Major Crime (Investigative Powers) Act 2004

Version No. 014

Major Crime (Investigative Powers) Act 2004

No. 79 of 2004

Version incorporating amendments as at 3 August 2007

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

Part 2—Coercive Powers Orders and Witness Summonses

4Authority given by coercive powers order

5Application for order

6Remote application

7Offence to publish report of proceedings

8Determination of application

9Coercive powers order

10Extension or variation of coercive powers order

11Discontinuance of use of powers under coercive powers order

12Revocation of coercive powers order

13Chief Examiner must act on revocation

14Supreme Court may issue witness summons

15Chief Examiner may issue witness summons

16Witness summons directed to person under 16

17Service of witness summons

18Witness already held in custody

19Witness expenses

20Confidentiality of witness summons and orders

Part 3—Chief Examiner and Examiners

21Appointment of Chief Examiner and Examiners

22Remuneration and allowances

23Terms and conditions

24Vacancy, resignation, removal

25Validity of acts and decisions

26Conflict of interest

27Management of Examiners

28Police assistance to Chief Examiner

Part 4—Examinations

29When Chief Examiner may conduct examinations

30Conduct of examination

31Preliminary requirements

32Witness under 16

33Protection of legal practitioners and witnesses

34Representation of witness

35Examination to be held in private

36Taking of evidence

37Failure of witnesses to attend and answer questions

38False or misleading evidence

39Privilege against self-incrimination abrogated

40Legal professional privilege

41Procedure for determining claims of legal professional
privilege

42Application to Magistrates' Court to determine legal professionalprivilege

43Restriction on publication of evidence

44Hindering or obstructing Chief Examiner or disrupting examination

45Video-recording of examination

46Warrant for arrest of witness

47Documents or other things produced to Chief Examiner

48Magistrates' Court proceedings

49Contempt of Chief Examiner

50No double jeopardy

Part 5—Oversight by Special Investigations Monitor

51Role of Special Investigations Monitor

52Chief Examiner must report witness summonses and orders to Special Investigations Monitor

53Chief Examiner must report other matters to Special Investigations Monitor

54Complaints to Special Investigations Monitor

55Special Investigations Monitor may refuse to investigate complaint

56Investigation of complaints

57Recommendations by Special Investigations Monitor

58Requirement to provide assistance

59Powers of entry and access

60Requirement to answer questions and produce documents

61Annual and other reports by Special Investigations Monitor

62Report on operation of this Part

63Crown privilege or secrecy does not apply

64Obstruction

Part 6—Miscellaneous

65Delegation

66Obligations of Chief Commissioner

67Information sharing

68Secrecy

69Exemption from Freedom of Information Act 1982

70Regulations

PartS 7–11—Repealed66

71–131Repealed66

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ENDNOTES

1. General Information

2. Table of Amendments

3. Explanatory Details

Version No. 014

Major Crime (Investigative Powers) Act 2004

No. 79 of 2004

Version incorporating amendments as at 3 August 2007

Major Crime (Investigative Powers) Act 2004
No. 79 of 2004

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences; and

(b)to amend the Ombudsman Act 1973, the Police Regulation Act 1958, the Sex Offenders Registration Act 2004, the Whistleblowers Protection Act 2001 and other Acts to make further provision for the Director, Police Integrity.

2Commencement

(1)Subject to this section, this Act (except sections 75, 97 and 130) comes into operation on a day or days to be proclaimed.

(2)Sections 75 and 97 come into operation on the day on which this Act receives the Royal Assent.

(3)Section 130 is deemed to have come into operation on the day on which the Major Crime Legislation (Office of Police Integrity) Act 2004 received the Royal Assent.

(4)If a provision of this Act, other than section 75, 97 or 130, does not come into operation before 1 July 2005, it comes into operation on that day.

3Definitions

s. 3

In this Act—

Chief Commissioner means the Chief Commissioner of Police for Victoria;

Chief Examiner means the Chief Examiner appointed under Part 3;

S. 3 def. of coercive powers order amendedby No. 29/2006 s.3(Sch. 1 item20).

coercive powers order means an order made under section 8 authorising the use of coercive powers to investigate an organised crime offence;

S. 3 def. of legal practitioner insertedby No. 18/2005 s.18(Sch. 1 item64.1).

legal practitioner means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;

mental impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury;

organised crime offence means an indictable offence against the law of Victoria, irrespective of when the offence is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more and that—

(a)involves 2 or more offenders; and

(b)involves substantial planning and organisation; and

(c)forms part of systemic and continuing criminal activity; and

(d)has a purpose of obtaining profit, gain, power or influence;

police gaol has the same meaning as in the Corrections Act 1986;

S. 3 def. of prison amendedby No. 48/2006 s.42(Sch. item 24).

prison has the same meaning as in the Corrections Act 1986 but includes a youth justice centre established under section 478 of the Children, Youth and Families Act 2005;

Special Investigations Monitor means the Special Investigations Monitor appointed under Part 2 of the Major Crime (Special Investigations Monitor) Act 2004;

s. 3

witness summons means a summons issued under section 14 or 15.

______

Part 2—Coercive Powers Orders and Witness Summonses

4Authority given by coercive powers order

s. 4

A coercive powers order authorises the use in accordance with this Act of powers provided by this Act for the purpose of investigating the organised crime offence in respect of which the order is made.

5Application for order

(1)Subject to subsection (2), a member of the police force may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, is being or is likely to be committed.

(2)An application under subsection (1) may only be made with the approval of the Chief Commissioner or a delegate of the Chief Commissioner.

(3)An application under subsection (1) must be in writing and must specify—

(a)the name and rank of the applicant; and

(b)the name and rank of the person who approved the application; and

(c)particulars of the organised crime offence in respect of which the coercive powers order is sought; and

(d)the name of each alleged offender or, if the name is unknown, state that the offender is unknown; and

(e)the period, not exceeding 12 months, that is sought for the duration of the coercive powers order.

(4)An application under subsection (1) must be supported by an affidavit of the applicant—

(a)stating that he or she suspects that an organised crime offence has been, is being, or is likely to be committed, as the case requires; and

(b)setting out the grounds on which the applicant holds that suspicion; and

(c)setting out the reason why the use of coercive powers is sought.

(5)The Supreme Court may require the applicant to provide any additional information that the Court requires in relation to the application.

(6)If the applicant believes that—

s. 5

(a)the delay caused in complying with subsection (4) may prejudice the success of the investigation into the relevant organised crime offence; and

(b)it is impracticable for an affidavit to be prepared or sworn before the application is made—

the application for a coercive powers order may be made before an affidavit is prepared or sworn.

(7)If subsection (6) applies, the applicant must—

(a)provide as much information as the Supreme Court considers is reasonably practicable in the circumstances; and

(b)if an affidavit has been prepared but not sworn, provide a copy of the unsworn affidavit to the Supreme Court; and

(c)not later than the day following the making of the application, send the duly sworn affidavit to the Supreme Court, whether or not a coercive powers order has been made.

(8)An application under subsection (1) must be heard in closed court.

6Remote application

s. 6

(1)If a member of the police force believes that it is impracticable for an application for a coercive powers order to be made in person, the application may be made under section 5 by telephone, fax, email or any other means of communication.

(2)If transmission by fax is available and an affidavit has been prepared, the applicant must transmit a copy of the affidavit, whether sworn or unsworn, to the judge of the Supreme Court who is to determine the application.

7Offence to publish report of proceedings

(1)Unless the Supreme Court orders otherwise, a person who publishes a report of a proceeding in respect of an application for a coercive powers order or any information derived from such a proceeding is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

(2)The Supreme Court may make an order under subsection (1) if it considers it appropriate to do so.

8Determination of application

The Supreme Court may make a coercive powers order if satisfied—

(a)that there are reasonable grounds for the suspicion founding the application for the order; and

(b)that it is in the public interest to make the order, having regard to—

(i)the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and

(ii)the impact of the use of coercive powers on the rights of members of the community.

9Coercive powers order

s. 9

(1)A coercive powers order must state that the Supreme Court is satisfied of the matters referred to in section 8(a) and (b) having regard to the matters referred to in section 8(b)(i) and (ii).

(2)A coercive powers order must also specify—

(a)the organised crime offence in respect of which the order is made; and

(b)the name of each alleged offender or, if the name is unknown, state that the offender is unknown; and

(c)the name and rank of the applicant; and

(d)the name and rank of the person who approved the application; and

(e)the date on which the order is made; and

(f)the period for which the order remains in force, being a period not exceeding 12months; and

(g)any conditions on the use of coercive powers under the order.

(3)A coercive powers order must be signed by the judge of the Supreme Court who makes it and include his or her name.

(4)If the Supreme Court makes a coercive powers order, the applicant must cause a copy of the order to be given to the Chief Examiner as soon as practicable after the making of the order.

10Extension or variation of coercive powers order

s. 10

(1)Subject to subsection (2), a member of the police force on whose application a coercive powers order has been made, or another person on his or her behalf, may apply to the Supreme Court for—

(a)an extension of the order for a period not exceeding 12 months from the day on which it would otherwise expire; or

(b)a variation of any of the other terms of the order.

(2)An application under subsection (1) may only be made with the approval of the Chief Commissioner or a delegate of the Chief Commissioner.

(3)Section 5 applies to an application for extension or variation of a coercive powers order as if it were an application for an order.

(4)On an application under this section, the Supreme Court may, at any time before the expiry of a coercive powers order, make a new order providing for—

(a)the extension of the original order for a period not exceeding 12 months from the day on which it would otherwise expire; or

(b)variation of the other terms of the original order.

(5)A coercive powers order may be extended or varied more than once.

(6)If the Supreme Court makes an order under this section, the applicant must cause a copy of the order to be given to the Chief Examiner as soon as practicable after the making of the order.

11Discontinuance of use of powers under coercive powers order

s. 11

(1)If the Chief Commissioner or the delegate of the Chief Commissioner who approved an application for a coercive powers order, or an application for extension or variation of a coercive powers order,is satisfied that the powers under the order are no longer required for the purpose for which the order was made, the Chief Commissioner or delegate must immediately give notice in writing to the Supreme Court that the person giving notice has formed the view that the coercive powers order is no longer required.

(2)A notice under subsection (1) must be filed with the Supreme Court.

(3)On the filing of a notice under subsection (1), the coercive powers order is revoked.

12Revocation of coercive powers order

(1)The Supreme Court may revoke a coercive powers order at any time before the expiry of the order.

(2)If the Supreme Court revokes a coercive powers order or a notice under section 11(1) is filed, the Court must—

(a)cause notice of the revocation to be given to the Chief Examiner and the Chief Commissioner immediately; and

(b)revoke any witness summons issued under section 14 in reliance on the coercive powers order if the witness summons has not been served or the date for attendance has not passed; and

(c)give notice in writing of the revocation of each witness summons to the person to whom the summons was directed.

13Chief Examiner must act on revocation

s. 13

If the Chief Examiner is given notice under section 12(2) that a coercive powers order has been revoked, the Chief Examiner must—

(a)revoke any witness summons issued under section 15 in reliance on the coercive powers order if the witness summons has not been served or the date for attendance has not passed; and

(b)give notice in writing of the revocation of each witness summons to the person to whom the summons was directed; and

(c)release from attendance or further attendance each witness who has been summoned to attend an examination in reliance on the order.

14Supreme Court may issue witness summons

(1)This section applies if a coercive powers order is in force in respect of an organised crime offence.

(2)On application under subsection (3), the Supreme Court may issue the following witness summonses—

(a)a summons to attend an examination before the Chief Examiner to give evidence;

(b)a summons to attend at a specified time and place to produce specified documents or other things to the Chief Examiner;

(c)a summons to attend an examination before the Chief Examiner to give evidence and produce specified documents or other things.

(3)A member of the police force may apply to the Supreme Court for the issue of a summons referred to in subsection (2)—

(a)at the time of the making of the coercive powers order; or

(b)at any later time while the coercive powers order is in force.

(4)An application for a summons—

(a)must be in writing; and

(b)must state the name and rank of the applicant; and

(c)must state the reason why a summons is needed for the person to whom it is to be directed; and

s. 14

(d)must indicate the evidentiary or intelligence value of the information sought to be obtained from the person to whom the summons is to be directed; and

(e)if the applicant suspects that the person to whom the summons is to be directed has a mental impairment, must state that suspicion; and

(f)if the applicant suspects or knows that the person to whom the summons is to be directed is under the age of 18 years, must state that suspicion or knowledge and the suspected or known age of the person.

(5)The Supreme Court may require the applicant to provide any additional information that the Court requires in relation to the application.

(6)On application under subsection (3), the Supreme Court may issue a summons directed to a person, other than a person referred to in subsection (7), if the Court is satisfied that it is reasonable in the circumstances to do so, after consideration of—

(a)the evidentiary or intelligence value of the information sought to be obtained from the person; and

(b)the age of the person, and any mental impairment to which the person is known to be subject.

(7)The Supreme Court must not issue a summons directed to a person known to be under the age of 16 years.

s. 14

(8)A summons must require the person to whom it is directed to attend at a specified place on a specified date and at a specified time and from day to day unless excused or released from further attendance—

(a)to give evidence before the Chief Examiner; or

(b)to produce for examination by the Chief Examiner any documents or other things described in the summons that are in the person's possession or control; or

(c)both to give evidence and produce for examination any documents or other things described in the summons that are in the person's possession or control.

(9)A summons, other than a summons referred to in subsection (10), must be served a reasonable time before the date on which the person is required to attend.

(10)The Supreme Court may issue a summons that requires the immediate attendance before the Chief Examiner of the person to whom it is directed if the Court reasonably believes 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 an offender; or

(d)serious prejudice to the conduct of the investigation of the organised crime offence.

(11)A summons directed to a person must state—

s. 14

(a)the general nature of the matters about which the person is to be questioned, unless the Supreme Court considers that this disclosure would prejudice the conduct of the investigation of the organised crime offence; and

(b)that a coercive powers order has been made under this Act by the Supreme Court and the date on which the order was made.

(12)A summons—

(a)must be in the prescribed form; and

(b)must include a statement that if the person summoned is under the age of 16 years at the date of issue of the summons the person need not comply with the summons but must—

(i)if the Supreme Court issued the summons, give notice in writing and proof of age to the Supreme Court and the Chief Examiner; or

(ii)if the Chief Examiner issued the summons, give notice in writing and proof of age to the Chief Examiner.

(13)The applicant must cause a copy of a summons to be given to the Chief Examiner as soon as practicable after the summons is issued.

15Chief Examiner may issue witness summons

s. 15

(1)This section applies if a coercive powers order is in force in respect of an organised crime offence.

(2)The Chief Examiner may issue the following witness summonses on his or her own motion or on the application of a member of the police force—

(a)a summons to attend an examination before the Chief Examiner to give evidence;

(b)a summons to attend at a specified time and place to produce specified documents or other things to the Chief Examiner;

(c)a summons to attend an examination before the Chief Examiner to give evidence and produce specified documents or other things.

(3)The Chief Examiner may determine the procedure for making an application for the issue of a summons under this section.

(4)The Chief Examiner may issue a summons directed to a person, other than a person referred to in subsection (5), if the Chief Examiner is satisfied that it is reasonable in the circumstances to do so, after consideration of—