integrity and accountability legislation amendment (public ...file/591007exi1.docx · web...

Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and

Independence) Bill 2018

Introduction Print

EXPLANATORY MEMORANDUM

General

The Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill 2018 amends the Protected Disclosure Act 2012 to make Victoria's whistleblower protection system stronger, more accessible and more effective by better aligning it with Australian and international best practice principles, which will encourage people to report public sector corruption and wrongdoing.

The Bill amends the Independent Broad-based Anti-corruption Commission Act 2011, the Victorian Inspectorate Act 2011, the Public Interest Monitor Act 2011, the Ombudsman Act 1973 and the Parliamentary Committees Act 2003 to make Victoria's integrity and accountability system clearer and more efficient and to otherwise improve its operation, building on the improvements delivered by the Integrity and Accountability Legislation Amendment (A Stronger System) Act 2016.

The Bill also amends the Ombudsman Act 1973 to clarify and modernise the Ombudsman's powers and functions and for other purposes.

The key reforms in relation to the Protected Disclosure Act 2012 include—

renaming the Protected Disclosure Act 2012 the Public Interest Disclosures Act 2012 and adopting the term "public interest disclosure";

expanding and clarifying the types of public sector improper conduct that a person can disclose in a public interest disclosure;

591007 BILL LA INTRODUCTION 18/12/20181

clarifying, simplifying and increasing the pathways for making a public interest disclosure;

protecting public interest disclosures made to persons and bodies outside of the integrity system in limited circumstances;

simplifying confidentiality obligations that apply to people who make and handle public interest disclosures, including to allow access to support services; and

protecting disclosers from legal costs in the event that they are unsuccessful in a claim for compensation under the Protected Disclosure Act 2012.

The key reforms in relation to the Ombudsman Act 1973 include—

providing the Ombudsman with clear jurisdiction over publicly funded services;

allowing people aged 10 to 16 to provide information to the Ombudsman on a voluntary basis, with appropriate safeguards;

clarifying and modernising the Ombudsman's investigation powers and improving the Ombudsman's powers to deal with complaints; and

allowing the Ombudsman to share information to collaborate with the public sector, effectively resolve complaints and help authorities to improve their practices and procedures.

The other key integrity and accountability reforms include—

increasing the threshold for the Independent Broad-based Anti-corruption Commission (IBAC) to hold a public examination;

specifying procedural fairness safeguards in the Independent Broad-based Anti-corruption Commission Act 2011 that apply to public examinations;

removing the Crown's right to claim any privilege when the IBAC is executing a search warrant or examining a public officer (including any requirement under a witness summons);

overriding any statutory secrecy obligation or restriction on the disclosure of information that applies to a public officer when the IBAC is executing a search warrant or examining a public officer (including any requirement under a witness summons);

2

clarifying and strengthening the Victorian Inspectorate's oversight of coercive powers used by integrity and accountability bodies;

clarifying and strengthening the Victorian Inspectorate's oversight of coercive powers used by integrity and accountability bodies;

streamlining the Parliamentary oversight of the Ombudsman, IBAC, Information Commissioner and the Victorian Inspectorate by merging the Accountability and Oversight Committee with the IBAC Committee and renaming this the Integrity and Oversight Committee;

providing the Ombudsman, IBAC and Victorian Inspectorate with greater independence in their respective budget processes similar to the Auditor-General's budget process; and

giving the Ombudsman and IBAC greater discretion to deal with complaints appropriately.

Clause Notes

Part 1—Preliminary

Clause 1 provides that the main purposes of the Bill are to—

to amend the Protected Disclosure Act 2012 and make related amendments to other Acts—

to change the title of that Act and the provisions of that Act to refer instead to "public interest disclosures" and "public interest complaints"; and

to encourage and facilitate the reporting of improper conduct in the public sector by—

expanding and clarifying the types of wrongdoing that can be disclosed and investigated as a public interest complaint; and

clarifying and simplifying the pathways and procedures for making a public interest disclosure; and

3

clarifying and simplifying confidentiality obligations, including allowing access to support services; and

protecting external disclosures in limited circumstances; and

to expand the range of bodies that may investigate a public interest complaint; and

to permit disclosures about a Public Interest Monitor, the Victorian Inspectorate and a Victorian Inspectorate Officer; and

to clarify the processes, powers and confidentiality obligations applying to disclosures about members of Victoria Police personnel; and

to make Victoria's integrity and accountability system clearer and more efficient and improve on its operation by—

amending the Independent Broad-based Anti-corruption Commission Act 2011 to improve the IBAC's powers in relation to public examinations, complaints handling and the provision of advance copies of reports; and

amending the Victorian Inspectorate Act 2011 to clarify the oversight by the Victorian Inspectorate of the IBAC, the Ombudsman, the Victorian Auditor-General's Office, the Chief Examiner and the Information Commissioner; and

amending the Freedom of Information Act 1982 and the Privacy and Data Protection Act 2014 to ensure that coercive powers exercised by the Information Commissioner are able to be subject to oversight by the Victorian Inspectorate; and

4

amending the Public Interest Monitor Act 2011 to allow a Public Interest Monitor to disclose confidential information to allow oversight by the Victorian Inspectorate and to a lawyer for the purpose of obtaining legal advice; and

to amend the Ombudsman Act 1973—

to clarify the purposes of that Act; and

to provide the Ombudsman with modern functions to help the Ombudsman resolve complaints and promote improved public administration; and

to provide the Ombudsman with clear jurisdiction over complaints about publicly funded services; and

to modernise and clarify the Ombudsman's investigation powers; and

to allow complainants aged 10 to 16 years to provide information to the Ombudsman on a voluntary basis, subject to appropriate safeguards; and

to allow the Ombudsman to share information with a body to which the Ombudsman has referred a matter and with an authority to help them improve their complaints handling practices; and

to make other operational and technical improvements; and

to amend the Ombudsman Act 1973, the Independent Broad-based Anti-corruption Commission Act 2011 and the Victorian Inspectorate Act 2011 to allow funding to the Ombudsman, the IBAC and the Victorian Inspectorate to be allocated each financial year through the Parliament Appropriation Bill as a separately disclosed budget line; and

5

to amend the Parliamentary Committees Act 2003 and make consequential amendments to other Acts to streamline the Parliamentary oversight of the integrity and accountability system by merging the current IBAC Committee and the Accountability and Oversight Committee into a new Integrity and Oversight Committee.

Clause 2 sets out the commencement provisions for the Bill.

Parts 1, 6, 7 and 8 of the Bill will come into operation on the day after the day on which the Bill receives the Royal Assent.

Parts 2, 3 and 4 of the Bill and the Schedule to the Bill will come into operation on a day or days to be proclaimed or on 1 January 2020 if not proclaimed before that date.

Part 5 will come into operation on 1 July 2020. This commencement date gives the IBAC, Ombudsman and the Victorian Inspectorate time to develop and deliver implementation plans to commence budget independence for their respective offices on and from the financial year beginning 1 July 2020.

Part 2—Amendments relating to public interest disclosures

Division 1—Preliminary

Clause 3 provides that in Part 2 of the Bill the Protected Disclosure Act 2012 is called the Principal Act.

Division 2—Amendment of Protected Disclosure Act 2012

Clause 4 changes the title of the Principal Act to the Public Interest Disclosures Act 2012.

Clause 5 amends section 1 of the Principal Act to include a new purpose of the Act, being to ensure that public interest disclosures are properly assessed and, where necessary, investigated.

6

Clause 6 inserts 7 new definitions into section 3 of the Principal Act for Chief Municipal Inspector, Integrity and Oversight Committee, Information Commissioner, misdirected disclosure, public interest disclosure, public interest complaint and Racing Integrity Commissioner.

The Integrity and Oversight Committee is the new Joint House Committee created by Part 6 of this Bill.

Clause 6 also amends section 3 to substitute a new definition of assessable disclosure, amend the definition of investigating entity, and repeal the definitions of protected disclosure and protected disclosure complaint.

Clause 7 substitutes section 4(1) and (2) of the Principal Act to provide a new meaning of improper conduct. The new meaning of improper conduct includes—

corrupt conduct (within the meaning given by section 4 of the Independent Broad-based Anti-corruption Commission Act 2011);

conduct of a public officer or public body in their capacity as a public officer or a public body that constitutes—

a criminal offence;

serious professional misconduct;

dishonest performance of public functions;

an intentional or reckless breach of public trust;

an intentional or reckless misuse of information or material acquired in the course of the performance of the functions of the public officer or public body;

a substantial mismanagement of public resources;

a substantial risk to health or safety of one or more persons;

a substantial risk to the environment; or

7

conduct of any person that—

adversely affects the honest performance by a public officer or public body of their functions as a public officer or public body; or

is intended to adversely affect the effective performance or exercise by a public officer or public body of the functions or powers of the public officer or public body and result in the person, or an associate of the person, obtaining—

a licence, permit, approval, authority or other entitlement under any Act or subordinate instrument;

an appointment to a statutory office or as a member of the board of any public body under any Act or subordinate instrument;

a financial benefit or real or personal property; or

any other direct or indirect monetary or proprietary gain—

that the person or associate would not have otherwise obtained; or

conduct of any person that could constitute a conspiracy or attempt to engage in any of the conduct referred to above.

Clause 7 also provides that conduct that is trivial does not constitute improper conduct. This provision is intended to ensure that trivial matters that may technically fall within one of the categories of improper conduct are not inappropriately captured by the definition.

Clause 8 amends the definition of public body to include the Victorian Inspectorate. The clause also amends the definition of public officer to include a Victorian Inspectorate Officer and a Public Interest Monitor.

8

Clause 9 substitutes Parts 2 and 3 of the Principal Act.

Part 2 of the Principal Act sets out the meaning of public interest disclosure and how and to whom a public interest disclosure may be made.

Clause 9 re-enacts section 9 of the Principal Act to set out that a public interest disclosure is a disclosure by a natural person of information that shows or tends to show, or that the person believes on reasonable grounds shows or tends to show—

a person, public officer or public body has engaged, is engaging or proposed to engage in improper conduct; or

a public officer or public body has taken, is taking or proposes to take detrimental action against a person in contravention of section 45 of the Principal Act.

However, new section 9(3) excludes the Public Interest Monitor, Victorian Inspectorate and a Victorian Inspectorate Officer from subsection (3), which sets out persons and bodies about which disclosures may not be made.

Clause 9 also re-enacts sections 10, 11 and 20 of the Principal Act, adopting the terminology of "public interest disclosures". This reflects the change in the title of the Principal Act made by clause 4.

Clause 9 inserts new sections 12, 12A, 13, 14, 15, 16, 17, 18 and 19 in the Principal Act.

New section 12 sets out how a public interest disclosure may be made. New section 12 provides that a public interest disclosure—

must be made in accordance with the procedures established by an entity under section 58 of the Principal Act;

may be made to a person permitted to receive a disclosure on behalf of the entity (a permitted person); and

may be made orally or in writing. A public interest disclosure that is made in writing must be addressed to the entity or a permitted person and sent (by post or electronically) or delivered to, or left at, the office of the entity or the permitted person.

9

The person permitted to receive a disclosure on behalf of an entity is the person specified in column 2 of the Table in Schedule 2 who is listed opposite the entity specified in column 1 of that Table.

New section 12A provides that a public interest disclosure may be made anonymously and that a provision of any Act, including the Principal Act, which requires an entity to notify, advise or communicate with a person who has made a public interest disclosure does not apply if the person made the disclosure anonymously.

New section 13 sets out the persons and bodies to which public interest disclosures may be made, subject to sections 14 and 17. New section 13 provides that a public interest disclosure may be made to—

the IBAC, the Ombudsman or the Victorian Inspectorate;

a public service body within the meaning of section (4)(1) of the Public Administration Act 2004—if the disclosure related to the conduct of the body, or of a member, officer or employee of the body; or

a public officer prescribed for the purposes of section 13—if the disclosure relates to an employee of or a person otherwise engaged by or acting on behalf of or as a deputy or delegate of that public officer.

New section 14 provides that public interest disclosures relating to certain public officers and bodies must be made to particular persons and bodies, except as provided in section 15. New section 14 provides that a public interest disclosure must be made to—

the Integrity and Oversight Committee or a Presiding Officer if the disclosure relates to the Victorian Inspectorate or a Victorian Inspectorate Officer;

the Victorian Inspectorate if the disclosure relates to the IBAC, an IBAC Officer or a Public Interest Monitor;

the IBAC or the Judicial Commission of Victoria if the disclosure relates to a judicial officer or a member of the

10

Victorian Civil and Administrative Tribunal who is not a judicial officer;

the IBAC or a prescribed member of police personnel if the disclosure relates to a member of Victoria Police personnel other than the Chief Commissioner of Police;

the IBAC or the Ombudsman if the disclosure relates to a Councillor, the Information Commissioner, or the Health Complaints Commissioner appointed under the Health Complaints Act 2016;

the IBAC or the Victorian Inspectorate if the disclosure relates to the Chief Examiner or an Examiner appointed under section 21 of the Major Crimes (Investigative Powers) Act 2004, an Ombudsman officer, an officer of the Victorian Auditor General's Office, or a Judicial Commission officer other than a judicial member of the Board of the Judicial Commission; or

the IBAC if the disclosure relates to—

the Chief Commissioner of Police; or

the Director of Public Prosecutions appointed under the Constitution Act 1975;

the Chief Crown Prosecutor appointed under the Public Prosecutions Act 1994;

the Solicitor-General appointed under the Attorney-General and Solicitor-General Act 1972;

the Governor appointed under the Constitution Act 1975;

the Lieutenant-Governor or Administrator appointed under the Constitution Act 1975;

the Director, Police Integrity, appointed under the Police Integrity Act 2008;

the Electoral Commissioner appointed under the Electoral Act 2002;

a commissioner or member of a Board of Inquiry within the meaning of the Inquiries Act 2014;

11

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

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

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

an electorate officer employed under Part 4 of the Parliamentary Administration Act 2005; or

a Parliamentary officer within the meaning of section 4(1) of the Parliamentary Administration Act 2005.

New section 15 provides an exception to the requirements of new sections 14 and 17(3). New section 15(2) permits—

a member, officer or employee of a public sector body;

any person engaged to provide a service, program or initiative funded, supervised or overseen by a public service body; or

any member, officer or employee of a person or entity engaged to provide a service, program or initiative funded, supervised or overseen by a public service body

to make a public interest disclosure to the public service body.

New section 15(3) permits a member, officer or employee of a public officer prescribed for the purposes of 13(5) to make a disclosure to that public officer.

New section 15(4) provides that a public interest disclosure that relates to a member of Parliament may not be made under section 15. However, a public interest disclosure that relates to a Minister of the Crown who is not a member of Parliament may be made in accordance with section 15.

New section 16(1) provides that a public interest disclosure that relates to the conduct of a Council or of a member, officer or employee of a Council may be made to the Council.

12

New section 16(2) provides that a member, officer or employee of a Council may make a public interest disclosure to the Council, unless the disclosure is required to be made to another entity under section 14 or section 17(3), or the disclosure relates to a member of Parliament.

New section 17 provides that—

a public interest disclosure that relates to a member of the Legislative Assembly must be a made to the Speaker of the Legislative Assembly;

a public interest disclosure that relates to a member of the Legislative Council must be made to the President of the Legislative Council; and

a public interest disclosure that relates to a Minister of the Crown who is not a member of Parliament must be made to the IBAC, subject to section 15.

New section 18 provides that a public interest disclosure made to an entity that is not an entity to which the disclosure may or must be made under new Division 2 of Part 2 is a "misdirected disclosure" if—

the receiving entity is an entity to which a public interest disclosure may be made under Division 2 of Part 2; and

the person who made the disclosure honestly believed that the receiving entity was an appropriate entity to which to make the disclosure.

A disclosure relating to a member of Parliament cannot be a misdirected disclosure.

A misdirected disclosure may be notified for assessment under new section 21. The protections of Part 6 of the Principal Act also apply to a misdirected disclosure under section 38.

New section 19 provides that a disclosure is a not a public interest disclosure if, within 28 days after the disclosure is made, the person making the disclosure expressly states in writing that the disclosure is not a public interest disclosure. Consequently, the disclosure is not required to be notified to, or assessed by, the

13

IBAC, the Victorian Inspectorate or the Integrity and Oversight Committee and the protections under Part 6 do not apply to the disclosure. An entity may notify a disclosure to the IBAC under Division of Part 3 at any time before the 28 day period expires, if at the time of the notification, the person has not made a statement that the disclosure is not a public interest disclosure.

New section 20 provides that a disclosure is not a public interest disclosure if it is made by an officer or employee of an investigating entity in the performance of the officer's functions or duties under the Act under which the entity is authorised to investigate public interest complaints. However, such a disclosure is a public interest disclosure if at the time it was made, the person making the disclosure stated in writing that the disclosure is a public interest disclosure, and it was made in accordance with the pathways under the Principal Act.

Part 3 of the Principal Act sets out the processes for notifying and assessing public interest disclosures.

New section 21 requires an entity that receives a disclosure in accordance with Division 2 of Part 2 or a misdirected disclosure to notify the disclosure to the appropriate entity for assessment under Part 3 within 28 days of receiving the disclosure, where the receiving entity considers that the disclosure shows or tends to show, or the person who made the disclosure believes on reasonable grounds shows or tends to show—

a person, public officer or public body has engaged, is engaging or proposes to engage in improper conduct; or

a public officer or public body has taken, is taking or proposes to take detrimental action against a person in contravention of section 45 of the Principal Act.

New section 21(4) provides that the appropriate entity for the purposes of the section is—

the Integrity and Oversight Committee—if the disclosure relates to the Victorian Inspectorate or a Victorian Inspectorate Officer;

14

the Victorian Inspectorate—if the disclosure relates to the IBAC, an IBAC Officer or a Public Interest Monitor; or

the IBAC—if the disclosure relates to any other person or body.

The protections under Part 6 of the Principal Act apply to a public interest disclosure regardless of whether or not the disclosure is notified to the appropriate entity under section 21.

New section 22 requires the Chief Commissioner of Police to notify to IBAC for assessment, within 28 days of receiving the disclosure, any police complaint disclosure made or notified to the Chief Commissioner under section 168 of the Victoria Police Act 2013 that the Chief Commissioner considers shows or tends to show, or the person who made the disclosure believes on reasonable grounds shows or tends to show—

a police officer or protective services officer has engaged, is engaging or proposes to engage in improper conduct; or

a police officer or protective services officer has taken, is taking or proposes to take detrimental action against a person in contravention of section 45 of the Principal Act.

The protections under Part 6 of the Principal Act apply to a public interest disclosure regardless of whether or not the disclosure is notified to the appropriate entity under section 22.

New section 23 provides for the provision of certain information to the IBAC, the Victorian Inspectorate or the Integrity and Oversight Committee by an entity that has notified a disclosure to that entity under section 21 or 22.

New section 24 provides for the giving of advice to a person who made a disclosure. New section 24(1) provides that the section applies where—

a public interest disclosure referred to in section 21(1)(a) is made to an entity other than a Presiding Officer; or

15

a police complaint disclosure is made or referred to the Chief Commissioner of Police.

New section 24(2) sets out the advice that an entity or the Chief Commissioner must provide to a person who made a disclosure if the entity notifies the disclosure for assessment under section 21 or 22. New section 24(3) sets out the advice that, subject to subsection (5), an entity must provide to a person who made a disclosure if the entity does not notify the disclosure for assessment under section 21 or 22. New section 24(4) provides that advice given under subsection (2) or (3) must be in writing and must be given no later than 28 days after the disclosure is made to the entity.

New section 24(5) provides that an entity is not required to provide advice under subsection (3) unless the person has indicated to the entity, or it otherwise appears to the receiving entity, that the person wishes to receive the protections applying to a public interest disclosure under the Principal Act.

New section 25 sets out the advice that the Presiding Officers may provide to a person who made a disclosure to the Presiding Officers. New section 25(2) provides that, if the Presiding Officer notifies the disclosure under section 21(3), the Presiding Officer may advise the person who made the disclosure that the disclosure has been notified to the IBAC, the Victorian Inspectorate or the Integrity and Oversight Committee (as the case may be) for assessment under this Act. New section 25(3) provides that, if the Presiding Officer does not notify the disclosure under section 21(3), the Presiding Officer may advise the person who made the disclosure that the disclosure has not been notified for assessment under the Principal Act.

New section 26 sets out the IBAC's function of assessing public interest disclosures and determining whether they are public interest complaints. New section 26(1) provides that if a public interest disclosure is made to the IBAC in accordance with Division 2 of Part 2 or notified to IBAC under section 21, or a police complaint disclosure is made to the IBAC or notified to IBAC under section 22, IBAC must assess the disclosure to

16

determine whether or not the disclosure is a public interest complaint.

New section 26(2) provides that the IBAC may also assess a disclosure made or notified to the IBAC in accordance with any other Act to determine whether or not the disclosure is a public interest complaint.

New section 26(5) provides that, subject to subsection (6), the IBAC may determine that a disclosure that has been notified to the IBAC under section 21 or 22 is not a public interest complaint if the IBAC considers that—

it would be more appropriate for the matter which is the subject of the disclosure to be dealt with by the notifying entity or another public body; or

the matter which is the subject of the disclosure has been adequately dealt with by the notifying entity or another public body as required by law or by another Act, or as required under an enterprise agreement made under the Fair Work Act 2009 of the Commonwealth.

New section 26(6) provides that, before determining under subsection (5) that a disclosure is not a public interest complaint, IBAC must consult with the notifying entity and, unless the disclosure was made anonymously, obtain the consent of the person who made the disclosure for the disclosure to be dealt with other than as a public interest complaint.

Clause 9 also re-enacts sections 26(3) to (5), 27 and 30 of the Principal Act. Section 26(5) is re-enacted by new section 26(7).

New section 26A provides that, if the IBAC has determined under section 26 that a disclosure is not a public interest complaint, the IBAC may—

assess whether the disclosure is a complaint or notification under the Independent Broad-based Anti-corruption Commission Act 2011; and

if so, deal with the disclosure as a complaint or notification under that Act.

New section 28 sets out the advice that the IBAC must provide to a person who made a disclosure if the IBAC has determined that the disclosure is a public interest complaint.

17

New section 28(1) provides that, if the IBAC determined a disclosure is a public interest complaint, the IBAC must advise the person who made the disclosure that it has determined that the disclosure is a public interest complaint and the protections under Part 6 of the Principal Act apply to the disclosure. New section 28(2) provides that the advice must be in writing and given with a reasonable time after the determination is made. New section 28(3) provides that the advice must include a written statement containing the prescribed matters relating to the rights, protections and obligations under the Principal Act of a person who has made a public interest disclosure.

New section 29 sets out the advice that the IBAC must provide to a person who made a disclosure if the IBAC has determined that the disclosure is not a public interest complaint.

New section 29(1) provides that, if the IBAC determined a disclosure is not a public interest complaint, the IBAC must advise the person who made the disclosure that—

the IBAC has determined that the disclosure is not a public interest complaint; and

as a consequence of that determination—

the disclosure will not be investigated as a public interest complaint; and

the confidentiality provisions under Part 7 of the Principal Act no longer apply in relation to the disclosure; but

the protections under Part 6 of the Principal Act apply to the disclosure.

New section 29(2) provides that the advice must be in writing, state the reasons why the IBAC has determined the disclosure is not a public interest complaint, and be given with a reasonable time after the determination is made.

New section 29(3) provides that if the disclosure was made to the IBAC, the IBAC is not required to advise the person under subsection (1) unless the person has indicated to the IBAC, or it otherwise appears to the IBAC, that the person wishes to receive the protections that apply to a public interest disclosure under the Principal Act.

18

New section 30 provides that, if the IBAC determines that a disclosure is not a public interest complaint but considers that the matter which is the subject of the disclosure may be able to be dealt with by another entity, the IBAC may advise the person who made the disclosure that the matter may be able to be dealt with by that entity other than as a public interest complaint, and if the person wishes to pursue the matter, the person should make a complaint directly to that entity.

New section 31 sets out the Victorian Inspectorate's function of assessing public interest disclosures and determining whether they are public interest complaints. New section 31(1) provides that if a public interest disclosure relating to the IBAC, an IBAC officer or a Public Interest Monitor is made to the Victorian Inspectorate in accordance with Division 2 of Part 2 or notified to the Victorian Inspectorate under section 21, the Victorian Inspectorate must assess the disclosure to determine whether or not the disclosure is a public interest complaint.

New section 31(2) provides that, following an assessment under subsection (1) or (2), the Victorian Inspectorate must—

determine that the disclosure is a public interest complaint if the IBAC considers that the disclosure shows or tends to show, or that the person who made the disclosure believes on reasonable grounds that the disclosure shows or tends to show—


a public officer or public body has taken, is taking or proposes to take detrimental action against a person in contravention of section 45; or

determine that the disclosure is not a public interest complaint in any other case.

New section 31(3) requires the Victorian Inspectorate to make its determination under subsection (2) within a reasonable time after the disclosure is made or notified to the Victorian Inspectorate.

New section 31(4) prevents the Victorian Inspectorate from exercising its powers of investigation under the Victorian

19

Inspectorate Act 2011 when making an assessment under subsection (1).

New section 31(5) provides that sections 27, 28, 29 and 30 (which set out notice requirements following a determination by the IBAC) apply to a public interest disclosure assessed by the Victorian Inspectorate under subsection (1) as if a reference to the IBAC were a reference to the Victorian Inspectorate.

New section 31A provides that, if the Victorian Inspectorate has determined under section 31 that a disclosure is not a public interest complaint, the Victorian Inspectorate may—

assess whether the disclosure is a complaint or notification under the Victorian Inspectorate Act 2011; and

if so, deal with the disclosure as a complaint or notification under that Act.

New section 31B sets out the Integrity and Oversight Committee's function of assessing public interest disclosures and determining whether they are public interest complaints. New section 31B(1) provides that if a public interest disclosure relating to the Victorian Inspectorate or a Victorian Inspectorate Officer is made to the Integrity and Oversight Committee in accordance with Division 2 of Part 2 or notified to the Committee under section 21, the Committee must assess the disclosure to determine whether or not the disclosure is a public interest complaint.

New section 31B(2) provides that, following an assessment under subsection (1) or (2), the Integrity and Oversight Committee must—

determine that the disclosure is a public interest complaint if the Committee considers that the disclosure shows or tends to show, or that the person who made the disclosure believes on reasonable grounds that the disclosure shows or tends to show—


a public officer or public body has taken, is taking or proposes to take detrimental action

20

against a person in contravention of section 45; or

determine that the disclosure is not a public interest complaint in any other case.

New section 31B(3) requires the Integrity and Oversight Committee to make its determination under subsection (2) within a reasonable time after the disclosure is made or notified to the Committee.

New section 31B(4) prevents the Integrity and Oversight Committee from exercising its powers of investigation under the Parliamentary Committees Act 2003 when making an assessment under subsection (1). This is consistent with section 26(5) of the Principal Act, which provides that the IBAC must not exercise any of its powers of investigation under the Independent Broad-based Anti-corruption Commission Act 2011 when making an assessment.

New section 31B(5) provides that sections 27, 28, 29 and 30 (which set out notice requirements following a determination by the IBAC) apply to a public interest disclosure assessed by the Integrity and Oversight Committee under subsection (1) as if a reference to the IBAC were a reference to the Committee.

Clause 10 amends the heading to Part 4 of the Principal Act to "Disclosures determined to be public interest complaints".

Clause 11 amends section 32 of the Principal Act to replace the words "protected disclosure complaint" with "public interest complaint".

Clause 12 amends section 33 of the Principal Act, replacing the term "protected disclosure complaint" with the term "public interest complaint".

Clause 13 inserts section 33A into the Principal Act. New section 33A provides that, if the Integrity and Oversight Committee determines that a disclosure is a public interest disclosure, the Committee must engage an independent person in accordance

21

with new Part 4A to investigate the disclosure. Part 4A is inserted by clause 14.

Clause 14 inserts Part 4A into the Principal Act. Part 4A provides for the engagement by the Integrity and Oversight Committee of an independent person to investigate a public interest complaint about the conduct of the Victorian Inspectorate or a Victorian Inspectorate Officer.

New sections 33B and 33C set out the process for engaging an independent person to investigate a public interest complaint about the conduct of the Victorian Inspector.

New section 33D sets out the process for engaging an independent person to investigate a public interest complaint about the conduct of the Victorian Inspectorate as an entity, or a Victorian Inspectorate officer other than the Victorian Inspector.

New section 33E permits the Integrity and Oversight Committee to decline to engage an independent person to investigate a public interest complaint in limited circumstances.

New section 33F provides that, if the independent person engaged under Part 4A is provided with further information in relating to the public interest complaint that they are investigating, the person must notify the Integrity and Oversight Committee. The protections under Part 6 of the Principal Act apply to that further information.

Clause 15 amends section 34 of the Principal Act to replace the words "protected disclosure complaint" with "public interest complaint" and to substitute the reference to section 17 to section 14(b) as a consequence of amendments made by Clause 9.

Clause 16 amends section 35 of the Principal Act to—

replace the words "protected disclosure" with "public interest disclosure";

replace the words "protected disclosure complaint" with "public interest complaint"; and

substitute the reference to section 38(2) to section 38(5), as a consequence of the amendments made by clause 21.

22

Clause 17 amends section 36 of the Principal Act. Section 36 sets out the responsibilities of an investigating entity in respect of a related disclosure (as defined under section 34) made by a person other than the person who made the public interest complaint that the entity is investigating.

The amendment clarifies section 36 to provide that the investigating entity must notify the related disclosure to the appropriate entity (i.e. the IBAC, the Victorian Inspectorate or the Integrity and Oversight Committee) for assessment if the related disclosure shows or tends to show improper conduct or detrimental action against a person, or that the person who made the related disclosure believes on reasonable grounds that the disclosure shows or tends to show improper conduct or detrimental action against a person.

Clause 18 repeals section 37(3) of the Principal Act.

Section 37 provides that where a related disclosure is notified for assessment, the investigating entity must advise the person who made the related disclosure of the notification. Subsection (3) provided that the advice must include a statement advising that it is an offence under section 74 of the Principal Act to disclose that the related disclosure has been notified for assessment.

As a consequence of the amendments made by clause 45, which repeals section 74, section 37(3) is not required.

Clause 19 inserts section 37A into the Principal Act. New section 37A provides that an investigating entity may investigate a related disclosure that has been notified for assessment under section 36 if the related disclosure has been determined to be a public interest complaint and has been referred to the investigating entity for investigation.

Clause 20 amends the heading to Part 6 of the Principal Act to replace the words "protected disclosure" with "public interest disclosure".

Clause 21 substitutes section 38 of the Principal Act.

New section 38 provides that Part 6 of the Principal Act applies to the following disclosures—

public interest disclosures made in accordance with Division 2 of Part 2 of the Principal Act;

23

misdirected disclosures;

complaints made in accordance with section 167(3) of the Victoria Police Act 2013; and

external disclosures made in accordance with new section 38A.

Part 6 of the Principal Act sets out the Act's key protections, including immunity from civil or criminal liability for making a disclosure, protection from defamation action, and protection from detrimental action taken in reprisal for a disclosure.

New section 38 provides that Part 6 applies to public interest disclosures, misdirected disclosures and complaints made in accordance with section 167(3) of the Victoria Police Act 2013 from the time that they are made, whether or not the disclosures are notified to the IBAC, the Victorian Inspectorate or the Integrity and Oversight Committee for assessment or determined to be a public interest complaint.

New section 38A(1) provides that an external disclosure is a public interest disclosure (as defined in section 9 of the Principal Act) made to a person or body who cannot receive disclosures under Division 2 of Part 2 of the Principal Act.

New section 38A(2) provides that an external disclosure is made in accordance with section 38A (and therefore is a disclosure to which Part 6 applies) if—

the person making the disclosure has previously made a public interest disclosure in accordance with Division 2 of Part 2 of the Principal Act, and did not make that disclosure anonymously;

the original disclosure was determined to be a public interest complaint by the IBAC, the Victorian Inspectorate or the Integrity and Oversight Committee (the 'assessing entity'); and

from the time that the person was notified that the original disclosure had been determined to be a public interest complaint, either section 38A(3) or section 38A(4) applies.

New section 38A(3) applies if the assessing entity did not notify the person about any action taken in response to the original disclosure within 6 months, and the person has requested advice

24

from the investigating entity and has not received a response within 30 days.

New section 38A(4) applies if the investigation of the original disclosure was not completed within 12 months after the person was notified that the disclosure is a public interest complaint, and the person has requested advice on the progress of the complaint but—

has not received a response within 30 days after the request; or

the person received a response within 30 days advising the investigation is still ongoing, but has not been advised that the investigation has been completed within 6 months after that response.

New section 38A(5) provides that an external disclosure containing information that may prejudice a criminal investigation, criminal proceeding or other legal proceeding of which the person making the external disclosure is aware, or information that is likely to lead to the disclosure of an investigative method used by the IBAC or Victoria Police personnel, is not made in accordance with section 38A. As a result, Part 6 does not apply to an external disclosure containing such information.

Clause 22 amends sections 39, 40 and 41 of the Principal Act to replace the words "protected disclosure" with "public interest disclosure".

Clause 23 amends section 43 of the Principal Act to repeal section 43(3) to remove the requirement that a reason referred to in subsection (1)(a) must be a substantial reason for taking action against another person in order for it to be considered "detrimental action". It will be sufficient under amended section 43 that a reason referred to in subsection (1)(a) is a reason. The reasons referred to in subsection (1)(a) are that—

the other person or anyone else has made, or intends to make, the public interest disclosure; or

the other person or anyone else has cooperated, or intends to cooperate, with an investigation of the public interest disclosure.

25

Clause 24 amends section 44 of the Principal Act. Section 44 provides that Part 6 of the Principal Act is not intended to prevent a manager from taking management action in relation to an employee who has made a public interest disclosure.

Clause 24 amends section 44(2) to provide that a manager may only take management action which is detrimental action in relation to an employee who has made a public interest disclosure if the fact that the employee has made the disclosure is not a reason for the manager taking the action.

Clause 24 also inserts new subsection 44(3), which provides that "management action" includes any action that is required to be taken in respect of performance development, conditions of employment or discipline, or to ensure the safety of the workplace.

Clause 25 amends section 45 of the Principal Act. Section 45(1) provides that it is an offence to take detrimental action against another person in reprisal for a disclosure.

Clause 25 amends section 45 to remove the word "substantial" from subsection (2), such that it is a defence in a proceeding for an offence against subsection (1) if a reason referred to in section 43(1) was not a reason for the person taking the detrimental action.

Clause 25 also amends section 45 to insert new subsection 45(4), which provides that, despite subsection (3), it is not a defence in a proceeding for an offence under subsection (1), if the disclosure has been determined not to be a public interest complaint under section 26(5).

Clause 25 also amends section 45 to replace the words "protected disclosure" and "protected disclosure complaint" with "public interest disclosure" and "public interest complaint" respectively.

Clause 26 amends section 47 of the Principal Act. Section 47 provides that a person who takes detrimental action against another person in reprisal for a public interest disclosure is liable in damages for any injury, loss or damage to that other person.

Clause 26 inserts new subsection 47(7) to provide that in a proceeding under section 47, costs must not be awarded against

26

the person alleging that detrimental action has been taken in reprisal for a public interest disclosure unless the court is satisfied that the person's claim that detrimental action has occurred is vexatious, or the person did not conduct the litigation reasonably.

Clause 27 amends sections 48 and 49 of the Principal Act to replace the words "protected disclosure" with "public interest disclosure".

Clause 28 amends section 50 of the Principal Act. Section 50 sets out who may make an application for an order or injunction under section 49 of the Principal Act. Section 49 permits the Supreme Court, on receipt of an application under section 50, to order the person who took detrimental action to remedy the action or grant an injunction.

Clause 28 amends section 50 as a result of clause 14 to provide that the Integrity and Oversight Committee can make an application for an order or injunction under section 49.

Clause 29 amends section 51 of the Principal Act to replace the words "protected disclosure" with "public interest disclosure".

Clause 30 amends section 52 of the Principal Act. Section 52 provides that persons or bodies who receive assessable disclosures or information about assessable disclosures must not disclose the content or information about the content of an assessable disclosure, except in specified circumstances.

Clause 30 amends section 52 to provide that the section applies to a person or body to whom the Integrity and Oversight Committee (as well as the IBAC or the Victorian Inspectorate) has provided information about the content of an assessable disclosure to determine whether the disclosure is a public interest complaint.

Clause 30 also amends section 52 to provide that a person can disclose the content or information about the content of the assessable disclosure—

after the Integrity and Oversight Committee (as well as the IBAC or the Victorian Inspectorate) has determined

27

that the assessable disclosure is not a public interest complaint; or

after the Integrity and Oversight Committee has published the information in a report to Parliament.

Clause 31 amends section 53 of the Principal Act. Section 53 provides that information likely to lead to the identification of a person who has made an assessable disclosure must not be disclosed except in specified circumstances.

Clause 31 amends section 53 to provide that the identity of a person who has made an assessable disclosure may be disclosed—

if the person who made the assessable disclosure has given written consent to the Integrity and Oversight Committee or to an independent investigator engaged by the Committee under new Part 4A, and the information is disclosed by the Committee or the independent investigator in accordance with that consent;

after the Integrity and Oversight Committee (in addition to the IBAC or the Victorian Inspectorate) has determined that the assessable disclosure is not a public interest complaint; or

after the Integrity and Oversight Committee has published the information in a report to Parliament.

Clause 32 amends section 54 of the Principal Act. Section 54 sets out the circumstances in which the content, or information about the content, or an assessable disclosure, or information likely to lead to the identification of a person who has made an assessable disclosure, can be disclosed.

Clause 32 amends section 54(2) to provide that an investigating entity, or an officer of an investigating entity, may disclose such information where necessary for the purpose of exercising functions under the Act, or part of the Act, under which the entity or officer is authorised to investigate a public interest complaint.

28

This is a consequence of clause 54, which allows the IBAC to refer public interest complaints to new investigating entities.

Clause 32 also amends section 54(2) to insert new subsection (j), providing that information may be disclosed for the purpose of seeking advice or support from support and welfare services—specifically—

to a registered health practitioner, a trade union of which the person is a member or an employee assistance program, for the purpose of assisting the person who made the disclosure to seek advice or support in relation to the disclosure;

to the Victorian WorkCover Authority for the purpose of a workers' compensation claim;

to a prescribed body for a prescribes purpose; or

for the purposes of an application to the Fair Work Commission, including any related proceeding.

This complements the amendments made by clauses 53, 63, 77 and 87 of the Bill, which permit a person to disclose information the subject of a confidentiality notice to these support and welfare services.

Clause 32 also amends section 54(3) to—

amend the definition of confidentiality notice to include confidentiality notices issued by the Chief Municipal Inspector, Racing Integrity Commissioner and Information Commissioner (see clauses 102, 105 and 108);

amend the definition of officer of an investigating entity to replace the words "protected disclosure complaint" to "public interest complaint"; and

insert definitions of Fair Work Commission, registered health practitioner and Victorian WorkCover Authority for the purposes of the section.

Clause 33 amends the heading to Part 8 of the Principal Act to refer to functions and powers of the IBAC, Victorian Inspectorate and the Integrity and Oversight Committee. This follows the insertion of new section 56A, providing the functions and powers

29

of the Integrity and Oversight Committee, by clause 36 of the Bill.

Clause 34 amends section 55 of the Principal Act to—

replace the words "protected disclosure scheme" and "protected disclosures" with "public interest disclosure scheme" and "public interest disclosures" respectively; and

provide that the IBAC's functions relating to the public interest disclosure scheme include promoting the purposes of the Principal Act.

Clause 35 amends section 56 of the Principal Act to provide that the Victorian Inspectorate's functions under the Principal Act include—

receiving and assessing assessable disclosures relating to Public Interest Monitors; and

promoting the purposes of the Principal Act.

Clause 35 also amends the note at the foot of section 56(d) to state that the Victorian Inspectorate can receive disclosures about Public Interest Monitors.

Clause 35 also amends section 56(d) to enable the Victorian Inspectorate to review the procedures of the Judicial Commission as well as of the IBAC and the Ombudsman.

Clause 35 also amends section 56 to replace the words "protected disclosure complaints" with "public interest complaints".

Clause 36 inserts section 56A into the Principal Act. New section 56A sets out the functions and powers of the Integrity and Oversight Committee under the Principal Act.

New section 56A provides that the Committee's functions are to—

receive assessable disclosures that relate to the Victorian Inspectorate or a Victorian Inspectorate Officer;

30

assess those disclosures;

determine whether those disclosures are public interest complaints;

engage an independent investigator to investigate any disclosure determined to be a public interest complaint; and

promote the purposes of the Principal Act.

New section 56A provides that the Integrity and Oversight Committee has power to do all things that are necessary or convenient to be done for, or in connection with, the performance of these functions.


Clause 38 amends section 58 of the Principal Act to provide that the Integrity and Oversight Committee (like the Presiding Officers of Parliament) is not required to establish procedures to facilitate the making, handling and notification of disclosures.

Clause 39 amends section 67 of the Principal Act to replace the words "protected disclosure complaint" and "protected disclosure complaints" with "public interest complaint" and "public interest complaints" respectively.

Clause 40 amends section 68 of the Principal Act to replace the words "protected disclosure complaint" and "protected disclosure complaints" with "public interest complaint" and "public interest complaints" respectively.

Clause 41 amends section 69 of the Principal Act to replace the words "protected disclosure complaints" with "public interest complaints".

Clause 42 inserts section 71A into the Principal Act. New section 71A provides that, following an investigation into a public interest complaint by an independent person engaged by the Integrity and Oversight Committee under new Part 4A of the Principal Act, the independent person must report the findings of the investigation to the Committee and the responsible Minister.

31

New section 71A(3) also requires the independent person, in the case of a public interest complaint about the Victorian Inspectorate or a Victorian Inspectorate Officer other than the Inspector, to report the findings of the investigation to the Integrity and Oversight Committee, the responsible Minister and to the Inspector.

New section 71A(4) provides that the Integrity and Oversight Committee may cause a report of an independent person relating to a public interest complaint about the Victorian Inspector to be transmitted to each House of Parliament.

New section 71A(5) provides that a report transmitted to Parliament under section 71A(4) must not include—

information that the Integrity and Oversight Committee considers would prejudice any criminal proceeding, criminal investigation or investigation by the IBAC, the Ombudsman or the Victorian Inspectorate;

a finding or an opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence;

a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence; or

information that is likely to lead to the identification of a person who has made an assessable disclosure and is not information to which section 53(2)(a), (c) or (d) applies.

This reflects existing requirements on other investigating entities, for example in section 162 of the Independent Broad-based Anti-corruption Commission Act 2011.


Clause 44 amends section 73 of the Principal Act to replace the words "protected disclosure" and "protected disclosure complaint" with "public interest disclosure" and "public interest complaint" respectively.

Clause 45 repeals section 74 of the Principal Act.

32

Section 74 makes it an offence to disclose certain advice provided under the Principal Act. The Bill provides a definition of restricted matter in each investigating entity's legislation that includes the matters covered by section 74 (see clauses 49, 58, 73, 102, 105 and 108). This means that investigating entities can issue confidentiality notices in respect of the matters currently covered by section 74, making section 74 unnecessary.

Clause 46 amends section 78 of the Principal Act to replace the words "protected disclosure complaint" with "public interest complaint".

Clause 47 inserts a transitional provision. Subsection (2) provides that, despite its repeal by section 45 of the Bill, section 74 continues to apply (as in force immediately before the commencement day) in relation to any disclosure notified to the IBAC before the commencement day until the first anniversary of the day on which the disclosure was notified to the IBAC, or an investigation entity issues a confidentiality notice in respect of the information disclosed, whichever occurs first.

Clause 48 inserts new Schedule 2 into the Principal Act. Schedule 2 sets out the persons permitted to receive public interest disclosures on behalf of an entity. This makes it easier to determine to whom a public interest disclosure can be made under the Principal Act.

Division 3—Amendment of Independent Broad-based Anti-corruption Commission 2011

Clause 49 amends section 3 of the Independent Broad-based Anti-corruption Commission Act 2011 to insert a new definition of public interest complaint and, consequentially, repeal the definition of protected disclosure complaint.

Clause 49 also amends the definitions of assessable disclosure, detrimental action and restricted matter.

Clause 50 amends section 7 of the Independent Broad-based Anti-corruption Commission Act 2011 to replace the words "protected disclosure complaint" with "public interest complaint".

Clause 51 amends section 15 of the Independent Broad-based Anti-corruption Commission Act 2011 to replace the words "protected disclosure complaints" and "Protected Disclosure

33

Act 2012" with "public interest complaints" and "Public Interest Disclosures Act 2012" respectively.

Clause 52 amends section 42 of the Independent Broad-based Anti-corruption Commission Act 2011 to replace the words "Protected Disclosure Act 2012" with "Public Interest Disclosures Act 2012" and to repeal section 42(2)(e), as a consequence of the changes made by clause 53.

Clause 53 amends section 44 of the Independent Broad-based Anti-corruption Commission Act 2011.

Section 44(1) makes it an offence to disclose a restricted matter specified in a confidentiality notice, subject to subsections (2), (3), (4) and (5). Clause 53 amends section 44 to provide that subsection (1) is also subject to new subsections (2A) and (2B).

Clause 53 inserts into section 44—

new subsection (2A), which provides that a restricted matter specified in a confidentiality notice may be disclosed to an investigating entity to which the IBAC has referred the relevant matter under section 73 of the Independent Broad-based Anti-corruption Commission Act 2011;

new subsection (2B), which provides that a restricted matter specified in a confidentiality notice may be disclosed to Victoria Police if—

the IBAC has disclosed information to the Chief Commissioner of Police under section 41 of the Independent Broad-based Anti-corruption Commission Act 2011; and

the restricted matter is relevant to an investigation by Victoria Police of actual or potential criminal conduct; and

new subsection (8), which provides definitions of Fair Work Commission, investigating entity, registered health practitioner, relevant Act and Victorian WorkCover Authority for the purposes of section 44.

Clause 53 also amends section 44(2) to provide that a restricted matter specified in a confidentiality notice may be disclosed—

34

for the purposes of a proceeding for an offence against, or a disciplinary process or action instituted in respect of conduct that could constitute an offence against, the Judicial Commission of Victoria Act 2016 or Part IIIAA of the Constitution Act 1975; and

unless the IBAC directs otherwise—

to the person's spouse or domestic partner;

to the person's employer or manager or both;

to any of the following for the purpose of assisting the person to seek advice or support in relation to the investigation in respect of which the confidentiality notice has been issued—

a registered health practitioner; or

a trade union, within the meaning of the Workplace Relations Act 1996 of the Commonwealth, of which the person is a member;

an employee assistance program;


to a prescribed service for a purpose prescribed for that service;

for the purpose of an application to the Fair Work Commission, including any related proceeding; and

as is otherwise authorised or required to be made by or under the Independent Broad-based Anti-corruption Commission Act 2011.

Clause 53 also amends section 44(5) to provide that a restricted matter specified in a confidentiality notice may be disclosed if the matter has been disclosed by the IBAC, an investigating entity or the Integrity and Oversight Committee in a report, or has otherwise been made public in accordance with any Act.

35

Clause 53 also replaces the words "Protected Disclosure Act 2012" in section 44 with "Public Interest Disclosures Act 2012".

Clause 54 amends section 73 of the Independent Broad-based Anti-corruption Commission Act 2011 to permit the IBAC to refer a public interest complaint to an entity in accordance with new section 73A, which is inserted by clause 55.

Clause 54 also replaces the words "protected disclosure complaint" in section 73 with "public interest complaint".

Clause 55 inserts section 73A into the Independent Broad-based Anti-corruption Commission Act 2011.

New section 73A(1) provides that, subject to section (2) and (3), the IBAC may refer a public interest complaint to the Chief Municipal Inspector, Racing Integrity Commissioner or Information Commissioner.

New section 73A(2) provides that the IBAC must not refer a public interest complaint to the Racing Integrity Commissioner or Information Commissioner if IBAC suspects on reasonable grounds that the conduct the subject of the complaint is corrupt conduct.

New section 73A(3) provides that the IBAC may only refer a public interest complaint to the Chief Municipal Inspector, Racing Integrity Commissioner or Information Commissioner if—

the subject matter of the complaint is relevant to the performance of the duties and functions or the exercise of powers of that person or body; and

the complaint does not relate to the conduct of the person or body or the conduct of an employee, member or officer of the person or body; and

the IBAC considers that—

it is more appropriate for the complaint to be investigated by that person or body than by the IBAC or any other investigating entity; and

36

the referral would not increase the risk to any person's health, safety or welfare; and

the IBAC has consulted with the person and body before the public interest complaint is referred to the person or body.

Clause 56 amends section 77 of the Independent Broad-based Anti-corruption Commission Act 2011 to insert new subsections (2) and (3).

New section 77(2) provides that the IBAC may disclose information likely to lead to the identification of a person who made an assessable disclosure to the Chief Commissioner of Police if—

the IBAC has determined that the assessable disclosure is a public interest complaint; and

the IBAC has referred the public interest complaint to the Chief Commissioner for investigation; and

the person has consented to the disclosure of the information.

New section 77(3) provides that, before making a disclosure referred to in section 77(2), the IBAC must consult with the person who made the public interest complaint.

Clause 57 provides that on the coming into operation of an item in Part A of the Schedule to the Bill, the Independent Broad-based Anti-corruption Commission Act 2011 is amended as set out in the item.

Division 4—Amendment of Victorian Inspectorate Act 2011

Clause 58 amends section 3(1) of the Victorian Inspectorate Act 2011 to insert new definitions of Principal Public Interest Monitor and public interest complaint.

37

Clause 58 also amends the definitions of assessable disclosure, and restricted matter, and repeals the definition of protected disclosure complaint.

Clause 59 re-enacts section 4 of the Victorian Inspectorate Act 2011 to provide that, for the purpose of the Victorian Inspectorate Act 2011, a public interest complaint is taken to be a complaint under section 43 and the person who made the public interest complaint is taken to be the complainant.

Clause 60 amends section 11 of the Victorian Inspectorate Act 2011 to replace the words "Protected Disclosure Act 2012" with "Public Interest Disclosures Act 2012".

Clause 61 inserts section 36A into the Victorian Inspectorate Act 2011. New section 36A(1) permits the Victorian Inspectorate to provide or disclose information received or obtained in the course of the performance of its duties and functions or the exercise of its powers to persons or bodies specified in subsection (3), if—

the information is relevant to the performance of the duties and functions or the exercise of the powers of the person or body; and

it is appropriate for the information to be brought to the attention of the person or body, having regard to the nature of the information.

New section 36A(2) provides that the Victorian Inspectorate must not provide or disclose information to a person or body if the person or body, or an employee of the person or body, is the subject of an assessable disclosure and the information would be likely to lead to the identification of a person who made the assessable disclosure (except where section 53(2)(a), (c) or (d) of the Principal Act applies).

New section 36A(3) provides that the Victorian Inspectorate may provide or disclose information in accordance with subsection (1) to the IBAC, the Ombudsman, the Auditor-General, Victoria Police, the Director of Public Prosecutions, the Commission for Children and Young People established under section 6 of the

38

Commission for Children and Young People Act 2012, the Australian Federal Police constituted under section 6 of the Australian Federal Police Act 1979 of the Commonwealth, the police force or police service of another State or a Territory, or a prescribed person or body.

New section 36A(4) provides that subsection (1) applies subject to any restriction on the provision or disclosure of information under the Victorian Inspectorate Act 2011 or any other Act (including any Commonwealth Act).

Clause 62 amends section 38 of the Victorian Inspectorate Act 2011 to replace the words "Protected Disclosure Act 2012" with "Public Interest Disclosures Act 2012" and to repeal section 38(2)(e), as a consequence of the changes made by clause 63.

Clause 63 amends section 39 of the Victorian Inspectorate Act 2011.

Section 39(1) makes it an offence to disclose a restricted matter specified in a confidentiality notice, subject to subsections (2) and (3). Clause 63 amends section 39 to provide that subsection (1) is also subject to new subsection (2A).

Clause 63 inserts into section 39—

new section 39(2A), which provides that a restricted matter specified in a confidentiality notice may be disclosed to Victoria Police if—

the Victorian Inspectorate has disclosed information to the Chief Commissioner of Police under new section 36A (inserted by clause 61); and


new section 39(6), which provides definitions of Fair Work Commission, investigating entity, registered health practitioner, relevant Act and Victorian WorkCover Authority for the purposes of section 39.

Clause 63 also amends section 39(2) to provide that a restricted matter specified in a confidentiality notice may be disclosed—

39

unless the Victorian Inspectorate directs otherwise—










as is otherwise authorised or required to be made by or under the Victorian Inspectorate Act 2011.

Clause 63 also amends section 39(3) to provide that a restricted matter specified in a confidentiality notice may be disclosed if the matter has been disclosed by the Victorian Inspectorate, another investigating entity or the Integrity and Oversight Committee in a report, or has otherwise been made public in accordance with any Act.


Clause 64 amends section 44 of the Victorian Inspectorate Act 2011 to provide that the Victoria Inspectorate must investigate a public interest complaint and to insert new subsection (6B).

New section 44(6B) provides that, before investigating a public interest complaint that relates to a Public Interest Monitor, the

40

Victorian Inspectorate must notify the Minister (if the public interest complaint relates to the Principal Public Interest Monitor) or the Principal Public Interest Monitor (if the public interest complaint relates to any other Public Interest Monitor) unless the Victorian Inspectorate reasonably believes that giving notice of the investigation could prejudice the investigation of the complaint.

Clause 64 also replaces the words "protected disclosure complaint" and "Protected Disclosure Act 2012" in section 44 with "public interest complaint" and "Public Interest Disclosures Act 2012" respectively.

Clause 65 amends the heading to section 45 of the Victorian Inspectorate Act 2011 to replace the words "protected disclosure complaint" with "public interest complaint".

Clause 66 amends section 47 of the Victorian Inspectorate Act 2011 to insert new subsection (4B). New section 47(4B) provides that, for the purposes of conducting an investigation in relation to a public interest complaint that relates to a Public Interest Monitor, the Victorian Inspectorate—

may investigate any aspect of the conduct of a Public Interest Monitor or a person who assists a Public Interest Monitor;

has full and free access to all the records of the Public Interest Monitor and may copy any record, or part of any record, of the Public Interest Monitor;

may require a Public Interest Monitor or a person who assists a Public Interest Monitor to give the Victorian Inspectorate any information in that person's possession which the Victorian Inspectorate considers is relevant to the investigation; and

may require a Public Interest Monitor or a person who assists a Public Interest Monitor to attend before the Victorian Inspectorate to answer questions or to produce documents or other things relating to the conduct of the Public Interest Monitor.

Clause 67 amends section 48 of the Victorian Inspectorate Act 2011 to insert new subsection (6). New section 48(6) provides that the Principal Public Interest Monitor must give any assistance, and

41

ensure that any other Public Interest Monitor and any staff or other persons assisting a Public Interest Monitor give any assistance, to the Victorian Inspectorate that the Victorian Inspectorate reasonably requires to conduct an investigation of a public interest complaint that relates to a Public Interest Monitor.

Clause 68 inserts sections 85D and 85E into the Victorian Inspectorate Act 2011.

New section 85D provides that, following an investigation of a public interest complaint relating to a Public Interest Monitor, the Victorian Inspectorate may make recommendations in relation to any action that the Victorian Inspectorate considers should be taken to—

the Minister (following an investigation into a complaint relating to the Principal Public Interest Monitor); or

the Principal Public Interest Monitor (following an investigation into a complaint relating to a Public Interest Monitor, other than the Principal Public Interest Monitor).

New section 85D(3) provides that the recommendations the Victorian Inspectorate may make include recommendations to take action to prevent specified conduct from continuing or occurring in the future or to remedy any harm or loss arising from any conduct.

New section 85E provides that if the Victorian Inspectorate is satisfied that any conduct of a Public Interest Monitor that has been the subject of a public interest complaint should be the subject of any further investigatory or enforcement action, the Victorian Inspectorate may make a recommendation to that effect to the Chief Commissioner of Police, Director of Public Prosecution, Australian Federal Police, Victorian WorkCover Authority or a person or body prescribed for the purposes of the section.

Clause 69 inserts section 86A into the Victorian Inspectorate Act 2011, which sets out information that the Victorian Inspectorate must not include in a recommendation under new section 85D or new section 85E.

42

New section 86A provides that the Victorian Inspectorate must not include in recommendation information that—

discloses or may lead to the disclosure of the identity of any person involved in an investigation relating to a relevant application made by a law enforcement agency (law enforcement agency and relevant application having the meaning given by section 13(12) of the Victorian Inspectorate Act 2011;

indicates that a particular investigation has been, is being, or is to be conducted;

would compromise the operational activities or methodologies of Victoria Police or of any approved authority within the meaning of section 3(1) of the Witness Protection Act 1991;

would prejudice any criminal proceedings, criminal investigations or IBAC investigations of which the Victorian Inspectorate is aware;

is likely to lead to the identification of a person who made an assessable disclosure and that is not information to which section 53(2)(a), (c) or (d) of the Public Interest Disclosures Act 2012 applies;

identifies, or is likely to identify, any person who is being, or has been examined under the Major Crime (Investigative Powers) Act 2004 or the nature of any ongoing investigation of an organised crime offence within the meaning of that Act; or

would disclose information about the identity or location, or compromise the security, of a person who is or has been included in the Victorian witness protection program, within the meaning of the Witness Protection Act 1991, or to whom alternative protection arrangements, within the meaning of that Act, are being or have been provided.

New section 86A provides that the Victorian Inspectorate must not include in a recommendation made under new section 85D a finding or opinion that a person is guilty of, or has committed, is committing or is about to commit, any criminal offence or disciplinary offence, or a recommendation that a person be, or an

43

opinion that a person should be, prosecuted for a criminal offence or disciplinary offence.

Clause 70 amends section 88 of the Victorian Inspectorate Act 2011. Section 88(1) provides that the Victorian Inspectorate may provide a complainant with information about the results of an investigation or inquiry.

Clause 70 amends section 88(1)(b) to provide that the Victorian Inspectorate may provide a complainant with information about a recommendation made under section 81, 83, 85 or 85E.

Clause 70 also inserts new section 88(4) to provide that, where an investigation or inquiry relates to a public interest complaint about the conduct of a Public Interest Monitor, the Victorian Inspectorate must not provide a complainant with any information that—

discloses or may lead to the disclosure of the identity of any person involved in an investigation relating to a relevant application made by a law enforcement agency;

indicates that a particular investigation has been, is being, or is to be conducted;

would compromise the operational activities or methodologies of Victoria Police or of any approved authority within the meaning of section 3(1) of the Witness Protection Act 1991;

would prejudice any criminal proceedings, criminal investigations or IBAC investigations of which the Victorian Inspectorate is aware;

is likely to lead to the identification of a person who made an assessable disclosure and that is not information to which section 53(2)(a), (c) or (d) of the Public Interest Disclosures Act 2012 applies;

identifies, or is likely to identify, any person who is being, or has been examined under the Major Crime (Investigative Powers) Act 2004 or the nature of any ongoing investigation of an organised crime offence within the meaning of that Act; or

would disclose information about the identity or location, or compromise the security, of a person

44

who is or has been included in the Victorian witness protection program, within the meaning of the Witness Protection Act 1991, or to whom alternative protection arrangements, within the meaning of that Act, are being or have been provided.

Clause 70 also replaces the words "protected disclosure complaint" in section 88(2) with "public interest complaint".

Clause 71 amends section 89 of the Victorian Inspectorate Act 2011 to provide that after conducting an investigation in relation to a Public Interest Monitor the Victorian Inspectorate may determine to make no findings or take no action following the investigation, or do any combination of the following—

make a recommendation to the Principal Public Interest Monitor or the Minister in accordance with section 85D;

make a recommendation to the Chief Commissioner of Police, Director of Public Prosecutions, Australian Federal Police, Victorian WorkCover Authority and/or a prescribed person or body in accordance with section 85E; or

provide advice to a complainant in accordance with section 88.

Clause 72 provides that on the coming into operation of an item in Part B of the Schedule to the Bill, the Victorian Inspectorate Act 2011 is amended as set out in the item.

Division 5—Amendment of Ombudsman Act 1973

Clause 73 amends section 2 of the Ombudsman Act 1973 to insert new definitions of public interest complaint, public interest disclosure and relevant public interest complaint.

Clause 73 also amends section 2 to—

amend the definitions of assessable disclosure and restricted matter;

repeal the definitions of protected disclosure complaint, protected disclosure entity and relevant protected disclosure complaint; and

45

replace the words "protected disclosure complaint" and "Protected Disclosure Act 2012" with "public interest complaint" and "Public Interest Disclosures Act 2012" respectively.

Clause 74 amends section 17 of the Ombudsman Act 1973 to repeal subsection (1A), as a consequence of the changes made by clause 78.

Clause 74 also amends section 17 to replace the words—

"relevant protected disclosure complaint" with "relevant public interest complaint";

"protected disclosure entity" with "public interest disclosure entity";

"Protected Disclosure Act 2012" with "Public Interest Disclosures Act 2012"; and

"protected disclosure complaint" with "public interest complaint".

Clause 75 amends section 24 of the Ombudsman Act 1973 to repeal subsection (4) as a consequence of the changes made by clause 78.

Clause 75 also amends section 24 to replace the words "relevant protected disclosure complaint" with "relevant public interest complaint".

Clause 76 amends section 26C of the Ombudsman Act 1973 to repeal subsection (2)(d) as a consequence of the changes made by clause 77.

Clause 76 also amends section 26C to replace the words "Protected Disclosure Act 2012" with "Public Interest Disclosures Act 2012".

Clause 77 amends section 26F of the Ombudsman Act 1973.

Section 26F(1) makes it an offence to disclose a restricted matter specified in a confidentiality notice, subject to subsections (2), (3) and (4). Clause 77 amends section 26F to provide that subsection (1) is also subject to new subsections (2A) and (2B).

Clause 77 inserts into section 26F—

46

new subsection (2A), which provides that a restricted matter specified in a confidentiality notice may be disclosed to the IBAC in circumstances where the IBAC has withdrawn its referral of the complaint to which the restricted matter relates in accordance with section 79 of the Independent Broad-based Anti-corruption Commission Act 2011;

new subsection (2B), which provides that a restricted matter specified in a confidentiality notice may be disclosed to Victoria Police if—

the Ombudsman has disclosed information to the Chief Commissioner of Police under section 16L; and


new subsection (9), which provides definitions of Fair Work Commission, investigating entity, registered health practitioner, relevant Act and Victorian WorkCover Authority for the purposes of section 39.

Clause 77 also amends section 26F(2) to provide that a restricted matter specified in a confidentiality notice may be disclosed—

unless the Ombudsman directs otherwise—







47




as is otherwise authorised or required to be made by or under the Ombudsman Act 1973.

Clause 77 also amends section 26F(5) to provide that a restricted matter specified in a confidentiality notice may be disclosed if the matter has been disclosed by the Ombudsman, another investigating entity or the Integrity and Oversight Committee in a report, or has otherwise been made public in accordance with any Act.

Clause 76 also replaces the words "Protected Disclosure Act 2012" in section 26F with "Public Interest Disclosures Act 2012".

Clause 78 repeals Division 3 of Part VA of the Ombudsman Act 1973.

Division 3 of Part VA makes it an offence to disclose certain advice provided under section 17 or 24 of the Ombudsman Act 1973. Clause 73 amends the definition of restricted matter to include the advice that could be provided under section 17 or 24. This means that the Ombudsman can issue a confidentiality notice in respect of the matters currently covered by Division 3 of Part VA, making Division 3 of Part VA unnecessary.

Clause 79 provides that on the coming into operation of an item in Part C of the Schedule to the Bill, the Ombudsman Act 1973 is amended as set out in the item.

Division 6—Amendment of Victoria Police Act 2013

Clause 80 amends section 3 of the Victoria Police Act 2013 to insert a new definition of public interest complaint and to repeal the definition of protected disclosure complaint.

Clause 81 amends section 72 of the Victoria Police Act 2013 to insert a note at the foot of section 72(2)(a), providing that a complaint by

48

a police officer or protective services officer about the conduct of another police officer or protective services officer made under section 167(3) of the Victoria Police Act 2013 is a disclosure to which Part 6 of the Principal Act applies. This clarifies the interaction between the Principal Act and section 167(3) from the time a complaint under section 167(3) is made.

Clause 81 also amends section 72 to replace the words "Protected Disclosure Act" with "Public Interest Disclosures Act".

Clause 82 amends section 167 of the Victoria Police Act 2013 to insert a note at the foot of section 167(3), providing that the protections under Part 6 of the Principal Act apply to a complaint made in accordance with subsection (3).

Clause 82 also amends section 167 to replace the words "Protected Disclosure Act" with "Public Interest Disclosures Act".

Clause 83 amends the heading to Part 10 of the Victoria Police Act 2013 to replace the words "protected disclosure complaints" with "public interest complaints".

Clause 84 amends section 175 of the Victoria Police Act 2013 to replace the words "protected disclosure complaint" with "public interest complaint", and to replace an incorrect reference to Division 4 (instead of Division 5) of Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011.

Clause 85 amends section 181 of the Victoria Police Act 2013 to insert new subsection (2).

Section 181(1) requires the Chief Commissioner of Police, on completing an investigation under Part 10 of the Victoria Police Act 2013, to inform the person who made the public interest complaint of the outcome of the investigation.

New subsection (2) provides that subsection (1) does not apply where the public interest complaint to which the investigation relates was made anonymously, or where the IBAC has not disclosed the identity of the person who made the public interest complaint to the Chief Commissioner of Police under section 77(2) of the Independent Broad-based Anti-corruption Commission Act 2011.

49

Clause 86 amends section 183 of the Victoria Police Act 2013 to amend the definitions of applicable law and restricted matter.

Clause 87 amends section 185 of the Victoria Police Act 2013. Section 185(1) makes it an offence to disclose a restricted matter.

Clause 87 amends section 185(2) to provide that to provide that subsection (1) does not apply to the disclosure of a restricted matter—

to the Chief Commissioner of Police by the person who has made a disclosure to which the restricted matter relates where the disclosure is made for the purposes of an investigation by the Chief Commissioner of Police of the disclosure as a public interest disclosure;

for the purpose of obtaining legal advice or representation in relation to the person's rights, liabilities, obligations and privileges under Part 10 of the Victoria Police Act 2013 or a relevant Act;








to a prescribed service for a purpose prescribed for that service; or

for the purpose of an application to the Fair Work Commission, including any related proceeding.

Clause 87 amends section 185(3) to provide that subsection (1) does not apply if the disclosure made is of information that has

50

been published by an investigating entity or the Integrity and Oversight Committee in a report or has otherwise been made public in accordance with any Act.

Clause 87 inserts a new subsection 185(5), which provides new definitions of the Fair Work Commission, registered health practitioner, relevant Act and Victorian WorkCover Authority for the purpose of section 185.


Clause 88 amends section 190 of the Victoria Police Act 2013 to replace the words "protected disclosure complaint" with "public interest complaint".

Clause 89 provides that on the coming into operation of an item in Part D of the Schedule to the Bill, the Victoria Police Act 2013 is amended as set out in the item.

Division 7—Amendment of Parliamentary Committees Act 2003

Clause 90 amends section 3 of the Parliamentary Committees Act 2003 to insert new definitions of assessable disclosure and public interest complaint.

Clause 91 amends section 7(1) of the Parliamentary Committees Act 2003 to provide the Committee with the functions of—

receiving and assessing public interest disclosures about conduct by or in the Victorian Inspectorate, and engaging an independent person to investigate any such disclosure that it has assessed to be a public interest complaint; and

carrying out any other function conferred on the Committee by or under the Public Interest Disclosures Act 2012.

Part 8 of the Public Interest Disclosures Act 2012 also sets out the functions of the Integrity and Oversight Committee under that Act.

Clause 91 also amends section 7(2) to—

51

replace the words "Protected Disclosure Act 2012" with "Public Interest Disclosures Act 2012";

replace the words "protected disclosure complaint" with "public interest complaint"; and

insert a note at the foot of section 12A referring to Part 8 of the Principal Act and Part VB of the Ombudsman Act 1973, which set out the Committee's functions under those Acts.

Clause 92 inserts section 7A in the Parliamentary Committees Act 2003.

New section 7A(1) provides that the Integrity and Oversight Committee may provide or disclose information received or obtained in the course of an investigation of an assessable disclosure under Part 4A of the Principal Act to a person or body specified in subsection (3) if the Committee considers that—



New section 7A(2) provides that the Integrity and Oversight Committee must not disclose information to a person or body if the person or body, or an employee of the person or body, is the subject of an assessable disclosure and the information would be likely to lead to the identification of a person who made the assessable disclosure (except where section 53(2)(a), (c) or (d) of the Principal Act applies).

New section 7A(3) provides that the Integrity and Oversight Committee may provide or disclose information in accordance with subsection (1) to the IBAC, the Victorian Inspectorate, the Ombudsman, the Auditor-General, Victoria Police, the Director of Public Prosecutions, the Commission for Children and Young People established under section 6 of the Commission for Children and Young People Act 2012, the Australian Federal Police constituted under section 6 of the Australian Federal

52

Police Act 1979 of the Commonwealth, the police force or police service of another State or a Territory, or a prescribed person or body.

Division 8—Amendment of Judicial Commission of Victoria Act 2016

Clause 93 amends section 3 of the Judicial Commission of Victoria Act 2016 to insert a new definition of public interest complaint, amend the definition of assessable disclosure and repeal the definition of protected disclosure complaint.

Clause 94 amends section 9 of the Judicial Commission of Victoria Act 2016 to replace the words "protected disclosure complaint" with "public interest complaint".

Clause 95 amends section 11 of the Judicial Commission of Victoria Act 2016 to replace the words "Protected Disclosure Act 2012" with "Public Interest Disclosures Act 2012".

Clause 96 amend section 17 of the Judicial Commission of Victoria Act 2016 to replace the words "protected disclosure complaint" with "public interest complaint".

Clause 97 amends section 24, 47 and 62 of the Judicial Commission of Victoria Act 2016 to replace the words "Protected Disclosure Act 2012" with "Public Interest Disclosures Act 2012".

Clause 98 amends section 77 of the Judicial Commission of Victoria Act 2016 to replace the words—

"protected disclosure complaint" with "public interest complaint"; and

"Protected Disclosure Act 2012" with "Public Interest Disclosures Act 2012".



53


Division 9—Amendment of Local Government Act 1989

Clause 102 amends section 3 of the Local Government Act 1989 to insert new definitions of assessable disclosure, confidentiality notice, domestic partner, public interest complaint, restricted matter, spouse and registered relationship.

Clause 103 amends section 223A of the Local Government Act 1989 to provide that the Chief Municipal Inspector has the function to investigate public interest complaints that relate to the conduct of Councillors or senior officers of a Council.

Clause 104 inserts sections 223BA, 223BB, 223BC, 223BD, 223BE, 223BF, 223BG, 223BH, 223BI, 223BJ, 223BK, 223BL and 223BM in the Local Government Act 1989.

New section 223BA provides that, subject to new sections 223BB and 223BC, the Chief Municipal Inspector must conduct an investigation under the Local Government Act 1989 on a public interest complaint referred to the Chief Municipal Inspector by the IBAC.

New section 223BB(1) provides that the Chief Municipal Inspector must refuse to conduct an investigation on a public interest complaint if the investigation would prejudice any criminal proceedings, criminal investigations, IBAC investigations or Victorian Inspectorate investigations. New section 223BB(2) provides that for the purposes of ensuring compliance with subsection (1), the Chief Municipal Inspector may consult the Director of Public Prosecutions, the Chief Commissioner of Police, the IBAC or the Victorian Inspectorate.

New section 223BC provides that the Chief Municipal Inspector may refuse to conduct an investigation on a public interest complaint if—

the Chief Municipal Inspector considers the subject-matter of the public interest complaint has already been investigated or otherwise dealt with by an integrity body within the meaning of the Independent Broad-based

54

Anti-corruption Commission Act 2011 or another body or person with the power to require the production of documents or the answering of questions; or

the person who made the public interest complaint made the disclosure that was determined to be a public interest complaint more than 12 months after becoming aware of the disclosed matter and fails to give a satisfactory explanation for the delay in making the disclosure; or

the Chief Municipal Inspector considers the conduct does not amount to improper conduct or detrimental action within the meaning of the Principal Act.

New section 223BD provides that, if the Chief Municipal Inspector refuses under section 223BB or 223BC to conduct an investigation on a public interest complaint, the Chief Municipal Inspector must, within a reasonable time after the complaint was referred by the IBAC, inform the IBAC and the person who made the disclosure of the refusal to conduct the investigation and the reason for the refusal.

New section 223BE provides that if, at any time before, during or after an investigation of a public interest complaint, the Chief Municipal Inspector believes that the conduct that is the subject of the complaint appears to involve corrupt conduct, the Chief Municipal Inspector must notify the IBAC of that belief and, if the investigation of the public interest complaint has not been completed, suspend the investigation pending a response from the IBAC to the notification.

New section 223BF sets out the Chief Municipal Inspector's powers and obligations following an investigation. Section 223BF(1) provides that on completion of an investigation on a public interest complaint, the Chief Municipal Inspector—

must report the findings of the investigation to the relevant Council and the Minister; and

may make recommendations as to the action to be taken as a result of the investigation to the Minister or the relevant Council.

New section 223BF(2) provides that, if the Chief Municipal Inspector makes recommendations to the relevant Council, the

55

Chief Municipal Inspector must provide the Minister with a copy of those recommendations, and may request the relevant Council to notify the Chief Municipal Inspector within a specified time of the steps to be taken to address the recommendations.

New section 223BF(3) provides that, if no appropriate steps have been taken by the relevant Council to address the recommendations of the Chief Municipal Inspector within a reasonable time after those recommendations were made, the Chief Municipal Inspector may advise the Minister of that failure.

New section 223BF(4) provides that the Chief Municipal Inspector must not include in a report under new section 223BF information that is likely to lead to the identification of a person who has made an assessable disclosure and is not information to which section 53(2)(a), (c) or (d) of the Principal Act applies.

New section 223BF(5) provides that the Chief Municipal Inspector may prosecute any possible breach of the Local Government Act 1989 identified in the course of the investigation of the public interest complaint.

New section 223BG(1) provides that, if the Chief Municipal Inspector conducts an investigation on a public interest complaint, the Chief Municipal Inspector must inform the person who made the complaint (unless the complaint was made anonymously) of the result of the investigation and any other information that the Chief Municipal Inspector thinks proper. New section 223BG(2) provides that the Chief Municipal Inspector must not disclose information under section 223BG if the Chief Municipal Inspector considers that the disclosure of the information would—

not be in the public interest or in the interests of justice;

put a person's safety at risk;

cause unreasonable damage to a person's reputation;

prejudice any criminal proceedings or investigations, or an investigation by the IBAC, the Ombudsman, the Victorian Inspectorate or the Chief Municipal Inspector; or

otherwise contravene any applicable statutory secrecy obligations or involve the unreasonable disclosure of

56

information relating to the personal affairs of any person.

New section 223BH provides that, if a public interest complaint is referred by the IBAC to the Chief Municipal Inspector for investigation, the Chief Municipal Inspector must not disclose any information that is likely to lead to the identification of a person who has made an assessable disclosure and is not information to which section 53(2)(a), (c) or (d) of the Principal Act applies.

New section 223BI(1) provides that the Chief Municipal Inspector may provide or disclose information received or obtained in the course of an investigation of an assessable disclosure to a person or body specified in subsection (3) if the Chief Municipal Inspector considers that—



New section 223BI(2) provides that the Chief Municipal Inspector must not disclose information to a person or body if the person or body, or an employee of the person or body, is the subject of an assessable disclosure and the information would be likely to lead to the identification of a person who made the assessable disclosure (except where section 53(2)(a), (c) or (d) of the Principal Act applies).

New section 223BI(3) provides that the Chief Municipal Inspector may provide or disclose information in accordance with subsection (1) to the IBAC, the Victorian Inspectorate, the Ombudsman, the Auditor-General, Victoria Police, the Director of Public Prosecutions, the Commission for Children and Young People established under section 6 of the Commission for Children and Young People Act 2012, the Australian Federal Police constituted under section 6 of the Australian Federal

57

Police Act 1979 of the Commonwealth, the police force or police service of another State or a Territory, or a prescribed person or body.

New section 223BJ(1) provides that the Chief Municipal Inspector must issue a confidentiality notice to a person during an investigation on a public interest complaint if the Chief Municipal Inspector considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice—

an investigation by the IBAC or the Victorian Inspectorate;

the safety or reputation of a person; or

the fair trial of a person who has been or may be charged with an offence.

The Chief Municipal Inspector may not issue a confidentiality notice to an IBAC officer or a Victorian Inspectorate officer.

New section 223BJ(2) provides that a confidentiality notice must—

be in the prescribed form;

specify the restricted matter or restricted matters in respect of which the confidentiality notice is issued;

include a copy of the provisions of subsections (3) to (7) and new sections 223BK and 223BM of the Local Government Act 1989 and an explanation of the effect of those provisions; and

include a statement advising the person to whom the confidentiality notice is issued that additional obligations under the Principal Act relating to confidentiality may apply to the person and directing the person to the provisions of the Principal Act which impose those obligations.

New sections 223BJ(3) and (4) provide that if at any time the Chief Municipal Inspector considers on reasonable grounds that—

it is necessary to restrict disclosure of a different restricted matter from any of those specified in a confidentiality notice in respect of a particular

58

investigation to ensure that the disclosure would not be likely to have the effect specified in subsection (1)(a), (b) or (c); or

disclosure of a particular restricted matter specified in a confidentiality notice in respect of a particular investigation would no longer be likely to have the effect specified in subsection (1)(a), (b) or (c);

the Chief Municipal Inspector must issue to the person to whom the confidentiality notice was issued—

a notice cancelling the previous confidentiality notice; and

a new confidentiality notice in respect of that investigation under subsection (1).

New section 223BJ(5) provides that if at any time the Chief Municipal Inspector considers on reasonable grounds that disclosure of the restricted matter or restricted matters specified in a confidentiality notice in respect of a particular investigation would no longer be likely to have the effect specified in subsection (1)(a), (b) or (c), the Chief Municipal Inspector must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice.

New section 223BJ(6) provides that, at the conclusion of an investigation in respect of which a confidentiality notice was issued, the Chief Municipal Inspector must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice, unless—

the Chief Municipal Inspector has applied for an order under new section 223BK extending the confidentiality notice and the application has not been determined;

the Supreme Court has made an order under new section 223BK extending the confidentiality notice; or

the confidentiality notice has already been cancelled under subsection (3), (4) or (5) or new section 223BK(3).

New section 223BJ(7) provides that confidentiality notice in respect of a particular investigation ceases to have effect on the date on which the Chief Municipal Inspector issues a notice cancelling the confidentiality notice under subsection (3), (4), (5)

59

or (6) or new section 223BK(3), or the date specified in an order under new section 223BK extending the confidentiality notice—whichever occurs first.

New section 223BJ(8) provides that a confidentiality notice under subsection (1) or a notice cancelling a confidentiality notice under subsection (3), (4), (5) or (6) may be issued to a person by serving a copy on the person in accordance with section 234 of the Local Government Act 1989.

New section 223BK(1) provides that if, before the conclusion of an investigation in respect of which a confidentiality notice has been issued, the Chief Municipal Inspector considers on reasonable grounds that it is necessary to extend the confidentiality notice for a period following the investigation, the Chief Municipal Inspector may apply to the Supreme Court for an order extending the confidentiality notice.

New section 223BK(2) provides that on an application under subsection (1), the Supreme Court may, by order, extend a confidentiality notice to a date specified in the order, if the Supreme Court is satisfied that disclosure of the restricted matter or restricted matters specified in the confidentiality notice before that date would be likely to have the effect specified in section 223BJ(1)(a), (b) or (c).

New section 223BK(3) provides that if, on an application under subsection (1), the Supreme Court declines to make an order under subsection (2), the Chief Municipal Inspector must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice, unless the investigation in respect of which the confidentiality notice was issued has not concluded.

New section 223BK(4) provides that a notice cancelling a confidentiality notice under subsection (3) may be issued to a person by serving a copy on the person in accordance with section 234 of the Local Government Act 1989.

New section 223BL provides that the Chief Municipal Inspector must, as soon as reasonably practicable, provide the IBAC with a copy of—

each confidentiality notice issued by the Chief Municipal Inspector;

60

each notice cancelling a confidentiality notice issued by the Chief Municipal Inspector under section 223BJ(3), (4), (5) or (6) or section 223BK(3);

each application to the Supreme Court under section 223BK(1) to extend a confidentiality notice; and

each order of the Supreme Court under section 223BK(2) extending a confidentiality notice.

New section 223BM(1) provides that, except as provided in section 223BM, a person who is duly served with a confidentiality notice (and, if applicable, a copy of any order extending the confidentiality notice) or receives a copy of a confidentiality notice under subsection (8) or (9) (and, if applicable, a copy of any order extending the confidentiality notice) must not disclose a restricted matter specified in the confidentiality notice while it has effect. The penalty for breach of this provision is 120 penalty units or imprisonment for 12 months or both.

New section 223BM(2) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure is made—

in accordance with a direction or authorisation given by the Chief Municipal Inspector;

to any person where necessary for the purposes of obtaining any information, document or other thing to comply with a witness summons or a confidentiality notice, a notice cancelling a confidentiality notice or an order extending a confidentiality notice, including—

to an interpreter—if the person does not have a sufficient knowledge of the English language to understand the nature of the witness summons or confidentiality notice, notice cancelling the confidentiality notice or order extending the confidentiality notice;

to a parent, guardian or independent person—if the person is under the age of 18 years;

to an independent person—if the person is illiterate or has a mental, physical or other impairment which prevents the person

61

from understanding the witness summons, confidentiality notice, notice cancelling the confidentiality notice or order extending the confidentiality notice without assistance;

for the purposes of obtaining legal advice or representation in relation to—

an investigation conducted by the Chief Municipal Inspector under this Act; or

the person's rights, liabilities, obligations and privileges under the Local Government Act 1989 or a relevant Act;

by a legal practitioner who receives a disclosure in the circumstances specified in paragraph (c), for the purposes of complying with a legal duty of disclosure or a professional obligation arising from their professional relationship with their client;

unless the Chief Municipal Inspector directs otherwise—




a registered health practitioner;





62

for the purpose of an application to the Fair Work Commission, including any related proceeding;

as is otherwise authorised or required to be made by or under the Local Government Act 1989.

New section 223BM(3) provides that restricted matter specified in a confidentiality notice may be disclosed to the IBAC if—

the IBAC referred the complaint to which restricted matter relates to the Chief Municipal Inspector under section 73A of the Independent Broad-based Anti-corruption Commission Act 2011; and

the IBAC has withdrawn the referral in accordance with section 79 of that Act.

New section 223BM(4) provides that a restricted matter specified in a confidentiality notice may be disclosed to Victoria Police if—

the Chief Municipal Inspector has disclosed information to the Chief Commissioner of Police under section 223BI relating to actual or potential criminal conduct; and

the restricted matter is relevant to an investigation by Victoria Police of the actual or potential criminal conduct.

New section 223BM(5) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure is made for the purposes of making—

a complaint to the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011; or

a complaint to the Victorian Inspectorate under the Victorian Inspectorate Act 2011.

New section 223BM(6) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure is made for the purposes of complying with—

63

a witness summons served on a person by the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011; or

a witness summons served on a person by the Victorian Inspectorate under the Victorian Inspectorate Act 2011.

New section 223BM(7) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure made is of information that has been published by an investigating entity or the Integrity and Oversight Committee in a report or has otherwise been made public in accordance with any Act.

New section 223BM(8) provides that a person who makes a disclosure of information permitted by subsection (2) must, when making the disclosure, provide the person to whom the disclosure is made with a copy of the confidentiality notice and of any order extending the confidentiality notice, unless the person has a reasonable excuse for not doing so. The penalty for breach of this subsection is 120 penalty units or imprisonment for 12 months or both.

New section 223BM(9) provides that, if in respect of a particular investigation a person who makes a disclosure of information permitted by subsection (2) receives a new confidentiality notice, a notice cancelling the confidentiality notice or an order extending the confidentiality notice, the person must as soon as reasonably practicable provide a copy of the new confidentiality notice, notice cancelling the confidentiality notice or order extending the confidentiality notice to each person to whom the disclosure has been made, unless the person has a reasonable excuse for not doing so. The penalty for breach of this subsection is 120 penalty units or imprisonment for 12 months or both.

New section 223BM(10) provides that proceedings may only be instituted for an offence under subsection (1), (8) or (9) by the Chief Municipal Inspector or by or with the consent of the Director of Public Prosecutions.

New section 223BM(11) provides new definitions of Fair Work Commission, investigating entity, registered health practitioner, relevant Act and Victorian WorkCover Authority for the purposes of the section.

64

Division 10—Amendment of Racing Act 1958

Clause 105 amends section 3 of the Racing Act 1958 to insert new definitions of assessable disclosure, confidentiality notice, public interest complaint and restricted matter.

Clause 106 amends section 37B(1) of the Racing Act 1958 to provide that the Racing Commissioner has the function to investigate public interest complaints that relate to the conduct of a controlling body or an employee, officer or member of a controlling body.

Clause 107 inserts sections 37K, 37L, 37M, 37N, 37O, 37P, 37Q, 37R, 37S, 37T, 37U and 37W in the Racing Act 1958.

New section 37K provides that, subject to new sections 37L and 37M, the Racing Integrity Commissioner must conduct an investigation under the Racing Act 1958 on a public interest complaint referred to the Racing Integrity Commissioner by the IBAC.

New section 37L(1) provides that the Racing Integrity Commissioner must refuse to conduct an investigation on a public interest complaint if the investigation would prejudice any criminal proceedings, criminal investigations, IBAC investigations or Victorian Inspectorate investigations. New section 37L(2) provides that for the purposes of ensuring compliance with subsection (1), the Racing Integrity Commissioner may consult the Director of Public Prosecutions, the Chief Commissioner of Police, the IBAC or the Victorian Inspectorate.

New section 37M provides that the Racing Integrity Commissioner may refuse to conduct an investigation on a public interest complaint if—

the Racing Integrity Commissioner considers the subject-matter of the public interest complaint has already been investigated or otherwise dealt with by an integrity body within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or another body or person with the power to require the production of documents or the answering of questions; or

the person who made the public interest complaint made the disclosure that was determined to be a public

65

interest complaint more than 12 months after becoming aware of the disclosed matter and fails to give a satisfactory explanation for the delay in making the disclosure; or

the Racing Integrity Commissioner considers that the conduct that is the subject of the complaint does not amount to improper conduct or detrimental action.

New section 37N provides that, if the Racing Integrity Commissioner refuses under section 37L or 37M to conduct an investigation on a public interest complaint, the Racing Integrity Commissioner must, within a reasonable time after the complaint was referred by the IBAC, inform the IBAC and the person who made the disclosure of the refusal to conduct the investigation and the reason for the refusal.

New section 37O provides that if, at any time before, during or after an investigation of a public interest complaint, the Racing Integrity Commissioner believes that the conduct that is the subject of the complaint appears to involve corrupt conduct, the Racing Integrity Commissioner must notify the IBAC of that belief and, if the investigation of the public interest complaint has not been completed, suspend the investigation pending a response from the IBAC to the notification.

New section 37P sets out the Racing Integrity Commissioner's powers and obligations following an investigation.

New section 37P(1) provides that on completion of an investigation of a public interest complaint, the Racing Integrity Commissioner—

must report the findings of the investigation to the relevant controlling body and the Minister; and

may make recommendations as to the action to be taken as a result of the investigation to the Minister or the relevant controlling body.

New section 37P(2) provides that, if the Racing Integrity Commissioner makes recommendations to the relevant controlling body, the Racing Integrity Commissioner must provide the Minister with a copy of those recommendations, and may request the controlling body to notify the Racing Integrity Commissioner within a specified time of the steps to be taken to address the recommendations.

66

New section 37P(3) provides that, if no appropriate steps have been taken by the relevant controlling body to address the recommendations of the Racing Integrity Commissioner within a reasonable time after those recommendations were made, the Racing Integrity Commissioner may advise the Minister of that failure.

New section 37P(4) provides that the Racing Integrity Commissioner must not include in a report under new section 37P information that is likely to lead to the identification of a person who has made an assessable disclosure and is not information to which section 53(2)(a), (c) or (d) of the Principal Act applies.

New section 37Q(1) provides that, if the Racing Integrity Commissioner conducts an investigation on a public interest complaint, the Racing Integrity Commissioner must inform the person who made the complaint (unless the complaint was made anonymously) of the result of the investigation and any other information that the Racing Integrity Commissioner thinks proper. New section 37Q(2) provides that the Racing Integrity Commissioner must not disclose information under section 37Q if the Racing Integrity Commissioner considers that the disclosure of the information would—




prejudice any criminal proceedings or investigations, or an investigation by the IBAC, the Ombudsman or the Victorian Inspectorate; or

otherwise contravene any applicable statutory secrecy obligations or involve the unreasonable disclosure of information relating to the personal affairs of any person.

New section 37R provides that, if a public interest complaint is referred by the IBAC to the Racing Integrity Commissioner for investigation, the Racing Integrity Commissioner must not disclose any information that is likely to lead to the identification of a person who has made an assessable disclosure and is not information to which section 53(2)(a), (c) or (d) of the Principal Act applies.

67

New section 37S(1) provides that the Racing Integrity Commissioner may provide or disclose information received or obtained in the course of an investigation of an assessable disclosure to a person or body specified in subsection (3) if the Racing Integrity Commissioner considers that—



New section 37S(2) provides that the Racing Integrity Commissioner must not disclose information to a person or body if the person or body, or an employee of the person or body, is the subject of an assessable disclosure and the information would be likely to lead to the identification of a person who made the assessable disclosure (except where section 53(2)(a), (c) or (d) of the Principal Act applies).

New section 37S(3) provides that the Racing Integrity Commissioner may provide or disclose information in accordance with subsection (1) to the IBAC, the Victorian Inspectorate, the Ombudsman, the Auditor-General, Victoria Police, the Director of Public Prosecutions, the Commission for Children and Young People established under section 6 of the Commission for Children and Young People Act 2012, the Australian Federal Police constituted under section 6 of the Australian Federal Police Act 1979 of the Commonwealth, the police force or police service of another State or a Territory, or a prescribed person or body.

New section 37T(1) provides that the Racing Integrity Commissioner must issue a confidentiality notice to a person during an investigation on a public interest complaint if the Racing Integrity Commissioner considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice—



68


The Racing Integrity Commissioner may not issue a confidentiality notice to an IBAC officer of a Victorian Inspectorate officer.

New section 37T(2) provides that a confidentiality notice must—



include a copy of the provisions of subsections (3) to (7) and new sections 37U and 37W of the Racing Act 1958 and an explanation of the effect of those provisions; and


New sections 37T(3) and (4) provide that if at any time the Racing Integrity Commissioner considers on reasonable grounds that—

it is necessary to restrict disclosure of a different restricted matter from any of those specified in a confidentiality notice in respect of a particular investigation to ensure that the disclosure would not be likely to have the effect specified in subsection (1)(a), (b) or (c); or


the Racing Integrity Commissioner must issue to the person to whom the confidentiality notice was issued—

69



New section 37T(5) provides that if at any time the Racing Integrity Commissioner considers on reasonable grounds that disclosure of the restricted matter or restricted matters specified in a confidentiality notice in respect of a particular investigation would no longer be likely to have the effect specified in subsection (1)(a), (b) or (c), the Racing Integrity Commissioner must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice.

New section 37T(6) provides that, at the conclusion of an investigation in respect of which a confidentiality notice was issued, the Racing Integrity Commissioner must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice, unless—

the Racing Integrity Commissioner has applied for an order under new section 37U extending the confidentiality notice and the application has not been determined;

the Supreme Court has made an order under new section 37U extending the confidentiality notice; or

the confidentiality notice has already been cancelled under subsection (3), (4) or (5) or new section 37U(3).

New section 37T(7) provides that confidentiality notice in respect of a particular investigation ceases to have effect on the date on which the Racing Integrity Commissioner issues a notice cancelling the confidentiality notice under subsection (3), (4), (5) or (6) or new section 37U(3), or the date specified in an order under new section 37U extending the confidentiality notice—whichever occurs first.

New section 37T(8) provides that a confidentiality notice under subsection (1) or a notice cancelling a confidentiality notice under subsection (3), (4), (5) or (6) may be issued to a person by serving a copy on the person in accordance with section 234 of the Racing Act 1958.

70

New section 37U(1) provides that if, before the conclusion of an investigation in respect of which a confidentiality notice has been issued, the Racing Integrity Commissioner considers on reasonable grounds that it is necessary to extend the confidentiality notice for a period following the investigation, the Racing Integrity Commissioner may apply to the Supreme Court for an order extending the confidentiality notice.

New section 37U(2) provides that on an application under subsection (1), the Supreme Court may, by order, extend a confidentiality notice to a date specified in the order, if the Supreme Court is satisfied that disclosure of the restricted matter or restricted matters specified in the confidentiality notice before that date would be likely to have the effect specified in section 37T(1)(a), (b) or (c).

New section 37U(3) provides that if, on an application under subsection (1), the Supreme Court declines to make an order under subsection (2), the Racing Integrity Commissioner must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice, unless the investigation in respect of which the confidentiality notice was issued has not concluded.

New section 37U(4) provides that a notice cancelling a confidentiality notice under subsection (3) may be issued to a person by serving a copy on the person in the same manner that a witness summons can be served.

New section 37V provides that the Racing Integrity Commissioner must, as soon as reasonably practicable, provide the IBAC with a copy of—

each confidentiality notice issued by the Racing Integrity Commissioner;

each notice cancelling a confidentiality notice issued by the Racing Integrity Commissioner under section 37T(3), (4), (5) or (6) or section 37U(3);

each application to the Supreme Court under section 37U(1) to extend a confidentiality notice; and

each order of the Supreme Court under section 37U(2) extending a confidentiality notice.

71

New section 37W(1) provides that, except as provided in section 37W, a person who is duly served with a confidentiality notice (and, if applicable, a copy of any order extending the confidentiality notice) or receives a copy of a confidentiality notice under subsection (8) or (9) (and, if applicable, a copy of any order extending the confidentiality notice) must not disclose a restricted matter specified in the confidentiality notice while it has effect. The penalty for breach of this provision is 120 penalty units or imprisonment for 12 months or both.

New section 37W(2) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure is made—

in accordance with a direction or authorisation given by the Racing Integrity Commissioner;




to an independent person—if the person is illiterate or has a mental, physical or other impairment which prevents the person from understanding the witness summons, confidentiality notice, notice cancelling the confidentiality notice or order extending the confidentiality notice without assistance;


an investigation conducted by the Racing Integrity Commissioner under this Act; or

72

the person's rights, liabilities, obligations and privileges under the Racing Act 1958 or a relevant Act;


unless the Racing Integrity Commissioner directs otherwise—










as is otherwise authorised or required to be made by or under the Racing Act 1958.

New section 37W(3) provides that restricted matter specified in a confidentiality notice may be disclosed to the IBAC if—

the IBAC referred the complaint to which the restricted matter relates to the Racing Integrity Commissioner

73

under section 73A of the Independent Broad-based Anti-corruption Commission Act 2011; and


New section 37W(4) provides that a restricted matter specified in a confidentiality notice may be disclosed to Victoria Police if—

the Racing Integrity Commissioner has disclosed information to the Chief Commissioner of Police under section 37S relating to actual or potential criminal conduct; and


New section 37W(5) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure is made for the purposes of making—



New section 37W(6) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure is made for the purposes of complying with—



New section 37W(7) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure made is of information that has been published by an investigating entity or the Integrity and Oversight Committee in a report or has otherwise been made public in accordance with any Act.

New section 37W(8) provides that a person who makes a disclosure of information permitted by subsection (2) must, when

74

making the disclosure, provide the person to whom the disclosure is made with a copy of the confidentiality notice and of any order extending the confidentiality notice, unless the person has a reasonable excuse for not doing so. The penalty for breach of this subsection is 120 penalty units or imprisonment for 12 months or both.

New section 37W(9) provides that, if in respect of a particular investigation a person who makes a disclosure of information permitted by subsection (2) receives a new confidentiality notice, a notice cancelling the confidentiality notice or an order extending the confidentiality notice, the person must as soon as reasonably practicable provide a copy of the new confidentiality notice, notice cancelling the confidentiality notice or order extending the confidentiality notice to each person to whom the disclosure has been made, unless the person has a reasonable excuse for not doing so. The penalty for breach of this subsection is 120 penalty units or imprisonment for 12 months or both.

New section 37W(10) provides that proceedings may only be instituted for an offence under subsection (1), (8) or (9) by the Racing Integrity Commissioner or by or with the consent of the Director of Public Prosecutions.

New section 37W(11) provides new definitions of Fair Work Commission, investigating entity, registered health practitioner, relevant Act and Victorian WorkCover Authority for the purposes of the section.

Division 11—Amendment of Freedom of Information Act 1982

Clause 108 amends section 3 of the Freedom of Information Act 1982 to insert new definitions of assessable disclosure, confidentiality notice, domestic partner, public interest complaint, restricted matter, spouse and registered relationship.

Clause 109 amends section 6I of the Freedom of Information Act 1982 to provide that the Information Commissioner has a function to investigate public interest complaints that relate to conduct relevant to the functions of the Information Commissioner.

Clause 110 inserts new Division 3 of Part VIB of the Freedom of Information Act 1982.

75

New section 61TA(1) provides that, subject to new sections 61TB and 61TC, the Information Commissioner must conduct an investigation under the Freedom of Information Act 1982 on a public interest complaint referred to the Information Commissioner by the IBAC. New section 61TA(2) provides that the Information Commissioner must not refer a public interest complaint referred to the Information Commissioner under subsection (1) to another person of body for investigation under section 61C.

New section 61TB(1) provides that the Information Commissioner must refuse to conduct an investigation on a public interest complaint if the investigation would prejudice any criminal proceedings, criminal investigations, IBAC investigations or Victorian Inspectorate investigations. New section 61TB(2) provides that for the purposes of ensuring compliance with subsection (1), the Information Commissioner may consult the Director of Public Prosecutions, the Chief Commissioner of Police, the IBAC or the Victorian Inspectorate.

New section 61TC provides that the Information Commissioner may refuse to conduct an investigation on a public interest complaint if—

the Information Commissioner considers the subject-matter of the public interest complaint has already been investigated or otherwise dealt with by an integrity body within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or another body or person with the power to require the production of documents or the answering of questions; or

the person who made the public interest complaint made the disclosure that was determined to be a public interest complaint more than 12 months after becoming aware of the disclosed matter and fails to give a satisfactory explanation for the delay in making the disclosure; or

the Information Commissioner considers that the conduct that is the subject of the complaint does not amount to improper conduct or detrimental action under the Principal Act.

76

New section 61TD provides that, if the Information Commissioner refuses under section 61TB or 61TC to conduct an investigation on a public interest complaint, the Information Commissioner must, within a reasonable time after the complaint was referred by the IBAC, inform the IBAC and the person who made the disclosure of the refusal to conduct the investigation and the reason for the refusal.

New section 61TE provides that if, at any time before, during or after an investigation of a public interest complaint, the Information Commissioner believes that the conduct that is the subject of the complaint appears to involve corrupt conduct, the Information Commissioner must notify the IBAC of that belief and, if the investigation of the public interest complaint has not been completed, suspend the investigation pending a response from the IBAC to the notification.

New section 61TF sets out the Information Commissioner's powers and obligations following an investigation. New section 61TF(1) provides that on completion of an investigation on a public interest complaint, the Information Commissioner may make recommendations in accordance with section 61L of the Freedom of Information Act 1982. New section 61TF(2) provides that the Information Commissioner must not refer a public interest complaint to another person or body under section 61L for investigation by that person or body. New section 61TF(3) provides that the Information Commissioner must not include in a recommendation under section 61L any information that is likely to lead to the identification of a person who has made an assessable disclosure and is not information to which section 53(2)(a), (c) or (d) of the Principal Act applies.

New section 61TG(1) provides that, if the Information Commissioner conducts an investigation on a public interest complaint, the Information Commissioner must inform the person who made the complaint (unless the complaint was made anonymously) of the result of the investigation and any other information that the Information Commissioner thinks proper. New section 61TG(2) provides that the Information Commissioner must not disclose information under section 37Q if the Information Commissioner considers that the disclosure of the information would—


77



prejudice any criminal proceedings or investigations, or an investigation by the IBAC, the Ombudsman or the Victorian Inspectorate; or

otherwise contravene any applicable statutory secrecy obligations or involve the unreasonable disclosure of information relating to the personal affairs of any person.

New section 61TH provides that, if a public interest complaint is referred by the IBAC to the Information Commissioner for investigation, the Information Commissioner must not disclose any information that is likely to lead to the identification of a person who has made an assessable disclosure and is not information to which section 53(2)(a), (c) or (d) of the Principal Act applies.

New section 61TI(1) provides that the Information Commissioner may provide or disclose information received or obtained in the course of an investigation of an assessable disclosure to a person or body specified in subsection (3) if the Information Commissioner considers that—



New section 61TI(2) provides that the Information Commissioner must not disclose information to a person or body if the person or body, or an employee of the person or body, is the subject of an assessable disclosure and the information would be likely to lead to the identification of a person who made the assessable disclosure (except where section 53(2)(a), (c) or (d) of the Principal Act applies).

New section 61TI(3) provides that the Information Commissioner may provide or disclose information in accordance with subsection (1) to IBAC, the Victorian Inspectorate, the Ombudsman, the Auditor-General, Victoria

78

Police, the Director of Public Prosecutions, the Commission for Children and Young People established under section 6 of the Commission for Children and Young People Act 2012, the Australian Federal Police constituted under section 6 of the Australian Federal Police Act 1979 of the Commonwealth, the police force or police service of another State or a Territory, or a prescribed person or body.

New section 61TJ(1) provides that the Information Commissioner must issue a confidentiality notice to a person during an investigation on a public interest complaint if the Information Commissioner considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice—




The Information Commissioner may not issue a confidentiality notice to an IBAC officer of a Victorian Inspectorate officer.

New section 61TJ(2) provides that a confidentiality notice must—



include a copy of the provisions of subsections (3) to (7) and new sections 37U and 37W of the Freedom of Information Act 1982 and an explanation of the effect of those provisions; and


79

New sections 61TJ(3) and (4) provide that if at any time the Information Commissioner considers on reasonable grounds that—

it is necessary to restrict disclosure of a different restricted matter from any of those specified in a confidentiality notice in respect of a particular investigation to ensure that the disclosure would not be likely to have the effect specified in subsection (1)(a), (b) or (c); or


the Information Commissioner must issue to the person to whom the confidentiality notice was issued—



New section 61TJ (5) provides that if at any time the Information Commissioner considers on reasonable grounds that disclosure of the restricted matter or restricted matters specified in a confidentiality notice in respect of a particular investigation would no longer be likely to have the effect specified in subsection (1)(a), (b) or (c), the Information Commissioner must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice.

New section 61TJ (6) provides that, at the conclusion of an investigation in respect of which a confidentiality notice was issued, the Information Commissioner must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice, unless—

the Information Commissioner has applied for an order under new section 61TK extending the confidentiality notice and the application has not been determined;

the Supreme Court has made an order under new section 61TK extending the confidentiality notice; or

80

the confidentiality notice has already been cancelled under subsection (3), (4) or (5) or new section 61TK(3).

New section 37T(7) provides that confidentiality notice in respect of a particular investigation ceases to have effect on the date on which the Information Commissioner issues a notice cancelling the confidentiality notice under subsection (3), (4), (5) or (6) or new section 61TK(3), or the date specified in an order under new section 61TK extending the confidentiality notice—whichever occurs first.

New section 61TJ (8) provides that a confidentiality notice under subsection (1) or a notice cancelling a confidentiality notice under subsection (3), (4), (5) or (6) may be issued to a person by serving a copy on the person in the same manner that a witness summons can be served.

New section 61TK(1) provides that if, before the conclusion of an investigation in respect of which a confidentiality notice has been issued, the Information Commissioner considers on reasonable grounds that it is necessary to extend the confidentiality notice for a period following the investigation, the Information Commissioner may apply to the Supreme Court for an order extending the confidentiality notice.

New section 61TK (2) provides that on an application under subsection (1), the Supreme Court may, by order, extend a confidentiality notice to a date specified in the order, if the Supreme Court is satisfied that disclosure of the restricted matter or restricted matters specified in the confidentiality notice before that date would be likely to have the effect specified in section 61TJ(1)(a), (b) or (c).

New section 61TK(3) provides that if, on an application under subsection (1), the Supreme Court declines to make an order under subsection (2), the Information Commissioner must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice, unless the investigation in respect of which the confidentiality notice was issued has not concluded.

New section 61TK(4) provides that a notice cancelling a confidentiality notice under subsection (3) may be issued to a person by serving a copy on the person in the same manner that a witness summons can be served.

81

New section 61TL provides that the Information Commissioner must, as soon as reasonably practicable, provide the IBAC with a copy of—

each confidentiality notice issued by the Information Commissioner;

each notice cancelling a confidentiality notice issued by the Information Commissioner under section 61TJ(3), (4), (5) or (6) or section 61TK(3);

each application to the Supreme Court under section 61TK(1) to extend a confidentiality notice; and

each order of the Supreme Court under section 61TK(2) extending a confidentiality notice.

New section 61TM(1) provides that, except as provided in section 61TM, a person who is duly served with a confidentiality notice (and, if applicable, a copy of any order extending the confidentiality notice) or receives a copy of a confidentiality notice under subsection (8) or (9) (and, if applicable, a copy of any order extending the confidentiality notice) must not disclose a restricted matter specified in the confidentiality notice while it has effect. The penalty for breach of this provision is 120 penalty units or imprisonment for 12 months or both.

New section 61TM(2) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure is made—

in accordance with a direction or authorisation given by the Information Commissioner;



82


to an independent person—if the person is illiterate or has a mental, physical or other impairment which prevents the person from understanding the witness summons, confidentiality notice, notice cancelling the confidentiality notice or order extending the confidentiality notice without assistance;


an investigation conducted by the Information Commissioner under this Act; or

the person's rights, liabilities, obligations and privileges under the Freedom of Information Act 1982 or a relevant Act;


unless the Information Commissioner directs otherwise—







83




as is otherwise authorised or required to be made by or under the Freedom of Information Act 1982.

New section 61TM(3) provides that restricted matter specified in a confidentiality notice may be disclosed to the IBAC if—

the IBAC referred the complaint to which restricted matter relates to the Information Commissioner under section 73A of the Independent Broad-based Anti-corruption Commission Act 2011; and


New section 61TM(4) provides that a restricted matter specified in a confidentiality notice may be disclosed to Victoria Police if—

the Information Commissioner has disclosed information to the Chief Commissioner of Police under section 61TI relating to actual or potential criminal conduct; and


New section 61TM(5) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure is made for the purposes of making—


84


New section 61TM(6) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure is made for the purposes of complying with—



New section 61TM(7) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure made is of information that has been published by an investigating entity or the Integrity and Oversight Committee in a report or has otherwise been made public in accordance with any Act.

New section 61TM (8) provides that a person who makes a disclosure of information permitted by subsection (2) must, when making the disclosure, provide the person to whom the disclosure is made with a copy of the confidentiality notice and of any order extending the confidentiality notice, unless the person has a reasonable excuse for not doing so. The penalty for breach of this subsection is 120 penalty units or imprisonment for 12 months or both.

New section 61TM(9) provides that, if in respect of a particular investigation a person who makes a disclosure of information permitted by subsection (2) receives a new confidentiality notice, a notice cancelling the confidentiality notice or an order extending the confidentiality notice, the person must as soon as reasonably practicable provide a copy of the new confidentiality notice, notice cancelling the confidentiality notice or order extending the confidentiality notice to each person to whom the disclosure has been made, unless the person has a reasonable

85

excuse for not doing so. The penalty for breach of this subsection is 120 penalty units or imprisonment for 12 months or both.

New section 61TM (10) provides that proceedings may only be instituted for an offence under subsection (1), (8) or (9) by the Information Commissioner or by or with the consent of the Director of Public Prosecutions.

New section 61TM(11) provides new definitions of Fair Work Commission, investigating entity, registered health practitioner, relevant Act and Victorian WorkCover Authority for the purposes of the section.

Division 12—Consequential amendments of other Acts

Clause 111 amends section 26B(2) of the Safe Drinking Water Act 2003 to replace the words "Protected Disclosure Act 2012" with "Public Interest Disclosures Act 2012".

Part 3—Amendments relating to persons and bodies administering integrity and accountability legislation

Division 1—Amendment of Independent Broad-based Anti-corruption Commission Act 2011

Clause 112 amends the definition of confidentiality notice by cross referencing section 42(1A) of the Independent Broad-based Anti-corruption Commission Act 2011 to refer to a confidentiality notice issued in relation to a preliminary inquiry.

Clause 112 also amends the definition of detained person to refer to the Secretary to the Department of Justice and Community Safety as having legal custody of a person in a remand centre, youth justice centre or youth residential centre in accordance with the Children, Youth and Families Act 2005.

86

Clause 113 amends the definitions of public body, public officer and public sector in section 6(3) of the Independent Broad-based Anti-corruption Commission Act 2011 to include an additional factor that may be taken into account when determining if a function is a public function—that the body is publicly funded to a perform the function.

Clause 114 inserts a new section 56(2A) into the Independent Broad-based Anti-corruption Commission Act 2011 to allow the Independent Broad-based Anti-corruption Commission (IBAC) to receive from any person or body information relevant to a decision by the IBAC to defer taking action to dismiss, investigate or refer a complaint or notification under section 58 of the Independent Broad-based Anti-corruption Commission Act 2011.

Clause 115 inserts a new section 58A into the Independent Broad-based Anti-corruption Commission Act 2011 to allow the IBAC to defer taking action under section 58 in relation to a complaint or notification, other than a public interest complaint, if—

the subject matter of the complaint or notification is being investigated by a person or body specified in section 73(2) and is relevant to the duties, functions or powers of that person or body; and

the IBAC considers it more appropriate that the person or body investigate the complaint or notification, and it is otherwise appropriate for the person or body to continue that investigation.

New section 58A(2) provides that in deciding whether to defer taking action under section 58, the IBAC may consult with the person or body conducting the ongoing investigation.

New section 58A(3) provides that the IBAC must not defer taking action under section 58 any later than the completion of the investigation by the person or body or 90 days after receiving the complaint or notification, whichever occurs first.

New section 58A(3) does not prevent the IBAC from taking action under section 58 to dismiss, refer or investigate the complaint or notification, or from conducting a preliminary inquiry under section 59A, at any time before the investigation

87

by the person or body has been completed or before the 90 day period in new section 58A(3)(b) has elapsed.

New section 58A(5) provides that if the IBAC defers taking action to dismiss, investigate or refer a complaint or notification under section 58, the IBAC may do one or both of the following—

provide to the person or body conducting the investigation any information that the IBAC has in relation to the complaint or notification;

require the person or body to provide to the IBAC, within a reasonable time, information regarding the investigation and any action taken in respect of the investigation.

Clause 116 amends section 59 of the Independent Broad-based Anti-corruption Commission Act 2011. Section 59 provides for the notification to a person who made a complaint of the dismissal, investigation or referral of the complaint.

Subclause (1) substitutes section 59(1) of the Independent Broad-based Anti-corruption Commission Act 2011 to provide that subject to section 59(2) and (4), the IBAC may notify the person who made a complaint to the IBAC—

of the action referred to in section 58 that the IBAC has taken; or

if applicable, that the IBAC has deferred taking that action while the subject matter of the complaint is being investigated by another person or body.

Subclause (2) substitutes section 59(3A) of the Independent Broad-based Anti-corruption Commission Act 2011 to provide that subject to section 59(4), the IBAC may notify the person who made a notification to the IBAC—

of the action referred to in section 58 that the IBAC has taken; or

if applicable, that the IBAC has deferred taking that action while the subject matter of the notification is being investigated by another person or body.

88

Subclause (3) substitutes section 59(5) of the Independent Broad-based Anti-corruption Commission Act 2011 to provide that a notification under section 59(1) or (2), other than a notification relating to the dismissal of a complaint under section 58(a), must include a written statement advising the recipient that it is an offence under section 184 of the Independent Broad-based Anti-corruption Commission Act 2011 to disclose the content of the notification.

Clause 117 amends section 98 of the Independent Broad-based Anti-corruption Commission Act 2011 and its heading. Section 98 deals with the abrogation of certain privilege in relation to police personnel, in the exercise of certain powers under the Independent Broad-based Anti-corruption Commission Act 2011.

Subclause (1) amends the heading to section 98 to refer to other public officers, in addition to police personnel.

Subclause (3) inserts a new section 98(2) into the Independent Broad-based Anti-corruption Commission Act 2011 to provide that if an authorised officer exercises a power under a search warrant issued under section 91 of the Independent Broad-based Anti-corruption Commission Act 2011—

the Crown is not entitled to assert any privilege in response to the exercise of that power;

any privilege referred to in paragraph (a) is abrogated; and

any obligation on a public officer to maintain secrecy or other restriction upon the disclosure of information imposed by any enactment or any rule of law is overridden and does not apply in respect of the inspection, copying or seizure of any document or other thing by the authorised officer under the search warrant.

Subclause (4) provides that a person is not subject to any criminal, civil, administrative or disciplinary proceedings or actions only because the person has not maintained secrecy or complied with a restriction upon the disclosure of information imposed by any enactment or any rule of law if—

89

a person has disclosed the information in compliance with a direction by the IBAC, or the inspection, copying or seizure of a document or thing by an authorised officer, as per the circumstances set out in section 98(1)(c); or

a public officer has disclosed the information in compliance with the exercise of a search warrant by an authorised officer as per the circumstances set out in section (2)(c).

Subclause (4) provides that section 98 does not apply to information, documents or things that are subject to Cabinet confidentiality.

Clause 118 amends section 116(b) of the Independent Broad-based Anti-corruption Commission Act 2011, so that it operates subject to any requirements under Division 1 of Part 6 of the Independent Broad-based Anti-corruption Commission Act 2011. Section 116(b) specifies that, when holding an examination, the IBAC is not bound by the rules of evidence, and may regulate the procedure as it considers fit.

Clause 119 amends section 117 of the Independent Broad-based Anti-corruption Commission Act 2011.

Subclause (1) inserts a new section 117(1)(d) to provide that, in addition to the existing factors in section 117(1), an examination is not open to the public unless the IBAC considers on reasonable grounds that the conduct that is the subject of the investigation may constitute serious or systemic corrupt conduct or serious or systemic police personnel misconduct.

Subclause (2) inserts a new section 117(3A) and (3B) into the Independent Broad-based Anti-corruption Commission Act 2011.

New section 117(3A) allows the IBAC to conduct part of a public examination in private on application by a person attending the examination in accordance with a witness summons, or a person

90

authorised by the IBAC under new section 119A to appear at the public examination, or on its own motion.

New section 117(3B) provides that in deciding whether or not to hold part of the examination in private, the IBAC may have regard to—

whether it is in the public interest to keep that part of the examination open to the public; and

whether holding the examination in private is necessary to prevent unreasonable damage to a person's reputation, safety or wellbeing.

Subclause (3) substitutes section 117(4) of the Independent Broad-based Anti-corruption Commission Act 2011 to set out the factors that the IBAC may take into account to determine whether or not it is in the public interest to hold a public examination, or part of an examination open to the public (for the purposes of section 117(1)(b) and (3B)(a)).

Subclause (4) amends section 117(5) of the Independent Broad-based Anti-corruption Commission Act 2011 to require the IBAC to inform the Victorian Inspectorate that the IBAC intends to hold a public examination and provide a written report to the Victorian Inspectorate giving the reasons the IBAC has decided to hold a public examination in accordance with section 117(1), not less than 10 business days before a public examination (increased from 7 days).

Subclause (5) inserts a new section 117(5A) into the Independent Broad-based Anti-corruption Commission Act 2011 to provide that the IBAC must not make a public announcement of its intention to hold a public examination for the purposes of an investigation unless the IBAC has notified the Victorian Inspectorate of its intention to do so under section 117(5) of the Independent Broad-based Anti-corruption Commission Act 2011.

Clause 120 inserts new section 119A into the Independent Broad-based Anti-corruption Commission Act 2011 to allow the IBAC to authorise a person to appear at a public examination if satisfied that—

the person has a substantial and direct interest in the subject matter of the examination; and

91

it is appropriate for the person to appear at the examination as an interested party.

Clause 121 substitutes the reference to "member of Victoria Police personnel" in section 121(4)(h)(ii) of the Independent Broad-based Anti-corruption Commission Act 2011, with "public officer". A public officer includes a member of Victoria Police personnel. This amendment reflects the amendments also made to sections 98 and 143 of the Independent Broad-based Anti-corruption Commission Act 2011 which abrogate the Crown's privileges in relation to all public officers (not just Victoria Police personnel). The effect of this amendment will require a statement accompanying a witness summons to state that a person may claim a privilege, but if the person is a "public officer", the Crown is not entitled to assert any privilege.

Clause 122 inserts new section 122(c) and (d) into the Independent Broad-based Anti-corruption Commission Act 2011 to require the IBAC to include two further matters in its report to the Victorian Inspectorate on the issue of a witness summons.

New section 122(c) provides that if a witness summons issued under section 121(2) of the Independent Broad-based Anti-corruption Commission Act 2011 does not include information about the nature of the matters the person to which the summons is directed will be questioned about, the IBAC's report to the Victorian Inspectorate must include the reasons for not including that information in the witness summons.

New section 122(d) provides that if the IBAC has issued a witness summons requiring immediate attendance by a person before the IBAC under section 124(2) of the Independent Broad-based Anti-corruption Commission Act 2011, the IBAC's report to the Victorian Inspectorate must include the reasons for requiring the immediate attendance of the person.

Clause 123 substitutes section 127(7) and section 127(7A) of the Independent Broad-based Anti-corruption Commission Act 2011.

New section 127(7) will allow the IBAC to authorise a person who is not a witness to be represented by an Australian legal practitioner during the examination of a witness if the IBAC—

92

has authorised the person under new section 119A to appear at a public examination; or

considers that there are special circumstances.

New section 127(7A) allows the IBAC to direct a person in section 127(7) not to be represented by a specified Australian legal practitioner if the IBAC considers on reasonable grounds that the examination would be prejudiced because the Australian legal practitioner is—

a witness in the examination or another examination;

the representative of a witness in the examination or another examination;

a person involved, or suspected of being involved, in a matter being investigated by the IBAC or the Victorian Inspectorate; or

the representative of a person involved, or suspected of being involved, in a matter being investigated by the IBAC or the Victorian Inspectorate.

Clause 124 amends section 128(1) and (2) of the Independent Broad-based Anti-corruption Commission Act 2011 to require the IBAC, within 24 hours of making a direction under new 127(7A) in relation to a specified Australian legal practitioner, to inform the Victorian Inspectorate in writing of that direction, the reasons for that direction, the specific provision of the Independent Broad-based Anti-corruption Commission Act 2011 relied on in making that direction and the factors taken into consideration in making that direction.

Clause 125 inserts a new section 132A into the Independent Broad-based Anti-corruption Commission Act 2011 to allow the IBAC to grant leave for a witness, a person authorised under new section 119A or a person's Australian legal practitioner to cross-examine a witness on any matter that the IBAC considers relevant.

New section 132A(2) provides that a witness who is being cross-examined has the same protections and is subject to the same liabilities and confidentiality obligations in relation to the cross-examination that apply in relation to the examination of a witness by the IBAC.

93

Clause 126 amends section 142(b) of the Independent Broad-based Anti-corruption Commission Act 2011 to correct an incorrect reference to "search warrant" instead of "arrest warrant". Section 142(b) will now be consistent with the remainder of section 142 which is concerned with the IBAC's reporting to the Victorian Inspectorate about the issue of an arrest warrant.

Clause 127 amends section 143 of the Independent Broad-based Anti-corruption Commission Act 2011 to give the IBAC consistent fact-finding powers in relation to both members of Victoria Police personnel and all other public officers.

Subclause (1) amends section 143(1) to provides that any obligation on a public officer to maintain secrecy or comply with a restriction upon the disclosure of information obtained by or provided to the person in their service as a public officer (including a member of Victoria Police personnel) imposed by any enactment or any rule of law is overridden and does not apply to the disclosure of information under Part 6 (Examinations).

Subclause (2) substitutes section 143(2) with new subsections (2), (3), (4) and (5).

New sections 143(2) and (3) provide that the Crown cannot assert any privilege in relation to an examination of a public officer (including any requirement under a witness summons) and these privileges are abrogated.

New section 143(4) provides that a person is not subject to any criminal, civil, administrative or disciplinary proceedings or actions only because the person has not maintained secrecy or complied with a restriction upon the disclosure of information imposed by any enactment or any rule of law for complying with section 143(1) of the Independent Broad-based Anti-corruption Commission Act 2011.

New section 143(5) provides that section 143 does not apply to information, documents or things that are subject to Cabinet confidentiality.

Clause 128 inserts a new section 162A into the Independent Broad-based Anti-corruption Commission Act 2011 to provide that if the IBAC proposes to transmit a report to each House of Parliament,

94

the IBAC must give an advance copy of the report to the Minister and the Secretary of the Department of Premier and Cabinet at least one business day in advance of the report being transmitted to Parliament.

The intention of this provision is to provide advance notice of a report which is to be transmitted to Parliament, not to provide an opportunity for the Minister or the Secretary of the Department of Premier and Cabinet to halt or delay publication and tabling of the report.

However, the IBAC is not required to give an advance copy of the report to the Minister and the Secretary of the Department of Premier and Cabinet if the IBAC considers that in all the circumstances it would be inappropriate to do so.

Clause 129 amends section 166 of the Independent Broad-based Anti-corruption Commission Act 2011 to reflect the requirement to provide an advance copy of a report under new section 162A and to permit the Secretary of the Department of Premier and Cabinet to disclose information contained in the advance copy of the report to relevant officers of the Department of Premier and Cabinet for the purpose of enabling the Premier or responsible Minister to respond to the report.

Clause 130 amends section 184(1) of the Independent Broad-based Anti-corruption Commission Act 2011 to provide that it is an offence for a person who made a complaint and is notified by the IBAC under section 59(1) or (2) of the Independent Broad-based Anti-corruption Commission Act 2011, other than a person notified that the IBAC has dismissed the complaint under section 58(a), to disclose the content of the notification except in the circumstances specified in section 184(5). The penalty is 60 penalty units or 6 months imprisonment or both.

Section 185 (criminal liability of officers of bodies corporate—accessorial liability) of the Independent Broad-based Anti-corruption Commission Act 2011 applies to an offence against new section 184(1).

95


Clause 131 amends the definition of coercive power in section 3(1)(b) of the Victorian Inspectorate Act 2011 to provide that, in relation to an Ombudsman officer, coercive power means any power of the Ombudsman or a member of the Ombudsman staff under Division 3 of Part IV of the Ombudsman Act 1973.

Subclause (2) amends the definition of detained person in section 3(1)(c) of the Victorian Inspectorate Act 2011 to provide that persons in a remand centre, youth justice centre or youth residential centre are in the legal custody of the Secretary of the Department of Justice and Community Safety in accordance with the Children, Youth and Families Act 2005, not the Department of Human Services.

Clause 132 substitutes section 11(5)(a)(ii) and (iii) of the Victorian Inspectorate Act 2011 to provide that in respect of officers of the Office of the Victorian Information Commissioner, the Victorian Inspectorate has the function to monitor whether procedural fairness requirements have been complied with by those in—

the exercise, or purported exercise, of coercive powers under the Freedom of Information Act 1982 and the Privacy and Data Protection Act 2014;

the conduct of investigations under Part VIB of the Freedom of Information Act 1982;

the making of recommendations under section 61L of the Freedom of Information Act 1982;

the making of investigation reports under section 61Q of the Freedom of Information Act 1982; and

the making of compliance notices under Part 3 of the Privacy and Data Protection Act 2014.

Clause 133 inserts section 40A in the Victorian Inspectorate Act 2011 to provide that the Victorian Inspectorate may review the following provided to the Victorian Inspectorate by the IBAC under the specified section of the Independent Broad-based Anti-corruption Commission Act 2011—

96

a copy of a confidentiality notice or associated notice, application or order provided under section 43 of that Act;

a written report on the issue of a witness summons given under section 59G of that Act;

a complaint or notification to the IBAC notified under section 71 of that Act;

a withdrawal of a referral notified under section 79(4) of that Act;

an appointment of an examiner notified under section 115(7) of that Act;

a written report on a decision by the IBAC to hold a public examination provided under section 117(5) of that Act;

a written report on the issue of a witness summons given under section 122 of that Act;

a direction by the IBAC in relation to a specified Australian legal practitioner informed in writing under section 128 of that Act;

a copy of a video recording and any transcript of an examination provided under section 134 of that Act.

New section 40A(2) provides that a review of a matter under subsection (1) must assess—

whether the requirements under the Independent Broad-based Anti-corruption Commission Act 2011 relating to that matter have been complied with;

where the IBAC has required a person to produce documents or things for the purposes of an investigation—whether the requirement may reasonably be considered as assisting the IBAC to achieve the purposes of the investigation; and

where the matter relates to the questioning of a person attending an examination—whether the questioning may reasonably be considered as assisting the IBAC to

97

achieve the purposes of the investigation to which the examination relates.

The intention of this provision is to clarify the Victorian Inspectorate's monitoring role in relation to the use of coercive powers by the IBAC.

New section 40A(3) provides that if the Victorian Inspectorate considers that a video recording provided by the IBAC is no longer necessary for the purpose of reviewing the video recording in accordance with this section, the Victorian Inspectorate may return the video recording to the IBAC or destroy the video recording.

Clause 134 inserts section 41A in the Victorian Inspectorate Act 2011 to provide that the Victorian Inspectorate may review the following provided to the Victorian Inspectorate by the Auditor-General under specified sections of the Audit Act 1994—

a copy of an audio or video recording and any transcript of a compulsory attendance provided under section 37(6) of that Act;

a written report on the issue of an information gathering notice given under section 39 of that Act;

a written report on the issue of an entry notice given under section 51 of that Act.

The section references reflect the sections as amended by the Audit Amendment Bill 2017.

New section 41A(2) provides that a review of a matter under subsection (1) must assess—

whether the requirements under the Audit Act 1994 relating to that matter have been complied with;

where the Auditor-General has required a person to produce documents for the purposes of an audit—whether the requirement may reasonably be considered as assisting the Auditor-General to achieve the purposes of the audit to which the requirement relates; and

where the matter relates to the questioning of a person appearing personally before the Auditor-General—whether the questioning may reasonably be considered

98

as assisting the Auditor-General to achieve the purposes of the audit to which the appearance relates.

New section 41A(3) provides that if the Victorian Inspectorate considers that an audio or video recording provided by the Auditor-General is no longer necessary for the purpose of reviewing the audio or video recording in accordance with this section, the Victorian Inspectorate may return the video or audio recording to the Auditor-General or destroy the video or audio recording.

Clause 135 inserts section 42AA in the Victorian Inspectorate Act 2011 to provide that the Victorian Inspectorate may review the following provided to the Victorian Inspectorate by the Ombudsman under the specified sections of the Ombudsman Act 1973—

a complaint or referred matter that appears to involve misconduct, or a matter related to that misconduct, notified under section 16F of that Act;

a written report on the issue of a witness summons given under section 18D of that Act;

a direction by the Ombudsman in relation to a specified Australian legal practitioner informed in writing under section 18M(6) of that Act;

a copy of an audio or video recording and any transcript of an appearance provided under section 18Q(7) of that Act;

a copy of a confidentiality notice or associated notice, application or order provided under section 26E of that Act.

New section 42AA(2) provides that a review of a matter under section 42AA(1) must assess—

whether the requirements under the Ombudsman Act 1973 relating to that matter have been complied with;

where the Ombudsman has required a person to produce documents or things for the purposes of an investigation—whether the requirement may reasonably be considered as assisting the Ombudsman to achieve the purposes of the investigation; and

99

where the matter relates to the questioning of a person attending before the Ombudsman—whether the questioning may reasonably be considered as assisting the Ombudsman to achieve the purposes of the investigation to which the attendance relates.

Subsection (3) provides that if the Victorian Inspectorate considers that an audio or video recording provided by the Ombudsman is no longer necessary for the purpose of reviewing the audio or video recording in accordance with this section, the Victorian Inspectorate may return the audio or video recording to the Ombudsman or destroy the audio or video recording.

Clause 136 inserts Part 5B in the Victorian Inspectorate Act 2011 (Matters to be reported to Victorian Inspectorate by other persons and bodies).

New section 42B provides that the Victorian Inspectorate may review the following provided to the Victorian Inspectorate by the Chief Examiner under the specified sections of the Major Crime (Investigative Powers) Act 2004—

a written report on the issue of a witness summons or the making of an order under section 18 of that Act given under section 52 of that Act;

a written report on an examination by the Chief Examiner given under section 53(1) of that Act;

a copy of a video-recording and any transcript of an examination included in a report of an examination under section 53(2) of that Act.

New section 42B(2) provides that a review of a matter under section 42B(1) must assess—

whether the requirements under the Major Crime (Investigative Powers) Act 2004 relating to that matter have been complied with;

where the Chief Examiner has required a person to produce documents or things for the purposes of an investigation—whether the requirement may reasonably

100

be considered as assisting the Chief Examiner to achieve the purposes of the investigation; and

where the matter relates to the questioning of a person attending an examination—whether the questioning may reasonably be considered as assisting the Chief Examiner to achieve the purposes of the investigation to which the examination relates.

New section 42B(3) provides that if the Victorian Inspectorate considers that a video-recording provided by the Chief Examiner is no longer necessary for the purpose of reviewing the video-recording in accordance with this section, the Victorian Inspectorate may return the video-recording to the Chief Examiner or destroy the video-recording.

New section 42C provides that the Victorian Inspectorate may review the following provided to the Victorian Inspectorate by the Information Commissioner under the specified sections of the Freedom of Information Act 1982 and the Privacy and Data Protection Act 2014—

a written report on the issue of a notice to produce or attend given under section 61ZD of the Freedom of Information Act 1982;

a copy of an audio or video recording and any transcript of an examination given under section 61ZH of the Freedom of Information Act 1982;

a written report on the issue of a notice to produce or attend given under section 83D of the Privacy and Data Protection Act 2014;

a copy of an audio or video recording and any transcript of an examination given under section 83GA of the Privacy and Data Protection Act 2014.

New section 42C(2) provides that a review of a matter under section 42C(1) must assess—

whether the requirements under the Freedom of Information Act 1982 or the Privacy and Data Protection Act 2014 (as the case may be) relating to that matter have been complied with;

where the Information Commissioner has required a person to produce documents or things for the purposes

101

of an investigation or for the dealing of a complaint—whether the requirement may reasonably be considered as assisting the Information Commissioner to achieve the purposes of the investigation or the dealing of the complaint; and

where the matter relates to the questioning of a person attending an examination—whether the questioning may reasonably be considered as assisting the Information Commissioner to achieve the purposes of the investigation, the review or the dealing of the complaint to which the examination relates.

New section 42C(3) provides that if the Victorian Inspectorate considers that an audio or video recording provided by the Information Commissioner is no longer necessary for the purpose of reviewing the audio or video recording in accordance with this section, the Victorian Inspectorate may return the audio or video recording to the Information Commissioner or destroy the audio or video recording.

Clause 137 substitutes section 43(9)(b) of the Victorian Inspectorate Act 2011 so that a person may make a complaint to the Victorian Inspectorate about the conduct of an officer of the Office of the Victorian Information Commissioner in respect of the compliance with procedural fairness requirements in—

the exercise, or purported exercise, of coercive powers, under the Freedom of Information Act 1982 and the Privacy and Data Protection Act 2014;




102


Clause 138 inserts section 43A in the Victorian Inspectorate Act 2011 to provide that the Victorian Inspectorate may refuse to consider a complaint unless—

the complaint is made to the Victorian Inspectorate in writing; or

the complainant complies with a requirement made under subsection (2).

New section 43A(2) provides that if a complaint to the Victorian Inspectorate is not made in writing, the Victorian Inspectorate may require the complainant to provide a written statement in the form (if any) specified by the Victorian Inspectorate confirming that the complainant wants the Victorian Inspectorate to consider the complaint and specifying the details of the complaint.

Clause 139 substitutes section 46(5)(b) and (c) of the Victorian Inspectorate Act 2011 with a new section 46(5)(b) to provide that the Victorian Inspectorate, on its own motion, may investigate the conduct of an officer of the Office of the Victorian Information Commissioner in respect of the compliance with procedural fairness requirements in—

the exercise, or purported exercise, of coercive powers, under the Freedom of Information Act 1982 and the Privacy and Data Protection Act 2014;





Clause 140 amends section 48D of the Victorian Inspectorate Act 2011 to clarify that Divisions 2 and 3 of Part 6 of that Act do not apply to, or in respect of, a preliminary inquiry. Division 2 and 3 of Part 6 provide for the conduct of inquiries, and the privileges and secrecy provisions that apply to inquiries.

103

Clause 141 substitutes section 91(1)(q)(ii) and (iii) of the Victorian Inspectorate Act 2011 with a new section 91(1)(q)(ii) to provide that the Victorian Inspectorate's annual report under Part 7 of the Financial Management Act 1994 must include details of the results of the Victorian Inspectorate's monitoring of compliance with procedural fairness requirements by officers of the Office of the Victorian Information Commissioner in—

the exercise, or purported exercise, of coercive powers under the Freedom of Information Act 1982 and the Privacy and Data Protection Act 2014;






Clause 142 inserts section 61T(5), (6) and (7) in the Freedom of Information Act 1982 to provide that if the Information Commissioner proposes to transmit a report to the Parliament under section 61T, the Information Commissioner must give an advance copy of the report to the Minister and the Secretary of the Department of Premier and Cabinet one business day before—

the report is given to the clerk of each House of Parliament, if section 61T(3) of the Freedom of Information Act 1982 applies; or

otherwise, the report is due to be transmitted to the Parliament.

However, the Information Commissioner is not required to give an advance copy of the report to the Minister and the Secretary of the Department of Premier and Cabinet if the Information

104

Commissioner considers that in all the circumstances it would be inappropriate to do so.

Clause 143 inserts section 64(6) in the Freedom of Information Act 1982 to provide that at least one business day before the Information Commissioner transmits the annual report to the Parliament under section 64(5) of the Freedom of Information Act 1982, the Information Commissioner must give an advance copy of the annual report to the Minister and the Secretary of the Department of Premier and Cabinet. The intention of this provision is to provide advance notice of a report which is to be transmitted to Parliament, not to provide an opportunity for the Minister or the Secretary of the Department of Premier and Cabinet to halt or delay publication and tabling of the report.

Clause 144 inserts section 61ZH in the Freedom of Information Act 1982.

New section 61ZH(1) provides that this section applies if a person is required under Part VIC of the Freedom of Information Act 1982 to attend an examination before the Information Commissioner.

New section 61ZH(2) requires the Information Commissioner to ensure that an audio or video recording of the examination is made.

New section 61ZH(3) provides that, subject to subsection (4), evidence of anything said by the person during the examination is inadmissible as evidence against any person in any proceeding before a court or tribunal unless—

an audio or video recording of the examination is made; and

the audio or video recording is available to be tendered in evidence.

New section 61ZH(4) provides that a court may admit evidence of anything said by the person during the examination that is otherwise inadmissible because of subsection (3) if the court is satisfied that there are exceptional circumstances that justify the admission of the evidence.

New section 61ZH(5) provides that unless the Information Commissioner considers on reasonable grounds that doing so may prejudice an investigation under this Act, the Information Commissioner must provide the person attending the examination

105

with a copy of the audio or video recording and any transcript created.

New section 61ZH(6) provides that if the Information Commissioner determines not to provide the person with a copy of the audio or video recording and any transcript in accordance with subsection (5), the Information Commissioner must allow the person to listen to or view the recording of the person's evidence at the Information Commissioner's premises at any reasonable time.

New section 61ZH(7) requires the Information Commissioner to provide the Victorian Inspectorate with a copy of the audio or video recording and any transcript of the examination as soon as possible after the examination.

Division 4—Amendment of Privacy and Data Protection Act 2014

Clause 145 inserts section 83GA in the Privacy and Data Protection Act 2014.

New section 83GA(1) provides that this section applies if a person is required under Part 3 of the Privacy and Data Protection Act 2014 to attend an examination before the Information Commissioner.

New section 83GA(2) requires the Information Commissioner to ensure that an audio or video recording of the examination is made.

New section 83GA(3) provides that, subject to subsection (4), evidence of anything said by the person during the examination is inadmissible as evidence against any person in any proceeding before a court or tribunal unless—

an audio or video recording of the examination is made; and

the audio or video recording is available to be tendered in evidence.

New section 83GA(4) provides that a court may admit evidence of anything said by the person during the examination that is otherwise inadmissible because of subsection (3) if the court is satisfied that there are exceptional circumstances that justify the admission of the evidence.

106

New section 83GA(5) provides that unless the Information Commissioner considers on reasonable grounds that doing so may prejudice the dealing of a complaint under the Privacy and Data Protection Act 2014, the Information Commissioner must provide the person attending the examination with a copy of the audio or video recording and any transcript created.

New section 83GA(6) provides that if the Information Commissioner does not provide the person with a copy of the audio or video recording and any transcript in accordance with subsection (5), the Information Commissioner must allow the person to listen to or view the recording of the person's evidence at the Information Commissioner's premises at any reasonable time.

New section 83GA(7) requires the Information Commissioner to provide the Victorian Inspectorate with a copy of the audio or video recording and any transcript of the examination as soon as possible after the examination.

Division 5—Amendment of Public Interest Monitor Act 2011

Clause 146 substitutes section 17(2) of the Public Interest Monitor Act 2011 to provide that the confidentiality offence provision in section 17(1) of the Public Interest Monitor Act 2011 does not apply to the disclosure of information by a Public Interest Monitor—

in the performance of their functions as a Public Interest Monitor, including the disclosure of information—

to a person assisting the Public Interest Monitor in the performance of their functions;

to another Public Interest Monitor; or

to an Australian legal practitioner for the purpose of obtaining legal advice; or

to the Victorian Inspectorate to assist it in the performance of its functions under section 11(2)

107

(g) and (h) of the Victorian Inspectorate Act 2011.

This does not apply to lawfully intercepted information which is prohibited from being disclosed under section 63 of the Telecommunications (Interception and Access)Act 1979 (Cth).

Part 4—Ombudsman Act 1973—General amendments

Clause 147 amends section 2(1) of the Ombudsman Act 1973 to amend the definitions of authority, principal officer, responsible Minister and witness summons.

The definition of authority sets out the categories of entities that fall under the jurisdiction of the Ombudsman Act 1973. The amended definition of authority includes "a public body" as a new category of entity.

Clause 147 inserts a new definition of public body in section 2(1). Public body means a body that is performing a public function on behalf of the State or an authority (whether under contract or otherwise); or a public statutory body.

Clause 147 also inserts section 2(2A) in the Ombudsman Act 1973. New section 2(2A) provides a list of factors that may be taken into account in determining whether a function is a public function for the purpose of the definition of public body. These factors were distilled from the factors for determining if a function is of a public nature under section 4(2) of the Charter of Human Rights and Responsibilities Act 2006. Section 2(2B) clarifies that the factors listed in section 2(2A) are not exhaustive, and the fact that one of the factors is present in relation to a function does not necessarily mean that the function is a public function.

Clause 148 inserts section 2A in the Ombudsman Act 1973 to provide that the objectives of the Act are to—

provide a timely, efficient, effective, flexible and independent means of resolving complaints about administrative action of authorities;

provide for the identification, investigation, exposure and prevention of maladministration;

108

assist in the identification, investigation, exposure and prevention of improper conduct and corrupt conduct;

assist in improving the quality of administration and complaint handling practices and procedures of authorities; and

facilitate the education of the Victorian community and the public sector about matters relating to the functions of the Ombudsman.

Clause 149 substitutes section 13 of the Ombudsman Act 1973. New section 13(1) provides that the principal functions of the Ombudsman are to—

resolve complaints about administrative action taken by or in an authority (other than administrative action that appears to involve corrupt conduct or is taken under the Freedom of Information Act 1982);

enquire into or investigate administrative action taken by or in an authority, including administrative that appears to involve corrupt conduct on a referral from the IBAC under Division 5 of Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011; and

investigate public interest complaints about conduct by or in an authority or a public interest disclosure entity.

The first function is a new statutory function recognising the Ombudsman's role in resolving complaints informally as well as through formal investigations, including in accordance with new Part IIIAC (inserted by clause 153).

The latter two functions were previously provided by sections 13, 13AAA and 13AA(1)(b) of the Ombudsman Act 1973.

Subsection (2) provides that the Ombudsman's functions of enquiring into or investigating administrative action include the function to enquire into or investigate—

whether the relevant administrative action is incompatible with a human right set out in the Charter of Human Rights and Responsibilities Act 2006; and

if the administrative action involves a decision, whether there was a failure to give proper consideration to a

109

human right set out in the Charter of Human Rights and Responsibilities Act 2006.

The first of these functions was previously provided by section 13AA(2) of the Ombudsman Act 1973. The second function mirrors the obligations of a public authority under section 38 of the Charter of Human Rights and Responsibilities Act 2006.

Subsection (3) provides that the Ombudsman may also enquire into or investigate administrative action that is taken by a person or body, other than an authority or an exempt person or body, on behalf of an authority; under a power or function that is conferred on the person or body by an authority; or as a result of instructions given by an authority. New section 13(4) provides that the Ombudsman is not authorised to enquire into or investigate the merits of a decision made by a person or body referred to in subsection (3).

Clause 150 repeals section 13AAA of the Ombudsman Act 1973. New section 13(1), substituted by clause 149, includes the function previously provided by section 13AAA.

Clause 151 substitutes section 13AA of the Ombudsman Act 1973. New section 13AA sets out the Ombudsman's functions other than the principal functions set out in section 13. These include the following new statutory functions—

to review the complaints practices and procedures of authorities (in accordance with new Part IIIAB, inserted by clause 153);

to provide education and training to the Victorian community and the public sector about matters relating to the functions of the Ombudsman; and

to promote improved public sector administration.

The Ombudsman's functions under new section 13AA also include any function conferred by or under the Ombudsman Act 1973 or any other Act.

New section 13AA does not include the functions of monitoring compliance with Part 2A of the Prevention of Cruelty to Animals Act 1986 by officers of the Royal Society for the Prevention of Cruelty to Animals approved as general inspectors under section 18(1)(b)(ii) of that, or monitoring compliance with

110

the Domestic Animals Act 1994 by persons appointed as authorised officers under section 71A(1) or 72A(1) of that Act. However, the Ombudsman can still enquire into or investigate administrative actions by these persons, as Schedule 1 to the Ombudsman Act 1973 provides that they are specified entities for the purposes of the definition of authority in section 2 of the Act.

Clause 152 amends section 13A of the Ombudsman Act 1973 to insert new subsection (4). Section 13A provides for the conduct of enquiries by the Ombudsman.

New subsection (4) provides that a person who is under the age of 16 years but of or over the age of 10 years may voluntarily provide information to the Ombudsman during an enquiry.

Clause 153 inserts new Part IIIAB (Review of complaint practices and procedures) and new Part IIIAC (Alternative dispute resolution of complaints) in the Ombudsman Act 1973.

New Part IIIAB provides the Ombudsman with power to conduct a review of authorities' complaints practices and procedures.

New section 13C prevents the Ombudsman from reviewing the complaint practices and procedures of an authority relating to the Freedom of Information Act 1982 under new Part IIIAB. New section 13C also prevents the Ombudsman from reviewing the complaint practices and procedures and complaint functions of the Information Commissioner under new Part IIIAB.

New section 13D enables the Ombudsman to conduct a review of an authority's complaint practices and procedures on the Ombudsman's own motion or in response to a complaint.

New section 13D(2) allows the Ombudsman to make recommendations and provide education, training or other assistance to an authority for the purpose of improving the authority's complaint practices and procedures following a review.

New section 13D(3) provides that the principal officer of an authority must assist the Ombudsman in the conduct of a review under Part IIIAB. New section 13D(4) prevents the Ombudsman from exercising the investigation powers provided under Division 3 of Part IV (as amended by clauses 162 and 163) in conducting a review.

111

New section 13D(5) provides that a review under this section does not prevent the Ombudsman from conducting an own motion investigation in relation to an authority's complaint practices and procedures.

New Part IIIAC provides the Ombudsman with the ability to attempt to resolve complaints by alternative dispute resolution.

New section 13E provides that, for the purpose of Part IIIAC, alternative dispute resolution includes conciliation and mediation.

New section 13F prevents the Ombudsman from attempting to resolve by alternative dispute resolution public interest complaints, parliamentary complaints under section 16 of the Ombudsman Act 1973 or complaints involving corrupt conduct referred to the Ombudsman under section 73 of the Independent Broad-based Anti-corruption Commission Act 2011.

New section 13G sets out how alternative dispute resolution is to be conducted. Subsection (1) permits the Ombudsman, or a member of Ombudsman staff authorised to do so by the Ombudsman, at any time during an enquiry or investigation of a complaint under section 15B of the Ombudsman Act 1973, to attempt to resolve the complaint by alternative dispute resolution in accordance with Part IIIAC. Subsection (2) allows the Ombudsman to authorise a conciliator or a mediator to mediate or conciliate the complaint.

New section 13G(3) requires that alternative dispute resolution be conducted in private and in a manner that the Ombudsman thinks fit.

New section 13G(4) provides that participation by a party in alternative dispute resolution is voluntary and any party may withdraw from the alternative dispute resolution at any time.

New section 13G(5) provides that a person who is under the age of 16 years but of or over the age of 10 years and accompanied by a parent or guardian or independent person may voluntarily participate in alternative dispute resolution. Subsection (10) provides that, for the purposes of section 13G, an independent person is—

112

a person nominated by, or who is acceptable to, the young person; or

if no person has been nominated by, or is acceptable to, the young person, a person chosen by the Ombudsman who is not involved in the subject matter of the enquiry or investigation, and, where practicable, is involved in the care or supervision of the young person and of the same gender as the young person or, if the young person identifies as being of a particular gender, of that gender.

New section 13G(6) prevents the powers of the Ombudsman from exercising the investigation powers provided under Division 3 of Part IV (as amended by clauses 162 and 163) in alternative dispute resolution.

New section 13G(7) allows the Ombudsman or a member of Ombudsman staff to terminate alternative dispute resolution at any time.

New section 13G(8) provides that the principal officer of an authority is not required to assist the Ombudsman or a member of Ombudsman staff during alternative dispute resolution, however the principal officer may voluntarily participate in the alternative dispute resolution.

New section 13G(9) provides that any information provided or anything done by a party during alternative dispute resolution under Part IIIAC is not admissible in evidence in any proceeding before a court or tribunal where the proceeding relates to the subject matter of the complaint.

New section 13H sets out the outcomes of alternative dispute resolution by the Ombudsman.

New section 13H(1) provides that, if the Ombudsman considers that a complaint has been resolved through alternative dispute resolution, the Ombudsman may decide that the complaint has been resolved informally under the Ombudsman Act 1973.

New section 13H(2) provides that, if the Ombudsman decides that a complaint cannot be resolved by alternative dispute resolution, the Ombudsman may decide that the complaint is to be treated as if the alternative dispute resolution attempt did not occur and decide whether or not to continue the enquiry or

113

investigation or refer the complaint. If the Ombudsman decides to conduct or continue to conduct an enquiry or investigation, section 13H(3) provides that the Ombudsman must not, without the consent of the parties—

use in the enquiry or the investigation information obtained during the alternative dispute resolution; or

involve in the conduct of the enquiry or the investigation any member of Ombudsman staff who was involved in the alternative dispute resolution.

Clause 154 amends section 15A of the Ombudsman Act 1973 to insert new subsection (1)(ca), which permits the Ombudsman to refuse to deal with a complaint if the Ombudsman considers that dealing with, or continuing to deal with, the complaint is unnecessary or unjustifiable, having regard to all the circumstances of the case.

Clause 155 amends section 16E of the Ombudsman Act 1973 to—

remove the "in writing" aspect of the requirement that the Ombudsman inform a complainant when the Ombudsman has notified a complaint to the IBAC under section 16E(1);

clarify that the Ombudsman is not required to notify the IBAC under section 16E(1) of a complaint that IBAC has referred to the Ombudsman under section 73 of the Independent Broad-based Anti-corruption Commission Act 2011;

require the Ombudsman, in relation to a complaint that the IBAC has referred to the Ombudsman under section 73 of the Independent Broad-based Anti-corruption Commission Act 2011, to inform IBAC if the complaint appears to involve corrupt conduct of which the IBAC may not be aware; and

clarify that the Ombudsman must notify IBAC under section 16E in the form agreed to in writing between the Ombudsman and the IBAC.

114

Clause 156 amends section 16F of the Ombudsman Act 1973 to clarify that the Ombudsman must notify the Victorian Inspectorate under section 16F(1) in the form agreed to in writing between the Ombudsman and the Victorian Inspectorate.

Clause 157 amends section 16G(2) of the Ombudsman Act 1973 to remove the "in writing" aspect of the requirement that the Ombudsman inform a complainant when the Ombudsman has notified a complaint to the Information Commissioner to be dealt with under Part VIA of the Freedom of Information Act 1982.

Clause 158 amends section 16H of the Ombudsman Act 1973 to insert a new subsection (2), providing that in Division 2D of Part IV, a reference to a complaint is not limited to a complaint under section 14. This will allow the Ombudsman to refer complaints other than complaints about administrative action taken by or in an authority and complaints in accordance with the Division.

Clause 159 inserts section 16IA in the Ombudsman Act 1973. New section 16IA provides that, in addition to the power to refer matters provided by section 16I, the Ombudsman may refer a complaint to an authority to which the complaint relates if the complainant consents to the referral and the Ombudsman considers that—

the complaint is relevant to the functions of the authority; and

it would be more appropriate for the complaint to be dealt with by the authority rather than by the Ombudsman.

Clause 160 amends section 16J of the Ombudsman Act 1973 to—

remove the 'in writing' aspect of the requirement that the Ombudsman inform a complainant when the Ombudsman has referred a complaint to a person or body;

provide that if the Ombudsman refers a complaint to an authority under new section 16IA , inserted by clause 159, the Ombudsman must advise the

115

complainant that the complaint has been referred to the authority.

Clause 161 repeals Division 2E of Part IV of the Ombudsman Act 1973. The provisions in Division 2E of Part IV are re-enacted in new Part VAB, inserted by clause 170.

Clause 162 amends section 17(3) of the Ombudsman Act 1973 to remove references to Rules of Parliament. The power to make Rules of Parliament in respect of the Ombudsman Act 1973 has never been exercised. In place of the ability to make Rules of Parliament, clause 171 provides a power for the Governor in Council to make regulations.

Clause 163 substitutes sections 18 and 18A to 18G of the Ombudsman Act 1973 and inserts sections 18H to 18S. These sections set out—

the powers that the Ombudsman may use in an investigation; and

offences to support the effective operation of an Ombudsman investigation, by ensuring that persons involved in the investigation comply with the Ombudsman's requirements.

New section 18 gives the Ombudsman the power to issue a witness summons for the purpose of an investigation under the Ombudsman Act 1973. This replaces the Ombudsman's current power to send for witnesses and documents under repealed section 17 of the Evidence (Miscellaneous Provisions) Act 1958.

Where a person is willing to participate voluntarily in an investigation, this power may not be needed. The provision does not allow the Ombudsman to issue a witness summons for the purposes of an enquiry or a review under new Part IIIAB, inserted by clause 153.

New section 18(1) provides that the Ombudsman may issue a witness summons to a person requiring the person to attend at a specified time and place on a specified date to—

produce documents or other things to the Ombudsman;

give evidence before the Ombudsman; or

116

give evidence and to produce documents or other things.

The term "document" is not defined in the Bill for the purposes of this power. However, the broad definition in section 38 of the Interpretation of Legislation Act 1984 would apply for this purpose.

New section 18(2) provides that a witness summons issued by the Ombudsman must be in the prescribed form. Clause 171 provides a power for the Governor in Council to make regulations with respect to any matter or thing required to be prescribed under the Ombudsman Act 1973, including the form of a witness summons. Summonses must also contain the information set out in new subsection (2)(c), which ensures that a person receiving a witness summons is able to comply with its requirements and is aware of the potential consequences of non-compliance. For example, a witness summons must explain what constitutes a reasonable excuse for failing to comply with the notice, as set out in new section 18B. Summonses requiring a person to give evidence must also state the nature of the matters about which the person is required to give evidence.

New section 18(3) provides that the requirement for a witness summons to state the nature of the matters about which a person is to give evidence does not apply if the Ombudsman considers on reasonable grounds that stating this information may prejudice the conduct of the investigation to which the summons relates or be contrary to the public interest.

New section 18(4) provides that a person whose attendance has been required by a witness summons is also required to attend at the time and place to which the investigation is adjourned or postponed without the issue or service of a further witness summons.

Failure to comply with a witness summons without a reasonable excuse is an offence under new section 18G.

Further, if a person fails to comply with a witness summons without reasonable excuse, the Ombudsman may apply to the Supreme Court for an order to comply with the witness summons within a specified period under new section 18I.

New section 18A outlines the procedure by which a witness summons (or a notice varying or revoking a summons under new section 18B) must be served on a person. A witness summons

117

must be served at a reasonable time, not less than 7 days, before the person is required to comply with the witness summons. A witness summons must be served—

if directed to a natural person—by giving a copy of the witness summons to the person personally; or

if directed to a body corporate—by leaving a copy of the witness summons at the registered office or principal place of business of the body corporate with a person who, apparently, is employed at that office or place and, is at least 18 years of age.

New section 18B provides for the variation or revocation of a witness summons, of the Ombudsman's own volition or in response to an objection by the person or body who receives the summons. This provision does not limit the Ombudsman's discretion to vary or revoke a witness summons at any time.

New section 18B(1) outlines a process for objecting to a witness summons. A person may make a claim to the Ombudsman that the person has a reasonable excuse for failing to comply with the witness summons. The person may also claim that the document or other thing specified in the witness summons is not relevant to the subject matter of the investigation.

New sections 18B(2) and (3) provide a non-exhaustive list of the circumstances which constitute a reasonable excuse for failing to comply with a witness summons. For example, it is a reasonable excuse for a person not to comply if the information sought by the Ombudsman might tend to incriminate the person.

Failure to comply with a witness summons without a reasonable excuse is an offence under new section 18G. The circumstances which constitute a reasonable excuse set out in subsections (2) and (3) are relevant for the purposes of this offence.

New section 18B(4) provides that, if the Ombudsman is satisfied that the person's claim is made out, the Ombudsman may vary or revoke the witness summons by further written notice.

New section 18B(5) provides that the Ombudsman may vary or revoke a witness summons on the Ombudsman's own initiative, at any time and for any reason. For example, the Ombudsman

118

may wish to vary or revoke a witness summons where the evidence requested in a summons is no longer necessary for the purposes of the investigation or has been obtained by other means.

New section 18B(6) provides that a notice varying or revoking a witness summons must be served in accordance with the procedure in new section 18A.

New section 18C provides that, on application by the Ombudsman, the Supreme Court may order that a witness summons may be served by other means or by substituted service where it is not reasonably practicable to serve the witness summons in accordance with new section 18A.

New section 18D re-enacts section 18A of the current version of the Ombudsman Act 1973.

New section 18E re-enacts section 18B of the current version of the Ombudsman Act 1973.

New section 18F enables the Ombudsman to require a person appearing before the Ombudsman to give evidence or answer questions on oath or affirmation. The Ombudsman may make such a requirement in a compulsory or voluntary appearance, except in a voluntary appearance by a child witness under new section 18O. New section 18F replaces the Ombudsman's current power to administer an oath and call upon a person to give evidence or produce documents under repealed section 18 of the Evidence (Miscellaneous Provisions) Act 1958.

New section 18F(3) provides that oaths and affirmations may be administered by the Ombudsman or a member of the Ombudsman's staff who is authorised to do so by the Ombudsman.

If a person fails to comply with a requirement under section 18F without a reasonable excuse, the Ombudsman may apply to the Supreme Court for an order to comply with the requirement within a specified period under new section 18I.

If a person attending before the Ombudsman in accordance with a witness summons issued under new section 18 refuses to take an oath or affirmation, or give evidence or answer questions on oath or affirmation when required to do so, that person may commit an offence under new section 18H.

119

If a person gives false evidence under oath or affirmation, that person may commit the offence of perjury under section 314 of the Crimes Act 1958. That person may also commit the offence of obstruction under section 22 of the Ombudsman Act 1973.

New section 18G creates an offence for refusing or failing to comply with a witness summons issued under new section 18, without reasonable excuse.

The reasonable excuses for failing to comply with a witness summons listed non-exhaustively in new section 18B(2) and (3) would be relevant for the purpose of determining whether a person has committed an offence under section 18G.

The maximum penalty for this offence is 240 penalty units or imprisonment for 2 years.

New section 18G, along with new section 18H, replaces the offence provided under repealed section 19 of the Evidence (Miscellaneous Provisions) Act 1958.

New section 18H creates an offence for failing to take an oath or make an affirmation or answer a question when required to do so by the Ombudsman, without reasonable excuse.

The reasonable excuses for failing to comply with a summons listed non-exhaustively in new section 18B(2) and (3) would be relevant for the purpose of determining whether a person has committed an offence under section 18H.

This offence only applies where the person has been duly served with a witness summons, and not where a person is attending voluntarily. Persons attending voluntarily are not required to answer questions. While persons attending voluntarily can be required to give evidence on oath or affirmation, refusal to do so will not constitute an offence.

If a person attending voluntarily refused to take an oath or affirmation or to answer a question on oath or affirmation, the Ombudsman could issue a witness summons to that person. Continued refusal to comply with such a requirement when attending in response to a witness summons would then constitute an offence.

The maximum penalty for this offence is 240 penalty units or imprisonment for 2 years.

120

New section 18H(2) provides that a person does not commit an offence under the section unless, before the person was required to take an oath or affirmation or answer a question, the Ombudsman informed the person that any refusal or failure to do so without reasonable excuse is an offence.

New section 18I enables the Ombudsman to apply to the Supreme Court for an order to require a person to comply with a witness summons or a requirement of the Ombudsman.

New section 18I(1) provides that the Ombudsman may make an application to the Supreme Court if satisfied that a person has failed, without reasonable excuse, to comply with a witness summons or a requirement to give evidence or answer questions on oath or affirmation under new section 18F.

The conduct which would allow an application to be made may also constitute an offence under new section 18G (in the case of failure to comply with a witness summons) or section 18H (in the case of a refusal to give evidence or answer questions on oath or affirmation).

New section 18I(2) provides that, in response to an application, the Court may order the person to comply with the notice or requirement within a period specified by the Court.

While not expressly provided for in the Bill, if a person fails to comply with such an order, the Court may treat that failure as a contempt and deal with it accordingly. Any punishment imposed for such a contempt would relate to the failure to comply with the Court order, rather than a requirement of the Ombudsman, and thus would not give rise to any issues of double jeopardy.

New sections 18J and 18K re-enact section 18(2)–(5) of the current version of the Ombudsman Act 1973.

New section 18L creates an offence for an employer to dismiss or take other detrimental action against an employee (or to threaten to do so) because that employee has given information to the Ombudsman. The offence also applies where the employee has not given any information to the Ombudsman but where the employer believes that the employee has or will.

The maximum penalty for this offence is 120 penalty units or imprisonment for 12 months.

121

New section 18L(2) creates a defence to this offence. It provides that an employer does not commit the offence if the fact that the employee gave information to the Ombudsman (or the employer's belief that the employee did or would do so) was not a reason for the dismissal or other detrimental action.

In proceedings for this offence, the defendant would bear the evidential burden of pointing to evidence that raises the defence. However, once raised, the prosecution would bear the legal burden to disprove the defence by establishing, beyond reasonable doubt, that the defendant committed the offence.

New section 18L(3) creates further exceptions to the offence. It provides that the offence does not apply (and, thus, an employee is not protected from detrimental action) where information was unlawfully given by the employee.

New section 18M re-enacts section 18C of the current version of the Ombudsman Act 1973.

New section 18N re-enacts section 18D of the current version of the Ombudsman Act 1973, to require the Ombudsman to advise a person within a reasonable time before the person makes a voluntary appearance of the nature of the matters in respect of which the person will be questioned. Subsection (2) provides that the Ombudsman need not provide this advice if the Ombudsman is of the opinion on reasonable grounds that this may prejudice the conduct of the investigation or be contrary to the public interest.

New section 18O enables a child witness—being a person under the age of 16 years but of or over the age of 10 years—to appear in an Ombudsman investigation in a voluntary appearance.

New section 18O(2) requires the Ombudsman, within a reasonable time before the voluntary appearance of a child witness to provide the advice required under section 18N to the child witness and either the child witness's parent or guardian, or an independent person. The Ombudsman may only provide information to an independent person instead of a parent or guardian of the child witness if a parent or guardian is unable to be found or is unavailable, or the Ombudsman considers on reasonable grounds that providing the advice to a parent or

122

guardian of the child witness would prejudice the conduct of the investigation or cause a risk to the safety to the child witness.

New section 18O(3) requires the Ombudsman to advise the child witness how the Ombudsman may use information provided by the child witness during the appearance.

New section 18O(4) provides direct and derivative use immunity for any answer given or information, document or thing produced by a child witness that might tend to incriminate the child witness, or make the child witness liable to a penalty.

New section 18O(5) provides that for the purposes of section 18O, an independent person is either—

a person nominated by, or who is acceptable to, the child witness; or

if no person has been nominated by, or is acceptable to, the child witness, a person chosen by the Ombudsman who—

is not involved in the subject matter of the investigation; and

where practicable, is involved in the care or supervision of the child witness and is of the same gender as the child witness or, if the child witness identifies as being of a particular gender, of that gender.

Additional requirements in relation to a child witness appearing in a voluntary appearance are set out in section 18P, including a requirement that a person under the age of 18 must be accompanied by a parent, guardian or independent person when appearing before the Ombudsman.

New section 18P sets out additional requirements relating to compulsory and voluntary appearances before the Ombudsman. New section 18P substantially re-enacts section 18E of the current version of the Ombudsman Act 1973, subject to the following changes.

New section 18P(2) requires the presiding officer to take certain actions before the person appearing is asked any questions or required to produce any documents. Importantly, the presiding officer must release any person under the age of 10 years from a voluntary appearance, and release any person under the age of

123

16 years from a compulsory appearance. The presiding officer need not release a person of or over the age of 10 but under the age of 16 years from a voluntary appearance. In the case of a voluntary appearance, the presiding officer must inform the person that—

the person's participation is voluntary and the person may leave at any time; and

the person cannot be compelled to answer any question or provide any document.

New section 18P(4) provides that, if at any time during a voluntary or compulsory appearance, the presiding officer becomes aware that the person appearing is under the age of 10 years, the presiding officer must release the person from the appearance. Similarly, if the presiding officer becomes aware at any time during a compulsory appearance that the person appearing is under the age of 16 years, the presiding officer must release the person from the appearance.

In the case of a voluntary appearance, the presiding officer must also immediately release a person from a voluntary appearance if, at any time during the appearance, the person advises the presiding officer that the person—

wants to leave the appearance; or

does not want to answer a question; or

does not want to produce a document.

New section 18P(9) allows a person appearing in a voluntary or compulsory appearance to make a request that another person be present to provide support during the appearance. The Ombudsman has complete discretion to decide whether or not to allow the chosen person to be present.

New section 18P(10) provides that for the purposes of section 18P, an independent person is either—

a person nominated by, or who is acceptable to, the person appearing; or

if no person has been nominated by, or is acceptable to, the person appearing, a person chosen by the Ombudsman who—

124

is not involved in the subject matter of the investigation; and

in the case of a person appearing who is under the age of 18 years and where practicable, is involved in the care or supervision of the child witness and is of the same gender as the child witness or, if the child witness identifies as being of a particular gender, of that gender.

New section 18Q re-enacts section 18F of the current version of the Ombudsman Act 1973.

New section 18R re-enacts section 18G of the current version of the Ombudsman Act 1973.

New section 18S provides for the manner of service for documents other than witness summonses and confidentiality notices. The manner of service for witness summonses and confidentiality notices is provided by section 18A.

Clause 164 inserts section 25AAB in the Ombudsman Act 1973, which requires the Ombudsman to provide a copy of a report to Parliament under section 23(6) or 25 to the Minister and the Secretary to the Department of Premier and Cabinet at least one business day before the report is transmitted to each House of Parliament.

The Minister and the Secretary may only disclose information provided in a copy of a report provided under section 25AAB in accordance with section 25B, as amended by clause 165.

Subsection (2) provides that, if the Ombudsman has already provided the Secretary with a copy of the report under section 23(2) or (2A), the Ombudsman need not provide a further copy of a report under section 25AAB.

Subsection (3) provides that if the Ombudsman has already provided the Minister with the report under section 23(2) or (2A). the Ombudsman need not provide a further copy of a report under section 25AAB.

Subsection (4) provides that the Ombudsman is not required to provide a copy of the report to the Minister and the Secretary of the Department of Premier and Cabinet if the Ombudsman considers that in all the circumstances it would be inappropriate to do so.

125

Clause 165 amends section 25B of the Ombudsman Act 1973 to provide that a person who receives a copy of a report to Parliament under new section 25AAB (inserted by clause 164) must not disclose any information contained in the copy of the report before the report is laid before a House of Parliament, except in accordance with section 25B.

The maximum penalty for breaching this provision is 120 penalty units or imprisonment for 12 months or both.

Clause 165 inserts new subsection (3)(ba) to provide that, in addition to the circumstances already described in subsection (3), the Secretary to the Department of Premier and Cabinet may disclose information in a copy of a report provided under section 25AAB before the report is laid before a House of Parliament to the Premier or the responsible Minister, for the purpose of enabling the Premier or responsible Minister to respond to the report.

Clause 166 repeals section 26 of the Ombudsman Act 1973, which provided for the making of Rules of Parliament authorising the Ombudsman to publish reports in the public interest or in the interests of any person, authority or other organisation. This section is repealed consequential to the substitution of section 31 by clause 171, to provide for the making of regulations by the Governor in Council instead of Rules of Parliament in relation to the Ombudsman Act 1973.

Clause 167 amends section 26A(3) of the Ombudsman Act 1973 to provide that it is not an offence for a current or former Ombudsman officer to provide or disclose information acquired by reason of or in the course of the performance of the duties and functions or exercise of functions of the Ombudsman in accordance with section 17, 26FB or 26FC.

Clause 168 amends section 26C of the Ombudsman Act 1973 to provide that a confidentiality notice must be in the prescribed form and must only in the case of a confidentiality notice issued in respect of an investigation of a public interest complaint, include a statement advising the person to whom the notice is issued of any additional confidentiality obligations under the Public Interest Disclosures Act 2012.

126

Clause 169 amends section 26F of the Ombudsman Act 1973 to substitute a reference to section 18C(3) to section 18M(3), consequential to the amendments made by clause 163.

Clause 170 inserts new Part VAB in the Ombudsman Act 1973, setting out the Ombudsman's information sharing powers. Previously, these powers were provided in Part IV, however moving them to new Part VAB is intended to clarify that the powers also apply to the Ombudsman's functions beyond investigations.

New section 26FB of Part VAB substantially re-enacts section 16L of the current version of the Ombudsman Act 1973. Subsection (2), re-enacted as subsection (3), is amended to allow the Ombudsman to disclose information obtained in accordance with subsection (1) to a person or body to whom the Ombudsman has referred a complaint under section 16I or 16IA, in addition to the other persons and bodies specified.

New section 26FC substantially re-enacts section 16M of the current version of the Ombudsman Act 1973. New subsection (2) provides the Ombudsman with an additional power to provide or disclose information received or obtained in the course of the performance of or functions under the Ombudsman Act 1973 to an authority, if the Ombudsman—

considers the disclosure is necessary to assist the authority to improve its complaint handling or administrative practices or procedures;

is satisfied the information is not likely to lead to the identification of any person unless that person has provided consent, or the identification is otherwise permitted under the Privacy and Data Protection Act 2014; and

the disclosure does not contravene subsection (4) which sets out the circumstances under which the Ombudsman must not disclose any information under section 26FC.

Clause 171 substitutes section 31 of the Ombudsman Act 1973 to provide a regulation-making power. New section 31 allows the Governor in Council to make regulations for or with respect to any matter

127

or thing required or permitted by the Bill to be prescribed or necessary to be prescribed to give effect to the Bill.

Subsection (2) amplifies the scope of the regulation-making power.

The regulation making power replaces the power to make Rules of Parliament for the guidance of the Ombudsman in the exercise of the Ombudsman's functions and other purposes, which has never been exercised by Parliament.

Clause 172 inserts new section 36 in the Ombudsman Act 1973. New section 36 is a transitional provision.

New section 36(2) provides that new Part IIIAC, which allows the Ombudsman to attempt to resolve a complaint through alternative dispute resolution, applies to enquiries and investigations that have already commenced.

New section 36(3) ensures that a summons issued to a person by the Ombudsman under section 17 of the Evidence (Miscellaneous Provisions) Act 1958 continues to have effect until the person complies with the summons or the summons is varied or revoked under new section 18B of the Ombudsman Act 1973.

New section 36(4) provides that sections 18 and 18A to 18S apply to an investigation that has already commenced.

New section 36(5) provides that new section 13A(4) and 18O and 18P (which permit a person under the age of 16 years but of or over the age of 10 years to appear before the Ombudsman in a voluntary appearance) apply to an enquiry or investigation that has already commenced.

New section 36(6) ensures that information obtained or received by a party from the Ombudsman in the course of or as a result of the performance of the Ombudsman's functions under the Ombudsman Act 1973 is admissible in evidence in proceedings in relation to an offence under section 19 of the Evidence (Miscellaneous Provisions) Act 1958 that have already commenced

128

Clause 173 amends Schedule 1 to the Ombudsman Act 1973 to repeal item 13 and substitute item 37.

Item 13 previously provided that public statutory bodies not specified elsewhere in Schedule 3 are specified entities for the purposes of the definition of authority under the Ombudsman Act 1973. This item is repealed consequential to the amendments to the definition of authority made by clause 147, expanding the definition to include all public statutory bodies.

New item 37 permits a person or entity to be prescribed as a specified entity under Schedule 1. This amendment is consequential to the substitution of section 31 by clause 171 to provide for the making of regulations by the Governor in Council instead of Rules of Parliament in relation to the Ombudsman Act 1973.

Clause 174 amends Schedule 3 to the Ombudsman Act 1973 to provide that, under section 16I, the Ombudsman may refer a complaint to a prescribed person or body. This amendment is consequential to the substitution of section 31 by clause 171, to provide for the making of regulations by the Governor in Council instead of Rules of Parliament in relation to the Ombudsman Act 1973.

Part 5—Greater Budget Independence

Division 1—Amendment of Ombudsman Act 1973

Clause 175 amends section 2(1) of the Ombudsman Act 1973 to provide that the definition of—

Auditor-General means the Auditor-General appointed under section 94A of the Constitution Act 1975; and

Parliamentary Committee means the Integrity and Oversight Committee established under section 5(a) of the Parliamentary Committees Act 2003.

Clause 176 inserts a new Part IVA (Budget, annual plan and performance audit) in the Ombudsman Act 1973.

129

New section 24A provides that the Ombudsman's budget for each financial year is to be determined in consultation with the Integrity and Oversight Committee concurrently with the annual plan under section 24B.

New section 24B provides that before the beginning of each financial year, the Ombudsman must—

prepare a draft annual plan describing the Ombudsman's proposed work program for that financial year; and

submit the plan to the Integrity and Oversight Committee for its consideration.

New section 24B(2) provides that after considering the draft annual plan, the Integrity and Oversight Committee—

must return the plan to the Ombudsman; and

may provide to the Ombudsman any comments regarding the plan, including suggestions of changes to be made to the plan.

New section 24B(3) provides that as soon as practicable after the passage of the annual appropriation Acts for a financial year, and after considering any comments received from the Integrity and Oversight Committee, the Ombudsman must finalise the annual plan for that financial year.

New section 24B(4) provides that the Ombudsman must indicate in the annual plan the nature of any changes suggested by the Integrity and Oversight Committee that the Ombudsman has not adopted.

New section 24B(5) provides that before the beginning of the financial year to which the annual plan relates, the Ombudsman must—

present the annual plan to the Integrity and Oversight Committee; and

cause the plan to be transmitted to the Parliament in accordance with section 24C.

New section 24C provides that the Ombudsman must cause the annual plan for a financial year to be transmitted to each House of Parliament as soon as practicable after it has been prepared.

130

New section 24C(2) provides that the clerk of each House of Parliament must cause the annual plan to be laid before the House on the day on which it is received or on the next sitting day of the House.

New section 24C(3) provides that if the Ombudsman proposes to transmit the annual plan to the Parliament at a time when a House of the Parliament is not likely to next sit until after the beginning of the financial year to which the annual plan relates, the Ombudsman must—

give one business day's notice of the Ombudsman's intention to do so to the clerk of that House of Parliament;

give the annual plan to the clerk of that House of Parliament on the day indicated in the notice; and

publish the annual plan on an Internet website maintained by the Ombudsman on the day after giving it to the clerk.

New section 24C(4) provides that if a clerk of a House of the Parliament is given notice under subsection (3), the clerk must—

notify each member of the House of the receipt of the notice on the same day that the clerk receives the notice;

give a copy of the annual plan to each member of the House as soon as practicable after the clerk receives the annual plan; and

cause the annual plan to be laid before the House on the next sitting day of the House.

New section 24C(5) provides that an annual plan given to the clerk of a House of the Parliament in accordance with subsection (3) is taken to have been published by order, or under authority, of the House.

New section 24D provides that a suitably qualified person may be appointed by resolution of the Legislative Council and Legislative Assembly, on the recommendation of the Integrity and Oversight Committee, as an independent performance auditor of the Ombudsman and the office of the Ombudsman other than the following—

the Auditor-General;

131

any other VAGO officer, within the meaning of section 3(1) of the Audit Act 1994;

a person engaged by the Auditor-General under section 7 of the Audit Act 1994 to assist in the performance of a function under that Act;

a person to whom the Auditor-General has delegated a power or function under section 8 of the Audit Act 1994.

New section 24D(2) provides that the independent performance auditor—

is appointed on terms and conditions, and is entitled to remuneration, as determined by the Integrity and Oversight Committee; and

must comply with directions given by the Integrity and Oversight Committee in conducting the audit.

New section 24D(3) provides that the remuneration payable under the appointment is paid out of the Consolidated Fund which is to the necessary extent appropriated accordingly.

New section 24D(4) provides that the independent performance auditor must conduct a performance audit at least once every 4 years to determine whether the Ombudsman and the office of the Ombudsman are achieving their objectives effectively, economically and efficiently and in compliance with the Ombudsman Act 1973.

New section 24D(5) provides that subject to any directions given by the Integrity and Oversight Committee, the independent performance auditor may exercise any powers of the Auditor-General under Part 7 of the Audit Act 1994 to the extent necessary to conduct the audit as if a reference in that Part to the Auditor-General includes a reference to the independent performance auditor.

New section 24D(6) provides that the Integrity and Oversight Committee must prepare and finalise a specification for a performance audit before the independent performance auditor may call for any information or rely on any power under Part 7 of the Audit Act 1994 in relation to the audit.

132

New section 24D(7) provides that before finalising a specification for a performance audit the Integrity and Oversight Committee must—

prepare a draft specification for the performance audit that sets out the objectives of the audit and the particular issues (if any) to be addressed; and

consult with the Ombudsman on the draft specification.

New section 24D(8) provides that if the Ombudsman does not respond to a request for comment on a draft specification for a performance audit within 15 business days of receiving the request—

the Ombudsman is taken to have no comment on the draft specification; and

the independent performance auditor may finalise the specification.

New section 24D(9) provides that the Integrity and Oversight Committee must provide the final specification for a performance audit to the Ombudsman.

New section 24D(10) provides that the independent performance auditor may apply additional auditing and assurance standards applied by the Auditor-General under section 78(2) of the Audit Act 1994, to the conduct of performance audits of the Ombudsman and the office of the Ombudsman.

New section 24E provides that the independent performance auditor may make a report of a performance audit conducted under section 24D.

New section 24E(2) provides that the report—

may include any information and recommendations the independent performance auditor considers relevant; and

must set out the reasons for opinions expressed in the report.

New section 24E(3) provides that the independent performance auditor must not make a report under subsection (1) unless—

at least 20 business days before making the report, the independent performance auditor gives the Ombudsman

133

a copy of the proposed report or a summary of findings and proposed recommendations;

the independent performance auditor asks the Ombudsman in writing for comment before a specified date, being at least 10 business days after the material has been given to the Ombudsman by the independent performance auditor; and

the independent performance auditor includes in the report any comments made before the specified date, or a summary of those comments, in a form agreed between the independent performance auditor and the Ombudsman.

New section 24E(4) provides that the independent performance auditor must, within 7 sitting days of making the report, transmit the report to each House of the Parliament.

New section 24E(5) provides that the independent performance auditor must not include in a report under subsection (1)—

a finding or an opinion that a specified person is guilty of or has committed, is committing or is about to commit an offence; or

a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for an offence.


any information that the independent performance auditor considers would prejudice any criminal proceedings or criminal investigation, or any investigations by the Ombudsman, the IBAC or the Victorian Inspectorate;

any information, or information in any document, referred to in section 19, 19A or 19B of the Ombudsman Act 1973; or

any information that—

is likely to lead to the identification of a person who has made an assessable disclosure; and

134

is not information to which section 53(2)(a), (c) or (d) of the Public Interest Disclosures Act 2012 applies.

New section 24E(7) provides that if the independent performance auditor intends to include in a report under subsection (1) a comment or an opinion that is adverse to any person who is to be named in the report and who is an officer or employee of the office of the Ombudsman, the Ombudsman must, after receiving a copy of the proposed report or the relevant part of the proposed report, give the person a reasonable opportunity to respond to the Ombudsman in relation to the adverse material.

Clause 177 inserts section 25(1A) in the Ombudsman Act 1973 to provide that the Ombudsman must prepare a report of the operations of the office of the Ombudsman during each financial year that includes an account of the implementation of the annual plan required under section 24B.

Clause 178 amends section 25AA(1)(a) of the Ombudsman Act 1973 to include a reference to new section 25(1A) to allow a report under section 25(1A) to be transmitted to each House of Parliament.

Division 2—Amendment of Independent Broad-based Anti-corruption Commission Act 2011

Clause 179 amends section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011 to provide that the definition of—

Auditor-General means the Auditor-General appointed under section 94A of the Constitution Act 1975;

Parliamentary Committee means the Integrity and Oversight Committee established under section 5(a) of the Parliamentary Committees Act 2003.

Clause 180 amends section 165(1) of the Independent Broad-based Anti-corruption Commission Act 2011 to require the IBAC to include in its annual report for a financial year under Part 7 of the Financial Management Act 1994 an account of the implementation of the annual plan prepared by the IBAC under section 168.

Subsection (2) inserts section 165(10) in the Independent Broad-based Anti-corruption Commission Act 2011 to require

135

the IBAC to cause the annual report for that financial year to be transmitted to each House of Parliament as soon as practicable after the end of each financial year.

Clause 181 inserts a new Part 8 (Budget, annual plan and performance audit) in the Independent Broad-based Anti-corruption Commission Act 2011 after section 166 of that Act.

New section 167 provides the IBAC's budget for each financial year is to be determined in consultation with the Integrity and Oversight Committee concurrently with the annual plan under section 168.

New section 168 provides that before the beginning of each financial year, the IBAC must—

prepare a draft annual plan describing the IBAC's proposed work program for that financial year; and


New section 168(2) provides that after considering the draft annual plan, the Integrity and Oversight Committee—

must return the plan to the IBAC; and

may provide to the IBAC any comments regarding the plan, including suggestions of changes to be made to the plan.

New section 168(3) provides that as soon as practicable after the passage of the annual appropriation Acts for a financial year and after considering any comments received from the Integrity and Oversight Committee, the IBAC must finalise the annual plan for that financial year.

New section 168(4) provides that the IBAC must indicate in the annual plan the nature of any changes suggested by the Integrity and Oversight Committee under subsection (2) that the IBAC has not adopted.

136

New section 168(5) provides that before the beginning of the financial year to which the annual plan relates, the IBAC must—

present the annual plan to the Integrity and Oversight Committee; and

cause the plan to be transmitted to the Parliament in accordance with section 169.

New section 169 provides that the IBAC must cause the annual plan for a financial year to be transmitted to each House of Parliament as soon as practicable after it has been prepared.

New section 169(2) provides that the clerk of each House of Parliament must cause the annual plan to be laid before the House on the day on which it is received or on the next sitting day of the House.

New section 169(3) provides that if the IBAC proposes to transmit the annual plan to the Parliament at a time when a House of the Parliament is not likely to next sit until after the beginning of the financial year to which the annual plan relates, the IBAC must—

give one business day's notice of the IBAC's intention to do so to the clerk of that House of Parliament;


publish the annual plan on an Internet website maintained by the IBAC on the day after giving it to the clerk.

New section 169(4) provides that if a clerk of a House of the Parliament is given notice under subsection (3), the clerk must—




137

New section 169(5) provides that an annual plan given to the clerk of a House of the Parliament in accordance with subsection (3) is taken to have been published by order, or under authority, of the House.

New section 170 provides for an independent performance audit of the IBAC to be conducted by independent performance auditor.

New section 170(1) provides that a suitably qualified person may be appointed by resolution of the Legislative Council and Legislative Assembly, on the recommendation of the Parliamentary Committee, as an independent performance auditor of the IBAC other than the following—





New section 170(2) provides that the independent performance auditor—

is appointed on the terms and conditions, and is entitled to the remuneration, determined by the Integrity and Oversight Committee; and

must comply with directions given by the Integrity and Oversight Committee in conducting the audit.

New section 170(3) provides that remuneration payable under the appointment is paid out of the Consolidated Fund which is to the necessary extent appropriated accordingly.

New section 170(4) provides that the independent performance auditor must conduct a performance audit at least once every 4 years to determine whether the IBAC is achieving its objectives effectively, economically and efficiently and in compliance with this Act.

138

New section 170(5) provides that subject to any directions given by the Integrity and Oversight Committee, the independent performance auditor may exercise any powers of the Auditor-General under Part 7 of the Audit Act 1994 to the extent necessary to conduct the audit as if a reference in that Part to the Auditor-General includes a reference to the independent performance auditor.

New section 170(6) provides that the Integrity and Oversight Committee must prepare and finalise a specification for a performance audit before the independent performance auditor may call for any information or rely on any power under Part 7 of the Audit Act 1994 in relation to the audit.

New section 170(7) provides that before finalising a specification for a performance audit the Independent and Oversight Committee must—


consult with the IBAC on the draft specification.

New section 170(8) provides that if the IBAC does not respond to a request for comment on a draft specification for a performance audit within 15 business days of receiving the request—

the IBAC is taken to have no comment on the draft specification; and

the independent performance auditor may finalise the specification.

New section 170(9) provides that the Integrity and Oversight Committee must provide the final specification for a performance audit to the IBAC.

New section 170(10) provides that the independent performance auditor may apply additional auditing and assurance standards applied by the Auditor-General under section 78(2) of the Audit Act 1994, to the conduct of performance audits of the IBAC.

139

New section 170A provides that the independent performance auditor may make a report of a performance audit conducted under section 170.

New section 170A(2) provides that the report—

may include any information and recommendations the independent performance auditor considers relevant; and

must set out the reasons for opinions expressed in the report.

New section 170A(3) provides that the independent performance auditor must not make a report under subsection (1) unless—

at least 20 business days before making the report, the independent performance auditor gives the IBAC a copy of the proposed report or a summary of findings and proposed recommendations;

the independent performance auditor asks the IBAC in writing for comment before a specified date, being at least 10 business days after the material is given to the IBAC by the independent performance auditor; and

the independent performance auditor includes in the report any comments made before the specified date, or a summary of those comments, in a form agreed between the independent performance auditor and the IBAC.

New section 170A(4) provides that the independent performance auditor must, within 7 sitting days of making the report, transmit the report to each House of the Parliament.

New section 170A(5) provides that the independent performance auditor must not include in a report—

a finding or an opinion that a person specified in the report is guilty of or has committed, is committing or is about to commit an offence; or

a recommendation that a person specified in the report be, or an opinion that a person specified in the report should be, prosecuted for an offence.

New section 170A(6) provides that the independent performance auditor must not include in a report under Subsection (1)—

140

any information that the independent performance auditor considers would prejudice any criminal proceedings or criminal investigation, or any investigations by the IBAC;

any information that discloses the identity of a person to whom, or in respect of whom, a direction has been given under Division 1 of Part 9 of the Independent Broad-based Anti-corruption Commission Act 2011 or Part 5 of the Victoria Police Act 2013; or



is not information to which section 53(2)(a), (c) or (d) of the Public Interest Disclosures Act 2012 applies.

New section 170A(7) provides that if the independent performance auditor intends to include in a report under subsection (1) a comment or an opinion that is adverse to any person who is to be named in the report and who is employed under section 35(1) or engaged under section 35(2) or 36, the IBAC must, after receiving a copy of the proposed report or the relevant part of the proposed report, give the person a reasonable opportunity to respond to the IBAC in relation to the adverse material.

There will be little room for the Victorian Inspectorate to assist in improving the performance capacity of IBAC in relation to budget and annual plans, or the monitoring of its performance more broadly. The objects in section 5 of the Victorian Inspectorate Act 2011 (read together with the Inspectorate's broad powers under section 12 of the Victorian Inspectorate Act 2011) will be read down in light of the more specific functions of the IBAC, the Integrity and Oversight Committee and the independent performance auditor appointed under section 170 of the Independent Broad-based Anti-corruption Commission Act 2011.


Clause 182 amends section 3(1) of the Victorian Inspectorate Act 2011 to provide that the definition of Parliamentary Committee

141

means the Integrity and Oversight Committee established under section 5(a) of the Parliamentary Committees Act 2003.

Clause 183 inserts a new heading after the heading of Part 7 of the Victorian Inspectorate Act 2011, "Division 1—Recommendations and action on completion of investigation".

Clause 184 inserts new heading after section 90 of the Victorian Inspectorate Act 2011, "Division 2—Budget, annual plan and performance audit".

Clause 185 inserts new sections 90A, 90B, 90C, 90E and 90F before section 91 of the Victorian Inspectorate Act 2011.

New section 90A provides that the Victorian Inspectorate's budget for each financial year is to be determined in consultation with the Integrity and Oversight Committee concurrently with the annual plan under section 90B.

New section 90B provides that before the beginning of each financial year, the Victorian Inspectorate must—

prepare a draft annual plan describing the Victorian Inspectorate's proposed work program for that financial year; and


New section 90B(2) provides that after considering the draft annual plan, the Integrity and Oversight Committee must return the plan to the Victorian Inspectorate and may provide to the Victorian Inspectorate any comments regarding the plan, including suggestions of changes to be made to the plan.

New section 90B(3) provides that as soon as practicable after the passage of the annual appropriation Acts for a financial year, and after considering any comments received from the Integrity and Oversight Committee, the Victorian Inspectorate must finalise the annual plan for that financial year.

New section 90B(4) provides that the Victorian Inspectorate must indicate in the annual plan the nature of any changes suggested by the Integrity and Oversight Committee under subsection (2) that the Victorian Inspectorate has not adopted.

New section 90B(5) provides that before the beginning of the financial year to which the annual plan relates, the Victorian

142

Inspectorate must present the annual plan to the Integrity and Oversight Committee and cause the plan to be transmitted to the Parliament in accordance with section 90C.

New section 90C provides for the transmission of the annual plan to Parliament.

New section 90C(1) provides that the Victorian Inspectorate must cause the annual plan for a financial year to be transmitted to each House of Parliament as soon as practicable after it has been prepared.

New section 90C(2) provides that the clerk of each House of Parliament must cause the annual plan to be laid before the House on the day on which it is received or on the next sitting day of the House.

New section 90C(3) provides that if the Victorian Inspectorate proposes to transmit the annual plan to the Parliament at a time when a House of the Parliament is not likely to next sit until after the beginning of the financial year to which the annual plan relates, the Victorian Inspectorate must—

give one business day's notice of the Victorian Inspectorate's intention to do so to the clerk of that House of Parliament;


publish the annual plan on an Internet website maintained by the Victorian Inspectorate on the day after giving it to the clerk.

New section 90C(4) provides that if a clerk of a House of the Parliament is given notice under subsection (3), the clerk must—




143

New section 90C(5) provides that an annual plan given to the clerk of a House of the Parliament in accordance with subsection (3) is taken to have been published by order, or under authority, of the House.

New 90D provides for an independent performance audit of the Victorian Inspectorate to be conducted by an independent performance auditor.

New section 90D(1) provides that a suitably qualified person may be appointed by resolution of the Legislative Council and Legislative Assembly, on the recommendation of the Integrity and Oversight Committee, as an independent performance auditor of the Victorian Inspectorate other than the following—





New section 90D(2) provides that the independent performance auditor is appointed on the terms and conditions, and entitled to the remuneration, determined by the Integrity and Oversight Committee. The independent performance auditor must comply with directions given by the Integrity and Oversight Committee in conducting the audit.

New section 90D(3) provides that the remuneration payable under the appointment is paid out of the Consolidated Fund which is to the necessary extent appropriated accordingly.

New section 90D(4) provides that the independent performance auditor must conduct a performance audit at least once every 4 years to determine whether the Victorian Inspectorate is achieving its objectives effectively, economically and efficiently and in compliance with the Victorian Inspectorate Act 2011.

144

New section 90D(5) provides that, subject to any directions given by the Integrity and Oversight Committee, the independent performance auditor may exercise any powers of the Auditor-General under Part 7 of the Audit Act 1994 to the extent necessary to conduct the audit as if a reference in that Part to the Auditor-General includes a reference to the independent performance auditor.

New section 90D(6) provides that the Integrity and Oversight Committee must prepare and finalise a specification for a performance audit before the independent performance auditor may call for any information or rely on any power under Part 7 of the Audit Act 1994 in relation to the audit.

New section 90D(7) provides that before finalising a specification for a performance audit the Parliamentary Committee must—


consult with the Victorian Inspectorate on the draft specification.

New section 90D(8) provides that if the Victorian Inspectorate does not respond to a request for comment on a draft specification for a performance audit within 15 business days of receiving the request the Victorian Inspectorate is taken to have no comment on the draft specification and the independent performance auditor may finalise the specification.

New section 90D(9) provides that the Integrity and Oversight Committee must provide the final specification for a performance audit to the Victorian Inspectorate.

New section 90D(10) provides that the independent performance auditor may apply additional auditing and assurance standards applied by the Auditor-General under section 78(2) of the Audit Act 1994, to the conduct of performance audits of the Victorian Inspectorate.

New section 90E provides that independent performance auditor may make a report of a performance audit conducted under section 90D.

145

New section 90E(2) provides that a report under subsection (1) may include any information and recommendations the independent performance auditor considers relevant and must set out the reasons for opinions expressed in the report.

New section 90E(3) provides that the independent performance auditor must not make a report under subsection (1) unless—

at least 20 business days before making the report, the independent performance auditor gives the Victorian Inspectorate a copy of the proposed report or a summary of findings and proposed recommendations;

the independent performance auditor asks the Victorian Inspectorate in writing for comment before a specified date, being at least 10 business days after the material referred to above is given to the Victorian Inspectorate; and

the independent performance auditor includes in the report any comments made before the specified date, or a summary of those comments, in a form agreed between the independent performance auditor and the Victorian Inspectorate.

New section 90E(4) provides that the independent performance auditor must, within 7 sitting days of making the report, transmit the report to each House of the Parliament.


a finding or an opinion that a specified person is guilty of or has committed, is committing or is about to commit an offence; or

a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for an offence.

New section 90E(6) provides that the independent performance auditor must not include in a report—

information that the independent performance auditor considers would prejudice any criminal proceedings or criminal investigation, or any investigations by the

146

IBAC or the Victorian Inspectorate or an investigation under the Judicial Commission of Victoria Act 2016;

information that discloses the identity of a person to whom, or in respect of whom, a direction has been given under Division 1 of Part 9 of the Independent Broad-based Anti-corruption Commission Act 2011 or Part 5 of the Victoria Police Act 2013;



is not information to which section 53(2)(a), (c) or (d) of the Public Interest Disclosures Act 2012 applies;

information that discloses or may lead to the disclosure of the identity of any person involved in an investigation relating to a relevant application made by a law enforcement agency; or

information that a particular investigation has been, is being or is to be, conducted.

New section 90E(7) provides that if the independent performance auditor intends to include in a report a comment or an opinion that is adverse to any person who is to be named in the report and who is employed under Part 3 of the Public Administration Act 2004 pursuant to section 28(1) or engaged under section 28(2) or 29, the Victorian Inspectorate must, after receiving a copy of the proposed report or the relevant part of the proposed report, give the person a reasonable opportunity to respond to the Victorian Inspectorate in relation to the adverse material.

Clause 186 inserts a new heading before section 92 of the Victorian Inspectorate Act 2011, "Division 3—Miscellaneous".

Clause 187 inserts section 91(1)(ba) in the Victorian Inspectorate Act 2011 to require the Victorian Inspectorate to include in its annual

147

report for a financial year under Part 7 of the Financial Management Act 1994, an account of the implementation of the annual plan prepared by the Victorian Inspectorate under section 90B.

Subclause (2) inserts a new subsection (18) after section 91(17) of the Victorian Inspectorate Act 2011 to provide that as soon as practicable after the end of each financial year, the Victorian Inspectorate must cause the annual report for that financial year to be transmitted to each House of Parliament.

Part 6—Integrity and Oversight Committee

Division 1—Amendment of Parliamentary Committees Act 2003

Clause 188 amends section 3 of the Parliamentary Committees Act 2003 to repeal the definition of IBAC Committee.

Clause 189 amends section 5 of the Parliamentary Committees Act 2003 to replace the Accountability and Oversight Committee and the Independent Broad-based Anti-corruption Commission Committee with a new Joint House Committee, the Integrity and Oversight Committee.

Clause 190 substitutes section 6A of the Parliamentary Committees Act 2003 with new section 7, to provide that the functions of the new Integrity and Oversight Committee are—

to monitor and review the performance of the functions and exercise of the powers of the Information Commissioner;

to consider and investigate complaints concerning the Information Commissioner and the operation of the Office of the Victorian Information Commissioner;

to report to both Houses of Parliament on any matter requiring the attention of Parliament that relates to—

the performance of the functions and the exercise of the powers of the Information Commissioner; or

148

any complaint concerning the Information Commissioner and the operation of the Office of the Victorian Information Commissioner;

to examine the annual report of the Information Commissioner and any other reports by the Information Commissioner and report to Parliament on any matters it thinks fit concerning those reports;

to inquire into matters concerning freedom of information referred to it by the Parliament and to report to Parliament on those matters;

to monitor and review the performance of the duties and functions of the Victorian Inspectorate, other than those in respect of VAGO officers;

to report to both Houses of the Parliament on any matter connected with the performance of the duties and functions of the Victorian Inspectorate, other than those in respect of VAGO officers, that require the attention of the Parliament;

to examine any reports made by the Victorian Inspectorate to the Integrity and Oversight Committee or the Parliament other than reports in respect of VAGO officers;

to consider any proposed appointment of an Inspector under section 18 of the Victorian Inspectorate Act 2011 and to exercise a power of veto in accordance with that Act;

to monitor and review the performance of the duties and functions of the IBAC;

to report to both Houses of the Parliament on any matter connected with the performance of the duties and functions of the IBAC that require the attention of the Parliament;

to examine any reports made by the IBAC to the Integrity and Oversight Committee or the Parliament;

to consider any proposed appointment of a Commissioner under section 20 of the Independent Broad-based Anti-corruption Commission Act 2011

149

and to exercise a power of veto in accordance with that Act; and

to carry out any other function conferred on the Integrity and Oversight Committee by or under the Ombudsman Act 1973, the Independent Broad-based Anti-corruption Commission Act 2011 and the Victorian Inspectorate Act 2011.

Subsection (2) provides that despite anything contrary in section 7(1), the Integrity and Oversight Committee cannot—

reconsider a decision of the Information Commissioner or Public Access Deputy Commissioner in relation to a review of a particular matter;

reconsider any recommendations or decisions of the Information Commissioner or Public Access Deputy Commissioner in relation to a complaint under the Freedom of Information Act 1982;

reconsider any findings in relation to an investigation under the Freedom of Information Act 1982;

reconsider the making of a public interest determination under the Privacy and Data Protection Act 2014;

reconsider the approval of an information usage arrangement under the Privacy and Data Protection Act 2014;

reconsider a decision to serve a compliance notice under the Privacy and Data Protection Act 2014;

disclose any information relating to the performance of a duty or function or exercise of a power by the Ombudsman, the Victorian Inspectorate or the IBAC which may—

prejudice any criminal proceedings or criminal investigations; or

prejudice an investigation being conducted by the Ombudsman, the IBAC or the Victorian Inspectorate; or

150

contravene any secrecy or confidentiality provision in any relevant Act;

investigate a matter relating to the particular conduct the subject of—

a particular complaint or notification made to the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011; or

a particular disclosure determined by the IBAC under section 26 of the Protected Disclosure Act 2012 to be a protected disclosure complaint;

any report made by the Victorian Inspectorate;

review any decision by the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011 to investigate, not to investigate or to discontinue the investigation of a particular complaint or notification or a protected disclosure complaint within the meaning of that Act;

review any findings, recommendations, determinations or other decisions of the IBAC in relation to—

a particular complaint or notification made to the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011;

a particular disclosure determined by the IBAC under section 26 of the Protected Disclosure Act 2012, to be a protected disclosure complaint;

a particular investigation conducted by the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011;

review any determination by the IBAC under section 26 of the Protected Disclosure Act 2012;

disclose or share any information that is likely to lead to the identification of a person who has made an assessable disclosure and is not information to which

151

section 53(2)(a), (c) or (d) of the Protected Disclosure Disclosures Act 2012 applies;

review any decision to investigate, not to investigate, or to discontinue the investigation of a particular complaint made to the Victorian Inspectorate in accordance with the Victorian Inspectorate Act 2011;

review any findings, recommendations, determinations or other decisions of the Victorian Inspectorate in relation to a particular complaint made to, or investigation conducted by, the Victorian Inspectorate in accordance with the Victorian Inspectorate Act 2011.

Note: Clause 91 also amends section 7(2) in connection with the Committee’s role under the Public Interest Disclosures Act 2012, provided by Part 2 of the Bill.

Clause 191 repeals section 12A of the Parliamentary Committees Act 2003. The functions of the IBAC Committee will be subsumed by the new Integrity and Oversight Committee.

Clause 192 inserts Part 11 in the Parliamentary Committees Act 2003. Part 11 sets out transitional arrangements in relation to replacing the Accountability and Oversight Committee and the IBAC Committee with the Integrity and Oversight Committee.

New section 70 inserts new definitions for Amendment Act, commencement date, former committee and successor committee for the purpose of Part 11.

New section 71(1)(a) deems the Integrity and Oversight Committee to be the same body as either the Accountability and Oversight Committee or the IBAC Committee. Section 13 of the Interpretation of Legislation Act 1984 will allow for referrals to the Integrity and Oversight Committee before the commencement date.

New section 71(1)(b) provides for the continuation of all persons, things and circumstances that existed before the Bill commenced (except where expressly provided in the new section 71).

152

New section 71(2)(a) provides that a member of the Accountability and Oversight Committee or the IBAC Committee does not automatically become a member of the Integrity and Oversight Committee unless specifically appointed to be a member of the Integrity and Oversight Committee. Section 13 of the Interpretation of Legislation Act 1984 will allow the Houses of Parliament to appoint members to the Integrity and Oversight Committee before the commencement date.

New section 77(2)(b) provides that any sub-committee of the Accountability and Oversight Committee or the IBAC Committee ceases to exist.

New section 77(3) provides that the following will cease to have effect from the commencement date—

a resolution by the Accountability and Oversight Committee or the IBAC Committee under section 25(5) of the Parliamentary Committees Act 2003 to use an audio or audio visual link;

an invitation from the Accountability and Oversight Committee or the IBAC Committee under section 26(1) of the Parliamentary Committees Act 2003 to attend a meeting;

a requirement from the Accountability and Oversight Committee or the IBAC Committee under section 28(1) of the Parliamentary Committees Act 2003 to attend or produce a document or thing; and

the empowerment of a specified member or members of the Accountability and Oversight Committee or the IBAC Committee under section 28(5) of the Parliamentary Committees Act 2003.

Division 2—Consequential amendments of other Acts

Clause 193 amends the Table at the foot of section 6 of the Parliamentary Salaries and Superannuation Act 1968 to replace the references to Chairperson of the Accountability and Oversight Committee and the Chairperson of the IBAC Committee with the Chairperson of the Integrity and Oversight Committee and the references to Deputy chairperson of the Accountability and

153

Oversight Committee and the Deputy chairperson of the IBAC Committee with the Deputy chairperson of the Integrity and Oversight Committee.

Clause 194 amends section 2(1) of the Ombudsman Act 1973 to reflect that the Accountability and Oversight Committee will be replaced by the Integrity and Oversight Committee, established by section 5(a) of the Parliamentary Committees Act 2003.

Subclauses (2) to (5) make consequential amendments to the Ombudsman Act 1973 to replace references to the Accountability and Oversight Committee with the Integrity and Oversight Committee.

Clause 195 makes consequential amendments to the Freedom of Information Act 1982 to replace references to the Accountability and Oversight Committee with the Integrity and Oversight Committee.

Clause 196 amends section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011 to reflect that the IBAC Committee will be replaced by the Integrity and Oversight Committee, established by section 5(a) of the Parliamentary Committees Act 2003.

Subclause (2) makes consequential amendments to section 21 of the Independent Broad-based Anti-corruption Commission Act 2011 to replace references to the IBAC Committee with the Integrity and Oversight Committee.

Clause 197 amends section 3(1) of the Victorian Inspectorate Act 2011 to reflect that the IBAC Committee will be replaced by the Integrity and Oversight Committee, established by section 5(a) of the Parliamentary Committees Act 2003.

Subclause (2) makes consequential amendments to section 19 of the Victorian Inspectorate Act 2011 to replace references to the IBAC Committee with the Integrity and Oversight Committee.

Part 7—Statute law revision


154

Clause 198 amends section 49A(1)(a), 49A(4) and 49(5) of the Freedom of Information Act 1982 to remove a duplicative reference to "or Minister".

Clause 199 amends section 49D(1) of the Freedom of Information Act 1982 to remove a duplicative reference to "or Minister".

Subsection (2) amends section 49D(3) of the Freedom of Information Act 1982 to insert a missing reference to "or Minister" after "an agency".

Clause 200 corrects a typographical error by removing "64" where it secondly occurs in the heading to section 64 of the Freedom of Information Act 1982.

Clause 201 corrects a typographical error by removing "64A" where it secondly occurs in the heading to section 64A of the Freedom of Information Act 1982.


Clause 202 corrects a typographical error in the definition of coercive power in section 3(1) of the Victorian Inspectorate Act 2011 by replacing "(d)" (which appears twice) with "(da)".

Clause 203 corrects an incorrect reference in section 5 of the Victorian Inspectorate Act 2011 to "(g)" (which appears twice) with "(h)".

Clause 204 corrects an incorrect reference in section 11 of the Victorian Inspectorate Act 2011 to "(5)" (which appears twice) with "(6)".

Clause 205 corrects an incorrect reference in the heading to section 85A of the Victorian Inspectorate Act 2011, where second occurring, to replace the reference to "85A" with "85C".

Clause 206 amends section 86(1) of the Victorian Inspectorate Act 2011 to replace the incorrect cross-reference to "or 85A" with ", 85A, 85B(1) or 85C".

Clause 207 corrects typographical errors in section 89 of the Victorian Inspectorate Act 2011 to substitute "(5)" (which occurs twice) with "(6)" and corrects an incorrect cross-reference to section 85A with 85C in relation to making a recommendation to the Judicial Commission.

155

Clause 208 corrects an incorrect reference in the definition of relevant person or body in section 102(2) of the Victorian Inspectorate Act 2011 to replace the reference to "(n)" (which occurs twice) with "(o)".

Division 3—Amendment of Privacy and Data Protection Act 2014

Clause 209 amends section 121(1) of the Privacy and Data Protection Act 2014 to correct a spelling error by removing "an".

Part 8—Repeal

Clause 210 provides that this Act is repealed on 1 July 2021.

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).

Schedule 1—Further consequential amendments relating to public interest disclosures

Part A—Independent Broad-based Anti-corruption Commission Act 2011

Part A of the Schedule makes consequential amendments to the Independent Broad-based Anti-corruption Commission Act 2011 in relation to public interest disclosures.

Part B—Victorian Inspectorate Act 2011

Part B of the Schedule makes consequential amendments to the Victorian Inspectorate Act 2011 in relation to public interest disclosures.

Part C—Ombudsman Act 1973

Part C of the Schedule makes consequential amendments to the Ombudsman Act 1973 in relation to public interest disclosures.

Part D—Victoria Police Act 2013

Part D of the Schedule makes consequential amendments to the Victoria Police Act 2013 in relation to public interest disclosures.

156

integrity and accountability legislation amendment (public ...file/591007exi1.docx · web...

Documents