Thursday, 19 October 2023

Special Investigator Repeal Bill 2023

Introduction and first reading

The PRESIDENT (18:16): I have a further message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to repeal the Special Investigator Act 2021 and to abolish the Office of the Special Investigator, to make necessary transitional arrangements, to continue in operation certain offences, to make consequential and related amendments to other Acts and for other purposes’.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (18:16): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Jaclyn SYMES: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

Statement of compatibility

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (18:17): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

Opening paragraphs

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 Special Investigator Repeal Bill 2023.

In my opinion, the Special Investigator Repeal Bill 2023, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

Section 15 of the Charter – Right to freedom of expression

Clause 14 of the Bill preserves section 90 of the Special Investigator Act 2021, to make it an offence to cause, or threaten to cause, any harm or detriment to a person who assists the Office of the Special Investigator (OSI) or who is or was an OSI officer.

Sections 15(1)–(2) of the Charter provide that every person has the right to hold an opinion without interference and the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds.

Clause 14 may limit this right to the extent that it makes it an offence to threaten to cause any harm or detriment to a person who assists the OSI, or a former OSI officer.

However, section 15(3) of the Charter carries an internal limitation to the right to freedom of expression, by providing that special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons or for the protection of national security, public order, public health or public morality.

In accordance with section 15(3)(a) of the Charter, the offence created by clause 14 is reasonably necessary to respect the rights of people who have provided assistance and/or information to the OSI, and the rights of former OSI officers. The offence was originally designed to protect the ongoing safety of OSI officers and people who assisted the OSI, given the nature of the investigations that were conducted by the OSI and the very real risks to the personal safety of persons involved in the events giving rise to the Royal Commission into the Management of Police Informants.

Notwithstanding the repeal of the Special Investigator Act 2021, the risk of reprisal for OSI officers and persons who provided assistance and/or information to the OSI is ongoing. There is a continued need to ensure that such persons are protected from reprisals in relation to their involvement with the OSI. In addition, there is a need to protect people who have provided information and/or assistance to the OSI in reliance on the protections against reprisal contained in the offence.

Further, in accordance with section 15(3)(b) of the Charter, the intimidation of witnesses and law enforcement officers can have serious consequences for the administration of justice, and by extension, public order. Finally, the offence provision at clause 14 does not prohibit legitimate criticism of a person who assists the OSI or an OSI officer that would not otherwise meet the threshold of ‘harm or detriment’ in clause 14.

On this basis, any limitation on the right to freedom of expression imposed by clause 14 is a lawful restriction that is reasonably necessary to respect the rights and reputation of former OSI officers or people who have assisted the OSI, and for the protection of public order.

Section 25 of the Charter – Rights in criminal proceedings

Section 25(1) states that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

Clause 14 may limit section 25(1), in so far as the defence at section 90(5) of the Special Investigator Act 2021, that is preserved by clause 14, imposes a legal onus on the accused, by requiring the accused to prove on the balance of probabilities that the conduct engaged in was a lawful action to make out the defence.

In my opinion, to the extent that the defence at clause 14 limits the right to be presumed innocent at section 25(1) of the Charter, that limit is proportionate and justified, for the following reasons.

First, the extent and nature of the limitation to section 25 of the Charter is reasonable, on the basis that the accused bears the legal onus only in relation to the defence that the conduct was lawful. As such, even if the defence is not established, the prosecution must still prove all elements of the offence beyond reasonable doubt, including that the action was taken because of the belief that a person was assisting the OSI or an OSI officer.

Second, the limit to section 25(1) of the Charter is also necessary and proportionate to the purpose of the limitation. It is appropriate that the accused bear the onus of proving the exception as it relates to matters that fall peculiarly within an accused’s knowledge – that is, the purpose for which the person engaged in conduct. These matters would be unduly onerous on a prosecution to investigate and disprove at first instance. On this basis, the offence at clause 14 is important to deter people from reprisal against people who assisted the OSI and provide a degree of protection to them for their assistance.

Additionally, placing an evidential onus on a person with respect to the defence of lawful action is not a reasonable less restrictive means to achieve the purpose of clause 14. This is because an evidential onus may be discharged by an accused merely pointing to evidence that may establish a defence, at which point the legal onus would be on the prosecution to disprove the defence beyond reasonable doubt. Imposing only an evidential onus may constrain the ability for these offences to be prosecuted and undermine the deterrent purpose of the offence.

Hon Jaclyn Symes MP

Attorney-General

Minister for Emergency Services

Second reading

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (18:17): I move:

That the bill be now read a second time.

Ordered that second-reading speech be incorporated into Hansard:

Overview

The Special Investigator Repeal Bill 2023 (the Bill) repeals the Special Investigator Act 2021 (the SI Act) and implements necessary transitional provisions to support the dissolution of the Office of Special Investigator (the OSI).

The Victorian Government established the OSI as an independent statutory office in 2021 with the key function to investigate possible criminal conduct and breaches of discipline related to Victoria Police’s use of Ms Nicola Gobbo as a human source. Since its establishment in 2021, government has committed over $25 million to establish the OSI and for it to conduct its investigations. In establishing the OSI, and providing for the appointment of a Special Investigator, the SI Act delivered recommendations 1, 3, 92–99, 101 and 103 of the Royal Commission into the Management of Police Informants (Royal Commission).

In June 2023, the government decided that the OSI’s ongoing criminal and disciplinary investigations would be finalised, and that the OSI would be decommissioned as a statutory agency. This decision was made on the basis of advice provided by the then Special Investigator, Mr Geoffrey Nettle AC KC, in a Special Report tabled in Parliament under section 99 of the SI Act. In his report, the Special Investigator stated that the OSI’s investigations were unlikely to result in criminal charges being filed, and that there was no merit nor public interest in the OSI continuing to investigate whether there was sufficient evidence to establish the commission of relevant offences.

I now turn to the Bill.

Decommissioning and dissolving the OSI

The Bill implements the government’s decision to wind-down the OSI by formally repealing the SI Act. The repeal of the SI Act will dissolve the Office of the Special Investigator, provide ongoing protections for OSI records and information, and ensure that oversight of the OSI is thoroughly completed.

Transferring OSI records

The OSI has a significant number of records in its custody, including the Royal Commission records which it is statutorily entitled to hold. The OSI holds highly sensitive law enforcement and Commission records, and there is an ongoing need to maintain these records confidentially. The Bill provides for the custody of OSI records to be transferred to the Public Record Office, in accordance with arrangements approved by the Keeper of Public Records, and obligations contained in the Public Records Act 1973. To maintain strict confidentiality over those records, the Bill provides that records must be held and dealt with in the same manner as when they were held by the OSI.

Retaining relevant offences

The SI Act provided for offences to prohibit the unauthorised disclosure and use of OSI information and to protect people who gave information to the OSI. It is important that these offences are retained to ensure that the OSI’s information is protected, as well as people who have assisted the OSI and former OSI officers, following the OSI’s dissolution.

Section 89 of the SI Act makes it an offence for current and former OSI officers or service providers to use or disclose information about OSI investigations, or the functions and powers of the office, without the express authorisation of the OSI, or a reasonable excuse. To ensure the continued confidentiality of OSI records, this Bill preserves section 89 of the SI Act so that it will remain an offence to make an unauthorised disclosure of OSI information.

Section 90 of the SI Act made it an offence to cause or threaten harm or detriment to any person who assists or assisted the OSI or who was an OSI officer or other specified person. It is important that we continue to shield these persons from reprisal and guarantee the ongoing safety of OSI officers and other witnesses. To ensure this, the Bill preserves section 90 of the SI Act to protect against the ongoing risk of reprisal against people who have assisted the OSI, and former OSI officers.

A continuing role for the Victorian Inspectorate

It is in the public interest that an avenue for complaints and disclosures in relation to the work of the OSI and former OSI officers remains open following the dissolution of the OSI.

This Bill will therefore allow the Victorian Inspectorate to continue to receive complaints relating to the conduct of the OSI and OSI personnel during the six months following the dissolution of the OSI, and for those complaints to receive protections under the Public Interest Disclosures Act 2012. The Victorian Inspectorate will also retain the power to investigate complaints about the OSI and OSI personnel for the 18 months following the commencement of this repeal Bill. If the Victorian Inspectorate wishes to make a recommendation following an investigation, the Bill provides for such recommendations to be made to the Attorney-General and other agencies.

The ongoing role of the Independent Broad-based Anti-corruption Commission

The Bill also reverts to the prior position that IBAC is the independent body to which public interest disclosures about police are made. As part of this, and in accordance with the Royal Commission’s recommendations, IBAC’s default right of access to Royal Commission records is maintained so that it can determine and investigate any public interest disclosures that were made to the OSI.

Conclusion

This Bill ensures that the dissolution of the Office of the Special Investigator will be supported by the necessary transitional provisions and includes the necessary provisions to protect the OSI’s sensitive records, and to ensure the safety of people employed by, or who have assisted the OSI.

Victorians can be confident that the OSI has fully investigated criminal conduct and breaches of discipline arising from Victoria Police’s use of Ms Gobbo as a human source to the extent possible. The OSI has played a crucial role in ensuring the events that led to the Royal Commission into the Management of Police Informants will never occur again.

I commend the Bill to the house.

Georgie CROZIER (Southern Metropolitan) (18:17): I move, on behalf of my colleague Mr Mulholland:

That debate on this bill be adjourned for one week.

Motion agreed to and debate adjourned for one week.