Department of Justice and Community Safety

Department of Justice and Community Safety

Regulation, Legal and Integrity Level 17

121 Exhibition Street

Melbourne Victoria 3000

OFFICIAL

Ms Bridget Noonan Clerk Legislative Assembly Parliament House Spring Street EAST MELBOURNE VIC 3002 By email: [email protected].

Dear Clerk The COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020 (Regulations) were made by the Governor in Council on 19 May 2020. As required by section 15 of the Subordinate Legislation Act 1994 (SLA), I enclose copies of the following documents prepared with respect to the Regulations:

• the accompanying recommendation to the Governor in Council to make the Regulations;

• a certificate issued under section 13 of the SLA (including a copy of the certified Regulations);

• a human rights certificate issued under section 12A of the SLA; and

• a certificate certifying the Regulations compliance with subsection 4(3) of the COVID-19 Omnibus (Emergency Measures) Act 2020.

Under section 15(1) of the SLA, these documents must be laid before each House of Parliament on or before the sixth sitting day after notice of the making of the Regulations was published in the Government Gazette, which occurred on 19 May 2020. I would appreciate if you could please arrange to table the enclosed documents in the Legislative Assembly as required.

Yours sincerely

Allison Will Director

Hon Jill Hennessy MP

Attorney-General

Minister for Workplace Safety

Level 26, 121 Exhibition Street


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OFFICIAL

COVID-19 Omnibus (Emergency Measures) Act 2020

ATTORNEY-GENERAL’S OPINION FOR RECOMMENDING THE MAKING OF TEMPORARY

REGULATIONS

(Section 4)

COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020

I, Hon Jill Hennessy MP, Attorney-General, and Minister responsible for making

recommendations to the Governor in Council for the making of regulations under section 4

of the COVID-19 Omnibus (Emergency Measures) Act 2020 (the Act) am of the opinion that

the proposed Regulations are consistent with any relevant directions made by an authorised

officer under Part 10 of the Public Health and Wellbeing Act 2008 in relation to the COVID-19

pandemic (section 4(3)(a)(ii) of the Act).

I am also of the opinion that the proposed Regulations are reasonable in managing or

responding to the COVID-19 pandemic in relation to the conduct or carrying out of a

proceeding, inquiry or investigation by an integrity entity (section 4(3)(b)(iii) of the Act), and

to protect the health, safety and welfare of persons in relation to the administration of

justice or law (section 4(3)(a)(i) of the Act).

Affected integrity entities are the Independent Broad-based Anti-corruption Commission

(IBAC), the Victorian Inspectorate (VI), the Ombudsman, the Information Commissioner and

the Chief Municipal Inspector (CMI).

I base this opinion on the following:

Requirements of section 4(3)(a)(ii) of the Act

Stay at Home Direction (No 6) made under section 200 of the Public Health and Wellbeing

Act 2008, dated 12 May 2020 (the Direction) requires everyone in Victoria to limit their

interactions with others by restricting the circumstances in which they may leave the

premises where they ordinarily reside and placing restrictions on gatherings. For example,

clause 8 (work and education) of the Direction allows a person to leave their home for work

but only if it is not reasonably practicable for the person to work from home. Clause 6

(essential goods and services) allows a person to leave home to obtain essential goods and

services from certain bodies, including from a government body. The proposed Regulations


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OFFICIAL

will enable people to adhere to the Direction as being involved in an integrity entity

investigation is unlikely to be regarded as obtaining a ‘service’ under the Direction. In

addition, enabling integrity entities to conduct examinations and other proceedings by audio

visual or audio link will allow people to more easily comply with the Direction by enabling

them to stay at home while still fulfilling their legal obligation to appear before an integrity

entity.

Requirements of section 4(3)(b)(iii)

The proposed Regulations are reasonable in relation to the conduct or carrying out of a

proceeding, inquiry or investigation by an integrity entity. It is vital for integrity entities to be

able to continue to perform their functions during the COVID-19 pandemic, including

obtaining necessary information from documents, witnesses and others. It is also necessary

to enable integrity entities to provide and receive documents for inspection where they

might otherwise have to do so by physical attendance. The proposed Regulations will modify

processes to allow for investigations to continue while limiting the physical contact between

people, including by:

• allowing integrity entities to serve witness summonses and other documents by electronic means or registered post;

• allowing people to attend before an integrity entity by audio or audio visual link;

• allowing witnesses to take an oath or affirmation before an integrity entity by audio visual link;

• allowing Information Commissioner to receive certain documents for inspection by secure electronic means;

• extending the deadline for the VI to inspect and report on Victoria Police and IBAC telecommunications interception records to limit the number of people in physical attendance to inspect the records; and

• allowing the CMI to provide certain documents for inspection by permitted persons.

A number of safeguards will be in place to support these changes. For example, in relation to

electronic service of documents, people will be required to confirm receipt of the document.

An integrity entity that receives a document by secure electronic means for inspection will

be required to destroy the document when the inspection is completed. In relation to

attendance by audio or audio visual means, a person will still be able to fully participate in

the examination and have their legal representative present (also by electronic means).

Integrity entities will be required to make reasonable modifications to the process for taking

an oath or affirmation by audio visual link for a person who has a disability.


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OFFICIAL

Requirements of section 4(3)(b)(i)

As set out above, the proposed Regulations are also reasonable in managing or responding to

the COVID-19 pandemic to protect the health, safety or welfare of persons in relation to the

administration of justice or law as they encourage people to limit their physical interaction

with others and limit activities outside of their residential premises, which are key COVID-19

transmission reduction measures.

Dated: 18 May 2020

Hon Jill Hennessy MP Attorney-General


Attorney-General




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OFFICIAL

Subordinate Legislation Act 1994

HUMAN RIGHTS CERTIFICATE

(Section 12A)


I, the Hon Jill Hennessy MP, Attorney-General, and Minister responsible for making

recommendations to the Governor in Council for the making of regulations under section 4

of the COVID-19 Omnibus (Emergency Measures) Act 2020 certify that, in my opinion:

the COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020 (the

proposed Regulations) are compatible with human rights as set out in the Charter of Human

Rights and Responsibilities Act 2006.

Overview

The Regulations make temporary modifications to the application of certain provisions of the

following Acts and Statutory Rules to enable integrity entities to perform their functions

during the COVID-19 pandemic:

• Freedom of Information Act 1982;

• Independent Broad-based Anti-corruption Commission Act 2011;

• Local Government Act 1989;

• Oaths and Affirmations Act 2018;

• Ombudsman Act 1973;

• Privacy and Data Protection Act 2014;

• Telecommunications (Interception) (State Provisions) Act 1982; and

• Victorian Inspectorate Act 2011.


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OFFICIAL

The objective of the Regulations is to address procedural issues faced by integrity entities

operating during the COVID-19 pandemic including:

• enabling personal service to be effected by alternative means;

• permitting inquiries and investigations (including administration of oaths and

affirmations) to proceed by audio-visual link; and

• making a range of reforms specific to individual entities relating to statutory time frames

and the production, inspection and provision of documents.

Human Rights Issues

These temporary amendments engage the following rights under the Charter of Human

Rights and Responsibilities Act 2006 (the Charter): privacy and reputation (section 13) and

fair hearing (section 24).

While these rights may be engaged by the Regulations, they are not considered to be limited.

The Regulations ensure that integrity entities may deliver their critical services during the

COVID-19 pandemic, consistently with any relevant directions or advice given or made under

the Public Health and Wellbeing Act 2008.

Current public health advice is to practice social distancing and to minimise face-to-face

interactions to reduce the risk of transmission of this potentially fatal virus and ensure that

health services are not overwhelmed, ultimately protecting the right to life in section 9 of

the Charter.

Right to Privacy and Reputation

Service of documents on individuals by electronic means or registered post

The Regulations will modify the:

• Freedom of Information Act 1982



• Ombudsman Act 1973; and

• Victorian Inspectorate Act 2011


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to allow documents, including witness summons or confidentiality notices, to be served by

electronic means or registered post instead of being served personally. By virtue of the

Deputy Chief Medical Officer’s Stay at Home Directions (No.6), much of the population is

working from home and are with their families. Service by registered post or email enhances

the right to privacy as it lessens the risk of others witnessing the service of a summons or

confidentiality notice; it averts the confronting nature of personal service; and is more timely

and less resource intensive.

Powers of the Chief Municipal Inspector (CMI)

The Regulations will modify section 223B(5) of the Local Government Act 1989 to permit the

CMI to provide certain documents in the CMI’s possession electronically, for inspection by

permitted persons. The right to privacy and reputation may be engaged as such documents,

which relate to a CMI investigation, may contain an individuals’ personal details and/or

potential misconduct information.

Permitting documents to be received electronically may increase the risk of wider

distribution of that information. However, the Regulations include measures to guard against

this risk. Therefore, whilst the right may be engaged, it is not considered limited. This is

because:

• the Regulations do not alter the existing precondition that only a person who would

otherwise have been entitled to review the document, before it was produced to the

CMI, may be permitted to inspect that document;

• the document must be provided by secure electronic means, minimising the risk of

privacy breach; and

• the Regulations require that the permitted person must destroy the document

following its inspection.

Special requirements for producing exempt documents to the Information Commissioner

The Regulations will modify section 63D of the Freedom of Information Act 1982 to permit

the Information Commissioner to request the inspection of certain documents over which an

exception has been claimed, via secure electronic means. The right to privacy and reputation

may be engaged as the exempt documents are Cabinet in Confidence documents; documents


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OFFICIAL

affecting national security, defence or international relations; law enforcement documents

and documents relating to IBAC.

Permitting such documents to be received electronically may increase the risk of wider

distribution of that information. However, the Regulations include measures to guard against

this risk. Therefore, while the right may be engaged, it is not considered limited. This is

because:

• the Regulations specify that such information may be requested by and provided for

inspection to Victoria’s Information Commissioner only;

• the information must be shared by secure electronic means; and

• the Information Commissioner is not entitled to continued possession of such

information and is required to destroy the inspected document and notify the

relevant agency that the document has been destroyed.

Victorian Inspectorate inspection of Victoria Police and IBAC records

The Regulations will modify sections 11, 12, 14 and 15 of the Telecommunications

(Interception) (State Provisions) Act 1988 to extend the statutory deadline for the Victorian

Inspectorate to inspect and report to the relevant Ministers, regarding Victoria Police and

IBAC telecommunication interception records. The right to privacy and reputation may be

engaged, as the Victorian Inspectorate uses this inspection process to ensure agencies are

complying with their responsibilities in relation to telecommunication interception. Such

interceptions are a significant limitation of individuals’ privacy and must be managed

securely and appropriately oversighted.

Whilst the right may be engaged, it is not considered limited. The Regulations will extend the

timeline for the Victorian Inspectorate’s inspection and reporting, rather than removing the

requirement entirely. The Victorian Inspectorate will still be required to complete its

inspection and reporting obligations as soon as practicable, subject to public health

constraints.

Right to a Fair Hearing

Allow examinations of persons and oaths and affirmations to be undertaken by Audio Visual

Link


Attorney-General




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OFFICIAL

The Regulations will modify the:

• Freedom of Information Act 1982;



• Ombudsman Act 1973; and

• Victorian Inspectorate Act 2011

to allow examinations and oaths and affirmation to be undertaken by Audio Visual Link.

The right to a fair hearing may be engaged by the use of Audio Visual Link during

examinations by integrity entities as it will alter the method by which a person attends an

examination and answers questions under an oath or affirmation. The Regulations also

amend the operation of sections 9 and 15 of the Oaths and Affirmations Act 2018 to permit

IBAC, the Victorian Ombudsman, the Victorian Inspectorate, the Information Commissioner

and the Chief Municipal Inspector to administer oaths and affirmations by Audio Visual Link.

This amendment is necessary to allow integrity entities to conduct examinations by Audio

Visual Link.

If an examination proceeds using Audio Visual Link, a person can still fully participate in the

examination, be heard by the integrity entity and have their legal representative represent. A

person will have a right of complaint to the Victorian Inspectorate regarding IBAC’s, the

Ombudsman's and Information Commissioner’s adherence to procedural fairness and use of

coercive powers. In regard to examinations by the Chief Municipal Inspector, a person is able

to complain to the Ombudsman. If examined by IBAC, the Ombudsman or the Information

Commissioner, a person will also receive a transcript of their examination to review.

This right is also balanced by the fact that integrity entities may still conduct examinations in

person if necessary. Specifically, section 15 of the Oaths and Affirmations Act 2018 allows

the entities to make reasonable modifications via Audio Visual Link for a person who has a

disability or cannot say the oath or affirmation aloud.

In addition, any limitation of the right to a fair hearing is justified as it promotes compliance

with Stay at Home Direction (No 6). Examinations by Audio Visual Link will reduce the

number of people who are required to attend the integrity entities’ buildings. They will assist


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OFFICIAL

entities to safely continue with investigations while practicing social distancing and minimise

face-to-face interactions.

The Regulations further modify the primary Acts to allow documents, including witness

summons or confidentiality notices, to be served by electronic means or registered post

instead of being served personally. The changes to process of serving documents may limit a

person’s right to a fair hearing as there is less certainty that a person has received the

documents in absence of personal service. There are penalties associated with non-

compliance with a witness summons or confidentiality notice without reasonable excuse.

To the extent that they limit to the right to a fair hearing, such limitations are reasonable and justifiable (Charter Act, section 7(2)), noting:

• If a person does not comply with a witness summons or confidentiality notice due to

not receiving it, the person would have a reasonable excuse for non-compliance.

• They are procedural amendments only, and would not create or increase the integrity

entity’s coercive powers or alter the existing oversight by the Victorian Inspectorate.

• Integrity entities are required to provide copies of any summons or confidentiality

notices to the Victorian Inspectorate within three days of issuance.

• A statement of rights and obligations is provided with all summonses, outlining a

person’s right to complain to the Victorian Inspectorate.

• Registered post and email can be tracked and integrity entities are required to

confirm receipt of documents.

• In practice, integrity entities can confirm in advance relevant details for service and

receipt of service.

• The changes are necessary to enable the integrity entities to effectively gather

information to perform their investigative functions during the COVID-19 pandemic.

The changes promote compliance with Stay at Home Direction (No.6), social distancing and protect public health.

Dated: 18 May 2020



Attorney-General




Telephone: (03) 8684 1111

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OFFICIAL

COVID-19 Omnibus (Emergency Measures) Act 2020


RECOMMENDATION

It is recommended to the Governor in Council that, under section 4 of the COVID-19

Omnibus (Emergency Measures) Act 2020 (the Act), the COVID-19 Omnibus (Emergency

Measures) (Integrity Entities) Regulations 2020 be made.

Advice from the Chief Parliamentary Counsel is submitted as required by section 13 of the

Subordinate Legislation Act 1994.

Under section 6 of the Act, sections 6 and 7 of the Subordinate Legislation Act 1994 do not

apply to the making of regulations under section 4 of the Act. Consequently, no regulatory

impact statement or certificate of consultation in respect of these Regulations has been

prepared.

Pursuant to section 4(3) of the Act, I have attached a document stating that in my opinion:

these Regulations are consistent with any relevant directions given or made under the Public

Health and Wellbeing Act 2008 in relation to the COVID-19 pandemic, and are reasonable in

managing or responding to the COVID-19 pandemic to protect the health, safety or welfare

of persons in relation to the administration of justice or law.

Attached are letters of consent from the relevant integrity entities and integrity entity heads,

as required by section 9 of the Act.

I have issued a human rights certificate under section 12A of the Subordinate Legislation Act

1994.

Dated: 18 May 2020


PARLIAMENTARY COUNSEL VICTORIA

Your Reference:

Our Reference: 20-063 : CS/JD

Parliamentary Counsel's Chambers Level 2, I Macarthur Street, .Melbourne, VIC 3002

DX 210753 Tel: (03) 9651 2103 Fax : (03) 9651 2107

Website: w1'IW.legis/ation. vie.go v.au

SUBORDINATE LEGISLATION ACT 1994 SECTION 13 CERTIFICATE

Proposed statutory rule : COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020

Authorising Act : COVID-19 Omnibus (Emergency Measures) Act 2020

Date of print of proposed statutory rule : 18 May 2020

A proposed statutory rule that is to be made by, or with the com,ent or approval of, the Govemor in Council must be submitted to the Chief Parliamentary Counsel for the issue of a certificate by the Chief Parliamentary Counsel specifying whether the proposed statutory rule -

NOTED 8Y THE GOVERNO~ IN COUNCIL

1 9 MAY 2020 CLEffK OF THE EXECUTtvc- CO

C UNC!L

(a) appears to be within the powers conferred by the authorising Act;

(a) so appears;

(h) appears without clear and express (b) authority being conferred by the authorising Act-

(i) to have a retrospective effect; or

(ii) to impose a tax, fee, fine, imprisonment or other penalty; or

(iii) to sh(ft the legal burden of proof to a person accused of an offence; or

(iv) to sub-delegate powers delegated by the authorising Act;

(i) does not so appear;

(ii) does not so appear;

(iii) does not so appear;

(iv) does not so appear;

(c) appears to be consistent with the (c) so appears; general objectives of the authorising Act;

(d) appears to be consistent with and to (d) so appears; achieve the objectives set out in the

(e)

(I)

(g)

proposed statutory rule and, if the proposed statutory rule is to amend an existing statutory rule, appears to be consistent with the objectives set out in the existing statutory rule;

appears to be inconsistent with principles of justice and fairness;

appears significantly or substantially to overlap or conflict with any other statutory rule or legislation;

is expressed unambiguously possible.

as clearly and as is reasonably

(e) does not so appear;

(I) does not so appear;

(g) is so expressed.

NOTED SY THE GOVERNOR IN COUNCIL

1 9 MAY 2020

LERK OF THE EXECUTIVE COUNCIL

~ ~ MARINA FARNAN

Chief Parliamentary Counsel

Date: 18 May 2020

This ce11ificate relates to the circumstances as at the date of the ce1tificate.

Department of Justice and Community Safety

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