Police and Justice Legislation Amendment (Miscellaneous) Act 2016

Police and Justice Legislation Amendment (Miscellaneous) Act2016

No. 54 of 2016

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of the Crown Proceedings Act1958

3Liability of the Crown in contract

Part 3—Amendment of the Victoria PoliceAct2013

4Appointment of Acting Assistant Commissioner

5Appointment of officers from other jurisdictions

6Appointment of former police officers

7Transfer on application or request

8Liability of the State for police torts

9Qualifications for registration

10Service of notices under Part 6

11Forfeiture of salary

12Promotion and transfer appeals—police officers

13Procedure on appeal

14Special procedure for review of directed transfers

15Obligation to publish statements of reasons for decisions on review

16New section 156A inserted

17Hearings to be public unless otherwise ordered

18New section 158A inserted

19Witness summons

20Contempt of PRS Board

21Membership of Registration Division

22Membership of Professional Standards Division

23New section 219A inserted

24Investigations and further information

25Service of notices and summonses under Division4 of Part12

26New section 288 inserted

Part 4—References to CrimTrac

Division 1—Amendment of the Crimes Act1958

27Definitions—offences

28Definitions—custody and investigation

29Arrangements for transmission of information on DNA database

30New section 630 inserted

Division 2—Amendment of the Estate AgentsAct1980

31Eligibility for employment as an agent's representative

32New Division 1 heading inserted in Part IX

33New Division 2 inserted in Part IX

Division 3—Amendment of the Sentencing Act 1991

34Definitions in Part 8

35Obligations in relation to official records

36New section 160 inserted

Division 4—Amendment of the Serious Sex Offenders (Detentionand Supervision) Act 2009

37Offence to publish certain information

Division 5—Amendment of the Sex Offenders Registration Act2004

38Person with access to Register not to disclose personal information from it

39New section 73G inserted

Part 5—Repeal of amending Act

40Repeal of amending Act

═══════════════

Endnotes

1General information

SectionPage

Victoria

SectionPage

Police and Justice Legislation Amendment (Miscellaneous) Act2016[†]

No. 54 of 2016

[Assented to 18 October 2016]

Police and Justice Legislation Amendment (Miscellaneous) Act2016
No. 54 of 2016

The Parliament of Victoriaenacts:

Part 5—Repeal of amending Act

Police and Justice Legislation Amendment (Miscellaneous) Act2016
No. 54 of 2016

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a) to amend the Crown Proceedings Act1958to insert a note in relation to liability for tortious conduct by police officers and protective services officers; and

(b) to amend the Victoria Police Act 2013—

(i)in relation to the Police Registration and Services Board; and

(ii)to provide for the reappointment of a person acting as an Assistant Commissioner; and

(iii)in relation to the forfeiture of salary by police officers and protective services officers who have been suspended; and

(iv)in relation to the transfer of certain police officers; and

(c)to amend the Crimes Act 1958, the EstateAgents Act 1980, the Sentencing Act 1991, the Serious Sex Offenders (Detention and Supervision) Act 2009 andthe Sex Offenders Registration Act2004 to update references to CrimTrac to the Australian Crime Commission.

2Commencement

(1)This Act, except Parts 2 and 3, comes into operation onthe day after the day on which this Act receives the Royal Assent.

(2) Section 23comes into operation on 1July2017.

(3) Subject to subsection (4), the remaining provisions of this Act come into operation onaday or days to be proclaimed.

(4) If a provision referred to in subsection (3) does not come into operation before 1August2017, itcomes into operation on that day.

Part 2—Amendment of the Crown Proceedings Act1958

3Liability of the Crown in contract

At the foot of section 23(1) of the Crown Proceedings Act1958 insert—

"Note

Police officers and protective services officers are not servants or agents of the Crown or independent contractors employed by the Crown. See Division8 of Part4 of the Victoria Police Act2013for the liability of the State for a tort committed by a police officer or a protective services officer in the performance or purported performance of the officer's duties.".

Part 3—Amendment of the Victoria PoliceAct2013

4Appointment of Acting Assistant Commissioner

After section 26(3) of the Victoria Police Act2013 insert—

"(3A)A person appointed to act as an Assistant Commissioner is eligible to be reappointed.

(3B) A person must not be appointed to act as anAssistant Commissioner for more than 2consecutive terms.".

5Appointment of officers from other jurisdictions

In section 29(2)(b) of the Victoria Police Act2013, for "aptitude and efficiency" substitute"capabilities".

6Appointment of former police officers

In section 30(3)(b) of the Victoria Police Act2013, for "aptitude and efficiency" substitute"capabilities".

7Transfer on application or request

For section34(3) of the Victoria Police Act2013 substitute—

"(3)The Chief Commissioner must have regard to the relative seniority of candidates for transfer to a position in the following ranks ifthe Chief Commissioner considers that the candidates are equally efficient—

(a)senior sergeant;

(b)sergeant;

(c)senior constable;

(d)constable, if the position is the position of constable (general duties).".

8Liability of the State for police torts

At the foot of section 74 of the Victoria Police Act2013 insert—

"Note

See PartII of the Crown Proceedings Act1958for the liability of the State for torts committed by servants of the Crown. The public service of Victoria consists of persons employed under Part3 of the Public Administration Act2004—see section 9 of that Act. Victoria Police employees (including police custody officers) are employed under Part3 of the Public Administration Act2004.".

9Qualifications for registration

In section 103(c) of the Victoria Police Act2013, for "aptitude and efficiency" substitute "capabilities".

10Service of notices under Part 6

At the foot of section 124 of the Victoria Police Act2013 insert—

"Note

The Electronic Transactions (Victoria) Act2000 provides that a document may be served electronically, including by fax and email, in accordance with that Act.".

11Forfeiture of salary

In section 139(1)(a) and (c) of the Victoria PoliceAct2013, for "Division2" substitute "Division1".

12Promotion and transfer appeals—police officers

After section 141(4)(a) of the Victoria Police Act2013 insert—

"(ab)in relation to the rank of constable, if theposition is the position of constable (general duties)—

(i)superior efficiency; or

(ii)equal efficiency and greater seniority;".

13Procedure on appeal

In section 145(4) of the Victoria Police Act2013, for "be present" substitute "appear".

14Special procedure for review of directed transfers

In section 149(4) of the Victoria Police Act2013, for "be present" substitute "appear".

15Obligation to publish statements of reasons for decisions on review

After section 154A(2) of the Victoria Police Act2013 insert—

"(3)The PRS Board must exclude from a statement of reasons published under subsection(1) information likely to lead tothe identification of any of the following persons, unless the PRS Board considers theinclusion of the information to be in the public interest—

(a)a person who,during an investigation or inquiry under Part7 or during the review, has made a complaint or raised a concern about theconduct of the applicant;

(b) a person who, during an investigation or inquiry under Part7 or during the review, has given information about theconduct of the applicant;

(c)a person who has been adversely affected by the conduct of the applicant.".

16New section 156A inserted

After section 156 of the Victoria Police Act2013 insert—

"156A Practice notes

(1)The President of the PRS Board may fromtime to time issuepractice directions, statements, notes or forms for the PRS Boardin relation to appeals and reviews ofthe PRS Board.

(2)Practice directions, statements, notes or forms issued under subsection(1) must not be inconsistent with any provision made by or under this Act.".

17Hearings to be public unless otherwise ordered

(1)After section 157(3) of the Victoria Police Act2013 insert—

"(3A) The PRS Board mustmake an order prohibitingthe reporting or other publication or disclosure of any hearing or part of a hearing or of any information derived from the hearing or part,if—

(a)the PRS Board considers the reporting or other publication or disclosure would contain information likely to lead to the identification of a person specified in subsection(3B); and

(b)the PRS Board does not consider thereporting or other publication or disclosure of the informationreferred toin paragraph(a) to be in the public interest.

(3B)For the purposes of subsection (3A), the specified persons are—

(a)a person who, during an investigation or inquiry under Part7 or during an appeal or review, has made a complaint or raised a concern about the conduct of the appellant or applicant for review; or

(b) a person who, during an investigation or inquiry under Part7 or during an appeal or review, has given information about the conduct of the appellant or applicant for review; or

(c)a person who has been adversely affected by the conduct of the appellantor applicant for review.".

(2)In section 157(4) of the Victoria Police Act2013, after "subsection (3)" insert "or (3A)".

18New section 158A inserted

After section 158 of the Victoria Police Act2013 insert—

"158A Appearance by audio link or audio visual link

(1) The following persons may appear by audiolink or audio visual link before the PRS Board on an appeal if the PRS Board considers it appropriate—

(a)the Chief Commissioner;

(b)an appellant;

(c)a person selected for promotion or transfer;

(d)a representative of the Chief Commissioner;

(e)a person summoned under section160to attend the PRS Board.

(2)The following persons may appear by audiolink or audio visual link before the PRS Board on a review if the PRS Board considers it appropriate—

(a)theChief Commissioner;

(b)an applicant;

(c)a representative of the Chief Commissioner or an applicant;

(d)a person summoned under section160 to attend the PRS Board.

(3) In this section—

audio link has the same meaning as insection 42C of the Evidence (Miscellaneous Provisions)
Act1958;

audio visual link has the same meaning asinsection 42C of the Evidence (Miscellaneous Provisions) Act1958.".

19Witness summons

(1) Section 160(3)(b) of the Victoria Police Act2013 is repealed.

(2) At the foot of section 160of the Victoria Police Act2013 insert—

"Note

The Electronic Transactions (Victoria) Act2000providesthat a document may be served electronically, including by fax and email, in accordance with that Act.".

20Contempt of PRS Board

In section 162(d) of the Victoria Police Act2013, after "section 157(3)" insert "or (3A)".

21Membership of Registration Division

In section 206(e) of the Victoria Police Act2013,for"is a member of the academic"substitute"has experience as a member of the professional or academic".

22Membership of Professional Standards Division

In section 207(c)(i) of the Victoria Police Act2013, for "member of the academic" substitute"person who has experience as a member of the professional or academic".

23New section 219A inserted

After section 219 of the Victoria Police Act2013 insert—

"219A Annual report of the PRS Board

(1)The PRS Board must prepare a report in respect of each financial year on its work andactivities for that year.

(2)The PRS Board must give the report to the Minister within 3 months after the end of the financial year.

(3)Subject to subsection(4), the Minister must cause a copy of the report submitted to the Minister under this section to be laid before each House of the Parliament on or before 31October each year or, if a House is not then sitting, on the first sitting day of that House after 31October.

(4)If the Minister has not received the annual report in time for the Minister to comply with subsection(3), the Minister—

(a)must cause that fact and the reasons forit to be reported to each House of the Parliament; and

(b) must cause the report to be laid before each House of the Parliament as soon as practicable after it is received by the Minister.".

24Investigations and further information

(1)In section 222(2) of the Victoria Police Act2013, for "video" substitute "audio link or audio visual".

(2)After section 222(3) of the Victoria Police Act2013 insert—

"(4) In this section—

audio link has the same meaning as insection 42C of the Evidence (Miscellaneous Provisions)
Act1958;

audio visual link has the same meaning asinsection 42C of the Evidence (Miscellaneous Provisions) Act1958.".

25Service of notices and summonses under Division4 of Part12

(1)Section 224(2)(b) of the Victoria Police Act2013 is repealed.

(2)At the foot of section 224 of the Victoria Police Act2013 insert—

"Note

The Electronic Transactions (Victoria) Act2000 providesthat a document may be served electronically, including by fax and email, in accordance with that Act.".

26New section 288 inserted

After section 287 of the Victoria Police Act 2013insert—

"288 Transitional provision—Police and Justice Legislation Amendment (Miscellaneous) Act 2016

(1)The PRS Board must advise the Chief Commissioner in accordance with section 29 as in force immediately before the commencement of section 5 of the Police and Justice Legislation Amendment (Miscellaneous) Act 2016 if the Chief Commissioner requestsadvice from the PRSBoard under section29(2) before that commencement andthe PRS Board has not complied with the request before that commencement.

(2)The PRS Board must advise the Chief Commissioner in accordance with section 30 as in force immediately before the commencement of section 6 of the Police and Justice Legislation Amendment (Miscellaneous) Act 2016 if the Chief Commissioner requestsadvice from the PRSBoard under section30(3) before that commencement andthe PRS Board has not complied with the request before that commencement.

(3)The PRS Board must assess whether an applicant is qualified for registration under Part 6 in accordance with section 103 as in force immediately before the commencement of section 9 of the Police and Justice Legislation Amendment (Miscellaneous) Act 2016 if a person made an application forregistration under Part 6 before that
commencement and the PRS Board has not made a decision in respect of the application before that commencement.".

Part 4—References to CrimTrac

Division 1—Amendment of the Crimes Act1958

27Definitions—offences

In section 67A of the Crimes Act 1958, in thedefinition of law enforcement agency, in paragraph (c), after "Commission" (where first occurring) insert "(by whatever name described)".

28Definitions—custody and investigation

In section 464(2) of the Crimes Act 1958—

(a)insert the following definition—

"Australian Crime Commission means theAustralian Crime Commission (bywhatever name described) established by the Australian CrimeCommission Act 2002 of theCommonwealth;";

(b)the definition of CrimTrac is repealed.

29Arrangements for transmission of information on DNA database

(1)In section 464ZGN(2) of the Crimes Act1958—

(a)for "CrimTrac" (where first occurring) substitute "the Australian Crime Commission";

(b) in paragraph (a), for "CrimTrac" substitute "the Australian Crime Commission for comparison with information on the NCIDD";

(c) in paragraph (b), for "CrimTrac" substitute "the Australian Crime Commissionobtained as a result of a comparison with the NCIDD".

(2)In section 46ZGN(3) of the Crimes Act1958, for"CrimTrac" substitute "the Australian Crime Commission".

30New section 630 inserted

At the end of Part7 of the Crimes Act 1958 insert—

"630 Transitional provision—Police and Justice Legislation Amendment (Miscellaneous) Act 2016

(1) An arrangement entered into by the Ministerunder section 464ZGN(2) with CrimTrac before 1July2016 that is in effectimmediately before 1July2016 is taken, on and from 1July2016, to be an arrangement entered into by the Minister under that section with the Australian CrimeCommission.

(2) On and from 1July2016, information transmitted from the Victorian DNA database to the Australian Crime Commission is taken tohave been lawfullytransmitted in accordance with anarrangement entered intounder section464ZGN(2).

(3) On and from 1 July 2016, information transmitted from the Australian Crime Commission tothe Chief Commissioner ofPolice is takentohave been lawfully transmitted in accordance with an arrangement entered intounder section464ZGN(2).

(4)In this section—

CrimTrac means the CrimTrac Agency established as an Executive Agency bythe Governor-General by order under section 65 of the Public Service Act1999 of the Commonwealth.".

Division 2—Amendment of the Estate AgentsAct1980

31Eligibility for employment as an agent's representative

(1)In section 16(4)(a)(i) and (8)(b) of the Estate Agents Act 1980, for "CrimTrac" substitute "theAustralian Crime Commission".

(2)For section 16(9) of the Estate Agents Act 1980 substitute—

"(9)In this section, Australian Crime Commission means the Australian CrimeCommission (by whatever name described) established by the Australian Crime Commission Act 2002 of the Commonwealth.".

32New Division 1 heading inserted in Part IX

Before section 101 of the Estate Agents Act 1980 insert—

"Division 1—Consumer Affairs Legislation Amendment Act 2010".

33New Division 2 inserted in Part IX

After section 102 of the Estate Agents Act1980 insert—

"Division 2—Police and Justice Legislation Amendment (Miscellaneous) Act 2016

103Certificates given under section 16

On and from 1 July 2016, a certificate or copy of acertificate from the Australian Crime Commission that is given to an estate agent, or in the case of a corporation, to an officer in effective control of the estate agency business of the corporation, for the purposes of section 16(4) or (8) is taken to bea valid certificate or copy of a valid certificate for the purposes of that section.".

Division 3—Amendment of the Sentencing Act 1991

34Definitions in Part 8

In section 105(1) of the Sentencing Act 1991—

(a)insertthe following definition—

"Australian Crime Commission means theAustralian Crime Commission (bywhatever name described) established by the Australian CrimeCommission Act 2002 of theCommonwealth;";

(b)the definition of Crim Trac is repealed.

35Obligations in relation to official records

In section 105K(8) of the Sentencing Act 1991, for "Crim Trac" substitute "the Australian Crime Commission".

36New section 160 inserted

At the end of Part 12 of the Sentencing Act 1991 insert—

"160 Transitional provision—Police and Justice Legislation Amendment (Miscellaneous) Act 2016

On and from 1 July 2016, a disclosure of a kind specified in section 105K(8) by the Chief Commissioner of Police to the Australian Crime Commission for the purposes of incorporation into the police information sharing system known as the National Police Reference System is taken tobe a lawful disclosure.".

Division 4—Amendment of the Serious Sex Offenders (Detentionand Supervision) Act 2009

37Offence to publish certain information

(1)For section 182(2)(a) of the Serious Sex Offenders (Detention and Supervision) Act2009 substitute—

"(a)to the Australian Crime Commission (bywhatever name described) established bythe Australian Crime Commission Act2002 of the Commonwealth, for entry onthe Australian National Child Offender Register; and".

(2)After section 182(3) of the Serious Sex Offenders (Detention and Supervision) Act2009 insert—

"(3A)On and from 1 July 2016, the publication of an identity and location ofanoffender by a police officer to the Australian Crime Commission for entry onthe Australian National Child Offender Register is taken to be a lawful publication.".

Division 5—Amendment of the Sex Offenders Registration Act2004

38Person with access to Register not to disclose personal information from it

(1)In section 64(3) of the Sex Offenders Registration Act 2004, for "CrimTrac Agency" substitute "Australian Crime Commission".

(2)For section 64(4) of the Sex Offenders Registration Act 2004 substitute—

"(4)In this section—

Australian Crime Commission means theAustralian Crime Commission (bywhatever name described) established by the Australian CrimeCommission Act 2002 of theCommonwealth.".

39New section 73G inserted

Before section 74 of the Sex Offenders Registration Act 2004 insert—

"73G Transitional provision—Police and Justice Legislation Amendment (Miscellaneous) Act 2016

On and from 1 July 2016, a disclosure of personal information in the Register by the Chief Commissioner of Police or a person authorised to have access to the Register or any part of the Register to the Australian Crime Commission for entry on the Australian National Child Offender Register is taken to be a lawful disclosure.".

Part 5—Repeal of amending Act

40Repeal of amending Act

This Act is repealed on 1August2018.

Note

The repeal of this Act does not affect the continuing operation ofthe amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).