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—

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;

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;

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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.

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

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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.

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.

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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.

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).

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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).

Clause 5 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

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the IBAC to prioritise the investigation and exposure of serious or systemic corrupt conduct.

Clause 6 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.

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.

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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;

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.

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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).

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

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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.

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

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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 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

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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.

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

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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 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

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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.

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.

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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.

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

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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.

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

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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;

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.

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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.

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

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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).

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.

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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)".

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.

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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 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

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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.

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.

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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.

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

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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.

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—

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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 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.

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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 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

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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.

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

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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.

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.

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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.

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.

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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 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

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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 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

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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.

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.

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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".

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

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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).

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.

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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.

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.

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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.

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.

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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.

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.

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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.

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

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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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