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