Version No. 005
Major Crime (Investigative Powers) Act 2004
Act No. 79/2004
Version incorporating amendments as at 30 November 2005
table of provisions
SectionPage
1
SectionPage
Part 1—Preliminary
1.Purposes
2.Commencement
3.Definitions
Part 2—Coercive Powers Orders and Witness Summonses
4.Authority given by coercive powers order
5.Application for order
6.Remote application
7.Offence to publish report of proceedings
8.Determination of application
9.Coercive powers order
10.Extension or variation of coercive powers order
11.Discontinuance of use of powers under coercive powers order
12.Revocation of coercive powers order
13.Chief Examiner must act on revocation
14.Supreme Court may issue witness summons
15.Chief Examiner may issue witness summons
16.Witness summons directed to person under 16
17.Service of witness summons
18.Witness already held in custody
19.Witness expenses
20.Confidentiality of witness summons and orders
Part 3—Chief Examiner and Examiners
21.Appointment of Chief Examiner and Examiners
22.Remuneration and allowances
23.Terms and conditions
24.Vacancy, resignation, removal
25.Validity of acts and decisions
26.Conflict of interest
27.Management of Examiners
28.Police assistance to Chief Examiner
Part 4—Examinations
29.When Chief Examiner may conduct examinations
30.Conduct of examination
31.Preliminary requirements
32.Witness under 16
33.Protection of legal practitioners and witnesses
34.Representation of witness
35.Examination to be held in private
36.Taking of evidence
37.Failure of witnesses to attend and answer questions
38.False or misleading evidence
39. Privilege against self-incrimination abrogated
40.Legal professional privilege
41.Procedure for determining claims of legal professional
privilege
42.Application to Magistrates' Court to determine legal professionalprivilege
43.Restriction on publication of evidence
44.Hindering or obstructing Chief Examiner or disrupting examination
45.Video-recording of examination
46.Warrant for arrest of witness
47.Documents or other things produced to Chief Examiner
48.Magistrates' Court proceedings
49.Contempt of Chief Examiner
50.No double jeopardy
Part 5—Oversight by Special Investigations Monitor
51.Role of Special Investigations Monitor
52.Chief Examiner must report witness summonses and orders to Special Investigations Monitor
53.Chief Examiner must report other matters to Special Investigations Monitor
54.Complaints to Special Investigations Monitor
55.Special Investigations Monitor may refuse to investigate complaint
56.Investigation of complaints
57.Recommendations by Special Investigations Monitor
58.Requirement to provide assistance
59.Powers of entry and access
60.Requirement to answer questions and produce documents
61.Annual and other reports by Special Investigations Monitor
62.Report on operation of this Part
63.Crown privilege or secrecy does not apply
64.Obstruction
Part 6—Miscellaneous
65.Delegation
66.Obligations of Chief Commissioner
67.Information sharing
68.Secrecy
69.Exemption from Freedom of Information Act 1982
70.Regulations
Part 7—Ombudsman Act 1973
71.Consequential amendments in relation to the Sex Offenders Registration Act 2004
72.Procedure on completion of investigation
73.New section 25 substituted and section 25AA inserted
25.Annual and other reports to Parliament
25AA.Transmission of reports to Parliament
Part 8—Police Regulation Act 1958
74.Definitions
75.Amendment of existing immunity provision
76.Protection of Director etc.
77.New section 86JA inserted
86JA.Protection of legal practitioners and witnesses
78.Offences
79.New sections 86KA to 86KD inserted
86KA.Confidentiality of summons
86KB.Contempt of Director
86KC.No double jeopardy
86KD.Sunset of contempt provisions
80.Complaints
81.Investigations
82.Evidence in Director investigations
83.New sections 86PB to 86PE inserted
86PB.Video-recording of examination
86PC.Underage and impaired witnesses
86PD.Arrest of recalcitrant witnesses
86PE.Witness already held in custody
84.Referrals to the DPP
85.New section 86S substituted
86S.Chief Commissioner to respond to Director
86.Advice to complainant
87.New sections 86VA to 86VH inserted
86VA.Definitions
86VB.Power to enter public authority premises
86VC.Power to seize documents or things at public authoritypremises
86VD.Copying of, access to or receipt for things seized
86VE.Procedure for documents that may be subject to legal professional privilege
86VF.Application to Magistrates' Court to decide on legal professional privilege
86VG.Application for return of things seized
86VH.Return of things seized
88.New section 86Z substituted
86Z.Return of documents and other things
89.New Division 4 inserted in Part IVA
Division 4—Oversight by Special Investigations Monitor
86ZA.Role of Special Investigations Monitor
86ZB.Director must report summonses to Special Investigations Monitor
86ZC.Director must report arrest warrants to Special Investigations Monitor
86ZD.Director must report other matters to Special Investigations Monitor
86ZE.Complaints to Special Investigations Monitor
86ZF.Special Investigations Monitor may refuse to investigatecomplaint
86ZG.Investigation of complaints
86ZH.Recommendations by Special Investigations Monitor
86ZI.Requirement to provide assistance
86ZJ.Powers of entry and access
86ZK.Requirement to answer questions and produce documents
86ZL.Annual and other reports by Special Investigations Monitor
86ZM.Report on operation of this Part
86ZN.Delegation
90.New section 102BA inserted
102BA.Objects of Director
91.Oath or affirmation
92.Staffing
93.New sections 102EA and 102EB inserted
102EA.Secondment of members of the force
102EB.Effect of secondment
94.Delegation
95.New sections 102J and 102K inserted
102J.Annual and other reports to Parliament
102K.Transmission of reports to Parliament
96.New section 126 inserted
126.Deliberations of Ministers and Parliamentary committeesnot to be disclosed
97.Supreme Court—limitation of jurisdiction
98.Supreme Court—further limitation of jurisdiction
99.Transitional provision
Part 9—Sex Offenders Registration Act 2004
100.Director, Police Integrity to replace Police Ombudsman
101.New sections 66A to 66D inserted
66A.Director to monitor compliance
66B.Director to be given reasonable assistance
66C.Powers in relation to monitoring
66D.Reports on monitoring compliance
102.Further amendment
103.Supreme Court—limitation of jurisdiction
Part 10—Whistleblowers Protection Act 2001
104.Definitions
105.Chief Examiner and Examiners are not public officers
106.Dis-application of certain provisions to investigations by
Director
107.Notice of investigation of police matters
108.New section 50A inserted
50A.Notice of the investigation—police matters
109.Obstruction
110.Opportunity to be heard
111.New section 61AA inserted
61AA.Definitions
112.Evidence in Director investigations
113.New sections 61BA to 61BH inserted
61BA.Video-recording of examination
61BAB.Underage and impaired witnesses
61BB.Power to enter public authority premises
61BC.Power to seize documents or things at public authoritypremises
61BD.Copying of, access to or receipt for things seized
61BE.Procedure for documents that may be subject to legal professional privilege
61BF.Application to Magistrates' Court to decide on legal professional privilege
61BG.Application for return of things seized
61BH.Return of things seized
114.New section 61F substituted
61F.Return of documents and other things
115.New sections 61G to 61N inserted
61G.Confidentiality of summons
61H.Contempt of Director
61I.No double jeopardy
61J.Sunset of contempt provisions
61K.Arrest of recalcitrant witnesses
61L.Witness already held in custody
61M.Consultation and comment
61N.Simultaneous investigation and proceedings
116.New section 62 substituted
62.Director may report to Ombudsman
117.Reports on investigations
118.New section 63A inserted
63A.Report on investigation—police matters
119.Further amendment about reports
120.New section 65 substituted and section 65A inserted
65.Chief Commissioner of Police to respond to Ombudsman
65A.Referral of matters to DPP
121.Informing person who made disclosure
122.Referral of Part 7 matters to Director
123.New section 94 substituted and section 94A inserted
94.Disagreement between Ombudsman and Chief Commissioner on implementation of
recommendations
94A.Referral of matters to DPP
124.Report to person making disclosure
125.New section 103A inserted
103A.Transmission of certain reports to Parliament
126.New Part 9A inserted
Part 9A—Oversight by Special Investigations Monitor
105A.Role of Special Investigations Monitor
105B.Director must report summonses to Special Investigations Monitor
105C.Director must report arrest warrants to Special Investigations Monitor
105D.Director must report other matters to Special Investigations Monitor
105E.Complaints to Special Investigations Monitor
105F.Special Investigations Monitor may refuse to investigatecomplaint
105G.Investigation of complaints
105H.Recommendations by Special Investigations Monitor
105I.Requirement to provide assistance
105J.Powers of entry and access
105K.Requirement to answer questions and produce documents
105L.Annual and other reports by Special Investigations Monitor
105M.Report on operation of this Part
105N.Delegation
127.New section 107A inserted
107A.Protection of legal practitioners and witnesses
128.Evidence not admissible
129.Supreme Court—limitation of jurisdiction
Part 11—Other Amendments
130.Major Crime Legislation (Office of Police Integrity)
Act 2004
131.Information Privacy Act 2000
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 005
Major Crime (Investigative Powers) Act 2004
Act No. 79/2004
Version incorporating amendments as at 30 November 2005
1
Major Crime (Investigative Powers) Act 2004
Act No. 79/2004
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1.Purposes
The purposes of this Act are—
(a)to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences; and
(b)to amend the Ombudsman Act 1973, the Police Regulation Act 1958, the Sex Offenders Registration Act 2004, the Whistleblowers Protection Act 2001 and other Acts to make further provision for the Director, Police Integrity.
2.Commencement
(1)Subject to this section, this Act (except sections 75, 97 and 130) comes into operation on a day or days to be proclaimed.
(2)Sections 75 and 97 come into operation on the day on which this Act receives the Royal Assent.
(3)Section 130 is deemed to have come into operation on the day on which the Major Crime Legislation (Office of Police Integrity) Act 2004 received the Royal Assent.
(4)If a provision of this Act, other than section 75, 97 or 130, does not come into operation before 1 July 2005, it comes into operation on that day.
3.Definitions
In this Act—
"Chief Commissioner" means the Chief Commissioner of Police for Victoria;
"Chief Examiner" means the Chief Examiner appointed under Part 3;
"coercive powers order" means an order made under section 8 approving the use of coercive powers to investigate an organised crime offence;
"mental impairment" includes impairment because of mental illness, intellectual disability, dementia or brain injury;
"organised crime offence" means an indictable offence against the law of Victoria, irrespective of when the offence is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more and that—
(a)involves 2 or more offenders; and
(b)involves substantial planning and organisation; and
(c)forms part of systemic and continuing criminal activity; and
(d)has a purpose of obtaining profit, gain, power or influence;
s. 3
"police gaol" has the same meaning as in the Corrections Act 1986;
"prison" has the same meaning as in the Corrections Act 1986 but includes a youth training centre established under section 249 of the Children and Young Persons Act 1989;
"Special Investigations Monitor" means the Special Investigations Monitor appointed under Part 2 of the Major Crime (Special Investigations Monitor) Act 2004;
s. 3
"witness summons" means a summons issued under section 14 or 15.
______
Part 2—Coercive Powers Orders and Witness Summonses
4.Authority given by coercive powers order
s. 4
A coercive powers order authorises the use in accordance with this Act of powers provided by this Act for the purpose of investigating the organised crime offence in respect of which the order is made.
5.Application for order
(1)Subject to sub-section (2), a member of the police force may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, is being or is likely to be committed.
(2)An application under sub-section (1) may only be made with the approval of the Chief Commissioner or a delegate of the Chief Commissioner.
(3)An application under sub-section (1) must be in writing and must specify—
(a)the name and rank of the applicant; and
(b)the name and rank of the person who approved the application; and
(c)particulars of the organised crime offence in respect of which the coercive powers order is sought; and
(d)the name of each alleged offender or, if the name is unknown, state that the offender is unknown; and
(e)the period, not exceeding 12 months, that is sought for the duration of the coercive powers order.
(4)An application under sub-section (1) must be supported by an affidavit of the applicant—
(a)stating that he or she suspects that an organised crime offence has been, is being, or is likely to be committed, as the case requires; and
(b)setting out the grounds on which the applicant holds that suspicion; and
(c)setting out the reason why the use of coercive powers is sought.
(5)The Supreme Court may require the applicant to provide any additional information that the Court requires in relation to the application.
(6)If the applicant believes that—
s. 5
(a)the delay caused in complying with sub-section (4) may prejudice the success of the investigation into the relevant organised crime offence; and
(b)it is impracticable for an affidavit to be prepared or sworn before the application is made—
the application for a coercive powers order may be made before an affidavit is prepared or sworn.
(7)If sub-section (6) applies, the applicant must—
(a)provide as much information as the Supreme Court considers is reasonably practicable in the circumstances; and
(b)if an affidavit has been prepared but not sworn, provide a copy of the unsworn affidavit to the Supreme Court; and
(c)not later than the day following the making of the application, send the duly sworn affidavit to the Supreme Court, whether or not a coercive powers order has been made.
(8)An application under sub-section (1) must be heard in closed court.
6.Remote application
s. 6
(1)If a member of the police force believes that it is impracticable for an application for a coercive powers order to be made in person, the application may be made under section 5 by telephone, fax, email or any other means of communication.
(2)If transmission by fax is available and an affidavit has been prepared, the applicant must transmit a copy of the affidavit, whether sworn or unsworn, to the judge of the Supreme Court who is to determine the application.
7.Offence to publish report of proceedings
(1)Unless the Supreme Court orders otherwise, a person who publishes a report of a proceeding in respect of an application for a coercive powers order or any information derived from such a proceeding is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
(2)The Supreme Court may make an order under sub-section (1) if it considers it appropriate to do so.
8.Determination of application
The Supreme Court may make a coercive powers order if satisfied—
(a)that there are reasonable grounds for the suspicion founding the application for the order; and
(b)that it is in the public interest to make the order, having regard to—
(i)the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and
(ii)the impact of the use of coercive powers on the rights of members of the community.
9.Coercive powers order
s. 9
(1)A coercive powers order must state that the Supreme Court is satisfied of the matters referred to in section 8(a) and (b) having regard to the matters referred to in section 8(b)(i) and (ii).
(2)A coercive powers order must also specify—
(a)the organised crime offence in respect of which the order is made; and
(b)the name of each alleged offender or, if the name is unknown, state that the offender is unknown; and
(c)the name and rank of the applicant; and
(d)the name and rank of the person who approved the application; and
(e)the date on which the order is made; and
(f)the period for which the order remains in force, being a period not exceeding 12months; and
(g)any conditions on the use of coercive powers under the order.
(3)A coercive powers order must be signed by the judge of the Supreme Court who makes it and include his or her name.
(4)If the Supreme Court makes a coercive powers order, the applicant must cause a copy of the order to be given to the Chief Examiner as soon as practicable after the making of the order.
10.Extension or variation of coercive powers order
s. 10
(1)Subject to sub-section (2), a member of the police force on whose application a coercive powers order has been made, or another person on his or her behalf, may apply to the Supreme Court for—
(a)an extension of the order for a period not exceeding 12 months from the day on which it would otherwise expire; or
(b)a variation of any of the other terms of the order.
(2)An application under sub-section (1) may only be made with the approval of the Chief Commissioner or a delegate of the Chief Commissioner.
(3)Section 5 applies to an application for extension or variation of a coercive powers order as if it were an application for an order.
(4)On an application under this section, the Supreme Court may, at any time before the expiry of a coercive powers order, make a new order providing for—
(a)the extension of the original order for a period not exceeding 12 months from the day on which it would otherwise expire; or
(b)variation of the other terms of the original order.
(5)A coercive powers order may be extended or varied more than once.
(6)If the Supreme Court makes an order under this section, the applicant must cause a copy of the order to be given to the Chief Examiner as soon as practicable after the making of the order.
11.Discontinuance of use of powers under coercive powers order
s. 11
(1)If the Chief Commissioner or the delegate of the Chief Commissioner who approved an application for a coercive powers order, or an application for extension or variation of a coercive powers order,is satisfied that the powers under the order are no longer required for the purpose for which the order was made, the Chief Commissioner or delegate must immediately give notice in writing to the Supreme Court that the person giving notice has formed the view that the coercive powers order is no longer required.
(2)A notice under sub-section (1) must be filed with the Supreme Court.
(3)On the filing of a notice under sub-section (1), the coercive powers order is revoked.
12.Revocation of coercive powers order
(1)The Supreme Court may revoke a coercive powers order at any time before the expiry of the order.
(2)If the Supreme Court revokes a coercive powers order or a notice under section 11(1) is filed, the Court must—
(a)cause notice of the revocation to be given to the Chief Examiner and the Chief Commissioner immediately; and
(b)revoke any witness summons issued under section 14 in reliance on the coercive powers order if the witness summons has not been served or the date for attendance has not passed; and
(c)give notice in writing of the revocation of each witness summons to the person to whom the summons was directed.
13.Chief Examiner must act on revocation
s. 13
If the Chief Examiner is given notice under section 12(2) that a coercive powers order has been revoked, the Chief Examiner must—
(a)revoke any witness summons issued under section 15 in reliance on the coercive powers order if the witness summons has not been served or the date for attendance has not passed; and