Tuesday, 28 May 2024

Bills

Justice Legislation Amendment (Integrity, Defamation and Other Matters) Bill 2024

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (13:23): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Justice Legislation Amendment (Integrity, Defamation and Other Matters) Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Integrity, Defamation and Other Matters) Bill 2024 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill seeks to protect and promote the rights of Victorians by implementing the following reforms:

• permitting the Chief Statistician greater access to court data for statistical and research purposes

• clarifying that documents signed electronically are admissible as evidence in criminal proceedings

• enabling the ongoing use of digitally recorded statements as evidence-in-chief in criminal proceedings for a family violence offence and proceedings for a family violence intervention order

• enacting reforms to the model defamation provisions to clarify the liability of digital intermediaries when third parties use their online services to publish defamatory matter and extend the defence of absolute privilege to matter published to police, and

• making technical, procedural and consequential amendments to various integrity and justice Acts to improve the operation and effectiveness of Victoria’s integrity agencies.

Human Rights Issues

The following rights are engaged by the Bill:

• recognition and equality before the law (section 8)

• privacy and reputation (section 13)

• freedom of expression (section 15)

• right to liberty and security of the person (section 21)

• right to a fair hearing (section 24), and

• rights in criminal proceedings (section 25).

Under the Charter, rights can be subject to limits that are reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Rights may be limited to protect other rights.

As discussed below, any limitations of these rights in the Bill are reasonable and justified in accordance with section 7(2) of the Charter.

Part 2 – Amendments relating to provision of court data to Chief Statistician

Part 2 of the Bill amends the Crime Statistics Act 2014 to allow the Chief Statistician to require the provision of court data for analysis and reporting purposes.

Right to privacy and reputation

Section 13(a) of the Charter states that a person has the right to not have their privacy unlawfully or arbitrarily interfered with.

The Bill amends the Crime Statistics Act to allow the Chief Statistician to require the provision of court data from the Chief Executive Officers of the Victorian Magistrates’ Court, County Court, Supreme Court and Children’s Court. It will introduce a clear framework to enable confidential and protected sharing of court data with the Chief Statistician, including identified data, by the courts.

Shared data can include data on criminal proceedings, proceedings relating to bail and data on quasi-criminal matters, including matters relating to family violence. The provision of court data will enable the Chief Statistician to fulfil their function of reporting on criminal justice issues and trends in Victoria. It will also enable government to meet its statutory commitment to review the operation of bail amendments made by the Bail Amendment Act 2023.

The amendments align with existing powers for the Chief Statistician to require the provision of law enforcement data from Victoria Police. The addition of court data will enable the Chief Statistician to understand an individual’s journey through the justice system, from their first interaction with Victoria Police to the final outcome in the courts and on to supervision by Youth Justice or Corrections Victoria.

The Bill will protect court data sharing firstly by restricting the data the Chief Statistician can access. New section 3A provides the parameters of the data that can and cannot be obtained by the Chief Statistician. Data must relate to criminal proceedings, bail, or proceedings under a number of other specified Acts. Only data held in an electronic format by the courts can be requested.

Personal information about parties to proceedings can be requested by the Chief Statistician. This will enable the Chief Statistician to obtain identified data that can be matched with data about that person from Victoria Police, Youth Justice and Corrections Victoria. Personal information about a person otherwise involved in the proceedings can also be requested, ensuring data can be collected as to interpreters and intermediaries, for example.

Health information about parties may also be obtained, enabling courts to provide data about a person’s referral to health services such as drug and alcohol treatment. Health information about persons otherwise involved in proceedings cannot be obtained.

The Bill will prevent the Chief Statistician from accessing court data that is not needed for statistical linkage such as hearing transcripts or evidence, information that discloses the deliberations of a court and information on the general administration of a court, including financial information.

Only the Chief Statistician and other staff employed under section 6 of the Crime Statistics Act have access to identified data. Existing sections 8 and 9 of the Crime Statistics Act protect data by making the unauthorised access, use and disclosure of information by a person employed under the Crime Statistics Act an offence. The Crime Statistics Act also requires data to be handled appropriately and securely in accordance with the Privacy and Data Protection Act 2014 and government security frameworks.

The limits placed on the Chief Statistician’s powers and functions ensure that the Chief Statistician may only publish information provided as de-identified aggregate statistics.

The Bill ensures appropriate protections for a Chief Executive Officer in provision of the data. Data can be provided despite a prohibition in any other Act or rule of law, and it is made clear that a Chief Executive Officer commits no offence and cannot be subject to any civil penalty through sharing the data.

Given the protections applying to the receipt, storage and use of data, it should not be necessary for the courts to withhold any information that falls within the definition of applicable court data in new section 3A. However, should it ever be required, new section 7A enables a Chief Executive Officer to refuse to provide information that could prejudice the fair trial of a person or the impartial adjudication of a particular case.

Amendments to the Spent Convictions Act 2021 streamline processes by allowing the Chief Statistician to disclose information to consultants and persons employed to assist the Chief Statistician under section 6 of the Crime Statistics Act 2014 without the need for written consent from the court.

The Bill will improve monitoring of the criminal justice system and provide a better understanding of how individuals interact with the criminal justice system. These efficiency improvements will be balanced by secure handling of court data by the Chief Statistician and protective mechanisms to uphold individual privacy rights.

I consider these reforms to be consistent with section 13 of the Charter. Any limitations to section 13 made by Part 2 of the Bill are reasonable and justifiable.

Part 3 – Amendments to the Criminal Procedure Act 2009

Part 3 of the Bill amends the Criminal Procedure Act 2009 to make it very clear that if a signature is required by or under that Act, that signature can be done by electronic means. New section 410A will resolve any ambiguity about whether electronically signed documents are admissible as evidence in criminal proceedings.

Part 3 of the Bill also amends the Criminal Procedure Act to repeal the sunset provision in section 387P, to make permanent the existing provisions enabling digitally recorded evidence-in-chief in criminal proceedings for a family violence offence or proceedings for a family violence intervention order.

Right to recognition and equality

Section 8 of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination.

The electronic signature reforms will promote section 8 by ensuring that Victorians living in regional or remote communities or limited by mobility challenges have equal access to legal services and participation in legal proceedings. In circumstances where electronic signing is not available, the traditional means of physically signing a printed document remains available.

Right to privacy and reputation

The introduction of digitally recorded evidence-in-chief provisions in the Criminal Procedure Act engaged several Charter rights, which were canvassed in the Statement of Compatibility for the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018.

The extension of the enabling provisions by two years in 2021 engaged the right to privacy and reputation under section 13 of the Charter, which was canvassed in the Statement of Compatibility for the Firearms and Other Acts Amendment Act 2021.

In my view, the removal of the sunset provision in the Criminal Procedure Act similarly engages, but does not limit, the right to privacy. This is because participation in digitally recorded evidence-in-chief is voluntary and there are adequate safeguards in place to ensure this and to guard against inappropriate use. Any interference with the right to privacy will therefore be neither unlawful nor arbitrary.

Right to a fair hearing

Section 24 of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. As noted in Knight v Wise [2014] VSC 76, this includes the common law right of unimpeded access to the courts.

Enabling documents to be signed electronically in criminal proceedings promotes a person’s right to a fair hearing by ensuring that all relevant evidence is admitted and considered by a court or tribunal, despite mobility or health restrictions that may affect a person when signing a printed document.

Allowing witnesses to sign documents electronically in the field may provide witnesses with the best chance of remembering events accurately, which promotes the right to a fair hearing by improving the quality of the evidence.

Rights in criminal proceedings

Section 25 of the Charter requires law enforcement to inform a person charged with a criminal offence of the charges against them as quickly as possible. The electronic signing of documents promotes rights in criminal proceedings by allowing prosecutorial agencies to utilise existing technology to reduce delays in gathering evidence.

Part 4 – Amendments to the Defamation Act 2005

Part 4 of the Bill amends the model defamation provisions in the Defamation Act 2005 to provide greater clarity about the liability of digital intermediaries (those who provide online services for digital content to be published) when third parties use their services to publish defamatory matter online. The term ‘digital intermediary’ describes a person (other than an author, originator or poster of the matter) who provides or administers the online service connected to the publication.

The Bill will also extend the defence of absolute privilege to matter published to an official of an Australian police force or service who is acting in their official capacity.

Right to privacy and reputation

Section 13 of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with, and not to have their reputation unlawfully attacked.

Providing conditional statutory exemptions for a narrow class of digital intermediaries

New section 10C gives a small group of digital intermediaries that provide caching services, conduit services or storage services a conditional exemption from defamation liability if they played a passive role in the publication of defamatory matter. New section 10D provides a similar conditional exemption for search engine providers and will only apply if their role was limited to providing an automated process to generate search results.

The Bill engages the right to privacy and reputation as the new statutory exemptions will continue to enable digital defamatory matter to be stored or accessed on a digital intermediary’s service (such as a cloud storage service or search engine), even if the digital intermediary knows, or ought to have reasonably known, that the matter was defamatory.

However, the Bill also promotes the right as the statutory exemptions are limited to a narrow class of digital intermediaries that generally do not actively participate in the publication of defamatory matter and require that necessary conditions be met to qualify for the exemptions. This will minimise the need for a digital intermediary to actively monitor and interfere with how people choose to use their services.

Overall, new sections 10C and 10D promote the right and any limitations are reasonable due to the passive role this narrow class of digital intermediaries play in the publication of digital matter.

Updating the mandatory requirements for an offer to make amends for an online publication

The Bill will amend section 15(1A)(b) and insert new section 15(1B) of the Defamation Act to provide an alternate method of rectifying any harm caused by the publication of potentially defamatory digital matter. As part of the content of a reasonable offer to make amends, it will provide that if the matter in question is digital, a publisher may instead offer to take ‘access prevention steps’ to remove, block, disable or otherwise prevent access to the matter.

This promotes the right to privacy and reputation by minimising access to defamatory digital matter that may harm another person’s reputation. It also provides greater flexibility to digital intermediaries when responding to complaints and provides an additional avenue for offering to make amends, where it is not possible or meaningful to publish a correction or provide clarification.

Requiring courts to consider balancing factors when making preliminary discovery orders

The Bill will insert new section 23A to require a court, when making an order for preliminary discovery about posters of digital matter, to take into account the objects of the Defamation Act and any privacy, safety or other public interest considerations that may arise if the order is made.

The Bill promotes the right to privacy and reputation by minimising the risk of an abuse of process where an order is sought to obtain a person’s identity and/or address for nefarious reasons. For example, where a person seeks an order to find out another person’s location rather than to obtain the information to enable them to commence defamation proceedings.

This will promote consistent decision making across jurisdictions and protect the privacy and safety of victim-survivors of family violence and other vulnerable persons who are fearful of the other party seeking a preliminary discovery order for ulterior reasons.

Introducing a new defence for digital intermediaries

New section 31A will introduce a new defence specific to digital intermediaries. To qualify for the defence, the digital intermediary must have an accessible complaints mechanism and, where possible, have taken reasonable access prevention steps (to remove, block, disable or prevent access to the content) before the complaint was made or within 7 days of receiving a complaint about the publication.

This Bill promotes the right to privacy and reputation as it incentivises digital intermediaries to take active steps to prevent and remove defamatory digital matter. It will also provide people with an easier and quicker process to act against defamatory digital matter that undermines their right not to have their reputation unlawfully attacked.

Enabling courts to make non-party orders against digital intermediaries

New section 39A will give the courts a specific power to order a digital intermediary who is not a party to a defamation proceeding to take access prevention steps or other steps, such as removing or disabling access to the defamatory digital matter. This clarifies the current uncertainty about whether a court can make orders regarding non-party digital intermediaries who host or otherwise facilitate access to defamatory digital matter.

This promotes the right to privacy and reputation as non-party digital intermediaries may be best placed to assist with restricting access to defamatory digital matter. For example, search engines that are not a party to a proceeding can significantly minimise access by taking down or otherwise preventing access to defamatory digital matter.

Expanding the electronic means by which notices can be given or served

Amended section 44 will extend the forms of electronic communication that a document or notice can be provided. Currently, documents can only be provided in person, by post, by facsimile or to an email address specified by the person.

By expanding the methods of service, this will make it easier for a plaintiff to provide a concerns notice requesting a publisher take certain actions about alleged defamatory digital matter. This promotes the plaintiff’s right to privacy and reputation as it could facilitate earlier service of documents, which may lead to the publisher taking earlier steps to remove defamatory digital matter.

Extending the defamation defence of absolute privilege to matter published to police

New section 27(2)(ba) of the Defamation Act will extend the defence of absolute privilege to matter published to officials of Australian police forces or services while acting in an official capacity. This may interfere with a defendant’s right to privacy and reputation as it will provide a complete immunity and defence to a defamation claim, even in the case of a deliberate and malicious false report to police that is defamatory.

However, any limitations are reasonable and justified. The extension of the defence of absolute privilege will promote the right to liberty and security (section 21 of the Charter) by removing a barrier to reporting crime, including for victim-survivors of sexual offences and family violence.

The reform will also provide greater certainty to people making police reports and reduce the risk of costly and often re-traumatising defamation proceedings. Further, there are existing safeguards to people making false reports, including section 53 of the Summary Offences Act 1966 that makes it an offence to make a false report to police.

Right to freedom of expression

Section 15 of the Charter provides that a person has the right to hold an opinion, and the right to seek, receive and impart information and ideas of all kinds. This right may be reasonably limited to respect the rights and reputation of others, or for the protection of national security, public order, public health or public morality.

Introducing a new defence for digital intermediaries

To benefit from the new defence in new section 31A of the Defamation Act, digital intermediaries must have an accessible complaints mechanism and, where possible, have taken reasonable steps to remove, block, disable or prevent access to the matter before the complaint was made or within 7 days of receiving a complaint about the publication.

This may limit the right to freedom of expression by incentivising digital intermediaries to remove published digital matter that is the subject of a complaint, even where that digital matter may not be defamatory. However, any limitations are reasonable to strike an appropriate balance between protecting reputations from unlawful attack and freedom of expression in the online environment.

Safeguards exist for the new defence to minimise the impact on freedom of expression, including the 7-day timeframe, which provides adequate time for a digital intermediary to properly consider the complaint.

Enabling courts to make orders against non-party digital intermediaries

New section 39A gives the court the power to order a non-party digital intermediary to remove or disable access to defamatory digital matter. This may interfere with the right to freedom of expression as it restricts the ability for others to access or view the content, particularly in circumstances where the plaintiff has not yet obtained a final judgment for defamation against the defendant. However, any limitations are reasonable as the orders will only relate to preventing access to defamatory matter or matters that are pending the outcome of the defamation proceeding.

Overall, the defamation reforms will clarify the role and responsibilities of digital intermediaries regarding defamatory digital matter. This promotes the right to freedom of expression as it will minimise the instances of digital intermediaries unnecessarily monitoring and removing content from their services out of fear of potential defamation liability.

Right to a fair hearing

Section 24 of the Charter provides that a person in a criminal or civil proceeding has the right to have their matter decided by a competent, independent and impartial court after a fair and public hearing. This includes the common law right of unimpeded access to the courts (Knight v Wise [2014] VSC 76).

Requiring courts to consider balancing factors when making preliminary discovery orders

People who post defamatory digital matter might do so anonymously. The courts’ existing power to make a preliminary discovery order can make it easier for the plaintiff to commence a defamation action.

New section 23A will apply new factors that the court must consider before making a preliminary discovery order about a poster of a digital matter. This may interfere with the plaintiff’s right to fair hearing as it could make it more difficult to obtain a preliminary discovery order, therefore impeding their ability to commence a defamation proceeding.

However, any limitations would be minimal as the courts already consider factors such as proportionality and privacy in exercising their discretion to make these orders. Further, any limitations are reasonable and justified as the reform will minimise the risks of abuse of process and risks to privacy and safety, including to protect family violence victim-survivors and other vulnerable community members.

Extending the defamation defence of absolute privilege to matter published to police

The potential threat of a defamation proceeding may deter some people, including victim-survivors of family violence, from reporting matters to the police. There are also concerns that alleged perpetrators may weaponise the threat of a defamation suit to deter a person from making a report to police.

Extending the defence of absolute privilege in new section 27(2)(ba) will reduce the barrier to making reports to police. This promotes the right to a fair hearing more generally, as it will support the ability of the police to investigate the alleged crime and undertake prosecutions.

Parts 5 to 12 – Amendments to integrity Acts

The right to privacy and reputation

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) states that a person has the right not to have their reputation unlawfully attacked. A number of amendments in Parts 5 to 12 of the Bill may engage this right.

An interference with the right to privacy and reputation is justified if it is both lawful and not arbitrary. An interference will be lawful if it is permitted by law that is precise and appropriately circumscribed and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Enabling the Ombudsman and the Victorian Inspectorate to share information with royal commissions or like bodies

The Bill gives the Ombudsman and the Victorian Inspectorate a discretion to disclose information to a Victorian royal commission, board of inquiry, or other commission of inquiry. IBAC will also be provided discretion to disclose information to a commission of inquiry appointed under Division 5 of Part 7 of the Local Government Act 2020. To the extent that personal information is shared by these agencies, the right to privacy may be engaged, but I consider that any interference is neither unlawful nor arbitrary.

The Bill provides that the Ombudsman and the Victorian Inspectorate may share information when it is appropriate in all the circumstances, but they would not be compelled to do so. The amendments seek to achieve the legitimate purpose of assisting royal commissions and other similar bodies to gather information relevant to their functions. The provisions also include safeguards, for example, that the information must be relevant and appropriate to be shared given the nature of the information and must not lead to the identification of a person who has made a public interest disclosure.

Clarifying the definition of ‘law enforcement agency’

The Bill clarifies that in section 3 of the Privacy and Data Protection Act, the Victorian Legal Services Board and Commissioner are law enforcement agencies for the purposes of that Act. This means that the Victorian Legal Services Board and Commissioner need not comply with certain privacy obligations in the Privacy and Data Protection Act for their law enforcement purposes. I consider that any interference with the right to privacy is neither unlawful nor arbitrary.

Clarifying the Victorian Legal Services Board and Commissioner’s status as a law enforcement body supports the legitimate purpose of improved consumer protection outcomes by enabling it to more effectively and efficiently share personal information to perform its important functions in regulating the legal profession. These include activities directed towards the prevention, investigation and prosecution of criminal offences or breaches of laws imposing sanctions or penalties. The Victorian Legal Services Board and Commissioner will still be subject to the Privacy and Data Protection Act in respect of other functions which are not related to law enforcement.

Harmonising and clarifying the threshold for third party consultation for exemptions under the Freedom of Information Act

At present, in deciding whether the disclosure of a document would involve the unreasonable disclosure of information relating to the personal affairs of a person, an agency or Minister must consult with the person about the disclosure unless it is not practicable to do so (section 33 of the Freedom of Information Act 1982). The Bill eases this requirement so that consultation is required if it is reasonably practicable (rather than practicable) making it easier for agencies to process freedom of information applications. Third parties will still need to be consulted, but agencies will be able to better balance this requirement with their obligations to process freedom of information requests in a timely way.

While these changes may engage the right to privacy, in my opinion, any interferences are neither unlawful nor arbitrary. They will assist agencies and the Information Commissioner to more effectively respond to freedom of information applications. The Bill will better balance the right to privacy with the right to freedom of expression by promoting efficiencies in freedom of information and transparency in government.

Enabling the Ombudsman to investigate public interest complaints involving third parties

The Bill clarifies the Ombudsman’s jurisdiction to investigate public interest complaints about an authority that is referred by IBAC and also involve the improper conduct of a third party in relation to the authority. This may increase the number of people who are subject to the Ombudsman’s coercive powers. However, the Bill does not create or increase the Ombudsman’s coercive powers, it merely expands the scope of people to whom the powers may apply.

The Bill also clarifies that a person can make a complaint to the Ombudsman about administrative action taken on behalf of, under a power conferred by, or under instructions by an authority. However, as the Ombudsman already has the power to investigate this conduct under section 13(3) of the Ombudsman Act ‍1973, this does not necessarily expand the Ombudsman’s powers, but rather just the scope of conduct that a person may complain about.

These amendments may engage the right to privacy as it may allow the Ombudsman to apply their information gathering powers to a broader range of persons. However, any potential limitation on the right to privacy is considered reasonable and proportionate as it is in the pursuit of the legitimate aim of addressing improper conduct and the application of the relevant powers are subject to existing safeguards in the Ombudsman Act.

Improving the operation of the freedom of information and privacy frameworks

The Bill provides that the Information Commissioner must provide a copy of an application for review under the Freedom of Information Act to the relevant agency or Minister. This may include information about the applicant and therefore engages the right to privacy. Any interference with this right is neither unlawful nor arbitrary as the changes are necessary to minimise delay and ensure that the affected agency or Minister has the relevant information that is the subject of the review. The amendment also harmonises the procedure for freedom of information reviews with freedom of information complaints.

The Bill also contains amendments that will enhance the right to privacy, including that it will update the definition of ‘sensitive information’ in Schedule 1 of the Privacy and Data Protection Act to include information about a person’s sexual orientation, which may lead to action to better protect that information.

In my opinion, these amendments are compatible with the right to privacy and reputation.

The right to freedom of expression

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. However, section 15(3) provides that the right may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.

Excluding documents that are free-of-charge from the Freedom of Information Act

The Freedom of Information Act excludes access to information that is readily available through alternative access schemes, such as through a public register, where that access is subject to a fee or other charge.

The Bill amends section 14 of the Freedom of Information Act to also clarify that public documents that are available free-of-charge are not subject to the Freedom of Information Act. While this may engage the aspect of the right to freedom of expression as it pertains to seeking information, it does not limit the right as it does not restrict the availability of documents. Members of the public may be provided with access to publicly available documents or directed where to find them, without having to submit a freedom of information application.

Allowing the Chief Municipal Inspector, Information Commissioner and the Racing Commissioner to issue a confidentiality notice in additional circumstances

The Bill amends section 193 of the Local Government Act 2020, section 61TJ of the Freedom of Information Act and section 37T(1) of the Racing Act 1958, to enable the Chief Municipal Inspector, Information Commissioner and Racing Commissioner to issue a confidentiality notice in relation to a public interest disclosure investigation, when the disclosure of information about a restricted matter may prejudice the relevant entities’ own investigation.

While this may limit the freedom of expression of the recipient of the notice, in my opinion, any limit is reasonable and justified and is balanced against the need to protect the privacy of information about the discloser.

The amendments are justified as they provide the entities with greater control over their own investigations and the ability to safeguard the integrity of those investigations. The existing provisions on confidentiality notices contain safeguards to ensure the proportionality of limitations including that the notices must be properly served on a person and the matter that is the subject of the notice must be specified. The recipient of the notice may also disclose a restricted matter in certain circumstances, such as to obtain legal advice or to an interpreter.

Removing reference to reading rooms

Section 7 of the Freedom of Information Act requires that if an agency maintains a facility or a reading room that is available for public use, then it must publish a statement of that fact, including the address and hours of opening, in the statement the agency is required to produce under Part 2 of the Freedom of Information Act. The Information Commissioner is also required to report annually on the details of any available reading room and the information regularly on display.

The Bill removes these provisions as information is now more commonly provided electronically or available on an agency’s website. This change may be considered to engage the aspect of the right to freedom of expression that relates to seeking information, however, it does not limit that right.

The Freedom of Information Act does not require agencies to make reading rooms or other such physical facilities available to the public, only to let people know the details if such facilities are available. Members of the public have other options, such as finding information online or contacting an agency directly by means such as email or telephone if they wish to find out about the information an agency holds.

Exempting ‘security risk profile assessments’ from freedom of information

The Bill exempts ‘security risk profile assessments’ from the freedom of information scheme. While this may engage the aspect of this right that relates to seeking information, any interference is justified on the basis that protecting this information is necessary to protect the security of public bodies. Further, given the nature of these documents, the exemption from the freedom of information scheme is both reasonable and justified.

Creating an offence to disclose certain information received from the Victorian Inspectorate

The Bill creates an offence to disclose certain information received from the Victorian Inspectorate, including advice provided under sections 45(1) or sections 88(1) or (2) of the Victorian Inspectorate Act 2011.

This is likely to engage the right to freedom of expression as it prohibits disclosure of certain information. However, this offence contains several important exceptions, including disclosing information if the person does not speak sufficient English, is under 18 years, or has a mental, physical or another impairment that prevents the person from understanding a witness summons or confidentiality notice. A person may also disclose information to their spouse, employer, trade union, health practitioner and other important services.

When providing advice about the result of an investigation or inquiry, the Victorian Inspectorate must also include a written statement advising a recipient that is an offence under the new section to disclose the information. The information that is protected under this provision will include sensitive information that is the subject of a Victorian Inspectorate investigation or inquiry.

As a result, I consider that any interference with the freedom of expression is lawful and necessary to protect the rights and reputation of others. Further, the amendment is reasonable and justified on the basis that it appropriately balances the need to protect the integrity of investigations and inquiries with a person’s freedom of expression.

The Bill also promotes the right to the freedom of expression by permitting the disclosure of restricted matters in a confidentiality notice to a prescribed service, or service belonging to a prescribed class.

The right to a fair hearing

Section 24 of the Charter provides that a person charged with a criminal offence, or party to a civil proceeding, has the right to have the charge or proceeding decided by a competent, independent, and impartial court or tribunal after a fair and public hearing. This right has been interpreted broadly by the courts such that it may be engaged by a quasi-criminal process, such as the examination of witnesses by integrity agencies.

Directing a person not to seek legal advice and representation from a specified practitioner

Currently, the Ombudsman may direct a person not to seek legal advice or representation from a specified legal practitioner in relation to a witness summons, compulsory or voluntary appearance or report. The Ombudsman can only make this direction if they consider on reasonable grounds that the inquiry or investigation may be prejudiced as the legal practitioner is appearing at a compulsory appearance, representing another person in a compulsory appearance or is otherwise involved in the matter.

The Bill also extends this to legal practitioners appearing or representing a person in a voluntary appearance. Although this may engage the right to a fair hearing, the Bill also ensures that a person is given at least 3 days to obtain alternative representation. For these reasons, the approach does not limit the right to a fair hearing and is reasonable and justified as it protects the integrity of an investigation and provides a person with the opportunity to seek alternative representation.

Enabling the Information Commissioner to decline to entertain a complaint

The Bill provides that the Information Commissioner may decline to entertain a complaint under the Privacy and Data Protection Act if the complainant has failed to co-operate with the Information Commissioner without reasonable excuse.

It is arguable that the Information Commissioner is an independent tribunal within the broad interpretation of section 24 of the Charter. This may engage the right to a fair hearing as it enables the Information Commissioner to discontinue consideration of a complaint. However, I do not consider that this right is limited on the basis that co-operation is required for the Information Commissioner to properly consider a complaint and the power to decline to entertain a complaint is only available if the person does not have a reasonable excuse.

Enabling the Victorian Inspectorate to refuse to investigate a public interest complaint in limited circumstances

The Bill provides that the Victorian Inspectorate may refuse to investigate a public interest complaint in certain circumstances, including where the subject matter of that complaint is trivial or the complaint is frivolous, vexatious, lacks substance or credibility or its investigation would prejudice any criminal proceedings or criminal investigations, creating greater consistency with the discretions afforded to IBAC and the Victorian Ombudsman.

While this may engage the right to a fair hearing within a broad interpretation of section 24 of the Charter, I do not consider that it limits the right. It is protective of criminal proceedings and investigations, ensuring that they are not prejudiced as a result of an investigation of a public interest complaint by the Victorian Inspectorate.

The Hon. Anthony Carbines MP

Minister for Police

Minister for Crime Prevention

Minister for Racing

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (13:23): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Justice Legislation Amendment (Integrity, Defamation and Other Matters) Bill 2024 will amend various Acts to support the effective operation of the justice and integrity systems.

The Bill will:

• permit the Chief Statistician greater access to court data for statistical and research purposes

• clarify the admissibility of electronic signatures in criminal proceedings

• enable the ongoing use of digitally recorded evidence-in-chief in family violence proceedings

• enact nationally developed reforms to the model defamation provisions to clarify liability of digital intermediaries and provide a complete immunity defence for reporting matters to police, and

• improve the operation and effectiveness of Victoria’s integrity agencies.

Permitting the Chief Statistician greater access to court data

The Victorian Government is committed in its delivery of an effective justice system that works for all Victorians. Monitoring the justice system across all stages and understanding how Victorians interact with the system, is vital in monitoring efficiency, progress and reform.

Currently under the Crime Statistics Act 2014, the Chief Statistician has the power to require the provision of law enforcement data from Victoria Police and analyse and report on criminal trends across Victoria.

To promote greater monitoring of the justice system, the Bill will amend the Crime Statistics Act to allow the Chief Statistician to require the provision of court data to fulfil their statutory functions.

These reforms will allow the Chief Statistician to require the provision of court data from the Chief Executive Officers of the Magistrates’ Court of Victoria, the County Court of Victoria, the Supreme Court of Victoria and the Children’s Court of Victoria.

Victorian courts hold data that is essential to building holistic insights into the justice system. Statistical linkage of court data with other justice data can predict future impacts on the justice system more broadly and help build proactive policy actions to safeguard the delivery of justice services.

In providing the Chief Statistician with access to court data, they will be able to understand how individuals interact with the justice system from their first encounter with Victoria Police to the final outcome in the courts.

Stronger linkage of court data will also allow government to acquit the statutory review of bail amendments as introduced by the Bail Amendment Act 2023. The linkage of bail data held by the courts with other bail data will deliver a comprehensive review on the operation of bail changes. This will allow government to ensure the bail system is working appropriately to balance the right to bail for an accused and the public safety of the community.

While the courts have provided data to the Chief Statistician previously, the Bill will enact a clear framework under the Crime Statistics Act to ensure any regular sharing of data with the Chief Statistician is protected and confidential. This includes mechanisms such as outlining authorised personnel who can access any provided court data.

The Bill also ensures unauthorised access, use and disclosure of data is an offence punishable by up to five years imprisonment under the Crime Statistics Act. Any handling of data by the Chief Statistician will be in accordance with the Privacy and Data Protection Act 2014 and governmental security frameworks. Information reported by the Chief Statistician will be reported as de-identified aggregate statistics and made confidential to minimise any risk of identification.

The Bill will also provide safeguards to ensure the Chief Statistician can only access data as needed for statistical analysis. Data classes that have no statistical information, such as evidence adduced, will be excluded from the Chief Statistician. The Chief Executive Officers of the courts can also refuse to provide data that may affect the fair trial of a case, ensuring proper administration of the courts.

This reform gives a clear framework to exchange data safely and securely between the courts and the Chief Statistician, to promote stronger monitoring of the justice system and help build a proactive system that meets the needs of Victorians.

Clarifying the admissibility of electronic signatures in criminal proceedings

The Bill will make it very clear that electronic signatures may be relied on for documents under the Criminal Procedure Act 2009, regardless of whether or not any person consents to using electronic means.

While the common law recognises electronic signatures as ‘signatures’ (see, for example, DPP v Currie; DPP v Daniels (2021) 65 VR 61), the absence of clear legislative authority for electronic signatures under the Criminal Procedure Act, combined with the Electronic Transactions (Victoria) Act 2000 requirement that recipients consent to the method used for an electronic signature, has been a barrier for agencies seeking to introduce more efficient digital processes.

This reform will resolve any ambiguity, enable justice agencies to confidently use existing technology to capture signatures electronically, increase agency efficiencies and reduce system delays.

Enabling the ongoing use of digitally recorded evidence-in-chief in family violence proceedings

The Bill will remove the sunset provision in the Criminal Procedure Act to enable the ongoing use of digitally recorded statements as evidence-in-chief (DREC) in criminal proceedings for a family violence offence and proceedings related to an application for a family violence intervention order.

This reform relates to victim statements that are recorded by police at a family violence incident using a police-issued body-worn camera. A digital statement can then be used in court as evidence-in-chief to replace all or part of the victim-survivor’s formal written statement. It is admissible in court only when it is made as soon as practicable after the event and with the informed consent of the complainant.

The use of digitally recorded evidence-in-chief was trialled as part of the government's response to recommendation 58 of the Royal Commission into Family Violence. The first trial commenced in 2018, followed by an extended phase that was finalised in June 2023.

The feedback from key stakeholders indicated a range of potential benefits of DREC, including improving the statement taking process for victim-survivors of family violence, as it is easier, quicker and provides victim-survivors with an opportunity to make statements in their own words immediately after the family violence incident. These benefits, as well as DRECs having the potential to be more powerful than written statements, may also lead to the earlier resolution of cases, reduce the burden on frontline police, and better hold perpetrators to account.

The Bill will ensure that victim-survivors of family violence continue to have a choice about how to provide evidence about what has happened to them.

The Victorian Government is committed to ensuring that digitally recorded evidence-in-chief continues to be beneficial to victim-survivors. Practical improvements identified by key stakeholders are being considered and implemented by agencies, where appropriate.

The Department of Justice and Community Safety will establish governance arrangements with key stakeholders to monitor any adverse outcomes to victim-survivors resulting from the ongoing use of digitally recorded evidence-in-chief. This work is important to ensure that the voices of victim-survivors continue to be heard and reflected in reforms.

Enacting nationally developed reforms to the model defamation provisions

The Bill will amend the Defamation Act 2005 to clarify the liability of digital intermediaries when third parties use their online services to publish defamatory matter and extend the defence of absolute privilege to matter published to Australian police.

Uniformity is a key objective of Australia’s defamation laws. Since the development of uniform defamation legislation in 2005, amendments to the model Defamation provisions (model provisions) have been made through collaboration between jurisdictions to provide consistency, given the often cross-jurisdictional nature of defamation complaints.

All jurisdictions are signatories to the Model Defamation Provisions Intergovernmental Agreement and are represented on the Model Defamation Law Working Party, which reports to the Standing Council of Attorneys-General on proposals to amend the model provisions. The reforms in this Bill have been developed by the working party as part of the second stage of the review of the model provisions. The first review led to amendments enacted by the Justice Legislation Amendment (Supporting Victims and Other Matters) Act ‍2020.

This second stage of reforms has been informed by extensive public consultation, facilitated by consultation papers, submissions processes, stakeholder roundtables, advice from expert advisory groups and public exposure drafts of the proposed changes to the model provisions. I want to thank and acknowledge all those who contributed to the consultation processes, including Victoria’s Defamation Law Expert Reference Group.

In September 2023, the Standing Council of Attorneys-General approved the second stage of reforms. To support continuing improvements to the law, the Standing Council also committed to a review of the reforms in this Bill, and the defamation reforms passed in 2020, no later than three years after commencement in all implementing states and territories.

Clarifying the liability of digital intermediaries in defamation law

Defamation law operates in an everchanging digital and online landscape, and it is important that the law continues to be fit-for-purpose.

The term ‘digital intermediary’ describes a person (other than an author, originator or poster of the matter) who provides or administers the online service connected to the publication. It includes a broad range of online functions, including internet service providers, content hosts, search engines and social media platforms.

Recent court decisions have led to widespread agreement that the law needs to provide greater clarity about the potential liability of digital intermediaries and their responsibilities when potentially defamatory matter is published online. As the current common law test for publication under defamation law is broad, generally anyone who contributes to the publication of defamatory matter is a publisher.

A digital intermediary can therefore currently be liable for defamation for the publication of third-party content on their online platform, even where they do not actively participate in the publication.

Part 4 of the Bill will implement 6 key reforms to the Defamation Act to modernise and clarify the liability and role of digital intermediaries. The reforms have been designed to strike a balance between protecting reputations and not unreasonably limiting freedom of expression in circumstances where third parties publish matter via digital intermediaries.

Providing conditional statutory exemptions for a narrow class of digital intermediaries

Similar to traditional intermediaries, such as postal services, some digital intermediaries are ‘mere conduits’ that do not actively contribute to the publication of defamatory matter.

To reflect this, the Bill will provide two new statutory exemptions from liability for defamatory third-party content. The first exemption is for caching services, conduit services or storage services. The second exemption will apply to search engine providers only.

Caching services are online services whose principal function is to provide automatic, intermediate and temporary storage of content for the purpose of making the onward electronic transmission of the content more efficient for its users. Conduit services that are online services whose principal function is to enable its users to access or use networks or other infrastructure to connect to, or send or receive data by means of, the Internet.

The protection afforded by a statutory exemption is broad and will apply regardless of whether the service or provider knew, or ought to have known, the digital matter was defamatory. Accordingly, the Bill limits the exemptions to this narrow class of digital intermediaries and requires that necessary conditions be met.

The statutory exemption for caching, conduit or storage services reflects that typically these services are passive participants in the publication of digital matter. The exemption will only apply if the digital intermediary’s role was limited, and they did not take an active part in publication.

The statutory exemption for search engines reflects that, generally, search engine providers have no interest in the specific content of search results and hyperlinks generated by the user of a search engine. The exemption will only apply if the search engine provider’s role was limited to providing an automated process for the user of the search engine to generate search results, such as identifying the title of the webpage or hyperlink to the webpage. It would not apply to sponsored search results.

To support the early resolution of any arguments about the liability of a digital intermediary, the Bill also provides a process for a court to determine whether the statutory exemptions I have outlined are established as soon as practicable before a trial commences, unless satisfied that there are good reasons to postpone the determination until a later stage of the proceeding.

Updating the mandatory requirements for an offer to make amends for an online publication

Currently, the model provisions in the Defamation Act provide a mechanism to encourage the resolution of disputes without litigation, by requiring an aggrieved person to put a publisher on notice of the alleged defamatory matter and allow sufficient time for the publisher to make a reasonable ‘offer to make amends’.

The Defamation Act sets out the content that a reasonable offer to make amends must, or may contain, including a requirement that the publisher offer to publish a reasonable correction or clarification about the matter in question. These requirements were not originally drafted with digital intermediaries and online publications in mind. For example, a search engine provider may not be able to publish a reasonable correction for potentially defamatory material that appears in a search result.

The Bill will provide an alternate method of rectifying any harm caused by the publication of potentially defamatory digital matter. It will update the model provisions to provide that if the matter in question is digital, a publisher may instead offer to take ‘access prevention steps’ to remove, block, disable or otherwise prevent access to the matter.

This reform provides greater flexibility to digital intermediaries when responding to complaints and provides an additional avenue for offering to make amends where it is not possible or meaningful to publish a correction or provide clarification.

Requiring courts to consider balancing factors when making preliminary discovery orders

People who post defamatory matter online might do so anonymously and this poses challenges to bringing defamation proceedings as a plaintiff must first identify and locate the author. Courts can currently be asked to make preliminary discovery orders against digital intermediaries to assist in identifying a poster for the purpose of enabling the service of a concerns notice or defamation proceeding.

To promote consistency of decision-making across jurisdictions, the Bill will provide that when a court makes a preliminary discover order in a defamation proceeding, it must take into account:

• the objects of the Defamation Act, including to provide effective and fair remedies and promote speedy and non-litigious resolution of disputes, and

• the privacy, safety or other public interest considerations that may arise if the order is made.

Introducing a new defence for digital intermediaries

There are several defences to a defamation claim, including the defence of innocent dissemination for the publication of defamatory matter by subordinate distributors. The term ‘subordinate distributor’ describes a person who was not the primary distributor or author of the content, and a person who did not have any capacity to exercise editorial control over the content prior to publication, such as a bookseller or postal service.

The defence of innocent dissemination allows subordinate distributors to avoid liability if they can prove that they neither knew, or ought to have reasonably known, that the matter was defamatory, and their lack of knowledge was not due to any negligence on their part.

Several issues have been identified in applying the defence to digital intermediaries, such as forum administrators or social media platforms. For example, there is a lack of clarity about when a digital intermediary might be considered to have capacity to exercise editorial control, given the variety of technical capabilities of contemporary digital intermediaries. There is also a lack of certainty around the requirement to prove that they did know that the matter was defamatory. This may operate, in some cases, to discourage digital intermediaries from monitoring online services to avoid having knowledge about defamatory matter until they have been notified of a complaint.

To overcome these issues, the Bill will introduce a new defence specific to digital intermediaries. The defence will apply if a digital intermediary can prove that:

• at the time of publication, they had an accessible complaints mechanism for the plaintiff to use, and

• if the plaintiff gave a written complaint in accordance with the Act, reasonable access prevention steps (to remove the matter, block, disable or prevent access to the content) were taken in relation to the publication, if available, either before the complaint was made or within 7 days after the complaint was given.

This provides greater certainty and clarity as to the potential liability of digital intermediaries and provides complainants with a relatively fast and simple method to seek a remedy.

Enabling courts to make orders against non-party digital intermediaries

Courts can currently grant injunctions or make orders to prevent the publication or republication of defamatory digital matter. However, there is uncertainty about the power to make orders in relation to non-party digital intermediaries who host or otherwise facilitate access to defamatory digital matter.

The Bill will provide courts with the power to order a digital intermediary who is not a party to a proceeding to remove or disable access to online defamatory matter in circumstances where:

• the plaintiff has obtained judgment for defamation against the defendant, or

• a court has granted a temporary or final injunction or other order preventing the defendant from continuing to publish, or republishing, the matter pending determination of the defamation proceeding.

This provides complainants who have obtained orders or judgments against a poster of defamatory digital matter the ability to seek the court’s assistance if the poster does not comply and it is appropriate for a digital intermediary to take steps to assist, for example, to block access to the defamatory content.

Expanding the electronic means by which notices can be given or served

The Defamation Act provides that a document or notice, such as a concerns notice, may be given or served on a person or body corporate in person, by post, by facsimile or to an email address specified by the person.

To modernise the Act, the Bill will extend the forms of electronic communication to allow a document or notice to be given to a person or body corporate by email, messaging or other electronic communication to an address or location indicated by the recipient.

Extending the defamation defence of absolute privilege to matter published to police

Currently, a person who makes a report to police is not adequately protected from defamation liability. For example, if a victim-survivor of a sexual offence makes a statement to police, whether formally or informally, they are not absolutely protected from a defamation suit being brought against them by the alleged perpetrator for that statement. This can have a chilling effect on the reporting of crime.

While the model provisions in the Defamation Act contains several defences to the making of defamatory statements, including the defence of qualified privilege, establishing a defence can require a costly and time-consuming court hearing to establish, which can contribute to the re-traumatisation of victim-survivors.

Sexual violence is a criminal and social harm that is prevalent in Australia. An estimated 22 per cent of Australian women aged 18 years and over have experienced sexual violence since the age of 15, and an estimated 8.3 per cent of women who experienced sexual assault by a male reported the most recent incident to police. There are many reasons why women may not report assault to police, including a fear of the perpetrator and a fear of legal processes.

In its 2020 Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report, the Australian Human Rights Commission found that workplace sexual harassment is prevalent and pervasive in Australia, and most people who experience sexual harassment never report it. The Commission heard that defamation laws can discourage sexual harassment victims from making a complaint.

In late 2020, the Victorian Government proposed that the impact of defamation laws on the reporting of sexual violence be considered by the then Council of Attorneys-General as part of the second stage of review of the model provisions. The development of this reform was led by Victoria.

The Bill will amend the model provisions enacted in the Defamation Act to extend the defence of absolute privilege to matter published to officials of Australian police forces or services who are acting in their official capacity. The defence will protect any means of communicating with state, territory or Commonwealth police, including informal reports, email enquires or using online reporting tools. It will also protect reports made to police employees, office holders, contractors and other persons who act for or on behalf of police, including administrative staff.

Absolute privilege is a complete immunity and defence to a defamation claim and is only available in limited circumstances, including matter that is published in proceedings of a parliamentary body or an Australian court or tribunal. The likely availability of the defence of absolute privilege can discourage the commencement of defamation proceedings or result in a proceeding being dismissed at an early stage without a hearing. Extending the defence to matter published to police recognises the public interest in the proper reporting of crime.

These reforms are a continuation of the Victorian Government’s work to remove barriers to reporting crime and improve the way that the justice system responds to serious offences, including sexual violence and family violence. The Bill will provide greater certainty to those reporting matters to police that they will be protected against a defamation suit for that report, remove barriers to reporting to police and reduce the risk of costly and often re-traumatising defamation proceedings.

Improving the operation and effectiveness of Victoria’s integrity agencies

Parts 5 to 12 the Bill makes a range of substantially technical amendments to a number of integrity and justice related Acts to help ensure that Victoria’s integrity and accountability system is clear, accessible, effective and efficient. The reforms include amendments to the Ombudsman Act 1973, Victorian Inspectorate Act ‍2011, Freedom of Information Act 1982, Privacy and Data Protection Act 2014, Independent Broad-based Anti-Corruption Commission Act 2011 (IBAC Act), Public Interest Monitor Act 2011, Public Interests Disclosure Act 2022.

These reforms are substantially related to addressing technical or procedural matters and enabling integrity agencies to better manage their resources. While the amendments contained in the Bill are minor in nature, their value in strengthening Victoria’s integrity framework should not be discounted.

Improving the operation of the integrity system – Victorian Inspectorate, Ombudsman and IBAC

The public sector is uniquely placed in that every day public servants make decisions and take actions that affect the lives and interests of the community. That is why it is vital that the State’s integrity agencies are empowered to respond quickly, flexibly and appropriately to undertake their oversight functions. Recognising this important role, the Bill will enhance the operation of the integrity system through a series of minor reforms to clarify the law, create consistency across the integrity system and provide operational improvements to allow integrity agencies to respond flexibly and efficiently.

As part of achieving these outcomes, the Bill makes several procedural and clarifying amendments to the Ombudsman Act. Key amendments include:

• clarifying the definition of ‘public body’ to better align the term with the IBAC Act, while still reflecting the appropriate jurisdictional boundaries of each entity

• removing ambiguity concerning procedural aspects of voluntary appearances of witnesses before the Ombudsman, and

• streamlining the Ombudsman’s notification requirements to IBAC and the Victorian Inspectorate regarding conduct that is the subject of a general complaint and a public interest complaint under the Public Interests Disclosure Act.

The Bill will clarify that the Victorian Inspectorate and the Ombudsman may disclose information to royal commissions and other like bodies at their discretion, and that IBAC may disclose to a commission of inquiry appointed under the Local Government Act 2020, when it is appropriate and provided that it does not lead to the identification of a person who has made an assessable disclosure under the Public Interests Disclosure Act or the disclosure is not restricted by another Act. This will enhance the ability of Victoria’s commissions and inquiries to gather information relevant to the exercise of their functions and in turns help ensure they are empowered to make informed recommendations.

Currently, search warrants issued under the IBAC Act only authorise a named person to exercise their powers under the warrant. This requirement risks both the integrity of the investigation and the health and safety of IBAC officers as it provides ‘persons of interest’ with the details of the relevant officers. The Bill addresses these concerns and acquits recommendation 42 of the 2018 IBAC Parliamentary Committee Inquiry into the external oversight of police corruption and misconduct in Victoria by permitting search warrants to be issued to allow any authorised IBAC officer or any police officer to execute the warrant.

Another key reform is renaming the Victorian Inspectorate to ‘Integrity Oversight Victoria’ and the Inspector as the ‘Chief Integrity Inspector’. These new titles will better articulate the role and the purpose of the office in overseeing the State’s integrity and accountability bodies and their officers. All references to these titles are updated across the Victorian statute book to ensure there are no gaps in continuity of the office’s operations.

Accompanying these changes, the Bill provides legislative clarity in relation to some of the Victorian Inspectorate’s powers, including in relation to their capacity to conduct audio or visual inquiries concerning the Wage Inspectorate Victoria. The Bill also provides the Victorian Inspectorate with the discretion to refuse to investigate a public interest complaint in limited circumstances, such as where that complaint is vexatious.

The Bill also inserts a new offence in the Victorian Inspectorate Act to prevent a complainant or other person from disclosing certain information received from this entity without authorisation. The offence covers information received about both the outcome of the investigation and the actions taken by the Victorian Inspectorate including whether they have decided to investigate. The offence carries a maximum penalty of 60 penalty units or 6 months’ imprisonment and is similar to an existing offence in section 184 of the IBAC Act concerning the disclosure of information received from IBAC.

Improving the operation of the freedom of information and privacy frameworks

The Bill includes a range of amendments to the freedom of information and privacy legislative frameworks to strengthen protections and better support agencies to meet the objectives of the Acts more efficiently.

Central to these proposed reforms is providing the Office of the Victorian Information Commissioner flexibility in addressing privacy complaints. The Bill supports this goal by providing informal dispute resolution procedures under both the Freedom of Information Act and Privacy and Data Protection Act. The Information Commissioner’s grounds for declining to entertain a privacy complaint are also expanded to include circumstances where the complainant fails to co-operate with the Commissioner without reasonable excuse. This is an approach that mirrors the existing grounds for declining a complaint in relation to a freedom of information review.

The Bill will also strengthen operational processes by streamlining the Information Commissioner’s annual reporting obligations by aligning the legislative requirements under both the Freedom of Information Act and Privacy and Data Protection Act.

In addition to the amendments highlighted earlier, the Bill contains several minor and technical amendments to the Privacy and Data Protection Act to clarify legislative uncertainties and facilitate greater operational efficiencies. Importantly, the definition of ‘sensitive information’ in Schedule 1 will be updated to clarify that ‘sexual preferences or practices’ also includes ‘sexual orientation’. This amendment will align the Act with Commonwealth legislation, remove ambiguity and strengthen privacy protections for this type of information.

Under the Privacy and Data Protection Act, ‘protective data security plans’ are exempt from freedom of information requests. The Bill extends this exemption to ‘security risk profile assessments’ to ensure that assessments remain secure and ensure agencies’ capacity to manage potential harms is retained. The assurance requirements for the Victorian Protective Data Security Standards will also be updated to ‘confidentiality, integrity and availability’ to reflect the current internationally accepted components.

The Bill also amends the definition of ‘law enforcement agency’ to explicitly include the ‘Victorian Legal Services Board and Commissioner’. While the Board and Commissioner are considered to already fall within the definition of ‘law enforcement agency’, the explicit inclusion will promote proactive identification of relevant information and streamline information sharing procedures between relevant entities.

The Bill provides procedural amendments to the Freedom of Information Act to support more expedient administration of the Act including by:

• removing outdated references to ‘reading rooms’ in recognition of information now commonly being provided electronically or through an agency’s website

• harmonising and clarifying that the threshold for third party consultation for exemptions under the Act is ‘reasonably practicable’

• making it clear that documents such as Cabinet materials and law enforcement documents provided to the Information Commissioner electronically as part of a freedom of information review must be retained in a secure electronic format if it is not possible for it to be destroyed, and

• providing that information that is publicly available and free of charge is excluded from freedom of information requests.

Public interest disclosure related amendments

A range of reforms are included in the Bill to address limitations and operational issues with the application of the public interest disclosure scheme in Victoria.

The Bill addresses a jurisdictional gap between the public interest complaints that IBAC can refer to the Ombudsman and those they are empowered to investigate by enabling the Ombudsman to investigate public interest complaints involving third parties, such as private sector contractors and businesses, who improperly influence or seek to improperly influence the honest or effective performance of a public officer. This amendment will align the Ombudsman’s and IBAC’s jurisdictions and support optimal operation and division of work in addressing public interest complaints.

In relation to the Chief Municipal Inspector’s capacity to respond to public interest disclosures, the Bill strengthens their powers by specifying that they may receive disclosures about Councillors and the conduct of a Council, a member, officer or employee of a Council.

The Bill further aligns confidentiality notice procedures for public interest complaints to be consistent across integrity agencies. The proposed amendments will enable the Information Commissioner, the Chief Municipal Inspector and the Racing Integrity Commissioner to issue a confidentiality notice with respect to a public interest complaint if they believe, on reasonable grounds, that the disclosure of a restricted matter may prejudice the agency’s investigations. The proposed reforms will create consistency with the existing confidentiality notice powers awarded to the Victorian Ombudsman, provide agencies with greater control over their investigations and safeguard the integrity of those investigations.

The Bill also makes it clear that IBAC may refer a relevant public interest complaint to the Judicial Commission of Victoria for investigations that relate to judicial officers and Victorian Civil and Administrative Tribunal members. A minor amendment is also made to correct a drafting oversight in section ‍24 of the Privacy and Data Protection Act to require receiving entities to provide advice to disclosers about its assessment of their disclosure against both limbs of the relevant test in section 21(1)(b).

Giving effect to the Public Interest Monitor’s role under the Federal international production orders scheme

The Bill will give effect to a new role for the Public Interest Monitor under the Commonwealth International Production Orders scheme.

Schedule 1 of the Commonwealth Telecommunications (Interception and Access) Act 1979 establishes a scheme to provide for international production orders for intercepted communications data. The scheme will enable Australian agencies to serve international production orders on communications providers in another country (such as Facebook Inc) to access such data. The international production orders scheme will require the Public Interest Monitor to test the evidence in relation to applications for certain interception information made by IBAC and Victoria Police. This will provide an important safeguard in the international production orders scheme.

Additionally, the Bill will clarify the Public Interest Monitor’s role and functions conferred by the Terrorism (Community Protection) Act 2003 to ensure that notification, document, record keeping and security procedures for decisions made under the Act are streamlined to enable the Public Interest Monitor to concentrate on fulfilling its important statutory role to represent the public interest.

Making other minor and technical amendments

The Bill will also make other miscellaneous amendments to support Victoria’s integrity agencies and system to operate optimally.

Currently, where a person is subject to a confidentiality notice regarding a restricted matter, the IBAC Act and Victorian Inspectorate Act allow for the disclosure of this information to prescribed services. These services currently include Beyond Blue and Lifeline Australia for the purposes of providing crisis support, suicide prevention and mental health and wellbeing support to the person subject to the confidentiality notice. The Bill will allow for classes of services (rather than each individual service) to be prescribed and most significantly remove the administrative barriers to providing welfare support for witnesses and persons involved in IBAC and Victorian Inspectorate investigations.

The Bill also:

• updates the obsolete definition of ‘trade union’

• removes erroneous references to investigations in the Surveillance Devices Act 1999

• clarifies that a presiding officer may allow for a support person to be present during a compulsory or voluntary appearance under the Ombudsman Act

• removes redundant references to repealed sections of the Evidence (Miscellaneous Provisions) Act ‍1958, and

• makes various statute law revisions to the integrity agencies’ Acts.

The Bill will also replace outdated references to the Federal Law EnforcementIntegrity Commissioner Act 2006 with the National Anti-Corruption Commission Act 2022 and National Anti-Corruption Commissioner to reflect the commencement of the new Federal Commission on 1 July 2023. These amendments are purely technical in nature but will assist in reducing confusion when navigating integrity system legislation.

Collectively the proposed reforms will support the State’s integrity agencies to operate efficiently and be adequately equipped to promote a high performing public sector and community confidence in both government and the integrity and accountability framework.

I commend the Bill to the house.

Peter WALSH (Murray Plains) (13:23): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Tuesday 11 June.