Victorian Numbered Acts Victorian Numbered ActsAfter Division 3 of Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011 insert —
The IBAC may conduct a preliminary inquiry for the purpose of determining whether to dismiss, refer or investigate a complaint or notification under this Act.
The IBAC may conduct a preliminary inquiry for the purpose of determining whether to conduct an own motion investigation.
(1) Parts 3 and 4 do not apply to, or in respect of, a preliminary inquiry.
(2) For the avoidance of doubt, a preliminary inquiry is not an investigation for the purposes of the definition of prescribed investigation within the meaning of the Telecommunications (interception and Access) Act 1979 of the Commonwealth in so far as it relates to the IBAC.
(1) For the purposes of a preliminary inquiry, the IBAC may request the relevant principal officer of a public body to provide any information that the IBAC requests that is relevant to the preliminary inquiry.
(2) A relevant principal officer who receives a request under subsection (1)—
(a) must comply with the request within a reasonable time, being not less than 7 days after receiving the request; and
(b) subject to subsection (3), is not required to comply with the request if the relevant principal officer advises the IBAC of a reasonable excuse for not doing so.
(3) A relevant principal officer who complies with a request under this section and any person who assists a relevant principal officer in complying with this section has the same protection and immunity as a person appearing as a witness at an examination has under section 149(2).
(1) For the purposes of a preliminary inquiry, the IBAC may issue a witness summons to any person requiring the person to attend at a specified time and place on a specified date to produce documents or other things to the IBAC.
(2) The IBAC may, under subsection (1), issue a witness summons directed to a person if satisfied that it is reasonable to do so, having regard to—
(a) whether the production of the document or thing is necessary to determine whether to conduct an investigation on its own motion, dismiss, refer or investigate a complaint or notification; and
(b) whether it is reasonably practicable to obtain the information in the document or thing by any other means; and
(c) the evidentiary or intelligence value of the information, document or thing sought to be obtained from the person; and
(d) the age of the person and any mental impairment to which the person is known or believed to be subject.
(3) The IBAC must not issue a witness summons to a person who is under the age of 18 years unless the IBAC considers on reasonable grounds that—
(a) the information, document or thing that the person could provide may be compelling and probative evidence; and
(b) it is not practicable to obtain the information, document or thing by any other means.
(4) If a person is issued with a witness summons referred to in subsection (1), the IBAC may excuse that person from attendance if the person produces the required documents or things to the IBAC before the time and date for production specified in the witness summons in accordance with any directions given by the IBAC.
(1) A witness summons must require the person to whom it is directed to attend at a specified time and place on a specified date to produce to the IBAC any documents or other things described in the witness summons that are in the person's possession or control.
(2) A witness summons must—
(a) be in the prescribed form; and
(b) be accompanied by a copy of any relevant confidentiality notice; and
(c) be accompanied by a statement setting out the matters specified in subsection (3).
(3) A statement referred to in subsection (2)(c) must include the following—
(a) that failure to comply with the witness summons may be an offence and penalties may apply;
(b) that if the person summoned is under the age of 16 years at the date of issue of the witness summons, the person need not comply with the witness summons, subject to the requirements of section 59H;
(c) that the person is entitled to seek legal advice in relation to the witness summons;
(d) that a person may claim a privilege;
(e) that the person has a right to complain to the Victorian Inspectorate;
(f) any other prescribed matter.
Within 3 days after the issue of a witness summons, the IBAC must give a written report to the Victorian Inspectorate specifying—
(a) the name of the person summoned;
(b) the reasons why the witness summons was issued.
(1) A witness summons directed to a person under the age of 16 years at the date of issue of the witness summons has no effect.
(2) A person who claims to be under the age of 16 years at the date of issue of a witness summons directed to the person must provide proof of age in accordance with the regulations to the IBAC.
(1) Subject to subsection (2), a witness summons must be served at a reasonable time, being not less than 7 days, before the date on which the person is required to attend or otherwise comply with the witness summons.
(2) The IBAC may issue a witness summons requiring immediate attendance by a person before the IBAC if the IBAC considers on reasonable grounds that a delay in the person's attendance is likely to result in—
(a) evidence being lost or destroyed; or
(b) the commission of an offence; or
(c) the escape of the person who is summoned; or
(d) serious prejudice to the conduct of the preliminary inquiry to which the witness summons relates.
(3) A witness summons directed to a natural person must be served by serving a copy of the witness summons to the person personally.
(4) A witness summons directed to a body corporate must be served by sending a copy of the witness summons by registered post to the head office, a registered office, a principal office or a principal place of business of the body corporate or to a postal address of the body corporate.
(5) Subsection (4) is in addition to, and not in derogation of, sections 109X and 601CX of the Corporations Act.
(1) If it appears that it is not reasonably practicable to serve a witness summons in accordance with section 59I, the IBAC may apply to the Supreme Court for an order that the witness summons be served by another means.
(2) On an application under subsection (1), if the Supreme Court is satisfied that it is not reasonably practicable to serve a witness summons in accordance with section 59I, the Court may—
(a) order that the witness summons be served by any other means the Court considers appropriate; or
(b) make an order for substituted service.
Before a witness summoned to attend a preliminary inquiry is required to produce a document or other thing, the IBAC must—
(a) confirm the age of a witness if the IBAC considers that a witness may be under the age of 18 years;
(b) release any witness under the age of 16 years from compliance with any witness summons;
(c) inform the witness orally and in writing of the person's rights and obligations as specified in section 59F(3) unless the witness informs the IBAC that—
(i) an Australian legal practitioner has explained the statement referred to in section 59F(2)(c) to the witness before the examination; and
(ii) the witness does not wish to be informed of the statement referred to in section 59F(2)(c) again;
(d) inform an Australian legal practitioner who is representing a witness or other person at the examination of any non-disclosure requirements that apply under the Act and, in the case of an investigation of a protected disclosure complaint, the confidentiality requirements under the Protected Disclosure Act 2012 ;
(e) take any other actions prescribed for the purposes of this subsection.
(1) This section applies if a person claims on production of a document or other thing, before the IBAC that—
(a) the document or other thing is the subject of privilege; or
(b) the document or other thing cannot be disclosed due to a secrecy requirement of any enactment or other law that applies to the person.
(2) A person making a claim to which this section applies must attend before the IBAC in accordance with the witness summons.
(3) The IBAC must consider the claim of privilege or application of the secrecy requirement and either—
(a) withdraw the requirement to produce the document or other thing over which the claim is made; or
(b) not withdraw the requirement and require the claimant to immediately seal the document or other thing in an envelope, or otherwise secure it if it cannot be sealed in an envelope, and give it to the IBAC.
(4) The IBAC must not inspect the document or other thing in considering the claim.
(5) If the IBAC does not withdraw the requirement to produce the document or other thing the IBAC must—
(a) apply to the Supreme Court in accordance with section 59M for determination of the claim of privilege or application of the secrecy requirement; and
(b) if the IBAC requires the claimant to give the document or other thing to the IBAC under subsection (3)(b), the IBAC must immediately give the sealed envelope or the document or other thing otherwise secured to the proper court officer of the Supreme Court to be held in safe custody.
(6) Subject to section 59N, a person must not open a sealed envelope or interfere with a document or other thing secured otherwise than in an envelope before delivery to the proper officer of the Supreme Court.
(1) Within 7 days after the IBAC gives the sealed envelope or the document or other thing secured otherwise than in an envelope to the proper officer under section 59L, the IBAC may apply to the Supreme Court for a determination of—
(a) a claim of privilege under this Division;
(b) the application of a secrecy requirement under any enactment or other law.
(2) If no application is made under subsection (1) within the period of 7 days, the proper officer of the Supreme Court must return the document or other thing to the claimant.
(3) The IBAC must give notice of the application to the claimant within a reasonable time before the hearing of the application.
(4) Notice under subsection (3) must be in the prescribed form.
(5) The claimant is entitled to appear and be heard on the hearing of the application.
(1) On an application under section 59M, the Supreme Court must determine whether or not the document or other thing in the sealed envelope or secured otherwise than in an envelope is the subject of—
(a) privilege; or
(b) any secrecy requirement under an enactment or other law.
(2) For the purposes of making a determination under subsection (1), the Judge constituting the Supreme Court and any other person authorised by the Court may—
(a) open the sealed envelope or access the document or other thing secured otherwise than in an envelope; and
(b) inspect the document or other thing.
(3) If the Court determines that the document or other thing is the subject of privilege or a secrecy requirement under an enactment or other law—
(a) the Court must order that the document or other thing be returned to the claimant; and
(b) the proper officer must return the document or other thing to the claimant.
(4) If the Court determines that the document or other thing is not the subject of privilege or a secrecy requirement under an enactment or other law—
(a) the Court must order that the document or other thing be given to the IBAC; and
(b) the proper officer must release the document or other thing accordingly.
(5) Subject to subsection (2), a person must not open a sealed envelope or otherwise have access to the document or other thing contained in the sealed envelope before—
(a) the Court determines the claim of privilege or the application of a secrecy requirement to it; or
(b) the document or other thing is returned to the claimant.
Penalty: 120 penalty units or imprisonment for 12 months or both.
(6) Subject to subsection (2), a person must not open or otherwise have access to a document or other thing secured otherwise than in an envelope before—
(a) the Court determines the claim of privilege or the application of a secrecy requirement to it; or
(b) the document or other thing is returned to the claimant.
Penalty: 120 penalty units or imprisonment for 12 months or both.
(1) A person who is duly served with a witness summons to attend and produce a document or other thing must not, without reasonable excuse, refuse or fail to produce a document or other thing that he or she was required to produce by the witness summons.
Penalty: In the case of a natural person, 60 penalty units or imprisonment for 6 months or both;
In the case of a body corporate, 300 penalty units.
Note
Section 185 applies to an offence against this subsection.
(2) For the purposes of the application of subsection (1)—
(a) a claim of privilege; or
(b) a claim that the document or other thing cannot be disclosed due to a secrecy requirement of any enactment or other law that applies to the person—
is a reasonable excuse for not complying with a witness summons issued under this Division.
The IBAC must not for the purposes of conducting a preliminary inquiry—
(a) make an application for the issue of a surveillance device warrant under section 15 of the Surveillance Devices Act 1999 ; or
(b) authorise or conduct a controlled operation under the Crimes (Controlled Operations) Act 2004 .".