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Public Interest Monitor Act 2011 No. 72 of 2011

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 23 Object 24 Definitions 35 Act binds the Crown 4

PART 2—APPOINTMENT OF PUBLIC INTEREST MONITOR 5

6 Principal Public Interest Monitor 57 Deputy Public Interest Monitors 58 Eligibility for appointment 59 Terms and conditions of appointment 510 Remuneration 611 Acting Principal Public Interest Monitor 612 Vacancy and resignation 713 Suspension and removal from office 8

PART 3—FUNCTIONS OF A PUBLIC INTEREST MONITOR 9

14 Functions of Public Interest Monitor 915 Guidelines 916 Conflict of interest 917 Confidentiality 10

PART 4—GENERAL 12

18 Freedom of Information Act 1982 not to apply to a Public Interest Monitor 12

19 Annual report 1220 Minister to lay annual reports before each House of the

Parliament 1321 Regulations 14

1

PART 5—MAJOR CRIME (INVESTIGATIVE POWERS) ACT 2004 16

22 Definitions 1623 New Part 1A inserted 16

PART 1A—ROLE OF PUBLIC INTEREST MONITOR 16

3A Application of Part 1A 163B Information to be given to Public Interest Monitor 163C Full disclosure to Public Interest Monitor 173D Role of Public Interest Monitor 17

24 Application for coercive powers order 1925 Determination of application 1926 Coercive powers order 1927 Extension or variation of coercive powers order 1928 Discontinuance of use of powers under coercive powers order 1929 Notice of revocation of coercive powers order 20

PART 6—AMENDMENT OF SURVEILLANCE DEVICES ACT 1999 21

30 Definition 2131 New Division 1AA inserted in Part 4 21

Division 1AA—Role of Public Interest Monitor 21

12A Application of Division 1AA 2112B Information to be given to Public Interest Monitor 2212C Full disclosure to Public Interest Monitor 2212D Role of Public Interest Monitor 22

32 Application for surveillance device warrant 2333 Determining the application 2434 Revocation of surveillance devices warrant 2435 Application for retrieval warrant 2436 Determining the application 2437 Revocation of retrieval warrant 2538 Application for assistance order 2539 Determining an application for an assistance order 2540 Application for approval of exercise of powers under

emergency authorisation 2541 Determining an application for approval of emergency

authorisation 2642 Report to judge or magistrate 26

PART 7—AMENDMENT OF TELECOMMUNICATIONS (INTERCEPTION) (STATE PROVISIONS) ACT 1988 28

43 New Part 1A inserted 28

PART 1A—FUNCTIONS OF PUBLIC INTEREST MONITOR 28

4 Application of Part 1A 284A Public Interest Monitor must be notified 284B Full disclosure to Public Interest Monitor 294C Public Interest Monitor to be given further information 294D Role of Public Interest Monitor 294E Confidentiality provisions do not apply 30

PART 8—AMENDMENT OF TERRORISM (COMMUNITY PROTECTION) ACT 2003 32

44 New Part 1A inserted 32

PART 1A—PUBLIC INTEREST MONITOR 32

4C Application of Part 1A 324D Information to be given to Public Interest Monitor 324E Full disclosure to Public Interest Monitor 334F Role of Public Interest Monitor 33

45 New section 7A inserted 347A Notice to Public Interest Monitor of application 34

46 Determining the application for a covert search warrant 3547 New section 13DA inserted 35

13DA Public Interest Monitor to be notified of application 3548 Preventative detention orders 3549 Extension of preventative detention order 3650 Prohibited contact orders 3651 Revocation or variation of preventative detention orders and

prohibited contact orders 37

PART 9—AMENDMENT OF OTHER ACTS AND REPEAL OF AMENDING PROVISIONS 38

52 Amendment of Ombudsman Act 1973 3853 Amendment of Whistleblowers Protection Act 2001 3854 Repeal of amending provisions 38

═══════════════

ENDNOTES 39

Public Interest Monitor Act 2011†

No. 72 of 2011

[Assented to 6 December 2011]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are—

(a) to establish the offices of Principal Public Interest Monitor and Deputy Public Interest Monitors; and

(b) to confer functions on those Public Interest Monitors under this Act and under—

(i) the Major Crime (Investigative Powers) Act 2004; and

Victoria

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(ii) the Surveillance Devices Act 1999; and

(iii) the Telecommunications (Interception) (State Provisions) Act 1988; and

(iv) the Terrorism (Community Protection) Act 2003.

2 Commencement

This Act comes into operation on a day or days to be proclaimed.

3 Object

The object of this Act is to provide further safeguards for applications for the following—

(a) coercive powers orders;

(b) surveillance device warrants;

(c) retrieval warrants;

(d) assistance orders;

(e) approval of emergency authorisations;

(f) telecommunications interception warrants;

(g) covert search warrants;

(h) preventative detention orders;

(i) prohibited contact orders;

(j) an extension, variation, renewal or revocation of an order, warrant or approval referred to in paragraphs (a) to (i).

Section Page

2

s. 2

4 Definitions

In this Act—

assistance order has the same meaning as it has in the Surveillance Devices Act 1999;

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

coercive powers order has the same meaning as it has in the Major Crime (Investigative Powers) Act 2004;

covert search warrant means a covert search warrant under Part 2 of the Terrorism (Community Protection) Act 2003;

Deputy Public Interest Monitor means a Deputy Public Interest Monitor appointed under section 7;

emergency authorisation has the same meaning as it has in the Surveillance Devices Act 1999;

preventative detention order has the same meaning as it has in Part 2A of the Terrorism (Community Protection) Act 2003;

prohibited contact order has the same meaning as it has in Part 2A of the Terrorism (Community Protection) Act 2003;

Principal Public Interest Monitor means the Principal Public Interest Monitor appointed under section 6;

Public Interest Monitor means—

(a) the Principal Public Interest Monitor; or

(b) a Deputy Public Interest Monitor;

Section Page

3

s. 4

relevant application means an application for—

(a) a coercive powers order;

(b) a surveillance device warrant;

(c) a retrieval warrant;

(d) an assistance order;

(e) an approval of an emergency authorisation;

(f) a telecommunications interception warrant;

(g) a covert search warrant;

(h) a preventative detention order;

(i) a prohibited contact order;

(j) an extension, variation, renewal or revocation of an order, warrant or approval referred to in paragraphs (a) to (i);

retrieval warrant has the same meaning as it has in the Surveillance Devices Act 1999;

surveillance device warrant has the same meaning as it has in the Surveillance Devices Act 1999;

telecommunications interception warrant has the same meaning as warrant has in the Telecommunications (Interception) (State Provisions) Act 1988.

5 Act binds the Crown

This Act binds the Crown—

(a) in right of the State of Victoria; and

(b) to the extent that the legislative power of the Parliament permits, in all its other capacities.

__________________

Section Page

4

s. 5

PART 2—APPOINTMENT OF PUBLIC INTEREST MONITOR

6 Principal Public Interest Monitor

The Governor in Council may appoint a person as the Principal Public Interest Monitor.

7 Deputy Public Interest Monitors

The Governor in Council may appoint one or more persons as Deputy Public Interest Monitors.

8 Eligibility for appointment

(1) A Public Interest Monitor must be an Australian legal practitioner.

(2) A person who is a member of the Parliament of Victoria or of the Commonwealth or of another State or Territory is not eligible to be appointed as a Public Interest Monitor.

(3) A Public Interest Monitor must not be any of the following—

(a) the Director of Public Prosecutions;

(b) the Solicitor for Public Prosecutions;

(c) any person appointed under the Public Prosecutions Act 1994;

(d) a person who is employed in, or seconded to, the Office of Public Prosecutions;

(e) a person who—

(i) is eligible to make a relevant application; or

(ii) is employed in or by, or seconded to, a body that is eligible to make a relevant application.

9 Terms and conditions of appointment

s. 6Part 9—Amendment of Other Acts and Repeal of Amending Provisions

Public Interest Monitor Act 2011No. 72 of 2011

5

(1) The appointment of a Public Interest Monitor is to be for the period, not exceeding 3 years, set out in the instrument of appointment.

(2) The appointment of a Public Interest Monitor is to be on the terms and conditions set out in the instrument of appointment.

(3) A Public Interest Monitor may be reappointed.

(4) The Public Administration Act 2004 does not apply to a Public Interest Monitor.

10 Remuneration

(1) A Public Interest Monitor is entitled to be paid the remuneration and allowances that are determined from time to time in respect of that Public Interest Monitor by the Governor in Council.

(2) The remuneration of a Public Interest Monitor cannot be reduced during his or her period of appointment, unless he or she consents to the reduction.

11 Acting Principal Public Interest Monitor

(1) The Governor in Council may appoint a person qualified to be appointed as a Public Interest Monitor to act as the Principal Public Interest Monitor—

(a) during a vacancy in the office of the Principal Public Interest Monitor; or

(b) during any period, or all periods, when the Principal Public Interest Monitor is absent from duty or from the State or, for another reason, is unable to perform the duties of the office.

(2) The appointment is to be for a period, not exceeding 6 months, set out in the instrument of appointment.



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(3) The appointment is to be on the same terms and conditions as the Principal Public Interest Monitor.

12 Vacancy and resignation

A Public Interest Monitor ceases to hold office if he or she—

(a) resigns by notice in writing delivered to the Governor; or

(b) becomes an insolvent under administration; or

(c) is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or

(d) nominates for election for the Parliament of Victoria or of the Commonwealth or of another State or a Territory of the Commonwealth; or

(e) is appointed as—

(i) the Director of Public Prosecutions; or

(ii) the Solicitor for Public Prosecutions; or

(f) is appointed under the Public Prosecutions Act 1994; or

(g) is employed in, or seconded to, the Office of Public Prosecutions; or

(h) becomes a person who—

(i) is eligible to make a relevant application; or

(ii) is employed in or by, or seconded to, a body that is eligible to make a relevant application; or



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(i) ceases to be an Australian legal practitioner; or

(j) is removed from office under section 13.

13 Suspension and removal from office

(1) The Governor in Council may suspend or remove the Principal Public Interest Monitor or a Deputy Public Interest Monitor from office on any ground on which the Governor in Council is satisfied that the Public Interest Monitor is unfit to hold office.

(2) If the Principal Public Interest Monitor or a Deputy Public Interest Monitor is suspended from office under subsection (1), he or she is taken not to be the Principal Public Interest Monitor or a Deputy Public Interest Monitor (as the case requires) during the period of suspension.

__________________



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PART 3—FUNCTIONS OF A PUBLIC INTEREST MONITOR

14 Functions of Public Interest Monitor

A Public Interest Monitor has the following functions—

(a) to appear at any hearing of a relevant application to test the content and sufficiency of the information relied on and the circumstances of the application; and

(b) for the purpose of testing the content and sufficiency of the information relied on and the circumstances of the application—

(i) to ask questions of any person giving information in relation to the application; and

(ii) to make submissions as to the appropriateness of granting the application; and

(c) any other functions conferred on a Public Interest Monitor under any Act or law.

15 Guidelines

The Principal Public Interest Monitor may issue guidelines about how a Deputy Public Interest Monitor is to perform his or her functions.

16 Conflict of interest

(1) A Public Interest Monitor must avoid any actual or potential conflict of interest with his or her role as a Public Interest Monitor.

(2) A Public Interest Monitor may declare that he or she is unable to perform the functions of a Public Interest Monitor in relation to a matter if the Public Interest Monitor believes that he or she has an actual or potential conflict of interest in relation to that matter.



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(3) If the Principal Public Interest Monitor makes a declaration under subsection (2), he or she may arrange for a Deputy Public Interest Monitor to perform the functions of the Principal Public Interest Monitor in relation to the matter.

(4) If a Deputy Public Interest Monitor makes a declaration under subsection (2), the Principal Public Interest Monitor may arrange for another Public Interest Monitor to perform the functions of the Deputy Public Interest Monitor in relation to the matter.

17 Confidentiality

(1) A person who is or was a Public Interest Monitor must not disclose information obtained or that came to the person's knowledge in the course of or as a result of his or her role, or the performance of his or her functions, as a Public Interest Monitor.

Penalty: 240 penalty units or imprisonment for 2 years or both.

(2) Subject to subsection (3), subsection (1) does not apply to disclosure of information by a Public Interest Monitor in the performance of his or her functions as a Public Interest Monitor.

(3) A Public Interest Monitor must not disclose information obtained or that came to his or her knowledge in the course of or as a result of performing his or her functions as a Public Interest Monitor to another Public Interest Monitor except to the extent necessary—

(a) to enable a Deputy Public Interest Monitor to discuss his or her functions with the Principal Public Interest Monitor and for the Principal Public Interest Monitor to discuss his or her functions with a Deputy Public Interest Monitor; or



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(b) to enable a Deputy Public Interest Monitor to discuss his or her functions with another Deputy Public Interest Monitor if the Principal Public Interest Monitor is unavailable; or

(c) for the purposes of another Public Interest Monitor undertaking the functions of the Public Interest Monitor if the Public Interest Monitor is unable to perform those functions; or

(d) to enable the Principal Public Interest Monitor to prepare an annual report under this Act.

(4) A person who is or was a Public Interest Monitor is not compellable to disclose information obtained, or that came to the person's knowledge, in the course of or as a result of performing his or her functions as a Public Interest Monitor in any proceeding before a court, board, commission or tribunal.

__________________



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PART 4—GENERAL

18 Freedom of Information Act 1982 not to apply to a Public Interest Monitor

A Public Interest Monitor is not, and cannot be declared to be, a prescribed authority for the purposes of the Freedom of Information Act 1982.

19 Annual report

(1) The Principal Public Interest Monitor must give the Minister a report on the performance of the functions of the Public Interest Monitors during each financial year.

(2) A report for a financial year must be given as soon as practicable, but within 4 months after the end of the financial year.

(3) A report for a financial year must include—

(a) the total number of relevant applications in respect of which a Public Interest Monitor appeared at a hearing during that year; and

(b) the number of relevant applications by each law enforcement agency in respect of which a Public Interest Monitor appeared at a hearing during that year; and

(c) the number of orders made, warrants issued or authorisations approved on relevant applications by each law enforcement agency during that year; and

(d) the number of relevant applications made by telephone during that year; and

(e) the number of relevant applications by each law enforcement agency that were refused or withdrawn during that year.



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(4) A report must not contain information that—

(a) discloses or may lead to the disclosure of the identity of any person involved in an investigation relating to a relevant application made by a law enforcement agency; or

(b) indicates that a particular investigation has been, is being, or is to be conducted.

(5) In this section—

law enforcement agency means a person or body who or which is eligible to make a relevant application.

20 Minister to lay annual reports before each House of the Parliament

(1) The Minister must cause the report to be laid before each House of the Parliament within 14 sitting days of the House after receiving the report.

(2) If the Minister proposes to transmit the report to the Parliament on a day on which neither House of the Parliament is actually sitting, the Minister must—

(a) give a copy of the report to the clerk of each House of the Parliament; and

(b) publish the report on a Government Internet site as soon as practicable after giving it to the clerks.

(3) The clerk of each House must—

(a) notify each member of the House of the receipt of the report under subsection (2)(a) on the same day that the clerk receives that report; and



13

(b) make copies of the report available to each member of the House as soon as practicable after the report is received under subsection (2)(a); and

(c) cause the report to be laid before the House on the next sitting day of the House.

(4) A report that is given to the clerks under subsection (2)(a) is taken to have been published by order, or under the authority, of the Houses of Parliament.

(5) The publication of a report by the Minister under subsection (2)(b) is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and any other enactment or rule of law relating to the publication of the proceedings of Parliament apply to and in relation to the publication of the report as if it were a report to which those sections applied and had been published by the Government Printer under the authority of Parliament.

21 Regulations

The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary or convenient to be prescribed to give effect to this Act including regulations relating to the following—

(a) the requirements for transmission, disposal and storage of documents or information that a Public Interest Monitor receives in performing his or her functions;

(b) the notifications required to be given to a Public Interest Monitor under—

(i) the Major Crime (Investigative Powers) Act 2004; and



14

(ii) the Surveillance Devices Act 1999; and

(iii) the Telecommunications (Interception) (State Provisions) Act 1988; and

(iv) the Terrorism (Community Protection) Act 2003.

__________________



15

PART 5—MAJOR CRIME (INVESTIGATIVE POWERS) ACT 2004

22 Definitionss. 22

See:Act No.79/2004.Reprint No. 2as at2 April 2009and amendingAct Nos79/2004, 3/2009, 69/2009 and 87/2009.LawToday:www.legislation.vic.gov.au

In section 3 of the Major Crime (Investigative Powers) Act 2004, insert the following definition—

"Public Interest Monitor means a Public Interest Monitor within the meaning of the Public Interest Monitor Act 2011;".

23 New Part 1A inserted

After Part 1 of the Major Crime (Investigative Powers) Act 2004 insert—

"PART 1A—ROLE OF PUBLIC INTEREST MONITOR

3A Application of Part 1A

This Part applies if a person is required under this Act to give notice to the Public Interest Monitor of an application for—

Part 9—Amendment of Other Acts and Repeal of Amending Provisions


16

(a) a coercive powers order; or

(b) an extension, variation or revocation of a coercive powers order.

3B Information to be given to Public Interest Monitor

(1) If the application is made in writing, the applicant must give the Public Interest Monitor a copy of the application and any affidavit required to be given to the Supreme Court in support of the application.

(2) If further information is required under section 5(5) to be given to the Supreme Court, the applicant must also give the Public Interest Monitor that information.

(3) If the application is to be made by telephone, the applicant must give the Public Interest Monitor the information required to be given to the Supreme Court judge on a telephone application.

(4) An obligation to maintain secrecy in relation to, or that otherwise restricts, the provision of information to the Public Interest Monitor, whether imposed under an Act or by a rule of law, does not apply to the provision of information under this Part.

3C Full disclosure to Public Interest Monitor

(1) The applicant must fully disclose to the Public Interest Monitor all matters of which the applicant is aware that are adverse to the application.

(2) The applicant must not knowingly or recklessly fail to comply with subsection (1).



17

Penalty: 60 penalty units or imprisonment for 6 months or both.

3D Role of Public Interest Monitor

(1) The Public Interest Monitor is entitled—

(a) to appear at any hearing of the application to test the content and sufficiency of the information relied on and the circumstances of the application; and



(ii) to make submissions to the Supreme Court judge as to the appropriateness of granting the application.

(2) Without limiting subsection (1), the Public Interest Monitor is entitled to make submissions to the Supreme Court in the presence of the judge or by phone, fax, email or any other reasonable way.

(3) If a Public Interest Monitor is not reasonably able to be contacted for an application to which section 5(6) applies—

(a) the application may proceed without a Public Interest Monitor being notified; and

(b) a Public Interest Monitor must be notified as soon as possible and given any information requested by the Public Interest Monitor that the Public Interest



18

Monitor would have been entitled to obtain for or during the application.".

(4) As soon as practicable after the application is determined, the Public Interest Monitor must return to the applicant any documents given by the applicant to the Public Interest Monitor under section 3B or 3C or subsection (3) of this section in relation to the application.

__________________".

24 Application for coercive powers order

After section 5(5) of the Major Crime (Investigative Powers) Act 2004 insert—

"(5A) The applicant must notify a Public Interest Monitor of the application in accordance with the regulations under the Public Interest Monitor Act 2011.".

25 Determination of application

At the end of section 8 of the Major Crime (Investigative Powers) Act 2004 insert—

"(2) In making a coercive powers order, the Supreme Court must have regard to any submissions made by a Public Interest Monitor.".

26 Coercive powers order

In section 9(1) of the Major Crime (Investigative Powers) Act 2004 for "and (ii)" substitute ", (ii) and (iii)".

27 Extension or variation of coercive powers order




19

"(3A) The Supreme Court must have regard to any submissions made by a Public Interest Monitor before making a decision under subsection (4)".

28 Discontinuance of use of powers under coercive powers order


"(2A) The Chief Commissioner or delegate must give a copy of a notice under subsection (1) to a Public Interest Monitor.".

29 Notice of revocation of coercive powers order

After section 12C(a) of the Major Crime (Investigative Powers) Act 2004 insert—

"(ab) cause notice of the revocation to be given to a Public Interest Monitor in accordance with the regulations under the Public Interest Monitor Act 2011; and".

__________________



20

PART 6—AMENDMENT OF SURVEILLANCE DEVICES ACT 1999

30 Definitions. 30

See:Act No.21/1999.Reprint No. 2as at27 May 2010.LawToday:www.legislation.vic.gov.au

In section 3(1) of the Surveillance Devices Act 1999 insert the following definitions—

"Public Interest Monitor means a Public Interest Monitor within the meaning of the Public Interest Monitor Act 2011;

relevant application means an application referred to in section 12A;".

31 New Division 1AA inserted in Part 4

Before Division 1 of Part 4 of the Surveillance Devices Act 1999 insert—

"Division 1AA—Role of Public Interest Monitor

12A Application of Division 1AA

This Division applies if a person is required under this Part to give notice to the Public Interest Monitor of an application for—

(a) a surveillance device warrant; or

(b) an extension or variation of a surveillance device warrant; or

(c) a revocation of a surveillance device warrant; or



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(d) a retrieval warrant; or

(e) a revocation of a retrieval warrant; or

(f) an assistance order; or

(g) approval of an emergency authorisation.

12B Information to be given to Public Interest Monitor

(1) If the application is made in writing, the applicant must give the Public Interest Monitor a copy of the application and any affidavit required to be given to the Supreme Court judge or a magistrate in support of the application.

(2) If the application is to be made by telephone, the applicant must give the Public Interest Monitor the information required to be given to the Supreme Court judge or a magistrate on a telephone application.

(3) An obligation to maintain secrecy in relation to, or that otherwise restricts, the provision of information to the Public Interest Monitor, whether imposed under an Act or by a rule of law, does not apply to the provision of information under this Division.

12C Full disclosure to Public Interest Monitor




22


Penalty: Level 9 imprisonment (6 months maximum) or a level 9 fine (60 penalty units) or both.



(a) to appear at any hearing of a relevant application to test the content and sufficiency of the information relied on and the circumstances of the application; and



(ii) to make submissions to the Supreme Court judge or magistrate as to the appropriateness of granting the application.

(2) Without limiting subsection (1), the Public Interest Monitor is entitled to make submissions to the Supreme Court judge or magistrate in the presence of the judge or magistrate or by phone, fax, email or any other reasonable way.

(3) As soon as practicable after the application is determined, the Public Interest Monitor must return to the applicant any documents given by the applicant to the Public Interest



23

Monitor under section 12B or 12C in relation to the application.".

32 Application for surveillance device warrant

After section 15(6) of the Surveillance Devices Act 1999 insert—


33 Determining the application

(1) In section 17(2)(e) of the Surveillance Devices Act 1999 for "offence." substitute "offence; and".

(2) After section 17(2)(e) of the Surveillance Devices Act 1999 insert—

"(f) any submissions made by a Public Interest Monitor.".

34 Revocation of surveillance devices warrant

After section 20A(3) of the Surveillance Devices Act 1999 insert—

"(4) A judge or magistrate who revokes a warrant must give notice of the revocation to a Public Interest Monitor in accordance with the regulations under the Public Interest Monitor Act 2011.".

35 Application for retrieval warrant

After section 20C(6) of the Surveillance Devices Act 1999 insert—

"(6A) The applicant must notify a Public Interest Monitor of the application in accordance

s. 32s. 33Part 9—Amendment of Other Acts and Repeal of Amending Provisions


24

with the regulations under the Public Interest Monitor Act 2011.".

36 Determining the application

(1) In section 20E(2)(b) of the Surveillance Devices Act 1999 for "retrieved." substitute "retrieved; and".

(2) After section 20E(2)(b) of the Surveillance Devices Act 1999 insert—

"(c) any submissions made by a Public Interest Monitor.".

37 Revocation of retrieval warrant

After section 20H(4) of the Surveillance Devices Act 1999 insert—

"(5) Notice of the revocation of a retrieval warrant must be given to a Public Interest Monitor in accordance with the regulations under the Public Interest Monitor Act 2011.".

38 Application for assistance order

(1) After section 21(2) of the Surveillance Devices Act 1999 insert—


(2) In section 21(3) of the Surveillance Devices Act 1999, after "person" insert "except a Public Interest Monitor".

39 Determining an application for an assistance order



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(1) In section 22(2)(b) of the Surveillance Devices Act 1999 for "sought." substitute "sought; and".

(2) After section 22(2)(b) of the Surveillance Devices Act 1999 insert—

"(c) any submissions made by a Public Interest Monitor.".

40 Application for approval of exercise of powers under emergency authorisation

After section 28(2) of the Surveillance Devices Act 1999 insert—

"(2A) The applicant must give the Public Interest Monitor notice of the application in accordance with the regulations under the Public Interest Monitor Act 2011.".

41 Determining an application for approval of emergency authorisation

(1) In section 29(1)(f) of the Surveillance Devices Act 1999 for "warrant." substitute "warrant; and".

(2) After section 29(1)(f) of the Surveillance Devices Act 1999 insert—

"(g) any submissions made by a Public Interest Monitor.".

(3) In section 29(2)(c) of the Surveillance Devices Act 1999 for "warrant." substitute "warrant; and".

(4) After section 29(2)(c) of the Surveillance Devices Act 1999 insert—

"(d) any submissions made by a Public Interest Monitor.".

42 Report to judge or magistrate

(1) For section 30K(2)(d) of the Surveillance Devices Act 1999 substitute—



26

"(d) state whether the chief officer has revoked the warrant under section 20A(2) and, if so state—

(i) whether a Public Interest Monitor was notified of the revocation; and

(ii) the reasons why the device was no longer required.".

(2) For section 30K(3)(e) of the Surveillance Devices Act 1999 substitute—

"(e) state whether the chief officer has revoked the warrant under section 20H(3) and, if so state—

(i) whether a Public Interest Monitor was notified of the revocation; and

(ii) the reasons for the revocation.".

(3) After section 30K(4) of the Surveillance Devices Act 1999 insert—

"(5) The judge or magistrate who receives a report may ask a Public Interest Monitor to make submissions as to how the information or record referred to in subsection (4) should be dealt with.

(6) On receiving the request, the Public Interest Monitor is entitled to make submissions to the judge or magistrate in the presence of the judge or magistrate or by phone, fax, email or any other reasonable way.".

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PART 7—AMENDMENT OF TELECOMMUNICATIONS (INTERCEPTION) (STATE PROVISIONS) ACT 1988

43 New Part 1A inserteds. 43

See:Act No.46/1998.Reprint No. 2as at7 May 2009and amendingAct Nos69/2009 and 87/2009.LawToday:www.legislation.vic.gov.au

After Part 1 of the Telecommunications (Interception) (State Provisions) Act 1988 insert—

"PART 1A—FUNCTIONS OF PUBLIC INTEREST MONITOR

4 Application of Part 1A

This Part applies if an officer of the Police Force or the Office of Police Integrity intends to apply under the Commonwealth Act for a Part 2-5 warrant or a renewal of a Part 2-5 warrant.

4A Public Interest Monitor must be notified

(1) The officer must notify a Public Interest Monitor of the application in accordance with the regulations made under the Public Interest Monitor Act 2011.

(2) If the officer intends to make the application in writing, the officer must give the Public Interest Monitor—

(a) a copy of the written application; and



28

(b) a copy of the affidavit required under section 42 of the Commonwealth Act to accompany the written application.

(3) If the officer intends to make the application by telephone, the officer must give the Public Interest Monitor the information required under section 43 of the Commonwealth Act to be given on a telephone application.

4B Full disclosure to Public Interest Monitor

(1) The officer must fully disclose to the Public Interest Monitor all matters of which the officer is aware that are adverse to the issuing of the warrant.

(2) The officer must not knowingly or recklessly fail to comply with subsection (1).

Penalty: 60 penalty units or imprisonment for 6 months or both.

4C Public Interest Monitor to be given further information

If further information is required under section 44 of the Commonwealth Act to be given to the issuing authority in connection with the application, the officer must also give the Public Interest Monitor the information.



(a) to appear at the hearing of the application to test the content and sufficiency of the information relied on and the circumstances of the application; and



29


(i) to ask questions of any person giving information to the issuing authority; and

(ii) to make submissions to the issuing authority about the appropriateness of issuing the warrant; and

(c) to make submissions to the issuing authority about the following matters—

(i) in relation to an application for a warrant in relation to a telecommunications service—the matters referred to in section 46(2)(a) to (f) of the Commonwealth Act;

(ii) in relation to an application for a warrant in relation to a person—the matters referred to in section 46A(2)(a) to (f) of the Commonwealth Act.

(2) Without limiting subsection (1), the Public Interest Monitor is entitled to make submissions to the issuing authority in the presence of the issuing authority, or by phone, fax, email or any other reasonable way.

(3) As soon as practicable after the application is heard, the Public Interest Monitor must return to the officer any documents



30

given by the officer to the Public Interest Monitor under section 4A, 4B or 4C in relation to the application.

4E Confidentiality provisions do not apply

(1) This section applies to—

(a) an officer of the Police Force or the Office of Police Integrity; and

(b) a person mentioned in section 4D(1)(b)(i).

(2) An obligation to maintain secrecy in relation to, or that otherwise restricts, the disclosure of information or the production of documents in the possession of the person, whether imposed under an Act or by a rule of law, does not apply to the disclosure of information or the production of a document under this Part.

__________________".

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PART 8—AMENDMENT OF TERRORISM (COMMUNITY PROTECTION) ACT 2003

44 New Part 1A inserteds. 44

See:Act No.7/2003.Reprint No. 2as at7 May 2009and amendingAct Nos46/2008, 25/2009, 68/2009, 69/2009 and 33/2011.LawToday:www.legislation.vic.gov.au

After Part 1 of the Terrorism (Community Protection) Act 2003 insert—

"PART 1A—PUBLIC INTEREST MONITOR

4C Application of Part 1A

This Part applies if a person is required under this Act to give notice to a Public Interest Monitor of an application for—

(a) a covert search warrant; or

(b) a preventative detention order; or

(c) an extension of a preventative detention order; or

(d) a variation or revocation of a preventative detention order; or

(e) a prohibited contact order; or

(f) a variation or revocation of a prohibited contact order.

4D Information to be given to Public Interest Monitor



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(1) If the application is made in writing, the applicant must give the Public Interest Monitor a copy of the application and any affidavit required to be given to the Supreme Court in support of the application.

(2) If the application is to be made by telephone, the applicant must give the Public Interest Monitor the information required to be given to the Supreme Court on a telephone application.

(3) An obligation to maintain secrecy in relation to, or that otherwise restricts, the provision of information to the Public Interest Monitor, whether imposed under an Act or by a rule of law, does not apply to the provision of information under this Part.

4E Full disclosure to Public Interest Monitor



Penalty: Level 9 imprisonment (6 months maximum) or a level 9 fine (60 penalty units maximum) or both.

4F Role of Public Interest Monitor


(a) to appear at the hearing of the application to test the content and sufficiency of the information relied on and the circumstances of the application; and



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(ii) to make submissions to the Supreme Court about the appropriateness of granting the application.

(2) Without limiting subsection (1), the Public Interest Monitor is entitled to make submissions to the Supreme Court in the presence of the judge or by phone, fax, email or any other reasonable way.

(3) If a Public Interest Monitor is not reasonably able to be contacted for an application (other than an application for a covert search warrant)—

(a) the application may proceed without a Public Interest Monitor being notified; and

(b) a Public Interest Monitor must be notified as soon as possible and given any information requested by the Public Interest Monitor that the Public Interest Monitor would have been entitled to obtain for or during the application.

(4) As soon as practicable after the application is heard, the Public Interest Monitor must return to the applicant any documents given by the applicant to the Public Interest Monitor under section 4D or 4E or subsection (3) of this section in relation to the applications.



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__________________".

45 New section 7A inserted

After section 7 of the Terrorism (Community Protection) Act 2003 insert—

"7A Notice to Public Interest Monitor of application

The applicant for a warrant under this Part must notify a Public Interest Monitor of the application in accordance with the regulations under the Public Interest Monitor Act 2011.".

46 Determining the application for a covert search warrant

(1) In section 8(2)(d) of the Terrorism (Community Protection) Act 2003 for "subject." substitute "subject; and".

(2) After section 8(2)(d) of the Terrorism (Community Protection) Act 2003 insert—

"(e) any submissions made by a Public Interest Monitor.".

47 New section 13DA inserted

After section 13D of the Terrorism (Community Protection) Act 2003 insert—

"13DA Public Interest Monitor to be notified of application

The applicant for a preventative detention order must notify a Public Interest Monitor of the application in accordance with the regulations under the Public Interest Monitor Act 2011.".

48 Preventative detention orders

(1) After section 13E(1) of the Terrorism (Community Protection) Act 2003 insert—



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"(1A) In making an order under this section, the Supreme Court must have regard to any submissions made by the Public Interest Monitor.".

(2) After section 13E(5) of the Terrorism (Community Protection) Act 2003 insert—

"(5A) The applicant must notify a Public Interest Monitor of the resumed hearing in accordance with the regulations under the Public Interest Monitor Act 2011.".

49 Extension of preventative detention order

(1) After section 13I(5) of the Terrorism (Community Protection) Act 2003 insert—

"(5A) The applicant must notify a Public Interest Monitor of the application in accordance with the regulations under the Public Interest Monitor Act 2011.

(5B) In determining whether an order should be made under this section, the Supreme Court must have regard to any submissions made by the Public Interest Monitor.".

50 Prohibited contact orders

(1) After section 13L(4) of the Terrorism (Community Protection) Act 2003 insert—


(4B) In determining whether a prohibited contact order should be made under this section, the Supreme Court must have regard to any submissions made by a Public Interest Monitor.".



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(2) After section 13M(4) of the Terrorism (Community Protection) Act 2003 insert—


(4B) In determining whether a prohibited contact order should be made under this section, the Supreme Court must have regard to any submissions made by a Public Interest Monitor.".

51 Revocation or variation of preventative detention orders and prohibited contact orders

After section 13O(7) of the Terrorism (Community Protection) Act 2003 insert—

"(7A) The applicant must notify a Public Interest Monitor of an application under this section in accordance with the regulations under the Public Interest Monitor Act 2011.

(7B) In determining whether a preventative detention order or a prohibited contact order should be revoked or varied under this section, the Supreme Court must have regard to any submissions made by a Public Interest Monitor.".

__________________



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PART 9—AMENDMENT OF OTHER ACTS AND REPEAL OF AMENDING PROVISIONS

52 Amendment of Ombudsman Act 1973

After section 13(3)(ba) of the Ombudsman Act 1973 insert—

"(bb) by a Public Interest Monitor appointed under the Public Interest Monitor Act 2011;".

53 Amendment of Whistleblowers Protection Act 2001

After section 4(2)(g) of the Whistleblowers Protection Act 2001 insert—

"(ga) a Public Interest Monitor appointed under the Public Interest Monitor Act 2011;".

54 Repeal of amending provisions

Parts 5, 6, 7 and 8 and this Part are repealed on the day that is the first anniversary of the first day on which all of the provisions of this Act are in operation.

Note

The repeal of Part 5, 6, 7, 8 or 9 of this Act does not affect the continuing operation of the amendments made by that Part (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

Endnotes


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† Minister's second reading speech—

Legislative Assembly: 25 October 2011

Legislative Council: 10 November 2011

The long title for the Bill for this Act was "A Bill for an Act to establish a Principal Public Interest Monitor and Deputy Public Interest Monitors and to confer functions on those Public Interest Monitors under the Act and under the Major Crime (Investigative Powers) Act 2004, the Surveillance Devices Act 1999, the Telecommunications (Interception) (State Provisions) Act 1988 and the Terrorism (Community Protection) Act 2003, to amend other Acts and for other purposes."

public interest monitor act 2011 - ocpc.vic.gov.aufile/11-072a.docx · web view... the chief...

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