Ombudsman Legislation (Police Ombudsman) Act 2004
Act No. 32/2004
table of provisions
SectionPage
SectionPage
Part 1—Preliminary
1.Purposes
2.Commencement
Part 2—Ombudsman Act 1973
3.Definitions
4.New sections 6A and 6B substituted
6A.Police Ombudsman
6B.Acting Police Ombudsman
5.Consequential repeals and amendments
6.New section 10 substituted
10.Oath or affirmation
7.Delegation and outside employment
8.Removal of reference to Deputy Ombudsman
Part 3—Police Regulation Act 1958
9.Definitions
10.References to Deputy Ombudsman
11.Conciliation of complaints
12.New section 86NA inserted
86NA.Investigations initiated by Police Ombudsman
13.Investigations by Chief Commissioner
14.New section 86P substituted and 86PA inserted
86P.Investigations by the Police Ombudsman
86PA.Evidence in Police Ombudsman investigations
15.Power to require answers of members of the force
16.New section 86QA inserted
86QA.Referral of matters to DPP
17.Further amendments regarding investigations
18.New Division 3 inserted in Part IVA
Division 3—Powers of Entry, Search and Seizure
86W.Powers with search warrant
86X.Procedure for executing warrant
86Y.Copies or receipts to be given
86Z.Retention and return of documents and other things
19.Supreme Court—limitation of jurisdiction
20.New section 132 inserted
132.Transitional provision on creation of office of Police Ombudsman
Part 4—Whistleblowers Protection Act 2001
21.Definitions and application of Act
22.References to Deputy Ombudsman
23.Investigations by Police Ombudsman
24.New Division 3A inserted in Part 5
Division 3A—Further Provisions for Investigations by
Police Ombudsman
61A.Application of Division
61B.Evidence in Police Ombudsman investigations
61C.Powers with search warrant
61D.Procedure for executing warrant
61E.Copies or receipts to be given
61F.Retention and return of documents and other things
25.Further references to Deputy Ombudsman
26.Supreme Court—limitation of jurisdiction
27.New section 111A inserted
111A.Transitional provision on creation of office of Police Ombudsman
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Endnotes
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Victoria
No. 32 of 2004
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SectionPage
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Ombudsman Legislation (Police Ombudsman) Act 2004[†]
[Assented to 1 June 2004]
1
Act No. 32/2004
Ombudsman Legislation (Police Ombudsman) Act 2004
1
Act No. 32/2004
Ombudsman Legislation (Police Ombudsman) Act 2004
The Parliament of Victoriaenacts as follows:
1
Part 4—Whistleblowers Protection Act 2001
Ombudsman Legislation (Police Ombudsman) Act 2004
Act No. 32/2004
Part 1—Preliminary
1.Purposes
The purposes of this Act are—
(a)to amend the Ombudsman Act 1973 to create the office of Police Ombudsman and abolish the office of Deputy Ombudsman (Police Complaints);
(b)to amend the Police Regulation Act 1958 and the Whistleblowers Protection Act 2001 to broaden the powers of investigation into police matters and conduct.
2.Commencement
s. 2
This Act comes into operation on the day after the day on which it receives the Royal Assent.
______
See:
Act No.
8414.
Reprint No. 6
as at
1 January 2002 and amending
Act Nos
2/2001, 23/2002 and 103/2003.
LawToday:
dpc.vic.
gov.au
Part 2—Ombudsman Act 1973
3.Definitions
s. 3
In section 2 of the Ombudsman Act 1973—
(a)the definition of "Deputy Ombudsman" is repealed;
(b)after the definition of "Government Department" insert—
' "Police Ombudsman" means the person holding the office of Police Ombudsman established by section6A;'.
4.New sections 6A and 6B substituted
For sections 6A and 6B of the Ombudsman Act 1973 substitute—
"6A.Police Ombudsman
(1)The office of Police Ombudsman is established.
(2)The office of Police Ombudsman is to be held by the person who holds office as Ombudsman.
(3)The Police Ombudsman has the functions conferred on the office by this Act, the Police Regulation Act 1958 or any other Act.
(4)If the person holding office as Police Ombudsman ceases to hold office as Ombudsman under section 3, he or she also ceases to hold office as Police Ombudsman.
(5)If the person holding office as Police Ombudsman is suspended from office as Ombudsman under section 4, he or she is also suspended from office as Police Ombudsman.
6B.Acting Police Ombudsman
(1)If, for any reason, the person holding the office of Ombudsman is unable to perform the duties of the Police Ombudsman, or if the office of Ombudsman is vacant, the person appointed as Acting Ombudsman under section 6 (if any) is to act as the Police Ombudsman.
(2)While acting as Police Ombudsman, the Acting Ombudsman has all the powers and must perform all the duties of the Police Ombudsman.".
5.Consequential repeals and amendments
s. 5
(1)In the Ombudsman Act 1973—
(a)sections 6C, 6D, 6E and 6F are repealed;
(b)in section 7, for "Deputy Ombudsman" substitute "Police Ombudsman".
(2)For section 8(1) of the Ombudsman Act 1973 substitute—
"(1)A person who is the Ombudsman, the Acting Ombudsman or the Police Ombudsman is not, in respect of the office of Ombudsman, Acting Ombudsman or Police Ombudsman, subject to the Public Sector Management and Employment Act 1998.".
(3)In the Ombudsman Act 1973—
(a)in section 8(2), for "Ombudsman, the Acting Ombudsman or the Acting Deputy Ombudsman" (wherever occurring) substitute "Ombudsman or Acting Ombudsman";
(b)in section 9(1)—
(i)for "Ombudsman, the Deputy Ombudsman, the Acting Ombudsman or the Acting Deputy Ombudsman" (where twice occurring) substitute "Ombudsman or Acting Ombudsman";
(ii)after "his" (where twice occurring) insert "or her".
6.New section 10 substituted
s. 6
For section 10 of the Ombudsman Act 1973 substitute—
"10.Oath or affirmation
(1)Before the Ombudsman or Acting Ombudsman performs any of the duties of office of Ombudsman or Police Ombudsman, he or she must take an oath or make an affirmation that he or she—
(a)will faithfully and impartially perform the duties of office of Ombudsman and Police Ombudsman; and
(b)will not divulge, except according to law, any information received in the performance of those duties.
(2)Before an officer of the Ombudsman performs any of the duties of office, he or she must take an oath or make an affirmation that he or she—
(a)will faithfully and impartially perform his or her duties of office; and
(b)will not divulge, except according to law, any information received in the performance of those duties.
(3)The oath or affirmation is to be administered by—
(a)the Speaker of the Legislative Assembly, in the case of the Ombudsman or Acting Ombudsman;
(b)the Ombudsman or Acting Ombudsman, in the case of an officer of the Ombudsman.".
7.Delegation and outside employment
s. 7
(1)In section 11(4) of the Ombudsman Act 1973, for "Deputy Ombudsman" (where twice occurring) substitute "Police Ombudsman".
(2)At the end of section 12 of the Ombudsman Act 1973insert—
"(2)Nothing in sub-section (1) prevents the Ombudsman or Acting Ombudsman from holding the office, or performing the duties of office, of Police Ombudsman.".
8.Removal of reference to Deputy Ombudsman
In section 29A(1) of the Ombudsman Act 1973, omit ", the Deputy Ombudsman".
______
See:
Act No.
6338.
Reprint No. 9
as at
1 January 2003
and amending
Act No.
52/2003.
LawToday:
dpc.vic.
gov.au
Part 3—Police Regulation Act 1958
9.Definitions
s. 9
(1)Insert the following definitions in section 3(1) of the Police Regulation Act 1958—
' "Ombudsman" means the Ombudsman appointed under section 3 of the Ombudsman Act 1973;
"Police Ombudsman" means the Police Ombudsman under section6A of the Ombudsman Act 1973;'.
(2)In section 86A of the Police Regulation Act 1958, the definitions of "Deputy Ombudsman" and "Ombudsman" are repealed.
10.References to Deputy Ombudsman
(1)For the heading to Part IVA of the Police Regulation Act 1958 substitute—
"Part IVA—Complaints and Investigations".
(2)In the Police Regulation Act 1958—
(a)in sections 86I, 86J, 86K, 86L, 86LA and 86M, for "Deputy Ombudsman" (wherever occurring) substitute "Police Ombudsman";
(b)in section 86N—
(i)for "Deputy Ombudsman" (wherever occurring) substitute "Police Ombudsman";
(ii)in sub-section (1)(a), for "Deputy Ombudsman's" substitute "Police Ombudsman's".
11.Conciliation of complaints
s. 11
After section 86N(5) of the Police Regulation Act 1958 insert—
"(6)The Police Ombudsman may attempt to resolve a complaint by conciliation and must—
(a)before commencing to conciliate, notify the Chief Commissioner of the proposed attempt; and
(b)notify the Chief Commissioner of the results of the attempt.".
12.New section 86NA inserted
After section 86N of the Police Regulation Act 1958 insert—
"86NA.Investigations initiated by Police Ombudsman
(1)The Police Ombudsman may conduct an investigation under this Part on his or her own motion, being—
(a)an investigation into the conduct of a member of the force; or
(b)an investigation into any of the policies, practices or procedures of the force.
(2)Before conducting an investigation on his or her own motion, the Police Ombudsman must inform the Minister and the Chief Commissioner in writing of his or her intention to conduct the investigation.
(3)After completing an investigation on his or her own motion, the Police Ombudsman must give the Minister a copy of the report given to the Chief Commissioner under section 86P(5).".
13.Investigations by Chief Commissioner
s. 13
In section 86O of the Police Regulation Act 1958, for "Deputy Ombudsman" (wherever occurring) substitute "Police Ombudsman".
14.New section 86P substituted and 86PA inserted
For section 86P of the Police Regulation Act 1958 substitute—
"86P.Investigations by the Police Ombudsman
(1)For the purposes of an investigation under this Part, the Police Ombudsman—
(a)may, but is not required to, hold any hearing; and
(b)may obtain information from any persons and in any manner he or she considers appropriate; and
(c)may determine whether a person may have legal or other representation.
(2)If, at any time during the course of an investigation, it appears to the Police Ombudsman that there may be grounds for making a report adverse to the force, the Police Ombudsman must, before making the report, give the Chief Commissioner the opportunity to comment on the subject-matter of the investigation.
(3)At the request of the Police Ombudsman, the Chief Commissioner must make available to the Police Ombudsman any members of the force that the Chief Commissioner thinks necessary to assist the Police Ombudsman in the conduct of the investigation.
(4)A member of the force made available under sub-section (3)—
(a)remains under the direction and control of the Chief Commissioner; but
(b)in assisting the Police Ombudsman, must have regard to the wishes of the Police Ombudsman concerning the conduct of the investigation.
(5)After completing an investigation, the Police Ombudsman—
(a)must make a report in writing to the Chief Commissioner on the results of the investigation; and
(b)in the report, may request the taking of any action that the Police Ombudsman considers should be taken.
86PA.Evidence in Police Ombudsman investigations
s. 14
(1)Sections 17, 18, 19, 19A, 19B, 20 and 20A of the Evidence Act 1958 apply to and in relation to an investigation conducted by the Police Ombudsman as if he or she were the sole commissioner issued with a commission by the Governor in Council.
(2)For the purposes of an investigation, the Police Ombudsman may take a statutory declaration from any witness or other person.
(3)Subject to this section and section 86Q, a person cannot be compelled, for the purposes of an investigation, to produce any document or give any evidence that he or she could not be compelled to produce or give in proceedings before a court.
(4)It is not a reasonable excuse for a person to fail to provide information, produce a document or thing or give evidence for the purposes of an investigation, on the ground that the information, document, thing or evidence may tend to incriminate the person, if the Police Ombudsman certifies in writing that, in his or her opinion, the provision of the information, production of the document or thing or giving of the evidence is necessary in the public interest.
(5)In determining whether or not to certify under sub-section (4), the Police Ombudsman may take into account, amongst other things, whether—
(a)the investigation involves the review of established policies, practices or procedures of the force; and
s. 14
(b)it is unlikely that the information, document, thing or evidence could be obtained by other means.
(6)Sub-section (4) applies despite anything to the contrary in this Act or Division 5 of PartI of the Evidence Act 1958.
(7)If the Police Ombudsman certifies under sub-section (4), he or she must give a copy of the certificate to the person before requiring the person to provide information, produce a document or thing or give evidence.
(8)Any information provided, or document or thing produced, or evidence given to the Police Ombudsman by a person in circumstances where the Police Ombudsman has certified under sub-section (4) is not admissible in evidence against that person before any court or person acting judicially, except in proceedings for—
(a)perjury or giving false information; or
(b)a breach of discipline under section 69; or
(c)failure to comply with a direction under section 86Q; or
(d)an offence against section 19 of the Evidence Act 1958.".
15.Power to require answers of members of the force
s. 15
In section 86Q(1) of the Police Regulation Act 1958, for "Deputy Ombudsman" substitute "Police Ombudsman".
16.New section 86QA inserted
After section 86Q of the Police Regulation Act 1958insert—
"86QA.Referral of matters to DPP
(1)At any time during or after completing an investigation under this Part, the Police Ombudsman may refer to the Director of Public Prosecutions the question of whether or not criminal proceedings should be taken against a member of the force.
(2)If the Police Ombudsman refers a question to the Director of Public Prosecutions under sub-section (1), the Police Ombudsman must include that fact, and any details of the referral that he or she considers appropriate, in the report on the investigation under section 86P(5).".
17.Further amendments regarding investigations
s. 17
In the Police Regulation Act 1958—
(a)in section 86R—
(i)for "Deputy Ombudsman" (wherever occurring) substitute "Police Ombudsman";
(ii)in sub-section (1)(b), for "in accordance with section 86P" substitute "under this Part";
(iii)in sub-section (4)(b), for "Deputy Ombudsman's" substitute "Police Ombudsman's";
(b)in sections 86S, 86T and 86TA, for "Deputy Ombudsman" (wherever occurring) substitute "Police Ombudsman";
(c)for section 86TA(1)(b) substitute—
"(b)an investigation under this Part (whether in relation to a complaint or otherwise); or";
(d)in section 86U(1), for "Deputy Ombudsman" (where twice occurring) substitute "Police Ombudsman";
(e)for section 86V(1)(b) substitute—
"(b)because the member has given information or evidence to the Chief Commissioner or Police Ombudsman in the course of an investigation or further investigation under this Part; or".
18.New Division 3 inserted in Part IVA
s. 18
After Division 2 of Part IVA of the Police Regulation Act 1958 insert—
"Division 3—Powers of Entry, Search and Seizure
86W.Powers with search warrant
(1)The Police Ombudsman may apply to a magistrate for the issue of a search warrant in relation to particular premises if the Police Ombudsman believes, on reasonable grounds that entry to the premises is necessary for the purpose of an investigation under this Part.
(2)If a magistrate is satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for the belief under sub-section (1), the magistrate may issue a search warrant authorising any person named in the warrant—
(a)to enter and search the premises named or described in the warrant and inspect any document or thing at those premises; and
(b)to make a copy of any document relevant, or that the person reasonably considers may be relevant, to the investigation; and
(c)to take possession of any document or thing that the person considers relevant to the investigation.
(3)A search warrant issued under this section must state—
(a)the purpose for which the search is required; and
(b)any conditions to which the warrant is subject; and
(c)whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and
(d)a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.
(4)Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 (other than section 78 of that Act) extend and apply to warrants under this section.
86X.Procedure for executing warrant
s. 18
(1)On executing a search warrant, the person executing the warrant—
(a)must announce that he or she is authorised by the warrant to enter the premises; and
(b)if the person has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.
(2)A person executing a warrant need not comply with sub-section (1) if he or she believes, on reasonable grounds that immediate entry to the premises is required to ensure—
(a)the safety of any person; or
(b)that the effective execution of the search warrant is not frustrated.
(3)If the occupier is present at premises where a search warrant is being executed, the person executing the warrant must—
(a)identify himself or herself to the occupier; and
(b)give the occupier a copy of the warrant.
(4)If the occupier is not present at premises where a search warrant is being executed, the person executing the warrant must—
(a)identify himself or herself to a person at the premises; and
(b)give that person a copy of the warrant.
86Y.Copies or receipts to be given
s. 18
(1)If a person takes possession of—
(a)a document, disk or tape or other thing that can be readily copied; or
(b)a storage device the information in which can be readily copied—
under a warrant the person, on request by the occupier, must give a copy of the thing or information to the occupier as soon as practicable after taking possession of it.
(2)If a person takes possession of a thing under a warrant and has not provided a copy of the thing or information under sub-section (1) the person must provide a receipt for that thing as soon as practicable after taking possession of it.
86Z.Retention and return of documents and other things
(1)If a person takes possession of a document or other thing under a warrant, the Police Ombudsman may keep it until the investigation in relation to which the warrant was issued has been completed and the report of that investigation has been made under section 86P(5).
(2)When the report has been made, the Police Ombudsman must take all reasonable steps to return the document or other thing to the person from whom it was taken.".
19.Supreme Court—limitation of jurisdiction
s. 19
At the end of section 129A of the Police Regulation Act 1958 insert—
"(2)It is the intention of section 86J, as that section applies on and after the commencement of the Ombudsman Legislation (Police Ombudsman) Act 2004, to alter or vary section 85 of the Constitution Act 1975.".
20.New section 132 inserted
After section 131 of the Police Regulation Act 1958 insert—
'132.Transitional provision on creation of office of Police Ombudsman
(1)A complaint about the conduct of a member of the force that was made under PartIVA before the commencement day must, if the investigation of the complaint was not finalised before that day, be dealt with in accordance with Part IVA as amended by the amending Act, whether or not any investigation into that complaint had begun before the commencement day.
(2)In this section—
"amending Act" means the Ombudsman Legislation (Police Ombudsman) Act 2004;