Tuesday, 2 August 2022

Bills

Justice Legislation Amendment (Police and Other Matters) Bill 2022

Statement of compatibility

Mr CARBINES (Ivanhoe—Minister for Police, Minister for Crime Prevention, Minister for Racing) (13:30): Deputy Speaker, I congratulate you on your new role. In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Justice Legislation Amendment (Police and Other Matters) Bill 2022.

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Police and Other Matters) Bill 2022.

In my opinion, the Justice Legislation Amendment (Police and Other Matters) Bill 2022, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill makes amendments to a range of Acts, including to the:

1. Aboriginal Heritage Act 2006

2. Victoria Police Act 2013

3. Sex Offenders Registration Act 2004.

Human Rights Issues

The Bill engages the following human rights under the Charter:

• the right to freedom of movement (section 12)

• the right to privacy and reputation (section 13)

• the right to freedom of expression (section 15)

• the right to peaceful assembly and freedom of association (section 16)

• cultural rights (section 19)

• the right to a fair hearing (section 24).

For the reasons outlined below, I am of the view that the Bill is compatible with each of these human rights.

The right to freedom of movement

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria, to enter and leave Victoria, and choose where to live in Victoria. The right extends, generally, to movement without unnecessary impediment throughout the state, and a right of access to places and services used by members of the public. The right is directed at restrictions that fall short of physical detention (restrictions amounting to physical detention fall within the right to liberty, protected under section 21 of the Charter).

Security powers on police premises

Clauses 10, 12, 14 and 15 of the Bill amend the Victoria Police Act to establish new powers to assist Victoria Police to maintain the security of police premises. Clause 10 of the Bill defines police premises as any premises occupied or used by Victoria Police, on a permanent or temporary basis, for any purpose related to the functions, duties, or powers of Victoria Police. The definition provides an inclusive list of police premises, and explicitly excludes PSO pods.

New section 59A authorises police officers and PSOs to request that a person on or in the vicinity of police premises provide their reason for being there. If the person provides a reason that the police officer or PSO considers is not a legitimate reason, the police officer or PSO may request that a person provide their name and address. A police officer or PSO may direct a person to leave or not enter premises if they believe on reasonable grounds that the person does not have a legitimate reason for being on or in the vicinity of police premises, and the direction is necessary to preserve the peace or maintain the security of police premises. This may include a direction not to return to police premises for a period of up to 7 days without the permission of a police officer or PSO, unless the person has a legitimate reason to return, or it is not practicable to first request permission.

New section 59B further authorises a police officer or PSO to remove a person from the premises if they: fail to comply with a direction to leave the premises; obstruct an entry to or exit from, or access to the premises; or if the police officer or PSO believes on reasonable grounds that the person has committed an offence.

These powers may limit the right to freedom of movement to the extent that they interfere with the right to access places that members of the public ordinarily have access to, such as a police station. However, the exercise of these powers in relation to places where members of the public do not ordinarily have access, such as a private office building or carpark occupied by Victoria Police, will be beyond the scope of the right. In my view, any limit of this right is reasonable, necessary, justified and proportionate in all the circumstances. The purpose of these powers is to protect the security of police premises. Victoria Police premises may present security risks due to the sensitive information held at the premises and the nature of work undertaken by Victoria Police. There have been numerous security incidents at a number of police premises over the past four years, including antagonistic persons attending police premises in the absence of a legitimate reason and harassing police officers and other employees. Exchanges with police officers, photographs of them or their vehicles are frequently uploaded onto social media. This creates a risk for police employees seeking to peacefully enter and leave police premises. New sections 59A and 59B will enable Victoria Police to better respond to and mitigate risks to safety and privacy for police members, other employees and community members in attendance at police premises.

The limitations new sections 59A and 59B place on the right to freedom of movement are proportionate to the identified risks to safety and security at police premises, and include appropriate exceptions. For example, a police officer or PSO may direct a person not to return to police premises for a period of up to 7 days, however the person is not prevented from returning to the premises during that time for a legitimate purpose, for example to report a crime or comply with a court order or conditions of their bail.

New section 59A distinguishes between police premises and the surrounding area, as a person may not be directed to refrain from returning to the vicinity of police premises. Section 59A ensures police officers and PSOs can respond to any immediate security risks in the vicinity, while recognising that individuals may need to attend the surrounding area for purposes unrelated to policing once the immediate risk has been addressed.

In my opinion, any limitation on the right to movement occasioned by these amendments are reasonable and proportionate in all the circumstances, and therefore compatible with the right to freedom of movement under the Charter.

The right to privacy and reputation

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

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

Security powers at police premises

Clauses 10, 12, 14 and 15 of the Bill engage the right to privacy as this reform allows police officers and PSOs to request that a person provide personal information. The security powers at police premises enable police officers and PSOs to request a that a person provide their name and address. The power to request personal information aims to support police officers and PSOs to keep good order and maintain security at or near police premises.

The power to request a person to provide their name and address is not arbitrary as new section 59A makes it clear that police officers or PSOs may only request this information if the police officer or PSO considers that a person has failed to provide a legitimate reason for being on or in the vicinity of police premises.

The power is proportionate to the need to protect the security of police premises as new sections 59A and 59B allow Victoria Police to inquire about information which may assist them to understand the security risk, for example if the person is of interest to police, or to follow up with the person if a security risk eventuates. However, the new sections do not allow a police officer or PSO to direct a person to leave police premises, remove the person or arrest the person if they do not share their personal information.

In my opinion this amendment is therefore consistent with the right to privacy and reputation.

Amendments to the Sex Offenders Registration Act 2004

The Bill amends the Sex Offenders Registration Act 2004 to support Victoria Police to continue to actively monitor registrable sex offenders and to reduce the risk of reoffending. Clauses 3 and 4 make amendments to clarify a registrable offender’s existing reporting requirements, and to reduce the period a registrable offender may drive a vehicle before being required to report the details of the vehicle to the Chief Commissioner of Police.

Clauses 3 and 4 engage the right to privacy of a registrable offender to the extent that it expands a registrable offender’s existing duty to report personal details to the Chief Commissioner of Police. Whilst the Bill provides greater clarity and precision to registrable offenders regarding their reporting obligations, it is possible that these amendments may lead to an increase in the number of reportable incidents when a registrable offender drives a vehicle more than seven days but less 14 days in any twelve month period, and in relation to a child with whom a registrable offender maintains a personal relationship. However, I am of the view that any interference with a registrable offender’s right to privacy will be neither unlawful nor arbitrary and therefore does not limit the right to privacy protected by the Charter. Accordingly, I am satisfied that these amendments are compatible with the right to privacy in the Charter.

Establishing a legislative framework for the Victoria Police Restorative Engagement and Redress Scheme

Clause 20 of the Bill inserts new Part 9A into the Victoria Police Act to establish a legislative framework for the Victoria Police Restorative Engagement and Redress Scheme. The Scheme has been operating administratively since December 2019. New Part 9A outlines the objectives of the Scheme, the functions of the Secretary of the Department of Justice and Community Safety in administering the Scheme, and establishes a framework for participation in the Scheme, the application and assessment process, and the types of redress which may be provided to an applicant who is found suitable to participate in the Scheme.

The legislative framework for the Scheme engages the right to privacy and reputation; however, in my view it does not limit the right as none of the relevant amendments are unlawful or arbitrary.

New section 174Q provides that some material prepared or provided as part of a person’s participation in the Scheme may be admissible in future court proceedings, and that other material will not be. Admissibility of this material may interfere with the right to privacy, whereas inadmissibly may interfere with the right to fair hearing (discussed below).

New section 174Q provides that the following documents are not admissible in any civil or criminal proceedings:

• documents prepared by the Secretary in connection with the administration of the scheme or an application to the scheme

• documents prepared by a person (other than the applicant) in connection with an action to give effect to a scheme determination (such as the records of a restorative engagement facilitator)

• anything disclosed or received by a person in connection with an application, or the provision of redress to the applicant. This includes any records of discussions with or about the applicant or the redress they are receiving.

The following documents are admissible in criminal proceedings, but not admissible in civil proceedings unless the applicant consents to their disclosure:

• a written application

• statutory declaration

• any application for an internal review; and

• any document prepared by an applicant in response to a request for further information are admissible in criminal proceedings.

New section 174Q promotes the right to privacy and reputation by ensuring, to the extent appropriate, that participants can describe their experiences openly to ensure they can be assessed for the provision of suitable redress and participate freely in any restorative engagement conference. Material that may be admissible may interfere with the right to privacy and reputation of both the applicant and the alleged perpetrator; however, if the information is materially relevant to the proceedings at hand, this will be appropriate. The legislative framework for the Scheme aims to ensure that any victims of sexual harassment or sex discrimination have the ability to elect to take one or more actions as a result of their experience. For example, they may wish to apply to the Scheme and also commence related proceedings about the same conduct. New section 174Q ensures applicants are not limited in their participation in other proceedings because they disclosed information to the Scheme, which is also relevant to other proceedings.

As noted above, new section 174Q does, however, provide that statutory declarations and any other documents prepared in the context of a redress application are admissible in criminal proceedings. This balances the participant’s right to privacy, with an alleged perpetrator’s right to a fair hearing (discussed further below). A participant in the Scheme may also elect to make a criminal complaint relating to the same conduct. New section 174Q ensures that a defendant in any criminal complaint about conduct for which a person also applied to the Scheme, can consider all evidence available, including a statutory declaration detailing the complainant’s experience, to assist them to prepare their defence.

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

Establishing a clear obligation for police personnel to only access, make use of, or disclose police information if connected to their current duties

Clause 21 substitutes section 226 of the Victoria Police Act to provide further clarity about the circumstances in which Victoria Police personnel can access, use or disclose police information. Such information can include highly sensitive information about members of the community including their personal details, their location, information about alleged criminal activity and information about the experiences of witnesses and victims of crime.

In its 2016 report on Operation Dawson—An investigation into alleged misconduct by a former Victoria Police Superintendent, the Independent Broad-based Anti-corruption Commission (IBAC) recommended that section 226 be amended to clarify its intention. IBAC considered that it is a common assumption that police officers have the authority to access sensitive information which is not connected to their current duties, by virtue of their general duty to prevent and detect crime. IBAC determined that this assumption is held in circumstances where accessing the information is motivated by private interests rather than official police duties.

Amended section 226 provides that a current or former member of Victoria Police personnel must not, without reasonable excuse, access, use or disclose police information unless it is directly related to their current functions or duties, or is otherwise authorised under provision of the Act. In determining whether access, use or disclosure is directly related to a member’s current functions or duties, regard may be had to the Chief Commissioner’s instructions.

This amendment promotes the right to privacy and reputation by ensuring highly sensitive information is kept confidential. However, to ensure police personnel can perform their law enforcement functions and duties, the access, use and disclosure of information will be permitted where required to support the performance of relevant functions and duties. To the extent that such access, use and disclosure interferes with the right to privacy, in my view any such interference is neither unlawful nor arbitrary. New section 226 provides clarity about the circumstances in which information may be accessed, used and disclosed, and these circumstances are clearly and appropriately confined. It is therefore compatible with the right to privacy.

The right to freedom of expression

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

Security powers at police premises

This reform may engage the right to freedom of expression as the powers to direct a person to leave or not re-enter police premises, leave the vicinity of police premises and remove a person for failing to comply with a direction, may limit a person’s ability to express their opinions freely in or around the vicinity of police premises.

However, police officers and PSOs will only be authorised to direct a person to leave or not enter police premises if they are satisfied on reasonable grounds that a person does not have a legitimate reason for being there, and the direction is necessary to preserve the peace or protect the security of the premises. The exercise of these powers does not prevent a person from expressing their views in the vicinity of police premises on any matter including criticism of police.

This reform prioritises the safety and security of police premises, employees of Victoria Police and any members of the community in attendance at police premises, over an individual’s freedom of expression. I am of the view that this is a lawful restriction reasonably necessary to protect the rights of others, and for the protection of public order. Any interferences with the right to freedom of expression therefore fall within the scope of the internal qualifications on this right as contained in section 15(3) of the Charter.

The right to peaceful assembly and freedom of association

Section 16 of the Charter provides for the right to peaceful assembly and freedom of association. The right to peaceful assembly is considered essential for the public expression of a person’s views and opinions.

Security powers at police premises

The powers to direct a person to leave or not re-enter police premises, leave the vicinity of police premises, and to remove a person for failing to comply with a direction, may limit a person’s right to peaceful assembly in or around the vicinity of police premises. In my view, any such limits are reasonable and justified for the same reasons as set out above in relation to freedom of expression.

Further, new section 59C of the Bill clarifies that it is not intended that the powers established by new sections 59A and 59B of the Victoria Police Act limit the right of peaceful assembly or the right to take part in public life by means of lawful protest, advocacy or industrial action.

Cultural rights

Clause 25 of the Bill amends the Aboriginal Heritage Act 2006 at section 156(2)(b) to clarify that “administration” is not “special administration” as described in the Corporations (Aboriginal and Torres Strait Islander) Act 2006. The clause may engage the Charter rights to culture (s 19). For the reasons set out below, however, it is my opinion that this Charter right is not limited.

Section 19(2) of the Charter states that Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community—

(a) to enjoy their identity and culture; and

(b) to maintain and use their language; and

(c) to maintain their kinship ties; and

(d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

Insofar as the clause engages this right, it does so in a positive way, by clarifying for Traditional Owners that when their representative Registered Aboriginal Party is placed under special administration by the Office of the Registrar of Indigenous Corporations for the purpose of assisting that Party, that that Party’s registration under the Principal Act will not be automatically revoked. This creates certainty for Traditional Owners that, at the end of the period of special administration, their representative Registered Aboriginal Party will be able to continue to work to maintain the enjoyment of their identity and culture, and their distinctive spiritual, material and economic relationship with the land and waters and other resources.

The right to a fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

As set out above, clause 20 of the Bill establishes a legislative framework for the Victoria Police Restorative Engagement and Redress Scheme and limit the admissibility of some information disclosed for the purposes of the Scheme.

New section 174Q provides that documents prepared by the Secretary in the administration of the scheme or an application for a scheme determination; anything disclosed or received by a person (other than the applicant) in connection with an action to give effect to a scheme determination; and anything disclosed or received by a person in connection with an application or the provision of redress; are inadmissible in any proceedings, civil or criminal. This includes any records of discussions about the applicant or the redress they are receiving. Further, a participant’s application for a redress determination, any statutory declaration accompanying an application, any application for an internal review of the Secretary’s determination and any document prepared by the applicant following a request from the Secretary for further information are inadmissible in civil proceedings, without the applicant’s consent. However, these documents are admissible in criminal proceedings. New section 174Q provides that a person cannot be required by subpoena, summons or otherwise, to produce a protected document, or a copy of or extract from that document, or to give evidence that is inadmissible under this section.

New section 174Q may interfere with the right to a fair hearing, insofar as it may limit the requirements of discovery and production of documents for inspection in a civil proceeding related to the same conduct which an applicant in the Scheme referred to in their application or discussed as part of their participation the Scheme. This may limit the ability of a civil litigant to obtain or rely on information or documents material to issues in dispute. New section 174Q may also limit the requirements of discovery and production of any documents which were prepared by the Secretary or others in the administration of the Scheme, including any records of verbal discussions with or about the applicant. However, this limitation is balanced against the need to protect the right to privacy of applicants to the Scheme in relation to material they have produced for the purpose of their application, and any discussions during the provision of redress, including about their health needs, to ensure the Scheme remains therapeutic and victim focused. It is considered that the documents which are inadmissible in any proceedings are likely to be of less relevance to parties in any proceedings related to the same conduct than other documents, as the documents inadmissible in any proceedings cover the department’s internal records.

The scheme was established to provide current and former members of police personnel who have experienced sexual harassment or sex discrimination in connection with being a current or former member, to apply to the Scheme to obtain a therapeutic outcome. This provision aims to allow current and former members to document their experience without fear that they will not have control over whether their record of their experience will be disclosed in any related proceedings which are commenced for a different purpose.

New section 174Q distinguishes between the admissibility of this information in civil and criminal proceedings, however, to ensure a defendant in a related criminal proceeding can access this information to assist with the preparation of their defence, given the nature of criminal proceedings (namely, the significance to a defendant of an adverse decision).

In my opinion these amendments are therefore compatible with the right to a fair hearing.

The Hon Anthony Carbines MP—Minister for Police

Second reading

Mr CARBINES (Ivanhoe—Minister for Police, Minister for Crime Prevention, Minister for Racing) (13:31): I move:

That this bill be now read a second time.

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

Incorporated speech as follows:

The Bill before the House introduces a range of policing reforms which are aimed at keeping the community safe and protecting the privacy of applicants to the Victoria Police Restorative Engagement and Redress Scheme. The policing reforms include amendments to the Victoria Police Act 2013 and the Sex Offenders Registration Act 2004. I will outline each of the main reforms.

1. Productivity and revenue initiatives related to event cost recovery

The Victoria Police Act 2013 (VPA) authorises Victoria Police to impose costs on event organisers for the deployment of police officers and protective services officers (PSOs) at large commercial events, where Victoria Police determines that policing services are necessary to maintain community safety. However, Victoria Police can only recover costs for services provided inside the venue or event area. Victoria Police cannot recover costs for the services provided outside the event area. These services may be required to manage the general traffic build up and maintenance of good order as a result of the event.

The Bill amends the VPA to allow Victoria Police to prescribe fees or charges for the provision of services outside a venue or event area and in the nearby area or community affected by the event, from the promoter of the event or the person or body conducting it. This will only include charges necessitated by the event. For example, if additional officers need to be deployed to respond to an unforeseen emergency at an event, the amendment will not allow Victoria Police to recover the cost of these services from an event organiser, as these services would fall within the ordinary obligations of the police force.

Victoria Police has established a clear process for determining the level of resourcing needed to support the safe operation of an event, and for discussing the amount and type of resources with an event organiser. Costs are agreed in advance and are not altered in response to any conduct or incident which occurs at the event.

The Bill also amends the VPA to provide Victoria Police with the power to waive all or part of the fees where appropriate.

The Bill will amend the VPA to authorise Victoria Police to enter into agreements with commercial enterprise operators, such as shopping centre operators, to provide policing services beyond regular policing services at certain venues, if a venue operator considers this useful. Notwithstanding an agreement having been entered into, the Bill confirms that the Chief Commissioner is authorised to redeploy police services and goods for any purpose that the Chief Commissioner considers necessary.

2. Enhancing the powers of police officers and protective services officers (PSOs) to protect the security of police premises

Victoria Police premises can present security risks due to the sensitive information held at the premises and the nature of the work undertaken by Victoria Police. A number of incidents of concern have occurred at police premises in the past five years including:

a. persons antagonising police officers entering or leaving a police station while an accomplice filmed the encounter

b. a person filming a regional police station and the car park where police officers’ private vehicles are parked and “baiting” police officers nearby

c. a person following a police vehicle into the Victoria Police Centre car park on the premise of inspecting the retractable bollards at the entrance and exit points

d. a person regularly entering the foyer of a police station with a recording device although claiming to have no business there.

Exchanges with police officers, and photographs of them or their vehicles are frequently uploaded onto social media. This creates a risk for police personnel seeking to peacefully enter and leave police premises.

Currently there are no specific powers for police officers and PSOs to protect the security of police premises. They do not have the power to stop individuals filming police personnel or their vehicles, or parts of police premises, or to remove antagonistic persons from police premises. Due to the risks to safety and privacy for police personnel and community members in attendance at police premises, the VPA will be amended to provide police officers and PSOs with powers to:

a. request a person on or in the vicinity of police premises, or about to enter police premises, to provide their reason for being there, and if they do not provide a reason, to provide their name and address

b. direct a person to leave or not enter police premises if the police officer or PSO reasonably believes that they do not have a legitimate reason for being there, and the direction is necessary to keep the peace or maintain the security of the premises

c. direct a person not to return to police premises for up to seven days, without the permission of a police officer or PSO, unless they have a legitimate reason to return or it is not feasible to seek permission in the circumstances

d. remove a person from police premises or the vicinity of the premises if the person has failed to comply with a direction to leave, not enter or not return hindered or obstructed police officers or PSOs, or committed an offence under the VPA or

e. arrest a person on, or in the vicinity of, police premises, or attempting to re-enter police premises, who has not complied with directions to leave or not enter, hindered or obstructed police officers or PSOs exercising powers under those provisions, or committed an offence under the VPA.

Police officers and PSOs will exercise their discretion in determining whether it is necessary to remove or arrest a person, balancing the need to maintain the security of police premises and the need to keep the peace, with the need to ensure police premises are accessible to the public for legitimate reasons.

The Bill also establishes offences for failing to comply with a request to provide a reason for being on or in the vicinity of police premises or to provide a name and address, providing false or misleading information to police officers or PSOs, failing to comply with a direction to leave or not enter police premises, or hindering or obstructing a police officer or PSO in exercising these powers. The powers are confined to security risks and the Bill confirms that it is not intended that the powers limit the right of peaceful assembly or the right to take part in public life by means of lawful protest, advocacy or industrial action.

In exercising the power to direct a person to leave police premises, not enter police premises or not return to police premises without the permission of a police officer or PSO, police officers and PSOs will apply their discretion to ensure a person is allowed to attend police premises for a lawful reason, such as to report a crime, to comply with a court order or comply with bail conditions. Further, a person will be authorised to return to police premises if they have a legitimate reason to return and it is not feasible to seek permission before returning.

3. Clarifying the places where PSOs may exercise special powers under Part 3A of the Terrorism (Community Protection) Act 2003 (TCPA)

The TCPA allows PSOs to exercise special police powers within the target area specified in an authorisation under the TCPA. The Review of the Terrorism (Community Protection) Act 2003 recommended that legislative amendments should be made to clarify that PSOs may exercise special police powers anywhere within authorised areas, consistent with the broader role of PSOs and subject to the provision of appropriate training (Recommendation 12). This recommendation reflects concern that the VPA may limit the use of special police powers by PSOs to designated places prescribed by regulation, so that where an authorisation under the TCPA does not overlap with a designated place (such as a train station) PSOs cannot exercise the special powers.

The Bill amends the VPA to clarify that PSOs are authorised to exercise the special police powers at any authorised targeted location across Victoria, regardless of whether a PSO is at, or in the vicinity of, a designated place.

4. Establishing a legislative framework for the Restorative Engagement and Redress Scheme (the Redress Scheme) to support current and former Victoria Police employees who have experienced workplace sex discrimination or sexual harassment

In 2015 the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) released the Independent Review into sex discrimination and sexual harassment, including predatory behaviour within Victoria Police which recommended that Victoria Police and government undertake work to deliver an independent redress scheme for Victoria Police employees who have experienced past workplace sex discrimination and sexual harassment.

Redress schemes are a way to acknowledge past harm and to provide support to eligible applicants without the requirement of a high evidentiary threshold or other legal requirements. The focus of redress is on healing and recovery for the person harmed, through access to counselling and therapeutic services and an opportunity to participate in a restorative engagement conference.

The Redress Scheme was established by Government and has been operating under an administrative model since 12 December 2019. The Redress Scheme acknowledges the experiences, and associated impact and harm, of current or former members of Victoria Police personnel who have encountered workplace sex discrimination and sexual harassment. It provides eligible participants assistance and support to recover from these experiences through access to redress in the form of financial redress, access to counselling and therapeutic services and the opportunity to participate in a restorative engagement process where they can share their experiences and the associated impact and harm with senior Victoria Police representatives in a safe and supportive environment. Some of the guiding principles of the Redress Scheme are to minimise further harm as a result of participation in the Redress Scheme, to be independent from Victoria Police, to keep participant information confidential and to protect participant privacy, and to provide support and assistance that is victim-centred, trauma-informed and accessible.

The Bill amends the VPA to establish a legislative framework for the Redress Scheme to:

a. vest key functions and decision-making powers related to eligibility requirements, the application process and redress determinations and reviews in the Secretary of the Department of Justice and Community Safety and

b. strengthen protections for the privacy and confidentiality of highly sensitive and personal information that is provided by participants and in internal documents, to ensure the Scheme is victim focused and reduce the potential for re-traumatisation.

The proposed reforms will provide greater protection for the personal and sensitive information shared by participants (including health information) and protect privacy and autonomy in the reporting of their experiences. A key finding of the VEOHRC Review was that there was significant underreporting of sexual harassment and sex discrimination within Victoria Police due to lack of trust in that organisation to respond in a sensitive and trauma-informed way to reports of such conduct. The Redress Scheme provides a safe and supported environment to enable eligible victims to share their experiences of harm and seek support. If not for the existence of the Redress Scheme, many participants would not come forward to seek support and acknowledgement of their experiences. Redress Scheme participants retain their existing legal rights to voluntarily report wrongdoing within Victoria Police or to IBAC, or take other legal action as appropriate.

5. Amendments to the drug and alcohol testing program for Victoria Police personnel

The VPA establishes a drug and alcohol testing regime for Victoria Police personnel. This includes random drug and alcohol testing. The current provisions create operational challenges for Victoria Police in conducting random testing, as when randomly selecting people to participate in random testing, all personnel rostered on across Victoria at that time are eligible for selection. This can result in participants who are located across the state being randomly chosen, and testing staff needed to visit all of those locations on the same day to conduct the resting.

For drug testing to be an effective deterrent, the chances of being randomly tested must be increased. The VPA will be amended to allow Victoria Police to select a Victoria Police workplace or work unit from within which a random sample can be drawn. Selecting the random sample from a narrower portion of the organisation will increase a person’s chances of being randomly tested when their workplace or work unit is chosen, and will encourage Victoria Police to increase the frequency of testing across the organisation as the current operational barriers to testing will be removed. This amendment will be supported by operational instructions about the process by which a workplace or work unit can be chosen, to ensure the process remains random.

The VPA allows the Chief Commissioner to consider positive results of drug and alcohol tests in certain circumstances. The VPA will be amended to allow the Chief Commissioner to consider a positive test result returned by a police recruit who has participated in designated work unit testing, designated work function testing or targeted testing, when determining whether to terminate the recruit’s employment under section 36 (5) of the VPA. Similarly, the Chief Commissioner will be authorised to consider a positive result when determining whether to terminate the appointment of a PSO under section 38 (6) of the VPA, at any time before the PSO takes the oath or affirmation of office.

6. Providing a clear obligation for police personnel to only access, make use of, or disclose police information if required by their current duties

The Bill amends section 226 of the VPA to impose a clear, standalone obligation on police personnel to maintain the confidentiality of police information, without reference to separate policy documents, and with a clear instruction that access must be directly related to their current duties and functions. This will clarify the legislative requirement to provide certainty about the limits of an employee’s authorisation to access and use information.

7. Other miscellaneous amendments to the VPA

The Bill also amends the VPA to address inconsistencies between sections 32 41 and 146 relating to the process for promoting police members and PSOs. The Bill will enable the Chief Commissioner to take more than one disciplinary action to a police officer or PSO who is found guilty of a criminal offence. This will align the approach to criminal offences with the approach to a breach of discipline, by ensuring the Chief Commissioner can take all actions considered appropriate.

8. Amendments to the Sex Offenders Registration Act 2004 (SOR Act)

The Bill amends the SOR Act to support Victoria Police to continue to actively monitor registerable sex offenders and to reduce the risk of reoffending.

The SOR Act requires registrable offenders to report to Victoria Police at the commencement of their registration period, and periodically over that time to allow Victoria Police to record the personal details of a registrable offender. This includes information such as a registrable offender’s primary place of residence, the place where the person usually sleeps, any vehicle the registrable offender usually drives, and the details of any children with whom a registrable offender has a personal relationship.

The SOR Act requires registerable offenders to make certain reports in person. The 2019-2020 Victorian Bushfires and COVID-19 pandemic have demonstrated that there are exceptional circumstances where in-person reporting by registrable offenders presents a health or safety risk to the registrable offender and to Victoria Police employees. The SOR Act will be amended to allow the Chief Commissioner of Police to direct or permit a registrable offender to report by audio link, audio visual link or electronic communication during a state of emergency, a state of disaster or where a pandemic declaration is in force.

The Bill also amends the personal details that a registrable offender is required to provide in their initial report, to improve the quality of up-to-date information received by Victoria Police. The amendments clarify that a registrable offender is only required to provide information sufficient to identify where the person sleeps on a regular basis if the person has no fixed address. The period of time that a registrable offender may drive a vehicle before reporting it as a vehicle that the person usually drives will be reduced from 14 days to seven days in any 12-month period. This will bring the ‘usually drives’ period in line with other seven day reporting periods in the SOR Act and reporting periods in other Australian jurisdictions.

The Bill amends the SOR Act to clarify that a registrable offender must report the details of any child with whom they engage in any form of actual physical contact, or oral or written communication for the purpose of maintaining a personal relationship at initial report, annual report, and if the registrable offender ceases to maintain a personal relationship with the child. The proposed amendment specifies the mode of contact (physical contact, or oral or written communication) and the circumstances in which that contact occurs (for the purposes of maintaining a personal relationship) to be reported. The design of the amended definition of child contact is consistent with the VLRC recommendations in chapter 7 of the 2012 Final Report on Sex Offenders Registration. Consistent with current reporting obligations, a registrable offender will not have to report the details of each and every occasion on which the offender has contact with each of those children for the purpose of maintaining a relationship. This reform clarifies that a registrable offender who has formed a personal relationship with a child before being registered must report that relationship to Victoria Police. These amendments support Victoria Police to reduce the risk of reoffending and to facilitate the investigation and prosecution of any offences that a registrable offender may subsequently commit.

The Bill makes amendments to improve the operation of the SOR Act in respect of the classification of certain offences under that Act. The SOR Act prescribes four classes of offences for the purposes of the Act. A Class 2 offence is committed against a child, whereas a Class 4 offence is committed against an adult. A person sentenced for a Class 2 offence is automatically registered as a registrable offender and must comply with the reporting requirements under the SOR Act. By contrast, a court has a discretion to make a sex offender registration order against a person sentenced for a Class 4 offence committed against an adult.

The offence of ‘sexual assault of a person with a cognitive impairment or mental illness’ is currently listed as both a Class 2 and a Class 4 offence. The Bill amends the SOR Act to clarify that the offence of ‘sexual assault of a person with a cognitive impairment or mental illness’ is a Class 2 offence if it is committed against a child. An appropriate transitional provision is included to provide for a registrable offender who has been found guilty of committing an offence against an adult to apply to the sentencing court for an order to consider whether it would have made a sex offender registration order if the offence committed against an adult were a Class 4 offence. It is estimated that less than three people could be eligible to apply for an order under this transitional provision.

The Bill also lists as a Class 2 offence the Commonwealth offence of using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, persons under 16 except if the offence does not involve an act in preparing or planning to engage in sexual activity with a person under 16 years of age or an act in preparing or planning to procure a person under 16 years of age to engage in sexual activity. This offence is established by section 474.25C of the Criminal Code Act 1995 (Cth). In practice, the Bill excludes conduct constituting an offence against paragraph 474.25C(a)(i) of the Criminal Code Act of the Commonwealth as this conduct is not sexual in nature.

I commend the Bill to the House.

Ms KEALY (Lowan) (13:31): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Tuesday, 16 August