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Special Investigator Repeal Bill 2023
Introduction Print
EXPLANATORY MEMORANDUM
General
The Special Investigator Repeal Bill 2023 repeals the Special Investigator
Act 2021 and abolishes the Office of the Special Investigator. The Bill
makes necessary transitional arrangements, continues in operation certain
offences and makes consequential and related amendments to other Acts to
support the abolishment of the Office of the Special Investigator.
The Special Investigator Act 2021 established the Office of the Special
Investigator, which operated from December 2021, to investigate potential
criminal conduct and breaches of discipline relating to the recruitment,
management and use by Victoria Police of Nicola Maree Gobbo as a human
source. The establishment of a Special Investigator was recommended by the
Royal Commission into the Management of Police Informants in its final
report delivered to the Victorian Governor on 30 November 2020.
Ultimately, following advice from the Special Investigator after none of the
investigations conducted by the Office of the Special Investigator resulted in
any criminal or disciplinary proceedings being commenced, the Victorian
Government announced in June 2023 that it had decided that the Office of the
Special Investigator should be decommissioned.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill, which are--
• to repeal the Special Investigator Act 2021; and
• to abolish the Office of the Special Investigator; and
• to make necessary transitional arrangements; and
• to continue in operation certain offences; and
601115 1 BILL LA INTRODUCTION 2/10/2023
• to make consequential and related amendments to other
Acts.
Clause 2 is the commencement provision.
Subclause (1) provides that the Bill comes into operation on a
day or days to be proclaimed, subject to subclause (2).
Subclause (2) provides that if a provision of the Bill does not
come into operation before 30 June 2024, it comes into operation
on that day.
Clause 3 subclause (1) provides that the Bill binds the Crown in right of
Victoria and, to the extent that the legislative power of the
Parliament permits, the Crown in all its other capacities.
Subclause (2) provides that the Crown is a body corporate for the
purposes of the Bill and the regulations.
Part 2--Repeal of Special Investigator Act 2021
Division 1--Repeal
Clause 4 repeals the Special Investigator Act 2021.
Division 2--Office of the Special Investigator
Clause 5 abolishes the Office of the Special Investigator, as established by
section 6 of the Special Investigator Act 2021. Section 6 of the
Special Investigator Act 2021 established the Office of the
Special Investigator as a body corporate.
Clause 6 revokes the appointment of a person holding office as the Special
Investigator.
Paragraph (a) provides that a person holding office as the Special
Investigator ceases to hold office upon commencement of Part 2
of the Bill.
Paragraph (b) provides that the person holding office as the
Special Investigator is not entitled to any remuneration or
compensation because of the loss of that office.
Clause 7 relates to the transfer of assets and liabilities of the Office of the
Special Investigator.
2
Subclause (1) vests all assets, property and rights vested in or
held by the Office of the Special Investigator immediately before
commencement of Part 2 of the Bill in the State. This will ensure
legal rights and obligations of the Office of the Special
Investigator which have arisen or will arise in the future can be
met.
Subclause (2) provides that all liabilities of the Office of the
Special Investigator, existing immediately before commencement
of Part 2 of the Bill, become liabilities of the State.
Subclause (3) substitutes the State for the purposes of any current
contract, agreement, lease, memorandum of understanding or
other arrangement which the Office of the Special Investigator
was party to immediately before the commencement of Part 2 of
the Bill.
Subclause (4) provides that subclause (3) does not limit or affect
the operation of a termination provision in any current contract,
agreement, lease, memorandum of understanding or other
arrangement. For example, subclause (4) does not affect the
operation of a provision of a memorandum of understanding
between the Office of the Special Investigator and another body
that provides that the memorandum of understanding will end
when the Office of the Special Investigator ceases to exist.
Clause 8 provides for the transfer of proceedings and subpoenas following
the abolishment of the Office of the Special Investigator.
Subclause (1) substitutes the State as a party to any proceeding to
which the Office of the Special Investigator was a party
immediately before the commencement of Part 2 of the Bill.
This includes a proceeding before a tribunal.
Subclause (2) substitutes the State as the addressee for any
subpoena issued in a proceeding to the Office of the Special
Investigator or an OSI officer (as defined in section 3(1) of the
Special Investigator Act 2021) to give evidence or produce
documents in that proceeding.
Clause 9 provides that except as provided under this or any other Act, all
records held by the Office of the Special Investigator
immediately before the commencement of Part 2 of the Bill are to
be transferred to the public office that is the Department of
Justice and Community Safety unless the Attorney-General, by
3
instrument, determines that they are to be transferred to another
public office.
A note to this subclause refers to public interest disclosures that
are transferred to the Independent Broad-based Anti-corruption
Commission under clause 57(2) of the Bill. Clause 57(2)
provides that if a public interest disclosure relating to a member
of Victoria Police personnel was made to the Office of the
Special Investigator before the commencement of Part 2 of the
Bill and the Office of the Special Investigator has not notified the
appropriate entity of that disclosure, the disclosure is taken to
have been made to the Independent Broad-based Anti-corruption
Commission and that any records or evidence relating to the
matter are to be transferred to the Independent Broad-based
Anti-corruption Commission for the Independent Broad-based
Anti-corruption Commission to use and rely on in investigating
that matter.
Subclause (2) provides that, despite section 8A of the Public
Records Act 1973, the public office that is the Department of
Justice and Community Safety or any other public office (as the
case requires) must cause any record of the Office of the Special
Investigator that the Keeper of Public Records has selected as
worthy of preservation to be transferred to the custody of the
Public Record Office as soon as practicable after receiving it.
Section 8A of the Public Records Act 1973 provides that public
records that have been in existence for 25 years and are no longer
required to be readily available for the purposes of that public
office must be transferred to the custody of the Public Record
Office in accordance with arrangements approved by the Keeper
of Public Records.
Subclause (3) provides that records transferred to the public
office that is the Department of Justice and Community Safety,
another public office or the Public Record Office under clause 9
are to be held and dealt with on the same basis and in the same
manner in which they were held and could be dealt with by the
Office of the Special Investigator. Subclause (3) ensures that
requirements related to handling and dealing with Office of the
Special Investigator records that applied while those records were
held by the Office of the Special Investigator continue to apply
notwithstanding that they have been transferred.
4
Subclause (4) provides that clause 9 is subject to any
arrangements made under section 2B(b) of the Public Records
Act 1973. Section 2B(b) of the Public Records Act 1973
provides for the situation where a public office ceases to exist,
and provides that the Keeper of Public Records may make
arrangements with the body to enable those records of the body
to be dealt with in accordance with the Public Records Act 1973
in the same manner as if the body had not ceased to be a public
office.
Subclause (5) defines the terms or key words used in the section
as follows--
• Keeper of Public Records has the same meaning as in
the Public Records Act 1973;
• public office has the same meaning as in the Public
Records Act 1973;
• Public Record Office means the office established by
section 3 of the Public Records Act 1973.
Clause 10 provides for a final report of the operations and financial
statements of the Office of the Special Investigator to be
prepared. Despite anything to the contrary in the Financial
Management Act 1994, the Secretary to the Department of
Justice and Community Safety must ensure that a report of the
operations and financial statements of the Office of the Special
Investigator, for the period beginning on 1 July 2023 and ending
on the day that Part 2 of the Bill commences, is prepared in
accordance with Part 7 of the Financial Management Act 1994.
The matters that such a report must include for the period
beginning on 1 July 2023 and ending on the day that Part 2
commences are set out in subclause (2) as follows--
• the number of investigations carried out by the Office of
the Special Investigator under Divisions 1 and 2 of
Part 3 of the Special Investigator Act 2021 as in force
immediately before its repeal; and
• the matters specified in section 69 of the Public
Interest Disclosures Act 2012.
Subclause (3) requires that the report and financial statements
prepared under subclause (1) be incorporated in and consolidated
with those of the Department of Justice and Community Safety
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for the financial year that includes the day that Part 2 of the Bill
commences.
Division 3--Transitional and savings provisions
Clause 11 provides that section 26 of the Special Investigator Act 2021 as
in force immediately before that Act's repeal continues in
operation as if it had not been repealed and as if a reference to
"OSI officer" included a reference to "a person who was at any
time an OSI officer".
Section 26 of the Special Investigator Act 2021 provides that an
OSI officer is not personally liable for anything necessarily or
reasonably done or omitted to be done in good faith in the
performance of a function or exercise of a power under the
Special Investigator Act 2021, or in the reasonable belief that
the act or omission was done in the performance of a function or
exercise of power under the Special Investigator Act 2021.
It further provides that any liability resulting from such an act or
omission attaches to the State instead.
Clause 12 provides that section 76 of the Special Investigator Act 2021 as
in force immediately before that Act's repeal continues in
operation as if it had not been repealed, and as if a reference to an
"OSI officer" included a reference to "a person who was at any
time an OSI officer".
Section 76 of the Special Investigator Act 2021 provides that an
OSI officer is not compellable to disclose any matter or thing
which the OSI officer has knowledge of as a result of being given
a protected document or thing. The section applies to--
• any legal proceeding; and
• any proceeding of any tribunal, authority or person
having the power to require the production of
documents or the answering of questions other than the
Victorian Inspectorate; and
• any disciplinary process or action.
Clause 13 continues the operation of section 89 of the Special Investigator
Act 2021 as in force immediately before that Act's repeal, as if
section 89 had not been repealed.
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Section 89 of the Special Investigator Act 2021 provides for the
offence of unauthorised use or disclosure of Office of Special
Investigator information. The purpose of the continued operation
of the offence is to provide for the security and confidentiality of
information and records held by the Office of the Special
Investigator and to protect against unauthorised use or disclosure
of information by former OSI officers and service providers
following the repeal of the Special Investigator Act 2021.
The offence is subject to a reasonable excuse exception.
Without limiting its meaning, it is intended that the words
"without reasonable excuse" in section 89 of the Special
Investigator Act 2021 include circumstances whereby the
disclosure of the information is required under another Act.
Clause 14 continues the operation section 90 of the Special Investigator
Act 2021 as in force immediately before that Act's repeal, as if
section 90 had not been repealed.
Section 90 of the Special Investigator Act 2021 provides that it
is an offence to cause or threaten harm or detriment to a person
who assists the Office of the Special Investigator or an OSI
officer. The purpose of the continued operation of the offence is
to protect former OSI officers and persons who provided
assistance or information to the Office of the Special Investigator
or an OSI officer from reprisals in relation to their involvement
with, and to protect persons who provided information or
assistance to the Office of the Special Investigator in reliance
on the protections contained within the offence created by
section 90.
Clause 15 continues the operation of sections 93, 94, 95 and 96 of the
Special Investigator Act 2021 as in force immediately before
that Act's repeal. Continuing the operation of these provisions is
required to support the operation of the offences created by
sections 89 and 90 of the Special Investigator Act 2021.
Clause 15 also provides for the continued operation of any other
sections necessary to give effect to these sections and the
continued offences. All of these provisions will continue to
apply despite the repeal of the Special Investigator Act 2021.
Clause 16 provides that if before the commencement of Part 2 of the Bill a
request was made to the Office of the Special Investigator under
the Freedom of Information Act 1982 for access to a document
and the Office of the Special Investigator has not dealt with that
7
request, on the commencement of Part 2 of the Bill, the request is
taken to be transferred under section 18(2) of the Freedom of
Information Act 1982 to the agency that is the Department of
Justice and Community Safety. The purpose of this clause is to
provide that requests for access to a document under the
Freedom of Information Act 1982 made to the Office of the
Special of Investigator but not yet dealt with at the
commencement of the Bill can be dealt with following its
abolishment and that the timeframes in section 18(3) of the
Freedom of Information Act 1982 are applied to the transfer of
these requests.
Subclause (2) provides that for the purposes of an application
under section 49A or 50 of the Freedom of Information
Act 1982, a decision of the Office of the Special Investigator is
taken to be a decision of the Secretary to the Department of
Justice and Community Safety. The purpose of this provision is
to enable a person to have a decision of the Office of the Special
Investigator under Part III of the Freedom of Information
Act 1982 reviewed under sections 49A or 50 of the Freedom of
Information Act 1982 after the commencement of Part 2 of the
Bill.
Clause 17 provides that the Governor in Council may make regulations
containing provisions of a transitional nature, including matters
of an application or savings nature, arising as a result of the
enactment of this Bill (including the repeals and amendments
made by this Bill).
Subclause (2) provides that the regulations made in accordance
with clause 17 may--
• have a retrospective effect to the date of Royal Assent
of this Bill; and
• be of limited or general application; and
• leave any matter or thing to be decided by a specified
person or class of person; and
• provide for the exemption of persons or proceedings or
a class of persons or proceedings from any of the
regulations made under this section.
8
Subclause (3) provides that regulations under clause 17 have
effect despite anything to the contrary in any Act (other than this
Bill or the Charter of Human Rights and Responsibilities
Act 2006) or any subordinate instrument.
Subclause (4) provides that clause 17 is repealed on the second
anniversary of its commencement.
Part 3--Consequential amendment of Victorian Inspectorate
Act 2011
Division 1--Amendment of Victorian Inspectorate Act 2011
Clause 18 amends section 3(1) of the Victorian Inspectorate Act 2011 to
repeal the definitions of Office of the Special Investigator,
OSI officer, OSI personnel and Special Investigator.
Clause 19 repeals section 5(j) of the Victorian Inspectorate Act 2011 to
remove the object of the Victorian Inspectorate Act 2011 of
providing for the independent oversight of the Office of the
Special Investigator and OSI personnel.
Clause 20 repeals section 11(8) of the Victorian Inspectorate Act 2011 to
remove the functions of the Victorian Inspectorate in relation to
the Office of the Special Investigator and OSI personnel.
Clause 21 repeals section 27(1)(lc) of the Victorian Inspectorate
Act 2011. Section 27(1) of the Victorian Inspectorate Act 2011
empowers the Inspector to delegate any duty, function or power
of the Inspector under the Victorian Inspectorate Act 2011 or
any other Act subject to specified exceptions. Section 27(1)(lc)
provides one such exception, namely the power of the Inspector
to authorise a Victorian Inspectorate Officer to enter premises of
the Office of the Special Investigator under section 63(13) of the
Victorian Inspectorate Act 2011.
Clause 22 repeals section 36A(3)(ea) of the Victorian Inspectorate
Act 2011 to remove the power of the Victorian Inspectorate to
provide or disclose any information received or obtained in the
course of the performance of its duties and functions or the
exercise of its powers under the Victorian Inspectorate
Act 2011 to the Office of the Special Investigator.
9
Clause 23 repeals section 43(11) and (12) of the Victorian Inspectorate
Act 2011 to remove the ability for a person to make a complaint
to the Victorian Inspectorate about the conduct of the Office of
the Special Investigator or OSI personnel.
Clause 24 amends section 44 of the Victorian Inspectorate Act 2011.
Subclause (1) repeals section 44(6C) of the Victorian
Inspectorate Act 2011 to remove the requirement that the
Victorian Inspectorate notify the Office of the Special
Investigator of an investigation.
Subclause (2) amends section 44(7) of the Victorian
Inspectorate Act 2011 to remove a reference to section 44(6C)
of the Victorian Inspectorate Act 2011.
This amendment will therefore remove the prohibition on the
Victorian Inspectorate including any information likely to lead to
the identification of a person who has made an assessable
disclosure in a notice of investigation to the Office of the Special
Investigator.
Clause 25 repeals section 46(7) of the Victorian Inspectorate Act 2011 to
remove the power of the Victorian Inspectorate to investigate the
conduct of the Office of the Special Investigator or OSI
personnel on its own motion.
Clause 26 amends section 47 of the Victorian Inspectorate Act 2011.
Subclause (1) repeals section 47(4D) and (9A) of the Victorian
Inspectorate Act 2011.
The repeal of section 47(4D) removes specified powers of the
Victorian Inspectorate for conducting an investigation in relation
to the Office of the Special Investigator or OSI personnel.
The repeal of section 47(9A) removes the power of the Victorian
Inspectorate to conduct an investigation under Division 1 of
Part 6 of the Victorian Inspectorate Act 2011 even if the Office
of the Special Investigator is investigating a related matter.
Subclause (2) amends section 47(10) of the Victorian
Inspectorate Act 2011 to remove reference to section 47(4D)(d)
of the Victorian Inspectorate Act 2011 in that section.
10
Clause 27 repeals section 48(8) of the Victorian Inspectorate Act 2011 to
remove the requirement for the Office of the Special Investigator
to provide assistance, and to ensure that OSI personnel provide
assistance, to the Victorian Inspectorate in an investigation
relating to the Office of the Special Investigator or OSI
personnel.
Clause 28 removes a reference to "the Office of the Special Investigator" in
section 48E of the Victorian Inspectorate Act 2011. This
amendment has the effect that the Office of the Special
Investigator is no longer required to provide assistance to the
Victorian Inspectorate in a preliminary inquiry.
Clause 29 removes a reference to "Office of the Special Investigator" in
section 50(d) of the Victorian Inspectorate Act 2011. This
amendment removes the Victorian Inspectorates power to enter
and search the Office of the Special Investigator premises and
inspect, copy and seize any document or thing in accordance with
section 63 of the Victorian Inspectorate Act 2011 when
conducting an inquiry.
Clause 30 amends section 54(4) of the Victorian Inspectorate Act 2011.
Paragraph (a) repeals section 54(4)(g)(viii) of the Victorian
Inspectorate Act 2011 to remove a reference to the Office of the
Special Investigator not being entitled to assert any privilege in a
statement accompanying a witness summons for OSI personnel.
Paragraph (b) removes a reference to "OSI personnel" in section
54(4)(i) of the Victorian Inspectorate Act 2011. This
amendment removes reference to statutory secrecy provisions
that may apply which prevent a person to whom a witness
summons under section 53 of the Victorian Inspectorate
Act 2011 is directed from answering a question, giving
information or producing documents or other things in a
statement accompanying a witness summons for OSI personnel.
Clause 31 removes references to "the Office of the Special Investigator"
from section 58(2)(c) and (d) and (8)(c) and (d) of the Victorian
Inspectorate Act 2011. This amendment removes references to
investigations of the Office of Special Investigator from the
grounds on which the Victorian Inspectorate may direct certain
persons not to seek legal advice or representation from a
specified Australian legal practitioner, in relation to an inquiry.
11
Clause 32 repeals section 63(13) and (14) of the Victorian Inspectorate
Act 2011 to remove the Victorian Inspectorate's powers of entry,
search, inspection and seizure at Office of the Special
Investigator premises.
Clause 33 amends section 67A(1)(b) and (2)(b) of the Victorian
Inspectorate Act 2011 to remove reference to section 47(4D)(d)
of the Victorian Inspectorate Act 2011, which is repealed by
clause 26(1) of the Bill.
Clause 34 repeals section 68(13) and (14) of the Victorian Inspectorate
Act 2011.
The repeal of section 68(13) removes the override and
disapplication of any obligation of OSI personnel to maintain
secrecy or other restriction upon the disclosure of information
obtained by or provided to the OSI officer, imposed by any
enactment or any rule of law, in relation to the disclosure of
information under Part 6 of the Victorian Inspectorate
Act 2011.
The repeal of section 68(14) removes the prohibition against the
Special Investigator or Office of the Special Investigator
asserting any privilege, and the abrogation of that privilege, in
relation to any requirement for an OSI personnel to produce a
document or other thing or give information under Part 6 of the
Victorian Inspectorate Act 2011.
Clause 35 repeals section 85H and 85I of the Victorian Inspectorate
Act 2011.
The repeal of section 85H removes the power of the Victorian
Inspectorate to make recommendations to the Office of the
Special Investigator in relation to any action that the Victorian
Inspectorate considers should be taken and other requirements
relating to the making of the recommendation.
The repeal of section 85I removes the power of the Victorian
Inspectorate to recommend to the Office of the Special
Investigator the undertaking of a disciplinary process or action
against any OSI personnel other than the Special Investigator.
The repeal of section 85I also removes the power of the Victorian
Inspectorate to make a recommendation to other bodies for
further investigatory or enforcement action in relation to a
complaint, investigation or other finding relating to the conduct
of any OSI personnel.
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Clause 36 amends section 86(1) of the Victorian Inspectorate Act 2011 to
remove reference to sections 85H and 85I, which are repealed by
clause 35 of the Bill.
Clause 37 repeals section 87(6B) of the Victorian Inspectorate Act 2011.
That section applies where the Victorian Inspectorate is aware of
an investigation under Part 3 of the Special Investigator
Act 2021 in relation to a matter or person to be included in a
report under section 87 of the Victorian Inspectorate Act 2011
and prohibits the Victorian Inspectorate from including in the
report any information which would prejudice that investigation.
Clause 38 amends section 88 of the Victorian Inspectorate Act 2011.
Subclause (1) amends section 88(1)(b) of the Victorian
Inspectorate Act 2011 to remove a reference to "section 85H(1)
or (3)". These provisions are repealed by clause 35 of the Bill.
Subclause (2) repeals section 88(3)(ib) of the Victorian
Inspectorate Act 2011 to remove the prohibition that the
Victorian Inspectorate must not provide a complainant with
information about the results of an investigation or inquiry if the
Victorian Inspectorate considers that the provision of the
information would prejudice an investigation under Part 3 of the
Special Investigator Act 2021.
Clause 39 repeals section 89(9) of the Victorian Inspectorate Act 2011 to
remove the power of the Victorian Inspectorate to do a number of
things after conducting an investigation in relation to the Office
of the Special Investigator or any OSI personnel, such as make a
recommendation to the Office of the Special Investigator.
Clause 40 amends section 91 of the Victorian Inspectorate Act 2011.
Subclause (1) repeals section 91(1)(w) of the Victorian
Inspectorate Act 2011 to remove the requirement that the
Victorian Inspectorate must include in its annual report for a
financial year under Part 7 of the Financial Management
Act 1994 details of the extent to which any action recommended
by the Victorian Inspectorate to be taken by the Office of the
Special Investigator has been taken.
Subclause (2) repeals section 91(9B) of the Victorian
Inspectorate Act 2011 to remove a prohibition on the Victorian
Inspectorate including in its annual report any information which
the Victorian Inspectorate is aware would prejudice an
13
investigation that is being or has been conducted under Part 3 of
the Special Investigator Act 2021 in relation to a matter or
person.
Clause 41 repeals section 102(2)(r) and (s) of the Victorian Inspectorate
Act 2011 to remove an exemption from the Freedom of
Information Act 1982 in relation to documents that are in the
possession of the Office of the Special Investigator or an OSI
officer.
Clause 42 omits "or 85I(3)(g)" in section 104(j) of the Victorian
Inspectorate Act 2011 to remove persons or bodies for the
purposes of section 85I(3)(g) of that Act from the list of matters
that may be prescribed by regulations under section 103 of the
Victorian Inspectorate Act 2011. Section 85I is repealed by
clause 35 of the Bill.
Division 2--Transitional and savings provisions
Clause 43 retains the Victorian Inspectorate's function to receive complaints
about the conduct of the Office of the Special Investigator or OSI
personnel for 6 months following the commencement of Part 3 of
the Bill.
Subclause (1) provides that, despite the abolition of the Office of
the Special Investigator and amendment of the Victorian
Inspectorate Act 2011 by Part 3 of the Bill, a person may make
a complaint under section 43(11) of the Victorian Inspectorate
Act 2011 as in force before its amendment.
Subclause (2) provides that a complaint referred to in subclause
(1) must be made within 6 months after commencement of Part 3
of the Bill.
Subclause (3) provides that for the purposes of subclause (1), the
following sections of the Victorian Inspectorate Act 2011 as in
force immediately before the commencement of Part 3 of the Bill
continue to apply as if these sections had not been amended or
repealed--
• section 3(1);
• section 11(8)(b);
• section 43(11) and (12);
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• any other sections that are necessary for the operation of
any of the sections listed above or for the Victorian
Inspectorate to properly receive the person's complaint.
Subclause (4) provides that a reference to a section in
subclause (3) includes a regulation made for the purposes of that
subclause.
Clause 44 provides that section 91(1)(w) of the Victorian Inspectorate
Act 2011 as in force immediately before the commencement of
Part 3 of the Bill continues to apply for 6 months after the
commencement of Part 3 as if it had not been repealed,
notwithstanding the abolition of the Office of the Special
Investigator and the amendment of the Victorian Inspectorate
Act 2011 by the Bill.
Clause 45 provides that the Victorian Inspectorate may investigate the
conduct of the Office of the Special Investigator and OSI
personnel for 18 months after the commencement of Part 3,
notwithstanding the abolition of the Office of the Special
Investigator and the amendment of the Victorian Inspectorate
Act 2011 by the Bill. This 18 month period is intended to ensure
that the Victorian Inspectorate has sufficient time to investigate
any complaints it receives in the 6 month period in which it may
receive complaints about the conduct of the Office of the Special
Investigator and OSI personnel under clause 43. The purpose of
clause 43 is to ensure accountability of public officers,
notwithstanding that the Office of the Special Investigator is
abolished by the Bill.
Subclause (2) provides that for the purposes of subclause (1)
which provides for the 18 month investigation period, the
following sections of the Victorian Inspectorate Act 2011 as in
force immediately before the commencement of Part 3 of the Bill
continue to apply as if these sections had not been amended or
repealed--
• section 3(1);
• section 11(8)(c) and (d);
• section 46(7);
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• section 47(4D) as if a reference to "the records of the
Office of the Special Investigator" included a reference
to "the records transferred in accordance with section 9
of the Special Investigator Repeal Act 2023";
• section 47(10);
• section 54(4)(g)(viii), as if a reference to "the Office of
the Special Investigator" included a reference to "the
Crown";
• section 54(4)(i);
• section 67A(1)(b) and (2)(b);
• section 68(13);
• section 68(14), as if a reference to "the Special
Investigator" or "the Office of the Special Investigator"
included a reference to "the Crown";
• any other sections that are necessary for the operation of
any section listed above for the Victorian Inspectorate to
effectively investigate the conduct.
Subclause (3) provides that a reference to a section in subclause
(2) includes a regulation made for the purposes of that section.
Clause 46 provides in subclause (1) that the Victorian Inspectorate may
report on, and make recommendations in relation to, an
investigation into the conduct of the Office of the Special
Investigator and OSI personnel until the second anniversary of
the commencement of Part 3 of the Bill, notwithstanding the
abolition of the Office of the Special Investigator and the
amendment of the Victorian Inspectorate Act 2011 by the Bill.
Subclause (2) provides that for the purposes of subclause (1), the
following sections of the Victorian Inspectorate Act 2011 as in
force immediately before the commencement of Part 3 continue
to apply as if these sections had not been amended or repealed--
• section 3(1);
• section 11(8)(e), as if a reference to "paragraphs (a), (b),
(c) and (d)" were a reference to "paragraphs (b), (c) and
(d)";
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• section 85H(1) to (3), as if a reference to "the Office of
the Special Investigator" were a reference to "the
Attorney-General";
• section 85I(3);
• section 86;
• section 89(9)(a) and (c) to (m), as if a reference to "the
Office of the Special investigator" were a reference to
"the Attorney-General";
• section 104(j);
• any other sections that are necessary for the operation of
any section listed above or for the Victorian
Inspectorate to effectively report on and make
recommendations in relation to an investigation.
Subclause (3) provides that a reference to a section in subclause
(2) includes a regulation made for the purposes of that subclause.
Clause 47 provides that the Victorian Inspectorate may access, receive,
assess and deal with the records of the Office of the Special
Investigator for the purposes of performing its functions under
the Victorian Inspectorate Act 2011 as in force immediately
before the commencement of Part 3 of the Bill, regardless of who
is the custodian of those records. The purpose of clause 47 is to
enable the Victorian Inspectorate to access the records of the
Office of the Special Investigator in the transitional period.
Clause 48 provides that paragraph (r) of the definition of relevant person or
body in section 102(2) of the Victorian Inspectorate Act 2011
continues to apply in respect of a document transferred to the
Department of Justice and Community Safety under clause 9 of
the Bill, as if a reference to "the Office of the Special
Investigator" were a reference to "the Department of Justice and
Community Safety". The purpose of clause 48 is to provide an
exemption from the Freedom of Information Act 1982 to the
Department of Justice and Community Safety in respect of a
document transferred to it under clause 9 of the Bill.
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Division 3--Repeal of this Part
Clause 49 provides that Part 3 of the Bill is repealed on the third
anniversary of its commencement.
The repeal of this Part does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
Part 4--Consequential amendment of Public Interest Disclosures
Act 2012
Division 1--Amendment of Public Interest Disclosures Act 2012
Clause 50 amends section 3 of the Public Interest Disclosures Act 2012
by--
• repealing paragraph (i) of the definition of investigating
entity to remove the Office of the Special Investigator
from the definition; and
• repealing the definitions of Office of the Special
Investigator, OSI officer and Special Investigator.
Clause 51 amends section 14 of the Public Interest Disclosures Act 2012.
Paragraph (a) repeals section 14(b)(iv) and (v) of the Public
Interest Disclosures Act 2012 to remove the requirement that
except as provided in section 15 of the Public Interest
Disclosures Act 2012, a public interest disclosure must be made
to the Victorian Inspectorate if the disclosure relates to the Office
of the Special Investigator or an OSI officer.
Paragraph (b) substitutes a new section 14(d) of the Public
Interest Disclosures Act 2012 to provide that all disclosures
relating to a member of Victoria Police personnel other than the
Chief Commissioner of Police may be made to the IBAC or to
Victoria Police.
Paragraph (c) repeals section 14(da) of the Public Interest
Disclosures Act 2012 to remove the requirement for a public
interest disclosure to be made to the Office of the Special
Investigator if the disclosure relates to a member of Victoria
Police personnel and conduct arising from, or out of, the use of
Nicola Maree Gobbo as a human source within the meaning of
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the Special Investigator Act 2021, except as provided in
section 15 of the Public Interest Disclosures Act 2012.
Clause 52 repeals section 21(4)(ba) of the Public Interest Disclosures
Act 2012 to remove the Victorian Inspectorate as the entity to
which a public interest disclosure must or may be notified if the
disclosure is received in certain circumstances and relates to the
Office of the Special Investigator or an OSI officer.
Clause 53 amends section 31(1) of the Public Interest Disclosures
Act 2012 to remove the requirement for the Victorian
Inspectorate to assess a public interest disclosure to determine
whether or not the disclosure is a public interest complaint where
the disclosure relates to the Office of the Special Investigator or
an OSI officer.
Clause 54 amends section 56(1)(a) of the Public Interest Disclosures
Act 2012 to remove the Victorian Inspectorate's function under
the Public Interest Disclosures Act 2012 of receiving assessable
disclosures in relation to the Office of the Special Investigator
and OSI officers.
Clause 55 repeals item 9 in the Table in Schedule 2 to the Public Interest
Disclosures Act 2012 to remove the persons permitted to receive
public interest disclosure on behalf of the Office of the Special
Investigator.
Division 2--Transitional and savings provisions
Clause 56 provides in subclause (1) that a public interest disclosure made
within 6 months after the commencement of Part 4 of the Bill
that relates to the Office of the Special Investigator or a former
OSI officer must be made to the Victorian Inspectorate in
accordance with section 14(b) of the Public Interest Disclosures
Act 2012 as in force immediately before its amendment,
notwithstanding the abolition of the Office of the Special
Investigator and the amendments made to the Public Interest
Disclosures Act 2012 by the Bill. The purpose of this provision
is to ensure public interest disclosures in relation to the Office of
the Special Investigator or a former OSI officer continue to be
directed to the Victorian Inspectorate.
Subclause (2) provides that for the purposes of subclause (1), the
following sections of the Public Interest Disclosures Act 2012
as in force immediately before the commencement of Part 4 of
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the Bill continue apply as if these sections had not been amended
or repealed--
• section 3;
• section 14(b)(iv) and (v);
• section 21(4)(ba);
• section 31(1);
• section 56(1)(a).
Subclause (3) provides that in subclause (2) a reference in a
section to "an OSI officer" includes a reference to "a former OSI
officer" and a reference to a section includes a regulation made
for the purposes of that section.
Clause 57 provides in subclause (1) that if a public interest disclosure or
public interest complaint relating to a member of Victoria Police
personnel and conduct arising from, or out of, the use of Nicola
Maree Gobbo as a human source within the meaning of the
Special Investigator Act 2021 as in force immediately before its
repeal or the Office of the Special Investigator or an OSI officer
within the meaning of the Special Investigator Act 2021 as in
force immediately before its repeal was made or determined
before the commencement of Part 4, the Public Interest
Disclosures Act 2012 applies in respect of the disclosure or
complaint as if it had not been so amended, despite the
amendments made to the Public Interest Disclosures Act 2012
by Part 4.
Subclause (2) provides that for the purposes of subclause (1)(a),
if a public interest disclosure relating to a member of Victoria
Police personnel was made to the Office of the Special
Investigator before the commencement of this Part and the Office
of the Special Investigator has not notified the appropriate entity
of that disclosure, the disclosure is taken to have been made to
the Independent Broad-based Anti-corruption Commission and
any records or evidence relating to the matter are to be
transferred to the Independent Broad-based Anti-corruption
Commission for the Independent Broad-based Anti-corruption
Commission to use and rely on in investigating the matter.
The purpose of this subclause is to ensure that public interest
disclosures made to the Office of the Special Investigator that the
Office of the Special Investigator has not notified the appropriate
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entity of before commencement of the Bill are transferred to the
Independent Broad-based Anti-corruption Commission and dealt
with.
Subclause (3) defines IBAC for the purposes of this clause.
Division 3--Repeal of this Part
Clause 58 provides that Part 4 of the Bill is repealed on the second
anniversary of its commencement.
The repeal of this Part does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
Part 5--Consequential amendment of other Acts
Division 1--Amendment of Independent Broad-based
Anti-corruption Commission Act 2011
Clause 59 amends section 3 of the Independent Broad-based
Anti-corruption Commission Act 2011.
Subclause (1) amends section 3(1) of that Act by--
• repealing the definitions of human source and Office of
the Special Investigator; and
• repealing paragraph (ca) of the definition of law
enforcement agency to remove the Office of the Special
Investigator from that definition; and
• amending the definition of Royal Commission into the
Management of Police Informants so that it has the
same meaning as in the Special Investigator Act 2021
as in force immediately before its repeal under this Bill.
Subclause (2) repeals section 3(5) of the Independent
Broad-based Anti-corruption Commission Act 2011 which
defines a reference to Nicola Maree Gobbo in that Act as a
reference to the individual named Nicola Maree Gobbo identified
as the party EF in the proceeding known as AB (a pseudonym) v
CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym)
[2018] HCA 58.
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Clause 60 amends section 40(d) of the Independent Broad-based
Anti-corruption Commission Act 2011 to remove a reference to
the Special Investigator Act 2021. Section 40(d) provides an
exception to the offence of unauthorised disclosure of
information by a current or former IBAC officer, where
disclosure is required or authorised under the Special
Investigator Act 2021. The exception at section 40(d) is no
longer required as the Special Investigator Act 2021 is repealed
by this Bill.
Clause 61 repeals section 65(4) of the Independent Broad-based
Anti-corruption Commission Act 2011 to remove the power of
the Independent Broad-based Anti-corruption Commission to
disclose to the Office of the Special Investigator information that
it has obtained as a result of a complaint, notification or
investigation in relation to conduct of the Chief Commissioner of
Police, a Deputy Commissioner of Police or an Assistant
Commissioner of Police if the Independent Broad-based
Anti-corruption Commission considers the information is
relevant to the investigative functions of the Office of the Special
Investigator.
Clause 62 amends section 73 of the Independent Broad-based
Anti-corruption Commission Act 2011 by--
• repealing subsection (2)(db) to remove the power of the
Independent Broad-based Anti-Corruption Commission
to refer a complaint or notification to the Office of the
Special Investigator in certain circumstances; and
• substituting a new subsection (3)(a) to remove the
ability of the Independent Broad-based Anti-corruption
Commission to refer a public interest complaint relating
to the conduct of a member of Victoria Police personnel
to the Office of the Special Investigator if that conduct
arises from, or out of, the use of Nicola Maree Gobbo as
a human source.
As amended by clause 62, subsection (3)(a) will provide that the
Independent Broad-based Anti-corruption Commission may only
refer a public interest complaint relating to the conduct of a
member of Victoria Police personnel to the Chief Commissioner
of Police.
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Clause 63 amends section 77 of the Independent Broad-based
Anti-corruption Commission Act 2011 by--
• repealing subsection (2A) to remove the power of the
Independent Broad-based Anti-corruption Commission
to provide information that is likely to lead to the
identification of a person who has made an assessable
disclosure to the Office of the Special Investigator in
certain circumstances; and
• omitting a reference to section 77(2A) in subsection (3)
as section 77(2A) is repealed by this clause.
Division 2--Amendment of Police Informants Royal Commission
Implementation Monitor Act 2021
Clause 64 repeals the definition of Office of the Special Investigator from
section 3 of the Police Informants Royal Commission
Implementation Monitor Act 2021. This definition is
unnecessary because the section that uses the definition is also
being repealed by this Bill.
Clause 65 repeals section 15(1)(f) and (g) of the Police Informants Royal
Commission Implementation Monitor Act 2021 to remove the
functions of the Implementation Monitor to receive written
reports from the Office of the Special Investigator in accordance
with section 97 of the Special Investigator Act 2021 and to
receive written reports from the Chief Commissioner of Police in
accordance with section 52 of the Special Investigator
Act 2021.
Division 3--Amendment of Public Administration Act 2004
Clause 66 repeals section 6(1)(e) of the Public Administration Act 2004 to
remove the Office of the Special Investigator as a special body
for the purposes of the Public Administration Act 2004.
Clause 67 repeals section 16(1)(fc) of the Public Administration Act 2004
to remove the Special Investigator's functions as a public service
body Head in relation to employees of the Office of the Special
Investigator for the purposes of the Public Administration
Act 2004.
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Division 4--Amendment of Surveillance Devices Act 1999
Clause 68 amends section 3(1) of the Surveillance Devices Act 1999 by
repealing--
• paragraph (g) of the definition of chief officer to
remove reference to the Special Investigator as the
Chief Officer in relation to the Office of the Special
Investigator;
• paragraph (g) of the definition of law enforcement
agency to remove the Office of the Special Investigator
from the definition;
• paragraph (g) of the definition of law enforcement
officer to remove an investigating OSI officer appointed
under section 27 of the Special Investigator Act 2021
from the definition;
• the definition of Office of the Special Investigator;
• paragraph (g) of the definition of senior officer to
remove the Special Investigator in relation to the Office
of the Special Investigator from the definition; and
• the definition of Special Investigator.
Division 5--Amendment of Witness Protection Act 1991
Clause 69 repeals the definition of Office of the Special Investigator from
section 3(1) of the Witness Protection Act 1991.
Clause 70 repeals section 10(1)(ba) and (4)(ba) of the Witness Protection
Act 1991.
Repealing section 10(1)(ba) of the Witness Protection Act 1991
removes an exception to the offence of disclosing information
relating to the making of an entry in the register of births or the
register of marriages under the Witness Protection Act 1991 or
any information relating to the acquisition of an assumed identity
under Division 3 of that Act, to allow for information be
provided to the Office of the Special Investigator for the purposes
of an investigation by the Office of the Special Investigator.
Repealing section 10(4)(ba) of the Witness Protection Act 1991
removes an exception to the offence of disclosing information
relating to a person who is or has been a witness, or who is a
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relative of a person who is or has been a witness, to allow for
disclosure that is necessary for the purposes of an investigation
by the Office of the Special Investigator.
Clause 71 amends section 12(1)(eb) of the Witness Protection Act 1991 to
preserve the protection against any person who is or has been the
Special Investigator being required to give evidence or produce
any documents, matter or thing to a court or tribunal in relation to
the performance of their duties under the Witness Protection
Act 1991, except in certain circumstances. This protection will
continue despite the repeal of the Special Investigator Act 2021.
Division 6--Repeal of this Part
Clause 72 provides that Part 5 of the Bill is repealed on the second
anniversary of its commencement.
The repeal of this Part does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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