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Victorian Inspectorate Regulations 2013S.R. No. 6/2013

TABLE OF PROVISIONS

Regulation Page

PART 1—PRELIMINARY 1

1 Objectives 12 Authorising provisions 23 Commencement 24 Definition 2

PART 2—EXAMINATIONS 3

Division 1—Witnesses 3

5 Proof of age for persons under 16 years of age 36 Additional actions to be taken before questioning a witness or

requiring production of documents or things 3

Division 2—Fees and allowances payable to witnesses 4

7 Fees and allowances 48 Attendance allowance for expert witnesses 49 Attendance and general allowances for other witnesses 410 Meals and accommodation 511 Travelling expenses 612 Evidence of expenses 7

PART 3—PRESCRIBED FORMS 8

13 Form of confidentiality notices 814 Form of witness summons 815 Form of arrest warrant 816 Form of statement about right to apply for discharge from

custody 8

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PART 4—REPORTS ON COERCIVE QUESTIONING 9

17 Other information which the Victorian Inspectorate may require the IBAC to include in a report on coercive questioning 9

18 Other information which the Victorian Inspectorate may require the Auditor-General to include in a report on coercive questioning 11

19 Other information which the Victorian Inspectorate may require the Ombudsman to include in a report on coercive questioning 13

PART 5—RENUMBERING 15

20 Renumbering 15__________________

SCHEDULE—Forms 16

Form 1—Confidentiality Notice 16

Form 2—Witness Summons 20

Form 3—Arrest Warrant 22

Form 4—Statement of Your Right to Apply for Discharge from Custody 23

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STATUTORY RULES 2013

S.R. No. 6/2013

Victorian Inspectorate Act 2011

Victorian Inspectorate Regulations 2013

The Lieutenant-Governor as the Governor's deputy with the advice of the Executive Council makes the following Regulations:

Dated: 5 February 2013

Responsible Minister:

ANDREW McINTOSHMinister responsible for the establishment of an anti-corruption commission

MATTHEW McBEATHClerk of the Executive Council

PART 1—PRELIMINARY

1 Objectives

The objectives of these Regulations are to prescribe—

(a) additional actions to be taken by the Victorian Inspectorate before a witness is asked any questions or required to produce a document or thing at an examination;

(b) the manner of calculating the amount of assistance for witnesses attending an examination before the Victorian Inspectorate;

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(c) additional matters which the Victorian Inspectorate may require the IBAC, the Auditor-General or the Ombudsman to include in a written report on coercive questioning;

(d) other matters necessary to be prescribed under the Victorian Inspectorate Act 2011.

2 Authorising provisions

These Regulations are made under sections 41 and 42 of the Victorian Inspectorate Act 2011 and all other enabling powers.

3 Commencement

(1) These Regulations (except Part 5) come into operation on 10 February 2013.

(2) Part 5 comes into operation on the day on which Part 8 of the Integrity and Accountability Legislation Amendment Act 2012 comes into operation.

4 Definition

In these Regulations, the Act means the Victorian Inspectorate Act 2011.

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PART 2—EXAMINATIONS

Division 1—Witnesses

5 Proof of age for persons under 16 years of age

For the purposes of section 33G(2) of the Act, any of the following constitutes proof of age—

(a) an Australian birth certificate or certified birth extract;

(b) an Australian passport;

(c) a passport issued by another country;

(d) any other document or evidence that satisfies the Victorian Inspectorate about a person's age.

6 Additional actions to be taken before questioning a witness or requiring production of documents or things

For the purposes of section 33L(1)(e) of the Act, other prescribed actions that the Victorian Inspectorate must take before a witness is asked any questions or required to produce a document or thing are—

(a) if the witness is using an interpreter, to administer an oath or affirmation to the interpreter in accordance with section 22(2) of the Evidence Act 2008; and

(b) if the witness is accompanied by a parent, guardian or an independent person, to inform the parent, guardian or independent person of the witness' rights and obligations as specified in section 33F(4) of the Act.


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Division 2—Fees and allowances payable to witnesses

7 Fees and allowances

(1) The fees and allowances payable to witnesses at an examination are the fees and allowances set out in this Division.

(2) An amount under this Division must not be paid to—

(a) a person whose conduct is being investigated by the Victorian Inspectorate or, in the case of a body corporate, its representative; or

(b) a prisoner of the Crown.

8 Attendance allowance for expert witnesses

A witness who appears in an examination in a professional or expert capacity is entitled to reimbursement of the amount of income actually lost in attending the examination up to $300 per hour, but not exceeding $1500 per day.

9 Attendance and general allowances for other witnesses

(1) This regulation applies to a witness who appears in an examination other than in a professional or expert capacity.

(2) A witness who is engaged in an income-producing occupation and loses income because of his or her attendance at an examination is entitled to reimbursement of the amount of income actually lost up to $100 per hour (but not exceeding $600 per day).

(3) A witness who is not engaged in an income-producing occupation but who necessarily incurs expenditure (other than childcare expenses) because of his or her attendance at the examination that is not provided for in regulation 10 is entitled to reimbursement of the


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amount of the actual expenditure incurred, up to a maximum of $50 for each day.

(4) If a witness incurs childcare expenses because of his or her attendance at an examination, the witness is entitled to reimbursement of those reasonable childcare expenses incurred.

10 Meals and accommodation

(1) A witness who appears in an examination and who is necessarily absent from his or her home by reason of the attendance at the examination is entitled to be paid the following allowances for meals during his or her absence—

(a) if the witness is absent from his or her home overnight, the allowances in the following table—

Capital City Any other location

Breakfast $17.70 $15.75

Lunch $19.75 $18.05

Dinner $34.05 $31.15

Total $71.50 $64.95 ;

(b) if the witness is absent for a part of a day only, departing and returning the same day, the allowances in the following table—

Breakfast $12.40

Lunch $12.40

Dinner $16.50

Total $41.30 .


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(2) Despite subregulation (1), a witness is only entitled to be paid an allowance—

(a) for breakfast, if he or she is absent from his or her home by reason of attendance at the examination between 7.00 a.m. and 9.30 a.m.;

(b) for lunch, if he or she is absent from his or her home by reason of attendance at the examination between 12.00 p.m. and 3.00 p.m.;

(c) for dinner, if he or she is absent from his or her home by reason of attendance at the examination between 6.00 p.m. and 8.00 p.m.

(3) A witness who appears in an examination and who is necessarily absent from his or her home overnight because of his or her attendance at the examination is entitled to reimbursement of the cost incurred by him or her for alternative accommodation up to a maximum of $150.00 for each night of his or her absence.

11 Travelling expenses

(1) Subject to subregulation (2), a witness who is called to appear in an examination is entitled to be paid an allowance in respect of the expense of travelling to and from the examination equal to the cost of the most economical form of transport, having regard to—

(a) the distance required to be travelled;

(b) the time spent travelling;

(c) whether any income was lost when travelling;

(d) any other matter the Victorian Inspectorate considers relevant.


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(2) If the witness uses his or her own vehicle, he or she is entitled to be paid an allowance of 18 cents for each kilometre travelled to or from the examination.

12 Evidence of expenses

The Victorian Inspectorate must not approve the payment of an amount to a witness under this Division unless the witness produces to the satisfaction of the Victorian Inspectorate evidence—

(a) in the case of regulations 8 or 9(2), that as a result of attending the examination the witness has sustained, or will sustain, a loss of income, or of time that the witness would otherwise have devoted to an income-producing occupation;

(b) in the case of regulations 9(3) or (4) or 10(3), of the expenditure or cost incurred by the witness;

(c) in the case of regulation 10(1), that the witness was absent from his or her home by reason of attendance at an examination at the relevant times;

(d) in the case of regulation 11, of the cost of the most economical form of transport.

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PART 3—PRESCRIBED FORMS

13 Form of confidentiality notices

The prescribed form of a confidentiality notice is Form 1 in the Schedule.

14 Form of witness summons

The prescribed form of a witness summons is Form 2 in the Schedule.

15 Form of arrest warrant

The prescribed form of an arrest warrant is Form 3 in the Schedule.

16 Form of statement about right to apply for discharge from custody

The prescribed form of a written statement about applying to a bail justice for discharge from custody is Form 4 in the Schedule.

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PART 4—REPORTS ON COERCIVE QUESTIONING

17 Other information which the Victorian Inspectorate may require the IBAC to include in a report on coercive questioning

For the purposes of section 28G(1)(f) of the Act, the other prescribed matters are—

(a) the duration of the attendance of the person at the IBAC;

(b) whether the person was aged under 18 years and, if so, whether—

(i) the person was released because the IBAC became aware that the person was under the age of 16 years;

(ii) a parent or guardian of the person or an independent person was present during the person's attendance;

(iii) it reasonably appeared to the IBAC that the person exercised his or her right to confer with the parent, guardian or independent person, as the case may be, before giving any evidence, providing any information or producing any document or thing;

(c) whether the IBAC believed the person to have a mental impairment and, if so, whether—

(i) an independent person was present during the person's attendance;

(ii) it reasonably appeared to the IBAC that the person exercised his or her right to confer with the independent person before giving any evidence, providing


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any information or producing any document or thing;

(d) whether the person had legal or other representation and, if not, whether the person was—

(i) asked if he or she had sought legal advice;

(ii) given an opportunity to seek legal advice;

(e) whether the person appeared to the IBAC, either before or during the examination, to have sufficient knowledge of the English language to enable him or her to understand the questioning during the examination, and if not, what arrangements were made for the presence of a competent interpreter;

(f) whether, during the examination, the person made any claim of privilege or the application of a secrecy requirement and if so—

(i) the privilege or secrecy claimed;

(ii) the outcome of the consideration of the claim by the IBAC;

(iii) whether the IBAC withdrew the question, request for information or request for the production of a document or thing;

(iv) whether the IBAC has applied, or intends to apply, to the Supreme Court for the claim to be determined;

(g) whether the IBAC has issued a certificate of charge and an arrest warrant under the Independent Broad-based Anti-corruption Commission Act 2011 and if so—


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(i) details of the alleged contempt of the IBAC as set out in the certificate of charge;

(ii) whether the arrest warrant was executed;

(iii) if the arrest warrant was executed—

(A)how long the person was or

has been detained, to the extent known at the time the report is written;

(B) the place of detention;

(C) whether the person has applied to a bail justice for discharge from custody, and if so, whether the application has been determined and the outcome of the application;

(iv) details of the outcome of the contempt of the IBAC being dealt with by the Supreme Court, to the extent known at the time the report is written.

18 Other information which the Victorian Inspectorate may require the Auditor-General to include in a report on coercive questioning

For the purposes of section 28H(1)(f) of the Act, the other prescribed matters are—

(a) the duration of the attendance of the person at the Auditor-General;


(i) the person was released because the Auditor-General became aware that the person was under the age of 16 years;


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(iii) it reasonably appeared to the Auditor-General that the person exercised his or her right to confer with the parent, guardian or independent person, as the case may be, before giving any evidence, providing any information or producing any document or thing;

(c) whether the Auditor-General believed the person to have a mental impairment and, if so, whether—

(i) an independent person was present during the person's attendance;

(ii) it reasonably appeared to the Auditor-General that the person exercised his or her right to confer with the independent person before giving any evidence, providing any information or producing any document or thing;




(e) whether the person appeared to the Auditor-General, either before or during the examination, to have sufficient knowledge of the English language to enable him or her to understand the questioning during the examination and, if not, what arrangements


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were made for the presence of a competent interpreter.

19 Other information which the Victorian Inspectorate may require the Ombudsman to include in a report on coercive questioning

For the purposes of section 28I(1)(f) of the Act, the other prescribed matters are—

(a) the duration of the attendance of the person at the Ombudsman;


(i) the person was released because the Ombudsman became aware that the person was under the age of 16 years;


(iii) it reasonably appeared to the Ombudsman that the person exercised his or her right to confer with the parent, guardian or independent person, as the case may be, before giving any evidence, providing any information or producing any document or thing;

(c) whether the Ombudsman believed the person to have a mental impairment and, if so, whether—

(i) an independent person was present during the person's attendance; and

(ii) it reasonably appeared to the Ombudsman that the person exercised his or her right to confer with the independent person before giving any evidence, providing any information or producing any document or thing;


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(e) whether the person appeared to the Ombudsman, either before or during the examination, to have sufficient knowledge of the English language to enable him or her to understand the questioning during the examination and, if not, what arrangements were made for the presence of a competent interpreter.

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PART 5—RENUMBERING

20 Renumbering

In these Regulations—

(a) in regulation 2, for "sections 41 and 42" substitute "sections 103 and 104";

(b) in regulation 5, for "section 33G(2)" substitute "section 55(2)";

(c) in regulation 6, for "section 33L(1)(e)" substitute "section 60(1)(e)";

(d) in regulation 6(b), for "section 33F(4)" substitute "section 54(4)";

(e) in regulation 17, for "section 28G(1)(f)" substitute "section 40(1)(f)";

(f) in regulation 18, for "section 28H(1)(f)" substitute "section 41(1)(f)";

(g) in regulation 19, for "section 28I(1)(f)" substitute "section 42(1)(f)";

(h) in Form 1 in the Schedule, for "section 28E" substitute "section 38".

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SCHEDULE

FORMS

FORM 1

Regulation 13


CONFIDENTIALITY NOTICE

To: [insert name of person subject to confidentiality notice]

Address: [insert address details]

THIS CONFIDENTIALITY NOTICE IS IMPORTANT. PLEASE READ IT CAREFULLY.

FAILURE TO COMPLY WITH THIS CONFIDENTIALITY NOTICE IS AN OFFENCE.

PENALTIES INCLUDING IMPRISONMENT MAY APPLY.

1. What is this confidentiality notice?

This confidentiality notice is issued under section 28E of the Victorian Inspectorate Act 2011 in respect of the following restricted matters:

[specify restricted matter or matters]

Because you have been given this confidentiality notice, you are not permitted to disclose the above restricted matters except as described below in the section headed 'When are you authorised to disclose information?'.

If you disclose a restricted matter when you are not permitted to, you can face severe penalties, including up to 12 months in prison or a fine of up to 120 penalty units or both.

You should also note that additional obligations under Part 7 of the Protected Disclosure Act 2012 relating to confidentiality of assessable disclosures and people who make assessable disclosures may apply to you.


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2. Why have you been given this confidentiality notice?

You have been given this confidentiality notice because the Victorian Inspectorate considers that your disclosure of any of the restricted matters described above would be likely to prejudice:

an investigation that is being conducted by the Victorian Inspectorate; or

the safety or reputation of a person; or

the fair trial of a person who has been, or may be, charged with an offence.

3. When are you authorised to disclose information?

Disclosure to spouse, domestic partner and employer or manager

If one of the restricted matters specified above is that you have been, or are about to be, summoned by the Victorian Inspectorate to be examined or produce documents or things, you:

* may disclose this fact to your spouse or domestic partner, and to your employer or manager for the purpose of arranging leave from work.

* may only disclose this fact to your spouse or domestic partner, and to your employer or manager for the purpose of arranging leave from work, subject to the following limitations:

[set out limitations on the right to disclosure]

These limitations have been imposed because the Victorian Inspectorate considers that disclosure to your spouse, domestic partner, employer or manager would be likely to prejudice an investigation, the safety of a person or the fair trial of a person.

* must not disclose this fact to your spouse, domestic partner, employer or manager because the Victorian Inspectorate considers that disclosure to your spouse, domestic partner, employer or manager would be likely to prejudice an investigation, the safety of a person or the fair trial of a person.

Other disclosures

You are also permitted to disclose a restricted matter in the following circumstances:

if the Victorian Inspectorate directs you or authorises you to disclose a restricted matter;


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to another person if this is necessary for you to obtain information, documents or another thing you need to comply with this confidentiality notice or a witness summons, including:

to an interpreter if you do not know enough English to understand the nature of the witness summons or this confidentiality notice;

to a parent, guardian or independent person if you are under 18;

to an independent person, if you are illiterate or have a mental, physical or other impairment that prevents you from understanding the witness summons or confidentiality notice;

to a legal practitioner for the purpose of obtaining legal representation or legal advice about this confidentiality notice, a witness summons and your rights, liabilities, obligations and privileges under this Act or the Protected Disclosure Act 2012, unless the Victorian Inspectorate has restricted you from being represented by or obtaining advice from that legal practitioner;

if you are a legal practitioner, for the purpose of complying with a legal duty of disclosure or a professional obligation arising from your relationship with your client;

if the restricted matter has previously been published or otherwise made public by the Victorian Inspectorate;

if the disclosure is otherwise authorised by the Victorian Inspectorate Act 2011.

Your obligations if you make a permitted disclosure

If you disclose information about a restricted matter to another person because the disclosure is permitted, then unless the information has been made public by the Victorian Inspectorate, you must give that person a copy of this confidentiality notice, and any order extending this confidentiality notice. In addition, if this confidentiality notice is replaced by a new confidentiality notice or if it is cancelled or extended, you must give a copy of the new confidentiality notice or the notice of cancellation or extension to each person to whom you have made a disclosure. If you do not do so without a reasonable excuse, you can face severe penalties, including up to 12 months in prison or a fine of up to 120 penalty units or both.

4. When does this confidentiality notice expire?

This confidentiality notice expires on the date when the first of the following events occurs:

the Victorian Inspectorate cancels this confidentiality notice and issues you with a new one that includes different restricted matters;


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the Victorian Inspectorate cancels this confidentiality notice and issues you with a new one because it believes that it is no longer necessary to restrict disclosure of one or more restricted matters in this confidentiality notice;

the Victorian Inspectorate cancels this confidentiality notice because it believes that it is no longer necessary to restrict disclosure of any restricted matters in this confidentiality notice;

unless the Supreme Court has ordered the extension of this confidentiality notice, 5 years after the first confidentiality notice about the current investigation was issued;

if the date on which this confidentiality notice expires is extended by the Supreme Court, the date on which the period of extension expires.

5. Where can I get more information about this confidentiality notice?

A copy of the relevant law about confidentiality notices is attached to this confidentiality notice.

You can also obtain legal advice about this confidentiality notice from a legal practitioner, unless the Victorian Inspectorate has restricted you from being represented by or taking advice from a specified legal practitioner.

[attach a copy of the applicable sections of the Victorian Inspectorate Act 2011]

[signature]

[name]

[title]

[date]

*Delete if not applicable.

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FORM 2

Regulation 14


WITNESS SUMMONS

To: [insert name of person to whom witness summons is directed]

Address: [insert address]

THIS WITNESS SUMMONS IS IMPORTANT.PLEASE READ IT CAREFULLY.

FAILURE TO COMPLY WITH THIS WITNESS SUMMONS MAY BE AN OFFENCE. PENALTIES INCLUDING IMPRISONMENT MAY

APPLY.

*A CONFIDENTIALITY NOTICE IS ATTACHED TO THIS WITNESS SUMMONS. PLEASE READ IT BEFORE DISCUSSING

THIS WITNESS SUMMONS WITH ANYONE.

* You should note that your right to disclose the existence of this summons may be limited by the attached confidentiality notice.

The Victorian Inspectorate requires you to attend an examination.

When is the examination?

You must attend at [insert address] *immediately or *on [insert date] at [insert time] *a.m./*p.m. and from day to day unless excused or released from further attendance.

What will the examination cover?

You will be required:

* to give evidence before the Victorian Inspectorate *in relation to [state nature of the matters about which the witness is to be questioned, except to the extent that the Victorian Inspectorate considers that this disclosure would prejudice the conduct of the investigation or be contrary to the public interest];

* to produce for examination by the Victorian Inspectorate the following documents or things that are in your possession or control:

[specify documents or things]


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* to give evidence before the Victorian Inspectorate *in relation to [state nature of the matters about which the witness is to be questioned, except to the extent that the Victorian Inspectorate considers that this disclosure would prejudice the conduct of the investigation or be contrary to the public interest] and to produce for examination by the Victorian Inspectorate the following documents or things that are in your possession or control:

[specify documents or things]

[name and signature]

[title]

Date: [insert date]

[attach statement outlining specified matters with respect to the witness summons]

*Delete if not applicable.

__________________


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FORM 3

Regulation 15


ARREST WARRANT

TO: [insert name of member of police force, or all members of the police force]

The Victorian Inspectorate has issued a certificate of charge charging [name] of [address] with contempt of the Victorian Inspectorate under the Victorian Inspectorate Act 2011.

You are authorised by the Victorian Inspectorate to:

arrest [name] of [address]; and

bring him or her before the Supreme Court without delay to be dealt with according to law; and

detain him or her in police custody in the meantime.

Date: [insert date]

[name]

[title]

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FORM 4

Regulation 16


STATEMENT OF YOUR RIGHT TO APPLY FOR DISCHARGE FROM CUSTODY

You have been arrested for contempt of the Victorian Inspectorate.

Because it is not practicable to bring you before the Supreme Court without delay, you are entitled to apply to a bail justice for discharge from custody on bail.

If you want to apply for bail, you must advise the person in charge of the place where you are being detained.

If you do apply for discharge from custody, the person in charge of the place where you are being detained must ensure you are brought before a bail justice as soon as practicable.

The bail justice may order that you be discharged from custody in accordance with the Bail Act 1977. The person in charge of the place where you are being detained must abide by that order.

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ENDNOTES

Penalty Units

These Regulations provide for penalties by reference to penalty units within the meaning of section 110 of the Sentencing Act 1991. The amount of the penalty is to be calculated, in accordance with section 7 of the Monetary Units Act 2004, by multiplying the number of penalty units applicable by the value of a penalty unit.

In accordance with section 11 of the Monetary Units Act 2004, the value of a penalty unit for the financial year commencing 1 July 2012 is $140.84.

The amount of the calculated penalty may be rounded to the nearest dollar.

The value of a penalty unit for future financial years is to be fixed by the Treasurer under section 5 of the Monetary Units Act 2004. The value of a penalty unit for a financial year must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year.

Endnotes


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