MS TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (19:10): I move:
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms TIERNEY: I move:
That the bill be now read a second time.
Incorporated speech as follows:
The Bill before the House introduces urgent amendments into the Victoria Police Act 2013 (VPA) to address an administrative error with the appointment of Acting Assistant Commissioners (AACs).
Section 26 of the VPA authorises the Chief Commissioner to appoint a police officer to the role of AAC. Section 19 of the VPA allows the Chief Commissioner to delegate this power of appointment to Deputy Commissioners. Once appointed, AACs are authorised to exercise all powers of Assistant Commissioners.
The VPA commenced on 1 July 2014. Prior to its commencement, the Police Regulation Act 1958 governed the operations of Victoria Police. Section 6(1) of that Act authorised Deputy Commissioners to exercise all powers of the Chief Commissioner, including appointment powers.
Between 1 July 2014 and August 2021, Deputy Commissioners appointed a number of police officers to the role of AACs, in an acting capacity, under the assumption that they had the power to do so based on the operation of the former Act. They were not aware that the Chief Commissioner was required to delegate his power of appointment to them under the new Act, or that the instrument of delegation had not been signed.
In August 2021, it was identified that the purported appointments of AACs by Deputy Commissioners were invalid. The Chief Commissioner then signed an instrument of delegation to effectively delegate the power to appoint AACs to Deputy Commissioners from August 2021.
As the appointments of AACs by Deputy Commissioners before September 2021 are not considered to be valid, all exercises of power by AACs during that time are considered invalid. This includes powers exercised relating to criminal matters which have the potential to affect the admissibility of evidence. Retrospective validating legislation is necessary to ensure that otherwise successful prosecutions will not be impacted by an administrative error.
Subsequent auditing by Victoria Police identified another power exercised by AACs between July 2014 and August 2021 is the power to ‘swear in’ new police officers and protective services officers (PSOs). Section 50 of the VPA provides that before a police officer or PSO performs any duties or exercises any powers that they have as a police officer or PSO, they must take an oath or make an affirmation and subscribe to it. Section 50 provides that the oath or affirmation is to be administered by a Magistrate, the Chief Commissioner, a Deputy Commissioner or an Assistant Commissioner. Once a police officer or PSO has taken and subscribed to the oath or affirmation under section 50 of the VPA, they receive the duties and powers of a police officer or PSO under section 51 of the VPA.
In mid-February Victoria Police identified that AACs whom had been invalidly appointed had administered the oath for a significant number of new sworn members. As a consequence, 1213 police officers and PSOs are not considered to have been validly sworn in as required by the VPA, and do not have the powers and duties of a police officer or PSO. There were also 29 police custody officers who were not sworn in.
Victoria Police has since taken urgent action to re-swear affected sworn officers at the commencement of their next shift. This action has ensured these officers are validly sworn and can continue to use their police powers to keep Victorians safe.
Victoria Police also wrote directly to each of the affected police officers and PSOs to assure them that it is recognised that they have acted in good faith in undertaking their duties in the belief they had been validly sworn. The Victorian Government has also given affected officers the assurance that all protections that are normally afforded to sworn members including entitlements like superannuation, will not be diminished by this issue.
The Bill will retrospectively validate the appointments of AACs by Deputy Commissioners from 1 July 2014 to 31 August 2021, and any acts or omissions performed by AACs during that time, pursuant to their invalid appointments. This includes the power to swear in police officers and PSOs and will have the retrospective effect of validating all appointments of police officers and PSOs sworn in by AACs during this time, and all police/PSO powers they have exercised to date. It also includes the power for AACs to authorise a person to act as a police custody officer.
The Bill will not limit judicial independence, including in relation to pending litigation, as the provision will retrospectively alter the substantive law and will not interfere with the judicial process. The new provisions will apply to pending litigation, so that any exercises of power or decisions made in reliance on evidence obtained as a result of an exercise of power by an AAC, before the Act commences, will not be invalid due to their invalid appointment.
For the purposes of the prosecution of an alleged offence, the fact that the appointment was invalid is to be disregarded in determining whether evidenced obtained as a result of an exercise of power by an invalidly appointed AAC should be admitted. The provisions will not cure other forms of invalidity and will ensure the discretion of a court to exclude evidence in a criminal proceeding or stay a criminal proceeding in the interests of justice is retained.
The provisions will not apply to any proceedings that were already final before the commencement of the Act, where a court has made a ruling on the validity of an invalid appointment of an AAC.
The Bill will ensure the work of AACs and any police officers/PSOs sworn in by AACs during this time will not be affected by this administrative error.
I commend the Bill to the House.
Mr Ondarchie: On a point of order, Deputy President, we have only just got the second-reading speech. While the bill went through another place today, we have not had a chance to absorb it. Can we just have a moment to read this before we commence our second-reading speeches, please?
Thank you, Deputy President. We have had time to read it now, and we wish to proceed.
