PROTECTED DISCLOSURE ACT 2012 (NO. 85 OF 2012) - SCHEDULE 1

SCHEDULE 1

Sch. 1

TRANSITIONAL AND SAVINGS PROVISIONS

1 Definitions

In this Schedule—

"commencement day" means the day on which section 83 comes into operation;

"Director" means the Director, Police Integrity under section 7 of the Police Integrity Act 2008 as in force immediately before its repeal;

"OPI" means the Office of Police Integrity continued by section 5 of the Police Integrity Act 2008 immediately before its repeal;

"public body" has the same meaning as it has in the Whistleblowers Protection Act 2001 ;

"SIM" means the Special Investigations Monitor appointed under section 5 of the Major Crime (Special Investigations Monitor) Act 2004 as in force immediately before its repeal;

"WPA" means the Whistleblowers Protection Act 2001 as in force immediately before its repeal.

2 General transitional provisions

(1) Unless the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984 .

(2) If a repealed provision of the WPA continues to apply by force of this Schedule, the following provisions also continue to apply in relation to the provision—

(a) any other repealed provisions of the WPA necessary to give effect to that continued provision; and

(b) any regulations made under the WPA for the purposes of that continued provision.

3 WPA continues to apply to disclosures made before commencement day

(1) If before the commencement day a disclosure is made in accordance with Part 2 of the WPA, on and after the commencement day—

(a) subject to any contrary provision in this Schedule, the WPA continues to apply to that disclosure despite the repeal of that Act; and

(b) to avoid doubt, the protections under Part 3 of the WPA continue to apply to that disclosure.

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(2) Subclause (1)(b) applies whether the disclosure is investigated, or otherwise dealt with, as a disclosure under the WPA or as a protected disclosure complaint under this or any other Act.

(3) Any provision of this Schedule that continues the operation of the WPA does not affect the generality of this clause.

4 Disclosure assessed by the Ombudsman to be public interest disclosure

(1) This clause applies if, on or after the commencement day, the Ombudsman determines under section 24 of the WPA that a disclosure made in accordance with Part 2 of that Act is a public interest disclosure.

(2) The Ombudsman must—

(a) despite the repeal of the WPA, commence an investigation of the disclosed matter under Division 3 of Part 5 of the WPA; or

(b) notify the disclosure to the IBAC under section 21(2) of this Act; or

(3) On and after the commencement day the Ombudsman must not refer a disclosure made under the WPA to another entity under section 41, 42, 43 or 44 of the WPA.

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(4) A disclosure notified to the IBAC under subclause (2)(b) is taken to be a protected disclosure complaint and must be dealt with by the IBAC in accordance with the Independent Broad-based Anti-corruption Commission Act 2011 .

(5) The notification by the Ombudsman of a disclosure to the IBAC pursuant to subclause (2)(b) does not contravene section 22 of the WPA or section 80 of this Act.

5 Disclosure made to the Director but not notified to Ombudsman

If, before the commencement day—

(a) a disclosure has been made to the Director in accordance with Part 2 of the WPA; and

(b) the Director has not referred the disclosure to the Ombudsman under section 34 or 36 of the WPA—

the disclosure is on the commencement day taken to have been made to the IBAC in accordance with Division 2 of Part 2 of this Act and must be dealt with by the IBAC as an assessable disclosure in accordance with this Act.

6 Report by Ombudsman on investigation by Director

(1) This clause applies if the Director has—

(a) completed an investigation of a disclosed matter under Part 5 of the WPA; and

(b) made a report to the Ombudsman under section 62 of the WPA on the completed investigation.

(2) On and after the commencement day, the Ombudsman may—

(a) make a written report on the results of the investigation to the IBAC; and

(b) make recommendations as to the action to be taken as a result of the investigation.

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(3) On or after the commencement day, the Ombudsman must not make a report under section 63A or 103 of the WPA on the results of an investigation completed by the Director.

7 Investigation of disclosure referred to the Director

(1) This clause applies if, before the commencement day—

(a) a disclosed matter has been referred under section 43 of the WPA to the Director for investigation; and

(b) the investigation of the matter has not commenced or has commenced but has not been completed.

(2) For the purposes of subclause (1)(b), an investigation is taken not to have been completed if the Director has not made a report of the investigation to the Ombudsman under section 62 of the WPA.

(3) On or after the commencement day, the disclosed matter is taken to be a protected disclosure complaint made to the IBAC and must be dealt with in accordance with the Independent Broad-based Anti-corruption Commission Act 2011 .

(4) Subject to clause 7 of the Schedule to the Independent Broad-based Anti-corruption Commission Act 2011 , the IBAC may, in any investigation of the disclosed matter under that Act, use or rely on any evidence given, or document or other thing produced in relation to the disclosed matter before the commencement day.

8 Witness summons issued by the Director

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(1) This clause applies if a witness summons issued by the Director under section 17 of the Evidence (Miscellaneous Provisions) Act 1958 is in force immediately before the commencement day in relation to an investigation by the Director under the WPA.

(2) Despite the repeal of the WPA—

(a) the witness summons remains in force on and after the commencement day; and

(b) the provisions under the WPA relating to any associated examination or obligation to produce documents continue to apply in relation to the witness summons; and

(c) the IBAC may on and after the commencement day exercise the same powers under section 18 of the Evidence (Miscellaneous Provisions) Act 1958 in relation to the person summoned that the Director could exercise immediately before the commencement day; and

(d) any confidentiality notice issued by the Director under section 61G of the WPA in relation to the witness summons that is in force immediately before the commencement day remains in force on and after the commencement day.

(3) If the summons is directed to a person who is held in a prison or police gaol, the IBAC may give a direction under section 82L of the Independent Broad-based Anti-corruption Commission Act 2011 in relation to that person.

9 Pending application for search warrant

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(1) This clause applies if—

(a) an application has been made for a search warrant by the Director under section 61C(1) of the WPA before the commencement day; and

(b) a magistrate has not determined that application before that day.

(2) Despite the repeal of the WPA—

(a) a magistrate may determine that application on or after the commencement day; and

(b) if a magistrate issues a warrant under section 61C(2) of the WPA in respect of that application, sections 61C to 61F of that Act continue to apply to the search warrant as if a reference in those sections to the Director were a reference to the IBAC.

10 Search warrant

(1) This clause applies to a search warrant issued under section 61C(2) of the WPA that is in force immediately before the commencement day.

(2) Despite the repeal of the WPA, on and after the commencement day—

(a) the warrant continues in force in accordance with its terms; and

(b) subject to any conditions or limitations on his or her appointment, an IBAC Officer appointed to be an authorised officer under section 50 of the Independent Broad-based Anti-corruption Commission Act 2011 is authorised to do anything that a person named in the warrant is authorised to do pursuant to the warrant or in the execution of the warrant; and

(c) sections 61C to 61F of the WPA continue to apply to the warrant and anything done under the warrant as if a reference in those sections to the Director were a reference to the IBAC.

11 Pending application for warrant to arrest a person

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(1) This clause applies if—

(a) an application has been made for a warrant to arrest a person by the Director under section 61K(1) of the WPA before the commencement day; and

(b) a magistrate has not determined that application before that day.

(2) Despite the repeal of the WPA—

(a) a magistrate may determine that application on or after the commencement day; and

(b) if a magistrate issues a warrant under section 61K(2) of the WPA in respect of that application—

(i) sections 61K and 61L of the WPA continue to apply in relation to the person arrested and held in custody pursuant to the warrant; and

(ii) for those purposes, a reference to the Director in sections 61K and 61L of the WPA is taken to be a reference to the IBAC.

12 Warrant to arrest a person

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(1) This clause applies to a warrant to arrest a person issued under section 61K(2) of the WPA that is in force immediately before the commencement day.

(2) Despite the repeal of the WPA, on and after the commencement day—

(a) the warrant remains in force in accordance with its terms; and

(c) sections 61K and 61L of the WPA continue to apply in relation to the person arrested and held in custody pursuant to the warrant; and

(d) for those purposes, a reference to the Director in sections 61K and 61L of the WPA is taken to be a reference to the IBAC.

13 Document and other things in possession of the Director

(1) This clause applies subject to clauses 14 and 15.

(2) Any document or thing seized by the Director from police personnel premises under section 61BC of the WPA that is in the possession of the Director immediately before the commencement day, is on the commencement day taken to have been seized by the IBAC under Division 3 of Part 4 of the Independent Broad-based Anti-corruption Commission Act 2011 .

(3) Any document or thing seized by the Director under a search warrant issued under section 61C of the WPA that is in the possession of the Director immediately before the commencement day, is on the commencement day taken to have been seized by the IBAC under Division 4 of Part 4 of the Independent Broad-based Anti-corruption Commission Act 2011 .

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(4) If a document or thing—

(a) is seized by the Director under section 61BC of the WPA from a public authority premises, other than police personnel premises; and

(b) immediately before the commencement day, the document or thing is in the possession of the Director—

on and after the commencement day, section 61BH of the WPA continues to apply in relation to the thing or document as if a reference in that section to the Director were a reference to the IBAC.

(5) For the purposes of this clause, police personnel premises has the same meaning as it has in the Independent Broad-based Anti-corruption Commission Act 2011 .

14 Request for copy of thing or information seized

(1) This clause applies to a request under section 61BD(1) of the WPA for a copy of a thing or information seized that has not been determined before the commencement day.

(2) Despite the repeal of the WPA, section 61BD of that Act continues to apply to that request on and after the commencement day except that—

(a) subject to subclause (3), a reference in that section to a request made to an authorised officer is to be read as a reference to a request made to an IBAC Officer appointed to be an authorised officer under section 50 of the Independent Broad-based Anti-corruption Commission Act 2011 ; and

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(b) a reference in that section to the Director is to be read as a reference to the IBAC.

(3) The exercise of a power or function by an IBAC Officer under section 61BD of the WPA pursuant to subclause (2)(a) is subject to any conditions or limitations on the IBAC Officer's appointment as an authorised officer under section 50 of the Independent Broad-based Anti-corruption Commission Act 2011 .

15 Application for return of document or thing seized

(1) This clause applies to an application to the Magistrates' Court under section 61BG(1) of the WPA for the return of a document or thing seized that has not been determined before the commencement day.

(2) Despite the repeal of the WPA, section 61BG of that Act continues to apply to that application on and after the commencement day as if a reference in that section to the Director is to be read as a reference to the IBAC.

16 Claim of legal professional privilege made before commencement day

(1) This clause applies if, before the commencement day—

(a) a person has claimed under section 61BB(3)(a) or 61BC(2)(a) of the WPA that a document or thing is the subject of legal professional privilege; and

(b) the Magistrates' Court has not determined whether or not the document or thing is the subject of legal professional privilege.

(2) Despite the repeal of the WPA, on and after the commencement day—

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(a) the procedure under section 61BE of the WPA continues to apply to the handling of the document or thing as if a reference in that section to an authorised officer were a reference to an IBAC Officer appointed to be an authorised officer under section 50 of the Independent Broad-based Anti-corruption Commission Act 2011 ; and

(b) section 61C of the WPA continues to apply as if a reference in that section to the Director were a reference to the IBAC; and

17 Claim of legal professional privilege made on or after commencement day

(1) Any claim that a document or thing is the subject of legal professional privilege made on or after the commencement day must be dealt with in accordance with the Independent Broad-based Anti-corruption Commission Act 2011 and the claim determined by the Supreme Court under section 69 of that Act.

(2) Subclause (1) applies even if the document or thing is the subject of a warrant issued under the WPA.

18 Direction given by the Director

(1) A direction given by the Director under section 55(1) of the WPA that is in force immediately before the commencement day is on the commencement day taken to have been given by the IBAC under section 53(2) of the Independent Broad-based Anti-corruption Commission Act 2011 .

(2) A direction given by the Director under section 61L(2) of the WPA that is in force immediately before the commencement day is on the commencement day taken to have been given by the IBAC under section 82L(1) of the Independent Broad-based Anti-corruption Commission Act 2011 .

19 Transmission of report to Parliament

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(1) This clause applies if, before the commencement day, the Director is required under section 103A of the WPA to cause a report to be transmitted to each House of Parliament.

(2) On or after the commencement day, the IBAC may cause the report to be transmitted to each House of the Parliament if the Director has not already done so.

20 Disclosure made to the Chief Commissioner of Police but not notified to Ombudsman

If, before the commencement day—

(a) a disclosure has been made to the Chief Commissioner of Police in accordance with Part 2 of the WPA; and

(b) the Chief Commissioner of Police has not referred the disclosure to the Ombudsman under section 29 or 31 of the WPA—

the disclosure is on the commencement day taken to have been made to the Chief Commissioner of Police in accordance with Division 2 of Part 2 of this Act and must be notified to the IBAC under section 21(2) of this Act.

21 Investigation completed by Chief Commissioner of Police

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(1) This clause applies if the Chief Commissioner of Police has completed an investigation of a disclosed matter under Part 7 of the WPA.

(2) Despite the repeal of the WPA, on and after the commencement day—

(a) Division 3 of Part 7 of the WPA applies to the investigation; and

(b) the Ombudsman may make a written report of the results of the investigation in accordance with section 103 of the WPA.

22 Investigation commenced but not completed by Chief Commissioner of Police

(1) This clause applies if the Chief Commissioner of Police has commenced but not completed an investigation of a disclosed matter under Part 7 of the WPA before the commencement day.

(2) On and after the commencement day the Chief Commissioner of Police must continue the investigation of the disclosed matter as if it were a protected disclosure complaint referred to the Chief Commissioner of Police under the Independent Broad-based Anti-corruption Commission Act 2011 .

23 Investigation by Chief Commissioner of Police taken over by the Ombudsman

(1) This clause applies if the Ombudsman—

(a) has taken over an investigation by the Chief Commissioner of Police under section 86 of the WPA before the commencement day; and

(b) has not completed that investigation before that day.

(2) Despite the repeal of the WPA, on and after the commencement day, the Ombudsman must deal with the disclosed matter in accordance with that Act.

24 Disclosure made to a public body before the commencement day

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(1) This clause applies if, before the commencement day—

(a) a disclosure has been made to a public body, other than the Chief Commissioner of Police, in accordance with Part 2 of the WPA; and

(b) the public body has not referred the disclosure to the Ombudsman under section 29 or 31 of the WPA.

(2) On and after the commencement day—

(a) the public body must notify the disclosure to the IBAC no later than 28 days after the commencement day; and

(b) the disclosure must be dealt with by the IBAC as if it were an assessable disclosure in accordance with this Act.

25 Investigation by public body

(1) This clause applies if a public body, other than the Chief Commissioner of Police, has commenced but not completed the investigation of a disclosed matter under the WPA before the commencement day.

(2) Despite the repeal of the WPA, on and after the commencement day, the public body must—

(a) complete the investigation of the disclosure under the WPA; and

(b) without limiting paragraph (a)—

(i) provide information to the Ombudsman about the progress of the investigation in accordance with section 80 of the WPA; and

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(ii) report to the Ombudsman on the completion of the investigation in accordance with section 82 of the WPA; and

(iii) have regard to the procedures established by the public body under section 68 of the WPA and the guidelines prepared and established by the Ombudsman under section 69 of the WPA.

26 Investigation by public body taken over by the Ombudsman

(1) This clause applies if the Ombudsman—

(a) has taken over an investigation by a public body, other than the Chief Commissioner of Police, under section 75 of the WPA before the commencement day; and

(b) has not completed that investigation before that day.

(2) Despite the repeal of the WPA, on and after the commencement day, the Ombudsman must deal with the disclosed matter in accordance with that Act.

27 Disclosure made to a Presiding Officer

(1) This clause applies if a disclosure has been made to a Presiding Officer in accordance with Part 2 of the WPA but has not been referred under section 96 of that Act to the Ombudsman before the commencement day.

(2) On and after the commencement day—

(a) the Presiding Officer may notify the disclosure to the IBAC; and

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(b) if the disclosure is notified to the IBAC, the disclosure is taken to be an assessable disclosure and must be dealt with by the IBAC in accordance with this Act.

28 Disclosure referred by a Presiding Officer to the Ombudsman

(1) This clause applies if a disclosure has been referred to the Ombudsman by a Presiding Officer before the commencement day.

(2) Despite the repeal of the WPA, on and after the commencement day, the Ombudsman must deal with the disclosed matter in accordance with that Act.

29 Disclosure made after the commencement day

(1) Subclause (2) applies if—

(a) a disclosure is made at any time no later than 6 months after the commencement day; and

(b) had the disclosure been made before the commencement day, it would be a disclosure made in accordance with Part 2 of the WPA; and

(2) Despite anything to the contrary in this Act, on and after the commencement day—

(a) if the disclosure is made to a Presiding Officer, the Presiding Officer may notify the disclosure to the IBAC;

(b) in any other case, the entity to which the disclosure is made must notify the disclosure to the IBAC no later than 28 days after the disclosure is made.

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(3) A disclosure notified to the IBAC under subclause (2) is taken to be an assessable disclosure and must be dealt with by the IBAC in accordance with this Act.

30 Exemptions from Freedom of Information Act 1982

Despite the repeal of the WPA, section 109 of that Act continues to apply to any document specified in that section.

31 Reference to Director's functions in annual report of the IBAC

On and after the commencement day, a reference in section 89 of the Independent Broad-based Anti-corruption Commission Act 2011 to the performance of the IBAC's duties and functions is to be read as including a reference to the performance by the IBAC of any duties and functions under the WPA pursuant to this Schedule during the financial year to which the annual report relates.

32 Investigations by the Special Investigations Monitor

(1) This clause applies if, before the commencement day, the Special Investigations Monitor has received a complaint under section 105E of the WPA and either has not commenced or has not completed an investigation of the complaint.

(2) On or after the commencement day, the complaint is taken to be a complaint made to the Victorian Inspectorate under section 29 of the Victorian Inspectorate Act 2011 and must be dealt with in accordance with that Act.

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(3) Subject to clause 8 of the Schedule to the Victorian Inspectorate Act 2011 , the Victorian Inspectorate may, in any investigation of the complaint under that Act, use or rely on any evidence given or document or other thing produced in relation to the complaint before the commencement day.

33 Complaint regarding examination under the WPA

A complaint that could be made to the Special Investigations Monitor in accordance with section 105E of the WPA had that Act not been repealed may, on and after the commencement day, be made to the Victorian Inspectorate.

Note

Under section 105E of the WPA a person who has attended the Director in the course of an investigation under the WPA may make a complaint within 3 days after the person was excused from attendance. Consequently, this clause would only apply to a complaint in relation to an attendance occurring 3 days or less before the repeal of the WPA.

34 Actions taken by the Victorian Inspectorate under clause 32 or 33

For the purposes of clause 32 and 33—

(a) section 32 of the Victorian Inspectorate Act 2011 (except subsection (1)(a)) applies as if—

(i) a reference to an investigation in relation to the IBAC or IBAC personnel were a reference to an investigation under this clause; and

(ii) a reference to IBAC's operations or the conduct of IBAC personnel were a reference to the conduct of the Director which is the subject of the investigation;

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(b) section 33(1) of the Victorian Inspectorate Act 2011 applies as if a reference to an investigation in relation to the IBAC or IBAC personnel under Part 3 were a reference to an investigation under this clause;

(c) Division 2 of Part 3 of the Victorian Inspectorate Act 2011 applies as if a reference to an inquiry in relation to the IBAC or IBAC personnel were a reference to an inquiry for the purposes of an investigation under this clause;

(d) Divisions 3 and 4 of Part 3 of the Victorian Inspectorate Act 2011 apply;

(e) section 34 of the Victorian Inspectorate Act 2011 applies as if a reference to the conduct of the IBAC or IBAC personnel were a reference to the conduct of the Director which is the subject of the investigation;

(f) section 35(3) of the Victorian Inspectorate Act 2011 applies as if a reference to conduct of any IBAC personnel were a reference to the conduct of the Director which is the subject of the investigation;

(g) sections 36 and 36A of the Victorian Inspectorate Act 2011 apply;

(h) section 37(1) (except paragraph (b)) of the Victorian Inspectorate Act 2011 applies as if a reference to an investigation in relation to the IBAC or IBAC personnel were a reference to an investigation under this clause;

(i) section 37A of the Victorian Inspectorate Act 2011 applies.

35 Reports to the Victorian Inspectorate

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(1) Section 82H of the Independent Broad-based Anti-corruption Commission Act 2011 applies, on and from the commencement day, in relation to a summons issued by the Director under section 17 of the Evidence (Miscellaneous Provisions) Act 1958 unless the Director has given a written report on the summons to the SIM under section 105B of the WPA before the commencement day.

(2) Section 82ZA of the Independent Broad-based Anti-corruption Commission Act 2011 applies, on and from the commencement day, in relation to a warrant to arrest a person issued under section 61K(2) of the WPA unless the Director has given a written report on the warrant to the SIM under section 105C of the WPA before the commencement day.

(3) Section 82S of the Independent Broad-based Anti-corruption Commission Act 2011 applies, on and from the commencement day, in relation to the video-recording, made under section 61BA of the WPA, and any transcript of an attendance by a person in the course of an investigation by the Director under the WPA or in compliance with a summons under section 17 of the Evidence (Miscellaneous Provisions) Act 1958 unless the Director has given a written report on and a copy video-recording and any transcript of the attendance to the SIM under section 105D of the WPA before the commencement day.

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(4) On and from the commencement day, the IBAC must comply with a requirement of the Victorian Inspectorate under section 28G of the Victorian Inspectorate Act 2011 in relation to an attendance referred to in subclause (3) occurring before the commencement day as if that attendance were an examination of a person by the IBAC unless the Director has given a written report on and a copy video recording and any transcript of the attendance to the SIM under section 105D of the WPA before the commencement day.

36 Annual report of Victorian Inspectorate

(1) For the purposes of the first annual report of the Victorian Inspectorate under Part 7 of the Financial Management Act 1994 , a reference in section 38(1)(b) of the Victorian Inspectorate Act 2011 to activities in relation to the performance of the Victorian Inspectorate's duties and functions includes a reference to activities in relation to the performance of the SIM's duties and functions under the WPA during the financial year to which that report relates.

(2) If, before the commencement day, the SIM had not prepared any report required by section 105L(1) of the WPA for the financial year ending before the commencement day, the Victorian Inspectorate must prepare that report.

(3) If, before the commencement day, the SIM had prepared any report required by section 105L(1) of the WPA for the financial year ending before the commencement day but that report has not been laid before each House of the Parliament under section 105L of the WPA, the Victorian Inspectorate must cause that report to be laid before each House of the Parliament in accordance with the applicable requirements of section 105L of the WPA as in force immediately before its repeal.

(4) For the purposes of subclause (2) or (3)—

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(a) if the report relates to a whole financial year completed before the repeal of the WPA, the Victorian Inspectorate may prepare a report referred to in those subclauses as a separate report and cause the report to be laid before each House of the Parliament in accordance with section 105L of the WPA as in force immediately before its repeal; or

(b) if the report relates to a partial financial year completed before the repeal of the WPA, the Victorian Inspectorate may prepare a report referred to in those subclauses as part of its own annual report under section 38 of the Victorian Inspectorate Act 2011 .

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PROTECTED DISCLOSURE ACT 2012 (NO. 85 OF 2012) - SCHEDULE 1