Ensuring accountability

Disclaimer: You are viewing an html version of the 2013/14 IBAC Annual Report. 

In this section

Summary of legislation

The Commissioner has been provided with powers and functions to undertake the roles given to IBAC by Parliament. These powers and functions are contained in the following legislation.

Act
Responsible Minister
Purpose
Independent Broad-based Anti-corruption Commission Act 2011
Attorney-General
Establishes IBAC functions and powers 
Act
Responsible Minister
Purpose
Police Regulation Act 1958
Police and Emergency Services
Facilitates the making of complaints to the Commissioner 
Act
Responsible Minister
Purpose
Confiscation Act 1997
Attorney-General
Allows IBAC to obtain certain financial information 
Act
Responsible Minister
Purpose
Crimes (Assumed Identities) Act 2004
Attorney-General
Allows IBAC to obtain and use assumed identities
Act
Responsible Minister
Purpose
Crimes (Controlled Operations) Act 2004
Attorney-General
Enables IBAC to conduct controlled operations 
Act
Responsible Minister
Purpose
Protected Disclosure Act 2012
Attorney-General
Allows IBAC to receive and investigate protected disclosure complaints 
Act
Responsible Minister
Purpose
Surveillance Devices Act 1999
Attorney-General
Allows IBAC to use surveillance devices under warrant 

Act
Responsible Minister
Purpose                       

Telecommunications (Interception and Access) Act 1979
Attorney-General (Cth)
Allows IBAC to intercept telecommunications and stored communications
under warrant 

Act
Responsible Minister
Purpose
Telecommunications (Interception) (State Provisions) Act 1988
Attorney-General
Enables IBAC to intercept telecommunications in accordance with the
Telecommunications (Interception and Access) Act 1979 of the Commonwealth. 
Act
Responsible Minister
Purpose

Witness Protection Act 1991
Police and Emergency Services
Powers to determine appeals against decisions of the Chief Commissioner
of Police to terminate witness protection arrangements 

 

Oversight

An oversight framework ensures appropriate accountability for our work and the significant powers vested in IBAC.

The Victorian Inspectorate Act 2011 creates the Victorian Inspectorate and vests it with functions which include monitoring IBAC’s compliance with relevant laws and receiving complaints against IBAC and IBAC personnel.

More information is available on the Victorian Inspectorate website

The Parliamentary Committees Act 2003 established an IBAC Parliamentary Committee to monitor and review IBAC’s performance of its functions and duties, examine any reports made by IBAC, and report to both houses of Parliament on any matters connected with the exercise of its functions that require the attention of Parliament.

The IBAC Commissioner and CEO appeared before the committee on 9 December 2013. Additionally, the IBAC Committee visited IBAC and met with the Commissioner and CEO on 14 October 2013 and 26 May 2014.

During the year, the following reports were tabled in the Parliament:

  • IBAC Annual Report 2012–13 (September 2013)
  • Special report concerning certain operations in 2013 (November 2013)
  • Special report concerning allegations about the conduct of Sir Ken Jones QPM (February 2014)
  • Special report following IBAC’s first year of being fully operational (April 2014).

IBAC's regulatory compliance

Surveillance devices

IBAC reports the exercise of its powers under the Victorian Surveillance Devices Act 1999 to the Victorian Attorney-General and the Supreme Court of Victoria.

The Attorney-General tables the Commissioner’s reports in the Parliament. The Victorian Inspectorate inspects IBAC’s records to determine compliance with the Act. The Victorian Inspectorate conducted two inspections of IBAC’s surveillance device records during this reporting period.

Telecommunications interceptions

IBAC reports the exercise of its powers under the Telecommunications (Interception and Access) Act 1979 (Cth) to the Victorian and Commonwealth Attorneys-General. The Victorian Inspectorate inspects IBAC’s records to determine compliance with the Telecommunications (Interception) (State Provisions) Act 1988 and aspects of the Commonwealth Act.

The Victorian Inspectorate conducted two inspections in relation to IBAC’s telecommunications interception records during this reporting period.

The Commonwealth Ombudsman inspects IBAC’s compliance with sections 150, 150A and 151 of the Commonwealth Act in relation to stored communications records. An inspection by the Commonwealth Ombudsman did not occur during the reporting period.

Assumed identities

IBAC has powers to acquire and use assumed identities under the Crimes (Assumed Identities) Act 2004. The Act has stringent record-keeping and auditing provisions.

The Commissioner must review the assumed identity records annually and report certain matters to the Victorian Attorney-General, who then tables the Commissioner’s report in the Parliament.

IBAC submitted a report to the Victorian Attorney-General in the second half of 2013.

Controlled operations

The Crimes (Controlled Operations) Act 2004 allows IBAC to authorise, conduct and monitor controlled operations for the purpose of obtaining evidence that may lead to the prosecution of persons for offences.

These operations may involve law enforcement officers participating in conduct for which they would otherwise be criminally liable. Consistent with similar legislation, the Act imposes stringent record-keeping requirements in relation to applications and authorisations for controlled operations. The Victorian Inspectorate inspects IBAC’s records to determine compliance with the Act.

The Victorian Inspectorate conducted one inspection of IBAC’s controlled operations records in the reporting period.

Overseeing Victoria Police regulatory compliance

Sex Offenders Registration Act 2004

Part 4 of the Sex Offenders Registration Act 2004 requires the Chief Commissioner of Police to establish and maintain a register of sex offenders. The legislation specifies information which must be included about registered sex offenders, who can access it, and to whom such information may be disclosed. People registered under the Act are entitled to obtain a copy of information held about them and may have that information corrected if it is found to be incorrect.

IBAC’s role is to monitor compliance by the Chief Commissioner with the provisions of Part 4. For the purpose of monitoring the Chief Commissioner’s compliance with Part 4, in June and July 2013 IBAC conducted an inspection of the register of sex offenders.

The results of that inspection, with a number of recommendations, were subsequently communicated to the Minister for Police and Emergency Services and the Chief Commissioner. Terrorism (Community Protection Act) 2003.

The Terrorism (Community Protection) Act 2003 imposes a duty upon Victoria Police to notify IBAC and provide a copy of the making of a preventative detention or prohibited contact order by the Supreme Court of Victoria on application by Victoria Police. If a person is taken into custody under such an order, Victoria Police must notify IBAC in writing of this fact.

Any person who is subject to a preventative detention order or a prohibited contact order has the right to complain to IBAC in relation to the application of, and their treatment under, such orders. IBAC is entitled to make representations to Victoria Police regarding the exercise of powers and compliance with provisions in relation to preventative detention and prohibited contact orders, and the treatment of any person detained under a preventative detention order.

IBAC did not receive any notifications from Victoria Police under this legislation during the reporting period.

Melbourne City Link Act 1995

Section 168 of the IBAC Act provides that IBAC must monitor compliance by Victoria Police in relation to their use and disclosure of restricted tolling information, at least twice during each financial year. The results of the inspections are reported to the Victorian Attorney-General.

IBAC conducted two inspections of Victoria Police’s records in the reporting period.

Drugs, Poisons and Controlled Substances Act 1981

Section 95 of the Drugs, Poisons and Controlled Substances Act 1981 provides that IBAC must inspect, at least once each financial year, the certificates of health and safety destruction or disposal and the related reports held by the Chief Commissioner of Police.

The results of inspections must be reported to the Minister for Police and Emergency Services. The circumstances in which the certificates and reports are required to be completed by Victoria Police are limited to certain drug seizures without a warrant. IBAC conducted an inspection of Victoria Police’s certificates of health and safety destruction or disposal in the reporting period.

Ensuring regard to human rights

IBAC has an obligation under the IBAC Act to ensure Victoria Police officers have regard to human rights as set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter Act).

IBAC’s approach to this statutory responsibility focuses on identification, assessment, analysis and reporting of relevant police personnel conduct complaints and notifications. By ensuring IBAC’s systems, including our case management system, can collect reliable information on police personnel conduct complaints and notifications which may involve a breach of a Charter Act right, IBAC will be able to identify issues and analyse trends which will inform IBAC’s investigations, reviews, and prevention and education work.

The IBAC CEO met with the Commissioner of the Victorian Equal Opportunity and Human Rights Commission in May 2014 to discuss this approach and ensure we work together in a complementary way to fulfill our respective statutory obligations.

Training is being arranged for IBAC officers who receive and assess complaints and notifications to assist them in identifying possible breaches of the rights under the Charter Act.

As with all other Victorian public authorities, IBAC also has a legal obligation to act compatibly with the rights set out in the Charter Act and to give proper consideration to those rights when making decisions.

However, IBAC’s human rights obligations are not absolute and may be limited when IBAC can justify such action.

Nassir Bare v IBAC & Ors

In February 2010 the former OPI received a complaint from Mr Nassir Bare, a young African-Australian man who alleged he was assaulted and racially abused by police in February 2009. At the time of the alleged incident, Mr Bare was 17 years old.

Mr Bare’s representative requested that his matter be investigated by OPI rather than Victoria Police. After applying assessment criteria based on OPI’s legislative responsibilities, it was determined that the matter should be referred to Victoria Police for investigation.

On receipt of advice regarding OPI’s determination, Mr Bare continued his objection to having Victoria Police investigate his complaint.

In 2010, Mr Bare filed proceedings in the Supreme Court of Victoria claiming that police had discriminated against him and treated him in a cruel, inhuman and degrading way in breach of sections 8 and 10(b) of the Charter Act. In a seven-day hearing in May 2012 before Justice Williams, Mr Bare’s legal representatives contended that there exists an implied procedural right within the Charter Act to have any claim alleging a breach of section 10(b) of the Charter Act investigated ‘effectively’.

It was argued that to be ‘effective’, an investigation into such a claim must be conducted by a body that is hierarchically, institutionally and practically independent from Victoria Police. That is, in this case, OPI should have investigated the complaint.

In March 2013, Justice Williams ordered that Mr Bare’s case be dismissed. Of particular note, was the Court’s determination that there exists no implied procedural right under section 10(b) of the Charter Act to an ‘effective’ investigation of a claim of a breach of human rights.

Mr Bare subsequently filed an appeal against Justice Williams’ decision with the Court of Appeal. In anticipation of the appeal, Mr Bare applied to the Court of Appeal for a protective costs order. In August 2013, Justices of Appeal Hansen and Tate ordered that the costs of both Mr Bare’s and IBAC’s costs of the appeal be mutually protected to an agreed sum.

In May 2014, Mr Bare’s appeal was heard in the Court of Appeal before Chief Justice Warren, and Justices of Appeal Tate and Santamaria. After two days of oral submissions, the Court of Appeal reserved its judgment.