Independent Broad-based Anti-corruption Commission Regulations 2013
S.R. No. 5/2013
table of provisions
RegulationPage
RegulationPage
Part 1—Preliminary
1Objectives
2Authorising provisions
3Commencement
4Definitions
Part 2—Prescribed Bodies and Persons
5Prescribed bodies and persons
Part 3—Defensive Equipment and Firearms
6Courses of training in the use of defensive equipment
7Courses of training in the use of firearms
Part 4—Assistance for Witnesses
Division 1—Reimbursement of expenses
8Reimbursement of expenses
9Attendance allowance for expert witnesses
10Attendance and general allowances for other witnesses
11Meals and accommodation
12Travelling expenses
13Evidence of expenses
Division 2—Provision of legal assistance
14Provision of legal assistance to witnesses
Part 5—Testing for Alcohol or Drugs of Dependence
Division 1—General
15Direction to provide a sample of breath or urine or allow a sample of blood to be taken
16Blood and urine samples—general
Division 2—Breath analysis
17Prescribed breath analysing devices
18Procedure for breath analysis
19Certificate of breath analysis
Division 3—Taking of blood samples
20Direction to take blood sample
21Procedure for taking blood sample
22Procedure after blood sample taken
23Certificate of taking blood sample
Division 4—Collection of urine samples
24Prescribed persons to collect urine samples
25Procedure for collecting urine sample
26Procedure after person collects urine sample
27Certificate of collecting of urine sample
Division 5—Analysis of blood sample or urine sample
28Analysis of blood samples or urine samples
29Certificate of analysis of sample of urine or blood
30IBAC Officer may request independent analysis of a blood sample or urine sample
Division 6—Handling of information and confidentiality
31Confidentiality of test results
Part 6—Prescribed Forms
32Confidentiality notice
33Authorisation to apply for a search warrant
34Search warrant
35Receipt for documents or things seized
36Witness summons
37Direction about a witness already held in custody
38Notice of application to determine privilege
39Arrest warrant
40Statement about right to apply for discharge from custody
Part 7—Other Matters
41Proof of age
42Additional actions before the questioning of a witness or requiring the production of documents
43Prescribed persons for referral of complaints or notifications
for investigation
Part 8—Transitional Matters and Renumbering
44Courses of training in the use of defensive equipment
45Courses of training in the use of firearms
46Renumbering
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SCHEDULE—Forms
Form 1—Confidentiality Notice
Form 2—Authorisation of Authorised Officer to Apply for a
Search Warrant
Form 3—Search Warrant
Form 4—Receipt for Seized Documents and Things
Form 5—Witness Summons
Form 6—Direction About a Witness Already Held in Custody
Form 7—Notice of Application to Determine Claim of Privilege
or the Application of a Secrecy Requirement
Form 8—Arrest Warrant
Form 9—Statement of Your Right to Apply for Discharge From Custody
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ENDNOTES
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Independent Broad-based Anti-corruption Commission Regulations 2013
S.R. No. 5/2013
statutory rules 2013
S.R. No. 5/2013
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Independent Broad-based Anti-corruption Commission Regulations 2013
S.R. No. 5/2013
Independent Broad-based Anti-corruption Commission Act 2011
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Independent Broad-based Anti-corruption Commission Regulations 2013
S.R. No. 5/2013
Independent Broad-based Anti-corruption Commission Regulations 2013
1
Independent Broad-based Anti-corruption Commission Regulations 2013
S.R. No. 5/2013
The Lieutenant-Governor as the Governor's deputy with the advice of the Executive Council makes the following Regulations:
Dated: 5 February 2013
Responsible Minister:
ANDREW McINTOSH
Minister responsible for the
establishment of an
anti-corruption commission
Matthew mcbeath
Clerk of the Executive Council
Part 1—Preliminary
1Objectives
The objectives of these Regulations are to prescribe—
(a)training courses for the use of defensive equipment and firearms;
(b)the manner of calculating the amount of assistance provided by the persons prescribed to witnesses summoned to attend an examination before the IBAC;
(c)matters necessary for the testing of IBAC Officers for alcohol or drugs of dependence under Division 1 of Part 7 of the Independent Broad-based Anti-corruption Commission Act 2011;
(d)other matters necessary to be prescribed under the Independent Broad-based Anti-corruption Commission Act 2011.
2Authorising provisions
r. 2
These Regulations are made under sections 110, 111 and 112 of the Independent Broad-based Anti-corruption Commission Act 2011 and all other enabling powers.
3Commencement
(1)These Regulations (except regulation 46) come into operation on 10 February 2013.
(2)Regulation 46 comes into operation on the day on which Part 8 of the Integrity and Accountability Legislation Amendment Act 2012 comes into operation.
4Definitions
In these Regulations—
sample direction means a direction given under section 91 of the Act to an IBAC Officer to provide a sample of breath or urine or allow a registered medical practitioner or approved health professional to take from the officer a sample of the officer's blood for the purposes of Division 1 of Part 7 of the Act;
the Act means theIndependent Broad-based Anti-corruption Commission Act 2011.
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Part 2—Prescribed Bodies and Persons
5Prescribed bodies and persons
r. 5
(1)For the purposes of paragraph (f) of the definition of law enforcement agency, the following persons and bodies are prescribed—
(a)the Australian Customs Service;
(b)the Australian Securities and Investments Commission;
(c)the Australian Taxation Office;
(d)the Australian Transaction Reports and Analysis Centre;
(e)CrimTrac;
(f)inspectors of municipal administration appointed under section223A of the Local Government Act 1989.
(2)For the purposes of the definition of senior IBAC Officer, the following positions and classes of position are prescribed—
(a)the position of Commissioner;
(b)the position of Deputy Commissioner;
(c)the position of Chief Executive Officer;
(d)IBAC Officers classified as Executive Officers;
(e)IBAC Officers classified as non-executive employees Grade 4, 5 or 6 or as Senior Technical Specialists.
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Part 3—Defensive Equipment and Firearms
6Courses of training in the use of defensive equipment
r. 6
(1)For the purposes of Part 5 of the Act, the prescribed course of training in the use of defensive equipment is a course of training approved by the IBAC that is conducted by—
(a)the Australian Federal Police; or
(b)a police force or police service (however described) of a State or Territory other than Victoria.
(2)The IBAC must not approve a course under subregulation (1) unless it is satisfied that the course is sufficient to enable a senior IBAC Officer to effectively and safely use defensive equipment when performing the functions and exercising the powers of the IBAC or an authorised officer in relation to investigations.
7Courses of training in the use of firearms
(1)For the purposes of Part 5 of the Act, the prescribed course of training in the use of firearms is a course of training approved by the IBAC that is conducted by—
(a)the Australian Federal Police; or
(b)a police force or police service (however described) of a State or Territory other than Victoria.
(2)The IBAC must not approve a course under subregulation (1) unless it is satisfied that the course is sufficient to enable a senior IBAC Officer to effectively and safely use firearms when performing the functions and exercising the powers of the IBAC or an authorised officer in relation to investigations.
r. 7
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Part 4—Assistance for Witnesses
Division 1—Reimbursement of expenses
8Reimbursement of expenses
r. 8
(1)For the purposes of section 82ZH of the Act, the prescribed scale is the scale set out in this Division.
(2)An amount under this scale must not be paid to—
(a)a personwhose conduct is being investigated by theIBAC or, in the case of a body corporate, its representative; or
(b)a prisoner of the Crown.
9Attendance allowance for expert witnesses
A witness who is called to appear in an examination in a professional or expert capacityis entitled to reimbursement of the amount of income actually lost in attending the examination up to $300 per hour, but not exceeding $1500 per day.
10Attendance and general allowances for other witnesses
(1)This regulation applies to a witness who is called to appear in an examination other than in a professional or expert capacity.
(2)A witness who is engaged in an income-producing occupation and loses income because of his or her attendance at anexaminationis entitled to reimbursement of the amount of income actually lost up to $100 per hour, but not exceeding $600per day.
(3)A witness who is not engaged in an income-producing occupation but who necessarily incurs expenditure (other than childcare expenses)because of his or her attendance at the examination that is not provided for in regulation11 is entitled to reimbursement of the amount of the actual expenditure incurred, up to a maximum of $50 for each day.
(4) If a witness incurs childcare expenses because of his or her attendance at an examination, the witness is entitled to reimbursement of those reasonable childcare expenses.
11Meals and accommodation
r. 11
(1)A witness who is called to appear in an examination and who is necessarily absent from his or her home by reason of the attendance at the examination is entitled to be paid the following allowances for meals during his or her absence—
(a)if the witness is absent from his or her home overnight—
CapitalCity / Any other locationBreakfast / $17.70 / $15.75
Lunch / $19.75 / $18.05
Dinner / $34.05 / $31.15
Total / $71.50 / $64.95 / ;
(b)if the witness is absent for a part of a day only, departing and returning the same day—
Breakfast / $12.40Lunch / $12.40
Dinner / $16.50
Total / $41.30 / .
(2)Despite subregulation (1), a witness is only entitled to be paid an allowance—
(a)for breakfast, if he or she is absent from his or her home by reason of attendance at the examination between 7.00 a.m. and9.30a.m.;
(b)for lunch, if he or she is absent from his or her home by reason of attendance at the examination between 12.00 p.m. and 3.00p.m.;
(c)for dinner, if he or she is absent from his or her home by reason of attendance at the examination between 6.00 p.m. and 8.00p.m.
(3)A witness who is called to appearin an examination and who is necessarily absent from his or her home overnight because of his or her attendance at the examination is entitled to a reimbursement of the cost incurred by him or her of alternative accommodation, up to a maximum of $150 for each night of his or her absence.
12Travelling expenses
r. 12
(1)Subject to subregulation (2), a witness who is called to appearin an examination is entitled to be paid an allowance in respect of the expense of travelling to and from the examination equal to the cost of the most economical form of transport having regard to—
(a)the distance required to be travelled;
(b)the time spent travelling;
(c)whether any income was lost when travelling;
(d)any other matter the IBACconsiders relevant.
(2)If the witness uses his or her own vehicle, he or she is entitled to an allowance of 18 cents for each kilometre travelled to or from the examination.
13Evidence of expenses
The IBAC must not approve the payment of an amount to a witness under this Division unless the witness produces to the satisfaction of the IBAC evidence—
(a)in the case of regulations 9 or10(2), that as a result of attending the examination the witness has sustained, or will sustain, a loss of income, or of time that the witness would otherwise have devoted to an income-producing occupation;
(b)in the case of regulations 10(3)or(4)or11(3), of the expenditure or cost incurred by the witness;
(c)in the case of regulation 11(1), that the witness was absent from his or her home by reason of attendance at an examination at the relevant times;
(d)in the case of regulation 12, of the cost of the most economical form of transport.
Division 2—Provision of legal assistance
14Provision of legal assistance to witnesses
r. 13
For the purposes of section 82ZI of the Act, the prescribed person is the Secretary to the Department of Justice.
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Part 5—Testing for Alcohol or Drugs of Dependence
Division 1—General
15Direction to provide a sample of breath or urine or allow a sample of blood to be taken
r. 15
(1)Subject to subregulation (2), a sample direction must state—
(a)the reason why the IBAC gives the sample direction, specifying whether the IBAC believes that the IBAC Officer—
(i) has consumed alcohol or a drug of dependence and as a result is incapable of, or inefficient in, performing his or her duties; or
(ii)has been involved in a critical incident; or
(iii)should be tested for alcohol or a drug of dependence in order for the IBAC to manage the IBAC Officer's performance of his or her duties or exercise of his or her powers; or
(iv) should be tested for alcohol or a drug of dependence in order for the IBAC to conduct a disciplinary process against the IBAC Officer; and
(b)the type of sample (being breath, urine or blood) that the IBAC Officer is required to provide; and
(c)that, if a sample is not provided because the IBAC Officer is unconscious or otherwise unable to comply with the sample direction and the IBAC reasonably believes the IBAC Officer was involved in a critical incident, a registered medical practitioner may be directed to take a sample of the IBAC Officer's blood; and
(d)that the IBAC Officer is required to remain at or attend specified premises for the sample to be taken; and
(e)that the IBAC Officermust not consume alcohol or drugs before the sample is taken; and
(f)that the sample of breath, urine or blood may be affected by prescription medication taken by the IBAC Officer and that the IBAC Officer should notify the person taking the sample of any prescription medication the IBAC Officer takes; and
r. 15
(g)that failure by the IBAC Officer to comply with the sample direction may constitute grounds for disciplinary action against the IBAC Officer; and
(h)that the test results are to be given to the IBAC and will otherwise remain confidential,other than any disclosures authorised by the Act.
(2)If the IBAC is of the opinion that a delay would be necessary in order to comply with subregulation (1) and that the delay may materially affect the accuracy of the test, the IBAC may give the IBAC Officer a sample direction that specifies—
(a)the name of the IBAC Officer to whom the sample direction is given; and
(b)the name of the IBAC Officer giving the sample direction; and
(c)the type of sample (being breath, urine or blood)that the IBAC Officer to whom the sample direction is given is required to provide.
(3)If a sample direction is given to an IBAC Officer under subregulation (2), the IBAC must give thatIBAC Officer a notice in writing containing the information prescribed in subregulation (1) as soon as practicable after giving the sample direction.
16Blood and urine samples—general
r. 16
(1)The taking of a blood sample or the collection of a urine sample from an IBAC Officer must be conducted—
(a)in a respectful manner; and
(b)in circumstances affording reasonable privacy to the IBAC Officer.
(2)The taking of a blood sample or the collection of a urine sample from an IBAC Officermust not—
(a)occur in the presence or view of a person whose presence is not necessary for the purposes of obtaining that sample; and
(b)require—
(i) the removal of more clothing than is necessary for the sample to be taken; and
(ii)more visual inspection of the IBAC Officer than is necessary for the sample to be taken.
(3)A blood sample must not be taken from an IBAC Officer who has been involved in a critical incident if either of the following registered medical practitioners is of the opinion that the taking of the sample would be prejudicial to the IBAC Officer's care and treatment—
(a)the registered medical practitioner directed to take the sample; or
(b)the registered medical practitioner primarily responsible for the examination and treatment of the IBAC Officer.
Division 2—Breath analysis
17Prescribed breath analysing devices
r. 17
The following breath analysing devices may be used to carry out a breath test or breath analysis of a sample of breath provided under Division 1—
(a)Alcotest 80/A;
(b)Lion Alcolmeter SD-400PA;
(c)Lion AlcolmeterSD 400;
(d)Lion Alcolmeter 500;
(e)Lion Alcolmeter S-D2;
(f)Drager Alcotest 80A;
(g)Drager Alcotest 6510;
(h)Drager Alcotest 6810;
(i) Alcolizer LE;
(j)AlcolizerHH1;
(k)AlcolizerHH2;
(l)Breathalyser Type II;
(m)Intoxilyzer;
(n)Intoximeter;
(o)AlcoScan;
(p)AlcoScan AL-2500;
(q)AlcoScan AL-3500;
(r)Alco-Sensor;
(s)Datamaster, AlcoMatePrestige;
(t)AlcoHawk Precision;
(u)AlcoHawkABI;
(v)Breathalyser L-6000;
(w)LifelocFC10;
(x)LifelocFC10 Plus;
(y)LifelocFC20;
(z)Guth LaboratoriesAlcoTector.
18Procedure for breath analysis
r. 18
(1)A person operating a breath analysing device—
(a)must not require an IBAC Officer to provide a breath sample for analysis until the person is satisfied that the officer has not consumed any alcohol for a period of at least 15minutes before the analysis; and
(b)must provide a fresh mouthpiece for use by the officer that, until required for taking the breath sample, has been kept in a sealed container.
(2)An IBAC Officer who is directed to provide a sample of his or her breath must do so by exhaling continuously into the breath analysing device to the satisfaction of the person operating that device.
19Certificate of breath analysis
After taking a sample of an IBAC Officer's breath, the person operating a breath analysing device must complete and give to the IBAC a certificate that includes the following particulars—
(a)the concentration of alcohol indicated by the breath analysing device to be present in the IBAC Officer's breath;
(b)the serial number of the breath analysing device;
(c)the sample number;
(d)the location of the test;
(e)the name of the IBAC Officer whose breath was tested;
(f)the name of the person operating the breath analysing device;
(g)the results of the self test conducted by the breath analysing device before and after the IBAC Officer's breath was analysed;
(h)the results of zero tests conducted by the breath analysing device before and after the IBAC Officer's breath was analysed;
(i) the date and time that the IBAC Officer's breath was analysed.
Division 3—Taking of blood samples
20Direction to take blood sample
r. 20
A direction under section 93 of the Act from the IBAC to a registered medical practitioner to take a sample of blood from an IBAC Officer must include—
(a)the name of the IBAC Officer from whom the sample of blood is to be taken; and
(b)the name and signature of the IBAC Officer giving the direction; and
(c)the date and time the direction was given.
21Procedure for taking blood sample
If a blood sample is taken by a registered medical practitioner for the purposes of this Part, the site of the puncture must be cleansed with a swab taken from a container which—
(a)appears to be sealed against contamination; and
(b)bears a label stating that the container holds an aqueous solution of chlorhexidine and cetrimide and no methylated spirits, alcohol, tincture of iodine or other substance containing alcohol.
22Procedure after blood sample taken
r. 21
A registered medical practitioner who takes a blood sample must ensure that—
(a)the sample of blood is placed into 2 dry containers, each containing approximately the same amount of blood; and
(b)each container is vacuum sealed or sealed with a septum seal; and
(c)each container in which the sample is placed bears a label stating—
(i) that the container holds a specific anticoagulant and preservative such as potassium oxalate and sodium fluoride; and
(ii)the name of the chemist, laboratory or pharmaceutical organisation that prepared the container; and
(d)each container has attached to it a label bearing—
(i) the signature of the registered medical practitioner; and
(ii)the date and the time the blood sample was taken; and
(iii)the name of the person from whom the sample was taken or, if the name of the person is not known, sufficient information to enable the sample to be identified with the person from whom it was taken; and