Victorian Inspectorate Bill 2011

Victorian Inspectorate Bill 2011

Introduction Print

EXPLANATORY MEMORANDUM

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BILL LA INTRODUCTION 25/10/2011

General

The main purpose of this Bill is to establish the Victorian Inspectorate to oversee the Independent Broad-based Anti-corruption Commission (IBAC).

Clause Notes

PART 1—Preliminary

Clause 1 sets out the purpose of the Bill, which is to establish the Victorian Inspectorate.

Clause 2 provides for the Bill to come into operation on a day or days to be proclaimed, or if not proclaimed sooner, on 1 July 2012.

Clause 3 sets out the definitions of key words or terms used in the Bill.

Australian legal practitioner has the same meaning as it has in the Legal Profession Act 2004;

Commissioner has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;

Deputy Commissioner has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;

IBAC has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;

IBAC Committee means the Joint House Committee established under section 5(fa) of the Parliamentary Committees Act 2003;

IBAC Officer has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;

IBAC personnel means—

·  an IBAC Officer;

·  a person engaged by the IBAC under section 29(2) or 30 under the Independent Broad-based Anti-corruption Commission Act 2011;

·  a person who is formerly an IBAC Officer or a personengaged under the Independent Broad-based Anti-corruption Commission Act 2011.

Inspector means the person appointed under clause 14;

Victorian Inspectorate means the Victorian Inspectorate established under the clause 6;

Victorian Inspectorate Officer means—

·  the Inspector;

·  a member of staff of the Victorian Inspectorate;

·  a person engaged by the Victorian Inspectorate to provide services, information or advice.

Clause 4 sets out the objects of the Act, which are to—

·  enhance the compliance of IBAC and IBAC personnel with the Independent Broad-based Anti-corruption Commission Act 2011 and other laws; and

·  assist in improving the capacity of IBAC and IBAC personnel in the performance of their duties and function and in the exercise of their powers.

Clause 5 provides that the Bill when passed will bind the Crown in all its capacities.

PART 2—The Victorian Inspectorate

Clause 6 provides that the Victorian Inspectorate is established and that it does not represent the Crown.

Clause 7 provides that the Victorian Inspectorate is a body corporate that has perpetual succession and an official seal and may do and suffer all things a body corporate may do and suffer.

Clause 8 establishes that the Victorian Inspectorate consists of one Inspector appointed by the Governor in Council in accordance with clause 14. The effect of this is that the Victorian Inspectorate is a legal entity which is constituted by the Inspector, and the Victorian Inspectorate acts through the Inspector.

Clause 9 Subclause (1) establishes that the Victorian Inspectorate has the functions conferred on it by the Bill or any other Act.

Subclause (2) does not limit the generality of subclause (1), but rather establishes the following functions through which the Victorian Inspectorate may meet the objects of the Act—

·  monitor the compliance of IBAC and IBAC personnel with the Independent Broad-based Anti-corruption Commission Act 2011 and other laws;

·  assess the effectiveness and appropriateness of the policies and procedures of IBAC;

·  receive complaints;

·  investigate and assess the conduct of IBAC and IBAC personnel;

·  report on and make recommendations as a result of the performance of the Victorian Inspectorate's functions.

Clause 10 establishes that the Victorian Inspectorate has the power to do all things that are necessary or convenient to be done in order to achieve the objects of the Bill and the performance of its duties and functions.

Clause 11 Subclause (1) provides that the Victorian Inspectorate may by instrument delegate to the Inspector any duty, function or power, other than the power of delegation.

Subclause (2) protects the pension or other rights and privileges of a former judge or Chief Magistrate to whom a duty, function or power has been delegated.

Clause 12 establishes that the Victorian Inspectorate is not subject to the direction or control of the Minister in respect of the performance of its duties and functions and the exercise of its powers. Thisclause confirms the independence of the Victorian Inspectorate from the Executive Government.

Clause 13 establishes that the Inspector is an independent officer of the Parliament. Subclause (6) establishes that the Inspector has complete discretion in the performance or exercise of his or her functions or powers. Subclause (7) clarifies that the Inspector is not subject to the direction or control of the Minister. This clause is modelled on the independent officer of Parliament provisions of the Constitution Act 1975, and confirms the Inspector's independence from the Executive Government.

Clause 14 establishes the process for the Governor in Council to appoint an Inspector.

Subclause (1) establishes that the Governor in Council, on the recommendation of the Minister, may by instrument appoint an eligible person to be the Inspector. This subclause is subject to clause 15.

Subclause (2) provides that an eligible person for appointment is one who has been, is or is qualified for appointment as, a judge of the High Court, Federal Court, or the Supreme Court of Victoria or another State or Territory; and is not a member of the Parliament of Victoria, the Commonwealth or another State or Territory; and is not and has not been the IBAC Commissioner, Acting Commissioner, Deputy Commissioner or Acting Deputy Commissioner.

Subclause (3) provides that a person holding a judicial office immediately before being appointed to be the Inspector must cease to hold that judicial office upon being appointed to be the Inspector. This subclause is intended to ensure that the Inspector does not hold a judicial position which would create an actual or perceived conflict of interest with his or her role as the Inspector.

Clause 15 establishes a process whereby the IBAC Joint House Committee may veto the proposed appointment of an Inspector.

Subclause (1) requires the Minister to submit details of a proposed recommendation as to the appointment of an Inspector under clause 14 to the IBAC Committee, and allow it the opportunity to veto the recommendation within the timeframe set out in subclause (2), which is 30 days.

Subclause (3) holds that the IBAC Committee must notify the Minister in writing of its decision within the period specified in subclause (2).

Subclause (4) provides for a special process for the making of a recommendation as to the first appointment of the Inspector under clause 14, whereby the Premier is first required to consult with the Leader of the Opposition. The requirement for consultation does not require the Premier to obtain the approval of the Leader of the Opposition.

Clause 16 sets out the duties, functions and powers of the Inspector. Itclarifies that the Inspector constitutes the Victorian Inspectorate under clause 8, and states that the Inspector is responsible for undertaking the strategic leadership of the Victorian Inspectorate. The Inspector is also the public service body head of the Victorian Inspectorate, and has the duties, functions and powers delegated by the Victorian Inspectorate, or conferred by this Bill or any other Act.

Clause 17 Subclauses (1) to (4) set out the terms and conditions of the appointment of the Inspector. The Inspector will hold office for a period not exceeding 5 years, and is eligible for re-appointment. The instrument of appointment will govern the terms and conditions of the appointment. The remuneration of the Inspector cannot be reduced during his or her term unless he or she consents to the reduction.

Subclauses (5) to (9) establish the Inspector's rights and entitlements in relation to pensions and other matters arising out of previous employment as a judge of the Supreme or County Court, or the Chief Magistrate, or an officer within the meaning of the State Superannuation Act 1988.

Subclauses (10) to (11) prohibit the Inspector from engaging in any employment, business or community activity, or from entering into a contract to provide services, that may create an actual or perceived conflict of interest with his or her role.

Subclause (12) requires the Inspector to seek the approval of the Governor in Council to apply for or hold any professional, trade or business licence (including a legal practising certificate under the Legal Profession Act 2004), and to conduct any trade, business or profession, or accept any other employment.

Subclause (13) establishes that the Public Administration Act 2004 does not apply to the Inspector in respect of that office. The Public Administration Act 2004 only applies to the Inspector in relation to his or her role as a public service bodyHead under that Act, as explained below at clause 24. Thisclause will ensure that the independence of the Inspector is maintained, by exempting the role from provisions of that Act which could compromise the Inspector's autonomy from the Executive Government.

Clause 18 establishes the circumstances in which the Inspector ceases to hold office. These are if he or she—

·  resigns by writing to the Governor in Council;

·  becomes an insolvent under administration;

·  is convicted or found guilty of an indictable offence;

·  nominates for election to Parliament;

·  is appointed to judicial office;

·  is appointed as the IBAC Commissioner, Acting Commissioner, Deputy Commissioner or Acting Deputy Commissioner;

·  becomes a represented person within the meaning of the Guardianship and Administration Act 1986.

Subclause (2) provides that the Inspector ceases to hold office if he or she is removed in accordance with clause 19.

Clause 19 establishes a process for suspension and removal from office of the Inspector.

Subclause (1) holds that the Governor in Council may suspend the Inspector from office on the grounds of misconduct, neglect of duty, or inability to perform the duties of the office; or any other ground on which the Governor in Council is satisfied the Inspector is unfit to hold office.

Subclause (2) requires the Minister to present to each House of Parliament, within 7 sitting days of the suspension, a full statement of the grounds of suspension. If both Houses of Parliament, within a further 7 sitting days of that statement, declare by resolution that the Inspector ought to be removed from office, the Governor in Council must remove the Inspector. Otherwise the Governor in Council must remove the suspension and restore the Inspector to office.

Subclause (5) clarifies that the Inspector can only be removed from office in accordance with this section.

Clause 20 enables the Inspector to declare himself or herself unable to act in respect of a particular matter by reason of an actual or perceived conflict of interest.

Clause 21 establishes a process by which the Governor in Council may, on the recommendation of the Minister, appoint a person to act in the office of Inspector upon a vacancy or absence from duty. Anacting appointment under this clause may not exceed 6months. This will guard against the clause being used as a defacto appointment process for an Inspector.

Subclause (4) requires a vacancy in the office of the Inspector to be filled by a person appointed in accordance with clause 14 no later than 6 months after the vacancy occurred.

An acting Inspector may be removed at any time by the Governor in Council.

Clause 22 requires an Inspector or a person acting in the office of the Inspector, before taking office, to have taken an oath or made an affirmation to the Speaker of the Legislative Assembly that he or she—

·  will faithfully and impartially perform the duties and functions and exercise the powers of the office; and

·  will not disclose, except as authorised by law, any information received while in office.

The requirement under clause 22 is that the oath or affirmation referred to therein must have been taken, that is, it is sufficient that such an oath or affirmation be made once, rather than each time that person is appointed to such a position.

Clause 23 Subclause (1) establishes that the Inspector may delegate to a member of staff or consultant any of his or her duties, functions or powers, except—

·  the power of delegation;

·  the duty or power to make a report under clause 36 or38.

Subclause (2) provides that if the Inspector has declared himself or herself unable to act in a particular matter, he or she may delegate the above exceptional powers to another person qualified to be an Inspector under clause 14. The pension and other rights and privileges that this person has as a former judge or former Chief Magistrate will not be affected by this delegation.

Clause 24 enables the Victorian Inspectorate to employ staff as necessary, and establishes that those staff may be employed under the Public Administration Act 2004. The Victorian Inspectorate may also enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body.

Clause 25 enables the Victorian Inspectorate to engage persons with suitable qualifications and experience as consultants, including an Australian legal practitioner.

Clause 26 requires that a person employed under clause 24, and enables the Victorian Inspectorate to require for a person engaged under clause 24(2) or 25, to take an oath or affirmation, administered by the Inspector, that he or she—

·  will faithfully and impartially perform their duties and functions and exercise their powers; and

·  will not disclose, except as authorised by law, any information received in the performance of their duties and functions or the exercise of their powers.

Clause 27 requires that a person employed or engaged under clause 24 must not publicly comment on the administration of this Bill or the performance of functions or exercise of powers by the Victorian Inspectorate. It also provides that such a person must not disclose any information obtained in the course of their engagement or employment unless authorised.

Clause 28 requires Victorian Inspectorate Officers to ensure that any actual or perceived conflicts of interest are avoided in the performance of their duties and functions and in the exercise of their powers as Victorian Inspectorate Officers.