcement agency has the meaning given in section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011 but does not include the Chief Commissioner;
prosecutorial body has the meaning given in section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011 ;
"restricted matter" means—
(a) any information given to the Chief Commissioner under a direction under section 86Y or in response to an investigation request; or
(b) the contents of any document, or a description of any thing, produced to the Chief Commissioner under a direction under section 86Y or in response to an investigation request; or
(c) the existence of, or any information about, a direction under section 86Y or an investigation request; or
(d) the subject matter of a protected disclosure complaint being investigated under this Part; or
(e) any information that could enable any of the following persons to be identified or located—
(i) a person who has been, or is proposed to be, interviewed by, or has produced, or may produce, any document or thing to, the Chief Commissioner under this Part;
(ii) a person who has otherwise participated, or will participate, in an investigation under this Part; or
(f) the fact that a person—
(i) has been, or is proposed to be, interviewed by, or has produced, or may produce, any document or thing to, the Chief Commissioner under this Part; or
(ii) has otherwise participated, or will participate, in an investigation under this Part;
spouse has the meaning given in section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011 .
(2) For the purposes of this Division, a reference to the Chief Commissioner in the definition of restricted matter is to be read as including a reference to a member of police personnel acting on behalf of the Chief Commissioner under this Part.
86ZG Disclosure of information by the Chief Commissioner and other police personnel
(1) A person who—
(a) is or was a member of police personnel; and
(b) acquires or acquired information by reason of, or in the course of, the performance of duties or functions or the exercise of powers under this Part—
must not directly or indirectly disclose that information.
Penalty: 120 penalty units or imprisonment for 12 months or
both.
s. 133
Note
The person may be subject to further confidentiality obligations under Part 7 of the Protected Disclosure Act 2012 .
(2) Subsection (1) does not apply to a disclosure of information—
(a) made for the purpose of performing duties or functions or exercising powers under this Part or an applicable law; or
(b) that is otherwise authorised or required to be made by or under this Part or an applicable law; or
(c) made for the purposes of—
(i) proceedings for an offence against this Part or the Protected Disclosure Act 2012 ; or
(ii) a disciplinary process or action instituted in respect of conduct that could also constitute an offence against this Part or the Protected Disclosure Act 2012 ; or
(iii) proceedings for an offence or a disciplinary process or action instituted as a result of an investigation under this Part; or
(d) made by—
(i) the Chief Commissioner in the circumstances provided under subsection (3); or
(ii) a member of police personnel under the authority of the Chief Commissioner in the circumstances provided under subsection (3).
(3) Subject to subsection (4), if the Chief Commissioner considers it appropriate, he or she may disclose or authorise the disclosure of any information acquired by a member of police personnel by reason of, or in the course of, the performance of duties or functions or the exercise of powers under this Part to—
(a) an investigating entity; or
(b) a law enforcement agency; or
(c) a prosecutorial body.
(4) The Chief Commissioner may only disclose or authorise a disclosure of information under subsection (3) if he or she considers that the information is relevant to the performance of a duty or function or the exercise of a power by the investigating entity, law enforcement agency or prosecutorial body to which the information is proposed to be disclosed.
(5) Subsection (3) applies subject to any restriction on the provision or disclosure of information under this Act or any other Act (including any Act of the Commonwealth).
(6) Nothing in this section affects the operation of section 86Y.
86ZH Disclosure of restricted matter prohibited
(1) A person must not disclose a restricted matter.
Penalty: 120 penalty units or imprisonment for 12 months or both.
Note
See also Part 7 of the Protected Disclosure Act 2012 which imposes additional obligations in relation to confidentiality.
(2) Subsection (1) does not apply to the disclosure of a restricted matter—
(a) by the person in accordance with an authorisation under section 86ZI; or
(b) for the purpose of obtaining legal advice or representation in relation to—
(i) a direction given to the person under section 86Y; or
(ii) an investigation request made to the person; or
(iii) the rights, liabilities, obligations and privileges of the person under this Part or the Protected Disclosure Act 2012 ; or
(c) by an Australian legal practitioner to whom a restricted matter has been disclosed in the circumstances specified paragraph (b), for the purpose of complying with a legal duty of disclosure or a professional obligation arising from his or her professional relationship with his or her client; or
(d) by the person to his or her spouse or domestic partner if the restricted matter disclosed is the fact that the person—
(i) has been, or is proposed to be, interviewed by, or has produced, or may produce, any document or thing to, the Chief Commissioner under this Part; or
(ii) has otherwise participated, or will participate, in an investigation under this Part; or
(e) by the person to his or her employer or manager or both in the circumstances specified under subsection (3); or
(f) to the IBAC for the purpose of making a complaint under the Independent Broad-based Anti-corruption Commission Act 2011 about the conduct of a member of police personnel in the course of the performance of duties or functions or the exercise of powers under this Part or an applicable law; or
(g) to an interpreter, for the purpose of enabling a person who does not have a sufficient knowledge of the English language to comply with this Part; or
(h) to a parent or guardian of a person or to an independent person, for the purpose of enabling a person who is under the age of 18 years to comply with this Part; or
(i) to an independent person, for the purpose of enabling a person who is illiterate or has a mental or physical impairment that prevents the person from understanding an obligation imposed under this Part to comply with this Part; or
(j) that is otherwise authorised or required by or under—
(i) this Part; or
(ii) the Protected Disclosure Act 2012 ; or
(iii) the Independent Broad-based Anti-corruption Commission Act 2011 ; or
(iv) the Victorian Inspectorate Act 2011 ; or
(v) the Ombudsman Act 1973 .
(3) For the purposes of subsection (2)(e), the specified circumstances are—
(a) the restricted matter is the fact that the person—
(i) has been, or is proposed to be, interviewed by, or has produced, or may produce, any document or thing to, the Chief Commissioner under this Part; or
(ii) has otherwise participated, or will participate, in an investigation under this Part; and
(b) the disclosure is for the purpose of enabling the person to take the appropriate leave from his or her employment in order to—
(i) be interviewed by, or produce any document or thing to, the Chief Commissioner under this Part; or
(ii) otherwise participate in an investigation under this Part.
(4) Nothing in this section affects the operation of section 86Y.
86ZI Chief Commissioner may authorise disclosure of restricted matter
(1) Subject to this section, the Chief Commissioner may authorise a person to disclose a restricted matter to a person specified in the authorisation.
(2) The Chief Commissioner must not authorise a person to disclose a restricted matter under subsection (1) if—
(a) the Chief Commissioner considers that the disclosure of the restricted matter would be likely to prejudice—
(i) an investigation under this Part; or
(ii) the safety or reputation of any person; or
(iii) the fair trial of a person who has been charged with an offence; or
(b) the restricted matter is or contains information that is likely to lead to the identification of a person who has made an assessable disclosure.
(3) However, the Chief Commissioner may authorise a person to disclose a restricted matter under subsection (1) that is or contains information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.
(4) An authorisation under subsection (1) must be in writing.
Division 5—Investigation procedures
86ZJ Chief Commissioner must establish investigation procedures
(1) The Chief Commissioner must establish procedures for or with respect to the investigation of protected disclosure complaints under this Part.
(2) Without limiting subsection (1), the procedures referred to in that subsection must provide for the following—
(a) information about who may perform a duty or function or exercise a power of the Chief Commissioner under this Part or an applicable law and how they may be authorised do so; and
(b) how investigations under this Part will be conducted, including explaining—
(i) how procedural fairness will be accorded under Divisions 2 and 3; and
(ii) how arrangements for legal representation and other support and assistance for witnesses will be managed.
(3) The Chief Commissioner must establish the procedures referred to in subsection (1) as soon as practicable after commencement of the Protected Disclosure Act 2012 .
(4) The procedures referred to in subsection (1) must be consistent with—
(a) the Protected Disclosure Act 2012 ; and
(b) the guidelines in force for the time being under section 57 of that Act.
(5) The Chief Commissioner must ensure that the procedures referred to in subsection (1) are readily available to the public and to each member of police personnel.
86ZK IBAC may review investigation procedures
(1) The IBAC may review the procedures established under section 86ZJ, or the implementation of those procedures, at any time to ensure that the procedures are, or their implementation is, consistent with—
(a) the Protected Disclosure Act 2012 ; and
(b) the guidelines in force for the time being under section 57 of that Act.
(2) The IBAC may make any recommendation to the Chief Commissioner relating to the procedures or the implementation of the procedures that the IBAC thinks fit arising from a review under this section.
86ZL Chief Commissioner must adopt recommendation or give the IBAC reasons for not doing so
(1) On receiving a recommendation under section 86ZK(2), the Chief Commissioner must—
(a) adopt the recommendation; or
(b) report to the IBAC, in writing, stating his or her reasons for not adopting the recommendation.
(2) The IBAC may send a copy of a recommendation under section 86ZK(2) to the relevant Minister if—
(a) it appears to the IBAC that insufficient steps have been taken by the Chief Commissioner to adopt a recommendation under subsection (1)(a) within a reasonable time after the making of the recommendation; or
(b) the IBAC is not satisfied with any of the reasons given by the Chief Commissioner under subsection (1)(b).
Division 6—Other matters
86ZM Chief Commissioner may request the IBAC to withdraw protected disclosure complaint
The Chief Commissioner may request the IBAC to withdraw the referral of a protected disclosure complaint under section 49I of the Independent Broad-based Anti-corruption Commission Act 2011 —
(a) if he or she considers that the investigation of the protected disclosure complaint under this Part is being obstructed; or
(b) for any other reason.
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