Integrity and Accountability Legislation
Amendment (A Stronger System) Bill
2015
Introduction Print
EXPLANATORY MEMORANDUM
General
The Integrity and Accountability Legislation Amendment (A Stronger
System) Bill 2015 amends the Independent Broad-based Anti-corruption
Commission Act 2011 (the IBAC Act), the Ombudsman Act 1973
(Ombudsman Act), the Audit Act 1994 (Audit Act), the Public Interest
Monitor Act 2011 (PIM Act) and the Victorian Inspectorate Act 2011
(Victorian Inspectorate Act) and makes related amendments to certain other
Acts.
The aim of the Bill is to support and strengthen Victoria's integrity and
accountability system. The Bill—
581119

amends the Independent Broad-based Anti-corruption
Commission (IBAC)'s functions to provide for the
identification, investigation and exposure of any corrupt
conduct, prioritising corrupt conduct that is serious or
systemic;

modifies the threshold that must be met before the IBAC may
commence an investigation into corrupt conduct;

expands the definition of corrupt conduct to include conduct
of any person that adversely affects the effective performance
of public functions and results in monetary, financial or other
gain for the person or their associate;
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BILL LA INTRODUCTION 8/12/2015

includes the offence of misconduct in public office in the
IBAC's corrupt conduct jurisdiction by amending the definition
of relevant offence in the IBAC Act;

grants the IBAC explicit power to conduct preliminary
inquiries, before deciding whether to dismiss, refer or
investigate a complaint or notification or conduct an own
motion investigation;

establishes consistent requirements for the mandatory
notification of possible corrupt conduct to the IBAC by other
bodies in the integrity framework and by principal officers of
government bodies;

makes a range of technical amendments to the IBAC Act,
including clarifying powers of delegation, allowing the IBAC
to appoint suitably qualified persons to preside at an
examination, and allowing the IBAC to apply to the
Magistrates' Court for a search warrant except in limited
circumstances.
The Bill amends the Ombudsman Act to—

broaden the Ombudsman's ability to share information with
other bodies where the Ombudsman considers that the
information is relevant to the body and it is appropriate to bring
the information to the body's attention;

provide the Ombudsman with greater flexibility in handling
protected disclosure complaints referred by the IBAC; and

make various technical amendments.
The Bill amends the Victorian Inspectorate Act to—

provide the Victorian Inspectorate with power to conduct a
preliminary inquiry; and

clarify the Victorian Inspectorate's powers for the purpose of
monitoring the IBAC's compliance with legislation; overseeing
the IBAC's performance of its functions under the Protected
Disclosure Act 2012; assessing the effectiveness and
appropriateness of the IBAC's policies and procedures; and
monitoring the interaction between the IBAC and other
integrity bodies to ensure compliance with laws.
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The Bill amends the Audit Act to—

extend the power of the Auditor-General during a performance
audit to take into account information called for from
non-government entities delivering government services on
behalf of an authority;

streamline the process for consulting on performance audit
specifications with the Public Accounts and Estimates
Committee (PAEC);

enable the Auditor-General to share appropriate information
with other Auditors-General;

broaden the Auditor-General's ability to share appropriate
information with other bodies; and

make various technical amendments.
The Bill amends the PIM Act to clarify confidentiality requirements within
the PIM office and to insert a statutory immunity.
Clause Notes
Part 1—Preliminary
Clause 1
provides that the main purpose of the Bill is to amend the
IBAC Act, Audit Act, Ombudsman Act, PIM Act, Victorian
Inspectorate Act and certain other Acts to implement a stronger
system of integrity and accountability in Victoria.
Clause 2
provides that Part 1 of the Act will come into operation on the
day after the day on which it receives Royal Assent, and that the
remaining provisions of the Act come into operation on a day or
days to be proclaimed or 10 December 2016 if not proclaimed
before then.
Part 2—Independent Broad-Based Anti-Corruption Commission
Act 2011
Clause 3
amends the definitions of detained person, restricted matter and
witness summons in section 3 of the IBAC Act and makes a
typographical amendment to the definition of notification to the
IBAC.
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Clause 3 amends the definition of integrity body to include the
Chief Municipal Inspector and a municipal monitor appointed
under the Local Government Act 1989 and the Racing Integrity
Commissioner established under the Racing Act 1958.
Clause 3 also inserts new definitions of mandatory notification
provision and preliminary inquiry.
Clause 3 also amends the definition of relevant offence in
section 3 of the IBAC Act to provide that it includes the common
law offence of misconduct in public office. The definition of
relevant offence is pertinent to the definition of corrupt conduct
in section 4, and this amendment will in practice mean that the
offence of misconduct in public office is within the IBAC's
corrupt conduct jurisdiction.
Clause 4
amends the definition of corrupt conduct in section 4 of the
IBAC Act to provide that, when considering whether an
investigation may be conducted pursuant to section 60(2), the
IBAC does not need to consider whether the facts giving rise to
corrupt conduct would be found proved beyond reasonable doubt
at trial. It is sufficient that the IBAC, according to the
requirements of the amended section 60(2), suspects on
reasonable grounds that the conduct constitutes corrupt conduct.
Clause 4 also inserts new section 4(1)(da) in the definition of
corrupt conduct in the IBAC Act to include conduct by any
person (whether or not a public officer or body) that is intended
to adversely affect the effective performance or exercise
(as compared to the honest performance or exercise) of a public
function or power by a public officer or public body, that results
in the person or an associate of the person obtaining—

a licence, permit, approval, authority or other
entitlement under any Act or subordinate instrument;

an appointment to a statutory office or as a member of
the board of any public body under any Act or
subordinate instrument;

a financial benefit or real or personal property; or

any other direct or indirect monetary or proprietary
gain—
that they would not have otherwise obtained.
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For example, new section 4(1)(da) permits IBAC to investigate a
person who intentionally lies to a public officer about meeting
the criteria for a government grant, which results in that person
obtaining a financial or proprietary benefit (provided that the
person's conduct also constitutes a relevant offence).
Clause 4 makes a consequential amendment to section 4(1)(e) of
the IBAC Act as a result of this amendment.
Clause 4 also inserts new section 4(1A) in the IBAC Act to
provide that, in determining whether conduct would constitute a
relevant offence, the IBAC may assume that the required state of
mind to commit the relevant offence can be proven.
Clause 4 also inserts new sections 4(2A) and 4(2B) in the
IBAC Act. Section 4(2A) provides that the effective
performance or exercise by a public officer or public body of the
functions or powers of the public officer or public body may be
adversely affected notwithstanding that the public officer or
public body does not engage in any corrupt conduct or other
misconduct in performing or exercising those functions or
powers.
Section 4(2B) provides that, for the purposes of new
section 4(1)(da), an associate of a person is—

a person or entity who has an agreement, arrangement
or understanding with the person or holds any relevant
financial interest in any business of the person;

a relative of the person (if the person is a natural
person); or

if the person is a body corporate, an entity of whom the
person is an associate or an employee or officer of a
related body corporate within the meaning of the
Corporations Act.
Clause 4 also inserts new section 4(2C), to provide the definitions
of relative and relevant financial interest for the purposes of
new section 4(2B).
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Clause 5
Clause 6
amends section 8 of the IBAC Act to provide that the objects of
the Act include providing for—

the identification, investigation and exposure of corrupt
conduct (as compared to only serious corrupt conduct);
and

the IBAC to prioritise the investigation and exposure of
serious or systemic corrupt conduct.
amends section 11 of the IBAC Act. Section 11 provides that the
IBAC can investigate conduct that occurred before the
commencement of that section. The amendment provides that
the IBAC can investigate such conduct if the conduct—

is the conduct of, or in relation to, a person or body who
or which would have been a public officer of public
body; and

would have been corrupt conduct or police personnel
conduct—
within the meaning of the IBAC Act as amended by this Act had
section 11, as amended, been in force at the time the conduct
occurred.
Clause 6 also amends the heading of section 11 of the IBAC Act
to omit the words "Investigation of".
Clause 7
inserts new section 11A in the IBAC Act to provide that the
IBAC may determine to investigate any complaint or notification
that it has previously dismissed under section 58(a) or referred to
the Ombudsman or another body under section 73. This excludes
complaints or notifications that the Ombudsman has previously
dismissed or determined to investigate.
Clause 8
substitutes section 15(2)(a) of the IBAC Act to provide that the
IBAC's functions include identifying, exposing and investigating
corrupt conduct (as opposed to serious corrupt conduct).
Clause 8 also inserts new sections 15(1A) and (1B) in the
IBAC Act to direct the IBAC to prioritise its attention to
investigating and exposing corrupt conduct that the IBAC
considers may be serious or systemic, without restricting the
IBAC's discretion to determine to investigate any matter that the
IBAC considers may constitute corrupt conduct.
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Clause 8 also inserts new section 15(3)(ba) to provide that the
IBAC's functions include conducting preliminary inquiries.
Clause 9
repeals section 17 of the IBAC Act consequently to the
substitution of new section 32 which clarifies the IBAC's
delegation powers.
Clause 10 substitutes subsection 30(7)(b) of the IBAC Act. The new
section 30(7)(b) provides that, while a person is acting in the
office of Commissioner or Deputy Commissioner, the person is
entitled to be paid the remuneration and allowances specified in
their instrument of appointment to that role.
Clause 10 consequently repeals subsection 30(8) of the
IBAC Act, which provided that if there were no current holder of
the office of Commissioner or Deputy Commissioner, a person
appointed to act as the Commissioner or Deputy Commissioner
was entitled to be paid the remuneration and allowances specified
in their instrument of appointment to that role.
Clause 11 substitutes section 32 of the IBAC Act to clarify the IBAC's
delegation powers. New section 32—

establishes general delegation powers in subsections (1),
(3), (7) and (8); and

specifies duties, functions and powers that can only be
delegated to certain persons under subsections (2), (4)
and (5).
Subsection (1) provides that the IBAC may delegate any duty,
function or power of the IBAC to the Commissioner or a Deputy
Commissioner.
This is subject to subsection (2), which provides that the IBAC
can only delegate the following duties, functions and powers to
the Commissioner—

deciding to hold a public examination under
section 117(1);

charging a person with contempt of the IBAC and
issuing a warrant for arrest under section 153(1);

directing that an arrested person be held in custody
under section 156(1) or 141;
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
transmitting a special report to Parliament about the
IBAC's performance under section 162; and

deciding what to include in the IBAC's annual report
under section 165.
The Commissioner cannot delegate these powers.
Subsection (3) provides that the Commissioner may delegate any
duty, function or power, including any duty, function or power
delegated to the Commissioner under subsection (1), to a
Deputy Commissioner, the Chief Executive Officer, a senior
IBAC officer or a consultant appointed under section 36.
However, this excludes powers delegated to the Commissioner
under subsection (2).
This is subject to subsections (4), (5) and (6), which provide
that—

the Commissioner can only delegate any duty, function
or power of the Commissioner under section 115 to a
Deputy Commissioner;

the Commissioner can only delegate certain other
powers, duties and functions to a Deputy Commissioner
or the Chief Executive Officer, including the power
provided under section 85 to authorise the use of the
entry, search and seizure powers conferred by
Division 3 of Part 4; and

the Commissioner may delegate to a Deputy
Commissioner or the Chief Executive Officer the
Commissioner's power under section 85 on the
condition that it is only to be exercised if the
Commissioner is absent or unavailable and the delegate
reasonably believes that a delay in the exercise of the
power would significantly limit the effectiveness of the
powers conferred by Division 3 of Part 4.
Subsection (7) provides that a Deputy Commissioner may
delegate to a senior IBAC officer or a consultant appointed under
section 36 any duty, function or power, including any duty,
function or power delegated to the Deputy Commissioner under
section 32(1) or (3), but excluding those specified in
subsections (4) and (5).
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Subsection (8) provides that the Chief Executive Officer may
delegate to a senior IBAC officer or a consultant appointed under
section 36 any duty, function or power, including any duty,
function or power delegated to the Deputy Commissioner under
section 32(3), but excluding those specified in subsection (5).
Despite section 32(3), the Commissioner may delegate any duty,
function or power, including those delegated to the
Commissioner under subsection (1), to a sworn IBAC officer in
circumstances where—

the Commissioner has made a declaration of inability to
act in respect of a particular matter, the sworn IBAC
officer would be qualified to be appointed under
section 20 to be the Commissioner, and the
Commissioner considers the duty, function or power is
necessary to enable IBAC officer to act in respect of
that particular matter; or

the sworn IBAC officer, to whom section 61(1) applies
is conducting an investigation and the duty, function or
power is necessary to enable IBAC officer to act in
respect of the particular investigation. Section 61
concerns investigations about the conduct of judicial
officers.
New section 32 further provides that a delegation to a former
judge or Chief Magistrate does not affect the pension or other
rights or privileges that the person has as a former judge or
Chief Magistrate.
Any delegations already in force before the commencement of
this amendment will continue in force until 6 months after
commencement, or revocation, whichever first occurs.
For the avoidance of doubt, a reference in section 32 to the
Commissioner includes a reference to a person who is acting in
the office of the Commissioner.
Clause 12 amends section 37(2) of the IBAC Act to provide that the IBAC
may require a person appointed as an examiner to preside at an
examination (under the amended section 115) to take an oath or
make an affirmation in respect of the performance of their duties.
9
Clause 13 amends section 41(1)(d) of the IBAC Act to provide that, in
addition to the "relevant principal officer", the IBAC may also
disclose information to another "appropriate senior officer".
Clause 13 also inserts new sections 41(4A) and (4B) in the
IBAC Act to provide that, if a House of Parliament has referred a
report made by the IBAC to a Parliamentary Committee of that
House to determine whether there has been a breach of
parliamentary privilege or contempt of Parliament, and the
Parliamentary Committee requests the IBAC to provide or
disclose any information acquired through the preparation of the
report which the Committee considers may be necessary for its
deliberations, the IBAC may at its discretion comply with the
request. In responding to the request, the IBAC must not provide
or disclose information that is likely to identify a person who has
made an assessable disclosure.
Clause 13 also amends section 41(5) of the IBAC Act to make a
typographical amendment to the definition of Royal Commission
and to provide that senior officer means a person who holds a
prescribed position or is a member of a prescribed class of
positions for the purposes of the section.
Clause 14 inserts new section 42(1A) in the IBAC Act to provide that the
IBAC may issue a confidentiality notice to a person (other than
an IBAC officer or Victorian Inspectorate officer) in respect of a
witness summons issued during a preliminary inquiry where the
IBAC considers on reasonable grounds that the disclosure of one
or more restricted matters would be likely to prejudice the
preliminary inquiry.
Clause 14 also makes consequential amendments to
sections 42(3), (4), (5) and (9) of the IBAC Act as a result of
this amendment.
Clause 15 amends section 44(7) of the IBAC Act to provide that the offence
in that section applies in respect of a confidentiality notice in
respect of a preliminary inquiry as well as in respect of a
particular investigation.
Clause 16 amends section 47(2) of the IBAC Act to clarify that a protected
person is not compellable to produce or permit inspection of a
document or a thing that the protected person has created, in
addition to a document or thing that has come into the protected
person's possession or control in the performance of the duties
10
and functions or the exercise of the powers of the person or the
IBAC, if the IBAC certifies in writing that in the IBAC's opinion
the document or thing is a protected document or other thing.
Clause 17 amends section 48(1)(a) of the IBAC Act to clarify that
section 48 applies if, in a criminal proceeding, a subpoena is
issued for a protected person to produce any document or other
thing that the protected person has created, in addition to a
document or thing that has come into the protected person's
possession or control in the performance of the duties and
functions or the exercise of the powers of the person or the
IBAC.
Clause 18 amends sections 56(1) and (3) of the IBAC Act to provide that
the IBAC may receive from any person or body information
relevant to conducting a preliminary inquiry, and may use
information received under section 56 in conducting a
preliminary inquiry.
Clause 19 substitutes section 57(1) of the IBAC Act. New section 57(1)
provides that, subject to any exemption notices issued under
new section 57B, the relevant principal officer must notify the
IBAC of any matter that the person suspects on reasonable
grounds involves corrupt conduct occurring or having occurred.
Under the former section 57, notification of such matters by the
relevant principal officer to the IBAC was discretionary.
Clause 19 also inserts new section 57(1A)(a) and (b) in the
IBAC Act to provide that the new obligation does not apply to
the Chief Commissioner of Police or to specified persons or
bodies subject to a mandatory notification requirement under
another Act, being the Auditor-General, the Commission for
Children and Young People, the Electoral Commissioner, the
Chairman of the Environment Protection Authority, the
Ombudsman, the Victorian Public Sector Commissioner, the
Racing Integrity Commissioner or the Chief Executive Officer of
the Victorian WorkCover Authority.
New section 57(1A)(c) also provides that section 57(1) does not
apply to any matter involving corrupt conduct of the IBAC or
IBAC personnel.
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Clause 20 inserts new sections 57A and 57B in the IBAC Act. New
section 57A provides that the IBAC may issue Directions for or
with respect to notifications to the IBAC that are made in
accordance with a mandatory notification provision. Among
other things, Directions may specify which matters must be
notified and the manner in which a notification is to be made;
may relate to a specified mandatory notification provision or the
obligations of a specified person under a mandatory notification
provision; and may be of general or limited application.
Directions made under section 57A do not apply to the
Auditor-General, the Department Head of a Department of the
Parliament, the Electoral Commissioner or the Ombudsman.
New section 57B provides that the IBAC may issue exemption
notices for or with respect to a mandatory notification provision,
which may specify the types of matters that are not required to be
notified to the IBAC.
Directions and exemption notices must be published in the
Government Gazette and on the IBAC's website, and take effect
on the day after they are published in the Government Gazette, or
any later day specified in the Direction or exemption notice.
Clause 21 amends section 59 of the IBAC Act to clarify the IBAC's
obligations when notifying complainants and notifying entities of
action taken by the IBAC under section 58. The amended
section 59 clarifies that the IBAC is not required to provide a
statement advising that it is an offence to disclose the action
IBAC has taken when providing notice of the action taken to a
notifying entity. The IBAC must provide such a statement when
advising a complainant that certain action has been taken.
Clause 22 inserts a new Division 3A in Part 3 of the IBAC Act, providing
the IBAC with an explicit power under new sections 59A
and 59B to conduct a preliminary inquiry for the purpose of
determining whether to dismiss, refer or investigate a complaint
or notification under the IBAC Act or whether to conduct an own
motion investigation.
New section 59C(1) provides that Parts 3 and 4 of the IBAC Act
do not apply to, or in respect of, a preliminary inquiry.
New section 59C(2) provides that, for the avoidance of doubt, a
preliminary inquiry is not an investigation for the purposes of the
definition of prescribed investigation within the meaning of the
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Telecommunications (Interception and Access) Act 1979 of the
Commonwealth in so far as it relates to the IBAC.
New sections 59D and 59E provide the IBAC's powers in
conducting a preliminary inquiry. The IBAC's powers are
limited to—

requesting the relevant principal officer of a public body
to provide any relevant information to the IBAC; and

issuing a witness summons to any person requiring the
person to attend at a specified time and place on a
specified date to produce documents or other things to
the IBAC where the IBAC is satisfied that it is
reasonable to do so.
New section 59D provides the IBAC with the power to request
information from a relevant principal officer. A relevant
principal officer who receives a request for information in respect
of a preliminary inquiry is not required to comply with the
request if they advise the IBAC of a reasonable excuse for not
doing so. A relevant principal officer who complies with a
request for information (and any person who assists a relevant
principal officer in complying) has the same protection and
immunity as a person appearing as a witness at an examination.
New section 59E provides the IBAC with the power to issue a
witness summons in respect of a preliminary inquiry to a person
where the IBAC is satisfied that it is reasonable to do so.
In determining whether it is reasonable to issue a witness
summons, the IBAC is required to have regard to—

whether the production of the document or thing is
necessary to determine whether to conduct an own
motion investigation or dismiss, refer or investigate a
complaint or notification;

whether it is reasonably practicable to obtain the
information in the document or thing by any other
means;

the evidentiary or intelligence value of the information,
document or thing sought to be obtained; and

the age of the person and any mental impairment to
which the person is known or believed to be subject.
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New Division 3A also provides procedural requirements with
respect to witness summons, such as the content and form of
summonses, service requirements, and procedures for
determining claims or privilege or secrecy requirements.
New section 59L provides that a person to whom the IBAC
issues a summons in respect of a preliminary inquiry may make a
claim of privilege or rely upon a secrecy requirement under an
enactment or other law in respect of the document or thing that
the IBAC seeks to obtain.
New section 59O provides that it is an offence for a person to
refuse or fail to produce a document or thing required to be
produced by a summons in respect of a preliminary inquiry
without reasonable excuse. A claim of privilege or secrecy
requirement is a reasonable excuse for not complying with a
witness summons.
New section 59P provides that for the purposes of a preliminary
inquiry, the IBAC must not make an application for the issue of a
surveillance device warrant under section 15 of the Surveillance
Devices Act 1999 or authorise or conduct a controlled operation
under the Crimes (Controlled Operations) Act 2004.
Clause 23 substitutes section 60(2) of the IBAC Act, which formerly
required the IBAC, before conducting an investigation in its
corrupt conduct jurisdiction, to be reasonably satisfied that
conduct is serious corrupt conduct.
New section 60(2) provides that the IBAC must not conduct an
investigation under section 60(1) unless the IBAC suspects on
reasonable grounds that the conduct constitutes corrupt conduct.
Clause 23 also makes a consequential amendment to
section 60(5) of the IBAC Act as a result of this amendment.
Clause 24 amends section 66(3) of the IBAC Act to clarify that the IBAC
may investigate a protected disclosure complaint about
detrimental action in the circumstances provided in section 66(2)
whether or not the IBAC suspects on reasonable grounds that the
conduct that is the subject of the protected disclosure complaint
is corrupt conduct.
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Clause 25 repeals section 68(2)(e) of the IBAC Act. Section 68(2)(e)
provided that a protected disclosure complaint is deemed to have
been dismissed if the person who made the complaint requests
that the complaint not be investigated. This provision was
inconsistent with the operation of section 55(4) of the IBAC Act
and sections 20(1) and 26 of the Protected Disclosure Act 2012.
Clause 25 also makes a consequential typographical amendment
to section 68(2)(d) of the IBAC Act.
Clause 26 repeals section 73(2)(ea) of the IBAC Act to remove a duplicate
reference to the Commission for Children and Young People
established under section 6 of the Commission for Children and
Young People Act 2012.
Clause 26 also inserts new sections 73(2)(ha) and (hb) to specify
the Chief Municipal Inspector appointed under section 223A of
the Local Government Act 1989 and a municipal monitor
appointed under section 223CA of the Local Government
Act 1989 as persons to whom the IBAC must refer a complaint
or notification under the circumstances described in
section 73(1).
Clause 27 amends section 85 of the IBAC Act by substituting the word
"Commissioner" for the word "IBAC" in the section heading and
repealing the note to section 85. This is consistent with the
amended delegation powers in new section 32.
Clause 28 amends sections 91 of the IBAC Act to allow the IBAC to make
a search warrant application to a magistrate as well as to a Judge
of the Supreme Court except where the search warrant relates to
an investigation into a judicial officer or is to enter and search
court premises or any vehicle on court premises.
Clause 29 amends section 115 of the IBAC Act to provide that the IBAC
may appoint, to preside at any examination, a person who would
be eligible to appointed to be the Commissioner who has taken an
oath or made an affirmation under section 37, including a
consultant appointed under section 36 who meets that criteria.
The IBAC must notify the Victorian Inspectorate of any such
appointment as soon as practicable, including the person
appointed and the reasons for the appointment.
15
A person appointed to preside at an examination may—

preside at a public examination;

perform any function or exercise any power that the
IBAC has under Part 6, other than deciding to hold an
examination; appointing a person as an examiner;
deciding to hold a public examination; charging a
person with contempt; or directing that an arrested
person be detained in custody; and

administer an oath or affirmation to a person summoned
to attend at an examination as if the person was an
IBAC officer authorised to do so by the Commissioner
under section 132(1) of the IBAC Act.
Clause 30 amends section 118 of the IBAC Act, which establishes an
offence for an unauthorised person to be present at an IBAC
examination that is not open to the public, to clarify that present
includes being "remotely present" (for example, by video link).
Clause 31 amends section 119 of the IBAC Act to provide that a direction
issued by the IBAC as to the persons who may or must not be
present during an examination or part of an examination, may
provide that a person may be remotely present.
Clause 32 substitutes section 124(4) of the IBAC Act to provide that a
witness summons directed to a body corporate must be served by
sending a copy of the witness summons by registered post to the
head office, a registered office, a principal office, or a principal
place of business of the body corporate, or to a postal address of
the body corporate.
Clause 33 makes a typographical amendment to section 126(4) of the
IBAC Act.
Clause 34 inserts new section 129A in the IBAC Act to provide that the
IBAC may issue a suppression order prohibiting or restricting the
publication of any information or evidence given during a public
examination if the IBAC considers that the suppression order is
necessary—

to prevent prejudice or hardship being caused to any
person, including harm to the person's safety or
reputation;
16

to avoid the possibility of any prejudice to legal
proceedings; or

for any other reason having regard to all the
circumstances.
A suppression order must specify the ground on which it is made.
The IBAC must cause a copy of the suppression order to be
placed on the door of the place where the public examination is
being held, and must take reasonable steps to notify any relevant
person or body corporate that a suppression order has been made.
This may include publishing notice of the making of the
suppression order on the IBAC's website. If the suppression
order relates to information or evidence given by the IBAC to
another person, the IBAC must also provide that person with a
copy of the suppression order. It is an indictable offence for a
person to engage in conduct that contravenes a suppression order
under section 129A if the person knows that, or is reckless as to
whether, the suppression order is in force.
Clause 35 substitutes section 130(1)(c) of the IBAC Act to provide that the
IBAC need not inform a witness summoned to attend an
examination of their rights and obligations as specified in
section 121(4) of the IBAC Act where the witness informs the
IBAC that—

an Australian legal practitioner has explained the
statement referred to in section 121(3)(c) of the
IBAC Act to the witness before the examination; and

the witness does not wish to be informed of the
statement referred to in section 121(3)(c) again.
Clause 36 amends section 136 of the IBAC Act to provide that it is not a
reasonable excuse for a witness to refuse or fail to answer a
question asked by the IBAC (that is relevant in any respect to the
subject matter of the relevant investigation) on the ground that
the question does not relate to the direct involvement of the
witness in identified corrupt conduct.
Clause 37 amends sections 139(1) and (2) of the IBAC Act to allow the
IBAC to make an arrest warrant application for a witness who
fails to appear to a magistrate as well as to a Judge of the
Supreme Court.
17
Clause 38 amends section 140 of the IBAC Act to allow a person who has
been arrested under an arrest warrant to be brought before the
Magistrates' Court (as well as the Supreme Court as is currently
allowed) if it is not practicable for the person to be brought
before the IBAC within a reasonable time after the person's
arrest.
Clause 39 amends section 142 of the IBAC Act to provide that when
providing a written report to the Victorian Inspectorate within
3 days after the issue of the arrest warrant, the IBAC must
specify the reasons in summary form as to why the IBAC applied
for the issue of a search warrant (rather than the reasons why the
arrest warrant was issued, which is currently the case).
Clause 40 substitutes section 150 of the IBAC Act. New section 150
provides that a person appearing as a witness in an examination
who, under the regulations, is entitled to a reimbursement of
expenses, must be paid an amount for any expenses incurred by
that appearance, as provided in the scale prescribed in the
regulations.
Clause 41 inserts new section 151(2A) in the IBAC Act to provide that the
prescribed person (to whom a person appearing as a witness in an
examination may apply for legal assistance) may delegate, by
instrument, to any employee or class of employees employed
under Part 3 of the Public Administration Act 2001 any powers
provided to the prescribed person under section 151.
Clause 42 amends section 163(3) of the IBAC Act to remove the
requirement that briefings to senior public servants about the
commencement, conduct or results of an investigation must be in
written form. Section 163(3) is also amended to allow the IBAC
to provide information not only to the relevant principal officer
but also to any other appropriate senior officer. Senior officer is
defined to mean a person who holds a prescribed position or is a
member of a prescribed class of positions for the purposes of the
section.
Clause 43 amends section 180 of the IBAC Act to provide that it is an
offence to hinder or obstruct an IBAC officer performing
functions under Part 6 (which relates to examinations), rather
than being an offence to hinder or obstruct an IBAC officer in
performing functions under Part 5 (which deals with defensive
equipment and firearms).
18
Clause 44 substitutes section 185 of the IBAC Act.
New section 185(1) provides that, if a body corporate commits an
offence against a specified provision, an officer of the body
corporate also commits an offence against the provision if the
officer authorised or permitted the commission of the offence, or
was knowingly concerned in any way in the commission of the
offence by the body corporate.
New section 185(2) specifies offence provisions of the IBAC Act
to which section 185(1) applies. New section 185(3) provides
that an officer of a body corporate may rely on a defence that
would be available to the body corporate were it charged with the
offence with which the officer is charged. New section 185(4)
provides that an officer of a body corporate may commit an
offence against a specified provision whether or not the body
corporate has been prosecuted for, or found guilty of, an
offence against a specified provision. New section 185(5)
defines body corporate and officer for the purposes of the
section. New section 185(6) states that this section does not
affect the operation of sections 323 or 324 of the Crimes
Act 1958.
Clause 45 amends new sections 196(fa) and (na) in the IBAC Act to provide
that regulations made under the IBAC Act may prescribe a
person or body for the purposes of the definition of senior officer
in sections 41(5) and 163(9) of the IBAC Act.
Clause 46 inserts notes at the foot of the offence provisions specified in new
section 185(2) of the IBAC Act, highlighting that section 185
applies to an offence against the relevant provision.
Clause 47 amends section 189 of the IBAC Act to clarify that the
Commissioner has power to authorise a sworn IBAC officer or a
police officer to bring proceedings under that section.
Clause 48 amends section 190 of the IBAC Act to clarify that the
Commissioner has power to authorise a sworn IBAC officer or a
police officer to bring proceedings under that section.
Clause 49 amends section 23(2) of the IBAC Act to omit "within the
meaning of the Legal Profession Act 2004".
Clause 49 also amends section 49(2) and the note to
section 24(13)(a) of the IBAC Act to replace "Legal Profession
Act 2004" with "Legal Profession Uniform Law (Victoria)".
19
Part 3—Audit Act 1994
Clause 50 substitutes section 16AB(8) of the Audit Act to provide that for
the purposes of section 16AB, Parliament is in recess when
neither House is sitting.
Clause 51 substitutes section 19A(1) of the Audit Act to provide that,
subject to any exemption notice issued under section 57B of the
IBAC Act, the Auditor-General must notify the IBAC of any
matter that the Auditor-General suspects on reasonable grounds
involves corrupt conduct, of which the Auditor-General becomes
aware in the performance of functions or the exercise of powers
under the Audit Act or any other Act.
Clause 51 also amends section 19A(4) of the Audit Act to omit
the word "serious".
Clause 52 amends section 19B(1)(a) of the Audit Act to provide that the
Auditor-General must notify the Victorian Inspectorate of any
matter of which the Auditor-General becomes aware in the
performance of functions under the Audit Act or any other Act
that appears to involve misconduct (as opposed to conduct) of or
in relation to the IBAC or IBAC personnel; or misconduct
(as opposed to conduct), other than corrupt conduct, of the
Chief Examiner, an Examiner, or an officer of the Ombudsman's
office or the Auditor-General's office that appears to be relevant
to the Victorian Inspectorate's functions.
Clause 53 amends section 19C of the Audit Act.
Section 19C(1) provides that the Auditor-General may provide or
disclose information received or obtained in the course of the
performance of duties and functions or the exercise of powers
under the Audit Act or any other Act to specified persons or
bodies if the Auditor-General considers that the information is
relevant to the person or body's performance of duties and
functions or exercise of powers and it is appropriate for the
information to be brought to the attention of the person or body.
Clause 53 inserts new section 19C(1A) in the Audit Act to
provide that section 19C(1) applies despite anything to the
contrary in section 12(2) of the Audit Act, except in respect of
information that, but for the operation of section 12(1) of the
Audit Act, could not have been lawfully provided or disclosed
20
because Cabinet confidentiality applies. Section 19C(3) is
consequentially amended to reflect this change.
Clause 53 also amends section 19C(2) of the Audit Act to
provide that for the purposes of section 19C(1), the specified
persons and bodies include: Victoria Police (instead of the
Chief Commissioner of Police); the Commissioner for Privacy
and Data Protection; the Commission for Children and Young
People; the Chief Municipal Inspector and a municipal monitor
appointed under the Local Government Act 1989; the Victorian
WorkCover Authority; the Environment Protection Authority;
the Racing Integrity Commissioner; the Australian Federal
Police; the police force or police service (however described) of
another State or a Territory; and any other prescribed person or
body.
Clause 54 amends section 20A(3) of the Audit Act to provide that a
person to whom information is given under section 19C
(in addition to section 16F) must not disclose the information
except in the course of performing the person's official duties or
after the information has been made public in a report by the
Auditor-General.
Clause 54 also inserts new section 20A(4) to provide that
section 20A(1) does not apply to the provision or disclosure of
information by the Auditor-General in accordance with
section 16F or section 19C.
Part 4—Ombudsman Act 1973
Clause 55 amends section 2 of the Ombudsman Act to provide that police
personnel misconduct has the same meaning as it has in
section 3(1) of the IBAC Act.
Clause 55 also amends the definition of restricted matter in
section 2 of the Ombudsman Act to include evidence or
information given to or obtained by the Ombudsman.
Clause 56 amends section 13A(1)(a) and (b) of the Ombudsman Act to
remove an existing restriction, thereby providing that the
Ombudsman may conduct an enquiry in relation to a protected
disclosure complaint for the purposes of determining whether an
investigation under the Act should be conducted, but not for the
purposes of determining whether the protected disclosure
complaint may be resolved informally.
21
Clause 56 also amends section 13A(3) of the Ombudsman Act to
provide that the principal officer of a protected disclosure entity
(as well as the principal officer of an authority) must assist the
Ombudsman in the conduct of an enquiry.
Clause 57 substitutes section 14(2) of the Ombudsman Act to provide that,
if a complaint to the Ombudsman is not made in writing, the
Ombudsman may require the complainant to provide a written
statement in the form (if any) specified by the Ombudsman
confirming that the complainant wants the Ombudsman to
consider the complaint and specifying the details of the
complaint.
Clause 58 amends section 15 of the Ombudsman Act. Formerly, section 15
provided that the Ombudsman must refuse to deal with a
complaint that appears to involve corrupt conduct or police
personnel conduct other than to notify the IBAC or the Victorian
Inspectorate.
New section 15(1) provides that the Ombudsman must not
deal with a complaint that involves police personnel conduct
other than to notify the IBAC or the Victorian Inspectorate.
New section 15(1A) provides that, subject to new
subsection (1B), the Ombudsman must not deal with a
complaint that the Ombudsman suspects on reasonable grounds
involves corrupt conduct until the Ombudsman notifies the IBAC
or the Victorian Inspectorate under Division 2C. Under new
section 15(1B), if the IBAC notifies the Ombudsman that it has
determined to investigate a matter involving corrupt conduct or
refer the matter, the Ombudsman may only continue to deal with
a complaint that involves the matter or continue to conduct an
investigation in relation to the matter in the following
circumstances—

the IBAC and the Ombudsman agree—to the extent and
subject to the conditions agreed; or

where the IBAC refers the matter to another body under
section 73 of the IBAC Act, to the extent of the referral;
or

the IBAC completes or discontinues its investigation
into the matter.
22
The amendments will allow the Ombudsman to continue to deal
with a complaint or investigate a matter where the IBAC has
determined to investigate or refer the same matter, while
avoiding interference between investigations. For example,
the amendment would allow the IBAC and the Ombudsman to
agree that the Ombudsman can continue investigating a
matter that involves maladministration, while the IBAC
investigates elements of the matter relating to corrupt conduct.
The amendments do not change the position with respect to
police personnel conduct.
Clause 58 also amends the heading of section 15 of the
Ombudsman Act.
Clause 59 inserts new section 15A(3) in the Ombudsman Act, which
provides that the Ombudsman may refuse to deal with a
complaint if the complainant fails to comply with a requirement
made under section 14(2).
Clause 60 amends section 15C of the Ombudsman Act by substituting
"and 15E" with "15E or 17", providing that the general
requirement to investigate protected disclosure complaints is
qualified by the operation of the new power to discontinue an
investigation into a protected disclosure complaint inserted by
clause 67.
Clause 61 amends section 15E of the Ombudsman Act to provide that the
Ombudsman may refuse to conduct an investigation into a
protected disclosure complaint if the Ombudsman considers that
the conduct which is the subject of the protected disclosure
complaint does not amount to improper conduct or detrimental
action against a person in contravention of section 45 of the
Protected Disclosure Act 2012.
Clause 62 substitutes section 16A(2) of the Ombudsman Act with new
sections 16A(2) and (2A). New section 16A(2) provides that,
subject to subsection (2A), the Ombudsman must not conduct an
own motion investigation into any administrative action that the
Ombudsman suspects on reasonable grounds involves corrupt
conduct until the Ombudsman notifies the IBAC or the Victorian
Inspectorate.
23
New section 16(2A) provides that, if the IBAC notifies the
Ombudsman that it has determined to investigate or refer a
matter, the Ombudsman must not conduct, or continue to
conduct, an own motion investigation into any administrative
action that involves that matter, unless—

the IBAC and the Ombudsman agree—to the extent and
subject to the conditions agreed; or

where the IBAC refers the matter to another body under
section 73 of the IBAC Act, to the extent of the referral;
or

the IBAC completes or discontinues its investigation
into the matter.
Clause 63 substitutes section 16E(1) of the Ombudsman Act to provide that,
subject to any exemption notice issued under section 57B of the
IBAC Act, the Ombudsman must notify the IBAC of—

a complaint or referred matter that the Ombudsman
suspects on reasonable grounds involves corrupt
conduct or police personnel misconduct; or

a matter of which the Ombudsman becomes aware in
the course of dealing with a complaint, conducting an
own motion investigation, or performing any other
functions under the Act that the Ombudsman suspects
on reasonable grounds involves corrupt conduct or
police personnel misconduct.
Clause 63 also amends section 16E(4) to omit the word "serious".
Clause 64 amends section 16F(1)(a), (1)(b) and (2) to substitute the word
"misconduct" for the word "conduct". This clarifies that the
Ombudsman need not notify the Victorian Inspectorate of a
complaint or referred matter that involves appropriate conduct by
the IBAC or IBAC personnel, an officer of the Ombudsman or
the Auditor-General, the Chief Examiner or an Examiner.
Clause 65 amends section 16L(2) of the Ombudsman Act to specify
additional persons and bodies to which the Ombudsman may
provide or disclose any information received or obtained in the
course of the performance of duties and functions or the exercise
of powers under the Ombudsman Act. The Ombudsman may
disclose information to the specified bodies if the Ombudsman
24
considers that the information is relevant to the performance of
the duties and functions or the exercise of the powers of the
person or body and it is appropriate for the information to be
brought to the attention of the person or body, having regard to
the nature of the information.
Clause 65 also inserts new sections 16L(4) and (5) in the
Ombudsman Act, which provide that, if a House of Parliament
has referred a report made by the Ombudsman to a Parliamentary
Committee of that House to determine whether there has been a
breach of parliamentary privilege or contempt of Parliament, and
the Parliamentary Committee requests the Ombudsman to
provide or disclose any information acquired through the
preparation of the report which the Committee considers may be
necessary for its deliberations, the Ombudsman may at the
Ombudsman's discretion comply with the request. In responding
to the request, the Ombudsman must not provide or disclose
information that is likely to lead to the identification of a person
who has made an assessable disclosure.
Clause 66 inserts new section 16M in the Ombudsman Act to provide that
the Ombudsman may provide or disclose information received or
obtained in the course of the performance of duties and functions
or the exercise of powers under the Ombudsman Act to—

the public, being information which relates to the
commencement or progress of an own motion
investigation and which the Ombudsman is satisfied
does not include any information that is likely to lead to
the identification of a person or any information that is
adverse to an authority (unless the information is
already in the public domain or the authority has
consented to the information being provided or
disclosed);

a person, body or authority that the Ombudsman
considers appropriate where the Ombudsman considers
that the provision or disclosure is necessary to prevent
or lessen the risk of harm to any person's health, safety
or welfare; and

to an authority where the Ombudsman considers that the
provision or disclosure is necessary to assist the
authority to improve its administrative practices and
procedures and the Ombudsman is satisfied that the
25
information does not include any information that is
likely to lead to the identification of any person.
Section 16M(2) prevents the Ombudsman from providing or
disclosing specified information. Section 16M(3) provides that
the operation of section 16M is not limited by section 16L or
section 26A.
Clause 67 inserts new sections 17(6B), (6C), (6D) and (6E) in the
Ombudsman Act.
New section 17(6B) provides that the Ombudsman may at any
time during an investigation discontinue the investigation if in all
the circumstances the Ombudsman considers that grounds
specified in section 15A or 15E for refusing to conduct an
investigation would now apply or the matter has been sufficiently
investigated and further investigation is not warranted.
New section 17(6C) provides that the Ombudsman must
discontinue an investigation if in all the circumstances the
Ombudsman considers that a ground specified in section 15, for
refusing to deal with the complaint, or section 15D, for refusing
to conduct an investigation, would now apply.
New section 17(6D) provides that, if the Ombudsman
discontinues an investigation in accordance with
sections 17(6B)(a) or (6C), the Ombudsman must inform any
person informed of the investigation under subsection (1) of the
discontinuance of the investigation and the reason for the
discontinuance, and that the requirements in sections 23, 23A
and 24(1) do not apply.
New section 17(6E) provides that, if the Ombudsman
discontinues an investigation in accordance with
section 17(6B)(b), sections 23, 23A and 24(1), relating to
procedure, reporting and communicating applying to a completed
investigation, apply as if the investigation had been completed;
and the Ombudsman must provide the reason for the
discontinuance in any report or notification given under those
sections.
Clause 68 substitutes section 25AA(7) of the Ombudsman Act to clarify
that for the purposes of section 25AA Parliament is in recess
when neither House is sitting.
26
Clause 69 inserts new section 26A(3) in the Ombudsman Act which
clarifies that unauthorised disclosure restrictions do not apply to
the provision or disclosure of information by the Ombudsman
officer in accordance with: sections 16I, 16J or 16K, which relate
to referrals of complaints by the Ombudsman; section 16L or
new section 16M, which allow the Ombudsman to disclose
information in certain circumstances; or section 17, which
requires the Ombudsman to inform certain persons of the
Ombudsman's intention to conduct an investigation.
Clause 70 makes typographical amendments to sections of the
Ombudsman Act to ensure the consistent use of gender
neutral language.
Part 5—Public Interest Monitor Act 2011
Clause 71 amends section 8(1) of the PIM Act by substituting
"Australian legal practitioner" with "Australian lawyer",
providing that a Public Interest Monitor is not required to hold
a current legal practising certificate.
Clause 72 amends section 12(i) of the PIM Act by substituting
"Australian legal practitioner" with "Australian lawyer".
Clause 73 amends section 17(1) of the PIM Act to provide that a person
who assists or assisted a Public Interest Monitor (as well as a
person who is or was a Public Interest Monitor, as is currently
provided) must not disclose information obtained or that came to
the person's knowledge in the course of assisting a Public Interest
Monitor.
Clause 73 also substitutes sections 17(2), (3) and (4) of the
PIM Act. New section 17(2) provides that the confidentiality
restrictions contained in section 17(1) do not apply to disclosure
of information by a Public Interest Monitor in the performance
of their functions, including the disclosure of information to a
person assisting the Public Interest Monitor in the performance
of their functions, or to another Public Interest Monitor.
This excludes information the disclosure of which is prohibited
by section 63 of the Telecommunications (Interception and
Access) Act 1979 of the Commonwealth.
27
New section 17(3) provides that a person who is or was a Public
Interest Monitor, or a person assisting a Public Interest Monitor,
is not compellable to disclose information obtained, or that came
to the person's knowledge, in the course of or as a result of
performing his or her functions or assisting a Public Interest
Monitor, in any proceedings before a court, board, commission or
tribunal.
Clause 74 inserts an immunity provision, new section 17A, into the
PIM Act, providing that a Public Interest Monitor is not
personally liable for anything necessarily or reasonably done
(or omitted to be done) in good faith in the performance of a
function or the exercise of a power under the Act, or in the
reasonable belief that the act or omission was in the course of the
performance of a function or the exercise of a power under the
Act. Any liability resulting from an act or omission that would
otherwise attach to a Public Interest Monitor attaches instead to
the State.
Part 6—Victorian Inspectorate Act 2011
Clause 75 inserts new section 12A in the Victorian Inspectorate Act to
provide that for the purposes of performing the functions
specified in section 11(2)(a), (b), (c) and (f), the Victorian
Inspectorate is entitled to have full and free access to, and make
copies and take extracts of, all relevant records of the IBAC; and
may require the IBAC or IBAC personnel to give the Victorian
Inspectorate any information in the IBAC's possession or control
that the Victorian Inspectorate considers on reasonable grounds is
relevant to the performance of those functions; and may require,
in writing, any IBAC personnel to attend at the office of the
Victorian Inspectorate for the purpose of giving the Victorian
Inspectorate any information or document required by the
Victorian Inspectorate which the Victorian Inspectorate considers
on reasonable grounds is relevant to the performance of those
functions.
New section 12A also requires the IBAC to provide, and to
ensure that IBAC personnel provide, to the Victorian Inspectorate
any assistance in connection with the performance of the
specified functions that the Victorian Inspectorate reasonably
requires.
28
Clause 76 inserts new Division 1A in the Victorian Inspectorate Act, which
provides under new sections 48B and 48C that the Victorian
Inspectorate may conduct a preliminary inquiry for the purpose
of determining whether to investigate a complaint or conduct an
own motion investigation.
New section 48D provides that Divisions 2 and 3 of the Victorian
Inspectorate Act do not apply to, or in respect of, a preliminary
inquiry.
New section 48E provides that the IBAC, the Auditor-General,
the Ombudsman and the Chief Examiner must provide any
assistance to the Victorian Inspectorate that the Victorian
Inspectorate reasonably requires in the conduct of a preliminary
inquiry.
Clause 77 amends the note to section 21(12)(a) of the Victorian
Inspectorate Act to refer to the "Legal Profession Uniform
Law (Victoria)" instead of the "Legal Profession Act 2004".
Part 7—Amendments to other Acts
Clause 78 substitutes section 61(1) of the Commission for Children and
Young People Act 2012. New section 61(1) provides that,
subject to any exemption notice issued under section 57B of the
IBAC Act, the Commission must notify the IBAC of any matter
that the Commission suspects on reasonable grounds involves
corrupt conduct occurring or having occurred, of which the
Commission becomes aware in the performance of functions or
the exercise of powers under the Commission for Children and
Young People Act 2012 or any other Act.
Clause 78 also amends section 61(3) of the Commission for
Children and Young People Act 2012 to provide that the
mandatory notification requirement does not apply to a matter the
subject of a complaint or notification referred to the Commission
by the IBAC under section 73 of the IBAC Act.
Clause 78 also amends section 61(4) to omit the word "serious".
Clause 79 substitutes section 19A(1) of the Electoral Act 2002.
New section 19A(1) provides that, subject to any exemption
notice issued under section 57B of the IBAC Act, the Electoral
Commissioner must notify the IBAC of any matter that the
Electoral Commissioner suspects on reasonable grounds involves
corrupt conduct occurring or having occurred, of which the
29
Electoral Commissioner becomes aware in the performance of
functions or the exercise of powers under the Electoral Act 2002
or any other Act.
Clause 80 substitutes section 54C(1) of the Environment Protection
Act 1970. New section 54C(1) provides that, subject to any
exemption notice issued under section 57B of the IBAC Act, the
Chairman of the Environment Protection Authority must notify
the IBAC of any matter that the Chairman suspects on reasonable
grounds involves corrupt conduct occurring or having occurred,
of which the Chairman becomes aware in the performance of
functions or the exercise of powers under the Environment
Protection Act 1970 or any other Act.
Clause 80 also amends section 54C(4) to omit the word "serious".
Clause 81 makes a typographical amendment to section 46 of the Health
Records Act 2001.
Clause 82 makes typographical amendments to section 6 of the Legal Aid
Act 1978 to provide that Victoria Legal Aid may enter into
arrangements to provide legal services on behalf of the prescribed
person referred to in section 151 of the IBAC Act and may carry
out the prescribed person's functions under section 151 of the
IBAC Act.
Clause 83 inserts new section 223B(7) in the Local Government Act 1989
to provide that, if the Chief Municipal Inspector considers at any
time that any matter referred to the Chief Municipal Inspector by
the IBAC under section 73 of the IBAC Act appears to involve
corrupt conduct, the Chief Municipal Inspector must inform the
IBAC.
Clause 83 also inserts new section 223CC(7) in the Local
Government Act 1989 to provide that, if a municipal monitor
considers at any time that any matter referred to the municipal
monitor by the IBAC under section 73 of the IBAC Act appears
to involve corrupt conduct, the municipal monitor must inform
the IBAC.
Clause 84 inserts new section 4(2)(da) in the Protected Disclosure
Act 2012 to provide that improper conduct includes conduct of a
person intended to adversely affect the effective performance or
exercise (as compared to the honest performance or exercise) of a
30
public function or power by a public officer or public body, that
results in the person or an associate of the person obtaining—

a licence, permit, approval, authority or other
entitlement under any Act or subordinate instrument;

an appointment to a statutory office or as a member of
the board of any public body under any Act or
subordinate instrument;

a financial benefit or real or personal property; or

any other direct or indirect monetary or proprietary
gain—
that they would not have otherwise obtained.
Clause 84 inserts new sections 4(2A) and (2B) in the Protected
Disclosure Act 2012 to provide—

for the purposes of section 4(2)(da), the effective
performance or exercise by a public officer or public
body of the functions or powers of the public officer or
public body may be adversely affected notwithstanding
that the public officer or public body does not engage in
any corrupt conduct or other misconduct in performing
or exercising those functions or powers;

for the purposes of section 4(2)(da), an associate of a
person is a person or entity who has an agreement,
arrangement or understanding with the person or holds
any relevant financial interest in any business of the
person; a relative of the person (if the person is a natural
person); or, if the person is a body corporate, an entity
of whom the person is an associate or an employee or
officer of a related body corporate within the meaning
of the Corporations Act; and

the definition of relative and relevant financial interest
for the purposes of new section 4(2B).
Clause 85 amends section 26 of the Protected Disclosure Act 2012 to give
the IBAC discretion to assess whether, in its view, a disclosure
notified to the IBAC through some other means than is specified
in section 26(1) is a protected disclosure.
31
Clause 86 amends section 73(1) of the Public Administration Act 2004 to
provide that, subject to any exemption notice issued under
section 57B of the IBAC Act, the Victorian Public Sector
Commissioner must notify the IBAC of any matter that the
Commissioner suspects on reasonable grounds involves corrupt
conduct occurring or having occurred, of which the
Commissioner becomes aware in the performance of functions or
the exercise of powers under the Public Administration
Act 2004 or any other Act.
Clause 87 amends section 37G(1) of the Racing Act 1958 to provide that,
subject to any exemption notice issued under section 57B of the
IBAC Act, the Racing Integrity Commissioner must notify the
IBAC of any matter that the Racing Integrity Commissioner
suspects on reasonable grounds involves corrupt conduct
occurring or having occurred, of which the Racing Integrity
Commissioner becomes aware in the performance of functions or
the exercise of powers under the Racing Act 1958 or any other
Act.
Clause 87 also amends section 37G(4) of the Racing Act 1958 to
omit the word "serious".
Clause 88 amends section 20A(4) of the Surveillance Devices Act 1999 to
require that, when a surveillance device warrant is revoked, either
the magistrate or the chief officer of the law enforcement agency
must notify the Public Interest Monitor.
Clause 89 amends section 613(1) of the Workplace Injury Rehabilitation
and Compensation Act 2013 to provide that, subject to any
exemption notice issued under section 57B of the IBAC Act, the
Chief Executive Officer of the Authority must notify the IBAC of
any matter that the Chief Executive Officer of the Authority
suspects on reasonable grounds involves corrupt conduct
occurring or having occurred, of which the Chief Executive
Officer of the Authority becomes aware in the performance of
functions or the exercise of powers under the Workplace Injury
Rehabilitation and Compensation Act 2013 or any other Act.
Clause 89 also amends section 613(4) of the Workplace Injury
Rehabilitation and Compensation Act 2013 to omit the word
"serious".
32
Part 8—Audit Act 1994—Accountability amendments
Clause 90 inserts new section 1(aa) in the Audit Act to extend the purpose
of the Act such that performance audits of authorities include
having regard to information called for from an associated entity
to the extent necessary to ensure that the objectives specified in
section 3A are achieved.
New section 1(aa) makes explicit the Auditor-General's power to
have regard to information called for from associated entities
outside the public sector in the course of conducting performance
audits.
Clause 91 inserts new definitions of associated entity and third party
contractor in section 3 of the Audit Act.
The definition of associated entity facilitates information being
called for from associated entities that provide services on behalf
of government under a range of legal structures.
The definition of third party contractor extends the reach of the
Auditor-General's powers along a contractual chain of
responsibility that extends beyond the associated entity that has
the primary relationship with the authority.
Clause 92 amends section 3A of the Audit Act which sets out the objectives
of the Audit Act.
Clause 92 inserts new section 3A(1)(b)(iii) which elevates the
determining of whether there has been any wastage of public
resources or any lack of probity or financial prudence in the
management or application of public resources from a matter to
which regard must be had in pursuing the objectives of the
Audit Act, as currently stated in section 3A(2) of the Audit Act,
to an objective in its own right.
Clause 92 also inserts new section 3A(1)(ca) which includes as
an objective that the Auditor-General has the necessary powers
when conducting a performance audit of an authority to call for
information from an associated entity, making this power
explicit.
Clause 92 repeals section 3A(2) of the Audit Act. This section is
rendered redundant by the insertion of section 3A(1)(b)(iii).
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Clause 93 inserts new section 3B into the Audit Act that provides for the
operation of Part 3 and section 16C of the Audit Act, which
respectively relate to the undertaking of audits of authorities and
audits in relation to financial benefits given by the State or
authorities, outside Victoria, as far as the legislative power of the
Victorian Parliament permits.
This new section will ensure that the Auditor-General has power
to audit activities and operations that occur outside Victoria.
Clause 94 inserts new section 7A(1A) into the Audit Act that requires the
Auditor-General to include in his or her proposed work plan
details of any performance audit that involves calling for
information from an associated entity.
Clause 94 also inserts new section 7A(1B) which provides that
the failure to include details of an authority or associated entity in
the annual plan does not prevent the Auditor-General from
conducting a performance audit which involves the authority or
calling for information from a related associated entity.
This maintains the Auditor-General's current ability to undertake
audits that were not signalled in the annual plan.
Clause 95 amends section 11D by replacing the reference to section 15(2)
with a reference to section 15. This reflects the changed
requirements for the Auditor-General to consult with the PAEC,
relevant authorities and associated entities when preparing a
specification for a performance audit.
Clause 95 also inserts new section 11D(2) which provides that
where an associated entity relevant to an audit is identified after
the audit has commenced, the Auditor-General must provide a
copy of an updated version of the specification to any relevant
authority and the associated entity within a reasonable time prior
to calling for information from that associated entity.
This provision ensures that all authorities and associated entities
receive advance notice of a performance audit. However, there is
no requirement to consult with the PAEC again in such an
instance, given that the audit has already commenced.
Clause 96 inserts new section 12(4) which extends the over-riding of
obligations to maintain secrecy and confidentiality, which
currently apply to employees of authorities, to an associated
entity and persons employed by an associated entity from whom
the Auditor-General has obtained information.
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Clause 97 amends section 15 of the Audit Act which relates to performance
audits, to ensure that the Auditor-General's power to undertake a
performance audit of an authority extends to consideration of
activities and operations undertaken on behalf of that authority by
an associated entity. This clause also ensures that the other
powers and provisions relating to performance audits apply to
this extended coverage.
Clause 97 also substitutes section 15(2) of the Audit Act to
provide that when undertaking a performance audit, the
Auditor-General may consider the effectiveness, economy and
efficiency with which the associated entity performs services or
functions on behalf of the authority or on behalf of the State.
Clause 97 also substitutes section 15(3) to provide that the
Auditor-General may only call for information from an
associated entity in accordance with the specification of the
performance audit and to the extent that an associated entity is
using public funds.
Clause 97 also inserts new section 15(4) to extend the existing
requirement that the Auditor-General, prior to a performance
audit, prepare a specification for an audit that sets out particular
objectives and issues to be addressed in consultation with an
authority, to, at the Auditor-General's discretion, an associated
entity.
Clause 97 also inserts new section 15(5) to require the
Auditor-General to consult with PAEC before conducting a
performance audit if the audit is collaborative, was not included
in the annual plan, was included in the annual plan but has been
materially changed or involves an associated entity. It also
provides that the PAEC may request consultation on any
performance audit. This replaces the existing requirement that
the PAEC be consulted on every performance audit, to streamline
the consultation process while maintaining an appropriate
connection between the Auditor-General and the PAEC.
Clause 97 also inserts new section 15(6) which requires the
Auditor-General to provide the PAEC, each relevant authority
and relevant associated entities with the opportunity to comment
on the draft specification for a performance audit within 15 days.
It also provides that in the absence of a response within this time,
the Auditor-General may proceed on the basis that the PAEC,
authority, or associated entity, has no comment.
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Clause 97 also inserts new section 15(7) that applies the powers
and protections relating to a performance audit, to a performance
audit which involves calling for information from an associated
entity. It thereby extends the rights, obligations and protections
applicable to the public sector under the Audit Act, to an
associated entity.
Clause 98 relates to reports to Parliament. Clause 97 inserts new
section 16(2A) which prevents the Auditor-General from
publishing in a report to Parliament, information that is a trade
secret or information relating to matters of a business,
commercial or financial nature, the disclosure of which would
unreasonably expose a person to any material disadvantage,
unless the Auditor-General is satisfied that the public interest
requires such disclosure. This provision provides protection for
authorities and associated entities that may be required to provide
information to the Auditor-General in the course of a
performance audit.
Clause 98 also amends clause 16(3) to extend the provisions
relating to authorities to associated entities. This provides
associated entities with the same right to receive a proposed
report or relevant part of a report and to provide the
Auditor-General with submissions or comments in relation to
the proposed report within a specified period.
Clause 98 also inserts a new subsection 16(3A) that requires the
Auditor-General to give a copy of a proposed report to the
Secretary of the Department of Premier and Cabinet.
Clause 98 also amends section 16(4) extend the requirement for
the Auditor-General to include in a report to Parliament any
submissions or comments made within the specified period in
their entirety or in a form agreed between the Auditor-General
and an authority, to an associated entity.
Clause 98 also inserts new section 16(4A) that requires the
Auditor-General to direct any opinions or recommendations in a
report to Parliament to the relevant authority. This ensures the
focus of the audit remains on the relevant authority, which
remains responsible for recommendations of the audit.
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Clause 99 inserts new section 16FA into the Audit Act that enables the
Victorian Auditor-General to collaborate with the
Auditor-General of another Australian jurisdiction on a matter
where there is an agreement between the jurisdictions relating to
the provision by Victoria of funding or expenditure.
Clause 99 also inserts new section 16FA(2) which specifies that
collaboration does not extend to the undertaking of joint audits.
This ensures each Auditor-General remains subject to the
requirements of his or her jurisdiction's legislation including the
Auditor-General's responsibility for reporting to their own
Parliament on the outcome of an audit.
Clause 99 also inserts new section 16FA(3) which provides that
the Victorian Auditor-General is not empowered to share with
another Australian Auditor-General information that is subject to
Cabinet confidentiality or that relates to matters of a business,
commercial or financial nature, the disclosure of which would
expose a person unreasonably to disadvantage.
Clause 99 also inserts new section 16FA(4) that requires that
information provided by the Victorian Auditor-General not be
published or disclosed by the recipient Auditor-General unless
the information has already been published.
Clause 99 also inserts new section 15FA(5) also requires the
Victorian Auditor-General to report on such information sharing
in the relevant audit report, or if the information is shared after
publication of the audit report, in the Victorian Auditor-General's
next annual report.
New section 16FA(6) includes a definition of the jurisdictions
captured by the section.
Clause 100 extends the exemptions in section 20A of the Audit Act regarding
the improper use and disclosure of information, to persons who
receive information in the course of consultation for a
performance audit, or in their capacity as prescribed persons
within the Victorian integrity and accountability framework.
Clause 100 amends section 20A(2)(a) to provide that an officer
or employee of an authority who receives a proposed report of
part of a proposed report must not disclose the information in it
except in the course of their duties.
37
Clause 100 amends section 20A(3)(a) to provide that a person
who receives information under sections 15, 16F and 19C of the
Audit Act must not disclose it except in the course of their
official duties. This enables specified public officials and
integrity officers to act on relevant information disclosed to them
by the Auditor-General.
Clause 100 also amends section 20A(3)(b) to provide that
persons who receive information in the course of a performance
audit may not disclose the information until after the information
has been made public in a report by the Auditor-General.
Clause 101 repeals sections 22, 23, 24, 26, 27 and 28 of the Audit Act.
These are transitional provisions relating to previous amendments
of the Audit Act and are now redundant.
Part 9—Repeal of amending Act
Clause 102 provides that the Act is repealed on 10 December 2017.
The repeal does not affect the continuing operation of the
amendments made by the Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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